Nat'l Resource Defense Council v. Daley, No. 99-5308

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Edwards
• Citation: 209 F.3d 747
• Parties: (D.C. Cir. 2000) Natural Resources Defense Council, Inc., et al., Appellants v. William M. Daley, In his official capacity as Secretary of the United States Department of Commerce, et al., Appellees Pacific Marine Conservation Council and Alaska Marine Conservation Council, Amicus Curiae
• Docket Number: No. 99-5308
• Decision Date: 25 April 2000

Page 747

209 F.3d 747 (D.C. Cir. 2000) Natural Resources Defense Council, Inc., et al., Appellants
v.
William M. Daley, In his official capacity as Secretary of the United States Department of Commerce, et al., Appellees Pacific Marine Conservation Council and Alaska Marine Conservation Council, Amicus Curiae No. 99-5308 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued March 24, 2000
Decided April 25, 2000

Page 748

Appeal from the United States District Court for the District of Columbia(No. 99cv00221)

Monica B. Goldberg argued the cause for appellants. With her on the briefs were Stephen E. Roady, Eric A. Bilsky, and Sarah Chasis.

Deborah A. Sivas was on the brief for amicus curiae Pacific Marine Conservation Council and Alaska Marine Conservation Council.

James Eichner, Attorney, United States Department of Justice, argued the cause for appellees. With him on the brief were Lois J. Schiffer, Assistant Attorney General, and David C. Shilton, Attorney.

Before: Edwards, Chief Judge, Henderson, Circuit Judge, and Buckley, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge Edwards.

Edwards, Chief Judge:

Paralichthys dentatus, or summer flounder, a commercially valuable species of flounder, dwell off the Atlantic coast and are harvested primarily between May and October from North Carolina to Maine. The summer flounder fishery is an "overfished" fishery, in the process of recovering from severe depletion prevalent during the late 1980s and early 1990s. The Secretary of Commerce, advised by the National Marine

Page 749

Fisheries Service ("the Service"), the principal appellee in this case, annually sets a fishing quota limiting each year's summer flounder catch, pursuant to the Magnuson-Stevens Fishery Conservation and Management Act ("the Fishery Act"), 16 U.S.C. SS 1801-1883 (1994 & Supp. IV 1998). This case involves appellants' challenge to the Service's quota for the 1999 summer flounder harvest.

Before the District Court, appellants alleged that the 1999 quota did not provide sufficient assurance that it would meet the conservation goals of the Fishery Act and attendant regulations. Appellants also claimed that the Service's conclusion that the quota had no significant environmental impact was based on an inadequate environmental assessment, thereby violating the National Environmental Policy Act ("NEPA"). On cross-motions for summary judgment, the District Court granted judgment in favor of appellees. See Natural Resources Defense Council, Inc. v. Daley, 62 F. Supp. 2d 102 (D.D.C. 1999).

We reverse the District Court and remand the case to the Service for further proceedings consistent with this opinion. The 1999 quota, when adopted, had a documented 18% likelihood of meeting the statute's conservation goals. We hold that, under the Fishery Act, the disputed quota is insufficient to meet Congress' mandate to the Service to prevent over-fishing and to assure that specific conservation goals are met. We also hold that the Service's proposal to supplement the quota with other purportedly protective measures does not satisfactorily ameliorate the quota's glaring deficiencies. Because of our disposition on these grounds, we have no need to reach appellants' NEPA claims.

I. BACKGROUND

A. Regulatory Background

The Fishery Act was enacted to establish a federal-regional partnership to manage fishery resources. Under the statute, there are eight Regional Fishery Management Councils "to exercise sound judgment in the stewardship of fishery resources." 16 U.S.C. SS 1801(b)(5), 1852(a) (Supp. IV 1998).Management Councils propose and monitor fishery management plans "which will achieve and maintain, on a continuing basis, the optimum yield from each fishery." Id. S 1801(b)(4) (1994). Management Councils submit management plans to the Secretary of Commerce (functionally the Service), who may then adopt them through notice and comment rulemaking. See id. S 1854(a) (Supp. IV 1998). An "optimum yield" under the statute is defined as the "maximum sustainable yield from the fishery." Id. S 1802(28)(B) (Supp. IV 1998).If a fishery is "overfished," the management plan must "provide[ ] for rebuilding to a level consistent with" the maximum sustainable yield. Id. S 1802(28)(C). A fishery is "overfished" if the rate of fishing mortality "jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis." Id. S 1802(29).

