Oceana, Inc. v. Pritzker et alMOTION for Summary JudgmentD.D.C.January 17, 2017IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA OCEANA, INC. Plaintiff, v. PENNY PRITZKER, in her official capacity as Secretary of the United States Department of Commerce, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) No. 1:15-cv-01220-ESH MOTION FOR SUMMARY JUDGMENT Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 1 of 45 i TABLE OF CONTENTS Page I. Procedural Background ........................................................................................................2 II. Standard of Review ..............................................................................................................9 III. Oceana Has Standing to Challenge the NFMS 2015 Final Rule and 2015 SBRM Omnibus Amendment. .......................................................................................................10 IV. Argument ........................................................................................................................... 11 A. The Fisheries Service Continues to Disregard its Obligations under Federal Law and the Directives of this Court and the D.C. Circuit ....................... 11 1. The Magnuson Stevens Act Imposes Nondiscretionary Procedural and Substantive Obligations on the Fisheries Service. .............................. 11 2. The 2015 Final Rule and 2015 SBRM Omnibus Amendment Failed to Sufficiently Establish an SBRM Under the Magnuson- Stevens Act.................................................................................................12 3. The Agency Irrationally Failed to Take a Fresh Look at Issues It Examined in 2008, Even Though Oceana Presented New Evidence and Arguments. ..........................................................................................17 a) The Fisheries Service Failed to Properly Consider Supplemental Electronic Video Monitoring as an Alternative to the Status Quo. ........................................................19 b) The 2015 SBRM Omnibus Amendment Fails to Assess All Bycatch as Required by the Magnuson-Stevens Act. ....................22 c) The 2015 SBRM Omnibus Amendment Fails to Consider the Impact of Observer Bias. .........................................................25 4. The Agency Arbitrarily Chose the SBRM Performance Standard. ............26 B. The National Environmental Protection Act: The Agency Failed to Take a “Hard Look” at the Impacts of the SBRM on the Fishery. ....................................27 1. The Agency Was Required to Analyze the Indirect and Cumulative Impacts on the Fishery. ..............................................................................28 2. The Agency’s Failed to Take a “Hard Look” at the SBRM’s Indirect and Cumulative Impact.................................................................30 Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 2 of 45 ii a) The Agency’s Characterization of the SBRM’s Effects as Administrative and Speculative is Contrary to the Record ............31 3. The Agency’s Attempt to Characterize the Effects of the SRBM as Administrative is Contrary to Law ............................................................33 4. The SBRM Alternatives Analysis Relies on Outdated Assumptions and Data .....................................................................................................36 Conclusion .....................................................................................................................................38 Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 3 of 45 iii TABLE OF AUTHORITIES Federal Cases ....................................................................................................................... page(s) Action on Smoking & Health v. Civ. Aeronautics Bd., 713 F.2d 795 (D.C. Cir. 1983) .................................................................................................17 Appalachian Power Co. v. EPA, 251 F.3d 1026. (D.C. Cir. 2001) ..............................................................................................18 Auer v. Robbins, 519 U.S. 452 (1997) .................................................................................................................10 Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. Or. 1998) ...........................................................................................29 Cape Cod Hosp. v. Sebelius, 630 F.3d 203 (D.C. Cir. 2011) .................................................................................................19 Chevron, USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) .................................................................................................................22 Christensen v. Harris Cty., 529 U.S. 576 (2000) .................................................................................................................10 Coal. on Sensible Transp. v. Dole, 826 F.2d 60 (D.C. Cir. 1987) ...................................................................................................30 Competitive Enter. Inst. v. Nat’l Highway Traffic Safety Admin., 901 F.2d 107 (D.C. Cir. 1990) .................................................................................................10 Conservation Law Found. v. Evans, 209 F. Supp. 2d 1 (D.D.C. 2001) ...........................................................................................3, 4 Eagle Broad. Grp., Ltd. v. FCC, 563 F.3d 543 (D.C. Cir. 2009) ...........................................................................................22, 23 Envtl. Def. v. Leavitt, 329 F. Supp. 2d 55 (D.D.C. Cir. 2004) ....................................................................................17 Ethyl Corp. v. EPA, 51 F.3d 1053 (D.C. Cir. 1995) .................................................................................................23 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) .................................................................................................................10 Grand Canyon Trust v. FAA, 290 F.3d 339 (D.C. Cir. 2002) ...........................................................................................29, 34 Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 4 of 45 iv Halverson v. Slater, 129 F.3d 180 (D.C. Cir. 1997) .................................................................................................23 *La. Fed. Land Bank Ass’n, FCLA v. Farm Credit Admin., 336 F.3d 1075 (D.C. Cir. 2003) .........................................................................................21, 26 Lead Indus. Assoc., Inc. v. EPA, 647 F.2d 1130 (D.C. Cir. 1980) ...............................................................................................10 Lilliputian Sys., Inc. v. Pipeline & Hazardous Materials Safety Admin., 741 F.3d 1309 (D.C. Cir. 2014) ...............................................................................................18 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .....................................................................................................................9 Nat’l Parks Conservation Ass’n v. Jewell, No. 12-1690 (RWR), 2013 WL 4616972 (D.D.C. Aug. 30, 2013) ...........................................9 *Oceana, Inc. v. Locke, 670 F. 3d 1238 (D.C. Cir. 2011) ...................................................................................... passim Oceana, Inc. v. Locke, 725 F. Supp. 2d 46 (2010) .........................................................................................................5 Oceana, Inc. v. Locke, No. 08-318, 2011 U.S. Dist. LEXIS 147125 (D.D.C., Sept. 15, 2011) .....................................6 *Oceana v. Evans (Oceana I), No. 04-0811, 2005 WL 555416 (D.D.C. Mar. 9, 2005) .................................................. passim *Oceana v. Evans (Oceana II), 384 F. Supp. 2d 203 (D.D.C. 2005) .......................................................................................4, 5 Sierra Club v. Peterson, 717 F.2d (D.C. Cir. 1983) ........................................................................................................29 Solite Corp. v. EPA, 952 F.2d 473 (D.C. Cir. 1991) .................................................................................................27 TOMAC v. Norton, 433 F.3d 852 (D.C. Cir. 2006) .................................................................................................29 Federal Statutes ................................................................................................................... page(s) 5 U.S.C. § 706(2)(A)........................................................................................................................9 5 U.S.C. § 706(2)(C) ........................................................................................................................9 16 U.S.C. §§ 706(2)(A)-(D) .............................................................................................................9 Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 5 of 45 v 16 U.S.C. § 1801(a)(2) .................................................................................................................2, 3 16 U.S.C. § 1802(2) ...................................................................................................................3, 23 16 U.S.C. § 1802 (12) ......................................................................................................................3 16 U.S.C. § 1851(a) .......................................................................................................................12 16 U.S.C. § 1852(h)(1), 1853(c) ....................................................................................................12 16 U.S.C. § 1853(a) .........................................................................................................................3 16 U.S.C. § 1853(a)(11) ......................................................................................................... passim 16 U.S.C. § 1854(a)(1), (b)(1) .......................................................................................................12 16 U.S.C. § 1854(a)(3) ...................................................................................................................12 16 U.S.C. § 1855(f)(1)(B) ................................................................................................................9 42 U.S.C. § 4332(2)(C) ..................................................................................................................28 Regulations .......................................................................................................................... page(s) 40 C.F.R. § 1501.4 .........................................................................................................................28 40 C.F.R. § 1508.7 .........................................................................................................................29 40 C.F.R. § 1508.27 .......................................................................................................................28 40 C.F.R. § 1508.27(b)(7) ..............................................................................................................29 50 C.F.R. § 600.350(b) ............................................................................................................32, 34 50 C.F.R. § 600.350(c)...................................................................................................................23 50 C.F.R. § 600.350(d)(1) ................................................................................................................3 40 CFR 1508.13 .............................................................................................................................27 80 Fed. Reg. at 37,187 .....................................................................................................................8 80 Fed. Reg. at 37,190 ...................................................................................................................33 80 Fed. Reg. at 37,191 ...................................................................................................................20 80 Fed. Reg. at 37,184 ...................................................................................................................15 Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 6 of 45 “An FMP that merely suggests a hoped-for result, as opposed to establishing a particular standardized methodology, does not measure up.” Oceana v. Evans (Oceana I), No. 04-0811, 2005 WL 555416, *38-39 (D.D.C. Mar. 9, 2005). And while measures to minimize bycatch are to be imposed only “to the extent practicable,” there is no such qualifying restriction on the creation of the SBRM itself. 