Case 5:21-cv-05407-VKD Document 1 Filed 07/14/21 Page 1 of 49
`
`DANIKA DESAI (CA Bar #326575)
`ANDREA A. TREECE (CA Bar #237639)
`Earthjustice
`50 California Street, Suite 500
`San Francisco, CA 94111
`T: (415) 217-2000 / F: (415) 217-2040
`Email: ddesai@earthjustice.org
`Email: atreece@earthjustice.org
`
`Counsel for Plaintiff
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`OCEANA, INC.,
`
`Case No. 5:21-cv-05407
`
`Plaintiff,
`
`v.
`
`GINA RAIMONDO, in her official capacity
`as Secretary of Commerce; NATIONAL
`OCEANIC AND ATMOSPHERIC
`ADMINISTRATION; and NATIONAL
`MARINE FISHERIES SERVICE,
`
`Defendants.
`
`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF
`
`Administrative Procedure Act Case
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`CASE NO.
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`Case 5:21-cv-05407-VKD Document 1 Filed 07/14/21 Page 2 of 49
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`INTRODUCTION
`Plaintiff Oceana challenges a final agency action, NMFS’s approval of
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`Amendment 18 to the Coastal Pelagic Species Fisheries Management Plan, that fails to rebuild
`the Pacific sardine population to healthy levels, in violation of the Magnuson-Stevens Fishery
`Conservation and Management Act (“MSA”). The health of the Pacific sardine population is
`crucial to the West Coast marine ecosystem and to fisheries that depend on sardine as direct
`catch, bait, or food for other target species like salmon. Yet in approving Amendment 18, the
`National Marine Fisheries Service (“NMFS”) chose a suite of already disproven, status quo
`management measures that will keep this population at levels too low to support either the
`ecosystem or the primary fishery that relies on sardine for half a century or more.
`Amendment 18 is the latest episode in the Pacific sardine’s saga as a cautionary
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`tale for poor environmental stewardship. Pacific sardine were famously the foundation and the
`demise of Monterey’s Cannery Row during the 1930s to 1950s, when sardines supported the
`largest fishery in the western hemisphere. But overfishing in the face of changing ocean
`conditions caused the fishery to collapse in the 1950s. Fishery managers, reluctant to limit
`fishing even as the population fell precipitously, failed to close the major directed commercial
`fishery until 1967. Even then, managers continued to allow fishermen to catch sardines for live
`bait and as incidental catch. Unsurprisingly, the population continued its downward trajectory
`until managers implemented a complete fishing moratorium in 1974. This failure to act swiftly
`at the first signs of declining abundance caused the sardine collapse to last longer and decline to
`lower levels, and, when sardines did start to rebound, prevented the population from reaching its
`previous abundance levels. Despite these hard lessons, NMFS repeats these management
`failures in Amendment 18.
`The MSA requires NMFS to implement conservation and management measures
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`to help overfished fish populations swiftly return to healthy levels that can support a sustainable
`fishery in the long-term. These measures, known as a “rebuilding plan,” must be based on the
`best scientific information available. Instead of implementing measures to rebuild the Pacific
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`
`CASE NO.
`
`1
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`

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`Case 5:21-cv-05407-VKD Document 1 Filed 07/14/21 Page 3 of 49
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`sardine, however, NMFS merely relabeled existing management measures as a rebuilding plan,
`maintaining the status quo. What NMFS calls a “rebuilding plan” in Amendment 18 is in fact
`merely a continuation of the same status quo management measures that resulted in an
`overfished population and under which the population continues to decline. Unsurprisingly,
`NMFS’s own modeling predicts Amendment 18 will not rebuild the Pacific sardine population.
`In contorting status quo management into a so-called rebuilding plan, NMFS
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`failed to use the best available science.
`Instead of developing a plan that would achieve the abundance (measured as
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`biomass) that its own scientists identified as constituting a healthy population, NMFS selected a
`rebuilding target biomass that is as much as ten times lower. Indeed, the selected rebuilding
`target is so low that when the population falls to this biomass level, fishing in the primary
`sardine fishery is prohibited under current management measures.
`Then, when NMFS’s own analysis showed the rebuilding plan failed to rebuild
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`the population even to that artificially low level within the legal timeframe, NMFS simply
`ignored these results and adopted Amendment 18 anyway.
`To justify this unscientific rebuilding plan, NMFS analyzed the environmental
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`impacts and rebuilding potential—not based on the amount of sardine Amendment 18 will
`allow fishermen to catch every year—but based on the assumption that fishermen will
`voluntarily and consistently catch much lower levels equal to sardine landings in recent years.
`The overfished state of the sardine population stems in part from NMFS’s failure
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`over the past decade to use the best available science—including peer-reviewed studies from its
`own scientists—to set annual catch limits. Amendment 18 perpetuates rather than fixes these
`problems.
