San Joaquin River Group Auth. v. Nat'l Marine Fisheries Serv., 1:11-cv-00725 OWW GSA

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtOliver W. Wanger
Decision Date30 September 2011
Docket Number1:11-cv-00725 OWW GSA

CENTRAL DELTA WATER AGENCY, et al. , Defendant-Intervenors,

1:11-cv-00725 OWW GSA


Dated: September 30, 2011

(DOCS. 58, 73, 77, 80)


This suit arises from the United States Pacific Fisheries Management Council's ("PFMC" or the "Council") April 13, 2011 adoption of commercial troll and recreational fishing management measures for the waters south of Cape Falcon, Oregon, permitting commercial and recreational fishing for Sacramento River fall-run Chinook Salmon ("SRFC") for the 2011 fishing season ("2011 management measures"), and the National Marine Fisheries Service's ("NMFS") May 4, 2011 approval of the PFMC's recommended 2011 management measures. Doc. 1.

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Plaintiff, the San Joaquin River Group Authority ("SJRGA")1 moves for summary judgment on the following grounds:

(1) That NMFS violated the Administrative Procedure Act ("APA") and the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson-Stevens Act" or "MSA") because: (a) the 2011 management measures did not properly account for "known scientific uncertainty and bias in abundance estimates"; and (2) PFMC's decision to end the "overfishing concern" was not supported by the record. Doc 59 at 16-20.

(2) That adoption of the 2011 management measures violated the National E nvironmental Policy Act ("NEPA") because the Environmental Assessment ("EA"): (a) failed to consider whether the 2011 management measures would violate laws or requirements imposed to protect the environment; and (b) failed to consider a reasonable range of alternatives. Id. at 20-23.

(3) That Plaintiff has standing based on two theories of injury: (a) if the 2011 management measures result in less San Joaquin River fall-run Chinook ("SJRFC") escapement, SJRGA member agencies could be

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subject to future remedial action by the State Water Resources Control Board ("SWRCB") and others "in the form of draconian demands to bypass flows or release water"; and/or (b) that reduced SRFC or SJRFC escapement might lead to SRFC or SJRFC being listed as threatened or endangered under the ESA, which would then subject SJRGA member agencies to ESA regulatory activity. Id. at 23-25.

Federal Defendants oppose and cross move for judgment on all the above grounds, and additionally argue that the Doe Defendants should be dismissed as improper parties. Doc. 73-1. Defendant-Intervenor, Pacific Coast Federation of Fishermen's Associations ("PCFFA"), separately cross-moves for judgment on standing and mootness grounds. Doc. 80-1. Defendant-Intervenors, Central Delta Water Agency, South Delta Water Agency (collectively, "Delta Intervenors"), also cross-move on the issue of standing and separately argue that Plaintiff's claims are not ripe. Doc. 77-1.

Plaintiff filed separate oppositions/replies in response to each cross motion. Docs. 84, 87, 89. Federal Defendants and both sets of Defendant-Intervenors replied. Docs. 92, 93, 94.

All motions were submitted for decision September 28, 2011.


A. Review Under the APA.

The MSA's judicial review provision specifically provides that a regulation promulgated or action taken under the MSA can only be set aside on a ground specified in APA § 706(2)(A), (B), (C), or (D). 16

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U.S.C. § 1855(f)(1)(B). Because NEPA contains no separate provision for judicial review, compliance with NEPA is also reviewed under the APA. Nw. Res. Info. Ctr, Inc. v. NMMFS, 56 F.3d 1060, 1066 (9th Cir. 1995). Here, Plaintiff alleges NMFS's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U,S,C, § 706(2)(A),

Under the APA's " arbitrary and capricious" standard, a court must defer to the agency on matters within the agency's expertise, unless the agency completely failed to address some factor, consideration of which was essential to making an informed decision, Nat'l Wildlife Fed'n v. NMMFS, 422 F.3d 782, 798 (9th Cir. 2005) ("NWF v, NMFS I"), A court "may not substitute its judgment for that of the agency concerning the wisdom or prudence of the agency's action," River Runners for Wilderness v, Martin, 593 F,3d 1064, 1070 (9th Cir, 2009):

In conducting an APA review, the court must determine whether the agency's decision is "founded on a rational connection between the facts found and the choices made , and whether [the agency] has committed a clear error of judgment." Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife, 273 F,3d 1229, 1243 (9th Cir, 2001), "The [agency' s] action , need be only a reasonable, not the best or most reasonable, decision," Nat' l Wildlife Fed, v, Burford, 871 F,2d 849, 855 (9th Cir, 1989),


Although deferential, judicial review under the APA is designed to " ensure that the agency considered all of the relevant factors and that its decision contained no clear error of judgment." Arizona v. Thomas, 824 F,2d 745, 748 (9th Cir, 1987) (internal citation and

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quotation omitted). "The deference accorded an agency's scientific or technical expertise is not unlimited." Brower v. Evans, 257 F.3d 1058, 1067 (9th Cir, 2001),

[An agency's decision is] arbitrary and capricious if [it] has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise,

Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see also Citizens to Preserve Overton Park, Inc, v, Volpe, 401 U,S, 402, 416 (1971) (reviewing court may overturn an agency's action as arbitrary and capricious if the agency failed to consider relevant factors, failed to base its decision on those factors, and/or made a "clear error of judgment"), overruled on other grounds by Califano v, Sanders, 430 U,S, 99, 105 (1977)),

More generally, "[u]nder the APA xthe agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.'" Humane Soc. of U.S. v. Locke, 626 F.3d 1040, 1048 (9th Cir, 2010) (quoting Motor Vehicle Mfrs, Ass'n, 463 U,S, at 43), " The reviewing court should not attempt itself to make up for an agency's deficiencies: We may not supply a reasoned basis for the agency's action that the agency itself has not given," Id.

B. Summary Judgment.

Summary judgment is appropriate when the pleadings and the record demonstrate that "there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law," Fed, R, Civ, P, 56(c), A court conducting APA judicial review may not resolve factual questions, but instead determines "whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did," Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006) (quoting Occidental Eng'g Co, v, INS, 753 F,2d 766, 769 (9th Cir, 1985)), "[I]n a case involving review of a final agency action under the [APA] , the standard set forth in Rule 56(c) does not apply because of the limited role of a court in reviewing the administrative record," Id, at 89, In this context, summary judgment becomes the "mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review," Id. at 90,

Local Rule 260(e) directs that each motion shall be accompanied by a " Statement of Undisputed Facts" that shall enumerate each of the specific material facts on which the motion is based and cite the particular portions of any document relied upon to establish that fact, In APA cases, such statements are generally redundant because all relevant facts are contained in the agency's administrative record, Although no such request was received in this case, requests to dispense with the requirement of filing a statement of facts are routinely granted in this District,

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A. Magnuson-Stevens Act.

The Magnuson-Stevens Act was enacted to "conserve and manage the fishery resources found off the coasts of the United States" and " promote domestic commercial and recreational fishing under sound conservation and management principles." 16 U.S.C. § 1801(b)(1), (3). The MSA recognizes that "[a] national program for the conservation and management of the fishery resources of the United States is necessary to prevent overfishing, to rebuild overfished stocks, to insure conservation, to facilitate long-term protection of essential fish habitats, and to realize the full potential of the Nation's fishery resources." Id. at § 1801(6).

The MSA establishes eight regional fishery management councils; the PFMC has authority over the Pacific Ocean fisheries off the coasts of California, Oregon, and Washington. 16 U.S.C. § 1852 (a)(1)(F)....

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