                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA


ANGLERS CONSERVATION
NETWORK, et al . ,

             Plaintiffs,

     v.                                       Civil Action No. 14-509 (GK)

PENNY PRITZKER, et al.,

             Defendants.


                               MEMORANDUM OPINION

     Plaintiffs Anglers Conservation Network, Paul Eidman, Gateway

Striper      Club,     Inc.,      and   Philip      Lofgren      (collectively,

"Plaintiffs"), bring this case against Secretary of the Department

of Commerce Penny Pritzker ("the Secretary"), the National Oceanic

and Atmospheric Administration          ("NOAA"), and the National Marine

Fisheries    Service    ( "NMFS")   (collectively,     "Defendants"      or   "the

Government") pursuant to the Magnuson-Stevens Fishery Conservation

and Management Act ("MSA" or "the Act"), 16 U.S.C. §§ 1801 et seq.;

the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321

et   seq.;     and     the     Administrative     Procedure      Act     ("APA") ,

5 U.S.C. §§ 701 et seq.

     Plaintiffs      challenge      various     elements    of   a     Rule   that

Defendants    promulgated       amending   the    fishery     management      plan

governing the Mackerel, Squid, and Butterfish ("MSB")                fishery off

of the eastern coast of the United States. Specifically, Plaintiffs
contend that Defendants unlawfully failed:                            (1)      to include four

species of river herring and shad as "stocks" to be regulated by

the MSB fishery management plan;                  (2) to adopt observation measures

necessary to prevent overfishing of the relevant river herring and

shad species;        and        ( 3)   to adequately consider the environmental

impact of its chosen course.

       This matter is before the Court on Plaintiffs' and Defendants'

Cross-Motions        for        Summary     Judgment      [Dkt.       Nos.      30,     31].     Upon

consideration of           the Motions,          Oppositions          [ Dkt.    Nos.     32,     3 6] ,

Replies [Dkt. Nos. 36, 38], and the entire record herein, and for

the reasons set forth below, the Motions for Summary Judgment filed

by the Parties shall be granted in part and denied in part.

I .    BACKGROUND

       A. ·   Statutory Background

              1.     Magnuson-Stevens Act

       Congress first enacted the MSA in 1976 "to take immediate

action to conserve and manage the fishery resources found off the

coasts of the United States[.]" 16 U.S.C.                         §    180l(b) (1).          The Act

establishes a federal-regional framework "for the conservation and

management of the fishery resources of the United States" in order

to "prevent overfishing," "rebuild overfished stocks," "[e]nsure

conservation," and "facilitate long-term protection of essential

fish   habitats."         Id.      §   1801 (a) ( 6);   see    also     Natural         Res.     Def.

Council,      Inc.   v.    Daley,        209    F.3d    747,   749       (D.C.        Cir.     2000).

                                               - 2 -
Regulation of fisheries is accomplished through fishery management

plans      ("FMPs")     that        are   developed and prepared by                          independent

    regional fishery management councils                             ("councils")       and approved,

implemented and enforced by NMFS,                        1   a division within the Department

of Commerce. See 16 U.S.C.                 §§   1853-1854.

         The MSA divides the United States into eight regions, each of

which is represented by an independent fishery management council.

See id.     §   1852 (a) (1). Councils are composed primarily of members

who represent the interests of the states included in their region

and who are appointed by the Secretary from a list of individuals

submitted       by     the      governor            of        each     constituent           state.    Id.

§    1852 (b) (1),    (2); see also C               &    W Fish Co. v. Fox, Jr.,                931 F.2d

1556,     1557-58      (D.C.    Cir.      1991).             The remaining voting members of

each council consist of the principal marine fishery management

officials from each constituent state and the regional director of

NMFS for the related geographic area. 16 U.S.C.                                    §   1852 (b) (1) (A),

( B) .

         Each   council        is    required                to   prepare    and       submit     to   the

Secretary (acting through NMFS) a fishery management plan and any

necessary amendments to such plan,                                "for each fishery under its

authority       that     requires          conservation                and   management[.]"            Id.



1  The Secretary has delegated her authority to                                              approve or
disapprove plans and their amendments under 16 U.S.C.                                    §    1854 (a) (3)
to NMFS. Oceana, Inc. v. Locke, 831 F. Supp. 2d 95,                                          101 (D.D.C.
2011).
                                                -       3 -
§ 1852(h) (1). The term "fishery" is defined in the Act as "one or

more stocks of fish which can be treated as a unit for purposes of

conservation and management and which are identified on the basis

of geographical, scientific, technical, recreational, and economic

characteristics;               and     []    any    fishing     for     such   stocks."        Id.

§ 1802(13). The term "stock of fish," in turn,                              is defined as "a

species,      subspecies,            geographical grouping,           or other category of

fish capable of management as a unit." 16 U.S.C. § 1802(42).

        A fishery management plan must describe the species of fish

involved       in        the   fishery       and     specify      the   "conservation          and

management         measures"          that    are    "necessary       and   appropriate"        to

"prevent       overfishing            and    rebuild       overfished       stocks,     and     to

protect,      restore, and promote the long-term health and stability

of the fishery[.]" Id.§ 1853(a)(l)(A),                         (2).

        After a council prepares and approves a fishery management

plan    or    amendment,         it     is   sent    to   NMFS,    which     reviews    it     for

consistency with the MSA and other applicable laws and publishes

it     in    the    Federal          Register       for   notice      and   comment.     Id.     §

1854(a) (1). After a 60-day notice and comment period,                                NMFS must

"approve, disapprove, or partia.lly approve a plan or amendment [,]"

taking into account the views and comments of interested persons.

Id. § 1854 (a) (2), (3).

        If NMFS approves a plan or amendment, or does not expressly

disapprove          it     within       30    days,       it   becomes      effective.         Id.

                                                - 4 -
§   1854 (a) (3).    If NMFS disapproves or partially approves the plan

or amendment,        NMFS must           thereafter notify the                 council of      "the

applicable law with which the plan or amendment is inconsistent";

the "nature of such inconsistencies"; and specific "actions that

could be taken by the Council to conform such plan or amendment to

the requirements of applicable law." Id.                        §    1854 (a) (3). The council

"may"    thereafter        "submit        a    revised     plan        or   amendment     to    the

Secretary for review [.]" Id.                  §    1854 (a) (4).

             2.      National Environmental Policy Act

        Congress enacted NEPA in order "to use                        ~11   practicable means,

consistent with other essential considerations of national policy,

to improve and coordinate Federal plans, functions, programs, and

resources       to   the   end   that         the    Nation may                      fulfill    the

responsibilities of each generation as trustee of the environment

for succeeding generations." 42 U.S. C.                         §    4 331 (b) . To accomplish

that    goal,     NEPA     requires       all       federal         agencies    to   prepare     an

Environmental        Impact      Statement            ("EIS")        whenever    they    propose

"major Federal actions significantly affecting the quality of the

human environment." Id.              §   4332 (2) (C) . The EIS must "present the

environmental        impacts     of      the       proposal     and the        alternatives      in

comparative form,          thus sharply defining the issues and providing

a clear basis for choice among options by the decisionmaker and

the public." 40 C.F.R.           §    1502.14.




