American Oceans Campaign v. Daley

• Decision Date: 24 September 2000
• Docket Number: No. 99-CV-982.,99-CV-982.
• Citation: 183 F.Supp.2d 1
• Parties: AMERICAN OCEANS CAMPAIGN, et al., Plaintiffs, v. William M. DALEY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 1

183 F.Supp.2d 1

AMERICAN OCEANS CAMPAIGN, et al., Plaintiffs, v. William M. DALEY, et al., Defendants.

No. 99-CV-982.

United States District Court, District of Columbia.

September 24, 2000.

COPYRIGHT MATERIAL OMITTED

Stephen Elston Roady, Eric A. Bilsky, Monica Burke Goldberg, Oceana, Inc., Washington, DC, for plaintiffs.

Charles C. Carson, Morrison & Foerster, LLP, McLean, VA, Anthony P. Hoang, Samuel D. Rauch, II, U.S. Department of Justice, Environment & Natural Resources Division, Jane P. Davenport, U.S. Department of Justice, Environmental Division, James Patrick Walsh, Richard Lee Cys, Davis, Wright, Tremaine, Washington, DC, for defendants.

MEMORANDUM OPINION

KESSLER, District Judge.

Plaintiff environmental groups bring this action against William M. Daley in his capacity as Secretary of the Department of Commerce ("Secretary") as well as the National Oceanic and Atmospheric Administration ("NOAA") and the National Marine Fisheries Service ("NMFS"). The Texas Shrimp Association and Wilma Anderson (collectively, "Intervenor-Defendants") intervened in this case as Defendants.

This matter is before the Court on Plaintiffs' Motion for Summary Judgment Against the Federal Defendants [# 22], the Federal Defendants' Motion for Summary Judgment [# 27], Plaintiff's Motion for Summary Judgment Against the Intervenor-Defendants [# 30], and the Intervenor-Defendants' Motion for Summary Judgment [# 26]. Upon consideration of the motions, oppositions, replies, the arguments made at the motions hearing, and the entire record herein, for the reasons discussed below, Plaintiffs' Motion for Summary Judgment Against the Federal Defendants is granted in part and denied in part, Plaintiffs' Motion for Summary Judgment Against the Intervenor-Defendants is granted, the Federal Defendants' motion is granted in part and denied in part, and the Intervenor-Defendants' motion is denied.

I. Standard of Review

Initially, it must be remembered that the Court is bound by a highly deferential standard of review for agency action. Under the Administrative Procedure Act ("APA"), an agency's action may be set aside only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In making this finding, the Court "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The Court may not substitute its judgment for that of the agency. Id. If the "agency's reasons and policy choices ... conform to `certain minimal standards of rationality' ... the rule is reasonable and must be upheld", Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 521 (D.C.Cir.1983) (citation omitted), even though the Court itself might have made different choices. This standard presumes the validity of agency action. Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C.Cir.1976) (en banc), cert. denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976).

Courts also give a high degree of deference to agency actions based on an evaluation of complex scientific data within the agency's technical expertise. See Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983); NRDC v. EPA, 824 F.2d 1211, 1216 (D.C.Cir.1987) (citing NRDC v. EPA, 812 F.2d 721, 725 (D.C.Cir.1987)) ("[I]t is not for the judicial branch to undertake comparative evaluations of conflicting scientific evidence.")

II. Statutory Framework

The Fishery Conservation and Management Act ("FCMA", also known as the Magnuson-Stevens Act), enacted in 1976, 16 U.S.C. § 1801, et seq., provides the basic statutory framework for the protection and management of the nation's marine fishery resources. The FCMA establishes eight Regional Fishery Management Councils, each of which has the authority and responsibility to govern conservation and management of the fisheries under its jurisdiction. 16 U.S.C. § 1852. The Councils perform this function by developing and implementing fishery management plans ("FMPs"). After a Council develops an FMP, the Secretary of Commerce, acting through NOAA and NMFS, evaluates the plans and determines whether they comply with the FCMA. Depending on his determination, he may approve, disapprove, or partially approve these plans. 16 U.S.C. § 1854.

