Conservation Law Found. v. Ross

• Citation: 374 F.Supp.3d 77
• Decision Date: 15 April 2019
• Docket Number: Civil Action No. 18-1105 (JEB)
• Parties: CONSERVATION LAW FOUNDATION, Plaintiff, v. Wilbur ROSS, in his official capacity as Secretary of the United States Department of Commerce, et al., Defendants.
• Court: U.S. District Court — District of Columbia

374 F.Supp.3d 77

CONSERVATION LAW FOUNDATION, Plaintiff,

v.Wilbur ROSS, in his official capacity as Secretary of the United States Department of Commerce, et al., Defendants.

Civil Action No. 18-1105 (JEB)

United States District Court, District of Columbia.

Signed April 15, 2019

Peter Shelley, Pro Hac Vice, Erica A. Fuller, Pro Hac Vice, Conservation Law Foundation, Boston, MA, for Plaintiff.

Kristen Byrnes Floom, Sarah Izfar, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District JudgeWhen it comes to our nation's critical ocean habitat, Plaintiff Conservation Law Foundation says that the federal government has one job: protect it. So when the National Marine Fisheries Service, an agency under the auspices of the Secretary of Commerce, approved a new management plan for the Gulf of Maine that opened up a broad swath of ocean to the commercial and recreational fishing fleet, CLF was understandably concerned. Hoping to reel in the damage, Plaintiff seeks this Court's intervention. CLF's primary contention is that the Agency ran aground when it failed to sufficiently prioritize conservation measures over economic considerations. The judicial role in evaluating such agency action, however, is limited. While the Court carefully reviews the record to ensure that the Service has sufficiently articulated a rational line based on relevant factors between its factual findings and final conclusions, its function does not extend further. Policymaking is not in the Court's wheelhouse. Finding that the Government satisfied its obligations, the Court will deny Plaintiff's Motion for Summary Judgment and grant Defendants' Cross-Motion.

I. Background

The saga underlying this suit is decades in the making. At its heart lies the Service's modification of management plans that govern fisheries in waters seaward of New England. Within one geographic area — the Gulf of Maine — this amendment opened to fishing an ocean corridor that was previously off limits. The series of steps that ultimately spawned this decision is intertwined with one statute's operation: the Magnuson-Stevens Fishery Conservation and Management Act, commonly known as just the Magnuson-Stevens Act or MSA. To provide the necessary context, the Court will thus begin with a brief exposition of this legal scheme. With the stage set, it will then provide an overview of the history that led us here. (On a logistical note, the Court, following the lead of the parties and the format of the appendix, will introduce appendix cites with the acronym "EFH," which stands for essential fish habitat.)

A. Statutory Framework

Congress passed the MSA to address the persistent problem of overfishing in U.S. waters. See Conservation Law Found. v. Pritzker, 37 F.Supp.3d 234, 239 (D.D.C. 2014). This legislative elixir prescribes a balance between the "twin goals of conserving our nation's aquatic resources and allowing U.S. fisheries to survive." Oceana, Inc. v. Pritzker, 26 F.Supp.3d 33, 36 (D.D.C. 2014) ; see also NRDC v. Nat'l Marine Fisheries Serv., 71 F.Supp.3d 35, 37–38 (D.D.C. 2014) (stating similarly). The Act assigns the Secretary of Commerce this responsibility, who has in turn delegated the responsibility to the Service, a division of the National Oceanic and Atmospheric Administration. Oceana, 26 F.Supp.3d at 36 ; see also 16 U.S.C. § 1852(a), (h).

Fisheries management is no simple task. To aid in this "exceedingly complex" undertaking, see Oceana, Inc. v. Evans, 384 F.Supp.2d 203, 241–42 (D.D.C. 2005), the Act establishes eight regional Fishery Management Councils, each of which monitors and oversees certain fisheries under its control. See 16 U.S.C. § 1852(a), (h). The makeup of each Council's voting membership is designed to account for the views of a variety of stakeholders with relevant expertise. On each board sits a state official from the region with "marine fishery management responsibility and expertise," the regional director of the Service (or her designee), and individuals appointed by the Secretary of Commerce who are knowledgeable regarding either the "conservation and management ... of the fishery resources of the geographical area concerned" or the "commercial or recreational harvest" of those fisheries. Id. § 1852(b)(1)–(2). For the purpose of this action, the New England Fishery Management Council is the relevant body. This Council oversees fisheries in the Atlantic Ocean seaward of states from Maine to Connecticut. Id. § 1852(a)(1)(A). To assist each Council in carrying out its responsibilities, the MSA provides in turn for the creation of standing committees of scientists and fishing-industry experts that report periodically on the status and health of fish stocks in each fishery, peer-review new scientific methods for fishery conservation and management, and advise the Council throughout its functions. Id. §§ 1852(g)(1) ; 1852(g)(3)(A); 1852(i)(5). The Service and the Council, assisted by its standing committees, together act to address imbalances in aquatic ecosystems.