                                               - 5 -
         B.     Factual Background2

                1.      Shad and River Herring

         At the center of this case are four species of anadromous

fish, that is, fish that spend most of their lives in ocean waters

but migrate upstream to fresh water in the spring to spawn.                     See

AR 11408. Anadromous fish play a critical role in the biology of

rivers, estuaries and ocean waters along the Atlantic seaboard as

prey for many species of fish, birds, and marine mammals. AR 8265,

8268, 8291, 8416, 12818, 12947, 13498.

         Two of the four species at issue in this case are known as

river herring.           They are: Alewife          (alosa pseudoharengus), which

are most abundant in the Mid-Atlantic and Northeastern states, and

blueback herring          (alosa aestivalis),          which are found from Nova

Scotia to northern Florida and are most abundant in waters south

of the Chesapeake Bay. AR 1148. Alewife spawn in rivers, creeks,

lakes,        and     ponds   over     rocks,       detritus,   submerged   aquatic

vegetation,          and sand.   Id.   Blueback herring generally prefer to




2 Plaintiffs' briefs contained citations to factual materials
beyond the scope of the Administrative Record. The Government
objected to the Court's consideration of those materials and
accordingly, filed a Motion to Strike Extra-Record Documents and
Citations [Dkt. No. 33]. The Court granted that Motion [Dkt. No.
4 4] .

      For these reasons, the facts that follow are drawn solely
from the Administrative Record ("AR") [Dkt. No. 43] compiled by
NMFS.
                                          -   6 -
spawn over sand or gravel in swift-flowing areas of rivers and

tributaries. Id.

       The other two species are known as shad. They are:                             American

Shad (alosa sapidissima), which historically populated all major

North American rivers from Maine to the east coast of Florida. AR

11201, 11411. American shad stocks are river-specific, which is to

say that each major tributary along the Atlantic coast provides

the spawning area for a particular stock of American shad. Id. The

other species       is Hickory Shad (alosa mediocris) of which less is

known.      "[D]istribution          and     movements       of       hickory      shad    are

essentially unknown after they return to the ocean"; however, "due

to harvest along the southern New England coast in the summer and

fall   it   is    assumed     that   they also           follow   a   migratory pattern

similar to the American shad[.]" AR 11411.

       The Administrative Record is not entirely clear as to the

current status of the shad and river herring.                          Portions indicate

that the four species are relatively numerous, whereas others show

diminishing numbers.           Compare      78    Fed.    Reg.    48,944,        48,992   with

AR 10438.

       For example, in May 2012 the Atlantic States Marine Fisheries

Commission       ( "ASMFC")    performed         an   assessment       of   52    stocks    of

alewife and blueback herring. AR 12921. However, the ASMFC lacked

sufficient       data   to    develop      estimates      of abundance          and    fishing

mortality for 28 of the 52 stocks. Id. Of the 24 stocks for which

                                            - 7 -
data were available, 23 were depleted relative to historic levels

and one stock was increasing. Id.

       By contrast, in 2013, relying on the blueback herring's coast-

wide population growth                rate,       NMFS      concluded that            the    relative

abundance of blueback herring throughout its range is stable. 78

Fed.    Reg.     48,944,      48,992.       Moreover,            there    are    at    least    three

contiguous          populations       of    alewife         that     are    either          stable   or

significantly increasing. Id.                     From a coast-wide perspective, the

trajectory of the alewife population is significantly increasing

and    all     of    the   stock      complexes            are    stable        or    significantly

increasing. Id.

       On August 12,          2013,    NMFS issued a 50-page decision finding

that    listing       river      herring          (i.e.,     both    alewife          and    blueback

herring) as threatened or endangered under the Endangered Species

Act    ("ESA")       was   not   warranted.          See     78    Fed.    Reg.       48,944.    NMFS

determined that neither species of river herring was in danger of

extinction or likely to become so for the foreseeable future to

2030. Supp. AR, 78 Fed. Reg. at                    4~,993.


       The pattern of mixed and limited data continues with both

species of shad.           In 2012,        the Mid-Atlantic Fisheries Management

Council ("the Council") set out to study 32 stocks of American and

hickory shad. AR 12924. The Council found that it lacked sufficient

information to make any conclusions about eight of the 32 stocks.

Id. However, it was ·able to conclude that 11 stocks were depleted

                                              -    8 -
relative to historic levels, 2 were increasing, and 11 were stable.

Id.     The     lack      of       adequate    data      has   prevented     any   reliable

assessments of the stock abundance and fishing mortality of shad.

AR 8 5 6 7 , 8 8 0 5 , 9 2 2 7 .

                2.      Mackerel, Squid and Butterfish Fishery Management
                        Plan

        The Mid-Atlantic Fisheries Management Council established the

Atlantic Mackerel, Squid and Butterfish Fishery Management Plan in

1983.     The Council manages these three species as a single unit

because of their similarities in fishing seasons and vulnerability

to common threats,             including the threat of by-catch from foreign

fleets.       River     herring       (alewife     and blueback herring)           and    shad

(American shad and hickory shad)                    are anadromous species that co-

occur      seasonally          with     mackerel;        fishermen    harvest      them    as

incidental catch in the mackerel fishery. 79 Fed. Reg. 10,031 (Feb.

24,   2014).      When river herring and shad are encountered in the

mackerel fishery, they are either discarded at sea ("bycatch") or

retained       and    sold     as    part     of   the   mackerel    catch    ("incidental

catch"). Id.; see also AR 11404.

                       a.      Amendment 14

        In June 2010,          the Mid-Atlantic Fisheries Management Council

published a notice of intent to prepare a new amendment to the MSB

fishery management plan                 ( "MSB FMP") ,     known as Amendment 14.           75

Fed. Reg. 32,745; see also 79 Fed. Reg. 10,029 (Feb. 24, 2014). In


                                               - 9 -
the initial stages of considering the alternative measures that

might be included in Amendment 14, the Council set out to do the

following:          "1)    improve       moni taring         and    observing       of    incidental

[river herring and shad] catch; 2) consider ways to reduce [river

herring and shad] catch; and 3) consider adding [river herring and

shad]    as managed stocks in the MSB FMP                            (i.e.     as stocks in the

fishery)       so     as    to     improve       overall       [river        herring      and    shad]

conservation." AR 8191.

        First,       as     part    of     Amendment          14,     the     Council      and     NMFS

implemented           new     measures           that        are     intended        to     minimize

herring/shad          bycatch       mortality           in    the     mackerel      fishery,        and

improve     the      precision       of        the   Council        and NMFS' s      estimates       of

herring/shad catch and bycatch.                        After a public comment period,

NMFS partially approved Amendment 14, on November 7, 2013. 79 Fed.

