Anglers Conservation Network v. Pritzker

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ANGLERS CONSERVATION
NETWORK, et al . ,

Plaintiffs,

v. Civil Action No. 14-509 (GK)

PENNY PRITZKER, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs Anglers Conservation Network, Paul Eidman, Gateway

Striper Club, Inc., and Philip Lofgren (collectively,

"Plaintiffs"), bring this case against Secretary of the Department

of Commerce Penny Pritzker ("the Secretary"), the National Oceanic

and Atmospheric Administration ("NOAA"), and the National Marine

Fisheries Service ( "NMFS") (collectively, "Defendants" or "the

Government") pursuant to the Magnuson-Stevens Fishery Conservation

and Management Act ("MSA" or "the Act"), 16 U.S.C. §§ 1801 et seq.;

the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321

et seq.; and the Administrative Procedure Act ("APA") ,

5 U.S.C. §§ 701 et seq.

Plaintiffs challenge various elements of a Rule that

Defendants promulgated amending the fishery management plan

governing the Mackerel, Squid, and Butterfish ("MSB") fishery off

of the eastern coast of the United States. Specifically, Plaintiffs
contend that Defendants unlawfully failed: (1) to include four

species of river herring and shad as "stocks" to be regulated by

the MSB fishery management plan; (2) to adopt observation measures

necessary to prevent overfishing of the relevant river herring and

shad species; and ( 3) to adequately consider the environmental

impact of its chosen course.

This matter is before the Court on Plaintiffs' and Defendants'

Cross-Motions for Summary Judgment [Dkt. Nos. 30, 31]. Upon

consideration of the Motions, Oppositions [ Dkt. Nos. 32, 3 6] ,

Replies [Dkt. Nos. 36, 38], and the entire record herein, and for

the reasons set forth below, the Motions for Summary Judgment filed

by the Parties shall be granted in part and denied in part.

I . BACKGROUND

A. · Statutory Background

1. Magnuson-Stevens Act

Congress first enacted the MSA in 1976 "to take immediate

action to conserve and manage the fishery resources found off the

coasts of the United States[.]" 16 U.S.C. § 180l(b) (1). The Act

establishes a federal-regional framework "for the conservation and

management of the fishery resources of the United States" in order

to "prevent overfishing," "rebuild overfished stocks," "[e]nsure

conservation," and "facilitate long-term protection of essential

fish habitats." Id. § 1801 (a) ( 6); see also Natural Res. Def.

Council, Inc. v. Daley, 209 F.3d 747, 749 (D.C. Cir. 2000).

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Regulation of fisheries is accomplished through fishery management

plans ("FMPs") that are developed and prepared by independent

regional fishery management councils ("councils") and approved,

implemented and enforced by NMFS, 1 a division within the Department

of Commerce. See 16 U.S.C. §§ 1853-1854.

The MSA divides the United States into eight regions, each of

which is represented by an independent fishery management council.

See id. § 1852 (a) (1). Councils are composed primarily of members

who represent the interests of the states included in their region

and who are appointed by the Secretary from a list of individuals

submitted by the governor of each constituent state. Id.

§ 1852 (b) (1), (2); see also C & W Fish Co. v. Fox, Jr., 931 F.2d

1556, 1557-58 (D.C. Cir. 1991). The remaining voting members of

each council consist of the principal marine fishery management

officials from each constituent state and the regional director of

NMFS for the related geographic area. 16 U.S.C. § 1852 (b) (1) (A),

( B) .

Each council is required to prepare and submit to the

Secretary (acting through NMFS) a fishery management plan and any

necessary amendments to such plan, "for each fishery under its

authority that requires conservation and management[.]" Id.

1 The Secretary has delegated her authority to approve or
disapprove plans and their amendments under 16 U.S.C. § 1854 (a) (3)
to NMFS. Oceana, Inc. v. Locke, 831 F. Supp. 2d 95, 101 (D.D.C.
2011).
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§ 1852(h) (1). The term "fishery" is defined in the Act as "one or

more stocks of fish which can be treated as a unit for purposes of

conservation and management and which are identified on the basis

of geographical, scientific, technical, recreational, and economic

characteristics; and [] any fishing for such stocks." Id.

§ 1802(13). The term "stock of fish," in turn, is defined as "a

species, subspecies, geographical grouping, or other category of

fish capable of management as a unit." 16 U.S.C. § 1802(42).

A fishery management plan must describe the species of fish

involved in the fishery and specify the "conservation and

management measures" that are "necessary and appropriate" to

"prevent overfishing and rebuild overfished stocks, and to

protect, restore, and promote the long-term health and stability

of the fishery[.]" Id.§ 1853(a)(l)(A), (2).

After a council prepares and approves a fishery management

plan or amendment, it is sent to NMFS, which reviews it for

consistency with the MSA and other applicable laws and publishes

it in the Federal Register for notice and comment. Id. §

1854(a) (1). After a 60-day notice and comment period, NMFS must

"approve, disapprove, or partia.lly approve a plan or amendment [,]"

taking into account the views and comments of interested persons.

Id. § 1854 (a) (2), (3).

If NMFS approves a plan or amendment, or does not expressly

disapprove it within 30 days, it becomes effective. Id.

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§ 1854 (a) (3). If NMFS disapproves or partially approves the plan

or amendment, NMFS must thereafter notify the council of "the

applicable law with which the plan or amendment is inconsistent";

the "nature of such inconsistencies"; and specific "actions that

could be taken by the Council to conform such plan or amendment to

the requirements of applicable law." Id. § 1854 (a) (3). The council

"may" thereafter "submit a revised plan or amendment to the

Secretary for review [.]" Id. § 1854 (a) (4).

2. National Environmental Policy Act

Congress enacted NEPA in order "to use ~11 practicable means,

consistent with other essential considerations of national policy,

to improve and coordinate Federal plans, functions, programs, and

resources to the end that the Nation may fulfill the

responsibilities of each generation as trustee of the environment

for succeeding generations." 42 U.S. C. § 4 331 (b) . To accomplish

that goal, NEPA requires all federal agencies to prepare an

Environmental Impact Statement ("EIS") whenever they propose

"major Federal actions significantly affecting the quality of the

human environment." Id. § 4332 (2) (C) . The EIS must "present the

environmental impacts of the proposal and the alternatives in

comparative form, thus sharply defining the issues and providing

a clear basis for choice among options by the decisionmaker and

the public." 40 C.F.R. § 1502.14.

