Natural Res. Def. Council v. Nat'l Marine Fisheries Serv.

• Decision Date: 14 October 2014
• Docket Number: Civil Action No. 12–cv–0938 KBJ
• Citation: 71 F.Supp.3d 35
• Court: U.S. District Court — District of Columbia
• Parties: Natural Resources Defense Council, et al., Plaintiffs, v. National Marine Fisheries Service, et al., Defendants.

71 F.Supp.3d 35

Natural Resources Defense Council, et al., Plaintiffs

v.National Marine Fisheries Service, et al., Defendants.

Civil Action No. 12–cv–0938 KBJ

United States District Court, District of Columbia.

Signed October 14, 2014

David Newman, Natural Resources Defense Council, Inc., New York, NY, Michael E. Wall, Natural Resources Defense Council, Chicago, IL, Aaron S. Colangelo, Natural Resources Defense Council, Ivy Fredrickson, Ocean Conservancy, Washington, DC, Elizabeth B. Forsyth, Natural Resources Defense Council, San Francisco, CA, Andrew E. Hartsig, Ocean Conservancy, Anchorage, AK, for Plaintiffs.

Kevin W. McArdle, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

The federal government has been gravely concerned about the depletion of fish in the waterways off the coast of the United States as a result of fishing activity since at least the mid–1970s, when Congress enacted the Magnuson–Stevens Fishery Conservation and Management Act. Pub.L. No. 94–265, 90 Stat. 352 (1976) (codified as amended at 16 U.S.C. § 1801 et seq . (2012) ). The Magnuson–Stevens Act seeks to “promote domestic commercial and recreational fishing” while employing “sound conservation and management principles” in order to ensure “the optimum yield from each fishery.” Id. § 1801(b)(3)–(4). The instant case arises from an attempt by the National Marine Fisheries Service (“NMFS”) to pursue the twin aims of the Magnuson–Stevens Act in relation to the speckled hind and the warsaw grouper—two species of fish that live in the deep waters of the Atlantic Ocean and that are especially vulnerable to being “subjected to a level of fishing mortality” that threatens the capacity of each stock to replenish its population levels. 50 C.F.R. § 600.310(e)(2)(i)(B) (describing this phenomenon and labeling it “overfishing”).

In December of 2010, the NMFS promulgated a regulation that banned outright the catching and retention of speckled hind and warsaw grouper, which had been listed as undergoing overfishing since 1997. In addition, because scientific research suggested that these particular stocks of fish would nevertheless continue to be endangered as a result of their accidental or incidental catch when fishermen in the region targeted other deep water species (a circumstance known as “bycatch”), the NMFS also prohibited the targeting of six other species of fish that the NMFS then believed “co-occurred” (i.e., lived) with the speckled hind and the warsaw grouper in certain deep water areas of the South Atlantic Snapper–Grouper Fishery. In May of 2012, the NMFS reconsidered its co-occurrence findings and reversed course, enacting Regulatory Amendment 11, which lifted the prohibition related to the targeting of the six other deep water stocks. Plaintiffs Natural Resources Defense Council and Ocean Conservancy (“Plaintiffs”)—nonprofit environmental protection organizations that strenuously object to the NMFS's change in policy—have filed this action against the NMFS, the National Oceanic and Atmospheric Administration (“NOAA”), the Department of Commerce, and the Secretary of the Department of Commerce (collectively, “Defendants”) to challenge Regulatory Amendment 11 on the grounds that it violates the Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq., as well as the Magnuson–Stevens Act itself.

Before this Court at present are the parties' cross motions for summary judgment. Plaintiffs assert that the undisputed administrative record establishes that the NMFS lifted the six-stock deep water prohibition largely due to pressure from fishing communities that stood to profit greatly if fishing for the six other species was permitted once again; thus, according to Plaintiffs, Regulatory Amendment 11 was arbitrary and improper. Defendants maintain that, although economic considerations did factor into the agency's decision, NMFS's primary reason for lifting the prohibition was its reasonable and well-supported determination that because the six stocks of fish do not, in fact, co-occur with speckled hind and warsaw grouper, the six-stock deep water prohibition was an ineffective conservation measure.

On September 30, 2014, this Court issued an Order announcing that Plaintiffs' motion for summary judgment is DENIED and Defendants' cross-motion for summary judgment is GRANTED . (Order, ECF No. 46.) In the instant Memorandum Opinion, the Court explains the reasoning behind that ruling. In short, after reviewing the record and the parties' submissions and hearing oral argument on the motions, this Court has determined that the NMFS adopted Regulatory Amendment 11 based on a reasonable analysis of the available data and that the agency sufficiently explained its change in policy. Moreover, it is clear to this Court that the NMFS's conclusion that the six-stock deep water prohibition should be repealed is not inconsistent with the tenets of the Magnuson–Stevens Act.

