Groundfish Forum v. Ross
| Decision Date | 21 March 2019 |
| Docket Number | Civil Action No. 16-2495 (TJK) |
| Citation | 375 F.Supp.3d 72 |
| Parties | The GROUNDFISH FORUM et al., Plaintiffs, v. Wilbur L. ROSS et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Ashley J. Remillard, Pro Hac Vice, Nossaman LLP, Irvine, CA, Linda R. Larson, Nossaman LLP, Seattle, WA, for Plaintiffs.
Hao-Chin Hubert Yang, Lesley Karen Lawrence-Hammer, U.S. Department of Justice Environmental and Natural Resources, Washington, DC, for Defendants.
As part of its responsibility over the management of marine resources, the National Marine Fishery Service ("the Service") adopts and implements fishery management plans designed to promote the conservation and sustainable use of the Nation's fisheries. After promulgating these plans, the Service then periodically amends them, often in response to changes in the industry, the environment, or the applicable regulatory and legal framework. In 2016, the Service adopted just such an amendment—Amendment 113—to the management plan for Pacific cod in the Bering Sea and Aleutian Islands archipelago. The Service concluded that previous conservation measures had led to more vessels in the region processing their catch at sea, and fewer vessels delivering catch to onshore processing plants in two nearby island fishing communities—Adak and Atka. To mitigate that impact and allow those communities to develop sustainable cod-processing enterprises, Amendment 113 sets aside a portion of the Pacific cod fishery off the coast of the Aleutian Islands each year for exclusive harvest by vessels that intend to deliver their fish to onshore processing plants located within the specific geographic span of the Aleutian Islands that encompasses Adak and Atka.
Several trade associations and commercial fishing groups operating in the Aleutian Islands region sued to challenge the amendment, arguing that it exceeded the Service's statutory authority under the Magnuson-Stevens Act and is otherwise inconsistent with applicable law. Adak and Atka intervened as defendants. The parties each filed cross-motions for summary judgment. Although the Court finds that the Service did not exceed its statutory authority in imposing a harvest set-aside with an onshore delivery requirement, it nonetheless determines that the Service failed to demonstrate that the amendment satisfied the requisite standards for such regulatory measures set forth by the Magnuson-Stevens Act. Accordingly, and for the reasons explained below, Plaintiffs' motion will be granted, and Defendants' and Intervenors' motions will be denied.1
In 1976, Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act (the "MSA" or "Act"), 16 U.S.C. § 1801 et seq. , with the stated aims, among others, "to conserve and manage the fishery resources" of the United States, "to promote domestic commercial and recreational fishing under sound conservation and management principles," and to prepare and implement "fishery management plans which will achieve and maintain, on a continuing basis, the optimum yield from each fishery." 16 U.S.C. § 1801(b). To achieve these goals, Congress established eight Regional Fishery Management Councils, each of which is "granted authority over a specific geographic region and is composed of members who represent the interests of the states included in that region." C & W Fish Co. v. Fox , 931 F.2d 1556, 1557 (D.C. Cir. 1991) (citing 16 U.S.C. § 1852 ).
Congress has tasked these councils with developing Fishery Management Plans (FMPs), and any later amendments to them, "for each fishery under its authority that requires conservation and management." 16 U.S.C. § 1852(h)(1) ; see also Anglers Conservation Network v. Pritzker , 809 F.3d 664, 667 (D.C. Cir. 2016).2 Each FMP must include, among other things, the "conservation and management measures, applicable to foreign fishing and fishing vessels of the United States, which are ... 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." 16 U.S.C. § 1853(a)(1). The MSA provides an enumerated set of measures that the councils must include in all FMPs, see id. § 1853(a), but it further outlines a set of "[d]iscretionary provisions" that may be included if they are necessary and appropriate for the conservation and management of the fishery, see id. § 1853(b).
FMPs and subsequent amendments, and any regulations promulgated to implement them, must "be consistent with [ten] national standards for fishery conservation and management" (the "National Standards") that Congress outlined in the MSA. Id. § 1851(a); see also id. § 1853(a)(1)(C) (). In particular, these National Standards mandate that the conservation and management measures in each FMP conform to specified objectives and conditions. See id. § 1851(a)(1)–(10). And the Secretary of Commerce, whom Congress granted regulatory authority over fishery conservation and management under the MSA, has established a set of advisory guidelines for developing FMPs and amendments that interpret the National Standards. See 50 C.F.R. §§ 600.305 – .355. These guidelines, while not carrying the force of law, see 16 U.S.C. § 1851(b), are generally afforded considerable deference by courts, see, e.g., Oceana, Inc. v. Locke , 831 F.Supp.2d 95, 116–117 (D.D.C. 2011).