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 B. Factual Background2

1. Shad and River Herring

At the center of this case are four species of anadromous

fish, that is, fish that spend most of their lives in ocean waters

but migrate upstream to fresh water in the spring to spawn. See

AR 11408. Anadromous fish play a critical role in the biology of

rivers, estuaries and ocean waters along the Atlantic seaboard as

prey for many species of fish, birds, and marine mammals. AR 8265,

8268, 8291, 8416, 12818, 12947, 13498.

Two of the four species at issue in this case are known as

river herring. They are: Alewife (alosa pseudoharengus), which

are most abundant in the Mid-Atlantic and Northeastern states, and

blueback herring (alosa aestivalis), which are found from Nova

Scotia to northern Florida and are most abundant in waters south

of the Chesapeake Bay. AR 1148. Alewife spawn in rivers, creeks,

lakes, and ponds over rocks, detritus, submerged aquatic

vegetation, and sand. Id. Blueback herring generally prefer to

2 Plaintiffs' briefs contained citations to factual materials
beyond the scope of the Administrative Record. The Government
objected to the Court's consideration of those materials and
accordingly, filed a Motion to Strike Extra-Record Documents and
Citations [Dkt. No. 33]. The Court granted that Motion [Dkt. No.
4 4] .

For these reasons, the facts that follow are drawn solely
from the Administrative Record ("AR") [Dkt. No. 43] compiled by
NMFS.
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spawn over sand or gravel in swift-flowing areas of rivers and

tributaries. Id.

The other two species are known as shad. They are: American

Shad (alosa sapidissima), which historically populated all major

North American rivers from Maine to the east coast of Florida. AR

11201, 11411. American shad stocks are river-specific, which is to

say that each major tributary along the Atlantic coast provides

the spawning area for a particular stock of American shad. Id. The

other species is Hickory Shad (alosa mediocris) of which less is

known. "[D]istribution and movements of hickory shad are

essentially unknown after they return to the ocean"; however, "due

to harvest along the southern New England coast in the summer and

fall it is assumed that they also follow a migratory pattern

similar to the American shad[.]" AR 11411.

The Administrative Record is not entirely clear as to the

current status of the shad and river herring. Portions indicate

that the four species are relatively numerous, whereas others show

diminishing numbers. Compare 78 Fed. Reg. 48,944, 48,992 with

AR 10438.

For example, in May 2012 the Atlantic States Marine Fisheries

Commission ( "ASMFC") performed an assessment of 52 stocks of

alewife and blueback herring. AR 12921. However, the ASMFC lacked

sufficient data to develop estimates of abundance and fishing

mortality for 28 of the 52 stocks. Id. Of the 24 stocks for which

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data were available, 23 were depleted relative to historic levels

and one stock was increasing. Id.

By contrast, in 2013, relying on the blueback herring's coast-

wide population growth rate, NMFS concluded that the relative

abundance of blueback herring throughout its range is stable. 78

Fed. Reg. 48,944, 48,992. Moreover, there are at least three

contiguous populations of alewife that are either stable or

significantly increasing. Id. From a coast-wide perspective, the

trajectory of the alewife population is significantly increasing

and all of the stock complexes are stable or significantly

increasing. Id.

On August 12, 2013, NMFS issued a 50-page decision finding

that listing river herring (i.e., both alewife and blueback

herring) as threatened or endangered under the Endangered Species

Act ("ESA") was not warranted. See 78 Fed. Reg. 48,944. NMFS

determined that neither species of river herring was in danger of

extinction or likely to become so for the foreseeable future to

2030. Supp. AR, 78 Fed. Reg. at 4~,993.

The pattern of mixed and limited data continues with both

species of shad. In 2012, the Mid-Atlantic Fisheries Management

Council ("the Council") set out to study 32 stocks of American and

hickory shad. AR 12924. The Council found that it lacked sufficient

information to make any conclusions about eight of the 32 stocks.

Id. However, it was ·able to conclude that 11 stocks were depleted

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relative to historic levels, 2 were increasing, and 11 were stable.

Id. The lack of adequate data has prevented any reliable

assessments of the stock abundance and fishing mortality of shad.

AR 8 5 6 7 , 8 8 0 5 , 9 2 2 7 .

2. Mackerel, Squid and Butterfish Fishery Management
Plan

The Mid-Atlantic Fisheries Management Council established the

Atlantic Mackerel, Squid and Butterfish Fishery Management Plan in

1983. The Council manages these three species as a single unit

because of their similarities in fishing seasons and vulnerability

to common threats, including the threat of by-catch from foreign

fleets. River herring (alewife and blueback herring) and shad

(American shad and hickory shad) are anadromous species that co-

occur seasonally with mackerel; fishermen harvest them as

incidental catch in the mackerel fishery. 79 Fed. Reg. 10,031 (Feb.

24, 2014). When river herring and shad are encountered in the

mackerel fishery, they are either discarded at sea ("bycatch") or

retained and sold as part of the mackerel catch ("incidental

catch"). Id.; see also AR 11404.

a. Amendment 14

In June 2010, the Mid-Atlantic Fisheries Management Council

published a notice of intent to prepare a new amendment to the MSB

fishery management plan ( "MSB FMP") , known as Amendment 14. 75

Fed. Reg. 32,745; see also 79 Fed. Reg. 10,029 (Feb. 24, 2014). In

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the initial stages of considering the alternative measures that

might be included in Amendment 14, the Council set out to do the

following: "1) improve moni taring and observing of incidental

[river herring and shad] catch; 2) consider ways to reduce [river

herring and shad] catch; and 3) consider adding [river herring and

shad] as managed stocks in the MSB FMP (i.e. as stocks in the

fishery) so as to improve overall [river herring and shad]

conservation." AR 8191.

First, as part of Amendment 14, the Council and NMFS

implemented new measures that are intended to minimize

herring/shad bycatch mortality in the mackerel fishery, and

improve the precision of the Council and NMFS' s estimates of

herring/shad catch and bycatch. After a public comment period,

NMFS partially approved Amendment 14, on November 7, 2013. 79 Fed.

