Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA OCEANA, INC., :
:
Plaintiff, : Civil Action No.: 11-1896 (RC) :
v. : Re Document Nos.: 36, 37, 38 :
PENNY PRITZKER, in her official capacity as :
Secretary of the United States Department of :
Commerce , et al. , :
:
Defendants. :
:
and :
:
FISHERIES SURVIVAL FUND, :
:
Intervenor–Defendant. :
MEMORANDUM OPINION
D ENYING P LAINTIFF ’ S M OTION FOR S UMMARY J UDGMENT ; G RANTING F EDERAL D EFENDANTS ’ M OTION FOR S UMMARY J UDGMENT ; AND G RANTING I NTERVENOR –D EFENDANT ’ S M OTION FOR S UMMARY J UDGMENT I. INTRODUCTION
Plaintiff Oceana, Inc. (“Oceana”) has filed this suit against Defendants Penny Pritzker, in her official capacity as Secretary of Commerce, [1] the National Oceanic and Atmospheric Administration (“NOAA”), and the National Marine Fisheries Service (“NMFS”) (collectively, “Federal Defendants”). Oceana alleges that the Mid-Atlantic Fishery Management Council Omnibus Amendment to Implement Annual Catch Limits (ACLs) and Accountability Measures (AMs), 76 Fed. Reg. 60,606 (Sept. 29, 2011) (codified at 50 C.F.R. pt. 648 (2013)) (A.R. 5197– *2 213) (the “Omnibus Amendment”), violates the Magnuson–Stevens Fishery Conservation and Management Act (“MSA”), the National Environmental Policy Act (“NEPA”), and the Administrative Procedure Act (“APA”). The Court has allowed the Fisheries Survival Fund (“FSF”) to join the suit as Intervenor–Defendant.
This matter is now before the Court on the parties’ cross-motions for summary judgment. For the reasons set forth below, the Court denies Oceana’s motion for summary judgment and grants Defendants’ motions for summary judgment.
II. BACKGROUND
A. Statutory Background
1. The Magnuson–Stevens Act In 1976, in balancing the environmental interests in preventing overfishing and the loss of marine habitat against the often competing economic interests of the United States’ fishing industry, Congress enacted the Magnuson–Stevens Fishery Conservation and Management Act, Pub. L. No. 94-265, 90 Stat. 331 (1976) (codified as amended at 16 U.S.C. §§ 1801 et seq. (2012)). The MSA established eight regional councils (the “Councils”), which are charged with the duty of drafting fishery management plans (“FMPs”) for each fishery under their control. 16 U.S.C. § 1852(a)(1), (h)(1) (2012).
The required components of FMPs are set forth in Section 1853(a) of the MSA. id. § 1853(a). FMPs proposed by the Councils, and any regulations promulgated to implement FMPs, must also be consistent with the MSA’s ten “National Standards” for fishery conservation and management. id. § 1851(a). The MSA requires that the Secretary of Commerce establish advisory guidelines (the “Guidelines”) to assist in the development of FMPs based on the National Standards, but provides that the Guidelines do not have the force of law. *3 § 1851(b). NMFS has promulgated a set of Guidelines interpreting the ten National Standards, and has amended the Guidelines over time to keep pace with various changes to the MSA itself. 50 C.F.R. §§ 600.305–.355 (2013); see also, e.g. , NS1 Guidelines Final Rule, 74 Fed. Reg. 3178 (Jan. 16, 2009) (codified as amended at 50 C.F.R. pt. 600 (2013)) (A.R. 102–38) (revising the Guidelines based on the 2007 amendments to the MSA).
In 2007, Congress amended the MSA by enacting the Magnuson–Stevens Fishery
Conservation and Management Reauthorization Act of 2006, Pub. L. No. 109-479, 120 Stat.
3575 (2007) (“MSRA”). The amendment included a new required provision for all FMPs,
mandating that FMPs “establish a mechanism for specifying annual catch limits . . . at such a
level that overfishing does not occur in the fishery, including measures to ensure accountability.”
sec. 303(a), § 104(a)(10),
Before bringing the FMPs themselves into compliance with the MSA’s new requirements, NMFS first updated the Guidelines to set forth the Secretary’s interpretation of the new requirements in light of the National Standards. Most of the regulations relevant to the instant dispute relate to National Standard 1 (“NS1”), which provides that “[c]onservation and *4 management measures shall prevent overfishing while achieving, on a continuing basis, optimum yield from each fishery for the United States fishing industry.” 16 U.S.C. § 1851(a)(1). Optimum yield (“OY”) is defined as the amount of fish that “will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems . . . .” Id. § 1802(33)(A). OY is less than or equal to the MSY. 50 C.F.R. § 600.310(b)(2)(i).
As amended, the NS1 Guidelines set forth an overview of the components the Councils must, should, or may apply in complying with the MSA’s new mandate. According to the NS1 Guidelines, the overfishing limit (“OFL”) for a given stock is “an estimate of the catch level above which overfishing is occurring.” Id. § 600.310(e)(2)(i)(D). It is set by first determining the annual rate of fishing mortality above which overfishing will occur for a particular stock, known as the maximum fishing mortality threshold (“MFMT”), see id. § 600.310(e)(2)(i)(C), and then applying the MFMT to the stock’s total size, see id. § 600.310(e)(2)(i)(D). To serve the goal of preventing the OFL from being exceeded, the Guidelines provide for the computation of acceptable biological catch (“ABC”), which is a reduced version of the OFL that accounts for scientific uncertainty in the estimation of the OFL. id. § 600.310(f)(2)(ii). “Examples of scientific uncertainty include uncertainty in the estimates of MFMT and biomass.” Id. § 600.310(f)(1).
At the center of this regime is the annual catch limit (“ACL”), which is a level of annual catch at or below the stock’s ABC. § 600.310(f)(2)(iv). The ACL is enforced by accountability measures (“AMs”), which are in-season and post-season measures to prevent the ACL from being exceeded, or to initiate corrective measures in the event that ACL is exceeded *5 in a given fishing year. See id. § 600.310(g). FMPs must contain ACLs and AMs for all managed stocks of fish in the fishery. See § 600.310(c), (h).
Another important component of fishery management is the problem of “bycatch”—that
is, “fish which are harvested in a fishery, but which are not sold or kept for personal use . . . .”
