                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


MICHAEL      s.    FLAHERTY, et al.,

                  Plaintiffs,

        v.                                           Civil Action No. 11-0660 (GK)

PENNY PRITZKER, 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      Penny     Pritzker,     the    National    Oceanic     and

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

Fisheries Service           ( "NMFS")      (collectively,       "Defendants") , as well

as Defendant-Intervenor Sustainable Fisheries Coalition ("SFC").

Plaintiffs         allege     that    the    final     rule    implementing       Framework

Adjustment 2 to the Atlantic Herring Fishery Management Plan and

the    Atlantic         Herring    Fishery 'Specifications          for    the    2013-2015

Fishing Years ("2013-2015 Specifications") violates the Magnuson-.

Stevens Fishery Conservation and Management Act ("MSA"), 16 U.S.C.

§§    1801   et~'          the National Environmental Policy Act                  ("NEPA"),

42 U.S.C.         §§   4321 et    ~'        and the Administrative Procedure Act

("APA"), 5        u.s.c.    §§   ·702 et   ~




                                              -1-
:·.




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

      Summary Judgment         [Dkt. Nos.      88,   96,    & 99]. Upon consideration of

      the Motions, Oppositions, Replies, ,the entire record herein, and

      for    the    reasons       stated    below,    Plaintiffs'       Motion        for    Summary

      Judgment      is     denied,    Defendant-Intervenor's            Motion        for    Summary

      Judgment is denied, and Defendants' Motion for Summary Judgment is

      granted.

      I .    BACKGROUND

             a.     Statutory Background

                    i.      The Magnuson-Stevens Act 1

             The MSA is designed to conserve and manage fishery resources

      in U.S.      waters and coastal areas.               It establishes eight Regional

      Fishery Management Councils, which are responsible for developing

      fishery management plans              ("FMPs").       16 U.S.C.     §§       1852.    FMPs are

      required to        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."                     Id.       §   1853 (a) (1) (A).

      FMPs   must    also     be     consistent      with   the   ten National             Standards

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



      1 A more thorough description of the MSA can be found in this
      Court's prior Memorandum Opinion. Flaherty v .. Bryson, 850 F. Supp.
      2d 38 (D.D.C.; 2012).
                                     -2-
MSA,     ~nd          "any   other           applicable          law."       Id.       §     1853(a) (1) (C);

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

Secretary of Commerce, acting through NMFS, is required by the MSA

to establish "advisory guidelines" for implementing the National

Standards. 16 U.S.C.                §    1851(b); see also 50 C.F.R. 600.305 et seq.

(National Standards guidelines) .

        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 National

Standards and applicable law. Id.                            §   1854(a) (3). If NMFS approves

the plan or does not express disapproval within 30 days, the FMP

becomes effective. Id.                   §    1854(a) (3).

       At       th~    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) . The amended MSA significantly enlarged the duties of the

council         and NMFS       by       requiring        FMPs      to    contain 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).    In

response to the new requirements, NMFS revised its guidelines for
                                                       -3-
..
     National         Standard     1     to   provide      guidance   for    interpreting   the

     concepts adopted in the amendment. 74 Fed. Reg. 3178 (January 16,

     '2009) .

             The setting of an ACL involves a multi-step process intended

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

     following is an extremely abbreviated overview of what is a very

     complicated process. 50 C.F.R.                  §   600.310(£). First, a council must

     define an overfishing limit ("OFL"), which is, at its most basic,

     an estimate of the rate of fishing at which a fishery will not be

     sustainable. Id.         §    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 OFL,                   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(£) (4). The council must create

     its ABC control rule based on scientific advice from its Scientific

     and Statistical Committee ("SSC"). 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) (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,
                                                     -4-
after taking into account management unqertainty,                                 such as late

reporting,          misreporting,        and        underreporting           of    catch.    Id.

§   600. 310 (f) (1) .

       To summarize,       in the process of setting the final ACL,                          the

council must solicit scientific advice from its SSC and, based on

that advice,         establish an acceptable biological catch rule.                          The

ABC control rule is relied on to set the ABC, which 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.            Id.   §       600.310(e)-(f).     Finally,

ACLs must also be consistent with the National· Standards.                                   Id.

§   1853 (a) (1) (C).

              ii.     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.                        §   433l(b).

       To accomplish that goal, NEPA requires all federal agencies

to prepare an Environmental Impact Statement ("EIS") whenever they

propose "major Federal actions significantly affecting the quality

of the human environment." Id.                  §    4332(C).       In an EIS,      the agency

must "take a 'hard look' at the environmental consequences before
                                               -5-
taking a major action."" Baltimore Gas                    &   Elec.        Co.    v.    NRDC,    462

U.S.    87,   97     (1983)   (citation omitted).         "NEPA exists to ensure a

process,      not     to   ensure    any   result."       Inland Empire                Pub.   Lands

Council v.         U.S.    Forest Serv.,       88 F.3d 754,          758    (9th Cir.         1996)

(emphasis in original)              (citation ommitted) .

        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] rie·fly 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) (1).        If the agency determines,               after preparing an EA,

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

Significant Impact            ("FONS I")   setting forth the reasons why the

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

§§ 1501.4(e), 1508.13. 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 alternatives. Id.           §   1508.9(b).

        b.    Factual Background

        The   U.S.     Atlantic      herring    fishery       is managed           through the

Atlantic      Herring       Fishery Management          Plan        ("Herring          FMP") .    The

Herring FMP was developed by the New England Fishery Management

Council (the "Council") and became effective on January 10, 2001 ..


                                            -6-
See Flaherty v.       Bryson,       850   F.    Supp.        2d 38,   45   (D. D. C.    2012)

("Flaherty I") .

