As part of its responsibility over the management of marine resources, the National Marine Fishery Service ("the Service") adopts and implements fishery management plans designed to promote the conservation and sustainable use of the Nation's fisheries. After promulgating these plans, the Service then periodically amends them, often in response to changes in the industry, the environment, or the applicable regulatory and legal framework. In 2016, the Service adopted just such an amendment-Amendment 113-to the management plan for Pacific cod in the Bering Sea and Aleutian Islands archipelago. The Service concluded that previous conservation measures had led to more vessels in the region processing their catch at sea, and fewer vessels delivering catch to onshore processing plants in two nearby island fishing communities-Adak and Atka. To mitigate that impact and allow those communities to develop sustainable cod-processing enterprises, Amendment 113 sets aside a portion of the Pacific cod fishery off the coast of the Aleutian Islands each year for exclusive harvest by vessels that intend to deliver their fish to onshore processing plants located within the specific geographic span of the Aleutian Islands that encompasses Adak and Atka.
Several trade associations and commercial fishing groups operating in the Aleutian Islands region sued to challenge the amendment, arguing that it exceeded the Service's statutory authority under the Magnuson-Stevens Act and is otherwise inconsistent with applicable law. Adak and Atka intervened as defendants. The parties each filed cross-motions for summary judgment. Although the Court finds that the Service did not exceed its statutory authority in imposing a harvest set-aside with an onshore delivery requirement, it nonetheless determines that the Service failed to demonstrate that the amendment satisfied the requisite standards for such regulatory measures set forth by the Magnuson-Stevens Act. Accordingly, and for the reasons explained below, Plaintiffs' motion will be granted, and Defendants'
I. Legal and Factual Background
A. The Magnuson-Stevens Act
In 1976, Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act (the "MSA" or "Act"),
Congress has tasked these councils with developing Fishery Management Plans (FMPs), and any later amendments to them, "for each fishery under its authority that requires conservation and management."
FMPs and subsequent amendments, and any regulations promulgated to implement them, must "be consistent with [ten] national standards for fishery conservation and management" (the "National Standards") that Congress outlined in the MSA.
When a council prepares a new FMP or an amendment to an existing FMP, it must submit the proposal to the Service for review to ensure that the FMP or amendment "is consistent with the national standards, the other provisions of [the MSA], and any other applicable law."
B. Factual and Procedural Background
1. The Bering Sea-Aleutian Islands Pacific Cod Fishery
The North Pacific Fishery Management Council ("the Council") is tasked with managing fisheries in the Arctic Ocean, Bering Sea, and Pacific Ocean seaward of Alaska.
Pacific cod is one of the most abundant and valuable groundfish species harvested in the BSAI region. AR 1000790. Commercial fishing for BSAI Pacific cod is conducted primarily by either catcher vessels ("CVs"), which harvest the fish for delivery to a processor, or catcher-processors ("CPs"), which are capable of both harvesting fish and then processing the fish on board.
Under the groundfish FMP, the Service regulates fishing for Pacific cod in the region by establishing yearly harvest limitations. In consultation with the Council, the Service specifies a "total allowable catch" (TAC) based on projected overfishing levels and other economic and social factors. AR 1000059-60, 1000790;
At first, the Service managed Pacific cod in the BSAI region as a single stock with one TAC for the whole region. See AR 1000059. But beginning in 2014, the Service split the fishery into a BS stock and an AI stock with separate TACs.
2. Aleutian Islands Fishing Communities
The Aleutian Islands are dotted with remote fishing communities that have historically participated in the BSAI fishing industry, two of which-the communities of Adak and Atka-are at the center of this matter.
a. Adak
Adak is a small community located on Adak Island in the Aleutians. The community participates in the BSAI Pacific cod fishery by way of a small, locally-owned CV fleet and, relevant to this action, a large processing plant. AR 1000090, 1000793; see also AR 3004834. The plant can process 454 metric tons ("mt") of Pacific cod per day, AR 1000090-91, a considerable amount by the parties' accounts, see Pls.' MSJ at 9-10; Defs.' MSJ at 6; Intervs.' MSJ at 12. And according to city leadership, the community depends significantly on the revenues generated by the plant and ancillary activities of the fishing industry. See AR 3004834-35. But since its establishment in 1999, the Adak shoreplant has only been open for processing intermittently, complicated by several changes in ownership.
