MEMORANDUM OPINION
JAMES
E. BOASBERG UNITED STATES DISTRICT JUDGE
When it
comes to our nation's critical ocean habitat, Plaintiff
Conservation Law Foundation says that the federal government
has one job: protect it. So when the National Marine
Fisheries Service, an agency under the auspices of the
Secretary of Commerce, approved a new management plan for the
Gulf of Maine that opened up a broad swath of ocean to the
commercial and recreational fishing fleet, CLF was
understandably concerned. Hoping to reel in the damage,
Plaintiff seeks this Court's intervention. CLF's
primary contention is that the Agency ran aground when it
failed to sufficiently prioritize conservation measures over
economic considerations. The judicial role in evaluating such
agency action, however, is limited. While the Court carefully
reviews the record to ensure that the Service has
sufficiently articulated a rational line based on relevant
factors between its factual findings and final conclusions,
its function does not extend further. Policymaking is not in
the Court's wheelhouse. Finding that the Government
satisfied its obligations, the Court will deny
Plaintiff's Motion for Summary Judgment and grant
Defendants' Cross-Motion.
I.
Background
The
saga underlying this suit is decades in the making. At its
heart lies the Service's modification of management plans
that govern fisheries in waters seaward of New England.
Within one geographic area - the Gulf of Maine - this
amendment opened to fishing an ocean corridor that was
previously off limits. The series of steps that ultimately
spawned this decision is intertwined with one statute's
operation: the Magnuson-Stevens Fishery Conservation and
Management Act, commonly known as just the Magnuson-Stevens
Act or MSA. To provide the necessary context, the Court will
thus begin with a brief exposition of this legal scheme. With
the stage set, it will then provide an overview of the
history that led us here. (On a logistical note, the Court,
following the lead of the parties and the format of the
appendix, will introduce appendix cites with the acronym
“EFH, ” which stands for essential fish habitat.)
A.
Statutory Framework
Congress
passed the MSA to address the persistent problem of
overfishing in U.S. waters. See Conservation Law Found.
v. Pritzker, 37 F.Supp.3d 234, 239 (D.D.C. 2014). This
legislative elixir prescribes a balance between the
“twin goals of conserving our nation's aquatic
resources and allowing U.S. fisheries to survive.”
Oceana, Inc. v. Pritzker, 26 F.Supp.3d 33, 36
(D.D.C. 2014); see also NRDC v. Nat'l Marine
Fisheries Serv., 71 F.Supp.3d 35, 37-38 (D.D.C. 2014)
(stating similarly). The Act assigns the Secretary of
Commerce this responsibility, who has in turn delegated the
responsibility to the Service, a division of the National
Oceanic and Atmospheric Administration. Oceana, 26 F.Supp.3d
at 36; see also 16 U.S.C. § 1852(a), (h).
Fisheries
management is no simple task. To aid in this
“exceedingly complex” undertaking, see
Oceana, Inc. v. Evans, 384 F.Supp.2d 203, 241-42
(D.D.C. 2005), the Act establishes eight regional Fishery
Management Councils, each of which monitors and oversees
certain fisheries under its control. See 16 U.S.C.
§ 1852(a), (h). The makeup of each Council's voting
membership is designed to account for the views of a variety
of stakeholders with relevant expertise. On each board sits a
state official from the region with “marine fishery
management responsibility and expertise, ” the regional
director of the Service (or her designee), and individuals
appointed by the Secretary of Commerce who are knowledgeable
regarding either the “conservation and management . . .
of the fishery resources of the geographical area
concerned” or the “commercial or recreational
harvest” of those fisheries. Id §
1852(b)(1)-(2). For the purpose of this action, the New
England Fishery Management Council is the relevant body. This
Council oversees fisheries in the Atlantic Ocean seaward of
states from Maine to Connecticut. Id §
1852(a)(1)(A). To assist each Council in carrying out its
responsibilities, the MSA provides in turn for the creation
of standing committees of scientists and fishing-industry
experts that report periodically on the status and health of
fish stocks in each fishery, peer-review new scientific
methods for fishery conservation and management, and advise
the Council throughout its functions. Id
§§ 1852(g)(1); 1852(g)(3)(A); 1852(i)(5). The
Service and the Council, assisted by its standing committees,
together act to address imbalances in aquatic ecosystems.
