OCEANA, INC., Plaintiff, v. Penny PRITZKER, in her official capacity as Secretary of the United States Department of Commerce, et al., Defendants. and Fisheries Survival Fund, Intervenor-Defendant.
Civil Action No.: 11-1896 (RC)
United States District Court, District of Columbia.
Signed March 10, 2014
Ethan Carson Eddy, Joanna K. Brinkman, U.S. Department of Justice, Washington, DC, for Defendant.
David Earl Frulla, Barbara A. Miller, Kelley, Drye & Warren, LLP, Washington, DC, Shaun Michael Gehan, Law Office of Shaun M. Gehan, PLLC, Washington, DC, for Intervenor Defendant.
Re Document Nos.: 36, 37, 38
MEMORANDUM OPINION
DENYING PLAINTIFF‘S MOTION FOR SUMMARY JUDGMENT; GRANTING FEDERAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; AND GRANTING INTERVENOR-DEFENDANT‘S MOTION FOR SUMMARY JUDGMENT
RUDOLPH CONTRERAS, United States District Judge
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.
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
The required components of FMPs are set forth in Section 1853(a) of the MSA. See
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.” See
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.”
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. See
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. . . .”
When a Council proposes an FMP or an amendment to an FMP, the proposal is
FMPs are subject to judicial review under Section 706 of the APA. See
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. . . .”
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“). See Mineta, 131 F. Supp. 2d at 22 (citing
An agency‘s compliance with NEPA is reviewable under Section 706 of the APA. See Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 90, 103 S. Ct. 2246, 76 L. Ed. 2d 437 (1983).
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
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 Amendment contains “ABC control rules” delineating the method for computing the necessary reduction. See
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. See
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. See Omnibus Amendment, 76 Fed. Reg. at 60,612 (A.R. 5203) (“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).“). The Omnibus Amendment does not itself purport to establish a methodology for reporting bycatch, and therefore relies largely on the methodology set forth in the SBRM Amendment. The Omnibus Amendment, however, is not completely tied to the SBRM Amendment, as it authorizes the committees to make “[c]hanges, as appropriate, to the Northeast Region SBRM, including the coefficient of variation (CV) based performance standard, fishery stratification, and/or reports[,]” as part of the AMs for each FMP.
The Secretary did not disapprove of the Omnibus Amendment, and the rules went into effect on October 31, 2011. See
C. Procedural History
On October 28, 2011, approximately one month after the Omnibus Amendment was
On February 24, 2012, FSF moved to intervene as a defendant on Counts II, IV, and V. See 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. See 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. See
“Under the ‘arbitrary and capricious’ standard the scope of review is a narrow one.” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S. Ct. 438, 42 L. Ed. 2d 447 (1974). On review, the Court gives the agency‘s decision “significant leeway” and does not substitute its own judgment for that of the agency. Steel Mfrs. Ass‘n v. EPA, 27 F.3d 642, 646 (D.C. Cir. 1994). Instead, the Court will review the agency action in order to determine whether the agency has “articulate[d] a ‘rational connection between the facts found and the choices made.‘” Bowman Transp., 419 U.S. at 285, 95 S. Ct. 438 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S. Ct. 239, 9 L. Ed. 2d 207 (1962)); accord Kisser v. Cisneros, 14 F.3d 615, 619 (D.C. Cir. 1994). The administrative record must show that the agency “considered the relevant factors and explained the facts and policy concerns on which it relied, and whether those facts have some basis in the record.” Nat‘l Treasury Emps. Union v. Horner, 854 F.2d 490, 498 (D.C. Cir. 1988). Furthermore, the agency‘s decision is arbitrary or capricious if the agency relied on factors which Congress has not intended it to consider, entirely failed to
The review is to be based on the record that was before the agency at the time its decision was made. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977). The Court “may not supply a reasoned basis” that the agency itself has not given, but may “uphold a decision of less than ideal clarity” if the agency‘s rationale may reasonably be discerned. Bowman Transp., 419 U.S. at 285-86, 95 S. Ct. 438 (citing SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S. Ct. 1760, 91 L. Ed. 1995 (1947), and Colo. Interstate Gas Co. v. Fed. Power Comm‘n, 324 U.S. 581, 585, 65 S. Ct. 829, 89 L. Ed. 1206 (1945)). The Court is merely to determine whether the agency‘s decision was reasoned and supported by record evidence. See State Farm, 463 U.S. at 43, 103 S. Ct. 2856.