Reg. at 10,029, 10,031. Amendment 14 established a mortality cap

measure for the herring I shad in the mackerel fishery. The cap.

requires the mackerel fishery to close once NMFS has determined

that the mackerel fishery has caused a certain amount of

herring/shad mortality. Id. The Council and NMFS reasoned that

capping the allowed level of river herring and shad catch in the

mackerel fishery would provide a strong incentive for the industry

to continue to avoid river herring and shad, and minimize

encounters with and therefore reduce the bycatch of these species.

Id.

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 Second, Amendment 14 also set forth several measures NMFS

intends to initiate in the future to reduce herring/shad bycatch

and bycatch mortality, including the development of a "bycatch

avoidance strategy" with state and university partners. 79 Fed.

Reg. 10,029, 10,034.

In addition, Amendment 14 requires 48-hour pre-trip

notification of intent to retain more than 20, 000 pounds of

mackerel. Id. Such notification is required to ensure that the

Council and NMFS have sufficient notice to assign observers to the

fishing vessels. Id. The notification also requires daily catch

reporting for certain mackerel vessels via the Vessel Monitoring

System in order to facilitate monitoring and cross-checking with

other data sources. Id.

The Amendment also requires six-hour pre-landing notification

via the Vessel Monitoring System to land over 20,000 pounds of

mackerel to allow sufficient notice to facilitate at-sea

monitoring, enforcement, and portside monitoring. Id. The

Amendment expands requirements related to at-sea observer sampling

to help ensure safe sampling and improve data quality. The

Amendment prohibits slippage (i.e., at sea dumping of fish that

have been caught) on limited access mackerel trips with observers

aboard, and requires vessel operators to submit a released catch

affidavit for each slippage event. Id.

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 Notably, and at the heart of this case, the final version of

Amendment 14 promulgated by NMFS did not include two measures that

Plaintiffs support. First, the Council recommended a version of

Amendment 14 that would have increased the number of on-board

observers who monitor compliance with applicable law. AR 12799. As

proposed by the Council, observers would have been on 100% of

certain vessels in the MSB fishery and would have been partially

funded by the fishing industry itself. Id. For a variety of reasons

discussed below, NMFS rejected this measure in the final version

of Amendment 14. 79 Fed. Reg. 10,034.

Second, the Council decided not to recommend the addition of

herring/shad stocks to the MSB fishery in Amendment 14. 79 Fed.

Reg. 10, 034. Instead, the Council stated that it would further

consider adding stocks to the fishery in the subsequent Amendment

15. Id.

b. Amendment 15

On June 14, 2012, Defendants and the Council initiated

Amendment 15 "to add [river herring and shad] as stocks in the

fishery," AR 10444, and scoping for the action began in October

2012. 77 Fed. Reg. 65,867. Numerous fishermen and other

stakeholders commented on the need to add river herring and shad

to the MSB FMP. AR 13789. On October 8, 2013, after studying the

issue and considering public comments and testimony, the Council

suspended further consideration of Amendment 15, and instead

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 created a new working group to further study the issue for at least

three years. 79 Fed. Reg. 10,034. Plaintiffs challenged the

termination of Amendment 15, and this Court granted Defendants'

Motion to Dismiss that challenge on September 30, 2014. Anglers

Conservation Network v. Pritzker, 70 F. Supp. 3d 427, 441 (D.D.C.

2014) .

C. Procedural Background

On February 24, 2014, NMFS promulgated the final version of

Amendment 14. 79 Fed. Reg. 10029.

On March 26, 2014, while their challenge to the Council's

suspension of Amendment 15 was still pending, Plaintiffs filed

their Complaint challenging Amendment 14 [Dkt. No. 1].

On October 27, 2014, Plaintiffs filed their Motion for Summary

Judgment [Dkt. No. 30]. On December 4, 2014, the Government filed

its combined Cross-Motion for Summary Judgment and Opposition

[Dkt. No. 31]. On December 19, 2014, Plaintiffs filed their

combined Opposition and Reply [Dkt. No. 36), and on January 20,

2015, the Government filed its Reply [Dkt. No. 38] .3

II. STANDARD OF REVIEW

Summary judgment will be granted when there is no genuine

issue as to any material fact. See Fed. R. Civ. P. 56(c). Because

3
On September 24, 2015, Defendants filed a Notice of Supplemental
Authority [Dkt. No. 45]. No response was filed. The Court is not
relying upon this last-minute submission by Defendants.
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this case involves a challenge to a final administrative decision,

the Court's review on summary judgment is limited to the

Administrative Record. Holy Land Found. for Relief and Dev. v.

Ashcroft, 333 F.3d 156, 160 (D.C. Cir. 2003) (citing Camp v. Pitts,

411 U.S. 138, 142 (1973)); Richards v. INS, 554 F.2d 1173, 1177

(D.C. Cir. 1977) ("Summary judgment is an appropriate procedure

for resolving a challenge to a federal agency's administrative

decision when review is based upon the administrative record.").

Agency decisions under the Magnuson-Stevens Act and NEPA are

reviewed pursuant to Section 706(2) of the APA. 16 U.S.C.

§ 1855 (f) (1) (B) ("the appropriate court shall only set aside"

actions under the MSA "on a ground specified in [5 U.S.C.

§] 706(2) (A), (B), (C), or (D) .");Oceana, Inc. v. Locke, 670 F.3d

1238, 1240-41 (D.C. Cir. 2011); C & W Fish, 931 F.2d at 1562;

Oceana v. Locke, 831 F.Supp.2d 95, 106, 2011 WL 6357795, at *8

(D.D.C. 2011). In relevant part, 5 U.S.C. § 706(2) requires a court

to hold agency action unlawful if it is "arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law."

The arbitrary and capricious standard of the APA is a narrow

standard of review. Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402, 416 (1971). It is well established in our

Circuit that the "court's review is . highly deferential" and

"we are 'not to substitute [our] judgment for that of the agency'

but must 'consider whether the decision was based on a

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 consideration of the relevant factors and whether there has been

a clear error of judgment.'" Bloch v. Powell, 348 F.3d 1060, 1070

(D.C. Cir. 2003) (quoting S. Co. Servs., Inc. v. FCC, 313 F.3d

574, 579-80 (D.C. Cir. 2002)); see also United States v. Paddack,

825 F.2d 504, 514 (D.C. Cir. 1987). However, this deferential

standard cannot permit courts "merely to rubber stamp agency

actions," NRDC v. Daley, 209 F.3d 747, 755 (D.C. Cir. 2000), nor

be used to shield the agency's decision from undergoing a

"thorough, probing, in-depth review." Midtec Paper Corp. v. United

States, 857 F.2d 1487, 1499 (D.C. Cir. 1988) (internal citations

and quotations omitted).

