Natural Resources Defense Council, Inc. v. Evans

• Decision Date: 13 January 2003
• Docket Number: No. 01-17143.,01-17143.
• Citation: 316 F.3d 904
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, INC.; The Center for Marine Conservation, Inc., Plaintiffs-Appellees, v. Donald EVANS, Secretary of Commerce; The National Marine. Fisheries Service; National Oceanic and Atmospheric Administration, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

316 F.3d 904

NATURAL RESOURCES DEFENSE COUNCIL, INC.; The Center for Marine Conservation, Inc., Plaintiffs-Appellees, v. Donald EVANS, Secretary of Commerce; The National Marine Fisheries Service; National Oceanic and Atmospheric Administration, Defendants-Appellants.

No. 01-17143.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 4, 2002.

Filed January 13, 2003.

Todd S. Kim, U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C., for the defendants-appellants.

Andrew P. Caputo, Natural Resources Defense Council, Inc., San Francisco, California, for the plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of California; James Larson, Magistrate Judge, Presiding. D.C. No. CV-01-00637-JL.

Before RYMER, THOMAS and SILVERMAN, Circuit Judges.

RYMER, Circuit Judge.

This appeal requires us to decide whether the Secretary of Commerce, acting through the National Marine Fisheries Service (NMFS), must provide notice and the opportunity for public comment before issuing specifications and management measures for the Pacific Coast Groundfish Fishery.

The Natural Resources Defense Council, Inc. (NRDC) and The Center for Marine Conservation, Inc., challenged NMFS's specifications and management measures for 2001 on the footing that they are subject to the notice and comment requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act), 16 U.S.C. §§ 1801-1883, and the Administrative Procedure Act (APA), 5 U.S.C. § 553(b)-(c), but that no such opportunity was given. The district court ruled that notice and comment was required by the Magnuson Act, and prospectively by the APA because NMFS had not properly invoked the statutory exception allowing agencies to forgo this requirement upon a showing of good cause. The Secretary of Commerce, NMFS, and the National Oceanic and Atmospheric Administration appeal.

We conclude that NMFS's recitation of good cause in 2001 was inadequate to excuse compliance with the APA's notice and comment requirement. As we have previously indicated, good cause requires some showing of exigency beyond generic complexity of data collection and time constraints; notice and comment must interfere with the agency's ability to fulfill its statutory mandate to manage the fishery. See Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479 (9th Cir.1992); Cal-Almond, Inc. v. United States Dep't of Agriculture, 14 F.3d 429 (9th Cir.1993). Given our determination that notice and comment was required under the APA for 2001, we do not need to decide whether it was also required under the Magnuson Act. Accordingly, we affirm the judgment in part and vacate in part.

I

In 1976, Congress enacted the Magnuson Act as a response to overfishing and inadequate conservation measures that were threatening future commercial and recreational fishing, as well as the survival of a number of species of fish. See 16 U.S.C. § 1801(a). Among the purposes of the Magnuson Act are providing for "fishery management plans which will achieve and maintain, on a continuing basis, the optimum yield from each fishery," 16 U.S.C. § 1801(b)(4), and establishing Regional Fishery Management Councils to "prepar[e], monitor[], and revis[e] such plans." 16 U.S.C. § 1801(b)(5). The Secretary of Commerce (Secretary), acting through NMFS,¹ is responsible for reviewing fishery management plans (FMPs) and amendments to the plans for consistency with ten national standards set forth in 16 U.S.C. § 1851(a) and "any other applicable law." 16 U.S.C. § 1854(a)(1)(A). If approved, the Secretary publishes notice of the FMP or amendment in the Federal Register and promulgates regulations implementing the plan after a 60-day statutory comment period. 16 U.S.C. § 1854(a).

Likewise, the Secretary is responsible for evaluating "proposed regulations" submitted by the Regional Councils for consistency with the accompanying FMP and "any other applicable law," and must publish approved regulations in the Federal Register for a public comment period of 15 to 60 days before promulgating final regulations. 16 U.S.C. § 1854(b). The "proposed regulations" subject to this notice and comment provision are those "which the Council deems necessary or appropriate for the purposes of (1) implementing a fishery management plan or plan amendment" and "(2) making modifications to regulations implementing a fishery management plan or plan amendment." 16 U.S.C. § 1853(c). In addition, actions taken by NMFS constituting "rulemaking" under the APA are also subject to that statute's notice and comment provision, unless they qualify for one of the exceptions contained in that provision. See 5 U.S.C. § 551(5) (defining rulemaking under the APA as "agency process for formulating, amending, or repealing a rule"); 5 U.S.C. § 553. Final regulations promulgated by the Secretary, as well as "actions that are taken by the Secretary under regulations which implement a fishery management plan," are subject to judicial review. 16 U.S.C. § 1855(f).