      Atlantic herring inhabit the Atlantic Ocean off the east coast

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

the Canadian Maritime Provinces. Id. 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. Atlantic herring also play an important role in

the   region's     economy because         of    the     prevalence        of   commercial

fishing. Id.

            i.     Amendment 4

      On March 2, 2011, NMFS published its Final Rule implementing

"Amendment 4" to the Herring FMP. Final Rule, 76 Fed. Reg. 11,373

(Mar. 2, 2011). The Council.and NMFS had developed Amendment 4 to

bring the      FMP into compliance with new ACL and accountability

measure requirements of the MSA by the 2011 statutory deadline.

See Final Rule,      76 Fed.    Reg.      11,372        (Mar.    2,   2013).    Plaintiffs

brought this suit to challenge several aspects of Amendment 4. See

Complaint      [Dkt. No.   1]. On March 8,         2012,        this Court issued its

opinion on the parties' cross-motions for summary judgment which,

inter alia, upheld the ACLs and AMs of Amendment 4, but found that

the   agency had failed        to    consider the potential                environmental

impacts   of     reasonable   alternatives,             as    required     by   NEPA.      See

Flaherty I, 850 F. Supp. 2d 38.
                                          -7-
             ii.    Framework Adjustment 2 and Atlantic Herring Fishery
                    Specifications for 2013-2015

       On October 4, 2013, NMFS issued a final rule implementing the

2013-2015 Specifications. 78 Fed. Reg.            61828      (Oct. 4, 2013); see

also   accompanying      Final    Environmental    Assessment,            AR    010991-

011393. The 2013-2015 Specifications set catch specifications for

the herring fishery for the 2013-2015 fishing years, including new

ACLs and additional AMs. The 2013-2015 Specifications were based

on   the   most    recent    stock   assessment   ( 11 SAW   54 11 )    for    Atlantic

herring, prepared by the 2012 Stock Assessment Review Committee of

the 54th Northeast Regional Stock Assessment Workshop.                         7 8 Fed.

Reg. at 61829.

       The Council considered,        in varying degrees of detail,                five

potential ABC control rules for selection. The first, referred to

as   the   "no action"      alternative,     would have maintained the ABC

specifications from 2012. AR 011034. The second,                       referred to as

the "constant catch" alternative, would specify a constant ABC of

114,000 metric tons for all three years.              AR 011035.           The third,

referred to as the "75% FMsY" 2 alternative, would have set the ABC




2 FMsY is "the fishing mortality rate that, if applied over the long
term would result in [Maximum Sustainable Yield] . " Maximum_
Sustainable Yield (MSY) is defined as the "largest long-term
average catch or yield that can be taken from a stock or stock
complex under prevailing ecological, environmental conditions and
fishery technological characteristics .      . and the distribution
of catch among fleets." 50 C.F.R. § 600.310(e) (1) (i).
                                       -8-
•



    at 130,000 metric tons in 2013, 102,000 metric tons in 2014, and

    88,000 metric tons in 2015. AR 011038.

         Plaintiffs    submitted two additional ABC control                 rules   for

    consideration,    referred to as the Lenfest Control Rule and the

    Pacific Control Rule. Both the Lenfest and Pacific Control Rules

    use a rate of 50% of FMsY and under both those Rules the ABC would

    have been 93,000 metric tons in 2013, 77,000 metric tons in 2014,

    and 68,000 metric tons in 2015. AR 011066. The difference between

    the two is that under the Lenfest Control rule,                the fishing rate

    would decrease as herring biomass decreased,             and if the herring

    biomass decreased below a cutoff level, all fishing would cease.

    AR 011065-66.    Under the Pacific Control Rule,               the fishing rate

    would stay the same until herring biomass declined below the cutoff

    level, at which time all fishing would cease. AR 011066.

         c.     Procedural Background

         Plaintiffs filed their Complaint            [Dkt.   No.    1]    on April 1,

    2011, challenging Amendment 4. On March 8, 2012, this Court issued

    a Summary Judgment Order holding that Amendment 4 violated certain

    provisions of the MSA, APA, and NEPA. See Flaherty I, 859 F. Supp.

    2d at 73.

         On August    2,   2012,   after   further    briefing       on    the   proper

    remedy,   this Court issued a detailed Memorandum Order remanding

    the action to Defendants and containing specific guidance, as well

    as a timeline,    for actions Defendants were to take and complete
                                       -9-
within one year ("Remedial Order")           [Dkt. No. 41]. What is relevant

to    the Motions    at hand is      that    the   Remedial Order instructed

Defendants to recommend to the Council that it consider, "as part

of the 2013-2015 herring specifications              (or another appropriate

action to be completed within one year of the date of [the remedial

order])," a range of alternatives "to the interim ABC control rule

for the Atlantic herring fishery, at least one of which shall be

based on the most recent best available science for setting ABC

control rules for     herrin~     and other forage fish." Id. at 12-13.

        On November 4, 2013, Plaintiffs filed a motion for leave to

file     a   Supplemental   Complaint   to    challenge   NMFS' s   final   rule

implementing the 2013-2015 Specifications [Dkt. No. 59], which was

granted on December 27, 2013         [Dkt. No. 66]. On November 22, 2013,

Plaintiffs filed a separate Motion to Enforce the Remedial Order

[Dkt. No. 62]. Plaintiffs alleged that Defendants failed to comply

with the Court's Remedial Order in several ways. One of Plaintiffs'

allegations was that Defendants failed to consider a reasonable

range of alternatives to the interim Atlantic Herring ABC control

rule, including at least one based on the best available science,

in the NEPA analysis        for    the 2013-2015      Specifications.   Id.   at

17-28.

       This Court denied Plaintiffs' Motion to Enforce on February

19,    2014,   finding that Defendants had complied with each of the

requirements set forth in the Remedial Order and that Plaintiffs
                              -10-
had     "obtained all        of    the     relief        to which they are entitled."

