Ctr. for Biological Diversity v. Blank

• Decision Date: 28 March 2013
• Docket Number: Civil Action No. 11–cv–2307 (RLW).
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, v. Rebecca M. BLANK, Acting Secretary, U.S. Department of Commerce, et al., Defendants.
• Court: U.S. District Court — District of Columbia

933 F.Supp.2d 125

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff,

v.Rebecca M. BLANK, Acting Secretary, U.S. Department of Commerce, et al., Defendants.

Civil Action No. 11–cv–2307 (RLW).

United States District Court, District of Columbia.

March 28, 2013.

William J. Snape, III, Law Office of William J. Snape III, Washington, DC, Catherine Kilduff, Center for Biological Diversity, San Francisco, CA, Deirdre McDonnell, Center for Biological Diversity Portland, OR, for Plaintiff.

Mark Arthur Brown, Sr., U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROBERT L. WILKINS, District Judge.

The Center for Biological Diversity (“Center”) initiated this action against the Secretary of Commerce,¹ the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service (“Fisheries Service” or “NMFS”), seeking review of a final rulemaking issued by the Fisheries Service to modify several management measures for the western Atlantic bluefin tuna fishery. See Atlantic Highly Migratory Species: Adjustments to the Atlantic Bluefin Tuna General and Harpoon Category Retentions, 76 Fed.Reg. 74,003 (Nov. 30, 2011) (the “Final Rule”). The Center mounts challenges to the Final Rule under the Magnuson–Stevens Fishery Conservation and Management Act (“Magnuson–Stevens Act”), 16 U.S.C. §§ 1801, et seq., the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701, et. seq., and the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321, et seq. This matter is presently before the Court on the parties' cross-motions for summary judgment. (Dkt. Nos. 16, 23). Upon careful consideration of the parties' briefing and a thorough review of the Administrative Record, the Court concludes, for the reasons set forth herein, that the Center's Motion for Summary Judgment will be DENIED, and that the Defendants' Cross–Motion for Summary Judgment will be GRANTED.

BACKGROUND

Atlantic bluefin tuna are highly migratory fish that range across most of the North Atlantic Ocean and its adjacent seas. Bluefin tuna have a lifespan of about 40 years, grow to more than ten feet in length, and can weigh up to 1,500 pounds. The global bluefin tuna population is comprised of two distinct stock categories—(1) the Eastern Atlantic and Mediterranean population, which spans from Norway to Africa and into the Mediterranean Sea; and (2) the Western Atlantic population, which spans from Newfoundland to the Gulf of Mexico—although the two stocks are known to mix to some extent.²

In the United States, Congress regulates the commercial bluefin tuna fishery through a patchwork of statutory and regulatory laws administered by the Fisheries Service, pursuant to authority delegated by the Secretary of Commerce. Presently, the Fisheries Service manages the bluefin tuna fishery in accordance with the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (“2006 HMS FMP”), 71 Fed.Reg. 58,058 (Oct. 2, 2006), which contains a wide range of management and allocation measures, including annual quota and subquota limits, permit requirements for commercial fishers, time and area closures delineating fishing seasons, daily retention limits for most categories of fishermen, and more.

Through this action, the Center seeks review of the Fisheries Service's recent modification to some of these management measures. Notably, the Final Rule at issue in this case did not change the annual quota or subquota limits for the U.S. bluefin tuna fishery. Those limits were modified by an earlier rulemaking, whereby the Fisheries Service adjusted the overall U.S. quota limit to conform to recommendations of the International Commission for the Conservation of Atlantic Tunas, and adjusted the subquota limits for each fishing category. Atlantic Bluefin Tuna Quotas and Atlantic Tuna Fisheries Management Measures, 76 Fed.Reg. 39,019 (July 5, 2011). Instead, the Final Rule made adjustments to several effort-control management measures for the fishery: (1) an increase to the “General” category maximum daily retention limit; (2) an extension of the “General” category fishing season; and (3) an increase to the “Harpoon” category daily incidental retention limit. These three changes, which are discussed in greater detail below, form the basis for the Center's challenges in this case.