Reg. at 10,029, 10,031. Amendment 14 established a mortality cap

measure    for       the herring I shad in the mackerel                        fishery.     The cap.

requires the mackerel fishery to close once NMFS has determined

that     the     mackerel          fishery       has     caused       a     certain       amount     of

herring/shad mortality.                  Id.    The Council and NMFS reasoned that

capping the allowed level of river herring and shad catch in the

mackerel fishery would provide a strong incentive for the industry

to     continue       to    avoid     river          herring        and     shad,   and    minimize

encounters with and therefore reduce the bycatch of these species.

Id.

                                                 - 10 -
      Second,      Amendment 14 also set forth several measures NMFS

intends to initiate in the future to reduce herring/shad bycatch

and bycatch mortality,               including the development of a              "bycatch

avoidance strategy" with state and university partners.                           79 Fed.

Reg. 10,029, 10,034.

      In    addition,          Amendment        14    requires      48-hour      pre-trip

notification       of    intent      to    retain     more   than    20, 000   pounds    of

mackerel.    Id.        Such notification is required to ensure that the

Council and NMFS have sufficient notice to assign observers to the

fishing vessels. Id.            The notification also requires daily catch

reporting for certain mackerel vessels via the Vessel Monitoring

System in order to facilitate monitoring and cross-checking with

other data sources.            Id.

      The Amendment also requires six-hour pre-landing notification

via the Vessel Monitoring System to land over 20,000 pounds of

mackerel     to     allow      sufficient         notice     to     facilitate      at-sea

monitoring,        enforcement,           and    portside     monitoring.        Id.    The

Amendment expands requirements related to at-sea observer sampling

to   help   ensure      safe    sampling        and   improve     data   quality.       The

Amendment prohibits slippage                (i.e.,    at sea dumping of fish that

have been caught) on limited access mackerel trips with observers

aboard, and requires vessel operators to submit a released catch

affidavit for each slippage event. Id.



                                            - 11 -
        Notably, and at the heart of this case, the final version of

Amendment 14 promulgated by NMFS did not include two measures that

Plaintiffs support.             First,    the Council recommended a version of

Amendment         14   that would have          increased the number of on-board

observers who monitor compliance with applicable law. AR 12799. As

proposed by the Council,                 observers would have been on 100% of

certain vessels in the MSB fishery and would have been partially

funded by the fishing industry itself. Id. For a variety of reasons

discussed below, NMFS rejected this measure in the final version

of Amendment 14. 79 Fed. Reg. 10,034.

        Second, the Council decided not to recommend the addition of

herring/shad stocks to the MSB fishery in Amendment 14.                            79 Fed.

Reg.    10, 034.       Instead,     the Council stated that it would further

consider adding stocks to the fishery in the subsequent Amendment

15. Id.

                        b.     Amendment 15

        On    June     14,    2012,     Defendants     and   the   Council    initiated

Amendment 15 "to add                [river herring and shad]       as stocks in the

fishery," AR 10444, and scoping for the action began in October

2012.        77   Fed.       Reg.     65,867.    Numerous     fishermen      and     other

stakeholders commented on the need to add river herring and shad

to the MSB FMP. AR 13789. On October 8, 2013, after studying the

issue and considering public comments and testimony, the Council

suspended         further     consideration       of   Amendment    15,   and      instead

                                            - 12 -
    created a new working group to further study the issue for at least

    three        years.   79    Fed.        Reg.     10,034.       Plaintiffs      challenged      the

    termination of Amendment 15,                     and this Court granted Defendants'

    Motion to Dismiss that challenge on September 30,                                   2014. Anglers

    Conservation Network v. Pritzker, 70 F. Supp. 3d 427, 441 (D.D.C.

    2014) .

            C.      Procedural Background

            On February 24, 2014, NMFS promulgated the final version of

Amendment 14. 79 Fed. Reg. 10029.

            On March 26,            2014,    while their challenge to the Council's

suspension of Amendment 15 was                             still pending,         Plaintiffs filed

their Complaint challenging Amendment 14 [Dkt. No. 1].

            On October 27, 2014, Plaintiffs filed their Motion for Summary

Judgment [Dkt. No. 30]. On December 4, 2014, the Government filed

its         combined      Cross-Motion             for    Summary      Judgment    and     Opposition

    [Dkt.     No.    31].      On    December        19,     2014,     Plaintiffs        filed   their

combined Opposition and Reply                            [Dkt.   No.   36),   and on January 20,

2015, the Government filed its Reply [Dkt. No. 38]                                 .3


II. STANDARD OF REVIEW

            Summary judgment will be granted when there is no genuine

issue as to any material fact. See Fed. R. Civ. P. 56(c). Because




3
 On September 24, 2015, Defendants filed a Notice of Supplemental
Authority [Dkt. No. 45]. No response was filed. The Court is not
relying upon this last-minute submission by Defendants.
                                                     - 13 -
this case involves a challenge to a final administrative decision,

the      Court's       review         on    summary         judgment        is     limited       to     the

Administrative Record.                 Holy Land Found.                 for Relief and Dev.              v.

Ashcroft, 333 F.3d 156, 160 (D.C. Cir. 2003)                               (citing Camp v. Pitts,

411 U.S. 138, 142               (1973)); Richards v.                INS,    554 F.2d 1173, 1177

(D.C.     Cir.    1977)       ("Summary judgment is an appropriate procedure

for resolving a           challenge to a               federal agency's administrative

decision when review is based upon the administrative record.").

         Agency decisions under the Magnuson-Stevens Act and NEPA are

reviewed        pursuant        to     Section        706(2)        of     the     APA.     16    U.S.C.

§     1855 (f) (1) (B)        ("the    appropriate           court       shall    only set        aside"

actions        under     the     MSA        "on   a    ground       specified          in   [5    U.S.C.

§]    706(2) (A),      (B),    (C), or (D) .");Oceana, Inc. v. Locke, 670 F.3d

1238,     1240-41       (D.C.    Cir.        2011);    C     &    W Fish,        931 F.2d at 1562;

Oceana v.        Locke,       831 F.Supp.2d 95,              106,       2011 WL 6357795,           at *8

(D.D.C. 2011). In relevant part, 5 U.S.C.                           §    706(2) requires a court

to hold agency action unlawful if it is "arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law."

        The arbitrary and capricious standard of the APA is a narrow

standard of review.              Citizens to Preserve Overton Park,                              Inc.    v.

