940 F.Supp.2d 1029 (N.D.Cal. 2013), C-11-6257 EMC, Oceana, Inc. v. Bryson

Docket Nº:C-11-6257 EMC
Citation:940 F.Supp.2d 1029
Opinion Judge:EDWARD M. CHEN, United States District Judge.
Party Name:OCEANA, INC., Plaintiff, v. JOHN E. BRYSON, et al., Defendants
Attorney:For Oceana, Inc., a non-profit organization, Plaintiff: Andrea A. Treece, LEAD ATTORNEY, Michael Ramsey Sherwood, Earthjustice, San Francisco, CA. For John E. Bryson, in his official capacity as Secretary of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Serv...
Case Date:April 12, 2013
Court:United States District Courts, 9th Circuit, Northern District of California
 
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940 F.Supp.2d 1029 (N.D.Cal. 2013)

OCEANA, INC., Plaintiff,

v.

JOHN E. BRYSON, et al., Defendants

No. C-11-6257 EMC

United States District Court, N.D. California

April 12, 2013

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For Oceana, Inc., a non-profit organization, Plaintiff: Andrea A. Treece, LEAD ATTORNEY, Michael Ramsey Sherwood, Earthjustice, San Francisco, CA.

For John E. Bryson, in his official capacity as Secretary of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Defendants: Kevin William McArdle, LEAD ATTORNEY, United States Department of Justice, Environment & Natural Resources Division, Wildlife & Marine Resources Section, Washington, DC; Rachel Kathleen Bowen, Washington, DC.

For California Wetfish Producers Association, Intervenor Dft: Ashley Remillard, Irvine, CA; George J. Mannina, Jr., PRO HAC VICE, Nossaman LLP, Washington, DC.

For Joseph Nicholas Ferrigno, Tri-Marine Fish Company, LLC, Monterey Fish Company, City of Monterey, Ventura Port District, Nick Jurlin, Intervenor Dfts: George J. Mannina, Jr., LEAD ATTORNEY, Nossaman LLP, Washington, DC; Ashley Remillard, Irvine, CA.

OPINION

EDWARD M. CHEN, United States District Judge.

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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

(Docket Nos. 40, 43-44)

I. INTRODUCTION

Pending before the Court are cross motions for summary judgment filed by the Plaintiff, the Federal Defendant and industry Intervenors. This case arises under the Magnuson-Stevens Act, which establishes Regional Fishery Management Councils, and requires those Councils to prepare fishery management plans which are aimed at preventing overfishing. Plaintiff challenges Amendment 13, a 2010 amendment to the Costal Pelagic Species Fishery Management Plan, which covers a number of species within the California Current Ecosystem. Plaintiffs allege that Amendment 13 fails to comply with various requirements of the Magnuson-Stevens Act (" MSA" ), and also violates the National Environmental Policy Act (" NEPA" ) and the Endangered Species Act (" ESA" ).

For the reasons stated below, this Court concludes that many of the objections Plaintiff raises under the MSA are untimely. Of the timely objections, the Court finds that Amendment 13 violates the MSA only in that it fails to specify a maximum sustainable yield proxy for the northern subpopulation of the northern anchovy. The Court additionally denies Plaintiff's motion for summary judgment as to the NEPA and ESA claims.

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II. STATUTORY SCHEME & FACTUAL BACKGROUND

Plaintiff brings suit to challenge Amendment 13 to the Coastal Pelegic Species Fishery Management Plan (" CPS FMP," " the FMP" or " the plan" ), 1 alleging that it is not in compliance with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act. Specifically, Plaintiff alleges that Amendment 13 fails to set certain measures required by the MSA (such as the " optimum yield" for the species of fish covered by the CPS FMP), that it fails to appropriately account for certain known sources of uncertainty, and that it is not based upon the best available science. Plaintiff also alleges that Amendment 13 violates the National Environmental Policy Act and the Endangered Species Act.

A. Magnuson-Stevens Act Statutory Overview

Congress enacted the MSA, 16 U.S.C. § § 1801, et. seq., in 1976 after finding that " [c]ertain stocks of fish have declined to the point where their survival is threatened," and that " [a] national program for the conservation and management of the fishery resources of the United States" had become " necessary to prevent overfishing, to rebuild overfished stocks, to insure conservation, to facilitate long-term protection of essential fish habitats, and to realize the full potential of the Nation's fishery resources." 16 U.S.C. § 1801(a)(1), (7). Its stated purposes are, inter alia, " to take immediate action to conserve and manage the fishery resources found off the coasts of the United States," and " to promote domestic commercial and recreational fishing under sound conservation and management principles." 16 U.S.C. § § 1801(b)(1), (3).

