Pikitch Study, NMFS admits that it is a "virtual certainty" that
their bycatch mortality rates have risen. NRDC contends that this
makes NMFS reliance on 15-year-old data unreasonable.
The M.S.A. confines the scope of judicial review of agency
regulations and actions as provided in 5 U.S.C. § 706(2)(A), (B),
(C), or (D) of the APA. 16 U.S.C. § 1855(f)(1)(B). Section 706 of
the APA requires reviewing courts to "hold unlawful and set aside
agency action, findings, and conclusions found to be arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. § 706(2)(A). An agency decision
may be invalidated if it fails to consider important aspects of a
problem, uses criteria Congress did not intend, or is not
explained adequately enough for a reviewing court to identify the
agency's response to major policy issues raised in preliminary
proceedings. Alvarado Community Hosp. v. Shalala,
155 F.3d 1115, 1122 (9th Cir. 1998).
NMFS counters that the Pikitch Study represents the best
scientific evidence available in 2001 and that estimated total
commercial catches for both species in 1999 and 2000 did not
exceed even the admittedly faulty January 2001 specifications. So
by employing the same 16% and 20% bycatch mortality rates in 2001
as it did in 1999 and 2000, NMFS argues, there has been no
overfishing. But NMFS has no accurate data on bycatch, so it does
not actually know if there was overfishing during 1999 and 2000.
There are other problems with relying on the Pikitch Study.
Data from the study suggest various discard rates for different
groundfish, including one at 52%. Since neither bocaccio nor
lingcod were actually included in the Pikitch Study, it would be
reasonable to expect NMFS to explain why assigned a 16% rate of
bycatch for bocaccio rather than a higher percentage up to 52%.
The Pikitch Study also corroborates evidence that regulatory
bycatch increases as landing limits are reduced, and both
bocaccio and lingcod have been protected by reduced landing
limits. It must follow that bycatch discard has increased since
the Pikitch Study was conducted and that the 16% and 20% figures
NMFS has arbitrarily set are no longer accurate, if they ever
The 1996 SFA amendments to the M.S.A. require that the NMFS
"establish a standardized reporting methodology to assess the
amount and type of bycatch occurring in the fishery and . . .
minimize bycatch." 16 U.S.C. § 1853(a)(11)(A). NMFS has not done
this. Evidence that neither side disputes points to increasing
bycatch percentages for bocaccio and lingcod as landing limits
necessarily decline to protect the species. NMFS has not
accounted for this evidence of increased bycatch percentages in
its specifications, instead using static estimates that are 15
years old. NMFS has not observed to its duty to obtain accurate
bycatch data. Nor has the agency bothered to explain its decision
to ignore these factors and not adjust bocaccio and lingcod
bycatch percentages in the face of evidence that it should.
NRDC's request that the 2001 bocaccio and lingcod
specifications be declared a violation of NMFS's duty under the
M.S.A. to address bycatch mortality is hereby granted. NMFS
failed to "include conservation and management measures that . .
. (A) minimize bycatch; and (B) minimize the mortality of bycatch
which cannot be avoided." 16 U.S.C. § 1853(a)(11). They are thus
"not in accordance with law." 5 U.S.C. § 706(2)(A). The
specifications are remanded to NMFS for further consideration
under a legally sufficient standard that accounts for the
unrefuted evidence of increased bycatch
mortality or sufficiently explains the agency's decision to
disregard such evidence. This court is not directing that NMFS
arrive at a specific harvest yield or bycatch percentage the
court thinks is appropriate, only that it meet its obligations
under the M.S.A. and the APA to engage in reasoned
II. NMFS 2001 Specifications are Legally Binding Regulations and
Must be Offered for Public Notice and Comment.
NRDC next claims that NMFS violated the M.S.A. and APA by not
accepting public comment on its 2001 Pacific groundfish
specifications. The M.S.A. requires that the Secretary of
Commerce publish regulations proposed under 16 U.S.C. § 1853(c)
in the Federal Register and receive public comment on them for a
period of 15 to 60 days. 16 U.S.C. § 1854(b)(1)(A). Proposed
regulations implement a fishery management plan, plan amendment,
or modifications to regulations. 16 U.S.C. § 1853(c). Groundfish
specifications are legally binding, and NMFS has previously
admitted in a variety of circumstances that its annual
specifications in fact constitute "regulations" under
16 U.S.C. § 1854(b)(1) and 1853(c)(1). NMFS currently argues, however,
that its annual specifications are not "regulations," but rather
"rules" or "framework actions," and so are not subject to the
public notice and comment provisions of
16 U.S.C. § 1854(b)(1)(A).
In support of this contention, NMFS cites the judicial review
section of MSA, 16 U.S.C. § 1855(f) and the distinction drawn
there between "[r]egulations promulgated by the Secretary and . .