16 U.S.C. § 1802(2). Under the Sustainable Fisheries Act, Pub. L. No. 104-297, 110 Stat. 3559
(1996), an earlier amendment to the MSA, NMFS was required to “establish a standardized
reporting methodology to assess the amount and type of bycatch occurring in the fishery . . . .”
Id.
sec. 303(a), § 108(a)(7),
When a Council proposes an FMP or an amendment to an FMP, the proposal is submitted to the Secretary of Commerce, who must approve, disapprove, or partially approve the proposal. 16 U.S.C. § 1854(a)(3) (2012). In practice, the Secretary exercises her authority through NMFS, a division of NOAA within the Department of Commerce. Fed. Defs.’ Mot. Summ. J. 3, ECF No. 38.
FMPs are subject to judicial review under Section 706 of the APA. 16 U.S.C.
§ 1855(f)(1) (2012).
2. The National Environmental Policy Act
The National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970)
(codified as amended at scattered sections of U.S.C.), requires federal agencies to consider the
environmental impact of “major Federal actions significantly affecting the quality of the human
environment . . . .” 42 U.S.C. § 4332(C) (2006). FMPs and their amendments are considered
major federal actions sufficient to trigger NEPA.
See, e.g.
,
Conservation Law Found. v. Mineta
,
To determine whether an EIS is required, the agency must first prepare an environmental
assessment (“EA”), which provides evidence for determining whether there is sufficient
environmental impact to trigger an EIS, or whether there is a finding of no significant impact
(“FONSI”).
Mineta
,
An agency’s compliance with NEPA is reviewable under Section 706 of the APA.
Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc.
,
B. The Omnibus Amendment
After NMFS updated the NS1 Guidelines to address the new requirements for ACLs and AMs set forth in the MSA amendment, the Mid-Atlantic Council drafted the Omnibus Amendment, which updates the FMPs for the six existing fisheries under the Council’s jurisdiction: the Atlantic Mackerel, Squids, and Butterfish Fishery; the Atlantic Bluefish Fishery; the Spiny Dogfish Fishery; the Summer Flounder, Scup, and Black Sea Bass Fishery; the Surfclam and Ocean Quahog Fishery; and the Tilefish Fishery. See generally Omnibus Amendment, 76 Fed. Reg. 60,606 (Sept. 29, 2011) (codified at 50 C.F.R. pt. 648 (2013)) (A.R. 5197–213). On March 24, 2009, NMFS published a notice of intent, indicating that it was considering amendments to the six FMPs due to the new ACL and AM requirements. See Notice, 74 Fed. Reg. 12,314 (Mar. 24, 2009) (A.R. 172–74). After a round of scoping meetings, the Council drafted the Omnibus Amendment and submitted it to the Secretary, and in May 2011, NMFS published a notice in the Federal Register soliciting input on the Omnibus Amendment. See Request for Comments, 76 Fed. Reg. 29,717 (May 23, 2011) (A.R. 4663–64). The proposed rule was published on June 17, 2011, and the agency accepted public comment through July 22, 2011. Proposed Rule, 76 Fed. Reg. 35,578 (June 17, 2011) (A.R. 4671– 711). Initially, the agency was going to conduct an EIS, but it then changed the level of NEPA analysis to an EA. Notice of Intent, 75 Fed. Reg. 11,129 (Mar. 10, 2010) (A.R. 1920–21). The agency then released a final EA that concluded with a FONSI. A.R. 4754–5046. NMFS published the final Omnibus Amendment on September 29, 2011. Omnibus Amendment, 76 Fed. Reg. at 60,606 (A.R. 5197).
The Omnibus Amendment sets ACLs and catch targets using a system of buffers. As noted above, the OFL is reduced to ABC to account for scientific uncertainty, and the Omnibus *8 Amendment contains “ABC control rules” delineating the method for computing the necessary reduction. See 50 C.F.R. § 648.20 (2013). The ACL for each managed stock is then set equal to the stock’s ABC, except that for some stocks the ACL is apportioned into sector-ACLs, with separate catch limits for the commercial and recreational sectors. Omnibus Amendment, 76 Fed. Reg. at 60,607 (A.R. 5198) (“The Council will recommend to NMFS ACLs set equal to ABC for all species, with some further subdivision to sector-level ACLs where stocks have pre- existing allocations for both commercial and recreational fisheries. The sum of these sector ACLs will be equal to the ABC.”).
Although the ACL and ABC are equal under the Omnibus Amendment, the new regulatory scheme sets its target at an even lower figure in order to account for management uncertainty in the collection of data. This reduced figure is called an annual catch target (“ACT”), and is one type of AM established within the Omnibus Amendment to prevent the ACL from being exceeded. (“Council staff . . . will review available information and recommend to the Council the amount of reduction from ACL to ACT necessary to address management uncertainty.”). The ACTs are set in the first instance by committees, which propose specific ACTs to the Council and identify the specific sources of management uncertainty accounted for in their proposal. 50 C.F.R. §§ 648.22, .71, .101, .121, .141, .161, .231, .291 (2013). “Management uncertainty may include late catch reporting, misreporting, and underreporting of catches and is affected by a fishery’s ability to control actual catch.” Id. § 600.310(f)(1).
One specific source of management uncertainty is the counting of bycatch, which under
the Omnibus Amendment is estimated after each fishing year rather than counted in near real
time during the season. Omnibus Amendment,
The Secretary did not disapprove of the Omnibus Amendment, and the rules went into effect on October 31, 2011. at 60,606 (A.R. 5197).
C. Procedural History
On October 28, 2011, approximately one month after the Omnibus Amendment was published in the Federal Register , Oceana filed its complaint in the instant case, seeking vacatur of the Omnibus Amendment on five different theories: (1) that NMFS’s decision not to consider additional stocks for inclusion “in the fishery” violated the MSA, NEPA, and APA; (2) that NFMS violated the MSA and APA in failing to establish sub-ACLs and sub-AMs for bycatch species that are targets of other fisheries; (3) that NMFS violated the MSA, NEPA, and APA by delegating to committees the responsibility for quantifying management uncertainty and proposing ACTs; (4) that NMFS violated the MSA and APA by employing the SBRM Amendment’s method of bycatch monitoring; and (5) that NMFS failed to establish sufficient *10 AMs under the MSA and APA by not adopting any other in-season bycatch monitoring system in the Omnibus Amendment. [2] See generally Compl., ECF No. 1.