b. Atka
Atka is a remote island village located about 100 miles east of Adak. See AR 1000095. Like Adak, the community highly depends on revenues from commercial fishing. See
3. Amendment 113
In 2008, the Council began looking into possible protections for AI fishing communities in response to changes in the BSAI fishery and commercial fishing industry. See AR 1000049-50, 3000614-17. Specifically, the Council indicated that the "impetus for the action" arose from concerns expressed by representatives of Adak that increased participation in the BSAI Pacific cod fishery "would erode the historical shoreplant processing share of the AI Pacific cod." AR 1000099. Following several years of investigation and discussions of various alternatives, the Council settled on an amendment to the BSAI groundfish FMP-Amendment 113 ("A113")-which it submitted to the Service for review in July 2016. See Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Management Area; Amendment 113,
Amendment 113, at its core, serves to reserve a portion of the harvested AI Pacific cod for onshore processors located in two fishing communities in the Aleutian Islands. As stated in the final rule, A113 "modifies the BSAI Pacific cod fishery to set aside a portion of the Aleutian Islands Pacific cod [TAC] for harvest by vessels directed fishing[
To accomplish its stated goal, the amendment imposes certain measures: (1) each year, the Service calculates the A-season AI Pacific cod "directed fishing allowance" (DFA), which is equal to the portion of the AI Pacific cod TAC for the A season available for vessels that are "directed fishing" for Pacific cod; (2) 5,000 mt of the DFA-or the entirety of the DFA if it totals 5,000 mt or less that year-is then set aside until March 15 for harvest by only those "catcher vessels that deliver their catch of [AI] Pacific cod to [AI] shoreplants for processing"; and (3) until March 21 of each year, the harvest of Pacific cod in the Bering Sea by the "trawl CV sector"
The amendment, however, also includes several failsafe provisions to ensure that the harvest set-aside does not lead to wasted cod harvest. First, for the AI set-aside and BS trawl CV-sector limitation to take effect, either Adak or Atka must notify the Service of its intent to process AI Pacific cod the upcoming fishing year, the first year no later than December 8, 2016, and no later than October 31 for each year after. AR 1000275.
Explaining in more detail its rationale for implementing A113, the Service pointed to several changes in the regulatory framework that it determined would threaten AI fishing communities' continued participation in the Pacific cod fishery. In particular, the Service noted that the BSAI Pacific cod TAC split and other regional conservation measures had reduced the amount of Pacific cod available for commercial harvest for all participants, including fishing communities like Adak and Atka that had historically processed Pacific cod or had intentions to develop facilities to process Pacific cod in the future. AR 1000794-95. And it further concluded that prior amendments to the FMP had led to an influx of vessels into the AI region with on-board processing capacity, which the Service concluded only exacerbated any threat to those AI communities' participation in the industry. Id. In explaining its rationale, the Service clarified that A113 was "intended to be directly responsive to National Standard 8 of the [MSA]," AR 1000795, which states that "[c]onservation and management measures shall, consistent with the conservation requirements of [the MSA] ..., take into account the importance of fishery resources to fishing communities ... to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities,"
4. This Action
On December 21, 2016, several trade associations and commercial fishing operations commenced this action, filing a complaint challenging the rule adopting A113 under the MSA and the Administrative Procedure Act (APA),
The Complaint raises five separate claims for relief under the MSA and the APA. First, Plaintiffs contend that the MSA does not grant the Service the authority to "allocate shore-based processing privileges," and therefore the Service acted beyond its statutory authority when it adopted A113.
In March 2017, the City of Adak and the City of Atka, along with their respective community development associations, (collectively, "Intervenors") moved to intervene as defendants to the action. See ECF
All parties cross-moved for summary judgment. See Pls.' MSJ; Defs.' MSJ; Intervs.' MSJ. On March 14, 2019, the Court held a hearing on the parties' motions.
II. Legal Standard
Federal Rule of Civil Procedure 56(a) provides that a court must grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." When a plaintiff brings claims under the APA, however, the Court "sits as an appellate tribunal." Am. Bioscience, Inc. v. Thompson ,
Though the APA provides the exclusive vehicle for reviewing regulatory action by the Service under the MSA, the MSA expressly limits the grounds on which such action may be set aside to those described in
Generally, agency action is not arbitrary or capricious provided that the agency "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.' " Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co. ,
Alternatively, when Plaintiffs claim that the Service's actions exceeded or ran contrary to its grant of statutory authority in the MSA, the Court will only defer to the Service's interpretations of the MSA to the extent that deference is warranted under the two-step framework set out in Chevron U.S.A., Inc. v. NRDC ,
Under Chevron step one, we ask "whether Congress has directly spoken to the precise questions at issue." If at that point we determine that "the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." We proceed to Chevron 's second step only "if the statute is silent or ambiguous with respect to the specific issue." At the second step, we determine "whether the agency's answer is based on a permissible construction of the statute."
