Guindon et al v. Pritzker et al

MOTION for Summary Judgment

D.D.C.July 15, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA KEITH GUINDON, et al., Plaintiffs, v. PENNY SUE PRITZKER, in her official capacity as Secretary of the United States Department of Commerce; NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION; NATIONAL MARINE FISHERIES SERVICE, Defendants. Case No. 1:15-cv-02256-BJR ORAL ARGUMENT REQUESTED EXPEDITED PURSUANT TO 16 U.S.C. § 1855(f)(4) Hon. Barbara J. Rothstein PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 7(h), Keith Guindon, Katie’s Seafood Market, LLC, Wayne Werner, Donald A. Waters, David Krebs, Ariel Seafoods of Florida, Inc., F/V Dreamcatcher, Inc., Russell Underwood, Glenhart Brooks III, James M. Clements, Bartholomew Niquet, Christopher Niquet, William Cochrane, James M. Whitfield, Lewis T. Bessinger, Linda Bovaird, Blue Dolphin Fishing, Inc., Walker Fishing Fleet, Inc., William Wright, A&B Seafood, Inc., Quality American Seafood, LLC, Kenneth Guindon, Martin Arnold, Fish for America, LLC, Gulf Fishermen’s Association, Inc., and Gulf of Mexico Reef Fish Shareholders’ Alliance (collectively, “Plaintiffs”) hereby move for summary judgment on all of their claims that defendants Penny Sue Pritzker as Secretary of Commerce, the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service (collectively, “NMFS” or “Defendants”) violated the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”), see 16 U.S.C. §§ 1801-1884; the Administrative Procedure Act (“APA”), see 5 U.S.C. §§ 701-706, and the National Environmental Policy Act of 1969 as amended (“NEPA”), see 43 U.S.C. §§ 4321 et seq. In support of this motion, Plaintiffs submit a Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 1 of 53 2 Memorandum of Law and exhibits thereto and the declarations of Keith Guindon and Eric Brazer, Jr. A proposed order is attached. DATED this 15th day of July, 2016. K&L GATES LLP By: /s/ J. Timothy Hobbs Michael F. Scanlon (DC Bar # 479777) Michael.Scanlon@klgates.com 1601 K Street, NW Washington, DC 20006 Telephone: (202) 661-3764 Facsimile: (202) 778-9100 J. Timothy Hobbs (Pro Hac Vice) Tim.Hobbs@klgates.com 925 Fourth Avenue, Suite 2900 Seattle, WA 98104 Telephone: (206) 623-7580 Facsimile: (206) 623-7022 Attorneys for Plaintiffs Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 2 of 53 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA KEITH GUINDON, et al., Plaintiffs, v. PENNY SUE PRITZKER, in her official capacity as Secretary of the United States Department of Commerce; NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION; NATIONAL MARINE FISHERIES SERVICE, Defendants. Case No. 1:15-cv-02256-BJR ORAL ARGUMENT REQUESTED EXPEDITED PURSUANT TO 16 U.S.C. § 1855(f)(4) Hon. Barbara J. Rothstein MEMORANDUM AND POINTS OF AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Michael F. Scanlon (DC Bar # 479777) Michael.Scanlon@klgates.com 1601 K Street, NW Washington, DC 20006 Telephone: (202) 661-3764 Facsimile: (202) 778-9100 J. Timothy Hobbs (Pro Hac Vice) Tim.Hobbs@klgates.com 925 Fourth Avenue, Suite 2900 Seattle, WA 98104 Telephone: (206) 623-7580 Facsimile: (206) 623-7022 Attorneys for Plaintiffs Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 3 of 53 i TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................. 1 II. STATUTORY AND REGULATORY FRAMEWORK ................................................... 2 III. FACTUAL BACKGROUND ............................................................................................ 4 A. Management of Red Snapper in the Gulf of Mexico ............................................. 4 B. The Red Snapper Stock Is Rebuilding in the Western Gulf of Mexico but Declining in Eastern Gulf of Mexico ..................................................................... 4 C. Allocation of Quota Between the Commercial and Recreational Sectors ............. 5 D. The Commercial Sector Success Story .................................................................. 7 E. The Prior Guindon Litigation ................................................................................. 9 F. Actions Taken After the Court’s Decision in Guindon ....................................... 10 1. NMFS implemented some recreational sector accountability measures. .................................................................................................. 10 2. NMFS “recalibrated” recreational sector landings estimates. ................. 11 3. NMFS increased the total quota based on recalibrated recreational landings estimates. ............................................................... 13 G. Reallocation Under Amendment 28..................................................................... 13 1. The initial justification for Amendment 28 was flawed. ......................... 13 2. The Gulf Council changed the stated “purpose and need” for Amendment 28 at NMFS’s urging, but never reconsidered whether the range of alternatives was reasonable. ................................... 13 3. Amendment 28 rewards the recreational sector for overharvesting. ......................................................................................... 15 4. Amendment 28 will exacerbate stock depletion in the Eastern Gulf. ......................................................................................................... 15 IV. STANDING UNDER ARTICLE III AND NEPA .......................................................... 17 V. STANDARD OF REVIEW ............................................................................................. 18 VI. ARGUMENT ................................................................................................................... 19 Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 4 of 53 ii A. Amendment 28 Violates MSA Section 407(d)(2) Because It Improperly Establishes A Quota for the Recreational Sector that Reflects that Sector’s Overharvesting. ...................................................................................... 19 1. Amendment 28 violates the express statutory command in section 407(d)(2). ................................................................................................. 19 2. NMFS’s interpretation reads section 407(d)(2) out of the MSA. ............ 20 3. NMFS’s interpretation is unreasonable and entitled to no deference because it incentivizes recreational overharvesting and frustrates the conservation goals of the MSA. ......................................... 23 B. Amendment 28 Violates MSA Section 303(a)(1)(A) and the Reef Fish FMP Because it Will Cause Instability and a “Depressed Stock Size” in the Eastern Gulf. .................................................................................................. 24 1. Amendment 28 violates section 303(a)(1)(A) and the Reef Fish FMP because it will exacerbate stock decline in half of the Gulf of Mexico. ................................................................................................ 25 2. Amendment 28 violates section 303(a)(1)(A) and the Reef Fish FMP because it will cause a net decrease in stability across the fishery. ..................................................................................................... 27 C. Amendment 28 Violates MSA National Standard Four and the Gulf Council’s Fishery Allocation Policy Because it is Unfair, and Does Not Promote Conservation or Increase Efficiency ..................................................... 28 1. Amendment 28 is unfair, inequitable, and does not promote conservation. ............................................................................................ 29 2. Amendment 28 does not increase efficiency. .......................................... 31 D. Amendment 28 Violates MSA National Standard 1 and the Council’s Fishery Allocation Policy Because It Frustrates Achievement of Optimum Yield .................................................................................................... 32 E. Amendment 28 Violates MSA Section 303(a)(14). ............................................. 34 F. Amendment 28 Violates MSA Section 303(a)(9). ............................................... 36 G. Amendment 28 Violates NEPA ........................................................................... 36 1. NMFS failed to rigorously explore the reasonable alternative of reallocating more quota to the commercial sector. .................................. 36 Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 5 of 53 iii 2. NMFS failed to take a hard look at the environmental consequences of Amendment 28. ............................................................ 39 a. NMFS relied on questionable data and assumptions to assess the environmental harm. .................................................... 39 b. NMFS failed to obtain reasonably available information to assess the impact of Amendment 28. ....................................... 41 c. NMFS disregarded the biological effects of depleted stock in the Eastern Gulf on health of the stock as a whole. ................. 42 VII. CONCLUSION ................................................................................................................ 43 Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 6 of 53 iv TABLE OF AUTHORITIES Page(s) Cases Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136 (D.C. Cir. 2005) ...............................................................................................19 Cabinet Res. Grp. v. U.S. Fish & Wildlife Serv., 465 F. Supp. 2d 1067 (D. Mont. 2006) ....................................................................................42 Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 ............................................................................................................................23 City of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 95 F.3d 892 (9th Cir. 1996), opinion withdrawn and superseded on other grounds, 123 F.3d 1142 (9th Cir. 1997)...................................................................................37 Colorado Envtl. Coal. v. Salazar, 875 F. Supp. 2d 1233 (D. Colo. 2012) .....................................................................................39 Ctr. for Sustainable Econ. v. Jewell, 779 F.3d 588 (D.C. Cir. 2015) .................................................................................................18 Dubois v. U.S. Dep’t of Agric., 102 F.3d 1273 (1st Cir. 1996) ..................................................................................................37 Duke City Lumber Co. v. Butz, 382 F. Supp. 362 (D.D.C. 1974) ..............................................................................................18 Gross v. FBL Financial Servs., Inc., 557 U.S. 167 (2009) .................................................................................................................21 Guindon v. Pritzker, 31 F. Supp. 3d 169 (D.D.C. 2014) ................................................................................... passim Hibbs v. Winn, 542 U.S. 88 (2004) ...................................................................................................................26 Jayne v. Sherman, 706 F.3d 994 (9th Cir. 2013) .............................................................................................39, 41 Kleppe v. Sierra Club, 425 US 390 410.21 (1976) .......................................................................................................39 Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 7 of 53 v Lovgren v. Locke, 701 F.3d 5 (1st Cir. 2012) ........................................................................................................32 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .............................................................................................................19, 28 N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969 (9th Cir.2006) ....................................................................................................42 N. Carolina Fisheries Ass’n, Inc. v. Gutierrez, 518 F. Supp. 2d 62 (D.D.C. 2007) ...........................................................................................20 Nat. Res. Def. Council, Inc. v. Daley, 209 F.3d 747 (D.C. Cir. 2000) .....................................................................................23, 24, 27 Nat. Res. Def. Council, Inc. v. Nat’l Marine Fisheries Serv., 421 F.3d 872 (9th Cir. 2005) ...................................................................................................24 Oceana, Inc. v. Locke, 670 F.3d 1238 (D.C. Cir. 2011) .........................................................................................18, 22 Oceana, Inc. v. Locke, 831 F. Supp. 2d 95 (D.D.C. 2011) .....................................................................................20, 21 Pac. Coast Fed’n of Fishermen’s Associations v. Blank, 693 F.3d 1084 (9th Cir. 2012) .................................................................................................38 RadLax Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065 (2012) .............................................................................................................22 Rock Creek Pack Station, Inc. v. Blackwell, 344 F. Supp.2d 192 ..................................................................................................................18 Safari Club Int’l v. Jewell, 960 F. Supp. 2d 17 (D.D.C. 2013) ...........................................................................................18 Sierra Club, Illinois Chapter v. U.S. Dept. of Transp., 962 F. Supp. 1037 (N.D. Ill. 1997) ....................................................................................41, 42 Western Sea Fishing Co. v. Locke, 722 F. Supp. 2d 126 (D. Mass. 2010) ..........................................................................32, 33, 34 Statutes 5 U.S.C. § 706(2)(A)......................................................................................................................18 16 U.S.C. § 303(a)(15) ...................................................................................................................22 16 U.S.C. § 1801(a)(1) ...................................................................................................................38 Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 8 of 53 vi 16 U.S.C. § 1801(b)(1) ....................................................................................................................2 16 U.S.C. § 1801(b)(3) ....................................................................................................................2 16 U.S.C. § 1802(13)(A)................................................................................................................25 16 U.S.C. § 1802(33) .....................................................................................................................32 16 U.S.C. § 1851(a) .........................................................................................................................2 16 U.S.C. § 1851(a)(1) ...................................................................................................................32 16 U.S.C. § 1851(a)(2) .....................................................................................................................1 16 U.S.C. § 1851(a)(4) ...........................................................................................................1, 2, 29 16 U.S.C. § 1851(a)(5) .............................................................................................................29, 31 16 U.S.C. § 1852 ..............................................................................................................................2 16 U.S.C. § 1852(h) .........................................................................................................................2 16 U.S.C. § 1853(a) .......................................................................................................................21 16 U.S.C. § 