United States District Court, N.D. California
January 17, 2003
NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs,
DONALD EVANS, et al., Defendants.
The opinion of the court was delivered by: LARSON, United States Magistrate Judge
Plaintiffs' Motion for Order on Remedy came on for hearing on November
20, 2002; Filed at the same time was the Motion of West Coast Seafood
Processors' Association and Fishermen's Marketing Association for Leave
to file Amicus Brief, which was not opposed by any party. Andrew Caputo
appeared for Plaintiffs. Mauricia Bacca appeared for Defendants. There was
no appearance for amici. The moving and opposing papers and the arguments
of counsel having been considered and good cause appearing, it is hereby
ordered that the motion for order on remedy (40-1) is denied, without
The Motion for Leave to file Amicus Brief (35-1) is granted. Amici, as
distinguished from intervenors, may file briefs and may possibly
participate in oral argument, but are not entitled to take discovery or
participate at trial. (Schwarzer et al. Federal Civil Procedure Before
Trial at 7:168 and 170).
Defendants object to Plaintiffs' motion on procedural grounds, claiming
that it is in effect a motion to amend the judgment, or for
reconsideration or relief from judgment, under FRCP Rule 60(b).
Defendants claim final judgment was entered in August 2001.
In fact, in the consolidated cases: 01-0421 and 01-0637, summary
judgment was granted in August 2001 but no final judgment was entered. In
the 01-2506 case, partial judgment was entered April 16, 2002, "as to the
equitable relief prayed in this case."
01-0421, 01-0637 Amendment 12 Remand
Plaintiffs argue correctly that the court retains jurisdiction after
remand to oversee the agency's actions in compliance with the court's
directive. Plaintiffs ask this court to set a timetable for compliance
with its remand order as it has authority to do. Zambrana v.Califano,
651 F.2d 842, 844 (2d Cir. 1981). See also Arizona Elec. Power Coop. V.
United States, 816 F.2d 1366, 1376 (9th Cir. 1987) (establishing a 60-day
deadline for agency action on remand). "Generally , a remand order is an
interlocutory order which does not divest a court of jurisdiction over a
case." Avery v. Secretary of Health & Human Services, 762 F.2d 158,
163 (1st Cir. 1985); Papazian v. Bowen, 856 F.2d 1455, 1456 (9th Cir.
1988) (presuming that "any dispute over the agency's determination on
remand would have been presented to the district court and possibly to us
An order remanding a matter to an administrative agency is a non-final
interlocutory order. See Chugach Alaska Corp. v. Lujan , 915 F.2d 454,
456 (9th Cir. 1990 ("in general, remand orders are not considered
final"); Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 329-330
(D.C.Cir. 1989) (reviewing case law and
[243 F. Supp.2d 1048]
concluding "[t]he courts of
appeal that have considered the question . . . have uniformly held that,
as a general rule, a remand order is `interlocutory' rather than
`final'"); United States v. Spears, 859 F.2d 284, 286-287 (3d Cir. 1988)
("[A]n order remanding a matter to an administrative agency is no more
than an interlocutory step in an adjudicative proceeding . . .").
The August 2001 order in the consolidated 01-0421 and 01-0637 cases
setting aside portions of Amendment 12 and remanding to the agency falls
within this rule, and this court can exercise its continuing jurisdiction
over these consolidated cases on this basis.
01-2506 Amendment 13 Remand
In the 01-2506 case, concerning Amendment 13, the partial judgment does
not divest this court of jurisdiction, since the court did not enter a
final judgment but ruled only that "judgment be entered for Plaintiffs as
to the equitable relief prayed in this case." As stated above, such a
remand order is interlocutory, not final, and the court retains
This court may also modify its partial judgment in order to ensure
compliance. A federal court has inherent power to enforce its judgments.
