Oceana, Inc. v. Locke

• Decision Date: 20 December 2011
• Docket Number: Civil Action No. 10–744 (JEB).
• Citation: 831 F.Supp.2d 95
• Court: U.S. District Court — District of Columbia
• Parties: OCEANA, INC., Plaintiff, v. Gary LOCKE, in his official capacity as Secretary of the U.S. Department of Commerce, et al., Defendants.

831 F.Supp.2d 95

OCEANA, INC., Plaintiff,

v.Gary LOCKE, in his official capacity as Secretary of the U.S. Department of Commerce, et al., Defendants.

Civil Action No. 10–744 (JEB).

United States District Court,

District of Columbia.

Dec. 20, 2011.

Sara S. Zdeb, O'Melveny & Myers, L.L.P., Washington, DC, John Rousakis, O'Melveny & Myers, LLP, New York, NY, for Plaintiff.

Bradley Howard Oliphant, Andrea Gelatt, U.S. Department of Justice, James A. Maysonett, U.S. Department of Justice Environment & Natural Resources Division, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, District Judge.

In recognition of the persistence of overfishing and habitat loss that threaten fish populations off the coasts of the United States, and with the aim of maintaining a balance between conserving fishery resources and promoting the United States fishing industry, Congress enacted the Magnuson–Stevens Fishery Conservation and Management Act of 1976(MSA), Pub.L. No. 94–265, 90 Stat. 331 (1976) (codified at 16 U.S.C. § 1801 et seq.). The MSA created eight Regional Fishery Management Councils to monitor and oversee multiple fisheries in each region's waters. 16 U.S.C. § 1852. Among each Council's primary tasks is the development and maintenance of a fishery management plan (FMP) for each fishery under its control. The MSA imposes content requirements on these FMPs, see id.§ 1853(a)(15), which must ultimately be approved by the National Marine Fisheries Service (NMFS), acting on behalf of the U.S. Secretary of Commerce. Id. § 1854.

This case revolves around Amendment 16 to the New England Fishery Management Council's (NEFMC) Northeast Multispecies FMP. Among other things, Amendment 16 represents NEFMC's efforts to bring this FMP into compliance with the MSA by establishing annual catch limits for each species in the Fishery, as well as measures to ensure accountability with those limits. Oceana, Inc., a non-profit organization with the mission of protecting and restoring the world's oceans, challenges NMFS's decision to adopt Amendment 16 under the Administrative Procedure Act, 5 U.S.C. § 706(2). Oceana first claims that Amendment 16 violates the MSA in three ways: by failing to establish an adequate system to monitor compliance with annual catch limits, by failing to establish adequate accountability measures for five particular species, and by failing to establish accountability measures for the portion of a sixth species—yellowtail flounder—caught in the separate Scallop Fishery. Oceana also argues that, in adopting Amendment 16, NMFS violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., by failing both to take a hard look at the environmental impacts of the Amendment and to consider all reasonable alternatives to one provision, the ABC Control Rule.

Both sides have now moved for summary judgment. Although analysis of this dense administrative record is no simple matter, the Court ultimately finds in favor of Defendants on each of Plaintiff's claims save one: that Amendment 16 fails to establish adequate accountability measures for five species. This violation requires a limited remand.

I. BackgroundA. Statutory Background

1. The Magnuson–Stevens Act

Most recently amended by the Magnuson–Stevens Fishery Conservation and Management Reauthorization Act of 2006, Pub.L. No. 109–479, 120 Stat. 3575 (2007), the MSA aims, inter alia, to “conserve and manage [U.S.] fishery resources,” “promote domestic commercial and recreational fishing under sound conservation and management principles,” and “provide for the preparation and implementation, in accordance with national standards, of fishery management plans ... [to] achieve and maintain ... the optimum yield from each fishery.” 16 U.S.C. § 1801(b). It also establishes eight “Regional Fishery Management Councils to exercise sound judgment in the stewardship of fishery resources through the preparation, monitoring, and revision of such plans.” Id. For the present case, the New England Fishery Management Council is the relevant Council.

