Oceana, Inc. v. Pritzker

• Decision Date: 10 March 2014
• Docket Number: Re Document No.: 38,Re Document No.: 37,Civil Action No.: 11-1896 (RC),Re Document No.: 36
• Parties: OCEANA, INC., Plaintiff, v. PENNY PRITZKER, in her official capacity as Secretary of the United States Department of Commerce, et al., Defendants. and FISHERIES SURVIVAL FUND, Intervenor-Defendant.
• Court: U.S. District Court — District of Columbia

OCEANA, INC., Plaintiff, v. PENNY PRITZKER, in her official capacity as Secretaryof the United States Department of Commerce, et al., Defendants.and FISHERIES SURVIVAL FUND, Intervenor-Defendant.

Civil Action No.: 11-1896 (RC)

Re Document No.: 36

Re Document No.: 37

Re Document No.: 38

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Dated: March 10, 2014

MEMORANDUM OPINION

DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT;

GRANTING FEDERAL DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; AND

GRANTING INTERVENOR-DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff Oceana, Inc. ("Oceana") has filed this suit against Defendants Penny Pritzker, in her official capacity as Secretary of Commerce,¹ the National Oceanic and Atmospheric Administration ("NOAA"), and the National Marine Fisheries Service ("NMFS") (collectively, "Federal Defendants"). Oceana alleges that the Mid-Atlantic Fishery Management Council Omnibus Amendment to Implement Annual Catch Limits (ACLs) and Accountability Measures (AMs), 76 Fed. Reg. 60,606 (Sept. 29, 2011) (codified at 50 C.F.R. pt. 648 (2013)) (A.R. 5197-213) (the "Omnibus Amendment"), violates the Magnuson-Stevens Fishery Conservation and Management Act ("MSA"), the National Environmental Policy Act ("NEPA"), and the Administrative Procedure Act ("APA"). The Court has allowed the Fisheries Survival Fund ("FSF") to join the suit as Intervenor-Defendant.

This matter is now before the Court on the parties' cross-motions for summary judgment. For the reasons set forth below, the Court denies Oceana's motion for summary judgment and grants Defendants' motions for summary judgment.

II. BACKGROUND

A. Statutory Background

1. The Magnuson-Stevens Act

In 1976, in balancing the environmental interests in preventing overfishing and the loss of marine habitat against the often competing economic interests of the United States' fishing industry, Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act, Pub. L. No. 94-265, 90 Stat. 331 (1976) (codified as amended at 16 U.S.C. §§ 1801 et seq. (2012)). The MSA established eight regional councils (the "Councils"), which are charged with the duty of drafting fishery management plans ("FMPs") for each fishery under their control. See 16 U.S.C. § 1852(a)(1), (h)(1) (2012).

The required components of FMPs are set forth in Section 1853(a) of the MSA. See id. § 1853(a). FMPs proposed by the Councils, and any regulations promulgated to implement FMPs, must also be consistent with the MSA's ten "National Standards" for fishery conservation and management. See id. § 1851(a). The MSA requires that the Secretary of Commerce establish advisory guidelines (the "Guidelines") to assist in the development of FMPs based on the National Standards, but provides that the Guidelines do not have the force of law. See id.§ 1851(b). NMFS has promulgated a set of Guidelines interpreting the ten National Standards, and has amended the Guidelines over time to keep pace with various changes to the MSA itself. See 50 C.F.R. §§ 600.305-.355 (2013); see also, e.g., NS1 Guidelines Final Rule, 74 Fed. Reg. 3178 (Jan. 16, 2009) (codified as amended at 50 C.F.R. pt. 600 (2013)) (A.R. 102-38) (revising the Guidelines based on the 2007 amendments to the MSA).

In 2007, Congress amended the MSA by enacting the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, Pub. L. No. 109-479, 120 Stat. 3575 (2007) ("MSRA"). The amendment included a new required provision for all FMPs, mandating that FMPs "establish a mechanism for specifying annual catch limits . . . at such a level that overfishing does not occur in the fishery, including measures to ensure accountability." See id. sec. 303(a), § 104(a)(10), 120 Stat. at 3584 (codified at 16 U.S.C. § 1853(a)(15)). "Overfishing" is defined in the MSA as "a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis." 16 U.S.C. § 1802(34) (2012). Maximum sustainable yield ("MSY"), in turn, is "the largest long-term average catch or yield that can be taken from a stock or stock complex under prevailing ecological, environmental conditions . . . ." 50 C.F.R. § 600.310(e)(1)(i)(A). Congress mandated that NMFS comply with the new requirement by fishing year 2010 for fisheries that were subject to overfishing, and by fishing year 2011 for all other fisheries. See MSRA § 104(b), 120 Stat. at 3584 (codified at 16 U.S.C. § 1853 note).

