Anglers Conservation Network v. Pritzker

139 F.Supp.3d 102

Anglers Conservation Network, et al., Plaintiffs,

v.Penny Pritzker, et al., Defendants.

Civil Action No. 14–509 (GK)

United States District Court, District of Columbia.

Filed October 5, 2015

Roger M. Fleming, Earthjustice, Hallowell, ME, Erica A. Fuller, Earthjustice, Ipswich, MA, Stephen Elston Roady, Earthjustice, Washington, DC, for Plaintiffs.

John B. Grosko, U.S. Department of Justice, Environment and Natural Resource, John S. Most, Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

Gladys Kessler, United States District Judge

Plaintiffs Anglers Conservation Network, Paul Eidman, Gateway Striper Club, Inc., and Philip Lofgren (collectively, "Plaintiffs"), bring this case against Secretary of the Department of Commerce Penny Pritzker ("the Secretary"), the National Oceanic and Atmospheric Administration ("NOAA"), and the National Marine Fisheries Service ("NMFS") (collectively, "Defendants" or "the Government") pursuant to the Magnuson–Stevens Fishery Conservation and Management Act ("MSA" or "the Act"), 16 U.S.C. §§ 1801 et seq. ; the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq. ; and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq.

Plaintiffs challenge various elements of a Rule that Defendants promulgated amending the fishery management plan governing the Mackerel, Squid, and Butterfish ("MSB") fishery off of the eastern coast of the United States. Specifically, Plaintiffs contend that Defendants unlawfully failed: (1) to include four species of river herring and shad as "stocks" to be regulated by the MSB fishery management plan; (2) to adopt observation measures necessary to prevent overfishing of the relevant river herring and shad species; and (3) to adequately consider the environmental impact of its chosen course.

This matter is before the Court on Plaintiffs' and Defendants' Cross–Motions for Summary Judgment [Dkt. Nos. 30, 31]. Upon consideration of the Motions, Oppositions [Dkt. Nos. 32, 36], Replies [Dkt. Nos. 36, 38], and the entire record herein, and for the reasons set forth below, the Motions for Summary Judgment filed by the Parties shall be granted in part and denied in part.

I. BACKGROUND

A. Statutory Background

1. Magnuson–Stevens Act

Congress first enacted the MSA in 197 6 "to take immediate action to conserve and manage the fishery resources found off the coasts of the United States [.]" 16 U.S.C. § 1801(b)(1). The Act establishes a federal-regional framework "for the conservation and management of the fishery resources of the United States" in order to "prevent overfishing," "rebuild overfished stocks," "[e]nsure conservation," and "facilitate long-term protection of essential fish habitats." Id. § 1801(a)(6) ; see also Natural Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 749 (D.C.Cir.2000). Regulation of fisheries is accomplished through fishery management plans ("FMPs") that are developed and prepared by independent regional fishery management councils ("councils") and approved, implemented and enforced by NMFS,¹ a division within the Department of Commerce. See 16 U.S.C. §§ 1853 –1854.

The MSA divides the United States into eight regions, each of which is represented by an independent fishery management council. See id. § 1852(a)(1). Councils are composed primarily of members who represent the interests of the states included in their region and who are appointed by the Secretary from a list of individuals submitted by the governor of each constituent state. Id. § 1852(b)(1), (2); see also C & W Fish Co. v. Fox, Jr., 931 F.2d 1556, 1557–58 (D.C.Cir.1991). The remaining voting members of each council consist of the principal marine fishery management officials from each constituent state and the regional director of NMFS for the related geographic area. 16 U.S.C. § 1852(b)(1)(A), (B).

Each council is required to prepare and submit to the Secretary (acting through NMFS) a fishery management plan and any necessary amendments to such plan, "for each fishery under its authority that requires conservation and management[.]" Id. § 1852(h)(1). The term "fishery" is defined in the Act as "one or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics; and [ ] any fishing for such stocks." Id. § 1802(13). The term "stock of fish," in turn, is defined as "a species, subspecies, geographical grouping, or other category of fish capable of management as a unit." 16 U.S.C. § 1802(42).

A fishery management plan must describe the species of fish involved in the fishery and specify the "conservation and management measures" that are "necessary and appropriate" to "prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery[.]" Id. § 1853(a)(1)(A), (2).