Peacock v. Thomas, 516 U.S. 349, 356 (1996) ("Without jurisdiction to
enforce a judgment entered by a federal court, the judicial power would
be incomplete and entirely inadequate to the purposes for which it was
conferred by the Constitution.") The court also has the power to modify
A district court "always ha[s] the power to modify earlier orders in a
pending case." Kapco Mfg. Co. v. C & O Enterprises, Inc., 773 F.2d 151,
154 (7th Cir. 1985). Moreover, it is well established that a district
court has the inherent power to reconsider interlocutory orders and
reopen any part of a case before entry of final judgment. See Marconi
Wireless Tel. Co. v. United States, 320 U.S. 1, 47-48, 63 S.Ct. 1393,
1414-15, 87 L.Ed. 1731 (1943). This authority does not rest in any
particular federal rule, but emanates from the inherent power of the
court. See A Hollow Metal Warehouse v. United States Fidelity &
Guar. Co., 700 F. Supp. 410, 411-12 (N.D.Ill. 1988). Thus it is within a
district court's discretion to revisit previously issued orders while the
case is still pending before the court.
Rule 60(b)(6), Federal Rules of Civil procedure, provides that a
judgment may be altered for "any other reason justifying relief from the
operation of the judgment." The rule "provides courts with authority
adequate to enable them to vacate judgments whenever such action is
appropriate to accomplish justice," although "it should only be applied in
extraordinary circumstances." Liljeberg v. Health Services Acquisition
Corp., 486 U.S. 847, 864 (1988). Plaintiffs in the cases at bar contend
that these cases present extraordinary circumstances.
The NMFS, this court has ruled, failed to take actions to prevent or
reduce bycatch of overfished species, which were mandated by Congress to
take place by October 1998. Pacific Marine Conservation Council v.
Evans, 200 F. Supp.2d 1194, 1198, 1201 (N.D.Cal. 2001) (noting passing of
statutory deadline). After losing the case on the merits, NMFS now
proposes to proceed at its accustomed pace, still not correcting its
deficiencies for several more years. For example, its bycatch reduction
measures will not be released in draft form until summer 2003 or in final
form until summer 2004 (Robinson Decl. at 10). Further measures will not
be taken until 2004, and perhaps into 2005 or beyond, given the agency's
[243 F. Supp.2d 1049]
Plaintiffs reject Defendants' protests that Plaintiffs delayed seeking
this remedy. The parties have been in settlement discussions on remedy
issues starting in April and into October. Plaintiffs claimed these
sessions were initiated by Defendants and abruptly halted in October.
This court concludes that its order in the consolidated cases was
interlocutory in nature and subject to review and continuing enforcement
by the court and that the partial judgment was just that, and not a final
judgment and that in any event the court has authority to see that its
orders are obeyed. Accordingly this court has jurisdiction over both the
consolidated cases related to Amendment 12 and the case related to
Amendment 13 and the defendants' compliance with the court's remand.
This court entered its order of partial summary judgment in the
consolidated cases (01-0421 and 01-0637) on August 20, 2001. The court
NMFS has failed to adhere to the aforementioned
provisions of the APA, the MSA, and NEPA, and,
accordingly, The court hereby grants the following
1. Declaratory judgment that NMFS's revised 2001
specifications for bocaccio rockfish and lingcod
fishing limits violates the MSA and 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 MSA 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 MSA and the
APA, NMFS provide prior public notice and allow
comment on future Pacific groundfish specifications;
3. Declaratory judgment that Amendment 12 violates the
MSA by authorizing inadequate rebuilding plans for
3a. An order setting aside that portion of Amendment
12 that authorizes rebuilding plans that do not accord
with the MSA and remanding it to NMFS for further
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:
3. Declaratory judgment that the issue of Amendment
12's inclusion of a "mixed-stock exception" is not yet
ripe for adjudication;
3a. An order allowing the "mixed-stock exception" of
Amendment 12 to stand, subject to any revisions NMFS
[243 F. Supp.2d 1050]
implements after conducting an adequate EA in
conjunction with 4a supra;
Plaintiffs' Motion to Strike Defendants' Answer is denied, as moot.
(01-0421 JL and 01-0637 JL, NRDC and Oceana v. Evans)
That was August 20, 2001.
In 01-2506,This court entered its order granting partial summary
judgment for Plaintiffs and part for Defendants in on April 12, 2002. The
This court finds as follows:
1. Amendment 13 fails to establish an adequate bycatch
2. NMFS did not comply with its duty to minimize
bycatch and bycatch mortality.