Catawba County v. EPA ,
III. Analysis
In their complaint, Plaintiffs bring five claims alleging that enactment of A113 violated both the MSA and the APA, each of which are subject to the outstanding motions for summary judgment. As stated previously, Plaintiffs' first claim contends that A113 exceeded the Service's authority under the MSA. They insist that the Service may only regulate conduct that qualifies as "fishing" under the MSA, but A113, they contend, exceeded that authority by regulating onshore processing activities. Plaintiffs' second, third, and fourth claims challenge A113's compliance with the requirements of National Standards 4, 5, and 8, respectively. And Plaintiffs' final claim asserts that the Service failed to articulate a rational basis for adopting A113. On Plaintiffs' first claim, which questions the very authority of the Service to impose this type of harvest restriction, the Court finds that the MSA does not categorically preclude the Service from implementing the measure at issue here. But because the Court finds that the Service failed to demonstrate that A113 complied with both National Standard 8 and National Standard 4, the Court need not proceed to address Plaintiffs' remaining claims.
A. The MSA's Definition of "Fishing"
Plaintiffs' first claim contends that A113 exceeded the Service's regulatory authority under the MSA, such that the amendment's promulgation violated § 706(2)(C) of the APA, because it constitutes an "onshore processing privilege." Pls.' MSJ at 24. According to Plaintiffs, the Service's regulatory authority is limited by the Act's definition of "fishing," which includes only harvesting activities and "any operations at sea in support of, or in preparation for," those harvesting activities.
The question presented by Plaintiffs' argument is whether, in pursuit of the MSA's objectives in implementing FMPs, the Service may enact harvesting measures that impose onshore delivery requirements given the Act's definition of "fishing," which includes only those support activities occurring "at sea." The Court, unable to subscribe to the restrictive reading of the MSA advocated by Plaintiffs, finds that it can.
To begin with, the Court fails to see why the definition of "fishing" should be read to impose a strict limit on the Service's regulatory authority. In their briefing, Plaintiffs neglect to provide any explanation as to how the term "fishing," as used in the text of the MSA, works to limit the Service's regulatory authority to enact FMP amendments and conservation and management measures. Plaintiffs merely recite that definition, note that it describes activities "at sea," and insist that the Service's regulatory authority cannot extend any further without linking that definition to any other provision in the Act. See Pls.' MSJ at 24-25; see also Pls.' Reply at 19-23 (arguing that A113 must be unlawful because it creates an onshore processing privilege). That failure alone warrants rejecting Plaintiffs' argument on this issue. See Nicopure Labs, LLC v. FDA ,
Congress identified broad goals for the MSA, which include conserving and managing the Nation's fishery resources to "realize [their] full potential."
At the hearing, Plaintiffs noted that § 1853(a)(1) further states that an FMP must "contain the conservation and management measures, applicable to foreign fishing and fishing by vessels of the United States ," that the Service concludes are "necessary and appropriate for the conservation and management of the fishery."
During the hearing, Plaintiffs also pointed to the MSA's definition of "fishery," which includes "one or more stocks of fish" as well as any "fishing for such stocks."
Lastly, Plaintiffs appealed to the overall framework of the MSA, arguing that the Act's central purpose-of ensuring the sustainable use of the Nation's fisheries-shows that Congress never intended to grant the Service the authority to regulate onshore processing in the manner undertaken by A113. Hrg. Rough Tr. at 6-7. But if anything, the text of the MSA suggests precisely the opposite. Repeatedly, the MSA directs the Service to consider onshore processors as part of its broader task of managing the Nation's fisheries. See, e.g. ,
Accordingly, the Court cannot conclude, as Plaintiffs urge, that the MSA's definition of "fishing" categorically precludes the Service from adopting A113. The Court observes nothing in the MSA, and Plaintiffs have pointed to no provision, suggesting that Congress, through the definition of "fishing," sought to place a strict limitation on the Service's authority to regulate and manage the Nation's fishery resources as Plaintiffs contend. Moreover, Plaintiffs have identified no relevant ambiguity for the Court to resolve here. And even if Plaintiffs' arguments were enough to raise an ambiguity in the statutory text, the Court, for the same reasons identified above, would conclude that Defendants' interpretation is a reasonable-indeed, the most reasonable-reading of the statute.
