Foundation v. Pritzker

• Decision Date: 04 April 2014
• Docket Number: Civil Action No. 13–821 (JEB)
• Court: U.S. District Court — District of Columbia
• Parties: Conservation Law Foundation, Plaintiff, v. Penny Pritzker, et al., Defendants.

37 F.Supp.3d 254

Conservation Law Foundation, Plaintiff,
v.
Penny Pritzker, et al., Defendants.

Civil Action No. 13–821 (JEB)

United States District Court, District of Columbia.

Signed April 4, 2014

Motions granted in part and denied in part.

See also 37 F.Supp.3d 234.

[37 F.Supp.3d 257]

Erica A. Fuller, Earthjustice, Ipswich, MA, Peter Shelley, Conservation Law Foundation, Boston, MA, Roger M. Fleming, Earthjustice, Appleton, ME, Stephen Elston Roady, Earthjustice, Washington, DC, for Plaintiff.

Andrea Gelatt, U.S. Department of Justice, Washington, DC, for Defendants National Oceanic and Atmospheric Administration, National Marine Fisheries Service and Penny Sue Pritzker.

[37 F.Supp.3d 258]

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

The Magnuson–Stevens Fishery Conservation and Management Act created an accountability system to ensure that our nation's waters are not drained of their resources. Among other things, the Act requires regional Fishery Management Councils to set Annual Catch Limits for fishing off America's shores. Those ACLs set ceilings on the amount of particular stocks of fish that can be harvested in a given year. Each Council has a Scientific and Statistical Committee (SSC) that recommends maximum fishing levels for the year, and the ACLs ultimately set by the Council cannot exceed the Committee's recommendations. After determining suitable ACLs, the Council submits its proposed catch limits to the National Marine Fisheries Service for review and approval before the limits become law.

This case revolves around Framework 50, a suite of measures that made adjustments to New England's Multispecies Fishery Management Plan. In its lawsuit and ensuing Motion for Summary Judgment, Plaintiff Conservation Law Foundation contends that the Service should not have approved the Framework and issued its accompanying rule because the rule set catch limits that exceeded the SSC's expert recommendations. In its Cross–Motion, the Service and its co-Defendants, the Secretary of Commerce and the National Oceanic and Atmospheric Administration, argue that CLF is mistaken: Framework 50 set ACLs below the Committee's recommendations. But the Framework and its implementing rule also tacked on an additional amount of fish that vessels are allowed to catch over and above the ACL, and this “total potential catch”—the ACL plus the bonus catch—did indeed exceed the Committee's recommended limits. As a result, the Court will grant CLF's Motion in part and vacate the portion of Framework 50 and its associated rule allowing bonus or “carryover” catch in an amount that exceeds the SSC's proposed ceiling.

CLF also challenges the ACL set for one particular stock of fish, Gulf of Maine cod. As the decisions made by the Service in setting that catch limit were reasonable and comport with the Act, however, the Court will grant the Government's Cross–Motion in part and uphold the Service's actions on that question.

I. Background

Because fishing regulation under the Magnuson–Stevens Act is a complicated business, the Court begins by outlining the most relevant regulatory provisions governing fisheries. In doing so, it assumes some familiarity with its recent opinion in Oceana, Inc. v. Pritzker, No. 13–770, 26 F.Supp.3d 33, 2014 WL 616599 (D.D.C. Feb. 18, 2014). The Court is also issuing a related Opinion today in Conservation Law Foundation v. Pritzker, No. 13–820, 37 F.Supp.3d 234, 2014 WL 1338284 (D.D.C. Apr. 4, 2014).

The Magnuson–Stevens Act, Pub.L. No. 94–265, 90 Stat. 331 (1976), amended by Pub. L. No. 109–479, 120 Stat. 3575 (2007), created a fishery-regulation regime designed to “conserve and manage [U.S.] fishery resources” and to “promote domestic commercial and recreational fishing under sound conservation and management principles.” 16 U.S.C. § 1801(b).¹ Two entities are responsible for the pursuit of those goals. First, the National Marine

[37 F.Supp.3d 259]

Fisheries Service has been delegated ultimate authority over federal fishing policy and oversight. See id. § 1802(39); id. § 1854 (allocating responsibility to Secretary of Commerce or her designee); Oceana, Inc. v. Locke, 831 F.Supp.2d 95, 101 (D.D.C.2011) (noting delegation to Service). In addition, eight regional Fishery Management Councils work with the Service to monitor specific fisheries throughout the United States. See 16 U.S.C. §§ 1852(a), (h).