The Service defines overfishing and optimum yield according to the fishing mortality rate ("F"). F represents that part of a fish species' total mortality rate that is attributable to harvesting by humans, whether through capture or discard. Fish are "discarded" for many reasons, including, for example, when they are the wrong species, undersized, or not valuable enough. Values for F can range anywhere from 0 to over 2, and only indirectly represent the amount of fish captured by industry. For instance, an F of 1.4 means that about 20% of all summer flounder that are alive at year 1 will be alive at year 2. There is a specific F, termed "Fmax," that is defined as that fishing mortality rate that will maximize the harvest of a single class of fish over its entire life span. Overfishing is fishing in excess of Fmax. See Amendment 7 To The Fishery Management Plan for The Summer Flounder Fishery at 9 (May 1995), reprinted in Joint Appendix ("J.A.") 316. Therefore, the basic goal of a management plan is to achieve Fmax, thereby preventing overfishing and assuring optimum yield.

Page 750

B.The Summer Flounder Fishing Quota

From a commercial standpoint, the summer flounder is one of the most important species of flounder in the United States. All parties agree that the summer flounder fishery is "overfished" and has been for some time. The Mid-Atlantic Fishery Management Council ("MAFMC"), covering New York, New Jersey, Delaware, Pennsylvania, Maryland, Virginia, and North Carolina, developed the original summer flounder management plan with the assistance of two other regional Management Councils and the Atlantic States Marine Fisheries Commission ("the Commission"), a consortium of 15 coastal states and the District of Columbia. The Service approved the original management plan in 1988;however, the Service has amended the plan several times. At the time relevant to the instant case, the plan was designed to achieve a fishing mortality rate equal to Fmax by 1998.

Pursuant to the management plan, the Service must set a quota each year fixing the total weight of summer flounder that may be harvested by commercial and recreational fishers. This quota is referred to as the "total allowable landings" for the year, or "TAL." The Service allocates 60% of the TAL to commercial fisheries and 40% of the quota to recreational fisheries, and states receive allocations based upon their share of the summer flounder fishery. States may subdivide their allocated commercial quota between "incidental" and "directed" catch. Directed fisheries intentionally harvest summer flounder. Fishers who catch juvenile flounder, or who are part of the directed fishery for another species and catch summer flounder unintentionally, have harvested incidental catch.

The TAL must meet several requirements. It must be consistent with the 10 national standards of fishery conservation and management set out in the Fishery Act. See 16 U.S.C. § 1851(a)(1)-(10) (1994 & Supp. IV 1998). Most relevant to the instant case, the quota must embody conservation measures that "shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry." Id. S 1851(a)(1) (1994). The quota must also be "consistent with" the fishery management plan. See id. S 1854(b)(1). Finally, under the applicable regulations, the Regional Administrator of the Service must annually adopt a final rule "implement[ing] the measures necessary to assure that the applicable specified F will not be exceeded." 50 C.F.R. § 648.100(c) (1999) (emphasis added).The "applicable specified F" is also referred to as the "target F."

There is a relatively direct relationship between the TAL and the likelihood of achieving the target F. In general, the higher the TAL, the less likely a plan is to achieve the target F. In other words, the lower the target F, the lower the TAL must be to attain the target F. The basic dispute between the parties concerns whether the 1999 TAL provides a sufficient guarantee that the target F for summer flounder will be achieved.

For 1999, the summer flounder fishery management plan mandated a target F equivalent to Fmax, which was 0.24. The Summer Flounder Monitoring Committee, a MAFMC committee, had recommended a TAL of 14.645 million pounds, while MAFMC had recommended a TAL of 20.20 million pounds. The Service rejected MAFMC's recommendation as "unacceptably risk-prone" for several reasons: (1) it had an "unacceptably low probability" of 3% of achieving the target F; (2) it had a 50% probability of achieving an F of 0.36, which was "significantly higher" than the target F; (3) the proposal relied on unpredictable data; and (4) MAFMC had "yet to specify a harvest level that has achieved the annual target F." Fisheries of the Northeastern United States; Summer Flounder, Scup, and Black Sea Bass Fisheries, 63 Fed. Reg. 56,135, 56,136 (1998) (to be codified at 50 C.F.R. pt. 648) (proposed Oct. 21, 1998) ("Proposed TAL"). The Service also rejected the

Page 751

Summer Flounder Monitoring Committee's recommendation of a 14.645 million pound TAL. Although the Committee's recommendation had a 50% chance of achieving the target F, the Service rejected the proposal without any meaningful explanation.

On October 21, 1998, the Service proposed a TAL of 18.52 million pounds. See id. All parties agree that, at most, the Service's proposal afforded only an 18% likelihood of achieving the target F. The Service also...