Flaherty v. Pritzker

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MICHAEL s. FLAHERTY, et al.,

Plaintiffs,

v. Civil Action No. 11-0660 (GK)

PENNY PRITZKER, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs Michael S. Flaherty, Captain Alan A. Hastbacka,

and the Ocean River Institute bring this suit against Defendants

Commerce Secretary Penny Pritzker, the National Oceanic and

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

Fisheries Service ( "NMFS") (collectively, "Defendants") , as well

as Defendant-Intervenor Sustainable Fisheries Coalition ("SFC").

Plaintiffs allege that the final rule implementing Framework

Adjustment 2 to the Atlantic Herring Fishery Management Plan and

the Atlantic Herring Fishery 'Specifications for the 2013-2015

Fishing Years ("2013-2015 Specifications") violates the Magnuson-.

Stevens Fishery Conservation and Management Act ("MSA"), 16 U.S.C.

§§ 1801 et~' the National Environmental Policy Act ("NEPA"),

42 U.S.C. §§ 4321 et ~' and the Administrative Procedure Act

("APA"), 5 u.s.c. §§ ·702 et ~

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:·.

This matter is now before the Court on· Cross-Motions for

Summary Judgment [Dkt. Nos. 88, 96, & 99]. Upon consideration of

the Motions, Oppositions, Replies, ,the entire record herein, and

for the reasons stated below, Plaintiffs' Motion for Summary

Judgment is denied, Defendant-Intervenor's Motion for Summary

Judgment is denied, and Defendants' Motion for Summary Judgment is

granted.

I . BACKGROUND

a. Statutory Background

i. The Magnuson-Stevens Act 1

The MSA is designed to conserve and manage fishery resources

in U.S. waters and coastal areas. It establishes eight Regional

Fishery Management Councils, which are responsible for developing

fishery management plans ("FMPs"). 16 U.S.C. §§ 1852. FMPs are

required to include the "conservation and management measures"

that are "necessary and appropriate for the conservation and

management of the fishery, to prevent overfishing and rebuild

overfished stocks, and to protect, restore, and promote the long-

term health and stability of the fishery." Id. § 1853 (a) (1) (A).

FMPs must also be consistent with the ten National Standards

provided for in the MSA, as well as all other provisions of the

1 A more thorough description of the MSA can be found in this
Court's prior Memorandum Opinion. Flaherty v .. Bryson, 850 F. Supp.
2d 38 (D.D.C.; 2012).
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MSA, ~nd "any other applicable law." Id. § 1853(a) (1) (C);

see also id. § 1851 (setting forth National Standards) . The

Secretary of Commerce, acting through NMFS, is required by the MSA

to establish "advisory guidelines" for implementing the National

Standards. 16 U.S.C. § 1851(b); see also 50 C.F.R. 600.305 et seq.

(National Standards guidelines) .

Once a council has developed a plan, NMFS must review the

plan to determine whether it comports with the ten National

Standards and other applicable law. Id. § 1854 (a) (1) (A). Next,

after a period of notice and comment, NMFS must "approve,

disapprove, or partially approve a plan or amendment," depending

on whether the plan or amendment is consistent with the National

Standards and applicable law. Id. § 1854(a) (3). If NMFS approves

the plan or does not express disapproval within 30 days, the FMP

becomes effective. Id. § 1854(a) (3).

At th~ beginning of 2007, Congress re-authorized and amended

the MSA. Magnuson-Stevens Fishery Conservation' and Management

Reauthorization Act of 2006 ("MSRA"), P.L. 109-479, 120 Stat. 3575

(2007) . The amended MSA significantly enlarged the duties of the

council and NMFS by requiring FMPs to contain mechanisms for

setting the limits, termed Annual Catch Limits ("ACLs"), on the

amount of fish caught and accountability measures ( "AMs") for

ensuring compliance with the ACLs. 16 U.S.C. § 1853 (a) (15). In

response to the new requirements, NMFS revised its guidelines for
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..
National Standard 1 to provide guidance for interpreting the

concepts adopted in the amendment. 74 Fed. Reg. 3178 (January 16,

'2009) .

The setting of an ACL involves a multi-step process intended

to generate a scientific basis for the final catch limit. The

following is an extremely abbreviated overview of what is a very

complicated process. 50 C.F.R. § 600.310(£). First, a council must

define an overfishing limit ("OFL"), which is, at its most basic,

an estimate of the rate of fishing at which a fishery will not be

sustainable. Id. § 600.310(e) (1) (i) (A)-(2) (i) (E).

Second, the council must determine the acceptable biological

catch ("ABC") , which is the amount of fish that may be caught

without exceeding the OFL, after taking into account scientific

uncertainty. Id. § 600.310(f) (2) (ii). In order to set the ABC, the

council must first establish an "ABC control rule," which explains

how the council will account for scientific uncertainty when

setting the ABC. 50 C.F.R. § 600.310(£) (4). The council must create

its ABC control rule based on scientific advice from its Scientific

and Statistical Committee ("SSC"). 50 C.F.R. § 600.310 (f) (4). The

objective of the ABC control rule is to create a buffer between

OFL and ABC so that there is a low risk that OFL will be exceeded.

See id. §§ 600.310 (b) (3), (f) (4).

Third, and finally, the council must set the ACL, which is

the amount of fish that may be caught without exceeding the ABC,
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after taking into account management unqertainty, such as late

reporting, misreporting, and underreporting of catch. Id.

§ 600. 310 (f) (1) .

To summarize, in the process of setting the final ACL, the

council must solicit scientific advice from its SSC and, based on

that advice, establish an acceptable biological catch rule. The

ABC control rule is relied on to set the ABC, which must be equal

to or less than OFL, to account for scientific uncertainty, and

the final ACL must be equal to or less than ABC, to take into

account management uncertainty. Id. § 600.310(e)-(f). Finally,

ACLs must also be consistent with the National· Standards. Id.