When a council prepares a new FMP or an amendment to an existing FMP, it must submit the proposal to the Service for review to ensure that the FMP or amendment "is consistent with the national standards, the other provisions of [the MSA], and any other applicable law." 16 U.S.C. § 1854(a)(1)(A).3 Following publication of the proposal in the Federal Register and an opportunity for the public to respond, the Service may either "approve, disapprove, or partially approve [the] plan or amendment," depending on its consistency with applicable law. Id. § 1854(a)(3). Only upon approval by the Service and promulgation as a final rule (or failure to approve or disapprove within 30 days) do FMPs or plan amendments—and the conservation and management measures contained in them—become effective. See id. §§ 1854(a) – (b), 1855(d) ; Oceana , 831 F.Supp.2d at 101.
The North Pacific Fishery Management Council ("the Council") is tasked with managing fisheries in the Arctic Ocean, Bering Sea, and Pacific Ocean seaward of Alaska. 16 U.S.C. § 1852(a)(1)(G). Under that authority, the Council has developed an FMP for several species of groundfish in the Bering Sea (BS) and in the waters of the Aleutian Islands (AI) (collectively "BSAI" or the "BSAI region"), see 50 C.F.R. § 679.1(b), including the Pacific cod, AR 1000789.
Pacific cod is one of the most abundant and valuable groundfish species harvested in the BSAI region. AR 1000790. Commercial fishing for BSAI Pacific cod is conducted primarily by either catcher vessels ("CVs"), which harvest the fish for delivery to a processor, or catcher-processors ("CPs"), which are capable of both harvesting fish and then processing the fish on board. Id. Historically, CVs have delivered harvested BSAI cod for processing to both off-shore processors, known as "motherships," and to various onshore processing plants. AR 4002008.
Under the groundfish FMP, the Service regulates fishing for Pacific cod in the region by establishing yearly harvest limitations. In consultation with the Council, the Service specifies a "total allowable catch" (TAC) based on projected overfishing levels and other economic and social factors. AR 1000059–60, 1000790; 50 C.F.R. § 679.20(a), (c). Each year, shares of the BSAI Pacific cod TAC are then allocated to specific "sectors" of the commercial fishery, "defined by a combination of gear type (e.g. , trawl, hook-and-line), operation type (i.e. , CV or CP), and vessel size." AR 1000791; see also 50 C.F.R. § 679.20(a)(7)(ii)(A). These shares are also apportioned by seasons, with the first season of the year labeled the "A season." 50 C.F.R. §§ 679.20(a)(7), 679.23(e)(5). The members of each sector are collectively limited to harvesting only the amount of their TAC allocation for a given season. Id.
At first, the Service managed Pacific cod in the BSAI region as a single stock with one TAC for the whole region. See AR 1000059. But beginning in 2014, the Service split the fishery into a BS stock and an AI stock with separate TACs. Id. Despite this split, the Service continues to allocate portions of the TACs at the BSAI level—that is, sectors are given a share of the combined TACs for the BS stock and the AI stock which they can harvest anywhere in the BSAI region. See AR 4000093; ECF No. 35-2 ("Paine Decl.") ¶ 8.
The Aleutian Islands are dotted with remote fishing communities that have historically participated in the BSAI fishing industry, two of which—the communities of Adak and Atka—are at the center of this matter.
Adak is a small community located on Adak Island in the Aleutians. The community participates in the BSAI Pacific cod fishery by way of a small, locally-owned CV fleet and, relevant to this action, a large processing plant. AR 1000090, 1000793; see also AR 3004834. The plant can process 454 metric tons ("mt") of Pacific cod per day, AR 1000090–91, a considerable amount by the parties' accounts, see Pls.' MSJ at 9–10; Defs.' MSJ at 6; Intervs.' MSJ at 12. And according to city leadership, the community depends significantly on the revenues generated by the plant and ancillary activities of the fishing industry. See AR...
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