Ninth Circuit Upholds NMFS’s Review and Approval of the Pacific Council’s Program for the Better Management of the Pacific Coast Groundfish Fishery

October 5th, 2012

By: Thomas Law Group



In Pacific Coast Federation of Fishermen’s Association v. Rebecca M. Blank (2012) 2012 U.S. App. LEXIS 18974, the Ninth Circuit Court of Appeals concluded that the National Marine Fisheries Service (Service) complied with the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and the National Environmental Policy Act (NEPA) when it adopted changes to the Pacific Coast Groundfish Fishery Management Plan.

Under the MSA, Fishery Management Councils (Councils)  must prepare management plans for fisheries requiring conservation and management to prevent overfishing and to rebuild overfished stock.  The Councils must submit these plans for review and approval by the Service.  In 2007, Congress added a section to the MSA allowing Councils to develop “limited access privilege programs” as long as they take into account fishing communities when structuring the programs.  These programs limit who can enter and participate in the fisheries, as a further attempt to prevent overfishing, as well as economic inefficiency.

This case involves the Pacific Fishery Management Council’s (Council) development of a program to better manage the Pacific Coast groundfish fishery.  The Council’s program had several goals, all of which were divided into two proposals:  one for rationalization of the trawl sector and one for allocations and Pacific halibut bycatch.  After preparing two separate environmental impact statements (EIS), evaluating several alternatives, and examining potential environmental and economic effects, the Service approved the two proposals and codified them into Amendments 20 and 21.

Plaintiffs raised four issues in their complaint.  First, they argued Amendment 20’s limited access program violated MSA by failing to protect and promote fishing communities.  Second, plaintiffs contended the program further violated MSA by failing to restrict privileges to only those who “substantially participate” in the fisheries.  Third, plaintiffs claimed the Service violated various MSA national standards in approving Amendments 20 and 21.  Fourth, plaintiffs argued the Service violated NEPA in its review of the amendments.

The court first explained that the Service met its MSA statutory obligations to the fishing communities.  The MSA only requires the Service to consider fishing communities when establishing a limited access program, not to “guarantee communities any particular role in that program.”  The court found that the Service recognized the need to consider the fishing communities, surveyed the current status of the communities, described the effects of the program on the communities, explained how communities participated in the Council’s decisions, and adopted various measures to mitigate trawl rationalization impacts on fishing communities.

The court next held that the Service was not required to restrict quota shares to those who “substantially participate” in the fishery.  The court explained plaintiffs were “inserting the word ‘only’ and ‘solely’” into the statute and “graft[ing] a requirement for agency action onto” what is rather “an authorization for agency action.”  The MSA requires the Service to make fishing privileges available to those who “substantially participate,” but it does not have to restrict privileges to that group alone.

The court also found that the Service had not violated various MSA national standards.  Contrary to plaintiffs’ contention that the Service failed to promote conservation and use the best scientific information available, the court upheld Service’s actions finding that it explained why the amendments complied with each standard, disclosed the potential impacts of trawling on habitat along with uncertainties, and settled on the amendments that promoted the most conservation.

Lastly, the court concluded that the Service complied with NEPA.  First, the Service was not required to evaluate Amendments 20 and 21 in a single EIS since the two amendments were not connected but rather had independent utility and goals.  Second, the Service studied enough alternatives “to permit a reasoned choice.”  Third, the Service adequately evaluated impacts on fish habitat and non-trawl fishing communities as demonstrated by the EIS’s modeling, references, and comparative analyses of the effects of different types of gear on fish habitat.  Fourth, the court stated that under NEPA “a mitigation plan need not be legally enforceable, funded or even in final form” and determined the Service adequately considered a “reasonably detailed” mitigation.

Key Point:

When two actions are connected, “a single course of action shall be evaluated in a single impact statement.”  However, where two actions, while similar, are independent with regard to utility and goals, two separate EISs are permissible.  Additionally, the Ninth Circuit reiterated that pursuant to NEPA an agency is required to develop proposed mitigation measures to a reasonable degree, but is not required to develop a complete mitigation plan detailing the precise nature of the mitigation measures.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)
___________
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.