Central
to this role - as well as to this case - is the creation of
Fishery Management Plans. Each Council must develop and
maintain such a plan for each fishery under its control.
Id § 1852(a). Fisheries, as defined by the Act,
are either “one or more stocks of fish which can be
treated as a unit for purposes of conservation and
management” or “any fishing for such
stocks.” Id. § 1802(13). Stocks, in turn,
can be a species or subspecies of fish. Id. §
1802(42). A single FMP thus often governs the management of
multiple species of fish. Once developed and implemented,
plans can be updated by amendments, which “alter Plans
in broad strokes.” Conservation Law Found., 37
F.Supp.3d at 239 (internal citation omitted).
The
Council's FMPs and amendments must follow multiple
prescriptions. First, they must be in compliance with ten
“national standards for fishery management”
established by the MSA, see 16 U.S.C. §
1851(a), which set forth a range of broad and
sometimes-competing objectives. See Oceana, Inc. v.
Pritzker, 24 F.Supp.3d 49, 68 (D.D.C. 2014). Second,
plans must contain certain “[r]equired
provisions.” 16 U.S.C. § 1853(a). Many of these
provisions ask for specific information - for example,
“the number of vessels involved” with the
relevant fishery, Id. § 1853(a)(2) - while
others set directives more akin to the national standards.
See, e.g., Id. § 1853(a)(1)(A) (requiring that
FMPs contain measures “necessary and appropriate for
the conservation and management of the fishery”).
Finally, the Act provides a suite of “[d]iscretionary
provisions” that the Council “may” include.
Id. § 1853(b).
Once
prepared, each Council submits proposed FMPs or subsequent
amendments to the Service. The Service's role at this
stage is confined largely to determining whether the proposed
plan or amendment complies with applicable law, rather than
developing its own preferred measures. It thus acts on behalf
of the Secretary of Commerce to “approve, disapprove,
or partially approve” the plan or amendment.
See 16 U.S.C. § 1854(a)(3). In determining
whether or not to approve an FMP, the Service must review it
for consistency with the requirements of the MSA, including
the national standards and content requirements found at
§§ 1851(a) and 1853(a), and, following a 60-day
public-notice-and-comment period, “take into account
the information, views, and comments received from interested
persons.” 16 U.S.C. § 1854(a)(1)-(2). If, upon
completing this review, the Agency determines that a plan
complies with applicable law and thus approves the FMP or
amendment, a final rule and one or more implementing
regulations are published in the Federal Register.
Id § 1854(b)(3). Approved FMPs and amendments
are subject to judicial review under the Administrative
Procedure Act if challenged within 30 days of the
regulation's promulgation. Id § 1855(f)(1).
If,
however, the Agency concludes that an FMP or amendment fails
to comply with applicable law, it does not simply revise the
management measures as it desires, but rather sends it back
to Council. In doing so, it must notify the Council of
“the applicable law with which the plan or amendment is
inconsistent” and the “nature of such
inconsistences, ” as well as any
“recommendations” on measures the Council could
take “to conform such plan or amendment to the
requirements of applicable law.” Id §
1854(a)(3). Only if the Council fails to return a revised
plan is the Service empowered to develop an FMP or amendment
itself. Id. § 1854(c)(1)(B); see also
Anglers Conservation Network v. Pritzker, 70
F.Supp.3d 427, 431 (D.D.C. 2014).
Finally,
in addition to these requirements of the MSA, any plan or
amendment must also conform to the procedural mandates of the
National Environmental Policy Act (NEPA). Because the
contours of that Act are not necessary to understand the
administrative process here, the Court saves a rehearsal of
its specifics for a later discussion.
B.
Factual Background
The
Court begins by casting its net back to 1996, when Congress
passed an amendment to the MSA that expanded the Act's
scope by emphasizing the creation of conservation measures
aimed at protecting fish habitat. See Sustainable
Fisheries Act, Pub. L. No. 104-297, § 108, 110 Stat.