An agency satisfies the arbitrary and capricious standard if

it "examine[s] the relevant data and articulate[s] a satisfactory

explanation for its action including a 'rational connection

between the facts found and the choice made.'" Motor Vehicle Mfrs.

Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)

(quoting Burlington Truck Lines v. United States, 371 U.S. 156,

168 (1962) ); Lichoulas v. FERC, 606 F.3d 769, 775 (D.C. Cir. 2010).

Finally, courts "do not defer to the agency's conclusory or

unsupported suppositions." McDonnell Douglas Corp. v. U.S. Dep't

of the Air Force, 375 F.3d 1182, 1186-87 (D.C. Cir. 2004) . 4

4
The purpose of a motion for summary judgment challenging final
agency action is "to test the agency action against the
administrative record." LCvR 7 (h). The Court must evaluate the
agency's decision on the basis of "the full administrative record
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III. ANALYSIS

A. Count I: Failure to Include River Herring and Shad Stocks
in the MSB Fishery

1. The Government's Duty to Consider Adding Stocks to
the Fishery

Plaintiffs contend that the Government violated the APA and

the MSA by refusing to add river herring and shad stocks to the

MSB fishery because NMFS's own data and analysis demonstrate that

the four species at issue are caught in the fishery and require

conservation and management. The Government responds with a

variety of arguments as to why it refused to even consider addition

of river herring and shad stocks to the MSB fishery as part of

Amendment 14. The Government also contends on the merits that its.

decision declining to add new stocks to the fishery was not

arbitrary and capricious.

The Government's first response to Plaintiffs' contention is

that the burden for assessing which stocks should be in a fishery

rests with the regional councils, not NMFS. But this Court has

previously rejected that argument. See Flaherty v. Bryson, 850 F.

that was before the Secretary at the time [she] made [her]
decision." Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402,
420 (1971), abrogated on other grounds by Califano v. Sanders, 430
U.S. 99 ( 1977) . In reviewing agency action, the district court
"sits as an appellate tribunal, not as a court authorized to
determine in a trial-type proceeding whether the Secretary's
[action] was factually flawed." Marshall Cnty. Health Care Auth.
v. Shalala, 988 F.2d 1221, 1225 (D.C. Cir. 1993).

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Supp. 2d 38, 54 (D.D.C. 2012) ("it is [NMFS's] responsibility to

decide whether an FMP, including the composition of its fishery,

satisfies the goals and language of the MSA." (internal citation

omitted)) .

Al though amendments to fishery management plans originate

with the regional fisheries management councils, 16 u.s.c.
§ 1852 (h) (1), ultimate responsibility for the details of any

amendment -- including the decision to add certain stocks to a

fishery -- rests with NMFS. Flaherty, 850 F. Supp. 2d at 54.

Regardless of what the Council recommends, "NMFS must make its own

assessment of whether the Council's determination as to which

stocks can be managed as a unit and require conservation and

management 5 is reasonable." Id. at 55 (citing Motor Vehicle Mfrs.

Ass'n, 463 U.S. at 52).

The Government does not dispute that river herring and shad

could be managed as a unit along with the mackerel, squid, and

5 See 16 U.S.C § 1802 (5), which provides that "[t]he term
'conservation and management' refers to all of the rules,
regulations, conditions, methods, and other measures (A) which are
required to rebuild, restore, or maintain, and which are useful in
rebuilding, restoring, or maintaining, any fishery resource and
the marine environment; and (B) which are designed to assure that-
- (i) a supply of food and other products may be taken, and that
recreational benefits may be obtained~ on a continuing basis; (ii)
irreversible or long-term adverse effects on fishery resources and
the marine environment are avoided; and (iii) there will be a
multiplicity of options available with respect to future uses of
these resources."

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butterfish. The ultimate question for the Court. is whether the

Government's decision refusing to add river herring and shad stocks

to the MSB fishery was "arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law." 5 U.S.C. §

706.

Second, the Government contends that it need not have

considered whether to add new stocks to the fishery because the

Council would be considering it as part of Amendment 15. However,

it is well established that promises of future compliance with the

law cannot satisfy the Government's current legal obligation. See

Conservation Law Found. v. Evans, 209 F. Supp. 2d 1, 10 (D.D.C.

2001); see also Oceana, Inc. v. Pritzker, 24 F. Supp. 3d 49, 62

(D.D.C. 2014); Oceana v. Locke, 831 F. Supp. 2d 95, 121-22 (D.D.C.

2011) . Thus, if the Court were to conclude that, based upon the

Administrative Record compiled for Amendment 14, the MSA requires

the addition of river herring and shad stocks to the MSB fishery,

the Government cannot escape Plaintiffs' challenge with the mere

promise to consider the issue as part of a future amendment. 6

6 The Government also notes that in a related case dealing
exclusively with Amendment 15 this Court held that Plaintiffs could
not challenge the Council's failure to proceed with that Amendment.
The Government asserts that "[t]he Court should decline to permit
Plaintiffs to circumvent the Court's previous decision by granting
them the relief they could not obtain in the Amendment 15 case."
Gov't's Reply at 14 (citing Anglers Conservation Network v.
Pritzker, 70 F. Supp. 3d 427, 440 (D.D.C. 2014)). However, despite
the Government's assertions, the opinion the Government cites
sheds no light on whether Plaintiffs may obtain the relief they
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 Third, the Government also argues that it need not complete

a wholesale review of which stocks should be in a particular

fishery with each amendment to that fishery's management plan.

Gov't's Mot. at 32 (citing Oceana, Inc. v. Pritzker, 24 F. Supp.

3d 49, 63 (D.D.C. 2014); Pacific Coast Federation of Fishermen's

Associations v. Blank, 693 F.3d 1084, 1102, n.15 (9th Cir. 2012)).