Volpe,     401 U.S.       402,        416    (1971).        It is well established in our

Circuit that the "court's review is .                                   highly deferential" and

"we are 'not to substitute [our] judgment for that of the agency'

but     must      'consider           whether         the        decision        was    based      on     a

                                                  - 14 -
    consideration of the relevant factors and whether there has been

a clear error of judgment.'" Bloch v. Powell, 348 F.3d 1060, 1070

    (D.C.    Cir.   2003)       (quoting S.       Co.    Servs.,        Inc.   v.   FCC,    313 F.3d

574, 579-80 (D.C. Cir. 2002)); see also United States v. Paddack,

    825   F.2d 504,       514     (D.C.    Cir.    1987).       However,       this    deferential

standard         cannot     permit        courts    "merely        to     rubber      stamp     agency

actions," NRDC v. Daley, 209 F.3d 747, 755 (D.C. Cir. 2000), nor

be        used   to   shield       the     agency's          decision      from     undergoing       a

"thorough, probing, in-depth review." Midtec Paper Corp. v. United

States, 857 F.2d 1487, 1499                   (D.C. Cir. 1988)             (internal citations

and quotations omitted).

            An agency satisfies the arbitrary and capricious standard if

it "examine[s] the relevant data and articulate[s] a satisfactory

explanation           for   its     action        including        a     'rational        connection

between the facts found and the choice made.'" Motor Vehicle Mfrs.

Ass'n v.         State Farm Mut. Auto.             Ins. Co.,           463 U.S.     29,    43   (1983)

    (quoting Burlington Truck Lines v.                       United States,         371 U.S.      156,

168 (1962) ); Lichoulas v. FERC, 606 F.3d 769, 775 (D.C. Cir. 2010).

Finally,         courts     "do    not     defer        to   the   agency's         conclusory      or

unsupported suppositions." McDonnell Douglas Corp. v. U.S.                                       Dep't

of the Air Force, 375 F.3d 1182, 1186-87 (D.C. Cir. 2004) . 4


4
  The purpose of a motion for summary judgment challenging final
agency action is "to test the agency action against the
administrative record." LCvR 7 (h). The Court must evaluate the
agency's decision on the basis of "the full administrative record
                                               - 15 -
III. ANALYSIS

     A.    Count I: Failure to Include River Herring and Shad Stocks
           in the MSB Fishery

           1.    The Government's Duty to Consider Adding Stocks to
                 the Fishery

     Plaintiffs contend that the Government violated the APA and

the MSA by refusing to add river herring and shad stocks to the

MSB fishery because NMFS's own data and analysis demonstrate that

the four species at issue are caught in the fishery and require

conservation    and    management.       The    Government     responds   with    a

variety of arguments as to why it refused to even consider addition

of river herring and shad stocks to the MSB fishery as part of

Amendment 14. The Government also contends on the merits that its.

decision   declining    to   add   new    stocks    to   the   fishery    was   not

arbitrary and capricious.

     The Government's first response to Plaintiffs' contention is

that the burden for assessing which stocks should be in a fishery

rests with the regional councils,              not NMFS.   But this Court has

previously rejected that argument. See Flaherty v. Bryson, 850 F.




that was before the Secretary at the time [she] made [her]
decision." Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402,
420 (1971), abrogated on other grounds by Califano v. Sanders, 430
U.S. 99 ( 1977) . In reviewing agency action, the district court
"sits as an appellate tribunal, not as a court authorized to
determine in a trial-type proceeding whether the Secretary's
[action] was factually flawed." Marshall Cnty. Health Care Auth.
v. Shalala, 988 F.2d 1221, 1225 (D.C. Cir. 1993).


                                     - 16 -
Supp. 2d 38, 54         (D.D.C. 2012)     ("it is       [NMFS's]       responsibility to

decide whether an FMP, including the composition of its fishery,

satisfies the goals and language of the MSA."                         (internal citation

omitted)) .

       Al though    amendments    to     fishery    management          plans    originate

with     the    regional    fisheries      management           councils,       16    u.s.c.
§   1852 (h) (1),   ultimate     responsibility           for    the    details       of   any

amendment -- including the decision to add certain stocks to a

fishery    --   rests    with NMFS.      Flaherty,        850    F.    Supp.    2d at      54.

Regardless of what the Council recommends, "NMFS must make its own

assessment      of whether     the     Council's        determination as         to    which

stocks    can   be managed as        a   unit     and    require       conservation        and

management 5 is reasonable." Id. at 55 (citing Motor Vehicle Mfrs.

Ass'n, 463 U.S. at 52).

       The Government does not dispute that river herring and shad

could be managed as a unit along with the mackerel,                             squid,     and



5  See 16 U.S.C § 1802 (5), which provides that "[t]he term
 'conservation and management'    refers to all of the rules,
regulations, conditions, methods, and other measures (A) which are
required to rebuild, restore, or maintain, and which are useful in
rebuilding, restoring, or maintaining, any fishery resource and
the marine environment; and (B) which are designed to assure that-
- (i) a supply of food and other products may be taken, and that
recreational benefits may be obtained~ on a continuing basis; (ii)
irreversible or long-term adverse effects on fishery resources and
the marine environment are avoided; and (iii) there will be a
multiplicity of options available with respect to future uses of
these resources."



                                         - 17 -
butterfish.        The ultimate question for the Court. is whether the

Government's decision refusing to add river herring and shad stocks

to     the   MSB    fishery   was   "arbitrary,   capricious,      an    abuse    of

discretion, or otherwise not in accordance with law." 5 U.S.C.                     §

706.

        Second,     the   Government   contends   that    it    need     not   have

considered whether to add new stocks to the fishery because the

Council would be considering it as part of Amendment 15. However,

it is well established that promises of future compliance with the

law cannot satisfy the Government's current legal obligation. See

Conservation Law Found. v. Evans,           209 F.    Supp.    2d 1,    10   (D.D.C.

2001); see also Oceana,         Inc. v.   Pritzker,   24 F. Supp.       3d 49,    62

(D.D.C. 2014); Oceana v. Locke, 831 F. Supp. 2d 95, 121-22 (D.D.C.

2011) . Thus,      if the Court were to conclude that,           based upon the

Administrative Record compiled for Amendment 14, the MSA requires

the addition of river herring and shad stocks to the MSB fishery,

the Government cannot escape Plaintiffs' challenge with the mere

promise to consider the issue as part of a future amendment. 6



6  The Government also notes that in a related case dealing
exclusively with Amendment 15 this Court held that Plaintiffs could
not challenge the Council's failure to proceed with that Amendment.
The Government asserts that "[t]he Court should decline to permit
Plaintiffs to circumvent the Court's previous decision by granting
them the relief they could not obtain in the Amendment 15 case."
Gov't's Reply at 14 (citing Anglers Conservation Network v.
Pritzker, 70 F. Supp. 3d 427, 440 (D.D.C. 2014)). However, despite
the Government's assertions, the opinion the Government cites
sheds no light on whether Plaintiffs may obtain the relief they
                                       - 18 -
       Third, the Government also argues that it need not complete

a    wholesale     review of which     stocks       should be   in a   particular

fishery with each amendment to that                 fishery's management plan.

Gov't's Mot. at 32         (citing Oceana, Inc. v. Pritzker, 24 F. Supp.