3559. Preserving the health of habitats, the thinking goes,
is key to ensuring productive, and thus sustainable, fish
populations. See EFH 7863-64; see also 69 Fed. Reg. 8367
(Feb. 24, 2004) (summarizing amendment). To comply with this
directive, the New England Regional Council (the only council
at issue here, thus permitting the Court to refer to it
simply as “the Council”) initiated an omnibus
amendment that attempted to bring each FMP into compliance.
See 63 Fed. Reg. 9500 (Feb. 25, 1998). The original
amendment's tenure, however, was short lived. In 2000, a
court held that its development failed to abide by the
procedural requirements set forth in NEPA and enjoined its
operation. See Am. Oceans Campaign v. Daley, 183
F.Supp.2d 1, 19-21 (D.D.C. 2000). The Council went back to
the drawing board.
After
making changes responsive to that court's order, the
Council embarked on a second omnibus amendment in 2004 with
the purpose of developing a comprehensive approach to
essential-fish-habitat management. See 69 Fed. Reg. at 8368;
see also ECF No. 25, Attach. 1 (Def Opp. & Mot.) at 4-5.
More specifically, this process sought to update the
“EFH components” of each of the seven
fishery-management plans under the Council's purview.
See 69 Fed. Reg. at 8367. These plans account for
the management of 28 species of fish and their respective
habitats within the seven fisheries. See EFH
7795-7803. Generally speaking, the Service operationalizes
its habitat-protection aims by creating geographically
bounded “habitat management areas” (HMAs) or
“habitat closures, ” within which it places
restrictions on types of fishing. See, e.g., 50
C.F.R. § 648.370. This effort eventually yielded the
omnibus amendment challenged here, which the Court will refer
to as the Habitat Amendment. (Given that this is the second
such endeavor, this Amendment also appears in the record and
briefs as the Omnibus Habitat Amendment 2 and OHA2.)
The
scope of this project ebbed and flowed over its lengthy
course. Early in the Council's process, it opted to
expand the Amendment's purpose to include the
consideration of measures aimed at mitigating the impact of
fishing on deep-sea corals - a discretionary task under the
MSA, see 16 U.S.C. § 1853(b)(2) - but later
opted to relegate this task to a stand- alone amendment
process. See 83 Fed. Reg. 15240, 15245 (Apr. 9,
2018). The segregation of corals is one decision CLF
challenges here.
Then,
in 2012, the Council added to the Amendment's scope goals
specific to one of its managed fisheries. The Northeast
multispecies fishery, which is alternatively called the
groundfish fishery, consists of 13 species divided into 20
stocks and includes, for example, fish ranging from Atlantic
cod and halibut to windowpane flounder, ocean pout, and
Atlantic wolffish. See EFH 7849-50; Oceana, Inc. v.
Locke, 831 F.Supp.2d 95, 102 (D.D.C. 2011). As part of
this fishery's management plan, the Service closed
certain areas to fishing gear capable of catching groundfish.
See 76 Fed. Reg. 35408 (June 17, 2011). These
“groundfish closures” thus serve to protect a
segment of the fish stock by limiting its exposure to
fishers. See Conservation Law Found., 37 F.Supp.3d
at 240. Given the spatial overlap between existing groundfish
closures and proposed new or modified habitat closures, the
Council decided to consider revisions to both categories in
conjunction. See 76 Fed. Reg. at 35408. Unlike its
deep-sea-corals addition, this one stuck.
To
implement its habitat- and groundfish-protection goals, the
Council employed a complex and multi-step process, which
relied on multiple expert committees. The Court presents a
somewhat simplified version of events here. In its initial
phase, the Council first identified or updated the ocean
habitat essential to the species of fish within its purview.
See 76 Fed. Reg. at 35408. Next, it worked to
ascertain the areas within that habitat most vulnerable to
harm from fishing gear. Id. To aid in this endeavor,
it used a new model, dubbed the Swept Area Seabed Impact or
SASI. See EFH 7524. This model churned out data that
permitted the Council to understand which areas would benefit
most from certain restrictions on fishing gear. Id.;
see also EFH 6332. Relying on the groundfish objectives, the
Council also turned to survey data to identify areas most
important to those fish stocks, which it deemed
“groundfish hotspots.” EFH 6332; see
also EFH 8096-98. Using input from both sources, the
Council developed new and modified closure areas.
