The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION RE CROSS MOTIONS FOR SUMMARY JUDGMENT (DOCS. 58, 73, 77, 80)
This suit arises from the United States Pacific Fisheries Management Council‟s ("PFMC" or the "Council") April 13, 2011 adoption of commercial troll and recreational fishing management measures for the waters south of Cape Falcon, Oregon, permitting commercial and recreational fishing for Sacramento River fall-run Chinook Salmon ("SRFC") for the 2011 fishing season ("2011 management measures"), and the National Marine Fisheries Service‟s ("NMFS") May 4, 2011 approval of the PFMC‟s recommended 2011 management measures. Doc. 1.
Plaintiff, the San Joaquin River Group Authority ("SJRGA")*fn1 moves for summary judgment on the following grounds:
(1) That NMFS violated the Administrative Procedure Act ("APA") and the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson-Stevens Act" or "MSA") because: (a) the 2011 management measures did not properly account for "known scientific uncertainty and bias in abundance estimates"; and (2) PFMC‟s decision to end the "overfishing concern" was not supported by the record. Doc. 59 at 16-20.
(2) That adoption of the 2011 management measures violated the National Environmental Policy Act ("NEPA") because the Environmental Assessment ("EA"): (a) failed to consider whether the 2011 management measures would violate laws or requirements imposed to protect the environment; and (b) failed to consider a reasonable range of alternatives. Id . at 20-23.
(3) That Plaintiff has standing based on two theories of injury:
(a) if the 2011 management measures result in less San Joaquin River fall-run Chinook ("SJRFC") escapement, SJRGA member agencies could be subject to future remedial action by the State Water Resources Control Board ("SWRCB") and others "in the form of draconian demands to bypass flows or release water"; and/or (b) that reduced SRFC or SJRFC escapement might lead to SRFC or SJRFC being listed as threatened or endangered under the ESA, which would then subject SJRGA member agencies to ESA regulatory activity. Id . at 23-25.
Federal Defendants oppose and cross move for judgment on all the above grounds, and additionally argue that the Doe Defendants should be dismissed as improper parties. Doc. 73-1. Defendant-Intervenor, Pacific Coast Federation of Fishermen‟s Associations ("PCFFA"), separately cross-moves for judgment on standing and mootness grounds. Doc. 80-1. Defendant-Intervenors, Central Delta Water Agency, South Delta Water Agency (collectively, "Delta Intervenors"), also cross-move on the issue of standing and separately argue that Plaintiff‟s claims are not ripe. Doc. 77-1.
Plaintiff filed separate oppositions/replies in response to each cross motion. Docs. 84, 87, 89. Federal Defendants and both sets of Defendant-Intervenors replied. Docs. 92, 93, 94.
All motions were submitted for decision September 28, 2011.
The MSA‟s judicial review provision specifically provides that a regulation promulgated or action taken under the MSA can only be set aside on a ground specified in APA § 706(2)(A), (B), (C), or (D). 16 U.S.C. § 1855(f)(1)(B). Because NEPA contains no separate provision for judicial review, compliance with NEPA is also reviewed under the APA. Nw. Res. Info. Ctr., Inc. v. NMFS , 56 F.3d 1060, 1066 (9th Cir. 1995). Here, Plaintiff alleges NMFS‟s action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
Under the APA‟s "arbitrary and capricious" standard, a court must defer to the agency on matters within the agency‟s expertise, unless the agency completely failed to address some factor, consideration of which was essential to making an informed decision. Nat‟l Wildlife Fed‟n v. NMFS , 422 F.3d 782, 798 (9th Cir. 2005) ("NWF v. NMFS I "). A court "may not substitute its judgment for that of the agency concerning the wisdom or prudence of the agency‟s action." River Runners for Wilderness v. Martin , 593 F.3d 1064, 1070 (9th Cir. 2009):
In conducting an APA review, the court must determine whether the agency‟s decision is "founded on a rational connection between the facts found and the choices made ... and whether [the agency] has committed a clear error of judgment." Ariz. Cattle Growers‟ Ass‟n v. U.S. Fish & Wildlife , 273 F.3d 1229, 1243 (9th Cir. 2001). "The [agency‟s] action ... need be only a reasonable, not the best or most reasonable, decision." Nat‟l Wildlife Fed. v. Burford , 871 F.2d 849, 855 (9th Cir. 1989).