3. NMFS has violated NEPA by not taking a "hard look"
at the environmental consequences of Amendment 13.
4. The Environment Assessment NMFS performed in
conjunction with Amendment 13 failed to consider a
reasonable range of alternatives and environmental
consequences, in violation of NEPA.
Plaintiff's motion for summary judgment is hereby GRANTED. Defendant's
cross-motion for summary judgment is DENIED. This court finds that NMFS
violated the MSA, NEPA, and the APA in approving Amendment 13.
Accordingly, this court remands Amendment 13 to NMFS for reconsideration
in light of these legal requirements. (01-2506 JL, Pacific Marine
Conservation Council v. Evans)
That was April 12, 2002.
POSITION OF THE FISHERMEN AND PROCESSORS
Plaintiffs want the court to light a fire under NMFS. Defendants along
with amici, the fishermen and the processors, claim that NMFS has already
made significant progress and that if its resources are diverted by this
court, it will be slowed down or stalled entirely.
Amici ask the court to consider the human costs of drastic reductions
in fishing quotas and not just dry statistics or legal theory.
Amici claim that Plaintiffs' contentions are mooted by the NMFS'
subsequent regulations. Gulf of Maine Fishermen's Alliance v. Daley,
42 F.3d 1278, 1282 (9th Cir. 1994) (challenge mooted when fishing season
ended and no evidence existed as to possibility of repetition of unlawful
With respect to NMFS' former lack of notice and comment for the 2001
specification, applicants point out that NMFS issued draft regulations for
the 2002 specifications on January 11, 2002 (Ex. 2 to Walsh Declaration)
and adopted final specifications on March 7,
[243 F. Supp.2d 1051]
2002 (Ex. 3 to Walsh
Decl.). Notice and comment were allowed on the specifications. In
response to the court's ruling, the Pacific Council changed its
decision-making practice and made its recommendations for the 2003
specifications at its September 2002 meeting. These recommendations are
also the subject of a draft environmental impact statement, available to
the public on the Internet. (Ex. 4 to Moore Decl.) Applicants find this
issue also moot. Natural Resources Defense Council v. U.S. Nuclear
Regulatory Commission, 680 F.2d 810, 813-815 (D.C.Cir. 1982) (procedural
challenge moot when notice and comment provided for repromulgated
With respect to remand of the rebuilding plans to NMFS, applicants
contend that the plans continue to be developed in accordance with the
procedures of the Magnuson-Stevens Act and the National Environmental
Policy Act. 67 Fed. Reg. 10491. While the completed plans are not yet
final, NMFS has made several changes to the 2002 measures adopted on
March 7 to further reduce fishing opportunities, protect overfished
stocks, and prevent bycatch. (Exs. 4, 5, 6 and 7 to Walsh Decl.) The
purpose of the 2002 inseason adjustments to trip limits was based on the
need to keep the incidental take low for overfished species, with limits
on health stock harvests modified by the new bycatch estimating method
adopted for 2002. (Ex. 4 to Moore Decl. draft EIS for 2003
specifications 1-3). Amici believe that forcing completion of the
rebuilding plans by January 1, 2003 as requested by Plaintiffs is
unnecessary and inconsistent with the depth of consideration mandated by
this court and currently underway at NMFS. Any challenge to the
rebuilding plan is therefore not yet ripe for review.
The new NMFS environmental assessment and regulatory impact review for
bocaccio and lingcod have been prepared, but are not part of the
administrative record before this court. Furthermore, they have been
challenged by Plaintiffs in a new lawsuit pending before Judge Breyer.
(Ex. 1 to Walsh Decl.) Amici contend the adequacy of this assessment and
the regulations should be subject to new briefing, for example, in
cross-motions for summary judgment. 168 F. Supp.2d at 1160 (relief item
Amici contend that this court's previous ruling in the case challenging
Amendment 13, the "2506 case," reported at 200 F. Supp.2d 1194, only
addressed certain violations relating Amendment 13 to Pacific Groundfish
Fishery management. However, this court's decision in that case did not
address any other aspects of the fishery management plan as it relates to
measures for reducing bycatch, including those adopted after the action
challenged in that case. This court remanded Amendment 13 to the NMFS for
reconsideration in light of the court's ruling. 200 F. Supp.2d at 1207.