See EFH 6332; EFH 41204; 83 Fed. Reg. at 15250. It
then crafted various alternative fishing-management measures,
consisting of combinations of different areas subject to
protection and various levels of fishing restrictions within
those areas. See EFH 6201- 07. After taking into
consideration the conservation value and economic impact of
these restrictions in both the short and long term, the
Council announced its recommendations.
The
results in the Gulf of Maine are a mixed catch from the
pure-conservation standpoint adopted by CLF. The Gulf is
broken down into three sub-regions. In the Eastern Gulf of
Maine, the proposed Amendment closed grounds that were
previously open to all mobile bottom-tending gear.
See EFH 6207, 6218. The region ultimately closed,
however, is smaller than other alternatives considered by the
Council. Id. In the Central Gulf of Maine, the
Council largely left intact the existing boundaries of
regulated waters, making minor modifications. See
EFH 6222. It is in the Western Gulf of Maine that CLF directs
most of its fire. There, the Council opted to redraw the
eastern boundary of the largest closure so that a few hundred
square nautical miles previously closed to fishing became
accessible, which amounts to about a 25% reduction in
protected area in that sub-region. See EFH 6241; 83
Fed. Reg. at 15246. On net, after accounting for both the
closures and opening of grounds to fishing, the Amendment
decreased the size of geographic fishing closures relative to
the status quo. See ECF No. 25, Attach. 1 (Pl. Mot.)
at 3.
With
the Council's task complete, and following the
statutorily prescribed route to approval, the Habitat
Amendment moved upstream to the Service. As required by law,
the Agency immediately put out the proposed Amendment in the
Federal Register for comment. See 82 Fed. Reg. at
46750. After reviewing the comments and analyzing the
Amendment for its consistency with applicable statutes, the
Service approved the portions of the Amendment that managed
fisheries in the Gulf of Maine. See ECF No. 1
(Compl.), Attach. 1 (Record of Decision) at 2. Unrelated to
this action, it disapproved two portions of the Amendment in
the other areas within the Council's jurisdiction.
Id It then promulgated a final rule putting the
approved portions of the Amendment into effect. See
83 Fed. Reg. at 15240.
CLF
takes issue with this final approval. It believes that the
Service's endorsement of the measures in the Gulf of
Maine amounts to a dereliction of its conservation duties.
Specifically, Plaintiff thinks that the Agency was wrong to
conclude that the measures adopted comply with the MSA's
directive to protect essential fish habitat. It also believes
that the range of alternatives analyzed by the Council falls
short of NEPA's procedural demands. Both parties have now
filed Motions for Summary Judgment and presented the Court
with a voluminous administrative record. Having reviewed this
record, the Court is primed to make its decision.
II.
Legal Standard
Challenges
under both the MSA and NEPA proceed under the Administrative
Procedure Act's familiar “arbitrary and
capricious” standard of review. See 16 U.S.C.
§ 1855(f)(1); 5 U.S.C. § 706(2)(A). Because of the
limited role federal courts play in reviewing such
administrative decisions, the typical Federal Rule 56
summary-judgment standard does not apply to the parties'
dueling Motions. See Sierra Club v. Mainella, 459
F.Supp.2d 76, 89-90 (D.D.C. 2006). Instead, in APA and MSA
cases, “the function of the district court is to
determine whether or not . . . the evidence in the
administrative record permitted the agency to make the
decision it did.” Id (internal citations
omitted). Summary judgment thus serves as the mechanism for
deciding, as a matter of law, whether an agency action is
supported by the administrative record and is otherwise
consistent with the APA standard of review. See Bloch v.
Powell 227 F.Supp.2d 25, 31 (D.D.C. 2002) (citing
Richards v. INS, 554 F.2d 1173, 1177 (D.C. Cir.
1977)).
