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August 28, 2003


The opinion of the court was delivered by: Charles Breyer, District Judge


This suit involves a challenge by plaintiffs Natural Resource Defense Council and Oceana (collectively "NRDC") to the 2002 Annual Specifications and Management Measures for the Pacific Coast Groundfish Fishery promulgated by defendant National Marine Fisheries Service ("NMFS"). Now before the Court are the parties' cross-motions for summary judgment.


This lawsuit focuses on measures taken by NMFS to allow four west coast groundfish species to recover from significant population declines due to intensive overharvesting. The terms "groundfish" and "rockfish" refer to a group of ocean-floor fish species that live between 50 and 150 years but mature slowly and have low reproductive rates. See 14 Administrative Record ("AR") M.47 Attach, at 22. These species play an important ecological role in the coastal ecosystems of California, Oregon, and Washington, and they [ Page 2]

are a valuable food source for marine mammals, other fish species, and humans. See 19 AR B. 17 at 18. Fish markets often refer to groundfish as "red snapper" or "rock cod."

NMFS is an agency under the umbrella of the National Oceanic and Atmospheric Administration ("NOAA"), which in turn is part of the Department of Commerce. On the west coast, NMFS manages harvests for eighty-two groundfish species. See 26 AR Supp. B, 2Oa at 3-5. NMFS's fisheries program aims to "rebuild and maintain sustainable fisheries, promote the recovery of protected species, and protect and maintain the health of coastal marine habitats." NOAA Fisheries Strategic Plan, Currently, NMFS is working with commercial and recreational fishers as well as environmentalists to rebuild declining fisheries throughout the United States.

On the west coast, NMFS has comprehensively assessed the populations of only about sixteen of the eighty-two groundfish species it manages. See 5 AR F.33 at 3. The agency has identified at least seven groundfish species as overfished, and it has acknowledged the "significant possibility" that some of the fish populations it has not assessed are also in decline. Id. NMFS has concluded that fishing levels have been "too aggressive for sustainable harvest on the very low productivity west coast rockfish stocks," 3 AR B.14 at 8, leaving the west coast fishery "in a crisis." 5 AR F.33 at 1.

Plaintiffs Natural Resource Defense Council and Oceana (collectively "NRDC") are national nonprofit organizations seeking to protect the environment. NRDC challenges NMFS's 2002 Annual Specifications and Management Measures for the Pacific Coast Groundfish Fishery. Specifically, NRDC challenges NMFS's treatment of four overfished species: darkblotched rockfish, bocaccio, cowcod, and canary rockfish.

While NMFS's Pacific Fishery Management Council ("Pacific Council") makes annual harvest recommendations for these four species, it only assesses individual groundfish populations periodically, usually on a three-year rotating basis. See 50 C.F.R. § 6OO, 315(e); 5 AR F.22 at E-4; 19 AR B. 17 at 1. The 2002 specifications that NRDC challenges reflect population assessments made in 2000. See 19 AR B.17 at 1; 21 AR H.644 at 3. NMFS has indicated that it will adjust its harvest recommendations when it next assesses the populations [ Page 3]

of the four groundfish species. See Def's Br. in Opp. at 22-24.


NRDC claims that the 2002 groundfish regulations violate three federal laws: the Magnuson-Stevens Act ("MSA"), the Administrative Procedure Act ("APA"), and the National Environmental Policy Act ("NEPA"). Summary judgment of any of these claims is appropriate only if the pleadings and evidence establish that: (1) no genuine issue of material fact exists and (2) the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56. An issue is "genuine" if sufficient evidence may lead a reasonable fact finder to find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A fact is "material" if the fact may affect the outcome of the case. See id. at 248. "In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997).