On February 24, 2012, FSF moved to intervene as a defendant on Counts II, IV, and V. Mot. Intervene, ECF No. 21. Neither Oceana nor Federal Defendants took a position on FSF’s motion, and on March 2, 2012, the Court granted FSF leave to intervene on the three requested counts. Order, ECF No. 22. The parties filed cross-motions for summary judgment as to all counts, and briefing was completed on February 22, 2013.
III. STANDARD OF REVIEW
Under the MSA, the Court reviews the implementation or amendment of a fishery
management plan pursuant to the judicial review provisions set forth in chapter 7 of the APA.
16 U.S.C. § 1855(f)(1)–(2) (2012). Similarly, an agency’s procedural compliance with
NEPA is reviewed under the APA’s “arbitrary and capricious” standard.
Nevada v. Dep’t of
Energy
,
“Under the ‘arbitrary and capricious’ standard the scope of review is a narrow one.”
Bowman Transp., Inc. v. Ark.–Best Freight Sys., Inc.
,
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 [it], 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 the U.S., Inc. v. State Farm Mut. Auto. Ins. Co.
,
The review is to be based on the record that was before the agency at the time its decision
was made.
Citizens to Preserve Overton Park, Inc. v. Volpe
,
The Court “will give an extreme degree of deference to the agency when it ‘is evaluating
scientific data within its technical expertise.’”
Huls Am. Inc. v. Browner
,
Typically, a court may grant summary judgment when “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.” Fed. R. Civ. P. 56(a). But when assessing a summary judgment motion in an APA case,
“the district judge sits as an appellate tribunal.”
Am. Bioscience, Inc. v. Thompson
, 269 F.3d
1077, 1083 (D.C. Cir. 2001). “The entire case on review is a question of law, and only a
*13
question of law.”
Marshall Cnty. Health Care Auth. v. Shalala
,
IV. ANALYSIS
A. Bycatch of Non-Target Stocks (Count I)
For each species of fish designated as a stock “in the fishery,” the Council must develop
conservation and management measures for that stock, including ACLs and AMs.
See
16 U.S.C.
§ 1853(a) (2012);
Flaherty v. Bryson
,
When NMFS promulgated the Omnibus Amendment, it included provisions bringing existing FMPs into compliance with the new requirements of the MSRA but did not include any new stocks “in the fishery” for any of the existing FMPs. See generally Omnibus Amendment, 76 Fed. Reg. 60,606 (Sept. 29, 2011) (codified at 50 C.F.R. pt. 648 (2013)) (A.R. 5197–213). In other words, under the Omnibus Amendment, the only stocks “in the fishery” are those that were already managed under the then-existing FMPs. According to Oceana, NMFS’s failure to consider whether to include “in the fishery” non-target stocks not already managed in the FMPs—such as river herring and shad within the Atlantic Mackerel, Squids, and Butterfish Fishery—violates the MSA, NEPA, and APA. [7]
(definition of “regulatory discards”); 50 C.F.R. § 600.310(d)(4) (definition of “non-target stocks”).
[5] It is important to note that “non-target stock” and “bycatch” are not totally synonymous, because the definition of bycatch includes economic discards while the definition of non-target stock does not. For example, river herring incidentally caught in the Atlantic Mackerel, Squids, and Butterfish Fishery constitute both bycatch and a non-target stock, because the herring are not the species sought by the fishers and are not retained for sale or personal use. An Atlantic mackerel caught in the same fishery but discarded due to unsatisfactory size would meet the definition of bycatch but would still be a target stock, because the species is sought by fishers in the fishery. 16 U.S.C. § 1802(2), (9); 50 C.F.R. § 600.310(d)(3)–(4).
[6] Stocks “in the fishery” does not necessarily include ecosystem component species, which are non-target stocks unlikely to be subject to overfishing absent conservation and management measures. 50 C.F.R. § 600.310(d)(5). Such species may, but are not required to, be included in an FMP. § 610.310(d)(5)(iii).
[7] Although Oceana’s complaint does not explicitly allege a violation of the MSA under Count I, see Compl. ¶ 61, it is clear that Oceana’s claim rests on the theory that the agency acted arbitrarily and capriciously in its actions (and inactions) taken pursuant to both the MSA and NEPA.
1. MSA Claim
The MSA requires the agency to create an FMP “for each fishery under its authority that requires conservation and management . . . .” 16 U.S.C. § 1852(h)(1) (2012). According to Oceana, NMFS violated the MSA by failing to consider whether non-target bycatch species, such as river herring and shad, “require[] conservation and management” and therefore should have been “in the fishery” in the amended FMPs. Pl.’s Mot. Summ. J. 14–19, ECF No. 36. Federal Defendants take the position that, because the Omnibus Amendment was intended solely to bring existing FMPs into compliance with new provisions of the MSA, they were not required to consider whether to include new stocks “in the fishery.” Fed. Defs.’ Mot. Summ. J. 14– 21, ECF No. 38. They also add that NMFS did, in fact, consider the effects of the proposed measures on non-target bycatch species that are not “in the fishery.” Fed. Defs.’ Reply Mem. Supp. Mot. Summ. J. 10–12, ECF No. 43.
a. Piecemeal Compliance
NMFS made clear at the outset that the purpose of its rulemaking here was “to address the new [MSA] requirements for annual catch limits (ACLs) and accountability measures (AMs) in an Omnibus Amendment to the fishery management plans (FMPs) for Atlantic mackerel, butterfish, Atlantic bluefish, spiny dogfish, summer flounder, scup, black sea bass, tilefish, surfclams, and ocean quahogs”—that is, the then-existing FMPs. Notice, 74 Fed. Reg. 12,314 (Mar. 24, 2009) (A.R. 172). From this, Federal Defendants reason that NMFS was not required to address all management needs in the Omnibus Amendment, and therefore could properly focus on bringing existing FMPs into compliance without considering whether to include new stocks “in the fishery.” Fed. Defs.’ Mot. Summ. J. 18.
Federal Defendants’ argument is unavailing. In support of their argument that an agency
action is not invalid for failure to regulate more comprehensively, Federal Defendants rely
largely on case law in which the D.C. Circuit held that it lacked jurisdiction to consider whether
an agency’s alleged failure to implement a statutory directive invalidated the regulation actually
promulgated.
id.