B. Compliance with the National Standards
Although the Court finds that the definition of "fishing" does not preclude the Service from enacting A113, that does not end the matter. The amendment must also comply with the other limitations Congress imposed on the Service's authority, including those expressed in the National Standards. Plaintiffs point to three of those standards in their challenge to A113-National Standards 4, 5, and 8. Because the Court finds that the Service failed to adequately demonstrate that A113 satisfies National Standards 8 and 4, the Court will address only those two standards here.
Plaintiffs first contend that A113 is inconsistent with National Standard 8:
Conservation and management measures shall, consistent with the conservation requirements of this chapter (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities by utilizing economic and social data that meet the requirement of paragraph (2), in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities.
Defendants dispute Plaintiffs' characterization of A113, arguing instead that the amendment "is intended to benefit all AI shoreplants." Defs.' MSJ at 25 (edits to capitalization). They contend that because no shoreplant is "entitle[d]" to any amount of fish under the set-aside provision, and thus that the provision does not create an "exclusive" privilege for any one community, A113 does not run afoul of National Standard 8. Id. at 26. Intervenors take a similar tack, arguing that A113 does not allocate resources to "a specific fishing community" because "there are two ... shoreplants, on Adak and Atka," that will benefit from the set-aside. Intervs.' MSJ at 31.
But accepting Defendants' and Intervenors' explanations for why A113 is consistent with National Standard 8 would require the Court to ignore the realities of the record, the text of National Standard 8, and the Secretary's clear instructions. A113 expressly singles out and directs harvested Pacific cod to Adak and, to a lesser extent, Atka. The very impetus for the amendment was a desire to increase those two communities' participation in the Pacific cod fishery. See AR 1000272-73;
Thus A113, rather than "tak [ing ] into account the importance of fishery resources to fishing communities" in crafting conservation and management measures,
Defendants and Intervenors strenuously, albeit unsuccessfully, seek to avoid this common-sense conclusion. They assert, as the Service did below, that A113 complied with National Standard 8 and the advisory guidelines because it is open to any Aleutian Islands shoreplant located west of 170° W. longitude. See Defs.' MSJ at 27; Defs.' Reply at 12; AR 1000121. But this claim is easily dismissed. There are only two fishing communities-Adak and Atka-that fit that remarkably specific criteria. See AR 1000090 ("[A]t this time only two cities meet that requirement."). And the Service did not hide the fact that the amendment was designed specifically to benefit those two communities. See AR 1000793-94;
Nor does it make any difference, in the Court's view, that the Service singled out two fishing communities for beneficial treatment as opposed to one. As mentioned above, when the Service adopted A113, it was clear that vessels would be able to deliver their catch to only one facility-the plant in Adak. And thus A113 immediately gave Adak the power, simply by notifying the Service, to ensure that a portion of harvested cod would be delivered to its plant. The Court is hard-pressed to see how, on that basis alone, A113 does not constitute an allocation of resources to a specific fishing community. But even if Atka does develop the ability to process Pacific cod, the Court fails to see how that cures the defect. A113 still directs a set portion of harvested cod to two specific fishing communities. This is not a case in which the Service was presented with two alternative conservation and management measures that might lead to varying effects on fishing communities. See Daley ,
For similar reasons, the explanation that A113 is consistent with National Standard 8 because it does not create "exclusive" privileges for Adak and Atka cannot withstand scrutiny. See Defs.' MSJ at 25-26; Intervs.' MSJ at 30; see also
For these reasons, the Court finds that the Service's decision to approve A113 was arbitrary, capricious, and not in accordance with applicable law. The Court so finds even in light of the deference due to the Service on this issue. The Service's failures arose not in the minutiae of its scientific and technical analyses, but in its inadequate explanation of how A113's obvious, practical effect-in fact, its intended effect-of allocating resources to Adak and Atka is consistent with the plain language of National Standard 8. The Court finds that its decision was therefore not "rational [nor] supported by the record." C & W Fish ,
2. National Standard 4
Plaintiffs further contend that A113 is inconsistent with National Standard 4:
Conservation and management measures shall not discriminate between residents of different States. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges.
