Oceana Inc. v. Locke .

• Decision Date: 23 July 2010
• Docket Number: Civil Action No. 08-318(ESH).
• Citation: 725 F.Supp.2d 46
• Parties: OCEANA, INC., Plaintiff, v. Gary F. LOCKE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

725 F.Supp.2d 46

OCEANA, INC., Plaintiff,

v.Gary F. LOCKE, et al., Defendants.

Civil Action No. 08-318(ESH).

United States District Court,District of Columbia.

July 23, 2010.

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

Ethan Carson Eddy, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

Oceana, Inc. has sued Gary F. Locke, ¹ in his official capacity as Secretary of the United States Department of Commerce; the National Oceanic and Atmospheric Administration (“NOAA”); and the National Marine Fisheries Service (“NMFS”) ² (collectively “the agency”) for declaratory and injunctive relief related to the Secretary's approval of the methodology established to assess the amount and type of bycatch ( i.e., fish that are harvested in a fishery but not sold or kept for personal use) for the thirteen federal fisheries in the Northeast region. Specifically, plaintiff contends that the standardized bycatch reporting methodology (“SBRM”) developed by defendants violates the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”), 16 U.S.C. §§ 1801- 1891d, because it: 1) grants Regional Administrators discretion to avoid implementing the SBRM upon a finding that there are operational constraints that prevent its full execution; and 2) applies only to those species targeted by federal fisheries and excludes other species that are part of the bycatch. (Mot. of Pl. Oceana for Summ. J. [“Pl.'s Mot.”] at 18.) Plaintiff further alleges that the agency's decision to approve the SBRM was arbitrary and capricious because the agency failed to adequately respond to scientific evidence and it ignored its own findings regarding issues of observer bias and precision. ( Id. at 25.) Finally, plaintiff contends that the agency's decision to conduct an Environmental Assessment (“EA”) as to the SBRM, which resulted in the issuance of a Finding of No Significant Impact (“FONSI”), rather than an Environmental Impact Statement (“EIS”), violates the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321- 4370h. ( Id. at 34.) Accordingly, plaintiff asks the Court to 1) declare the SBRM and the EA/FONSI in violation of the MSA, NEPA, and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706; 2) remand the SBRM and the EA/FONSI to NMFS to develop a new SBRM and NEPA analysis that complies with the Court's order; and 3) award fees, expenses, and costs.

Before the Court are the parties' cross-motions for summary judgment. Having considered the voluminous administrative record, the parties' briefs, and the applicable case law, the Court will deny plaintiff's motion for summary judgment and grant defendants' motion for summary judgment.

BACKGROUND

I. STATUTORY FRAMEWORK

A. The Magnuson-Stevens Fishery Conservation and Management Act

The MSA, passed in 1976, “provides the statutory framework for the protection and management of the nation's marine fishery resources.” Conservation Law Found. v. Evans, 209 F.Supp.2d 1, 5 (D.D.C.2001) (“ CLF ”); see also 16 U.S.C. § 1801(b). The Act created eight Regional Fishery Management Councils ³ with “the authority and responsibility to govern conservation and management of the fisheries under its geographical jurisdiction.” ⁴ CLF, 209 F.Supp.2d at 5. The Regional Councils are tasked with developing and implementing Fishery Management Plans (“FMPs”) and amendments thereto. Id.; 16 U.S.C. § 1852(g)(3)(A). Each FMP and FMP amendment is then recommended to and reviewed and evaluated by NMFS and/or NOAA to determine whether it complies with the MSA ⁵ and other applicable law. ⁶ 16 U.S.C. § 1854. FMPs, FMP amendments, and any necessary implementing regulations are subject to public review and comment. Id. § 1854(a)(1), (b)(1). If the Secretary finds that the plan complies with all applicable law, he or she may approve it or partially or completely disapprove it, id. § 1854(a), and, to the extent it is approved, the FMP or FMP amendment is then implemented and enforced by NMFS. Id. § 1854(c).

In 1996, Congress passed the Sustainable Fisheries Act (“SFA”), which amended the MSA to require that all FMPs include a standardized reporting methodology “to assess the amount and type of bycatch occurring in the fisher [ies],” as well as conservation and management measures that minimize bycatch and the mortality of bycatch which cannot be avoided. ⁷ 16 U.S.C. § 1853(a)(11); Pub.L. No. 104-297 § 108(b), 110 Stat. 3559, 3574-75 (Oct. 11, 1996). ⁸ Following passage of the SFA, NMFS prepared guidelines, ultimately adopted as a final rule, to assist Regional Councils in the development of FMPs. 63 Fed.Reg. 24,212 (May 1, 1998), codified in relevant part at 50 C.F.R. § 600.350. The guidelines state that “[a] review and, where necessary, improvement of data collection methods, data sources, and applications of data must be initiated for each fishery to determine ... bycatch and bycatch mortality....” 50 C.F.R. § 600.350(d)(1).

