The opinion of the court was delivered by: Larson, United States Magistrate Judge.
ORDER GRANTING PARTIAL SUMMARY JUDGMENT FOR PLAINTIFFS AND
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).
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
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.
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
• 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
• 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"
• 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