Plaintiffs' Expedited Motion for Leave to Amend their Complaint came on for hearing March 24, 2004. Attorney for Plaintiffs was Drew Caputo, Natural Resources Defense Council, San Francisco, California. Attorney for Defendants was Mauricia M.M. Baca, Department of Justice, Washington, D.C.
1. Must a party file a new lawsuit to obtain judicial review of a regulation proposed by an agency in response to the Court's remand under the provisions of the Magnuson-Stevens Act and the Administrative Procedures Act?
2. May a party amend its complaint in the action in which the court remanded the previous regulation to obtain judicial review of the proposed replacement regulation for the court to decide whether the proposed regulation complies with the court's order?
This Court concludes that under these circumstances a party need not file a new lawsuit to obtain judicial review, but may amend its complaint.
The original complaint in this action challenged Amendment 12 to the Pacific groundfish fishery management plan ("FMP"), issued by National Marine Fisheries Service ("NMFS") to govern preparation of rebuilding plans for overfished Pacific groundfish species.
This Court inter alia granted summary judgment to Plaintiffs in August 2001, and ruled in full as follows:
"Judicial review of agency decision-making is appropriately circumscribed by statutes such as the APA, the MSA, and NEPA.*fn1 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, accordingly,
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 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 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 Secretary;
* 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:
* 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 implements after conducting an ...