Plaintiffs argue that A113 lacks any conservation purpose and thus cannot be said to be "reasonably calculated to promote conservation." Pls.' MSJ at 41. In support, they point to the MSA's definition of "conservation
In response, Defendants and Intervenors both argue that A113 need not "set forth its own 'conservation purpose.' " Defs.' MSJ at 32; see also Intervs.' MSJ at 36. Rather, they insist that the MSA, and National Standard 4 in particular, only require that the amendment "be justified in terms of the objectives of the FMP," Defs.' MSJ at 33 (quoting
The Court cannot agree with Defendants' and Intervenors' characterization of what National Standard 4 requires. That standard states that an allocation of fishing privileges "shall be ... reasonably calculated to promote conservation."
For that reason, Intervenors' attempt to characterize A113 as a "trailing amendment" to prior conservation measures-in this case, the BSAI TAC split and a measure imposing protections for Stellar sea lions-cannot cure the amendment's inconsistency with the standard. See Intervs.' MSJ at 27 (quoting AR 500009); see also
Given the standard's directive, the Service's conclusion that A113 complied with National Standard 4 cannot withstand review under the APA. The Service stated many times during the development of the amendment that the harvest set-aside satisfied the second requirement of A113 because it made no changes to the total TACs for Pacific cod in the BS or AI and did not modify any other existing measures protecting fishery resources. See, e.g. , AR 1000099, 1000143, 1000158. And the Service affirmed this in promulgating the final rule enacting A113. See AR 1000281 (noting that "the set-aside is reasonably calculated to promote conservation" because it "do[es] not modify" existing total catch limitations or allocations and because the Service "will continue to manage the fishery so that harvests stay within the specified and allocated amounts"). And that conclusion, as explained, is simply not rational in light of the text of National Standard 4.
Despite their claims-and the Service's below-that A113 complied with National Standard 4 because it was conservation-neutral, Defendants and Intervenors also take the seemingly inconsistent position that A113 does in fact promote conservation. They argue it does so because A113 was designed to provide social benefits to the Atka and Adak communities-which they insist is a legitimate "conservation" purpose under the MSA, citing to the Secretary's advisory guidelines for National Standard 4. See
The Service, however, did not make that claim in adopting A113. Rather, the Council in its Regulatory Impact Review stated that A113 was "reasonably calculated to promote conservation" as required by National Standard 4 because it "would not change the TACs for Pacific cod in the BS or AI or modify any measures currently in place to protect living marine resources." AR 1000158. The Service specifically reaffirmed that position when adopting A113 in response to a comment arguing that the harvest set-aside did not comply with the conservation requirement of National Standard 4. See AR 1000281 ("[The Service] has also determined that the set-aside is reasonably calculated to promote conservation" because it "do[es] not modify the process for specifying [catch limitations] for the Bering Sea and Aleutian
At the hearing, Defendants acknowledged that the Service did not explicitly link its findings on the potential socio-economic benefits to Adak and Atka with A113's compliance with National Standard 4. See Hrg. Rough Tr. at 46. But it urged the Court to look to the record as a whole.
The Court does not question those analyses, nor does it doubt Defendants' insistence that these goals were the driving purpose in implementing this harvest set-aside. Indeed, as discussed, the Service framed A113 as "directly responsive to National Standard 8." AR 1000795. Even so, the Court, in reviewing the Service's conclusion that A113 complied with National Standard 4, is limited to the rationale put forth by the Service. State Farm ,
At the outset, as noted, the Service in approving A113 took the position that the amendment complied with National Standard 4 because it made no changes to the existing regulatory scheme for total catch limits and harvest allocations, not because it benefitted Adak and Atka. See AR 1000281;
Furthermore, the Court struggles to see what purpose National Standard 8 would serve if, as Defendants contend, the "importance of fishery resources to fishing communities [based on] economic and social data" that the Service must "take into account" under National Standard 8-considerations that admittedly drove the Service's decision to adopt A113-constitutes a "conservation" objective of the type contemplated in National 4.
The Court cannot be altogether sure what National Standard 4's guidelines mean when they state that an allocation can promote conservation "in the sense of wise use" by "optimizing the yield in terms of size, value, market mix, price, or economic or social benefit of the product."