3d 49,     63   (D.D.C. 2014); Pacific Coast Federation of Fishermen's

Associations v. Blank, 693 F.3d 1084, 1102, n.15 (9th Cir. 2012)).

It    is   true,     as   Judge   Contreras    in    this   District   Court   has

recognized,        that "[i]f the    [Government]     were required to make a

wholesale reconsideration of which stocks to include in the fishery

every time it amends an FMP,           the delay [caused by the amendment

review process] would be much greater." Oceana, Inc. v. Pritzker,

24 F. Supp. 3d 49, 64         (D.D.C. 2014).

       Although not every single FMP amendment gives rise to a duty

to consider a wholesale review of which stocks should be added to

the fishery,       consideration of certain amendments would logically

include such a duty.         It is black letter law that an agency acts

arbitrarily and capriciously when it "entirely fail[s] to consider

an important aspect of the problem." Motor Vehicle Mfrs. Ass' n,

463 U.S. at 43. The Council initially took up Amendment 14 in order

to consider whether "the management framework then in place [was]




seek in this action. Plaintiffs could not obtain relief in Anglers
Conservation Network, 70 F. Supp. 3d at 440, because they failed
to identify "a discrete agency action that [the Government was]
required to take." In this action, by contrast, Plaintiffs
challenge final agency action: Amendment 14.
                                      - 19 -
insufficient to manage [river herring and shad]." Gov't's Mot. at

15 (citing AR 12724); see also 78 Fed. Reg. 53404 (Council adopted

Amendment 14, among other reasons, "to address incidental catch of

river herring and shad").

     Plaintiffs respond that because the management of shad and

river herring stocks was a central concern of Amendment 14, failing

to give even a       nod to the obvious possibility of adding these

species to the MSB fishery was arbitrary and capricious. However,

despite the Government's contention that it had no duty to consider

adding stocks to the fishery, the Government did, in fact, consider

adding the       river    herring and        shad stocks        to   the MSB       fishery.

Moreover,    the     Government        documented       its   views        in    its   Draft

Environmental Impact Statement ("DEIS"). AR at 8373. See, infra.

     In its final argument,                the Government next argues that the

Court should not reach the merits of the stocks-in-the-fishery

question because Plaintiffs have not petitioned NMFS to add river

herring and shad to the fishery under 5 U.S.C. § 553(e). However,

5 U.S.C. § 704 provides that "[a]gency action made reviewable by

statute    and    final       agency   action     for   which      there    is    no   other

adequate    remedy       in    a   court    are   subject     to     judicial     review."

Amendment 14 falls within §704's reach.                  16 U.S.C. § 1855(f). The

Government cites no authority for the proposition that Plaintiffs

were required to petition NMFS in order to challenge Amendment 14.




                                           - 20 -
Accordingly,          Plaintiffs'     failure   to    submit   such     a    petition     is

irrelevant.

                2.      The Government's Decision          Rejecting Addi ti on           of
                        Stocks to the Fishery

       Plaintiffs contend that the Government's failure to add the

stocks     to    the    fishery     was   "arbitrary,    capricious,         an   abuse   of

discretion,          or otherwise not in accordance with law." 5 U.S.C.                    §


706(2).

      Citing 16 U.S.C. § 1852 (h) (1)               and Flaherty,     850 F. Supp. 2d

at 54-55,       Plaintiffs contend that all stocks that can be managed

in a fishery and require conservation and management must be added

to a fishery under an FMP. The Government disagrees, arguing that

the MSA affords NMFS discretion as                   to whether stocks            requiring

conservation and management must be included in an FMP,                           and that

stocks are required to be added to a fishery only when they are

overfished or approaching an overfished condition. Gov't's Mot. at

32 n. 13 (citing 16 U.S.C. § 1854(e)); Gov't's Reply at 15.

      This Court has already considered and ruled on these issues.

In   Flaherty,        the   Court   rejected the Government's               "overfishing"

standard,       stating clearly that while "[i]t is true that the MSA

requires    management measures            when NMFS     finds    overfishing [, J it

certainly does not follow that in the absence                    o~   overfishing NMFS

may simply rubber stamp the Council's decisions." 850 F. Supp. 2d

at 54.


                                           - 21 -
     The Court went on to hold that the MSA requires that any

stocks requiring the conservation and management provided by an

FMP must be placed under one. See Flaherty 850 F. Supp. 2d 38, 54-

55 (D.D.C. 2012)        (holding that NMFS must "ensur[e] compliance with

Section 1852(h)'s requirement that the Council prepare an FMP or

amendment for any stock of fish that requires conservation and

management").     The Court reasoned that:

     Section [1852(h)] requires FMPs and necessary amendments
     for all stocks of fish which can be treated as a unit for
     purposes of conservation and management and which are in
     need of conservation and management. Thus, NMFS must make
     its own assessment of whether the Council's determination
     as to which stocks can be managed as a unit and require
     conservation and management is reasonable.

     There is no basis for concluding, as [the Government
     does], that the structure of the MSA weakens Section
     1854's command that NMFS review proposed plans and
     amendments for compliance with the statute. The standards
     to be applied in reviewing NMFS' s conclusion that [an
     amendment] complies with Section 1852(h) are therefore
     no different than review of NMFS' s conclusion that an
     amendment complies with the National Standards.

Flaherty,   850    F.     Supp.   2d   at   54-55   (internal   citations   and

quotation marks omitted) . 7




7 The Government relies heavily upon a recently published opinion
from the U.S. District Court for the District of Alaska to support
its contention that the MSA is ambiguous as to "whether all stocks
that have conservation and management needs must be added to a
federal fishery management plan." See Gov' t' s Reply at 14-17
(citing United Cook Inlet Drift Assoc. v. National Marine Fisheries
Service, No. 13-104 (D. Ak. Sept. 5, 2014)). This decision is not
binding on this Court, and the Court declines to follow it.
                                       - 22 -
       As noted earlier, the Government does not dispute that river

herring      and     shad      stocks      can be        treated     as        a   unit       along with

mackerel stocks for the purposes of conservation and management,

which is to say that the Government has not disputed that river

herring and shad could be added to the MSB fishery. See 16 U.S.C.

§   1802(13)       (defining "fishery" as "one or more stocks of fish which

can    be    treated        as    a     unit      for    purposes         of       conservation         and

management and which are identified on the basis of geographical,

scientific, technical, recreational, and economic characteristics;

and    []    any    fishing       for    such        stocks.") . · Accordingly,                 the    only

question is whether river herring and shad require the conservation

and   management         measures          that      inclusion       in    the          MSB   FMP     would

provide.

       The     Government             contends       that    the     Administrative                 Record

prepared for Amendment 14 "did not demonstrate that herring/shad

required       conservation             and    management           under          an     MSA    fishery

management         plan."      Gov' t' s      Mot.      at   33     (emphasis           in    original) .

