Natural Resources Defense Council v. Evans

• Decision Date: 27 October 2003
• Docket Number: No. C 01-0421 JL.,C 01-0421 JL.
• Citation: 290 F.Supp.2d 1051
• Court: U.S. District Court — Northern District of California
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs, v. Donald EVANS, et al., Defendants.

Page 1051

290 F.Supp.2d 1051

NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs, v. Donald EVANS, et al., Defendants.

No. C 01-0421 JL.

United States District Court, N.D. California.

October 27, 2003.

Andrew P. Caputo, Natural Resources Defense Council, San Francisco, CA, Stephen E. Roady, Eric A. Bilsky, Washington, DC, Monica B. Goldberg, for Plaintiffs.

Catherine R. Lewers, Mauricia M.M. Baca, Washington, DC, Charles O'Connor, San Francisco, CA, for defendants.

James P. Walsh, Davis Wright Tremaine, San Francisco, CA, for Amicus Curiae.

ORDER

LARSON, United States Magistrate Judge.

Plaintiffs' motion for an order for deadlines came on for hearing before this Court on September 24, 2003. The parties had briefed the issues extensively and the Court was prepared to rule. At the conclusion of the hearing the parties expressed willingness to collaborate on drafting a proposed order for the Court's signature, to be submitted to the Court by October 8, 2003. The deadline passed, and counsel presented the Court with Plaintiffs' Proposed Order, Defendants' Objections to Plaintiffs' Proposed Order and Plaintiffs' Response to Defendants' Objections on Proposed Order.

The parties present two versions of the Order:

Plaintiffs propose the following language: (Plaintiffs modified their Proposed Order in response to Defendants' Objections —this is the modified version)

"This matter is before the Court on plaintiffs' motion for deadline to prepare rebuilding plans. Having considered the parties' arguments presented in writing and at the September 24 hearing, the Court hereby rules as follows: Plaintiffs' motion is GRANTED. Consistent with the Magnuson-Stevens Act, Defendants shall: (1) Approve rebuilding plans for darkblotched rockfish, canary rockfish, lingcod and Pacific Ocean Perch by January 31, 2004; (2) Prepare, or cause to be prepared, rebuilding plans for bocaccio rockfish, cowcod, yelloweye rockfish, and widow rockfish by April 15, 2004; (3) Approve or adopt rebuilding plans for bocaccio rockfish, cowcod, yelloweye rockfish, and widow rockfish by September 15, 2004; and (4) Approve or adopt a rebuilding plan for Pacific whiting by November 30, 2004.

IT IS SO ORDERED." (Plaintiffs' Response at page 5, n. 4)

Defendants propose the following language:

"This matter is before the Court on Plaintiffs' Motion for Deadline to prepare rebuilding plans for overfished Pacific groundfish species. Having considered the Parties' arguments presented in writing and at the September 24 hearing, the Court hereby rules as follows:

Plaintiffs' Motion is GRANTED.

Defendants shall take action pursuant to Section 304(a)(3) of the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson-Stevens Act") on rebuilding amendments for darkblotched rockfish, canary rockfish, lingcod, and Pacific Ocean perch by January 31, 1004.

Either the Pacific Fisheries Management Council or the National Marine Fisheries Services shall prepare rebuilding amendments for bocaccio rockfish, cowcod, yelloweye rockfish and widow rockfish by April 15, 2004. Defendants shall take action on these rebuilding amendments pursuant to either section 304(a)(3) or section 304(c) of the Magnuson-Stevens Act by September 15, 2004.

Defendants shall take action under either section 304(a)(3) or section 304(c) of the Magnuson-Stevens Act on a rebuilding amendment for Pacific whiting by November 30, 2004.

IT IS SO ORDERED." (Defendants' Objections at page 3)

The parties' proposed orders differ significantly. Defendants propose to "take action" on "rebuilding amendments" versus "prepare, cause to be prepared" and "approve or adopt" "rebuilding plans." This is inconsistent with what the Court and the parties discussed at the hearing. "Taking action" is so vague as to be meaningless. The statute requires that the rebuilding plans be completed and ready for implementation within a certain time frame, which is long past.

The Court also notes that Defendants in their Proposed Order expressly provide for participation by the Pacific Fisheries Management Council ("the Council") in the preparation and completion of the rebuilding plans. The Court finds that such participation is likely to contribute to significant additional delay, when Defendants are already out of compliance with the Congressionally-mandated deadlines. Accordingly, the NMFS alone should prepare and complete the rebuilding plans.