§ 1853 (a) (1) (C).

ii. The National Environmental Policy Act

Congress enacted NEPA in order "to use all 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. § 433l(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(C). In an EIS, the agency

must "take a 'hard look' at the environmental consequences before
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taking a major action."" Baltimore Gas & Elec. Co. v. NRDC, 462

U.S. 87, 97 (1983) (citation omitted). "NEPA exists to ensure a

process, not to ensure any result." Inland Empire Pub. Lands

Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir. 1996)

(emphasis in original) (citation ommitted) .

To determine whether an EIS must be prepared, the agency must

first prepare an environmental assessment ("EA"). 40 C.F.R. §

1501. 4 (b) . An EA must "[b] rie·fly provide sufficient evidence and

analysis for determining whether to prepare an environmental

impact statement or a finding of no significant impact." Id. §

1508.9(a) (1). If the agency determines, after preparing an EA,

that a full EIS is not necessary, it must prepare a Finding of No

Significant Impact ("FONS I") setting forth the reasons why the

action will not have a significant impact on the environment. Id.

§§ 1501.4(e), 1508.13. Even if the agency performs only an EA, it

must still briefly discuss the need for the proposal, the

alternatives, and the environmental impacts of the proposed action

and alternatives. Id. § 1508.9(b).

b. Factual Background

The U.S. Atlantic herring fishery is managed through the

Atlantic Herring Fishery Management Plan ("Herring FMP") . The

Herring FMP was developed by the New England Fishery Management

Council (the "Council") and became effective on January 10, 2001 ..

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See Flaherty v. Bryson, 850 F. Supp. 2d 38, 45 (D. D. C. 2012)

("Flaherty I") .

Atlantic herring inhabit the Atlantic Ocean off the east coast

of the United States and Canada, ranging from North Carolina to

the Canadian Maritime Provinces. Id. Atlantic herring play a vital

role in the Northwest Atlantic ecosystem, serving as a "forage

species," i.e. food, for a number of other fish, marine mammals,

and seabirds. Id. Atlantic herring also play an important role in

the region's economy because of the prevalence of commercial

fishing. Id.

i. Amendment 4

On March 2, 2011, NMFS published its Final Rule implementing

"Amendment 4" to the Herring FMP. Final Rule, 76 Fed. Reg. 11,373

(Mar. 2, 2011). The Council.and NMFS had developed Amendment 4 to

bring the FMP into compliance with new ACL and accountability

measure requirements of the MSA by the 2011 statutory deadline.

See Final Rule, 76 Fed. Reg. 11,372 (Mar. 2, 2013). Plaintiffs

brought this suit to challenge several aspects of Amendment 4. See

Complaint [Dkt. No. 1]. On March 8, 2012, this Court issued its

opinion on the parties' cross-motions for summary judgment which,

inter alia, upheld the ACLs and AMs of Amendment 4, but found that

the agency had failed to consider the potential environmental

impacts of reasonable alternatives, as required by NEPA. See

Flaherty I, 850 F. Supp. 2d 38.
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 ii. Framework Adjustment 2 and Atlantic Herring Fishery
Specifications for 2013-2015

On October 4, 2013, NMFS issued a final rule implementing the

2013-2015 Specifications. 78 Fed. Reg. 61828 (Oct. 4, 2013); see

also accompanying Final Environmental Assessment, AR 010991-

011393. The 2013-2015 Specifications set catch specifications for

the herring fishery for the 2013-2015 fishing years, including new

ACLs and additional AMs. The 2013-2015 Specifications were based

on the most recent stock assessment ( 11 SAW 54 11 ) for Atlantic

herring, prepared by the 2012 Stock Assessment Review Committee of

the 54th Northeast Regional Stock Assessment Workshop. 7 8 Fed.

Reg. at 61829.

The Council considered, in varying degrees of detail, five

potential ABC control rules for selection. The first, referred to

as the "no action" alternative, would have maintained the ABC

specifications from 2012. AR 011034. The second, referred to as

the "constant catch" alternative, would specify a constant ABC of

114,000 metric tons for all three years. AR 011035. The third,

referred to as the "75% FMsY" 2 alternative, would have set the ABC

2 FMsY is "the fishing mortality rate that, if applied over the long
term would result in [Maximum Sustainable Yield] . " Maximum_
Sustainable Yield (MSY) is defined as the "largest long-term
average catch or yield that can be taken from a stock or stock
complex under prevailing ecological, environmental conditions and
fishery technological characteristics . . and the distribution
of catch among fleets." 50 C.F.R. § 600.310(e) (1) (i).
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•

at 130,000 metric tons in 2013, 102,000 metric tons in 2014, and

88,000 metric tons in 2015. AR 011038.

Plaintiffs submitted two additional ABC control rules for

consideration, referred to as the Lenfest Control Rule and the

Pacific Control Rule. Both the Lenfest and Pacific Control Rules

use a rate of 50% of FMsY and under both those Rules the ABC would

have been 93,000 metric tons in 2013, 77,000 metric tons in 2014,

and 68,000 metric tons in 2015. AR 011066. The difference between

the two is that under the Lenfest Control rule, the fishing rate

would decrease as herring biomass decreased, and if the herring

biomass decreased below a cutoff level, all fishing would cease.

AR 011065-66. Under the Pacific Control Rule, the fishing rate

would stay the same until herring biomass declined below the cutoff

level, at which time all fishing would cease. AR 011066.

c. Procedural Background

Plaintiffs filed their Complaint [Dkt. No. 1] on April 1,

2011, challenging Amendment 4. On March 8, 2012, this Court issued

a Summary Judgment Order holding that Amendment 4 violated certain

provisions of the MSA, APA, and NEPA. See Flaherty I, 859 F. Supp.

