Nat. Resources Def v. Nat. Marine Fisheries
| Decision Date | 24 August 2005 |
| Docket Number | No. 03-16842.,03-16842. |
| Citation | 421 F.3d 872 |
| Parties | NATURAL RESOURCES DEFENSE COUNCIL, INC.; Oceana, Inc., Plaintiffs-Appellants, v. NATIONAL MARINE FISHERIES SERVICE; Donald Evans, Secretary of Commerce; National Oceanic and Atmospheric Administration, Defendants-Appellees, and West Coast Seafood Processors Association; Fishermen's Marketing Association, Defendants-intervenors-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Andrew P. Caputo, Natural Resources Defense Counsel, San Francisco, CA; Sylvia F. Liu, Oceana, Washington, D.C., and Janis Searles, Oceana, Portland, OR, for the plaintiffs-appellants.
David C. Shilton, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C., for the defendants-appellees.
James P. Walsh, Davis Wright Tremaine, LLP, San Francisco, CA, for the defendants-intervenors-appellees.
Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding. D.C. No. CV-02-01650-CRB.
Before D.W. NELSON, W. FLETCHER and FISHER, Circuit Judges.
Appellee National Marine Fisheries Service ("the Agency") set 2002 fishing limits for four species of Pacific groundfish that are commonly sold as "red snapper." Appellant Natural Resources Defense Council ("NRDC"), an environmental organization, brought suit in federal district court challenging the four limits as violating the Magnuson-Stevens Fishery Conservation and Management Act ("the Magnuson Act" or "the Act"), 16 U.S.C. §§ 1801 et seq., which directs that the Agency prevent overfishing; the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 501 et seq., which directs agencies to consider relevant factors in setting such limits; and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., which directs agencies to prepare adequate environmental analyses when undertaking such actions. The district court granted summary judgment to the Agency and intervenor-appellees Fishermen's Marketing Association and West Coast Seafood Processors Association ("Intervenors"). Because we conclude that the 2002 darkblotched rockfish limit was based on an impermissible construction of the Act, we reverse and remand; we affirm the limits as to the other three species.
Congress enacted the Magnuson Act to "conserve and manage the fishery resources found off the coasts of the United States." 16 U.S.C. § 1801(b)(1).1 The Agency is charged with developing and implementing rebuilding plans for overfished fish species. § 1854.2 In 1996, Congress amended the Act by passing the Sustainable Fisheries Act ("SFA"). Pub.L. No. 104-297, 110 Stat. 3559 (1996). The SFA added new requirements to the Act to accelerate the rebuilding of overfished species.
The Act, as amended by the SFA, contains a provision the proper interpretation of which is the main subject of this appeal. Section 1854 of the Act provides in part that when any species is found to be overfished, the Agency must approve a rebuilding plan that:
(A) specif[ies] a time period for ending overfishing and rebuilding the fishery that shall —
(i) be as short as possible, taking into account the status and biology of any overfished stock of fish, the needs of fishing communities, . . . and the interaction of the overfished stock of fish within the marine ecosystem; and
(ii) not exceed 10 years, except in cases where the biology of the stock of fish, [or] other environmental conditions. . . dictate otherwise.
§ 1854(e)(4).
The Act also sets forth a series of "national standards" with which any rebuilding plans must be "consistent," and provides for the establishment of National Standards Guidelines ("NSGs") that must be "based on the national standards" for use in "assist[ing] in the development of fishery management plans." §§ 1851(a), (b). The Act provides that NSGs "shall not have the force and effect of law." Id.
There is some ambiguity to § 1854(e)(4). Section 1854(e)(4)(i) specifies that the rebuilding time period be as "short as possible," but also directs that the Agency "tak[e] into account the status and biology of [the] . . . overfished stock" and "the needs of fishing communities." Section 1854(e)(4)(ii) in turn plainly mandates that the rebuilding plan be no longer than 10 years, so long as biologically or environmentally possible.3 However, if it is not possible to rebuild within 10 years, the Act is not clear as to the exact limits on the length of the rebuilding period.