The APA
requires courts to “hold unlawful and set aside agency
action, findings, and conclusions” that are
“arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A). Under this “narrow” standard of review
- which appropriately encourages courts to defer to the
agency's expertise, see Motor Vehicle Mfrs. Ass'n
of United States, Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983) - an agency is required to
“examine the relevant data and articulate a
satisfactory explanation for its action including a rational
connection between the facts found and the choice
made.” Id. (internal quotation marks omitted).
In other words, courts “have held it an abuse of
discretion for [an agency] to act if there is no evidence to
support the decision or if the decision was based on an
improper understanding of the law.” Kazarian v.
U.S. Citizenship and Immigration Services, 596 F.3d
1115, 1118 (9th Cir. 2010). Put another way, the Court's
role is only to “consider whether the decision was
based on a consideration of the relevant factors and whether
there has been a clear error of judgment.” Am.
Oceans Campaign, 183 F.Supp.2d at 4 (quoting
Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 416 (1971)).
It is
not enough, then, that the court would have come to a
different conclusion from the agency. See Oceana, 24
F.Supp.3d at 58 (citing Steel Mfrs. Ass'n v.
EPA, 27 F.3d 642, 646 (D.C. Cir. 1994). The reviewing
court “does not substitute its own judgment for that of
the agency, ” id, nor does it “disturb
the decision of an agency that has examine[d] the relevant
data and articulate[d] . . . a rational connection between
the facts found and the choice made.” Ams. for Safe
Access v. DEA, 706 F.3d 438, 449 (D.C. Cir. 2013)
(internal quotation marks and citation omitted). A decision
that is not fully explained, moreover, may be upheld
“if the agency's path may reasonably be
discerned.” Bowman Transp., Inc. v. Arkansas-Best
Freight Sys., Inc., 419 U.S. 281, 286 (1974). It is only
these “certain minimal standards of rationality”
to which a reviewing court holds an agency. See Nat'l
Envtl. Dev. Ass'n's Clean Air Project v. EPA,
686 F.3d 803, 810 (D.C. Cir. 2012) (citing Ethyl Corp. v.
EPA, 541 F.2d 1, 36-37 (D.C. Cir. 1976) (en banc)).
In
cases involving expert scientific judgment, courts employ a
particularly high level of deference. When examining an
agency's “predictions, within its area of special
expertise, at the frontiers of science, ” the
“reviewing court must generally be at its most
deferential.” Balt. Gas & Elec. Co. v. NRDC,
Inc, 462 U.S. 87, 103 (1983). In addition, courts pay
agencies “an extreme degree of deference” when
decisions “involve complex judgments about sampling
methodology and data analysis that are within the
agency's technical expertise.” Kennecott Greens
Creek Mining Co. v. Mine Safety & Health Admin., 476
F.3d 946, 956 (D.C. Cir. 2007) (internal quotation marks and
alterations omitted); see also Int'l Bhd. of
Teamsters v. U.S. Dept. of Transp., 724 F.3d 206, 216
(D.C. Cir. 2013) (“[I]n light of the degree of
deference we give to the agency's statistical
methodology, we cannot conclude that the program will yield
invalid findings.”). In other words, when an agency
talks scientific data, courts listen. As long as the ultimate
decision is reasonable and reasonably explained, that
decision will stand.
III.
Analysis
At
bottom, this case is about whether the Council went overboard
in weighing economic objectives against conservation goals.
Two federal statutes - the MSA and NEPA - serve as the
bedrock of Plaintiff s challenge, although the APA provides
the avenue for judicial review. See ECF No. 17 (Am.
Compl.), ¶¶ 69-129; 16 U.S.C. § 1855(f)(1).
The Court starts with the MSA issues and ends with a shorter
analysis of those under NEPA.
A.
MSA Claim
As
noted, the Court embarks on its journey with Plaintiffs MSA
claim. Getting a handle on this Act, however, is no mere day
sail. A fair amount of rigging therefore precedes the full
airing of CLF's challenge.
1.
Threshold Issues
In
order to set up the analytical framework that guides its
inquiry, the Court first wades into the parties'
disagreement about what restrictions the statute - or, more
precisely, one provision of the statute - places on the
Agency's actions in developing conservation measures. It
next offers a few words about the nature of judicial review
of an agency decision rendered subject to this standard.
a.
