Healthy Gulf v. Nat'l Marine Fisheries Serv.

• Docket Number: Case No.: DLB-20-1104
• Decision Date: 11 March 2022
• Citation: 590 F.Supp.3d 823
• Parties: HEALTHY GULF, et al., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants.
• Court: U.S. District Court — District of Maryland

590 F.Supp.3d 823

HEALTHY GULF, et al., Plaintiffs,

v.NATIONAL MARINE FISHERIES SERVICE, et al., Defendants.

Case No.: DLB-20-1104

United States District Court, D. Maryland.

Signed March 11, 2022

Khushi K. Desai, Earthjustice, Washington, DC, Andrea A. Treece, Pro Hac Vice, Earthjustice, San Francisco, CA, Shana E. Emile, Pro Hac Vice, Earthjustice, Seattle, WA, for Plaintiffs.

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

MEMORANDUM OPINION

Deborah L. Boardman, United States District Judge

Plaintiffs Healthy Gulf, a non-profit organization "focused on empowering people to protect and restore the natural resources of the Gulf of Mexico," and Turtle Island Restoration Network, a non-profit organization that advocates for oceans and marine wildlife, initiated this action against the National Marine Fisheries Service ("NMFS"),¹ the National Oceanic and Atmospheric Administration ("NOAA"), and the Secretary of Commerce.² ECF 1, ¶¶ 1, 15, 16. Plaintiffs seek review of a final rule issued by NMFS that, among other actions, opened previously restricted areas in the Gulf of Mexico and Northeastern United States to pelagic longline fishing. See Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries; Pelagic Longline Fishery Management , 85 Fed. Reg. 18,812 (Apr. 2, 2020) (codified at 50 C.F.R. pt. 635) ("Bluefin Bycatch Rule" or "Final Rule"); Administrative Record ("AR") 000001–32. In their complaint, plaintiffs allege NMFS (i) violated the Administrative Procedure Act's ("APA") requirement that the agency consider all factors relevant to and articulate a rational basis for the Final Rule (Count I); (ii) failed to comply with the Magnuson-Stevens Fishery Conservation and Management Act's ("MSA") National Standard Two, 16 U.S.C. § 1851(a)(2), requiring that the Final Rule be based upon the best available scientific information (Count II); (iii) violated the MSA's National Standard One, 16 U.S.C. § 1851(a)(1), by failing to formulate the Final Rule to "prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery" (Count III); (iv) violated section 971d(c) of the Atlantic Tunas Convention Act ("ATCA") by designing the Final Rule "contrary to the purposes and objectives" of the International Commission for the Conservation of Atlantic Tunas ("ICCAT") (Count IV); (v) violated section 4332(C) of the National Environmental Policy Act ("NEPA") by failing to take a hard look at the impact of the Final Rule on Western Atlantic bluefin tuna ("bluefin") and other nontarget species (Count V); and (vi) violated the APA by improperly invoking the good cause exception to make the Final Rule effective on the same day it was promulgated (Count VI). ECF 1, ¶¶ 86–134. This matter is before the Court on the parties’ cross-motions for summary judgment. ECF 18 & 21. Both parties have replied, ECF 23 & 24, so the matter is ripe for disposition, Loc. R. 105.2(c) (D. Md. 2021). After thorough consideration of the parties’ briefing and the Administrative Record, the Court denies plaintiffs’ motion for summary judgment, grants defendants’ cross-motion for summary judgment as to Counts I, II, III, IV and V, and dismisses Count VI for lack of standing.

I. Background

Bluefin are a highly migratory species whose migratory routes range thousands of miles across the North Atlantic and its adjacent waters, from Mexico to Canada. International Commission for the Conservation of Atlantic Tunas, Report of the Standing Committee on Research and Statistics 98 (October 2017) ("2017 ICCAT SCRS Report"), AR 028550. Bluefin are the largest species of tuna, with adult fish reaching more than 10 feet in length and weighing more than 1,500 pounds. Id. at 99, AR 028551. Their primary spawning grounds are in the Gulf of Mexico between March and June, peaking between April and May. NMFS, Final Regulatory Amendment to Modify Pelagic Longline Bluefin Tuna Area-Based and Weak Hook Management Measures 47 (January 2020) ("Final Regulatory Amendment"),³ AR 000097; ECF 18-2, at 9. Scientists believe mature bluefin head north from June to March to "follow an annual cycle of foraging off the eastern United States and Canadian coasts." Final Regulatory Amendment at 47, AR 000097. Bluefin are very economically valuable, particularly for use in sushi. The bluefin population, also called stock or biomass, has declined precipitously since 1950. 2017 ICCAT SCRS Report at 120, AR 028572.