Memorandum Opinion at               12     [Dkt.    No.     87] .     This    Court   did note

however,       that the ruling 'did not exclude the Defendants'                            recent

actions from review and Plaintiffs were still able to seek review

"on a ground other than the agency's failure to consider reasonable

alternatives."        Id.    at 12        (quoting Heartland Reg'l Med.                Ctr.    v.

Leavitt, 415 F.3d 24, 28 (D.C. Cir. 2005)).

        On    January      22,    2014,     Sustainable            Fisheries     Coalition,     a

coalition        of   vessel        owners         and     processing         companies      that

participate in the Atlantic sea herring fishery, filed a Motion to

Intervene       [Dkt. No.        76]. The Motion to Intervene was granted on

February 12, 2014 [Dkt. No. 85].

        On March 7,        2014, Plaintiffs filed their Motion for Summary

Judgment       ( "Pls.'    Mot.")        [Dkt.   No.      88] .    Defendants     filed     their

Opposition       to     Plaintiffs'         Motion        and      their     Cross-Motion     for

Summary Judgment           ("Defs.' Mot.")          [Dkt. No. 96] on April 7, 2014,

and Intervenor Defendants filed their Opposition to Plaintiffs'

Motion and Cross-Motion for Summary Judgment                               ( "SFC Mot.")    [Dkt.

Nos. 99 & 100] on April 9, 2014. On May 7, 2014, Plaintiffs filed

their        Reply    to     Defendants'           Opposition          and     Opposition      to

Defendants' Motion ("Pls.' Reply")                   [Dkt. No. 103]. On May 23, 2014,

Defendants filed their Reply to Plaintiffs'                            Opposition      ("Defs.'

Reply")      [Dkt. No. 105] and Intervenor Defendants filed their Reply

to Plaintiffs' Opposition ( "SFC Reply")                          [Dkt. No. 106] .
                                -11-
~ :'




       II.   STANDARD OF REVIEW

             a.     Summary Judgment

             Summary judgment will be granted when there is no genuine

       issue.as to any material fact. See Fed. R. Civ. P. 56(a). 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       &   Dev.   v.

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

       411   U.S.   138,    142     (1973));        Fund   for       Animals   v.   Babbitt,        903

       F. Supp. 96,        105      (D.D.C.        1995)     ("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").

             The purpose of a motion for summary judgment challenging final

       agency     action     is     "to     test     the    agency       action      against        the

       administrative record." Comment to U.S. Dist. Ct. Rules D.C., Rule

       7(h). The Court must evaluate the agency's decision on the basis

       of "the full administrative record that was before the Secretary

       at the time [she] made [her] decision." Citizens to Pres. Overton

       Park v. Volpe, 401 U.S. 402, 420 (1971), abrogated on other grounds

       ~Califano     v. Sanders, 430 U.S. 99, 97 (1977). In reviewing agency

       action, the district court "sits as an appellate tribunal, not as

       a court authorized to determine in a trial-type proceeding whether


                                                    -12-
the Secretary's             [action]         was   factually        flawed."       Marshall        Cnty.

Health Care Auth. v. Shalala, 988 F.2d 1221, 1225 (D.C. Cir. 1993).

        b.        Administrative Procedure Act

        Agency decisions under the Magnuson-Stevens Act and NEPA are

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

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

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

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

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

1556, 1562 (D.C. 1991); Oceana Inc., v. Locke, 831 F. Supp. 2d 95,

106     (D.D.C. 2011). Section 706(2) of the APA requires a court to

hold a9ency action unlawful if it is "arbitrary,                                   capricious,          an

abuse of discretion, or otherwise not in accordance with law." 5

u.s.c.       §   706 (2).

        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,
                                                   -13-
825   F.2d 504,       514     (D.C.   Cir.    1987).    However,    this deferential

standard can neither 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, 1498 (D.C. Cir. 1988)                      (internal citations

and quotations omitted) .

      An agency satisfies the arbitrary and capricious standard if

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

explanation       for   its     action       including    a     'rational     connection

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

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

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

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

However,     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.     Jurisdiction

             i.     Standing

      While both Plaintiffs and Defendants agree that the Court has

jurisdiction to hear this case,                Defendant-Intervenor SFC argues

that Plaintiffs lack standing to challenge the ABC control rule.

The   doctrine     of   standing       reflects        Article    III' s    "fundamental
                                          -14-
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.                      (emphasis on "his"

in   original)      (quoting      Warth     v.    Seldin,     422    U.S.     490,     498-99

(1975)).

      To obtain the relief they seek, Plaintiffs must show that (1)

they have "suffered an 'injury in fact'                 that is           (a) 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. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992); Shays v.

FEC, 414 F.3d 76, 83 (D.C. Cir. 2005). SFC contends that Plaintiffs

have not shown how they were injured by the ABC control rule (as

distinguished ~rom the ACLs) or how a favorable decision by this

Court could redress those' injuries. SFC Mot. at 23.

      In its 2012 decision,           this Court found that Plaintiffs had

standing to challenge Amendment 4.                  Flaherty I,           850 F.   Supp.    2d

at 50.     SFC concedes that Plaintiffs have standing to challenge
                                 -15-
ACLs and AMs. SFC Mot. at 23. The crux of SFC's standing challenge

is that the ACLs and AMs are the source of any alleged injuries,

not the ABC control rule, and therefore, because Plaintiffs have

not been harmed by the ABC control rule, they do not have standing

to challenge it. Id. at 23-24.