It is true, as Judge Contreras in this District Court has

recognized, that "[i]f the [Government] were required to make a

wholesale reconsideration of which stocks to include in the fishery

every time it amends an FMP, the delay [caused by the amendment

review process] would be much greater." Oceana, Inc. v. Pritzker,

24 F. Supp. 3d 49, 64 (D.D.C. 2014).

Although not every single FMP amendment gives rise to a duty

to consider a wholesale review of which stocks should be added to

the fishery, consideration of certain amendments would logically

include such a duty. It is black letter law that an agency acts

arbitrarily and capriciously when it "entirely fail[s] to consider

an important aspect of the problem." Motor Vehicle Mfrs. Ass' n,

463 U.S. at 43. The Council initially took up Amendment 14 in order

to consider whether "the management framework then in place [was]

seek in this action. Plaintiffs could not obtain relief in Anglers
Conservation Network, 70 F. Supp. 3d at 440, because they failed
to identify "a discrete agency action that [the Government was]
required to take." In this action, by contrast, Plaintiffs
challenge final agency action: Amendment 14.
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insufficient to manage [river herring and shad]." Gov't's Mot. at

15 (citing AR 12724); see also 78 Fed. Reg. 53404 (Council adopted

Amendment 14, among other reasons, "to address incidental catch of

river herring and shad").

Plaintiffs respond that because the management of shad and

river herring stocks was a central concern of Amendment 14, failing

to give even a nod to the obvious possibility of adding these

species to the MSB fishery was arbitrary and capricious. However,

despite the Government's contention that it had no duty to consider

adding stocks to the fishery, the Government did, in fact, consider

adding the river herring and shad stocks to the MSB fishery.

Moreover, the Government documented its views in its Draft

Environmental Impact Statement ("DEIS"). AR at 8373. See, infra.

In its final argument, the Government next argues that the

Court should not reach the merits of the stocks-in-the-fishery

question because Plaintiffs have not petitioned NMFS to add river

herring and shad to the fishery under 5 U.S.C. § 553(e). However,

5 U.S.C. § 704 provides that "[a]gency action made reviewable by

statute and final agency action for which there is no other

adequate remedy in a court are subject to judicial review."

Amendment 14 falls within §704's reach. 16 U.S.C. § 1855(f). The

Government cites no authority for the proposition that Plaintiffs

were required to petition NMFS in order to challenge Amendment 14.

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Accordingly, Plaintiffs' failure to submit such a petition is

irrelevant.

2. The Government's Decision Rejecting Addi ti on of
Stocks to the Fishery

Plaintiffs contend that the Government's failure to add the

stocks to the fishery was "arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law." 5 U.S.C. §

706(2).

Citing 16 U.S.C. § 1852 (h) (1) and Flaherty, 850 F. Supp. 2d

at 54-55, Plaintiffs contend that all stocks that can be managed

in a fishery and require conservation and management must be added

to a fishery under an FMP. The Government disagrees, arguing that

the MSA affords NMFS discretion as to whether stocks requiring

conservation and management must be included in an FMP, and that

stocks are required to be added to a fishery only when they are

overfished or approaching an overfished condition. Gov't's Mot. at

32 n. 13 (citing 16 U.S.C. § 1854(e)); Gov't's Reply at 15.

This Court has already considered and ruled on these issues.

In Flaherty, the Court rejected the Government's "overfishing"

standard, stating clearly that while "[i]t is true that the MSA

requires management measures when NMFS finds overfishing [, J it

certainly does not follow that in the absence o~ overfishing NMFS

may simply rubber stamp the Council's decisions." 850 F. Supp. 2d

at 54.

- 21 -
 The Court went on to hold that the MSA requires that any

stocks requiring the conservation and management provided by an

FMP must be placed under one. See Flaherty 850 F. Supp. 2d 38, 54-

55 (D.D.C. 2012) (holding that NMFS must "ensur[e] compliance with

Section 1852(h)'s requirement that the Council prepare an FMP or

amendment for any stock of fish that requires conservation and

management"). The Court reasoned that:

Section [1852(h)] requires FMPs and necessary amendments
for all stocks of fish which can be treated as a unit for
purposes of conservation and management and which are in
need of conservation and management. Thus, NMFS must make
its own assessment of whether the Council's determination
as to which stocks can be managed as a unit and require
conservation and management is reasonable.

There is no basis for concluding, as [the Government
does], that the structure of the MSA weakens Section
1854's command that NMFS review proposed plans and
amendments for compliance with the statute. The standards
to be applied in reviewing NMFS' s conclusion that [an
amendment] complies with Section 1852(h) are therefore
no different than review of NMFS' s conclusion that an
amendment complies with the National Standards.

Flaherty, 850 F. Supp. 2d at 54-55 (internal citations and

quotation marks omitted) . 7

7 The Government relies heavily upon a recently published opinion
from the U.S. District Court for the District of Alaska to support
its contention that the MSA is ambiguous as to "whether all stocks
that have conservation and management needs must be added to a
federal fishery management plan." See Gov' t' s Reply at 14-17
(citing United Cook Inlet Drift Assoc. v. National Marine Fisheries
Service, No. 13-104 (D. Ak. Sept. 5, 2014)). This decision is not
binding on this Court, and the Court declines to follow it.
- 22 -
 As noted earlier, the Government does not dispute that river

herring and shad stocks can be treated as a unit along with

mackerel stocks for the purposes of conservation and management,

which is to say that the Government has not disputed that river

herring and shad could be added to the MSB fishery. See 16 U.S.C.

§ 1802(13) (defining "fishery" as "one or more stocks of fish which

can be treated as a unit for purposes of conservation and

management and which are identified on the basis of geographical,

scientific, technical, recreational, and economic characteristics;

and [] any fishing for such stocks.") . · Accordingly, the only

question is whether river herring and shad require the conservation

and management measures that inclusion in the MSB FMP would

provide.

The Government contends that the Administrative Record

prepared for Amendment 14 "did not demonstrate that herring/shad

required conservation and management under an MSA fishery

management plan." Gov' t' s Mot. at 33 (emphasis in original) .

Plaintiffs disagree, arguing that "[t]he best available scientific

information in the [A] dministrati ve [R] ecord demonstrates that

river herring and shad need conservation and management, that catch

in federal fisheries has contributed to their decline, and that

their addition as stocks managed in the plan is necessary to

conserve and manage them[.]" Pls.' Reply at 13.

