Oceana, Inc. v. Ross, 1:15–cv–01220–ESH

• Citation: 275 F.Supp.3d 270
• Decision Date: 24 August 2017
• Docket Number: No. 1:15–cv–01220–ESH,1:15–cv–01220–ESH
• Parties: OCEANA, INC., Plaintiff, v. Wilbur ROSS, Jr., in his official capacity as Secretary of the United States Department of Commerce, et al., Defendants.
• Court: U.S. District Court — District of Columbia

275 F.Supp.3d 270

OCEANA, INC., Plaintiff,

v.Wilbur ROSS, Jr., in his official capacity as Secretary of the United States Department of Commerce, et al., Defendants.

No. 1:15–cv–01220–ESH

United States District Court, District of Columbia.

Signed August 24, 2017

Kristine L. Sendek–Smith, Paul William Butler, Stanley Edmund Woodward, Jr., Joseph W. Whitehead, Charles L. Franklin, Akin Gump Strauss Hauer & Feld LLP, Washington, DC, for Plaintiff.

Hao–Chin Hubert Yang, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, United States District Judge

As part of its efforts to prevent overfishing, Congress has directed the National Marine Fisheries Service and regional councils to establish methodologies for collecting and reporting data on fish that are caught but subsequently discarded. Such discards are known as bycatch. In response to the congressional directive, the Northeast region adopted its Standardized Bycatch Reporting Methodology in 2015. Oceana, Inc., a nonprofit organization focused on protecting the oceans, claims that the adoption of this methodology violates the Magnuson–Stevens Act (MSA), the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA). Defendants and Oceana have filed cross-motions for summary judgment. For the reasons that follow, the Court will deny Oceana's motion and grant defendants' motion.

BACKGROUND

To provide context for this case, the Court must introduce the reader to the world of fisheries regulation and the history of bycatch reporting methodologies in the Northeast region. First, the Court will explain the role of bycatch in the fishing industry and the statutory framework for regulating it. Next, the Court will provide a summary of the Northeast region's prior attempts to establish a standardized bycatch reporting methodology and the litigation surrounding those attempts. Finally, the Court will outline the elements of the current methodology and Oceana's challenges to it.

I. CONGRESS REQUIRES A STANDARDIZED BYCATCH REPORTING METHODOLOGY (SBRM)

Fishermen and fishing vessels do not always keep every fish that they catch. "[F]ish which are harvested ... but which are not sold or kept for personal use" are called "bycatch." 16 U.S.C. § 1802(2). There are a variety of reasons for discarding fish. Economic discards occur when fish are "of an undesirable size, sex, or quality, or for other economic reasons." Id. § 1802(9). Regulatory discards are fish discarded because they are of a type that "fishermen are required by regulation to discard whenever caught, or are required by regulation to retain but not sell." Id. § 1802(38). Although fishing vessels may return fish to the water, the phenomenon of bycatch is important because some discarded fish do not survive. (See Administrative Record ("AR") 6472–73.)

The National Marine Fisheries Service (NMFS) regulates bycatch and other aspects of fishing based on the directives in the Magnuson–Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801 et seq. ("MSA"). The purpose of the MSA is to "promote domestic commercial and recreational fishing" while also "conserv[ing] and manag[ing] the fishery resources." Id. § 1801(b). To implement those goals, the MSA establishes eight Regional Fishery Management Councils, which are responsible for developing Fishery Management Plans (FMPs) for their regions. Id. § 1852. There must be a plan for each fishery, which consists of "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." Id. §§ 1802(13), 1852(h). The Secretary of Commerce is responsible for approving FMPs and FMP amendments after public notice and comment, and the Secretary promulgates final regulations as necessary to implement the FMPs. Id. §§ 1802(39), 1853(c), 1854(a), (b). NMFS performs these duties on behalf of the Secretary. Oceana, Inc. v. Locke , 831 F.Supp.2d 95, 101 (D.D.C. 2011).

Congress has established certain requirements for FMPs. 16 U.S.C. § 1853(a). They must include, inter alia, "conservation and management measures ... necessary and appropriate for the conservation and management of the fishery, to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery." Id. § 1853(a)(1). They must "assess and specify the present and probable future condition of, and the maximum sustainable yield and optimum yield from, the fishery," "specify objective and measurable criteria for identifying when the fishery ... is overfished," and "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." Id. § 1853(a)(3), (10), (15). The provision at issue in this case requires FMPs to "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." Id. § 1853(a)(11). Bycatch reporting is necessary to understand the scope of bycatch problems and to make sound fisheries management decisions. (AR 6473.)