1853(a)(1)(A) .........................................................................................................2, 24 16 U.S.C. § 1853(a)(1)(C) ...............................................................................................................2 16 U.S.C. § 1853(a)(9) ...............................................................................................................2, 36 16 U.S.C. § 1853(a)(14) .......................................................................................................3, 35, 38 16 U.S.C. § 1853(a)(15) ...............................................................................................................1, 9 16 U.S.C. § 1854 ..............................................................................................................................2 16 U.S.C. § 1854(a)(3) ...................................................................................................................39 16 U.S.C. § 1854(b)(1) ........................................................................................................1, 25, 29 16 U.S.C. § 1855(f)(1)(B) ..............................................................................................................18 16 U.S.C. § 1883(a) .......................................................................................................................21 16 U.S.C. § 1883(d) ...................................................................................................................1, 19 16 U.S.C. § 1883(d)(1) ....................................................................................................................3 16 U.S.C. § 1883(d)(2) ....................................................................................................................3 Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 9 of 53 vii Other Authorities 40 C.F.R. § 1502.13 .................................................................................................................37, 38 40 C.F.R. § 1502.14 .................................................................................................................37, 38 40 C.F.R. § 1502.22 .......................................................................................................................41 50 C.F.R. § 600.325 .........................................................................................................................3 50 C.F.R. § 600.325(c)(3)(i)(A).....................................................................................................29 50 C.F.R. § 600.325(c)(3)(i)(B) .....................................................................................................29 50 C.F.R. § 600.325(c)(3)(ii) .........................................................................................................29 50 C.F.R § 600.330 ..........................................................................................................................3 50 C.F.R. § 622.21 ...........................................................................................................................8 50 C.F.R. § 622.39(a)(2)(i) ............................................................................................................22 62 Fed. Reg. 42479 ........................................................................................................................23 71 Fed. Reg. 67447 ..........................................................................................................................8 78 Fed. Reg. 46820 ........................................................................................................................40 78 Fed. Reg. 46821 ........................................................................................................................40 80 Fed. Reg. 22422 ........................................................................................................................40 Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 10 of 53 1 I. INTRODUCTION This case results from Defendants’ continuing mismanagement of the red snapper fishery in the Gulf of Mexico. See Guindon, et al. v. Pritzker, Nos. 1:13-cv-988-BJR (D.D.C.) (“Guindon I”) and 1:14-cv-45-BJR (D.D.C.) (“Guindon II”). Plaintiffs are commercial fishermen and women and their affiliated business entities and trade associations. This Court previously held that Defendants’ repeated failure to adopt meaningful accountability measures to ensure that the recreational sector of the fishery did not catch more fish than it had been allotted by its fishing quota unlawfully harmed the commercial sector and violated numerous provisions of the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”). See Guindon v. Pritzker, 31 F. Supp. 3d 169 (D.D.C. 2014) (holding that Defendants violated 16 U.S.C. §§ 1883(d), 1851(a)(2), 1851(a)(4), 1853(a)(15), and 1854(b)(1)). Defendants promulgated new accountability measures in response to the legal deficiencies the Court identified. But even before the efficacy of these new measures could be assessed, Defendants pushed forward with a proposal to increase the recreational sector’s allocation. Because the total allowable catch is limited, this “reallocation” penalizes the Plaintiffs by giving away their fishing quota to the recreational sector of the fishery, whose chronic overharvesting led to Plaintiffs’ earlier challenges. The reallocation rewards the recreational sector with a higher quota that reflects that sector’s prior overharvesting, in direct violation of a statutory command that Congress enacted specifically to govern the red snapper fishery. This reallocation of fishing quota is also unlawful because, as Defendants’ own studies show, it will further deplete the stock of red snapper in the eastern half of the Gulf of Mexico and destabilize the commercial fishing sector of the fishery. The reallocation further contravenes management objectives for the fishery and violates statutory standards governing how fishing quota must be distributed. The subject of this suit is the reallocation of red snapper quota through Amendment 28 to the Fishery Management Plan for Reef Fish in the Gulf of Mexico (“Amendment 28”). For the Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 11 of 53 2 reasons discussed below, Amendment 28 violates the MSA and the National Environmental Policy Act (“NEPA”) and should be vacated. II. STATUTORY AND REGULATORY FRAMEWORK Congress enacted the MSA in 1976 “to take immediate action to conserve and manage the fishery resources found off the coasts of the United States” and “to promote domestic commercial and recreational fishing under sound conservation and management principles.” 16 U.S.C. §§ 1801(b)(1), 1801(b)(3). Under the MSA, the country is divided into eight regions, with each region having a regional fishery management council (“Regional Council”) that is charged with managing the marine fisheries in its respective jurisdiction. See 16 U.S.C. § 1852. The Regional Councils develop fishery management plans (“FMPs”) to manage stocks of fish under their respective jurisdictions and propose management measures to the Secretary of Commerce. Id. § 1852(h). The Secretary, acting through the National Oceanic and Atmospheric Agency and the National Marine Fisheries Service (collectively, “NMFS”), must approve the proposed measures if consistent with the MSA and other laws and, where appropriate, promulgate the necessary federal regulations. Id. § 1854. The FMPs developed by the Regional Councils and approved by NMFS must include measures that are “necessary and appropriate for the conservation and management of the fishery, 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). FMPs must be consistent with all of the MSA’s provisions, including ten “National Standards,” and other applicable law. Id. §§ 1853(a)(1)(C), 1851(a). FMPs must also contain a “fishery impact statement” which “shall assess, specify, and analyze the likely effects” of management measures on “participants in the fisheries and fishing communities affected by the [FMP].” 16 U.S.C. § 1853(a)(9). FMPs may allocate fishing privileges between participants engaged in the fisheries, but special requirements apply to such allocations. In particular, under National Standard Four, an allocation must be “fair and equitable” and “reasonably calculated to promote conservation.” 16 U.S.C. § 1851(a)(4). In addition, where harvest restrictions are necessary to help rebuild an Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 12 of 53 3 overfished stock, FMPs must allocate “any harvest restrictions or recovery benefits fairly and equitably among the commercial, recreational, and charter fishing sectors in the fishery,” after “taking into consideration the economic impact of the harvest restrictions or recovery benefits on the fishery participants in each sector.” 16 U.S.C. § 1853(a)(14). In addition to these requirements, section 407(d) of the MSA – which is specific to the Gulf of Mexico red snapper fishery – requires NMFS to establish separate quotas for the commercial and recreational fishing sectors “that, when reached, result in a prohibition on the retention of fish caught during recreational fishing and commercial fishing, respectively, for the remainder of the fishing year.” 16 U.S.C. § 1883(d)(1). NMFS must also “ensure that such quotas reflect allocations among such sectors and do not reflect any harvests in excess of such allocations.” Id. § 1883(d)(2). The Gulf of Mexico Fishery Management Council (“Gulf Council”) manages the red snapper fishery in federal waters of the Gulf of Mexico. The Gulf Council has adopted a Fishery Allocation Policy (“Allocation Policy”). See AR 020756-020578.1 The Allocation Policy states that “[a]ll allocations and reallocations must be consistent with the [Gulf Council’s] principles for allocation.” AR 020577 (¶ 2.a). The principles for allocation generally track the MSA’s requirements, with some differences. For example, an allocation “shall…promote conservation” by being “connected to the achievement of [optimum yield],” in “furtherance of a legitimate FMP objective,” and “promot[ing] a rational, more easily managed use.” AR 020576 (¶ 1.b.2). In addition, an allocation shall “consider efficient utilization of fishery resources but…should not just redistribute gains and burdens without an increase in efficiency.” Id. (¶ 1.c.1).2 1 Citations to the Administrative Record (“AR”) produced in this case, Dkt. #s 14-17, refer to the specific Bates labeled page of the AR. An appendix containing all cited pages of the AR will be provided to the Court pursuant to Local Rule 7(n). 2 Some of the details in the Gulf Council’s Allocation Policy generally track (but not verbatim) NMFS’s regulatory guidelines for implementing the MSA’s National Standards. See, e.g., 50 C.F.R §§ 600.325, 600.330. Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 13 of 53 4 III. FACTUAL BACKGROUND A. Management of Red Snapper in the Gulf of Mexico The Gulf Council manages red snapper along with other reef fish species in the Gulf of Mexico under its Reef Fish Fishery Management Plan (“Reef Fish FMP”), first implemented in 1984. AR 6. Because declines in the adult population of red snapper had been observed since 1979, id., the Council implemented Amendment 1 in 1990 with the goal of rebuilding the adult population by 2000. See AR 1, 11. The rebuilding plan has been extended multiple times; presently, the stock is not projected to be fully rebuilt until 2032. See AR 020361, 020404. The stock will be considered rebuilt when it reaches a spawning potential ratio (“SPR”) of 26 percent, which equates to the reproductive capability of 26 percent of a hypothetical stock that has not been subject to any fishing. See AR 1781-1782. B. The Red Snapper Stock Is Rebuilding in the Western Gulf of Mexico but Declining in Eastern Gulf of Mexico Although the red snapper stock is managed as a Gulf-wide unit, there are two distinct sub-stocks: one in the Western Gulf of Mexico and one in the Eastern Gulf, generally divided by a north-south line located near the mouth of the Mississippi River. See AR 020719; 1486. The two sub-stocks are distinct in that an overabundance of one sub-stock does not spill over into the other sub-stock, such that there is regional variation in abundance. See, e.g., AR 020164- 020166, 040649 (stocks are “significantly different among regions”); AR 020856 (the “stock condition is not uniform over the entire management unit”). Although both sub-stocks began rebuilding under the rebuilding program, the recovery in the Eastern Gulf stalled around 2010 and has now reversed course. See AR 1501-1502. In May of 2015, a NMFS scientist informed the Gulf Council’s Scientific and Statistical Committee (“SSC”) that “several of our fishery indicators are actually suggesting a decline in Eastern Gulf of Mexico in the most recent years.” AR 040660. In particular, several indices used to gauge abundance show declines of 50-75 percent from recent peaks. See AR 1628 (red data points in left-hand graphs); AR 020166 (conclusions from analyzing those data). NMFS projects that, Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 14 of 53 5 under status quo, the spawning stock biomass in the Eastern Gulf is expected to decline to near historic lows by 2032. AR 1508 (to 7% of unfished levels); 020362. The cause for decline is two fold: generations of fish from prior years when reproduction was strong are aging, and stock reproduction has been low in recent years. See AR 1757 (stock decline in Eastern Gulf is due to “strong year-classes exiting the stock, as well as recent low recruitment estimates”). NMFS’s projections indicate, therefore, that although the stock could be considered “rebuilt” in 2032 due solely to the strong productivity of the Western Gulf sub-stock, the Eastern Gulf sub-stock would still be depleted to near-record lows. In other words, even though NMFS projects that the Gulf-wide red snapper stock should be fully recovered in 2032, the stock will nevertheless be decimated in fully half of its range: red snapper will be abundant in the Western Gulf, but rare in the Eastern Gulf. This projection is troubling enough on its own. As discussed below, Amendment 28 will exacerbate this decline. C. Allocation of Quota Between the Commercial and Recreational Sectors Amendment 1 to the Reef Fish FMP in 1990 apportioned the allowable catch between the commercial and recreational sectors of the fishery. AR 020319. Under Amendment 1, the commercial sector received 51 percent of the annual catch, while the recreational sector received 49 percent. Id. This 51/49 percent split was based on the sectors’ respective landings over the period from 1979-1987. Id. While the commercial sector had a fixed catch limit starting in 1991, the recreational sector was managed only by daily “bag” limits on the number of fish anglers could keep. Those bag limits were not successful in constraining recreational sector catches. /// /// /// /// /// /// Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 15 of 53 6 Fig. 1: Recreational sector allocations and landings estimates, 1991-1995 Source: AR 8077 Congress responded to these recreational sector overages by enacting section 407(d) in 1996,3 mandating hard quotas for both commercial and recreational sectors that “must reflect past allocations to these sectors, exclusive of any overages” and that “[f]isheries must be closed when these quotas are reached.” AR 039628.4 As NOAA General Counsel explained, the legislation reflected “certain legislators’ dissatisfaction with the Gulf Council and NMFS’s management of the red snapper fishery.” Id. Congress enacted section 407(d) precisely because recreational sector bag limits “supposedly [were] low enough to allow year-round fishing without exceeding the recreational allocation, but in fact that allocation has been exceeded in recent years.” AR 039629. The Gulf Council amended the FMP in 1997 to specify that the “recreational red snapper allocation of TAC shall be considered a quota” and to provide NMFS with authority to close the fishery when quotas were projected to be reached. AR 039638. Recreational sector overages persisted despite Congressional enactment of section 407(d). From 1997-2013, the recreational sector exceeded its quota in 15 of 17 years. See AR 020350. Between 2007 and 2013, the recreational sector exceeded its quota every year but one,5 sometimes by several millions of pounds. See id. 3 Section 407(d) was added to the MSA by the Sustainable Fisheries Act of 1996, Pub. L. No. 104-297 (Oct. 11, 1996), Title II, § 207(b). 