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 As already noted, supra at p. 7, the current status of the

four species of river herring and shad is not entirely clear from

the data available. Plaintiffs note that a variety of factors

have caused declines in the river herring and shad populations.

See AR 8389-92, 10436-39, 13498. Among other things, Plaintiffs

point to a report from May 2012, stating that "[o]f the 52 stocks

of alewife and blueback herring for which data were available, 23

were depleted relative to historic levels, one stock was

increasing, and the status of 28 stocks could not be determined

because the time-series of available data was too short." Atlantic

States Marine Fisheries Commission Stock Assessment Overview:

River Herring, AR 10438. Furthermore, "the Protected Special

Division of NMFS designated river herring as a 'species of concern'

in 2006." Pls.' Mot. at 11 (citing 71 Fed. Reg. 61,022). s

However, the Administrative Record also contains significant

positive information about the well-being of river herring and

shad stocks. Sources in the Record demonstrate that the coast-wide

population of blueback herring growth rate is stable. 78 Fed. Reg.

48,944, 48,992. With respect to alewife, at least three contiguous

populations are stable to significantly increasing. Id. The coast-

wide trajectory for alewife is significantly increasing, and all

8
In other words, reliable data could not be obtained for more
than half of the 52 stocks.

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of the stock complexes are stable or significantly increasing. Id.

When the Mid-Atlantic Fishery Management Council set out to study

32 stocks of hickory shad in 2012, it found that 11 stocks were

depleted relative to historic levels, two were increasing, and 11

were stable. AR 12924. The Council concluded it lacked sufficient

information to reach any conclusions about eight of the 32 stocks.

Id.

In further support of its position that herring/shad do not

require conservation and management in the MSB fishery, the

Government points out that materials Plaintiffs cite to show that

river herring in the Mid-Atlantic are overfished relate to state,

not federally, managed waters. See AR 7838, 7975-76. The Government

also notes NMFS findings that dams and barriers, rather than

fishing in federally-managed f isherie.s, are "the most important

threat" to river herring, 78 Fed. Reg. 48,970, and contends that

bycatch in federally managed fisheries has not been shown to have

a strong connection to the amount of shad stocks, AR 8335. The

Government also points to state and federal actions to address

these problems, including a herring bycatch avoidance program and

state fishery management plans and fishing moratoria, that make

conservation and management measures in an FMP unnecessary.

Gov't's Mot. at 16-18 (citing 79 FR 10,029 at 10,034); id. at 23

(58 Fed. Reg. 44,190).

- 25 -
 As the Draft Environmental Impact Statement summarizes, "the

uncertainty regarding the current factors causing [river herring

and shad] populations to remain in a depressed state means that it

is difficult to identify specific causes and link remedies to

specific outcomes. Given this, the extent of benefits from adding

[river herring and shad] as stocks in the fishery is very difficult

to quantify even though impacts are likely to be positive."

AR 8267.

Plaintiffs' burden is to show that NMFS acted arbitrarily or

capriciously in determining that river herring and shad are not in

need of conservation and management measures provided by an FMP.

In light of the evidence just cited, as well as the uncertainty

and lack of reliable data as to why and how the river herring and

shad populations have declined, it cannot be said that Defendants

have been arbitrary and capricious in making their decision.

In the face of such uncertainty, the Government is not

obligated to add stocks to the fishery simply because the "impacts

[of doing so] are likely to be positive." Id. An agency need only

"examine the relevant data and articulate a satisfactory

explanation for its action including a 'rational connection

between the facts found and the choice made.'" Motor Vehicle Mfrs.

Ass'n, 463 U.S. at 43. NMFS has done so, and therefore, the

Government must prevail on Count I.

- 26 -
 B. Count II: Monitoring and Accountability Measures to
Prevent Overfishing

Plaintiffs' second objection to Amendment 14 is that it fails

to include sufficient monitoring and accountability measures to

prevent overfishing of river herring and shad stocks in the MSB

fishery. They contend that by failing to approve specific observer

coverage levels recommended by the Council, NMFS has violated MSA

provisions codified at 16 U.S.C. §§ 1851 (a) and §§ 1853 (a) and

acted arbitrarily and capriciously.

1. The Government's Rejection of 100% Observer Coverage

As part of Amendment 14, the Council recommended that NMFS

mandate the placement of an observer on every small mesh bottom

trawl mackerel trip in the MBS fishery (referred to by the Parties

as "100% observer coverage"). Plaintiffs assert that the

Government should have approved the 100% observer coverage plan,

which would have been funded through "cost sharing" (i.e., dividing

the costs of coverage between NMFS and fishing industry

participants). The Government responds that the Council's proposal

would have violated federal statutes outside of the MSA framework,

in contravention of 16 U.S.C. § 1853(a) (1) (C)'s requirement that

provisions of fishery management plans "shall [be] consistent with

. . any other applicable law[.]"

NMFS objected to the 100% observer coverage recommendation

because it would have obligated the agency to make future outlays

- 27 -
for observer coverage beyond what Congress has allocated and to

augment its budget by accepting fees from the fishing industry.

This, the Government contends, would violate the following

statutes: the Anti-Deficiency Act, 31 U.S.C. § 1341(a) (1), which

prohibits federal officers from making expenditures or authorizing

obligations that exceed Congressional appropriations; the

Miscellaneous Receipts Statute, 31 U.S.C. § 3302(b), which

requires government officials to deposit money received on behalf

~f the United States in the Treasury not the particular agency;

and 18 U.S.C. § 209, which prohibits the payment of federal

employees' salaries from non-governmental sources.

The Administrative Record amply documents NMFS' s concerns

about the cost-sharing proposal, e.g., AR Emails 14142, 13187,

13598, 13375, and Plaintiffs do not directly contest the

Government's arguments based on the statutes named above.9

Instead, Plaintiffs contend that the Government's concerns

about unfunded mandates are inapposite because the Council

intended that the fishing industry would pay the entire cost of

100% observer coverage. However, the Administrative Record shows

9 Plaintiffs do note that the Government has engaged in "cost
sharing" programs with industry participants in other fisheries in
order to provide higher observer coverage levels. However, the
Government points out that those programs were expressly
authorized by statute for particular fisheries only. See 16 U.S.C.
§ 1862 (authorizing, under MSA § 313, a system of fees for
observers in North Pacific fisheries).

