See Clean Air Act, 42 U.S.C. § 7601(a)(1) (“The Administrator may delegate to any officer or employee of the Environmental Protection Agency such of his powers and duties under this chapter, except the making of regulations subject to section 7607(d) of this title, as he may deem necessary or expedient.”). 32 Section 305 states that “[t]he Secretary may promulgate such regulations . . . as may be necessary to discharge such responsibility or to carry out any other provision of this chapter.” 16 U.S.C. § 1855(d). Case 1:17-cv-00031-APM Document 56-1 Filed 05/09/17 Page 52 of 57 43 Regulations” (CFR) to the Assistant Administrator for Fisheries.

Finally, any Federal action agency that receives recommendations regarding EFH must respond to the applicable Council and the Secretary within 30 day of receipt of such recommendations. 16 U.S.C. § 1855(b)(4)(B). The required response must either explain measures for avoiding, mitigating, or offsetting adverse impact of the habitat or explain the agency's reasons for not following such recommendations.

Case No. 1:15-cv-02256-BJR ORAL ARGUMENT REQUESTED EXPEDITED PURSUANT TO 16 U.S.C. § 1855(f)(4) Hon. Barbara J. Rothstein [PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Having fully considered Plaintiffs’ Motion for Summary Judgment, Defendants’ Cross-Motion for Summary Judgment, the papers filed by the parties, and the argument of counsel, the Court finds that there is no genuine issue of material fact in this action and that the Plaintiffs are entitled to summary judgment as a matter of law. IT IS HEREBY ORDERED that, 1.

IV. STANDARD OF REVIEW NMFS’ final rule implementing Amendment 13C is subject to review under the APA, 5 U.S.C. § 706, which provides for judicial review of final agency action, as limited by 16 U.S.C. § 1855(f)(1). The APA generally permits a court 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.”

Def. Council, 433 U.S. 519, 558 (1978); 16 U.S.C. § 1855(f)(1); 5 U.S.C. § 706(2)(A)-(D). A court sets aside regulations only if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]”

STANDARD OF REVIEW Magnuson Act actions taken by NMFS are subject to judicial review under the APA. See 16 U.S.C. § 1855(f); 5 U.S.C. § 702. Judicial review under the APA is limited to the administrative record, and summary judgment is an appropriate mechanism for resolving such challenges.

B. Standard of Review The MSA provides for judicial review pursuant to the APA. 16 U.S.C. §1855(f)(1). Under the APA, an agency action is set aside if it exceeds statutory authority, or is arbitrary, Case 1:16-cv-02495-CKK Document 35-1 Filed 06/23/17 Page 30 of 54 23 56080387 capricious, or otherwise not in accordance with law.

AR 0007537 (emphasis added); see Case 1:15-cv-01220-ESH Document 28-1 Filed 03/03/17 Page 18 of 54 11 also AR 0006682 (drawing a distinction between the methodology’s “analytical techniques and procedures” and the “[d]ifferent analytical tools and models” “used to incorporate discard data into and conduct stock assessments”).11 STANDARD OF REVIEW Judicial review of MSA and NEPA claims is governed by the “arbitrary and capricious” standard set forth in the Administrative Procedure Act (“APA”). 5 U.S.C. § 706(2)(A); see also 16 U.S.C. § 1855(f)(1)(B) (limiting the grounds for setting aside challenged MSA actions to only the grounds in certain provisions of the APA, 5 U.S.C. § 706(2)(A)-(D)); Fishing Co. of Alaska v. Gutierrez, 510 F.3d 328, 330 (D.C. Cir. 2007) (applying APA standard to MSA action); City of Olmsted Falls v. FAA, 292 F.3d 261, 269 (D.C. Cir. 2002) (applying APA standard to review NEPA compliance). “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.”

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.”

STATE OF NEW HAMPSHIRE, ) by its ) ATTORNEY GENERAL ) JOSEPH A. FOSTER, ) ) Intervenor, ) __________________________________ ) MEMORANDUM OF LAW SUPPORTING THE MOTION OF THE STATE OF NEW HAMPSHIRE FOR INTERVENTION AS OF RIGHT, OR IN THE ALTERNATIVE, FOR PERMISSIVE INTERVENTION The State of New Hampshire respectfully submits this Memorandum of Law in support of its Motion to Intervene as of Right under Fed. R. Civ. P. 24(a)(2). I. FACTUAL AND PROCEDURAL SETTING On May 30, 2013, the Plaintiff Commonwealth of Massachusetts filed a lawsuit against the Secretary of Commerce and other U.S. officials, challenging Frameworks 48 and 50 issued by the Secretary under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), 16 U.S.C. § 1855(f) and 1861(d). Massachusetts Case 1:13-cv-11301-RGS Document 17 Filed 09/10/13 Page 1 of 10 2 claims that the Frameworks will have a devastating impact on the groundfishing industry in New England.