Seeking to clarify the proper interpretation of § 1854(e)(4), the Agency in 1997 sought "comment on whether or not it is correct in its interpretation that the duration of rebuilding programs should not be unspecified and, if so, what factors should be considered in determining that duration." See 62 Fed.Reg. 67,610 (Dec. 29, 1997). The Agency propounded two alternate interpretations for public comment: that whenever it would take longer than 10 years to rebuild an overfished species, either (1) all fishing of that species would be banned until the rebuilding was complete or (2) the Agency would set a ceiling on the rebuilding duration that would be reached by adding the shortest possible time to rebuild plus "one mean generation time . . . based on the species' life-history characteristics." Id. at 67,609-10. A "mean generation time" is a scientific term, not mentioned in the Act itself measuring how long it will take for an average mature fish to be replaced by its offspring. After notice and comment, the Agency adopted the second interpretation in a NSG ("the 1998 NSG"). See 50 C.F.R. § 600.310(e)(4)(ii)(B). The Agency reasoned that:
[f]or stocks that will take more than 10 years to rebuild, the guidelines [adopted] impose an outside limit that is objective, measurable, and linked to the biology of the particular species. . . . The guidelines strike a balance between the Congressional directive to rebuild stocks as quickly as possible, and the desire . . . to minimize adverse economic effects on fishing communities. For stocks that cannot be rebuilt within 10 years, the guideline allows flexibility in setting the rebuilding schedule beyond the no-fishing mortality period, but places a reasonable, species-specific cap on that flexibility by limiting the extension to one mean generation time.
The Pacific Coast Groundfish Fishery is one of the fisheries the Agency oversees, covering the bottom-feeding fish species dwelling in the waters off the coasts of California, Oregon and Washington. In 2000, the Agency assessed the status of one species of Pacific groundfish within the fishery — darkblotched rockfish. It found that the species was at 22% of its unfished population level (its predicted level absent any fishing), and therefore concluded that the species was "overfished" within the meaning of the Act. 66 Fed.Reg. 2,347, 2349-50 (Jan. 11, 2001). The Agency further concluded that the species could be rebuilt in 10 years or less, triggering § 1854(e)(4)(ii)'s mandatory requirement that the rebuilding take place within 10 years. The Agency then set a 130 metric ton "fishing harvest level," or quota, i.e., a set limit of darkblotched rockfish that could be fished in 2001.
In 2001, the Agency updated its assessment of darkblotched rockfish and concluded that it had significantly overestimated the health of the species. The Agency now estimated that the species was almost twice as depleted as previously thought — it was at only 12% of its unfished population level. In the Agency's calculations, rebuilding therefore could not be accomplished within 10 years; the minimum period for rebuilding was now 14 years.
This increased rebuilding time meant, by necessity, that the rebuilding plan was no longer limited by § 1854(e)(4)(ii)'s mandatory 10-year cap; instead, the only applicable statutory time limit was § 1854(e)(4)(i)'s command that the rebuilding period be "as short as possible." Further, according to the interpretation of the Act set forth in the 1998 NSG, the revised minimum rebuilding period triggered a new ceiling that was the 14-year period plus "one mean generation time," which in the case of the long-lived darkblotched rockfish was 33 years. The Agency, in short, switched from operating under the statutory constraint of 10 years rebuilding time to a new constraint, dictated by the 1998 NSG, of 47 years. The Agency then set a "target" rebuilding time of 34 years, and in accordance with this target, raised the fishing level harvest for 2002 from the previous year's 130 metric tons to 168 metric tons.4
NRDC brought suit alleging that the new quota violated the Act, the Administrative Procedure Act and the National Environmental Policy Act. The district court concluded that the quota violated none of these statutes and granted summary judgment for the Agency. Natural Res. Def. Council, Inc. v. Nat'l Marine Fisheries Serv., 280 F.Supp.2d 1007, 1014-15 (N.D.Cal.2003).
The Agency also set 2002 quotas for three other overfished groundfish species — bocaccio, cowcod and canary rockfish — that were identical to the levels set in 2001, despite evidence that fishing of these overfished species in the prior two years had been significantly higher than that allowed by the previous year's quotas. The Agency reasoned that because it did not have newly available data as to the status of these species (owing to its policy of conducting stock assessments every three years), its response to the evidence of overfishing would be to put in place interim measures (such as establishing no-fishing zones in certain areas),...
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