Conservation Council for Haw. v. Nat'l Marine Fisheries Serv.

• Decision Date: 23 December 2015
• Docket Number: CIVIL NO. 14-00528 LEK-RLP
• Citation: 154 F.Supp.3d 1006
• Parties: Conservation Council for Hawaii, Center for Biological Diversity, and Turtle Island Restoration Network, Plaintiffs, v. National Marine Fisheries Service, United States Department of Commerce, and Penny Pritzker, Secretary of Commerce, Defendants.
• Court: U.S. District Court — District of Hawaii

154 F.Supp.3d 1006

Conservation Council for Hawaii, Center for Biological Diversity, and Turtle Island Restoration Network, Plaintiffs,
v.
National Marine Fisheries Service, United States Department of Commerce, and Penny Pritzker, Secretary of Commerce, Defendants.

CIVIL NO. 14-00528 LEK-RLP

United States District Court, D. Hawai'i.

Signed December 23, 2015

154 F.Supp.3d 1008

David L. Henkin, Kylie W. K. Wager, Earthjustice Legal Defense Fund, Honolulu, HI, for Plaintiffs.

Bradley H. Oliphant, United States Dept. of Justice, Denver, CO, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND FOR VACATUR

Leslie E. Kobayashi, United States District Judge

Before the Court is Plaintiffs Conservation Council for Hawaii, Center for Biological Diversity, and Turtle Island Restoration Network's (collectively “Plaintiffs”) Motion for Summary Judgment and for Vacatur (“Motion”), filed on July 20, 2015. [Dkt. no. 47.] On August 20, 2015, Intervenor-Defendant Hawaii Longline Association (“HLA”) filed its memorandum in opposition (“HLA Opposition”), and Defendants National Marine Fisheries Service (“NMFS”), United States Department of Commerce, and Penny Pritzker, Secretary of Commerce (collectively “Federal Defendants”) filed their memorandum in opposition (“Federal Defendants Opposition”).¹ [Dkt. nos. 50, 52.] Plaintiffs filed their reply on September 3, 2015. [Dkt. no. 57.]

This matter came on for hearing on September 25, 2015, and, later that day, this Court issued an entering order directing the parties to file additional memoranda. [Dkt. no. 64.] HLA and the Federal Defendants filed their respective memoranda on October 9, 2015. [Dkt. nos. 66, 68.] Plaintiffs also filed their memorandum on October 9, 2015. [Dkt. no. 69.] After careful consideration of the Motion, supporting and opposing memoranda, the arguments of counsel, and the relevant legal authority, Plaintiffs' Motion is HEREBY GRANTED IN PART AND DENIED IN PART. For the reasons set forth below, this Court GRANTS Plaintiffs' Motion insofar as this Court FINDS that Plaintiffs have standing to pursue this action and

154 F.Supp.3d 1009

CONCLUDES that their claims are justiciable, but this Court DENIES Plaintiffs' Motion in all other respects.

BACKGROUND

Plaintiffs filed this action on November 20, 2014. Plaintiffs filed their First Amended Complaint for Declaratory and Injunctive Relief (“Amended Complaint”) on January 15, 2015. [Dkt. no. 18.] They bring this case pursuant to, inter alia , the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701 -06, and the Magnuson-Stevens Fishery Conservation and Management Act (“Magnuson-Stevens Act”), 16 U.S.C. § 1855(f). [Id. at ¶ 6.] This case concerns the limits on fishing and catching of bigeye tuna in the Western and Central Pacific Ocean (“WCPO”). The parties agree that it “is an important food fish and is particularly prized for sushi. In Hawai'i, it is one of two species known as ‘ahi ; the other is yellowfin tuna.” [Id. at ¶ 39; Federal Defs.’ Answer to Amended Complaint (“Federal Defs.' Answer”), filed 2/2/15 (dkt. no. 21), at ¶ 39.] The Federal Defendants acknowledge that, “in 2004, NMFS determined that overfishing is occurring Pacific-Wide on bigeye tuna, but that the stock is not overfished.” [Federal Defs.' Answer at ¶ 40.]

In the instant case,

Plaintiffs seek to set aside (1) NMFS's final rule implementing a management framework for specifying catch and effort limits and accountability measures for pelagic fisheries in the U.S. Pacific territories of American Samoa, Guam, and the Commonwealth of the Northern Marina Islands; (2) NMFS's associated final specifications purporting to establish a separate catch limit of 2,000 metric tons of long-line caught bigeye tuna for each of the three territories; and (3) NMFS's authorization for each territory to allocate up to 1,000 metric tons of that limit to eligible U.S. longline fishing vessels. See 79 Fed. Reg. 64,097 (Oct. 28, 2014) ....