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, 83 F.3d 445, 452 (D.C. Cir. 1996) (quoting Int‘l Fabricare Inst. v. U.S. EPA, 972 F.2d 384, 389 (D.C. Cir. 1992) (per curiam)). “When examining [a] scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103, 103 S. Ct. 2246, 76 L. Ed. 2d 437 (1983); see also Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S. Ct. 1851, 104 L. Ed. 2d 377 (1989) (“When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts, even if, as an original matter, a court might find contrary views more persuasive.“). Moreover, “[i]f carried out correctly, arbitrary-and-capricious style review does not put the court into the (agency‘s) driver‘s seat. It is, rather, for the agency to decide the exact trade-off among conflicting goals that ‘best promotes’ the Congressional ‘goal’ in question.” Cont‘l Air Lines, Inc. v. Dep‘t of Transp., 843 F.2d 1444, 1451 (D.C. Cir. 1988). Thus, in the context of judicial review of an FMP, “[i]t is therefore especially appropriate for the Court to defer to the expertise and experience of those individuals and entities—the Secretary, the Councils, and their advisors—whom the [MSA] charges with making difficult policy judgments and choosing appropriate conservation and management measures based on their evaluations of the relevant quantitative and qualitative factors.” Nat‘l Fisheries Inst., Inc. v. Mosbacher, 732 F. Supp. 210, 223 (D.D.C. 1990). Nonetheless, the courts applying the arbitrary and capricious standard of review “do not defer to the agency‘s conclusory or unsupported suppositions.” McDonnell Douglas Corp. v. U.S. Dep‘t of the Air Force, 375 F.3d 1182, 1186-87 (D.C. Cir. 2004).
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.”
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
When NMFS promulgated the Omnibus Amendment, it included provisions bring-
1. MSA Claim
The MSA requires the agency to create an FMP “for each fishery under its authority that requires conservation and management. . . .”
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.” See 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. See id. (citing Hazardous Waste Treatment Council v. EPA, 861 F.2d 277, 287-88 (D.C. Cir. 1988), and United Tech. Corp. v. EPA, 821 F.2d 714, 720-21 (D.C. Cir. 1987)).8 But
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 NMFS 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. See 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., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983) (holding that an agency acts arbitrarily and capriciously if it “entirely failed to consider an important aspect of the problem“). The MSA‘s new provisions required NMFS to establish a mechanism for setting ACLs “at a level that overfishing does not occur in the fishery. . . .”
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. . . .”
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. See
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. See Omnibus Amendment, 76 Fed. Reg. at 60,607 (A.R. 5198). Oceana cites to no contrary evidence in the record that suggests that non-target bycatch stocks were subject to overfishing at the time that determination was made. Instead, it relies on a single page from the administrative record that merely identifies hickory shad, blueback herring, American shad, and alewife as bycatch species in the Atlantic Mackerel, Squid, and Butterfish Fishery. See A.R. 4864. The cited evidence does not indicate that those bycatch stocks are subject to overfishing, and it does not contradict NMFS‘s findings as to the impact of the Omnibus Amendment on those stocks. Cf. Flaherty, 850 F. Supp. 2d at 53 (finding FMP amendment arbitrary and capricious for failing to explain why record evidence, cited by the plaintiffs, was insufficient to justify reclassification of river herring as a stock “in the fishery“).
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. See
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, 74 Fed. Reg. at 12,314 (A.R. 172), and produced a final amendment to all Mid-Atlantic FMPs within approximately two-and-a-half years. See Omnibus Amendment, 76 Fed. Reg. at 60,606 (A.R. 5197). Because during this time the agency was required to prioritize fisheries that were subject to overfishing—a category that included no Mid-Atlantic fisheries—the Court likewise finds that the agency spent a reasonable amount of time in reviewing the Omnibus Amendment.10
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. See 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. See Fed. Defs.’ Mot. Summ. J. 20-21.
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.
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, 831 F. Supp. 2d at 124 (citing Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 193-94 (D.C. Cir. 1991)). “NEPA does not . . . ‘require agencies to elevate environmental concerns over other appropriate considerations. . . . [I]t require[s] only that the agency take a hard look at the environmental consequences before taking a major action.‘” WildEarth Guardians v. Jewell, 738 F.3d 298, 303 (D.C. Cir. 2013) (quoting Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S. Ct. 2246, 76 L. Ed. 2d 437 (1983)) (second, third, and fourth alterations in original). Oceana argues that, by not considering whether to include non-target bycatch stocks “in the fishery,” NMFS violated NEPA because it failed to take a “hard look” at the impacts of the Omnibus Amendment.12 Federal Defendants argue that NMFS reasonably limited the scope of its analysis to the existing stocks in the fishery.
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, 198 F.3d 862, 867 (D.C. Cir. 1999)). The Court engages in both inquiries “with considerable deference to the agency‘s expertise and policy-making role.” City of Alexandria v. Slater, 198 F.3d 862, 867 (D.C. Cir. 1999).