Plaintiffs have again challenged Amendment 13 in the case before Judge
Breyer. Complaint ¶ 52-64 (Fourth and Fifth Claims for Relief; Ex. 1
to Walsh Decl.) Amici contend that NMFS has taken new actions to minimize
incidental bycatch, for instance reduction of trip limits and the
creation of a no trawling zone. (Exs. 4, 5, 6 and 7 to Walsh Decl.)
Applicants question the wisdom of this court's re-opening this issue at
the same time it is being considered as affected by the newer regulations
in a new case before a different judge.
Finally, amici contend that NMFS is substantially complying with the
deadlines for preparing rebuilding plans found in 16 U.S.C. § 1854(e)
by working through the Council process. Furthermore, applicants urge the
court to find that NMFS' actions taken so far this year to manage the
Pacific Groundfish Fishery comply with the Magnuson-Stevens Act, for
example by banning trawling in a huge area of the Pacific Ocean, since
commercial fishing trawlers capture about 75 % of the Pacific groundfish
harvest by weight. This measure and the actions to reduce trip limits
particularly benefit the darkblotched rockfish (67 Fed. Reg.
Amici urge the court not to interfere, especially since the incremental
actions of the NMFS over this year have been consistent with the
rebuilding plan now under consideration. 67 Fed. Reg. At 10492.
Amici join with Defendants in asking this court to deny Plaintiff's
Motion for Order on Remedy.
The former Amendments 12 and 13, remanded by this court, will be
replaced by a proposed Amendment 16. (Robinson Declaration, Ex. 1 to
Defendants' Opposition). NMFS and Council staff are now in the process of
completing a proposed rule and accompanying analysis for 2003, with a
target publication date of December 13,
[243 F. Supp.2d 1052]
2002. Defendants claim that all
of the 2002 fishery management measures necessary to implement existing
rebuilding strategies for overfished species have been adopted by the
Council and implemented by NMFS as regulations. (Robinson Decl.) The
Council has also recommended regulations that will continue to implement
the rebuilding strategies in 2003. NMFS will publish the recommendations
for 2003 in the Federal Register as proposed regulations in 2002, with
final regulations effective on March 1, 2003. This is two months after
Plaintiffs' deadline, and unclear as to which species are included.
Defendants use NEPA requirements as justification for the lengthy
timeline, including the need to prepare a Draft Environmental Impact
Statement ("DEIS"). The major objective of the Council's recent
recommendations for 2003 groundfish fisheries is to eliminate directed
catch and minimize and reduce bycatch of overfished species (specifically
bocaccio, canary, darkblotched and yelloweye rockfish, and cowcod), so
the total mortality of overfished species does not exceed the annual
catch level optimum yield ("OY") required to meet the objectives of the
draft rebuilding plans under consideration by the Council (Id.)
AGENCY ACTIONS DEFENDANTS' VERSION
William L. Robinson, Assistant Regional Administrator for Sustainable
Fisheries, gives a point-by-point account of how his office is complying
with this court's previous orders:
1. Rebuilding plans must be in the form of fishery management plan
amendments, or proposed regulations. 168 F. Supp.2d at 1158.
NMFS and the Council are completing development of Amendment 16 to the
Pacific Groundfish FMP. This includes Pacific Ocean perch ("POP"),
lingcod, cowcod, widow rockfish and darkblotched rockfish. The Council
and the public reviewed initial drafts of Amendment 16 at the April 2002
Council meeting, and again at the June 2002 meeting. The Council made
final recommendations for the 2003 actions at its September 2002
meeting. NMFS and Council staff are completing a proposed rule and
accompanying analysis for 2003, with a target publication date of
December 13, 2002. The Council will make final revisions between now and
April 2003, as well as drafting the accompanying NEPA documents,
presenting both for public review at the April 2003 meeting, with final
approval scheduled for the June 2003 meeting. If adopted then, Amendment
16 will be approved in fall 2003. Additional FMP amendments for the other
overfished species would be prepared over the summer and fall of 2003 for
adoption in late 2003 or early 2004.
