Pac. Coast Fed'n of Fishermen's Associations v. Blank

• Decision Date: 10 September 2012
• Docket Number: No. 11–17108.,11–17108.
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS; Port Orford Ocean Resource Team; San Francisco Crab Boat Owners Association, Plaintiffs–Appellants, v. Rebecca M. BLANK, in her official capacity as Acting Secretary of the United States Department of Commerce; National Marine Fisheries Service; National Oceanic and Atmospheric Administration, Defendants–Appellees.

693 F.3d 1084

2012 Daily Journal D.A.R. 12,703

PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS; Port Orford Ocean Resource Team; San Francisco Crab Boat Owners Association, Plaintiffs–Appellants,

v.Rebecca M. BLANK, in her official capacity as Acting Secretary of the United States Department of Commerce; National Marine Fisheries Service; National Oceanic and Atmospheric Administration, Defendants–Appellees.

No. 11–17108.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Aug. 7, 2012.

Filed Sept. 10, 2012.

Mark A. White and Andrea Kendrick, Chapman Popik & White LLP, San Francisco, CA; Mary L. Hudson (argued), Law Office of Mary L. Hudson, Sausalito, CA; Alan Waltner, Law Offices of Alan Waltner, San Francisco, CA, for the plaintiffs-appellants.

Ignacia S. Moreno, Meredith Flax, Romney Philpott, Joseph Matthews, Brian C. Toth (argued), U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C.; Mariam McCall, Office of General Counsel, National Oceanic & Atmospheric Administration, Seattle, WA, for the defendants-appellees.

Shirish Gupta, San Mateo, CA, for amicus curiae Food & Water Watch, Inc.

Michael F. Scanlon and J. Timothy Hobbs (argued), K & L Gates LLP, Seattle, WA, for amici curiae Environmental Defense Fund, United Catcher Boats, and Midwater Trawlers Cooperative.

Appeal from the United States District Court for the Northern District of California, Charles R. Breyer, District Judge, Presiding. D.C. No. 3:10–cv–04790–CRB.

Before: CONSUELO M. CALLAHAN and PAUL J. WATFORD, Circuit Judges, and EDWARD R. KORMAN, Senior District Judge.^*

OPINION

CALLAHAN, Circuit Judge:

In 2011, the National Marine Fisheries Service (“NMFS”) and the Pacific Fishery Management Council (“Pacific Council” or “Council”) adopted changes to the fishery management plan for the trawl sector of the Pacific Coast groundfish fishery. The changes, adopted as Amendments 20 and 21 to the Pacific Coast Groundfish Fishery Management Plan, are designed to increase economic efficiency through fleet consolidation, reduce environmental impacts, and simplify future decisionmaking.

Plaintiffs–Appellants Pacific Coast Federation of Fishermen's Associations, et al. (“plaintiffs”) are a collection of primarily non-trawl fishermen's associations and groups whose longtime participation in the fishery may shrink under Amendments 20 and 21. They argue that the Amendments are unlawful under the Magnuson–Stevens Fishery Conservation and Management Act (“MSA”), 16 U.S.C. §§ 1801–1884, which imposes procedural and substantive requirements for managing fisheries, and the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321–4347, which imposes purely procedural requirements for reviewing the potential environmental effects of proposed agency actions.

The district court, which had jurisdiction pursuant to 16 U.S.C. § 1861(d) and 28 U.S.C. § 1331, granted summary judgment to the defendants. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. NMFS ¹ complied with the MSA's provisions, which required the agency to consider fishing communities but did not require it to develop criteria for allocating fishing privileges to such communities or to restrict privileges to those who “substantially participate” in the fishery. NMFS also complied with NEPA by preparing a separate study for each amendment, analyzing a reasonable range of alternatives, adequately evaluating potential environmental effects, and adopting flexible mitigation measures designed, in part, to lessen the potential adverse effects of Amendments 20 and 21 on fishing communities. The plaintiffs reasonably disagree with the balance NMFS struck between competing objectives, but they do not show that NMFS exceeded its statutory authority under the MSA or ignored its obligations under NEPA.

BACKGROUND

A. Statutory and regulatory background

1. The MSA

a. Fishery management plans

The MSA establishes eight Fishery Management Councils composed of fishing representatives and government and tribal officials. 16 U.S.C. § 1852. The Councils are charged with preparing fishery management plans for fisheries that require “conservation and management.” Id. § 1852(h)(1). Plans must contain measures to “prevent overfishing and rebuild overfished stocks,” id. § 1853(a)(1)(A), and “assess and specify,” among other things, the “optimum yield” from each fishery, id. § 1853(a)(3); see also50 C.F.R. § 600.10 (defining “optimum yield”).