      The Court finds the distinction between the ACLs and the ABC

control     rule   to   be     irrelevant      for   standing purposes.   The ABC

control rule is part of the "mechanism for specifying annual catch

limits," 16 U.S.C.        §   1853(a) (15), and directly informs the setting

of the ACL, 50 C.F.R.         §   600.310(f)    (Guidelines to National Standard

1) . 3 The causal relationship between the ABC control rule, the ABC,

and the ACL is so direct and clear that any alleged harms of the

ABC   control      rule       are,    as   a   practical    matter,,   practically

indistinguishable from any possible harms of the ACL. The causal

chain between. the ABC control rule and the ACL is not,                    as SFC

contends,     "far      too       attenuated    to    constitute   particularized

injury." SFC Mot.         at 24      (internal quotations marks and citation

omitted) . The harms Plaintiffs have alleged are directly traceable

to the ABC control rule via the ACL. This is more than sufficient

to satisfy the causation prong of standing.




3 While the National Standard Guidelines do not have the force of
law, they exist to assist in the development of FMPs.   16 U.S.C.
§ 1851(b)
                              -16-
      SFC offers no explanation why Plaintiffs' proposed remedies

are insufficient to redress their injuries. Id. at 25. It is not

enough      to    simply , say        that        Plaintiffs      have    not     shown         "how     a

favorable decision by this court could relieve those injuries,"

SFC Reply at 5, and, in the absence of further explanation, this

argument         fails.       Plaintiffs'          requests       for     relief,         see        Supp.

Complaint at 31-32 [Dkt. No. 67], would remedy their injuries and

are also within the Court's power.

      For the foregoing reasons,                        the Court finds that Plaintiffs

have standing to bring their claim.

                 ii.    Subject Matter Jurisdiction

      SFC also argues that the Court does not have subject matter

jurisdiction           over     the   ABC    control          rule,     relying      on    the        same

distinction between ACLs and ABCs made in its standing argument.

The   MSA        provides       courts       with       the     authority       to    review           any

"regulation promulgated by the Secretary" and "actions that are

taken by the Secretary under regulations which implement a fishery

management plan." 16 U.S.C.                   §    1855(f) (2).       SFC concedes that the

Court has subject matter jurisdiction over ACLs and that this Court

previously reviewed the ABC control rule in Flaherty I. SFC Mot.

at 25.

      SFC        argues       that     the        ABC    control        rule    "used           in     the

specification setting process" was "developed and employed by the

Council,"         but     was    not     approved          by    NMFS     in    the        2013-2015
                                             -17-
Specifications. Put differently, SFC argues that the ABC control

rule was only a tool used to develop the ACLs, but was not adopted

in the 2013-2015 Specifications; only the ACLs were. SFC contends

that the ABC control rule is therefore "neither a 'regulation' nor

'action' over which the MSA grants jurisdiction." SFC Mot. at 25.

        SFC attempts to distinguish the instant ABC control rule from

the one reviewed by the Court in Flaherty I on the grounds that,

in Flaherty I,     the   "control rule   itself was      likely under this

Court's jurisdiction as part of Amendment 4."             Id.   SFC does not

explain why the same logic does not apply to the ABC control rule

currently at issue. SFC states that the "ACLs are'developed by the

Council under the Herring FMP and recommended to the Secretary as

'proposed regulations . . . for the purposes of implementing that

FMP," and therefore they "clearly fall within the MSA's judicial

review provisions." Id.       (citing 16 U.S.C.   §   1853(c)). Once again,

SFC tries to differentiate the ACL from the ABC control rule by

stating that the ABC control rule "was not reviewed or approved by

NMFS in the Specifications." Id.

        This distinction has no merit. The Council develops both the

ABC control rule and the ACLs, and recommends the specifications

to the Secretary. The relevant herring regulation, provides that

"NMFS     shall   make    a    final   determination       concerning      the

specifications    for Atlantic herring.     Notification of        the   final

specifications and responses to public comments shall be published
                               -18-
in the Federal Register." 50 C.F.R.            §   648.200(d). NMFS implemented

the 2013-.2015 Specifications, including the ACLs and ABC control

rule,    in its Final Rule. 78 Fed. Reg. at 61836                  ("Relative to the

status quo,      the specifications for setting the herring constant

catch ABC and OFL for 2013-2015                implemented by this rule will

result in an increase in OFL and ABC. Increasing, then maintaining

a stable OFL and ABC would provide net benefits to the herring

industry in the short and long term, relative to the status quo.")

(emphasis added) .

        Therefore,   the ABC control rule,            which was included in the

2013-2015 Specifications implemented by NMFS, is an action "taken

by   the     Secretary under       regulations       which    implement       a    fishery

management plan," and is subject to judicial review by this Court

per the MSA. 16 U.S.C.         §   1855(f) (2). As in Flaherty I, this court

has subject matter jurisdiction over the ABC control rule.

        b.    The ACLs and ABC         Control       Rule    Comply    with       National
              Standards 1 and 2

        Plaintiffs allege that the 2013-2015 Specifications do not

meet the MSA's mandate to establish an ABC control rule and ACLs

that prevent overfishing based on the best available science, and

therefore they violate National Standards 1 and 2, as well as the

APA. Pls.' Mot. at 21, 31.

        1.   Plaintiffs   argue        that    the     ACLs       in   the    2013-2015

Specifications       violate       National    Standard       1   because         they   are

                                        -19-
derived from an ABC control rule that will not prevent overfishing.

Pls.'      Mot.     at    21,      33-35.    National       Standard       1    states    that

"[c]onservation and management measures shall prevent overfishing

while achieving,           on a     continuing basis,         the optimum yield from

each fishery." 16          u.s.c.    §   1851(a) (1). The guidelines for National

Standard 1 also recommend that fishing mortality declines as stock

size declines.           50   C.F.R.     §   600.310(f) (4).     Under the           2013-2015

Specifications,          the fishing mortality rate will increase by 36

percent as the estimated biomass decreases by 36 percent over three

years          which     Plaintiffs      allege   is       contrary   to       the   guideline

recommendations. Pls.' Mot. at 31. In addition, in 2015, the final

year of the Specifications, the overfishing limit and the ABC will

be the same, leaving no buffer for scientific uncertainty. Id.