4 These pages of the AR contain an excerpt from A Guide to the Sustainable Fisheries Act, NOAA General Counsel (Feb. 1997). The full version of this guide is available at http://www.nmfs.noaa.gov/sfa/sfaguide/index2.htm. 5 The only exception was 2010, when the Deepwater Horizon incident closed much of the Gulf to fishing. 0 2 4 6 19 91 19 92 19 93 19 94 19 95M ill io ns o f P ou nd s Recreational allocation Recreational landings Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 16 of 53 7 Figure 2: Recreational Sector Quota and Landings, 2007-2013 (Source: AR 020350) A worsening problem in the management of the red snapper fishery is non-conforming state actions that undermine federal management. See Guindon, 31 F. Supp. 3d at 176 (“It bears noting that states manage their own waters, and do not always conform to federal rules concerning season length, size limits, or bag limits….State regulations thus may affect the federal management scheme.”). In 2015, in response to federal management actions to conserve the resource by shortening the recreational fishing season in federal waters, all five Gulf states opened recreational fishing seasons in their state waters that were longer than the federal season. AR 020415, see also 040703-040722 (trend continuing in 2016). These non-conforming fishing seasons in state waters are one of many sources of continuing management uncertainty in the recreational sector. See AR 040680. D. The Commercial Sector Success Story Prior to 2007, the commercial sector of the red snapper fishery was poorly managed. Although the number of commercial fishing permits had been capped since 1992, the fishery operated as a “derby” in which participants raced against one another to catch as many fish as possible before the commercial quota was reached and the fishery closed. AR 039012-039013. The measures used to manage the fishery contributed to catch overages, higher bycatch and discarding of small fish, overcapitalizaiton, economic instability and revenue losses from low prices caused by market gluts, and unsafe conditions at sea. See id. The commercial fishery was 0 1 2 3 4 5 6 7 8 9 10 2007 2008 2009 2010 2011 2012 2013 M ill io ns o f P ou nd s Recreational Quota Recreational Landings Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 17 of 53 8 closed for most of the year; in 1995, for example, the fishery was open for only 52 days. AR 039013. To address these problems, the commercial sector embarked on a multi-year process to forge a new approach. After an exhaustive process to educate and engage stakeholders, including two referenda among permit holders, the Council ultimately adopted an individual fishing quota (“IFQ”) program under Amendment 26 to the Reef Fish FMP, which took effect in 2007. See 71 Fed. Reg. 67447 (Nov. 22, 2006). Under the IFQ program, each participant holds fixed privileges to catch specific portions of the annual catch. See 50 C.F.R. § 622.21. Strict monitoring and reporting requirements ensure that catch limits are adhered to. See id. By aligning economic incentives with resource conservation, the IFQ program has been a resounding success. Bycatch and discards of unwanted fish have decreased while economics and safety have improved, and the commercial fishery is open 365 days per year. See AR 039004, 039058-039062 (conclusions of IFQ Program Five-Year Review); 039011 (“the program has been moderately to highly successful in achieving its stated goals”). Management uncertainty has been eliminated; since the IFQ program took effect, the commercial sector has not exceeded its quota. AR 020350. Figure 3: Commercial Sector Quota and Landings, 2007-2013 (Source: AR 020350) 0 1 2 3 4 5 6 2007 2008 2009 2010 2011 2012 2013 M ill io ns o f P ou nd s Commerical Quota Commercial Landings Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 18 of 53 9 E. The Prior Guindon Litigation Frustrated with NMFS’s continuing failure to hold the recreational sector accountable to its quota, Plaintiffs filed suit in 2013 and 2014 asserting that NMFS’s actions violated several provisions of the MSA and other laws. This Court ruled for Plaintiffs on all of their MSA claims. See Guindon, 31 F. Supp. 3d at 192-201. The Court held that NMFS violated section 407(d)(1) of the MSA by repeatedly failing to prohibit the retention of fish after the recreational sector exceeded its quota. At a certain point NMFS was obligated to acknowledge that its strategy of incrementally shortening the season was not working. Administrative discretion is not a license to engage in Einstein’s definition of folly--doing the same thing over and over again and expecting a different result. Section 407(d) required NMFS to implement management measures with a fighting chance of ‘resulting in a prohibition on the retention of fish’--be that a buffer, a dramatically shortened season, or some other strategy. Id. at 193 (quoting section 407(d)(1), 16 U.S.C. § 1883(d)(1)). The Court also held that NMFS failed to impose sufficient accountability measures as required by MSA section 303(a)(15), 16 U.S.C. 1853(a)(15). Id. at 199-200 (“The single accountability measure included in the FMP, in-season closure, has done very little to prevent quota overages.”). The Court further held that by permitting the recreational sector to routinely exceed its quota, NMFS effectuated a “de facto reallocation” from the commercial sector to the recreational sector in violation of the FMP’s 51/49 percent allocation and MSA requirements that an allocation must “promote conservation.” Id. at 200-01 (“NMFS essentially guaranteed that the actual catch allocation would skew widely from the 51/49 allocation, as indeed it did. This violated MSA Section 304(b)…. When an agency blinds itself to the high likelihood that its actions will cause overharvesting, the Court cannot characterize those actions as ‘reasonably calculated to promote conservation.’”) (citing 16 U.S.C. §§ 1854(b), 1851(a)(4)). The Court also held that NMFS’s decision to disregard new recreational landings estimates, showing that the recreational sector had exceeded its quota, in order to authorize Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 19 of 53 10 additional recreational fishing violated NMFS’s obligation under National Standard Two to use the best available science. Id. at 195-96. F. Actions Taken After the Court’s Decision in Guindon 1. NMFS implemented some recreational sector accountability measures. After this Court’s ruling in Guindon, the Gulf Council proposed and Defendants approved a 20 percent catch buffer and a requirement that the recreational sector pay back any overages in the subsequent year. This was first accomplished by an emergency rule for 2014, and then through a framework amendment to the Reef Fish FMP that applied to 2015 and beyond. See AR 020423. NMFS initially urged the Gulf Council to implement these accountability measures through Amendment 28 to the Reef Fish FMP, an amendment under consideration to change the 51/49 percent quota allocation between the commercial and recreational sectors that had been in place since 1990. See AR 040760-040761 (NMFS official instructing Council’s Reef Fish Committee 13 days after this Court ruling in Guindon that “it seems to me a logical place to put [accountability measures] might be to add some actions to Amendment 28”). Despite the history of chronic overharvesting by the recreational sector, all of the action alternatives in Amendment 28 would have reallocated more quota to the recreational sector from the commercial sector. See AR 041178. Thus, from the start of the remand proceedings, NMFS urged the Gulf Council to rectify the unlawful “de facto reallocation” that had occurred in prior years -- where NMFS “essentially guaranteed that the actual catch allocation would skew widely from the 51/49 allocation,” Guindon, 31 F. Supp. 3d at 201 -- by further penalizing the commercial sector through a formal reallocation of its quota to the recreational sector. NMFS’s support for this reallocation under Amendment 28 appears to have arisen out of a political agreement. Senator David Vitter (R-La.) had placed a hold on the Senate’s confirmation of Kathryn Sullivan as Under Secretary of Commerce for Oceans and Atmosphere. See Dkt. # 13 at ¶ 60 (NMFS admitting this fact). Sen. Vitter placed this hold expressly to advance reallocation at the Gulf Council. See AR 017901 (October, 24, 2013 letter from Sen. Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 20 of 53 11 Vitter to Secretary Pritzker, expressing concerns with Ms. Sullivan’s nomination and requesting “steps to address the current allocation issues in the Gulf’s red snapper fishery”). On February 6, 2014, Sen. Vitter issued a press release boasting that “NOAA agreed” to support the addition of Amendment 28 to the Gulf Council’s agenda in “response to Vitter’s efforts and requests to Sullivan regarding her nomination.” AR 039398. The Senate confirmed Ms. Sullivan a month later on March 6, 2014. See Dkt. # 13 at ¶ 60. The following month NMFS urged the Gulf Council to use Amendment 28 as the regulatory vehicle to adopt the accountability measures required by this Court’s decision in Guindon. See AR 040760-040761. Ultimately, however, the Council rejected NMFS’s approach because the economic theory underlying Amendment 28 was discredited (see section III(G)(a), infra); AR 020418. As a result, the Council was forced to implement the accountability measures instead through a stand-alone framework action. 2. NMFS “recalibrated” recreational sector landings estimates. Also at issue in Guindon were NMFS’s revised methods to estimate recreational landings. See 31 F. Supp. 3d at 179 (discussing changes to the “Access Point Angler Intercept Survey (APAIS)” which “allowed NMFS to capture data from fishing trips at time intervals during the day that the agency had not previously sampled”). These revised methods suggested that NMFS may have been underestimating recreational sector landings all along. Id. at 183. NMFS thereafter convened a “calibration workshop” in an attempt to retrospectively adjust its prior landings estimates to reflect what those estimates would have been had the improved sampling protocols been used in prior years. See AR 1461-1481 (workshop report). Using only one year of data from 2013, the workshop participants selected a methodology to make this adjustment that they conceded was subject to “substantial criticisms” and may not be “defensible from a scientific point of view.” AR 1481. NMFS applied this methodology to recalibrate decades of recreational landings estimates, even though it conceded that certain years could not be recalibrated. See AR 1689 (showing recalibrated landings estimates going back to 1950); AR 12005 (NMFS official acknowledging that some years of data cannot be recalibrated). Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 21 of 53 12 NMFS’s recalibration of historical recreational sector landings estimates indicated that the recreational sector had been overharvesting its quota far more than NMFS had previously estimated (see Fig. 4, increase from blue to red lines). The revised landings estimates showed that since 2007 the recreational sector caught approximately 18 million pounds of red snapper in excess of its annual quotas. See AR 020350. Figure 4: Effects of Recalibration of Recreational Sector Landings Estimates (1991-2013) Source: compare AR 8077 with AR 020350 (same charts pre- and post-recalibration) By contrast, the commercial sector has consistently adhered to its quota (see Fig. 5). Figure 5: Commercial Sector Landings (1991-2013) Source: AR 020350 Thus, the “recalibration” showed that the legal deficiencies this Court identified in Guindon -- and in particular the “de facto reallocation” NMFS caused by failing to constrain recreational sector catches to its quota -- were even worse than previously determined. 0 2 4 6 8 10 19 91 19 93 19 95 19 97 19 99 20 01 20 03 20 05 20 07 20 09 20 11 20 13 M ill io ns o f P ou nd s Recreational Quota Recreational landings Recalibrated Recreational Landings 0 2 4 6 8 10 19 90 19 91 19 92 19 93 19 94 19 95 19 96 19 97 19 98 19 99 20 00 20 01 20 02 20 03 20 04 20 05 20 06 20 07 20 08 20 09 20 10 20 11 20 12 M ill io ns o f P ou nd s Commercial Allocation Commercial Landings Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 22 of 53 13 3. NMFS increased the total quota based on recalibrated recreational landings estimates. In late 2014, NMFS performed a stock assessment “update” using the recalibrated recreational landings estimates. See AR 1482-1723 (report from update assessment). These new, higher estimates of recreational sector landings had a material effect on the stock assessment. The stock assessment indicated that the stock was more productive than previously determined, and so could support higher annual catch limits going forward. See AR 1778-1784 (explanation of stock assessment update by NMFS scientist); AR 1724-1755 (summary report). Accordingly, in 2015 the Gulf Council passed and NMFS approved an increase in the annual catch limit for 2015, from 11 million to 14.3 million pounds. See AR 020348; 020331.6 G. Reallocation Under Amendment 28 1. The initial justification for Amendment 28 was flawed. Prior to June 2014 Amendment 28 was premised on the theory that reallocating quota from the commercial to the recreational sector would increase net economic benefits. See AR 039428 (executive summary of prior version). That theory was discredited and abandoned because, among other reasons, new studies confirmed that the purported gains in net benefits could not be assured. See AR 020418; 038839. Specifically, because the allocation of quota within the recreational sector itself is not economically efficient, there was no way to ensure that any reallocation would increase efficiency and generate net benefits. See id. Amendment 28 now acknowledges that “inferences about economic efficiency are erroneous when each sector’s quota is not efficiently allocated within the sector” and that “policy prescriptions based on such inferences would not be valid.” AR 020418. 2. The Gulf Council changed the stated “purpose and need” for Amendment 28 at NMFS’s urging, but never reconsidered whether the range of alternatives was reasonable. In January 2015 NMFS urged the Gulf Council to change the “purpose and need” of Amendment 28 from improving “net benefits” to ensuring a “fair and equitable” allocation of the 6 Not all of this increase was atributable to recalibration of recreational landings estimates. See AR 020326. Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 23 of 53 14 quota. See AR 1940 (NMFS official urging the Council to reconsider “the purpose and need of the amendment” and to think about “some of the implications that come out of the new stock assessment”); AR 1941-1944; 002130 (“Dr. Crabtree recommended that the [Reef Fish C]ommittee further discuss the purpose and need…[and] reconsider the role that the recalibration of recreational red snapper landings…could play.”); AR 001951 (NOAA General Counsel stating that “the remedy then is to reevaluate your purpose and need…at the very least, the purpose is to look at the allocations and make a determination about whether they are fair and equitable”); 002023. Following NMFS’s direction, the Gulf Council changed the purpose and need and added two new management alternatives (Alternatives 8 and 9) to Amendment 28. As before, both new management alternatives increased the quota for the recreational sector and decreased the quota of the commercial sector. Specifically, both Alternatives 8 and 9 would reallocate to the recreational sector 100 percent of the quota increase attributable to the recalibration of recreational landings estimates. See AR 002132; AR 002142-002147. Neither the Gulf Council nor NMFS ever reconsidered whether the range of management alternatives was reasonable after radically rewriting the amendment’s purpose and need. As before, all of the proposals reallocated more quota to the recreational sector from the commercial sector, and no consideration was given to reallocating quota to the commercial sector. Once the purpose and need was revised, the foundational premise for Amendment 28 was that the only reallocation alternatives that could be considered “fair and equitable” were those that increased the recreational sector’s quota at the expense of the commercial sector. One Council member raised this very issue in May of 2015: The purpose and need of [Amendment] 28 was to increase net benefits. It’s been changed now so that recovery benefits are fairly and equitably allocated between the commercial and recreational sectors. Personally, I don’t think we’ve done that. There is not one option in here that has an allocation shift, possible allocation shift, from recreational to commercial. It seems to me we should have those type of options just like you have commercial to recreational and get the analysis. I don’t have any idea what the analysis says, Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 24 of 53 15 but it seems to me this is all one way, commercial to recreational. We want to be fair and equitable and we should have alternatives the other way as well and have them analyzed, but thank you. AR 011194. No change was made to the amendment. 3. Amendment 28 rewards the recreational sector for overharvesting. The Council ultimately approved one of the two new alternatives, Alternative 8, which reallocated to the recreational sector the entire quota increase attributable to the recalibrated landings estimates. Alternative 8 increased the recreational sector’s allocation from 49 percent to 51.5 percent. Alternative 8 resulted in a corresponding decrease in the commercial sector’s allocation from 51 percent to 48.5 percent. See AR 020321-020322; 020339. The recreational sector thus obtained the full benefit from NMFS’s finding that the sector had exceeded its annual quotas by even greater margins than NMFS previously thought. While the purported error was in undercounting excess fish caught by the recreational sector, correcting for that error indicated that the stock was more productive and could sustain higher overall catches. But instead of the sectors sharing in the benefits of this newfound stock productivity, the Gulf Council and NMFS concluded that because the recreational sector had been catching more fish than NMFS previously thought (all in excess of the prevailing quota for the recreational sector; see Fig. 4, supra), then the recreational sector should get an increased allocation going forward. The end result is that NMFS re-established a quota for the recreational sector that reflects that sector’s prior overharvesting. See AR 001949 (Council member stating, “It doesn’t make sense, to me, to reward for overshooting the quota.”); AR 002139 (another Council member stating, “My problem is a sector that has consistently gone over and…we are rewarding them for that”). 4. Amendment 28 will exacerbate stock depletion in the Eastern Gulf. NMFS concedes in Amendment 28 that reallocation will cause “a depressed stock size” in the Eastern Gulf of Mexico. AR 020363. Recreational fishing effort in the Gulf of Mexico is concentrated in the Eastern Gulf of Mexico. Id. Accordingly, reallocating more quota to the recreational sector will increase fishing pressure and fishing mortality in that region. Id.; see Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 25 of 53 16 also AR 020409 (“Because a higher [recreational] fishing effort occurs in the east, raising the quota as a result of reallocation would lead to an increased fraction of the eastern population being removed by fishing. Thus the eastern SPR declines further under reallocation when compared to maintaining the current allocation.”). NMFS performed projections to determine the effects of reallocation on the red snapper stock in the Eastern Gulf of Mexico (see Figure 6, below; AR 003684). Upon reviewing these projections, the Gulf Council’s SSC noted that the spawning potential ratio in the eastern Gulf is declining, and “the decline is exacerbated by increasing allocation to the recreational sector.” AR 003684. Figure 6: Effect of Reallocation Scenarios on Spawning Potential Ratio in Western (left) and Eastern (right) Gulf of Mexico; Source: AR 003684. Using NMFS’s own figures, reallocation under Amendment 28 is projected to decrease the spawning stock biomass in the Eastern Gulf of Mexico by approximately 5 percent compared to retaining the prior 51:49 percent allocation between the commercial and recreational sectors (see Figure 7, red line). See AR 040674. A study commissioned by Plaintiffs, and performed by a former NMFS scientist who worked on the 2014 stock assessment update, indicated that the effects on the spawning stock in the Eastern Gulf could be much worse than what NMFS projected. See AR 040661-040674. Among other things, the study concluded that by changing one variable in the projections, “the Eastern Gulf stock is eventually fished to extinction when following the yield Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 26 of 53 17 streams from the SEDAR 31 base model.” AR 040664; AR 040672 (graph showing decline). NMFS disregarded that study and approved Amendment 28 without undertaking similar analyses. See AR 020723 (“It is unclear what further analyses would reveal….”). Figure 7: Eastern Gulf Spawning Stock Biomass Under Status Quo (blue) and Amendment 28 (red). Source: AR 040674. Ultimately, NMFS concluded that taking no action, and maintaining the 51:49 percent allocation, “is the environmentally preferable alternative because it is likely to result in the least commercial discards and will likely be the lowest decrease [in] the SPR for the eastern portion of the red snapper stock.” AR 020731. NMFS nevertheless approved the reallocation under Amendment 28. See 81 Fed. Reg. 25576 (April 28, 2016); AR 02085-020860 (“Final Rule”). IV. STANDING UNDER ARTICLE III AND NEPA This Court previously held that it was “self-evident” that Plaintiffs had Article III standing to challenge NMFS’s regulation of the recreational red snapper fishery. See Guindon, 31 F. Supp. 3d at 187. That holding applies with even greater force here, where the regulatory action at issue reduces the commercial sector’s quota allocation in favor of the recreational sector. See Declaration of Keith Guindon filed herewith (“Guindon Decl.”), ¶ 6; Declaration of Eric Brazer, Jr. filed herewith (“Brazer Decl.”). ¶ 7. Plaintiffs also have individual prudential Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 27 of 53 18 standing under NEPA because they fish for red snapper in the Gulf in commercial and recreational capacities, see id., and both interests would be harmed by the depletion of the stock that will result from Amendment 28. See Rock Creek Pack Station, Inc. v. Blackwell, 344 F. Supp. 2d 192, 202-05 (holding that recreational interests fall within NEPA’s zone of interests); Duke City Lumber Co. v. Butz, 382 F. Supp. 362, 373 n.35 (D.D.C. 1974) (holding that timber company had standing under NEPA when agency action allegedly injured the environment “upon which [plaintiffs] depend for their livelihood and continued maintenance of the quality of their lives”); Guindon Decl. ¶¶ 5-6; Brazer Decl. ¶¶ 6-7. Plaintiff Shareholders’ Alliance (“Alliance”) has associational standing to bring this suit on behalf of its members. See Ctr. for Sustainable Econ. v. Jewell, 779 F.3d 588, 596-97 (D.C. Cir. 2015). The Alliance’s mission is to promote long-term conservation and sustainable fishing of the red snapper stock, and its interests are therefore harmed because Amendment 28 reduces the commercial sector’s quota, depletes the resource in half of the Gulf of Mexico, and contributes to other management problems that threaten the long-term health and stability of the red snapper fishery. See id. (holding that nonprofit organization advocating for sustainable economic policies had NEPA standing to challenge the agency’s oil leasing program); Safari Club Int’l v. Jewell, 960 F. Supp. 2d 17, 51, 59 (D.D.C. 2013) (holding that trade organization of exotic wildlife ranchers that “promotes conservation through commerce” had associational standing under NEPA); Brazer Decl. ¶¶ 3, 6-7. These combined interests are more than sufficient to confer standing under NEPA. V. STANDARD OF REVIEW Agency actions under the MSA are reviewed pursuant to the Section 706(2) of the APA. 16 U.S.C. § 1855(f)(1)(B); Oceana, Inc. v. Locke, 670 F.3d 1238, 1240 (D.C. Cir. 2011). Under the APA, a reviewing court may set aside agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). Agency action is arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 28 of 53 19 problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to difference in view or the product of agency expertise.” Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 1144-45 (D.C. Cir. 2005) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“State Farm”). The agency must have a “reasoned basis” for its regulatory actions, and must “cogently explain” why it has exercised its discretion in a given manner. State Farm, 463 U.S. at 43, 49. VI. ARGUMENT A. Amendment 28 Violates MSA Section 407(d)(2) Because It Improperly Establishes A Quota for the Recreational Sector that Reflects that Sector’s Overharvesting. Amendment 28 plainly violates Section 407(d)(2)’s command that recreational sector quotas not reflect recreational sector overharvesting. NMFS’s interpretation of section 407(d) would read the provision out of the MSA and is entitled to no deference. Section 407(d) provides: Any fishery management plan, plan amendment, or regulation submitted by the Gulf Council for the red snapper fishery after October 11, 1996, shall contain conservation and management measures that— (1) establish separate quotas for recreational fishing (which, for the purposes of this subsection shall include charter fishing) and commercial fishing that, when reached, result in a prohibition on the retention of fish caught during recreational fishing and commercial fishing, respectively, for the remainder of the fishing year; and (2) ensure that such quotas reflect allocations among such sectors and do not reflect any harvests in excess of such allocations. 16 U.S.C. § 1883(d). 1. Amendment 28 violates the express statutory command in section 407(d)(2). Amendment 28 reallocates to the recreational sector the “amount of projected quota increase estimated to result from the recalibration” of recreational landings estimates, AR 20708, which showed that the recreational sector had overharvested its quota by amounts even greater than NMFS had previously determined. See Fig. 4, supra. According to NMFS, reallocating Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 29 of 53 20 that amount of quota enabled NMFS to “reconcile new information that shows that past recreational sector landings were underestimated.” AR 20856. NMFS further concedes, however, that “Amendment 28 is not an attempt to fix the [landings] estimates used to establish the initial allocation” set in 1990, by which the commercial sector was allocated 51 percent of the total quota and the recreational sector was allocated 49 percent. AR 20858. Accordingly, Amendment 28 rewards the recreational sector with a higher quota going forward because its harvests since the initial allocations were established have routinely exceeded the recreational sector’s 49 percent allocation. Amendment 28 thus establishes a quota for a recreational sector that reflects that sector’s overharvesting in violation of section 407(d)(2)’s express mandate. 2. NMFS’s interpretation reads section 407(d)(2) out of the MSA. NMFS does not dispute Plaintiffs’ contention that Amendment 28 rewards the recreational sector with a higher quota that reflects its past overharvesting. Instead, NMFS contends that section 407(d)(2) is no longer operative. NMFS asserts that the Gulf Council complied with section 407(d)(2) “by establishing a recreational quota in 1997 that reflected the previously established allocation,” and that section 407(d)(2) “does not prohibit future action to adjust the allocations as necessary to ensure consistency with the other general requirements” of the MSA. AR 020854. This interpretation renders section 407(d)(2) meaningless. NMFS’s interpretation of section 407(d)(2) is inconsistent with the plain language and intent of the statute and, thus, is not entitled to deference. When Congress has directly spoken to a precise question so that its intent is clear, the court “must give effect to the unambiguously expressed intent of Congress.” Oceana, Inc. v. Locke, 831 F. Supp. 2d 95, 108 (D.D.C. 2011) (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43(1984). Congress’s intent is clear when the text, structure, and legislative history of the provision unambiguously support a particular interpretation. See N. Carolina Fisheries Ass’n, Inc. v. Gutierrez, 518 F. Supp. 2d 62, 96-97 (D.D.C. 2007). The text, structure, and legislative history of section 407(d)(2) demonstrate that it requires NMFS to establish separate quotas for the Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 30 of 53 21 recreational and commercial fishing sectors that do not reflect overharvesting by either sector, and that this is an ongoing obligation. First, there is no dispute that NMFS treats section 407(d)(1) as a continuing obligation, and this Court agrees that it is. See Guindon, 31 F. Supp. 3d at 192-93. NMFS proffers no explanation for how section 407(d)(1) has continuing applicability but section 407(d)(2) does not, when the same prefatory language governs both subsections. This point alone defeats NMFS’s argument that its duty to comply with section 407(d)(2) was discharged in 1997. Second, the language and structure of the statute confirm that section 407(d)(2), like section 407(d)(1), has continuing applicability. It is a “general principle of statutory construction that when Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Oceana, 831 F. Supp. 2d at, 108 (citing Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 452 (2002)). If Congress had intended section 407(d)(2) to be a short-term command, it would have used limiting or qualifying language as it did with sections 407(a) and (b), both of which set fixed time periods within which NMFS was or was not to act. See 16 U.S.C. §§ 1883(a) (NMFS shall act “within 30 days”), 1883(b) (NMFS shall not act “prior to October 1, 2002”). Section 407(d) mirrors another provision of the MSA, section 303(a), that similarly specifies requirements for FMPs and imposes an ongoing obligation on NMFS. See 16 U.S.C. § 1853(a). Third, Congress did not remove or modify section 407(d)(2) as part of the MSA amendments in 2007,7 which undercuts NMFS’s assertion that merely establishing a quota in 1997 fulfilled its duty under section 407(d)(2). When Congress amends one statutory provision but not another, it is presumed that Congress acted intentionally. Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 174-75 (2009). By retaining section 407(d)(2) in 2007, Congress intended the provision to have continuing applicability. Indeed, the 2007 amendments contained detailed 7 See Pub. L. No. 109-479 (Jan. 12, 2007). Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 31 of 53 22 new requirements for the establishment of annual catch limits and accountability measures across all fisheries, see 16 U.S.C. § 303(a)(15), but Congress nevertheless chose to retain the more specific requirements for red snapper under section 407(d). NMFS never explains how the “other general requirements” of the MSA, AR 020854, compelled NMFS to approve Amendment 28, but the specific requirements for red snapper in section 407(d)(2) would compel the opposite outcome. See RadLax Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2070-71 (2012) (where a subject is specifically addressed in a statute, “the specific governs the general”). Fourth, NMFS wrongly contends that section 407(d)(2) should not be read to prohibit “adjustments to an allocation that was established over 25 years ago even when better scientific data reflects a more complete understanding of historic recreational landings.” AR 020854. The “more complete understanding” showed that the recreational sector exceeded its 49 percent allocation even more than NMFS previously thought; NMFS concedes that Amendment 28 “does not fix estimates used to establish the initial allocation.” AR 20858. NMFS evidently concluded that the recreational sector should have a larger allocation to accommodate that sector’s higher levels of recent harvest, but the “self-proclaimed wisdom of [NMFS’s] approach cannot save it because Congress, in its more commanding wisdom, has not authorized it.” Oceana, 670 F.3d at 1243. Fifth, NMFS incorrectly asserts that section 407(d)(2) “does not speak to future adjustments to that [recreational sector] allocation.” AR 020854. Section 407(d) requires “quotas” that “reflect allocations” to the sectors and that do not “reflect any harvests in excess of such allocations.” The 1997 amendment to the Reef Fish FMP equated the terms “quota” and “allocation.” AR 039638. Amendment 28 increased the recreational sector’s allocation to 51.5 percent, which caused a corresponding increase in that sector’s “quota” set forth at 50 C.F.R. § 622.39(a)(2)(i). See AR 020859. Increasing the recreational sector’s allocation under Amendment 28 results in a quota that reflects that sector’s overharvesting, which section 407(d)(2) expressly prohibits. Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 32 of 53 23 Finally, NMFS’s contention that Plaintiffs’ interpretation of section 407(d)(2) “would prohibit any adjustments to an allocation that was established over 25 years ago” is without merit. AR 020854. Plaintiffs’ interpretation, compelled by the plain language of section 407(d)(2), only prohibits an adjustment like the one in Amendment 28 that “reflects” overharvesting. NMFS is free to make adjustments to the allocation, provided that the adjustment does not “reflect” overharvesting as prohibited by section 407(d)(2). Amendment 28 is unlawful because it violates the statutory prohibition. 3. NMFS’s interpretation is unreasonable and entitled to no deference because it incentivizes recreational overharvesting and frustrates the conservation goals of the MSA. Alternatively, even if section 407(d)(2) were considered ambiguous (it is not), NMFS’s interpretation of it is plainly unreasonable under the second prong of Chevron. A court may defer to an agency’s statutory interpretation under Chevron only to the extent that the agency’s interpretation is reasonable and consistent with the statutory purpose and legislative history. Nat. Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 752-53 (D.C. Cir. 2000) (internal citations omitted). A court may not uphold an interpretation “that diverges from any realistic meaning of the statute.” Id. at 753 (citing Massachusetts v. Department of Transp., 93 F.3d 890, 893 (D.C. Cir. 1996)). The overarching purpose of the MSA is conservation. Id. at 753. Section 407(d)(2) similarly was enacted to “avoid a recreational fishery harvest in excess of its quota and thereby contribute to recovery of the overfished red snapper resource.” 62 Fed. Reg. 42478, 42479 (Aug. 7, 1997) (preamble to NMFS’s proposed rule for implementing section 407(d)); see also section II(C), supra. NMFS’s interpretation of section 407(d)(2) is inconsistent with the purpose of section 407(d) and the MSA generally. Amendment 28 rewards the recreational sector for unlawfully exceeding its quota by basing the new allocation on its chronic overharvesting. Rewarding the recreational sector for routinely exceeding its quotas does not help “avoid a recreational fishery harvest in excess of its quota.” 62 Fed. Reg. at 42479. Further, rewarding Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 33 of 53 24 the recreational sector for overharvesting only encourages the very behavior section 407(d) seeks to avoid. See AR 001949 (Council member stating, “if I was a commercial person, I would say I need to go exceed my quota by two-million [pounds], because then they will give me more allocation. That’s not the path we need to go down.”). Encouraging the recreational sector to overharvest puts the red snapper stock at risk of depletion and is inconsistent with the purpose of the MSA to prioritize conservation of the fishery. Nat. Res. Def. Council, Inc. v. Nat’l Marine Fisheries Serv., 421 F.3d 872, 879 (9th Cir. 2005). This is a genuine concern given the Gulf states’ propensity to set non-conforming fishing seasons that use up the recreational sector’s quota, see AR 020328, and who might be emboldened in such efforts when their actions result in a larger allocation. NMFS’s position that 407(d)(2) imposes no continuing obligation to prevent allocations that reward overharvesting is inconsistent with the language and intent of section 407(d)(2). Nat. Res. Def. Council, Inc., 209 F.3d at 753. B. Amendment 28 Violates MSA Section 303(a)(1)(A) and the Reef Fish FMP Because it Will Cause Instability and a “Depressed Stock Size” in the Eastern Gulf. Amendment 28 will exacerbate the decline of the stock in the Eastern Gulf and produce a net decrease in stability of the red snapper fishery. For these reasons, Amendment 28 violates section 303(a)(1) and the enumerated objectives of the Reef Fish FMP. Section 303(a)(1) provides that: Any [FMP]…shall…contain the conservation and management measures…which are…necessary and appropriate for the conservation and management of the fishery, to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery. 16 U.S.C. § 1853(a)(1)(A) (emphasis added). The Reef Fish FMP also contains a number of management objectives. See AR 040093; 039435. A primary objective is to “rebuild the declining fish stocks wherever they occur within the fishery.” Id. (emphasis added). Another objective is to “increase the stability of the red snapper fishery in terms of fishing patterns and markets.” AR 039435. NMFS is statutorily Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 34 of 53 25 required by section 304(b)(1) to ensure that any proposed regulation submitted by the Gulf Council is “consistent with the fishery management plan.” 16 U.S.C. § 1854(b)(1). Thus, a regulation that is inconsistent with objectives set forth in the FMP cannot be adopted. Section 303(a)(1)(A) and the FMP objectives reference the “fishery.” The MSA defines “fishery” as: one or more stocks of fish that 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. 16 U.S.C. § 1802(13)(A). “The management unit for Gulf of Mexico red snapper extends from the United States-Mexico border in the west through the northern Gulf of Mexico waters and west of the Dry Tortugas and the Florida Keys (waters within the [Gulf Council’s] boundaries).” AR 001486. Accordingly, the “management unit,” and thus the “fishery” for red snapper, spans the entire Gulf of Mexico. 1. Amendment 28 violates section 303(a)(1)(A) and the Reef Fish FMP because it will exacerbate stock decline in half of the Gulf of Mexico. NMFS concedes that Amendment 28 will cause a “depressed stock size” in the Eastern Gulf of Mexico. AR 020363. The recreational fishery is centered in the Eastern Gulf, and so reallocating quota to the recreational sector will intensify fishing effort in that region. See id.; AR 020409. The stock is already declining in the Eastern Gulf; Amendment 28 will hasten the decline. See section II(G)(4), supra. Amendment 28 therefore will not “promote the long-term health and stability of the fishery” as required by section 303(a)(1)(A) because it will cause a decline in half of the “fishery;” namely, that portion of the “fishery” located in the Eastern Gulf of Mexico. Similarly, Amendment 28 will not rebuild the red snapper stock “wherever [it] occurs within the fishery” as required by FMP objective because it will cause a decline in the portion of the “fishery” located in the Eastern Gulf. The Court should therefore hold that Amendment 28 violates section 303(a)(1)(A), and that NMFS violated section 304(b)(1) by implementing the regulations Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 35 of 53 26 effectuating Amendment 28 because those regulations are inconsistent with a primary FMP objective. NMFS asserts that because it manages the red snapper stock as a Gulf-wide unit, regional depletion is immaterial as long as the overall rebuilding schedule is maintained. See AR 020855 (“any decrease in the SPR in the eastern Gulf is expected to be offset by a larger increase of SPR in the western Gulf” and that “these offsetting trends in SPR still allow a Gulf-wide recovery of red snapper per the rebuilding plan”). This argument, however, improperly conflates NMFS’s separate statutory duties under section 303(a)(1)(A). Section 303(a)(1)(A) imposes affirmative obligations on NMFS to “prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long- term health and stability of the fishery.” Thus, NMFS must both “rebuild overfished stocks” and “protect, restore, and promote the long-term health and stability of the fishery” as a whole. Rebuilding “stocks” and restoring “the fishery” are separate statutory duties. NMFS cannot comply with the latter requirement merely by complying with the former; otherwise, the requirement to protect and restore the “long-term health and stability of the fishery” would be meaningless. See Hibbs v. Winn, 542 U.S. 88, 89 (2004) (“the rule against superfluities instructs courts to interpret a statute to effectuate all its provisions, so that no part is rendered superfluous”). Because the strength of the Western Gulf sub-stock will not spill over to increase the abundance of fish in the Eastern Gulf, the regional depletion caused by Amendment 28 violates the latter portion of section 303(a)(1)(A). NMFS’s argument also ignores the separate FMP objective to rebuild stocks “wherever they occur within the fishery.” AR 040093; 039435. NMFS asserts that the additional regional depletion in the Eastern Gulf caused by Amendment 28 is likely to be minimal compared to status quo. See AR 020855. Under NMFS’s own assumptions, Amendment 28 is projected to decrease the spawning stock biomass in the Eastern Gulf by five percent compared to status quo. See Fig. 7, supra; AR 040664. Even accepting NMFS’s own projections as correct, adopting a management initiative that, under the best case scenario, results in further degradation of the resource is inconsistent with NMFS’s Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 36 of 53 27 statutory duty to “protect, restore, and promote” the “long-term health and stability of the fishery.” See Nat. Res. Def. Council, 209 F.3d at 752-53. 2. Amendment 28 violates section 303(a)(1)(A) and the Reef Fish FMP because it will cause a net decrease in stability across the fishery. Amendment 28 will also cause instability in the commercial sector without addressing problems in the recreational sector. Amendment 28 therefore does not “protect, restore, and promote the long-term…stability of the fishery” as required by section 303(a)(1)(A), nor does it comply with the FMP objective to “increase the stability of the red snapper fishery in terms of fishing patterns and markets.” AR 040093; 039435. NMFS concedes in Amendment 28 that “with a reallocation of quota from the commercial sector, considerable dissatisfaction and instability in commercial participants’ confidence in the IFQ market would be expected to result, because there would be no mitigation to the commercial sector for the loss of access to red snapper quota.” AR 020413. NMFS further acknowledges that a “reallocation from the commercial quota would be expected to negatively affect the stability of the commercial sector in terms of long term access to red snapper allocation and confidence in the IFQ program.” Id. NMFS also concedes that Amendment 28 “will not increase the stability of red snapper fishing for the recreational sector.” AR 020412. This is partly because, as Amendment 28 explains, “increases to the recreational sector’s allocation may not be assumed to benefit recreational anglers Gulf-wide as an unknown amount of the reallocated quota may be caught by extended state water fishing seasons which vary by state.” AR 020328. In other words, extended fishing seasons in state waters (over which NMFS exerts no control; see Guindon, 31 F. Supp. 3d at 176) may use up the entire reallocated quota, leaving no benefit to anglers fishing in federal waters. Amendment 28 thus results in a net decrease in stability across the fishery in violation of section 303(a)(1)(A) and an objective of the Reef Fish FMP because it will destabilize the commercial sector without providing any offsetting stability to the recreational sector. Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 37 of 53 28 Despite these findings in Amendment 28, NMFS asserts in the Final Rule that it “disagrees that Amendment 28 will create instability in the commercial sector.” AR 020855. NMFS explains this apparent contradiction by pointing to the inherent stability of the commercial sector’s IFQ program, in terms of “season length, ex vessel prices, no quota overages, enhanced safety at sea, and absence of other race to fish (derby) conditions” that NMFS contends will be unaffected by reallocation. Id. Yet merely because some aspects of the commercial sector’s fishery may remain stable does not erase the instability that NMFS recognized will occur in other aspects of the fishery; namely, the market for IFQ shares and confidence in the overall IFQ program. See AR 020412- 020413. Indeed, NMFS goes on to recognize that reallocation may cause “upward pressure on allocation prices,” challenges to “buyers of IFQ allocations, such as small IFQ shareholders and new entrants,” and disruption of the “stable planning horizon of commercial fishermen as they may need to rescale their operations due to lower than expected IFQ allocations.” AR 020855. NMFS downplays these conditions as “minimal,” id., but the salient point is that there is no evidence of any offsetting improvements in stability, and thus Amendment 28 results in a net loss. NMFS cannot save Amendment 28 by asserting that its violation of a statutory command is only “minimal.” Nor does NMFS explain how Amendment 28 will “increase stability in terms of…markets” as required by FMP objective. NMFS ultimately concludes that “the commercial sector’s dissatisfaction with the allocation change would persist for some time.” Id. At bottom, NMFS’s determination that Amendment 28 will “protect, restore and promote the long-term…stability of the fishery,” as required by section 303(a)(1)(A), runs “counter to the evidence before the agency,” State Farm, 463 U.S. at 43, and is therefore arbitrary and capricious. C. Amendment 28 Violates MSA National Standard Four and the Gulf Council’s Fishery Allocation Policy Because it is Unfair, and Does Not Promote Conservation or Increase Efficiency Under the MSA, allocations must be fair and equitable, be reasonably calculated to promote conservation and, like any action, consider efficiency in the use of fishery resources. Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 38 of 53 29 See 16 U.S.C. §§ 1851(a)(4), 1851(a)(5). The “Principles for Allocation” set forth in the Gulf Council’s Allocation Policy reflect many of these same MSA requirements, see AR 020576, but in some respects go farther than the National Standards in requiring a particular outcome. The Allocation Policy is set forth in Appendix E to Amendment 28. See id. The policy is controlling because it is part of Amendment 28, and by its terms dictates that “[a]ll allocations and reallocations must be consistent with the [Gulf Council’s] principles for allocation.” AR 020577. Under section 304(b)(1) of the MSA, NMFS can only promulgate regulations proposed by the Gulf Council if those regulations are consistent with the “fishery management plan, or plan amendment” and other applicable law. 16 U.S.C. § 1854(b)(1). Accordingly, because the regulations implemented by the Final Rule violate the Allocation Policy set forth in Amendment 28, in addition to other MSA requirements, NMFS wrongly promulgated those regulations. See id. 1. Amendment 28 is unfair, inequitable, and does not promote conservation. National Standard Four of the MSA requires, among other things, that where “it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be…fair and equitable to all such fishermen [and]…reasonably calculated to promote conservation.” 