I. BACKGROUND

Plaintiffs' challenge to Regulatory Amendment 11 arises out of the “complicated statutory and regulatory system governing [ ] federal fisheries.” Lovgren v. Locke, 701 F.3d 5, 13 (1st Cir.2012).¹ A brief description of the federal fishery management scheme is warranted, because a basic understanding of the applicable laws and regulations—and, in particular, how such federal restrictions on fishing activity are developed and adopted—is necessary for full comprehension of the NMFS action that is being challenged here.

A. The Federal Fishery Management System

Congress enacted the Magnuson–Stevens Act in 1976 to address the combination of increased fishing activity in certain coastal areas (known as “fishing pressure”), habitat losses, and inadequate conservation and management practices that threatened the survival of certain stocks of fish. See 16 U.S.C. § 1801(a)(2).² When it amended the Magnuson–Stevens Act in 2006, Congress reiterated its intent to continue to “conserve and manage [U.S.] fishery resources,” and to “promote domestic commercial and recreational fishing under sound conservation and management principles.” Id. § 1801(b)(1)–(3) ; see also NRDC v. Nat'l Marine Fisheries Serv., 421 F.3d 872, 879 (9th Cir.2005) (“The Act sets this priority in part because the longer-term economic interests of fishing communities are aligned with the conservation goals set forth in the Act. Without immediate efforts at rebuilding depleted fisheries, the very long-term survival of those fishing communities is in doubt.”) (citations omitted).³

To accomplish these goals, the Magnuson–Stevens Act defined a federal fisheries conservation zone that extends between three nautical miles and two hundred nautical miles off the coast of the United States. Within this zone, federal authorities administer a fishing conservation and management program designed to prevent overfishing and to rebuild depleted stocks. This conservation and management program is developed through the cooperation of local, state, and federal government officials, and also other major stakeholders, including members of the commercial and recreational fishing industries and environmental and consumer organizations. Id. §§ 1801(b)(5); id. § 1852(b)(1)–(2). Because members of Congress tended to believe that “[t]he demise of the United States fisheries in the past is more accurately attributable to non management rather than to mis management,” the Magnuson–Stevens Act was specifically designed to offer the federal government “the tools for truly effective management” of the fishing activity in our nation's coastal waters. Warren G. Magnuson, The Fishery Conservation and Management Act of 1976: First Step toward Improved Management of Marine Fisheries, 52 Wash. L.Rev. 427, 428 (1976–1977) (emphasis added).

Under the Magnuson–Stevens Act, Congress has designated the Secretary of Commerce as the manager of the fishery conservation and management program but in practice, the Secretary delegates his authority to the NMFS, which is a sub-agency of the NOAA within the Department of Commerce. See N.C. Fisheries Ass'n v. Gutierrez, 518 F.Supp.2d 62, 70–71 (D.D.C.2007) ; Flaherty v. Bryson, 850 F.Supp.2d 38, 43 n. 2 (D.D.C.2012) ; Fishermen's Finest v. Locke, 593 F.3d 886, 889 (9th Cir.2010). In its role as the manager of the fisheries in America's coastal waters, the NMFS has a number of tools at its disposal.

1. Regional Fishery Management Councils And Fishery Management Plans

The NMFS's most important resource under the Magnuson–Stevens Act is eight “Regional Fishery Management Councils.” The Fishery Management Councils are boards that are meant to “reflect the expertise and interest of the several constituent States in the ocean area over which such Council is granted authority.” 16 U.S.C. at § 1852(a)(2). Accordingly, the Act requires the Secretary to appoint individuals to the Regional Fishery Management Councils who “by reason of their occupational or other experience, scientific expertise, or training, are knowledgeable regarding the conservation and management, or the commercial or recreational harvest, of the fishery resources of the geographical area concerned.” Id. § 1852(b)(2)(A). To meet the goal of broad-based participation by relevant stakeholders, the councils' membership is drawn from the commercial and recreational fishing industries, and also environmental and consumer organizations, in addition to local, state, and federal officials. Id. §§ 1801(b)(5), 1852(b)(1)–(2).

The most significant responsibility of the Fishery Management Councils under the Magnuson–Stevens Act is the drafting of “Fishery Management Plans.” Id. § 1852(h)(1). Fishery Management Plans include data analyses and management measures for a fishery. Essentially they are recommendations to the Secretary of Commerce on the allocation of resources: the plans describe the environmental and economic status of the fishery and propose conservation and management measures that...