At bottom, the Court finds that the Service failed to show that A113 complied with National Standard 4-and specifically, the requirement that an allocation of fishing privileges be "reasonably calculated to promote conservation."
IV. Conclusion
For the above reasons, Plaintiffs' Motion for Summary Judgment, ECF No. 35, will be granted, and Defendants' and Intervenors' Cross-Motions for Summary Judgment, ECF Nos. 36, 38, will be denied. The Court will vacate the rule implementing A113 and remand A113 to the Service for reconsideration consistent with this opinion. A separate Order will issue.
Notes
In considering these motions, the Court has relied on all relevant parts of the record, including: ECF No. 2 ("Compl.") ; ECF No. 35 ("Pls.' MSJ") ; ECF No. 36 ("Intervs.' MSJ") ; ECF No. 38 ("Defs.' MSJ") ; ECF No. 40 ("Pls.' Reply") ; ECF No. 42 ("Intervs.' Reply") ; ECF No. 43 ("Defs.' Reply") ; and ECF Nos. 44-46 (Joint Appendix, with citations designated as "AR___").
The Act defines a "fishery" to mean "(A) one or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics" and "(B) any fishing for such stocks."
Though Congress granted regulatory authority under the MSA to the Secretary of Commerce, in practice the Secretary has delegated that authority, including the authority to review proposed FMPs and to promulgate implementing regulations, to the Service, a division of the National Oceanic and Atmospheric Administration (NOAA). See NRDC v. Nat'l Marine Fisheries Serv. ,
"Directed fishing" refers to those vessels actively targeting a stock of fish, as opposed to vessels that harvest that stock only as incidental bycatch. See Fishermen's Finest, Inc. v. Locke ,
"Trawling" is a method of fishing in which vessels drag nets along the sea floor to harvest fish, as opposed to "fix gear" techniques such as longline fishing or fishing using stationary traps. See Pac. Coast Fed'n of Fishermen's Ass'ns v. Blank ,
Neither Adak nor Atka notified the Service of its intent to process Pacific cod prior to December 8, 2016. See
Wilbur Ross was confirmed as Secretary of Commerce on February 27, 2017, and will be automatically substituted for former Secretary of Commerce Penny Pritzker. See Fed. R. Civ. P. 25(d).
Citations to arguments made at the March 14, 2019 motions hearing are to page numbers in a "rough" transcript provided by the Court Reporter, since the final, certified transcript is not yet available.
The parties also hotly dispute the meaning of a September 30, 2009 memorandum written by NOAA General Counsel attorney Lisa Lindeman ("Lindeman Memorandum"), see AR 5000068-78, in which she responds to specific questions posed by the Council relating to regulatory proposals it was considering. In that memorandum, Lindeman states that "[t]he [MSA] does not authorize the Council or the Secretary of Commerce ... to allocate shore-based processing privileges," a conclusion that Lindeman said was "based on the [MSA's] definition of fishing," AR 5000070. Plaintiffs insist that this memorandum makes clear that the Service lacks the regulatory authority to promulgate A113. See Pls.' MSJ at 25-27; Pls.' Reply at 24-26. But the memorandum, like Plaintiffs' briefing, still does not explain how the MSA's definition of "fishing," within the context of the statute's text as a whole , imposes the limits on the Service's regulatory authority that Plaintiffs claim here. And while Defendants affirmed that the opinions expressed in the memorandum remain the Service's positions, Hrg. Rough Tr. at 31, it is hard to determine from the memorandum itself precisely what those positions are and how they are relevant to this case. Ultimately, the Court can only glean so much from this memorandum and the limited analysis that it provides. And it finds the memorandum of little use in determining whether Congress "directly spoke[ ] to the precise question[s]" for purposes of applying the Chevron framework.
The parties spent little time addressing the appropriate framework for reviewing the Service's conclusions that A113 was consistent with the National Standards, and each appeared to proceed under the assumption that the Court should review those determinations under the familiar "arbitrary and capricious" standard set forth in State Farm ,
As previously noted, see supra note 10, Defendants have not claimed any entitlement to deference under Chevron on this issue. That framework appears most applicable, if anywhere, on the matter addressed here. But again, even if Defendants were to claim Chevron deference, and even if the Court were to determine that an ambiguity exists in
Defendants and Intervenors also point to NRDC ,