16 U.S.C. § 1853(a)(11). This case presents yet another failed attempt by National Marine Fisheries Service (the “Fisheries Service”)1 to sidestep the statutory mandate of the Magnuson-Stevens Fishery Conservation and Management Act (“Magnuson- Stevens Act”), 16 U.S.C. § 1801, et. al., to establish in its Fisheries Management Plans (“FMPs”) a mandatory “standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery.” 16 U.S.C. § 1853(a)(11). Despite the express requirements in the statute, multiple directives from the District Court and, most recently, an order to vacate and remand the Fisheries Service’s prior Standardized Bycatch Reporting Methodology (“SBRM”), the Fisheries Service’s new methodology basically repackages the vacated methodology with a few cosmetic changes that fail to remedy the defects identified by the Court in Oceana, Inc. v. Locke (“Oceana III”), 670 F. 3d 1238 (D.C. Cir. 2011), while disregarding entirely the comments of Oceana and other groups identifying critical flaws in the methodology – many of which have only worsened since 2008. In short, the Fisheries Service’s latest effort at a SBRM fails on both procedural and substantive grounds, by: • Failing to incorporate a funding mechanism that will provide the resources necessary to meet the SBRM’s own minimum standards of precision and, quite openly, reserving to 1 The Fisheries Service is an office of the National Oceanic and Atmospheric Administration within the Department of Commerce. Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 7 of 45 2 itself the discretion as to whether and when to allocate the full funding needed to carry out Congress’ mandate; • Arbitrarily limiting the scope of its review and revision of the vacated 2008 SBRM Rule and Supporting Amendment, ignoring significant changes in Fisheries Service policy and regulations, ignoring new developments in fisheries technology and industry practice; and ignoring substantive comments provided by Oceana and other commenters on a wide range of issues; and • Relying on a Finding of No Significant Impact and Environmental Assessment that disregard and dismiss the substantive impact of the SBRM program as a whole; fails to consider new circumstances from the past decade; and summarily rejects alternatives previously considered during the prior SBRM process. For these reasons, the 2015 Final Rule fails to meet the statutory requirements of the Magnuson-Stevens Act and violates both the Administrative Procedure Act (“APA”) and the National Environmental Protection Act (“NEPA”). As such the Final Rule must once again be vacated and the Agency directed to commence rulemaking in conformance with the statutes. I. PROCEDURAL BACKGROUND Congress enacted the Magnuson-Stevens Act as a comprehensive system for the “conservation and management” of domestic marine fisheries. 16 U.S.C. § 1801(a)(2). To accomplish this goal, the Magnuson-Stevens Act establishes eight regional fishery management councils (“Councils”) that are charged with preparing FMPs designed to protect, conserve, and manage fisheries within each Council’s respective jurisdiction. The thirteen federal fisheries in the Northeast United States are subject to the jurisdiction of two Councils—the New England Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 8 of 45 3 Fishery Management Council (“NEFMC”) and the Mid-Atlantic Fishery Management Council (“MAFMC”) (together, the “Northeast Councils”). Id. § 1852(a)(1)(A)–(B). By 1996, Congress had determined that “[c]ertain stocks of fish have declined to the point where their survival is threatened, and other stocks of fish have been so substantially reduced in number that they could become similarly threatened.” 110 Stat. 3559, Pub. L. No. 104-297 (Oct. 11, 1996), codified at 16 U.S.C. § 1801(a)(2). Congress responded by enacting the 1996 Sustainable Fisheries Act, 16 U.S.C. § 1853(a)(11); Pub. L. No. 104-297, codified at 16 U.S.C. § 1853(a), which amended the Magnuson-Stevens Act to mandate that each FMP “establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery.”2 16 U.S.C. § 1853(a)(11). As explained by the statute’s principal sponsor, Senator Ted Stevens, the Fisheries Service was tasked with the indispensable role of helping to “bring a stop to this inexcusable amount of waste.” 142 Cong. Rec. 23697 (1996). Pursuant to this directive, in November 1999 and April 2000, the NEFMC promulgated amendments to its groundfish FMP,3 pointing to three bycatch reporting provisions as evidence of compliance with the new SBRM requirements: (1) the recording of all “regulatory discards” in Vessel Trip Reports, or logbooks; (2) the implementation of a limited program of bycatch observers on fishing boats that resulted in observer coverage on less than one percent of boats; and (3) participation in a voluntary cooperative statistics program. Conservation Law Found. v. Evans, 209 F. Supp. 2d 1, 13 n. 24 (D.D.C. 2001); see also 50 C.F.R. § 600.350(d)(1). On review, the District Court found these provisions insufficient to satisfy the Magnuson-Stevens 2 Congress defined "bycatch" to mean “fish which are harvested in a fishery, but which are not sold or kept for personal use, and includes economic discards and regulatory discards, [excluding] fish released alive under a recreational catch and release fishery management program.” Id. § 1802(2). The Act defined “fish” broadly to include “finfish, mollusks, crustaceans, and all other forms of marine animal and plant life other than marine mammals and birds.” 16 U.S.C. 1802 (12). 3 Groundfish include some of the highest value fish in the Northeast, including flounder, cod, hake, and haddock. Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 9 of 45 4 Act’s bycatch reporting provision and its implementing regulations, and entered a remedial order setting a minimum five percent observer coverage level, unless the Fisheries Service could show that a lower coverage level would suffice. See Evans, 209 F. Supp. 2d at 13. In December 2003, the NEFMC amended the New England Fishery Multispecies Fishery Management Plan (the “Multispecies Plan”), announcing its “inten[tion] to maintain its observer coverage in the groundfish fishery at a minimum level of 5 percent.” Oceana I, 2005 WL 555416, *38-39. AR 0000166. Oceana challenged the amended Multispecies Plan, and this Court concluded that the FMP failed to “establish” a standardized bycatch reporting methodology, because while it set forth a performance goal of 5% observer coverage, it left the actual level of observer coverage completely to the discretion of the agency. Id. at *42. AR0000174. This Court further concluded that “an FMP that merely suggests a hoped-for result, as opposed to establishing a particular standardized methodology, does not measure up to the statute's requirements.” Id. at *40 (alternation in original) (emphasis added) (internal quotation marks and citation omitted). AR 0000169. In addition, the Multispecies Plan “fail[ed] to respond to potentially important scientific evidence,” namely, the “Babcock study,” which recommended particular observer coverage levels to adequately sample common and rare bycatch events. Id. at *41, *43 (citation omitted). AR 0000173. In a parallel case that same year, this Court similarly found an amendment to the Atlantic Sea Scallop Fishery Management Plan unlawful because it too failed to “establish” a standardized bycatch reporting methodology, instead leaving the allocation of observers up to the Northeast Regional Administrator, who retained discretion to determine what level of coverage was “appropriate.” Oceana v. Evans (Oceana II), 384 F. Supp. 2d 203, 232 (D.D.C. 2005). This Court cautioned that “the statute requires a methodology, not a goal,” and that such methodology Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 10 of 45 5 “must at the very least provide decision makers and the public with a program of what actually will be done to improve bycatch reporting, and why these measures will be sufficient based on the best available science.” Id. at 234. The FMP in that case failed to meet this minimum standard because it improperly “linked the number of additional observers to a funding mechanism without considering whether this program would be adequate.” Id. at 232- 33 (emphasis added). In response to the remand orders in Oceana I and Oceana II, the Fisheries Service conducted a rulemaking through the Northeast Councils to establish a standardized bycatch reporting methodology for all thirteen Northeast federal fishery management plans, including the scallop and groundfish fisheries. AR 003952. (“2008 SBRM Rule”). The 2008 SBRM Rule implemented management measures contained in the Northeast Region SBRM Omnibus Amendment, a document originally approved by the Fisheries Service on behalf of the Secretary of Commerce on October 22, 2007 (“2008 SBRM Omnibus Amendment”). Oceana challenged the 2008 SBRM Rule on multiple grounds, and in 2010, this Court ruled for the Fisheries Service on all counts. Oceana, Inc. v. Locke, 725 F. Supp. 2d 46 (2010). On appeal, the D.C. Circuit reversed and directed this Court to vacate the 2008 SBRM Rule, holding that “the Fisheries Service did not ‘establish’ a standardized methodology under the Fisheries Act” and that “[a]t best the rule sets a benchmark from which the agency freely can and apparently does significantly depart in its annual allocation of observers.” AR 0000187. Having ordered the vacation of the 2008 SBRM Rule on other grounds, the D.C. Circuit deemed it unnecessary to reach Oceana’s separate challenge under NEPA. 670 F.3d at 1243 (“Because of our disposition on these grounds, we have no need to reach appellants’ NEPA claims.” (citing NRDC v. Daley, 209 F.3d 747, 749 (D.C. Cir. 2000)). At no point did the D.C. Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 11 of 45 6 Circuit affirm the lower Court’s finding on the NEPA challenge. In accordance with the D.C. Circuit’s mandate, this Court vacated and remanded the rule to the Fisheries Service, Oceana, Inc. v. Locke, No. 08-318, 2011 U.S. Dist. LEXIS 147125, *1-2 (D.D.C., Sept. 15, 2011). Following remand, the Fisheries Service coordinated with the Northeast Councils to convene a new Fishery Management Action Team (“FMAT”)4 charged with preparing a revised SBRM amendment and rule. AR 0000276 (SBRM Fishery Management Action Team, Meeting Summary (March 12, 2012)). In defining the scope of that charge, the Fisheries Service convinced the Northeast Councils to recommend limiting the scope of any revisions to a narrow subset of the issues raised by commenters to the proposed 2008 SBRM Omnibus Amendment. Id. Consistent with this advice, the post-remand draft SBRM Amendment is, for the most part, a copy-and-paste duplication of the draft 2008 SBRM Omnibus Amendment previously remanded by the Circuit Court. On December 15, 2014, the Fisheries Service published the NEFMC’s Omnibus Amendment to the Fishery Management Plans of the Northeastern U.S. to establish a Standardized Bycatch Reporting Methodology (“Draft 2014 SBRM Amendment”). AR 0004195. The 2015 SBRM Amendment was comprised of seven key elements, addressing: • Element 1 (Data Collection): How data and information on discards are collected and obtained; • Element 2 (Data Analysis and Use): How collected data are analyzed and used to determine the level of bycatch within the different parts of the fishery and allocate at-sea observers; • Element 3 (Performance Standard): The level of precision required with respect to bycatch estimates under the SBRM in order to support reliable bycatch estimates; 4 This FMAT comprised staff from the Northeast Councils and the Atlantic States Marine Fisheries Commission, and NOAA Fisheries’ Greater Atlantic Regional Fisheries Office and Northeast Fisheries Science Center. See generally http://www.nefsc.noaa.gov/femad/fsb/SBRM/. Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 12 of 45 7 • Element 4 (Reporting Process): How periodic reports on discards and SBRM efficacy are reported to the Councils; • Element 5 (SBRM Revision Process): How the Councils can make changes to the SBRM; • Element 6 (Budget Allocation and treatment of Shortfalls): How the Fishery Service funds the necessary level of at-sea observers across the fishery in order to meet minimum standards of reliability in bycatch estimation, and, the process established to allocate observers if the total available funding falls short of the at-sea observer coverage required to meet the SBRM’s coefficient of variation standard; and • Element 7 (Use of Industry-Funded Observer Programs and Set Asides): The Fishery Service’s policy on voluntary implementation of industry-funded observer measures and set-aside programs). AR 0006682-0006739 (2015 SBRM Omnibus Amendment at 212-269). On January 21, 2015, the Fisheries Service requested comments on proposed regulations to implement the draft 2015 SBRM Omnibus Amendment. AR 0004862. Oceana submitted timely comments to the regulatory dockets for both the 2015 SBRM Amendment and the 2015 Proposed Rule, reiterating previously identified fatal flaws in the proposed SBRM Amendment, the implementing rule, and regulatory development process. AR 0004885-0006403. Oceana identified longstanding concerns with several aspects of the proposed SBRM Amendment, none of which were addressed by the Agency prior to adopting the 2015 SBRM Omnibus Amendment. Additionally, Oceana identified extensive procedural flaws with the 2015 SBRM Omnibus Amendment. Id. The Fisheries Service also received timely comments from at least 10 other commenters, many of whom raised unresolved flaws in the SBRM Omnibus Amendment’s methodology and development process, or changes in factual circumstances since the development of the 2007 SBRM. AR 0004882, AR 0006404, AR 0006424, AR 0006415. Notwithstanding the substantive nature of these comments, there is no evidence in the record that the Fisheries Service conducted a necessary and appropriate review of the points raised to consider aspects of the SBRM other than budgeting. Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 13 of 45 8 On March 10, 2015, the Administrator for the Fisheries Service Greater Atlantic Region signed the Finding of No Significant Impact for the SBRM, concluding that no Environmental Impact Statement was necessary. AR 0006438-0007511. On March 13, 2015, the Fisheries Service approved, on behalf of NOAA, a revised draft of the Northeast Region Standardized Bycatch Reporting Methodology Omnibus Amendment. AR 0007514. On June 30, 2015, the Fisheries Service promulgated a final rule establishing regulations to implement the 2015 SBRM Omnibus Amendment. Id. at 37182. AR 0007531. Notably despite the passage of six years and the significant changes in the fishing industry since the development of the vacated 2008 SBRM Omnibus Amendment, the Fisheries Service limited the scope of its review and revisions to the legal deficiencies identified by the Court of Appeals and some minor revisions suggested in a subsequent 3-year review report. Citing its own, self- imposed decision to limit the primary scope of this action to specifically focus on the Court's remand, the Fisheries Service deemed any alternatives previously considered but rejected in the 2008 amendment to be similarly considered and rejected for this action without any meaningful review of facts or comments to the contrary. AR 0007356 (80 Fed. Reg. at 37,187). On July 29, 2015, Oceana filed a Complaint for Declaratory and Injunctive Relief with this Court, seeking a declaratory judgment that the 2015 SBRM Omnibus Amendment and 2015 Final Rule violated the Magnuson-Stevens Act and the APA and that the Environmental Assessment (“EA”) and Finding of No Significant Impact (“FONSI”) violated NEPA and the APA. The Complaint further requested that the 2015 Final Rule be vacated and that the Fisheries Service be directed to promulgate a rule implementing an SBRM in accordance with the Magnuson-Stevens Act. Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 14 of 45 9 On November 24, 2015, Defendants filed an answer and Administrative Record, Dkts. 7, 8, followed by a supplementary Administrative Record on April 15, 2016. Dkt. 12. Following an unsuccessful challenge by Oceana to the completeness of the Administrative Record, Dkts. 13, 14, 15, 17, 18, 19, 20, the Parties agreed to a briefing schedule on this matter, Dkt. 21, which this Court granted. Dkt. 22. II. STANDARD OF REVIEW The APA provides the appropriate standard of review of final agency decisions under the Magnuson-Stevens Act. The APA requires courts to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” or “without observance of procedure required by law.” 5 U.S.C. §§ 706(2)(A), (C), (D).; see also 16 U.S.C. § 1855(f)(1)(B) (reviewing court may set aside challenged regulation or action based only on grounds specified in 16 U.S.C. § 706(2)(A)- (D)). And in cases involving review of final agency action under the APA, summary judgment “serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.” Nat’l Parks Conservation Ass’n v. Jewell, No. 12-1690 (RWR), 2013 WL 4616972, at *2 (D.D.C. Aug. 30, 2013). Agency action is arbitrary or capricious if: “(i) its explanation runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise; (ii) the agency entirely failed to consider an important aspect of the problem or issue; (iii) the agency relied on factors which Congress has not intended it to consider; or (iv) the decision otherwise constitutes a clear error of judgment.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 15 of 45 10 Although the arbitrary and capricious standard is deferential, the Court does “not serve as a mere rubber stamp for agency decisions.” Lead Indus. Assoc., Inc. v. EPA, 647 F.2d 1130, 1145 (D.C. Cir. 1980). Nor must the Court defer to the agency’s interpretations of governing statutes or regulations where those interpretations are plainly erroneous or inconsistent with the statutes or regulations. See Auer v. Robbins, 519 U.S. 452, 461 (1997); Christensen v. Harris Cty., 529 U.S. 576, 588 (2000). III. OCEANA HAS STANDING TO CHALLENGE THE NFMS 2015 FINAL RULE AND 2015 SBRM OMNIBUS AMENDMENT. At the outset, Oceana notes that it has standing to assert its claims against the Fisheries Service under the Magnuson-Stevens Act and NEPA. The Declaration of Gilbert Brogan, ¶¶ 11- 12 (attached as Pl. Ex. A), establishes Oceana’s standing to protect its informational interests as an environmental organization in the collection of bycatch data under the 2015 SBRM Amendment. “Allegations of injury to an organization’s ability to disseminate information may be deemed sufficiently particular for standing purposes where that information is essential to the injured organization’s activities, and where the lack of information will render those activities infeasible.” Competitive Enter. Inst. v. Nat’l Highway Traffic Safety Admin., 901 F.2d 107, 122 (D.C. Cir. 1990). Furthermore, Oceana has standing to assert its members’ claims. The Declaration of Mathew Rigney, ¶¶ 9-12 (attached as Pl. Ex. B), demonstrates that the Fisheries Service’s failure to adequately report and assess bycatch is causing both Oceana and its members injury in fact, that there is a causal connection between this particularized injury and the Fisheries Service’s actions, and that the particular injury will be redressed by a favorable decision in this case. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180–85 (2000). Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 16 of 45 11 IV. ARGUMENT This case presents the Fisheries Service’s second failed attempt to sidestep the Congressional mandate for an SBRM for the 13 New England fisheries. And despite the express requirements in the Magnuson Stevens Act, the National Environmental Policy Act, the Administrative Procedure Act, and multiple directives from both this Court and the D.C. Circuit, the 2015 SBRM Omnibus Amendment basically repackages the previously vacated 2008 Final Rule and accompanying SBRM Omnibus Amendment with a few cosmetic changes that fail to remedy the defects identified by the D.C. Circuit in Oceana III. A. The Fisheries Service Continues to Disregard its Obligations under Federal Law and the Directives of this Court and the D.C. Circuit 1. The Magnuson Stevens Act Imposes Nondiscretionary Procedural and Substantive Obligations on the Fisheries Service. The D.C. Circuit has explicitly stated that the Magnuson-Stevens Act imposes an unqualified mandate on the Fisheries Service to establish a standardized bycatch reporting methodology regardless of any exigent budgetary circumstances. The qualifier ‘to the extent practicable’ does not appear in or modify the first clause of [Section 303(a)(11)], where the [Fisheries Service] is directed to establish a standardized methodology. When a statute commands an agency without qualification to carry out a particular program in a particular way, the agency's duty is clear; if it believes the statute untoward in some respect, then it should take its concerns to Congress, for in the meantime it must obey the statute as written. Oceana III, 670 F.3d at 1243 (third and fourth alterations in original) (internal citations and quotations omitted). Thus, the Fisheries Service cannot evade its obligations under Congress’ clear statutory directive. Likewise, each Council must follow a statutorily prescribed process when adopting FMPs and relevant amendments. Upon developing an FMP or FMP amendment, each Council must Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 17 of 45 12 submit the same to the Secretary of Commerce for approval, along with any proposed regulations the Council “deems necessary or appropriate.” 16 U.S.C. § 1852(h)(1), 1853(c). Acting through the Fisheries Service, the Secretary of Commerce must evaluate each Council’s plan for consistency with the national standards set forth in 16 U.S.C. § 1851(a), the other provisions of the Magnuson-Stevens Act, and any other applicable law. 16 U.S.C. § 1854(a)(3). Importantly, both the FMP or amendment and any necessary implementing regulations are subject to public review and comment, each with its own comment period proceeding on concurrent or consecutive tracks. 16 U.S.C. § 1854(a)(1), (b)(1). Upon due consideration, the Fisheries Service may disapprove the FMP or amendment in whole or in part only to the extent it is inconsistent with applicable law, and may not substantively modify plans submitted by the Council. 16 U.S.C. § 1854(a)(3). If approved, the FMP or amendment is then implemented and enforced by the Fisheries Service. Id. § 1854(a), (b). If the relevant Council fails to act or where the Fisheries Service disapproves of a FMP or FMP amendment prepared by a Council and the Council fails to submit an adequate revised plan or amendment, the Fisheries Service is authorized to prepare an FMP or FMP amendments. Id. at § 1854(c). Regulations promulgated by the Fisheries Service under the Magnuson-Stevens Act are subject to judicial review under the Administrative Procedure Act. 5 U.S.C. § 701 et seq. 2. The 2015 Final Rule and 2015 SBRM Omnibus Amendment Failed to Sufficiently Establish an SBRM Under the Magnuson-Stevens Act. The D.C. Circuit rejected the Fisheries Service’s first attempt to “establish a standardized reporting methodology to assess the amount and type of bycatch occurring in all thirteen Northeast federal fisheries,” ruling that the Fisheries Service had set an “impermissibly vague trigger” using an “optional” standard of precision that left compliance with the Magnuson- Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 18 of 45 13 Stevens Act to the Agency’s budgetary discretion. Oceana III, 670 F.3d at 1242 (internal quotation marks and citations omitted). When the Fisheries Service issued its 2008 SBRM Omnibus Amendment and 2008 Final Rule, it provided little specificity as to how it would fund the implementation actions (allocation of observers, etc.) needed to meet the minimum CV standard5 that its own legal counsel deemed necessary to comply with the directives in Oceana I and Oceana II.6 When questioned on the matter directly during the comment period, the Fisheries Service continued to dodge the question, stating that “the agency’s budget available to fund observer coverage is subject to change according to the appropriations authorized by Congress and the President” and that “[t]here may be years in which the available budget is insufficient to fully fund the observer coverage levels that result from the SBRM.” AR 0002857, AR 0003754. In such cases, the Fisheries Service explained, “the agency and the Councils will determine the appropriate prioritization of available observer coverage given the most pressing scientific and management needs.” AR 0002859. Citing the absence of any “criterion or formula” for determining whether available funding in a particular year would prevent full implementation of the standardized methodology, the D.C. Circuit ordered the rule be vacated and remanded, concluding that the Fisheries Service had failed to “establish” a standardized reporting methodology.” Oceana III, 670 F.3d 1242. “No reasonable interpretation of the statutory instruction to “establish a standardized 5 See AR 0006622 (2015 SBRM Omnibus Amendment at 152 n. 27) (“A ‘CV’ is a coefficient of variation and is a standard measure of precision, calculated as the ratio of the square root of the variance of the bycatch estimate (i.e., the standard error) to the bycatch estimate itself.”) 