                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA


MICHAEL S. FLAHERTY, et al.,          :
                                      :
               Plaintiffs,            :
                                      :
          v.                          : Civil Action No. 11-660 (GK)
                                      :
JOHN BRYSON,1 in his official         :
capacity as Secretary of the          :
Department of Commerce, et al.,       :
                                      :
               Defendants.            :


                        MEMORANDUM OPINION

     Plaintiffs Michael S. Flaherty, Captain Alan A. Hastbacka, and

the Ocean River Institute bring this suit against Defendants

Commerce Secretary Gary Locke, the National Oceanic and Atmospheric

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

(“NMFS”). Plaintiffs allege that Amendment 4 to the Atlantic

Herring Fishery   Management   Plan   violates   the   Magnuson-Stevens

Fishery Conservation and Management Act (“MSA”), 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. §§ 702 et seq.

     This matter is now before the Court on Cross-Motions for

Summary Judgment [Dkt. Nos. 17, 19]. Upon consideration of the

Motions, Oppositions, Replies, Oral Argument, Supplemental Briefs,



     1
       Secretary Bryson is substituted for Gary Locke pursuant to
Federal Rule of Civil Procedure 25(d).
the entire       record    herein,   and       for    the reasons      stated below,

Plaintiffs’ Motion for Summary Judgment is granted in part and

denied in part and Defendants’ Motion for Summary Judgment is

granted in part and denied in part.

I.     BACKGROUND

       A.   Statutory Background

            1.      The 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. § 1801(b)(1). The Act

provides a “national program” designed “to prevent overfishing, to

rebuild overfished stocks, to insure conservation, to facilitate

long-term protection of essential fish habitats, and to realize the

full    potential     of    the   Nation’s           fishery    resources.”   Id.    §

1801(a)(6).

       In order to balance the need for “a cohesive national policy

and the protection of state interests,” the MSA establishes eight

Regional Fishery Management Councils composed of federal officials,

state officials, and private parties appointed by the Secretary of

Commerce. C&W Fish Co. v. Fox, 931 F.2d 1556, 1557 (D.C. Cir.

1991); 16     U.S.C.      § 1852.    These      councils       are   responsible    for

developing fishery management plans (“FMPs”) for fisheries in

federal waters within the United States Exclusive Economic Zone,




                                           2
which       includes   ocean   water   from   three   to    two   hundred   miles

offshore. Id. § 1853.

     Each council must prepare and submit to NMFS2 an FMP and any

amendments that may become necessary “for each fishery under its

authority       that   requires   conservation    and      management.”     Id.   §

1852(h)(1). FMPs must include the “conservation and management

measures” that are “necessary and appropriate for the conservation

and management of the fishery, to prevent overfishing and rebuild

overfished stocks, and to protect, restore, and promote the long-

term health and stability of the fishery.”3 Id. § 1853(a)(1)(A).


     2
       The Secretary of the Department of Commerce has delegated
the authority and stewardship duties of fisheries management under
the MSA to NMFS, an agency within the Department. Compl. ¶ 13. On
behalf of the Secretary, NMFS reviews FMPs and FMP amendments and
issues implementing regulations. Id.
        3
            The Act defines “conservation and management” as:

               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
                                                        (continued...)

                                        3
FMPs must also be consistent with the ten “National Standards”

provided for in the MSA, as well as all other provisions of the

MSA,       and   “any    other      applicable    law.”   Id.   §   1853(a)(1)(C);

see also id. § 1851 (setting forth National Standards).

       Once a council has developed a plan, NMFS must review the plan

to determine whether it comports with the ten National Standards

and other applicable law. Id. § 1854(a)(1)(A). Next, after a period

of notice and comment, NMFS must “approve, disapprove, or partially

approve a plan or amendment,” depending on whether the plan or

amendment is consistent with the Standards and applicable law. Id.

§   1854(a)(3).         Even   if    NMFS   disapproves   the   proposed     FMP   or

amendment, it may not rewrite it. That responsibility remains with

the council, except under specifically defined circumstances. Id.

§§ 1854(a)(4), (c). If NMFS approves the plan or does not express

disapproval within 30 days, the FMP becomes effective. Id. §

1854(a)(3).

       At the beginning of 2007, Congress re-authorized and amended

the MSA. Magnuson-Stevens               Fishery   Conservation      and   Management

Reauthorization Act of 2006 (“MSRA”), P.L. 109-479, 120 Stat. 3575

(2007). One of the goals of the MSRA was to “set[] a firm deadline

to end overfishing in America.” 2007 U.S.C.C.A.N. S83, S83. To



       3
           (...continued)
               of these resources.

16 U.S.C. § 1802(5).

                                             4
accomplish this purpose, Congress added provisions to the MSA

calling for science based limits on total fish caught in each

fishery.

     The amended MSA requires the regional councils to add to all

FMPs mechanisms for setting the limits, termed Annual Catch Limits

(“ACLs”), on the amount of fish caught and accountability measures

(“AMs”)    for    ensuring   compliance      with   the   ACLs.   16   U.S.C.   §

1853(a)(15). These limits and accountability measures must take

effect “in fishing year 2011” for most fisheries, including the

Atlantic herring fishery.4 Pub. L. No. 109-479, § 104(b), 120 Stat.

3575, 3584.

            2.     The National Environmental Policy Act

     Congress enacted NEPA in order “to use all 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. § 4331(b). To accomplish

that goal,       NEPA   requires   all   federal    agencies   to   prepare     an



     4
       The MSRA sets an earlier deadline of “fishing year 2010 for
fisheries determined by [NMFS] to be subject to overfishing.” Pub.
L. No. 109-479, § 104(b), 120 Stat. 3575, 3584. The statute defines
“overfishing” or “overfished” 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). NMFS has not determined the Atlantic herring fishery to
be overfished.

                                         5
Environmental Impact Statement (“EIS”) whenever they propose “major

Federal actions significantly affecting the quality of the human

environment.” Id. § 4332(2)(C).

     To determine whether an EIS must be prepared, the agency must

first prepare an environmental assessment (“EA”). 40 C.F.R. §

1501.4(b). An EA must “[b]riefly provide sufficient evidence and

analysis for determining whether to prepare an environmental impact

statement or a finding of no significant impact.” Id. § 1508.9(a).

Even if the agency performs only an EA, it must still briefly

discuss the need for the proposal, the alternatives, and the

environmental impacts of the proposed action and the alternatives.

Id. § 1508.9(b). If the agency determines, after preparing an EA,

that a full EIS is not necessary, it must prepare a Finding of No

Significant Impact (“FONSI”) setting forth the reasons why the

action will not have a significant impact on the environment. Id.

§§ 1501.4(e), 1508.13.

     B.   Factual Background

     Plaintiffs challenge Amendment 4 to the Atlantic Herring

Fishery Management Plan, developed by the New England Fishery

Management Council (the “Council”). 76 Fed. Reg. 11373 (Mar. 2,

2011). Atlantic herring (Clupea harengus) have been managed through

the Atlantic Herring FMP since January 10, 2001. Administrative

Record (“AR”) 5578.




                                  6
     Atlantic herring inhabit the Atlantic Ocean off of the East

coast of the United States and Canada, ranging from North Carolina

to the Canadian Maritime Provinces. Id. at 6091. Atlantic herring

can grow to about 15.6 inches in length and live 15-18 years. Id.

at 6092. Atlantic herring play a vital role in the Northwest

Atlantic ecosystem, serving as a “forage species,” i.e. food, for

a number of other fish, marine mammals, and seabirds. Id. at 6111.

     Human beings also hunt Atlantic herring. Fishermen and women

predominantly catch Atlantic herring using midwater trawl gear,

paired midwater trawls, and purse seines. AR 6146. To do this,

boats working alone or in tandem drag nets through the water

scooping up fish as they go. Not surprisingly, these nets snare

large numbers of other fish and marine wildlife at the same time.

Id. at 6146-48, 6170-80.

     Of particular concern to Plaintiffs are four species, often

caught incidentally with Atlantic herring, collectively referred to

as “river herring”: (1) blueback herring (Alosa aestivalis), (2)

alewive   (Alosa   pseudoharengus),   (3)   American   shad   (Alosa

sapidissima), and (4) hickory shad (Alosa mediocris). See Pls.’

Mot. 1. River herring are apparently so-called because they are

anadromous--that is, they spawn in rivers but otherwise spend most

of their lives at sea, whereas Atlantic herring spend their entire

lives at sea. Id. It is undisputed that river herring play a

similar role to Atlantic herring, providing forage for large fish


                                 7
and mammals, including cod, striped bass, bluefin tuna, sharks,

marine mammals, and seabirds. Id. at 1, 8; see also AR 763-64. The

Atlantic Herring Fishery Management Plan, as updated by Amendment

4, provides ACLS and AMs for Atlantic herring but not for river

herring.

      C.   Procedural Background

      On May 8, 2008, NMFS published a Notice of Intent, announcing

that the Council would be preparing Amendment 4 to the Atlantic

Herring FMP as well as an Environmental Impact Statement. AR 5577.

The Notice explained that the MSRA required that ACLs and AMs be

established by 2011 for all fisheries not subject to overfishing.

Id. at 5578. Because the Atlantic herring fishery had not been

determined to be subject to overfishing, Amendment 4 was “necessary

to update the Herring FMP in a manner . . . consistent with the new

requirements of the MSRA” and was required to be in place by 2011.

Id.

      The Notice also indicated measures under consideration by the

Council. Specifically, the Notice stated that Amendment 4 might

address as many as five objectives:

           1.   To implement measures to improve the
                long-term monitoring of catch (landings
                and bycatch) in the herring fishery;

           2.   To implement ACLs and AMs consistent with
                the MSRA;

           3.   To implement other management measures as
                necessary to ensure compliance with the
                new provisions of the MSRA;

                                   8
           4.    To develop a sector allocation process or
                 other LAPP [“Limited Access Privilege
                 Program”] for the herring fishery; and

           5.    In the context of objectives 1–4 (above),
                 to consider the health of the herring
                 resource and the important role of
                 herring as a forage fish and a predator
                 fish throughout its range.

Id.

      However, on December 28, 2009, NMFS and the Council changed

course. At that time, NMFS issued a second Notice of Intent

explaining that “only the ACL/AM components will move forward as

Amendment 4, and that the Council intends to prepare EA for the

action.”   Id.   at   5640-41.   In   addition,   “[a]ll   other   proposed

measures formerly included in Amendment 4, including the catch

monitoring program for the herring fishery, measures to address

river herring bycatch, criteria for midwater trawl access to

groundfish closed areas, and measures to address interactions with

the mackerel fishery, will now be considered in Amendment 5.” Id.

at 5641. The Notice also promised that those “measures will be

analyzed in an EIS” to be issued with Amendment 5. Id.

      In short, the Government dropped from Amendment 4 any attempt

to add protections for fish other than the Atlantic herring, such

as the river herring of concern to Plaintiffs in this litigation,

electing only to address Atlantic herring ACLs and AMs.

      On March 2, 2011, NMFS published Amendment 4 as a Final Rule

in the Federal Register. Id. at 6325. In keeping with the December


                                      9
28, 2009 Notice of Intent, Amendment 4 designated Atlantic herring

as the only “stock in the fishery” and did not provide for any

measures specifically targeted at protecting river herring. Id. at

6326. The Final Rule implemented an Interim Acceptable Biological

Catch (“ABC”) Control Rule for Atlantic herring, from which ACLs

could   then   be   determined.   Id.   at   6327.   The   Final   Rule   also

established three AMs: (1) when a threshold amount of Atlantic

herring is caught, NMFS is to close relevant management areas; (2)

if a certain amount of haddock is incidentally caught, vessels are

to face restrictions; and (3) if the total amount of Atlantic

herring caught in a year exceeds any ACL or sub-ACL, the ACL or

sub-ACL is to be reduced by a corresponding amount in the year

after the calculation is made. Id.

     On April 1, 2011, Plaintiffs filed their Complaint [Dkt. No.

1]. Plaintiffs allege that: (1) Defendants violated the MSA and APA

by failing to include catch limits for river herring in Amendment

4; (2) Defendants violated the MSA and APA by failing to set

adequate ACLs for Atlantic herring in Amendment 4; (3) Defendants

violated the MSA and APA by failing to set adequate AMs for

Atlantic herring in Amendment 4; and (4) Defendants violated NEPA

by failing to develop an EIS for Amendment 4. Compl. ¶¶ 70-113.

     On September 9, 2011, Plaintiffs filed their Motion for

Summary Judgment (“Pls.’ Mot.”) [Dkt. No. 17]. On October 7, 2011,

Defendants filed their Opposition to Plaintiffs’ Motion and Cross-


                                    10
Motion for Summary Judgment (“Defs.’ Mot.”) [Dkt. No. 19]. On

October 28, 2011, Plaintiffs filed their Reply to Defendants’

Opposition and Opposition to Defendants’ Motion (“Pls.’ Reply”)

[Dkt. No. 20]. On November 18, 2011, Defendants filed their Reply

to Plaintiffs’ Opposition (“Defs.’ Reply”) [Dkt. 22]. On January 4,

2012, oral argument on the cross-motions was heard by this Court.