Amended Complaint at ¶ 1.] The contested rule is NMFS, National Oceanic and Atmospheric Administration (“NOAA”), and Department of Commerce's Final rule and final specifications regarding Western Pacific Pelagic Fisheries; U.S. Territorial Catch and Fishing Efforts Limits. This Court will refer to it as the “Quota Shifting Rule.”²

The legal landscape of the instant dispute begins with the international Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (“Convention”).

I. The Convention

The United States Senate consented to the ratification of the Convention in 2004.³ S. Exec. Rep. No. 109-08, at 2, 6. The Senate's report acknowledged that legislation was necessary to implement the Convention.

[154 F.Supp.3d 1010

Id. at 5. The ratification occurred in 2007, [Amended Complaint at ¶ 29; Federal Defs.' Answer at ¶ 29,] when the United States deposited the instrument of ratification and became a party to the Convention thirty days later. Pub. L. No. 109-479, 120 Stat. 3575 (Jan. 12, 2007).

The objective of the Convention is “to ensure, through effective management, the long-term conservation and sustainable use of highly migratory fish stocks in the western and central Pacific Ocean in accordance with” the “United Nations Convention on the Law of the Sea of 10 December 1982” (“1982 Convention”) and the “Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks” (“Agreement”). [Henkin Decl., Exh. 4 (Convention) at art. 2 & art. 1, §§ a-b.]

The Convention established the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (“Commission” or “WCPFC”). [Id. at art. 1, § c & art. 9 (Establishment of the Commission).] As a “Contracting Party” to the Convention, the United States is a member of the Commission. [Id. at art. 34, §§ 1, 4.] American Samoa, Guam, and the Northern Mariana Island (“CNMI”) are among the territories that are allowed to participate in the Commission (“Participating Territories” or “PTs”). [Id. at art. 43.] The Convention's area of application, i.e. “the area of competence of the Commission” (“Convention Area”), is defined in Article 3, section 1.

The Convention requires members of the Commission to, inter alia : “adopt measures to ensure long-term sustainability of highly migratory fish stocks in the Convention Area and promote the objective of their optimum utilization”; [id. at art. 5, § a;] and “promptly implement the provisions of this Convention and any conservation, management and other measures or matters which my be agreed pursuant to this Convention from time to time and shall operate in furthering the objective of this Convention” [id. at art. 23, § 1].

The Commission's functions include, inter alia :

(a) determine the total allowable catch or total level of fishing effort within the Convention Area for such highly migratory fish stocks as the Commission may decide and adopt such other conservation and management measures [ (“CMMs”) ] and recommendations as may be necessary to ensure the long-term sustainability of such stocks; [and]

....

(c) adopt, where necessary, conservation and management measures and recommendations for non-target species and species dependent on or associated with the target stocks, with a view to maintaining or restoring populations of such species above levels at which their reproduction may become seriously threatened[.]

Id. at art. 10, § 1.] The Department of Commerce has stated that, “[a]s a Contracting Party to the Convention and a Member of the [Commission], the United States is obligated to implement the decisions of the [Commission].” 77 Fed. Reg. 51709, 51710 (Aug. 27, 2012).

II. Relevant CMMs

A. CMM 2005-01

The Commission's CMM 2005-01 addressed bigeye and yellowfin tuna. [Pltfs.' Concise Statement of Undisputed Material Facts (“Pltfs.' CSOF”), filed 7/20/15 (dkt. no. 48), Declaration of David L. Henkin (“Henkin Declaration”), Exh. 8 (CMM

[154 F.Supp.3d 1011

2005-01).] It provides that: “Through the adoption of necessary measures, the total level of fishing effort for bigeye and yellowfin tuna in the Convention Area shall not be increased beyond current levels.” [Id. at ¶ 1 (footnote omitted).] The United States's bigeye tuna catch limit for the three years after the adoption of CMM 2005-01 was set at its 2004 catch level, [id. at ¶ 17 & n.2,] which was 4,181 metric tons (“mt”). [HLA's Concise Statement in Opposition to Pltfs.' Concise Statement of Material Facts (“HLA CSOF”), filed 8/20/15 (dkt. no. 51), Decl. of Ryan P. Steen (“Steen Decl.”), Exh. 3 (CMM 2008-01) at 41 (Attachment F (table of “Baseline Longline Bigeye Tuna Catches, by Flag”)).]

2. CMM 2008-01

The Commission's CMM 2008-01 recognized that prior CMMs that “were developed to mitigate the overfishing of bigeye and yellowfin tuna and to limit the growth of fishing capacity in the” WCPO “have been unsuccessful in either restricting the apparent growth of fishing...