6 See AR 002581-002582 (“only the second alternative [(i.e., specifying a CV 30% for all relevant combinations of gear type and species or species group as a formal component of the SBRM)] would be consistent with the intent of the Court order in response to both [Oceana I and Oceana II] and meet the purpose of this amendment.”). Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 19 of 45 14 methodology”, the Court concluded, “would allow the agency to reserve to itself effectively complete discretion to trigger an exemption.” Id. The Fisheries Service’s latest attempt to issue an SBRM fails to remedy the flaws expressly identified by the D.C. Circuit and disregards several other fatal deficiencies under the Magnuson-Stevens Act. Specifically, the 2015 Final Rule acknowledges that “[i]f additional funds for observer sea days were available from another funding source, not listed here, those observer sea days could be allocated according to other priorities and would not necessarily be allocated according to the SBRM process.” AR 0007058 (emphasis added). However, only an adequate SBRM budget can ensure the minimum levels of precision for bycatch data collection and reporting – something the 2015 Final Rule and SBRM Omnibus Amendment fail to provide. Specifically, the 2015 SBRM Omnibus Amendment identifies four dedicated (but insufficient) lines of funding for the SBRM. AR 0006713. But this change fails to remedy the SBRM’s underlying flaw—that the Fisheries Service has underfunded the program while exercising its discretion over the ultimate funding level of the SBRM, rather than complying with the Magnuson-Stevenson Act’s Congressional mandate to implement an SBRM without regard to the funding source. In its response to commenters to the 2015 SBRM Omnibus Amendment, the Fisheries Service continues to assert that it would be “premature” to establish a nondiscretionary method for fully funding the statutorily-mandated SBRM program, AR 0007058, and that it is entitled to reserve to its own discretion whether and when to allocate other sources of available discretionary funding to carry out a statutorily mandated activity. AR 0007058, 0006713. Such knowingly inadequate funding plainly violates the Fisheries Service statutory mandate. Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 20 of 45 15 The D.C. Circuit focused on this inadequate budgetary history in remanding the 2008 SBRM Amendment. AR 0000185-0000186. Nevertheless, the express language of the 2015 Final Rule itself acknowledges that “historically, the available funding has been insufficient to fully fund the SBRM to meet the performance standard.” AR 0007533 (80 Fed. Reg. at 37184). See also AR 0001865 (“It is expected that we will be allocating sea days via one of the alternatives. Based on the past, we should expect funding shortfalls.”); AR 0001872 (using 2012 as an example, “[w]ithin the agency-funded fleets and SBRM applicable funding, a funding shortfall of 15,044 days (18,301 – 3,257) . . . would have been expected. This shortfall would have triggered the SBRM prioritization process.”). The Fisheries Service’s own analyses confirm that the new SBRM Amendment’s observer allocation and prioritization methodology will not improve the chronic underfunding of the SBRM, or appropriately limit the Fisheries Service’s discretion. Indeed, the Fisheries Service itself projected that the SBRM Amendment process would fall short of the needed funds by 30 percent in 2015–2016, the first year operating under the newly formalized Amendment. See AR 0008178 (Fisheries Service, Standardized Bycatch Reporting Methodology Annual Discard Report with Observer Sea Day Allocation (2015)). Yet, in any year where the four appropriation lines fail to meet the budgetary needs of the SBRM, the Fisheries Service’s prioritization process does nothing to make up for the shortfall and instead spreads the insufficient resources around more thinly, based on a “non-discretionary formulaic processes for prioritizing how the available observer sea-days would be allocated to the various fishing modes.” AR 0007533 (80 Fed. Reg. at 37184). Contrary to the purportedly non-discretionary nature of the re-allocation process, the Fisheries Service could elect to use other sources of discretionary funding as well as industry Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 21 of 45 16 funding mechanisms that ensure that its statutorily-mandated standardized bycatch reporting methodology has the funding needed to meet minimum standards of precision: Not only do such alternative funding sources exist, but the Fisheries Service has itself acknowledged that it is capable of employing such resources, stating: “The Agency is not contending that it has no discretion in how to spend any other funding lines, or that there are no other funding lines that may be available to support other monitoring priorities in the Region. The Fisheries Service must maintain some flexibility to use appropriated funding to respond to appropriations changes and changes in conditions and priorities within the Region and across the country.” AR 0007536 (80 Fed. Reg. at 37, 187). This argument was soundly considered and rejected by the D.C. Circuit. Oceana III, 670 F.3d at 1243 (“When a statute commands an agency without qualification to carry out a particular program in a particular way, the agency's duty is clear; if it believes the statute untoward in some respect, then it should take its concerns to Congress, for in the meantime it must obey the statute as written.”). The revised SBRM remains arbitrary, capricious, and contrary to law because the Fisheries Service declined to allocate, or even consider, the resources needed to meet its own standard for minimum precision and performance. The D.C. Circuit summed up the problem with the Fisheries Service’s 2008 proffer of an “optional” SBRM standard reliant on the agency’s internal funding priorities: To Oceana’s argument that “key elements” of the methodology, including the standard of precision, are in fact “optional” because the agency may disregard them at will, the agency has responded, in effect, that the key elements and the methodology as a whole are binding upon it—except of course in the years when they are not. See, e.g., Govt. Br. at 26 (“The methodology does not change if funding is insufficient”). The agency appears to mean the methodology is “established” in some Platonic sense, serving as the model to which the agency will aspire, though it is never itself fully realized. (Ah, but a man's reach should exceed his grasp, or Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 22 of 45 17 what's a heaven for?) Here we must agree with Oceana: The “prioritization process” is the exception that proves this rule and shows it is not a rule at all. Oceana III, 670 F.3d at 1242 (emphasis added). The 2015 SBRM Omnibus Amendment failed to establish a standardized bycatch reporting methodology because it impermissibly provides the Fisheries Service with an “escape hatch” from its obligation to provide the funding needed to ensure compliance with the SBRM’s minimum precision standard, in the form of the artificially restrictive set of appropriations streams available to fund observer monitoring. The 2015 SBRM Omnibus Amendment abuses the Fisheries Service’s rulemaking discretion by selecting an overly narrow and historically insufficient set of appropriation funding streams to feed the SBRM process, effectively guaranteeing that future SBRM funding will fail to meet the CV precision goal without a decision by the Fisheries Service to exercise its budgetary discretion and allocate funding from other sources. 3. The Agency Irrationally Failed to Take a Fresh Look at Issues It Examined in 2008, Even Though Oceana Presented New Evidence and Arguments. The Agency failed to reexamine issues from 2008, even though the Court in Oceana III vacated the 2008 Final Rule and, accordingly the 2008 SBRM Omnibus Amendment must be remanded. See Oceana III, 670 F.3d at 1243 (“We remand this matter to [the district court] for the purpose of vacating the [2008 SBRM Omnibus] Amendment and remanding it to the agency for further proceedings consistent herewith.”). See also 2015 SBRM Omnibus Amendment at 214 (“The Court in [Oceana III] . . . vacated the entire [2007 SBRM Omnibus] amendment. Thus all elements of the SBRM process must be reconsidered and readopted by the Councils.”). “When a court vacates an agency’s rules, the vacatur restores the status quo before the invalid rule took effect and the agency must initiate another rulemaking proceeding if it would seek to Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 23 of 45 18 confront the problem anew.” Envtl. Def. v. Leavitt, 329 F. Supp. 2d 55, 64 (D.D.C. Cir. 2004) (internal citations and quotations omitted); see Action on Smoking & Health v. Civ. Aeronautics Bd., 713 F.2d 795, 797 (D.C. Cir. 1983) (“[t]o vacate, as the parties should well know, means to annul; to cancel or rescind; to declare, to make, or to render, void; to defeat; to deprive of force; to make of no authority or validity; to set aside. Thus, by vacating or rescinding the recessions proposed by ER-1245, the judgment of this court had the effect of reinstating the rules previously in force.”) (internal quotation marks and citations omitted). In short, in promulgating the 2015 Final Rule and accompanying 2015 SBRM Omnibus Amendment, the Agency was starting from scratch. Rather than begin anew, however, the Northeast Councils acquiesced to the Fisheries Service’s directive to make “the primary scope of this action to specifically focus on the Court’s remand,” AR 0007535 (80 Fed. Reg. at 37,186), and the Fisheries Service adopted a policy that “alternatives previously considered but rejected in the [2008 SBRM Omnibus Amendment] were deemed considered and rejected for this action.” Id. Fatally, the Fisheries Service declined to review much of the rationale underlying the 2008 SBRM Omnibus Amendment despite new data and commenter concerns. Importantly, when agency action is challenged by a commenter during the notice period, the agency must provide a complete analytic defense of its assumptions and methodology. See, e.g., Appalachian Power Co. v. EPA, 251 F.3d 1026, 1035. (D.C. Cir. 2001) (“The EPA has undoubted power to use predictive models … but it must explain the assumptions and methodology used in preparing the model and provide a complete analytic defense should the model be challenged.”) (citations omitted). Courts must view a federal agency’s failure to respond to such challenges as “demonstrat[ing] that the agency’s decision was not based on a consideration of the relevant factors.” Lilliputian Sys., Inc. v. Pipeline & Hazardous Materials Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 24 of 45 19 Safety Admin., 741 F.3d 1309, 1313 (D.C. Cir. 2014) (internal quotation marks and citations omitted). Indeed, the “requirement that agency action not be arbitrary or capricious includes a requirement that the agency . . . respond to relevant and significant public comments.” Cape Cod Hosp. v. Sebelius, 630 F.3d 203, 211 (D.C. Cir. 2011) (citation omitted). a) The Fisheries Service Failed to Properly Consider Supplemental Electronic Video Monitoring as an Alternative to the Status Quo. The first element of the Fishery Service’s SBRM is the mechanism by which bycatch reporting is monitored. See AR 0006446 (2015 SBRM Omnibus Amendment at vii). In its Final Rule, the Agency incorporated by reference the 2015 SBRM Omnibus Amendment’s “use of the status quo methods by which data and information on discards occurring in Greater Atlantic Region fisheries are collected and obtained.” AR 0007532 80 (Fed. Reg. at 37,183). Similarly, the 2015 SBRM Omnibus Amendment concludes that the “preferred alternative is the status quo, which represented all bycatch reporting and monitoring mechanisms currently employed in the Greater Atlantic Region [and that] [t]hese mechanisms have been used successfully for several years and together they form a comprehensive and mature collection program.” AR 0006741- 0006742 (2015 SBRM Omnibus Amendment at 271-72). In so doing, the Fisheries Service purportedly considered and rejected, as an alternative to the status quo, the supplementation of existing data collection methods with the implementation of electronic video monitoring to monitor bycatch. See AR 0006687 (2015 SBRM Omnibus Amendment at vii). Notably, this alternative did “not propose replacing any status quo mechanism, but rather would [have] reflect[ed] an expanded suite of data collection mechanisms to include some form of developing technology.” AR 0006687 (2015 SBRM Omnibus Amendment at 217). The rejection of electronic monitoring as a supplementary tool contravened the Fisheries Service’s own policy, adopted in 2013, “to encourage the consideration of Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 25 of 45 20 electronic technologies to complement and/or improve existing fishery-dependent data collection.”), AR 00000708 (Fisheries Service, Policy On Electronic Technologies And Fishery- Dependent Data Collection, Policy Directive 30-133 (May 3, 2013)), as well as the Fisheries Service’s best practices identified in a 2013 report, which stated that “[t]he most effective use of resources may result from a design that combines new [electronic monitoring/electronic reporting] approaches with existing approaches such as VMS, dockside monitors, observers and logbooks maintained by dealers or processors that can be integrated into a single fishery information system.” The Fisheries Service, Electronic Monitoring and Electronic Reporting: Guidance & Best Practices for Federally-Managed Fisheries (“Best Practices Report”) 31 (2013). See also 2008 AR 0000060 (National Approach Memo at 46) (“Better information regarding the portion of the fleet without observers, perhaps through the use of electronic monitoring (e.g., digital video cameras or digital observers) and electronic logbooks, would be helpful in improving the estimates of total bycatch.” Id. For good reason then, commenters had encouraged the Fisheries Service to consider the adoption of electronic monitoring, especially where observer coverage is insufficient.7 See AR at 0006410 (Feb. 2015 Earthjustice Comments). See also AR 0006428; AR 0006424. However, in relying on the 2008 SBRM Omnibus Amendment, the Fisheries Service concluded that “the affordability of electronic monitoring is yet to be determined,” AR 0007540 (80 Fed. Reg. at 37,191). To that end, the 2015 SBRM Omnibus Amendment notes that “[i]nterestingly, Kinsolving (2006) points out that the total costs of an electronic monitoring 7 Notably, in adopting the status quo, the Fisheries Service concluded, without considering post-2007 evidence, that “electronic monitoring is not currently sufficiently developed or suitable to be a viable replacement for at-sea observers for the purpose of the SBRM,” AR 0007534 (80 Fed. Reg. at 37,185) (emphasis added), and “electronic monitoring is not yet considered robust enough to replace observers for bycatch monitoring in some gears types or for identifying all bycatch to the species level.” AR 0007540 Id. at 37,191. At the outset, the Fisheries Service failed to properly consider the proffered alternative to the status quo, instead erroneously asserting that the alternative had been proposed as a replacement. Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 26 of 45 21 program currently may equal or surpass the cost of an onboard observer program—particularly in light of the startup costs associated with a new program.” AR 0006729) 2015 SBRM Omnibus Amendment at 259) (citing Kinsolving 2006). This conclusion was previously asserted, using almost identical wording, in the 2008 SBRM Omnibus Amendment and left unaltered in the 2015 SBRM Omnibus Amendment. AR 0003239 (2008 SBRM Omnibus Amendment at 214 (citing Kinsolving 2006)). However, since 2007 NOAA and the Fisheries Service have conducted extensive new research and issued guidance on the use of electronic monitoring equipment, and imposed electronic monitoring equipment requirements in some fisheries. Indeed, the 2015 SBRM Omnibus Amendment fails to acknowledge a subsequent study published in 2009 by the same author, which concluded that electronic monitoring equipment could be cheaper than observers for vessels fishing during more than 30% of the monitoring equipment rental days where the vessel was fishing, or for vessels using electronic monitoring equipment in lieu of an observer during more than seven fishing days a year. See Julie Bonney, et al., Continued Assessment of an Electronic Monitoring System for Quantifying At-Sea Halibut Discards in the Central Gulf of Alaska Rockfish Fishery, EFP 08-01 Final Report, Alaska Groundfish Data Bank (2009).8 The Fishery Service’s disregard for public comments, its own updated policies and guidance, and updated implementation data and cost information is contrary to Section 553 of the APA, which required the Fisheries Service to consider and respond to comments that are material to issues which, if true, would require a change in the rule. See La. Fed. Land Bank 8 The D.C. Circuit has identified at least four instances where extra-record evidence may be considered: “the agency (1) acted in bad faith in reaching its decision, (2) engaged in improper behavior in reaching its decision, (3) failed to examine all relevant factors, or (4) failed to adequately explain its grounds for decision.” Oceana, Inc. v. Locke, 674 F. Supp. 2d 39, 45 (D.D.C. 2009) (citing IMS, P.C. v. Alvarez, 129 F.3d at 624). Failure of the Fisheries Service to consider new material contradicting that relied upon extensively by the Agency constitutes both a failure to examine all relevant factors as well as a failure to adequately explain the grounds for its decision. Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 27 of 45 22 Ass’n, FCLA v. Farm Credit Admin., 336 F.3d 1075, 1080 (D.C. Cir. 2003). The 2015 SBRM Omnibus Amendment’s assertion that the Fisheries Service conducted the reasoned analysis necessary to conclude that “commenters offer no new information or circumstances that show these alternatives should have not been rejected from further consideration for this action,” AR 0007535 (80 Fed. Reg. at 37,186), runs counter to the evidence in the record, including the Fisheries Service’s admission that it summarily rejected any alternative “previously considered but rejected in the 2007 amendment[.]” Id.. Because the Fisheries Service failed to properly consider a proffered alternative to the status quo – supplementing the status quo with electronic monitoring – and further failed to respond to information with respect to the efficacy of electronic monitoring, the 2015 Final Rule must be vacated and the Agency directed to comply with the Magnuson-Stevens Act. b) The 2015 SBRM Omnibus Amendment Fails to Assess All Bycatch as Required by the Magnuson-Stevens Act. The SBRM Amendment erred in restricting its 30 percent CV performance standard to federally managed species. 2008 AR 0002571. The resulting exclusion of many significant bycatch species falls dramatically short of the mandate of the Magnuson-Stevens Act to develop an SBRM to assess all “bycatch.” Under Chevron, where Congress has “directly spoken to the precise question at issue,” the Court “must give effect to the unambiguously expressed intent of Congress.” Chevron, USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). In this case, because the statutory language defining bycatch is unambiguous, the Court need not accord deference to the interpretation of the Act expressed in the Amendment. “Under Chevron Step One, the court applies the traditional tools of statutory construction in order to discern whether Congress has spoken directly to the question at issue.” Eagle Broad. Grp., Ltd. v. FCC, 563 F.3d 543, 552 Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 28 of 45 23 (D.C. Cir. 2009). “If this ‘search for the plain meaning of the statute . . . yields a clear result, then Congress has expressed its intention as to the question, and deference is not appropriate.’” Id. (quoting Bell Atlantic Tel. Cos. v. FCC, 131 F.3d 1044, 1047 (D.C. Cir. 1997)) (ellipses in original). The statutory language on this point is straightforward. The Magnuson-Stevens Act requires the development of “a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery.” 16 U.S.C. § 1853(a)(11). The Act defines “bycatch” as “fish which are harvested in a fishery, but which are not sold or kept for personal use, and includes economic discards and regulatory discards,” id. § 1802(2), and further defines “fish” as “finfish, mollusks, crustaceans, and all other forms of marine animal and plant life other than marine mammals, and birds,” id. § 1802(12). Thus, under the terms of the Act, bycatch includes all marine animal and plant life except mammals and birds, without regard to whether the fish species is regulated by an FMP. The Amendment’s interpretation violates “the familiar maxim of statutory construction: expressio unius est exclusio alterius, meaning, ‘mention of one thing implies exclusion of another thing.’” Ethyl Corp. v. EPA, 51 F.3d 1053, 1061 (D.C. Cir. 1995) (quoting Am. Methyl Corp. v. EPA, 749 F.2d 826, 835-36 (D.C. Cir. 1984)); see also Halverson v. Slater, 129 F.3d 180, 186 (D.C. Cir. 1997) (same). The statute’s plain language defines bycatch as “fish which are harvested in a fishery, but which are not sold or kept for personal use.” 16 U.S.C. § 1802(2). The definition of fish generally includes “all other forms of marine animal and plant life” but then specifically excludes “mammals and birds.” Id. § 1802(12). The Act further specifically excludes from the definition of bycatch “fish released alive under a recreational catch and release fishery management program.” Id. § 1802(2); see also 50 C.F.R. § 600.350(c) (incorporating Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 29 of 45 24 statute’s exclusion and adding that “unobserved fishing mortality” is included in the definition of bycatch). Notably absent from the list of exclusions is any mention of species not managed under FMPs. According to the canon of expressio unius, because the statute’s plain language definition of bycatch explicitly excludes marine mammals and birds, as well as fish released alive under a recreational catch and release fishery management program, it follows that Congress did not intend to exclude species not managed under FMPs from the definition of bycatch. Thus, traditional tools of statutory construction indicate that species not subject to a federal FMP are included in the statutory definition of bycatch. While measures to minimize bycatch are to be imposed only “to the extent practicable,” there is no such qualifying restriction on the creation of the SBRM itself. 16 U.S.C. § 1853(a)(11). The Act instructs that the agency develop an SBRM and use the bycatch data it generates to develop “conservation and management measures” to “minimize bycatch; and . . . minimize the mortality of bycatch which cannot be avoided.” Id. Hence, while the Act gives the agency some measure of discretion in designing measures to reduce bycatch, it does not give the agency discretion to selectively exclude certain types of bycatch from the methodology on which those measures are based. Notwithstanding the plain statutory mandate, the SBRM Amendment fails to apply its performance standard to discards of species that are not federally managed - 166 of 211 observed species, sixteen of which constitute 13% of total discards by weight. 2008 AR 0002572. In particular, three of the top ten species and six of the top twenty species by weight of discards are excluded from the application of the SBRM performance standard. 