Notice & Comment

Court Rules Against Efforts to Increase Fishing Limits of Certain Species, by Katherine Kennedy

The plaintiff brought this case under the Magnuson–Stevens Act (“MSA”) in the Northern District of California.  Judge Edward Chen delivered the opinion on April 12, 2013.  Oceana, Inc. v. Bryson, C-11-6257 EMC, 2013 WL 1563675 (N.D. Cal. 2013).  The opinion resulted from cross-motions for summary judgment. The plaintiff, Oceana Inc., a non-profit organization sued John Bryson in his official capacity as the Secretary of Commerce.  Industry intervenors also brought motions for summary judgment.

The MSA establishes Regional Fishery Management Councils, and requires the councils to prepare fishery management plans (“FMPs”) that target the prevention of overfishing. The plaintiff challenged Amendment 13, a 2010 amendment to the Costal Pelagic Species Fishery Management Plan, which covers a number of species within the California Current Ecosystem. The plaintiff alleged that Amendment 13 fails to comply with various requirements of the MSA, and violated the National Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”). Specifically, the Plaintiff alleged  that Amendment 13 failed to set certain measures required by the MSA (such as the “optimum yield” for the species of fish covered by the CPS FMP), so that it failed to appropriately account for certain known sources of uncertainty. The plaintiff also alleged that these measures were not based upon the best available science.

Congress enacted the MSA in 1976, 16 U.S.C. §§ 1801, et. seq., after finding that certain species of fish had declined to the point where survival was threatened enough that a national program for US fishery resources  conservation and management had become necessary to prevent overfishing, rebuild the endangered populations, insure conservation, facilitate long-term protection of essential fish habitats, and realize the full potential of the Nation’s fishery resources. The Secretary of Commerce was placed in charge of creating councils to meet the aforementioned purpose of the statute at issue. The Pacific Council is the council responsible for the fishery management plan in this case, and overall, is the council responsible for Pacific Ocean fisheries seaward of the states of California, Oregon, and Washington.

The FMP from which this lawsuit originated concerns an FMP dedicated to the northern anchovy. The FMP at issue was approved and published in the Federal Register in 1978. The plaintiff brought this case due to Amendment 13, which implemented fishery specification framework to better account for uncertainty and prevent overfishing based on scientific and management resources. Amendment 13 was enacted to better FMPs by addressing the modification of previously existing harvest control rules for actively managed species to account for scientific uncertainty; the maintenance in the default harvest control rules for monitored stocks as modified to specify the new reference points; the added mechanism for the use of sector-specific standards in the annual harvest and management specification process.

The court reviewed this case under the Administrative Procedure Act because the case concerned ESA, NEPA, and MSA. A court must set aside agency actions under these statutes where such action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or was taken “without observance of procedure required by law.” The question for the court, thus, was whether the agency considered the relevant factors and articulated a rational connection between the facts in the record and the action taken.

This case boiled down to two terms: Optimum Yield (OY) and Maximum Sustainable Yield (MSY). The plaintiff challenged the basis for these terms in the FMP and wanted to reopen the rulemaking in order to overturn the terms as arbitrary and capricious. This was a case of first impression for the Ninth Circuit. The court noted that a number of courts have held that plaintiff may not use challenges to FMP amendments as a vehicle for raising objections to provisions of the FMP that were previously implemented. Thus, the court had to determine if the OY and MSY challenges were an attempt for plaintiff to inappropriately challenge the amendment.  The court looked to the DC Circuit for guidance: “Plan amendments which are premised upon or retain a status quo do not equate to ‘promulgation’ of a new status quo. Thus, even when a proposed amendment includes new limits which are contingent upon a previously-enacted status quo amount, only the new limits themselves, and not the status quo amount, are subject to timely challenge.” Oceana, Inc. v. Bryson, C-11-6257 EMC, 2013 WL 1563675 (N.D. Cal. 2013). The court stated that it looks to see if the language being challenged in the current case is language that can be found in the agency’s proposed rule-making.

The Ninth Circuit also stated that courts also look to an agency’s response to comments in determining whether a reopening has occurred. Where an agency has responded to comments on an issue, this may be an indication that the agency intended to reopen the issue. The court looked to two holdings within the circuit to determine if the agency had reopened the rule in 1978: 1) When ‘an agency’s actions show that it has not merely republished an existing rule … but has reconsidered the rule and decided to keep it in effect, challenges to the rule are in order and 2) Courts have consistently held that the statute of limitations does not bar review of agency actions that reopen a previously decided issue when the agency reaches the same decision at a subsequent proceeding. However, after analyzing the Plaintiff’s challenge to Amendment 13 in conjunction with these holdings as they applied to the “Optimum yield” provisions in MSA, the court held that Plaintiff’s challenge was untimely, thus denying plaintiff’s motion for summary judgment and granting summary judgment for the federal defendant. This is because the court focused on the notice opening the comments period on Amendment 13, which did not mention revisiting the rule on optimum yield.

However, the court acknowledged that the reopening doctrine applied and was proper regarding maximum sustainable yield (MSY) due to the seemingly serious consideration of remedying the issue presented in Amendment 13. The court noted that in August 2011, the federal defendant conducted an Environmental Assessment for Amendment 13 that discussed a variety of alternatives for amending the status determination criteria in the FMP. The Court stated that the record reflected that the Council explicitly considered specifying an MSY for the northern subpopulation of the northern anchovy, but decided not to do so because of concerns about the adequacy of the data on this species. This explicit consideration is sufficient to bring this issue within the reopening doctrine. Thus, plaintiff’s challenge was not barred by time in this instance due to the presence of MSY being a serious issue in the rulemaking procedure.

Further, the Court held that the agency’s decision regarding MSY in rulemaking was arbitrary and capricious. The plaintiff was able to prove that defendants did not have the adequate research to support the MSY that it enacted through the Amendment. Further, the defendants were unable to prove through the record that it would have caused significant disruption to add the MSY estimate and a short justification in the amendment before transmitting it to NMFS. The court seemed persuaded by the lack of defendants’ explanation as to why it was not “practicable” to incorporate this number into Amendment 13 before the Council transmitted it to NMFS in January 2011, or before the notice of proposed rulemaking was published in June 2011. Thus, the court held that since the time line was unconvincing as to why it was not possible to incorporate the MSY proxy for the northern subpopulation of the northern anchovy into Amendment 13 at some point before the amendment was finalized, without such an explanation, NMFS’s decision to approve Amendment 13 without an MSY proxy for the anchovy population was arbitrary, capricious, and contrary to law. Thus, plaintiff’s motion for summary judgment pertaining to MSY was granted and defendant’s denied.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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