(citing
Hazardous Waste Treatment Council v. EPA
,
The issue raised by Oceana in challenging the Omnibus Amendment is different from the
jurisdictional issues raised in the D.C. Circuit cases. Oceana argues that, because NFMS did not
consider whether to include non-target bycatch stocks “in the fishery,” the Omnibus Amendment
is arbitrary and capricious because the ACLs
it does set
for the already-managed stocks could
result in overfishing of the unregulated bycatch stocks. Pl.’s Mot. Summ. J. 18;
see also Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co.
,
Because the new provisions of the MSA required NMFS to establish a mechanism for specifying ACLs and AMs such that “overfishing does not occur in the fishery,” the Court rejects Federal Defendants’ argument that NMFS was not required to consider the Omnibus Amendment’s impact on identified non-target bycatch species in the fisheries it chooses to manage under an FMP.
b. Consideration of Bycatch Species Not “in the Fishery”
When Congress most recently reauthorized and expanded the MSA, it added a
requirement that the Secretary “establish a mechanism for specifying annual catch limits . . . at a
level such that overfishing does not occur in the fishery . . . .” Magnuson–Stevens Fishery
Conservation and Management Reauthorization Act of 2006, Pub. L. No. 109-479, sec. 303(a),
§ 104(a)(10), 120 Stat. 3575, 3584 (2007) (codified at 16 U.S.C. § 1853(a)(15)). As Judge
Kessler recently observed, implementation of ACLs to prevent overfishing under this provision
“necessarily entails a decision as to which stocks require conservation and management.”
[9]
*18
Flaherty
,
The Guidelines also support the conclusion that the MSA does not require reclassification of stocks “in the fishery” each time an FMP is amended. They contain no provision mandating that stocks be considered for reclassification whenever an FMP is amended. Instead, they provide for periodic monitoring “on a regular basis” to determine whether reclassification is necessary. 50 C.F.R. § 600.310(d)(6).
Although NMFS did not consider whether to include non-target bycatch stocks “in the
fishery,” it did consider the impact of the Omnibus Amendment on those stocks. In the
environmental assessment for the Omnibus Amendment, it was determined that, “[b]ecause [it]
would not result in an increase or decrease in catch relative to ABC, the indirect impacts on the
managed resource and non-target species are expected to be identical to those under the status
quo . . . .” A.R. 4890. In other words, because the Omnibus Amendment sets ACL equal to
ABC for all managed stocks, the agency rationally concluded that the changes to the existing
FMPs would not have any greater detrimental impact on non-target bycatch species. Omnibus Amendment,
NMFS also argues that its decision not to consider additional stocks for inclusion “in the fishery” was reasonable in light of the time constraints imposed by the MSRA, see Fed. Defs.’ Mot. Summ. J. 18, and the Court agrees. The statute imposes upon the agency an obligation to comply with the MSA’s new provisions by the 2010 fishing year for fisheries that were subject to overfishing, and by 2011 for all others. 16 U.S.C. § 1853 note. Although other judges have found that the MSRA’s statutory deadline is no excuse for delay, see Flaherty , 850 F. Supp. 2d at 51–53, the Court finds that a holistic review of the timeline reveals that the agency did not act in a dilatory fashion. Before NMFS could begin amending the FMPs themselves, it first had to update the Guidelines in order to set forth the Secretary’s interpretation of the MSA’s new requirements for ACLs and AMs—a process that began just one month after the MSRA’s enactment and concluded approximately two years later. NS1 Guidelines Notice, 72 Fed. Reg. 7016 (Feb. 14, 2007); NS1 Guidelines Proposed Rule, 73 Fed. Reg. 32,526 (June 9, 2008); NS1 Guidelines Final Rule, 74 Fed. Reg. 3178 (Jan. 16, 2009) (codified at 50 C.F.R. pt. 600) (A.R. 102–38). These Guidelines set forth the framework that governs not just the Mid-Atlantic FMPs, but all FMPs nationwide. This warrants great care in their implementation. Given the *20 complexity of the Guidelines and fishery management generally, the Court finds the two-year timeline reasonable.
The time necessarily spent updating the Guidelines brought the agency much closer to its
deadline. NMFS began the scoping process for the Omnibus Amendment shortly after
completing the Guidelines updates,
see
Notice,
If the agency were required to make a wholesale reconsideration of which stocks to include “in the fishery” every time it amends an FMP, the delay would be much greater. Oceana articulates no stopping point on the number of species the agency would have to reconsider during each amendment, but any principled rule would presumably include all identified bycatch species, of which there are well over a dozen in the Mid-Atlantic FMPs. A.R. 4864–65. To reassess the inclusion of these species “in the fishery” during each amendment would be an absurd result. [11] Indeed, Federal Defendants have noted that the delay would have a “crippling” effect on the agency. Fed. Defs.’ Mot. Summ. J. 20–21.
*21 Because Oceana has not shown that NMFS’s consideration of the Omnibus Amendment’s impact on non-target bycatch species was arbitrary or capricious under the MSA, the Court will grant Federal Defendants’ motion for summary judgment on Count I’s MSA theory.
2. NEPA Claim
Count I of Oceana’s complaint also contains a NEPA claim. “NEPA imposes procedural
rather than substantive duties on government agencies undertaking major federal action, such as
the adoption of an FMP or FMP amendment.”
Locke
,
[12] Oceana’s Count I also alleges that NMFS failed to rationally consider whether an EIS was required, violating NEPA. Compl. ¶¶ 58–59. But because Oceana does not invoke this
Other judges sitting in this district have previously recognized that, where the alleged NEPA violation involves NMFS’s failure to consider whether to include additional stocks “in the fishery,” the claim is better understood as a challenge to agency inaction. See, e.g. , Locke , 831 F. Supp. 2d at 125. “Rather than asserting that NMFS failed to take a hard look at the environmental consequences of its actions, therefore, [Oceana’s] claim is more properly viewed as an allegation that NMFS improperly failed to consider alternative action to maintaining the status quo composition of the Fishery.” Id.
Where a claim under NEPA is characterized in this manner, “the Court engages in a two-
part process: first, an examination of ‘whether an agency’s objectives are reasonable,’ and
second, ‘whether a particular alternative is reasonable in light of these objectives.’”