2008 AR 0000318. Furthermore, many of the species excluded by the SBRM are recreationally important species at serious risk of overfishing, such as striped bass, shad, and river herring. See 2008 AR 0001866 Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 30 of 45 25 (Oceana comment letter mentioning striped bass and shad); 2008 AR 0000396 (letter from a group of conservation organizations discussing the importance of river herring); see also 2008 AR 0000286 (motion to add striped bass and longhorn sculpin to list of species analyzed in the SBRM failed). In conclusion, the Fisheries Service has not fulfilled its duty under the Act to promulgate a standardized reporting methodology for all bycatch. By excluding non-FMP managed species from the SBRM, the agency misses the very point of monitoring and reporting bycatch in the first place: to assess the impact of fishing on those species not targeted for landing, so that management can address those impacts. c) The 2015 SBRM Omnibus Amendment Fails to Consider the Impact of Observer Bias. In its May 2013 comments concerning the Fisheries Service then-draft SBRM Omnibus Amendment, Oceana highlighted an analysis showed “[a] relatively consistent pattern of different fishing behaviors when an observer is on board and when one is not.” AR 0001078 (Oceana comments May 2013 at 4). Oceana concluded that “[b]ias is clearly affecting the catch sampling in the Multispecies fishery.” Id. Then, in its October 2013 comments, Oceana again highlighted the importance of considering the effect of observer bias and specifically noted the Fishery Service’s failure to reference the science cited by Oceana in its prior comments. AR 0007141-42 (Oceana comments October 2013 at 9-10). The 2015 Final Rule dismissed the importance of observer bias without seriously addressing the comments of Oceana (and others), and instead merely referencing Chapter 5 of the 2015 Omnibus Amendment in support of its conclusion. See AR 0007535 (80 Fed. Reg. 37186). The 2015 SBRM Omnibus Amendment simply concludes “the effect of observer bias is expected to be small” and that “the ‘observer effect’ is not expected to contribute to the variance Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 31 of 45 26 in the observer data,” AR 0007074 (SBRM Omnibus Amendment at E-26), again without citing the science raised by Oceana. See AR 0004887-4889 (citing significant inconsistencies in the Fisheries Service analysis). The Fisheries Service failure to consider or respond to documentation provided by commenters demonstrating the potential for observer bias at levels that could impair the “statistical reliability” of information collected under the SBRM constitutes arbitrary and capricious rulemaking under the APA. See La. Fed. Land Bank Ass’n, , 336 F.3d at 1080. 4. The Agency Arbitrarily Chose the SBRM Performance Standard. In order to “establish” a standardized bycatch reporting methodology under the Magnuson-Stevens Act and the APA, the 2015 SBRM Amendment must provide statistically precise data on “the amount and type of bycatch in each fishery in each region” and “the [Fisheries Service] must fund enough observer voyages to generate statistically reliable data,” defined under the 2015 SBRM Amendment as data “sufficient to produce a coefficient of variation (CV) of the discard estimate of no more than 30 percent.” Oceana III, 670 F.3d 1239- 1240. The 2015 Final Rule adopts a precision standard of 30 percent CV for the SBRM – representing the lowest point within the Fisheries Service’s acceptable precision range of 20 percent to 30 percent. See 2008 AR 0000001 (National Approach Memo at v). See also AR 0007532 (80 Fed. Reg. at 37,183) (incorporating the SBRM Omnibus Amendment’s CV to “ensure that the data collected under the SBRM are sufficient to produce a [CV] of the discard estimate of no more than 30 percent” and to “ensure that the effectiveness of the SBRM can be measured, tracked, and utilized to effectively allocate the appropriate number of observer sea days”). See also AR 0007057 (2015 SBRM Omnibus Amendment Appx. E-9) (“The 30 percent CV performance standard functions both as a mechanism to determine the level of observer Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 32 of 45 27 coverage required in each fishing mode and as a diagnostic tool after the fact to evaluate whether the observer coverage provided data of the desired precision.”). In explaining its decision process for its selection, the Fisheries Service offered little scientific justification for choosing one CV level over any other available level, despite the critical role the CV plays in determining the precision of the SBRM’s bycatch estimates used to guide the agency’s conservation measures—not to mention the necessary observer coverage required to achieve the CV. AR 0006726 (2015 SBRM Omnibus Amendment at 256). Rather, the 2015 SBRM Omnibus Amendment provides that the CV was chosen “based upon the recommendation of the National Working Group on Bycatch.” AR 0006444 (2015 SBRM Omnibus Amendment at v). However , in its report, the National Working Group on Bycatch recommended a 20-30% CV as a precision goal for estimating bycatch. See AR 0000072 (Evaluating bycatch: a national approach to standardized bycatch monitoring programs. U.S. Dep. Commer., NOAA Tech. Memo. NMFSF/SPO-66, 108 p. On-line version, http://spo.nmfs.noaa.gov/tm 58-60). The Agency’s failure to provide any justification for its selection of a 30% CV – the lowest point it could have selected – without revealing the technical basis for the same in time to allow for meaningful commentary constitutes a “serious procedural error” and an abuse of discretion that warrants vacatur. Solite Corp. v. EPA, 952 F.2d 473, 484 (D.C. Cir. 1991). B. The National Environmental Protection Act: The Agency Failed to Take a “Hard Look” at the Impacts of the SBRM on the Fishery. The Fisheries Service’s finding of no significant impact (“FONSI”)9 on the environment was irrational because it failed to take into account significant indirect and cumulative impacts 9 A FONSI is a “document that presents the reasons why an action will not have a significant impact on the quality of the human environment and, therefore, will not require preparation of an EIS.” NOAA Administrative Order 216-6 § 4.01k; see 40 CFR 1508.13. Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 33 of 45 28 created by the SBRM. Had the Fisheries Service taken these factors into account (as required by law and regulation), it would have prepared an EIS instead of a FONSI. 1. The Agency Was Required to Analyze the Indirect and Cumulative Impacts on the Fishery. Before the Fisheries Service takes any “major Federal actions” significantly affecting the quality of the human environment, NEPA requires it to prepare a detailed statement (known as an EIS) evaluating: (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. 42 U.S.C. § 4332(2)(C). The SBRM is the type of major Federal action covered by these requirements.10 Prior to preparing and EIS, however, the Fisheries Service may first develop an environmental assessment (“EA”) to determine if the major federal action significantly affects the environment. 40 C.F.R. § 1501.4; NOAA Administrative Order 216-6 § 5.03a (“The purpose of an EA is to determine whether significant environmental impacts could result from a proposed action.”).11 If the EA concludes that the major federal action will not have any significant impact on the environment, then the Fisheries Service may prepare a FONSI. Before issuing a FONSI (and 10 The approval of FMPs and amendments to FMPs are considered major Federal actions. Oceana v. Locke, 831 F.Supp.2d 95 (D.D.C. 2011). 11 An EA must provide sufficient evidence to determine the level of significance of the environmental impacts and must include, among other things: (i) sufficient evidence and analysis for determining whether to prepare an EIS or a FONSI, (ii) a brief discussion of the need for the proposed action; and (iii) a brief discussion of the environmental impacts of the proposed action and alternatives to the proposed action. NOAA Administrative Order 216-6 § 5.03b. NEPA regulations and the Fisheries Service’s guidelines provide that the significance of an action “must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality.” 40 C.F.R. § 1508.27; Fisheries Service, Guidelines for the Preparation of FONSI: Instruction 30-124-1 (July 22, 2005). Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 34 of 45 29 avoiding an EIS), an agency must first take a “hard look” at the potential environmental impacts of its proposed action. Sierra Club v. Peterson, 717 F.2d at 1409, 1413 (D.C. Cir. 1983); Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. Or. 1998) (“If an agency decides not to prepare an EIS, it must supply a convincing statement of reasons to explain why a project’s impacts are insignificant. . . . The statement of reasons is crucial to determining whether the agency took a ‘hard look’ at the potential environmental impact of a project”) (internal quotation marks and citations omitted). As part of that hard look, “NEPA’s implementing regulations require an agency to evaluate ‘cumulative impacts’ along with the direct and indirect impacts of a proposed action.” TOMAC v. Norton, 433 F.3d 852, 860, 864 (D.C. Cir. 2006); see 40 C.F.R. § 1508.27(b)(7) (An agency action is significant “if it is reasonable to anticipate a cumulatively significant impact on the environment.”12); id. (An action may be significant if “the action is related to other actions with individually insignificant but cumulatively significant impacts.”). To properly assess the cumulative impact of the SBRM, the Fisheries Service was required to assess its “impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” 40 C.F.R. § 1508.7. In other words, it was required to “give a realistic evaluation of the total impacts and cannot isolate a proposed project, viewing it in a vacuum.” Grand Canyon Trust v. FAA, 290 F.3d 339, 342 (D.C. Cir. 2002); see TOMAC v. Norton, 433 F.3d 852, 864 (D.C. Cir. 2006) (“The 12 The terms “effects” and “impacts” are synonymous as used in NEPA regulations. Id. § 1508.8. “Effects” include “[i]ndirect effects which . . . are later in time or farther removed in distance, but are still reasonably foreseeable.” Id. § 1508.8(b). The type of "effects" that are contemplated include: ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. Reed v. Salazar, 744 F. Supp. 2d 98, 103 (D.D.C. 2009). Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 35 of 45 30 ‘cumulative’ impacts to which the regulation refers are those outside of the project in question; it is a measurement of the effect of the current project along with any other past, present, or likely future actions in the same geographic area.”) (emphasis in original). Moreover, the assessment must be “sufficient to alert interested members of the public to any arguable cumulative impacts.” Coal. on Sensible Transp. v. Dole, 826 F.2d 60, 71 (D.C. Cir. 1987) (emphasis added). 2. The Agency’s Failed to Take a “Hard Look” at the SBRM’s Indirect and Cumulative Impact. The Fisheries Service failed to comply with the “hard look” requirement because it ignored the indirect and cumulative impacts of the SBRM. The SBRM will have far-ranging and fundamental indirect and cumulative impacts on the environment because the data collected pursuant to its methodology will form the scientific basis for major conservation and management decisions in all Northeast United States federal fisheries, including decisions concerning allowable catches, bycatch management and stock assessments. Instead of taking the required hard look, the Fisheries Service re-characterized indirect and cumulative impacts as administrative. The FONSI repeatedly dismissed the action as “largely,” “purely,” “wholly,” or “entirely” “administrative in nature,” with no potential for direct or indirect or adverse impacts on the environment, on regulated entities, on the public health, the environment or economy. See, e.g., 2015 SBRM at 297, 318, 322, 326, 327, 328, 329, 331, and 333. Further, to avoid analyzing the indirect and cumulative effects that the SBRM will have, the Fisheries Service repeatedly dismissed and postponed the prospect of reasonably foreseeable indirect and cumulative impacts by characterizing them as “remote” and “speculative” results of separate actions: [B]ecause these types of potential management actions, which may eventually stem from implementation of the SBRM, are too remote and speculative to be adequately or meaningfully addressed in this amendment, this NEPA analysis focuses solely on the potential direct, indirect, and cumulative effects expected to be immediately associated Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 36 of 45 31 with the proposed action and primary alternatives. Any future management actions that may result from the information collected under this SBRM would be subject to all the requirements of NEPA at the appropriate time. 2015 SBRM at 290. a) The Agency’s Characterization of the SBRM’s Effects as Administrative and Speculative is Contrary to the Record The Administrative Record demonstrates that the current SBRM Amendment will have a number of directly foreseeable adverse cumulative