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Anglers Conservation Network v. Ross

United States District Court, District of Columbia

May 28, 2019

ANGLERS CONSERVATION NETWORK et al., Plaintiffs,
v.
WILBUR L. ROSS, JR., et al., Defendants.

          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 ...


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