On January 11, 2012, with the Court’s permission, Defendants and

Plaintiffs filed respective Supplemental Memoranda (“Defs.’ Supp.

Mem.” and “Pls.’ Supp. Mem.”) [Dkt. Nos. 27 and 28].

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

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),


                                   11
(B), (C), or (D).”); Oceana, Inc. v. Locke, ___F.3d___, No. 10-

5299, 2011 WL 2802989, at *2 (D.C. Cir. July 19, 2011); C&W Fish,

931 F.2d at 1562; Oceana v. Locke, ___F. Supp. 2d___, No. 10-744

(JEB), 2011 WL 6357795, at *8 (D.D.C. Dec. 20, 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

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).




                                   12
     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).

III. ANALYSIS

     A.    Standing

     Defendants argue that Plaintiffs’ suit must be dismissed

because they lack Article III standing. Defs.’ Mot. 13-15. The

doctrine   of    standing      reflects   Article   III’s    “fundamental

limitation”     of   federal    jurisdiction   to   actual    cases   and

controversies. Summers v. Earth Island Inst., 555 U.S. 488, 493

(2009). The doctrine “requires federal courts to satisfy themselves

that ‘the plaintiff has alleged such a personal stake in the

outcome of the controversy as to warrant his [or her] invocation of

federal-court jurisdiction.’” Id. (quoting Warth v. Seldin, 422

U.S. 490, 498-99 (1975)) (emphasis on “his” in original).

     To obtain the injunctive relief they seek, Plaintiffs must

show that (1) they have “suffered an ‘injury in fact’ that is (a)


                                     13
concrete   and   particularized   and   (b)   actual   or   imminent,   not

conjectural or hypothetical; (2) the injury is fairly traceable to

the challenged action of the defendant; and (3) it is likely, as

opposed to merely speculative, that the injury will be redressed by

a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs., 528 U.S. 167, 180-81 (2000); see also Summers, 555 U.S. at

493; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992);

Shays v. FEC, 414 F.3d 76, 83 (D.C. Cir. 2005). Defendants contend

that Plaintiffs have failed to demonstrate that their alleged

injury is “imminent” or “traceable.” Defs.’ Mot. 13. They have not

challenged any of the other requirements for standing.

           1.    Injury in Fact--Imminence

     Plaintiffs claim that they are harmed (1) because they are

unable to fish for or observe river herring and (2) because, due to

the decline of river and Atlantic herring as forage, they are less

able to fish for or observe striped bass. Flaherty Decl. ¶¶ 2, 4-5,

12-13; Hastbacka Decl. ¶¶ 6-9, 14-16; Moir Decl. ¶¶ 14, 16-17 [Dkt.

No. 17-2]. Defendants argue that the injury associated with striped

bass is not actual or imminent because Plaintiffs have failed to

assert that they are “actually unable to fish for striped bass as

a result of NMFS’ actions.” Defs.’ Mot. 13 (emphasis in original).

     Defendants are incorrect. Captain Alan Hastbacka has asserted

that the fish his clients target, which include striped bass, are

“more abundant, bigger, and healthier” when “there are adequate


                                   14
forage fish” and that he can “sell more tackle . . . when the

fishing is good.” Hastbacka Decl. ¶ 6. During at least one fishing

season, the fish targeted by Captain Hastbacka and his clients,

including striped bass, disappeared when the Atlantic herring stock

in the area was depleted. Id. ¶ 9. Michael Flaherty similarly

states that “Defendants’ failures challenged in this case . . .

negatively impact the health and population levels of the striped

bass I fish for.” Flaherty Decl. ¶ 12.

     In other words, Plaintiffs claim that their ability to fish

striped bass for sport or business has been, and will continue to

be, harmed by the state of the Atlantic herring fishery because

adequate conservation measures to protect the herring upon which

striped bass feed have not been adopted. See, e.g., N.C. Fisheries

Ass’n, Inc. v. Gutierrez, 518 F. Supp. 2d 62, 82 (D.D.C. 2007)

(economic harm “is a canonical example of injury in fact sufficient

to establish standing.”) (citing Nat’l Wildlife Fed’n v. Hodel, 839

F.2d 694, 704 (D.C. Cir. 1988)).

     Indeed, Defendants themselves have amply made the point that

Atlantic herring serve as an important forage species for striped

bass and other ocean predators. AR 6111. In its analysis of

Amendment   4,   the   Council   stated   that   its   actions   “should

acknowledge the role that Atlantic herring plays in the Northwest

Atlantic ecosystem and address the importance of herring as a

forage species for many fish stocks, marine mammals, and seabirds.”



                                   15
Id. According to the Council, “[o]ne of the objectives of this

amendment . . . is . . . to consider the health of the herring

resource and the important role of herring as a forage fish.” Id.

at 6111-12. Hence, there is no doubt that Plaintiffs face imminent

harm to their interests in striped bass, should Defendants fail to

properly manage Atlantic herring.

     Defendants attempt to analogize this case to FCC v. Branton,

993 F.2d 906 (D.C. Cir. 1993). They argue that, “[a]s in Branton,

where the plaintiff did not have standing because his injury was

based on a possibility that he may someday be exposed to harm,

Captain Hastbacka’s concern that he may ‘someday’ be unable to fish

for striped bass as a result of the actions that NMFS took in

Amendment 4 is patently insufficient to satisfy the ‘injury in

fact’ requirement.” Defs.’ Mot. 13-14.

     Defendants’ analysis is not convincing. Branton pointed out

that “[i]n order to challenge official conduct one must show that

one ‘has sustained or is immediately in danger of sustaining some

direct injury’ in fact as a result of that conduct.” 993 F.2d at

908 (quoting Golden v. Zwickler, 394 U.S. 103, 109 (1969)). The

plaintiff in Branton alleged “that he was injured because he was

subjected to indecent language over the airwaves” on one past

occasion. Id. at 909. Our Court of Appeals held that “a discrete,

past injury cannot establish the standing of a complainant . . .

who seeks neither damages nor other relief for that harm, but



                                16
instead requests the imposition of a sanction in the hope of

influencing another’s future behavior.” Id. The allegation of a

single incident of indecent language is obviously very different

from the ongoing scenario presented here, where Plaintiffs state

that the striped bass which they and their clients fish and observe

are now and will in the future be threatened by overfishing of the

Atlantic and river herring.

      Plaintiffs in this case have alleged continuous and ongoing

harm to their ability to fish for species dependant on the Atlantic

and river herring. The harm to striped bass stemming from improper

regulation of forage fish presents a concrete explanation for how

Plaintiffs will be injured by Defendants’ actions. Lujan, 504 U.S.

at 564; N.C. Fisheries Ass’n, 518 F. Supp. 2d at 81 (in addressing

the injury in fact prong, “courts ask simply whether the plaintiff

has   ‘asserted    a    present   or   expected   injury   that   is   legally

cognizable and non-negligible.’”) (quoting Huddy v. FCC, 236 F.3d

720, 822 (D.C. Cir. 2001)).

           2.      Traceability

      Defendants       next   argue   that   Plaintiffs’   injuries    are   not

traceable to Amendment 4 because they “occurred long before NMFS

issued the final rule implementing Amendment 4” and “because they

concern species beyond the scope of the Amendment.” Defs.’ Mot. 14.

      The first argument is easily disposed of. As explained above,

Plaintiffs have stated that they continue to suffer from the


                                        17
depletion of river herring stocks and from the negative impact that

depletion of river and Atlantic herring has on striped bass. See

supra Part III.A.1; Hastbacka ¶¶ 6, 9; Flaherty Decl. ¶ 12.

Plaintiffs need demonstrate neither proximate causation nor but-for

causation to establish traceability; they must only show that “‘the

agency’s     actions   materially       increase[d]    the    probability    of

injury.’” N.C. Fisheries Ass’n, 518 F. Supp. 2d at 83 (quoting

Huddy, 236 F.3d at 722); see also Nat’l Audubon Soc’y v. Davis, 307

F.3d 835, 849 (9th Cir. 2002) (to be “fairly traceable,” chain of

causation must be plausible). Again, Defendants themselves have

acknowledged the chain of causation between under-regulation of

herring fishing and the abundance and health of predator fish. AR

6111-12.   Plaintiffs’      contention       that   Defendants’    choices   in

Amendment 4 will materially increase the probability of their

injury is far more than merely plausible.

     Further, taken to its logical conclusion, Defendants’ argument

would preclude anyone from challenging FMPs, since the decline of

the nation’s fisheries began before the MSA was enacted with the

purpose of stopping that deterioration. See 16 U.S.C. § 1801(b)(1).

Therefore,    the   fact   that   the   injuries     may   have   begun   before

issuance of Amendment 4 is no obstacle to Plaintiffs’ standing.

     Defendants’ next argument is no more persuasive. As to river

herring, the claim that Plaintiffs’ injury cannot be traced to

Amendment 4 because Amendment 4 does not address management of


                                        18
river herring is plainly circular when the essence of Plaintiffs’

challenge is to Defendants’ substantive decision not to include

that species. Plaintiffs claim that Defendants’ decision not to

manage river herring violated the MSA and APA. The harm caused by

depletion    of   river   herring   by     commercial   fishing     is   clearly

traceable to Defendants’ decision not to restrict river herring

catch. Moreover, there is no doubt that increased regulation of

river herring catch would contribute to the rebuilding of that

stock. Branton, 993 F.2d at 910 (traceability and redressability

“tend to merge . . . in a case such as this where the requested

relief consists solely of the reversal or discontinuation of the

challenged action.”) (citing Allen v. Wright, 468 U.S. 737, 759

n.24 (1984)).

     As to striped bass, the fact that Amendment 4 does not

specifically regulate striped bass is of no moment. As previously

explained,    Plaintiffs    have    articulated    a    perfectly    plausible

explanation for how harm to their ability to fish or observe

striped bass is traceable to Defendants’ claimed deficiencies in

regulating herring. N.C. Fisheries Ass’n, 518 F. Supp. 2d at 83.

     In short, Plaintiffs have shown a causal connection between

Defendants’ regulatory choices in Amendment 4 and the health of

river herring and striped bass stocks. Further, Plaintiffs have

demonstrated that (1) they have “suffered an ‘injury in fact’ that

is (a) concrete and particularized and (b) actual or imminent, not



                                      19
conjectural or hypothetical; (2) the injury is fairly traceable to

the challenged action of the defendant; and (3) it is likely, as

opposed to merely speculative, that the injury will be redressed by

a favorable decision.” Friends of the Earth, 528 U.S. at 180-81.

They therefore have standing to challenge Amendment 4.

      B.      Stocks in the Fishery

      Plaintiffs challenge Defendants’ decision to approve Amendment

4   because    the    Amendment   includes   only   Atlantic    herring,   and

excludes river herring, as a stock in the fishery. Once a fish is

designated as a “stock in the fishery,” the Council must develop

conservation and management measures, including ACLs and AMs, for

that stock. Pls.’ Mot. 14; 16 U.S.C. § 1853(a). Hence, the Atlantic

Herring FMP includes no protective measures for river herring.

      As described above, the MSA requires the Council to prepare an

FMP   “for     each    fishery    under    its   authority     that   requires

conservation and management.” 16 U.S.C. § 1852(h)(1). The Act

defines a “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.”     Id.   §

1802(13). A “stock of fish” is “a species, subspecies, geographical

grouping, or other category of fish capable of management as a

unit.” Id. § 1802(42). The Council determines which “target stocks”

(fish that are deliberately caught), and/or “non-target stocks”


                                      20
(fish that are incidentally caught), to include in the fishery. 50

C.F.R. § 600.310(d)(1).

     In other words, in developing an FMP, the Council must decide

which species or other categories of fish are capable of management

as a unit, and therefore should be included in the fishery and

managed together in the plan. This decision entails two basic

determinations. The Council must decide (1) which stocks “can be

treated as a unit for purposes of conservation and management” and

therefore should be considered a “fishery” and (2) which fisheries

“require conservation and management.” 16 U.S.C. §§ 1802(13),

1852(h)(1). The Council must then set ACLs and AMs for all stocks

in the fishery. Id. § 1853(a)(15). After the Council completes its

proposed plan or amendment, NMFS must review it for compliance with

applicable law and standards. Id. § 1854(a)(1)(A).

     Plaintiffs contend that Amendment 4 contravenes the Act’s

requirements by failing to include river herring as a stock in the

Atlantic herring fishery. Pls.’ Mot. 15. Consequently, Plaintiffs

argue, Defendants have violated the MSA and APA by erroneously

concluding that Amendment 4 comports with the provisions of the

MSA. Pls.’ Mot. 20; see also 16 U.S.C. § 1854(a)(1)(A) (NMFS must

determine whether FMPs are consistent with provisions of MSA); N.C.