Plaintiffs disagree, arguing that "[t]he best available scientific

information         in   the      [A] dministrati ve          [R] ecord demonstrates                   that

river herring and shad need conservation and management, that catch

in federal fisheries has contributed to their decline,                                          and that

their addition as                stocks managed in                the plan         is    necessary to

conserve and manage them[.]" Pls.' Reply at 13.



                                                  - 23 -
           As already noted,    supra at p.         7, the current status of the

    four species of river herring and shad is not entirely clear from

    the data available.        Plaintiffs note that a variety of factors

    have caused declines in the river herring and shad populations.

    See AR 8389-92,      10436-39,     13498. Among other things,         Plaintiffs

    point to a report from May 2012, stating that "[o]f the 52 stocks

    of alewife and blueback herring for which data were available, 23

    were     depleted   relative      to   historic     levels,     one   stock   was

    increasing,    and the status of 28 stocks could not be determined

because the time-series of available data was too short." Atlantic

    States    Marine    Fisheries     Commission     Stock   Assessment    Overview:

River        Herring,   AR   10438.     Furthermore,     "the     Protected   Special

Division of NMFS designated river herring as a 'species of concern'

in 2006." Pls.' Mot. at 11 (citing 71 Fed. Reg. 61,022). s

           However, the Administrative Record also contains significant

positive information about the well-being of river herring and

shad stocks. Sources in the Record demonstrate that the coast-wide

population of blueback herring growth rate is stable. 78 Fed. Reg.

48,944, 48,992. With respect to alewife, at least three contiguous

populations are stable to significantly increasing. Id. The coast-

wide trajectory for alewife is significantly increasing, and all




8
  In other words, reliable data could not be obtained for more
than half of the 52 stocks.


                                           - 24 -
of the stock complexes are stable or significantly increasing. Id.

When the Mid-Atlantic Fishery Management Council set out to study

32 stocks of hickory shad in 2012,           it found that 11 stocks were

depleted relative to historic levels, two were increasing, and 11

were stable. AR 12924. The Council concluded it lacked sufficient

information to reach any conclusions about eight of the 32 stocks.

Id.

       In further support of its position that herring/shad do not

require   conservation     and   management     in     the   MSB   fishery,    the

Government points out that materials Plaintiffs cite to show that

river herring in the Mid-Atlantic are overfished relate to state,

not federally, managed waters. See AR 7838, 7975-76. The Government

also   notes   NMFS   findings   that   dams    and barriers,       rather    than

fishing in federally-managed f isherie.s,            are "the most important

threat" to river herring,        78 Fed. Reg.    48,970, and contends that

bycatch in federally managed fisheries has not been shown to have

a strong connection to the amount of shad stocks,                  AR 8335.   The

Government also points to state and federal actions to address

these problems, including a herring bycatch avoidance program and

state fishery management plans and fishing moratoria,                 that make

conservation    and   management     measures     in    an   FMP   unnecessary.

Gov't's Mot. at 16-18      (citing 79 FR 10,029 at 10,034); id. at 23

(58 Fed. Reg. 44,190).




                                    - 25 -
      As the Draft Environmental Impact Statement summarizes, "the

uncertainty regarding the current factors causing [river herring

and shad] populations to remain in a depressed state means that it

is   difficult         to     identify specific causes                 and link remedies            to

specific outcomes. Given this, the extent of benefits from adding

[river herring and shad] as stocks in the fishery is very difficult

to   quantify          even    though       impacts       are    likely      to       be   positive."

AR 8267.

      Plaintiffs' burden is to show that NMFS acted arbitrarily or

capriciously in determining that river herring and shad are not in

need of conservation and management measures provided by an FMP.

In light of the evidence just cited,                            as well as the uncertainty

and lack of reliable data as to why and how the river herring and

shad populations have declined, it cannot be said that Defendants

have been arbitrary and capricious in making their decision.

      In    the        face    of    such    uncertainty,             the   Government        is   not

obligated to add stocks to the fishery simply because the "impacts

[of doing so] are likely to be positive." Id. An agency need only

"examine         the     relevant         data     and      articulate            a     satisfactory

explanation        for        its    action      including        a     'rational          connection

between the facts found and the choice made.'" Motor Vehicle Mfrs.

Ass'n,     463    U.S.        at    43.   NMFS    has     done    so,       and       therefore,   the

Government must prevail on Count I.




                                                 - 26 -
        B.      Count II: Monitoring      and    Accountability        Measures    to
                Prevent Overfishing

        Plaintiffs' second objection to Amendment 14 is that it fails

to include sufficient monitoring and accountability measures to

prevent overfishing of river herring and shad stocks in the MSB

fishery. They contend that by failing to approve specific observer

coverage levels recommended by the Council, NMFS has violated MSA

provisions codified at 16 U.S.C.            §§   1851 (a)    and §§ 1853 (a)      and

acted arbitrarily and capriciously.

        1.      The Government's Rejection of 100% Observer Coverage

        As part of Amendment 14,      the Council recommended that NMFS

mandate the placement of an observer on every small mesh bottom

trawl mackerel trip in the MBS fishery (referred to by the Parties

as     "100%     observer   coverage").     Plaintiffs        assert     that     the

Government should have approved the 100% observer coverage plan,

which would have been funded through "cost sharing" (i.e., dividing

the     costs     of   coverage   between       NMFS   and    fishing     industry

participants). The Government responds that the Council's proposal

would have violated federal statutes outside of the MSA framework,

in contravention of 16 U.S.C. § 1853(a) (1) (C)'s requirement that

provisions of fishery management plans "shall [be] consistent with

     . . any other applicable law[.]"

       NMFS objected to the 100% observer coverage recommendation

because it would have obligated the agency to make future outlays


                                    - 27 -
for observer coverage beyond what Congress has allocated and to

augment its budget by accepting fees from the fishing industry.

This,        the   Government       contends,      would        violate          the     following

statutes: the Anti-Deficiency Act,                     31 U.S.C.      §       1341(a) (1), which

prohibits federal officers from making expenditures or authorizing

obligations         that       exceed      Congressional             appropriations;             the

Miscellaneous           Receipts       Statute,    31     U.S.C.          §     3302(b),      which

requires government officials to deposit money received on behalf

~f    the United States in the Treasury not the particular agency;

and     18    U.S.C.    §    209,   which prohibits            the    payment          of    federal

employees' salaries from non-governmental sources.

        The Administrative             Record amply documents                  NMFS' s      concerns

about the cost-sharing proposal,                   e.g.,       AR Emails 14142,               13187,

13598,        13375,     and    Plaintiffs        do     not    directly           contest       the

Government's arguments based on the statutes named above.9

        Instead,       Plaintiffs contend that the Government's concerns

about        unfunded       mandates    are     inapposite        because          the      Council

intended that the fishing industry would pay the entire cost of

100% observer coverage. However, the Administrative Record shows


9 Plaintiffs do note that the Government has engaged in "cost
sharing" programs with industry participants in other fisheries in
order to provide higher observer coverage levels. However, the
Government points out     that those programs were expressly
authorized by statute for particular fisheries only. See 16 U.S.C.
§  1862 (authorizing, under MSA § 313, a system of fees for
observers in North Pacific fisheries).


                                              - 28 -
 that the Council intended that industry participants would pay

 $325 per day toward the cost of an observer, whereas the actual

 cost for an observer can be more than double that amount. AR 11255,

 11575, 13735, 14144.

      For      these     reasons,     the    Court     concludes    that    NMFS' s

 disapproval of the Council's 100% observer coverage proposal was

 not arbitrary, capricious, or contrary to law. 10

               2.     Standardized Bycatch Reporting Methodology

      Observers placed onboard fishing vessels                to monitor their

. compliance    with     applicable   laws   and     regulations   are   generally

allocated in accordance with the Standardized Bycatch Reporting

Methodology         ("SBRM")   Omnibus Amendment.      Plaintiffs contend that

because NMFS declined to adopt the Council's recommendation, the

level of observer coverage in the MSB will be so low as to violate

the MSA.    Plaintiffs'        contention relies,      in part,    upon the fact

that at that time,         the SBRM inadequately allocated observers to

the MSB fishery.

      Our Court of Appeals has already found the SBRM to be unlawful

and has remanded it to NMFS for further consideration.                     Oceana,




10 For the first time in their Reply, Plaintiffs note that, having
disapproved of the Council's observer coverage proposal, the
Secretary failed to make specific recommendations for improvement
as called for by 16 U.S.C. § 1854 (a) (3) (C). The Court need not
address this because an argument not raised in an opening brief is
forfeited. Fox v. Gov't of D.C., No. 14-7042, 2015 WL 4385290, at
*3 (D.C. Cir. July 17, 2015).
                                       - 29 -
Inc. v. Locke, 670 F.3d 1238, 1243 (D.C. Cir. 2011).                      Accordingly,

to the extent that Plaintiffs' contentions actually challenge the

methodology of the SBRM, the Court shall decline to consider them,

given the Court of Appeals'              remand to NMFS.      See Oceana,        831 F.

Supp. 2d at 114 ("No matter the grounds for [plaintiff's] present

challenge to the Multispecies FMP's standardized bycatch-reporting

methodology, this Court can provide no further relief because the

SBRM Amendment has already been remanded.").

      However,       it would appear        that   Plaintiffs       are    not   without

remedy with respect to the validity of the SBRM. As Judge Contreras

stated in Oceana, "[t]o the extent Plaintiffs subsequently believe

the   standardized bycatch-reporting methodology                    that    eventually

results     from     []    remand   is    inadequate,      [they]    will    have     the

opportunity to challenge it at a future date." Id.

                3.   Observer Coverage and Production of Reliable Data

      Not all of Plaintiffs'             challenges to the level of observer

coverage in the fishery are based upon NMFS's denial of the 100%

coverage scheme or objections to the SBRM methodology which is no

longer     in    effect.    Plaintiffs     also    argue   that     the    elements    of

Amendment 14 that the Government did adopt are -- without the 100%

observer coverage -- insufficient to meet its obligations under

the MSA.

      Plaintiffs contend that the MSA's National Standard 2, which

states that "[c]onservation and management measures shall be based

                                          - 30 -
upon     the       best     scientific       information            available,"         16     U.S.C.

§     185l(a) (2),        requires        NMFS    to     "deploy       sufficient            observer

coverage to provide statistically reliable data," Pls.' Reply at

4 (citing Oceana, Inc. v. Evans, No. 04-08ll(ESH), 2005 WL 555416,

at *40 (D.D.C. 2005)); Oceana, 670 F. 3d at 1239. 11 While Plaintiffs

admit that "the MSA does not require specific observer coverage

levels," Pls.' Reply at 4, they argue that current observer levels

are insufficient to produce statistically reliable data.

        Plaintiffs         misconstrue           National       Standard     2.              National

Standard 2 requires NMFS to base "[c]onservation and management

measures . . . upon the best scientific information available[.]"

16 U.S. C.     §   18 51 (a) (2)     (emphasis added) . "[NMFS must] utilize the

best    scientific          data    available,         not    the    best   scientific           data

possible." The Ocean Conservancy v.                          Gutierrez,     394    F.     Supp.    2d

147, 157       (D.D.C. 2005) aff'd sub nom. Oceana, Inc. v. Gutierrez,

488    F.3d 1020          (D.C.    Cir.   2007)     (quoting Bldg.          Indus.       Ass'n of

Superior California v.                Norton,      247    F.3d 1241,        1246        (D.C.    Cir.

2001)).




11 Neither of the two cases from this circuit that Plaintiffs cite
actually support    their proposition that the MSA requires
sufficient observers to generate statically reliable data. The
sections of each case that Plaintiffs cite discuss the data-
collection goals of particular rules promulgated by NMFS rather
than requirements of the MSA. See Oceana v. Evans, 2005 WL 555416,
at *40; Oceana, 670 F. 3d at 1239.


                                             - 31 -
        Section       1851(a) (2)      "'does      not       mandate       any     affirmative

obligation on [NMFS'] part' to collect new data." Massachusetts v.

Pritzker,       10    F.    Supp.     3d    208,   220       (D.   Mass.      2014)    (quoting

Commonwealth of Mass.               by Div.    of Marine Fisheries v.                 Daley,    10

F.Supp.2d       74,    77    (D.    Mass.     1998)).        Indeed,    National       Standard

Guidelines acknowledge that NMFS might often have "insufficient

data" in fisheries and provide guidance on how to proceed.                                 See,

e.g., 50 C.F.R.        §§   600.310 (e) (iv),         (g) (2), (4) and (1) (1) . 12

        Plaintiffs also contend that current observer coverage levels

violate     §    1853(a) (ll)'s            requirement        that     NMFS      "establish      a

standardized reporting methodology to assess the amount and type

of bycatch occurring in the fishery[.]" At its core, this argument

attacks the SBRM, which as noted above, is already on remand and

thus,    is beyond this Court's review. Oceana,                        831 F.     Supp.   2d at

114.

        Plaintiffs argue that "it' was arbitrary and capricious to

reject    the measures         that the        Council developed to provide                    the

Secretary with reliable estimates of catch when it has a mandatory

duty to provide them under 16 U.S.C.                     §   1853(a) (5) ." Pls. Mot. at




12 Plaintiffs rely on a slip opinion from the U.S. District Court
for the District of Alaska. See The Boat Company v. Pritzker, No.
12-cv-0250-HRH slip op. at 33 (D. Alaska, Aug. 6, 2014). That case
is inapposite because it construes a statute applicable only to
North Pacific fisheries. See 16 U.S.C. § 1862 (b) (1) (A) (requiring
the North Pacific Council to ensure plans and plan amendments are
reasonably calculated to "gather reliable data") .
                                             - 32 -
29.   Section 1853 (a) (5)      merely requires that FMPs "specify the

pertinent data which shall be submitted to the Secretary .

including, but not limited to . . . catch by species in numbers of

fish or weight thereof[.]" Id. On its face§ 1853(a)(5) does not

give rise to any duty to collect additional data through increased

observer coverage.

      Finally,     Plaintiffs        argue     that   without     significantly

increasing observer coverage, NMFS will be unable to "establish a

mechanism for specifying annual catch limits in the plan .                  . at

a level such that overfishing does not occur in the fishery . . .

including measures to ensure accountability" as                 required by 16

U.S.C. § 1853(a) (15).

      However,    regulations       implementing the MSA already        clearly

contemplate      the   possibility      that     annual   catch    limits    and

accountability measures might have to be accepted on the basis of

limited data.     50   C.F.R.   §    600.310(g) (4)   ("Some    fisheries   have

highly variable annual catches and lack reliable inseason [sic] or

annual data on which to base [accountability measures].               If there

are insufficient data upon which to compare catch to [annual catch

limits], either in season or on an annual basis,                [accountability

measures] could be based on comparisons of average catch to average

[annual catch limits]      over a      three-year moving average.");         see

also id.§ 600.310(g)(2).




                                      - 33 -
        In summary, the Government has reasonably concluded that the

 Council's observer coverage proposal would violate applicable law,

 and Plaintiffs have failed to show that NMFS is legally required

 to    produce      more   abundant    data     by    way      of    increased       observer

 coverage. Accordingly, the Court concludes that the Government has

 not    been     arbitrary     and    capricious        in     rejecting          Plaintiffs'

 challenge to Amendment 14's lack of additional observer coverage

must fail.     13


        C.     Count III: The National Environmental Policy Act

        Plaintiffs contend that the Government failed to adequately

consider the         environmental      impact       of failing to add the              river

herring and shad stocks to the fishery.

        It has long been established that NEPA requires agencies to

"take a 'hard look' at the environmental consequences before taking

a major action." Baltimore Gas & Elec. Co., 462 U.S. at 97 (1983)

 (internal     citations omitted) .          To comply with this              requirement,

agencies       contemplating        major     policy     proposals,          must     prepare

Environmental         Impact       Statements        ("EIS")        that     "present     the

environmental        impacts   of     the    proposal    and the           alternatives      in

comparative form,          thus sharply defining the issues and providing

a clear basis for choice among options by the decisionmaker and

the public." 40 C.F.R.         §    1502.14; see also 42 U.S.C.               §   4332(C).


13
    Again, the fact that SBRM is on remand limits the Court's
ability to address this issues.
                                            - 34 -
     The   EIS    must    be   "evaluated       in        light    of    [its    reasonably

identified and defined]           objectives;         an alternative is properly

excluded from consideration in an environmental impact statement

only if it would be reasonable for the agency to conclude that the

alternative does not 'bring about the ends of the federal action. '"

City of Alexandria, Va. V .. Slater, 198 F.3d 862,                        867    (D.C. Cir.

1999).

     Plaintiffs' principal objection to the Government's final EIS

is that NMFS should have included at least one policy alternative,

of the four it chose, that would have analyzed the effect of not

immediately      adding   river    herring          and    shad    stocks       to   the    MSB

Fishery.   They argue that without analysis or explanation, NMFS

rejected   the    possibility      of       giving    a     "hard       look    to   see    the

consequences     of    including    the       stocks       in     the   MSB     as   part    of

Amendment 14."        Pls.' Mot. at 43.

     The Government argues           that      it had no. legal obligation to

consider the alternative of not immediately adding river herring

and shad to the MSB Fishery.                The four alternatives which were

chosen by NMFS simply cannot satisfy the Government's obligation

to consider the impacts of refusing to add river herring and shad

to the fishery, especially given the fact that the 2011 statutory

deadline was not being met.




                                        -    35 -
     Amendment 14 fails to take a hard look at the environmental

impacts of its composition of the fishery by failing to analyze a

reasonable range of alternatives.                Those alternatives should have

included the immediate addition of river herring and shad as stocks

with temporary conservation and management measures as proxies for

status    determination       criteria     and    other measures     necessary    to

prevent overfishing and conservation of the species.


     NEPA requires an agency to explore and objectively evaluate

a reasonable range of alternatives and the associated impacts on

the environment.        42 U.S.C.   §    4332 (C).   See also Flaherty, 850 F.

Supp.2d at 71.     A key objective of Amendment 14 was to consider

adding river herring and shad to the MSB Fishery,                    in order to

prevent    overfishing.         Given     that     objective,   it   is    hard   to

understand why the Government, which is statutorily obligated to

consider an adequate range of alternatives in the EIS,                    failed to

include the alternative of adding river herring and shad to the

stocks.


     Moreover,     it    is    striking      that    NMFS   never    provided     an

explanation of why it did not consider the alternative of adding

river herring and shad when such consideration would clearly have

brought about the "ends of the federal action."

     In Flaherty, this Court emphasized that "[a] central function

of NEPA's requirements is for the agency to consider environmental

                                        - 36 -
impacts '[b]efore approving a project,'" not after the damage is

done. 850 F.2d at 72 (emphasis added).              Instead of even considering

the environmental impact of not including river herring and shad

in the MSB Fishery, Defendants pushed the issue off to Amendment

15,    thereby delaying even further consideration of a reasonable

alternative which had long been sought by many members of the

public.        "Agency      determinations        about       EIS        requirements     are

supposed to be 'forward-looking,'" not action to simply postpone

consideration of relevant alternatives.                   Foundation on Economic

Trends v. Heckler, 756 F.2d 143, 158 (D.C. Cir. 1985).

       Consequently, the Court concludes that Final Rule 14 violates

NEPA    and    the    APA   by   failing   to     take    a     "hard       look"   at    the

environmental impacts of its definition of the fishery, by failing

to     analyze       the    reasonable     alternative              of     examining      the

environmental impact of not adding the river herring and shad to

the fishery, and by failing to consider the direct, indirect, and

cumulative impacts of its decision in the accompanying EIS.


                                     CONCLUSION


       In summary, the Court has concluded that as to Count 1 - the

failure   to     include     river   herring      and    shad       stocks    in    the   MSB

fishery, and as to Count 2 - monitoring and accountability measures

to prevent overfishing -- the Government has not violated either

the MSA or the APA for the reasons spelled out in Sections A and


                                         - 37 -
B,   supra.    However,   as to Count 3 -   the National Environmental

Policy Act    -~   the Court concludes that the Government has failed

to comply with NEPA and the APA because it has not taken a "hard

look" at all of the ramifications from failing to consider the

impact of not immediately including river herring and shad in the

MSB fishery.


      A separate Order accompanies this Memorandum Opinion.




                                  Gladys Kessler
                                  United States District Judge


Copies via ECF to all counsel of record




                                  - 38 -