All the 2002 fishery management measures necessary to implement
existing rebuilding strategies for overfished species were adopted by the
Council and were implemented by NMFS as regulations. The Council also
recommended regulations that will continue to implement the rebuilding
strategies in 2003. NMFS will publish the recommendations for 2003 in the
Federal Register as proposed regulations in December 2002, with final
regulations effective March 1, 2003.
2. Perform adequate NEPA analysis on bycatch alternatives for bocaccio
and lingcod for the 2001 fishery specification. 168 F. Supp.2d at 1160.
NMFS has responded by making recommendations for 2003 groundfish
fisheries to eliminate directed catch and minimize and reduce bycatch of
overfished species (primarily bocaccio, canary, darkblotched and
yelloweye rockfish, and cowcod), so the total mortality of overfished
species does not exceed the annual catch
[243 F. Supp.2d 1053]
level (OY) required to meet the
objectives of the draft rebuilding plans under consideration by the
Council. The Council prepared a Draft Environmental Impact Statement
("DEIS") to analyze the effects of different harvest levels and fishing
regimes on the bycatch of overfished species. Defendants characterize the
three alternatives as: high OY levels, low OY levels and moderate OY
levels. Low levels would be good for the fish but very bad for the
fishermen. High levels are very bad for fish and require longer
rebuilding periods than previously recommended by the Council (or
probably allowed by law). The moderate levels would rebuild the stocks of
overfished species in fewer than the maximum number of years allowed by
the NOAA National Standard Guidelines, and gives some consideration to
the effect on coastal communities and the fishing industry. The NMFS also
considered the Allocation Committee's recommendations for moderate OY
levels both with and without large depth-based time and area closures.
Allowing for the 45-day comment period for the DEIS filed with the EPA
October 18, 2002, the final EIS is expected to be completed by February
The Council is also preparing a long-term programmatic EIS to evaluate
a number of alternatives including additional access limiting measures.
The Council appointed a sub-committee to work with NMFS to develop
alternatives and the Council is scheduled to make its recommendations to
NMFS at the October 28, 2002 meeting in Foster City, California. The
Draft programmatic EIS is scheduled to be completed in August 2003. This
will evaluate the viability of a wide range of bycatch reduction
3. Study, develop and describe appropriate rebuilding alternatives when
preparing rebuilding amendments. 168 F. Supp.2d at 1160.
Defendants are considering the alternatives sought by Plaintiffs, such
as specific limits and constraints on fishing, including bycatch-related
measures in rebuilding plans, and assessing and minimizing the effects on
essential fish habitat. Under a settlement agreement in the case of
American Oceans Campaign v. Evans, C-99-982 GK (D.D.C.), Joint
Stipulation and Order entered December 19, 2001, NMFS is required to
prepare a new, separate EIS that addresses the essential fish habitat
(EFH) requirements of the Pacific Coast Groundfish FMP. Under the
schedule contained in the Settlement Agreement, NMFS will complete a DEIS
in late summer 2003 and a final EIS and Record of Decision in summer
2004. That EIS will address the effects of fishing for groundfish on EFH
and will evaluate alternative management measures to minimize those
4. Amendment 13 is remanded to NMFS to make the observer program
mandatory. 200 F. Supp.2d at 1200-1201.
Amendment 16 will make the observer program mandatory. Amendment 16 is
expected to be adopted for public review in April 2003, with a final
version being transmitted to NMFS for review and approval in June 2003.
NMFS approval and implementation is expected to be complete in fall
2003. Observers are being placed aboard fishing vessels as described in
the Declaration of Dr. M. Elizabeth Clarke, Ex. 2, to defendants'
Opposition. Under 50 C.F.R. § 660.360, groundfish vessels must carry
observes when requested by NMFS.
5. Amendment 13 is remanded to NMFS because it fails to include
conservation and management measures that minimize bycatch to the extent
practicable. In addition, NMFS failed to evaluate two bycatch reduction
measures fishing capacity reduction and marine reserves
[243 F. Supp.2d 1054]
their merits, and also failed to fully consider the practicability of
a more comprehensive observer program necessary to administer vessel
incentives and discard caps. NMFS also failed to take a "hard look" at
the environmental consequences of Amendment 13 under NEPA, and the
Amendment 13 EA failed to consider a reasonable range of bycatch
reduction alternatives and the environmental consequences. 200 F. Supp.2d
at 1201-1203, 1205-1207.