2d at 73.

On August 2, 2012, after further briefing on the proper

remedy, this Court issued a detailed Memorandum Order remanding

the action to Defendants and containing specific guidance, as well

as a timeline, for actions Defendants were to take and complete
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within one year ("Remedial Order") [Dkt. No. 41]. What is relevant

to the Motions at hand is that the Remedial Order instructed

Defendants to recommend to the Council that it consider, "as part

of the 2013-2015 herring specifications (or another appropriate

action to be completed within one year of the date of [the remedial

order])," a range of alternatives "to the interim ABC control rule

for the Atlantic herring fishery, at least one of which shall be

based on the most recent best available science for setting ABC

control rules for herrin~ and other forage fish." Id. at 12-13.

On November 4, 2013, Plaintiffs filed a motion for leave to

file a Supplemental Complaint to challenge NMFS' s final rule

implementing the 2013-2015 Specifications [Dkt. No. 59], which was

granted on December 27, 2013 [Dkt. No. 66]. On November 22, 2013,

Plaintiffs filed a separate Motion to Enforce the Remedial Order

[Dkt. No. 62]. Plaintiffs alleged that Defendants failed to comply

with the Court's Remedial Order in several ways. One of Plaintiffs'

allegations was that Defendants failed to consider a reasonable

range of alternatives to the interim Atlantic Herring ABC control

rule, including at least one based on the best available science,

in the NEPA analysis for the 2013-2015 Specifications. Id. at

17-28.

This Court denied Plaintiffs' Motion to Enforce on February

19, 2014, finding that Defendants had complied with each of the

requirements set forth in the Remedial Order and that Plaintiffs
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had "obtained all of the relief to which they are entitled."

Memorandum Opinion at 12 [Dkt. No. 87] . This Court did note

however, that the ruling 'did not exclude the Defendants' recent

actions from review and Plaintiffs were still able to seek review

"on a ground other than the agency's failure to consider reasonable

alternatives." Id. at 12 (quoting Heartland Reg'l Med. Ctr. v.

Leavitt, 415 F.3d 24, 28 (D.C. Cir. 2005)).

On January 22, 2014, Sustainable Fisheries Coalition, a

coalition of vessel owners and processing companies that

participate in the Atlantic sea herring fishery, filed a Motion to

Intervene [Dkt. No. 76]. The Motion to Intervene was granted on

February 12, 2014 [Dkt. No. 85].

On March 7, 2014, Plaintiffs filed their Motion for Summary

Judgment ( "Pls.' Mot.") [Dkt. No. 88] . Defendants filed their

Opposition to Plaintiffs' Motion and their Cross-Motion for

Summary Judgment ("Defs.' Mot.") [Dkt. No. 96] on April 7, 2014,

and Intervenor Defendants filed their Opposition to Plaintiffs'

Motion and Cross-Motion for Summary Judgment ( "SFC Mot.") [Dkt.

Nos. 99 & 100] on April 9, 2014. On May 7, 2014, Plaintiffs filed

their Reply to Defendants' Opposition and Opposition to

Defendants' Motion ("Pls.' Reply") [Dkt. No. 103]. On May 23, 2014,

Defendants filed their Reply to Plaintiffs' Opposition ("Defs.'

Reply") [Dkt. No. 105] and Intervenor Defendants filed their Reply

to Plaintiffs' Opposition ( "SFC Reply") [Dkt. No. 106] .
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~ :'

II. STANDARD OF REVIEW

a. Summary Judgment

Summary judgment will be granted when there is no genuine

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

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 & Dev. v.

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

411 U.S. 138, 142 (1973)); Fund for Animals v. Babbitt, 903

F. Supp. 96, 105 (D.D.C. 1995) ("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").

The purpose of a motion for summary judgment challenging final

agency action is "to test the agency action against the

administrative record." Comment to U.S. Dist. Ct. Rules D.C., Rule

7(h). The Court must evaluate the agency's decision on the basis

of "the full administrative record 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

~Califano v. Sanders, 430 U.S. 99, 97 (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

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the Secretary's [action] was factually flawed." Marshall Cnty.

Health Care Auth. v. Shalala, 988 F.2d 1221, 1225 (D.C. Cir. 1993).

b. Administrative Procedure Act

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 Co. v. Fox, 931 F.2d

1556, 1562 (D.C. 1991); Oceana Inc., v. Locke, 831 F. Supp. 2d 95,

106 (D.D.C. 2011). Section 706(2) of the APA requires a court to

hold a9ency action unlawful if it is "arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law." 5

u.s.c. § 706 (2).

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

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

standard can neither 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, 1498 (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).

However, 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).

III. ANALYSIS

a. Jurisdiction

i. Standing

While both Plaintiffs and Defendants agree that the Court has

jurisdiction to hear this case, Defendant-Intervenor SFC argues

that Plaintiffs lack standing to challenge the ABC control rule.

The doctrine of standing reflects Article III' s "fundamental
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limitation" of federal jurisdiction to actual cases and

controversies. Summers v. Earth Island Inst., 555 U.S. 488, 493

(2009) . The doctrine "requires federal courts to satisfy

themselves that 'the plaintiff has alleged such a personal stake

in the outcome of the controversy as to warrant his [or her] .

invocation of federal-court jurisdiction.'" Id. (emphasis on "his"

in original) (quoting Warth v. Seldin, 422 U.S. 490, 498-99

(1975)).

To obtain the relief they seek, Plaintiffs must show that (1)

they have "suffered an 'injury in fact' that is (a) concrete and

particularized and (b) actual or imminent, not conjectural or

hypothetical; (2) the injury is fairly traceable to the challenged

action of the defendant; and (3) it is likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,

528 U.S. 167, 180-81 (2000); see also Summers, 555 U.S. at 493;

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992); Shays v.