. actions that are taken by the Secretary under regulations which
implement a fishery management plan. . . ." NMFS claims that its
annual groundfish specifications are "actions taken by the
Secretary" rather than "[r]egulations promulgated by the
Secretary," and that the public notice and comment provisions of
16, U.S.C. § 1854(b) apply only to "regulations" and not to
While this particular question appears to be an issue of first
impression, at least one other court has spoken on the matter of
what constitutes a "regulation." As employed by the MSA, a
regulation "refers to legally binding obligations which have the
force and effect of law and carry with them the threat of civil
penalties, citations and/or vessel forfeitures." Tutein v.
Daley, 43 F. Supp.2d 113, 121 (D.Mass. 1999) (distinguishing
between MSA's "advisory guidelines" and "regulations"). As noted,
NMFS does not dispute that its 2001 groundfish specifications
place legally binding obligations on the public, but the agency
maintains that while they carry the force and effect of law, its
specifications are "rules" or "framework actions."
The section of M.S.A. that NMFS relies on to support
interpretation does not contain the term "framework management
process." Section 1855(f)(2), in fact, enhances the standing of
affected parties to file judicial challenges to agency actions
that occur after MSA's 30-day statute of limitations has lapsed.
The legislative history cited by NMFS and NRDC further indicates
that Congress did not intend to establish an exemption from
public notice and comment for certain "actions," but rather to
ensure that such actions remain open to judicial challenge
despite the tolling of the statute of limitations. Sen. Rpt.
101-414 (1989) (reprinted in 1990 U.S.C.C.A.N. 6276, 6298). NMFS
argument takes Congress' express language extending public and
judicial oversight of agency action out of its context and turns
it against its very purpose.
More problematic to NMFS interpretation of annual
specifications as legally binding "actions" or "rules" but not
"regulations" is the scope of agency action that
would fall outside the requirements of public notice and comment.
In passing the MSA, Congress evinced a clear determination that
public notice and comment should be required for regulations
promulgated by the Secretary. 16 U.S.C. § 1854(b). NMFS annual
specifications include fishery harvest quotas, guidelines,
economic considerations, equipment regulations, and the creation
of protected areas. These are some of the most significant
actions that the agency takes. NMFS would take these legally
binding decisions out of the realm of public notice and comment
prior to their enactment.
NMFS rightly points out that it does promote public access to
the Pacific Council, a body subordinate to NMFS, during its
annual meetings in September and November. However, this argument
ignores the importance of the hierarchical structure established
by MSA. Presumably NMFS and the Secretary of Commerce do not
simply rubber stamp whatever recommendations are made to them by
the Council, and the opportunity for the public to address its
grievances and concerns directly to the Secretary, under
16 U.S.C. § 1854(b), ensures public access to Council review.
Denying the public access to this specially created avenue of
appeal, based on NMFS strained statutory reading of the law is
difficult to abide.
It should be noted here that the case at bar presents a
striking example of the need for such a forum. NMFS suggests that
NRDC's access to the September and November Pacific Council
meetings was sufficient to raise concerns. Yet NMFS oversight in
not including bocaccio and lingcod discard-mortality rates in its
January 2001 specifications was not corrected until May 2001. Had
the error been brought to the Secretary's attention before the
specifications were formally enacted, during a public notice and
comment period, the specifications could have been amended
earlier at less risk to the overfished species.
a. Even as "Rules," NMFS Specifications Are Subject to APA
Notice and Comment Provisions.
Even if NMFS contention that its 2001 groundfish specifications
are "rules" and not "regulations" were persuasive, the
specifications would still be subject to the standard public
comment and notice provisions of the APA. Proposed agency "rule
making" must be published in the Federal Register at least 30
days before enactment. 5 U.S.C. § 553. NMFS concedes that as
"rules" its specifications would normally be subject to the APA.
NMFS, however, invokes the "good cause" exception of
5 U.S.C. § 553(b)(B), which allows an agency to bypass public comment and
notice if it would be "impracticable, unnecessary, or contrary to
the public interest." NMFS maintains that its annual
specifications are so time sensitive that it cannot provide this
notice and comment period and implement the specifications in
time for the January 1 commencement of each year's fishing
When evaluating an agency's invocation of the good cause
exception to avoid public comment and notice, Ninth Circuit law
"requires APA exceptions to be construed narrowly. . . ."