B. National Environmental Policy Act

NEPA, 42 U.S.C. §§ 4321-4370f, “has twin aims” of “ ‘plac[ing] upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action’ ” and “ensur[ing] that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (quoting Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 553, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)). The Act “d[oes] not require agencies to elevate environmental concerns over other appropriate considerations,” but rather, it requires agencies to “take a ‘hard look’ at the environmental consequences before taking a major action.” Id.; see also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-51, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (holding NEPA does not impose “substantive environmental obligations” on agencies, but rather “prohibits uninformed-rather than unwise-agency action”).

II. PRIOR LITIGATION

This case arises from two earlier challenges by plaintiff to the agency's approval of FMPs in the Northeast. In 2005, plaintiff filed parallel lawsuits, challenging Amendment 13 to the Northeast Multispecies FMP, Oceana, Inc. v. Evans, No. 04-811, 2005 WL 555416 (D.D.C. Mar. 9, 2005) (“ Oceana I”), ⁹ and Amendment 10 to the Atlantic Sea Scallop FMP, Oceana, Inc. v. Evans, 384 F.Supp.2d 203 (D.D.C.2005) (“ Oceana II”). In both cases, this Court granted summary judgment to defendants on most of plaintiff's claims. However, in Oceana I, plaintiff argued, inter alia, that Amendment 13 did not establish an SBRM, despite endorsing an intended level of bycatch oversight, because it failed to establish a mandatory level of oversight. 2005 WL 555416, at *39. The Court agreed, noting that the Amendment “d [id] not contain a mandatory level of observer coverage” ¹⁰ and “d [id] not contain any new bycatch reporting methodology.” Id. The Court further held that although the SBRM set forth the agency's intention to achieve a five-percent level of observer coverage, “an FMP that merely suggests a hoped-for result, as opposed to ‘establish[ing]’ a particular standardized methodology, does not measure up to [MSA's] requirements.” Id. at *40 (quoting 16 U.S.C. § 1853(a)(11) (alteration in original)). Specifically, the Court found that the “desire” of the agency to maintain a minimum level of coverage was “ambiguous” and “optional” because the Amendment provided that the coverage level “may be subject to change if the Secretary deems it proper.” Id. at *39. Further, the Court held that the agency's failure to respond to the Babcock Study commissioned by Oceana regarding the precision of discard estimates constituted disregard of the “best scientific information available” in violation of the MSA and the APA. Id. at *42; see also 16 U.S.C. § 1851(a)(2) (“[c]onservation and management measures shall be based upon the best scientific information available”).

Similarly, in Oceana II, the Court held that Amendment 10 violated the MSA because it “d[id] not set forth the substance of a reporting methodology for the scallop fishery except in a vague and conclusory fashion” that gave the NMFS Regional Administrator “complete discretion” regarding the implementation of bycatch reporting methods and standards. 384 F.Supp.2d at 232, 234; see also id. at 234 n. 41 (criticizing amendment for leaving “all decisions” regarding “method for determining observer concentration” to Regional Administrator). The Court found that the Amendment did not establish any techniques or levels of accuracy and did not “target[ ] a specific level of observer coverage by area that would produce statistically reliable estimates of bycatch.” Id. at 233. The Court also found that the agency, by remaining silent on the issue, again failed to demonstrate that it had responded adequately to the “best scientific information available” regarding bias and accuracy. Id. at 232. In both cases, the Court remanded the bycatch portions of the two amendments to the agency for further action. Id. at 256; Oceana I, 2005 WL 555416, at *43.

III. FACTUAL AND PROCEDURAL BACKGROUND

After the issuance of Oceana I and II, NMFS set out to address the problems identified in those decisions by establishing a comprehensive Northeast SBRM that would set bycatch reporting and assessment standards for all thirteen federal fisheries in the Northeast region. See 73 Fed.Reg. 4,736, 4,737 (Jan. 28, 2008) (codified at 50 C.F.R. pt. 648) (noting that NMFS undertook to “address all Northeast Region FMPs” and that amendment “covers 13 FMPs, 39 managed species, and 14 types of fishing gear”). The Northeast Region Omnibus SBRM Amendment (“SBRM Amendment”) established an SBRM comprised of seven elements, including: 1) bycatch reporting and monitoring mechanisms; 2) analytical...