FEC, 414 F.3d 76, 83 (D.C. Cir. 2005). SFC contends that Plaintiffs

have not shown how they were injured by the ABC control rule (as

distinguished ~rom the ACLs) or how a favorable decision by this

Court could redress those' injuries. SFC Mot. at 23.

In its 2012 decision, this Court found that Plaintiffs had

standing to challenge Amendment 4. Flaherty I, 850 F. Supp. 2d

at 50. SFC concedes that Plaintiffs have standing to challenge
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ACLs and AMs. SFC Mot. at 23. The crux of SFC's standing challenge

is that the ACLs and AMs are the source of any alleged injuries,

not the ABC control rule, and therefore, because Plaintiffs have

not been harmed by the ABC control rule, they do not have standing

to challenge it. Id. at 23-24.

The Court finds the distinction between the ACLs and the ABC

control rule to be irrelevant for standing purposes. The ABC

control rule is part of the "mechanism for specifying annual catch

limits," 16 U.S.C. § 1853(a) (15), and directly informs the setting

of the ACL, 50 C.F.R. § 600.310(f) (Guidelines to National Standard

1) . 3 The causal relationship between the ABC control rule, the ABC,

and the ACL is so direct and clear that any alleged harms of the

ABC control rule are, as a practical matter,, practically

indistinguishable from any possible harms of the ACL. The causal

chain between. the ABC control rule and the ACL is not, as SFC

contends, "far too attenuated to constitute particularized

injury." SFC Mot. at 24 (internal quotations marks and citation

omitted) . The harms Plaintiffs have alleged are directly traceable

to the ABC control rule via the ACL. This is more than sufficient

to satisfy the causation prong of standing.

3 While the National Standard Guidelines do not have the force of
law, they exist to assist in the development of FMPs. 16 U.S.C.
§ 1851(b)
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 SFC offers no explanation why Plaintiffs' proposed remedies

are insufficient to redress their injuries. Id. at 25. It is not

enough to simply , say that Plaintiffs have not shown "how a

favorable decision by this court could relieve those injuries,"

SFC Reply at 5, and, in the absence of further explanation, this

argument fails. Plaintiffs' requests for relief, see Supp.

Complaint at 31-32 [Dkt. No. 67], would remedy their injuries and

are also within the Court's power.

For the foregoing reasons, the Court finds that Plaintiffs

have standing to bring their claim.

ii. Subject Matter Jurisdiction

SFC also argues that the Court does not have subject matter

jurisdiction over the ABC control rule, relying on the same

distinction between ACLs and ABCs made in its standing argument.

The MSA provides courts with the authority to review any

"regulation promulgated by the Secretary" and "actions that are

taken by the Secretary under regulations which implement a fishery

management plan." 16 U.S.C. § 1855(f) (2). SFC concedes that the

Court has subject matter jurisdiction over ACLs and that this Court

previously reviewed the ABC control rule in Flaherty I. SFC Mot.

at 25.

SFC argues that the ABC control rule "used in the

specification setting process" was "developed and employed by the

Council," but was not approved by NMFS in the 2013-2015
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Specifications. Put differently, SFC argues that the ABC control

rule was only a tool used to develop the ACLs, but was not adopted

in the 2013-2015 Specifications; only the ACLs were. SFC contends

that the ABC control rule is therefore "neither a 'regulation' nor

'action' over which the MSA grants jurisdiction." SFC Mot. at 25.

SFC attempts to distinguish the instant ABC control rule from

the one reviewed by the Court in Flaherty I on the grounds that,

in Flaherty I, the "control rule itself was likely under this

Court's jurisdiction as part of Amendment 4." Id. SFC does not

explain why the same logic does not apply to the ABC control rule

currently at issue. SFC states that the "ACLs are'developed by the

Council under the Herring FMP and recommended to the Secretary as

'proposed regulations . . . for the purposes of implementing that

FMP," and therefore they "clearly fall within the MSA's judicial

review provisions." Id. (citing 16 U.S.C. § 1853(c)). Once again,

SFC tries to differentiate the ACL from the ABC control rule by

stating that the ABC control rule "was not reviewed or approved by

NMFS in the Specifications." Id.

This distinction has no merit. The Council develops both the

ABC control rule and the ACLs, and recommends the specifications

to the Secretary. The relevant herring regulation, provides that

"NMFS shall make a final determination concerning the

specifications for Atlantic herring. Notification of the final

specifications and responses to public comments shall be published
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in the Federal Register." 50 C.F.R. § 648.200(d). NMFS implemented

the 2013-.2015 Specifications, including the ACLs and ABC control

rule, in its Final Rule. 78 Fed. Reg. at 61836 ("Relative to the

status quo, the specifications for setting the herring constant

catch ABC and OFL for 2013-2015 implemented by this rule will

result in an increase in OFL and ABC. Increasing, then maintaining

a stable OFL and ABC would provide net benefits to the herring

industry in the short and long term, relative to the status quo.")

(emphasis added) .

Therefore, the ABC control rule, which was included in the

2013-2015 Specifications implemented by NMFS, is an action "taken

by the Secretary under regulations which implement a fishery

management plan," and is subject to judicial review by this Court

per the MSA. 16 U.S.C. § 1855(f) (2). As in Flaherty I, this court

has subject matter jurisdiction over the ABC control rule.

b. The ACLs and ABC Control Rule Comply with National
Standards 1 and 2

Plaintiffs allege that the 2013-2015 Specifications do not

meet the MSA's mandate to establish an ABC control rule and ACLs

that prevent overfishing based on the best available science, and

therefore they violate National Standards 1 and 2, as well as the

APA. Pls.' Mot. at 21, 31.