Id.
at 127
(quoting
City of Alexandria v. Slater
,
The Court finds that NMFS acted reasonably in limiting the Omnibus Amendment to
bringing existing FMPs into compliance with the new provisions of the MSA. As noted above,
neither the MSA nor the Guidelines required that the composition of the fishery be reevaluated
during the promulgation of the Omnibus Amendment.
supra
Part IV.A.1.a. Where an issue
is particularly complex, the scope of reasonable alternatives is necessarily limited.
Oceana,
Inc. v. Evans
,
Because it was reasonable for the agency to limit the Omnibus Amendment’s objectives to bringing FMPs for managed stocks into compliance with the MSA, the Court next turns to whether NMFS was required to consider an alternative that increased the number of managed species “in the fishery.” Because such an alternative would not have furthered the objective of bringing existing FMPs into compliance with the MSA, the Court finds that the agency acted reasonably in declining to consider the alternative. The Court will thus grant summary judgment for Federal Defendants on Oceana’s Count I NEPA theory.
B. Bycatch of Target Stocks in Non-Directed Fisheries (Count II) Oceana’s second claim for relief challenges the Omnibus Amendment’s alleged failure to account for bycatch of target stocks in non-directed fisheries. Compl. ¶¶ 62–67, ECF No. 1. In this context, a “non-directed fishery” means a fishery managed by an FMP, but which does not seek to catch the target stock at issue. For example, the bycatch of summer flounder in the Northeast Multispecies Fishery (also known as the Groundfish Fishery) [13] falls within the scope of this claim, because summer flounder is a target stock of the Summer Flounder, Scup, and Black Sea Bass Fishery, but is a bycatch species in the Groundfish Fishery. ¶ 65. During the Omnibus Amendment’s comment period, Oceana recommended that NMFS address this issue by implementing “sub-ACLs”—that is, by apportioning the species’ overall ACL among different user groups, including fisheries that catch the species as bycatch. Omnibus Amendment, 76 Fed. Reg. 60,610–11 (Sept. 29, 2011) (A.R. 5201–02). It is Oceana’s position *24 that the Omnibus Amendment is arbitrary and capricious under the APA and Section 1853(a)(15) of the MSA, because it “does not reflect a rational analysis of the catch of target stock in non- directed fisheries and the implementation of sub-ACLs and [sub-]AMs for such catch, even though such issues were brought to [NMFS]’s attention in Oceana’s Comment Letters.” Compl. ¶ 65. Federal Defendants and FSF respond that the MSA does not require the implementation of sub-ACLs, and that, in any event, the Omnibus Amendment accounts for such bycatch in setting each species’ overall ACL. FSF’s Cross-Mot. Summ. J. 17–22, ECF No. 37; Fed. Defs.’ Mot. Summ. J. 25–28, ECF No. 38.
Oceana correctly recognizes that sub-ACLs are not a mandatory measure, and that an
FMP must simply establish an overall suite of accountability measures sufficient to prevent
overfishing. Pl.’s Mot. Summ. J. 22, ECF No. 36 (citing
Oceana, Inc. v. Locke
, 831 F. Supp.
2d 95, 117 (D.D.C. 2011)). Indeed, the MSA makes no mention of sub-ACLs.
Cf.
16 U.S.C.
§ 1853(a)(15) (2012) (requiring that the Secretary “establish a mechanism for specifying
[overall] annual catch limits”). The issue is thus whether NFMS, by not implementing Oceana’s
sub-ACL proposal, acted arbitrarily and capriciously by ignoring bycatch of target stocks in non-
directed fisheries.
See also Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto.
Ins. Co.
,
Both the Guidelines and the administrative record show that bycatch of such stocks is not
ignored, and that NMFS explained as much in declining to adopt sub-ACLs. Under the NS1
Guidelines, ABC accounts for bycatch, either by expressing the ABC figure in terms of all catch,
or expressing the figure in terms of landings while incorporating estimated bycatch and other
*25
fishing mortality.
See
50 C.F.R. § 600.310(f)(3)(i) (2013). Because the ACL for a stock cannot
exceed its ABC,
see id.
§ 600.310(f)(5)(i), bycatch is thus included in the stock’s overall ACL as
well. Indeed, under the Omnibus Amendment, ABC and ACL are equal. Omnibus
Amendment,
In response to Defendants’ showing that bycatch is accounted for, Oceana’s reply brief
moves the goalposts and asserts that accounting for bycatch in the overall ACL is insufficient
because it does not
limit
bycatch. Pl.’s Reply Supp. Mot. Summ. J. 20, ECF No. 42.
Instead, Oceana brushes aside the Omnibus Amendment’s accounting system as merely
“counting fish.” But the MSA requires only that the agency minimize bycatch “to the
extent practicable . . . .” 16 U.S.C. § 1853(a)(11). In phrasing the requirement in such a fashion,
Congress delegated to the agency the discretion to weigh the relevant factors.
Nat’l Coal. for
Marine Conservation v. Evans
,
The Court is similarly unconvinced by Oceana’s argument that the Omnibus Amendment’s accounting system does not establish a mechanism for specifying ACLs and AMs that prevent overfishing as required by Section 1853(a)(15) of the MSA. Pl.’s Reply Supp. Mot. Summ. J. 20. If bycatch in non-directed fisheries is accounted for in a stock’s overall ACL, which in turn has its own AMs, it seems that those measures would serve to prevent overfishing. Oceana has not demonstrated otherwise. Accordingly, the Court will grant summary judgment in favor of all Defendants on Count II.
C. ACT Control Rule (Count III)
As noted above, the Omnibus Amendment employs annual catch targets, or ACTs, as one type of AM. An ACT is “an amount of annual catch . . . that is the management target of the fishery, and accounts for management uncertainty in controlling the annual catch at or below the ACL.” 50 C.F.R. § 600.310(f)(2)(v) (2013). In other words, while the OFL is reduced by scientific uncertainty to establish the ACL of a stock, the ACL is further reduced by management uncertainty in order to establish the ACT for that stock. ACTs act as an AM because, by establishing catch targets below the ACL that account for management uncertainty, they help to ensure that the ACL is not exceeded. An “ACT control rule” is “a specified approach to setting the ACT for a stock . . . such that the risk of exceeding the ACL due to management uncertainty is at an acceptably low level.” Id. § 600.310(f)(2)(vi).