I. Applicable Statutes

A. The Magnuson-Stevens Act

Congress enacted the MSA to "conserve and manage the fishery resources found off the coasts of the United States," 16 U.S.C. § 1801(b)(1), by "promot[ing] domestic commercial and recreational fishing under sound conservation and management principles." Id § 1801(b)(3). For overharvested fish species, the MSA directs NMFS to "prevent overfishing," id. § 1851(a)(1), while, "to the extent possible, minimizing adverse economic impacts on [fishing] communities." Id. § 1851(a)(8). NMFS must also promote "efficiency in the utilization of fishery resources," Id. § 1851(a)(5), and "minimize bycatch" and bycatch mortality. Id. § 1851(a)(9). In total, the MSA contains ten such "national standards," each of which must "be sacrificed to some extent to meeting the others." Alliance Against IFOs v. Brown, 84 F.3d 343, 349 (9th Cir. 1996).

NRDC and NMFS disagree as to whether the MSA prioritizes conservation over commerce or commerce over conservation. Generally, the MSA seeks to achieve conservation and commercial objectives simultaneously. See id. §§ 1801(b)(1), 1801(b)(3). [ Page 4]

The act can be said to prioritize environmental objectives only in the sense that "where two alternatives achieve similar conservation goals, the [preferred] alternative [is the one] that minimizes the adverse impacts on [fishing] communities." 50 C.F.R. § 600.345(b)(1).

Pursuant to the MSA, Congress created eight Regional Fishery Management Councils, overseen by NMFS, to propose and administer regional fishery management plans that "will achieve and maintain, on a continuing basis, the optimum yield from each fishery." Id. § 1801(b)(4). Optimum yield ("OY") is "the amount of fish which will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities and taking into account the protection of marine ecosystems." 50 C.F.R. § 600.310(f)(1)(I). In the case of an overfished fishery, it refers to the fish quantity "that provides for rebuilding to a level consistent with producing the [maximum sustainable yield]*fn1 in such fishery." Id.

In its Pacific Coast fishery management plan ("FMP"), the Pacific Council establishes annual harvest limits for eighty-two west coast groundfish species. See 16 U.S.C. § 1852(a)(1)(F), 1852(f); 26 AR Supp. B, 2Oa at 3-5. These harvest limits are meant to achieve "on a continuing basis, the OY from each fishery," 50 C.F.R. § 6OO, 31O(a), which means "producing, from each fishery, a long-term series of catches such that the average catch is equal to the average OY." Id § 600.310(f)(1) (ii). NMFS has the authority to revise and approve the harvest limits associated with the FMP, which must conform to the MSA's national standards. See 16U.S.C. § 1851(a), 1854(a)(1)(A).

B. The Sustainable Fisheries Act

In 1996, Congress amended the MSA by passing the Sustainable Fisheries Act ("SFA") in response to concerns about the overharvesting of marine fish species. See id. § 1854(e). Under the SFA, the appropriate fishery management council must create a rebuilding plan for any species that has become overfished. The plan must: [ Page 5]

(A) specify a time period for ending overfishing and rebuilding the fishery that shall —
(i) be as short as possible, taking into account the status and biology of any overfished stocks of fish, the needs of fishing communities . . . and
(ii) not exceed 10 years, except in cases where the biology of the stock offish, [or] other environmental conditions . . . dictate otherwise.
Id § 1854(e)(4).

Recognizing the ambiguity in this provision, NMFS propounded two interpretations for public comment in August and December of 1997. See 25 AR P. 1-2. Under the first interpretation, if a fish population was biologically capable of returning to its unfished level after a ten-year fishing moratorium, NMFS would select a rebuilding period of up to ten years and limit harvesting to ensure that rebuilding occurred within the specified time period. See 62 Fed. Reg. 67, 608, 67, 609-10 (Dec. 29, 1997). If a fish population could not return to its unfished level within ten years, NMFS would ban harvesting completely until the species returned to its natural level. Id.

NMFS developed a second interpretation out of concern that banning fishing completely during a rebuilding period would undermine the MSA's express goal of promoting commercial and recreational fishing. This second interpretation differed from the first in its treatment offish species that required more than ten years to return to their unfished levels. Id. For those species, the rebuilding period could exceed ten years if "warranted by the needs of fishing communities." 63 Fed. Reg. 24, 212, 24,231 (May 1, 1998). NMFS would allow limited harvesting during the rebuilding period, which could be no longer than the time required for the species to rebuild under a fishing moratorium plus one mean ...

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