Pac. Coast Fed'n of Fishermen's Ass'n v. Locke
| Decision Date | 05 August 2011 |
| Docket Number | No. C 10-04790 CRB,C 10-04790 CRB |
| Parties | PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATION, et al., Plaintiffs, v. GARY LOCKE, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
This case calls upon the Court to wade into the murky waters of administrative review of comprehensive agency action. It concerns challenges to two Amendments (20 and 21) to the Pacific Coast Groundfish Fishery Management Plan ("FMP").1 The FMP covers UnitedStates territorial waters off the coast of Washington, Oregon, and California and includes over 90 groundfish species. B14; B1:*146-153.2
Amendment 20 is directed toward the trawl section3 of the fishery and creates a Limited Access Privilege Program ("LAPP") involving Individual Fishing Quotas ("IFQ").4The purpose of Amendment 20, broadly speaking, is to "rationalize" the trawl sector of the fishery, which has become "economically unsustainable due to the number of participating vessels, excess capacity, a regulatory approach that constrains efficiency, and the status of certain groundfish stocks along with the measures in place to protect those stocks." D45:*30.
Amendment 21 is an "intersector" allocation of total catch allowance for the groundfish fishery. It grants 90% of the total allowable catch of specified groundfish to the trawl sector and 10% to the non-trawl sector. That allocation is based on historical catch rates, under which the trawl sector dominated the fishery.
Plaintiffs' overarching challenge to these Amendments is that their outcome was predetermined, and the National Marine Fisheries Service ("NMFS") and the Pacific Fishery Management Council ("the Council") did not go through a real deliberative process before enacting them. Largely because of this preordained outcome, Plaintiffs assert that Federal Defendants violated the Magnuson-Stevens Fishery Conservation and Management Act ("MSA") and the National Environmental Policy Act ("NEPA").
* * *
Federal Defendants could have gone about the process of developing Amendments 20 and 21 differently and perhaps avoided at least some of the issues presently before the Court.But the Court is not called upon to decide whether a different process might have been utilized or whether the path ultimately chosen by Federal Defendants is the wisest policy. Rather, the task before this Court is to determine whether Federal Defendants ran afoul of the MSA or NEPA. In the Court's view, they did not. Accordingly, Federal Defendants are entitled to Summary Judgment.
The Council manages the Pacific Coast Groundfish Fishery. See 16 U.S.C. § 1802(a)(1)(A).6
The fishery is made up of groups of participants ("sectors") that use different types of fishing gear/methods. The trawl sector accounts for the vast majority of the catch of most groundfish species. See 75 Fed. Reg. at 60888 (response to comment 81). The trawl sector is made up of three types of vessels: (1) shore-based processors; (2) mothership processors (vessels that process catch offshore at a mothership); and (3) catcher-processor vessels that catch and process onboard.
The non-trawl sector fishes with pots and longline gear and mostly targets the high-value sablefish. B22:132-37.
The fishery is not operating effectively for the fish or the fishing industry. B22:516; B22:14. Indeed, the Secretary of Commerce declared the fishery a federal disaster area in 2000, and the fishery was viewed as economically unsustainable. B22:15; D45:*30. Further, at the time of the enactment of Amendments 20 and 21, seven species managed under the FMP had been designated as overfished and are managed under rebuilding plans. B14:21-52; See 50 C.F.R. § 660.40.
In September 2003, in response to problems in the fishery generally and the trawl sector specifically, the Council started work on a trawl rationalization program and established a committee to consider issues related to developing an IFQ program and make recommendations as to program details. B22:15, 18; H2:44-45. In May 2004, the NMFS and the Council published a notice of intent to prepare an Environmental Impact Statement ("EIS") to analyze LAPP proposals for the trawl fishery. See 69 Fed. Reg. 29,482.
In a scoping document released the following month, the Council determined that the trawl fishery faced "serious biological, social, and economic concerns." H50:*6; H117:*11. In particular: (1) uncertain bycatch rates; (2) limited incentives for bycatch reduction; (3) loss of opportunities to harvest target species; (4) pressure regarding bycatch estimates; (5) inability to accommodate the variety of harvest patterns of trawlers; (6) inability to respond to market and other variables; and (7) community uncertainty. In response to the foregoing, the Council developed the following goal: "Create and implement a capacity rationalization plan that increases net economic benefits, creates individual economic stability, provides for full utilization of the trawl sector allocation, considers environmental impacts, and achieves individual accountability of catch and bycatch." I30:*5.