Each Council's voting membership is comprised of state and federal officials from the region with “marine fishery management responsibility and expertise,” as well as individuals appointed by the Secretary of Commerce who are knowledgeable regarding, e.g., the conservation and management of the fishery resources of the geographical area concerned. Id.§§ 1852(b)(1)-(2). The primary responsibilities of each Council include:

• “for each fishery under its authority that requires conservation and management, prepar[ing] and submit[ting] to the Secretary (A) a fishery management plan, and (B) amendments to each such that are necessary,” id.§ 1852(h)(1) (emphases added);

• “conduct[ing] public hearings ... so as to allow all interested persons an opportunity to be heard in the development of fishery management plans and amendments to such plans,” id.§ 1852(h)(3); and

• “develop[ing] annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee or the peer review process....” Id.§ 1852(h)(6) (emphasis added).

To assist each Council in carrying out its responsibilities, the MSA provides for the creation of standing committees of scientists and fishing-industry experts that report periodically on the status and health of fish stocks in each fishery, peer-review new scientific methods for fishery conservation and management, and advise the Council throughout the process of preparing and amending fishery management plans (FMPs). See id.§§ 1852(g)(1); 1852(g)(3)(A); 1852(i)(5).

The Council's FMPs and amendments must conform to the “national standards for fishery conservation and management” established by the MSA, see id. § 1851(a), and must contain certain required provisions. See id.§ 1853(a). Two of the MSA's requirements for FMPs are at the center of the controversy here. They read as follows:

Any fishery management plan which is prepared by any Council, or by the Secretary, with respect to any fishery, shall—...

(11) establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery, and include conservation and management measures that, to the extent practicable and in the following priority—(A) minimize bycatch; and (B) minimize the mortality of bycatch which cannot be avoided.

and ...

(15) establish a mechanism for specifying annual catch limits in the plan (including a multiyear plan), implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.

Id.§ 1853(a)(11), (15) (emphases added). In addition to the MSA's mandatory national standards and content requirements, the Secretary has promulgated “advisory guidelines,” the National Standards Guidelines, “which shall not have the force and effect of law,” but which the Regional Councils may use “to assist in the development of fishery management plans.” Id. § 1851(b). The National Standards Guidelines are codified at 50 C.F.R. §§ 600.305–600.355.

Once prepared, each Council submits proposed FMPs to NMFS, which acts in practice on behalf of the Secretary of Commerce to “approve, disapprove, or partially approve” the plan or amendment. 16 U.S.C. § 1854(a)(3); see also Oceana, Inc. v. Evans, 384 F.Supp.2d 203, 210 n. 2 (D.D.C.2005). In determining whether or not to approve an FMP, NMFS must review it for consistency with the requirements of the MSA, including the national standards and content requirements found at §§ 1851(a) and 1853(a), and, following a 60–day public notice-and-comment period, “take into account the information, views, and comments received from interested persons.” 16 U.S.C. §§ 1854(a)(1)-(2).

If, upon completing this review, NMFS approves the FMP or amendment, a final rule and one or more implementing regulations are published in the Federal Register. See id. § 1854(b)(3). Approved FMP amendments are subject to judicial review for 30 days under the Administrative Procedure Act, 5 U.S.C. § 706. See id. § 1855(f)(1).

2. NEPA

The National Environmental Policy Act requires federal agencies to consider the environmental impact of “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). The approval of FMPs and amendments to FMPs are considered major Federal actions within the meaning of NEPA. See, e.g., Conservation Law Foundation v. Mineta, 131 F.Supp.2d 19 (D.D.C.2001). Before NMFS can approve an FMP amendment, NEPA requires the preparation of one of three levels of documentation based on the extent of the project's impact on the environment. See40 C.F.R. §§ 1501.4(a)-(b). Projects that significantly affect the environment require the preparation of the highest, most detailed level of documentation—an Environmental Impact Statement (EIS). See42 U.S.C. § 4332(C); 40 C.F.R. § 1508.11.

For actions warranting the preparation of an EIS, NEPA requires that the agency consider reasonable alternatives to the proposed action. An EIS must “inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts [of the proposed action] or enhance the quality of the human environment.” Id. § 1502.1. To meet this requirement, in its EIS an agency must, inter alia, “[r]igorously explore and objectively evaluate all reasonable alternatives” to its chosen action. Id. § 1502.14(a).

A court may review an agency's failure to comply with NEPA under § 706 of the APA. See Baltimore Gas and Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 90, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983).

B. Amendment 16

NEFMC oversees nine separate fisheries, each dealing with one or more different species. One of these is the Northeast Multispecies Fishery (also called the “Groundfish Fishery” after the types of fish dwelling there), which consists of...