Independent Guard Ass'n of Nevada, Local No. 1 v. O'Leary,
57 F.3d 766 (9th Cir. 1995). Valid exceptions to notice and comment
provisions usually involve circumstances in which an agency would
otherwise be unable to execute its statutory obligations.
Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1484 n. 2 (9th
Cir. 1992). In that case the defendant agency held public
meetings every Tuesday to establish volume restrictions on the
next week's navel orange market, with the Secretary of
Agriculture issuing the actual ruling each Friday. Id. at 1483.
the meetings was not published in the Federal Register, nor did
the Secretary receive public comment before issuing the weekly
rule, on the basis of the "good cause" exception of
impracticability provided for in 5 U.S.C. § 553(b)(B). Id. The
court held that there was no "good cause" for not publishing
advance notice in the Federal Register before each weekly meeting
and allowing public submission of written comments to the
Secretary to the extent possible. Id. at 1489.
In our case, two months passed between the conclusion of the
Pacific Council's second meeting in November 2000, in which the
2001 specifications were set, and their enactment by the
Secretary in January 2001. Even with the time required to conduct
an EA, there was sufficient time for the Secretary to publish and
receive comment on proposed specifications 30 days before their
enactment. The proposed specifications need not purport to be
final when submitted for public comment; they need only set forth
what has been proposed by the Council to the Secretary. Moreover,
these specifications are set once per year, not weekly as in
Riverbend Farms, under a predictable schedule of meetings and
procedures, and the importance of public participation in agency
rule-making should not be ignored for the mere sake of
convenience. And since this court directs that the NMFS re-adopt
its former interpretation that groundfish specifications are in
fact "regulations" under MSA, 15 days is the minimum required to
satisfy the public's legitimate interests. 16 U.S.C. § 1854(b).
Whether characterized as "regulations," "rules," or "framework
actions," NMFS annual groundfish specifications carry the weight
of law, and NMFS has not demonstrated that it is impractical that
they be submitted to public notice and comment. NRDC's request
for declaratory judgment that NMFS's 2001 specifications violate
the M.S.A. (and, alternatively, the APA) is hereby granted, and
NMFS is ordered to comply with public notice and comment
provisions of the M.S.A. in setting future groundfish
III. NMFS Amendment 12 Violates M.S.A. by Authorizing Inadequate
NRDC's third claim challenges the legality of NMFS Amendment 12
because its form and content do not comply with M.S.A. and
because its reservation of a "mixed-stock exception" violates
MSA's mandate to prevent overfishing. Both sides agree that
Amendment 12 is not itself a "rebuilding plan" for overfished
fisheries but rather a mechanism employed in the development of
rebuilding plans. Amendment 12 does specify, however, that any
rebuilding plan subsequently developed by NMFS will not take the
form of a fishery management plan, plan amendment, or
regulations. This does not accord with the requirements of MSA.
As noted, the M.S.A. was amended in 1996 by the SFA to include
provisions for rebuilding overfished species such as bocaccio and
lingcod. 16 U.S.C. § 1854(e). Once the Secretary determines a
fishery has become overfished, the appropriate regional Council
must take action "to end overfishing in the fishery and implement
conservation and management measures to rebuild affected stocks
of fish." 16 U.S.C. § 1854(e)(2). This action "shall" take the
form of "a fishery management plan, plan amendment, or proposed
regulations" designed "to end overfishing in the fishery and to
rebuild affected stocks of fish." 16 U.S.C. § 1854(e)(3). The
management plan, amendment, or regulations must end overfishing
as quickly as possible, consider needs of fishing communities,
and allocate benefits and restrictions fairly.
16 U.S.C. § 1854(e)(4). These plans must be reviewed
every two years by the Secretary to ensure adequate progress in
rebuilding overfished stocks. 16 U.S.C. § 1854(e)(7).
By its own admission NMFS Amendment 12 specifically authorizes
the development of rebuilding plans or actions that fail to take
the required form of "a fishery management plan, plan amendment,
or proposed regulations." 16 U.S.C. § 1854(e)(3). The M.S.A. is
unequivocal about the form these agency actions must take to
protect overfished species. NMFS, however, construes this
language as support for its "framework action" process, an
interpretation that affords the agency power to bypass public
notice and comment on these legally binding "actions." MSA could
hardly be more clear about the form that rebuilding plans and
actions must take, and Amendment 12 expressly authorizes forms of
action that run directly contradict the unambiguous provisions of
MSA. It is thus "not in accordance with law."