Fisheries Ass’n, 518 F. Supp. 2d at 71-72 (“Secretarial review of

a FMP or plan amendment submitted by a regional council focuses on




                                21
the proposed action's consistency with the substantive criteria set

forth in, and the overall objectives of, the MSA.”).

      The Court must now consider whether NMFS acted arbitrarily

and/or    capriciously     in   approving       Amendment    4.     16    U.S.C.   §

1855(f)(1); 5 U.S.C. § 706(2). The Court’s “task is not to review

de novo whether the amendment complies with [the MSA’s] standards

but to determine whether [NMFS’s] conclusion that the standards

have been satisfied is rational and supported by the record.” C&W

Fish, 931 F.2d at 1562; see also Blue Ocean Inst. v. Gutierrez, 585

F. Supp. 2d 36, 43 (D.D.C. 2008).

      Defendants argue that the Administrative Record fully supports

their decision and rely on two basic rationales. First, Defendants

argue that, because of the imminence of the 2011 statutory deadline

for   completion     of    Amendment      4,    the     decision     to    postpone

consideration of inclusion of river herring in the fishery until

development of Amendment 5 was reasonable. Second, Defendants argue

that NMFS properly deferred to the Council’s determination as to

the makeup of the fishery.

            1.     Delay Due to Statutory Deadline

      Defendants first point to the pressure imposed by the MRSA’s

deadline. Defendants state that, in June 2009, they determined that

consideration of measures specifically designed to protect river

herring   should    be    delayed   so   that    they    could     meet   the   2011

statutory deadline for providing measures to protect Atlantic


                                         22
herring. Defs.’ Mot. 17, 38; see AR 6325-26 (“In June 2009, the

Council determined there was not sufficient time to develop and

implement all the measures originally contemplated in Amendment 4

by 2011, so it decided that Amendment 4 would only address ACLs and

AMs requirements and specification issues.”). Defendants’ logic was

that because time was limited and the MSA required ACL and AM rules

for all stocks in the fisheries and Atlantic herring had already

been identified as a stock in the fishery, they could best comply

with the MSA by formulating only the Atlantic herring regulations

and postponing consideration of regulations for the management of

river herring. See Pub. L. No. 109-479, § 104(b), 120 Stat. 3575,

3584 (requiring that FMPs including processes for setting ACLs and

AMs take effect “in fishing year 2011 for all . . . fisheries” not

determined   to   be   overfished,      including     the   Atlantic    herring

fishery).

     While   it   is   correct   that    the   MRSA   did   impose     the   2011

deadline, Defendants fail to provide any explanation or analysis

from which the Court can conclude that the delay in considering the

composition of the fishery, which entailed exclusion of river

herring, was reasonable. McDonnell Douglas Corp., 375 F.3d at 1186-

87 (“we do not defer to the agency’s conclusory or unsupported

suppositions.”). The MSRA was signed at the beginning of 2007.

Defendants identify nothing in the Administrative Record that

explains why, when the Council had more than four years to meet the



                                     23
statutory deadline for fishing year 2011, it could not address

whether river herring, in addition to Atlantic herring, were in

need of ACLs and AMs and still meet its deadline.

     The Administrative Record discloses only vague and conclusory

statements that “there was not sufficient time to develop and

implement all the measures originally contemplated in Amendment 4

by 2011.” AR 6325; see also AR 5641. The closest Defendants come to

providing a substantive explanation is to quote a slide from a

January 26, 2011, meeting regarding proposed Amendment 5, which

reads, “the Herring [Plan Development Team] cannot generate a

precise enough estimate of river herring catch on which to base a

cap.” AR 5361. That document does not explain why an estimate could

not have been generated prior to issuance of Amendment 4, nor why

the Council could not at the very least have devised an interim

Acceptable Biologic Catch control rule based on the best available

science, as it did in Amendment 4 for Atlantic herring. Defendants

point to no other evidence in the Administrative Record to explain

why the Council was unable to address management of river herring

in the four years of lead time that elapsed between the signing of

the MSRA and the final promulgation of Amendment 4.

     The reason that Defendants’ failure matters is that the MRSA

requires ACLs and AMs for all stocks in need of conservation and

management, not just for those stocks which were part of the

fishery prior to passage of the MRSA. Although the MRSA does not



                                24
explicitly require the Council to reassess the makeup of the

fishery, it does require the Council and NMFS to set ACLs and AMs

by 2011 “such that overfishing does not occur in the fishery.” 16

U.S.C. § 1853(a)(15). The setting of ACLs and AMs necessarily

entails a decision as to which stocks require conservation and

management. Id. §§ 1802(13), 1853(a)(15). Hence, Defendants must

provide some meaningful explanation as to why it was not possible

to consider which stocks, other than Atlantic herring, should be

subject to the ACLs and AMs which are so central to effective

fishery management and avoidance of overfishing. NetCoalition v.

SEC, 615 F.3d 525, 539 (D.C. Cir. 2010) (“an agency may not shirk

a statutory responsibility simply because it may be difficult.”).

      Moreover, Defendants have not explained why the information in

the   Administrative   Record   cited   by   Plaintiffs   was   deemed

insufficient to justify including river herring as a stock, as

urged in many comments submitted on the Proposed Regulation, or to

permit setting at least an interim Acceptable Biological Catch

limit for the species, just as was done for Atlantic herring. See

Pls.’ Mot. 18-19 (citing AR 154, 157, 315, 407, 645, 665, 755, 779,

780, 795, 903, 1257, 1288, 1506, 1978, 2550, 2571, 2602, 2806,

3789, 6341).

      In short, Defendants themselves cite to no evidence or facts

supporting the Council’s excuse that “there was not sufficient

time” to consider the fishery’s composition. AR 6325; Kristin



                                 25
Brooks Hope Ctr. v. FCC, 626 F.3d 586, 588 (D.C. Cir. 2010) (“The

agency’s explanation cannot ‘run [] counter to the evidence,’ . .

. and it must ‘enable us to conclude that the [agency’s action] was

the product of reasoned decisionmaking.’”) (quoting Motor Vehicle

Mfrs. Ass’n, 463 U.S. at 43, 52).

       While a looming statutory deadline may in some instances

provide justification for an agency’s delay in decision-making, it

does    not    relieve   Defendants      of    the   duty    to     “articulate    a

satisfactory       explanation   for     its   action     including    a   rational

connection between the facts found and the choice made”--especially

when the agency was given a four-year lead time to meet that

deadline and failure to meet it could have serious consequences for

the species to be protected. Motor Vehicle Mfrs. Ass’n, 463 U.S. at

43 (internal quotation omitted). Defendants’ conclusory statement

that river herring would simply have to wait until a future

amendment does not suffice. Kristin Brooks Hope Ctr., 626 F.3d at

588; McDonnell Douglas Corp., 375 F.3d at 1186-87.

              2.    Deference to the Council

       Defendants also argue that river herring were not designated

as a stock in the fishery because the Council decided to include

only target stocks in the fishery, and river herring is a non-

target stock.       Defs.’   Mot.   17    (citing    AR    6067).    According    to

Defendants, NMFS deferred to the Council’s decision not to include

any non-target stocks in the fishery, and needed to do no more. AR


                                         26
6256, 6330. The crux of Defendants’ argument is that under both the

structure of the MSA and the agency’s own regulations, unless a

species is determined by NMFS to be “overfished” or the Council’s

decision is in clear violation of the MSA,5 NMFS should simply

defer to the Council’s determination of what stocks are in the

fishery rather than conduct an independent review of whether that

determination complies with the MSA’s provisions and standards.

Defs.’ Mot. 15-16; Defs.’ Reply 4-9.

                  a.    Statutory Provisions

     Defendants argue that the “Magnuson-Stevens Act entrusts the

Councils   with   the   responsibility   to    prepare   FMPs   for   those

fisheries requiring conservation and management” and that the

“inclusion of a species . . . in a fishery management unit is based

on a variety of judgment calls left to the Council.” Defs.’ Mot.

15. Defendants rely on 16 U.S.C. § 1852(h), giving the Council the

responsibility to prepare and submit FMPs and amendments, and on 16

U.S.C. § 1854(e), requiring an FMP only where NMFS has determined

that a fishery is “overfished.” Therefore, Defendants contend, in


     5
       Defendants have not been consistent in explaining what sort
of review NMFS must apply to the Council’s determination of the
composition of a fishery. In their Motion, Defendants concede that
NMFS must review FMPs and amendments for consistency with the
National Standards and applicable law, but argue that “[t]he
inclusion of a species not determined to be overfished in a fishery
management unit is based on a variety of judgment calls left to the
Council.” Defs.’ Mot. 15-16. Hence, Defendants appear to be arguing
that the Council’s decision to exclude a species from a fishery is
unreviewable. Later, at oral argument, however, Defendants agreed
that the Council’s decision must not be arbitrary or capricious.

                                   27
the absence of a finding of overfishing, council decisions about

the make-up of a fishery are unreviewable by NMFS and are entitled

to deference.

     Plaintiffs view Defendants’ argument as “threaten[ing] to

unravel the entire fabric of the Act.” Pls.’ Mot. 17. They caution

that, under the Defendants’ interpretation of the MSA, “councils

would be left with the sole discretion to include any, or no,

stocks in their FMPs, regardless of whether there is scientific

information demonstrating the need for their conservation and

management.” Id.

     Defendants are correct that “it is the Council that has the

responsibility to prepare the FMP in the first instance for those

fisheries requiring conservation and management,” which includes

describing the species to be managed. Defs.’ Reply 4-5 (citing 16

U.S.C.   §§   1852(h)(1),   1853(a)(2))   (emphasis   in   original).   As

explained above, except in special circumstances,6 the council

prepares and submits proposed FMPs and amendments to NMFS. 16

U.S.C. § 1852(h)(1).

     What Defendants fail to fully appreciate, however, is that

once the council completes its work, the MSA requires NMFS to

review its plan to determine whether it comports “with the ten

     6
      For example, NMFS may develop its own FMP if a council fails
to do so within a reasonable time for a fishery in need of
conservation and management, or NMFS may order a council to take
action to end overfishing and rebuild stocks if it finds that a
fishery is overfished or approaching a condition of being
overfished. 16 U.S.C. §§ 1854(c)(1), (e).

                                   28
national standards, the other provisions of [the Act], and any

other applicable law.” Id. § 1854(a)(1)(A). Thus, it is Defendants’

responsibility to decide whether an FMP, including the composition

of its fishery, satisfies the goals and language of the MSA. N.C.

Fisheries Ass’n, 518 F. Supp. 2d at 71-72 (“Secretarial review of

a FMP or plan amendment submitted by a regional council focuses on

the proposed action's consistency with the substantive criteria set

forth   in,    and   the    overall    objectives       of,   the   MSA.”).   While

Defendants are correct that it is the Council’s role to name the

species to be managed “in the first instance,” it is NMFS’s role,

in the second instance, to ensure that the Council has done its job

properly under the MSA and any other applicable law.

      It is true that the MSA requires management measures when NMFS

finds overfishing. But it certainly does not follow that in the

absence of overfishing NMFS may simply rubber stamp the Council’s

decisions. Section 1854(a) is clear: NMFS must examine whether the

FMP   “is     consistent     with     the    national    standards,     the   other

provisions of [the MSA], and any other applicable law.” 16 U.S.C.

§ 1854(a)(1)(A). While NMFS may defer to the Council on policy

choices, the Act plainly gives NMFS the final responsibility for

ensuring that        any   FMP   is   consistent    with      the   MSA’s   National

Standards, and “the overall objectives” of the Act. N.C. Fisheries

Ass’n, 518 F. Supp. 2d at 71-72.




                                            29
     Defendants’   responsibilities   therefore   include   ensuring

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.” 16 U.S.C. § 1852(h)(1). That Section

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.

Id. §§ 1802(13)(a), 1852(h)(1). 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. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 52

(“agency’s explanation . . . [must] enable us to conclude that [its

decision] was the product of reasoned decisionmaking.”).

     There is no basis for concluding, as Defendants do, 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 Amendment 4 complies with Section 1852(h) are therefore no

different than review of NMFS’s conclusion that an amendment

complies with the National Standards. See N.C. Fisheries Ass’n, 518

F. Supp. 2d at 71-72 (“Secretarial review of a FMP or plan

amendment submitted by a regional council focuses on the proposed

action's consistency with the substantive criteria set forth in,

and the overall objectives of, the MSA.”). Merely deferring to the



                                30
Council’s    exclusion    of    non-target    species   like   river   herring

without any explanation for why that exclusion complies with the

MSA fails to meet APA standards. Motor Vehicle Mfrs. Ass’n, 463

U.S. at 43 (agency must “examine the relevant data and articulate

a satisfactory explanation for its action”); Tourus Records, Inc.

v.   DEA,   259   F.3d   731,   737   (D.C.   Cir.   2001)   (“A   fundamental

requirement of administrative law is that an agency set forth its

reasons for decision; an agency's failure to do so constitutes

arbitrary and capricious agency action.”) (internal quotations

omitted).

                  b.     Defendants’ Regulation

      National Standard 1 of the MSA states, “Conservation and

management measures shall prevent overfishing while achieving, on

a continuing basis, the optimum yield from each fishery for the

U.S. fishing industry.” 16 U.S.C. § 1851(a)(1). Defendants cite to

50 C.F.R. § 600.310(d)(1), which interprets that Standard, and

states: “[t]he relevant Council determines which specific target

stocks and/or non-target stocks to include in a fishery.” According

to Defendants, this provision justifies NMFS’s failure to explain

why the Council’s decision comports with the MSA. Defs.’ Mot. 15.