1. Plaintiffs argue that the ACLs in the 2013-2015

Specifications violate National Standard 1 because they are

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derived from an ABC control rule that will not prevent overfishing.

Pls.' Mot. at 21, 33-35. National Standard 1 states that

"[c]onservation and management measures shall prevent overfishing

while achieving, on a continuing basis, the optimum yield from

each fishery." 16 u.s.c. § 1851(a) (1). The guidelines for National

Standard 1 also recommend that fishing mortality declines as stock

size declines. 50 C.F.R. § 600.310(f) (4). Under the 2013-2015

Specifications, the fishing mortality rate will increase by 36

percent as the estimated biomass decreases by 36 percent over three

years which Plaintiffs allege is contrary to the guideline

recommendations. Pls.' Mot. at 31. In addition, in 2015, the final

year of the Specifications, the overfishing limit and the ABC will

be the same, leaving no buffer for scientific uncertainty. Id.

While the fact that OFL will equal ABC in 2015 does provide

some cause for concern, it is also clearly pe~missible. See 50

c. F. R. § 600. 310 ( f) (3) ("While the ABC is allowed to equal OFL,

NMFS expects that in most cases ABC will be reduced from OFL to

reduce the probability that overfishing might occur in a year.").

By contrast, where the OFL, ABC, and ACL are all the same (which

is not the case here), the regulation explicitly states that the

measures would provide for no uncerta:i:nty and would presumably

"not prevent overfishing." 50 C.F.R. § 600.310(f) (5) (i).

Defendants.point out that, at this time, the Atlantic herring

stock is neither overfished nor subject to overfishing, and argue
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that the 2013-2015 Specifications will continue to prevent

overfishing. Defs.' Mot. at 15 (citing AR 011637). Plaintiffs have

neither shown nor alleged that the stock is overfished or subject

to overfishing, nor do they provide any information calling into

question the SSC' s determination that overfishing is unlikely

under the constant catch control rule. See AR 011642 ("The SSC

concluded that the proposed specifications are unlikely to result

in overfishing in the next 3 years."); Pls.' Mot. at 22-24.

Plaintiffs. argue that omitting a buffer between OFL and ABC to

account for scientific uncertainty "does not meet the National

Standard 1 mandate to prevent overfishing" and conflicts with the

guidelines' assumption that ABC will be reduced from OFL in "most

cases." Pls.' Mot. at 34. But, as discussed previously, the lack

of a buffer between the OFL and ABC is not per se evidence that

National Standard 1 has been violated, as the guidelines expressly

permit this practice, even. if they do not recommend it. -
See
- 50
C.F.R. § 600.310(f) (3).

It is not enough that Plaintiffs would have preferred an ACL

or ABC control rule that preserved a greater stock of Atlantic

herring. Plaintiffs have not provided any evidence to suggest that

the ACL will permit overfishing, other than arguing that the ACL

would have been lower had forage considerations been sufficiently

accounted for. Pls.' Mot. at 32-~3. The question before the Court

is whether the 2013-2015 Specifications violate National Standard
-21-
1 by not preventing overfishing, and Plaintiffs have failed to

show that the 2013-2015 Specifications will not prevent

overfishing.

2. Next, Plaintiffs argue that Defendants violated National

Standard 2 because they did not rely on the best available science

for forage fish and disregarded relevant factors when setting the

ACLs and ABC control rule. Pls.' Mot at 21, 34-35. National

Standard 2 instructs that "[c]onservation and management measures

shall be based upon the best scientific information available."

16 U.S.C. § 1851(a) (2). National Standard 2 "requires that rules

issued by the NMFS be based on a thorough review of all the relevant

information available at the time the decision was made and

insures that the NMFS does not 'disregard superior data' in

reaching its conclusions." Ocean Conservancy v. Guitierrez, 394 F.

Supp. 2d 147, 157 (D.D.C. 2005) (quoting Bldg. Indus. Ass'n v.

Norton, 247 F.3d 1241, 1246-47 (D.C. Cir. 2001)).

This rule "is' a practical standard requiring only that fishery

regulations be diligently researched and based on sound science."

Ocean Conservancy, 394 F.Supp.2d at 157. Further, "[c]ourts give

a high degree of deference to agency actions based on an evaluation

of complex scientific data within the agency's technical

expertise." Am. Oceans Campaign v. Daley, 183 F.Supp.2d 1, 4

(D.D.C. 2000) (citing Baltimore Gas & Elec. Co., 462 U.S. at 103).

Therefore, "[l]egal challenges to the Secretary's compliance with
-22-
National Standard 2 are frequent and frequently unsuccessful."

N.C. Fisheries Ass'n, 518 F. Supp. 2d at 85. Plaintiffs face a

"high hurdle" in trying to overturn agency decisions on this .bas.is.

Id.

The parties agree that the 2013-2015 Specifications were

based on the SAW 54 stock assessment, that the SAW 54 assessment

incorporated forage considerations, and that the SAW 54

"represents [the] best available science for the purpose of

estimating the current population of Atlantic Herring and

biological reference points." Pls.' Mot. at 26-27; see also Defs.'

Mot. at 22. According to Plaintiffs, even though Defendants were

correct to rely on SAW 54, they "failed to take the critical second

step in setting catch levels that prevent overfishing. That is,

they failed to establish and apply an appropriate ABC control rule

based on the best available science ." Pls.' Mot. at 27

(emphasis in original) . The second step Plaintiffs refer to relates

not to the quality of the information available, but to the

substantive decision Defendants made based upon that information.

However, as noted earlier, our Court of Appeals has cautioned

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

agency' but must consider whether the decision was based on a

consideration of the relevant factors and whether there has been

a clear error of judgment." Bloch, 348 F.3d at 1070. In this

instance, the Court concludes that Defendants definitely
-23-
considered the relevant factors and made no clear error of

judgment.