5 U.S.C. § 706(1)(A). Declaratory judgment that Amendment 12 violates the
M.S.A. by authorizing inadequate rebuilding plans for overfished
species is hereby granted. This portion of Amendment 12 is
remanded to NMFS for further proceedings in conformity with
16 U.S.C. § 1854(e)(3).
a. NRDC's Challenge to Amendment 12's Mixed-Stock Exception is
not Ripe for Judicial Review.
NRDC also disputes the legality of Amendment 12's inclusion of
a mixed-stock exception that permits overfishing should certain
precautionary conditions be met. To date, NMFS has not applied
this exception, and Amendment 12 refers to a pre-existing
mixed-stock exception in the National Standard Guidelines related
to National Standard One. 16 U.S.C. § 1851(a)(1).
The SFA amendments of 1996 strengthened the MSA's measures to
prevent overfishing. National Standard One requires that any
fishery management plan or regulation "prevent overfishing while
achieving, on a continuing basis, the optimum yield from each
fishery. . . ." 16 U.S.C. § 1851(a)(1). The MSA's National
Standards require the Secretary to "establish advisory guidelines
(which do not have the force and effect of law) . . . to assist
in the development of fishery management plans."
16 U.S.C. § 1851(b). The mixed-stock exception was developed under these
advisory guidelines, and Amendment 12 provides that "[i]n limited
circumstances, [adjustments to the optimum yield] could include
increasing OY above the overfishing level as long as the harvest
meets the mixed-stock exception in the National Standard
Guidelines." 2 AR B.19, Append. at 4. The guidelines permit
overfishing "only if all of the following conditions are
satisfied: (i) It is demonstrated by analysis . . . that such
actions will result in long-term net benefits to the nation. (ii)
It is demonstrated by analysis that mitigating measures have been
considered . . . (iii) The resulting rate or level of fishing
will not cause any species . . . to require protection under the
ESA." 50 C.F.R. § 600.310(d)(6).
The 1996 amendments to the M.S.A. included a specific
definition of the term "overfished," a mandate to rebuild
overfished fisheries, and a change in the definition of "optimum"
to minimize aggressive harvest yields. NRDC argues that this is
evidence of Congress intent to eliminate the mixed-stock
exception. However, Congress neither expressly sanctioned nor
prohibited future application of the mixed-stock exception that
was in place in 1996. NMFS contends the issue is not ripe for
judicial review because the mixed-stock exception has not been
applied and, as yet, imposes no legally binding regulations.
The two-part test for ripeness requires the court to consider
"(1) whether the issues are fit for judicial decision, and (2)
whether the parties will suffer hardship if [the court]
decline[s] to consider the issues." City of Auburn v. Qwest
Corp., 247 F.3d 966, 976 (9th Cir. 2001). A case or controversy
is fit for judicial review when "essentially legal in nature" and
"no further factual amplification is necessary." Id. at 977
(quoting Western Oil & Gas Ass'n v. Sonoma County,
905 F.2d 1287, 1291 (9th Cir. 1990)). In the case at bar, the
circumstances under which NMFS might apply the mixed-stock
exception are wholly speculative. The conditions that must be met
are onerous and would presumably involve exceptional
circumstances. The mixed-stock exception might be applied
temporarily to a species that is not designated as "overfished;"
it might be applied for valid environmental, non-economic
reasons. The particular facts underlying any NMFS decision to
invoke the mixed-stock exception might bear significantly on the
appropriateness of such a decision. Accordingly, the issue is not
currently appropriate for judicial review.
In order to constitute hardship, "[p]ostponing review must
impose a hardship on the complaining party that is immediate."
Anchorage v. United States, 980 F.2d 1320, 1326 (9th Cir.
1992). NMFS has not invoked the mixed-stock exception, and there
are no legally controlling rules or regulations to which the
public must adhere. The second element of the test for ripeness
is also unmet.
NRDC has failed to meet either part of the test for ripeness.
Accordingly, NMFS motion for summary judgment that the issue of
Amendment 12's inclusion of a mixed-stock exception is not ripe
for adjudication is hereby granted. There will be no order
remanding that portion of Amendment 12 to NMFS for further review
at this time.
This ruling should not be construed to endorse the application
of a mixed-stock exception to overfished fisheries. NMFS may in
fact have difficulty reconciling future application of the a
mixed-stock exception with its own past statement that
"short-term overfishing that causes populations to decline below
[maximum-sustainable and optimum yields] is not permissible." 63
FR 24216. But that is not for this court to decide at this time.