impacts on Northeast and Mid-Atlantic fisheries. The Fisheries Service was required to analyze these issues in the EA. First, the Fisheries Service’s own predictions undermine boilerplate assertions that the SBRM program is merely “administrative in nature.” Publicly-available government records confirm that in April 2014, NOAA staff briefed the Northeast Councils on the potential implications of the new funding scheme, specifically noting that funding lines previously used for the National Observer Program and the Atlantic Herring Closed Area would be diverted to the SBRM program under the Amendment, which would negatively impact the goals of these two programs. See AR 0002927-0002928 (Fisheries Service, Presentation Before the Mid- Atlantic Fishery Mgmt. Council 17–18 (April 10, 2014)) (indicating that, under the SBRM Amendment, Observer Sea Days allocated to At Sea Monitoring (“ASM”) would fall from 6,228 to 475, and Observer Sea Days allocated to the Atlantic Herring Closed Area would fall from 646 to 0). Additionally, another agency document, a memorandum discussing the impact of the SBRM on the at-sea monitoring in the Northeast groundfish fishery, also concluded that the 2015 SBRM did not provide flexibility in funding allocated to the Northeast Fisheries. See AR 0008905-0008906. These documents show that reduced coverage for observer allocation in Northeast fisheries, resulting from the changes to the SBRM funding scheme, would negatively impact Northeast fisheries. See also (NOAA, Funding Northeast Fisheries Science Center Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 37 of 45 32 Fishery Monitoring Programs (March 2014), AR 9136 (“SBRM Amendment may have significant impacts on regional monitoring and plans”). Second, the agency’s own guidance makes clear the importance of having an adequate reporting methodology, explaining that “bycatch can increase substantially the uncertainty concerning total fishing-related mortality, which makes it more difficult to assess the status of stocks, to set the appropriate OY [optimum yield] and define overfishing levels, and to ensure that OYs are attained and overfishing levels are not exceeded.” 50 C.F.R. § 600.350(b). Third, commenters alerted the Fisheries Service to the cumulative impacts of the 2015 SBRM Amendment and the associated observer funding mechanism with respect to current and future fisheries management and conservation efforts. See, e.g., AR 0004899, AR 0004905 (Comments of Oceana for Docket Nos. 2014-29216 & 140904749-4999-01 at 15, 21 (Feb. 13, 2015)) [hereinafter Oceana 2015 Comments]. “Far from being ‘procedural’ in nature, the policies being established in the Omnibus Amendment will have a direct and substantive impact on the Fisheries Service’s ability to recognize, and thus, prevent, overfishing, as mandated under federal law. The Fisheries Service’s policy relates directly to the amount of uncertainty in catch and stock size, which relates directly to the risk of overfishing – so a proximate impact is the risk of overfishing, so the environmental impacts are actually significant.” AR 0004905 (Oceana 2015 Comments at 21). Fourth, in its own response to comments in the 2015 Final Rule, the Fisheries Service conceded the fact that the SBRM Amendment will have substantive impacts on the Fisheries Service’s operations and capabilities and refute its characterization of the SBRM policy as administrative in nature. For example, the Cape Cod Commercial Fishermen's Alliance (“Alliance”) expressed concern that the SBRM’s prioritization process would hinder efforts to Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 38 of 45 33 develop alternative monitoring solutions (including electronic monitoring), eliminate supplemental observer coverage on midwater trawl vessels fishing in groundfish closed areas, and put the Northeast multispecies sector system at risk due to its heavily reliance on appropriate monitoring. AR 0007533-0007534 (80 Fed. Reg. at 37,184-85). In response, the Fisheries Service conceded that the “[t]he SBRM Omnibus Amendment may result in the unavailability of the funds previously used for this coverage because the funds must first go to the SBRM requirements. . . . Accordingly, without funds to provide this supplemental observer coverage, fewer midwater trawl trips will have access to these areas.” AR 0007534 (80 Red. Reg. at 37,185). The Fisheries Service went on to acknowledge that “[t]he impacts of this change on other monitoring priorities are real and will require adjusting expectations and evaluating whether other sources of funding for these priorities may be possible.” Id. The Fisheries Service also concedes in the Final Rule that it had recognized the potential effect of the proposed SBRM funding trigger on available SBRM coverage and other monitoring programs previously funded by the affected funding lines as early as April 2014, well before it issued its 2015 FONSI. Id. at 37,188. Further, in response to comments, the Fisheries Service conceded that “the funding- related prioritization trigger may require some funding sources that have previously been used to support development of electronic monitoring to be used exclusively for the SBRM. This may delay implementation of electronic monitoring in the Region.” AR 0007539 (80 Fed. Reg. at 37,190. 3. The Agency’s Attempt to Characterize the Effects of the SRBM as Administrative is Contrary to Law The Fishery Service’s attempt to isolate the SBRM as wholly administrative in nature is disingenuous, misleading and places it in precisely the kind of NEPA analysis “vacuum” that the Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 39 of 45 34 court disallowed in Grand Canyon Trust. 290 F.3d at 342 (“The analysis in the EA, in other words, cannot treat the identified environmental concern in a [sic] vacuum[.]”). The decisions and policies enshrined in the SBRM will define and determine the quality, reliability, and accuracy of the data the agency will use in making critical fishery management decisions, including assessing the state of fish stocks, establishing Total Allowable Catch Limits to prevent overfishing, assessing past catch to determine whether limits were exceeded, ensuring required accountability, setting future levels of at-sea observer coverage and allocating those observers across fisheries to ensure reliable data, and monitoring “total fishing-related mortality . . . to assess the status of stocks, to set the appropriate OY [optimum yield] and define overfishing levels, and to ensure that OYs are attained and overfishing levels are not exceeded.”). 50 C.F.R. § 600.350(b). For example, the Fisheries Service’s decision to ignore observer bias will not only increase the risk of underreporting of bycatch, it will result in the misallocation of observer coverage, resulting in too much coverage in some areas and too little coverage in other areas. These misallocations increase the likelihood of CV levels falling below the Fisher Service’s recommended 30 percent floor. Furthermore, the SBRM’s lack of precision will foreseeably result in greater variability in catch estimates for predominately bycatch and protected species and the inability to detect important population trends soon enough to address them with appropriate management action. Indeed the agency’s bycatch collection methods have already influenced important choices about setting fishing levels. For example, the Northeast Fisheries Science Center used Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 40 of 45 35 the SBRM methodology to estimate discards in the fluke fishery.13 These data were fundamental to the MAFMC’s recommended quotas for commercial fishing levels of summer flounder in 2010.14 SBRM methodology is also used to calculate bycatch and set Annual Catch Entitlement (“ACE”) for other important fish species, including haddock and river herring/shad. NOAA Fisheries, How Discards Are Calculated for Groundfish Sectors and the Common Pool (2010), available at https://www.greateratlantic.fisheries.noaa.gov/regs/infodocs/discardcalculations.pdf. But when the SBRM observer coverage rates for these fisheries are low, as they were during the 2015-2016 season, AR 0008207, 0008303, 0008304, the amount of bycatch is assumed based on the previous observed trips in the same fishery. The agency then uses these assumptions – only assumptions, not concrete numbers – to establish Annual Catch Limits (“ACL”), the most important tool in preventing overfishing. In conclusion, the Fisheries Service violated NEPA by failing to evaluate the cumulative impacts of the SBRM Amendment in the EA. In declining to reconsider the merits of comments and alternatives first raised and rejected in 2008, the Fisheries Service arbitrarily and capriciously presumed that the agency’s review and analysis of data, facts, and policy from an eight-year old, vacated rulemaking’s environmental assessment could substitute for reasoned consideration and analysis of comments and recommended alternatives submitted in response to the 2015 SBRM Amendment. The SBRM directly affects - indeed, it forms the basis for - future management measures. Although these cumulative impacts are foreseeable and significant, the agency’s EA unlawfully failed to consider them. 13 Pl. Ex. 4, Northeast Fisheries Science Center, U.S. Dept. of Commerce, 47th Northeast Regional Stock Assessment Workshop (47th SAW) Assessment Report app. 1 at 3 (July 2008), available at http://www.nefsc.noaa.gov/nefsc/publications/crd/crd0812/wp1.pdf. 14 Pl. Ex. 5, Memorandum, Mid-Atlantic Fishery Management Council, Summer Flounder Management Measures 2010 (June 19, 2009), available at http://www.mafmc.org/meeting_materials/2009/August/Tab_09_Summer_Flounder_Management_Measures.pdf. Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 41 of 45 36 4. The SBRM Alternatives Analysis Relies on Outdated Assumptions and Data The SBRM alternatives analysis applies an outdated understanding of how fisheries function and are regulated, disregarding now common regulatory practices like ACL and Accountability Measures (“AM”) and the need for stock-level bycatch information, and is contrary to the facts before the Agency. In 2007, Oceana raised concerns that “the agency's proposed SBRM is a fatally-flawed methodology that will not yield the information needed to . . . develop Annual Catch Limits through valid stock assessments and to enforce those Annual Catch Limits through AMs. 2008 AR 003120 (Comments of Oceana Concerning the Northeast Region Standardized Bycatch Reporting Methodology Omnibus Amendment 2 (Sept. 24, 2007)) [hereinafter Oceana 2007 Comments]. The Fisheries Service dismissed the concern, noting only that The commenters imply that the SBRM Amendment should have addressed the new requirement included in the Magnuson-Stevens Reauthorization Act of2007 (MSRA) for all FMPs to include "Annual Catch Limits" (ACLs) and "Accountability Measures" (AMs) and indicate how the SBRM would perform in the face of these new requirements. However, the MSRA does not require ACLs and AMs be developed and implemented for any fishery until at least 2010 (for fisheries experiencing overfishing) or 2011 (for all other fisheries). . . .Because it is impossible at this time to foresee all the particular attributes of the various ACL and AM programs that may be developed and adopted by the two Councils for all 13 FMPs, and how the SBRM may need to change to accommodate those programs, it would be premature to attempt to craft an SBRM that could accommodate all possible ACL and AM outcomes, without resulting in an SBRM so vague and generalized as to be ineffectual at meeting its current objectives. 2008 AR 150 (NMFS, Summary of Comments Received on the SBRM Amendment and Proposed Rule (Oct.15, 2007)). 2008 AR 0003221 (NMFS, Summary of Comments Received on SBRM Amendment and Proposed Rule (Oct. 15, 2007)). Oceana raised the issue again in 2015, four years after the date the Fisheries Service had identified as the date of implementation for the ACL requirement. Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 42 of 45 37 [The] Agency’s revision of the SBRM irrationally ignores how the fisheries work, by using a data-set that is almost 10-years old, when the fishery had vastly different characteristics, and by failing to consider the management changes brought on by important events such as the introduction of Annual Catch Limit (ACLs) and Accountability Measures (AMs) in the fishery management plan amendments that implemented the 2006 reauthorization of the Magnuson Act (MSA) and the establishment of a catch shares fishery for New England groundfish. AR 0002291 (Oceana 2013 Comments at 2). Four years after ACLs and AMs have come into effect, the 2015 SBRM Rule ignored the issue yet again, this time concluding that “[t]he SBRM forms the basis for bycatch monitoring in the Region, but need not address all monitoring requirements of all fishery management plans.” AR 0007535 (80 Fed. Reg. 37,186). Incredibly, the Final Rule also asserts, incorrectly, that “commenters have not provided any evidence that the SBRM would not be sufficient to provide the estimated bycatch component of the total annual catch of a fishery that is used to monitor ACLs. Nor have they submitted any recommendations or alternatives that were not considered.” Id. To the contrary, Oceana’s extensive comments during the 2008 and 2015 SBRM development process refute any suggestion that the Fisheries Service had not received extensive recommendations to improve the proposed methodology. See, e.g., 2008 AR 0003120; AR 0002290; AR 0004885 (Oceana 2007, 2013 and 2015 Comments). For example, in one of its comment letters, Oceana reminded the agency that “ACLs and AMs are now the status quo for all fisheries” and requested that the agency fully explore the effects of the SBRM data collection program on the setting of ACLs. AR 0001080 (Oceana Comments on Draft Standardized Bycatch Reporting Methodology 3 (May 17 2013)). Even the NOAA report, cited in the abovementioned comment letter, stresses the importance of the ACLs in protecting the U.S. fisheries: “Managers require estimates of discards by species for managed Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 43 of 45 38 fisheries to determine if the discard component of … ACL has been exceeded to comply with the new annual catch limits and AMs of the Magnuson-Stevens Act.” Id. (citing S.E. Wigley et al., Standardized Bycatch Reporting Methodology 3-Year Review, part 2 at 36 (2011)). Only the Fisheries Service can explain (though certainly cannot justify) why these and other recommendations, if previously raised in the 2008 proceeding, were deemed considered and rejected when raised in the separate 2015 proceeding. By doing so, the Fisheries Service violated the NEPA. CONCLUSION Despite successful challenges before both this Court and the D.C. Circuit, the Fisheries Service boldly attempts to shroud its latest failed attempt to satisfy the Magnuson-Stevens Act with repeated assurances that its SBRM seeks to address the reasons underlying the D.C. Circuit’s vacatur of the 2008 Final Rule and 2008 SBRM Omnibus Amendment. However, the 2015 Final Rule and accompanying 2015 SBRM Omnibus Amendment resemble the hyperbole wolf-in-sheep’s-clothing. Not only do they fail to satisfy the mandate of the Magnuson-Stevens Act, but they concomitantly violate the National Environmental Protection Act. In short, the Fisheries Service’s latest effort at a SBRM fails on both procedural and substantive grounds. Specifically, both the 2015 Final Rule and accompanying 2015 SBRM Omnibus Amendment fail to incorporate a funding mechanism that will provide the resources necessary to meet the SBRM’s own minimum standards of precision and, quite openly, reserving to itself the discretion as to whether and when to allocate the full funding needed to carry out Congress’ mandate. Additionally, the Fisheries Service limited the scope of its review and revision of the vacated 2008 SBRM Rule and supporting Amendment, ignoring significant changes in Fisheries Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 44 of 45 39 Service policy and regulations, ignoring new developments in fisheries technology and industry practice; and ignoring substantive comments provided by Oceana and other commenters on a wide range of issues. And the Fisheries Service’s reliance on a FONSI and EA that disregard and dismissed the substantive impact of the SBRM program as a whole; failed to consider new circumstances from the past decade; and summarily rejected alternatives previously considered during the prior SBRM process violates the National Environmental Protection Act. For the forgoing reasons, Oceana respectfully requests this Court grant Summary Judgment and vacate the 2015 Final Rule for failing to satisfy the requirements of the Magnuson-Stevens Act or, in the alternative, for violating the requirements of the National Environmental Protection Act. Dated: January 17, 2017 Respectfully submitted, /s/ Paul W. Butler (D.C. Bar No. 493942) Charles L. Franklin (D.C. Bar No. 485272) Joseph W. Whitehead (D.C. Bar No. 982447) Stanley E. Woodward, Jr. (D.C. Bar No. 997320) AKIN GUMP STRAUSS HAUER & FELD LLP 1333 New Hampshire Avenue, NW Washington, D.C. 20036 (202) 887-4000 (telephone) (202) 887-4288 (facsimile) E-mail:pbutler@akingump.com cfranklin@akingump.com jwhitehead@akingump.com sewoodward@akingump.com Counsel for Plaintiff Oceana, Inc. Case 1:15-cv-01220-ESH Document 26 Filed 01/17/17 Page 45 of 45 EXHIBIT A Case 1:15-cv-01220-ESH Document 26-1 Filed 01/17/17 Page 1 of 5 Case 1:15-cv-01220-ESH Document 26-1 Filed 01/17/17 Page 2 of 5 Case 1:15-cv-01220-ESH Document 26-1 Filed 01/17/17 Page 3 of 5 Case 1:15-cv-01220-ESH Document 26-1 Filed 01/17/17 Page 4 of 5 Case 1:15-cv-01220-ESH Document 26-1 Filed 01/17/17 Page 5 of 5 EXHIBIT B Case 1:15-cv-01220-ESH Document 26-2 Filed 01/17/17 Page 1 of 4 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯) OCEANA, INC., ) ) Plaintiff, ) ) v. ) Civil Action No. 1:15-cv-01220-ESH ) PENNY PRITZKER, et al., ) ) Defendants. ) _______________________________________) DECLARATION OF MATTHEW RIGNEY I, Matthew Rigney, pursuant to the provisions of 28 U.S.C. § 1746, do hereby declare as follows: 1. I am a member of Oceana and have been for seven years. I support Oceana’s goals of conserving the ocean environment and conserving and rebuilding fish populations to allow for sustainable recreational fishing. 2. I reside in Northampton, Massachusetts, and vacation frequently near Kennebunkport, Maine. 3. I am a strict catch-and-release recreational fisherman, and I plan to continue fishing regularly in the North Atlantic, particularly around the Kennebunkport, Maine, region. 4. As a lifelong recreational fisherman, I have always been interested in the health of our oceans and marine wildlife. Some of the principal species that I target for catch-and- release are striped bass, bluefish, and bluefin tuna, a large pelagic fish whose population has severely declined because of commercial overfishing. I also occasionally target for catch-and- release Pollack and mackerel. 5. In 2012, I published a book about the decline of large pelagic fish, specifically Case 1:15-cv-01220-ESH Document 26-2 Filed 01/17/17 Page 2 of 4 2 marlin, Bluefin tuna, and swordfish. The book, entitled In Pursuit of Giants: One Man's Global Search for the Last of the Great Fish, describes my five-year, 75,000-mile journey to encounter the great fish of the sea and explore the causes of their decline by more than 80% since 1950. I hope the book has a wide impact and will create a wider awareness of the plight of these animals. The book was nominated for the Massachusetts Book Award in Nonfiction. The area in the Northwest Atlantic around Kennebunkport has experienced particular degradation. When researching my book, I met with experts in marine science and policy and discussed the problems of overfishing, excessive bycatch, loss of biomass, inappropriate maximum sustainable yield numbers, and an economic emphasis on ocean life populations as commodities. This system presents a limited view that leads to the depleted state in which we find our seas. This approach has failed. 6. I am concerned about the regulation of fishing. I do not believe that the current regulatory system is effective, in part because it focuses on one target fish population without taking into account factors relating to the ecosystem as a whole. I strongly support the rebuilding of forage fish stocks as the basis for a long-term plan to support the overall health of ocean ecosystems. 7. I am very concerned about the health of Bluefin tuna, bluefish, striped bass, and other fish populations. Without an adequate system of bycatch recording, these fish populations risk depletion through unaccounted-for bycatch to the point that I will be unable to fish for them recreationally. 8. I witnessed some of the problems with bycatch. I am disgusted by the amount of bycatch that seems to be acceptable for commercial fisheries. I believe that the gear used should be more discriminating and that fish that are bycaught and killed should be kept, rather than being thrown back, to reduce the amount of waste in our fishing system. Case 1:15-cv-01220-ESH Document 26-2 Filed 01/17/17 Page 3 of 4 3 9. The National Marine Fishery Service’s (the “Fisheries Service”) failure to establish an adequate Standardized Bycatch Reporting Methodology (“SBRM”) for the Northeast Region harms me by failing to adequately record the bycatch in commercial fishing of important recreational species, such as striped bass and bluefish. By neglecting to keep adequate track of the bycatch of these fish, the SBRM fails to prevent overfishing through the joint impact of commercial bycatch and recreational catch. 10. My injury would be redressed if the Court entered a declaratory judgment that the Fisheries Service’s SBRM violated the Magnuson-Stevens Act and the Administrative Procedure Act (“APA”) and that its Environmental Assessment (“EA”) and Finding of No Significant Impact (“FONSI”) violated the National Environmental Policy Act and the APA. 11. The Court should then remand the SBRM and the EA/FONSI to the Fisheries Service to develop a new SBRM and NEPA analysis that complies with the Court’s order. 12. Such a decision would provide fishery managers with the information and tools necessary to conserve and effectively manage the region's recreational fish species. Pursuant to 28 U.S.C. § 1746, I declare that the foregoing declaration is true and correct under penalty of perjury. Executed: 1/10/2017 Matthew Rigney Case 1:15-cv-01220-ESH Document 26-2 Filed 01/17/17 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA OCEANA, INC. Plaintiff, v. PENNY PRITZKER, in her official capacity as Secretary of the United States Department of Commerce, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) No. 1:15-cv-01220-ESH CERTIFICATE OF SERVICE I hereby certify that on January 17, 2017, the foregoing was electronically served via CM/ECF upon the following counsel of record for the Defendants: H. Hubert Yang United States Department of Justice P.O. Box 7611 Washington, DC 20044-7611 /s/ Charles L. Franklin (D.C. Bar No. 485272) AKIN GUMP STRAUSS HAUER & FELD LLP 1333 New Hampshire Avenue, NW Washington, D.C. 20036 (202) 887-4000 (telephone) (202) 887-4288 (facsimile) E-mail:cfranklin@akingump.com Counsel for Plaintiff Oceana, Inc. Case 1:15-cv-01220-ESH Document 26-3 Filed 01/17/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA OCEANA, INC. Plaintiff, v. PENNY PRITZKER, in her official capacity as Secretary of the United States Department of Commerce, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) No. 1:15-cv-01220-ESH [PROPOSED] ORDER WHEREAS, Plaintiff Oceana’s Motion for Summary Judgment is before the Court for decision, and WHEREAS, the Court has reviewed the submissions of the parties and determined that the Plaintiff’s Motion is meritorious, it is hereby ORDERED that the Plaintiff’s Motion be, and hereby is GRANTED in all respects, and it is hereby DECLARED that Defendants’ approval of the Northeast Region Standardized Bycatch Reporting Methodology Omnibus Amendment (“SBRM Amendment”) on March 31, 2015, violated the Magnuson-Stevens Fishery Conservation and Management Act and the Administrative Procedure Act, and it is hereby DECLARED that Defendants’ Environmental Assessment and Finding of No Significant Impact violated the National Environmental Policy Act, and it is hereby ORDERED that the SBRM Amendment and the accompanying EA and FONSI are set aside and remanded to the agency with explicit instructions to revise the SBRM Amendment in accordance with the Court’s opinion, that the agency take a hard look at the environmental Case 1:15-cv-01220-ESH Document 26-4 Filed 01/17/17 Page 1 of 2 impacts in an Environmental Impact Statement, and that the Defendants promulgate the revised SBRM Amendment within 12 months of the date of this order. SO ORDERED. Dated:________________ _____________________________ HON [] United States District Judge Case 1:15-cv-01220-ESH Document 26-4 Filed 01/17/17 Page 2 of 2
