Pacific Marine Conservation Council, Inc. v. Evans

• Citation: 200 F.Supp.2d 1194
• Decision Date: 12 April 2002
• Docket Number: No. C 01-2506 JL.,C 01-2506 JL.
• Court: U.S. District Court — Northern District of California
• Parties: PACIFIC MARINE CONSERVATION COUNCIL, INC., et al., Plaintiffs, v. Donald EVANS, et al., Defendants.

200 F.Supp.2d 1194

PACIFIC MARINE CONSERVATION COUNCIL, INC., et al., Plaintiffs, v. Donald EVANS, et al., Defendants.

No. C 01-2506 JL.

United States District Court, N.D. California.

April 12, 2002.

COPYRIGHT MATERIAL OMITTED

Eric A. Bilsky, Washington, DC, Andrew P. Caputo, San Francisco, CA, Monica B. Goldberg, Washington, DC, Sylvia F. Liu, Washington, DC, for plaintiffs.

Mauricia M.M. Baca, United States Dept. of Justice, Environmental & Natural Resources Division, Washington, DC, Richard P. Laverdure, U.S. Attorney's Office Civil Division, San Francisco, CA, Catherine R. Lewers, United States Department of Justice, Washington, DC, Ruth Ann Storey, Washington, DC, for defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

LARSON, United States Magistrate Judge.

INTRODUCTION

Both sides in this action filed Cross-Motions for Summary Judgment [Document Number 17 and 21] and a hearing was conducted on February 27, 2002. Andrew Caputo of the Natural Resources Defense Council, Inc. appeared for Plaintiffs. Mauricia Baca of the U.S. Department of Justice appeared for Defendants. Having considered the moving and opposing papers and arguments of the parties, this court hereby GRANTS Plaintiff's Motion for Summary Judgment, DENIES Defendant's Cross-Motion, and REMANDS Amendment 13 to National Marine Fisheries Service ("NMFS") for reconsideration in light of the legal requirements mandated by the Magnuson-Stevens Fishery Conservation and Management Act ("MSA").

FACTUAL BACKGROUND

Plaintiffs Pacific Marine Conservation Council, Natural Resources Defense Council, and Ocean Conservancy (collectively "Plaintiffs") move for summary judgment on the grounds that the National Marine Fisheries Service ("NMFS") violated the Magnuson-Stevens Fishery Conservation and Management Act ("MSA"), 16 U.S.C. § 1801 et seq., by approving Amendment 13 to the Pacific Coast Groundfish Fishery Management Plan ("FMP"). Plaintiffs allege that Amendment 13 does not comply with MSA's requirement to regulate by-catch.¹ Plaintiffs request that this court declare that NMFS, in enacting Amendment 13, violated the MSA, the National Environmental Policy Act ("NEPA"), and the Administrative Procedure Act ("APA"). Plaintiffs also move the court to remand Amendment 13 to NMFS for reconsideration in light of the legal requirements mandated by the acts. Defendants Donald Evans, United States Secretary of Commerce, NMFS, and the National Oceanic and Atmospheric Administration ("NOAA") (collectively "Defendants") filed their cross-motion for summary judgment and request that Plaintiffs' motion for summary judgment be denied. They ask the court to find that Amendment 13 establishes both adequate methodology and adequate conservation management measures that address bycatch to the extent practicable.

The MSA governs the management of federal fishing waters off the coast of the United States. The Commerce Department directs the NOAA, which in turn delegates practical management to the NMFS. NMFS oversees the operations of the eight regional fishery management councils, including the Pacific Fishery Management Council ("Pacific Council"). The Pacific Council develops annual harvest recommendations for the species of fish within its fishery. These recommendations are then subject to revision by the NMFS and formal approval by the Secretary of Commerce.

The MSA was amended in 1996 by the Sustainable Fisheries Act ("SFA") to provide more stringent protections for overfished species such as bocaccio and lingcod. Natural Resources Defense Council, Inc. v. Evans ("NRDC I"), 168 F.Supp.2d 1149, 1152 (N.D.Cal.2001). NMFS is responsible under the MSA for ensuring the protection and repopulation of these species through the implementation of rebuilding plans and its annual fishing specifications and limits. Id. SFA requires that all fishery management plans aim to rebuild depleted fish populations within a period "as short as possible," but "not to exceed ten years." 16 U.S.C. § 1854(e)(4)(A). The SFA imposes an October 11, 1998, deadline on all regional councils to develop the necessary rules and regulations to comply with the statute. Sustainable Fisheries Act 108(b), Pub.L. No 104-297, 110 Stat. 3359, 3575 (1996). Under ordinary review and approval procedures, Defendants would have been bound to approve all such measures no later than February 1999. 16 U.S.C. § 1854(a); Conservation Law Found. v. Evans, ____, F.Supp.2d ____, ____, No. 00-1134(GK), slip op. at 6, 2001 WL 1873236 (D.D.C. Dec 28, 2001). Furthermore, the SFA imposes a statutory duty on the Defendants to ensure that the regional councils implemented the provisions of SFA. 16 U.S.C. § 1854(c)(1); see also, Conservation Law Found., ____ F.Supp.2d at ____, No. 00-1134, slip op. at 6.