      However, Section 1854 states in no uncertain language that

NMFS must “determine whether [the plan or amendment] is consistent

with the national standards, the other provisions of this chapter,

and any other applicable law.” 16 U.S.C. § 1854(a)(1)(A). A mere


                                       31
regulation can never override a clear Congressional statutory

command--i.e., that NMFS shall review FMP amendments for compliance

with all provisions of the MSA. Chevron, U.S.A., Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984); Nat’l Ass’n

of Clean Air Agencies v. EPA, 489 F.3d 1221, 1228 (D.C. Cir. 2007).

Nor,   it    should   be     noted,    need       50    C.F.R.   §     600.310(d)(1)      be

interpreted as Defendants do. It is absolutely correct that under

the MSA, the councils do have the responsibility to determine what

stocks to include in the fishery. But that is not the end of the

process. After the councils make their determination, NMFS must

still make its final compliance review.

       Simply put, 50 C.F.R. § 600.310(d)(1) cannot be understood to

permit NMFS to ignore its duty to ensure compliance with the MSA.

The councils do not have unlimited and unreviewable discretion to

determine the make-up of their fisheries.

       Therefore, Defendants were required to review Amendment 4 for

compliance     with    the    MSA.     Defendants        need    not    prove    that the

decision to designate only target stocks as stocks in the fishery

was    the   best    decision,       but    they       must   demonstrate       that    they

reasonably     and     rationally          considered         whether    Amendment       4's

definition of the fishery complied with the National Standards and

with the MSA’s directive that FMPs be generated for any fisheries

requiring     conservation       and       management.        Mere   deference     to   the

Council, with nothing more, does not demonstrate reasoned decision-



                                             32
making. Motor    Vehicle    Mfrs. Ass’n,    463   U.S. at   56   (agency’s

decision was arbitrary and capricious because it failed to analyze

the issue); Am. Equity Inv. Life Ins. Co. v. SEC, 613 F.3d 166, 179

(D.C. Cir. 2010) (same); Sierra Club v. U.S. Army Corps of Eng’rs,

772 F.2d 1043, 1051 (2d Cir. 1985) (“agency’s action is held to be

arbitrary and capricious when it . . . utterly fails to analyze an

important aspect of the problem.”).

     C.    Bycatch

     Plaintiffs also contend that Amendment 4 fails to minimize

bycatch,   in   violation   of   National   Standard   9.   16   U.S.C.   §

1851(a)(9). “Bycatch” refers to “fish which are harvested in a

fishery, but which are not sold or kept for personal use” including

“economic discards and regulatory discards.” Id. § 1802(2). In

other words, fish incidentally caught in a trawler’s net and then

later thrown away are bycatch. “In simple terms, bycatch kills fish

that would otherwise contribute toward the well-being of the

fishery or the nation’s seafood consumption needs.” Conservation

Law Found. v. Evans, 209 F. Supp. 2d 1, 14 (D.D.C. 2001).

     The Final Rule implementing Amendment 4 addresses bycatch in

one sentence: “[b]ycatch in the herring fishery will continue to be

addressed and minimized to the extent possible, consistent with

other requirements of the MSA.” 76 Fed. Reg. 11373, 11374; AR 6326.

Plaintiffs argue that this one sentence is insufficient under the

MSA, because the Act “requires that all FMPs and FMP amendments


                                   33
contain concrete conservation and management measures to minimize

bycatch and bycatch mortality to the extent practicable.” Pls.’

Mot. 21. Defendants respond that (1) Plaintiffs have waived their

claim under National Standard 9 by failing to raise an objection

during the administrative process; and (2) the Council and NMFS

have sufficiently minimized bycatch based on the best available

science. Defs.’ Mot. 19-21.

     Defendants’ first argument is, to put it mildly, hyper-

technical, and without merit. Defendants concede that Plaintiffs

did comment on bycatch during the administrative process, but only

before Defendants issued their second Notice of Intent, limiting

Amendment   4's scope   to   addressing   ACLs   and AMs   for   Atlantic

herring. Defs.’ Reply 10. Nonetheless, Defendants contend that

Plaintiffs’ failure to raise the issue again, after NMFS announced

that Amendment 4 would proceed in its reduced form, bars them from

bringing the claim. Id. That is, Defendants argue that Plaintiffs

waived their bycatch claim by not raising it a second time, after

Defendants had already made clear that they would not consider

bycatch in Amendment 4.

     This argument finds no support in caselaw--nor for that matter

in fundamental fairness. Certainly it is true “that a party will

normally forfeit an opportunity to challenge an agency rulemaking

on a ground that was not first presented to the agency for its

initial consideration.” Advocates for Highway & Auto Safety v. Fed.



                                  34
Motor Carrier Safety Admin., 429 F.3d 1136, 1150 (D.C. Cir. 2005).

But Defendants cite no authority requiring parties to raise the

ground repeatedly after the agency has rejected their suggestion or

after each new version of the proposed action is issued.

      Moreover, by raising the bycatch issue before Amendment 4 was

reduced in scope, Plaintiffs clearly satisfied the purposes of this

issue waiver rule. Plaintiffs “‘alert[ed] the agency to [their]

position and contentions,’ in order to allow the agency to give the

issue meaningful consideration.” Dep’t of Transp. v. Pub. Citizen,

541 U.S. 752, 764 (2004) (quoting Vermont Yankee Nuclear Power

Corp. v. NRDC, 435 U.S. 519, 553 (1978)); see also Advocates for

Highway & Auto Safety, 429 F.3d at 1150 (the two reasons for an

“issue exhaustion” or “issue waiver” rule are that (1) “the role of

the   court   is   to   determine   whether   the   agency's   decision   is

arbitrary and capricious for want of reasoned decisionmaking” and

(2) “‘[s]imple fairness . . . requires as a general rule that

courts should not topple over administrative decisions unless the

administrative body . . . has erred against objection made at the

time appropriate under its practice.’”) (quoting United States v.

L.A. Trucker Lines, Inc., 344 U.S. 33, 37 (1952)). Consequently,

the Court concludes that Plaintiffs have not waived their claim

under National Standard 9.




                                     35
       Defendants’ second argument is more substantive. They contend

that, in fact, they have satisfied their responsibility to minimize

bycatch to the extent practicable.

       National    Standard    9   requires   that   “[c]onservation   and

management measures shall, to the extent practicable, (A) minimize

bycatch and (B) to the extent bycatch cannot be avoided, minimize

the mortality of such bycatch.” 16 U.S.C. § 1851(a)(9). While each

FMP must attempt to minimize bycatch to the extent practicable, it

must       also   “balance    competing    environmental   and   economic

considerations” as embodied in the ten National Standards. Ocean

Conservancy v. Gutierrez, 394 F. Supp. 2d 147, 157 (D.D.C. 2005);

Pacific Coast Fed’n of Fishermen’s Ass’n v. Locke, No. C 10-04790

CRB, 2011 WL 3443533, at *9 (N.D. Cal. Aug. 5, 2011). Nonetheless,

to meet their responsibility to ensure compliance with the National

Standards, Defendants must demonstrate that they have evaluated

whether the FMP or amendment minimized bycatch to the extent

practicable. Conservation Law Found., 209 F. Supp. 2d at 14.

       Defendants argue that they have met this burden because the

FMP as a whole minimizes bycatch.7 Defs.’ Mot. 20-21. Defendants

       7
       Defendants make much of the distinction that “as a legal
matter, the Magnuson-Stevens Act requires that the overall fishery
management plan be consistent with National Standard 9--not that
each separate amendment contain measures to minimize bycatch.”
Defs.’ Mot. 20 (citing 16 U.S.C. § 1851(a)(9)) (emphasis in
original). While it may be correct that Amendment 4's compliance
with National Standard 9 should be viewed in the context of the
entire FMP, it is also clear, as discussed earlier, that NMFS was
required to review Amendment 4 “to determine whether it is
                                                    (continued...)

                                      36
point to (1) Amendment 1 to the FMP, which “prohibits midwater

trawling vessels from fishing in a designated area for Atlantic

herring from June 1 to September 30 of each year,” (2) the haddock

incidental catch cap, which addresses haddock bycatch and was

developed through Framework 43 of the Northeast Multispecies FMP,8

and (3) the limits generally placed on the herring fishery by the

interim   ABC   control      rule.   Id.      None   of   these    three    examples

demonstrate     that   Defendants       undertook     any   effort     to   consider

whether   Amendment     4,   or   the    FMP    as   amended      by   Amendment   4,

minimized bycatch to the extent practicable.

     The first measure identified by Defendants, Amendment 1,

simply bans use of midwater trawling vessels in one of the Atlantic

herring fishery’s four management areas for four months of the

year. 72 Fed. Reg. 11252, 11257 (Mar. 12, 2007). While this rule,

issued in March of 2007, does reduce the use of a type of boat that

causes substantial bycatch, it does so for only four months per

year in only one management area. The second measure, the haddock

     7
      (...continued)
consistent with the national standards.” 16 U.S.C. § 1854(a)(1)(A).
Hence, NMFS’s review of Amendment 4 had to include some analysis of
whether the FMP minimized bycatch “to the extent practicable.” Id.
§ 1851(a)(9). As discussed at length below, Defendants have
identified nothing in the Administrative Record demonstrating such
examination.
     8
       The haddock incidental catch cap specifies an “incidental
haddock catch allowance” for the season for the herring fishery. AR
6153. In simple terms, when a vessel has reached the allowance for
incidental haddock catch, it is prohibited from fishing for,
possessing, or landing more than 2,000 pounds of herring per trip
for the rest of the year. Id.

                                         37
incidental catch cap, which was issued as part of the Northeast

Multispecies FMP, only considers haddock bycatch, and gives no

incentive for minimizing bycatch of other species, such as river

herring. AR 6153. Finally, the third measure is merely the limits

on Atlantic herring catch and in no way limits fishing to minimize

river herring or other bycatch. Thus, this measure only has the

ancillary benefit of reducing bycatch and bycatch mortality of

river herring and other fish by generally limiting the amount of

fishing in the Atlantic herring fishery.

     The existence of an earlier rule to reduce bycatch and two

measures that, at best, have only an incidental effect on bycatch

does not show that NMFS ever considered the significant issue of

whether the Atlantic Herring FMP minimizes bycatch or bycatch

mortality to the extent practicable based on the best available

science. 16 U.S.C. §§ 1851(a)(2), (9). While each of these three

measures may have some impact on total bycatch in the Atlantic

herring   fishery,   none   of   them    indicate   that   Defendants   have

considered the issue in any substantive manner.

     Defendants also quote from two sections of Amendment 4 that

discuss bycatch. First, Defendants point to the section of the

Council’s substantive analysis of Amendment 4 that ostensibly

discusses National Standard 9. Defs.’ Mot. 20-21. This single

paragraph explains that “the Council made the decision to include

only [Atlantic] herring as a stock with the knowledge that other



                                    38
mechanisms exist to deal with non-targets [sic] species caught,”

and “one of the objectives of Amendment 5 to the Atlantic Herring

FMP, which is under development, is to develop a program which

effectively and efficiently monitors bycatch and potentially acts

to reduce it.” AR 6087. “The amendment therefore specifies that

bycatch is to be monitored and minimized accordingly.”9 Id. If

     9
         The paragraph in full reads:

            National Standard 9 states that bycatch must
            be minimized and that mortality of such
            bycatch must be minimized. As such, the
            Council made the decision to include only
            herring as a stock with the knowledge that
            other    mechanisms   exist   to   deal   with
            non-targets [sic] species caught by the
            herring fishery. The amendment therefore
            specifies that bycatch is to be monitored and
            minimized accordingly. This amendment also
            includes    the  haddock   catch  cap,   being
            implemented as an AM, which is another way in
            which bycatch is considered and minimized
            without the haddock stock being defined as a
            part of the fishery. Furthermore, one of the
            objectives of Amendment 5 to the Atlantic
            Herring FMP, which is under development, is to
            develop a program which effectively and
            efficiently monitors bycatch and potentially
            acts to reduce it with collaboration from the
            fishing industry. The measure maximizes the
            flexibility provided to the Council so that it
            can utilize the best scientific information
            available at the time when the new amendment
            is implemented. For these reasons the Council
            decided that until such time that evidence is
            brought to the Council which indicates that
            another species needs to be added to the
            definition of a stock within the herring FMP
            in order to be managed acceptably, Atlantic
            herring will be the only defined stock in the
            fishery.

                                                     (continued...)

                                 39
anything, this statement makes it clear that neither the Council

nor NMFS made any effort to consider whether bycatch was minimized

to the extent practicable. 16 U.S.C. § 1851(a)(9).

     Second, Defendants point to the section of their analysis of

the “Environmental Impacts of Management Alternatives” dealing with

the “Impacts on Non-target Bycatch Species.” AR 6193-95. Defendants

quote: “Amendment 4 ‘limit[s] the catch of non-target/bycatch

species, particularly through the limit to the fishery placed by

the interim ABC control rule.’” Defs.’ Mot. 20-21 (quoting AR

6193). In context, all that the document actually says is that,

because of Amendment 4's interim limits on the total catch allowed

for Atlantic herring, there will be less incidental catch of non-

target species than under “the no action alternative.” AR 6193-94.

Again,   this   conclusion    does   not    reflect   any   examination   or

consideration of whether the FMP, as amended, actually minimizes

bycatch to the extent practicable. 16 U.S.C. § 1851(a)(9).

     Finally,    Defendants     state      that   they   chose   to   defer

consideration of National Standard 9 due to the 2011 statutory

deadline for Amendment 4. Defs.’ Mot. 21. For the reasons discussed

at length above, supra Part III.B.1., this rationale does not

suffice to demonstrate reasoned analysis of the bycatch issue. In

sum, there is no evidence that the agency “thoroughly reviewed the

relevant scientific data on bycatch and consulted with participants

     9
      (...continued)
AR 6087.

                                     40
in the fishery to determine whether the proposed regulations would

be effective and practical,” as they must do to satisfy their

responsibilities to ensure compliance with the National Standards.

Ocean Conservancy, 394 F. Supp. 2d at 159; Conservation Law Found.,

209 F. Supp. 2d at 14. Therefore, Defendants’ approval of Amendment

4, without addressing the minimization of bycatch to the extent

practicable, was in violation of the MSA and APA.

     D.   ACLs for Atlantic Herring

     Plaintiffs   claim   that   Amendment   4's   annual   catch   limit

(“ACL”)10 for Atlantic herring violates the MSA because it fails to

prevent overfishing and is not based upon the best available

science. 16 U.S.C. §§ 1851(a)(1), (2). As detailed above, the MRSA

significantly enlarged the Council’s and NMFS’s duties by requiring

all FMPs to include “a mechanism for specifying annual catch limits

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

fishery.” Id. § 1853(a)(15). The new ACLs are to set specific

limits on the total fish caught in each fishery.

     The setting of an ACL entails a rather laborious process

intended to generate a scientific basis for the final catch limit.

First, the Council must define an overfishing limit (“OFL”), which,

to simplify, is an estimate of the rate of fishing at which a




     10
       Amendment 4 permits the Council to establish both an overall
ACL for the Atlantic herring fishery, and sub-ACLs for specific
management areas. AR 6072-73, 6090.

                                  41
fishery will not be sustainable.11 50 C.F.R. §§ 600.310(e)(1)(i)(A)-

(2)(i)(E).

     Second, the Council must determine the acceptable biological

catch (“ABC”), which is the amount of fish that may be caught

without exceeding the overfishing limit, after taking into account

scientific uncertainty. Id. § 600.310(f)(2)(ii). In order to set

the ABC, the Council must first establish an “ABC control rule,”

which     explains   how   the   Council   will   account   for   scientific

uncertainty when setting the ABC. 50 C.F.R. § 600.310(f)(4). The

objective of the ABC control rule is to create a buffer between OFL

and ABC so that there is a low risk that OFL will be exceeded. See

id. §§ 600.310(b)(v)(3), (f)(4).

     Third, and finally, the Council must set the ACL, which is the

amount of fish that may be caught without exceeding the ABC, after

taking into account management uncertainty, such as late reporting,




     11
        Even this first step entails a number of complex and
technical calculations and analyses. For example, in order to
determine an OFL, one must, among other things, consider (1) the
Maximum Sustainable Yield (“MSY”), defined as “the largest
long-term average catch or yield that can be taken from a stock or
stock complex under prevailing ecological, environmental conditions
and fishery technological characteristics . . . , and the
distribution of catch among fleets,” (2) the MSY fishing mortality
rate (“Fmsy”), defined as “the fishing mortality rate that, if
applied over the long term would result in MSY,” and (3) the MSY
stock size (“Bmsy”), defined as “the long-term average size of the
stock or stock complex, measured in terms of spawning biomass or
other appropriate measure of the stock's reproductive potential
that would be achieved by fishing at Fmsy.” 50 C.F.R. §
600.310(e)(1)(i).

                                     42
misreporting, and underreporting of catch.12 Id. § 600.310(f)(1).

In mathematical terms, the entire process can be described as

OFL$ABC$ACL. AR 6061. In plain English, the ABC must be equal to or

less than OFL, to account for scientific uncertainty, and the final

ACL must be equal to or less than ABC, to take into account

management uncertainty. 50 C.F.R. §§ 600.310(e)-(f).

     Further,   each   council   must   establish   a   scientific   and

statistical committee (“SSC”), whose members must include Federal

and State employees, academicians, or independent experts with

“strong scientific or technical credentials and experience.” 16

U.S.C. §§ 1852(g)(1)(A), (C). The SSC provides “ongoing scientific

advice” for fishery management decisions, including the setting of

ABC and OFL. Id. § 1852(g)(1)(B). In particular, the Council must

create its ABC control rule based on scientific advice from the

SSC. 50 C.F.R. § 600.310(f)(4). Additionally, ACLs “may not exceed

the fishing level recommendations” of the Council’s SSC. 16 U.S.C.

§ 1852(h)(6). To summarize, in the process of setting the final

ACL, the council must solicit scientific advice from the SSC and,

based on that advice, establish a rule for acceptable biological

catch to account for scientific uncertainty, and then set an ACL

that permits no greater fishing levels than the SSC recommends.



     12
        Again, the Court must emphasize that even this complex
explanation, abridged for the purposes of comprehension, omits
details of the considerably more complicated process. See 50 C.F.R.
§ 600.310(f).

                                  43
     Finally, ACLs must, of course, be consistent with the National

Standards. Id. § 1853(a)(1)(C). Plaintiffs argue that the Atlantic

herring ACL fails to comply with National Standards 1 and 2.

National Standard 1 requires that “[c]onservation and management

measures shall prevent overfishing while achieving, on a continuing

basis, the optimum yield from each fishery for the United States

fishing industry.” Id. § 1851(a)(1). Hence, they argue, NMFS’s

conclusion that the Atlantic herring ACL prevents overfishing while

achieving optimum yield must be “rational and supported by the

record.” C&W Fish, 931 F.2d at 1562; Blue Ocean Inst., 585 F. Supp.

2d at 43.

     National Standard 2 instructs, “[c]onservation and management

measures shall be based upon the best scientific information

available.” Id. § 1851(a)(2). National Standard 2 “requires that

rules issued by the NMFS be based on a thorough review of all the

relevant information available at the time the decision was made

. . . and insures that the NMFS does not ‘disregard superior data’

in reaching its conclusions.” Ocean Conservancy, 394 F. Supp. 2d at

157 (quoting Building Indus. Ass’n v. Norton, 247 F.3d 1241, 1246-

47 (D.C. Cir. 2001)).

     This rule “is a practical standard requiring only that fishery

regulations be diligently researched and based on sound science.”

Ocean Conservancy, 394 F. Supp. 2d at 157. Further, “[c]ourts give

a high degree of deference to agency actions based on an evaluation



                                44
of   complex   scientific    data    within   the    agency’s   technical

expertise.” Am. Oceans Compaign v. Daley, 183 F. Supp. 2d 1, 4

(D.D.C. 2000) (citing Baltimore Gas & Elec. Co. v. NRDC, 462 U.S.

87, 103 (1983)). Therefore, “[l]egal challenges to the Secretary’s

compliance with National Standard 2 are frequent and frequently

unsuccessful” and Plaintiffs face a “high hurdle.” N.C. Fisheries

Ass’n, 518 F. Supp. 2d at 85.

      Amendment 4's ABC control rule, which is intended to account

for scientific uncertainty, sets the ABC for Atlantic herring at

the three-year average annual catch measured from 2006-2008, or at

106,000 metric tons (“mt”). AR 6068-69. In other words, the ACL for

Atlantic herring will be equivalent to the average yearly catch

from 2006 to 2008, minus a buffer for management uncertainty.

Plaintiffs argue that this ABC control rule violates National

Standards 1 and 2. Plaintiffs claim that using this three-year

average,   without   any   further   discount   to   reflect    scientific

uncertainty, will not prevent overfishing and is not based on the

best available science.13 Pls.’ Mot. 22-27.

     13
        Plaintiffs also object to Defendants’ adoption of an
“Interim” ABC control rule. Pls.’ Mot. 22. Defendants correctly
point out that “nothing in the MSA . . . precludes the use of an
interim rule” and, of course, all ABC control rules are interim in
the sense that the agency can, and should, revise their rules as
superior or more recent information becomes available. Defs.’ Mot.
25 (emphasis in original). Perhaps most importantly, the decision
to label the rule “interim” with the expectation that the Council
can develop a new control rule in the 2013-2015 herring
specifications based on a 2012 stock assessment was perfectly
rational and supported by the Administrative Record. C&W Fish, 931
                                                    (continued...)

                                     45
     To the contrary, the Administrative Record demonstrates that

the Council properly considered the advice of its SSC and, after

review of the best scientific information then available, selected

an ABC control rule. The Administrative Record indicates that the

SSC identified “considerable scientific uncertainty” in attempting

to assess the size of the Atlantic herring stock, and therefore

“recommended that the ABC be set based on recent catch, and asked

the Council [to] determine the desired risk tolerance in setting

the ABC.” AR 6068. In accordance with the SSC’s advice, the Council

considered three options for defining recent catch: (1) the most

recent, available single-year catch figure of 90,000 mt in 2008;

(2) the most recent, available three-year annual average of 106,000

mt from 2006-2008; and (3) the most recent, available five-year

annual average of 108,000 mt from 2004-2008. Id.

     The Council ultimately decided to use the three-year catch

figure to estimate ABC, based on four rationales. First, a three-

year average is commonly used to estimate “recent” trends in a

fishery. Id. Second, the 2008 catch “was one of the lowest on

record for many years” and using the one-year estimate may fail to

account for general variability in annual catch. Id. Third, because

the three-year average is lower than the five-year average, it

provides a more conservative estimate, and is therefore preferable

in order to account for other factors, such as “the importance of

     13
      (...continued)
F.2d at 1562; see 76 Fed. Reg. 11373, 13375; AR 6088-89.

                                46
herring   as   a   forage   species.”    Id.   Fourth,   and   finally,   the

specification of the ABC at 106,000 mt provides a 27% buffer from

the maximum sustainable fishing mortality rate of 145,000 mt for

2010, in order to account for scientific uncertainty. Id. at 6069.

     Plaintiffs point to no evidence that the agency ignored

superior or contrary data, as they must to succeed in a National

Standard 2 challenge.14 N.C. Fisheries Ass’n, 518 F. Supp. 2d at 85.

Instead, Plaintiffs protest that “Defendants arbitrarily ignored at

least two approaches for setting ABC that were scientifically

superior.” Pls.’ Reply 12. First, Plaintiffs claim that Defendants

did not adopt an earlier recommendation by the SSC that the ABC

control rule include a 40% buffer between OFL and ABC. Second,

Plaintiffs state that Defendants refused to accept the approach

they identified to set the ABC at 75% of recent average catch.

Pls.’ Reply 12 (citing AR 3909, 5615). But, as explained above, the

Council provided perfectly rational explanations, based on the best

available science, for selecting its ABC control rule, which

accounted for scientific uncertainty and comported with the SSC’s



     14
       Plaintiffs claim that Defendants failed “to account for the
role of forage in the ecosystem” when setting its ABC control rule.
Pls.’ Mot. 25-27. However, the Council’s analysis of Amendment 4
states that Atlantic herring’s role as a forage species was an
“Important Consideration” for the SSC and Council when considering
the ABC control role and definition of ABC. AR 6051-52, 6054.
Indeed, the Council selected the three-year average approach in
part because it felt that it best accounted for “other factors
identified by the SSC, including recruitment, biomass projections,
and the importance of herring as a forage species.” Id. at 6088.

                                    47
recommendations. AR 6088-89. National Standard 2 demands no more.

Ocean Conservancy, 394 F. Supp. 2d at 157.

      Nor, finally, does National Standard 1 provide any independent

reason for invalidating the ABC control rule. National Standard 1

requires that “each Council must establish an ABC control rule

based   on    scientific      advice     from   its    SSC”   and    that   “[t]he

determination    of    ABC    should     be   based,   when   possible,     on    the

probability that an actual catch equal to the stock's ABC would

result in overfishing.” 50 C.F.R. § 600.310(f)(4). The Council

considered the advice of its SSC, examined several options for

setting the ABC control rule, and made a reasoned determination

that using the three-year average catch offered the best approach.

The   Court   must    defer    to   an   agency’s      rational     decision     when

supported by the Administrative Record, as here, and particularly

when that decision involves the type of technical expertise relied

upon in this case. Bloch, 348 F.3d at 1070; C&W Fish, 931 F.2d at

1562; Am. Oceans Compaign, 183 F. Supp. 2d at 4.

      Although Plaintiffs may be correct that the Council could have

selected a more conservative ABC control rule, which would have

resulted in a more conservative ACL, Plaintiffs must do far more

than simply show that Defendants did not take their preferred

course of action. See N.C. Fisheries Ass’n, 518 F. Supp. 2d at 85;

Am. Oceans Campaign, 183 F. Supp. 2d at 14 (“the fact that

Plaintiffs would have preferred a more detailed analysis does not



                                         48
compel the conclusion that the Secretary’s action was arbitrary and

capricious.”). Plaintiffs must show “some indication that superior

or contrary data was available and that the agency ignored such

information.”   N.C.   Fisheries   Ass’n,   518   F.   Supp.   2d   at   85.

Plaintiffs have made no showing other than that the agency did not

select their favored control rule. Therefore, Defendants’ adoption

of Amendment 4's ABC control rule and resultant ACLs was not

arbitrary and/or capricious.

     E.   AMs for Atlantic Herring

     In order to enforce the new ACLs, the amended MSA requires all

FMPs to include “measures to ensure accountability.” 16 U.S.C. §

1853(a)(15). “AMs are management controls to prevent ACLs . . .

from being exceeded, and to correct or mitigate overages of the ACL

if they occur.” 50 C.F.R. § 600.310(g)(1). Therefore, whenever

possible, FMPs should include AMs “to prevent catch from exceeding

ACLs” and “when an ACL is exceeded . . . as soon as possible to

correct the operational issue that caused the ACL overage, as well

as any biological consequences to the stock or stock complex

resulting from the overage.” Id. §§ 600.310(g)(2), (3).

     Just like ACLs, AMs must satisfy the National Standards,

including National Standard 2. As explained at greater length

above, National Standard 2 “is a practical standard requiring only

that fishery regulations be diligently researched and based on

sound science.” Ocean Conservancy, 394 F. Supp. 2d at 157. And of


                                   49
course, “[c]ourts give a high degree of deference to agency actions

based on an evaluation of complex scientific data within the

agency’s technical expertise.” Am. Oceans Compaign, 183 F. Supp. 2d

at 4.

     Plaintiffs argue that Amendment 4's AMs are deficient for two

reasons. First, Plaintiffs claim that the existing monitoring

system used to detect when ACLs are reached, is insufficient. Pls.’

Mot. 28-31. Second, Plaintiffs contend that the actual group of AMs

included in the Atlantic herring FMP “are fundamentally flawed and

insufficient to minimize the frequency and magnitude of catch in

excess of the ACLs for Atlantic herring.” Id. at 31-33. Each claim

is considered in turn.

            1.     Monitoring System

     Currently, owners or operators of vessels with permits to fish

for Atlantic herring are required to make a weekly report of

herring they catch through an “Interactive Voice Response” (“IVR”)

system. 50 C.F.R. § 648.7(b)(2)(I). The reports are verified by

comparing   them to    weekly   dealer    data.   AR   6255.   According   to

Defendants, “there is an incentive for fishermen to report catch

accurately”      “[b]ecause   payment    for   catch   is   often   tied   to

vessel/dealer reports.” Defs.’ Reply 17. Additionally, federal

observers on board fishing boats monitor bycatch. Pls.’ Mot. 9;

Defs.’ Reply 17. Between 2005 and 2007, the annual percentage of




                                    50
trips observed ranged from 8% to 26%, for an annual average of

16%.15 AR 653.

     Plaintiffs argue that this monitoring system violates the MSA

because “[a]ccurate catch limits are impossible at present in the

Atlantic herring fishery because monitoring in the fishery is based

heavily on unverified reports of catch and landings.” Pls.’ Mot.

30. Further, “accurate estimates cannot be accomplished because

even on trips where a federal observer is on board the vessel,

vessels are not required to bring all catch onboard [sic] for

     15
       Plaintiffs claim that since the 1990's, “observer coverage
has ranged from less than one percent of the total annual fishing
trips taken in many years to roughly twenty percent in a handful of
years.” Pls.’ Mot. 9 (citing AR 651, 653, 779). The only citation
that supports this claim is a report by the Herring Alliance
stating that the coverage rate “has fluctuated from 1 to 17 percent
of total fishing trips since the mid-1990s, but are typically
between 3 and 6 percent.” AR 779. Defendants state that this
report, produced by “‘a coalition of environmental organizations
that formed . . . to protect and restore ocean wildlife . . . by
reforming the Atlantic herring fishery,’” is not peer-reviewed or
approved by NMFS or the Atlantic States Marine Fisheries
Commission. Defs.’ Mot. 8 n.6 (quoting www.herringalliance.org/
about-our-work).

     More importantly, the Herring Alliance’s estimate is
contradicted by the data presented by the Maine Department of
Marine Resources and Massachusetts Division of Marine Fisheries.
That data demonstrates that 26% of trips were covered in 2005, 14%
of trips in 2006, and 8% of trips in 2007, thus supporting
Defendants’ claim of 16% annual coverage over the three-year
period. AR 653.

     Plaintiffs also claim that “NMFS has never provided observer
coverage levels sufficient to derive accurate catch and bycatch
estimates.” Pls.’ Mot. 9 (citing AR 651, 653). Although one of the
slides cited contains a line reading “Low samples [sic] sizes means
power to detect low,” it is unclear how Plaintiffs concluded that
NMFS has never been able to derive accurate catch and bycatch
estimates. AR 651.

                                51
sampling and inspection” and “the ability to extrapolate catch and

bycatch up to fleetwide estimates is impossible because there are

insufficient   observer       coverage     levels     and   at-sea   dumping   of

unsampled catch occurs, even on otherwise observed trips.” Id.

     However, Plaintiffs offer no evidence to demonstrate “some

indication that superior or contrary data was available and that

the agency ignored such information.” N.C. Fisheries Ass’n, 518 F.

Supp. 2d at 85; Ocean Conservancy, 394 F. Supp. 2d at 157 (National

Standard 2 requires “only that fishery regulations be diligently

researched and based on sound science.”). Indeed, Plaintiffs again

cite no evidence in the Administrative Record to support their

claims that “accurate catch limits are impossible,” that “accurate

estimates   cannot     be   accomplished,”       or    that   “the   ability   to

extrapolate    catch    and   bycatch      up   to    fleetwide   estimates    is

impossible.” Pls.’ Mot. 30.

     Rather    than    cite   to   evidence     that    the   Council   or   NMFS

disregarded the best available science, Plaintiffs advance two

legal arguments. First, Plaintiffs claim that Defendants have

admitted that the current monitoring system is inadequate. Pls.’

Mot. 17. But the Administrative Record citations provided by

Plaintiffs say no such thing. All that they do say is that the

Council was considering measures “to improve catch monitoring.” AR

5587; see also AR 380-83, 2883, 2886. The statement that monitoring

could, potentially, be improved, certainly does not amount to a



                                      52
concession that the current system is legally insufficient. Nor, it

should be pointed out, would it benefit the notice and comment

process if an agency were unable to consider possible policy

improvements for fear that even soliciting comments would be

considered    an     admission         that         current   policies    are     legally

inadequate.

     Second, Plaintiffs claim that “vessel catch reports have been

found time and again to be unreliable,” citing a decision by this

Court. Pls.’ Reply 17. However, Conservation Law Foundation, the

case cited by Plaintiffs, merely observed that the defendants in

that case conceded that there were problems with their bycatch

monitoring    and        that    the     New    England       Council’s   Multispecies

Monitoring Committee concluded that commercial fishers unlawfully

underreport bycatch. 209 F. Supp. 2d at 13, 13 n.25. Certainly, the

conclusion of a different council committee, based on a separate

factual record in a separate fishery, does not preclude this

Council from concluding that observer coverage constitutes one of

several sufficient monitoring mechanisms.

     The Administrative Record contains evidence that Defendants

did in fact consider Plaintiffs’ comments and determined that the

current    monitoring           system     is        sufficient.     AR   6255,    6328.

Specifically,       in     her    “Decision          Memorandum,”    NMFS’s     Regional

Administrator Patricia A. Kurkul stated that, after considering

comments     expressing          concerns       regarding      the   monitoring,     she



                                               53
“conclude[d] that current reporting and monitoring is sufficient to

monitor catch against ACLs/sub-ACLs.” Id. at 6255. She explained

that herring     quotas   can   be   monitored   by   weekly   reports    with

verification by comparison to dealer reports, and stated that the

agency would continue to develop improvements to the reporting

system in Amendment 5. Id. While NMFS may not have performed an in-

depth analysis, it reasonably relied on a policy that has been in

place since 2004 and which underwent its own notice and comment

process before being adopted. See 69 Fed. Reg. 13482 (Mar. 23,

2004).

     Most importantly, though, Plaintiffs provide no evidence--in

this case--that this longstanding monitoring system, while far from

perfect,   was   not   “diligently     researched     and   based   on   sound

science.” Ocean Conservancy, 394 F. Supp. 2d at 157; N.C. Fisheries

Ass’n, 518 F. Supp. 2d at 85. While there are serious concerns

about the efficacy of the current monitoring system, see AR 651,

the Court must nonetheless afford “a high degree of deference to

agency actions based on an evaluation of complex scientific data.”

Am. Oceans Compaign v. Daley, 183 F. Supp. 2d at 4. Therefore,

Plaintiffs have not demonstrated that Defendants’ approval of

Amendment 4's monitoring system was arbitrary and/or capricious.

           2.    Specific Accountability Measures

     Amendment 4 designates three management measures--two measures

which were previously in place and one new policy--as AMs for the


                                      54
Atlantic herring fishery. AR 6327; 50 C.F.R. § 648.201(a). The

first AM is a management area closure device intended to prevent

ACL overages. This AM prohibits vessels from catching more than

2000 lbs of Atlantic herring per day once NMFS has determined that

catch will reach 95% of the annual catch allocated to the given

management area. 50 C.F.R. § 648.201(a)(1). The second AM, known as

the haddock incidental catch cap, attempts to prevent ACL overages

by limiting Atlantic herring catch to 2000 lbs per day once NMFS

has determined that the limit on incidental haddock catch has been

reached. Id. § 648.201(a)(2). The third, and final, AM aims to

mitigate ACL overages by deducting the amount of any overage from

the relevant ACL or sub-ACL for the fishing year following NMFS’s

determination of the overage. Id. § 648.201(a)(3). Plaintiffs argue

that each of these AMs is fundamentally flawed. Pls.’ Mot. 31-33.

                  a.   Management Area Closure

     Plaintiffs    criticize   the   management   area    closure     measure

because it has not always prevented ACL overages in the past. Id.

at 31. Plaintiffs claim that the measure “has already proven to be

ineffective,” id., and that “Defendants acknowledge that [it] has

already failed to work.” Pls.’ Reply 18. Plaintiffs erroneously

characterize   a   more   nuanced    response   from     Defendants    as   a

significant concession. What the Administrative Record actually

demonstrates is that NMFS recognized that in 2010, a particular

management area experienced an overage of 138% of its quota, but


                                     55
that “[w]hen there is a pulse of fishing effort on a relatively

small amount of unharvested quota . . . the chance of quota overage

exists, regardless of reporting or monitoring tools.”16 AR 6328;

Defs.’ Mot. 28. Indeed, the Council considered this issue and

concluded that, “[w]hile some overages have been experienced, the

frequency and degree of overage has not been significant enough to

compromise the health of the resource complex as a whole.” AR 6077.

     Plaintiffs nonetheless argue that the management area closure

measure violates the MSA because it permits some overages despite

MSA’s requirements (1) that ACLs be set at levels to prevent

overfishing and (2) that AMs prevent catch from exceeding ACLs.

Pls.’ Reply 18-19 (citing 16 U.S.C. § 1853(a)(15); 50 C.F.R. §

600.310(g)(2)).17 This argument is unconvincing.

     First, the existence of an ACL overage does not mean that

overfishing is occurring. See 16 U.S.C. § 1802(34) (defining

overfishing   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.”). In other words, an

overage does not necessarily establish that the capacity of a

     16
        According to Defendants, there were a total of three
management area overages in the four Atlantic herring management
areas between 2007 and 2010. Defs.’ Reply. 18, 18 n.20. In addition
to the 38% overage Plaintiffs focus on, one management area
experienced only a 1% overage in 2009 and another management area
experienced only a 5% overage in 2010. Defs.’ Reply, Ex. 2.
     17
       Plaintiffs actually cite to 50 C.F.R. § 600.310(g)(3), but
both the language quoted and the relevant substance is contained in
§ 600.310(g)(2).

                                     56
fishery to produce the maximum sustainable yield on a continuing

basis is being jeopardized. Indeed, the entire purpose of the

process by which ACLs are generated is to create an effective

buffer between ACLs and overfishing limits. See supra Part III.D.

       Second, the National Standard 1 guidelines cited by Plaintiffs

do not, as Plaintiffs claim, state that “NMFS must ‘prevent catch

from   exceeding    ACLs.’”    Pls.’   Reply    19   (quoting      50    C.F.R.   §

600.310(g)(2)). The full text of that provision reads, “[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)      (emphasis      added).      Indeed,     these        guidelines

specifically require AMs that can correct ACL overages when they

occur. Id. § 600.310(g)(3). Such AMs would hardly be necessary if

NMFS was under an obligation to guarantee that overages never

occur. In sum, Plaintiffs have not demonstrated that the one

example of an admittedly very high overage in 2010 demonstrates

that the use of the management area closure AM is fundamentally

flawed.

                   b.   Haddock Incidental Catch Cap

       Plaintiffs argue that because the haddock incidental catch cap

“is an accountability measure for haddock, which is managed in the

Northeast Multispecies FMP,” it “is irrelevant as an accountability

measure for the Atlantic herring ACL.” Pls.’ Mot. 31. Defendants

respond that, even though the cap only covers incidental catch of


                                       57
haddock, it “is likely to have real benefits to the herring stock”

and that “[a]ccountability measures are management tools that work

together to help prevent a fishery from exceeding its ACL.” Defs.’

Mot.   28-29.   Simply   put,   Plaintiffs   argue   that   only   measures

designed to enforce ACLs or mitigate ACL overage can be considered

AMs, while Defendants claim that any measure that might have the

effect of reducing catch, and thereby helping to keep it at a level

within an ACL, can constitute an AM.

       Plaintiffs have the better of this argument. The statute

requires, in unambiguous language, that FMPs include “measures to

ensure accountability” with “annual catch limits.” 16 U.S.C. §

1853(a)(15). “Accountability” means “the quality or state of being

accountable,    liable,    or    responsible.”   Webster’s     Third    New

International Dictionary 13 (1993). The management area closure

measure discussed above clearly fits this definition: it holds

fishermen and women accountable for abiding by Atlantic herring

ACLs by restricting the amount of fish they catch when they get

close to the limit on Atlantic herring. The haddock catch cap has

no such effect. It merely holds fishermen and women accountable for

incidentally catching too much haddock by limiting their ability to

fish when the cap is reached. Fishermen and women may far exceed

any Atlantic herring ACL and still happily fish for herring so far

as the incidental haddock catch cap is concerned, as long as they

have not accidentally caught too much haddock.



                                    58
       Hence, standing alone, the haddock incidental catch cap does

not fulfill the MSA’s demand that FMPs include measures to ensure

accountability for ACLs. 16 U.S.C. § 1853(a)(15). Nonetheless, it

should be noted that nothing prevents NMFS or the Council from

considering the effect of the haddock incidental catch cap when

determining whether the FMP’s AMs satisfy the MSA by, inter alia,

ensuring accountability with ACLs and preventing overfishing. Id.

§§ 1851(a), 1853(a)(15); see also 50 C.F.R. § 600.310(g).

                    c.     Overage Deduction

       The overage deduction AM is intended to satisfy Defendants’

responsiblity, when an ACL is exceeded, “as soon as possible to

correct the operational issue that caused the ACL overage, as well

as any biological consequences to the stock or stock complex

resulting    from    the    overage   when   it   is   known.”   50   C.F.R.   §

600.310(g)(3). The overage deduction AM provides that any overage

in a given year is subtracted from a subsequent year’s ACL or sub-

ACL,   so   that    violating   catch    limits   in   one   year   lowers   the

permissible catch in a future year. 50 C.F.R. § 648.201(a)(3). The

logic of this AM is simple: the effects of catching too much fish

will be corrected by reducing the amount of fish caught in the

future.

       Plaintiffs argue that this AM violates the mandate to correct

ACL overages “as soon as possible” because the overage deduction is

taken not in the fishing year immediately following the overage,


                                        59
but rather in the year after. Pls.’ Mot. 32; AR 6327. Defendants

contend that “[i]t is not possible to require payback of overages

in   the   next   year   because   the    final   data   is   not   available

immediately.” Defs.’ Mot. 29.

      The issue presented is whether the decision that a year-long

delay is necessary was “rational and supported by the record,” C&W

Fish, 931 F.2d at 1562, and was “diligently researched and based on

sound science.” Ocean Conservancy, 394 F. Supp. 2d at 157. In

response to concerns over the delay, NMFS explained that “[t]he

herring fishing year extends from January to December.” AR 6328.

Because the “fishery can be active in December,” “information on

bycatch of herring in other fisheries is not finalized until the

spring of the following year,” and NMFS must “provide sufficient

notice to the industry,” the overage deduction cannot be taken in

the year immediately following the year of the overage. Id. That

is, Defendants just do not have all the necessary information nor

the necessary time to calculate overages when one fishing year ends

in December and the next begins in January.18

      In addressing the issue, the Council and NMFS did consider the

impact of the delay on the fishery. The Final Rule explains that

“[h]erring is a relatively long-lived species (over 10 years) and

multiple year classes are harvested by the fishery.” Id. “These

      18
       Defendants also point out in their briefing that “Federal
dealer data is not finalized until the spring of the following year
and state dealer data is finalized even later,” and this data is
used in confirming overage calculations. Defs.’ Reply 21.

                                     60
characteristics suggest that the herring stock may be robust to a

single year delay in overage deductions.” Id. More importantly,

“[t]here is no evidence that a single year delay is more likely to

affect the reproductive potential of the stock than an overage

deduction in the year immediately following the overage.” Id.

     Plaintiffs do not offer any evidence that the necessary

calculations for the Herring fishery can be completed in time to

avoid the delay in overage deduction, nor do they offer “some

indication that superior or contrary data was available and that

the agency ignored such information.” N.C. Fisheries Ass’n, 518 F.

Supp.   2d   at   85.   Instead,    Plaintiffs    assert   that      “corrective

measures in the fishery are not routinely delayed,” Pls.’ Mot. 32,

and that Defendants “have implemented next-year overage deductions

in other fisheries.” Pls.’ Reply 20. These claims are not enough to

show that Defendants’ analysis of the needs of this fishery, as

outlined     above,     were   unreasonable      or   based    on     unreliable

information. Bloch, 348 F.3d at 1070; C&W Fish, 931 F.2d at 1562;

Ocean Conservancy, 394 F. Supp. 2d at 157.

     In sum, Amendment 4 includes two AMs, supplemented by the

haddock incidental catch cap, designed to prevent ACL overages and

to correct overages when they occur. 50 C.F.R. § 600.310(g). While

Plaintiffs have identified what they perceive to be weaknesses with

the AMs, they      have    failed   to    offer evidence      that    undermines

Defendants’ own showing of a reasonable decisionmaking process or



                                         61
that demonstrates Defendants’ rejection of superior information.

Particularly in light of the need for deference in this technical

and complex area, the Court must defer to Defendants’ conclusion

that Amendment 4's AMs satisfy the requirements of the MSA. Am.

Oceans Campaign, 183 F. Supp. 2d at 14.

     F.   Compliance with NEPA

     Finally,    Plaintiffs     argue   that    Defendants’       Environmental

Assessment (“EA”) and Finding of No Significant Impact (“FONSI”)

violate NEPA. NEPA’s requirements are “procedural,” calling upon

“agencies to imbue their decisionmaking, through the use of certain

procedures,     with    our   country's   commitment        to    environmental

salubrity.” Citizens Against Burlington, Inc. v. Busey, 938 F.2d

190, 193-94 (D.C. Cir. 1991). “NEPA does not mandate particular

consequences.” Id. at 194.

     Under NEPA, agencies must prepare an EIS for “major Federal

actions   significantly       affecting   the    quality         of   the   human

environment.” 42 U.S.C. § 4332(2)(C). In an EIS, the agency must

“take a ‘hard look’ at the environmental consequences before taking

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

(citations omitted).

     However,    NEPA    provides   agencies     with   a    less     burdensome

alternative--in certain situations, an EA, which is a less thorough

report, may suffice. Monsanto Co. v. Geerston Seed Farms, 130 S.

Ct. 2743, 2750 (2010) (citing 40 C.F.R. §§ 1508.9(a), 1508.13). An


                                     62
EA is a “concise public document” that “[b]riefly provide[s]

sufficient evidence and analysis for determining whether to prepare

an environmental impact statement or a finding of no significant

impact.” 40 C.F.R. § 1508.9(a).19 After completion of an EA, an

agency may conclude that no EIS is necessary. If so, it must issue

a FONSI, stating the reasons why the proposed action will not have

a significant impact on the environment. Id. § 1501.4(e).

     In reviewing an EA or FONSI, courts consider four factors.

Courts must determine whether the agency:

          “(1) has accurately identified the relevant
          environmental concern, (2) has taken a hard
          look at the problem in preparing its [FONSI or
          Environmental Assessment], (3) is able to make
          a convincing case for its finding of no
          significant impact, and (4) has shown that
          even   if  there   is   an  impact   of   true
          significance, an EIS is unnecessary because
          changes   or   safeguards   in   the   project
          sufficiently reduce the impact to a minimum.”

Sierra Club v. Van Antwerp, 661 F.3d 1147, 1154 (D.C. Cir. 2011)

(quoting TOMAC v. Norton, 433 F.3d 852, 861 (D.C. Cir. 2006))

(alterations in Van Antwerp).

     Courts review EAs and FONSIs under the familiar arbitrary or

capricious standard of the APA. Van Antwerp, 661 F.3d at 1154; see

     19
       Regulations interpreting NEPA’s EIS and EA requirements have
been promulgated by the Council of Environmental Quality (“CEQ”).
See 40 C.F.R. § 1500.1 et seq. Although “the binding effect of CEQ
regulations is far from clear,” TOMAC v. Norton, 433 F.3d at 861
(D.C. Cir. 2006), both agencies and courts have consistently looked
to them for guidance. See, e.g., Sierra Club v. Van Antwerp, 661
F.3d 1147, 1154-55 (D.C. Cir. 2011); Town of Cave Creek, Ariz. v.
FAA, 325 F.3d 320, 327-332 (D.C. Cir. 2003); Grand Canyon Trust v.
FAA, 290 F.3d 339, 341-42 (D.C. Cir. 2002).

                                63
also Pub. Citizen, 541 U.S. at 763 (“An agency’s decision not to

prepare an EIS can be set aside only upon a showing that it was

arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.”); Town of Cave Creek, Ariz. v. FAA, 325 F.3d

320, 327 (D.C. Cir. 2003).

      Plaintiffs allege a host of deficiencies with Defendants’ EA

and FONSI. Their claims fall into two categories: (1) Defendants

unlawfully      segmented    their   decisionmaking          and   prejudged   the

environmental impacts of Amendment 4 to avoid preparing an EIS; and

(2)   Defendants    failed    to   take    a   hard   look    at   Amendment   4's

environmental consequences.20 Pls. Mot. 34-44.

           1.      Segmented Decisionmaking & Prejudgment

      Plaintiffs advance two arguments that Defendants’ EA was

procedurally improper. First, Plaintiffs claim that Defendants

unlawfully divided certain actions between Amendments 4 and 5 in

order to cast Amendment 4 as insignificant and escape the EIS



      20
        Because the Court concludes, for the reasons given below,
that Defendants’ failed to take a “hard look at the problem,” Van
Antwerp, 661 F.3d at 1154, it will not reach the third set of
Plaintiffs’ NEPA claims, namely that Defendants erroneously
concluded that Amendment 4 will not have a significant
environmental impact. Plaintiffs argue that Defendants failed to
evaluate the cumulative impacts of Amendment 4, as they must when
determining significance, and that Defendants’ determination that
the action had insignificant effects was in error. Pls.’ Mot. 34-
38, 41-42. Defendants’ main response is that Amendment 4's adoption
of an ABC control rule and AMs was procedural only, and did not
substantively affect the fishery. Defs.’ Mot. 39-40. In any case,
Defendants will have to reassess this conclusion after taking a
‘hard look’ at Amendment 4's impacts.

                                      64
requirement.   Pls.’   Mot.   38-39.   Plaintiffs   are   correct   that

“‘[a]gencies may not evade their responsibilities under NEPA by

artificially   dividing   a   major    federal   action   into   smaller

components, each without significant impact.’” Jackson Cnty., N.C.

v. FERC, 589 F.3d 1284, 1290 (D.C. Cir. 2009) (quoting Coal. on

Sensible Transp., Inc. v. Dole, 826 F.2d 60, 68 (D.C. Cir. 1987));

see also 40 C.F.R. § 1508.25(a)(1) (“Connected actions” are actions

that are “closely related and therefore should be discussed in the

same impact statement.”). However,

          “The rule against segmentation . . . is not
          required to be applied in every situation. To
          determine the appropriate scope for an EIS,
          courts have considered such factors as whether
          the proposed segment (1) has logical termini;
          (2) has substantial independent utility; (3)
          does not foreclose the opportunity to consider
          alternatives, and (4) does not irretrievably
          commit federal funds for closely related
          projects.”