3. Plaintiffs take issue with the fact that the constant

catch ABC control rule (the rule ultimately selected) was not one

of the catch projections analyzed in the SAW 54 and was not peer

reviewed. Plaintiffs contend that there is therefore "little basis

to conclude this ABC control rule represents the best available

science." Pls.' Mot. at 31 (citing AR 002162, 000207). Defendants

counter that the stock assessment itself was peer-reviewed and

that the MSA does not require peer review of ABC control rules.

Defs.' Mot. at 23 (citing 50 C.F.R. § 600.310(f) (4) (" [t]he process

of establishing an ABC control rule could also involve science

advisors or the peer review process established under [MSA] §

302(g) (1) (E)" (emphasis added)).

This case is easily distinguished from NRDC v. Evans, cited

by Plaintiffs, where the court criticized NMFS for failing to

account for new scientific data and instead relying on "static

estimates that are 15 years old." 168 F. Supp. 2d 1149, 1154 (N.D.

Cal. 2001) (rev'd in part on other grounds, 316 F.3d 904 (9th Cir.

2003)) . In this case, Plaintiffs are not arguing that the data

relied on was outdated, but rather that Defendants "ignored new

scientific methodologies for managing forage fish identified by

Plaintiffs and placed in the administrative record, and failed to

make reasoned determinations." Pls.' Mot. at 34.
-24-
 4. The aforementioned methodologies identified by

Plaintiffs are the two ABC control rules they put forward - the

Lenfest Control Rule and the Pacific Control Rule - which are

"based on the most recent scientific studies of forage fish." Pls.'

Mot. at 16 (citing several studies). Plaintiffs fail to explain

why these particular studies are clearly the "best available

science" or why the SAW 54 is not sufficiently sound science. Pls.'

Mot. at 16-18, 28-29. In any event, the Administrative Record

indicates that several of the studies cited by Plaintiffs were

among the materials evaluated. See AR 004909-4946. The Lenfest and

Pacific Control rules were also considered, but were rejected by

NMFS. See AR 011065 (EA, section 2.2.7, Alternatives Considered

but Rejected); see also infra, Section III.C.

Once again, Plaintiffs' criticism appears not to be targeted

at the data relied on in preparing the 2013-2015 Specifications,

but rather the outcome chosen by Defendants. The best available

science, in Plaintiffs' view, "demonstrates that an approach that

reduces fishing rates and maintains higher stock sizes is more

appropriate for forage fish.'~ Pls.' Mot. at 26. Again, Plaintiffs

are basing their evaluation of what the "best available science"

is to achieve an outcome that reduces fishing for forage species.

To the extent Plaintiffs argue that forage considerations must be

included to constitute the best available science, Plaintiffs

themselves state that "[i]t is undisputed that the 2012 herring
-25-
stock assessment [SAW 54] incorporates forage considerations into

the model to better account for consumption of herring by

predators, and therefore represents the best available science for

the purpose of estimating the current population of Atiantic

herring and biological reference.points." Pls.' Mot. at 26-27.

All told, Plaintiffs' argument is that, because the selected

ABC control ru1e does not "reduce fishing rates and maintain higher

biomass based on changing biomass projections and scientific

uncertainty," "Defendants failed to take the critical second step

in setting catch levels that prevent overfishing," and therefore

"they failed to establish and apply an appropriate ABC control

rule based on the best available science for managing forage fish."

Pls.' Mot. at 27. Plaintiffs are not disputing the scie~ce relied

on, but believe that the "best available science" would mandate

the selection of an ABC control rule with a lower depletion rate,

and therefore the selected ABC control rule cannot be based on the

best available science. This logic is flawed.

As discussed, National Standard 2 requires diligent research

and sound science: See supra, 22. It does not mandate outcomes.

National Standard 2 is in place to ensure "that rules issued by

the NMFS be based on a thorough . review of all the relevant

information available at the time the decision was made and []

that the NMFS does not disregard superior data in reaching its

conclusions." Ocean Conservancy, 394 F. Supp. 2d at 157 (internal
-26-
quotation marks and citations omitted) . The Council considered the

advice of its SSC, examined several options for setting the ABC

control rule, including the Lenfest and Pacific Control Rules, and

made a reasoned determination that using the constant catch rule

offered the best approach.

To sum up, Plaintiffs have failed to substantiate their

allegations that the ACLs and ABC control rule in the 2013-2015

Specifications do not rely on the best available science and will

not prevent overfishing. As this Court stated in its prior opinion

in this matter, "[a] lthough Plaintiffs may be correct that the

Council could have selected a more conservative ABC control rule,
'
which would have resulted in a more conservative ACL, Plaintiffs

must do far more than simply show that Defendants did not take

their preferred course of action." Flaherty I, 850 F. Supp. 2d at

63. The Court must defer to an agency's rational decision when

supported by the Administrative Record, as is the case here, and

particularly when that decision involves the type of technical

expertise relied upon in this case. Bloch, 348 F.3d at 1070; C &

W Fish Co., 931 F.2d at 1562; Arn. Oceans Campaign, 183 F. Supp. 2d

at 4. Therefore, the Court concludes that Defendants' adoption of

the constant catch control rule and the resultant ACLs in the 2013-

2015 Specifications were not in violation of the MSA.

-27-
 c. Defendants Considered a Reasonable Range of ABC Control
Rule Alternatives

Similar to their Amendment 4 challenge in Flaherty I,

Plaintiffs argue that Defendants failed.to consider a reasonable

range of ABC control rule alternatives in their associated

environmental impact statement, as required by NEPA. See Pls.'

Mot. at 35i Flaherty I, 850 F. Supp. 2d at 71-72.

