Oceana, Inc. v. Raimondo
| Decision Date | 30 March 2021 |
| Docket Number | Case No. 17-cv-829 (CRC) |
| Parties | OCEANA, INC., Plaintiff, v. Gina M. RAIMONDO, in her official capacity as Secretary of the United States Department of Commerce, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Stephen D. Mashuda, Pro Hac Vice, Earthjustice, Seattle, WA, Andrea A. Treece, Pro Hac Vice, Brettny Elaine Hardy, Pro Hac Vice, Earthjustice, San Francisco, CA, for Plaintiff.
Kaitlyn Ashley Poirier, Meredith L. Flax, U.S. Department of Justice, Washington, DC, for Defendants.
This case presents a challenge to a 2016 regulation issued by the National Marine Fisheries Service ("NMFS," "Fisheries Service," or "Service") to curtail overfishing of the dusky shark, a migratory predator fish that inhabits coastal ocean waters from Nova Scotia to Brazil. The Service banned targeted fishing for the species in 2000 in an effort to reverse decades of population decline. The challenged regulation, by contrast, targets collateral "bycatch" of dusky sharks by boats seeking to land other types of fish. It establishes a series of "accountability measures" designed to reduce the number of dusky sharks that are mistakenly caught and to decrease the likelihood that those caught will perish as a result. The agency concluded that adopting these measures will achieve a 35 percent reduction in mortality, which in turn will slowly rebuild the dusky shark stock over the next century.
Plaintiff Oceana, Inc. does not believe the regulation goes far enough to protect the dusky. It questions the efficacy of the measures the Fisheries Service elected to include in the regulation. More fundamentally, it challenges the Service's determination—upon which its selection of accountability measures was premised—that current bycatch of the dusky shark is "small." That determination is flawed, Oceana says, because the agency failed to estimate the true level of bycatch by extrapolating from two sets of existing data: mandated tallies of bycatch recorded by a limited number of NMFS-trained independent observers and similar counts maintained in logbooks kept by some individual fishing vessels. Oceana contends that estimating bycatch in this way would have revealed a more serious problem and led the agency to adopt more demanding remedies.
This is not the first time Oceana's challenge has been before this Court. In March 2019, the Court granted partial summary judgment in Oceana's favor, finding that the Fisheries Service had not adequately explained why it chose to disregard the data (and derivative estimates) that Oceana highlights. The Court remanded the regulation to the agency and directed it to either factor the omitted data into its analysis or better justify its decision not to do so. The Service responded with a comprehensive Supplemental Evaluation supporting its prior conclusions that Oceana's preferred estimates are not scientifically valid, that the disputed data bolsters its conclusion that dusky shark bycatch is indeed small, and that additional accountability measures are not needed to reverse overfishing and restore the health of the dusky population.
Still unimpressed, Oceana has renewed its challenge, and both sides have moved for summary judgment. Finding that the Fisheries Service has now offered a reasoned justification of the regulation, the Court will defer to its considerable scientific expertise and grant summary judgment in its favor.
The factual and legal background of NMFS's efforts to restore the dusky shark population may be found in the Court's prior opinion. See Oceana, Inc. v. Ross, 363 F. Supp. 3d 67, 70–76 (D.D.C. 2019) (Cooper, J.) (" Oceana I"). In short, the dusky shark is a slow-growing, highly-migratory apex predator that was subjected to decades of commercial overfishing which depleted the population. See id. at 72–76. Since 2000, when NMFS prohibited all dusky shark landings, the agency has adopted numerous additional regulatory measures to curtail dusky shark mortality and help the species recover to a healthy state. See id. at 73–74. The most notable of those measures are Amendment 2 to the 2006 Highly Migratory Species ("HMS") Fishery Management Plan—which, inter alia , cut commercial fishing quotas, restricted fishing times and areas, and prohibited fishing for the sandbar shark (a doppelganger of the dusky whose targeting had resulted in sizable dusky shark bycatch), see Administrative Record at 7077, 7087 ("A.R.")—and Amendment 5b, the regulation at issue in this case. Oceana I, 363 F. Supp. 3d at 74–76. The adoption of both regulations were informed by periodic "stock assessments" which NMFS conducts to assess and monitor the health of particular fish species. Id. at 73–74. Prior to Amendment 5b's adoption in 2017, dusky shark stock assessments had shown a substantial decline in overfishing. See A.R. at 7101.