Although deferential, judicial review under the APA is designed to "ensure that the agency considered all of the relevant factors and that its decision contained no clear error of judgment." Arizona v. Thomas , 824 F.2d 745, 748 (9th Cir. 1987) (internal citation and quotation omitted). "The deference accorded an agency‟s scientific or technical expertise is not unlimited." Brower v. Evans , 257 F.3d 1058, 1067 (9th Cir. 2001).
[An agency‟s decision is] arbitrary and capricious if [it] has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass‟n of U.S. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983); see also Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 416 (1971) (reviewing court may overturn an agency‟s action as arbitrary and capricious if the agency failed to consider relevant factors, failed to base its decision on those factors, and/or made a "clear error of judgment"), overruled on other grounds by Califano v. Sanders , 430 U.S. 99, 105 (1977)).
More generally, "[u]nder the APA "the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.‟" Humane Soc. of U.S. v. Locke , 626 F.3d 1040, 1048 (9th Cir. 2010) (quoting Motor Vehicle Mfrs. Ass‟n , 463 U.S. at 43). "The reviewing court should not attempt itself to make up for an agency‟s deficiencies: We may not supply a reasoned basis for the agency‟s action that the agency itself has not given." Id .
Summary judgment is appropriate when the pleadings and the record demonstrate that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A court conducting APA judicial review may not resolve factual questions, but instead determines "whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Sierra Club v. Mainella , 459 F. Supp. 2d 76, 90 (D.D.C. 2006) (quoting Occidental Eng‟g Co. v. INS , 753 F.2d 766, 769 (9th Cir. 1985)). "[I]n a case involving review of a final agency action under the [APA] ... the standard set forth in Rule 56(c) does not apply because of the limited role of a court in reviewing the administrative record." Id . at 89. In this context, summary judgment becomes the "mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review." Id . at 90.
Local Rule 260(e) directs that each motion shall be accompanied by a "Statement of Undisputed Facts" that shall enumerate each of the specific material facts on which the motion is based and cite the particular portions of any document relied upon to establish that fact. In APA cases, such statements are generally redundant because all relevant facts are contained in the agency‟s administrative record. Although no such request was received in this case, requests to dispense with the requirement of filing a statement of facts are routinely granted in this District.
The Magnuson-Stevens Act was enacted to "conserve and manage the fishery resources found off the coasts of the United States" and "promote domestic commercial and recreational fishing under sound conservation and management principles." 16 U.S.C. § 1801(b)(1), (3). The MSA recognizes that "[a] national program for the conservation and management of the fishery resources of the United States is necessary to prevent overfishing, to rebuild overfished stocks, to insure conservation, to facilitate long-term protection of essential fish habitats, and to realize the full potential of the Nation‟s fishery resources." Id . at § 1801(6).
The MSA establishes eight regional fishery management councils; the PFMC has authority over the Pacific Ocean fisheries off the coasts of California, Oregon, and Washington. 16 U.S.C. § 1852 (a)(1)(F). The principle responsibility of each Council is to prepare and implement, in accordance with national standards, Fisheries Management Plans ("FMP") designed to "achieve and maintain, on a continuing basis, the optimum yield." from the fisheries under their authority. 16 U.S.C. §§ 1801(b)(4), 1851(a)(1). With regard to the yield from a fishery, the term "optimum," means the amount of fish which:
(A) 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;
(B) is prescribed on the basis of the maximum sustainable yield from the fishery, as reduced by any relevant social, economic, or ecological factor; and
(C) in the case of an overfished fishery, provides for rebuilding to a level consistent with producing the maximum sustainable yield in such fishery.
