Flaherty v. Bryson
850 F. Supp. 2d 38
| D.D.C. | 2012Background
- Plaintiffs challenge Amendment 4 to the Atlantic Herring FMP, alleging violations of the MSA, NEPA, and the APA.
- Amendment 4 limited stocks to Atlantic herring and did not include river herring protections.
- NMFS approved Amendment 4 after notices and an EA/FONSI; Plaintiffs contend it failed to meet MSA, NEPA, and APA requirements.
- Plaintiffs assert that ACLs/AMs for river herring were neglected and that the environmental review did not adequately consider alternatives.
- The court reviews the agency action on the Administrative Record under the APA arbitrary-and-capricious standard.
- Remedy potential is stayed pending further briefing on appropriate relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue over Amendment 4 | Plaintiffs suffer ongoing injury to for-hire fishing and observation of forage species (river herring) affecting predator stocks. | Defendants contend no imminent/traceable injury tied to Amendment 4. | Plaintiffs have standing. |
| Whether NMFS arbitrarily approved Amendment 4 by excluding river herring | Excluding river herring violated MSA by omitting stock in the fishery and ignored best available science. | Council’s and NMFS’s determinations were reasonable policy judgments within their review. | NMFS acted arbitrarily and capriciously by failing to justify the exclusion. |
| NEPA adequacy of the EA/FONSI and consideration of alternatives | Defendants inadequately analyzed environmental impacts and failed to consider reasonable alternatives. | EA/FONSI were sufficient and alternatives were adequately considered. | NEPA review failed the hard-look requirement; EA/FONSI invalid for lack of alternatives discussion. |
| Compliance with National Standards in setting ACLs/AMs for Atlantic herring | ABC rule and ACL/AM structure did not reflect best available science or adequate safeguards. | SSC guidance and scientific data supported the interim ABC and AM framework. | Amendment 4's ACL/AM framework was not arbitrary and capricious given record support. |
| Remedy for NEPA/MSA violations | Court should vacate Amendment 4 or remand for full NEPA/MSA compliance. | Remedy should wait for Amendment 5; remand would be appropriate. | Remedy deferred pending further briefing. |
Key Cases Cited
- C&W Fish Co. v. Fox, 931 F.2d 1556 (D.C. Cir. 1991) (review of NMFS compliance with MSA standards requires rational record support)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (requires rational connection between facts and agency action)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (standing requires concrete, imminent injury traceable to action)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (U.S. 2000) (injury-in-fact framework and causation standards)
- Oceana, Inc. v. Locke, -- (D.D.C. 2011) ((cited for NEPA/MSC considerations; see discussion in opinion))
- Ocean Conservancy v. Gutierrez, 394 F. Supp. 2d 147 (D.D.C. 2005) (National Standard 2 requires reasoned, science-based analysis)
- National Wildlife Fed'n v. Appalachian Reg'l Comm'n, 677 F.2d 883 (D.C. Cir. 1981) (NEPA/consideration of alternatives)