- 28 -
 that the Council intended that industry participants would pay

$325 per day toward the cost of an observer, whereas the actual

cost for an observer can be more than double that amount. AR 11255,

11575, 13735, 14144.

For these reasons, the Court concludes that NMFS' s

disapproval of the Council's 100% observer coverage proposal was

not arbitrary, capricious, or contrary to law. 10

2. Standardized Bycatch Reporting Methodology

Observers placed onboard fishing vessels to monitor their

. compliance with applicable laws and regulations are generally

allocated in accordance with the Standardized Bycatch Reporting

Methodology ("SBRM") Omnibus Amendment. Plaintiffs contend that

because NMFS declined to adopt the Council's recommendation, the

level of observer coverage in the MSB will be so low as to violate

the MSA. Plaintiffs' contention relies, in part, upon the fact

that at that time, the SBRM inadequately allocated observers to

the MSB fishery.

Our Court of Appeals has already found the SBRM to be unlawful

and has remanded it to NMFS for further consideration. Oceana,

10 For the first time in their Reply, Plaintiffs note that, having
disapproved of the Council's observer coverage proposal, the
Secretary failed to make specific recommendations for improvement
as called for by 16 U.S.C. § 1854 (a) (3) (C). The Court need not
address this because an argument not raised in an opening brief is
forfeited. Fox v. Gov't of D.C., No. 14-7042, 2015 WL 4385290, at
*3 (D.C. Cir. July 17, 2015).
- 29 -
Inc. v. Locke, 670 F.3d 1238, 1243 (D.C. Cir. 2011). Accordingly,

to the extent that Plaintiffs' contentions actually challenge the

methodology of the SBRM, the Court shall decline to consider them,

given the Court of Appeals' remand to NMFS. See Oceana, 831 F.

Supp. 2d at 114 ("No matter the grounds for [plaintiff's] present

challenge to the Multispecies FMP's standardized bycatch-reporting

methodology, this Court can provide no further relief because the

SBRM Amendment has already been remanded.").

However, it would appear that Plaintiffs are not without

remedy with respect to the validity of the SBRM. As Judge Contreras

stated in Oceana, "[t]o the extent Plaintiffs subsequently believe

the standardized bycatch-reporting methodology that eventually

results from [] remand is inadequate, [they] will have the

opportunity to challenge it at a future date." Id.

3. Observer Coverage and Production of Reliable Data

Not all of Plaintiffs' challenges to the level of observer

coverage in the fishery are based upon NMFS's denial of the 100%

coverage scheme or objections to the SBRM methodology which is no

longer in effect. Plaintiffs also argue that the elements of

Amendment 14 that the Government did adopt are -- without the 100%

observer coverage -- insufficient to meet its obligations under

the MSA.

Plaintiffs contend that the MSA's National Standard 2, which

states that "[c]onservation and management measures shall be based

- 30 -
upon the best scientific information available," 16 U.S.C.

§ 185l(a) (2), requires NMFS to "deploy sufficient observer

coverage to provide statistically reliable data," Pls.' Reply at

4 (citing Oceana, Inc. v. Evans, No. 04-08ll(ESH), 2005 WL 555416,

at *40 (D.D.C. 2005)); Oceana, 670 F. 3d at 1239. 11 While Plaintiffs

admit that "the MSA does not require specific observer coverage

levels," Pls.' Reply at 4, they argue that current observer levels

are insufficient to produce statistically reliable data.

Plaintiffs misconstrue National Standard 2. National

Standard 2 requires NMFS to base "[c]onservation and management

measures . . . upon the best scientific information available[.]"

16 U.S. C. § 18 51 (a) (2) (emphasis added) . "[NMFS must] utilize the

best scientific data available, not the best scientific data

possible." The Ocean Conservancy v. Gutierrez, 394 F. Supp. 2d

147, 157 (D.D.C. 2005) aff'd sub nom. Oceana, Inc. v. Gutierrez,

488 F.3d 1020 (D.C. Cir. 2007) (quoting Bldg. Indus. Ass'n of

Superior California v. Norton, 247 F.3d 1241, 1246 (D.C. Cir.

2001)).

11 Neither of the two cases from this circuit that Plaintiffs cite
actually support their proposition that the MSA requires
sufficient observers to generate statically reliable data. The
sections of each case that Plaintiffs cite discuss the data-
collection goals of particular rules promulgated by NMFS rather
than requirements of the MSA. See Oceana v. Evans, 2005 WL 555416,
at *40; Oceana, 670 F. 3d at 1239.

- 31 -
 Section 1851(a) (2) "'does not mandate any affirmative

obligation on [NMFS'] part' to collect new data." Massachusetts v.

Pritzker, 10 F. Supp. 3d 208, 220 (D. Mass. 2014) (quoting

Commonwealth of Mass. by Div. of Marine Fisheries v. Daley, 10

F.Supp.2d 74, 77 (D. Mass. 1998)). Indeed, National Standard

Guidelines acknowledge that NMFS might often have "insufficient

data" in fisheries and provide guidance on how to proceed. See,

e.g., 50 C.F.R. §§ 600.310 (e) (iv), (g) (2), (4) and (1) (1) . 12

Plaintiffs also contend that current observer coverage levels

violate § 1853(a) (ll)'s requirement that NMFS "establish a

standardized reporting methodology to assess the amount and type

of bycatch occurring in the fishery[.]" At its core, this argument

attacks the SBRM, which as noted above, is already on remand and

thus, is beyond this Court's review. Oceana, 831 F. Supp. 2d at

114.

Plaintiffs argue that "it' was arbitrary and capricious to

reject the measures that the Council developed to provide the

Secretary with reliable estimates of catch when it has a mandatory

duty to provide them under 16 U.S.C. § 1853(a) (5) ." Pls. Mot. at

12 Plaintiffs rely on a slip opinion from the U.S. District Court
for the District of Alaska. See The Boat Company v. Pritzker, No.
12-cv-0250-HRH slip op. at 33 (D. Alaska, Aug. 6, 2014). That case
is inapposite because it construes a statute applicable only to
North Pacific fisheries. See 16 U.S.C. § 1862 (b) (1) (A) (requiring
the North Pacific Council to ensure plans and plan amendments are
reasonably calculated to "gather reliable data") .
- 32 -
29. Section 1853 (a) (5) merely requires that FMPs "specify the

pertinent data which shall be submitted to the Secretary .

including, but not limited to . . . catch by species in numbers of

fish or weight thereof[.]" Id. On its face§ 1853(a)(5) does not

give rise to any duty to collect additional data through increased

observer coverage.

