STEARNS, District Judge.
Plaintiff Commonwealth of Massachusetts and Intervenor-Plaintiff State of New Hampshire brought this lawsuit alleging that the Secretary of Commerce (Secretary)
Out of concern for rapidly depleting national fisheries and the ecological and social consequences that would follow, Congress enacted the MSA in 1976 to establish a national program for the conservation and management of fishery resources.
A council is required to submit a completed draft FMP (or amendment) to NMFS for review.
The New England Fisheries Management Council (NEFMC) oversees nine separate fisheries in the Atlantic Ocean seaward of the coast of Maine, New Hampshire, Massachusetts, Rhode Island, and Connecticut. Id. § 1852(a)(1)(A). NEFMC promulgated the first Northeast Multispecies Fisheries Management Plan (Groundfish FMP) in 1985. The Northeast Multispecies Fishery (or Groundfish Fishery) is a "mixed stock" fishery of thirteen groundfish species divided into twenty stocks that are often caught together.
Congress significantly amended the MSA through enactment of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, "which introduced a suite of stringent protections for depleted fisheries." Lovgren v. Locke, 701 F.3d 5, 12 (1st Cir.2012). The Reauthorization Act mandated, among other requirements, that FMPs include Annual Catch Limits (ACLs) set "at a level such that overfishing does not occur in the fishery," as well as the imposition of "measures to ensure accountability" for strict adherence to the limits. 16 U.S.C. § 1853(a)(15).
To bring the Groundfish FMP into compliance with the new MSA requirements, NEFMC proposed, and NMFS approved, Amendment 16 in 2009.
The ACL is derived from three calculations. First, the Council must determine the Overfishing Limit (OFL). The OFL is the catch level above which overfishing occurs—in other words, the catch level above the maximum sustainable yield (MSY). 50 C.F.R. § 600.310(e)(2)(i)(D); 75 Fed.Reg. 18,356, 18,357 (Apr. 9, 2010). The Acceptable Biological Catch (ABC)— the maximum amount of fish that may be caught without surpassing the OFL—is then calculated from the OFL, taking into account scientific uncertainty in the initial estimate. 50 C.F.R. § 600.310(f)(2)(ii). In order to set the ABC, the Council must develop an ABC "control rule" based on advice from its Scientific and Statistical Committee (SSC) that "articulate[s] how ABC will be set compared to the OFL based on the scientific knowledge about the stock . . . and the scientific uncertainty in the estimate of OFL and any other scientific uncertainty." Id. §§ 600.310(f)(1), (2)(iii), (4). The objective of the control rule is to provide a buffer between OFL and ABC such that there is less than a 50% chance that overfishing will occur. Id. § 600.310(f)(4). Finally, working from the ABC, the Council sets the ACL for each stock, leaving a second
Despite the new conservation measures imposed by the MSA, many groundfish stocks in New England did not show any sustained improvement. An assessment of the fishery completed in 2012 found that many of the stocks remained overfished and, of these stocks, a majority were subject to overfishing. See AR Doc. 43 at 2,558 (NOAA Assessment). In September of that year, Acting Secretary Blank formally declared the Groundfish Fishery a "disaster." See AR Doc. 138 at 8,841 (letter to Governor Deval Patrick).
NEFMC adopted and NMFS promulgated Framework 50 to set specifications (OFLs, ABCs, ACLs) for groundfish stocks for the fishing years (FY) 2013-2015.
Massachusetts alleges that the new catch limits will effectively close down the entire Groundfish Fishery, and through this lawsuit moves to vacate Framework 48 and Framework 50 for failure to comply with National Standards 2 and 8 of the MSA. New Hampshire intervened in the action pursuant to Fed.R.Civ.P. 24(a)(2), contending that the frameworks also violate National Standard 1. For the reasons to be explained, the court will allow the Secretary's motion for summary judgment.
Challenges to agency actions under the MSA are reviewed under the Administrative Procedures Act (APA). 16 U.S.C. § 1855(f)(1); Conservation Law Found, v. Evans, 360 F.3d 21, 27 (1st Cir.2004). The APA permits a court to invalidate an agency action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
"Fisheries regulation requires highly technical and scientific determinations that are within the agency's expertise, but are beyond the ken of most judges." N. Carolina Fisheries Ass'n, 518 F.Supp.2d at 80. Thus, technical issues implicating NMFS' expertise are afforded substantial deference. See The Ocean Conservancy v. Gutierrez, 394 F.Supp.2d 147, 157 (D.D.C.2005); see also Oceana, Inc. v. Pritzker, ___ F.Supp.3d ___, ___, 2014 WL 616599, at *5 (D.D.C. Feb. 18, 2014) (same). Deference, however, is not exercised with a "rubber stamp"; rather, the court must undertake a "thorough, probing, indepth review" of NMFS' challenged decision. Flaherty v. Bryson, 850 F.Supp.2d 38, 47 (D.D.C.2012).
National Standard 1 provides that "[conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry." 16 U.S.C. § 1851(a)(1). Optimum yield (or OY) is defined in the MSA as the yield from a fishery that "will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems." Id. § 1802(33)(A). Optimum yield "is prescribed on the basis of the maximum sustainable yield from the fishery, as reduced by any relevant social, economic, or ecological factor; and in the case of an overfished fishery, provides for rebuilding to a level consistent with producing the maximum sustainable yield in such fishery." Id. § 1802(33)(B)-(C).
The thrust of New Hampshire's argument is that NMFS improperly discarded considerations of social and economic factors in promulgating Framework 50 in favor of a "mechanistic and formula driven approach" exalting conservation goals to the exclusion of all others. New Hampshire identifies two purported errors by NMFS that allegedly violate National Standard 1: (1) the failure to consider the optimum yield of overfished stocks; and (2) the failure to evaluate how measures undertaken to protect imperiled cod stocks would impede the achievement of optimum yield of healthier stocks. NH's Br. at 5-6. As NMFS points out, however, New Hampshire's objections to its formula for calculating the Acceptable Biological Catch and the Annual Catch Limit are properly directed to Amendment 16 in which the formulas were established, and not Framework 50,
Amendment 16 established the "process for biennial specification of OFLs, ABCs,
In Lovgren, the First Circuit rejected the argument that a stock-by-stock approach to setting Annual Catch Limits for the Groundfish Fishery violated National Standard 1 because it "improperly sacrifice[d] optimum yield to prevent overfishing within the Fishery's weakest stocks." 701 F.3d at 33. The Court of Appeals found that stock-by-stock catch limits (in lieu of aggregate limits for the entire fishery) complied with the MSA even if limits on overfished stocks would depress those of healthy stocks that are unavoidably caught with the endangered species. See id. at 33-34.
Framework 50 did not alter the formula for specifying the Acceptable Biological Catch or Annual Catch Limits for stocks in the Groundfish Fishery, but simply applied the mechanism established in Amendment 16 to calculate those numbers. See 78 Fed.Reg. at 26,176 (describing use of ABC control rule adopted by Amendment 16); AR Doc. 42 at 2,550 ("ABCs are based on the current default ABC control rule that was proposed by the SSC and adopted in Amendment 16."). Accordingly, New Hampshire's challenge to the frameworks under National Standard 1 is foreclosed by the Court of Appeals' decision in Lovgren.
Moreover, NMFS did consider the economic impact that severe limits on unhealthy stocks could have on catches of healthier stocks and took mitigation measures that it believed were consistent with the overarching goal of fisheries conservation. See, e.g., 78 Fed.Reg. 18,188, 18,194 (Mar. 25, 2013) (reducing minimum fish size for groundfish stocks to reduce regulatory discards and increase revenue from catch); id. at 18,195 (eliminating dockside monitoring); 78 Fed.Reg. at 26,175-26,176 (permitting landings of SNE/MA flounder); id. at 26,188 (permitting 10% carryover from FY 2012 for one year); 78 Fed.Reg. 12,708 (Feb. 25, 2013) (increasing monkfish trip limits); AR Doc. 495 at 27,472-27,487 (considering economic impact of lower catch limits). On the whole, the balance struck in FW 50 was well "within the bounds of reasoned decisionmaking required by the APA." Lovgren, 701 F.3d at 33 (internal quotations and citation omitted).
National Standard 2 provides that "[conservation and management measures shall be based upon the best scientific information available." 16 U.S.C.
The Commonwealth challenges the accuracy of the surveys conducted by NMFS to sample the quantity of groundfish stocks, as well as the models used to assess these stocks. The catch limits set out in FW50 are based on two stock assessments. The first assessment, conducted in December of 2011, found that GOM cod stock was overfished. AR Doc. 32 at 1,948 (describing results of the 53rd Northeast Regional Stock Assessment Workshop or SAW). A second assessment undertaken in December of 2012 essentially corroborated the results of the first and concluded that the biomass of GOM and GB cod had dropped sharply from the GARM III assessment conducted in 2008. AR Doc. 230 at 1,5491, 1,5498 (summary report of the 55th Stock Assessment Review Committee or SARC). As a result of this assessment, NMFS determined that GOM and GB cod were overfished and that overfishing was occurring. 78 Fed.Reg. at 26,122.
The Commonwealth's contention that the model used to determine the status of the cod stock violates National Standard 2 is based on NMFS' use of proxy values to calculate the target mortality rate (overfishing threshold)—the mortality rate that, applied over the long term, would result in Maximum Sustainable Yield (expressed as Fmsy). The target biomass for the stock (SSBmsy), in turn, is the long-term average size of the stock achieved by fishing at Fmsy. 50 C.F.R. § 600.310(e)(i)(C). A stock is overfished if its spawning biomass is less than half of the biomass at MSY (or SSBmsy). 55th SAW Assessment Report at 24 (2013), available at http://nefsc.noaa.gov/ publications/crd/crd1311/crd1311.pdf. (last accessed Mar. 27, 2014). The SAW working group
The Commonwealth's premise falters initially because the F40% proxy value used in calculating the MSY reference points in FW50 is identical to—and indeed, was taken from—the proxy used in the 2008 GARM III Assessment (which did not find GOM cod to be overfished). See AR Doc. 230 at 15,498; AR Doc. 7 at 388; 75 Fed.Reg. at 18,263. Moreover, the record contains an analysis by the Plan Development Team (PDT)
Finally, the SARC
The Commonwealth's separate challenge to the adequacy of the assessment data itself, however, presents a closer issue. The Commonwealth argues that NMFS' trawling vessel, the FSV Henry B. Bigelow, and its allegedly inexpert crew, did not achieve an accurate sampling of the stocks in the Groundfish Fishery. The Bigelow replaced the previous research vessel, the Albatross IV, in 2009. AR Doc. 43 at 3,085. According to Massachusetts, after the 2011 assessment by the Bigelow showed sharp declines in groundfish stocks that the 2008 survey intimated were rebuilding (most notably GOM and GB Cod),
In support of this contention, Massachusetts cites an April 30, 2012 joint letter (sent some seven and a half months before the December 2012 survey) to the Secretary from the Massachusetts Congressional delegation stating, in relevant part,
AR Doc. 52 at 4,590. Massachusetts also cites a January 6, 2013 email to NOAA Northeast Regional Administrator John Bullard from Dr. Brian Rothschild,
The issue boils down to this: whether NMFS' refusal to deploy an additional, fishing industry-supplied survey vessel as a check on the accuracy of the Bigelow amounted to a failure to resort to the "best scientific information available" in formulating the groundfish stock assessments.
While the side-by-side trawling option was a proven methodology that NMFS could have deployed, National Standard 2 "does not mandate any affirmative obligation on [NMFS'] part" to collect new data. Commonwealth of Mass. by Div. of Marine Fisheries v. Daley, 10 F.Supp.2d 74, 77 (D.Mass.1998). Simply stated, NMFS is not required to strive to obtain the best scientific data possible. Blue Water Fishermen's Assn., 226 F.Supp.2d at 338. Because the imperative imposed on the agency by Congress is one of urgent action, and not the achievement of fishery science perfection, the agency may—indeed must—act in times of perceived emergency on "incomplete or imperfect" data.
Massachusetts' final challenge to the FY 2013-2015 catch limits arises under National Standard 8 of the MSA, which provides that
16 U.S.C. § 1851(a)(8). Massachusetts claims that NMFS is responsible for a "per se" violation of National Standard 8 because of its failure to consider any less-restrictive viable alternatives to its proposed and ultimately implemented Annual Catch Limits.
National Standard 8 requires NMFS, "subject to a rule of reason," to "examine[] the impacts of, and alternatives to" the plan it ultimately adopts. Little Bay Lobster Co., Inc. v. Evans, 352 F.3d 462, 470 (1st Cir.2003). Massachusetts' position that NMFS did not fulfill its obligations under National Standard 8 is based on Congressional mandates set out in the National Environmental Policy Act (NEPA) and Regulatory Flexibility Act (RFA).
Massachusetts, however, does not cite a single case supporting its contention that the MSA implicitly incorporates the procedural requirements of the NEPA or the RFA. Instead, the Commonwealth asserts that the First Circuit has "made clear" in Little Bay Lobster that a court's "method of analysis" is the same when considering claims under the three statutes. Mass.' Rep. Br. at 4 n. 3. But while NMFS may cite to an Environmental Assessment— which may also be used to satisfy NEPA and RFA requirements—to demonstrate compliance with National Standard 8, it does not follow that the obligations imposed by National Standard 8 are identical to those mandated by the NEPA and the RFA. See Little Bay Lobster, 352 F.3d at 470 (the RFA "creates procedural obligations" and is thus a "quite different statute" than National Standard 8); see also Ace Lobster Co., Inc. v. Evans, 165 F.Supp.2d 148, 183 (D.R.I.2001) ("[Neither the standards set in national standard 8 and the RFA, nor the requisite legal analysis for each, are the same."). For this reason, the First Circuit's reference to a single environmental impact statement to dispose of claims under both National Standard 8 and the RFA does not carry the argument that the statutes' requirements are co-extensive. See Little Bay Lobster, 352 F.3d at 469-470.
Quite to the contrary, the advisory guidelines to National Standard 8 explicitly state that "[d]eliberations regarding the importance of fishery resources to affected fishing communities [] must not compromise the achievement of conservation requirements and goals of the FMP." 50 C.F.R. § 600.345(b)(1) (emphasis added). The plain language of National Standard 8 makes clear that NMFS' obligation to minimize the economic impact of a Fishery Management Plan is subordinate to the MSA's conservation goals. Lovgren, 701 F.3d at 35. Thus, "[i]t is only when two different plans achieve similar conservation measures that [NMFS] takes into consideration adverse economic consequences." Natural Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 753 (D.C.Cir.2000) (emphasis added); see also Blue Ocean Inst. v. Gutierrez, 585 F.Supp.2d 36, 44 n. 4 (D.D.C.2008) ("Because none of the scenarios that the Department [of Commerce] evaluated `achieved similar conservation measures,' it should not have considered the adverse economic effects on the proposed closure on fishing communities."). Even when deciding between two alternatives that would achieve similar conservation goals, NMFS "need not conduct an
Here, Massachusetts contends that NMFS erred by not considering a substitute menu of higher ACLs to determine whether expanded catch limits could have accomplished the MSA's conservation objectives at a lower cost to the affected fishing communities. The adopted ACLs, however, were derived from the Acceptable Biological Catch recommendations of the Scientific and Statistical Committee. See Doc. 498 at 27,649 (App. III to FW 50 EA). In developing ACLs, the NEFMC "may not exceed the fishing level recommendations of its scientific and statistical committee." 16 U.S.C. § 1852(h)(6). Thus, any proposed slate of ACLs above the SSC's recommendations would itself have violated the MSA
The only viable alternative that Massachusetts can identify, then, is shrinking or eliminating the management uncertainty buffers between each stock's ABC and ACL to increase the catch limits. See 50 C.F.R. § 600.310(f)(5) (ACL cannot exceed the ABC, but the values may be identical). Consistent with National Standard 2, however, NMFS must rely on the "best scientific information available"; it cannot simply reduce or eliminate accounting for management uncertainty in favor of socioeconomic considerations without some justification for doing so. 16 U.S.C. § 1851(a)(2); see also 74 Fed.Reg. 3,178, 3,190 (Jan. 16, 2009) ("NMFS believes that fisheries managers cannot consistently meet the requirements of the MSA to prevent overfishing and achieve, on a continuing basis, [optimum yield] unless they address scientific and management uncertainty.").
The Annual Catch Limits set out in Framework 50 maintained the default buffer range established in Framework 44 of between 3% to 7% of the Acceptable Biological Catch, with 5% used for most stocks (in other words, ACLs were set between 93% and 97% of the ABCs). 78 Fed.Reg. at 26,195-26,196; AR Doc. 498 at 27,559. The Council explicitly considered these management uncertainty buffers and concluded that they were necessary to prevent overfishing, but did, nonetheless, decrease the buffer for two stocks within this range, while rejecting proposals to increase the existing buffers for others. See AR Doc. 498 at 27,659-27,661. Contrary to Massachusetts' position, nothing in the record suggests that the Council acted unreasonably in the way it addressed the issue.
Finally, the record demonstrates that the Council and NMFS took appropriate steps to mitigate the admittedly "large negative" social and economic impacts flowing from the "drastic" ACL reductions. In addition to the remedial measures discussed above with respect to National Standard 1, the Council and NMFS elected to use the higher of the
For the foregoing reasons, plaintiffs' motions for summary judgment are DENIED. Defendants' motion for summary judgment is ALLOWED. The Clerk will enter judgment for defendants and close the case.
SO ORDERED.