The Councils' and Service's efforts are guided by individual Fishery Management Plans and related regulations. Each Council must develop and maintain a Plan for each fishery under its control, and those Plans and related regulations must ultimately be approved, implemented, and enforced by the Service. See id. §§ 1852(h), 1854(a). Proposed regulations and other actions must be consistent with the requirements of the Act and with the Act's ten National Standards or goals. See id. §§ 1853(a), 1854(a). To keep management measures up to date, the Councils and the Service occasionally publish Amendments, which are incorporated into Plans after notice and comment and alter fishery management in broad strokes, see id. § 1854(a), and Framework Adjustments, which are expedited actions that modify fishing oversight in more modest ways. See id. §§ 1853(c), 1854(b); 50 C.F.R. § 648.90(c).

In this case, CLF is suing the Service and other government Defendants over a Framework Adjustment and related rule concerning the Northeast Multispecies Fishery Management Plan. See Framework 50 Interim Final Rule, 78 Fed.Reg. 26,172 (May 3, 2013); Framework 50 Final Rule, 78 Fed.Reg. 53,363 (Aug. 29, 2013). The Framework was authored by the New England Fishery Management Council, see 78 Fed.Reg. at 26,172, which manages fisheries off the nation's northeast coast. See New England Fishery Management Council, Summary of Northeast Multispecies Fishery Management Plan, available at http:// goo.gl/mBYmcs. The Framework relates to the region's “groundfish” (or multispecies) fishery, which covers 13 different species of fish, such as cod, haddock, and flounder, divided into 20 stocks. See Framework 50 at 27 (AR 27,283); 78 Fed.Reg. at 26,172.

CLF principally contests Framework 50's approach to setting Annual Catch Limits (ACLs). Under the Magnuson–Stevens Act, each Fishery Management Plan must “establish a mechanism for specifying annual catch limits in the plan (including a multiyear plan), implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery.” 16 U.S.C. § 1853(a)(15). The Plan must also include “measures to ensure accountability” for the ACLs. Id. Councils take the first stab at setting ACLs, which must then be approved by the Service. See id.; id. at §§ 1854(a), (b). In doing so, Councils do not operate alone. Rather, under the Act, each Council must establish a “scientific and statistical committee” that issues “recommendations for acceptable biological catch, preventing overfishing, maximum sustainable yield, and achieving rebuilding targets” for the fishery. 16 U.S.C. § 1852(g)(1)(A)(B). Based on those recommendations, among other things, the Council must “develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee” unless a separate peer-review process is initiated. 16 U.S.C. § 1852(h)(6).

Under the Service's current Guidelines, the ACL is limited by the Committee's recommendation for “acceptable biological catch” (ABC). In its Guidelines, the Service

[37 F.Supp.3d 260]

reasons that the “recommendation that is the most relevant to ACLs is ABC” because “both ACL and ABC”—unlike other recommended metrics—“are levels of annual catch.” 50 C.F.R. § 600.310(b)(2)(v)(D). ABC is the level of annual catch that would prevent overfishing, buffered below the actual overfishing limit to account for some amount of scientific uncertainty in the Committee's estimates. See id. § 600.310(f)(2)(ii). ACL is usually buffered further below the ABC. Cf. id. § 600.310(f)(2)(iv). Thus, under the Service's Guidelines, “ACL cannot exceed the ABC.” Id. § 600.310(f)(5).

In Framework 50, the Council set and the Service approved ABCs and ACLs for the 2013 fishing year, which stretches from May 2013 to the end of April 2014. See 78 Fed.Reg. at 26,177, 26,181–83; 50 C.F.R. § 648.2 (“Fishing year means ... from May 1 through April 30 of the following year” for the New England groundfish fishery). Initially, Framework 50 set the ACL for each stock below the recommended ABC for the 2013 fishing year. See 78 Fed.Reg. at 26,177, 26,181–83.

Later in Framework 50's implementing rule, however, the Service raised the de facto catch limits for 13 stocks by tacking on allowable “carryover” catch from 2012. See Framework 50 Proposed Rule, 78 Fed.Reg. 19,368, 19,384–85 (Mar. 29, 2013); 78 Fed.Reg. at 26,189. Carryover is, in essence, catch that was allocated to fishers but remained uncaught in the prior fishing year. See 78 Fed.Reg. at 19,384–85. In the groundfish fishery, the majority of catch is assigned based on a sector system, where groups of vessels or “sectors” share an apportionment of certain stocks of fish, known as the sector's Annual Catch Entitlement (ACE) for each stock. See NOAA, Fisheries Service Fact Sheet: Answers to Commonly Asked Sector Management Questions at 1–3 (2009), available at http://goo.gl/XQTp6e. When a portion of a sector's ACE remains uncaught, the sector is allowed to carry over up to 10% of its allocation into the next fishing year. See 50 C.F.R. § 648.87(b)(i)(C). In the Framework 50 rule, the Service clarified that it planned to allow sectors to use the full 10% carryover, as it had in previous years, in addition to the allocated ACL. See 78 Fed.Reg. at 19,384–85; 78 Fed.Reg. at 26,189. It called the new catch limits, which combined ACL and carryover, “total potential catch.” See 78 Fed.Reg. at 19,384.

The 13 new catch limits uniformly exceeded the...