Central to this role — as well as to this case — is the creation of Fishery Management Plans. Each Council must develop and maintain such a plan for each fishery under its control. Id. § 1852(a). Fisheries, as defined by the Act, are either "one or more stocks of fish which can be treated as a unit for purposes of conservation and management" or "any fishing for such stocks." Id. § 1802(13). Stocks, in turn, can be a species or subspecies of fish. Id. § 1802(42). A single FMP thus often governs the management of multiple species of fish. Once developed and implemented, plans can be updated by amendments, which "alter Plans in broad strokes." Conservation Law Found., 37 F.Supp.3d at 239 (internal citation omitted).

The Council's FMPs and amendments must follow multiple prescriptions. First, they must be in compliance with ten "national standards for fishery management" established by the MSA, see 16 U.S.C. § 1851(a), which set forth a range of broad and sometimes-competing objectives. See Oceana, Inc. v. Pritzker, 24 F.Supp.3d 49, 68 (D.D.C. 2014). Second, plans must contain certain "[r]equired provisions." 16 U.S.C. § 1853(a). Many of these provisions ask for specific information — for example, "the number of vessels involved" with the relevant fishery, id. § 1853(a)(2) — while others set directives more akin to the national standards. See, e.g., id. § 1853(a)(1)(A) (requiring that FMPs contain measures "necessary and appropriate for the conservation and management of the fishery"). Finally, the Act provides a suite of "[d]iscretionary provisions" that the Council "may" include. Id. § 1853(b).

Once prepared, each Council submits proposed FMPs or subsequent amendments to the Service. The Service's role at this stage is confined largely to determining whether the proposed plan or amendment complies with applicable law, rather than developing its own preferred measures. It thus acts on behalf of the Secretary of Commerce to "approve, disapprove, or partially approve" the plan or amendment. See 16 U.S.C. § 1854(a)(3). In determining whether or not to approve an FMP, the Service must review it for consistency with the requirements of the MSA, including the national standards and content requirements found at §§ 1851(a) and 1853(a), and, following a 60–day public-notice-and-comment period, "take into account the information, views, and comments received from interested persons." 16 U.S.C. § 1854(a)(1)–(2). If, upon completing this review, the Agency determines that a plan complies with applicable law and thus approves the FMP or amendment, a final rule and one or more implementing regulations are published in the Federal Register. Id. § 1854(b)(3). Approved FMPs and amendments are subject to judicial review under the Administrative Procedure Act if challenged within 30 days of the regulation's promulgation. Id. § 1855(f)(1).

If, however, the Agency concludes that an FMP or amendment fails to comply with applicable law, it does not simply revise the management measures as it desires, but rather sends it back to Council. In doing so, it must notify the Council of "the applicable law with which the plan or amendment is inconsistent" and the "nature of such inconsistences," as well as any "recommendations" on measures the Council could take "to conform such plan or amendment to the requirements of applicable law." Id. § 1854(a)(3). Only if the Council fails to return a revised plan is the Service empowered to develop an FMP or amendment itself. Id. § 1854(c)(1)(B) ; see also Anglers Conservation Network v. Pritzker, 70 F.Supp.3d 427, 431 (D.D.C. 2014).

Finally, in addition to these requirements of the MSA, any plan or amendment must also conform to the procedural mandates of the National Environmental Policy Act (NEPA). Because the contours of that Act are not necessary to understand the administrative process here, the Court saves a rehearsal of its specifics for a later discussion.

B. Factual Background

The Court begins by casting its net back to 1996, when Congress passed an amendment to the MSA that expanded the Act's scope by emphasizing the creation of conservation measures aimed at protecting fish habitat. See Sustainable Fisheries Act, Pub. L. No. 104-297, § 108, 110 Stat. 3559. Preserving the health of habitats, the thinking goes, is key to ensuring productive, and thus sustainable, fish populations. See EFH 7863–64; see also 69 Fed. Reg. 8367 (Feb. 24, 2004) (summarizing amendment). To comply with this directive, the New England Regional Council (the only council at issue here, thus permitting the Court to refer to it simply as "the Council") initiated an omnibus amendment that attempted to bring each FMP into compliance. See 63 Fed. Reg. 9500 (Feb. 25, 1998). The original amendment's tenure, however, was short lived. In 2000, a court held that its development failed to abide by the procedural requirements set forth in NEPA and...