Under the ACT paradigm set forth in the Omnibus Amendment, “Council staff or species-monitoring committees will review available information and recommend to the Council the amount of reduction from ACL to ACT necessary to address management uncertainty. *28 Where ACLs are divided into sector-specific ACLs, comparable sector ACTs that address the associated sector-specific management uncertainties will be used.” Omnibus Amendment, 76 Fed. Reg. 60,607 (Sept. 29, 2011) (A.R. 5198). The ACT control rule for each species is separately codified within the corresponding FMP. As set forth in the Omnibus Amendment, committees must recommend an ACT for each species—with some species further broken down by sector (commercial or recreational)—and identify the specific sources of management uncertainty considered in setting the ACT. 50 C.F.R. §§ 648.22, .71, .101, .121, .141, .161, .231, .291 (2013).
The Guidelines for National Standard 1 advise:
If ACT is specified as part of the AMs for a fishery, an ACT control rule is utilized for setting the ACT. The ACT control rule should clearly articulate how management uncertainty in the amount of catch in the fishery is accounted for in setting the ACT. The objective for establishing the ACT and related AMs is that the ACL not be exceeded.
Id. § 600.310(f)(6). In Count III of its complaint, Oceana asserts that the Omnibus Amendment, which relies on the ACT as one type of AM, fails to comply with the MSA and APA because it does not specify a sufficient ACT control rule. Compl. ¶¶ 74, 77, ECF No. 1. In the same Count, Oceana also challenges the Omnibus Amendment’s alleged lack of a sufficient ACT control rule as a violation of NEPA, asserting that the agency failed to consider feasible and reasonable alternatives to the ACT AMs it did put in place, and did not take a hard look at the environmental impacts of those AMs. id. ¶¶ 75, 77.
1. MSA Claim
Oceana first asserts that the Omnibus Amendment does not contain a sufficient ACT
control rule and thus fails to comply with the MSA. ¶ 74. In relevant part, the MSA
requires that the Secretary of Commerce “establish a mechanism for specifying annual catch
limits in the [FMP] at such a level that overfishing does not occur in the fishery, including
*29
measures to ensure accountability.” 16 U.S.C. § 1853(a)(15) (2012). The latter clause sets forth
a statutory requirement that the agency adopt AMs in order to enforce the ACLs.
Oceana,
Inc. v. Locke
,
Before analyzing the Guidelines themselves, the Court must first determine what weight
the Guidelines are due. Where Congress delegates legally binding interpretive authority to an
agency, “a court may not substitute its own construction of a statutory provision for a reasonable
interpretation made by the administrator of an agency.”
Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc.
,
The Court concludes that the NS1 Guidelines deserve considerable deference. NMFS used a highly formal process to amend the Guidelines to reflect the agency’s interpretation of the MSA’s new requirements for ACLs and AMs. The agency used notice-and-comment procedure to amend the Guidelines, publishing an initial notice in the Federal Register just one month after the MSRA was enacted. NS1 Guidelines Notice, 72 Fed. Reg. 7016 (Feb. 14, 2007). NMFS accepted public comments during the scoping process, see , and after more than one year of deliberation, published a proposed rule for further comment, see NS1 Guidelines Proposed Rule, 73 Fed. Reg. 32,526 (June 9, 2008). It finalized the amendments to the Guidelines on January 16, 2009, approximately two years after the MSRA was enacted. NS1 Guidelines Final Rule, 74 Fed. Reg. 3178 (Jan. 16, 2009) (codified at 50 C.F.R. pt. 600 (2013)) (A.R. 102–38). Over the years, NMFS has adopted a detailed and thorough Guideline for each of the ten National Standards, see 50 C.F.R. §§ 600.305–.355 (2013), which reflects the agency’s expertise in the subject matter. Indeed, Oceana itself relies on the Guidelines in its briefing and does not appear to challenge their interpretation of the MSA. Pl.’s Mot. Summ. J. 24–27, ECF No. 36.
The NS1 Guidelines support the agency’s position that the ACT is not a mandatory AM under Section 1853(a)(15) of the MSA. The Guidelines identify the ACT as merely one of many types of in-season AMs that may be employed. 50 C.F.R. § 600.310(g)(2). Rather than mandate the adoption of ACTs, the Guidelines state only that “ACTs are recommended in the *31 system of accountability measures so that ACL is not exceeded.” Id. § 600.310(f)(2)(v) (emphasis added).
Nonetheless, NMFS did choose to implement ACTs as one type of AM in the Omnibus Amendment. Where an FMP uses ACTs, “an ACT control rule is utilized for setting the ACT.” [15] Id. § 600.310(f)(6); see also id. § 600.310(f)(2)(vi) (defining ACT control rule). The Guidelines also provide some direction as to the content that should be contained in ACT control rules. In particular, in a provision relied upon heavily by Oceana, they provide that “[t]he ACT control rule should clearly articulate how management uncertainty in the amount of catch in the fishery is accounted for in setting ACT.” Id. § 600.310(f)(6). According to Oceana, the Omnibus Amendment is invalid because it does not “clearly articulate” how the agency accounts for management uncertainty in arriving at the ACT. Pl.’s Mot. Summ. J. 25–26, ECF No. 36. Instead, Oceana asserts that NMFS left itself unfettered discretion as to the method for setting ACTs, and even whether to set ACTs at all. id. at 27.
The Court begins by noting that the Guidelines provide that the ACT control rule “
should
clearly articulate how management uncertainty in the amount of catch in the fishery is accounted
for in setting ACT.” 50 C.F.R. § 600.310(f)(6) (emphasis added). Under the Guidelines,
“[s]hould is used to indicate that an action or consideration is
strongly recommended
to fulfill the
Secretary’s interpretation of the Magnuson–Stevens Act, and is
a factor
reviewers will look for
*32
in evaluating a SOPP or FMP.”
Id.
§ 600.305(c)(3) (emphases added). By contrast, the
Guidelines use the word “must” to denote obligations to act.
See id.
§ 600.305(c)(1) (“Must is
used, instead of ‘shall’, to denote an obligation to act; it is used primarily when referring to
requirements of the Magnuson–Stevens Act, the logical extension thereof, or of other applicable
law.”). Thus, even assuming that the Omnibus Amendment’s ACT control rules do fail to
“clearly articulate” how management uncertainty is accounted for in setting the ACT, such detail
is not required in order to comply with the MSA.