16 U.S.C§ 1851(a)(4). NMFS’s National Standard Four Guidelines provide that to be “fair and equitable,” an allocation “should be rationally connected…with the furtherance of a legitimate FMP objective.” 50 C.F.R. § 600.325(c)(3)(i)(A). In addition, an allocation may “impose a hardship on one group if it is outweighed by the total benefits received by another group or groups.” Id. § 600.325(c)(3)(i)(B) (emphasis added). An allocation may “promote conservation” by “encouraging a rational, more easily managed use of the resource.” Id. § 600.325(c)(3)(ii). The Gulf Council’s Allocation Policy similarly requires that any reallocation shall “promote conservation…[by] furtherance of a legitimate FMP objective” and “promot[ing] a rational, more easily managed use.” See AR 020576. Amendment 28 fails to comply with these requirements in three ways. First, Amendment 28 is projected to cause a “depressed stock size” in the Eastern Gulf of Mexico and to further Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 39 of 53 30 deplete the red snapper spawning stock in that region. AR 020363. Amendment 28 therefore frustrates, and does not “promote,” a primary objective of the Reef Fish FMP to “rebuild stocks wherever they occur within the fishery.” AR 040093; 039435 (emphasis added). NMFS falls back to arguing in response that the “stock is rebuilding,” AR 020856, but again that argument ignores regional depletion in part of the “fishery” that is caused by Amendment 28. See section V(B)(1), supra. Second, NMFS acknowledges in Amendment 28 that reallocation will impose harms on the commercial sector of the fishery. See AR 020327-020328; 020411-020413. Yet NMFS also concedes that the “increases to the recreational sector’s allocation may not be assumed to benefit recreational anglers Gulf-wide.” AR 020328. Accordingly, Amendment 28 imposes a hardship on one group (the commercial sector) that is not outweighed by the total benefits received by another group (the recreational sector). NMFS does not address this argument in the Final Rule. Third, Amendment 28 frustrates rather than “promote[s] a rational, more easily managed use” of the resource. 50 C.F.R. § 600.325(c)(3)(ii). The commercial sector of the red snapper fishery operates under a limited access IFQ program, which is a rationalized management system that has eliminated management uncertainty. See AR 020378; Guindon, 31 F. Supp. 3d at 199. The recreational sector, by contrast, is an open access fishery that is difficult to manage because it has numerous sources of management uncertainty. See AR 040680 (listing 13 “Major Sources of Management Uncertainty”). Amendment 28 reallocates quota from the rationalized limited access commercial sector, which has no management uncertainty, to the non-rationalized open access recreational sector, which has significant management uncertainty. NMFS responds that Amendment 28 “will promote a rational, more easily managed resource by addressing the fact that future recreational harvest will be monitored based on an improved methodology that results in higher landings estimates.” AR 020856. This is nonsensical and does not address Plaintiffs’ argument. Future monitoring of recreational harvests are not at issue in Amendment 28. Nor does NMFS explain how reallocating quota to the recreational sector “addresses” such future monitoring or resulting higher landings estimates. Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 40 of 53 31 NMFS’s decision to take a portion of the quota that was being used in a fully accountable system, and place it under a different system that is far more difficult to monitor and manage, does not comport with National Standard 4, NMFS’s Guidelines, or the Council’s Allocation Policy. 2. Amendment 28 does not increase efficiency. Amendment 28 does not produce an increase in efficiency, and so violates the Gulf Council’s Allocation Policy. National Standard Five provides that “[c]onservation and management measures shall, where practicable, consider efficiency in the utilization of fishery resources; except that no such measure shall have economic allocation as its sole purpose.” 16 U.S.C. § 1851(a)(5). The Gulf Council’s Allocation Policy goes farther, however, and provides that any reallocation must “consider efficient utilization of fishery resources” but “should not just redistribute gains and burdens without an increase in efficiency.” AR 020576. NMFS concedes in Amendment 28 that the resource allocation within the commercial sector, which operates under an IFQ program, constitutes a “reasonable approximation of an efficient resource allocation.” AR 020418. By contrast, the “open access management approach in the recreational sector cannot be conducive to an efficient allocation of red snapper within the recreational sector.” Id. Amendment 28 explains that because of this disparity, “changes in net benefit estimates based on the traditionally accepted application of the equimarginal principle and associated inferences about economic efficiency are not valid” when analyzing a reallocation from the commercial sector to the recreational sector (emphasis added). AR 020452. Because the resource allocation within the recreational sector itself is not efficient, there is no way conclude that reallocating quota to the recreational sector will produce any gain in efficiency. NMFS admits that Amendment 28 does precisely what the Allocation Policy prohibits: “Amendment 28 did consider efficiency in evaluating effects of reallocation but could not definitively conclude that it would increase or decrease efficiency in the utilization of the red snapper resource.” AR 020856. Amendment 28 merely “redistributes gains and burdens without an increase in efficiency” and, thus, violates the Allocation Policy. AR 020576. Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 41 of 53 32 D. Amendment 28 Violates MSA National Standard 1 and the Council’s Fishery Allocation Policy Because It Frustrates Achievement of Optimum Yield Amendment 28 violates National Standard 1 and the Gulf Council’s Allocation Policy because it will result in a net decrease in conservation of the red snapper stock and frustrate achievement of optimum yield on a continuing basis. National Standard One of the MSA requires that conservation and management measures “shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.” 16 U.S.C. § 1851(a)(1). Optimum yield is defined as amount of fish which: 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; (B) is prescribed on the basis of the maximum sustainable yield from the fishery, as reduced by an relevant social, economic, or ecological factor; and (C) in the case of an overfished fishery, provides for rebuilding to a level consistent with producing the maximum sustainable yield on a continuing basis. 16 U.S.C. § 1802(33). The Gulf Council’s Fishery Allocation policy also provides that any reallocation shall “promote conservation” by being “connected to the achievement of [optimum yield].” AR 020576. Challenges to NMFS’s duty to achieve optimum yield under National Standard 1 often fail because the regulation at issue was intended to prevent overfishing, and courts often defer to NMFS’s authority to strike the appropriate balance between the competing objectives in National Standard 1. See Lovgren v. Locke, 701 F.3d 5, 33 (1st Cir. 2012). However, a challenge under National Standard 1 may be sustained where the regulation at issue defeats achievement of optimum yield without having a conservation purpose to prevent overfishing. See Western Sea Fishing Co. v. Locke, 722 F. Supp. 2d 126, 139-144 (D. Mass. 2010). Western Sea dealt with a regulation that prohibited a vessel with several fishing permits from splitting up those permits and transferring them separately to other vessels. Id. at 133-34. Requiring a vessel to maintain its permits together as a package was intended to prevent additional fishing vessels and fishing capacity from coming into fisheries that were already Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 42 of 53 33 overexploited. Id. A participant in the herring fishery filed suit, contending that the permit- splitting ban violated National Standard 1 because herring were not overfished, and the action effectively prevented new vessels from engaging in the underexploited herring fishery, thereby frustrating achievement of optimum yield. Id. at 139. The court agreed. Id. at 140 (finding that the action “is not rationally related to achieving optimum yield when there is simply no evidence or contention of a current danger of overfishing” and the agency’s justification “seems likely to exacerbate the gap between landings and optimum yield”). Amendment 28 similarly violates National Standard 1 because it will result in a net decrease in conservation of the red snapper stock, and it will frustrate achievement of optimum yield from the red snapper fishery. As discussed above, Amendment 28 will hasten the decline of the Eastern Gulf sub-stock by intensifying recreational fishing effort in the Eastern Gulf. See AR 020409. NMFS also projects that Amendment 28 is likely to increase dead discards in the commercial fishery by reducing the availability of quota that would otherwise be available to retain fish. See AR 020322. NMFS acknowledges that the “no action” alternative in Amendment 28 -- maintaining the prior 51:49 percent allocation -- “is the environmentally preferable alternative because it is likely to result in the least commercial discards and will likely be the lowest decrease [in] the [spawning potential ratio] for the eastern portion of the red snapper stock of the alternatives considered.” AR 020731. Amendment 28 frustrates achievement of optimum yield because it risks stranding quota that would otherwise be utilized by the commercial sector. The commercial sector has no management uncertainty and thus does not require any catch limit buffer to guard against potential catch overages. See Guindon, 31 F. Supp. 3d at 199. The recreational sector of the red snapper fishery has significant management uncertainty such that it requires a 20 percent catch buffer to guard against potential catch overages. See id.; AR 020379-020380. By reallocating red snapper quota from the commercial sector to the recreational sector, twenty percent of the reallocated quota must therefore be set aside as a catch limit buffer to guard against potential overages in the recreational sector. Quota that the commercial sector Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 43 of 53 34 would otherwise harvest and provide to consumers is therefore set aside and potentially unutilized. Specifically, in 2016 Amendment 28 reallocates approximately 350,000 pounds to the recreational sector. See AR 017898 (holding back 352,000 pounds from the commercial sector for reallocation). Twenty percent of that amount, or 70,000 pounds, must now be set aside as part of the catch limit buffer that applies to the recreational sector. That quantity of fish will only be utilized to absorb an overage in the recreational sector in the event that NMFS sets recreational season lengths that are too long. By setting aside reallocated quota that the commercial sector would otherwise use to guard against a potential overage in the recreational sector, reallocation of quota under Amendment 28 reduces the long-term yields from the fishery. NMFS asserts that using a buffer or catch target “is not inconsistent with the requirement under National Standard 1 to achieve [optimum yield] on a continuing basis.” AR 020856. Plaintiffs do not dispute that contention; indeed, Plaintiffs filed their earlier lawsuits precisely because chronic recreational sector overages necessitated such a buffer. See Guindon, 31 F. Supp. 3d at 199-200. Amendment 28, however, is unrelated to the establishment of a buffer, and instead reallocates quota from the commercial sector to the recreational sector. But because the reallocated quota is now subject to a 20 percent buffer, this action, like the one in Western Sea, “seems likely to exacerbate the gap between landings and optimum yield,” 722 F. Supp. 2d at 140, and thus runs afoul of National Standard 1. For the same reasons Amendment 28 is also not “connected to the achievement” of optimum yield as required by the Council’s Allocation Policy. AR 020576. E. Amendment 28 Violates MSA Section 303(a)(14). Amendment 28 is deficient because it fails to include the analysis necessary to ensure that the reallocation is “fair and equitable” as required by section 303(a)(14). That section provides that: [any fishery management plan shall,] to the extent that rebuilding plans or other conservation and management measures which reduce the overall harvest in a fishery are necessary, allocate, taking into consideration the economic impact of the harvest restrictions or recovery benefits on the fishery participants in each Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 44 of 53 35 sector, any harvest restrictions or recovery benefits fairly and equitably among the commercial, recreational, and charter fishing sectors in the fishery. (emphasis added). 16 U.S.C. § 1853(a)(14). The red snapper stock is overfished and has been under the current rebuilding plan since 2004. A court ruling in 2007 required substantial catch reductions for 2007, 2008 and 2009 to maintain the rebuilding schedule, under which the stock is projected to be rebuilt in 2032. See AR 002259; see also Figures 4 and 5, supra (showing quota reductions starting in 2007). The commercial sector complied with these harvest restrictions and adhered to its reduced quota in those years (see Figure 5, supra). The recreational sector did not comply with these harvest restrictions and exceeded its quota in all of these years (see Figure 4, supra). Because the commercial sector alone complied with its quotas, the commercial sector endured a disproportionate share of the harvest restrictions necessary to rebuild the stock. Starting in 2010, as the stock began to recover, catch limits began to increase each year. The commercial sector continued to comply with its quotas while the recreational sector continued to exceed its quotas each year. See Figures 4 and 5, supra. Thus, the recreational sector has enjoyed a disproportionate share of the recovery benefits since the stock began to recover. In developing Amendment 28, the Gulf Council and NMFS did not “take into account” the “economic impacts” of the “harvest restrictions” or “recovery benefits” on the “fishery participants” in each of the “commercial, recreational, and charter fishing sectors of the fishery” as required by section 303(a)(14). Amendment 28 contains general descriptions of these sectors, see AR 020392-020402; 020415-020419, but does not contain any analysis of the specific “economic impacts” that the “participants” in each of these sectors either endured or enjoyed as a result of the harvest restrictions or recovery benefits. Without taking into account such economic impacts, the reallocation under Amendment 28 cannot be considered “fair and equitable” as required by section 303(a)(14). Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 45 of 53 36 F. Amendment 28 Violates MSA Section 303(a)(9). NMFS prepared a Fishery Impact Statement for Amendment 28, but failed to assess the socio-economic impacts on fishing communities resulting from the additional depletion of the red snapper stock in the Eastern Gulf of Mexico. This failure violated NMFS’s duty under section 303(a)(9). Section 303(a)(9) of the MSA provides in relevant part that any FMP must: include a fishery impact statement for the plan or amendment…which shall assess, specify, and analyze the likely effects, if any, including the cumulative conservation, economic, and social impacts, of the conservation and management measures on, and possible mitigation measures for…participants in the fisheries and fishing communities affected by the plan or amendment. 