16 U.S.C. § 1802(33). Councils may also submit regulations deemed "necessary or appropriate" to implement an FMP or to modify existing regulations. 16 U.S.C. § 1853(c).
All FMPs must be consistent with ten national standards prescribed in the Act. 16 U.S.C. § 1851(a). Relevant here is National Standard One ("NS 1"), which states: "Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry." Id . at § 1851(a)(1). The Act defines "overfishing" and "overfished" as the "rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield [("MSY")] on a continuing basis." 16 U.S.C. § 1802(34).*fn2 MSY is defined as the "largest long-term average catch or yield that can be taken from a stock or stock complex under prevailing ecological, environmental conditions and fishery technological characteristics (e.g., gear selectivity), and the distribution of catch among fleets." 50 C.F.R. § 600.310(e)(i)(A). If NMFS determines a fishery is overfished, a rebuilding plan is required within two years. 16 U.S.C. § 1854(e). Fishing may continue during this period, although interim measures may be required. See id .
B.The Salmon Fishery Management Process.
The Pacific Salmon FMP guides management of commercial and recreational salmon fisheries off the coasts of Washington, Oregon, and California. AR 298. Implementing the existing FMP, the Council annually recommends management measures to achieve conservation objectives for each stock, while simultaneously seeking to fulfill, to the extent practicable, harvest and allocation objectives that reflect the Council‟s social and economic considerations. AR 302. After a preseason planning process including public participation, the Council submits the annual management measures to NMFS for review and promulgation as a regulation. See 16 U.S.C. § 1855(d).
Conservation objectives are fixed measures intended to provide the guidance during the annual preseason planning process to establish salmon fishing seasons that achieve optimum yield. AR 305. Many of the conservation objectives are expressed in terms of annual fishery escapement numbers, in other words, adults that return to freshwater to spawn, believed to be optimum for producing MSY over the long-term. AR 304.
In the Salmon FMP, "California Central Valley Chinook salmon" include all fall-run, late-fall-run, winter-run, and spring-run stocks of the Sacramento and San Joaquin Rivers and their tributaries. AR 311. Of these, SRFC are the single largest contributor to ocean fisheries off California, a significant contributor off southern and central Oregon, and present north into British Columbia. Id. As the major contributing stock to ocean Chinook salmon fisheries off Oregon and California, SRFC serve as the basis for managing the Central Valley Chinook fishery. Id. The bulk of SRFC stocks are south of Point Arena, with considerable overlap with coastal and Klamath River fall Chinook between Point Arena and Horse Mountain. Id. The FMP sets the conservation objective for SRFC at 122,000-180,000 natural and hatchery adult spawners. Id . Plaintiff does not challenge the conservation objective, which is part of the FMP.
The FMP also sets forth overfishing criteria, recognizing that salmon "abundance can fluctuate dramatically" and "it is not unusual for a healthy and relatively abundant salmon stock to produce occasional spawning escapements which, even with little or no fishing impacts, may be significantly below the long-term average associated" with maximum sustainable yield. AR 305. To address the MSA requirement to identify when a stock may be approaching an overfished condition or is overfished, the PFMC established two separate criteria based on a stock‟s failure to meet its conservation objective. The first measure, a "conservation alert," is forward-looking and reacts to potential stock declines that might lead to overfishing. AR 306. This criterion is triggered during the annual preseason process if a stock is projected to fall short of its conservation objective. Id . The FMP sets forth the required actions associated with a "conservation alert," which include closing the fishery on that stock for that year. Id .