[16]
See also Locke
,
Because the ACT itself is not a mandatory AM, and because the NS1 Guidelines do not
mandate that any specific content be included in the ACT control rule when ACTs are employed,
the ultimate inquiry under Section 1853(a)(15) of the MSA is whether NMFS established an
overall suite
of AMs to prevent overfishing.
See id.
As Federal Defendants point out, the
*33
Omnibus Amendment uses ACTs alongside several other AMs, such as commercial trip and
possession limits, and overage repayments. Omnibus Amendment,
2. NEPA Claim
Oceana has also claimed that the agency violated NEPA in its alleged failure to take a
hard look at the alternatives to, and environmental impacts of, the Omnibus Amendment’s
mechanism for specifying ACTs. Compl. ¶¶ 75, 77. However, in its briefing, Oceana does
not present any argument or citation in support of its NEPA theory on Count III. In a case based
solely on judicial review of agency action, the district court sits as an appellate tribunal and
disposes of the case on cross-motions for summary judgment.
Locke
,
D. Use and Sufficiency of the SBRM (Count IV)
In Count IV of its complaint, Oceana challenges the Omnibus Amendment’s alleged use of the SBRM as a bycatch reporting methodology, arguing that the FMPs’ alleged use of the SBRM fails to provide the NMFS with timely, accurate, and precise enough information to meaningfully enforce ACLs. Compl. ¶¶ 78–90, ECF No. 1. The SBRM is not established by the Omnibus Amendment itself, but was instead established by the SBRM Amendment, a separate rule, promulgated earlier by the NMFS in cooperation with the councils for the New England and Mid-Atlantic regions. SBRM Amendment, 73 Fed. Reg. 4736 (Jan. 28, 2008) (codified at 50 C.F.R. pt. 648 (2013)). The SBRM Amendment requires the NMFS to place enough independent observers within each “fishing mode”—that is, combination of vessel type and fishing gear—to gather statistically reliable data on bycatch. at 4738.
However, the SBRM Amendment is no longer in effect. In 2011, the D.C. Circuit
ordered that the rule be vacated and remanded to the agency because it failed to comply with the
MSA’s requirement that the NMFS “establish” a standardized reporting methodology to assess
the amount and type of bycatch.
Oceana, Inc. v Locke
,
Federal Defendants argue that, because the SBRM Amendment has already been vacated
and remanded, the Court can provide no further relief to Oceana. Fed. Defs.’ Mot. Summ. J.
33–34, ECF No. 38. Oceana counters that the continued use of the SBRM is arbitrary and
capricious, citing general case law on the arbitrary and capricious standard. Pl.’s Omnibus
Reply Br. 26, ECF No. 42. Defendants have the better argument here. As Judge Boasberg found
in ruling on Oceana’s challenge to an amendment to the New England FMPs, the sufficiency of
the SBRM “is the very question being litigated in a separate case involving the SBRM
Amendment.”
Oceana, Inc. v. Locke
,
To the extent Oceana wishes to challenge the new methodology resulting from the remand, it must wait until the issue is ripe for adjudication. As noted, the agency is still in the rulemaking phase. Because the Court can provide no further relief under the theory outlined in Count IV of the complaint, the Court will also dismiss this count.
E. In-Season Bycatch Monitoring Measures (Count V)
Oceana’s fifth and final claim asserts that, by declining to adopt in-season bycatch
monitoring, NMFS failed to establish sufficient AMs under Section 1853(a)(15) of the MSA.
[17]
Pl.’s Mot. Summ. J. 28–29, ECF No. 36. Defendants take the position that the MSA does
not require NMFS to monitor in-season bycatch in near real time. The MSA requires the
Secretary to “establish a mechanism for specifying annual catch limits in the [FMP] at such a
level that overfishing does not occur in the fishery, including measures to ensure accountability.”
16 U.S.C. § 1853(a)(15) (2012). As the Court has already noted, the latter clause requires the
Secretary to implement AMs to enforce ACLs.
supra
Part IV.C.1 (citing
Oceana, Inc. v.
Locke
,
Neither the MSA nor the Guidelines support Oceana’s assertion that NMFS was required
to implement in-season bycatch monitoring. Section 1853(a)(15) of the MSA broadly mandates
that the Secretary implement AMs, and does not specifically mention in-season bycatch
*37
monitoring—or bycatch at all.
[18]
16 U.S.C. § 1853(a)(15);
see also Oceana, Inc. v. Locke
,
Oceana cites to
Locke
for the proposition that “ACL monitoring . . . requires in-season
bycatch reports that measure discards in near real time . . . .”
Locke
,
Because near-real-time in-season bycatch monitoring is not mandatory, the ultimate issue of the Omnibus Amendment’s compliance with the MSA rests on whether the overall suite AMs is sufficient to enforce the ACLs. See also supra Part IV.C.1. Defendants do not deny that some form of accounting for bycatch, whether in-season or post-season, is an important component in the overall suite. In the Omnibus Amendment’s final publication in the Federal Register , NMFS stated:
In lieu of monitoring total catch on a real-time basis, the Omnibus Amendment contemplates a two-part examination of the fisheries: Inseason monitoring of landings . . . and post-fishing year accounting of dead discards . The monitoring committees will consider the estimated discards for a given specification period . . . and recommend any necessary reductions for uncertainty associated with discard performance to the Council to establish ACT(s).
Omnibus Amendment, 76 Fed. Reg. 60,612 (Sept. 29, 2011) (A.R. 5203) (emphasis added). NMFS acknowledged that the post-season estimation method “contains some uncertainty, particularly if the discard estimates utilized to offset the ACT or to derive the landing limits before the fishery occurs are variable.” Id. But this is accounted for in the management uncertainty in setting the ACT, and thus the ACTs and post-season bycatch estimation go hand- in-hand.
Oceana asserts that post-season estimates will not generate precise enough data to
meaningfully enforce ACLs. Pl.’s Mot. Summ. J. 29. But this assertion is unsupported by
evidence or data. Instead, Oceana focuses exclusively on the alleged need for in-season
monitoring without explaining why NMFS’s chosen alternative was arbitrary and capricious.
