Coastal Conservation Ass'n v. Gutierrez

• Decision Date: 12 March 2007
• Docket Number: Civil Action No. H-05-1214.,Civil Action No. H-05-2998.
• Citation: 512 F.Supp.2d 896
• Parties: COASTAL CONSERVATION ASSOCIATION, Plaintiff v. Carlos GUTIERREZ, in his official, capacity as Secretary of the United States Department of Commerce; The National Oceanic and Atmospheric Administration; and the National Marine Fisheries Service, Defendants and Gulf Restoration Network and the Ocean Conservancy, Plaintiffs, v. Carlos Gutierrez, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

Page 896

512 F.Supp.2d 896

COASTAL CONSERVATION ASSOCIATION, Plaintiff v. Carlos GUTIERREZ, in his official, capacity as Secretary of the United States Department of Commerce; The National Oceanic and Atmospheric Administration; and the National Marine Fisheries Service, Defendants and Gulf Restoration Network and the Ocean Conservancy, Plaintiffs, v. Carlos Gutierrez, et al., Defendants.

Civil Action No. H-05-1214.

Civil Action No. H-05-2998.

United States District Court, S.D. Texas, Houston Division.

March 12, 2007.

Bruce H. Cahn, Ball Janik LLP, Portland, OR, Charles Stephen Kelley, Mayer Brown et al, James B. Blackburn, Jr., Mary W. Carter, Blackburn Carter PC, Houston, TX, Robert G. Hayes, American Sportfishing Association, Alexandria, VA, Coby Dolan, Sierra B. Weaver, Attorneys at Law, The Ocean Conservancy, Jennifer C. Chavez, Steven E. Roady, Earthjustice, Washington, DC, Marianne Cufone, Environmental Matters INC., Tampa, FL, Robert B Wiygul, Waltzer and Associates, Biloxi, Ms, for Plaintiffs.

MEMORANDUM OPINION AND ORDER

MELINDA HARMON, District Judge.

Plaintiffs, the Coastal Conservation Association ("CCA"), the Gulf Restoration Network ("GRN"), and the Ocean Conservancy ("TOC"), are challenging the Secretary of Commerce's adoption of Amendment 22¹ to the Gulf of Mexico Reef Fishery Management Plan ("FMP" or "management plan"). Plaintiffs bring their claims under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq., the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4341 et seq., and the Magnuson-Stevens Fishery Conservation and Management Act ("Fishery Act"), 16 U.S.C. § 1801 et seq. Pending before the court are cross motions for summary judgment. For the following reasons, the court ORDERS that Defendants' motion for Summary Judgment is GRANTED-in-part and DENIED-in-part and Plaintiffs' motions for summary judgment are GRANTED-in-part and DENIED-in-part.

I. Facts

A. The Regulation and Management of Marine Fisheries Under Federal Law.

Congress passed the Fishery Act to "conserve and manage the fishery resources found off the coasts of the United States." See Pub.L. No. 94-265, § 1, 90 Stat. 331 (1976). The Fishery Act was prompted by Congress's concern that the Nation's fisheries, described as "valuable and renewable resources," were being over exploited. 16 U.S.C. § 1801(a)(1). "Certain stocks of fish have declined to the point where their survival is threatened, and other stocks of fish have been so substantially reduced in number that, they could become similarly, threatened ..." 16 U.S.C. § 1801(a)(2). Congress proposed, as a result, to "provide for the preparation and implementation, in accordance with national standards, of fishery management plans which will achieve and maintain, on a continuing basis, the optimum yield from each fishery." 16 U.S.C. 1801(b)(4).

Eight Regional Fishery Management Councils were formed to "exercise sound judgment in the stewardship of fishery resources." 16 U.S.C. 1801(b)(5). The Councils produce and monitor the fishery plans required by the Fishery Act. The Department of Commerce, functionally the National Marine Fisheries Service ("Service"), reviews the plans before promulgating them through notice and comment rule making. 16 U.S.C. 1854(a). The Gulf Region is managed by the Gulf of Mexico Fishery Management Council ("Council" or "Gulf Council").

Fishery Management plans are guided by ten national standards. 16 U.S.C. § 1851(a)(1)-(10). National standards one, two, eight and nine are particularly relevant to this case. They provide as follows:

National standard one: "Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the' United States fishing industry." 16 U.S.C. § 1851(a)(1); National standard two: "Conservation and management measures shall be based upon the best scientific information available." 16 U.S.C. § 1851(a)(2); National standard eight: "Conservation and management measures shall, consistent with the conservation requirements of this Act (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities by utilizing economic and social data that meet the requirements of paragraph (2), in order, to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities." 16 U.S.C. § 1851(a)(8);

National standard nine: "Conservation and management measures shall, to the extent practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch." 16 U.S.C. § 1851(a)(9).