In response, NMFS either already has taken, or will for the 2003
fishing season, take the following actions:
a. higher landing limits for target species for fishermen using small
footrope*fn2 trawls. These boats work best where the bottom is sandy,
and bycatch is less there than where the bottom is rocky.
b. Beginning in the 2003 fishing season, the use of small footrope
trawls will be mandatory in all areas open to fishing which are shoreward
of the closed conservation areas (roughly 100-250 fathoms in depth
coastwide). Large footrope trawls will be prohibited in all nearshore
areas, and their use limited to deepwater Continental Slope fisheries
(generally deeper than 250 fathoms) where bycatch is minimal.
c. Beginning in 2002, NMFS closed year-round the Cowcod Conservation
Area, a large area off Southern California, to prevent bycatch of cowcod
in fisheries that target other species. NMFS also prohibited retention of
cowcod in all fisheries.
d. Beginning with the 2003 fishing season, NMFS will institute
coastwide depth-based closures of large areas of the Continental Shelf
off the entire U.S. coast line from Canada to Mexico. These will include
the California Rockfish Conservation Area, from Cape Mendocino to the
U.S.-Mexican border, generally between depths of 60 fathoms to 150-250
fathoms. Most use of commercial and recreational gear to take groundfish
will be excluded. This closure should dramatically reduce the bycatch of
bocaccio rockfish and to a lesser extent canary rockfish. From Cape
Mendocino north to the Canadian border, there will be another depth-based
closure, from roughly 100 fathoms to 250 fathoms. This will significantly
reduce the bycatch of darkblotched rockfish, canary rockfish and
e. In 2002, NMFS implemented a new method of setting landing limits for
target species, based on proposals made by the NRDC plaintiffs.
Plaintiffs had proposed that management measures be based on the actual
ratio in the catch between the target species and the bycatch species.
They also proposed that landing limits for the target species not be
increased inseason, even if the full harvest guideline for the target
species was not taken, in order to further protect bycatch species.
Defendants implemented this approach in 2002, and intend to improve upon
it in 2003 and beyond, using the new bycatch data from the observer
DEFENDANTS' PROJECTED IMPLEMENTATION DATES
Here is a reprise of when different species were identified as
overfished, followed by Defendants' timelines for remedial measures: Some
of the species were identified in March 1999 (bocaccio, lingcod and
Pacific ocean perch, "POP"), others on January 2000 (canary rockfish and
[243 F. Supp.2d 1055]
in January 2001 (darkblotched rockfish and widow
rockfish). None of these species yet has a rebuilding plan. In the
meantime, two more species have been identified within the past year,
yelloweye rockfish (January 2002) and Pacific whiting (April 2002).
Here are the court's mandates and Defendants' proposed dates for
1) Rebuilding in form of fishery Final regulations March 1, 2003
management plan Plan Fall 2003 4½ yrs after
Remaining species Late 2003, early 2004
3 to 4 years after
2) Adequate NEPA analysis on bycatch Final EIS February 28, 2003
4 years after
for bocaccio & lingcod (including Draft programmatic EIS August 2003
dark-blotched, canary & yelloweye
rockfish & cowcod)
3) Consider appropriate rebuilding
alternatives Settlement agreement in American
Oceans Campaign case Draft EIS
late summer 2003; Final EIS and
Record of Decision summer 2004
4) Make observer program mandatory Fall 2003
5) Minimize bycatch Various measures beginning
2002 & 2003.
Plaintiffs want NMSF to comply with 16 U.S.C. § 1854(e)(3). This
section requires that rebuilding plans be prepared for overfished species
within one year of their being identified as overfished. Some of the
species were identified in March 1999 (bocaccio, lingcod and Pacific ocean
perch, "POP"), others on January 2000 (canary rockfish and cowcod), others
in January 2001 (darkblotched rockfish and widow rockfish). None of these
species yet has a rebuilding plan. In the meantime, two more species have
been identified within the past year, yelloweye rockfish (January 2002)
and Pacific whiting (April 2002).