The United States’ bluefin fishery is managed by NMFS, which issues "fishery management plans" pursuant to the MSA. 16 U.S.C. § 1853 ; see, e.g. , NMFS, Highly Migratory Species Management Division, Office of Sustainable Fisheries, Final Fishery Management Plan For Atlantic Tuna, Swordfish, and Sharks (Apr. 1999) ("Final FMP 1999"), AR 019775 – 020662. The plans must contain 15 different elements, including descriptions of conservation and management measures, descriptions of the fishery, and assessments of the maximum sustainable and optimum yields of the fisheries. 16 U.S.C. § 1853(a). The plans may contain other sections, including designations of "zones where, and periods when, fishing shall be limited, or shall not be permitted, or shall be permitted only by specified types of fishing vessels or with specified types and quantities of fishing gear." Id. § 1853(b)(2)(A). All fishery management plans, moreover, "shall be consistent with" ten "national standards for fishery conservation and management." Id. § 1851(a). For example, National Standard One requires that all fishery management plans be consistent with "[c]onservation and management measures" that "prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry." Id. § 1851(a)(1).

Fishery management is laden with terms of art that are relevant here. "Overfishing" and "overfished" "mean a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis." Id. § 1802(34). Maximum sustainable yield ("MSY") is "[t]he largest average catch or yield that can continuously be taken from a stock under existing environmental conditions." NOAA, NMFS-F/SPO-69, NOAA Fisheries Glossary 28 (June 2006). Optimum yield, in contrast,

means the amount of fish which—(A) will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems; (B) is prescribed on the basis of the [MSY] from the fishery, as reduced by any relevant social, economic, or ecological factor; and (C) in the case of an overfished fishery, provides for rebuilding to a level consistent with producing the [MSY] in such fishery.

16 U.S.C. § 1802(33). Catch-per-unit effort ("CPUE") means "catch per 10,000 hooks" set. Final Regulatory Amendment at 58, AR 000108. Recruitment is defined as "[t]he amount of fish added to the exploitable stock each year due to growth and/or migration into the fishing area. For example, the number of fish that grow to become vulnerable to the fishing gear in one year would be the recruitment to the fishable population that year." NOAA Fisheries Glossary at 39. The "term [recruitment] is also used in referring to the number of fish from a year class reaching a certain age. For example, all fish reaching their second year would be age 2 recruits." Id. at 40. Fishing mortality, which is expressed by the letter "F," "is roughly the proportion of the fishable stock that is caught in a year." Id. at 17. F_0.1 is "[t]he fishing mortality rate [at] which the increase in yield per recruit in weight for an increase of unit of effort is only 10 percent of the yield per recruit produced by the first unit of effort on the unexploited stock." Id. at 17–18.

NMFS implements recommendations made by ICCAT. "Since 1966, ICCAT has been responsible for international conservation and management of tuna ...." Final FMP 1999 at 1-29, AR 019837. "The conservation and management recommendations of ICCAT include total allowable catches, ["TACs"], sharing arrangements for member countries, minimum size limits, effort controls, time/area closures, trade measures, compliance measures, and monitoring and inspection programs." Id. , AR 019837. Generally, the United States takes the TAC permitted by ICCAT and distributes it according to a codified formula to seven domestic sub-quota categories: four directed fishery categories (general, angling, harpoon, and purse seine), two incidental catch categories (longline and trap), and a reserve category. 50 C.F.R. § 635.27(a) (2018).

Over time, different management measures have been used in the bluefin fishery. During the 1980 winter and spring fishing season in the Gulf of Mexico, NMFS "became aware that ... a number of U.S. longline vessels fishing for swordfish began to land increasing quantities of giant Atlantic bluefin tuna." Atlantic Bluefin Tuna , 46 Fed. Reg. 8,012, 8,013 (Jan. 26, 1981) (codified at 50 C.F.R. pt. 285, AR 019758. Longlining is a fishing method that involves a primary fishing line, extending horizontally for five to 40 miles, from which dangle many shorter lines with baited hooks. 50 C.F.R. § 635.2. Generally, "20 to 30 hooks per mile are attached to the [primary fishing line, or] mainline." ECF 21–2, at 11. NMFS was "concerned that [the bluefin population] [was] not strong enough to withstand additional heavy fishing pressure; and that the development of a new directed fishery for Atlantic bluefin tuna [was] contrary to [its] ICCAT commitments." Atlantic Bluefin Tuna , 46 Fed. Reg. at 8,013, AR 019758. Thus, since 1981, NMFS has prohibited fishermen from using pelagic longline gear to target, or fish directly for, bluefin. Id. at 8,012, AR 019757–60.

Due to other sources of fishing pressure, in 1997, NMFS determined bluefin were overfished. Final Regulatory Amendment at 40, AR 000090. In ...