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NATURAL RESOURCES DEFENSE COUNCIL, INC. v. EVANS

August 20, 2001

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL., PLAINTIFFS,
V.
DONALD EVANS, SECRETARY OF COMMERCE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Larson, United States Magistrate Judge.

  ORDER GRANTING PARTIAL SUMMARY JUDGMENT FOR PLAINTIFFS AND DEFENDANTS

INTRODUCTION

Cross Motions for Summary Judgment were submitted and a hearing was conducted on August 1, 2001. Plaintiffs were represented by Andrew Caputo of the Natural Resources Defense Council, Inc. Federal Defendants were represented by Catherine R. Lewers of the U.S. Department of Justice.

For good cause appearing the court hereby grants Plaintiffs' Motion for Summary Judgment as to Counts 1, 1a, 2, 2a, 3 (in part), 3a (in part) 4, and 4a. The court hereby grants Defendants' Motion for Summary Judgment as to Counts 3 (in part) and 3a (in part).

FACTUAL BACKGROUND

The Magnuson-Stevens Fishery and Conservation Act ("MSA") governs the management of federal fishing waters off the coast of the United States. As part of this process, the Commerce Department directs the National Oceanic and Atmospheric Administration, which in turn delegates practical management to the National Marine Fisheries Service ("NMFS"). The NMFS oversees the operations of the eight regional fishery management councils, including the Pacific Fishery Management Council ("Pacific Council"). The Pacific Council develops, among other things, annual harvest recommendations for the species of fish within its fishery, which are then subject to revision by the NMFS and formal approval by the Secretary of Commerce.

Bocaccio rockfish and lingcod are two of the 82 species of groundfish that constitute the Pacific Coast Groundfish Fishery. They serve several needs of the population and are of elemental importance to the coastal ecosystems of Washington, Oregon, and California. Pacific groundfish are generally marketed under some form of the name "snapper." Bocaccio, for example, is commonly known as "Pacific red snapper" or "rock fish." Groundfish generally mature slowly, live between 50 and 150 years, and depend greatly upon their ocean-floor habitat for survival. Unfortunately both species are imperiled. The Bocaccio population in this region, for example, is presently estimated at just 2% of its unfished biomass, having declined precipitously since 1969, largely because of overfishing. The populations of other species of groundfish are also suspected to be severely depleted, but there is no reliable data, since the NMFS has studied just 16 of these 82 species. Of the 16 studied, seven species have been officially determined to be "overfished," including bocaccio and lingcod, each of which were officially so designated in March 1999.

The M.S.A. was amended in 1996 by the Sustainable Fisheries Act ("SFA") to provide more stringent protections for overfished species, such as bocaccio and lingcod. NMFS is responsible under the M.S.A. for ensuring the protection and repopulation of these species through the implementation of rebuilding plans and its annual fishing specifications and limits. The MSA's national standards require, among other things, that NMFS's fishery management plans "prevent overfishing" and "minimize bycatch." 16 U.S.C. § 1851(a)(1), (a)(9).

Commercial fishing boats regularly discard the fish they catch that are either "untargeted" or would exceed their quota. These unwanted fish, known as bycatch, are returned to the sea in a process that results in various levels of mortality for different species. Because of the trauma associated with pressure change, few bocaccio survive after being brought to the surface, leading to a discard mortality rate approaching 100%.

An irony exists in that as fishing allowances are lowered to protect a species, the bycatch percentage increases. Fishing boats continue to catch multiple species of fish at the same time, but they are compelled by regulation to discard a greater percentage of the protected species. As bocaccio and lingcod fishing allowances have decreased in recent years, it is therefore, as both sides agree, a virtual certainty that the bycatch mortality rates for each fish have in turn increased. NMFS acknowledges that it does not have accurate data on bycatch, that the issue is of "serious concern," but that it is "taking steps" to address this lack of information. Without such data, it is extremely difficult to assess the efficacy of NMFS's conservation and management measures, which has resulted in the continued overfishing of lingcod and bocaccio.

NMFS sets fishing limits each year in its annual groundfish specifications. The M.S.A. requires that the Pacific Management Fishery Council ("Council") "conduct public hearings . . . so as to allow interested persons an opportunity to be heard" regarding the development of plans, amendments, and Council decisions. 16 U.S.C. § 1852(h)(3). Prior to its 2001 specifications, the Council held two series of meetings, the first on September 11-15, 2000 in Sacramento, California, and the second between October 30 and November 3, 2000 in Vancouver, Washington. At the meetings, the Council received public comment and accepted written comments from NRDC and other interested parties during October 2000, in accordance with 16 U.S.C. § 1852(h)(3). After the November meeting, the Council prepared an Environmental Assessment ("EA"), in accordance with the National Environmental Policy Act ("NEPA"), along with its final 2001 groundfish specification recommendations and forwarded them to NMFS on December 13, 2000. That same day, NMFS requested approval of the specifications from the National Oceanic and Atmospheric Administration, NMFS parent body, and approval was granted on January 2, 2001. The 2001 specifications were filed, in final, legally binding form, with the Office of the Federal Register on January 5, 2001 and published on January 11 with public comment invited until February 12, 2001.

NMFS failed to include bocaccio and lingcod discard-mortality rates in setting its final 2001 groundfish specifications and catch limits on January 5, 2001, thus putting these already "overfished" species at decided risk of further overfishing. In an attempt to correct this oversight, NMFS later adjusted its bocaccio and lingcod fishing limits in May 2001, to account for an estimated 16% and 20% bycatch mortality rate, respectively.

PROCEDURAL HISTORY

Plaintiffs, Natural Resources Defense Council, Pacific Marine Conservation Council, and The Ocean Conservancy (collectively, "NRDC") and Defendants, NMFS, under the aegis of United States Secretary of Commerce Donald Evans, have filed cross motions for summary judgment in these consolidated actions.

The NRDC states four claims and prays for eight orders of declaratory and injunctive relief:

• 1. Declaratory judgment that NMFS's revised 2001 specifications for bocaccio rockfish and lingcod fishing limits violates the M.S.A. and the Administrative Procedure Act ("APA") by failing to adequately account for discard mortality;
• 1a. An order that NMFS reassess its 2001 specifications using a legally adequate consideration of discard mortality;
• 2. Declaratory judgment that NMFS violated the M.S.A. and the APA by not providing prior public notice and allowing for comment on the 2001 specifications after their publication by the Secretary;
• 2a. An order that, in accordance with the M.S.A. and the APA, NMFS provide prior public notice and allow comment on future Pacific groundfish specifications;
• 3. Declaratory judgment that NMFS's Amendment 12 violates the M.S.A. by authorizing inadequate rebuilding plans for overfished species and continued overfishing under a "mixed-stock" exception;
• 3a. An order setting aside Amendment 12 and remanding it to NMFS for further consideration;
• 4. Declaratory judgment that the EAs NMFS performed in conjunction with Amendment 12 and the 2001 groundfish specifications failed to consider a reasonable range of alternatives and environmental consequences, in violation of NEPA;
• 4a. An order setting aside and remanding the EAs performed in conjunction with Amendment 12 and the 2001 ...

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