As discussed previously, NEPA requires federal agencies to

take a hard look at the environmental consequences of a major

action before taking it. See supra, 5-6. This can take the form of

an Environmental Assessment ("EA"), as was done in the 2013-2105

Specifications, or an Environmental Impact Statement ("EIS"). When

evaluating an agency's compliance with NEPA, the Court's role is

not to substitute its judgment for that of the agency, but is

rather "'simply to ensure that the agency has adequately considered

and disclosed the environmental impact of its actions and that its

decision is not arbitrary or capricious.'" City of Olmstead Falls

v. FAA, 292 F.3d 261, 269 (D.C. Cir. 2002) (quoting Baltimore Gas

& Elec., 462 U.S. at 97-98) i NRDC v. Hodel, 865 F.2d 288, 294 (D.C.

Cir. 1988).

Environmental Assessments must include a "brief discussion .

of alternatives [and] of the environmental impacts of

th~ proposed action and alternatives." 40 C.F.R. § 1508.9(b). In

considering the an~logous requirement for an EIS, our Court of

-28-
Appeals explained that "the agency's choice of alternatives are .

. 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 v.

Slater, 198 F.3d 862, 867 (D.C. Cir. 1999) (quoting Citizens

Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C. Cir.

1991)). Although an EA generally imposes less stringent

requirements on an agency than an EIS, it is clear that even an

EA's "hard look" must include consideration of reasonable

alternatives. Am. Oceans Campaign, 183 F. Supp. 2d at 19-20. For

the reasons outlined below, the Court concludes that Defendants

have not acted arbitrarily or capriciously in deciding to rely on

only two alternative ABC control rules.

1. Plaintiffs argue that Defendants acted arbitrarily and

capriciously "by considering only two alternative ABC control

rules" and for failing to consider the Lenfest and Pacific control

rules proposed by Plaintiffs. Pls.' Mot. at 35~37. There is no set

number of alternatives that an agency must consider; it need only

consider alternatives that are reasonable. See 40 C.F.R. § 1502.14.

An alternative is "reasonable" if it is objectively feasible as

well as "reasonable in light of [the agency's] objectives." City

of Alexandria, 198 F.3d at 867; see also 43 C.F.R. § 46.420(b)
-29-
(defining "reasonable alternatives" as those alternatives "that

are technically and economically practical or feasible and meet

the purpose and need of th~ proposed action").

In actuality, Defendants considered three control rule~ in

the EA, as the regulations require a "no action" alternative to be

considered. See 40 C.F.R. § 1502.14(d) (requirement to include the

alternative of no action) ; AR 011032-34 (EA summarizing

alternatives considered) . Plaintiffs discount the "no action"

alternative, which would have maintained the 2012 OFL and ABC

specifications, see AR 011034, because it is not based on the most

recent stock assessment. Pls.' Mot. at 36. In Flaherty I, the Court

found that the "no action" alternative could not reasonably be

considered as an alternative because it contained no process for

establishing ACLs, as required by the recently revised MSA, and

therefore was clearly not a legally viable option. See Flaherty I,

850 F. Supp. 2d at 72-73 n. 23.

The "no action" alternative here is easily distinguishable

from the one at issue in Flaherty I. The "no action" alternative

in Flaherty I would not have met the objectives of the action,

because it would not have established ACLs, whereas the present

"no action" alternative would fulfill the MSA's mandate to

implement a process for establishing ACLs. See Oceana, Inc. v.

Locke, 831 F. Supp. 2d at 127-32 ("no action" alternative would

have fulfilled MSA's mandate to set in place a process for
-30-
establishing ACLs and therefore was reasonably considered in

satisfaction of NEPA) . Nor have Plaintiffs shown that the "no

action" alternative is otherwise inconsistent with the objectives

of the Atlantic Herring FMP. See AR 011021-22 (listing objectives).

While it is possible that, had it been selected, Plaintiffs could

have shown that the "no action" alternative did not rely on the

best available science, such an inquiry goes beyond the task at

hand. Given that the "no action" alternative would have met the

objectives of the action it was reasonable for Defendants to

consider it as a viable alternative.

2. Plaintiffs also dismiss the constant catch and 75% FMsY

alternatives because they are allegedly not based on the best

available science due to their failure to "account for herring's

role as forage in the ecosystem." Pls.' Mot. at 37. The Court has

already rejected Plaintiffs' argument that the constant catch

control rule was not based on the best available science. See

supra, 26-27. Plaintiffs make the same arguments with regard to

the FMsY rule, and the arguments fail for the same reasons that

they failed regarding the constant catch control rule. As this is

Plaintiffs' only reason for discounting these two alternatives,

the Court finds that they were properly considered.

3. Plaintiffs argue that Defendants arbitrarily and

capriciously failed to consider the Lenfest and Pacific Control

Rules in the EA. The EA for the 2013-2015 Specifications includes
-31-
discussion of the Lenfest and Pacific Control Rules in the

"Alternatives Considered but Rejected" section. AR 011065.

Plaintiffs argue that "an alternative is properly excluded from

consideration only 'if it would be reasonable for the agency to

conclude that the alternative does not bring about the ends of the

federal action,"' Pls.' Mot. at 38 (quoting Flaherty I, 850 F.

Supp. 2d at 71) (emphasis in original), and that their control

rules would have achieved the objectives at hand. Defendants argue

that Plaintiffs' control rules were rejected because "they were

outside the scope of the 2013-15 [S] pecifications, may not be

applicable to management decisions generally, and their

applicability to Atlantic herring was questionable." Defs.' Mot.

at 28, 31.

The Plaintiffs' control rules are outside the scope,

Defendants claim, because the SSC determined that implementation

of. them would require development of certain reference points

through scientific assessment that would also need to be peer-

reviewed prior to being adopted for long-term management of the

fishery. Defs.' Mot. at 32 (citing AR 009280).

