374 F. Supp. 3d 77
D.C. Cir.2019Background
- Conservation Law Foundation (CLF) challenged NOAA Fisheries' approval of a Habitat Amendment to the Council's Fishery Management Plan (FMP) seeking to minimize, "to the extent practicable," adverse effects of fishing on essential fish habitat (EFH) in the Gulf of Maine.
- The Council developed alternatives using the SASI model and other data; the Service (NMFS) reviewed and approved selected closures and modifications across Eastern, Central, and Western Gulf of Maine sub-regions.
- CLF argued the MSA requires prioritizing habitat-conservation measures over economic impacts (except for "extreme" hardship), and that the Service acted arbitrarily and capriciously in rejecting more protective alternatives for multiple areas (Small Eastern Maine, Machias, Toothaker Ridge, Cashes Ledge, Platts Bank, Western Gulf modifications, Bigelow Bight).
- CLF also asserted NEPA violations: the FEIS allegedly failed to analyze a reasonable range of alternatives (especially in the Western Gulf) and improperly segmented deep-sea coral protections into a separate amendment, avoiding NEPA review now.
- The Court reviewed statutory interpretation of the MSA EFH provision de novo (noChevron deference to litigating position), applied arbitrary-or-capricious (APA) review to agency implementation, and considered NEPA’s procedural "range of alternatives" and anti-segmentation rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of MSA EFH provision: priority between conservation and economics | CLF: EFH provision requires prioritizing conservation; economic considerations only if alternatives achieve similar conservation or extreme hardship exists | NMFS: "Practicable" permits balancing conservation and socioeconomic harms; no categorical prioritization of EFH over other statutory goals | Court: Statute’s text and structure do not impose a rigid conservation-then-economics hierarchy; "practicable" allows agency discretion to weigh factors |
| Standard/nature of review & scope of record relied upon | CLF: urges limited deference to Council and reliance only on Service ROD, not Council-prepared FEIS | NMFS: APA arbitrary-or-capricious review applies; Service may rely on Council analysis prepared in cooperation; court should assess whether Service’s conclusions are rational and supported by the record | Court: Applied arbitrary-or-capricious review, credited FEIS (prepared with Service), and found no basis to exclude Council analyses or deny ordinary deference to agency fact-based judgments |
| Specific Gulf of Maine site decisions (Eastern, Central, Western regions; e.g., Small Eastern Maine, Machias, Cashes Ledge, Platts Bank, Western boundary shift, Bigelow Bight) | CLF: Agency failed to explain rejecting more protective alternatives; many unchosen alternatives were practicable and offered greater EFH protection with marginal economic impacts | NMFS: Council balanced habitat vulnerability and socioeconomic impacts; record contains rational explanations (habitat vulnerability, revenue displacement, cross-border fishing, localized impacts) for selecting/rejecting areas | Court: Agency articulated a satisfactory, fact-based rationale for each contested decision; agency balancing is within its discretion and not arbitrary or capricious |
| NEPA: adequacy of FEIS alternatives and coral segmentation | CLF: FEIS failed to analyze a reasonable range of alternatives in Western Gulf (skewed toward status quo) and illegally deferred deep-sea coral alternatives (impermissible segmentation) | NMFS: Objectives and alternatives were reasonable and tied to statutory mandate; rejected alternatives were briefly explained; coral protections were legally distinct discretionary measures and could be deferred for separate NEPA analysis pending future commitment | Court: Agency reasonably defined objectives and alternatives (rule of reason); brief rejections satisfied 40 C.F.R. §1502.14; segmentation of discretionary deep-sea coral measures was permissible because commitment was deferred and actions were not "connected" in NEPA sense |
Key Cases Cited
- Menkes v. U.S. Dep't of Homeland Sec., 637 F.3d 319 (D.C. Cir.) (agency litigation positions may not receive Chevron deference)
- NRDC, Inc. v. Daley, 209 F.3d 747 (D.C. Cir. 2000) (weighing between an unqualified conservation mandate and a "practicable" minimization directive informs priority analysis)
- Judulang v. Holder, 565 U.S. 42 (U.S. 2011) (noting arbitrary-or-capricious review under the APA applies where agency action is not statutory interpretation)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (agency must articulate a rational connection between facts and decision)
- Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (U.S. 1988) (general principles on agency action and review) (included as a background authority in analysis)
- Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281 (U.S. 1974) (agency action may be upheld if the path of the agency's reasoning can be reasonably discerned)
- Pharm. Research & Mfrs. of Am. v. FTC, 790 F.3d 198 (D.C. Cir.) (overlap between Chevron step two analysis and arbitrary-or-capricious review)