The second criterion, an "overfishing concern," is based on past history and occurs if, in three consecutive years, the postseason estimates indicate a stock has fallen short of its conservation objective. AR 307. When an overfishing concern is triggered, the PFMC will complete an assessment of the stock within one year, that appraises actual level and source of fishing impacts on the stock; considers if excessive fishing has been inadvertently allowed by estimation errors or other factors; identifies any other pertinent factors leading to the overfishing concern; and assesses the overall significance of the present stock depression with regard to achieving MSY on a continuing basis. AR 307-08. Depending on its findings, the Council‟s Salmon Technical Team ("Technical Team" or "STT") will recommend any needed adjustments to annual management measures to assure the conservation objective is met, or recommend adjustments to the conservation objective which may more closely reflect the MSY or ensure rebuilding to that level. AR 308. Following its review of the Technical Team report, the Council will specify the actions that will comprise its immediate response for ensuring that the stock‟s conservation objective is met or a rebuilding plan is properly implemented and any inadvertent excessive fishing within Council jurisdiction is ended. Id . The criteria for determining the end of an overfishing concern will be included as a part of any rebuilding plan adopted by the Council. Id .
The FMP is periodically amended; the last amendment was passed in 2007. E.g. AR 635. Plaintiff does not challenge any aspect of the FMP. During development of the 2011 fishing regulations, the Council engaged in a parallel process of developing a proposed Amendment 16. Among other things, the proposed amendment includes revisions designed to provide clearer criteria for making "overfishing," "overfished," "approaching overfished," and "rebuilt" determinations. AR 1051. Final Council action on the proposed amendment was not scheduled until June 2011. The Council made clear that 2011 salmon management would be governed by the terms of the current FMP at that time. AR 1574; see also AR 1300.
C.Management of the Pacific Salmon Fishery in Recent Years.
The SRFC experienced a sudden decline in 2007, with an escapement of 91,374 adults, despite the forecasted escapement of more than 265,000. AR 4487; AR 869-70. From 2007 until 2009, SRFC escapements were the lowest ever observed (87,940 spawners in 2007, 64,456 in 2008, and 39,530 in 2009, respectively). 75 Fed. Reg. 24,482, 24,484 (May 5, 2010); AR 870. The crash has generally been attributed to adverse ocean conditions. AR 1207, 1212. However, freshwater conditions and fishery management also played a role. AR 869-70.
A NMFS workgroup responsible for evaluating the stock collapse found that the Central Valley Index ("CVI") forecasting method used to estimate the 2007 escapement was biased. See AR 870. For the 2008 season, NMFS developed a new abundance index, the Sacramento Index ("SI"), to replace the CVI. AR 3834. The SI was utilized from the 2008 season onwards. AR 3856. The SI reflects the sum of (1) SRFC ocean fishery harvest south of Cape Falcon between September 1 and August 31, (2) SRFC impacts from "non-retention ocean fisheries" when they occur, (3) the recreational harvest of SRFC in the Sacramento River Basin, and (4) SRFC adult escapement. AR 5007. The SI is forecast annually using a linear regression model. Id . Along with the estimated value, 95% prediction intervals are calculated. See id . There is only a 2.5% chance that actual abundance will be less than the low end of the prediction interval and a 2.5% chance that it will be greater than the top end. The Chinook salmon fisheries south of Cape Falcon were largely closed in 2008 and 2009 in response to low preseason SI abundance forecasts for SRFC. 75 Fed. Reg. 24,482 at 24,484.
For the 2010 season, the SI forecasted an abundance of 245,483 adult SRFC, with the upper bound of the 95% prediction interval at 532,657 and the lower bound at zero. AR 4796. In its March 2010 guidance letter, NMFS informed the Council that, because SRFC had not met its conservation objective from 2007 to 2009, it had triggered an "overfishing concern" and would be reported to Congress as "overfished" and that the two-year deadline for a rebuilding plan was triggered. AR 1052. NMFS provided guidance that, until a rebuilding plan is implemented, a risk-averse management approach should be adopted, given the recent trend in SRFC adult escapement. Id . NMFS advised the Council to adopt a conservative approach to management of SRFC in 2010 by structuring potential fisheries to target escapement around the upper end of the SRFC conservation objective range. Id . The Council adopted measures designed to achieve a projected escapement level of 180,000 SFRC. AR 4953. Under the 2010 management measures, California commercial fisheries were heavily constrained, with only eight days open south of Point Arena. AR 4471. Escapement failed to meet the 180,000 SRFC objective; only 125,353 hatchery and natural SRFC adults returned to the Sacramento River Basin. AR 4472.
