483 F.Supp.3d 764
N.D. Cal.2020Background:
- Oceana sued NMFS and NOAA over catch limits for the central subpopulation of northern anchovy after the agency promulgated a 2019 Catch Rule implementing Amendment 13 to the Coastal Pelagic Species FMP.
- Amendment 13 (2011) set a framework that treated monitored stocks (like anchovy) with OFL = MSY and ABC = 25% of OFL; ACLs default to ABC and may remain in place until new science is available.
- The 2019 Catch Rule computed anchovy biomass as the average for 2016–2018 (151,558; 308,173; 823,826 mt), derived OFL/MSY of 94,290 mt, set ABC = ACL = 23,573 mt (75% reduction under Amendment 13), and left these limits in place indefinitely.
- Oceana relied on two peer-reviewed studies (MacCall 2016; Thayer et al. 2017) showing extreme anchovy biomass volatility and prolonged low abundance (2009–2014), arguing NMFS ignored the best scientific information and thus violated National Standards One and Two.
- The court (Koh, J.) held that Oceana could timely challenge Amendment 13 via its challenge to the 2019 action but that a direct challenge to Amendment 13 is limited to the administrative record from 2011 (on which Oceana offered no evidence); the court vacated the 2019 Catch Rule and remanded.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of direct challenge to Amendment 13 | Challenge to 2019 action permits timely direct challenge to the 2011 Amendment | Amendment 13 (2011) is time-barred (30-day rule) | Court: Oregon Trollers allows direct challenge via timely action; Plaintiff may directly challenge Amendment 13 but must proceed under limits below |
| Scope of administrative record for direct challenge | Plaintiff may rely on post-2011 (current) administrative record | Review limited to the administrative record that supported Amendment 13 in 2011 | Court: Use the 2011 record per Oregon Trollers; because Plaintiff offered no 2011-record evidence, direct challenge to Amendment 13 fails (D's MSJ granted on that claim) |
| National Standard Two (best scientific information) | NMFS relied solely on 2016–2018 averages and ignored MacCall (2016) and Thayer (2017), which are the best available science documenting extreme declines | NMFS reasonably discounted those studies as methodologically flawed and in any event the 2016–2018 average is consistent with long-term estimates | Court: MacCall and Thayer constitute the best scientific information available; NMFS failed adequately to consider or rationally discredit them; 2019 Catch Rule arbitrary and capricious (P wins on Nat'l Standard Two) |
| National Standard One (prevent overfishing) | Static OFL/ABC/ACL based on recent high years and fixed indefinitely (with only a 75% buffer) will not prevent overfishing given documented extreme declines and risk fishing can exacerbate collapses | Recent recoveries, Dr. Punt analysis shows multi-year OFLs still <50% risk, and population fluctuations are environmentally driven so historical limits suffice | Court: NMFS did not demonstrate the limits prevent overfishing given evidence of sharp declines and interaction with fishing; OFL/ABC/ACL arbitrary and capricious (P wins on Nat'l Standard One); 2019 Catch Rule vacated and remanded |
Key Cases Cited
- Or. Trollers Ass'n v. Gutierrez, 452 F.3d 1104 (9th Cir. 2006) (timely challenge to an agency action can reach the underlying FMP amendment)
- Pac. Dawn LLC v. Pritzker, 831 F.3d 1166 (9th Cir. 2016) (Secretary's duties under MSA delegated to NMFS)
- Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) (APA review is narrow and deferential; no substitution of court judgment for agency)
- Asarco, Inc. v. EPA, 616 F.2d 1153 (9th Cir. 1980) (remand rather than court factfinding when agency process inadequate)
- San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971 (9th Cir. 2014) (review generally limited to the administrative record)
- Midwater Trawlers Coop. v. Dep't of Commerce, 393 F.3d 994 (9th Cir. 2004) (decisions must be based on the best scientific information available)
- Pac. Coast Fed'n of Fishermen's Ass'ns v. Nat'l Marine Fisheries Serv., 265 F.3d 1028 (9th Cir. 2001) (agency must consider important aspects of the problem and articulate a rational connection between facts and decision)
- Beno v. Shalala, 30 F.3d 1057 (9th Cir. 1994) (stating consideration must be more than conclusory)
- Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir. 2007) (courts will defer only to fully informed, well-considered agency decisions)