Oceana, Inc. v. Evans

Decision Date02 August 2005
Docket NumberNo. CIV.A.04-810(ESH).,CIV.A.04-810(ESH).
Citation384 F.Supp.2d 203
PartiesOCEANA, INC., Plaintiff, v. Donald L. EVANS, et al., Defendants.
CourtU.S. District Court — District of Columbia

Eric A. Bilsky, Oceana, Inc., Washington, DC, for Plaintiff.

Coby Howell, Mary Melissa Whittle, U.S. Department of Justice, Washington, DC, for Defendants.


HUVELLE, District Judge.

Plaintiff challenges the Secretary of Commerce's approval of Amendment 10 to the Atlantic Sea Scallop Fishery Management Plan ("FMP" or "Scallop FMP"), a long-term program to manage the sea scallop fishery through rotational closures and other measures, and Framework 16, a set of regulations authorized by Amendment 10. Plaintiff alleges that in approving these measures, the Secretary has failed to protect loggerhead sea turtles under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq.; to establish an adequate system for observing and reporting bycatch under the Magnuson-Stevens Act ("MSA"), 16 U.S.C. § 1801 et seq.; and to consider the reasonable alternatives proposed by plaintiff to protect essential fish habitat ("EFH") from the destructive effects of scallop dredges under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., the MSA, and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706 et seq. Plaintiff also claims that Amendment 10 defers key decisions about fishery management in contravention of the MSA by establishing a "framework adjustment" procedure for future management measures. Plaintiff has moved for summary judgment and asks the Court to declare the agency actions unlawful, remand them to the agency to cure by a date certain, and enjoin the scallop fishery from operating in Mid-Atlantic waters through November. The Fisheries Survival Fund ("FSF") has intervened as a defendant on behalf of the scallop fishery.

The Court, having considered the voluminous administrative record, the parties' pleadings, and the arguments of counsel at the June 30, 2005 hearing, concludes that plaintiff's motion for summary judgment must be granted in part and denied in part, and that its motion for a permanent injunction must be denied.


The scallop fishery is one of the country's most valuable fisheries and occurs mainly in the Gulf of Maine, Georges Bank, and the Mid-Atlantic. (BO AR at 235.)1 Pursuant to its obligations under the MSA, the New England Fisheries Management Council ("the Council") began developing Amendment 10 to the Scallop FMP in 2000.2 The scallop fishery had been a limited access fishery since Amendment 4 was developed and implemented in 1994. (Id. at 236.) Whereas the old FMP provided for annual days-at-sea ("DAS") allocations for vessels to fish anywhere in the Exclusive Economic Zone ("EEZ")3 and allowed the Council to close and reopen certain areas to scallop vessels on an ad hoc basis, Amendment 10 introduced a formal rotational closure system to "focus fishing effort on larger, more valuable scallops in area[s] where the effort is more efficient." (AR Doc. 138 (Amendment 10 and Final Environmental Impact Statement ("EIS")) at C1193.) The rotation program is based on changing conditions of the scallop resource and aims to "postpon[e] mortality on small scallops [...,] improv[e] yield, and reduc[e] total fishing time to achieve the fishing mortality targets." Id. The Council also developed Amendment 10 to bring the FMP into compliance with the MSA's mandate to minimize adverse effects on EFH to the extent practicable and with a court order to complete a more thorough NEPA analysis of alternatives to minimize the adverse impact of scallop dredge and trawl gear on EFH. See Am. Oceans Campaign v. Daley, 183 F.Supp.2d 1 (D.D.C.2000) (hereinafter "AOC"). Amendment 10 also, inter alia, modified the procedure by which the Council could propose changes to the management measures through "framework adjustments." (See AR Doc. 138 at C1196-99.)

The Council completed a Final EIS for Amendment 10 on December 19, 2003, and NMFS promulgated a final rule on June 23, 2004. 69 Fed.Reg. 35194 (reproduced at AR Doc. 1329). The final rule incorporates by reference the December 19, 2003 document, which includes both the Council's description of Amendment 10's provisions and the EIS. (See AR Doc. 138.)