        While the fact that OFL will equal ABC in 2015 does provide

some cause for concern,                it is also clearly         pe~missible.         See 50

c. F. R.   §   600. 310 ( f) (3)    ("While the ABC is allowed to equal OFL,

NMFS expects that in most cases ABC will be reduced from OFL to

reduce the probability that overfishing might occur in a year.").

By contrast, where the OFL, ABC, and ACL are all the same (which

is not the case here), the regulation explicitly states that the

measures would provide for no uncerta:i:nty and would presumably

"not prevent overfishing." 50 C.F.R.                   §   600.310(f) (5) (i).

        Defendants.point out that, at this time, the Atlantic herring

stock is neither overfished nor subject to overfishing, and argue
                              -20-
that     the     2013-2015      Specifications         will    continue      to        prevent

overfishing. Defs.' Mot. at 15 (citing AR 011637). Plaintiffs have

neither shown nor alleged that the stock is overfished or subject

to overfishing, nor do they provide any information calling into

question       the   SSC' s   determination          that   overfishing      is    unlikely

under the constant catch control rule.                      See AR 011642         ("The SSC

concluded that the proposed specifications are unlikely to result

in   overfishing       in     the    next    3   years.");    Pls.'   Mot.        at    22-24.

Plaintiffs. argue that omitting a buffer between OFL and ABC to

account for scientific uncertainty "does not meet the National

Standard 1 mandate to prevent overfishing" and conflicts with the

guidelines' assumption that ABC will be reduced from OFL in "most

cases." Pls.' Mot. at 34. But, as discussed previously, the lack

of a buffer between the OFL and ABC is not per se evidence that

National Standard 1 has been violated, as the guidelines expressly

permit this practice,               even. if they do not recommend it. -
                                                                       See
                                                                         - 50
C.F.R.   §     600.310(f) (3).

       It is not enough that Plaintiffs would have preferred an ACL

or ABC control rule that preserved a greater stock of Atlantic

herring. Plaintiffs have not provided any evidence to suggest that

the ACL will permit overfishing, other than arguing that the ACL

would have been lower had forage considerations been sufficiently

accounted for. Pls.' Mot. at                32-~3.   The question before the Court

is whether the 2013-2015 Specifications violate National Standard
                              -21-
1 by not preventing overfishing,                   and Plaintiffs have failed to

show     that      the    2013-2015        Specifications        will    not    prevent

overfishing.

        2. Next,    Plaintiffs argue that Defendants violated National

Standard 2 because they did not rely on the best available science

for forage fish and disregarded relevant factors when setting the

ACLs    and ABC      control      rule.    Pls.'    Mot   at    21,   34-35.   National

Standard 2 instructs that "[c]onservation and management measures

shall be based upon the best scientific information available."

16 U.S.C.    §   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 v. Guitierrez, 394 F.

Supp.    2d 147,    157    (D.D.C.    2005)      (quoting Bldg.       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

of     complex     scientific       data      within      the   agency's       technical

expertise."      Am.     Oceans    Campaign v.       Daley,     183   F.Supp.2d 1,       4

(D.D.C. 2000)       (citing Baltimore Gas & Elec. Co., 462 U.S. at 103).

Therefore, "[l]egal challenges to the Secretary's compliance with
                              -22-
National Standard 2 are frequent and frequently unsuccessful."

N.C.   Fisheries Ass'n,            518 F.    Supp.    2d at 85.      Plaintiffs face a

"high hurdle" in trying to overturn agency decisions on this .bas.is.

Id.

       The    parties       agree     that   the    2013-2015      Specifications were

based on the SAW 54 stock assessment, that the SAW 54 assessment

incorporated             forage    considerations,           and    that   the        SAW    54

"represents         [the]     best    available       science      for   the    purpose      of

estimating         the      current    population          of   Atlantic       Herring      and

biological reference points." Pls.' Mot. at 26-27; see also Defs.'

Mot. at 22. According to Plaintiffs, even though Defendants were

correct to rely on SAW 54, they "failed to take the critical second

step in setting catch levels that prevent overfishing. That is,

they failed to establish and apply an appropriate ABC control rule

based on the best available science                                ." Pls.'     Mot.    at 27

(emphasis in original) . The second step Plaintiffs refer to relates

not    to    the    quality of        the    information available,             but    to   the

substantive decision Defendants made based upon that information.

       However, as noted earlier, our Court of Appeals has cautioned

that "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,    348 F.3d at 1070.              In this

instance,          the     Court      concludes       that      Defendants       definitely
                                            -23-
considered    the   relevant      factors   and    made   no     clear    error     of

judgment.

      3.     Plaintiffs take issue with the fact that the constant

catch ABC control rule (the rule ultimately selected) was not one

of the catch projections analyzed in the SAW 54 and was not peer

reviewed. Plaintiffs contend that there is therefore "little basis

to conclude this ABC control rule represents the best available

science." Pls.' Mot. at 31 (citing AR 002162, 000207). Defendants

counter that the stock assessment itself was peer-reviewed and

that the MSA does not require peer review of ABC control rules.

Defs.' Mot. at 23 (citing 50 C.F.R.         §   600.310(f) (4)    (" [t]he process

of establishing an ABC control rule could also involve science

advisors or the peer review process established under                       [MSA]    §


302(g) (1) (E)"   (emphasis added)).

      This case is easily distinguished from NRDC v. Evans, cited

by Plaintiffs,      where   the   court criticized NMFS for              failing    to

account for new scientific data and instead relying on "static

estimates that are 15 years old." 168 F. Supp. 2d 1149, 1154 (N.D.

Cal. 2001)   (rev'd in part on other grounds, 316 F.3d 904 (9th Cir.

2003)) .   In this case,    Plaintiffs are not arguing that the data

relied on was outdated,        but rather that Defendants "ignored new

scientific methodologies for managing forage fish identified by

Plaintiffs and placed in the administrative record, and failed to

make reasoned determinations." Pls.' Mot. at 34.
                               -24-
        4.      The      aforementioned           methodologies      identified      by

Plaintiffs are the two ABC control rules they put forward - the

Lenfest Control Rule and the Pacific Control Rule                         -   which are

"based on the most recent scientific studies of forage fish." Pls.'

Mot. at 16        (citing several studies).            Plaintiffs fail to explain

why     these    particular        studies   are    clearly    the   "best    available

science" or why the SAW 54 is not sufficiently sound science. Pls.'

Mot.    at   16-18,      28-29.    In any event,       the Administrative Record

indicates that several of the studies cited by Plaintiffs were

among the materials evaluated. See AR 004909-4946. The Lenfest and

Pacific Control rules were also considered, but were rejected by

NMFS.    See AR 011065        (EA,    section 2.2.7, Alternatives Considered

but Rejected); see also infra, Section III.C.

        Once again, Plaintiffs' criticism appears not to be targeted

at the data relied on in preparing the 2013-2015 Specifications,

but rather the outcome chosen by Defendants. The best available

science, in Plaintiffs' view, "demonstrates that an approach that

reduces fishing rates and maintains higher stock sizes is more

appropriate for forage fish.'~ Pls.' Mot. at 26. Again, Plaintiffs

are basing their evaluation of what the "best available science"

is to achieve an outcome that reduces fishing for forage species.

To the extent Plaintiffs argue that forage considerations must be

included     to       constitute     the   best    available   science,       Plaintiffs

themselves state that "[i]t is undisputed that the 2012 herring
                              -25-
stock assessment [SAW 54] incorporates forage considerations into

the   model     to      better     account    for    consumption   of    herring    by

predators, and therefore represents the best available science for

the   purpose      of    estimating     the    current   population      of   Atiantic

herring and biological reference.points." Pls.' Mot. at 26-27.

      All told, Plaintiffs' argument is that, because the selected

ABC control ru1e does not "reduce fishing rates and maintain higher

biomass      based      on   changing    biomass     projections   and    scientific

uncertainty," "Defendants failed to take the critical second step

in setting catch levels that prevent overfishing," and therefore

"they failed to establish and apply an appropriate ABC control

rule based on the best available science for managing forage fish."

Pls.' Mot. at 27. Plaintiffs are not disputing the                    scie~ce   relied

on,   but believe that the "best available science" would mandate

the selection of an ABC control rule with a lower depletion rate,

and therefore the selected ABC control rule cannot be based on the

best available science. This logic is flawed.

      As discussed, National Standard 2 requires diligent research

and sound science: See supra,                22.   It does not mandate outcomes.

National Standard 2 is in place to ensure "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                         []

that the NMFS does not disregard superior data in reaching its

conclusions." Ocean Conservancy, 394 F. Supp. 2d at 157 (internal
                              -26-
quotation marks and citations omitted) . The Council considered the

advice of its SSC,       examined several options for setting the ABC

control rule, including the Lenfest and Pacific Control Rules, and

made a reasoned determination that using the constant catch rule

offered the best approach.

      To   sum   up,   Plaintiffs   have    failed   to   substantiate   their

allegations that the ACLs and ABC control rule in the 2013-2015

Specifications do not rely on the best available science and will

not prevent overfishing. As this Court stated in its prior opinion

in this matter,        "[a] lthough 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." Flaherty I, 850 F. Supp. 2d at

63.   The Court must defer to an agency's rational decision when

supported by the Administrative Record, as is the case 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 Co., 931 F.2d at 1562; Arn. Oceans Campaign, 183 F. Supp. 2d

at 4. Therefore, the Court concludes that Defendants' adoption of

the constant catch control rule and the resultant ACLs in the 2013-

2015 Specifications were not in violation of the MSA.




                                     -27-
        c.        Defendants Considered a Reasonable Range of ABC Control
                  Rule Alternatives

        Similar         to    their   Amendment        4   challenge    in     Flaherty   I,

Plaintiffs argue that Defendants failed.to consider a reasonable

range        of   ABC    control      rule      alternatives     in    their    associated

environmental impact statement,                      as required by NEPA.        See Pls.'

Mot. at 35i Flaherty I, 850 F. Supp. 2d at 71-72.

        As discussed previously,                 NEPA requires federal agencies to

take a       hard look at the environmental consequences of a major

action before taking it. See supra, 5-6. This can take the form of

an Environmental Assessment ("EA"), as was done in the 2013-2105

Specifications, or an Environmental Impact Statement ("EIS"). When

evaluating an agency's compliance with NEPA, the Court's role is

not to substitute its judgment for that of the agency,                              but is

rather "'simply to ensure that the agency has adequately considered

and disclosed the environmental impact of its actions and that its

decision is not arbitrary or capricious.'" City of Olmstead Falls

v. FAA, 292 F.3d 261, 269 (D.C. Cir. 2002)                      (quoting Baltimore Gas

& Elec., 462 U.S. at 97-98)              i    NRDC v. Hodel, 865 F.2d 288, 294 (D.C.

Cir. 1988).

      Environmental Assessments must include a "brief discussion .

      of alternatives                        [and]   of the environmental impacts of

th~   proposed action and alternatives." 40 C.F.R.                      §    1508.9(b). In

considering the              an~logous       requirement for an EIS,         our Court of

                                                -28-
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 v.