In fact, section 1854(e)(3) provides several options: a fishery
management plan, a plan amendment or proposed regulations, all directed
toward ending overfishing or prevention of overfishing. Any of these
proposals shall specify a time period for ending overfishing and
rebuilding the fishery, allocating restrictions and benefits as fairly as
possible, taking into account the needs of fishing communities. If the
Council does not prepare a plan within the one year period, then the
Secretary shall prepare either a fishery management plan, a plan
amendment or a regulation within nine months.
In total, the Department of Commerce must institute action within
twenty-one months of a species being identified as overfished.*fn3
Plaintiff claim that the NMFS published a schedule in the Federal
Register at the beginning of 2002 under which rebuilding plans for the
seven overfished species listed above would be adopted by the Pacific
Fishery Management Council in June 2002. 67 Fed. Reg. 1,555, 1,567 (Jan.
[243 F. Supp.2d 1056]
2002). The Council did not approve these rebuilding plans in June
2002, and has not done so to date. NMFS has not stepped in as it is
required to do if the Council fails to act.
In fact, it appears that the Council attributes to litigation some role
in this delay. In the Draft Environmental Impact Statement, Ex. 4 to
Declaration of Rodney Moore) the Council states:
Although the Groundfish FMP states that all
specifications will remain in effect until changed,
they are announced annually on or about January 1.
These management specifications are developed by the
Council, based on a review of available stock status
information, over the course of several meetings.
Until this year, this occurred at the September
meeting, when the Council would adopt a range of
alternatives representing preliminary harvest
specifications (the Acceptable Biological Catch [ABC]
and Optimum Yield [OY] for species or species groups)
and management measures intended to limit catches to
those targets. At its November meeting, the Council
would then choose a preferred alternative,
representing final harvest specifications and
management measures. However, the court ruling in
Natural Resources Defense Council v. Evans, 2001
168 F. Supp.2d 1149 (N.D.Cal. 2001) found that NMFS
was not allowing sufficient time for public notice and
comment on the regulations before they were
implemented at the beginning of the new year. Now, in
order to allow enough time for the required comment
period and still implement management measures early
in the year, the Council must make its final decision
at its September meeting, with the development of
alternatives pushed back to the June meeting.
(Footnote omitted) Plaintiffs ask this court to set a
timetable for compliance with its remand order
as it has authority to do. Zambrana v. Califano, 651 F.2d 842
, 844 (2d
Cir. 1981). See also Arizona Elec. Power Coop. V. United States,
816 F.2d 1366
, 1376 (9th Cir. 1987) (establishing a 60-day deadline for
agency action on remand). "Generally , a remand order is an interlocutory
order which does not divest a court of jurisdiction over a case." Avery
v. Secretary of Health & Human Services, 762 F.2d 158
, 163 (1st Cir.
1985); Papazian v Bowen, 856 F.2d 1455
, 1456 (9th Cir. 1988) (presuming
that "any dispute over the agency's determination on remand would have
been presented to the district court and possibly to us on appeal.")
Plaintiffs ask this court to order NMFS to comply with its orders and
complete a rebuilding plan for each of the seven overfished species by
PLAINTIFFS' SPECIFIC OBJECTIONS TO TIMELINE
Plaintiffs contend that NMFS has failed completely to remedy the legal
violations in Amendment 12 and Amendment 13. The Congressionally mandated
deadlines have passed, for some species, years ago. In the case of
bocaccio, lingcod, and Pacific ocean perch, the rebuilding plans are now
already two and one-half years late. Fourteen months after this court's
ruling, the agency has failed to approve a single rebuilding plan for any
of these species.
Amendment 12 Rebuilding Plans Under the NMFS proposed
schedule a rebuilding plan for bocaccio would not be approved until
roughly five years after bocaccio was designated an overfished species in
March 1999. The Magnuson-Stevens Act requires that a rebuilding plan be
prepared within one year after a species is designated as overfished. Nine
months after that, the Secretary is supposed to step in and prepare the
[243 F. Supp.2d 1057]
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
[243 F. Supp.2d 1058]
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
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
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
[243 F. Supp.2d 1059]
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.