II. PRIOR ATTEMPTS TO ESTABLISH AN SBRM

The Mid–Atlantic and New England Fishery Management Councils have made several attempts to establish standardized bycatch reporting methodologies to satisfy the requirements of the congressional directive. Initially, they adopted different methodologies in amendments to individual FMPs. Amendment 13 to the Northeast Multispecies FMP purported to establish an SBRM for that fishery. See Oceana, Inc. v. Evans , Civ. No. 04-811, 2005 WL 555416 (D.D.C. Mar. 9, 2005) (" Oceana I "). Amendment 13 endorsed the use of at-sea fishery observers—scientists who board fishing vessels to record discards during the fishing trip—to obtain data from a sample of fishing trips. Id. at *38 ; see Oceana, Inc. v. Locke , 725 F.Supp.2d 46, 50 n.10 (D.D.C. 2010) (" Oceana III "), rev'd , 670 F.3d 1238 (D.C. Cir. 2011). In the amendment, the Council stated that it "desire[d] 10 percent observer coverage." Oceana I , 2005 WL 555416, at *38. In response to comments, the final rule stated that NMFS "intend[ed] to maintain its observer coverage ... at a minimum level of 5 percent." Id. Noting that the level of observer coverage was subject to change at the whim of the Secretary, this Court held in 2005 that "an FMP that merely suggests a hoped-for result ... does not measure up to the statute's requirements." Id. at *39–40. The Court also found that the amendment did not contain any new methodology and disregarded the best scientific information available. Id. at *39–42. Therefore, it remanded Amendment 13 to the agency for further action to address the bycatch monitoring requirement of the MSA. Id. at *43.

At about the same time, the Court also considered the adequacy of Amendment 10 to the Atlantic Sea Scallop FMP. See Oceana, Inc. v. Evans , 384 F.Supp.2d 203 (D.D.C. 2005) (" Oceana II "). Amendment 10 proposed to fund a live observer program by setting aside one percent of the total allowable catch and days at sea, so that fishing vessels required to carry an observer could use the extra fishing allotment to cover the costs of the observer. Id. at 232 & n.37. As for how those vessels would be chosen, the amendment said only that "[t]he Regional Administrator will determine the number of sea sampled trips and distribution by gear and area, taking into account the desired level of sea sampling needed to estimate bycatch with an accuracy appropriate to the scallop [fishery] at which the bycatch information will affect management decisions. As such, it would be appropriate for sea sampling intensity to favor areas of higher than average groundfish and turtle bycatch." Id. at 233. This Court held that Amendment 10 violated the MSA because it did not set forth any program for obtaining reliable estimates of bycatch. Id. at 232–34. Instead, it assigned that task to the Regional Administrator and gave him complete discretion. Id. As with Amendment 13, the Court also found that the agency had failed to consider the best scientific information available. Id. at 235–36. Thus, in 2005 the Court remanded the bycatch reporting aspect of Amendment 10 as well. Id. at 256.

NMFS responded to the remand orders in Oceana I and II by developing the Northeast Region Omnibus SBRM Amendment, which was implemented in 2008 and set out bycatch reporting procedures to apply to all thirteen fisheries in the Northeast region. Oceana III , 725 F.Supp.2d at 51. The 2008 SBRM described a methodology to allocate observers to vessels so that the data collected would be sufficient to produce bycatch rates with a particular level of precision. Id. at 54. Specifically, it measured precision as a coefficient of variation (CV) that decreases with increasing precision, and it stated that the CV would be 30 percent or lower for each species or species group. Id. at 54 & n.13. However, if "external operational constraints" prevented NMFS from fully implementing the required observer coverage levels, the Regional Administrator would consult with the councils to determine an appropriate prioritization for available resources. Id. at 54–55. The Administrator could consider data needs for stock assessments or management actions, legal mandates, "and/or any other criteria identified by NMFS and/or the Councils." Id. This Court rejected Oceana's legal challenges to the 2008 SBRM, id. at 72, but the D.C. Circuit reversed and directed this Court to remand the matter to the agency, Oceana, Inc. v. Locke , 670 F.3d 1238, 1243 (D.C. Cir. 2011) (" Oceana III (Appeal) "). The D.C. Circuit held that NMFS had...