16 U.S.C. § 1853(a)(9). NMFS admits in its Record of Decision that it violated its duty under section 303(a)(9): Although the biological issues of the SPR decline is [sic] discussed, Amendment 28 does not assess the resulting economic and social effects on fishing communities in the Eastern Gulf. AR 020721. This striking admission alone is sufficient to vacate Amendment 28. NMFS goes on to assert that social and economic effects “are couched in more general terms as part of, or implied in, the effects analysis.” Id. This assertion only shows the extent of the deficiencies in the Fishery Impact Statement. NMFS cannot comply with its duty under section 303(a)(9) by “couching in general terms” or “implying” the social and economic effects on fishing communities affected by Amendment 28. G. Amendment 28 Violates NEPA 1. NMFS failed to rigorously explore the reasonable alternative of reallocating more quota to the commercial sector. NMFS violated NEPA because it failed to consider a reasonable range of management alternatives. Specifically, after the Gulf Council substantially rewrote the purpose and need statement for Amendment 28 to ensure a “fair and equitable” allocation between the sectors, NMFS never reconsidered whether it should include an alternative that would reallocate quota in Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 46 of 53 37 favor of the commercial sector. This was a reasonable alternative that should have been considered. NEPA requires that management actions like Amendment 28 “specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action,” and “[r]igorously explore and objectively evaluate all reasonable alternatives.” 40 C.F.R. §§ 1502.13, 1502.14. This requirement is the “heart” of the environmental impact statement. 40 C.F.R. § 1502.14. “When a statement of purpose and need is materially changed such that the alternatives designed to satisfy the former statement of purpose and need do not satisfy the revised statement of purpose and need, new alternatives are necessary to fulfill the requirement that an EIS/R consider ‘an appropriate range of alternatives.’” City of Carmel-By- The-Sea v. U.S. Dep’t of Transp., 95 F.3d 892, 908 (9th Cir. 1996), opinion withdrawn and superseded on other grounds, 123 F.3d 1142 (9th Cir. 1997). NMFS initially considered alternatives based on Amendment 28’s earlier purpose “to increase the net benefits from red snapper fishing and increase the stability of the red snapper component of the reef fish fishery, particularly for the recreational sector that has experienced progressively shorter seasons.” AR 020569 (emphasis added). Based on this purpose, “the Council concluded that increasing the allocation of red snapper to the commercial sector would not meet the purpose and need of Amendment 28.” AR 020569-70; 019781. After the economic theory supporting Amendment 28 at that time was abandoned, however, the Gulf Council changed the purpose and need of Amendment 28 from improving net benefits to ensuring that “allowable catch and recovery benefits are fairly and equitably allocated between the commercial and recreational sectors.” AR 019773. Despite this change, NMFS did not reconsider its earlier determination that reallocating quota to the commercial sector would not meet the purpose and need. That prior determination became irrelevant; NMFS was obligated to reconsider an alternative that would allocate more quota to the commercial sector or, at a minimum, give a plausible reason for rejecting it in light of the revised purpose and need statement. See Dubois v. U.S. Dep’t of Agric., 102 F.3d 1273, 1289 (1st Cir. 1996). Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 47 of 53 38 An agency must consider an alternative if it is economically and practically feasible and would effectuate the purpose and need of the project proposed by the federal agency. See, e.g,. Pac. Coast Fed’n of Fishermen’s Associations v. Blank, 693 F.3d 1084, 1100 (9th Cir. 2012) (“PCFFA”) (“the agency properly considered six reasonable alternatives, which differed primarily based on how they allocated groundfish stocks among different sectors”). In light of the revised purpose and need to ensure a “fair and equitable” allocation, an alternative that would reallocate more quota to the commercial sector was reasonable and should have been considered. See 40 C.F.R. §§ 1502.13, 1502.14 The commercial sector has consistently adhered to its quotas, and in so doing endured a disproportionate share of the harvest restrictions while the recreational sector enjoyed a disproportionate share of the recovery benefits, all while benefitting from a “de facto reallocation” that NMFS caused allowing recreational sector overages. See Figs. 4 and 5, supra; Guindon, 31 F. Supp. 3d at 201. NMFS is obligated by statute to consider such impacts to ensure that recovery benefits are fairly and equitably allocated among the “commercial, recreational, and charter fishing sectors.” 16 U.S.C. § 1853(a)(14). The commercial sector, moreover, serves the broader public by making these fishery resources available to consumers across the country. See 16 U.S.C. 1801(a)(1) (Congress finding that these “fishery resources contribute to the food supply, economy, and health of the Nation and provide recreational opportunities”). Where the purpose of an action is to ensure an equitable allocation among sectors, it is necessary that the alternatives are both more and less favorable to the sectors concerned. See, e.g., PCFFA, 693 F.3d 1100 (NMFS properly considered allocations to the trawling sector that were both more and less favorable than its historical take). Here, NMFS only considered allocations that maintained the status quo or that put the commercial sector at a disadvantage. NMFS was obligated to consider at least one alternative that put the recreational sector in a less favorable position than if no action was taken in order to effectuate the purpose of ensuring a “fair and equitable” allocation. See id. NMFS attempted to supplement the EIS after the Gulf Council had already taken final action on Amendment 28, adding five pages of analysis about a hypothetical reallocation to the Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 48 of 53 39 commercial sector in apparent recognition of its vulnerability on NEPA grounds. Compare AR 020008 (“Final” EIS as submitted by the Gulf Council, with three sentences addressing this issue); AR 020569-020573 (“Final” EIS as supplemented by NMFS, with five pages addressing this issue). This post hoc supplementation was too late, because under the statutory structure of the MSA, NMFS was committed to evaluating the Council’s preferred alternative and could not change the action at that point. See 16 U.S.C. § 1854(a)(3) (NMFS can only “approve, disapprove, or partially approve” an FMP amendment submitted by a Council). Nor can this post hoc justification excuse NMFS’s failure for not considering a reasonable alternative at the outset once it revised the purpose and need statement. Courts do not allow agencies to supply a “post-hoc justification for an action that is offered in litigation, rather than a justification given by the agency at the time of the decision,” Colorado Envtl. Coal. v. Salazar, 875 F. Supp. 2d 1233, 1249-50 (D. Colo. 2012), which is essentially what NMFS attempted here. 2. NMFS failed to take a hard look at the environmental consequences of Amendment 28. NEPA obligated NMFS to take a “hard look” at the environmental consequences of Amendment 28. See Kleppe v. Sierra Club, 425 U.S. 390, 410.1 (1976). NMFS failed to take a “hard look” because it relied on data and assumptions that it knew were questionable if not wrong and failed to obtain information that could have improved its projections. a. NMFS relied on questionable data and assumptions to assess the environmental harm. The “hard look” standard is not satisfied when an agency relies “on incorrect assumptions” in an EIS. Jayne v. Sherman, 706 F.3d 994, 1005-06 (9th Cir. 2013). NMFS performed a projection to evaluate the stock impacts resulting from reallocation. See AR 020626-020627. NMFS relied on a set of assumptions that it conceded were “strong” (i.e., bold) and that, if wrong, could drastically alter the outcome. AR 020627 (“If any of these assumptions are violated…the projected yields will be higher/lower that those required to permit recovery of red snapper by 2032.”). Record evidence suggests that these assumptions were incorrect and using them could have obscured the true impacts to the stock resulting from Amendment 28. Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 49 of 53 40 First, NMFS assumed that recreational discard mortality was 10 percent. That is the rate observed with use of “venting” tools that pierce the air bladder of a fish help it return to the bottom after being caught and released. AR 040662. Without venting, however, recreational discard mortality is estimated to be 21 percent. Id. In 2013, NMFS rescinded regulations that required use of venting tools because “several recent scientific studies have questioned the usefulness of venting tools in preventing discard mortality in fish.” 78 Fed. Reg. 46820, 46821 (Aug. 2, 2013). In other words, NMFS concluded in 2013 that venting tools do not work as intended, but in making its projections for Amendment 28 in 2015 using a 10 percent recreational discard mortality rate, NMFS arbitrarily assumed to the contrary that: 1) venting tools work as intended; and 2) all fish are being released with venting tools, despite NMFS’s rescinding of requirements to use venting tools. Correcting for that one error alone indicates that Amendment 28 could decrease spawning stock biomass in the Eastern Gulf of Mexico by 15 percent instead of 5 percent under NMFS’s assumptions. See Figure 7, supra; AR 040674. Second, recreational fishing effort in the Gulf of Mexico by anglers on private boats has been increasing. Indeed, NMFS approved Amendment 40 in 2015 in part to address the “uncontrolled growth” 8 of the private angler component of the recreational fishery. See 80 Fed. Reg. 22422 (Apr. 22, 2015). Yet when assessing the effects of Amendment 28, NMFS assumed that “fishing effort levels” by recreational anglers in the Gulf of Mexico when the federal season is closed (i.e., most of the year) would nevertheless remain constant at 2013 levels out to 2032. See AR 020627. This matters because increased fishing effort when the season is closed results in increased dead discards. See AR 002255 (noting that the “total kill” is higher in the recreational fishery due to discards). Third, NMFS also arbitrarily assumed that the large size of red snapper anglers have recently been catching (“size selectivity”) would remain at levels observed in 2011-2013 out to 8 See Gulf Council and NMFS, Amendment 40 to the Reef Fish FMP, p. 81, available at http://gulfcouncil.org/docs/ amendments/RF%2040%20-%20Final%2012-17-2014.pdf. Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 50 of 53 41 2032, despite acknowledging that the “strong year classes” supplying these more abundant, larger fish “are exiting the fishery.” AR 1757. Thus, size selectivity is likely to decrease in coming years. All of NMFS’s assumptions therefore skewed its projections in a way that made Amendment 28 look more favorable. Concerned with the accuracy of NMFS’s assumptions, Plaintiffs commissioned a former NMFS stock assessment scientist to perform additional projections using other viable assumptions supported by record evidence. See AR 040661-040674. The analysis indicated that NMFS may have significantly underestimated negative stock impacts resulting from Amendment 28 because of the assumptions it relied upon. See AR 040663-040664 (by changing one variable, “the Eastern Gulf stock is eventually fished to extinction”); 040672. Plaintiffs informed NMFS of these findings, but NMFS disregarded the information and refused to conduct any further analysis of its own. AR 020719; AR 020723. NMFS’s reliance on questionable assumptions contradicted by record evidence before the agency obscured the potential environmental impacts resulting from Amendment 28, and constitutes a failure to take a “hard look” at those impacts. See Jayne, 706 F.3d at 1005-06.9 b. NMFS failed to obtain reasonably available information to assess the impact of Amendment 28. When there is incomplete information about the impacts of a proposed action, and that information is essential to make reasoned choice among alternatives, the agency must explain in the final impact statement that the information was not obtained and why it was not obtained. 40 C.F.R. § 1502.22; Sierra Club, Illinois Chapter v. U.S. Dept. of Transp., 962 F. Supp. 1037 (N.D. Ill. 1997). As a corollary, NMFS has a duty to obtain information that is reasonably available and would aid it in making a reasoned choice among alternatives, and failure to 9 By disregarding this contrary data, NMFS also violated National Standard 2, which requires NMFS to use the “best scientific information available.” 16 U.S.C. § 1851(a)(2). See Guindon, 31 F. Supp. 3d at 195 (“National Standard 2 obligates NMFS to make a thorough review of all the relevant information available at the time” and is violated where there is “some indication that superior or contrary data was available and the agency ignored such information.”) (internal quotation marks and citations omitted). Indeed taking a precautionary approach was particularly appropriate given NMFS’s pattern of habitually underestimating the fishing effort and stock impacts of the recreational fishing sector. Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 51 of 53 42 “attempt any assessment of the importance of the missing information calls into question the validity of the [agency’s] conclusions about the impacts of the proposed action. Cabinet Res. Grp. v. U.S. Fish & Wildlife Serv., 465 F. Supp. 2d 1067, 1100 (D. Mont. 2006). As mentioned above, even after Plaintiffs informed NMFS about the study they commissioned to run additional stock projections with alternative assumptions, NMFS failed to perform its own assessments using similar alternative assumptions. NMFS could have reasonably performed additional projections with alternative assumptions, but it declined to do so; nor did it offer a reasonable explanation as to why. See Sierra Club, 962 F. Supp. 1037; AR 020723. As a consequence, NMFS’s conclusions as to the environmental impact of Amendment 28 are unreliable and arbitrary. See Cabinet Res. Grp. 65 F. Supp. 2d at 1100. c. NMFS disregarded the biological effects of depleted stock in the Eastern Gulf on health of the stock as a whole. A “hard look” must include “discussion of adverse impacts that does not improperly minimize negative side effects.” N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 975 (9th Cir. 2006) (internal citations omitted). NMFS acknowledges that the reallocation will cause a “depressed stock size” in the Eastern Gulf of Mexico. AR 019803. Nevertheless, NMFS concludes that there is negligible biological harm because “the western stock would continue to rebuild and allow the Gulf red snapper stock as a whole continue recover per the red snapper rebuilding plan.” AR 020008; 019763 (describing the effects biological effects as “likely neutral”). NMFS’s position is that the regional depletion is immaterial as long as the productivity in the Western Gulf drives the rebuilding plan. But this position ignores the environmental effects of regional depletion of the stock in the Eastern Gulf, where the stock is already declining and is projected to decline to near record lows. See AR 1508. By failing to adequately consider the effects of a depressed stock size in the Eastern Gulf, NMFS improperly minimized the negative effects of Amendment 28 and thus failed to take a “hard look” at the impacts of the action. See N. Alaska Envtl., 457 F.3d at 975. Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 52 of 53 43 VII. CONCLUSION The Court should vacate Amendment 28 for the foregoing reasons.10 DATED this 15th day of July, 2016. Respectfully submitted, K&L GATES LLP By: /s/ J. Timothy Hobbs Michael F. Scanlon (DC Bar # 479777) Michael.Scanlon@klgates.com 1601 K Street, NW Washington, DC 20006 Telephone: (202) 661-3764 Facsimile: (202) 778-9100 J. Timothy Hobbs (Pro Hac Vice) Tim.Hobbs@klgates.com 925 Fourth Avenue, Suite 2900 Seattle, WA 98104 Telephone: (206) 623-7580 Facsimile: (206) 623-7022 Attorneys for Plaintiffs 10 Plaintiffs are not moving for summary judgment on the Tenth Cause of Action in their Supplemental Complaint (Dkt. # 11-2 at 44) at this time. Case 1:15-cv-02256-BJR Document 18 Filed 07/15/16 Page 53 of 53 UNITED STATES DISTRICT COURT DISTRICT OF COLI-IMBIA No. l:15-cv-02256-BJR DECLARATION OF ERIC BRAZER, JR. I, ERIC BRAZE& JR., declare, under penalty of perjury the following: 1. My name is Eric Brazer, Jr,, and I am the Deputy Director of the Gulf of Mexico Reef Fish Shareholders' Alliance ('Alliance"). I have personal knowledge of the facts set forth in this declaration and arn competent to testiff thereto. 2. I have significant experience and knowledge with regard to issues surrounding fisheries and fishery management, dating back to my childhood when I participated in my father's commercial lobster trap and bluefin tuna harpooning business in Maine. In 2003, I received a bachelor's degree in Environmental Studies from Brown University and, in 2005,I received a master's degree in Coastal Environmental Management from Duke University. I Case 1:15-cv-02256-BJR Document 18-1 Filed 07/15/16 Page 1 of 4 have worked in my current role as Deputy Director of the Alliance since October 2013. In that position, ffiy roles and responsibilities include, but are not limited to, advocacy for and development of reef fish policy intended to build a stable, sustainable, and healthy reef fish fishery in the Gulf of Mexico. Prior to working for the Alliance, I worked for the Cape Cod Commercial Hook Fishermen's Association (now known as the Cape Cod Commercial Fishermen's Alliance) for eight and a half years during which time I managed two harvesting cooperatives of small boat commercial fishermen with groundfish allocations. Throughout my professional career, my duties have included quota management, reporting to NMFS, development of fishery management programs, and development and implementation of policies to improve and reform various fisheries. I have also been a member of multiple committees and panels that advise fishery management councils on effective fishery management programs. Due to my familiarity with fisheries and fishery management, my personal involvement with the matters discussed herein, and my dealings with the Alliance and commercial and recreational fishermen in the Gulf of Mexico red snapper fishery, I have personal knowledge of the matters stated in this declaration. 3. The Alliance is a not-for-profit trade association composed of individual commercial fishermen, commercial fishing businesses, and concerned citizens that was founded in 2008. Its mission is uniff and strengthen the reef fish industy, achieve sustainability, and accountability through the use of individual fishing quotas to manage the catch. As a strategic non-profit group of proactive fishermen, the Alliance represents the interests of commercial fishermen and other stakeholders that want to bring sustainability and accountability to fisheries management. The Alliance acts on its belief that conservation and stewardship protect fish populations and fisherrren's businesses. It is our goal to promote Case 1:15-cv-02256-BJR Document 18-1 Filed 07/15/16 Page 2 of 4 conservation, accountability, and long-term economic stability of the stock. Our conservation efforts include partnerships with other ecologically-minded organizations that allow.members of the Alliance to participate in scientific research and employ cutting edge gear, data technologies and sustainable fishing practices to reduce environmentally harmful bycatch. The Alliance also promotes the testing and implementation of advanced electronic logbook and monitoring technology intended to promote cooperative fisheries research between commercial fishermen and the National Marine Fisheries Service ("NMFS";. 4. The Gulf of Mexico Fishery Management Council ("Gulf Council') is responsible for developing measures to manage reef fish species in the Gulf of Mexico pursuant to requirements of the Magnuson-Stevens Fishery Conservation and Management Act ("MSA"). Among other fish, reef fish species include red snapper. The Gulf of Mexico red snapper fishery is managed through the Gulf Council's Reef Fish Fishery Management Plan ("FMP"). 5. The commercial sector of the red snapper fishery operates under an individual fishing quota (*IFQ") program that was implementedn20}T. Members of the Alliance have received IFQ allocations authorizing them to commercially frsh for and sell red snapper from the Gulf of Mexico. The IFQ progftlm aligned economic and conservation interests and has been successful in solving many of the problems that previously existed in the commercial fishery. Strict monitoring requirements are in place to ensure that the commercial sector's total annual catch limit is adhered to. The commercial sector has not exceeded its annual catch limit since the IFQ program took effect. 6. Several members of the Alliance are also long-time recreational fishermen of red snapper (both on a for-hire basis and for their own recreational enjoyment), and so have Case 1:15-cv-02256-BJR Document 18-1 Filed 07/15/16 Page 3 of 4 recreational and aesthetic interests in the red snapper stock that extend beyond their commercial fishing operations. 7. Members of the Alliance are harmed by Amendment2S. It harms their business interests by reallocating approximately 5% of the commercial sector's quota to the recreational sector, reducing the value of their individual IFQ shares. This reallocation also undermines confidence in the IFQ program, disrupts markets for IFQ shares and for fish caught under the IFQ progrzxn, disrupts business planning, and reduces the amount of quota available to cover bycatch of red snapper that occurs in other commercial fisheries in the Gulf of Mexico. Amendment 28 harms members' business and recreational interests alike because it is projected to decrease the spawning stock of red snapper in the Eastern Gulf of Mexico, diminishing the health and availability of the stock as a resource to both sectors. Finally, the reallocation under Amendment 28 rewards the recreational sector for overharvesting, encouraging that sector to persist under a failed fishery management system. Amendment 28 incentivizes overharvesting by the recreational sector, which creates risks to rebuilding the red snapper stock. Alliance members sustain direct harm to their commercial, recreational, and aesthetic interests in the stock as a result of these environmental harms. I declare under penalty of perjury pursuant to 28 U.S.C. $ 1746 that the foregoing is true and correct. Executed on July 14,2016. 4 Eric Brazer, J Fish Shareholders' Alliance Case 1:15-cv-02256-BJR Document 18-1 Filed 07/15/16 Page 4 of 4 Case No. 1:15-cv-02256-BJR DECLARATION OF KEITH GUINDON - 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 K&L GATES LLP 1601 K STREET, N.W WASHINGTON, DC 20006 TELEPHONE: (202) 778-9000 FACSIMILE: (202) 778-9100 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA KEITH GUINDON, et al., Plaintiffs, v. PENNY SUE PRITZKER, in her official capacity as Secretary of the United States Department of Commerce; NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION; and NATIONAL MARINE FISHERIES SERVICE, Defendants. No. 1:15-cv-02256-BJR DECLARATION OF KEITH GUINDON KEITH GUINDON declares under the penalty of perjury the following: 1. My name is Keith Guindon. I am a commercial and recreational red snapper fisherman, and I live in Santa Fe, Texas near the Gulf of Mexico. I have personal knowledge of the facts stated herein, and I could and would competently testify thereto if called as a witness. 2. I hold limited access commercial reef fish permits, and individual fishing quota (“IFQ”) shares for Gulf of Mexico red snapper, issued under the Reef Fish Fishery Management Plan prepared by the Gulf of Mexico Fishery Management Council (“Gulf Case 1:15-cv-02256-BJR Document 18-2 Filed 07/15/16 Page 1 of 4 Case No. 1:15-cv-02256-BJR DECLARATION OF KEITH GUINDON - 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 K&L GATES LLP 1601 K STREET, N.W WASHINGTON, DC 20006 TELEPHONE: (202) 778-9000 FACSIMILE: (202) 778-9100 Council”) as approved by the National Marine Fisheries Service (“NMFS”) pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”), 16 U.S.C. §§ 1801- 1884, and its implementing regulations. These permits and IFQ shares authorize me to catch and sell designated amounts of red snapper from the Gulf of Mexico each year. 3. Through my business entities I own several fishing vessels including the Falcon, Blackjack IV, Cap’n Willie, Pisces, Bustin’ Loose, Avenger, Voyager, and Kathleen M, which I use to catch red snapper and other species from the Gulf of Mexico. I am also the owner and president of Katie’s Seafood Market, LLC (“Katie’s Seafood”), a commercial fish and seafood business organized under the laws of the State of Texas and located on the Gulf of Mexico in Galveston, Texas. Katie’s Seafood is the subject of a television show that airs on the National Geographic Channel called “Big Fish Texas.” As part of my business operations at Katie’s Seafood, I buy, process, market and sell Gulf of Mexico red snapper. My business operations are thus heavily dependent upon the continued health of the red snapper stock, a stable fishery, and continuing access to red snapper fishing quota. 4. I am a founding member of and Executive Director of the Gulf of Mexico Reef Fish Shareholders’ Alliance (“Alliance”), a nonprofit corporation organized under the laws of the State of Texas, which represents commercial fishermen in the Gulf of Mexico and is located in Galveston, Texas. The mission of the Alliance is to unify and strengthen the reef fish industry, achieve sustainability, and accountability through the use of individual fishing quotas to manage the catch. The Alliance’s mission is based on its belief that strong conservation and stewardship measures protect fish and fishermen alike. 5. I also regularly engage in recreational fishing for red snapper in the Gulf of Mexico. I have my own private boat from which I engage in recreational fishing. One episode of Big Fish Texas showed me recreational fishing in the Gulf of Mexico on my boat with my son and father in 2015. I fish in federal waters for red snapper when the season is open, and I often Case 1:15-cv-02256-BJR Document 18-2 Filed 07/15/16 Page 2 of 4 Case No. 1:15-cv-02256-BJR DECLARATION OF KEITH GUINDON - 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 K&L GATES LLP 1601 K STREET, N.W WASHINGTON, DC 20006 TELEPHONE: (202) 778-9000 FACSIMILE: (202) 778-9100 fish with my family. I fished recreationally for red snapper in 2016 and I expect to do so in in future years as well. I enjoy recreationally fishing for, catching, and observing red snapper in the Gulf of Mexico. NMFS’s failure to adequately manage the recreational red snapper fishery in the Gulf of Mexico harms my recreational and aesthetic interests in red snapper, as well as the stock itself. In particular, the way NMFS has managed the recreational fishery, including in 2015-2016, has led to short fishing seasons in federal waters that restrict my recreational access to the fishery. Reallocating quota from the commercial sector to the recreational sector does not solve the problems facing the recreational sector. We learn this lesson year after year. The recreational sector quota has more than doubled since 2008, but the recreational sector season length gets shorter every year. I believe that there are alternative methods of managing the recreational sector that could extend recreational fishing seasons, provide me with additional opportunities to fish for red snapper with my family, and help the red snapper stock rebuild more quickly by ensuring compliance with catch limits and reducing discards. Reallocating quota from the commercial sector to the recreational sector wastes time and effort that could be devoted to pursuing real solutions for the recreational sector, in addition to unfairly harming the commercial sector. 6. My commercial, recreational, and aesthetic interests in the red snapper fishery are harmed by NMFS’s reallocation of red snapper quota to the recreational sector under Amendment 28. First, Amendment 28 reallocated approximately 5% of the commercial sector’s quota to the recreational sector. Thus, Amendment 28 reduced the value of IFQ shares that I own by approximately 5%. Second, Amendment 28 also caused instability in the fishery by causing uncertainty, reducing supply of both quota and fish, and disrupting supply chains, markets to which I deliver product, and my business planning. Third, Amendment 28 is projected to decrease the spawning stock of red snapper in the Eastern Gulf of Mexico, thus depleting the resource in that region. Fourth, the reallocation under Amendment 28 rewards Case 1:15-cv-02256-BJR Document 18-2 Filed 07/15/16 Page 3 of 4 Case No. 1:15-cv-02256-BJR DECLARATION OF KEITH GUINDON - 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 K&L GATES LLP 1601 K STREET, N.W WASHINGTON, DC 20006 TELEPHONE: (202) 778-9000 FACSIMILE: (202) 778-9100 the recreational sector for prior overharvesting, and thereby encourages the recreational sector to overharvest in the future. Because it will deplete the spawning stock in the Eastern Gulf of Mexico and encourage overharvesting by the recreational sector, Amendment 28 increases the risk that the red snapper stock will again become subject to overfishing, that the current rebuilding plan will not be achieved, and that the stock will become depleted across the entire Gulf of Mexico in addition to the Eastern Gulf. Amendment 28 therefore jeopardizes the long-term health and stability of the red snapper fishery upon which my business and recreational interests depend and thus negatively impacts my interests as a recreational and commercial fisherman in the Gulf of Mexico. I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true and correct. EXECUTED on July 14, 2016. By: Keith Guindon Case 1:15-cv-02256-BJR Document 18-2 Filed 07/15/16 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA KEITH GUINDON, et al., Plaintiffs, v. PENNY SUE PRITZKER, in her official capacity as Secretary of the United States Department of Commerce; NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION; NATIONAL MARINE FISHERIES SERVICE, Defendants. Case No. 1:15-cv-02256-BJR ORAL ARGUMENT REQUESTED EXPEDITED PURSUANT TO 16 U.S.C. § 1855(f)(4) Hon. Barbara J. Rothstein [PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Having fully considered Plaintiffs’ Motion for Summary Judgment, Defendants’ Cross-Motion for Summary Judgment, the papers filed by the parties, and the argument of counsel, the Court finds that there is no genuine issue of material fact in this action and that the Plaintiffs are entitled to summary judgment as a matter of law. IT IS HEREBY ORDERED that, 1. The Plaintiffs’ Motion for Summary Judgment is GRANTED; 2. The Defendants’ Cross-Motion for Summary Judgment is DENIED; 3. Amendment 28 to the Fishery Management Plan for the Reef Fish Resources in the Gulf of Mexico (“Amendment 28”), the Final Rule implementing Amendment 28 (81 Fed. Reg. 25576 (April 28, 2016)), and the regulations promulgated by the Final Rule are hereby VACATED. Case 1:15-cv-02256-BJR Document 18-3 Filed 07/15/16 Page 1 of 2 2 DATED: ___________________, 2016. The Honorable Barbara J. Rothstein Case 1:15-cv-02256-BJR Document 18-3 Filed 07/15/16 Page 2 of 2