To the extent measures are necessary to reduce overall harvest to prevent overfishing, a fishery management plan must allocate any harvest restrictions fairly and equitably among the commercial and recreational sectors that participate in the fishery. 16 U.S.C. § 1853(a)(13), (14). Plans may include restrictions on fish catch or gear types, establish a limited access system in order to achieve optimum yield, or include any other measures “determined to be necessary and appropriate for the conservation and management of the fishery.” Id. § 1853(b)(3), (4), (6), (14). Plans must comply with ten national standards. Id.§§ 1851(a), 1853(a)(1)(C), 1854(a)(1)(A). As relevant here, National Standard 2 requires that “[c]onservation and management measures shall be based upon the best scientific information available.” Id.§ 1851(a)(2); see also50 C.F.R. § 600.315(b)(1). National Standard 8 requires that

[c]onservation and management measures shall, consistent with the conservation requirements of this chapter (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities by utilizing economic and social data that meet the requirements of [National Standard 2], in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities.

16 U.S.C. § 1851(a)(8); see also50 C.F.R. § 600.345(b)(2).²

The Fishery Management Councils submit fishery management plans for review by the public and review and approval by NMFS, acting on behalf of the Secretary of Commerce. 16 U.S.C. § 1854(a). The Councils and NMFS follow the same process for regulations to implement a given plan. Id. §§ 1853(c), 1854(b).

b. Limited access programs

Beginning in 1990, the Fishery Management Councils began to regulate certain fisheries by adopting programs limiting those who could enter and participate in the fisheries. See16 U.S.C. § 1853(b)(6) (authorizing “limited access system[s] ... in order to achieve optimum yield”). These programs were referred to as “individual fishing quota” programs, under which individual fishery participants received privileges to harvest a specific quantity of fish.

In 1996, Congress imposed a temporary moratorium on new quota programs until the National Academy of Sciences studied those programs and their effects on fishing communities. Pub. L. No. 104–297, § 108(f), 110 Stat. 3559, 3577–79 (1996). The resulting report concluded that quota programs can be effective solutions to a host of fishery-related problems, including economic inefficiency, overcapitalization (too many resources directed at too few fish), and overfishing, but that such programsalso can have serious adverse impacts on fishing communities. The report ultimately recommended lifting the quota moratorium, subject to the report's guidance. The report noted that quota programs are most likely to be successful when their objectives are clear and there is “broad stakeholder support and participation.” Finally, the report emphasized the need for quota programs to be designed on a fishery-by-fishery basis.

In 2007, Congress reauthorized the MSA and lifted the quota moratorium by adding a section that authorizes “limited access privilege programs.” Pub. L. No. 109–479, § 106, 120 Stat. 3575, 3586 (2007) (codified at 16 U.S.C. § 1853a). Under such programs, of which quota programs are a subset, fishery participants receive “privileges” (or, in the case of quota programs, “quota shares”) to harvest a certain portion of the total catch allowed for a particular species. 16 U.S.C. § 1802(26). NMFS and the Fishery Management Councils must structure limited access programs in accordance with various requirements, some of which concern fishing communities and form the basis of the plaintiffs' arguments in this case. See infra Discussion, § A (discussing 16 U.S.C. § 1853a(c)(3), (5)).

2. NEPA

NEPA requires federal agencies to examine and disclose the environmental impacts of their proposed actions. Baltimore Gas & Elec. Co. v. NRDC, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). NEPA's mandate is purely procedural. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350–51, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989); Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1070 (9th Cir.2002).

NEPA requires federal agencies to prepare an environmental impact statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Under NEPA's implementing regulations, 40 C.F.R. §§ 1500–1508 (1986), an agency prepares a draft EIS in which it evaluates the proposed action and its direct, indirect, and cumulative environmental impacts and compares the proposed action with reasonable alternatives, including a “no action” alternative, id.§ 1502.14. The agency then circulates the draft EIS for public review and comment. Id. §§ 1502.19, 1503.1. The agency reviews and responds to any comments, makes any appropriate changes to the EIS, and then circulates the final EIS. Id. § 1503.4. Finally, the agency selects an alternative and issues a decision. Id. § 1505.2.

B. Factual background1. The Pacific groundfish fishery

The Pacific groundfish fishery extends 200 miles into the Pacific Ocean, along the coasts of California, Oregon, and Washington, and includes more than 90 species of fish that dwell near the sea floor....