In 1982, NMFS issued informal guidelines for preparing "framework fishery management plans and amendments" (framework FMPs), claiming that the review and implementation process provided by the Magnuson Act and other requirements of law was "often too slow for effective fishery management." As proposed by NMFS, framework FMPs would contain instructions to enable the Secretary to "make such changes as are needed from time to time to manage the fishery in accordance with the FMP", while still providing for participation by the Regional Councils.

The Pacific Fishery Management Council (Pacific Council) is authorized to prepare plans for the fisheries off the coasts of Washington, Oregon, California, and Idaho. 16 U.S.C. § 1852(a)(1)(F). In 1990, the Pacific Council proposed an amendment to the Pacific Coast Groundfish FMP (Groundfish FMP) adopting framework procedures (Amendment 4). NMFS subsequently approved the amendment, published it as a proposed rule, and, following the period for public comment, published the implementing regulations as a final rule in the Federal Register in January 1991. See 55 Fed. Reg. 38,105 (Sept. 17, 1990) (proposed rule); 56 Fed. Reg. 736 (Jan. 8, 1991) (final rule); see also 61 Fed. Reg. 34,570 (July 2, 1996) (reorganizing these regulations).

The annual management cycle described by the Groundfish FMP as modified by Amendment 4 consists of several steps taken in preparation for the next calendar year (which begins on January 1st). See 50 C.F.R. 660.302. The Pacific Council first gathers information about the state of the fishery throughout the year, then holds a public meeting in September at which, based upon the best available stock assessment information and public comment, it develops preliminary recommendations applicable to the following year. After the first meeting, the Pacific Council provides a summary of its preliminary recommendations and their basis to the public, and notifies the public of its intent to develop final recommendations at its second meeting, usually in November. At the second meeting the Pacific Council considers public testimony and adopts final recommendations for NMFS regarding harvest levels for each major fish species, as well as management measures such as gear regulations and trip frequency.² The Secretary then reviews the submission and, if approved, publishes a notice in the Federal Register making the Council's recommendations effective January 1st of the upcoming fishing year. The Groundfish FMP anticipates that the Secretary will "waive for good cause the requirement for prior notice and public comment in the Federal Register," as the Council process "will adequately satisfy that requirement."

The Pacific Council and NMFS³ followed these procedures in recommending and issuing the specifications and management measures for 2001. That is, after holding two public meetings in September and October 2000, the Pacific Council submitted to NMFS its recommended specifications and management measures on December 13, 2000. NMFS approved the recommendations and published them in the Federal Register on January 11, 2001, stating that they were effective as of January 5, 2001, but inviting public comment through February 12, 2001. See 2001 Groundfish Fishery Specifications and Management Measures, 66 Fed. Reg. 2338 (Jan. 11, 2001). NMFS asserted there was good cause to waive prior notice and the opportunity for public comment under the APA on the grounds that delay in implementing management measures could be harmful to stock, that much of the data comes from the current year, and that these timing issues, together with the need to have the specifications and management measures in place by the beginning of the fishing year, were accommodated by the scheme adopted in Amendment 4.⁴ NMFS further represented that prior notice and comment were not required "by any other law." NMFS has employed the same rationale for invoking the good cause exception since the adoption of framework procedures in 1991.⁵

On February 12, 2001, NRDC submitted a comment to NMFS that challenged the 2001 specifications and management measures as failing to take adequate account of bycatch mortality for the "severely overfished" bocaccio and lingcod fish populations, which resulted in setting inflated fishing harvest levels for these two species.⁶ NRDC also claimed that NMFS violated the notice and comment provision of the Magnuson Act. On May 4, 2001, NMFS published "Corrections to Lingcod and Bocaccio Specifications," which adopted discard rate assumptions for lingcod and bocaccio and lowered the fishing harvest levels for these species. See Correction to the 2001 Specifications, 66 Fed. Reg. 22,467, 22,469 (May 4, 2001).

On January 25 and February 9, 2001, the NRDC and other plaintiffs filed two suits challenging, among other things, the validity of the 2001 groundfish specifications...