After a council prepares and approves a fishery management plan or amendment, it is sent to NMFS, which reviews it for consistency with the MSA and other applicable laws and publishes it in the Federal Register for notice and comment. Id. § 1854(a)(1). After a 60–day notice and comment period, NMFS must "approve, disapprove, or partially approve a plan or amendment[,]" taking into account the views and comments of interested persons. Id. § 1854(a)(2), (3).

If NMFS approves a plan or amendment, or does not expressly disapprove it within 30 days, it becomes effective. Id. § 1854(a)(3). If NMFS disapproves or partially approves the plan or amendment, NMFS must thereafter notify the council of "the applicable law with which the plan or amendment is inconsistent"; the "nature of such inconsistencies"; and specific "actions that could be taken by the Council to conform such plan or amendment to the requirements of applicable law." Id. § 1854(a)(3). The council "may" thereafter "submit a revised plan or amendment to the Secretary for review [.]" Id. § 1854(a)(4).

2. National Environmental Policy Act

Congress enacted NEPA in order "to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may ... fulfill the responsibilities of each generation as trustee of the environment for succeeding generations." 42 U.S.C. § 4331(b). To accomplish that goal, NEPA requires all federal agencies to prepare an Environmental Impact Statement ("EIS") whenever they propose "major Federal actions significantly affecting the quality of the human environment." Id. § 4332(2)(C). The EIS must "present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public." 40 C.F.R. § 1502.14.

B. Factual Background²

1. Shad and River Herring

At the center of this case are four species of anadromous fish, that is, fish that spend most of their lives in ocean waters but migrate upstream to fresh water in the spring to spawn. See AR 11408. Anadromous fish play a critical role in the biology of rivers, estuaries and ocean waters along the Atlantic seaboard as prey for many species of fish, birds, and marine mammals. AR 8265, 8268, 8291, 8416, 12818, 12947, 13498.

Two of the four species at issue in this case are known as river herring. They are: Alewife (alosa pseudoharengus ), which are most abundant in the Mid–Atlantic and Northeastern states, and blueback herring (alosa aestivalis ), which are found from Nova Scotia to northern Florida and are most abundant in waters south of the Chesapeake Bay. AR 1148. Alewife spawn in rivers, creeks, lakes, and ponds over rocks, detritus, submerged aquatic vegetation, and sand. Id. Blueback herring generally prefer to spawn over sand or gravel in swift-flowing areas of rivers and tributaries. Id.

The other two species are known as shad. They are: American Shad (alosa sapidissima), which historically populated all major North American rivers from Maine to the east coast of Florida. AR 11201, 11411. American shad stocks are river-specific, which is to say that each major tributary along the Atlantic coast provides the spawning area for a particular stock of American shad. Id. The other species is Hickory Shad (alosa mediocris) of which less is known. "[D]istribution and movements of hickory shad are essentially unknown after they return to the ocean"; however, "due to harvest along the southern New England coast in the summer and fall it is assumed that they also follow a migratory pattern similar to the American shad[.]" AR 11411.

The Administrative Record is not entirely clear as to the current status of the shad and river herring. Portions indicate that the four species are relatively numerous, whereas others show diminishing numbers. Compare 78 Fed.Reg. 48,944, 48,992with AR 10438.

For example, in May 2012 the Atlantic States Marine Fisheries Commission ("ASMFC") performed an assessment of 52 stocks of alewife and blueback herring. AR 12921. However, the ASMFC lacked sufficient data to develop estimates of abundance and fishing mortality for 28 of the 52 stocks. Id. Of the 24 stocks for which data were available, 23 were depleted relative to historic levels and one stock was increasing. Id.

By contrast, in 2013, relying on the blueback herring's coast-wide population growth rate, NMFS concluded that the relative abundance of blueback herring throughout its range is stable. 78 Fed.Reg. 48,944, 48,992. Moreover, there are at least three contiguous populations of alewife that are either stable or significantly increasing. Id. From a coast-wide perspective, the trajectory of the alewife population is significantly increasing and all of the stock complexes are stable or significantly increasing. Id.

On August 12, 2013, NMFS issued a 50–page decision finding that listing river...