During the approximately four years of Amendment 10's development, NMFS implemented several interim framework adjustments. These measures opened up previously closed juvenile cod EFH to scallop dredging during the 2000 season (Frameworks 12 and 13), created a controlled-access program for areas of the fishery in the Mid-Atlantic for the 2000 and 2001 seasons (Framework 14), and continued Framework 14's measures for the 2003 season (Framework 15). All of these frameworks provoked legal challenges — particularly with respect to EFH and protection of sea turtles — by Oceana or its predecessor organization, American Oceans Campaign. See Conservation Law Found. v. Mineta, 131 F.Supp.2d 19 (D.D.C.2001); Conservation Law Found. v. United States Dep't of Commerce, 229 F.Supp.2d 29 (D.Mass.2002) (hereinafter "CLF I"); Conservation Law Found. v. Evans, 360 F.3d 21 (1st Cir.2004) (hereinafter "CLF II"); Oceana v. Evans, 2004 WL 1730340 (D.Mass. July 30, 2003). Courts have consistently rejected these challenges, in part because of the temporary nature of framework actions and the anticipated enactment of Amendment 10. (See Pl.'s Mot. for Summ. J. and Permanent Injunctive Relief ["Mot."] at 3-6.)

NMFS issued Framework 16 to the Scallop FMP jointly with Framework 39 to the Northeast Multispecies FMP ("Groundfish FMP") on November 2, 2004. 69 Fed.Reg. 63460 (reproduced at FW16 AR Doc. 306). The joint framework measure establishes the first rotational access areas for the new management program proposed by Amendment 10. Specifically, it allows scallop vessels to dredge for scallops in portions of the existing Georges Bank groundfish closed areas and allocates additional DAS for fishing in these areas. (BO AR at 230.) Framework 16 also revised the EFH closed areas implemented under Amendment 10 to make them consistent with the EFH closures established under Amendment 13 to the Groundfish FMP.4

Upon determining that reauthorization of the scallop fishery was likely to adversely affect threatened and endangered sea turtles, NMFS initiated formal consultation on December 21, 2001, as required by the ESA. (Id. at 229.) The ESA prohibits federal agencies from authorizing any action that is likely to "jeopardize"5 the continued existence of an endangered species. 16 U.S.C. 1536(a)(2). If an action is "likely to adversely effect" an endangered species, the agency must undertake a formal "consultation" to evaluate the effects of the proposed action and determine whether the action will jeopardize the species. 50 C.F.R. § 402.14. The consultation process results in the issuance of a BO. Id.

On February 24, 2003, NFMS issued a BO which concluded that the continued operation of the scallop fishery would not result in jeopardy for loggerhead sea turtles or other ESA-listed species. Based on new information on sea turtle takes6 and the proposal to modify the FMP through Amendment 10, the agency reinitiated consultation on November 21, 2003. The resulting February 23, 2004 BO again concluded that, although the agency anticipated that the scallop fishery would result in the incidental take of 111 sea turtles annually, the continued authorization of the scallop fishery would not jeopardize the species' continued existence. (BO AR at 228-29.) Plaintiff brought this case on May 18, 2004, and moved for a preliminary injunction of the scallop fishery on July 16, 2004, arguing that the February 2004 BO had underestimated the number of sea turtles that would be killed by scallop dredges. The Court denied this request at a hearing on August 18, 2004.

The agency received a new estimate of the number of turtles trapped in scallop dredge gear on August 31, 2004, and concluded that this information warranted reinitiation of the consultation. On December 15, 2004, NFMS issued a final "no jeopardy" opinion and authorized the incidental take of 752 loggerheads annually. (BO AR at 304.) This BO is the subject of plaintiff's instant ESA claims.

As each of plaintiff's four claims in its Motion for Summary Judgment has its own detailed statutory and factual background, the Court will defer further discussion of the relevant facts and law until it addresses each specific claim.

I. Standard of Review

The Court reviews the Secretary's actions pursuant to the judicial review provisions of the APA. The Court may set aside an administrative action only where it is arbitrary, capricious, or otherwise unlawful. See 5 U.S.C. § 706(2)(A)-(D); Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 375, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Administrative actions are presumed valid and are accorded great deference; thus, the inquiry is only whether the Secretary's decisions were unreasonable, and "this court will not second guess an agency decision or question whether the decision made was the best one." C & W Fish Co., 931 F.2d at 1565. This is particularly the case when the Court is evaluating the Secretary's scientific determinations, as opposed to simple findings of fact. See Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). Moreover, the Court will not lightly depart from regulations promulgated by an agency in order to achieve a statute's goals. See Continental Air Lines, Inc. v. Dep't of Transp., 843 F.2d 1444, 1451-52 (D.C.Cir.1988). Thus, it is "especially appropriate for the Court to defer to the expertise and experience of those individuals and entities — the Secretary, the Councils, and their advisors — whom the [MSA] charges with making difficult policy judgments and...

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