Oceana, Inc. v. Ross, Case No. 19-CV-03809-LHK

Citation483 F.Supp.3d 764
Decision Date02 September 2020
Docket NumberCase No. 19-CV-03809-LHK
CourtU.S. District Court — Northern District of California
Parties OCEANA, INC., Plaintiff, v. Wilbur L. ROSS, et al., Defendants.

Stephen Mashuda, Earthjustice, Seattle, WA, Andrea A. Treece, Earthjustice, San Francisco, CA, for Plaintiff.

Clifford Eugene Stevens, Jr., United States Department of Justice, Washington, DC, for Defendants.

ORDER REGARDING MOTIONS FOR SUMMARY JUDGMENT

Re: Dkt. Nos. 59, 63, 64

LUCY H. KOH, United States District Judge

Plaintiff Oceana, Inc. ("Plaintiff") brings this action against Defendant Wilbur Ross, in his official capacity; Defendant National Oceanic and Atmospheric Administration ("NOAA"); and Defendant National Marine Fisheries Service ("NMFS") (collectively, "Government Defendants"). On August 23, 2019, the Court granted California Wetfish Producers Association and Monterey Fish Company Inc.’s ("Intervenor-Defendants") unopposed motion to intervene. ECF No. 27.

Before the Court are Plaintiff's motion for summary judgment, Intervenor-Defendants cross-motion for summary judgment, and Government Defendantscross-motion for summary judgment. ECF Nos. 59, 63, and 64. Having considered the parties’ submissions, the relevant law, and the record in this case, the Court GRANTS in part and DENIES in part Plaintiff's motion for summary judgment and Intervenor-Defendants’ and Government Defendantscross-motions for summary judgment.

I. BACKGROUND
A. Statutory and Regulatory Background
1. Magnuson-Stevens Fishery Conservation and Management Act

In response to overfishing concerns, Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act of 1976 ("Magnuson-Stevens Act" or "MSA") to promote the long-term biological and economic sustainability of marine fisheries in U.S. federal waters. See 16 U.S.C. § 1801(a)(b). The Magnuson-Stevens Act created eight Regional Fishery Management Councils and requires the Councils to create fishery management plans ("FMPs") aimed at preventing overfishing, along with any amendments to the FMPs. Id. §§ 1852(h)(1), 1801(b)(4), 1854(a)(3).

Councils submit FMPs and amendments to the Secretary of Commerce ("Secretary"), who reviews them to determine whether they are consistent with the Magnuson-Stevens Act and other applicable law. Id. §§ 1851(a), 1854(a)(1)(A). The Secretary must publish notice of a Council's proposed FMP or amendment in the Federal Register and solicit public comment. Id. §§ 1854(a)(1)(B), 1854(a)(5). Within 30 days of the close of the public comment period, the Secretary must either "approve, disapprove, or partially approve [the FMP] or amendment ... by written notice to the Council." Id. § 1854(a)(3). If the Secretary does not notify the Council of the Secretary's decision, the FMP or amendment takes effect as if approved. Id.

FMPs and amendments "do not themselves have any regulatory effect—implementing regulations must also be enacted in order to effectuate them." N. Carolina Fisheries Ass'n, Inc. v. Gutierrez , 550 F.3d 16, 17 (D.C. Cir. 2008). The Magnuson-Stevens Act therefore requires Councils to submit proposed regulations implementing an FMP or amendment to the Secretary for approval. 16 U.S.C. § 1853(c)(1). The Secretary evaluates whether the proposed regulations are consistent with the FMP, amendment, the Magnuson-Stevens Act, and any other applicable law. Id. § 1854(b)(1). If the Secretary determines the proposed regulations are consistent, the Secretary must "publish such regulations in the Federal Register ... for a public comment period of 15 to 60 days." Id. § 1854(a)(1)(A). The Secretary then "promulgate[s] final regulations within 30 days after the end of the comment period." Id. § 1854(b)(3). In practice, the NMFS carries out the Secretary's duty to review FMPs, amendments, and regulations because the Secretary has delegated his responsibilities under the Magnuson-Stevens Act to the NMFS. Pac. Dawn LLC v. Pritzker , 831 F.3d 1166, 1170 (9th Cir. 2016).1

Chief among the Magnuson-Stevens Act requirements that FMPs, amendments, and regulations must satisfy are the Magnuson-Stevens Act's ten "national standards for fishery conservation and management." 16 U.S.C. § 1851(a) (setting out the ten National Standards). This action centers on National Standard One and National Standard Two. Id. §§ 1851(a)(1) (National Standard One), 1851(a)(2) (National Standard Two).