Meaning of MSA's EFH Provision
As
explained earlier, amendments to FMPs must comply with a
plethora of statutory requirements. One such provision plays
a starring role here. Unlike other requirements, which target
the commercial and recreational catching of fish directly,
this one aims at protecting the critical habitat of each
managed species of fish. Id. § 1853(a)(7). The
Council must first identify these “essential fish
habitats” (EFH), which the MSA defines as the
“waters and substrate necessary to fish for spawning,
breeding, feeding or growth to maturity.” Id
§ 1802(10). Crucially for this case, once these habitats
are identified, FMPs must “minimize to the extent
practicable adverse effects on such habitat caused by
fishing.” Id § 1853(a)(7). (For ease of
reference, the Court will refer to this statutory language as
the “EFH provision.”) Complying with this latter
mandate was the Council's core objective in initiating
the Habitat Amendment. See 76 Fed. Reg. at 35408-09.
CLF's contention is that it fell short. Much turns,
therefore, on the precise meaning of this command. It is with
this issue of statutory interpretation that the Court thus
starts.
Agreement
evident in the parties' briefs sets the bounds of this
dispute. They are notably on the same page that the
“practicable” language permits, or perhaps even
requires, the Council to weigh social and economic harms to
fishers against any conservation value. See Pl. Mot.
at 27; Def. Opp. & Mot. at 16; see also Pl. Opp.
& Reply at 3 (“‘Practicable' implicitly
requires that NMFS not focus on the EFH ecological benefits
exclusively but must also weigh them against socio-economic
factors.”). The parties also agree that the Council
must harmonize the ten national standards in any action,
which requires it to balance multiple objectives.
See Pl. Mot. at 27; Pl. Opp. & Reply at 3; Def.
Opp. & Mot. at 17. Where they disagree, however, is in
the relative priority assigned to these goals.
CLF
contends that, as a categorical matter, conservation
objectives take priority over economic considerations.
See Pl. Mot. at 28, 30. This interpretation, it
says, follows from the “plain meaning” of the
statute. Id. at 27. Only when two proposed actions
have similar conservation goals can the Council turn to
economic considerations. Id. at 28, 30. And even
then, only an “extreme economic hardship”
justifies diverging from a more conservation-friendly
alternative. See Pl. Opp. & Reply at 6, 8.
Not
quite, retorts the Service. It sees the balancing as more
flexible. Under its approach, the Council is entrusted with
“conduct[ing] a thorough consideration of complex
factors representing a broad array of interests with the goal
of achieving the greatest benefit to the nation from each
managed fishery.” Def. Opp. & Mot. at 21. Unlike
CLF, the Service does not think that the Council is required
to “prioritize alternatives based solely on
conservation value.” Id. at 22. It goes so far
as to say that “[n]othing . . . require[s] the Council,
where there were multiple alternatives for each sub-region
that were potentially practicable, to choose the one with the
highest conservation value.” ECF No. 32 (Def Reply) at
8. Herein lies the rub.
The
Government's view advanced in its brief, however, is only
a litigation position. Although the Service has promulgated a
regulation that expands on the meaning of the statutory
provision at issue, see 50 C.F.R. §
600.815(a)(2)(ii)-(iii), that regulation does not answer
directly the operative issue here: the statute's relative
weighing of conservation and economic considerations. Lacking
any on-point agency interpretation capable of warranting
Chevron deference, the Court's statutory
interpretation here proceeds de novo. See Menkes v. U.S.
Dep't of Homeland Sec, 637 F.3d 319, 345 (D.C. Cir.
2011) (noting that “Chevron deference . . . does not
apply to an agency's litigation position”).
The
Court nonetheless largely agrees with the Government that the
statutory scheme does not impose the rigid prioritization
urged by Plaintiff. Although it understands why reading the
requirement to “minimize . . . the adverse effects of
fishing” in a vacuum would yield CLF's
interpretation, resort to the full statute dispels this
hierarchy. That is because, as the parties acknowledge, in
any FMP or amendment to an FMP, this is not the only
requirement with which a Council must comply. The ten
national standards also compete for attention, many of which
are similar in structure to the provision at issue here.
Three, for instance, command the Council to
“minimize” something. See 16 U.S.C.