Amendment 20 was enacted following a lengthy process. It divides the trawl sector into three main programs: shorebased to be managed by IFQs; mothership; and co-op programs. B26:3, *13. It includes an individual accountability system whereby all catch by shorebased trawl vessels count against the individual trawl participant's shares, including retained and discarded catch. B26:*23. Amendment 20 provides for observer coverage on all vessels and monitoring of each vessel's offload. Id. at *16.7 Because discards by shorebased trawlers count against their quotas, the belief is that they will have a strong incentive to fish more responsibly. B26:*23; B22:*67. Amendment 20 provides thattrawlers with limited entry permits receive an initial allocation of 80% of the whiting and 90% of the nonwhiting Quota Share (sometimes referred to as "QS"). B26:*15. Eligible shoreside processors were granted 20% of the whiting Quota Share, and 10% of the nonwhiting Quota Share was set aside as part of an Adaptive Management Program ("AMP") to be used after program implementation to address adverse impacts, such as community instability, processor instability, and conservation. B22:58. Quota Share is non-transferrable in the first two years of the program. B22:509. After that, transfer is permitted, and generally speaking anyone eligible to own a U.S.-documented fishing vessel will be able to acquire Quota Share, which is highly divisible. 50 C.F.R. § 660.140(d)(3)(ii)(B)(2). These provisions allow for new entrants into the fishery. B22:59, A-264, A-283.
In conjunction with and to support the trawl rationalization plan, the Council determined that it made sense to redesign the way that it allocated intersector allotments of the total allowable catch in the fishery (i.e., allotments between the trawl and non-trawl sectors). H45:31-32. Under the FMP before Amendment 21, the annual harvest specification for each species was allocated between sectors by taking the optimum yield and subtracting from it amounts of fish necessary for tribal fisheries, bycatch for exempted fishing permits, estimates of research catch, recreational catch, and bycatch in non-groundfish fisheries. B1; B14. The resulting number, called the Commercial Harvest Guideline, was then divided between the limited entry and open access sectors and then further divided within the limited entry sector between trawl and non-trawl and then between whiting and nonwhiting within the trawl fleet.
In November 2005, the NMFS and the Council published a Notice of Intent in the Federal Register announcing an intention to prepare an EIS to analyze alternatives to establish intersector allocations. See 70 Fed. Reg. 70,054. By November 2007, the Council decided a preliminary range of intersector allocation alternatives and reduced the scope of the proposed intersector allocation actions by removing the non-trawl-dominant overfished species. H289:29-30. The Council finally adopted its preferred alternative for the limited entry trawl and non-trawl allocations in April 2009. H512:22-32.
The MSA was enacted in 1976 to "conserve and manage the fishery resources found off the coasts of the United States" and "to promote domestic commercial and recreational fishing under sound conservation and management principles." 16 U.S.C. § 1801(b)(1), (3). The MSA established eight regional fishery management councils. These councils are tasked with developing fishery management plans and amendments to "achieve and maintain, on a continuing basis, the optimum yield from each fishery." 16 U.S.C. §§ 1801(b)(4), 1852(a)(1), (h)(1).
If a council limits access to a fishery via a LAPP, it must "take into account" seven factors enumerated in Section 303(b)(6). 16 U.S.C. § 1853(b)(6) (). In addition, amendments to fishery management plans must be consistent with ten National Standards. 16 U.S.C. § 1851(a)(1)-(10).8
NEPA requires federal agencies to examine the environmental impacts of their proposed actions and to notify the public about those impacts. 42 U.S.C. § 4332(C). NEPA requires an agency to prepare an EIS when it proposes a "major Federal action[] significantly affecting the quality of the human environment[.]" 42 U.S.C. § 4332(C). An EIS must "provide [a] full and fair discussion of significant environmental impacts" to "inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the...
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