Although the method of using post-season bycatch estimates to create an ACT “buffer” in lieu of
real-time monitoring contains inherent uncertainty,
see
Omnibus Amendment, 76 Fed. Reg. at
*39
60,612 (A.R. 5203), the availability of corrective AMs such as overage adjustments in
subsequent fishing years,
see
50 C.F.R. § 600.310(g)(3), makes NMFS’s choice appear
reasonable. While near-real-time bycatch monitoring may lead to more reliable data in theory,
NMFS explained that it lacked the resources to undertake such a measure. Omnibus
Amendment,
Because Oceana has not shown that NMFS acted arbitrarily and capriciously in deciding not to adopt in-season bycatch monitoring measures, the Court will enter judgment in favor of Defendants as to Count V.
V. CONCLUSION
For the foregoing reasons, the Court will deny Oceana’s motion for summary judgment, and grant Defendants’ motions for summary judgment. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: March 10, 2014 RUDOLPH CONTRERAS
United States District Judge
Notes
[1] Secretary Pritzker is substituted for John Bryson pursuant to Federal Rule of Civil Procedure 25(d).
[2] In its complaint, Oceana originally cast a wider net, asserting a broader array of theories. See generally Compl., ECF No. 1 However, the theories were so narrowed in Oceana’s summary judgment briefing. See generally Pl.’s Mot. Summ. J., ECF No. 36; Pl.’s Reply Supp. Mot. Summ. J. 20, ECF No. 42; infra notes 7, 12, 17 and accompanying text.
[3] The term also includes “economic discards”—fish that are the target of a fishery, but that the fisher does not retain for economic reasons, such as undesirable size, sex, or quality. 16 U.S.C. § 1802(9) (definition of “economic discards”); 50 C.F.R. § 600.310(d)(3) (definition of “target stocks”).
[4] The term also includes “regulatory discards,” which are harvested fish that fishers are required by regulation to either discard or retain but not sell. 16 U.S.C. § 1802(38)
[8] Federal Defendants also cite Judge Boasberg’s opinion in Oceana, Inc. v. Locke , 831 F. Supp. 2d 95 (D.D.C. 2011), where the court found that, based on the narrow scope of the regulation at issue, it was reasonable under NEPA for NMFS to avoid inquiring whether to include any additional non-target bycatch species “in the fishery.” at 125–28. But because that analysis involved NEPA , the court did not address whether the narrow objectives of the new rule were at odds with the MSA’s statutory mandates.
[9] Federal Defendants attempt to argue that
Flaherty
is inapplicable to this case because,
there, NMFS originally considered whether to include additional stocks “in the fishery” and then
abandoned that objective without explanation, making an “affirmative decision” not to include
any new stocks. Fed. Defs.’ Reply Mem. Supp. Mot. Summ. J. 7 (citing
Flaherty
, 850 F.
Supp. 2d at 45–46). The Court is not persuaded by this attempt to distinguish
Flaherty
. Federal
Defendants cite only to the factual background section of the opinion, which merely describes
the changing scope of NMFS’s objectives in that case; Judge Kessler’s actual analysis does not
indicate that she considered the changing scope of the agency’s objectives an important factor.
Flaherty
,
[10] Although FMPs are prepared by the Councils, and therefore the Mid-Atlantic Council would arguably not have been delayed by the requirement to prioritize fisheries that were subject to overfishing, the agency itself is charged with reviewing all FMPs. 16 U.S.C. § 1854(a)(3) (2012).
[11] Oceana argues that, by not requiring NMFS to reassess the composition of the fishery during each amendment, the agency “could forever overlook the conservation and management needs of bycatch species in the Mid-Atlantic Fisheries and thereby continue to expose these stocks to overfishing.” Pl.’s Reply Supp. Mot. Summ. J. 8–9, ECF No. 42. But recent events show that Oceana’s fear is unfounded. Before Oceana even initiated this litigation,
[13] The Groundfish Fishery is overseen by the New England Fishery Management
Council.
Oceana, Inc. v. Locke
,
[14] As FSF points out, where bycatch makes up only a small percentage of the overall catch for a given stock, “the interlocking system of sub-ACLs Oceana prefers would virtually guarantee an essentially serendipitous series of shut-downs from year-to-year in other fisheries, thus inhibiting the attainment of OY in those fisheries.” FSF’s Cross-Mot. Summ. J. 21.
[15] Although Oceana’s complaint and briefing are not clear on this point, one could read Oceana’s claim as asserting that NMFS did not implement any ACT control rule, and that a control rule is mandated by the NS1 Guidelines whenever ACTs are used. The Court reads the Guidelines differently. In recognizing that “an ACT control rule is utilized for setting the ACT[,]” 50 C.F.R. § 600.310(f)(6), NMFS was not imposing a separate substantive requirement upon FMPs that use ACTs. In view of the provision’s lack of any language signifying obligation, cf. § 600.305(c)(1) (providing that the Guidelines use the word “must” to denote obligation to act), it is clear that this language in the Guidelines simply serves to define any rule establishing an ACT-setting approach as an “ACT control rule.”
[16] Nor is Oceana sufficiently specific about what it thinks a “clear articulation” would
entail. Both the Guidelines and the Omnibus Amendment’s ACT control rules require that the
committees consider and identify sources of management uncertainty, including uncertainty in
the ability of managers to constrain catch and uncertainty in quantifying true catch amounts.
See
50 C.F.R. § 600.310(f)(6)(i). Perhaps Oceana believes a rigid mathematical formula is required
or recommended—it does not say.
This case is not like
Oceana, Inc. v. Locke
,
[17] Oceana’s complaint asserted a broader claim, alleging that the Omnibus Amendment failed to establish any bycatch reporting methodology, violating Section 1853(a)(5), (11), and (15) of the MSA. Compl. ¶¶ 91–95, ECF No. 1. However, Oceana relies solely on its in- season bycatch monitoring theory under Section 1853(a)(15) in its briefing, thus waiving the remaining theories it originally asserted. See also supra Part IV.C.2.
[18] Section 1853(a)(11), which Oceana originally asserted in Count V and then waived, see supra note 17, requires that the Secretary “establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery,” 16 U.S.C. § 1853(a)(11), but likewise does not explicitly state that the methodology must use in-season measures. Moreover, as the Court noted above, NMFS is in the process of reissuing a standardized bycatch reporting methodology on remand, following the D.C. Circuit’s rejection of the SBRM Amendment. supra Part IV.D.
[19] In response, Oceana quotes
Locke
for the proposition that “[s]tatutory requirements
that render fishery management more difficult or expensive, may not simply be disregarded.”
Locke
,