D.Development and Adoption of the 2011 Management Measures.
The 2010 fishery showed that a total of 125,353 hatchery and natural area SRFC adults were estimated to have returned to the Sacramento River basin for spawning in 2010, just above the lower bound of the conservation objective. AR 4472. Using the SI, the forecasted SRFC adult abundance for 2011 was estimated to be 729,893 adults. AR 5007. The upper bound of the 95% prediction interval was estimated to be 1,228,114, and the lower bound estimated to be 231,671. AR 5007, 5033 (figures).
In the Preseason I report, the Technical Team noted a "concern" about the potential for the SI forecast to be biased high in years when the prior year‟s returns of two-year old fish (jacks) are weaker. AR 1569, 4994-95. Such was the case with the data used to make the 2009, 2010, and 2011 forecast, meaning that the potential for bias was present in 2011. AR 4995. The current model over-predicted escapement in two of the three years it has been used. AR 4796, 5007. In 2009, the forecast escapement was 3.1 times actual escapement; in 2010 it was 1.6 times actual escapement. Id . Despite this, the Council‟s Scientific Statistical Committee ("SSC") endorsed the forecast as the best available science for use in 2011 management. AR 1184.
The potential for bias in the SI was discussed at the Council‟s March 4-10, 2011 meeting, with the Council‟s scientific advisors noting the potential for upward bias and recommending that management measures be crafted accordingly. AR 1184. The Council‟s advisors discussed whether the bias could be quantified and/or corrected, but concluded that, although the bias could be explained, neither quantification nor correction were possible. AR 1184; 1570 (partial transcription of Council meeting). The Council requested additional information on the issue, which was provided later that day. AR 1570-71; AR 808. The supplemental presentation compared prior SI predictions with the jack cohort strength for those years (i.e., decreasing, similar, or increasing, as was the case in 2011). AR 809. While this provided some evidence that the SI forecast could be biased high under the condition of increasing jack escapement, the Council was advised that "the pattern does not suggest that a positive bias in the forecast in 2011 would be a foregone conclusion." Id . The Council was also advised that ocean fisheries would likely be constrained due to concern for other stocks as well as NMFS‟s guidance to target the upper end of the conservation objective, and that these constraints would act as an effective "buffer" to any potential bias in the SI forecast. AR 810. To illustrate this point, it was noted that if the 2011 SI forecast of 729,893 was arbitrarily reduced by one half, and the stock experienced a plausible exploitation rate of 0.50, the projected escapement of SRFC would be approximately 182,000 adults, still exceeding the conservation objective. Id .
The 2010 SRFC overfishing concern was also on the Council‟s agenda for its March meeting. The FMP required the Council to consider the stock assessment on factors causing the overfishing concern, to identify criteria to end the concern, specify actions to ensure the stock‟s conservation objective was met, and consider any other actions arising from the stock assessment. AR 1195. The Council requested the Technical Team utilize the Lindley (2009) report as a starting point for the stock assessment. Id . Doing so, the Council‟s advisors updated the report with additional data and analyses in order to assess the three broods associated with the 2007-2009 returns. Id . The assessment concurred with the Lindley (2009) finding that ocean conditions were the proximate cause of the SRFC collapse, while also noting that problems in the freshwater environment effect survival of fish that migrate through the system. AR 1212.