Slater,     198   F.3d    862,     867    (D.C.   Cir.   1999)     (quoting Citizens

Against Burlington,         Inc. v. Busey,        938 F.2d 190, 195                (D.C. Cir.

1991)).     Although       an      EA     generally      imposes     less              stringent

requirements on an agency than an EIS,                   it is clear that even an

EA's    "hard     look"     must        include   consideration       of           reasonable

alternatives. Am. Oceans Campaign, 183 F. Supp. 2d at 19-20.                                 For

the reasons outlined below,               the Court concludes that Defendants

have not acted arbitrarily or capriciously in deciding to rely on

only two alternative ABC control rules.

       1.    Plaintiffs argue that Defendants acted arbitrarily and

capriciously      "by     considering only         two   alternative ABC                 control

rules" and for failing to consider the Lenfest and Pacific control

rules proposed by Plaintiffs. Pls.' Mot. at                 35~37.   There is no set

number of alternatives that an agency must consider; it need only

consider alternatives that are reasonable. See 40 C.F.R.                           §    1502.14.

An alternative is "reasonable" if it is objectively feasible as

well as "reasonable in light of               [the agency's]       objectives." City

of Alexandria,      198 F.3d at 867; see also 43 C.F.R.                        §       46.420(b)
                                  -29-
(defining "reasonable alternatives"                   as those alternatives "that

are technically and economically practical or feasible and meet

the purpose and need of th~ proposed action").

       In actuality,         Defendants considered three control                   rule~   in

the EA, as the regulations require a "no action" alternative to be

considered. See 40 C.F.R.          §   1502.14(d)      (requirement to include the

alternative        of    no     action) ;      AR     011032-34        (EA   summarizing

alternatives       considered) .       Plaintiffs       discount       the   "no    action"

alternative,       which would have maintained the 2012 OFL and ABC

specifications, see AR 011034, because it is not based on the most

recent stock assessment. Pls.' Mot. at 36. In Flaherty I, the Court

found that the          "no action" alternative could not reasonably be

considered as an alternative because it contained no process for

establishing ACLs,           as required by the recently revised MSA,                      and

therefore was clearly not a legally viable option. See Flaherty I,

850 F. Supp. 2d at 72-73 n. 23.

       The "no action" alternative here is easily distinguishable

from the one at issue in Flaherty I. The "no action" alternative

in Flaherty I would not have met the objectives of the action,

because it would not have established ACLs,                         whereas the present

"no    action"     alternative         would   fulfill        the    MSA's   mandate        to

implement a process for establishing ACLs.                      See Oceana,         Inc.    v.

Locke,    831 F.     Supp.    2d at 127-32          ("no action" alternative would

have     fulfilled      MSA's   mandate       to set     in    place     a   process       for
                                            -30-
establishing       ACLs    and   therefore        was   reasonably    considered   in

satisfaction of NEPA) .          Nor have Plaintiffs           shown that the      "no

action" alternative is otherwise inconsistent with the objectives

of the Atlantic Herring FMP. See AR 011021-22 (listing objectives).

While it is possible that, had it been selected, Plaintiffs could

have shown that the "no action" alternative did not rely on the

best available science,          such an inquiry goes beyond the task at

hand. Given that the "no action" alternative would have met the

objectives    of    the    action     it    was   reasonable    for   Defendants    to

consider it as a viable alternative.

     2.      Plaintiffs also dismiss the constant catch and 75% FMsY

alternatives because they are allegedly not based on the best

available science due to their failure to "account for herring's

role as forage in the ecosystem." Pls.' Mot. at 37. The Court has

already rejected          Plaintiffs'      argument     that   the    constant   catch

control rule was not based on the best available science.                          See

supra,    26-27.   Plaintiffs make the same arguments with regard to

the FMsY rule,      and the arguments fail for the same reasons that

they failed regarding the constant catch control rule. As this is

Plaintiffs'    only reason for discounting these two alternatives,

the Court finds that they were properly considered.

     3.      Plaintiffs       argue        that    Defendants    arbitrarily       and

capriciously failed to consider the Lenfest and Pacific Control

Rules in the EA. The EA for the 2013-2015 Specifications includes
                               -31-
discussion     of    the    Lenfest        and    Pacific      Control     Rules    in    the

"Alternatives        Considered        but       Rejected"      section.     AR     011065.

Plaintiffs argue that "an alternative is properly excluded from

consideration only 'if it would be reasonable for the agency to

conclude that the alternative does not bring about the ends of the

federal action,"'          Pls.'    Mot.     at 38    (quoting Flaherty I,          850 F.

Supp.    2d at 71)     (emphasis in original),               and that their control

rules would have achieved the objectives at hand. Defendants argue

that Plaintiffs'       control rules were rejected because "they were

outside the     scope of       the 2013-15           [S] pecifications,      may not be

applicable      to     management          decisions         generally,       and        their

applicability to Atlantic herring was questionable." Defs.' Mot.

at 28, 31.

        The   Plaintiffs'          control       rules   are     outside     the     scope,

Defendants claim, because the SSC determined that implementation

of. them would require             development of        certain reference points

through scientific assessment that would also need to be peer-

reviewed prior to being adopted for long-term management of the

fishery. Defs.' Mot. at 32 (citing AR 009280).

        Plaintiffs counter that the SSC never made such a conclusion;

it was NMFS that made such a conclusion. Pls.' Reply at 20 (citing

AR 008677-78) . While Plaintiffs are correct that the SSC did not

explicitly say Plaintiffs' control rules were outside the scope,

it did state that additional reference points were needed in its
                              -32-
explanation for why the rules could not be fully evaluated in its

meeting. See AR 008677 (" [I]t is difficult to address the Pacific

control rule because the specific values of the cutoff,                              buffer,

and fraction have not been specified for Atlantic herring."). Even

though Plaintiffs state that there is no basis for the conclusion

that the absence of certain reference points put the two control

rules outside the scope of the specifications, they do not explain

why that reasoning is correct. Pls.' Reply at 20.