Jackson Cnty., 589 F.3d at 1290 (quoting Taxpayers Watchdog, Inc.

v. Stanley, 819 F.2d 294, 298 (D.C. Cir. 1987)).

     There is no evidence whatsoever in the Administrative Record

that Defendants sought to escape their responsibilities under NEPA

“by disingenuously describing [the Atlantic herring FMP] as only an

amalgamation of unrelated smaller projects.” Nat’l Wildlife Fed’n

v. Appalachian Reg’l Comm’n, 677 F.2d 883, 890 (D.C. Cir. 1981).

Although the Court has rejected the basis for NMFS’s decision not

to consider certain issues before the 2011 statutory deadline,

supra Part III.B.1., there is no suggestion that NMFS reduced the


                                  65
scope of Amendment 4 to avoid preparing an EIS. Amendment 4 sets

out ACLs and AMs for Atlantic herring. Amendment 5 has been

proposed to consider, inter alia, the composition of the fishery

and updated monitoring systems. There is no doubt that Amendment 4

has logical termini, has substantial independent utility, does not

foreclose future alternatives, and does not irretrievably commit

federal funds for closely related projects. Jackson Cnty., 589 F.3d

at 1290.

     Second, Plaintiffs argue that Defendants “unlawfully pre-

determined that only an EA would be necessary for Amendment 4.”

Pls.’ Mot. 40. In this context, “predetermination occurs only when

an agency irreversibly and irretrievably commits itself to a plan

of action that is dependent upon the NEPA environmental analysis

producing a certain outcome.” Forest Guardians v. U.S. Fish and

Wildlife Serv., 611 F.3d 692, 714 (10th Cir. 2010) (emphasis in

original); see also Air Transp. Ass’n of Am., Inc. v. Nat’l

Mediation Bd., 663 F.3d 476, 488 (D.C. Cir. 2011) (“‘strong’

evidence of ‘unalterably closed minds’ [is] necessary to justify

discovery into the Board's decisionmaking process” on the basis of

prejudgment); C&W Fish, 931 F.2d at 1565 (“an individual should be

disqualified from rulemaking ‘only when there has been a clear and

convincing showing that the Department member has an unalterably

closed   mind   on   matters   critical   to   the   disposition   of   the




                                   66
proceeding.’”) (quoting Ass’n of Nat’l Advertisers, Inc. v. FTC,

627 F.2d 1151, 1170 (D.C. Cir. 1979)).

     Plaintiffs    have    not     met    the   “high    standard    to   prove

predetermination.” Forest Guardians, 611 F.3d at 714. Plaintiffs’

only evidence that Defendants had unalterably closed minds is (1)

the statement     in   the December       17,   2009 memorandum      by   NMFS’s

Assistant Regional Administrator for Sustainable Fisheries that “I

have determined that, based on our initial review of the proposed

subject project and the criteria provided in Sections 5.04 and 6.03

d.2 of NAO 216-6, an environmental assessment is the appropriate

level of NEPA review for that project,” AR 5639, and (2) the line

in the December 28, 2009 Notice of Intent, announcing the narrowed

scope of Amendment 4, that “the Council intends to prepare an EA

for the action.” AR 5641. Neither of these statements rises to the

level of irreversibly or irretrievably committing NMFS to a certain

course   of   action.     Forest    Guardians,     611   F.3d   at    714.   An

administrator’s statement of an opinion, based upon review of the

action’s subject matter and relevant regulatory guidance, suggests

conscious thought rather than prejudgment, and does not lead to the

conclusion that the administrator would not change his or her mind

upon review of the full EA.

     In sum, Plaintiffs have failed to demonstrate that Defendants

unlawfully avoided the responsibility of preparing an EIS by either




                                         67
improperly segmenting their actions or predetermining the outcome

of the EA.

          2.   Hard Look

     In order to pass muster under NEPA, Defendants’ EA and FONSI

must have “taken a hard look at the problem.” Van Antwerp, 661 F.3d

at 1154. Defendants argue that NMFS took a “hard look” at the

environmental impact of its action, including the effects on

relevant ecosystem components, the Atlantic herring stock, the

essential fish habitat, protected species, and non-target/bycatch

species, as well as economic and social impacts. Defs.’ Mot. 34-35

(citing AR 6032, 6185-201). Plaintiffs do not challenge these

arguments. Rather, the thrust of Plaintiffs’ argument is that

Defendants failed to consider the potential impact of reasonable

alternatives. Pls.’ Mot. 36, 42-44.

      Environmental Assessments must include a “brief discussion

. . . of alternatives . . . [and] of the environmental impacts of

the proposed action and alternatives.” 40 C.F.R. § 1508.9(b). In

considering the analogous requirement for an EIS, our Court of

Appeals explained that “the agency's choice of alternatives are

. . . 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.


                                68
Slater, 198 F.3d 862, 867 (D.C. Cir. 1999) (quoting Citizens

Against Burlington, 938 F.2d at 195). Although an EA generally

imposes less stringent requirements on an agency than an EIS, it is

clear that an EA’s “hard look” must include consideration of

reasonable alternatives. Am. Oceans Campaign, 183 F. Supp. 2d at

19-20; Citizens Exposing Truth About Casinos v. Norton, No. CIV A

02-1754 TPJ, 2004 WL 5238116, at *9 (D.D.C. Apr. 23, 2004); Fund

for Animals v. Norton, 281 F. Supp. 2d 209, 225 (D.D.C. 2003).

      Plaintiffs argue that Defendants should have, but failed to

consider the impacts of (1) ACLs and AMs for river herring, (2)

potential alternative ABC control rules, (3) potential improvements

to   the   current   monitoring   system,   and   (4)   alternatives   for

addressing bycatch. Pls.’ Mot. 35-36, 43-44. As to the failure to

consider ACLs or AMs for river herring21 or alternatives for

      21
        Defendants have directed the Court’s attention to the
decision in Oceana, 2011 WL 6357795. Defs.’ Notice of Supp.
Authority [Dkt. No. 25]. In that case, the court held that NEPA did
not require NMFS to consider the composition of the fishery in its
EIS. Id. at *28-30. However, in Oceana, the court focused on the
challenged amendment’s purpose to implement “‘a broad range of
measures   designed   to   achieve   mortality   targets,   provide
opportunities to target healthy stocks, mitigate (to the extent
possible) the economic impacts of the measures, and improve
administration of the fishery,’” and concluded that the defendants
acted within the scope of the amendment’s objectives. Id. at *29
(quoting the final amendment) (emphasis in Oceana).

     In contrast, in this case, Amendment 4's purpose is “to bring
the FMP into compliance with new [MSA] requirements” by setting
ACLs and AMs. AR 6325; see also AR 5640 (purpose of Amendment 4 is
“to bring the FMP in compliance with [MSA] requirements to specify
annual catch limits (ACLs) and accountability measures (AMs).”).
For the reasons spelled out above, supra part III.B, Defendants
                                                    (continued...)

                                   69
addressing bycatch, the Court concludes that, for the reasons

stated supra Parts III.B-C, Defendants have failed to include a

discussion of reasonable alternatives. 40 C.F.R. § 1508.9(b).

Defendants have not provided a reasoned explanation for why they

could not and did not consider these alternatives, which clearly

would “bring about the ends of the federal action,” City of

Alexandria, 198 F.3d at 867 (internal quotation omitted), which

were “to bring the FMP into compliance with new [MSA] requirements”

by setting ACLs and AMs. AR 6325.

     As to alternatives to the ABC control rule and monitoring,

Defendants       argue   that     it    was    reasonable   to   delay     further

consideration until Amendment 5.22 Defs.’ Mot. 40-41. This response

is unsatisfactory. A central function of NEPA’s requirements is for

the agency to consider environmental impacts “[b]efore approving a

project.” City of Alexandria, 198 F.3d at 866. Therefore, delaying

consideration of relevant and reasonable alternatives until a

future    date    violates      the    “hard   look”   requirement.   40    C.F.R.

§ 1508.9(b); Am. Oceans Campaign, 183 F. Supp. 2d at 19-20;

     21
      (...continued)
could not fulfill the purpose of their proposed Amendment 4 to
comply with the strict new MSA requirements without giving some
reason for their decision to name only Atlantic herring as a stock
in the fishery.
     22
        Defendants also claim that it was proper to delay
consideration of a permanent ABC control rule until obtaining “a
proper scientific basis.” Defs.’ Mot. 41. This argument misses the
point. Even if setting an “interim” ABC control rule, Defendants
could have considered alternative interim ABC control rules. See
Pls.’ Mot. 43.

                                          70
see also Found. on Econ. Trends v. Heckler, 756 F.2d 143, 158 (D.C.

Cir. 1985) (“agency determinations about EIS requirements are

supposed to be forward-looking”); Nat’l Wildlife Fed’n, 677 F.2d at

889   (“‘the    basic      function   of    an   EIS   is   to   serve   as    a

forward-looking instrument to assist in evaluating proposals for

major federal action’”) (quoting Aersten v. Landrieu, 637 F.2d 12,

19 (1st Cir. 1980)).

      More importantly, Defendants’ EA demonstrates a total failure

to consider the environmental impacts of alternatives to the

proposed ABC control rule or AMs. The EA does contain a section

entitled “Environmental Impacts of Management Alternatives,” but

this section only compares the effects of the proposed ACL and AM

rules to “no action” alternatives. AR 6037, 6185-95. As the EA

itself     admits,   the    “no   action”    alternative    is   in   fact    no

alternative at all--taking no action would result in a plain

violation of the MSA’s ACL and AM requirements.23 16 U.S.C. §

1853(a)(15); AR 6185. Obviously, actions that would violate the MSA

cannot be reasonable alternatives to consider. Am. Oceans Campaign,


      23
       This is another reason that Oceana is not applicable to this
case. In Oceana, the so-called “‘no-action’ alternative” actually
entailed using the MSY Control Rule as the ABC control, thereby
fulfilling the MSA’s mandate to set in place a process for
establishing ACLs. 2011 WL 6357795, at *31-35. By contrast, in this
case, in Defendants’ own words, “[u]nder the no action alternative
no process for setting ACLs would be established” and therefore
“the alternative fails to comply with the MSA or NS1 Guidelines.”
AR 6185. Hence, in Oceana, the no action alternative was legally
permissible, whereas for Amendment 4 the no action alternative is
not a legally viable option.

                                      71
183 F. Supp. 2d at 20 (finding failure to consider reasonable

alternatives where EAs did “not even consider any alternatives

besides the status quo (which would violate the FCMA).”).

       Equally conspicuous is the fact that while Amendment 4 does

contain      analysis    of    rejected      alternatives    in    its   substantive

sections,     there     is    no   related    consideration       of   environmental

impacts in its Environmental Assessment. For example, the Council

considered alternate ABC control rules, such as use of a one-year

or five-year average for defining recent catch, and AMs, such as

closure      of   management       areas   at   a   lower    percentage     of   ACL,

establishment of a threshold/trigger for an in-season adjustment to

ACL, and establishment of a lower trigger for closing the fishery

in the following year, to name a few. AR 6083-84, 6088. Tellingly,

none    of    these     alternatives         receive   any    treatment     in    the

Environmental Assessment.

       In the absence of consideration of alternatives, the Court

cannot say that Defendants took a “hard look” at Amendment 4's

environmental impacts. 40 C.F.R. § 1508.9(b); Van Antwerp, 661 F.3d

at 1154; Am. Oceans Campaign, 183 F. Supp. 2d at 20. Therefore,

Defendants’ reliance on Amendment 4's EA and resulting FONSI was

arbitrary and capricious. Van Antwerp, 661 F.3d at 1154; Pub.

Citizen, 541 U.S. at 763.




                                           72
       G.     Remedy

       The question of the appropriate remedy in this case presents

substantial complexities. Plaintiffs argue that the Court “has the

power to design a remedy that both establishes a deadline and

directs the Defendants to take specific actions to comply with the

law” and that the Court ought to vacate Amendment 4. Pls.’ Supp.

Mem. 4-5. Defendants argue that Plaintiffs’ requests “conflict[]

with the law of this Circuit” and urge the Court to remand to the

agency for further consideration. Defs.’ Mot. 42. The question of

remedy is further complicated by the fact that many of Amendment

4's deficiencies may be remedied by Amendment 5, which is already

under consideration, with a targeted implementation date of January

1,    2013.   Defs.’   Mot.,   Ex.    2.    At    oral   argument,    the    parties

requested an opportunity to further brief the remedy issue, should

Plaintiffs’ prevail in any of their claims. Therefore, the Court

will withhold judgment on the question of remedy. The accompanying

Order contains a briefing schedule to resolve this issue.

IV.    CONCLUSION

       For the reasons set forth above, Plaintiffs’ Motion for

Summary     Judgment   is   granted    in       part   and   denied   in    part   and

Defendants’ Motion for Summary Judgment is granted in part and

denied in part.




                                           73
     An Order will issue with this opinion.




                               /s/
March 8, 2012                 Gladys Kessler
                              United States District Judge


Copies to: counsel of record via ECF




                               74
