MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE
Several
organizations and individuals brought this action challenging
an amendment adopted by the National Marine Fisheries Service
to a fishery management plan that regulates several species
of fish in the mid-Atlantic region. The gravamen of their
complaint was that the amendment should have added certain
species-species that they assert require federal management
under the applicable laws-to the plan, and that the decision
to nevertheless adopt the amendment without those species was
unlawful. The Court granted summary judgment for Plaintiffs
on one of their claims and for Defendants as to the other
two, and it then entered a remedial order requiring
Defendants to undertake specific actions. Defendants
represent that they have now complied with the directives in
that remedial order. Plaintiffs disagree. They moved to
enforce the order, and afterward the case was reassigned to
the undersigned. For the reasons explained below,
Plaintiffs' motion is DENIED.
I.
Background
A.
Summary Judgment Proceedings
Plaintiffs
Anglers Conservation Network, Captain Paul Eidman, Gateway
Striper Club, Inc., and Philip Lofgren sued Wilbur L. Ross,
Jr., [1] in his official capacity as Secretary of
Commerce, the National Oceanic and Atmospheric
Administration, and the National Marine Fisheries Service
(“Service”), challenging a final rule promulgated
by Defendants-“ Amendment 14”-that amends the
fishery management plan for the mackerel, squid, and
butterfish (“MSB”) fishery off the eastern coast
of the United States. They brought claims under the
Magnuson-Stevens Fishery Conservation and Management Act
(“MSA”), 16 U.S.C. § 1801 et seq.,
the National Environmental Policy Act (NEPA), 42 U.S.C.
§ 4321 et seq., and the Administrative
Procedure Act (APA), 5 U.S.C. § 701 et seq.
A
thorough factual background of the case is set forth in the
Court's Memorandum Opinion granting in part and denying
in part the parties' cross-motions for summary judgment,
and thus the Court only briefly recounts that background
here. See Anglers Conservation Network v. Pritzker,
139 F.Supp.3d 102 (D.D.C. 2015). The parties' central
dispute concerns Defendants' regulatory decisions about
four species of river herring and shad. Plaintiffs insist
that the species require “conservation and
management” as that term is defined in the MSA. Despite
consideration of the issue during the development process,
however, Amendment 14 did not include those species as
regulated “stocks”[2] under the MSB fishery management
plan.
Plaintiffs
brought three separate claims in their complaint, each
alleging that promulgation of Amendment 14 violated
applicable law. Count I alleged that Defendants were required
under the MSA to include the four species of river herring
and shad as regulated stocks in the MSB fishery management
plan. See Compl. ¶¶ 113-29. Count II alleged that
Amendment 14 lacked sufficient accountability measures to
ensure that annual catch limits for the fishery are not
exceeded, as required by the MSA. Id. ¶¶
130-45. And Count III alleged that Defendants failed to take
a “hard look” at Amendment 14's definition of
the MSB fishery in violation of NEPA. Id.
¶¶ 146-54. The parties cross-moved for summary
judgment on all three claims.
The
Court granted in part and denied in part the parties'
cross-motions. See ECF No. 46. On Plaintiffs' first
count, the Court held that, in light of the administrative
record, Defendants' determination that the four species
of river herring and shad did not require “conservation
and management”-and therefore that they did not need to
include those species as stocks in the MSB fishery-was not
arbitrary and capricious under the MSA or the APA. Anglers,
139 F.Supp.3d at 115. As for Plaintiffs' second count,
the Court likewise concluded that Defendants' decision
not to include certain accountability measures in Amendment
14 did not violate the MSA or the APA. Id. at 118.
Accordingly, the Court “dismissed” both those
claims. See ECF No. 46 at 2.
On
Count III, however, the Court found that Defendants had
violated NEPA's procedural requirements. Specifically,
the Court explained that the environmental impact statement
(EIS) prepared as part of Amendment 14 did not consider, as
one of the alternatives examined, a proposed action that
would immediately add river herring and shad as stocks
“with temporary conservation and management
measures.” Anglers, 139 F.Supp.3d at 119. In neglecting
to do so, the Court concluded, Defendants failed to
“explore and objectively evaluate a reasonable range of
alternatives and the associated impacts on the environment,
” as required by NEPA when an agency undertakes a major
policy proposal such as an amendment to a fishery management
plan. Id. (citing 42 U.S.C. § 4332(C)).
B.
Remedial Proceedings
Recognizing
the complexity of the case and the underlying regulatory
scheme, the Court instructed the parties to file briefs
laying out their proposals for an appropriate remedy. See ECF
No. 46 at 3. On January 19, 2016, upon consideration of the
parties' submissions, the Court entered a remedial order
in which it denied Plaintiffs' request to vacate
Amendment 14 in favor of ordering Defendants to
“ensure” that the Mid-Atlantic Fishery Management
Council (the “Council”), which develops
amendments to the MSB fishery management plan, take a series
of specific actions. See ECF No. 53 (“Rem.
Order”). And it instructed Defendants to file status
reports every 45 days apprising the Court of their progress
in complying with those directives. Id. at 4.
Because the parties' central dispute concerns the meaning
of those directives, the Court will recount them fully
here.[3]
Directive
One and Directive Two simply remand the case to the Service
and deny Plaintiffs' request to vacate Amendment 14. See
Id. at 2. And the penultimate directive, Directive
10, instructs Defendants to file status reports every 45
days, with which Defendants' compliance is not in
dispute. Id. at 4. Those directives are thus not at
issue here.
Directive
3 orders that Defendants “shall ensure that the
Council addresses the issue of adding River Herring and Shad
as stocks in the fishery and makes a final decision on that
issue no later than December 31, 2016.” Id. at
2 (emphasis removed).
Directive
4 orders that Defendants “shall ensure that the
Council reexamines a 2013 ‘White Paper' prepared by
the Council's River Herring and Shad Committee,
addressing conservation of River Herring and Shad before
April 21, 2016.” Id. at 3 (emphasis removed).
Directive
5 orders that Defendants “shall ensure that the
Council prepares and updates the White Paper cited above[] to
include an environmental analysis of the action that
Plaintiffs prefer, namely, immediately adding River Herring
and Shad to the fishery and managing it by use of proxies
before April 30, 2016.” Id. (emphasis
removed).
Directive
6 orders that Defendants “shall ensure that the
Council prepares a draft decision document on the issue of
stocks in the fishery, including an analysis of the
regulatory course Plaintiffs advocate, and that draft
decision document shall be completed and presented to the
Council's River Herring and Shad Committee for
discussion[] and suggested changes no later than August 1,
2016.” Id. (emphasis removed).
Directive
7 orders that Defendants “shall ensure that the
Council, at its October 2016 meeting of the full Council,
reviews the revised draft of the previously mentioned draft
decision document, and at that meeting takes a final vote on
whether to undertake preparation of a proposed Amendment and
EIS to consider adding River Herring and Shad as stocks in
the fishery, ” and further that ...