National Standard One requires that "[c]onservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry." 16 U.S.C. § 1851(a)(1). The term "overfishing" means "a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis." Id. § 1802(34). Maximum sustainable yield ("MSY") is "the largest long-term average catch or yield that can be taken from a stock or stock complex under prevailing ecological, environmental conditions and fishery technological characteristics." 50 C.F.R. § 600.310(e)(1)(i)(A). Thus, overfishing is "a rate of fishing which would jeopardize the capacity of a fishery to produce the [MSY] on a continuing basis." Oceana, Inc. v. Bryson , 940 F. Supp. 2d 1029, 1036 (N.D. Cal. 2013).

"Congress, however, recognized that a certain amount of scientific uncertainty in predicting a stock's overfishing level is inevitable," and as a result, National Standard One guidelines "operate to ensure that there is no greater than a 50% probability that overfishing will occur." Oceana, Inc. v. Locke , 831 F. Supp. 2d 95, 128 (D.D.C. 2011) (citing 50 C.F.R. § 600.310(f) ); Massachusetts v. Pritzker , 10 F. Supp. 3d 208, 213 (D. Mass. 2014) ("The objective of the control rule is to provide a buffer between OFL [overfishing limit] and ABC [acceptable biological catch] such that there is less than a 50% chance that overfishing will occur."); 50 C.F.R. § 600.310(f)(2)(i) (implementing regulations for National Standard One stating that ABC "could be based on an acceptable probability (at least 50 percent) that catch equal to the stock's ABC will not result in overfishing"). Moreover, in adopting the National Standard One guidelines, the NMFS explicitly found that "the focus is on producing MSY in the long-term" and that "[s]mall amounts of excess effort or catch in a single year may not jeopardize a stocks’ ability to produce MSY over the long term." 81 Fed. Reg. 71858, 71859 (Oct. 18, 2016).

National Standard Two requires that "[c]onservation and management measures shall be based upon the best scientific information available." 16 U.S.C. § 1851(a)(2). However, "[t]he fact that scientific information concerning a fishery is incomplete does not prevent [regulation]." 50 C.F.R. § 600.315(b). On the contrary, "by specifying that decisions be based on the best scientific information available , the Magnuson-Stevens Act recognizes that such information may not be exact or totally complete." Midwater Trawlers Coop. v. Dep't of Commerce , 393 F.3d 994, 1003 (9th Cir. 2004) (emphasis in original).

2. Magnuson-Stevens Fishery Conservation and Management Reauthorization Act

The Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 ("MSRA"), "impose[s] additional requirements for fishery management plans intended to strengthen the role of science and account for uncertainty in fishery management." Bryson , 940 F. Supp. 2d at 1037. In relevant part, the MSRA requires that each FMP "establish a mechanism for specifying annual catch limits in the plan ... at a level such that overfishing does not occur in the fishery, including measures to ensure accountability." 16 U.S.C. § 1853(a)(15). The annual catch limits ("ACLs") "may not exceed the fishing level recommendations of [the Council's] scientific and statistical committee." Id. § 1852(h)(6).

ACLs are set with reference to the overfishing limit ("OFL") and the acceptable biological catch ("ABC"). The OFL is a quantifiable factor that is "used to determine if overfishing has occurred, or if the stock or stock complex [of a fishery] is overfished." 50 C.F.R. § 600.310(e)(2)(i)(A). Determining when overfishing has occurred involves a degree of scientific uncertainty, so in the course of setting an OFL, Councils are also instructed to establish an ABC, which is "a level of a stock or stock complex's annual catch that accounts for the scientific uncertainty in the estimate of OFL and any other scientific uncertainty." Id. § 600.310(f)(2)(ii) Because the ABC is the OFL after the OFL has been reduced to account for scientific uncertainty, a fishery's ABC is likely to be lower than the fishery's OFL. Bryson , 940 F. Supp. 2d at 1037 ; 50 C.F.R. § 600.310(f)(3) ("While the ABC is allowed to equal OFL, [the Service] expects that in most cases ABC will be reduced from OFL to reduce the probability that overfishing might occur in a year."); Locke , 831 F. Supp. 2d at 128 (ABC must be set "to ensure that there is no greater than a 50% probability that overfishing will occur."); 50 C.F.R. § 600.310(f)(2)(i) (ABC "could be based on an acceptable probability (at least 50 percent) that catch equal to the stock's ABC will not result in overfishing"). In turn, the ACL "is a limit on the total annual catch of a stock or stock complex," which may be equal to but "cannot exceed the ABC." 50 C.F.R. § 600.310(f)(1)(iii) ; see also id. § 600.310(f)(4)(i) ("If a Council recommends an ACL which equals ABC, and the ABC is equal to OFL, the Secretary may presume that the proposal would not prevent overfishing, in the absence of sufficient analysis and justification for the approach.").

B. Factual Background
1. Northern Anchovy

The northern anchovy ("anchovy") is a small fish that is typically found in schools near the ocean's surface. 2016 AR 7:146, 174. Anchovy are relatively short-lived, and their populations tend to fluctuate significantly over time. 2016 AR 7:294; 2016...

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