A. Statutory and Regulatory Framework

1. The Magnuson–Stevens Act

Congress passed the Magnuson–Stevens Act to establish a national program for the conservation and management of the Nation's fishery resources. Congress believed that the implementation of such a program was needed “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)(6). In turn, Congress empowered the Secretary of Commerce with “authority to create national programs for the conservation and management of fishery resources.” C & W Fish Co. v. Fox, 931 F.2d 1556, 1557 (D.C.Cir.1991); see also Kramer v. Mosbacher, 878 F.2d 134, 135 (4th Cir.1989) (explaining that the Secretary holds “broad authority to manage and conserve coastal fisheries”).

Under the Magnuson–Stevens Act, eight regional councils are charged with drafting and preparing “fishery management plans,” 16 U.S.C. § 1852(h), that must set out measures “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.” Id. § 1853(a)(1)(A).³ Acting through the Fisheries Service, the Secretary then reviews the plans and their implementing regulations for compliance with the Act, solicits public comment, and publishes final regulations in the Federal Register. Id. § 1854(a)(1), (b)(1). Final implementing regulations, once promulgated by the Secretary,have the full force and effect of law. See generally id.§§ 1854, 1855.

All fishery management plans—along with any regulations implementing those plans—must be consistent with ten “National Standards” set forth in the Magnuson–Stevens Act. Id. § 1851(a). At issue in this case are two of these standards:

(1) Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield ⁴ from each fishery for the United States fishing industry.

(2) Conservation and management measures shall be based upon the best scientific information available.

Id. § 1851(a)(1), (2).⁵ Along with these National Standards, several other provisions of the Act are relevant to this matter. First, when a fishery is identified as “overfished,” as here, the Secretary must take action to “end overfishing in the fishery and to implement conservation and management measures to rebuild affected stocks of fish.” Id.§ 1854(e)(2). The “rebuilding” period generally should not exceed ten years, except where “management measures under an international agreement in which the United States participates dictate otherwise.” Id.§ 1854(e)(4)(A)(ii). Second, “with respect to a highly migratory species for which the United States is authorized to harvest an allocation, quota, or at a fishing mortality level under a relevant international fishery agreement,” such as bluefin tuna, the Act directs that the Secretary shall “provide fishing vessels of the United States with a reasonable opportunity to harvest such allocation, quota, or at such fishing mortality level.” Id.§ 1854(g)(1)(D).

2. The Atlantic Tunas Convention Act

Along with the Magnuson–Stevens Act, the Atlantic Tunas Convention Act (“ATCA”) provides the Secretary with additional authority to promulgate conservation and management programs for tuna fisheries. Congress enacted the ATCA as domestically-implementing legislation for the International Convention for the Conservation of Atlantic Tunas (the “Convention”), 20 U.S.T. 2887, T.I.A.S. 6767 (1969). SeeS. Rep. No. 94–269, reprinted in 1975 U.S.C.C.A.N. 742, 745 (explaining that the ATCA was “needed to provide an overall conservation program, agreed to on an international basis, for the conservation of the highly migratory tunas, and to carry out U.S. responsibilities under the Convention”). The Convention established the International Commission for the Conservation of Atlantic Tunas (“ICCAT”), and ICCAT “on the basis of scientific evidence make[s] recommendations designed to maintain the populations of tuna and tuna-like fishes that may be taken in the Conventionarea at levels which will permit the maximum sustainable catch.” Convention, Art. VIII, § 1(a). To this end, ICCAT establishes a “total allowable catch” (“TAC”) for western Atlantic bluefin tuna, and a portion of that stock is then allocated to the United States. Under the ATCA, the Secretary may not promulgate any regulations that “may have the effect of increasing or decreasing any allocation or quota of fish or fishing mortality level to the United States agreed to pursuant to a recommendation of [ICCAT].” 16 U.S.C. § 971d(c)(3)(K). Otherwise, any regulations issued under the ATCA “shall, to the extent practicable, be consistent with fishery management plans prepared and implemented under [the Magnuson–Stevens Act].” Id. § 971d(c)(1)(C).

3. The National Environment Policy Act

NEPA is designed to “promote efforts which will prevent or eliminate damage to the environment and biosphere.” 42 U.S.C. § 4321. To achieve that goal, Congress directed, through NEPA, that all federal agencies must prepare an environmental impact statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment.” Id. § 4332(2)(C); Town of Cave Creek v. FAA, 325 F.3d 320, 327 (D.C.Cir.2003). To determine whether an EIS must be drafted, however, the agency must first prepare an environmental assessment (“EA”). 40 C.F.R. § 1501.4(b). The assessment must “[b]riefly provide...