In enacting the SFA, Congress sought to address the issue of bycatch in America's fisheries by adding important new bycatch requirements.

First, Congress added to the MSA a requirement that fishery managers assess the amount and type of bycatch occurring in each fishery. Congress required each fishery management plan to "establish a standardized reporting methodology to assess the amount and type of bycatch occurring in" each fishery management. Sustainable Fisheries Act 108(a)(7), 110 Stat. at 3575 (codified at 16 U.S.C. § 1853(a)(11)).

Second, Congress required fishery managers to take affirmative steps to minimize bycatch and bycatch mortality. Specifically, section 108(a)(7) of the SFA mandates that any fishery management plan which is prepared by any Council, or by the Secretary, with respect to any fishery, shall:

[I]nclude 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.

16 U.S.C. § 1853(a)(11) (emphasis added); see also Sustainable Fisheries Act 106(b), 110 Stat. at 3570 (codified at 16 U.S.C. § 1851(a)(9)) (same requirement). Congress further mandated quick action by fishery managers to implement these and other SFA requirements by requiring fishery management councils to submit to NMFS proposed FMP amendments to NMFS. These amendments were intended to bring each existing FMP into compliance with new statutory requirements no later than two years after enactment of the SFA, or by October 11, 1998. Sustainable Fisheries Act § 108(b), 110 Stat. at 3575.

In October 1998 the Pacific Council submitted to NMFS proposed Amendment 11 to the Pacific Coast Groundfish FMP. This was an effort to bring the FMP into compliance with the new requirements of SFA. In 1999, NMFS approved most of Amendment 11 but disapproved the amendment's bycatch provisions. NMFS concluded that Amendment 11 was not responsive to the bycatch requirements of the Magnuson-Stevens Act because it contained no specific measures to collect bycatch information. NMFS concluded that a bycatch amendment would also have to include "an analysis of all practicable alternatives to the current year-round trip limit management system that could be expected to result in a reduction of bycatch rates."

In an effort to respond to NMFS' disapproval of the bycatch provisions of Amendment 11, the Pacific Council subsequently prepared Amendment 13 to the Pacific Groundfish FMP and submitted the proposed amendment to the NMFS in 2000. The purpose of Amendment 13 is to bring the FMP into compliance with the bycatch-related requirements of the MSA. Unfortunately, as discussed below, Amendment 13 falls short of what is required by the MSA.

To comply with MSA's requirement that each plan establish a standardized reporting methodology to assess the amount and type of bycatch, Amendment 13 permits but does not require an observer program.² Amendment 13 provides: "The Regional Administrator may implement an observer program through a Council-approved federal regulatory framework." 3 AR B. 14, Appendix A, at A-6 (emphasis added). Amendment 13 does not make the observer program mandatory despite the NMFS' own conclusion that an at-sea observer program is essential for adequately assessing bycatch in the Pacific groundfish fishery. 16 AR 0.31 at 2 (NMFS concluded that "critical information on the portion of the catch that is discarded at sea is available only through the placement of onboard observers.")

Similarly, to attempt to comply with MSA's requirement to minimize both bycatch and bycatch mortality, Amendment 13 lists but does not require certain types of bycatch reduction techniques for the non-whiting groundfish fishery. The sentence in Amendment 13 that introduces this list of potential bycatch reduction techniques reads:

These [bycatch reduction measures] may include but are not limited to: Full retention or increased utilization programs; setting shorter-than-year-round fishing season in combination with higher cumulative landing limits; allowing permit stacking in the limited entry fleet; gear modification requirements; catch allocation to, or gear flexibility for, gear types with lower bycatch rates; re-examining/improving species-to-species landings limit ratios; and time/area closures.

3 AR B.14, Appendix A, at A-5. Amendment 13 did not make these techniques mandatory ("may include"), despite MSA's unambiguous intent to minimize bycatch and bycatch mortality to the extent practicable.

STANDARD OF REVIEW

The MSA confines the scope of judicial review of agency regulations and actions to that provided in 5 U.S.C. § 706(2)(A),(B), (C), or (D) of the APA. 16 U.S.C. § 1855(f)(1)(B); NRDC I, 168 F.Supp.2d at 1154. Section 706 of the APA requires reviewing courts to "hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). An agency decision may be invalidated if it fails to consider important aspects of a problem, uses criteria Congress did not intend, or is not explained...