`In addition to requiring NMFS to rebuild overfished populations, the MSA also
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`requires NMFS to prevent overfishing. To do so, NMFS sets an overfishing limit that is
`supposed to ensure that catch levels do not result in overfishing. But for years, NMFS has set
`the overfishing limit and associated annual catch limits too high. NMFS’s own scientists have
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`
`CASE NO.
`
`2
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`Case 5:21-cv-05407-VKD Document 1 Filed 07/14/21 Page 4 of 49
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`explained that the key assumptions used to calculate the overfishing limit and annual catch
`limits, including how productive the sardine population is and what proportion of the sardine
`population U.S. fishing vessels can sustainably catch, are overestimated, and have suggested
`superior methods for determining these values. But despite numerous comments from Oceana
`and others highlighting these flaws over the last decade, NMFS refused to correct course, even
`as the population declined. Now that the population is overfished, NMFS still refuses to change
`its management approach, implementing a rebuilding plan that uses the exact same method and
`analysis.
`In approving and implementing Amendment 18, NMFS also failed to fully
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`analyze the significant environmental impacts of failing to rebuild the sardine population for at
`least half a century. Sardines are a key food source for multiple marine predators, including
`species listed under the Endangered Species Act (“ESA”) like the humpback whale and marbled
`murrelet. In fact, sardines were recently designated as part of the humpback whale’s critical
`habitat. Sardines are also food for many commercially important fish species and are included
`as important prey species in the essential fish habitat designations for salmon and highly
`migratory species like striped marlin. Sardines’ high nutrient and energy content make them one
`of a handful of uniquely important prey species for West Coast marine predators. Continuing to
`implement management measures that keep Pacific sardine at very low abundance levels for
`decades—as Amendment 18 will do—is likely to have serious repercussions on the entire West
`Coast marine ecosystem.
`Amendment 18 violated multiple legal obligations. First, NMFS violated the
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`MSA and Administrative Procedure Act (“APA”) by failing to identify a lawful, scientifically
`valid rebuilding target for the sardine population. Second, NMFS failed to demonstrate based on
`the best available science that Amendment 18 will rebuild the sardine population even to
`NMFS’s irrationally low rebuilding target, in violation of the MSA and APA. Third, NMFS
`failed to demonstrate based on the best available science that Amendment 18 will prevent
`overfishing, in violation of the MSA and APA. Fourth, NMFS arbitrarily analyzed the
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`
`CASE NO.
`
`3
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`Case 5:21-cv-05407-VKD Document 1 Filed 07/14/21 Page 5 of 49
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`environmental effects of expected fishing behavior rather than the agency action at issue—the
`authorized catch limits—in violation of NEPA and the APA. Fifth, NMFS failed to analyze the
`significant environmental impacts of failing to rebuild the sardine population for at least 48
`years and failed to prepare an environmental impact statement, in violation of NEPA. Finally,
`NMFS failed to analyze and minimize impacts to essential fish habitat for salmon and other
`commercially important fish species, in violation of the MSA and APA.
`By committing each of these actions and omissions, NMFS failed to comply with
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`the statutory requirements of the MSA and NEPA and acted in a manner that is arbitrary,
`capricious, an abuse of discretion, or otherwise not in accordance with the law, in violation of
`the APA. NMFS’s actions and failures to act harm Oceana’s members’ interest in rebuilding
`and maintaining a healthy and sustainable population of Pacific sardine and a healthy ocean
`ecosystem. This harm will continue in the absence of action by the Court.
`
`JURISDICTION AND VENUE
`This action arises under the MSA, 16 U.S.C. §§ 1801–1884, and the APA, 5
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`U.S.C. §§ 701–706.
`This Court has jurisdiction over this action pursuant to the MSA, which provides
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`that “[t]he district courts of the United States shall have exclusive jurisdiction over any case or
`controversy arising under” the MSA. 16 U.S.C. § 1861(d). The MSA also provides that actions
`taken by the Secretary of Commerce shall be subject to judicial review “if a petition for such
`review is filed within 30 days after the date on which the regulations are promulgated or the
`action is published in the Federal Register, as applicable.” 16 U.S.C. § 1855(f). NMFS approved
`Amendment 18 on June 14, 2021, and published notice of the approval in the Federal Register
`on June 24, 2021. Oceana is filing this Complaint within 30 days of NMFS’s approval and
`publication of Amendment 18.
`This Court, further, has jurisdiction over this action pursuant to the APA, which
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`provides that final agency action is subject to judicial review. 5 U.S.C. §§ 701–706. NMFS’s
`approval of Amendment 18 is a “final agency action” subject to judicial review under the APA.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`
`CASE NO.
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`4
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`Case 5:21-cv-05407-VKD Document 1 Filed 07/14/21 Page 6 of 49
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` This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331
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`(federal question jurisdiction), which grants the district courts “original jurisdiction of all civil
`actions arising under the . . . laws . . . of the United States,” and 28 U.S.C. § 1361, which
`grants the district courts “original jurisdiction of any action in the nature of mandamus to
`compel an officer or employee of the United States or any agency thereof to perform a duty
`owed to the plaintiff.”
`This Court has the authority to grant relief pursuant to the MSA, 16 U.S.C. §§
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`1861(d), 1855(f), as well as the APA, 5 U.S.C. § 706, and may also grant declaratory relief
`pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201–02.
`Venue is properly vested in this judicial district under 28 U.S.C. § 1391(e),
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`because a substantial part of the events and omissions which gave rise to this action occurred in
`this district.
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`INTRADISTRICT ASSIGNMENT
`This action should be assigned to the San Jose Division pursuant to Civil L.R. 3-
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`2(e) because a substantial part of the events or omissions giving rise to the claim occurred in
`Santa Cruz County and Monterey County.
`
`PARTIES
`Plaintiff OCEANA, INC. is a non-profit international advocacy organization
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`dedicated to protecting and restoring the world’s oceans through policy, advocacy, science, law,
`and public education. Oceana has over 1,392,680 members worldwide, including 217,025
`members in California, Oregon, and Washington. Oceana maintains offices in Monterey,
`California and Portland, Oregon. Ensuring the conservation and sound management of forage
`species, such as the species managed under Amendment 18 and the Coastal Pelagic Species
`Fishery Management Plan, is a central focus of Oceana’s work. Oceana devotes considerable
`resources to studying and communicating the ecological and economic importance of sound
`management of forage species in the California Current Ecosystem off the U.S. West Coast.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`
`CASE NO.
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`5
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`Case 5:21-cv-05407-VKD Document 1 Filed 07/14/21 Page 7 of 49
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`Oceana and others have long urged the Pacific Fishery Management Council
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`(“Council”) and NMFS to fulfill their legal obligations to sustainably manage Pacific sardine.
`Since 2007, Oceana and others have specifically requested that NMFS and the Council set more
`precautionary catch limits, more explicitly account for predator needs in sardine management,
`set more conservative harvest control rules, more directly consider foreign sardine catch in U.S
`management, set harvest rates based on current ecological conditions, and use the best available
`science to manage Pacific sardine.
`Oceana’s members use and enjoy the oceans for numerous activities, including
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`fishing, ecotourism, wildlife observation, photography, scuba diving, snorkeling, boating,
`swimming, beach walking, research, and study. Oceana’s members value and depend upon a
`healthy marine environment for these activities. Oceana’s members also consume seafood
`caught in the California Current Ecosystem. They are concerned about and directly affected by
`environmental injury caused by unsustainable fishing in the U.S. West Coast fisheries resulting
`in depletion of Pacific sardine and the predatory fish and wildlife that rely on the species to
`grow and thrive. Injuries to Oceana’s members include injuries to their consumption and
`recreational and commercial use of fish populations, as well their interest in healthy populations
`of seals, sea lions, brown pelicans, marbled murrelets, humpback whales, sharks, dolphins, and
`other wildlife.
`The above-described aesthetic, conservation, recreational, commercial, scientific,
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`educational, and other interests of Oceana and its members have been, are being, and, unless the
`relief prayed for in this Complaint is granted, will continue to be adversely affected and
`irreparably injured by NMFS’s failure to protect and rebuild Pacific sardine through the
`unlawful Amendment 18. These injuries are actual and concrete and would be redressed by the
`relief Oceana seeks here. Oceana has no adequate remedy at law.
`The Defendants in this action are:
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`a. GINA RAIMONDO. Ms. Raimondo is sued in her official capacity as
`Secretary of Commerce. The Secretary of Commerce is ultimately responsible for overseeing
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`
`CASE NO.
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`6
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`Case 5:21-cv-05407-VKD Document 1 Filed 07/14/21 Page 8 of 49
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`the proper administration and implementation of the MSA in connection with federal fisheries
`management actions, including provisions related to the duty to end and prevent overfishing,
`rebuild overfished populations, account for ecosystem needs and base all conservation and
`management measures on the best available science.
`b. NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION. The
`National Oceanic and Atmospheric Administration is an agency of the United States
`Department of Commerce with supervisory responsibility for NMFS. The Secretary of the
`Department of Commerce delegated responsibility to ensure compliance with the MSA to the
`National Oceanic and Atmospheric Administration, which in turn sub-delegated that
`responsibility to NMFS.
`c. NATIONAL MARINE FISHERIES SERVICE. NMFS is an agency of the
`United States Department of Commerce that has been delegated the primary responsibility to
`ensure that the requirements of the MSA and other applicable laws are followed and enforced,
`including the requirements to rebuild overfished populations, base conservation and
`management measures on the best scientific information available, prevent and end overfishing,
`and minimize impacts on essential fish habitat. In that capacity, NMFS must review fishery
`management plans and amendments to those plans, and issue implementing regulations.