IV. NMFS Environmental Assessments Inadequately Consider
NRDC's fourth claim is that the environmental assessments
("EA") that NMFS performed for Amendment 12 and the 2001
groundfish specifications do not comport with NEPA's required
consideration of alternatives and environmental consequences.
NEPA demands that federal agencies, to the extent possible,
examine the effects of their decisions before acting, in order to
minimize negative unintended consequences. Blue Mountains
Biodiversity Project v. Blackwood, 161 F.3d 1208, 1216 (9th Cir.
1998). See also Marsh v. Oregon Natural Resources Council,
490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). An agency
may prepare an EA and determine that a more thorough
environmental impact statement ("EIS") is unwarranted and instead
produce a finding of no significant impact ("FONSI").
40 C.F.R. § 1501.4. Whether conducting an EIS or a more general EA, NEPA
mandates that federal agencies "[s]tudy, develop, and describe
alternatives to recommended courses of action in any proposal
which involves conflicts concerning alternative uses of available
resources." 42 U.S.C. § 4332(2)(E). Any EA "[s]hall include a
brief discussion of alternatives. . . ." 40 C.F.R. § 1508.9(b).
of alternatives is critical to the goals of NEPA even where a
proposed action does not trigger the EIS process." Bob Marshall
Alliance v. Hodel, 852 F.2d 1223, 1228-29 (9th Cir. 1988).
In formulating its EA on the 2001 bocaccio and lingcod
specifications, NMFS considered two alternatives for setting
bycatch mortality rates: zero and the 16% and 20%, respectively,
set in previous years. As mentioned above, NMFS acknowledges that
these figures are no longer accurate, if indeed they ever were.
Thus, any meaningful consideration of alternatives must include
the prospect of raising these percentages to provide adequate
protection of these overfished species. NMFS considered two
figures for bycatch, each of which it knew to be inaccurate. This
kind of consideration of alternatives not does not amount to the
kind of "hard look" that NEPA requires an agency to take, and
NMFS has failed to explain its reasoning on the matter.
NMFS EA for Amendment 12 also considered only two alternatives
in addressing the procedures for establishing rebuilding plans
for overfished fisheries: 1) the status quo and 2) the agency's
own proposed Amendment 12. 2 AR B.19 at EA/RIR-3. NRDC offered at
least four alternatives to NMFS before the agency adopted
Amendment 12, each addressing the inadequacy of rebuilding plans
for overfished fisheries that the amendment would authorize. 7 AR
M.50 at 3. As NMFS own counsel suggests, "the EA supporting
Amendment 12 is extremely weak because it only considered the
status quo and the preferred alternative." 4 AR E.6. An agency's
EA need not address every conceivable alternative presented to
it, but, as noted, it must at least "[s]tudy, develop, and
describe appropriate alternatives. . . ." 42 U.S.C. § 4332(2)(E).
NMFS's Amendment 12 EA addressed none of NRDC's proposed
alternatives it did not explain this failure to do so, nor did it
offer any appropriate alternatives of its own.
Accordingly, NMFS EA for its 2001 bocaccio and lingcod
specifications and its EA for Amendment 12 are hereby declared
inadequate and remanded to the agency for compliance with NEPA's
demand that it "[s]tudy, develop, and describe appropriate
alternatives. . . ." 42 U.S.C. § 4332(2)(E).
Judicial review of agency decision-making is appropriately
circumscribed by statutes such as the APA, the MSA, and NEPA. The
role of the judiciary in this regard is not to substitute its own
policy considerations for those of an agency. Rather, the role of
the courts is to ensure that agencies governed by the executive
follow the express statutory mandates enacted by the legislature.
In this regard, the NMFS has failed to adhere to the
aforementioned provisions of the APA, the MSA, and NEPA, and,
The court hereby grants the following relief:
• 1. Declaratory judgment that NMFS's revised 2001
specifications for bocaccio rockfish and lingcod
fishing limits violates the M.S.A. and APA by
failing to adequately account for discard
• 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 specifications;
• 3. Declaratory judgment that Amendment 12 violates
the M.S.A. by authorizing inadequate rebuilding
plans for overfished species;
• 3a. An order setting aside that portion of
Amendment 12 that authorizes rebuilding plans that
do not accord with the M.S.A. and remanding it to
NMFS for further consideration;
• 4. Declaratory judgment that the Environmental
Assessments NMFS performed in conjunction with
Amendment 12 and the 2001 bocaccio and lingcod
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 groundfish specifications to NMFS.
The court hereby grants to NMFS the following: