                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

OCEANA, INC.,                                :
                                             :
       Plaintiff,                            :          Civil Action No.:      11-1896 (RC)
                                             :
       v.                                    :          Re Document Nos.:      36, 37, 38
                                             :
PENNY PRITZKER, in her official capacity as :
Secretary of the United States Department of :
Commerce, et al.,                            :
                                             :
       Defendants.                           :
                                             :
       and                                   :
                                             :
FISHERIES SURVIVAL FUND,                     :
                                             :
       Intervenor–Defendant.                 :

                                 MEMORANDUM OPINION

                  DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT;
           GRANTING FEDERAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; AND
           GRANTING INTERVENOR–DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

                                     I. INTRODUCTION

       Plaintiff Oceana, Inc. (“Oceana”) has filed this suit against Defendants Penny Pritzker, in

her official capacity as Secretary of Commerce,1 the National Oceanic and Atmospheric

Administration (“NOAA”), and the National Marine Fisheries Service (“NMFS”) (collectively,

“Federal Defendants”). Oceana alleges that the Mid-Atlantic Fishery Management Council

Omnibus Amendment to Implement Annual Catch Limits (ACLs) and Accountability Measures

(AMs), 76 Fed. Reg. 60,606 (Sept. 29, 2011) (codified at 50 C.F.R. pt. 648 (2013)) (A.R. 5197–

       1
        Secretary Pritzker is substituted for John Bryson pursuant to Federal Rule of Civil
Procedure 25(d).
213) (the “Omnibus Amendment”), violates the Magnuson–Stevens Fishery Conservation and

Management Act (“MSA”), the National Environmental Policy Act (“NEPA”), and the

Administrative Procedure Act (“APA”). The Court has allowed the Fisheries Survival Fund

(“FSF”) to join the suit as Intervenor–Defendant.

       This matter is now before the Court on the parties’ cross-motions for summary judgment.

For the reasons set forth below, the Court denies Oceana’s motion for summary judgment and

grants Defendants’ motions for summary judgment.


                                      II. BACKGROUND

                                   A. Statutory Background

                                 1. The Magnuson–Stevens Act

       In 1976, in balancing the environmental interests in preventing overfishing and the loss of

marine habitat against the often competing economic interests of the United States’ fishing

industry, Congress enacted the Magnuson–Stevens Fishery Conservation and Management Act,

Pub. L. No. 94-265, 90 Stat. 331 (1976) (codified as amended at 16 U.S.C. §§ 1801 et seq.

(2012)). The MSA established eight regional councils (the “Councils”), which are charged with

the duty of drafting fishery management plans (“FMPs”) for each fishery under their control.

See 16 U.S.C. § 1852(a)(1), (h)(1) (2012).

       The required components of FMPs are set forth in Section 1853(a) of the MSA. See id.

§ 1853(a). FMPs proposed by the Councils, and any regulations promulgated to implement

FMPs, must also be consistent with the MSA’s ten “National Standards” for fishery conservation

and management. See id. § 1851(a). The MSA requires that the Secretary of Commerce

establish advisory guidelines (the “Guidelines”) to assist in the development of FMPs based on

the National Standards, but provides that the Guidelines do not have the force of law. See id.


                                                2
§ 1851(b). NMFS has promulgated a set of Guidelines interpreting the ten National Standards,

and has amended the Guidelines over time to keep pace with various changes to the MSA itself.

See 50 C.F.R. §§ 600.305–.355 (2013); see also, e.g., NS1 Guidelines Final Rule, 74 Fed. Reg.

3178 (Jan. 16, 2009) (codified as amended at 50 C.F.R. pt. 600 (2013)) (A.R. 102–38) (revising

the Guidelines based on the 2007 amendments to the MSA).

       In 2007, Congress amended the MSA by enacting the Magnuson–Stevens Fishery

Conservation and Management Reauthorization Act of 2006, Pub. L. No. 109-479, 120 Stat.

3575 (2007) (“MSRA”). The amendment included a new required provision for all FMPs,

mandating that FMPs “establish a mechanism for specifying annual catch limits . . . at such a

level that overfishing does not occur in the fishery, including measures to ensure accountability.”

See id. sec. 303(a), § 104(a)(10), 120 Stat. at 3584 (codified at 16 U.S.C. § 1853(a)(15)).

“Overfishing” is defined in the MSA as “a rate or level of fishing mortality that jeopardizes the

capacity of a fishery to produce the maximum sustainable yield on a continuing basis.” 16

U.S.C. § 1802(34) (2012). Maximum sustainable yield (“MSY”), in turn, is “the largest long-

term average catch or yield that can be taken from a stock or stock complex under prevailing

ecological, environmental conditions . . . .” 50 C.F.R. § 600.310(e)(1)(i)(A). Congress

mandated that NMFS comply with the new requirement by fishing year 2010 for fisheries that

were subject to overfishing, and by fishing year 2011 for all other fisheries. See MSRA

§ 104(b), 120 Stat. at 3584 (codified at 16 U.S.C. § 1853 note).

       Before bringing the FMPs themselves into compliance with the MSA’s new

requirements, NMFS first updated the Guidelines to set forth the Secretary’s interpretation of the

new requirements in light of the National Standards. Most of the regulations relevant to the

instant dispute relate to National Standard 1 (“NS1”), which provides that “[c]onservation and




                                                 3
management measures shall prevent overfishing while achieving, on a continuing basis, optimum

yield from each fishery for the United States fishing industry.” 16 U.S.C. § 1851(a)(1).

Optimum yield (“OY”) is defined as the amount of fish that “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 . . . .” Id. § 1802(33)(A). OY is less

than or equal to the MSY. See 50 C.F.R. § 600.310(b)(2)(i).

       As amended, the NS1 Guidelines set forth an overview of the components the Councils

must, should, or may apply in complying with the MSA’s new mandate. According to the NS1

Guidelines, the overfishing limit (“OFL”) for a given stock is “an estimate of the catch level

above which overfishing is occurring.” Id. § 600.310(e)(2)(i)(D). It is set by first determining

the annual rate of fishing mortality above which overfishing will occur for a particular stock,

known as the maximum fishing mortality threshold (“MFMT”), see id. § 600.310(e)(2)(i)(C),

and then applying the MFMT to the stock’s total size, see id. § 600.310(e)(2)(i)(D). To serve the

goal of preventing the OFL from being exceeded, the Guidelines provide for the computation of

acceptable biological catch (“ABC”), which is a reduced version of the OFL that accounts for

scientific uncertainty in the estimation of the OFL. See id. § 600.310(f)(2)(ii). “Examples of

scientific uncertainty include uncertainty in the estimates of MFMT and biomass.” Id.

§ 600.310(f)(1).

       At the center of this regime is the annual catch limit (“ACL”), which is a level of annual

catch at or below the stock’s ABC. See id. § 600.310(f)(2)(iv). The ACL is enforced by

accountability measures (“AMs”), which are in-season and post-season measures to prevent the

ACL from being exceeded, or to initiate corrective measures in the event that ACL is exceeded




                                                 4
in a given fishing year. See id. § 600.310(g). FMPs must contain ACLs and AMs for all

managed stocks of fish in the fishery. See id. § 600.310(c), (h).

       Another important component of fishery management is the problem of “bycatch”—that

is, “fish which are harvested in a fishery, but which are not sold or kept for personal use . . . .”

16 U.S.C. § 1802(2). Under the Sustainable Fisheries Act, Pub. L. No. 104-297, 110 Stat. 3559

(1996), an earlier amendment to the MSA, NMFS was required to “establish a standardized

reporting methodology to assess the amount and type of bycatch occurring in the fishery . . . .”

Id. sec. 303(a), § 108(a)(7), 110 Stat. at 3575 (codified at 16 U.S.C. § 1853(a)(11)). NMFS most

recently amended the Northeast region’s standardized bycatch reporting methodology in an

omnibus amendment, see Northeast Region Standardized Bycatch Reporting Methodology

Omnibus Amendment, 73 Fed. Reg. 4736 (Jan. 28, 2008) (codified at 50 C.F.R. pt. 648 (2013))

(the “SBRM Amendment”), but the D.C. Circuit ordered that the regulation be vacated and

remanded. See Oceana, Inc. v. Locke, 670 F.3d 1238 (D.C. Cir. 2011). NMFS is still in the

rulemaking process on remand. See Notice and Request for Comments, 78 Fed. Reg. 69,391

(Nov. 19, 2013).

       When a Council proposes an FMP or an amendment to an FMP, the proposal is submitted

to the Secretary of Commerce, who must approve, disapprove, or partially approve the proposal.

See 16 U.S.C. § 1854(a)(3) (2012). In practice, the Secretary exercises her authority through

NMFS, a division of NOAA within the Department of Commerce. See Fed. Defs.’ Mot. Summ.

J. 3, ECF No. 38.

       FMPs are subject to judicial review under Section 706 of the APA. See 16 U.S.C.

§ 1855(f)(1) (2012).




                                                   5
                           2. The National Environmental Policy Act

       The National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970)

(codified as amended at scattered sections of U.S.C.), requires federal agencies to consider the

environmental impact of “major Federal actions significantly affecting the quality of the human

environment . . . .” 42 U.S.C. § 4332(C) (2006). FMPs and their amendments are considered

major federal actions sufficient to trigger NEPA. See, e.g., Conservation Law Found. v. Mineta,

131 F. Supp. 2d 19 (D.D.C. 2001). “Before NMFS can approve an FMP amendment, NEPA

requires the preparation of one of three levels of documentation based on the extent of the

project’s impact on the environment.” Oceana, Inc. v. Locke, 831 F. Supp. 2d 95, 101 (D.D.C.

2011) (citing 40 C.F.R. § 1501.4(a)–(b)). The most detailed level of documentation, an

environmental impact statement (“EIS”), is required for projects that significantly affect the

environment. See id. (citing 42 U.S.C. § 4332(C) and 40 C.F.R. § 1508.11).

       To determine whether an EIS is required, the agency must first prepare an environmental

assessment (“EA”), which provides evidence for determining whether there is sufficient

environmental impact to trigger an EIS, or whether there is a finding of no significant impact

(“FONSI”). See Mineta, 131 F. Supp. 2d at 22 (citing 40 C.F.R. §§ 1501.3, 1508.9(a)).

Following the EA, the agency either prepares an EIS or issues a FONSI report setting forth the

reasons why the proposed action will not significantly impact the environment. See id. In either

case, the agency must also consider alternatives to the proposed action. See id.

       An agency’s compliance with NEPA is reviewable under Section 706 of the APA. See

Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 90 (1983).




                                                 6
                                 B. The Omnibus Amendment

       After NMFS updated the NS1 Guidelines to address the new requirements for ACLs and

AMs set forth in the MSA amendment, the Mid-Atlantic Council drafted the Omnibus

Amendment, which updates the FMPs for the six existing fisheries under the Council’s

jurisdiction: the Atlantic Mackerel, Squids, and Butterfish Fishery; the Atlantic Bluefish

Fishery; the Spiny Dogfish Fishery; the Summer Flounder, Scup, and Black Sea Bass Fishery;

the Surfclam and Ocean Quahog Fishery; and the Tilefish Fishery. See generally Omnibus

Amendment, 76 Fed. Reg. 60,606 (Sept. 29, 2011) (codified at 50 C.F.R. pt. 648 (2013))

(A.R. 5197–213). On March 24, 2009, NMFS published a notice of intent, indicating that it was

considering amendments to the six FMPs due to the new ACL and AM requirements. See

Notice, 74 Fed. Reg. 12,314 (Mar. 24, 2009) (A.R. 172–74). After a round of scoping meetings,

the Council drafted the Omnibus Amendment and submitted it to the Secretary, and in May

2011, NMFS published a notice in the Federal Register soliciting input on the Omnibus

Amendment. See Request for Comments, 76 Fed. Reg. 29,717 (May 23, 2011) (A.R. 4663–64).

The proposed rule was published on June 17, 2011, and the agency accepted public comment

through July 22, 2011. See Proposed Rule, 76 Fed. Reg. 35,578 (June 17, 2011) (A.R. 4671–

711). Initially, the agency was going to conduct an EIS, but it then changed the level of NEPA

analysis to an EA. See Notice of Intent, 75 Fed. Reg. 11,129 (Mar. 10, 2010) (A.R. 1920–21).

The agency then released a final EA that concluded with a FONSI. See A.R. 4754–5046. NMFS

published the final Omnibus Amendment on September 29, 2011. See Omnibus Amendment, 76

Fed. Reg. at 60,606 (A.R. 5197).

       The Omnibus Amendment sets ACLs and catch targets using a system of buffers. As

noted above, the OFL is reduced to ABC to account for scientific uncertainty, and the Omnibus




                                                7
Amendment contains “ABC control rules” delineating the method for computing the necessary

reduction. See 50 C.F.R. § 648.20 (2013). The ACL for each managed stock is then set equal to

the stock’s ABC, except that for some stocks the ACL is apportioned into sector-ACLs, with

separate catch limits for the commercial and recreational sectors. See Omnibus Amendment, 76

Fed. Reg. at 60,607 (A.R. 5198) (“The Council will recommend to NMFS ACLs set equal to

ABC for all species, with some further subdivision to sector-level ACLs where stocks have pre-

existing allocations for both commercial and recreational fisheries. The sum of these sector

ACLs will be equal to the ABC.”).

       Although the ACL and ABC are equal under the Omnibus Amendment, the new

regulatory scheme sets its target at an even lower figure in order to account for management

uncertainty in the collection of data. This reduced figure is called an annual catch target

(“ACT”), and is one type of AM established within the Omnibus Amendment to prevent the

ACL from being exceeded. See id. (“Council staff . . . will review available information and

recommend to the Council the amount of reduction from ACL to ACT necessary to address

management uncertainty.”). The ACTs are set in the first instance by committees, which

propose specific ACTs to the Council and identify the specific sources of management

uncertainty accounted for in their proposal. See 50 C.F.R. §§ 648.22, .71, .101, .121, .141, .161,

.231, .291 (2013). “Management uncertainty may include late catch reporting, misreporting, and

underreporting of catches and is affected by a fishery’s ability to control actual catch.” Id.

§ 600.310(f)(1).

       One specific source of management uncertainty is the counting of bycatch, which under

the Omnibus Amendment is estimated after each fishing year rather than counted in near real

time during the season. See Omnibus Amendment, 76 Fed. Reg. at 60,612 (A.R. 5203) (“The




                                                  8
monitoring committees will consider the estimated discards for a given specification period . . .

and recommend any necessary reductions for uncertainty associated with discard performance to

the Council to establish ACT(s).”). The Omnibus Amendment does not itself purport to establish

a methodology for reporting bycatch, and therefore relies largely on the methodology set forth in

the SBRM Amendment. The Omnibus Amendment, however, is not completely tied to the

SBRM Amendment, as it authorizes the committees to make “[c]hanges, as appropriate, to the

Northeast Region SBRM, including the coefficient of variation (CV) based performance

standard, fishery stratification, and/or reports[,]” as part of the AMs for each FMP. Id. at 60,617

(A.R. 5208).

       The Secretary did not disapprove of the Omnibus Amendment, and the rules went into

effect on October 31, 2011. See id. at 60,606 (A.R. 5197).

                                     C. Procedural History

       On October 28, 2011, approximately one month after the Omnibus Amendment was

published in the Federal Register, Oceana filed its complaint in the instant case, seeking vacatur

of the Omnibus Amendment on five different theories: (1) that NMFS’s decision not to consider

additional stocks for inclusion “in the fishery” violated the MSA, NEPA, and APA; (2) that

NFMS violated the MSA and APA in failing to establish sub-ACLs and sub-AMs for bycatch

species that are targets of other fisheries; (3) that NMFS violated the MSA, NEPA, and APA by

delegating to committees the responsibility for quantifying management uncertainty and

proposing ACTs; (4) that NMFS violated the MSA and APA by employing the SBRM

Amendment’s method of bycatch monitoring; and (5) that NMFS failed to establish sufficient




                                                 9
AMs under the MSA and APA by not adopting any other in-season bycatch monitoring system

in the Omnibus Amendment.2 See generally Compl., ECF No. 1.

       On February 24, 2012, FSF moved to intervene as a defendant on Counts II, IV, and V.

See Mot. Intervene, ECF No. 21. Neither Oceana nor Federal Defendants took a position on

FSF’s motion, and on March 2, 2012, the Court granted FSF leave to intervene on the three

requested counts. See Order, ECF No. 22. The parties filed cross-motions for summary

judgment as to all counts, and briefing was completed on February 22, 2013.


                               III. STANDARD OF REVIEW

       Under the MSA, the Court reviews the implementation or amendment of a fishery

management plan pursuant to the judicial review provisions set forth in chapter 7 of the APA.

See 16 U.S.C. § 1855(f)(1)–(2) (2012). Similarly, an agency’s procedural compliance with

NEPA is reviewed under the APA’s “arbitrary and capricious” standard. See Nevada v. Dep’t of

Energy, 457 F.3d 78, 87–88 (D.C. Cir. 2006). See generally Flaherty v. Bryson, 850 F. Supp. 2d

38, 47 (D.D.C. 2012) (“Agency decisions under the Magnuson–Stevens Act and NEPA are

reviewed pursuant to Section 706(2) of the APA.”).

       “Under the ‘arbitrary and capricious’ standard the scope of review is a narrow one.”

Bowman Transp., Inc. v. Ark.–Best Freight Sys., Inc., 419 U.S. 281, 285 (1974). On review, the

Court gives the agency’s decision “significant leeway” and does not substitute its own judgment

for that of the agency. Steel Mfrs. Ass’n v. EPA, 27 F.3d 642, 646 (D.C. Cir. 1994). Instead, the

Court will review the agency action in order to determine whether the agency has “articulate[d] a


       2
         In its complaint, Oceana originally cast a wider net, asserting a broader array of
theories. See generally Compl., ECF No. 1 However, the theories were so narrowed in
Oceana’s summary judgment briefing. See generally Pl.’s Mot. Summ. J., ECF No. 36; Pl.’s
Reply Supp. Mot. Summ. J. 20, ECF No. 42; infra notes 7, 12, 17 and accompanying text.


                                               10
‘rational connection between the facts found and the choices made.’” Bowman Transp., 419

U.S. at 285 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)); accord

Kisser v. Cisneros, 14 F.3d 615, 619 (D.C. Cir. 1994). The administrative record must show that

the agency “considered the relevant factors and explained the facts and policy concerns on which

it relied, and whether those facts have some basis in the record.” Nat’l Treasury Emps. Union v.

Horner, 854 F.2d 490, 498 (D.C. Cir. 1988). Furthermore, the agency’s decision is arbitrary or

capricious if the agency

          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 [it], 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 the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983).

          The review is to be based on the record that was before the agency at the time its decision

was made. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971),

abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). The Court “may not

supply a reasoned basis” that the agency itself has not given, but may “uphold a decision of less

than ideal clarity” if the agency’s rationale may reasonably be discerned. Bowman Transp., 419

U.S. at 285–86 (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), and Colo. Interstate

Gas Co. v. Fed. Power Comm’n, 324 U.S. 581, 585 (1945)). The Court is merely to determine

whether the agency’s decision was reasoned and supported by record evidence. See State Farm,

463 U.S. at 43.

          The Court “will give an extreme degree of deference to the agency when it ‘is evaluating

scientific data within its technical expertise.’” Huls Am. Inc. v. Browner, 83 F.3d 445, 452 (D.C.

Cir. 1996) (quoting Int’l Fabricare Inst. v. U.S. EPA, 972 F.2d 384, 389 (D.C. Cir. 1992) (per



                                                   11
curiam)). “When examining [a] scientific determination, as opposed to simple findings of fact, a

reviewing court must generally be at its most deferential.” Baltimore Gas & Elec. Co. v. Natural

Res. Def. Council, Inc., 462 U.S. 87, 103 (1983); see also Marsh v. Or. Natural Res. Council,

490 U.S. 360, 378 (1989) (“When specialists express conflicting views, an agency must have

discretion to rely on the reasonable opinions of its own qualified experts, even if, as an original

matter, a court might find contrary views more persuasive.”). Moreover, “[i]f carried out

correctly, arbitrary-and-capricious style review does not put the court into the (agency’s) driver’s

seat. It is, rather, for the agency to decide the exact trade-off among conflicting goals that ‘best

promotes’ the Congressional ‘goal’ in question.” Cont’l Air Lines, Inc. v. Dep’t of Transp., 843

F.2d 1444, 1451 (D.C. Cir. 1988). Thus, in the context of judicial review of an FMP, “[i]t is

therefore especially appropriate for the Court to defer to the expertise and experience of those

individuals and entities—the Secretary, the Councils, and their advisors—whom the [MSA]

charges with making difficult policy judgments and choosing appropriate conservation and

management measures based on their evaluations of the relevant quantitative and qualitative

factors.” Nat’l Fisheries Inst., Inc. v. Mosbacher, 732 F. Supp. 210, 223 (D.D.C. 1990).

Nonetheless, the courts applying the arbitrary and capricious standard of review “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).

       Typically, a court may grant summary judgment when “the movant shows 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(a). But when assessing a summary judgment motion in an APA case,

“the district judge sits as an appellate tribunal.” Am. Bioscience, Inc. v. Thompson, 269 F.3d

1077, 1083 (D.C. Cir. 2001). “The entire case on review is a question of law, and only a




                                                 12
question of law.” Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir.

1993). “In such a case, summary judgment merely serves as 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.” Oceana, Inc. v. Locke, 831 F. Supp. 2d 95, 106

(D.D.C. 2011). “Moreover, the party challenging an agency’s action as arbitrary and capricious

bears the burden of proof.” See San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory

Comm’n, 789 F.2d 26, 37 (D.C. Cir. 1986) (en banc).


                                          IV. ANALYSIS

                           A. Bycatch of Non-Target Stocks (Count I)

       For each species of fish designated as a stock “in the fishery,” the Council must develop

conservation and management measures for that stock, including ACLs and AMs. See 16 U.S.C.

§ 1853(a) (2012); Flaherty v. Bryson, 850 F. Supp. 2d 38, 50 (D.D.C. 2012). In its first claim for

relief, Oceana takes issue with the agency’s failure to consider whether additional non-target

stocks should be included “in the fishery” under the Omnibus Amendment. See Compl. ¶¶ 48–

61, ECF No. 1. As the terms are used in the industry, a “stock of fish” is “a species, subspecies,

geographical grouping, or other category of fish capable of management as a unit.” 16 U.S.C.

§ 1802(42) (2012). A “target stock” is a stock that fishers seek to catch for sale or personal use.

See 50 C.F.R. § 600.310(d)(3) (2013).3 By contrast, “non-target stocks” are “fish caught

incidentally during the pursuit of target stocks in a fishery . . . .” Id. § 600.310(d)(4).4 For


       3
          The term also includes “economic discards”—fish that are the target of a fishery, but
that the fisher does not retain for economic reasons, such as undesirable size, sex, or quality. See
16 U.S.C. § 1802(9) (definition of “economic discards”); 50 C.F.R. § 600.310(d)(3) (definition
of “target stocks”).
       4
         The term also includes “regulatory discards,” which are harvested fish that fishers are
required by regulation to either discard or retain but not sell. See 16 U.S.C. § 1802(38)


                                                  13
example, squids caught in the Atlantic Mackerel, Squids, and Butterfish Fishery are a target

stock. However, when river herring is incidentally caught as bycatch in the same fishery, river

herring is described as a non-target stock.5 FMPs are required to include mechanisms for ACLs

and AMs for all stocks “in the fishery.”6 See id. § 600.310(c), (h).

       When NMFS promulgated the Omnibus Amendment, it included provisions bringing

existing FMPs into compliance with the new requirements of the MSRA but did not include any

new stocks “in the fishery” for any of the existing FMPs. See generally Omnibus Amendment,

76 Fed. Reg. 60,606 (Sept. 29, 2011) (codified at 50 C.F.R. pt. 648 (2013)) (A.R. 5197–213). In

other words, under the Omnibus Amendment, the only stocks “in the fishery” are those that were

already managed under the then-existing FMPs. According to Oceana, NMFS’s failure to

consider whether to include “in the fishery” non-target stocks not already managed in the

FMPs—such as river herring and shad within the Atlantic Mackerel, Squids, and Butterfish

Fishery—violates the MSA, NEPA, and APA.7


(definition of “regulatory discards”); 50 C.F.R. § 600.310(d)(4) (definition of “non-target
stocks”).
       5
         It is important to note that “non-target stock” and “bycatch” are not totally synonymous,
because the definition of bycatch includes economic discards while the definition of non-target
stock does not. For example, river herring incidentally caught in the Atlantic Mackerel, Squids,
and Butterfish Fishery constitute both bycatch and a non-target stock, because the herring are not
the species sought by the fishers and are not retained for sale or personal use. An Atlantic
mackerel caught in the same fishery but discarded due to unsatisfactory size would meet the
definition of bycatch but would still be a target stock, because the species is sought by fishers in
the fishery. See 16 U.S.C. § 1802(2), (9); 50 C.F.R. § 600.310(d)(3)–(4).
       6
          Stocks “in the fishery” does not necessarily include ecosystem component species,
which are non-target stocks unlikely to be subject to overfishing absent conservation and
management measures. See 50 C.F.R. § 600.310(d)(5). Such species may, but are not required
to, be included in an FMP. See id. § 610.310(d)(5)(iii).
       7
          Although Oceana’s complaint does not explicitly allege a violation of the MSA under
Count I, see Compl. ¶ 61, it is clear that Oceana’s claim rests on the theory that the agency acted
arbitrarily and capriciously in its actions (and inactions) taken pursuant to both the MSA and
NEPA.


                                                14
                                          1. MSA Claim

       The MSA requires the agency to create an FMP “for each fishery under its authority that

requires conservation and management . . . .” 16 U.S.C. § 1852(h)(1) (2012). According to

Oceana, NMFS violated the MSA by failing to consider whether non-target bycatch species,

such as river herring and shad, “require[] conservation and management” and therefore should

have been “in the fishery” in the amended FMPs. See Pl.’s Mot. Summ. J. 14–19, ECF No. 36.

Federal Defendants take the position that, because the Omnibus Amendment was intended solely

to bring existing FMPs into compliance with new provisions of the MSA, they were not required

to consider whether to include new stocks “in the fishery.” See Fed. Defs.’ Mot. Summ. J. 14–

21, ECF No. 38. They also add that NMFS did, in fact, consider the effects of the proposed

measures on non-target bycatch species that are not “in the fishery.” See Fed. Defs.’ Reply

Mem. Supp. Mot. Summ. J. 10–12, ECF No. 43.

                                    a. Piecemeal Compliance

       NMFS made clear at the outset that the purpose of its rulemaking here was “to address

the new [MSA] requirements for annual catch limits (ACLs) and accountability measures (AMs)

in an Omnibus Amendment to the fishery management plans (FMPs) for Atlantic mackerel,

butterfish, Atlantic bluefish, spiny dogfish, summer flounder, scup, black sea bass, tilefish,

surfclams, and ocean quahogs”—that is, the then-existing FMPs. Notice, 74 Fed. Reg. 12,314

(Mar. 24, 2009) (A.R. 172). From this, Federal Defendants reason that NMFS was not required

to address all management needs in the Omnibus Amendment, and therefore could properly

focus on bringing existing FMPs into compliance without considering whether to include new

stocks “in the fishery.” See Fed. Defs.’ Mot. Summ. J. 18.




                                                 15
       Federal Defendants’ argument is unavailing. In support of their argument that an agency

action is not invalid for failure to regulate more comprehensively, Federal Defendants rely

largely on case law in which the D.C. Circuit held that it lacked jurisdiction to consider whether

an agency’s alleged failure to implement a statutory directive invalidated the regulation actually

promulgated. See id. (citing Hazardous Waste Treatment Council v. EPA, 861 F.2d 277, 287–88

(D.C. Cir. 1998), and United Tech. Corp. v. EPA, 821 F.2d 714, 720–21 (D.C. Cir. 1987)).8 But

there is no jurisdictional dispute here. In the cases Federal Defendants cite, the court lacked

jurisdiction because the petitioner failed to fully implement the statutory goal in a single

regulation, not because the agency ignored a factor that it was required to consider. See, e.g.,

Hazardous Waste Treatment Council v. EPA, 861 F.2d 277, 287–88 (D.C. Cir. 1998)

(“Petitioner’s basic argument is that the promulgated regulations ‘fail to include necessary

requirements’ of the statute—not because the EPA ignored a factor that the statute requires it to

consider, but only because it has not fully implemented the statutory goal.”).

       The issue raised by Oceana in challenging the Omnibus Amendment is different from the

jurisdictional issues raised in the D.C. Circuit cases. Oceana argues that, because NFMS did not

consider whether to include non-target bycatch stocks “in the fishery,” the Omnibus Amendment

is arbitrary and capricious because the ACLs it does set for the already-managed stocks could

result in overfishing of the unregulated bycatch stocks. See Pl.’s Mot. Summ. J. 18; see also

Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983) (holding that an agency acts arbitrarily and capriciously if it “entirely failed to consider

       8
         Federal Defendants also cite Judge Boasberg’s opinion in Oceana, Inc. v. Locke, 831 F.
Supp. 2d 95 (D.D.C. 2011), where the court found that, based on the narrow scope of the
regulation at issue, it was reasonable under NEPA for NMFS to avoid inquiring whether to
include any additional non-target bycatch species “in the fishery.” See id. at 125–28. But
because that analysis involved NEPA, the court did not address whether the narrow objectives of
the new rule were at odds with the MSA’s statutory mandates.


                                                 16
an important aspect of the problem”). The MSA’s new provisions required NMFS to establish a

mechanism for setting ACLs “at a level such that overfishing does not occur in the fishery . . . .”

16 U.S.C. § 1853(a)(15). And if the measures promulgated allow overfishing to occur, then “[a]

future plan to comply with the MSA will not save an otherwise deficient FMP.” Oceana, Inc. v.

Locke, 831 F. Supp. 2d 95, 122 (D.D.C. 2011).

       Because the new provisions of the MSA required NMFS to establish a mechanism for

specifying ACLs and AMs such that “overfishing does not occur in the fishery,” the Court rejects

Federal Defendants’ argument that NMFS was not required to consider the Omnibus

Amendment’s impact on identified non-target bycatch species in the fisheries it chooses to

manage under an FMP.

                    b. Consideration of Bycatch Species Not “in the Fishery”

       When Congress most recently reauthorized and expanded the MSA, it added a

requirement that the Secretary “establish a mechanism for specifying annual catch limits . . . at a

level such that overfishing does not occur in the fishery . . . .” Magnuson–Stevens Fishery

Conservation and Management Reauthorization Act of 2006, Pub. L. No. 109-479, sec. 303(a),

§ 104(a)(10), 120 Stat. 3575, 3584 (2007) (codified at 16 U.S.C. § 1853(a)(15)). As Judge

Kessler recently observed, implementation of ACLs to prevent overfishing under this provision

“necessarily entails a decision as to which stocks require conservation and management.”9


       9
          Federal Defendants attempt to argue that Flaherty is inapplicable to this case because,
there, NMFS originally considered whether to include additional stocks “in the fishery” and then
abandoned that objective without explanation, making an “affirmative decision” not to include
any new stocks. See Fed. Defs.’ Reply Mem. Supp. Mot. Summ. J. 7 (citing Flaherty, 850 F.
Supp. 2d at 45–46). The Court is not persuaded by this attempt to distinguish Flaherty. Federal
Defendants cite only to the factual background section of the opinion, which merely describes
the changing scope of NMFS’s objectives in that case; Judge Kessler’s actual analysis does not
indicate that she considered the changing scope of the agency’s objectives an important factor.
See Flaherty, 850 F. Supp. 2d at 50–56.


                                                17
Flaherty, 850 F. Supp. 2d at 52; see also 16 U.S.C. § 1852(h)(1) (requiring that each Council

prepare an FMP “for each fishery under its authority that requires conservation and

management”). Notably, however, the MSA does not adopt the “in the fishery” classification,

nor does the text of Section 1853(a)(15) state that ACLs must be adopted for all species in need

of conservation and management. Rather, the new provision requires only the establishment of

ACLs and AMs such that overfishing does not occur. See 16 U.S.C. § 1853(a)(15). If bycatch

of non-target stocks is considered in drafting ACLs for target stocks, then such consideration

may suffice if the FMP does not result in the non-target stocks becoming subject to overfishing.

       The Guidelines also support the conclusion that the MSA does not require reclassification

of stocks “in the fishery” each time an FMP is amended. They contain no provision mandating

that stocks be considered for reclassification whenever an FMP is amended. Instead, they

provide for periodic monitoring “on a regular basis” to determine whether reclassification is

necessary. See 50 C.F.R. § 600.310(d)(6).

       Although NMFS did not consider whether to include non-target bycatch stocks “in the

fishery,” it did consider the impact of the Omnibus Amendment on those stocks. In the

environmental assessment for the Omnibus Amendment, it was determined that, “[b]ecause [it]

would not result in an increase or decrease in catch relative to ABC, the indirect impacts on the

managed resource and non-target species are expected to be identical to those under the status

quo . . . .” A.R. 4890. In other words, because the Omnibus Amendment sets ACL equal to

ABC for all managed stocks, the agency rationally concluded that the changes to the existing

FMPs would not have any greater detrimental impact on non-target bycatch species. See

Omnibus Amendment, 76 Fed. Reg. at 60,607 (A.R. 5198). Oceana cites to no contrary evidence

in the record that suggests that non-target bycatch stocks were subject to overfishing at the time




                                                18
that determination was made. Instead, it relies on a single page from the administrative record

that merely identifies hickory shad, blueback herring, American shad, and alewife as bycatch

species in the Atlantic Mackerel, Squid, and Butterfish Fishery. See A.R. 4864. The cited

evidence does not indicate that those bycatch stocks are subject to overfishing, and it does not

contradict NMFS’s findings as to the impact of the Omnibus Amendment on those stocks. Cf.

Flaherty, 850 F. Supp. 2d at 53 (finding FMP amendment arbitrary and capricious for failing to

explain why record evidence, cited by the plaintiffs, was insufficient to justify reclassification of

river herring as a stock “in the fishery”).

       NMFS also argues that its decision not to consider additional stocks for inclusion “in the

fishery” was reasonable in light of the time constraints imposed by the MSRA, see Fed. Defs.’

Mot. Summ. J. 18, and the Court agrees. The statute imposes upon the agency an obligation to

comply with the MSA’s new provisions by the 2010 fishing year for fisheries that were subject

to overfishing, and by 2011 for all others. See 16 U.S.C. § 1853 note. Although other judges

have found that the MSRA’s statutory deadline is no excuse for delay, see Flaherty, 850 F. Supp.

2d at 51–53, the Court finds that a holistic review of the timeline reveals that the agency did not

act in a dilatory fashion. Before NMFS could begin amending the FMPs themselves, it first had

to update the Guidelines in order to set forth the Secretary’s interpretation of the MSA’s new

requirements for ACLs and AMs—a process that began just one month after the MSRA’s

enactment and concluded approximately two years later. See NS1 Guidelines Notice, 72 Fed.

Reg. 7016 (Feb. 14, 2007); NS1 Guidelines Proposed Rule, 73 Fed. Reg. 32,526 (June 9, 2008);

NS1 Guidelines Final Rule, 74 Fed. Reg. 3178 (Jan. 16, 2009) (codified at 50 C.F.R. pt. 600)

(A.R. 102–38). These Guidelines set forth the framework that governs not just the Mid-Atlantic

FMPs, but all FMPs nationwide. This warrants great care in their implementation. Given the




                                                 19
complexity of the Guidelines and fishery management generally, the Court finds the two-year

timeline reasonable.

       The time necessarily spent updating the Guidelines brought the agency much closer to its

deadline. NMFS began the scoping process for the Omnibus Amendment shortly after

completing the Guidelines updates, see Notice, 74 Fed. Reg. at 12,314 (A.R. 172), and produced

a final amendment to all Mid-Atlantic FMPs within approximately two-and-a-half years. See

Omnibus Amendment, 76 Fed. Reg. at 60,606 (A.R. 5197). Because during this time the agency

was required to prioritize fisheries that were subject to overfishing—a category that included no

Mid-Atlantic fisheries—the Court likewise finds that the agency spent a reasonable amount of

time in reviewing the Omnibus Amendment.10

       If the agency were required to make a wholesale reconsideration of which stocks to

include “in the fishery” every time it amends an FMP, the delay would be much greater. Oceana

articulates no stopping point on the number of species the agency would have to reconsider

during each amendment, but any principled rule would presumably include all identified bycatch

species, of which there are well over a dozen in the Mid-Atlantic FMPs. See A.R. 4864–65. To

reassess the inclusion of these species “in the fishery” during each amendment would be an

absurd result.11 Indeed, Federal Defendants have noted that the delay would have a “crippling”

effect on the agency. See Fed. Defs.’ Mot. Summ. J. 20–21.


       10
          Although FMPs are prepared by the Councils, and therefore the Mid-Atlantic Council
would arguably not have been delayed by the requirement to prioritize fisheries that were subject
to overfishing, the agency itself is charged with reviewing all FMPs. See 16 U.S.C. § 1854(a)(3)
(2012).
       11
          Oceana argues that, by not requiring NMFS to reassess the composition of the fishery
during each amendment, the agency “could forever overlook the conservation and management
needs of bycatch species in the Mid-Atlantic Fisheries and thereby continue to expose these
stocks to overfishing.” See Pl.’s Reply Supp. Mot. Summ. J. 8–9, ECF No. 42. But recent
events show that Oceana’s fear is unfounded. Before Oceana even initiated this litigation,


                                               20
          Because Oceana has not shown that NMFS’s consideration of the Omnibus

Amendment’s impact on non-target bycatch species was arbitrary or capricious under the MSA,

the Court will grant Federal Defendants’ motion for summary judgment on Count I’s MSA

theory.

                                         2. NEPA Claim

          Count I of Oceana’s complaint also contains a NEPA claim. “NEPA imposes procedural

rather than substantive duties on government agencies undertaking major federal action, such as

the adoption of an FMP or FMP amendment.” Locke, 831 F. Supp. 2d at 124 (citing Citizens

Against Burlington, Inc. v. Busey, 938 F.2d 190, 193–94 (D.C. Cir. 1991)). “NEPA does not . . .

‘require agencies to elevate environmental concerns over other appropriate considerations. . . .

[I]t require[s] only that the agency take a hard look at the environmental consequences before

taking a major action.’” WildEarth Guardians v. Jewell, 738 F.3d 298, 303 (D.C. Cir. 2013)

(quoting Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983))

(second, third, and fourth alterations in original). Oceana argues that, by not considering

whether to include non-target bycatch stocks “in the fishery,” NMFS violated NEPA because it

failed to take a “hard look” at the impacts of the Omnibus Amendment.12 Federal Defendants

argue that NMFS reasonably limited the scope of its analysis to the existing stocks in the fishery.




NMFS had already begun the scoping process for an amendment to the Atlantic Mackerel,
Squids, and Butterfish FMP that would do more “to monitor and/or minimize the incidental catch
of river herrings (blueback and alewife) and shads (American and hickory)”—the very species to
which Oceana repeatedly points as justification for imposing a higher burden on the agency. See
Amendment 14 Scoping Notice, 75 Fed. Reg. 32,745 (June 9, 2010). Days ago, the agency
published a final rule that imposes heightened reporting requirements and allows the Council to
set a cap on these species. See Amendment 14, 79 Fed. Reg. 10,029 (Feb. 24, 2014) (to be
codified at 50 C.F.R. pt. 648) (effective Mar. 26, 2014).
          12
         Oceana’s Count I also alleges that NMFS failed to rationally consider whether an EIS
was required, violating NEPA. See Compl. ¶¶ 58–59. But because Oceana does not invoke this


                                                21
       Other judges sitting in this district have previously recognized that, where the alleged

NEPA violation involves NMFS’s failure to consider whether to include additional stocks “in the

fishery,” the claim is better understood as a challenge to agency inaction. See, e.g., Locke, 831

F. Supp. 2d at 125. “Rather than asserting that NMFS failed to take a hard look at the

environmental consequences of its actions, therefore, [Oceana’s] claim is more properly viewed

as an allegation that NMFS improperly failed to consider alternative action to maintaining the

status quo composition of the Fishery.” Id.

       Where a claim under NEPA is characterized in this manner, “the Court engages in a two-

part process: first, an examination of ‘whether an agency’s objectives are reasonable,’ and

second, ‘whether a particular alternative is reasonable in light of these objectives.’” Id. at 127

(quoting City of Alexandria v. Slater, 198 F.3d 862, 867 (D.C. Cir. 1999)). The Court engages in

both inquiries “with considerable deference to the agency’s expertise and policy-making role.”

City of Alexandria v. Slater, 198 F.3d 862, 867 (D.C. Cir. 1999).

       The Court finds that NMFS acted reasonably in limiting the Omnibus Amendment to

bringing existing FMPs into compliance with the new provisions of the MSA. As noted above,

neither the MSA nor the Guidelines required that the composition of the fishery be reevaluated

during the promulgation of the Omnibus Amendment. See supra Part IV.A.1.a. Where an issue

is particularly complex, the scope of reasonable alternatives is necessarily limited. See Oceana,

Inc. v. Evans, 384 F. Supp. 2d 203, 241 (D.D.C. 2005) (“The duty to consider all such

alternatives does not extend to situations where the possibilities are so numerous and the goals of

the action so complex that the agency cannot possibly consider every significant alternative in a

reasonable time period.”). This is particularly true of fishery management, which courts have

theory in its briefing, and because APA cases are decided entirely on cross-motions for summary
judgment, the Court will consider Oceana’s EIS theory waived. See also infra Part IV.C.2.


                                                 22
recognized is “exceedingly complex.” Id. at 242; accord Locke, 831 F. Supp. 2d at 127. This is

especially so in light of the time constraints NMFS faced, as it was required to implement the

new MSA provisions by 2011.

       Because it was reasonable for the agency to limit the Omnibus Amendment’s objectives

to bringing FMPs for managed stocks into compliance with the MSA, the Court next turns to

whether NMFS was required to consider an alternative that increased the number of managed

species “in the fishery.” Because such an alternative would not have furthered the objective of

bringing existing FMPs into compliance with the MSA, the Court finds that the agency acted

reasonably in declining to consider the alternative. The Court will thus grant summary judgment

for Federal Defendants on Oceana’s Count I NEPA theory.

             B. Bycatch of Target Stocks in Non-Directed Fisheries (Count II)

       Oceana’s second claim for relief challenges the Omnibus Amendment’s alleged failure to

account for bycatch of target stocks in non-directed fisheries. See Compl. ¶¶ 62–67, ECF No. 1.

In this context, a “non-directed fishery” means a fishery managed by an FMP, but which does

not seek to catch the target stock at issue. For example, the bycatch of summer flounder in the

Northeast Multispecies Fishery (also known as the Groundfish Fishery)13 falls within the scope

of this claim, because summer flounder is a target stock of the Summer Flounder, Scup, and

Black Sea Bass Fishery, but is a bycatch species in the Groundfish Fishery. See id. ¶ 65. During

the Omnibus Amendment’s comment period, Oceana recommended that NMFS address this

issue by implementing “sub-ACLs”—that is, by apportioning the species’ overall ACL among

different user groups, including fisheries that catch the species as bycatch. See Omnibus

Amendment, 76 Fed. Reg. 60,610–11 (Sept. 29, 2011) (A.R. 5201–02). It is Oceana’s position

       13
         The Groundfish Fishery is overseen by the New England Fishery Management
Council. See Oceana, Inc. v. Locke, 831 F. Supp. 2d 95, 102 (D.D.C. 2011).


                                               23
that the Omnibus Amendment is arbitrary and capricious under the APA and Section 1853(a)(15)

of the MSA, because it “does not reflect a rational analysis of the catch of target stock in non-

directed fisheries and the implementation of sub-ACLs and [sub-]AMs for such catch, even

though such issues were brought to [NMFS]’s attention in Oceana’s Comment Letters.” Compl.

¶ 65. Federal Defendants and FSF respond that the MSA does not require the implementation of

sub-ACLs, and that, in any event, the Omnibus Amendment accounts for such bycatch in setting

each species’ overall ACL. See FSF’s Cross-Mot. Summ. J. 17–22, ECF No. 37; Fed. Defs.’

Mot. Summ. J. 25–28, ECF No. 38.

       Oceana correctly recognizes that sub-ACLs are not a mandatory measure, and that an

FMP must simply establish an overall suite of accountability measures sufficient to prevent

overfishing. See Pl.’s Mot. Summ. J. 22, ECF No. 36 (citing Oceana, Inc. v. Locke, 831 F. Supp.

2d 95, 117 (D.D.C. 2011)). Indeed, the MSA makes no mention of sub-ACLs. Cf. 16 U.S.C.

§ 1853(a)(15) (2012) (requiring that the Secretary “establish a mechanism for specifying

[overall] annual catch limits”). The issue is thus whether NFMS, by not implementing Oceana’s

sub-ACL proposal, acted arbitrarily and capriciously by ignoring bycatch of target stocks in non-

directed fisheries. See also Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43 (1983) (holding that an agency acts arbitrarily and capriciously if it

“entirely failed to consider an important aspect of the problem [or] offered an explanation for its

decision that runs counter to the evidence before the agency”).

       Both the Guidelines and the administrative record show that bycatch of such stocks is not

ignored, and that NMFS explained as much in declining to adopt sub-ACLs. Under the NS1

Guidelines, ABC accounts for bycatch, either by expressing the ABC figure in terms of all catch,

or expressing the figure in terms of landings while incorporating estimated bycatch and other




                                                 24
fishing mortality. See 50 C.F.R. § 600.310(f)(3)(i) (2013). Because the ACL for a stock cannot

exceed its ABC, see id. § 600.310(f)(5)(i), bycatch is thus included in the stock’s overall ACL as

well. Indeed, under the Omnibus Amendment, ABC and ACL are equal. See Omnibus

Amendment, 76 Fed. Reg. at 60,607 (A.R. 5198). The administrative record, including the

Omnibus Amendment’s environmental assessment, demonstrates that the counted landings and

discard estimates for each stock are based on the figures from all fisheries, both directed and

non-directed, in setting the overall ACL. See A.R. 1417, 4782; see also Omnibus Amendment,

76 Fed. Reg. at 60,611 (A.R. 5202) (“All managed species catch, regardless of whether the FMP

is a Mid-Atlantic, South Atlantic, New England, or Secretarial FMP, is fully accounted for under

the respective ACLs, irrespective of whether the catch is directed landings, dead discards in the

directed fishery, or dead discards incurred while targeting other species.”); id. at 60,614 (A.R.

5205) (“[T]he Omnibus Amendment’s system of accounting does, in fact, consider catch from all

directed fishery and other sources.”). Indeed, the NS1 Guidelines advise that stocks identified in

more than one fishery be regulated under a “primary FMP,” and that conservation and

management measures for the stock in other FMPs be included under the primary FMP. See 50

C.F.R. § 600.310(d)(7). The administrative record shows that NMFS believed this approach was

more efficient for the Omnibus Amendment, explaining that sub-ACLs are not a cost-effective

mechanism in instances where the bycatch makes up only a small percentage of the overall catch

for that stock. See Omnibus Amendment, 76 Fed. Reg. at 60,611 (A.R. 5202); see also A.R.

1418 (noting that another fishery uses sub-ACLs where bycatch is of a large magnitude, and

stating that “if there is a fishery that rises to the level of concern in that they’re taking a large




                                                   25
percentage of the species incidentally, that [sic] we would consider some measure like maybe a

sub ACL”).14

       In response to Defendants’ showing that bycatch is accounted for, Oceana’s reply brief

moves the goalposts and asserts that accounting for bycatch in the overall ACL is insufficient

because it does not limit bycatch. See Pl.’s Reply Supp. Mot. Summ. J. 20, ECF No. 42.

Instead, Oceana brushes aside the Omnibus Amendment’s accounting system as merely

“counting fish.” See id. But the MSA requires only that the agency minimize bycatch “to the

extent practicable . . . .” 16 U.S.C. § 1853(a)(11). In phrasing the requirement in such a fashion,

Congress delegated to the agency the discretion to weigh the relevant factors. See Nat’l Coal. for

Marine Conservation v. Evans, 231 F. Supp. 2d 119, 141 (D.D.C. 2002) (“Congress, while aware

of the potential conflicts among the [MSA]’s provisions, nevertheless ‘required the Secretary to

exercise discretion and judgment in balancing among the conflicting national standards . . . .’”

(quoting Alliance Against IFQs v. Brown, 84, F.3d, 343, 350 (9th Cir. 1996))). Indeed, the

National Standards require the agency to balance several competing considerations in developing

FMPs, indicating that Congress did not intend that FMPs must limit bycatch to the greatest

extent possible. For example, National Standards 1, 7, and 9 require, respectively, that the

agency balance optimum yield with conservation, minimize costs and avoid duplication, and

minimize bycatch. See 16 U.S.C. § 1851(a)(1), (7), (9) (2012). The somewhat conflicting nature

of these standards shows that Congress delegated to NMFS the discretion to strike an appropriate

balance, and that there is no statutory mandate that one National Standard be maximized at the

expense of others. See also Pac. Coast Fed’n of Fishermen’s Ass’ns v. Blank, 693 F.3d 1084,

       14
          As FSF points out, where bycatch makes up only a small percentage of the overall
catch for a given stock, “the interlocking system of sub-ACLs Oceana prefers would virtually
guarantee an essentially serendipitous series of shut-downs from year-to-year in other fisheries,
thus inhibiting the attainment of OY in those fisheries.” FSF’s Cross-Mot. Summ. J. 21.


                                                26
1102 n.15 (9th Cir. 2012) (“The National Standards, and the MSA more generally, require

NMFS to balance conservation with yield, not favor one at the expense of the other.”).

       The Court is similarly unconvinced by Oceana’s argument that the Omnibus

Amendment’s accounting system does not establish a mechanism for specifying ACLs and AMs

that prevent overfishing as required by Section 1853(a)(15) of the MSA. See Pl.’s Reply Supp.

Mot. Summ. J. 20. If bycatch in non-directed fisheries is accounted for in a stock’s overall ACL,

which in turn has its own AMs, it seems that those measures would serve to prevent overfishing.

Oceana has not demonstrated otherwise. Accordingly, the Court will grant summary judgment

in favor of all Defendants on Count II.

                               C. ACT Control Rule (Count III)

       As noted above, the Omnibus Amendment employs annual catch targets, or ACTs, as one

type of AM. An ACT is “an amount of annual catch . . . that is the management target of the

fishery, and accounts for management uncertainty in controlling the annual catch at or below the

ACL.” 50 C.F.R. § 600.310(f)(2)(v) (2013). In other words, while the OFL is reduced by

scientific uncertainty to establish the ACL of a stock, the ACL is further reduced by management

uncertainty in order to establish the ACT for that stock. ACTs act as an AM because, by

establishing catch targets below the ACL that account for management uncertainty, they help to

ensure that the ACL is not exceeded. See id. An “ACT control rule” is “a specified approach to

setting the ACT for a stock . . . such that the risk of exceeding the ACL due to management

uncertainty is at an acceptably low level.” Id. § 600.310(f)(2)(vi).

       Under the ACT paradigm set forth in the Omnibus Amendment, “Council staff or

species-monitoring committees will review available information and recommend to the Council

the amount of reduction from ACL to ACT necessary to address management uncertainty.




                                                27
Where ACLs are divided into sector-specific ACLs, comparable sector ACTs that address the

associated sector-specific management uncertainties will be used.” Omnibus Amendment, 76

Fed. Reg. 60,607 (Sept. 29, 2011) (A.R. 5198). The ACT control rule for each species is

separately codified within the corresponding FMP. As set forth in the Omnibus Amendment,

committees must recommend an ACT for each species—with some species further broken down

by sector (commercial or recreational)—and identify the specific sources of management

uncertainty considered in setting the ACT. See 50 C.F.R. §§ 648.22, .71, .101, .121, .141, .161,

.231, .291 (2013).

       The Guidelines for National Standard 1 advise:

       If ACT is specified as part of the AMs for a fishery, an ACT control rule is
       utilized for setting the ACT. The ACT control rule should clearly articulate how
       management uncertainty in the amount of catch in the fishery is accounted for in
       setting the ACT. The objective for establishing the ACT and related AMs is that
       the ACL not be exceeded.

Id. § 600.310(f)(6). In Count III of its complaint, Oceana asserts that the Omnibus Amendment,

which relies on the ACT as one type of AM, fails to comply with the MSA and APA because it

does not specify a sufficient ACT control rule. See Compl. ¶¶ 74, 77, ECF No. 1. In the same

Count, Oceana also challenges the Omnibus Amendment’s alleged lack of a sufficient ACT

control rule as a violation of NEPA, asserting that the agency failed to consider feasible and

reasonable alternatives to the ACT AMs it did put in place, and did not take a hard look at the

environmental impacts of those AMs. See id. ¶¶ 75, 77.

                                          1. MSA Claim

       Oceana first asserts that the Omnibus Amendment does not contain a sufficient ACT

control rule and thus fails to comply with the MSA. See id. ¶ 74. In relevant part, the MSA

requires that the Secretary of Commerce “establish a mechanism for specifying annual catch

limits in the [FMP] at such a level that overfishing does not occur in the fishery, including


                                                28
measures to ensure accountability.” 16 U.S.C. § 1853(a)(15) (2012). The latter clause sets forth

a statutory requirement that the agency adopt AMs in order to enforce the ACLs. See Oceana,

Inc. v. Locke, 831 F. Supp. 2d 95, 109 (D.D.C. 2011). The MSA does not specify what AMs are

sufficient to satisfy this statutory requirement. The agency, however, has promulgated National

Standards Guidelines to implement the MSA, and the NS1 Guidelines set forth advice as to the

AMs that should be implemented under various circumstances.

       Before analyzing the Guidelines themselves, the Court must first determine what weight

the Guidelines are due. Where Congress delegates legally binding interpretive authority to an

agency, “a court may not substitute its own construction of a statutory provision for a reasonable

interpretation made by the administrator of an agency.” Chevron, U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 844 (1984). Here, however, the Guidelines do not carry the

force of law and are therefore not automatically entitled to Chevron deference. See 16 U.S.C.

§ 1851(b) (2012) (“The Secretary shall establish advisory guidelines (which shall not have the

force and effect of law), based on the national standards, to assist in the development of fishery

management plans.” (emphasis added)); United States v. Mead Corp., 533 U.S. 218, 234 (2001)

(finding that tariff classification rulings by the Customs Service lacked the force of law and were

therefore “beyond the Chevron pale”). Nonetheless, courts may afford some deference to a non-

binding agency interpretation of its guiding statute depending on the facts and circumstances at

hand—for example, based on the degree of the agency’s thoroughness, consistency, formality, or

expertise in issuing the interpretation. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)

(“We consider that the rulings, interpretations and opinions of the Administrator under this Act,

while not controlling upon the courts by reason of their authority, do constitute a body of

experience and informed judgment to which courts and litigants may properly resort for




                                                 29
guidance.”); see also Reno v. Koray, 515 U.S. 50, 61 (1995) (formalities); Good Samaritan

Hosp. v. Shalala, 508 U.S. 402, 417 (1993) (consistency); Aluminum Co. of Am. v. Cent. Lincoln

Peoples’ Util. Dist., 467 U.S. 380, 390 (1984) (expertise); Gen. Elec. Co. v. Gilbert, 429 U.S.

125, 142 (1976) (thoroughness).

          The Court concludes that the NS1 Guidelines deserve considerable deference. NMFS

used a highly formal process to amend the Guidelines to reflect the agency’s interpretation of the

MSA’s new requirements for ACLs and AMs. The agency used notice-and-comment procedure

to amend the Guidelines, publishing an initial notice in the Federal Register just one month after

the MSRA was enacted. See NS1 Guidelines Notice, 72 Fed. Reg. 7016 (Feb. 14, 2007). NMFS

accepted public comments during the scoping process, see id., and after more than one year of

deliberation, published a proposed rule for further comment, see NS1 Guidelines Proposed Rule,

73 Fed. Reg. 32,526 (June 9, 2008). It finalized the amendments to the Guidelines on January

16, 2009, approximately two years after the MSRA was enacted. See NS1 Guidelines Final

Rule, 74 Fed. Reg. 3178 (Jan. 16, 2009) (codified at 50 C.F.R. pt. 600 (2013)) (A.R. 102–38).

Over the years, NMFS has adopted a detailed and thorough Guideline for each of the ten

National Standards, see 50 C.F.R. §§ 600.305–.355 (2013), which reflects the agency’s expertise

in the subject matter. Indeed, Oceana itself relies on the Guidelines in its briefing and does not

appear to challenge their interpretation of the MSA. See Pl.’s Mot. Summ. J. 24–27, ECF

No. 36.

          The NS1 Guidelines support the agency’s position that the ACT is not a mandatory AM

under Section 1853(a)(15) of the MSA. The Guidelines identify the ACT as merely one of many

types of in-season AMs that may be employed. See 50 C.F.R. § 600.310(g)(2). Rather than

mandate the adoption of ACTs, the Guidelines state only that “ACTs are recommended in the




                                                30
system of accountability measures so that ACL is not exceeded.” Id. § 600.310(f)(2)(v)

(emphasis added).

       Nonetheless, NMFS did choose to implement ACTs as one type of AM in the Omnibus

Amendment. Where an FMP uses ACTs, “an ACT control rule is utilized for setting the

ACT.”15 Id. § 600.310(f)(6); see also id. § 600.310(f)(2)(vi) (defining ACT control rule). The

Guidelines also provide some direction as to the content that should be contained in ACT control

rules. In particular, in a provision relied upon heavily by Oceana, they provide that “[t]he ACT

control rule should clearly articulate how management uncertainty in the amount of catch in the

fishery is accounted for in setting ACT.” Id. § 600.310(f)(6). According to Oceana, the

Omnibus Amendment is invalid because it does not “clearly articulate” how the agency accounts

for management uncertainty in arriving at the ACT. See Pl.’s Mot. Summ. J. 25–26, ECF

No. 36. Instead, Oceana asserts that NMFS left itself unfettered discretion as to the method for

setting ACTs, and even whether to set ACTs at all. See id. at 27.

       The Court begins by noting that the Guidelines provide that the ACT control rule “should

clearly articulate how management uncertainty in the amount of catch in the fishery is accounted

for in setting ACT.” See 50 C.F.R. § 600.310(f)(6) (emphasis added). Under the Guidelines,

“[s]hould is used to indicate that an action or consideration is strongly recommended to fulfill the

Secretary’s interpretation of the Magnuson–Stevens Act, and is a factor reviewers will look for


       15
          Although Oceana’s complaint and briefing are not clear on this point, one could read
Oceana’s claim as asserting that NMFS did not implement any ACT control rule, and that a
control rule is mandated by the NS1 Guidelines whenever ACTs are used. The Court reads the
Guidelines differently. In recognizing that “an ACT control rule is utilized for setting the
ACT[,]” 50 C.F.R. § 600.310(f)(6), NMFS was not imposing a separate substantive requirement
upon FMPs that use ACTs. In view of the provision’s lack of any language signifying
obligation, cf. id. § 600.305(c)(1) (providing that the Guidelines use the word “must” to denote
obligation to act), it is clear that this language in the Guidelines simply serves to define any rule
establishing an ACT-setting approach as an “ACT control rule.”


                                                 31
in evaluating a SOPP or FMP.” Id. § 600.305(c)(3) (emphases added). By contrast, the

Guidelines use the word “must” to denote obligations to act. See id. § 600.305(c)(1) (“Must is

used, instead of ‘shall’, to denote an obligation to act; it is used primarily when referring to

requirements of the Magnuson–Stevens Act, the logical extension thereof, or of other applicable

law.”). Thus, even assuming that the Omnibus Amendment’s ACT control rules do fail to

“clearly articulate” how management uncertainty is accounted for in setting the ACT, such detail

is not required in order to comply with the MSA.16 See also Locke, 831 F. Supp. 2d at 117

(finding that sub-AMs are not mandatory when sub-ACLs are used in an FMP, even though the

Guidelines provide that sub-AMs “should” accompany sub-ACLs).

       Because the ACT itself is not a mandatory AM, and because the NS1 Guidelines do not

mandate that any specific content be included in the ACT control rule when ACTs are employed,

the ultimate inquiry under Section 1853(a)(15) of the MSA is whether NMFS established an

overall suite of AMs to prevent overfishing. See id. As Federal Defendants point out, the

       16
           Nor is Oceana sufficiently specific about what it thinks a “clear articulation” would
entail. Both the Guidelines and the Omnibus Amendment’s ACT control rules require that the
committees consider and identify sources of management uncertainty, including uncertainty in
the ability of managers to constrain catch and uncertainty in quantifying true catch amounts. See
50 C.F.R. § 600.310(f)(6)(i). Perhaps Oceana believes a rigid mathematical formula is required
or recommended—it does not say.
        This case is not like Oceana, Inc. v. Locke, 670 F.3d 1238 (D.C. Cir. 2011), which
Oceana points to. In that case, the D.C. Circuit found that NMFS failed to comply with a
statutory mandate that it establish a standardized bycatch reporting methodology. See id. at
1241. There, the agency left itself discretion to depart entirely from its SBRM reporting duties
based on a vaguely defined exception. See id. Here, the Omnibus Amendment’s ACT control
rules contain no such escape hatch.
        The SBRM case is also distinguishable on the basis that, by failing to “establish” a
sufficient methodology, NMFS violated its statutory duty under the MSA. See 16 U.S.C.
§ 1853(a)(11). Here, by contrast, Oceana argues that the agency left itself too much discretion in
executing a recommended AM. Oceana has not argued that the overall suite of AMs in the
Omnibus Amendment fails to “establish” AMs as required by the MSA. See id. § 1853(a)(15).
Such a theory may have been analogous to the SBRM case—the Court need not decide, because
Oceana has not presented the issue here.


                                                  32
Omnibus Amendment uses ACTs alongside several other AMs, such as commercial trip and

possession limits, and overage repayments. See Omnibus Amendment, 76 Fed. Reg. at 60,607

(A.R. 5198). Oceana, in both its complaint and its briefing, chose to focus narrowly on NMFS’s

alleged failure to adopt a sufficient ACT control rule, ignoring the other AMs that are in place.

In failing to show that the AMs in place are insufficient to ensure accountability, and instead

describing as mandatory AM components that are not so, Oceana has not met its burden of

demonstrating the Omnibus Amendment’s non-compliance with the MSA. See San Luis Obispo

Mothers for Peace v. U.S. Nuclear Regulatory Comm’n, 789 F.2d 26, 37 (D.C. Cir. 1986) (en

banc) (“[T]he party challenging an agency’s action as arbitrary and capricious bears the burden

of proof.” (citing Nat’l Ass’n of Regulatory Util. Comm’rs v. FCC, 746 F.2d 1492, 1502 (D.C.

Cir. 1984))). The Court will therefore enter judgment in favor of Defendants as to Oceana’s

Count III MSA claim.

                                          2. NEPA Claim

       Oceana has also claimed that the agency violated NEPA in its alleged failure to take a

hard look at the alternatives to, and environmental impacts of, the Omnibus Amendment’s

mechanism for specifying ACTs. See Compl. ¶¶ 75, 77. However, in its briefing, Oceana does

not present any argument or citation in support of its NEPA theory on Count III. In a case based

solely on judicial review of agency action, the district court sits as an appellate tribunal and

disposes of the case on cross-motions for summary judgment. See Locke, 831 F. Supp. 2d at 106

(“In such a case, summary judgment merely serves as 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.”); see also Am. Bioscience, Inc. v. Thompson, 269

F.3d 1077, 1083 (D.C. Cir. 2001) (“[W]hen a party seeks review of agency action under the




                                                 33
APA, the district judge sits as an appellate tribunal.”); Marshall Cnty. Health Care Auth. v.

Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993) (“The entire case on review is a question of law,

and only a question of law.”). Thus, a plaintiff’s failure to raise arguments or theories in its

motion for summary judgment results in waiver of those arguments. See EMILY’s List v. FEC,

569 F. Supp. 2d 18, 25 n.6 (D.D.C. 2008), rev’d on other grounds, 581 F.3d 1 (D.C. Cir. 2009);

see also New York v. U.S. EPA, 413 F.3d 3, 20 (D.C. Cir. 2005) (per curiam) (finding waiver in

petitioner’s failure to raise argument in its opening brief). Accordingly, the Court will consider

Oceana’s NEPA theory waived as to Count III.

                        D. Use and Sufficiency of the SBRM (Count IV)

       In Count IV of its complaint, Oceana challenges the Omnibus Amendment’s alleged use

of the SBRM as a bycatch reporting methodology, arguing that the FMPs’ alleged use of the

SBRM fails to provide the NMFS with timely, accurate, and precise enough information to

meaningfully enforce ACLs. See Compl. ¶¶ 78–90, ECF No. 1. The SBRM is not established

by the Omnibus Amendment itself, but was instead established by the SBRM Amendment, a

separate rule, promulgated earlier by the NMFS in cooperation with the councils for the New

England and Mid-Atlantic regions. See SBRM Amendment, 73 Fed. Reg. 4736 (Jan. 28, 2008)

(codified at 50 C.F.R. pt. 648 (2013)). The SBRM Amendment requires the NMFS to place

enough independent observers within each “fishing mode”—that is, combination of vessel type

and fishing gear—to gather statistically reliable data on bycatch. See id. at 4738.

       However, the SBRM Amendment is no longer in effect. In 2011, the D.C. Circuit

ordered that the rule be vacated and remanded to the agency because it failed to comply with the

MSA’s requirement that the NMFS “establish” a standardized reporting methodology to assess

the amount and type of bycatch. Oceana, Inc. v Locke, 670 F.3d 1238, 1243 (D.C. Cir. 2011);




                                                 34
see also 16 U.S.C. § 1853(a)(11) (2012). The rule left the agency an escape hatch “[i]n any year

in which external operational constraints would prevent NMFS from fully implementing the

required at-sea observer coverage levels,” see SBRM Amendment, 73 Fed. Reg. at 4738, and the

court found that this gave the agency “complete discretion to determine when an external

operational constraint prevents [it] from fully implementing the required coverage levels.”

Oceana, 670 F.3d at 1241 (alteration in original) (internal quotation marks omitted). The agency

is still promulgating a new rule pursuant to the remand. See Notice and Request for Comments,

78 Fed. Reg. 69,391 (Nov. 19, 2013) (opening a comment period through December 19, 2013).

       Federal Defendants argue that, because the SBRM Amendment has already been vacated

and remanded, the Court can provide no further relief to Oceana. See Fed. Defs.’ Mot. Summ. J.

33–34, ECF No. 38. Oceana counters that the continued use of the SBRM is arbitrary and

capricious, citing general case law on the arbitrary and capricious standard. See Pl.’s Omnibus

Reply Br. 26, ECF No. 42. Defendants have the better argument here. As Judge Boasberg found

in ruling on Oceana’s challenge to an amendment to the New England FMPs, the sufficiency of

the SBRM “is the very question being litigated in a separate case involving the SBRM

Amendment.” Oceana, Inc. v. Locke, 831 F. Supp. 2d 95, 114 (D.D.C. 2011). Like Amendment

16 at issue in that case, the Omnibus Amendment itself does not purport to establish a bycatch

reporting methodology, and Oceana’s claim thus rests on the SBRM Amendment itself. Because

the SBRM Amendment has been vacated and remanded to the agency, there is no further remedy

the Court can provide. See id. (“No matter the grounds for Oceana’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.”).




                                               35
       To the extent Oceana wishes to challenge the new methodology resulting from the

remand, it must wait until the issue is ripe for adjudication. As noted, the agency is still in the

rulemaking phase. Because the Court can provide no further relief under the theory outlined in

Count IV of the complaint, the Court will also dismiss this count.

                    E. In-Season Bycatch Monitoring Measures (Count V)

       Oceana’s fifth and final claim asserts that, by declining to adopt in-season bycatch

monitoring, NMFS failed to establish sufficient AMs under Section 1853(a)(15) of the MSA.17

See Pl.’s Mot. Summ. J. 28–29, ECF No. 36. Defendants take the position that the MSA does

not require NMFS to monitor in-season bycatch in near real time. The MSA requires the

Secretary to “establish a mechanism for specifying annual catch limits in the [FMP] at such a

level that overfishing does not occur in the fishery, including measures to ensure accountability.”

16 U.S.C. § 1853(a)(15) (2012). As the Court has already noted, the latter clause requires the

Secretary to implement AMs to enforce ACLs. See supra Part IV.C.1 (citing Oceana, Inc. v.

Locke, 831 F. Supp. 2d 95, 109 (D.D.C. 2011)). The MSA itself is not specific as to the AMs it

requires, and so the Court, applying the doctrine of Skidmore v. Swift & Co., 323 U.S. 134

(1944), again views the NS1 Guidelines with considerable deference. See supra Part IV.C.1

(applying Skidmore to the NS1 Guidelines).

       Neither the MSA nor the Guidelines support Oceana’s assertion that NMFS was required

to implement in-season bycatch monitoring. Section 1853(a)(15) of the MSA broadly mandates

that the Secretary implement AMs, and does not specifically mention in-season bycatch


       17
           Oceana’s complaint asserted a broader claim, alleging that the Omnibus Amendment
failed to establish any bycatch reporting methodology, violating Section 1853(a)(5), (11), and
(15) of the MSA. See Compl. ¶¶ 91–95, ECF No. 1. However, Oceana relies solely on its in-
season bycatch monitoring theory under Section 1853(a)(15) in its briefing, thus waiving the
remaining theories it originally asserted. See also supra Part IV.C.2.


                                                 36
monitoring—or bycatch at all.18 See 16 U.S.C. § 1853(a)(15); see also Oceana, Inc. v. Locke,

831 F. Supp. 2d 95, 109 (D.D.C. 2011) (“Nothing in the statute’s text compels the conclusion

that ‘measures to ensure accountability’ with ACLs required by § (a)(15) must also, by

themselves, meet the requirements of § (a)(11).”). The NS1 Guidelines, which interpret the

MSA’s mandate that the Secretary balance optimum yield with conservation and management in

the establishment of ACLs and AMs, provide only that “[w]henever possible, FMPs should

include inseason monitoring and management measures to prevent catch from exceeding ACLs.”

50 C.F.R. § 600.310(g)(2) (2013) (emphasis added). Thus, although they are highly

recommended, in-season AMs (and in-season bycatch monitoring, specifically) are not

mandatory.

       Oceana cites to Locke for the proposition that “ACL monitoring . . . requires in-season

bycatch reports that measure discards in near real time . . . .” Locke, 831 F. Supp. 2d at 109. But

as FSF points out, Judge Boasberg was citing to the administrative record in that case, not to law,

indicating that the quoted language relates to the requirements of the specific FMP at issue in

that case. See FSF’s Cross-Mot. Summ. J. 27–28, ECF No. 37-1; see also Fed. Defs.’ Mot.

Summ. J. 36–37, ECF No. 38. See generally Amendment 16, 75 Fed. Reg. 18,262 (Apr. 9, 2010)

(codified as amended at 15 C.F.R. pt. 902 and 50 C.F.R. pt. 648 (2013)) (detailing weekly vessel

trip reporting requirements imposed by the amendment). This case relates to the fisheries within

the jurisdiction of the Mid-Atlantic Council, whose FMPs do not explicitly require “in-season


       18
          Section 1853(a)(11), which Oceana originally asserted in Count V and then waived,
see supra note 17, requires that the Secretary “establish a standardized reporting methodology to
assess the amount and type of bycatch occurring in the fishery,” 16 U.S.C. § 1853(a)(11), but
likewise does not explicitly state that the methodology must use in-season measures. Moreover,
as the Court noted above, NMFS is in the process of reissuing a standardized bycatch reporting
methodology on remand, following the D.C. Circuit’s rejection of the SBRM Amendment. See
supra Part IV.D.


                                                37
bycatch reports that measure discards in near real time”—not the New England FMPs at issue in

Locke.

          Because near-real-time in-season bycatch monitoring is not mandatory, the ultimate issue

of the Omnibus Amendment’s compliance with the MSA rests on whether the overall suite AMs

is sufficient to enforce the ACLs. See also supra Part IV.C.1. Defendants do not deny that some

form of accounting for bycatch, whether in-season or post-season, is an important component in

the overall suite. In the Omnibus Amendment’s final publication in the Federal Register, NMFS

stated:

          In lieu of monitoring total catch on a real-time basis, the Omnibus Amendment
          contemplates a two-part examination of the fisheries: Inseason monitoring of
          landings . . . and post-fishing year accounting of dead discards. The monitoring
          committees will consider the estimated discards for a given specification
          period . . . and recommend any necessary reductions for uncertainty associated
          with discard performance to the Council to establish ACT(s).

Omnibus Amendment, 76 Fed. Reg. 60,612 (Sept. 29, 2011) (A.R. 5203) (emphasis added).

NMFS acknowledged that the post-season estimation method “contains some uncertainty,

particularly if the discard estimates utilized to offset the ACT or to derive the landing limits

before the fishery occurs are variable.” Id. But this is accounted for in the management

uncertainty in setting the ACT, and thus the ACTs and post-season bycatch estimation go hand-

in-hand.

          Oceana asserts that post-season estimates will not generate precise enough data to

meaningfully enforce ACLs. See Pl.’s Mot. Summ. J. 29. But this assertion is unsupported by

evidence or data. Instead, Oceana focuses exclusively on the alleged need for in-season

monitoring without explaining why NMFS’s chosen alternative was arbitrary and capricious.

Although the method of using post-season bycatch estimates to create an ACT “buffer” in lieu of

real-time monitoring contains inherent uncertainty, see Omnibus Amendment, 76 Fed. Reg. at



                                                  38
60,612 (A.R. 5203), the availability of corrective AMs such as overage adjustments in

subsequent fishing years, see 50 C.F.R. § 600.310(g)(3), makes NMFS’s choice appear

reasonable. While near-real-time bycatch monitoring may lead to more reliable data in theory,

NMFS explained that it lacked the resources to undertake such a measure. See Omnibus

Amendment, 76 Fed. Reg. at 60,612 (A.R. 5203). Oceana does not directly challenge this

reasoning, but instead asserts that its own preferred AM is superior.19 Upon review of an agency

action, “[o]nce assured the [agency] has engaged in reasoned decisionmaking, it is not for [the

Court] to reweigh the conflicting evidence or otherwise substitute [its] judgment for that of the

[agency].” Ind. Mun. Power Agency v. FERC, 56 F.3d 247, 254 (D.C. Cir. 1995). This is

particularly true when the agency is using scientific and technical expertise and balancing its

resources. See Huls Am. Inc. v. Browner, 83 F.3d 445, 452 (D.C. Cir. 1996).

       Because Oceana has not shown that NMFS acted arbitrarily and capriciously in deciding

not to adopt in-season bycatch monitoring measures, the Court will enter judgment in favor of

Defendants as to Count V.


                                       V. CONCLUSION

       For the foregoing reasons, the Court will deny Oceana’s motion for summary judgment,

and grant Defendants’ motions for summary judgment. An order consistent with this

Memorandum Opinion is separately and contemporaneously issued.


Dated: March 10, 2014                                              RUDOLPH CONTRERAS
                                                                   United States District Judge


       19
          In response, Oceana quotes Locke for the proposition that “[s]tatutory requirements
that render fishery management more difficult or expensive, may not simply be disregarded.”
Locke, 831 F. Supp. 2d at 121, quoted in Pl.’s Mot. Summ. J. 29. However, as noted above, in-
season monitoring is not mandatory under the MSA or NS1 Guidelines.


                                                39