Plaintiffs counter that the SSC never made such a conclusion;

it was NMFS that made such a conclusion. Pls.' Reply at 20 (citing

AR 008677-78) . While Plaintiffs are correct that the SSC did not

explicitly say Plaintiffs' control rules were outside the scope,

it did state that additional reference points were needed in its
-32-
explanation for why the rules could not be fully evaluated in its

meeting. See AR 008677 (" [I]t is difficult to address the Pacific

control rule because the specific values of the cutoff, buffer,

and fraction have not been specified for Atlantic herring."). Even

though Plaintiffs state that there is no basis for the conclusion

that the absence of certain reference points put the two control

rules outside the scope of the specifications, they do not explain

why that reasoning is correct. Pls.' Reply at 20.

4. Defendants also argue that Plaintiffs' control rules

"were of questionable applicability to management decisions

generally." Defs.' Mot. at 32; see also AR 009280 ("The Herring

PDT expressed concern about adopting either control rule in the

2013-2015 [S]pecifications package, as it represents a significant

change in management strategy."). NMFS also noted in the EA that

one of the studies relied on by Plaintiff's control rule

alternatives recommended not using their reference points for

tactical management decisions. AR 009279; see also AR 004408

(Anthony Smith et al., Impacts of Fishing Low-Trophic Level Species

on Marine Ecosystems, 333 SCIENCE 1147, 1150 (August 26, 2011)).

Plaintiffs dispute this reading of the study, arguing that the

study was "merely making the point that the specific model choice

ultimately made by managers should be tailored to the ecosystem."

Pls.' Reply at 21.

-33-
..
The SSC also disagreed with the use of an ABC control rule in

which a small change. in biomass made a large and sudden change in

the acceptable catch, as the Pacific Control Rule did. AR 008678.

Plaintiffs counter that Defendants have already implemented this

rule on the West Coast for herring and other forage species, and,

in any event, it did not prevent consideration of the Lenfest

Control Rule. Pls.' Reply at 21. The Court agrees that this should

have had no impact on consideration of the Lenfest Control Rule.

In addition, the SSC's preference for rules without drastic changes

in the ACL does not put the Pacific Control Rule outside the scope

of the objectives, and by itself is not sufficient justification

for not considering it. Because the Court finds the other reasons

given by Defendants for rejecting the Lenfest and Pacific Control

Rules to be adequate, the insufficiency of this reason does not

affect the outcome.

5. Defendants argue that Plaintiffs' cont~ol rules were of

questionable applicability to the Atlantic herring fishery, due to

the fact that the studies they relied on used a static natural

mortality rate, while the SAW 54 used a time varying natural

mortality rate. Defs.' Mot. at 32-33 (citing AR 009278). Plaintiffs

concede that a dynamic natural mortality estimate is an improvement

over a static natural mortality rate, but argue that the benefit

"does not negate the need for an appropriate [i.e. Plaintiffs']

-34-
control rule when setting catch limits for forage fish." Pls.'

Reply at 22.

Such a balancing of factors is precisely the type of task

that is best left to the agency's expertise, rather than the

Court's. Plaintiffs also argue that the alternatives could have

been modified for the Atlantic herring fishery. Pls.' Reply at 22.

Again, the decision of whether or how Plaintiffs' control rules

could have been modified to fit the objectives of the 2013-2015

Specifications lies within the Secretary's area of expertise, not

the Court's, and is entitled to deference. See Grand Canyon Trust

v. FAA, 290 F.3d 339, 340 (D.C. Cir. 2002).

Defendants provided an adequate discussion and explanation of

their reasons for rejecting the Lenfest and Pacific Control Rule

alternatives, and the Court defers to NMFS's conclusion that they

were not appropriately applicable at this time. Defendants

considered three control rule alternatives in the EA and have

satisfied their NEPA obligations. Even if the Court were to

discount the no-action alternative, as Plaintiffs argued, the

Court still finds that Defendants considered reasonable

alternatives for purposes of NEPA.

d. Defendants Did Not Violate the Court's 2012 Remedial
Orde:i;-

As part of this Court's 2012 Flaherty I decision, the Court

issued a remedial order requiring Defendants to, among other

-35-
things, consider "as part of the 2013-2015 herring specifications

(or another appropriate action to be completed within one year of

the date of this Memorandum Order) , . . . at least one [ABC control

rule for the Atlantic herring fishery] based on the most recent

best available science for setting ABC control rules f~r herring

and other forage fish." August 2, 2012 Remedial Order, 12-13

("Remedial Order") [Dkt. No. 41] . Plaintiffs argue that

Defendants' failure "to consider even one control rule consistent

with the [Remedial] Order" was arbitrary and capricious and

violated the APA. Pls.' Mot. at 40.

Plaintiffs previously raised this argument in their Motion to

Enforce the Remedial Order [Dkt. No. 62], which the Court denied.

See February 19, 2014 Memorandum Opinion [Dkt. No. 87]. This Court

found that the Council had "considered two alternatives to the ABC

Control Rule in the Environmental Assessment it prepared for the

2013-2015 Specifications, and Defendants attached that analysis to

its Final Remedial Report as required." Id. at 7. After finding

that Defendants had "considered and addressed each of [the] issues"

in the Remedial Order, this Court denied the motion to enforce.

Id. at 11-12.

"Plaintiffs have obtained all of the relief to which they are

entitled" under the Remedial Order, id. at 12, and therefore they

cannot base further claims on alleged violations of the Remedial

Order.
-36-
IV. CONCLUSION

For the reasons set forth above, Plaintiffs' Motion for

Summary Judgment is denied, Defendant-Intervenor SFC's Motion for

Summary Judgment is denied, and Defendants' Motion for Summary

Judgment is granted.

An Order will issue with this opinion.

June 14, 2016
Gl~s~~
United States District Judge

Copies to: attorneys on record via ECF

-37-