NMFS's efforts to rehabilitate the dusky shark population are guided by the Magnuson-Stevens Act ("MSA"), 16 U.S.C. §§ 1801 et seq. The MSA is designed to prevent overfishing in U.S. coastal waters and mitigate its effects where it has already begun. Oceana I, 363 F. Supp. 3d at 71. The MSA "empowers federal agencies to ‘provide for the preparation and implementation, in accordance with national standards, of fishery management plans which will achieve and maintain, on a continuing basis, the optimum yield from each fishery.’ " Id. (quoting 16 U.S.C. § 1801(b)(4) ). The act defines a fishery as "one or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics" and "any fishing for such stocks." Id. § 1802(13).1 "Optimum yield," in turn, "means the amount of fish which 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).
NMFS enforces compliance with the fishery management plans established under the MSA. See generally C & W Fish Co. v. Fox, 931 F.2d 1556 (D.C. Cir. 1991). Of relevance here, a 2006 amendment to the MSA requires all management plans to "establish a mechanism for specifying annual catch limits ... at a level such that overfishing does not occur in the fishery, including measures to ensure accountability." 16 U.S.C. § 1853(a)(15). Although the MSA establishes regional fishery management councils to take primary responsibility for plans covering their respective regions, NMFS directly oversees management plans for highly migratory species, including the dusky shark. See id. §§ 1852(a)(3), 1854(c).
These management plans and the agency's implementing regulations are subject to ten "National Standards," id. § 1851(a)(1)–(10), and other MSA requirements, see id. §§ 1853(a), 1854(e). The two National Standards of greatest relevance here are standards 1 and 2. National Standard 1 requires fishery management plans to "prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry." Id. § 1851(a)(1). And National Standard 2 requires that plans "be based upon the best scientific information available." Id. § 1851(a)(2).
NMFS provides its own gloss on the statute's mandatory National Standards through a series of guidelines. See 50 C.F.R. §§ 600.305 – 600.355. These guidelines do "not have the force and effect of law," but the various regional councils and NMFS personnel must use them "to assist in the development of fishery management plans." 16 U.S.C. § 1851(b). The guidelines specify how the agency is to develop and implement annual catch limits and accountability measures, two of the MSA's key tools for managing fisheries. See, e.g., id. 50 C.F.R. § 600.310(g)(3). An annual catch limit is a "level of catch intended to ensure overfishing does not occur," while accountability measures are "management control[s] intended to prevent annual catch limits from being exceeded, and to correct or mitigate overage of the annual catch limit if they occur." See NOAA Fisheries, Southeast Regional Office, Frequent Questions: Annual Catch Limit Monitoring, https://www.fisheries.noaa.gov/southeast/sustainable-fisheries/frequent-questions-annual-catch-limit-monitoring (last updated August 29, 2019). As relevant here, the guidelines to the National Standards contain an exception providing that "[i]f an [annual catch limit] is set equal to zero and the [accountability measure] for the fishery is a closure that prohibits fishing for a stock, additional [accountability measures] are not required if only small amounts of catch (including bycatch) occur, and the catch is unlikely to result in overfishing."
50 C.F.R. § 600.310(g)(3). The Court will return to this guideline later.
The latest salvo in NMFS's battle against overfishing of dusky sharks, Amendment 5b to the 2006 HMS Fishery Management Plan "aims to achieve a 35 percent mortality reduction relative to 2015 levels, and rebuild dusky shark stock by the year 2107." A.R. at 7111. That 35 percent figure is based on the agency's 2016 stock assessment of the dusky shark which showed that, while dusky shark overfishing had been declining for some time, mortality still needed to fall by 12 percent from 2015 levels to end overfishing, and that a further 35 percent reduction in mortality would be necessary to give the population a 50 percent chance at returning to sustainable levels in approximately 100 years. A.R. at 7079, 7101, 7104. Responding to this assessment, Amendment 5b adopts a number of accountability measures designed to reduce bycatch. It:
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