In order to carry out these purposes, the MSA established eight Regional Fishery Management Councils, and directed each Council to:

prepare and submit to the Secretary [of Commerce] (A) a fishery management plan, and (B) amendments to each such plan that are necessary from time to time (and promptly whenever changes in conservation and management measures in another fishery substantially affect the fishery for which such plan was developed);

16 U.S.C. § 1852 (h)(1). The Pacific Council, whose fishery management plan is the subject of this litigation, is the Council responsible for Pacific Ocean fisheries seaward of the states of California, Oregon, and Washington. 16 U.S.C. § 1852(a)(1)(F).

Each Council is required to establish and maintain a scientific and statistical committee (" SSC" ). The role of the SSC is to assist the Council " in the development, collection, evaluation, and peer review of such statistical, biological, economic, social, and other scientific information as is relevant to such Council's development and amendment of any fishery management plan." 16 U.S.C. § 1852(g)(1)(A). The Council may also set up additional advisory panels as it deems necessary or appropriate. Id. § 1852(g)(2). Decisions and recommendations of the SSC are generally considered advisory. Id. § 1852(g)(5).

B. Plan Implementation Process

Fishery management plans and their amendments are submitted by each Regional Fishery Management Council to the Secretary of Commerce (" Secretary" ), who reviews them to determine whether proposed plans or amendments are consistent with the ten " national standards for fishery conservation and management" listed

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in § 1851(a), the provisions of the Magnuson Act, and other applicable law. 16 U.S.C. § § 1851(a), 1854(a)(1)(A). The Secretary must publish notice of a Council's proposed plan or amendment in the Federal Register and solicit public comment. Id. § § 1854(a)(1)(B); 1854(a)(5). Within 30 days of the close of the public comment period, the Secretary must either " approve, disapprove, or partially approve [the] plan or amendment . . . by written notice to the Council." Id. § 1854(a)(3). " If the Secretary does not notify a Council within 30 days of the end of the comment period of the approval, disapproval, or partial approval of a plan or amendment, then such plan or amendment shall take effect as if approved." Id.

Fishery management plans, standing alone, " do not themselves have any regulatory effect - implementing regulations must also be enacted in order to effectuate them." N.C. Fisheries Ass'n v. Gutierrez, 550 F.3d 16, 17, 384 U.S. App. D.C. 16 (D.C. Cir. 2008). Thus, in addition to plans and their amendments, the Act requires that the Council submit to the Secretary any " proposed regulations which the Council deems necessary or appropriate for the purposes of . . . implementing a fishery management plan or plan amendment" at the time that the Council submits the plan or amendment. 16 U.S.C. § 1853(c)(1). Similar to the process for FMPs and their amendments, the MSA requires the Secretary to " immediately initiate an evaluation of [a Council's] proposed regulations to determine whether they are consistent with the fishery management plan, plan amendment, [the Magnuson Act], and other applicable law." 16 U.S.C. § 1854(b)(1). If the Secretary determines that the proposed regulations are consistent, he must " publish such regulations in the Federal Register . . . for a public comment period of 15 to 60 days." Id. § 1854(b)(1)(A). " The Secretary shall promulgate final regulations within 30 days after the end of the comment period." Id. § 1854(b)(3).

The Secretary has delegated her authorities under the MSA to the National Marine Fisheries Service (" NMFS" ), a subagency of the National Oceanic and Atmospheric Administration (" NOAA" ) within the Department of Commerce. Fishermen's Finest, Inc. v. Locke, 593 F.3d 886, 889 (9th Cir. 2010).

Under certain limited circumstances, the Secretary may prepare her own FMP or amendment if the Council fails to develop and submit an FMP or necessary amendment to the Secretary within a " reasonable" period of time. 16 U.S.C. § 1854(c)(1). Similarly, if the Secretary disapproves or partially disapproves an FMP or amendment, and the Council fails to submit a revised plan, the Secretary may prepare her own plan or amendment. Id.

C. Required Contents of Fishery Management Plans

The Magnuson Act requires that fishery management plans and plan amendments adhere to a number of standards, and provides specific guidelines for the required contents of plans. Section 1853 sets forth the provisions that FMPs must include. A number of the required provisions are relevant to the dispute in this case.

First, § 1853(a)(1)(A) requires plans to " contain the conservation and management measures" which are " necessary and appropriate for the conservation and management of the fishery, to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery." The Act defines " overfishing" as the " rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis." 16 U.S.C. § 1802(34).

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NMFS has, in turn, defined maximum sustainable yield (" MSY" ) as " the largest long-term...

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