Before bringing the FMPs themselves into compliance with the MSA's new requirements, NMFS first updated the Guidelines to set forth the Secretary's interpretation of the new requirements in light of the National Standards. Most of the regulations relevant to the instant dispute relate to National Standard 1 ("NS1"), which provides that "[c]onservation andmanagement measures shall prevent overfishing while achieving, on a continuing basis, optimum yield from each fishery for the United States fishing industry." 16 U.S.C. § 1851(a)(1). Optimum yield ("OY") is defined as the amount of fish that "will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems . . . ." Id. § 1802(33)(A). OY is less than or equal to the MSY. See 50 C.F.R. § 600.310(b)(2)(i).

As amended, the NS1 Guidelines set forth an overview of the components the Councils must, should, or may apply in complying with the MSA's new mandate. According to the NS1 Guidelines, the overfishing limit ("OFL") for a given stock is "an estimate of the catch level above which overfishing is occurring." Id. § 600.310(e)(2)(i)(D). It is set by first determining the annual rate of fishing mortality above which overfishing will occur for a particular stock, known as the maximum fishing mortality threshold ("MFMT"), see id. § 600.310(e)(2)(i)(C), and then applying the MFMT to the stock's total size, see id. § 600.310(e)(2)(i)(D). To serve the goal of preventing the OFL from being exceeded, the Guidelines provide for the computation of acceptable biological catch ("ABC"), which is a reduced version of the OFL that accounts for scientific uncertainty in the estimation of the OFL. See id. § 600.310(f)(2)(ii). "Examples of scientific uncertainty include uncertainty in the estimates of MFMT and biomass." Id. § 600.310(f)(1).

At the center of this regime is the annual catch limit ("ACL"), which is a level of annual catch at or below the stock's ABC. See id. § 600.310(f)(2)(iv). The ACL is enforced by accountability measures ("AMs"), which are in-season and post-season measures to prevent the ACL from being exceeded, or to initiate corrective measures in the event that ACL is exceededin a given fishing year. See id. § 600.310(g). FMPs must contain ACLs and AMs for all managed stocks of fish in the fishery. See id. § 600.310(c), (h).

Another important component of fishery management is the problem of "bycatch"—that is, "fish which are harvested in a fishery, but which are not sold or kept for personal use . . . ." 16 U.S.C. § 1802(2). Under the Sustainable Fisheries Act, Pub. L. No. 104-297, 110 Stat. 3559 (1996), an earlier amendment to the MSA, NMFS was required to "establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery . . . ." Id. sec. 303(a), § 108(a)(7), 110 Stat. at 3575 (codified at 16 U.S.C. § 1853(a)(11)). NMFS most recently amended the Northeast region's standardized bycatch reporting methodology in an omnibus amendment, see Northeast Region Standardized Bycatch Reporting Methodology Omnibus Amendment, 73 Fed. Reg. 4736 (Jan. 28, 2008) (codified at 50 C.F.R. pt. 648 (2013)) (the "SBRM Amendment"), but the D.C. Circuit ordered that the regulation be vacated and remanded. See Oceana, Inc. v. Locke, 670 F.3d 1238 (D.C. Cir. 2011). NMFS is still in the rulemaking process on remand. See Notice and Request for Comments, 78 Fed. Reg. 69,391 (Nov. 19, 2013).

When a Council proposes an FMP or an amendment to an FMP, the proposal is submitted to the Secretary of Commerce, who must approve, disapprove, or partially approve the proposal. See 16 U.S.C. § 1854(a)(3) (2012). In practice, the Secretary exercises her authority through NMFS, a division of NOAA within the Department of Commerce. See Fed. Defs.' Mot. Summ. J. 3, ECF No. 38.

FMPs are subject to judicial review under Section 706 of the APA. See 16 U.S.C. § 1855(f)(1) (2012).

2. The National Environmental Policy Act

The National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified as amended at scattered sections of U.S.C.), 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) (2006). FMPs and their amendments are considered major federal actions sufficient to trigger NEPA. See, e.g., Conservation Law Found. 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." Oceana, Inc. v. Locke, 831 F. Supp. 2d 95, 101 (D.D.C. 2011) (citing 40 C.F.R. § 1501.4(a)-(b)). The most detailed level of documentation, an environmental impact statement ("EIS"), is required for projects that significantly affect the environment. See id. (citing 42 U.S.C. § 4332(C) and 40 C.F.R. § 1508.11).

To determine whether an EIS is required, the agency must first prepare an environmental assessment ("EA"), which provides evidence for determining whether there is sufficient environmental impact to trigger an EIS, or whether there is a finding of no significant impact ("FONSI"). See Mineta, 131 F. Supp. 2d at 22 (citing 40 C.F.R. §§ 1501.3, 1508.9(a)). Following the EA, the agency either prepares an EIS or issues a FONSI report...