16 U.S.C. § 1854(e)(3). NMFS protests that it is working with the Council (Pacific Fisheries Management Council). The law explicitly provides that if the Council can't prepare the plan within one year, that the agency steps in and gets the job done.
Amendment 13 — Bycatch Assessment Methodology — In its August 2002 summary judgment order the court found that Amendment 13 violated the Magnuson-Stevens Act requirements to reduce bycatch and include all practicable bycatch reduction measures in the FMP. Pacific Marine Conservation Council v. Evans, 200 F. Supp.2d at 1201-1203. The court recognized the two-year Congressional deadline for amending the FMP to reduce bycatch. Id. at 1201. This deadline expired four years ago, in 1998. See Id. At 1198. NMFS proposed timetable for bycatch reduction is open-ended and centers on an environmental analysis ("EA") that will not be released in draft form until summer 2003, or in final form until summer 2004. (Robinson Decl at 10) This despite the court's ruling that "overfished Pacific groundfish species need protection now, not at some undetermined time in the future." Pacific Marine Conservation Council v. Evans, 200 F. Supp.2d at 1201.
PLAINTIFFS' PROPOSED TIMELINE
Plaintiffs reject Defendants' plea that the court consider the so-called TRAC*fn4 factors balancing test to determine whether NMFS' delays and timetable are unreasonable. The Ninth Circuit has explicitly held the TRAC factors to be inapplicable where Congress has set a specific deadline for agency action. Biodiversity Legal Foundation v. Badgeley, No. 00-35076, 2002 WL 31444519, at *8 n. 11 (9th Cir. Nov. 4, 2002). Where "Congress has specifically provided a deadline for performance by the [agency], . . . no balancing of factors is required or permitted." Id. See also Center for Biological Diversity v. Abraham, 218 F. Supp.2d 1143, 1160 (N.D.Cal. 2002) (Ninth Circuit held application of TRAC factors "inappropriate where Congress ha[s] set specific mandatory deadlines for agency action."). Since the Magnuson-Stevens Act sets specific, mandatory deadlines for agency action on rebuilding plans and bycatch, NMFS's lengthy timing arguments based on the TRAC factors are invalid under this binding precedent.
Judicial review of an agency's actions to implement the Magnuson-Stevens Act are allowable "to the extent authorized by, and in accordance with" the Administrative Procedures Act. 16 U.S.C. § 1855(f)(1). The Secretary's decision is not subject to de novo review. Washington Crab Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1441 (9th Cir. 1990). De Novo is the process of hearing a matter "as if it had not been heard before and as if no decision had been previously rendered." Black's Law Dictionary 435 (6th Ed. 1990). The court hears the matter as a court of original jurisdiction rather than appellate jurisdiction. Id. Rather than hearing the matter anew, the court simply reviews the decision for reasonableness. A court will set aside an FMP or regulation only where the record shows that the Secretary's findings with regard to the challenged FMP or regulation were "arbitrary, capricious, or otherwise contrary to law." Associated Fisheries of Maine v. Daley, 127 F.3d 104, 109 (1st Cir. 1997). See also Parravano v. Babbitt, 861 F. Supp. 914, 921 (N.D.Cal. 1994) (finding that the Secretary's action may only be invalidated if challenged action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," quoting 5 U.S.C. § 706(2)(A) (1982), aff'd 70 F.3d 539, 548 (9th Cir. 1995), and cert. denied, 518 U.S. 1016 (1996); Alaska Factory Trawler Ass'n v. Baldridge, 831 F.2d 1456, 1460 (9th Cir. 1987) (stating that the Secretary's determination that the FMP did not violate the Act's national standards or other applicable law could only be disturbed if such conclusion was arbitrary and capricious or was an abuse of discretion) J.H. Miles & Co. v. Brown , 910 F. Supp. 1138,146 (E.D.Va. 1995) (finding judicial review of agency decisions under Magnuson-Stevens Act to be limited, therefore challenged regulations may be invalidated only if they are arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.)
In the case at bar, the agency's failure to comply with Congressionally mandated deadlines, as provided in the Magnuson-Stevens Act, is a violation of law. This court in effect has no discretion, once it has made that factual and legal finding, except to find that defendants have failed to comply with the MSA. The problem then is finding an appropriate remedy.
Most of the cases this court has found on this issue involve an agency's enacting a regulation which violates the intent of Congress. The court then steps in and orders the agency to cease and desist. In the case at bar, Plaintiffs ask the court to apply the standard to an agency's failure to take action in the timeframe mandated by Congress . In this instance, the law is that certain actions must be taken within a certain amount of time after a species has been identified as overfished: the maximum time between the identification of a species and the completion of a rebuilding plan is twenty-one months (one year for the Council to take action plus nine months for the agency if the Council fails to act). Defendants have failed to take the mandated action within the time frame required by law. This court could reasonably find that the agency's action is contrary to law and therefore the Plaintiffs win, but then where are we? It is one thing for a court to enjoin an agency action, then revoke a regulation and order an agency to stop. How does a court force an agency to do its job within the time required by law?
Most of the fish species at issue in this case were identified as overfished in 1999, and the measures which this court ordered taken in August 2001 have yet to be implemented, and it's been three years, going on four. Defendants have been actively engaged in pursuing measures to reach the goals of the MSA and the regulations and to comply with the orders of this court. The process has just been glacially slow. Setting new deadlines would probably be futile, unless the court were willing to assume an active role, perhaps by appointing a special master at defendants' expense.
Decades will pass before some of the fish species at issue are predicted to recover. Defendants spend a portion of their budget each year to buy fishing boats from captains who are leaving the fishery and to pay to retrain their crews for other work. This court perceives a need for restraint and patience. In the larger context, the court must balance the survival of the fish and the survival of the fishermen.
Plaintiffs at this time present no concrete recommendations as to how Defendants should implement the mandate of Congress. Where is the science to support a shorter timeline than the agency proposes? While they are legally correct, Plaintiffs offer no remedy which will produce the desired result. The court is reluctant to issue orders without an adequate technical and scientific foundation. However, the court will not throw up its hands and abdicate its responsibility to see that the will of Congress is met, eventually. For all the above reasons, the court denies Plaintiffs' motion without prejudice. However, defendants are hereby ordered to prepare and submit to the court a schedule for reporting at intervals of a minimum of six months regarding their progress toward implementing the court's previous orders in these cases. This shall be submitted within thirty days of the receipt of this order. Defendants shall continue to report until all provisions of the court's previous orders have been satisfied.
IT IS SO ORDERED.