Finally, Plaintiffs argue that without significantly

increasing observer coverage, NMFS will be unable to "establish a

mechanism for specifying annual catch limits in the plan . . at

a level such that overfishing does not occur in the fishery . . .

including measures to ensure accountability" as required by 16

U.S.C. § 1853(a) (15).

However, regulations implementing the MSA already clearly

contemplate the possibility that annual catch limits and

accountability measures might have to be accepted on the basis of

limited data. 50 C.F.R. § 600.310(g) (4) ("Some fisheries have

highly variable annual catches and lack reliable inseason [sic] or

annual data on which to base [accountability measures]. If there

are insufficient data upon which to compare catch to [annual catch

limits], either in season or on an annual basis, [accountability

measures] could be based on comparisons of average catch to average

[annual catch limits] over a three-year moving average."); see

also id.§ 600.310(g)(2).

- 33 -
 In summary, the Government has reasonably concluded that the

Council's observer coverage proposal would violate applicable law,

and Plaintiffs have failed to show that NMFS is legally required

to produce more abundant data by way of increased observer

coverage. Accordingly, the Court concludes that the Government has

not been arbitrary and capricious in rejecting Plaintiffs'

challenge to Amendment 14's lack of additional observer coverage

must fail. 13

C. Count III: The National Environmental Policy Act

Plaintiffs contend that the Government failed to adequately

consider the environmental impact of failing to add the river

herring and shad stocks to the fishery.

It has long been established that NEPA requires agencies to

"take a 'hard look' at the environmental consequences before taking

a major action." Baltimore Gas & Elec. Co., 462 U.S. at 97 (1983)

(internal citations omitted) . To comply with this requirement,

agencies contemplating major policy proposals, must prepare

Environmental Impact Statements ("EIS") that "present the

environmental impacts of the proposal and the alternatives in

comparative form, thus sharply defining the issues and providing

a clear basis for choice among options by the decisionmaker and

the public." 40 C.F.R. § 1502.14; see also 42 U.S.C. § 4332(C).

13
Again, the fact that SBRM is on remand limits the Court's
ability to address this issues.
- 34 -
 The EIS must be "evaluated in light of [its reasonably

identified and defined] objectives; an alternative is properly

excluded from consideration in an environmental impact statement

only if it would be reasonable for the agency to conclude that the

alternative does not 'bring about the ends of the federal action. '"

City of Alexandria, Va. V .. Slater, 198 F.3d 862, 867 (D.C. Cir.

1999).

Plaintiffs' principal objection to the Government's final EIS

is that NMFS should have included at least one policy alternative,

of the four it chose, that would have analyzed the effect of not

immediately adding river herring and shad stocks to the MSB

Fishery. They argue that without analysis or explanation, NMFS

rejected the possibility of giving a "hard look to see the

consequences of including the stocks in the MSB as part of

Amendment 14." Pls.' Mot. at 43.

The Government argues that it had no. legal obligation to

consider the alternative of not immediately adding river herring

and shad to the MSB Fishery. The four alternatives which were

chosen by NMFS simply cannot satisfy the Government's obligation

to consider the impacts of refusing to add river herring and shad

to the fishery, especially given the fact that the 2011 statutory

deadline was not being met.

- 35 -
 Amendment 14 fails to take a hard look at the environmental

impacts of its composition of the fishery by failing to analyze a

reasonable range of alternatives. Those alternatives should have

included the immediate addition of river herring and shad as stocks

with temporary conservation and management measures as proxies for

status determination criteria and other measures necessary to

prevent overfishing and conservation of the species.

NEPA requires an agency to explore and objectively evaluate

a reasonable range of alternatives and the associated impacts on

the environment. 42 U.S.C. § 4332 (C). See also Flaherty, 850 F.

Supp.2d at 71. A key objective of Amendment 14 was to consider

adding river herring and shad to the MSB Fishery, in order to

prevent overfishing. Given that objective, it is hard to

understand why the Government, which is statutorily obligated to

consider an adequate range of alternatives in the EIS, failed to

include the alternative of adding river herring and shad to the

stocks.

Moreover, it is striking that NMFS never provided an

explanation of why it did not consider the alternative of adding

river herring and shad when such consideration would clearly have

brought about the "ends of the federal action."

In Flaherty, this Court emphasized that "[a] central function

of NEPA's requirements is for the agency to consider environmental

- 36 -
impacts '[b]efore approving a project,'" not after the damage is

done. 850 F.2d at 72 (emphasis added). Instead of even considering

the environmental impact of not including river herring and shad

in the MSB Fishery, Defendants pushed the issue off to Amendment

15, thereby delaying even further consideration of a reasonable

alternative which had long been sought by many members of the

public. "Agency determinations about EIS requirements are

supposed to be 'forward-looking,'" not action to simply postpone

consideration of relevant alternatives. Foundation on Economic

Trends v. Heckler, 756 F.2d 143, 158 (D.C. Cir. 1985).

Consequently, the Court concludes that Final Rule 14 violates

NEPA and the APA by failing to take a "hard look" at the

environmental impacts of its definition of the fishery, by failing

to analyze the reasonable alternative of examining the

environmental impact of not adding the river herring and shad to

the fishery, and by failing to consider the direct, indirect, and

cumulative impacts of its decision in the accompanying EIS.

CONCLUSION

In summary, the Court has concluded that as to Count 1 - the

failure to include river herring and shad stocks in the MSB

fishery, and as to Count 2 - monitoring and accountability measures

to prevent overfishing -- the Government has not violated either

the MSA or the APA for the reasons spelled out in Sections A and

- 37 -
B, supra. However, as to Count 3 - the National Environmental

Policy Act -~ the Court concludes that the Government has failed

to comply with NEPA and the APA because it has not taken a "hard

look" at all of the ramifications from failing to consider the

impact of not immediately including river herring and shad in the

MSB fishery.

A separate Order accompanies this Memorandum Opinion.

Gladys Kessler
United States District Judge

Copies via ECF to all counsel of record

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