The opinion of the court was delivered by: James Larson United States Magistrate Judge
Plaintiffs' motion for an order for deadlines came on for hearing before this Court on September 24, 2003. The parties had briefed the issues extensively and the Court was prepared to rule. At the conclusion of the hearing the parties expressed willingness to collaborate on drafting a proposed order for the Court's signature, to be submitted to the Court by October 8, 2003. The deadline passed, and counsel presented the Court with Plaintiffs' Proposed Order, Defendants' Objections to Plaintiffs' Proposed Order and Plaintiffs' Response to Defendants' Objections on Proposed Order.
The parties present two versions of the Order: Plaintiffs propose the following language: (Plaintiffs modified their Proposed Order in response to Defendants' Objections - this is the modified version)
"This matter is before the Court on plaintiffs' motion for deadline to prepare rebuilding plans. Having considered the parties' arguments presented in writing and at the September 24 hearing, the Court hereby rules as follows: Plaintiffs' motion is GRANTED. Consistent with the Magnuson-Stevens Act, Defendants shall: (1) Approve rebuilding plans for darkblotched rockfish, canary rockfish, lingcod and Pacific Ocean Perch by January 31, 2004; (2) Prepare, or cause to be prepared, rebuilding plans for bocaccio rockfish, cowcod, yelloweye rockfish, and widow rockfish by April 15, 2004; (3) Approve or adopt rebuilding plans for bocaccio rockfish, cowcod, yelloweye rockfish, and widow rockfish by September 15, 2004; and (4) Approve or adopt a rebuilding plan for Pacific whiting by November 30, 2004.
IT IS SO ORDERED." (Plaintiffs' Response at page 5, n.4)
Defendants propose the following language:
"This matter is before the Court on Plaintiffs' Motion for Deadline to prepare rebuilding plans for overfished Pacific groundfish species. Having considered the Parties' arguments presented in writing and at the September 24 hearing, the Court hereby rules as follows: Plaintiffs' Motion is GRANTED.
Defendants shall take action pursuant to Section 304(a)(3) of the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson-Stevens Act") on rebuilding amendments for darkblotched rockfish, canary rockfish, lingcod, and Pacific Ocean perch by January 31, 1004.
Either the Pacific Fisheries Management Council or the National Marine Fisheries Services shall prepare rebuilding amendments for bocaccio rockfish, cowcod, yelloweye rockfish and widow rockfish by April 15, 2004. Defendants shall take action on these rebuilding amendments pursuant to either section 304(a)(3) or section 304(c) of the Magnuson-Stevens Act by September 15, 2004.
Defendants shall take action under either section 304(a)(3) or section 304(c) of the Magnuson-Stevens Act on a rebuilding amendment for Pacific whiting by November 30, 2004.
IT IS SO ORDERED." (Defendants' Objections at page 3)
The parties' proposed orders differ significantly. Defendants propose to "take action" on "rebuilding amendments" versus "prepare, cause to be prepared" and "approve or adopt" "rebuilding plans." This is inconsistent with what the Court and the parties discussed at the hearing. "Taking action" is so vague as to be meaningless. The statute requires that the rebuilding plans be completed and ready for implementation within a certain time frame, which is long past.
The Court also notes that Defendants in their Proposed Order expressly provide for participation by the Pacific Fisheries Management Council ("the Council") in the preparation and completion of the rebuilding plans. The Court finds that such participation is likely to contribute to significant additional delay, when Defendants are already out of compliance with the Congressionally-mandated deadlines. Accordingly, the NMFS alone should prepare and complete the rebuilding plans.
The Statute Has a Deadline, which is Past The deadline to prepare a rebuilding plan for the nine overfished species has passed. 16 U.S.C. §1854(e)(3) of the Magnuson-Stevens Act ("MSA") requires that rebuilding plans be completed 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 in January 2000 (canary rockfish and cowcod), others in January 2001 (darkblotched rockfish and widow rockfish). None of these species has a rebuilding plan yet. In the meantime, two more overfished species have been identified, yelloweye rockfish (January 2002) and Pacific whiting (April 2002). Natural Resources Defense Council v. Evans, 243 F.Supp.2d 1046, 1054 -1055 (N.D.Cal. 2003)
Where the Secretary has so designated a fishery, measures must be taken to rebuild to a level consistent with producing the maximum sustainable yield (MSY), or suitable proxy, within a time period as short as possible but not exceeding ten (10) years. See 16 U.S.C. §§ 1802(28)(C), 1802(29), 1854(4), 1853(10).
In the case at bar, for the nine overfished species, there is not one completed rebuilding plan, despite the passage of the statutory deadline. ...