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. See supra Part IV.A.l.a. Where an issue is particularly complex, the scope of reasonable alternatives is necessarily limited. See Oceana, Inc. v. Evans, 384 F. Supp. 2d 203, 241 (D.D.C. 2005) (“The duty to consider all such alternatives does not extend to situations where the possibilities are so numerous and the goals of the action so complex that the agency cannot possibly consider every significant alternative in a reasonable time period.“). This is particularly true of fishery management, which courts have recognized is “exceedingly complex.” Id. at 242; accord Locke, 831 F. Supp. 2d at 127. This is especially so in light of the time constraints NMFS
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. See 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. See id. ¶ 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. See Omnibus Amendment, 76 Fed. Reg. 60,610-11 (Sept. 29, 2011) (A.R. 5201-02). It is Oceana‘s position 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. See 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. See 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.
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 fishing mortality. See
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. See 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.” See id. But the MSA requires only that the agency minimize bycatch “to the extent practicable. . . .”
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. See 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.”
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. 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. See
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.
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. See id. ¶ 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 measures to ensure accountability.”
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., 467 U.S. 837, 844, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). Here, however, the Guidelines do not carry the force of law and are therefore not automatically entitled to Chevron deference. See
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. See NS1 Guidelines Notice, 72 Fed. Reg. 7016 (Feb. 14, 2007). NMFS accepted public comments during the scoping process, see id., 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. See NS1 Guidelines Final Rule, 74 Fed. Reg. 3178 (Jan. 16, 2009) (codified at
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. See
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
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.” See
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 Omnibus Amendment uses ACTs alongside several other AMs, such as commercial trip and possession limits, and overage repayments. See Omnibus Amendment, 76 Fed. Reg. at 60,607 (A.R. 5198). Oceana, in both its complaint and its briefing, chose to focus narrowly on NMFS‘s alleged failure to adopt a sufficient ACT control rule, ignoring the other AMs that are in place. In failing to show that the AMs in place are insufficient to ensure accountability, and instead describing as mandatory AM components that are not so, Oceana has not met its burden of demonstrating the
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. See 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. See Locke, 831 F. Supp. 2d at 106 (“In such a case, summary judgment merely serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.“); see also Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (“[W]hen a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal.“); Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993) (“The entire case on review is a question of law, and only a question of law.“). Thus, a plaintiff‘s failure to raise arguments or theories in its motion for summary judgment results in waiver of those arguments. See EMILY‘s List v. FEC, 569 F. Supp. 2d 18, 25 n. 6 (D.D.C. 2008), rev‘d on other grounds, 581 F.3d 1 (D.C. Cir. 2009); see also New York v. U.S. EPA, 413 F.3d 3, 20 (D.C. Cir. 2005) (per curiam) (finding waiver in petitioner‘s failure to raise argument in its opening brief). Accordingly, the Court will consider Oceana‘s NEPA theory waived as to Count III.
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. See 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. See SBRM Amendment, 73 Fed. Reg. 4736 (Jan. 28, 2008) (codified at
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, 670 F.3d 1238, 1243 (D.C. Cir. 2011); see also
Federal Defendants argue that, because the SBRM Amendment has already been vacated and remanded, the Court can provide no further relief to Oceana. See 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. See 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, 831 F. Supp. 2d 95, 114 (D.D.C. 2011). Like Amendment 16 at issue in that case, the Omnibus Amendment itself does not purport to establish a bycatch reporting methodology, and Oceana‘s claim thus rests on the SBRM Amendment itself. Because the SBRM Amendment has been vacated and remanded to the agency, there is no further remedy the Court can provide. See id. (“No matter the grounds for Oceana‘s present challenge to the Multispecies FMP‘s standardized bycatch-reporting methodology, this Court can provide no further relief because the SBRM Amendment has already been remanded.“).
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 See 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.”
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 monitoring—or bycatch at all.18 See
Oceana cites to Locke for the proposition that “ACL monitoring . . . requires in-season bycatch reports that measure discards in near real time. . . .” Locke, 831 F. Supp. 2d at 109. But as FSF points out, Judge Boasberg was citing to the administrative record in that case, not to law, indicating that the quoted language relates to the requirements of the specific FMP at issue in that case. See FSF‘s Cross-Mot. Summ. J. 27-28, ECF No. 37-1; see also Fed. Defs.’ Mot. Summ. J. 36-37, ECF No. 38. See generally Amendment 16, 75 Fed. Reg. 18,262 (Apr. 9, 2010) (codified as amended at
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 esti-
mated 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. See 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 60,612 (A.R. 5203), the availability of corrective AMs such as overage adjustments in subsequent fishing years, see
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.