LEGAL ANALYSIS

The Statute Has a Deadline, which is Past

The deadline to prepare a rebuilding plan for the nine overfished species has passed. 16 U.S.C. § 1854(e)(3) of the Magnuson-Stevens Act ("MSA") requires that rebuilding plans be completed for overfished species within one year of their being identified as overfished. Some of the species were identified in March 1999 (bocaccio, lingcod and Pacific ocean perch), ("POP"), others in January 2000 (canary rockfish and cowcod), others in January 2001 (darkblotched rockfish and widow rockfish). None of these species has a rebuilding plan yet. In the meantime, two more overfished species have been identified, yelloweye rockfish (January 2002) and Pacific whiting (April 2002). Natural Resources Defense Council v. Evans, 243 F.Supp.2d 1046, 1054-1055 (N.D.Cal.2003)

Where the Secretary has so designated a fishery, measures must be taken to rebuild to a level consistent with producing the maximum sustainable yield (MSY), or suitable proxy, within a time period as short as possible but not exceeding ten (10) years. See 16 U.S.C. §§ 1802(28)(C), 1802(29), 1854(4), 1853(10).

In the case at bar, for the nine overfished species, there is not one completed rebuilding plan, despite the passage of the statutory deadline. The Court finds this delay unreasonable.

NMFS Pleads Other Work and Insufficient Staff

NMFS cites other work as interfering with its compliance with the Court's order to prepare the rebuilding plans: inter alia, participation in and support of the September, November and March meetings of the Pacific Council, meetings of the Council's Groundfish Management Team, Allocation Committee, and Open Access Permitting Committee, and the interim and annual meetings of the International Pacific Halibut Commission (IPHC); inseason management of the four commercial Pacific whiting fisheries, inseason management of the seven recreational and three non-tribal commercial Pacific halibut fisheries; preparation and publication of inseason groundfish management measures likely to be developed at the September and November 2003 Council meetings; preparation of initial scoping documents for a license limitation program for the open access groundfish fisheries; reviewing and processing the DEIS and FEIS for the 2004 groundfish specifications and management measures, and other duties that will inevitably arise (de Reynier Decl. at ¶ 12 and Table 2).

The Court, on examining pages 9 and 10 of the de Reynier Declaration, sees many steps in the process which could be eliminated —relating to the "workload" issues. The Court could order elimination of the "scoping" hearings, in fact, elimination of the Council entirely would greatly speed the proceedings.

In addition to eliminating the Council from the process, NMFS has the option of diverting staff and resources or using outside contractors. A former NMFS official testified that the agency frequently shifts staff, resources and priorities to meet court-ordered deadlines. (Decl. Of Heather Weiner, Ex. I to Pltf. Reply at ¶ 6). NMFS effectively concedes this point when it admits that at least one EIS currently is being prepared by an outside contractor (de Reynier Decl. at p. 11— Programmatic Bycatch EIS "is being prepared and managed by a NMFS contractor").

In fact, in listing other work that might suffer were NMFS to divert resources on orders from this Court, Mr. Robinson describes some of the important tasks as "court-ordered." Plaintiffs reject this as an excuse. Congress has already decided that rebuilding plans are the highest of priorities, by mandating procedures and deadlines. Where "Congress has established a clear time frame for regulatory action, deferring to the agency [as to an alternative time frame] is inappropriate." Sierra Club v. Thomas, 658 F.Supp. 165, 171, n. 6 (N.D.Cal.1987).

NMFS Would Not Have to Start from Scratch

Plaintiffs deny that NMFS is starting from scratch on the bocaccio or any other rebuilding plans. Plaintiffs point out that the NEPA and other analytic processes do not necessarily happen one after another, but can proceed simultaneously and parallel with preparation of the rebuilding plans. NMFS lists the M.S.A. § process and then states that "NEPA requires a separate process." (¶ 4 and 5 of Def. Opp.) In fact, NMFS neglects to mention that it had already performed many tasks for the rebuilding plans which will not have to be repeated: specifically the NEPA procedures, including publishing a notice of intent to prepare an EIS, and the scoping process.

NMFS has published two separate notices of intent to prepare a rebuilding plan EIS in April 2002 and in March 2003. Scoping has been underway since March 1999, when the first three species were identified as overfished. 67 Fed.Reg. at 18,577. The second notice convened a scoping meeting April 6, 2003. 68 Fed. Reg. at 12,889. One of the notices acknowledges that the rebuilding plans have "already been subject to a lengthy development process that has included early and meaningful opportunity for public participation ...". 67 Fed.Reg. at 18,577. NMFS is not starting from scratch.

In fact, NMFS is re-using the language from existing draft rebuilding plans in the new rebuilding plans. (See. Plaintiffs' Reply at Ex. D—excerpts from the EIS on the 2003 Pacific groundfish specifications and Ex. E—excerpts from the draft EIS on the first batch of Pacific groundfish rebuilding plans). The sections labeled "West Coast Marine Ecosystems" in each document (section 3.1.1) (pages 3-1 to 3-3) in Ex. D,...