The approval of the FMPs requires several steps: first, an immediate review of the FMP to ensure it is consistent with the FCMA; second, publication of the FMP in the Federal Register, followed by a 60-day comment period; and third, approval, disapproval, or partial approval of the FMP, by the Secretary within 30 days of the end of the comment period. The Secretary may refuse to approve an FMP recommended by a Council if it violates any of the ten National Standards established by the FCMA for FMPs. 16 U.S.C. § 1853(a)(1-10). The Councils may, once an FMP has been approved, adopt amendments to the FMPs as conditions in the fisheries change, but approval of such amendments must undergo the same evaluation process.

In 1996, Congress passed the Sustainable Fisheries Act ("SFA"), which amended the FCMA. One of the main thrusts of the SFA was the long-term protection of essential fish habitat ("EFH"). The statute defines EFHs as "those waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity." 16 U.S.C. § 1802(10). The SFA required the Councils to submit amendments to their various FMPs (each Council may have several FMPs), which were to describe and identify EFHs (including adverse impacts on such EFHs), and consider actions to ensure the conservation and enhancement of those EFHs. 16 U.S.C. § 1855(b)(1)(A). The statute required the Councils to submit such EFH amendments¹ to the Secretary by October 1998. After receiving such amendments, the Secretary was required to subject them to the evaluation procedure that FMPs and their amendments are normally put through, and then approve, disapprove, or partially approve them.

III. Factual Background²

On December 19, 1997, NMFS promulgated EFH regulations in an Interim Final Rule, as required by the FCMA; these regulations became effective January 20, 1998. The Environmental Assessment (EA) prepared for these regulations, pursuant to the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., noted the need for a long-term plan for the conservation and management of essential fish habitats ("EFH").

In August 1997, NMFS contracted with the American Fisheries Society to make a comprehensive literature survey of scientific reports addressing fishing impacts on habitat. The survey, called the Auster/Langton Study (the "Study"), reviewed 90 studies from around the world and concluded that 88 of those studies found some impacts resulting from fishing gear. The Study concluded, however, that the overall impact of fishing-related activities in North American waters is unknown despite research efforts spanning 80 years. NMFS provided the Auster/Langton Study to the Regional FMCs, and noted that the Study was only a starting point, not a replacement for the EFH assessments for which the FMCs were responsible.

Each of the five Regional Councils affected by the SFA submitted draft EFH amendments to NMFS for review and comments. In their final EFH amendments, all Councils identified some EFHs within each of their jurisdictions, yet none adopted measures that would restrict fishing gear in order to minimize adverse effects of fishing related activities on EFH.

A. Gulf of Mexico Fishery Management Council (GMFMC)

The GMFMC prepared a Generic EFH Amendment to amend its seven FMPs for managed species in the Gulf of Mexico.

In a letter to NMFS dated February 3, 1997, the GMFMC noted that because of the existing measures it had already adopted to regulate fishing activities, the effect on EFHs from allowable gear was only minimally adverse. In response to this letter, several dissenting members of the GMFMC sent a letter to NMFS expressing their concern over the GMFMC's position, stating specifically that the GMFMC had not examined gear effects on habitat, and that the GMFMC's conclusions were fallacious.

The GMFMC submitted an outline of its first draft of the Generic EFH Amendment on June 24, 1997; this outline included a heading on adverse impacts from fishing-related activities. The first draft of the Generic EFH Amendment, submitted January 27, 1998, did not, however, contain any measures that would minimize adverse impacts on EFH. Under the subsection "Potential management options to minimize identified threats from fishing-related activities," the amendment stated that such options would be considered in future amendments.

The March 1998 draft of the Generic EFH Amendment completely removed the headings on fishing impacts on EFH; these sections were replaced by a two-page description of the effects of fishing-related activities on EFH. This description noted that little is known in the literature about specific gear effects on EFH in the Gulf of Mexico, and noted that management measures already in place were sufficient to protect the EFHs. The March draft also lacked any proposed management measures for protecting EFHs. The Council based its failure to submit EFH protection on the lack of information needed to analyze the effects of gear on EFHs, and the likely controversial nature of such measures. The draft deferred management measures to future amendments.

After NMFS reviewed the Generic EFH Amendment, it concluded that the fishing impacts section was inadequate and overlooked existing data that would have been informative. In comments submitted to GMFMC, NMFS also noted that the analysis section was too general in nature to be useful, failed to utilize existing scientific data, and failed to adequately address the requirements of the EFH regulations.

The...