§ 1851(a)(7)-(9). Six of the ten impose some sort of
requirement “to the degree practicable” or
“where practicable.” Id. §
1851(a)(3), (5), (7)-(10). To comply with the national
standards and the requirement here, therefore, an FMP - to
the degree or where “practicable” - must
“minimize” all of the following: the adverse
effects of fishing on habitat, the economic impacts on
fishing communities, costs and duplication, and bycatch and
the mortality of bycatch. It must also, “where
practicable, consider efficiency in the utilization of
fishery resources, ” although the MSA cautions that
“no such measure shall have economic allocation as its
sole purpose.” Id § 1851(a)(5). This is
not the first court in this district to recognize that
several of these statutory goals stand in some tension. See
Oceana, 24 F.Supp.3d at 68 (noting “somewhat
conflicting nature” of national standards and stating
that they “require the agency to balance several
competing considerations in developing FMPs”).
The
upshot of this statutory structure is that Congress did not
intend any of these specified goals - i.e., the ones
limited to actions that are “practicable” - to
take priority over the others. That includes CLF's focus
on the habitat-conservation goal. Rather, the legislature
wrote the essential-fish-habitat provision “to allow
for the application of agency expertise and discretion in
determining how best to manage fishery resources.”
Conservation Law Found., 37 F.Supp.3d at 251 (citing
Conservation Law Found. v. Evans, 360 F.3d 21, 28
(1st Cir. 2004)); see also Oceana, Inc. v. Evans,
2005 WL 555416, at *35 (D.D.C. Mar. 9 2005) (same); Oceana,
384 F.Supp.2d at 242 (same). The provision does not
“require Councils to do everything they can to protect
essential fish habitat.” Conservation Law
Found., 37 F.Supp.3d at 251. To borrow an apt
description from another court, a “singular focus on
alternatives that close fishing grounds in order to protect
EFH ignores [the MSA's] statutory mandates and
effectively reads ‘practicable' out of the
MSA.” Oceana, 2005 WL 555416, at *35.
Congress's inclusion of the term
“practicable” is thus critical; it is the means
by which it “delegated to the agency the discretion to
weigh the relevant factors” embodied in the MSA's
competing objectives. Oceana, 24 F.Supp.3d at 67.
The Council is no doubt required to consider the impact of
fishing on essential habitat. It need not, however, exalt
this objective over all others.
As CLF
points out, there is language in one D.C. Circuit opinion
that appears to suggest otherwise. In NRDC, the
circuit stated that “the Service must give priority to
conservation measures” and that “[i]t is only
when two different plans achieve similar conservation
measures that the Service takes into consideration adverse
economic impacts.” NRDC, Inc. v. Daley, 209
F.3d 747, 753 (D.C. Cir. 2000). Those statements, however,
must be understood in context. In NRDC, the court
considered the interplay of two national standards regarding
a plan's proposed imposition of a catch limit on certain
species of fish. National standard one provides that the
Agency “shall prevent overfishing while achieving, on a
continuing basis, the optimum yield from each fishery.”
16 U.S.C. § 1851(a)(1). In setting catch limits to
implement this conservation goal, the Service - consistent
with national standard eight - must also, “to the
extent practicable, minimize adverse economic impacts on
[fishing] communities.” Id. § 1851
(a)(8). At issue in NRDC was whether there was a
conflict between these two directives. See 209 F.3d at 753;
see also 16 U.S.C. § 1851(a)(1), (8). The language in
the circuit's holding quoted above was its answer to this
question - i.e., because conservation measures take
priority, there is no tension.
A
glance at the statute's language confirms the logic of
that court's view in this context. National standard one
is an unqualified directive: the Service “shall
prevent overfishing while achieving . . . optimum
yield.” 16 U.S.C. § 1851(a)(1). National standard
eight, conversely, is qualified both by its introductory verb
- “minimize, ” instead of “prevent” -
and the limitation to only further this goal “to the
extent practicable.” Id § 1851(a)(8).
Given this language, it makes perfect sense that the
conservation goal embodied by the directive to prevent
overfishing be given priority over the goal of minimizing
adverse impacts.