         4.        Defendants     also   argue      that    Plaintiffs'      control   rules

"were        of     questionable      applicability          to    management    decisions

generally." Defs.' Mot.               at 32; see also AR 009280              ("The Herring

PDT expressed concern about adopting either control rule in the

2013-2015 [S]pecifications package, as it represents a significant

change in management strategy."). NMFS also noted in the EA that

one     of        the   studies    relied      on     by    Plaintiff's      control     rule

alternatives            recommended      not   using       their   reference    points    for

tactical          management      decisions.     AR    009279;      see    also AR     004408

(Anthony Smith et al., Impacts of Fishing Low-Trophic Level Species

on Marine Ecosystems, 333 SCIENCE 1147, 1150                         (August 26, 2011)).

Plaintiffs dispute this reading of the study,                             arguing that the

study was "merely making the point that the specific model choice

ultimately made by managers should be tailored to the ecosystem."

Pls.' Reply at 21.


                                               -33-
..
          The SSC also disagreed with the use of an ABC control rule in

     which a small change. in biomass made a large and sudden change in

     the acceptable catch, as the Pacific Control Rule did. AR 008678.

     Plaintiffs counter that Defendants have already implemented this

     rule on the West Coast for herring and other forage species, and,

     in any event,     it did not prevent consideration of          the Lenfest

     Control Rule. Pls.' Reply at 21. The Court agrees that this should

     have had no impact on consideration of the Lenfest Control Rule.

     In addition, the SSC's preference for rules without drastic changes

     in the ACL does not put the Pacific Control Rule outside the scope

     of the objectives, and by itself is not sufficient justification

     for not considering it. Because the Court finds the other reasons

     given by Defendants for rejecting the Lenfest and Pacific Control

     Rules to be adequate,      the insufficiency of this reason does not

     affect the outcome.

          5.   Defendants argue that Plaintiffs'        cont~ol    rules were of

     questionable applicability to the Atlantic herring fishery, due to

     the fact that the studies they relied on used a static natural

     mortality rate,    while   the   SAW 54   used a   time varying natural

     mortality rate. Defs.' Mot. at 32-33 (citing AR 009278). Plaintiffs

     concede that a dynamic natural mortality estimate is an improvement

     over a static natural mortality rate, but argue that the benefit

     "does not negate the need for an appropriate          [i.e.    Plaintiffs']


                                        -34-
control rule when setting catch limits for forage fish."                              Pls.'

Reply at 22.

        Such a balancing of factors is precisely the type of task

that     is best       left     to   the agency's    expertise,           rather than the

Court's.         Plaintiffs also argue that the alternatives could have

been modified for the Atlantic herring fishery. Pls.' Reply at 22.

Again,       the decision of whether or how Plaintiffs'                     control rules

could have been modified to fit the objectives of the 2013-2015

Specifications lies within the Secretary's area of expertise, not

the Court's, and is entitled to deference. See Grand Canyon Trust

v. FAA, 290 F.3d 339, 340 (D.C. Cir. 2002).

        Defendants provided an adequate discussion and explanation of

their reasons for rejecting the Lenfest and Pacific Control Rule

alternatives, and the Court defers to NMFS's conclusion that they

were     not      appropriately         applicable    at     this     time.    Defendants

considered three          control       rule alternatives         in the EA and have

satisfied         their   NEPA       obligations.    Even    if     the    Court   were    to

discount         the   no-action alternative,         as     Plaintiffs       argued,     the

Court        still      finds        that   Defendants       considered        reasonable

alternatives for purposes of NEPA.

        d.       Defendants      Did Not Violate       the    Court's       2012   Remedial
                 Orde:i;-

        As part of this Court's 2012 Flaherty I decision, the Court

issued       a   remedial     order     requiring    Defendants       to,     among     other

                                            -35-
things, consider "as part of the 2013-2015 herring specifications

(or another appropriate action to be completed within one year of

the date of this Memorandum Order) , . . . at least one [ABC control

rule for the Atlantic herring fishery]               based on the most recent

best available science for setting ABC control rules                 f~r   herring

and    other   forage   fish."   August    2,   2012    Remedial    Order,   12-13

("Remedial      Order")     [Dkt.    No.     41] .     Plaintiffs    argue    that

Defendants' failure "to consider even one control rule consistent

with     the   [Remedial]   Order"   was     arbitrary     and   capricious    and

violated the APA. Pls.' Mot. at 40.

       Plaintiffs previously raised this argument in their Motion to

Enforce the Remedial Order [Dkt. No. 62], which the Court denied.

See February 19, 2014 Memorandum Opinion [Dkt. No. 87]. This Court

found that the Council had "considered two alternatives to the ABC

Control Rule in the Environmental Assessment it prepared for the

2013-2015 Specifications, and Defendants attached that analysis to

its Final Remedial Report as required." Id.                at 7. After finding

that Defendants had "considered and addressed each of [the] issues"

in the Remedial Order,       this Court denied the motion to enforce.

Id. at 11-12.

       "Plaintiffs have obtained all of the relief to which they are

entitled" under the Remedial Order, id. at 12, and therefore they

cannot base further claims on alleged violations of the Remedial

Order.
                                      -36-
IV.   CONCLUSION

      For   the   reasons   set   forth   above,   Plaintiffs'   Motion   for

Summary Judgment is denied, Defendant-Intervenor SFC's Motion for

Summary Judgment is denied,         and Defendants'    Motion for Summary

Judgment is granted.

      An Order will issue with this opinion.




June 14, 2016
                                           Gl~s~~
                                           United States District Judge




Copies to: attorneys on record via ECF




                                    -37-