The report also, alternatively employed the preliminary proposed alternatives from Amendment 16 to evaluate whether SRFC were "overfished" or had been subject to "overfishing." AR 1212-14. Under the Amendment 16 alternatives, SRFC would not have been declared overfished or subject to overfishing during the same time period. Id . The report also recommended criteria for ending the overfishing concern, utilizing the preliminary proposed Amendment 16 criteria for finding a stock to be in "rebuilt" status: a three-year geometric mean escapement exceeding 122,000. AR 1214. Using this measure, the overfishing concern would be ended with an escapement of 354,412 in 2011. Id . However, the Council recognized that since they were acting under the current FMP, not including Amendment 16, they should utilize the criteria set forth in the FMP to end an overfishing concern. AR Audiofile 3/6/11 AM2, 1:28:00-1:31:00. The Council unanimously decided to use the existing, "default" criteria, which is satisfied when a stock meets its conservation objective, as SRFC did after the 2010 season. Id.; see also AR 1591.
Three management alternatives were proposed for public review at the end of the March meeting. AR 1366-92, 1394-1422. The Council then issued the Preseason II report analyzing the three proposed alternatives. For SRFC, the forecast of 729,893 adults was just slightly lower than the average SI for years 1983-2010. AR 5202. As in 2010, NMFS provided guidance that the management alternatives should target an escapement around the upper end of the conservation objective. AR 651-52. Predicted SRFC escapements under the three alternatives ranged from 368,700 to 376,800, AR 5235, 5215, 5223, more than double the upper end of the conservation objective, AR 5203.
At the April meeting, the Council took final action on the 2011 management measures. AR 1606. It subsequently issued the Preseason III report summarizing the Council‟s analysis of the adopted measures. AR 5256. The adopted measures were predicted to result in an SRFC escapement of 377,000 adults, AR 5271, more than double the target recommended by NMFS (the 180,000 upper end of the conservation objective) and more than three times the lower end of the conservation objective (122,000), see AR 5263. The adopted measures allow for significantly more fishing opportunity than recent years. AR 5267, 5291-92 (figures).
The three preseason reports also contained the relevant NEPA analysis. The Preseason I report contained the statement of purpose and need, a summary of the affected environment, and a description and analysis of the No-Action Alternative. AR 4993. The No-Action Alternative was assumed to repeat the previous year‟s management measures without alteration. AR 4996. This alternative would not take into account the current status of salmon stocks and would result in over- or under-harvest of some stocks. Id . Given the 2011 forecast, a repeat of the 2010 regulations was expected to result in an escapement of 572,600 natural and hatchery adult SRFC, well above the upper end of the conservation objective (180,000). AR 5058. The Council concluded that the No-Action Alternative would not meet the purpose and need for the proposed action because it would result in unnecessarily conservative management measures for some stocks, while not satisfying the Endangered Species Act ("ESA") standards for others. AR 5060.
The Preseason II report described and analyzed three alternative fishery management measures. AR 5191; 5198-99. The three Alternatives proposed various levels of fishing effort for various stocks and areas. While there were constraints south of Cape Falcon due to other stocks, a relatively high SRFC abundance forecast would allow greater commercial fishing opportunity compared to recent years. AR 5199. The recreational fishery alternatives all had a greater minimum size limit in some areas and were proposed to open April 2 and run until mid-September through mid-November, depending on the alternative. AR 5200. While the three alternatives were predicted to result in similar SRFC escapements, there were significant differences for other stocks and with respect to the socioeconomic impact on fishermen and associated fishing communities.
See AR 5208, 5241-44. In addition to impacts on target stocks and socioeconomics, the Preseason II report evaluated the impact of the three alternatives on ESA-listed species, other non-target species, habitat, and ecosystem function. AR 5200-10. The report concluded that no significant environmental impacts will result from final regulations selected from any of the three alternatives. AR 5210.
The Preseason III report, analyzing the Council‟s selected alternative, acted as the NEPA description of the preferred alternative. AR 5256. NMFS combined all three of these reports into a single EA with a preface guiding the reader to the relevant NEPA analysis in each, document. AR 30-31. In April 2011, NMFS issued a FONSI analyzing each of the CEQ criteria for evaluating the significance of the action. AR 23. In addressing the criterion on uncertainty, NMFS found that, while there is some inherent uncertainty involved in projecting stock abundance in a given year, "such uncertainty is addressed through ...