Unlike
NRDC, the challenge in this case is not to the
Service's prescribed catch limits that attempt to
“maximize the harvest of a single class of fish over
its entire life span” - i.e., achieve optimum
yield. See NRDC, 209 F.3d at 749. At issue here, rather, is
another type of conservation measure: habitat protection. CLF
invites this Court to extend the circuit's holding in
NRDC from the overfishing context to habitat-protection
measures. See Pl. Mot. at 28.
The
Court declines the invitation to read such a hierarchy into
the Act's essential-fish-habitat provision. Applying the
logic underlying NRDC to statutory text here proves
central to this conclusion. Unlike the directive to
“prevent overfishing, ” the EFH provision is
qualified by both its verb (“minimize”) and the
limitation to actions that are “practicable.” The
structure of this mandate is thus functionally identical to
much of national standard eight, which is the precise
provision that the court in NRDC held was
subordinate to a more explicit directive. For many of the
reasons already explained, the inclusion of the word
“practicable” is “crucial.”
Conservation Law Found., 37 F.Supp.3d at 251. So while the
potential tension in NRDC lay between an explicit directive
and an effort to “minimize” something to the
extent “practicable, ” that is not the case here.
Rather, the weighing of competing objectives lies
within an objective to “minimize to the extent
practicable.” This language grants the Service broad
discretion to weigh relevant factors, rather than imposing
any rigid hierarchy among them. NRDC s statement
limiting any consideration of economic impacts to situations
in which “two different plans achieve similar
conservation measures, ” 209 F.3d at 753, simply does
not make sense in the context of the EFH provision.
To be
sure, CLF appears to retreat from this position in its Reply
brief. It contends that the Council need not adopt any
restriction that imposes an “extreme economic
hardship.” Pl. Opp. & Reply at 6, 8, 14. But whence
CLF finds this limit is unclear. The language does not exist
in the statute or in any of the regulations governing EFH.
And, absent a hook in the law, this Court sees no reason to
adopt it in place of the more flexible balancing that flows
from the statutory structure.
Finally,
before moving on, the Court notes that its conclusion here
also does away with another variant of CLF's challenge.
Plaintiff asserts throughout its briefs that the Council and
the Service both misunderstood the MSA's requirements. It
contends that both the formal goals and objectives created by
the Council to guide its action, as well as several
statements sprinkled throughout the record, demonstrate this
misunderstanding. See, e.g., Pl. Mot. at 30-32; Pl.
Opp. & Reply at 5. Certainly, if that were true, it could
be grounds to condemn the Service's Amendment: an
agency's decision “based on an improper
understanding of the law” can render it arbitrary or
capricious. See Kazarian, 596 F.3d at 1118. But that is not
what happened here. Rather, as the prior discussion shows, it
appears that CLF is the party unclear on the MSA's
directive. Because Plaintiffs contention here rests primarily
on a view of the law with which the Court disagrees, its
conclusion falls too. The Court has analyzed the
Council's goals and objectives - some of which explicitly
relate to the Amendment's groundfish, rather than
habitat-protection purposes, see 82 Fed. Reg. at
46750 - as well as the other record statements to which
Plaintiff points. It has little trouble concluding that these
statements are consistent with the MSA, as interpreted above.
b.
Nature of Judicial Review
The
preceding section mapped the contours of the MSA's
directive to protect essential habitat. With that task
complete, the Court's exercise in statutory
interpretation also concludes; what remains is governed by
arbitrary-or-capricious review. See Judulang v.
Holder,565 U.S. 42, 53 n.7 (2011) (noting that
“arbitrary or capricious review under the APA, ”
rather that Chevron, is “the more apt
analytical framework” when agency's decision
“is not an interpretation of any statutory
language”). That is because CLF's extant challenges
to the Amendment concern the manner in which the Service
implemented an established, but inherently discretionary,
directive. This sort of dispute is “a garden variety
APA arbitrary and capricious claim, and [the Court] should
treat it as such.” Chamber of Commerce of U.S. v.
FEC, 76 F.3d 1234, 1235-36 (D.C. Cir. 1996). For this
reason, the “vast majority” of courts in this
district have analyzed these kinds of ...