The Department of Commerce has promulgated regulations addressing each of the national standards. See 50 C.F.R. 600, Subpart D (National Standards).

Once a fishery is declared overfished, the Council has one year to produce a plan that will "end overfishing in the fishery and rebuild affected stocks of fish." 16 U.S.C. 1854(e)(3). If the Council fails to submit an adequate plan, then the Service has an additional nine months to promulgate a legally sufficient plan. 16 U.S.C. 1854(e)(5).

The deadline for returning an overfished² species to full productivity is strict. 16 U.S.C. § 1854(e)(4); Natural Resources Defense Council v. National Marine Fisheries Service, 421 F.3d 872, 875-76 (9th Cir.2005). If it is possible to rebuild an overfished species within ten years, the Service must do so. See 16 U.S.C. § 1854(e)(4). If a species cannot be rebuilt within ten years, even in the absence of any fishing related mortality, then the rebuilding period must still be as short as possible, but may not to exceed "the rebuilding period calculated in the absence of fishing mortality, plus one mean generation time or equivalent period based on the species' life history characteristics."³ 50 C.F.R. 600.310(e) (4)(ii)(B); Natural Resources Defense Council v. National Marine Fisheries Service, 421 F.3d 872, 875-76 (9th Cir.2005). In the case of the Gulf of Mexico Red Snapper ("red snapper") this period is thirty-one point six years. Amendment 22 at 1.

B. Regulatory action to preserve the Gulf of Mexico Red Snapper.

Because the red snapper has been actively fished for at least a century, it is difficult to gauge its optimum stock size. No one contests, however, that the red snapper is severely overfished. Amendment 22 reflects current population at about seven percent of historic abundance.⁴ Amendment 22 at 22. Other studies indicate that red snapper populations are closer to three percent of historic abundance. See SEDAR 7 Report issued April 2005 (AR Vol. 2 at 619, 646).

The three main sources of red snapper mortality are the commercial red snapper fishery, the recreational red snapper fishery, and the Gulf of Mexico shrimp fishery. Of these, the shrimp fishery is believed to be the most lethal, accounting for approximately 90% of red snapper mortality. Amendment 22 at 36 (citing Schirripa and Legault, 1999). New information, however, indicates that these proportions might be incorrect and that more red snapper than previously believed die in the commercial and recreational fisheries. AR Vol. 19 at 9123-34 (Feb.2004 MacAllister study).

The Service approved the Gulf of Mexico Reef Fish Fishery Management Plan ("FMP") to address the overfishing of red snapper and other species. Amendment 22 at 16; see also 50 C.F.R. 622.1 et seq.⁵ Since its implementation, the FMP has been amended twenty-six times.⁶

The Service has consistently extended the rebuilding date for red snapper stocks. In 1990, it set a target date of 2000. In 1991, it extended the target date to 2007. In 1993, the date was extended to 2009. In 1996, the date was extend to 2019. And in 2005, the date was extended to 2032. Amendment 22 at 16-19.

While the Service has been extending the length of time needed to rebuild red snapper stocks it has also been raising the total allowable catch (TAC) of red snapper. TAC was set at four million pounds in 1991. Id. at 17. It was raised to six million pounds in 1993. Id. at 18. And to nine million one hundred and twenty thousand pounds in 1996. Id. at 19. Amendment 22 retains the current TAC.

In 2001, to bring the FMP into compliance with the Sustainable Fisheries Act, Pub.L. No. 104-297 (1996), the Gulf Council submitted an amendment, including a red snapper rebuilding plan ("plan"). Id. at 26. The plan proposed to rebuild red snapper stock by 2032, the longest period permissible under the law. Id. The amendment was rejected by the Service in 2002, and returned to the Gulf Council with instructions to "further explore alternative rebuilding plans based on more realistic expectations concerning bycatch in the shrimp fishery." Id. Amendment 22 is the Gulf Council's response. Id.

After notice and comment, Amendment 22 was adopted by the Service on June 2, 2005. 70 Fed.Reg. 105, 32266. Its most controversial feature is its conclusion that no further regulatory action is needed to end overfishing and rebuild red snapper stocks by 2032. Id. at 47. The Gulf Council bases this conclusion on three assumptions: 1) that the commercial shrimp fishery accounts for ninety percent of red snapper mortality; 2) that bycatch reduction devices ("BRDs") are forty percent effective in reducing red snapper mortality in the shrimp fishery; and 3) that shrimping efforts in the Gulf of Mexico will be reduced by fifty percent during each of the years of the rebuilding plan. Id. at 5, 49; see also Final Rule at 32267.

On March 29, 2005, CCA filed a petition for emergency rule making with the Service. The petition asks the Service to enact measures to address the failure of BRDs to meet regulatory bycatch reduction standards in the shrimp fishery. The Service denied CCA's petition on August 31, 2005, finding that emergency rule making was not warranted and that...