`
`LEGAL BACKGROUND
`
`MSA Framework for Preventing Overfishing
`The MSA governs the conservation and management of fisheries in U.S.
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`territorial waters and in the exclusive economic zone, which extends from the boundaries of
`state waters (typically 3 miles from shore) to 200 miles offshore or to an international boundary
`with neighboring countries. 16 U.S.C. §§ 1801(b)(1), 1802(11). The MSA creates eight regional
`fishery management councils and requires them to prepare fishery management plans for all
`fisheries under their authority that require conservation and management. Id. § 1852(a), (h)(1).
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`CASE NO.
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`The Pacific Fishery Management Council is responsible for developing fishery management
`plans and amendments for the Coastal Pelagic Species fishery.
`All fishery management plans and amendments developed by the councils and
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`regulations implementing fishery management plans and amendments are subject to final
`review and approval by NMFS to ensure that they comply with the requirements of the MSA, as
`well as with other applicable laws and requirements. 16 U.S.C. § 1854(a), (b).
`The MSA requires that fishery management plans, fishery management plan
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`amendments, and any regulations promulgated to implement such fishery management plans be
`consistent with the “National Standards” for fishery conservation and management. 16 U.S.C. §
`1851(a).
`National Standard One of the MSA requires that “[c]onservation and management
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`measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield
`from each fishery.” 16 U.S.C. § 1851(a)(1). The MSA further requires fishery management
`plans to “contain the conservation and management measures . . . necessary . . . 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).
`The MSA defines the terms “overfishing” and “overfished” to mean “a rate or
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`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).
`The MSA and its implementing regulations emphasize the importance of
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`protecting marine ecosystems and making decisions about fisheries in the context of the health
`and long-term sustainability of the marine environment. The Act requires that fisheries be
`managed to achieve “optimum yield,” 16 U.S.C. §§ 1801(b)(4), 1851(a)(1), which is defined as
`the amount of fish that “will provide the greatest overall benefit to the Nation, particularly with
`respect to food production and recreational opportunities, and taking into account the protection
`of marine ecosystems,” and “is prescribed on the basis of the maximum sustainable yield from
`the fishery, as reduced by any relevant economic, social, or ecological factor.” Id. §
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`CASE NO.
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`1802(33)(A)–(B). For an overfished population like Pacific sardine, the Act also specifies that
`“optimum” yield must “provide[] for rebuilding to a level consistent with producing maximum
`sustainable yield.” Id. § 1802(33)(C). In other words, measures must achieve a biomass level
`that is large and robust enough to support a sustainable fishery and the marine ecosystem.
`National Standard Two of the MSA requires that “[c]onservation and
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`management measures shall be based upon the best scientific information available.” 16 U.S.C.
`§ 1851(a)(2). “Conservation and management measures” include “all of the rules, regulations,
`conditions, methods, and other measures” to “rebuild, restore, or maintain . . . the marine
`environment,” including annual catch limits, acceptable biological catch, and objective and
`measurable criteria for determining when a stock is overfished, such as the overfishing limit. Id.
`§§ 1802(5); 1853(a)(1), (10), (15); 50 C.F.R. § 600.310(e)(2)(i)(A), (D).
`In 2006, Congress enacted the Magnuson-Stevens Reauthorization Act, which
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`among other things, established a system of interrelated management measures and reference
`points intended to prevent and end overfishing. Pursuant to the MSA, 16 U.S.C. § 1851(b),
`NMFS promulgated guidelines that reflect the agency’s interpretation of the Act’s requirements
`to prevent overfishing and rely on the best available science. 50 C.F.R. § 600.305(a)(3). These
`guidelines provide further detail on how NMFS and the councils establish required management
`measures to prevent and end overfishing. Of relevance here, this includes establishing and
`revising three key measures: overfishing limits, acceptable biological catches, and annual catch
`limits.
`To prevent overfishing, NMFS must first establish an “overfishing limit” that
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`estimates the catch level (expressed in numbers or weight of fish) above which overfishing will
`occur. 50 C.F.R. § 600.310(e)(2)(i)(D).
`NMFS must then specify the “acceptable biological catch” for each stock, which
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`provides an upper limit on annual catch that accounts for scientific uncertainty in estimating the
`overfishing limit, as well as any other scientific uncertainty. 50 C.F.R. § 600.310(f)(1)(ii).
`Fishery managers “must articulate how [acceptable biological catch] will be set compared to the
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`CASE NO.
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`[overfishing limit] based on the scientific knowledge about the stock . . . and taking into
`account scientific uncertainty” and “should consider reducing fishing mortality as stock size
`declines . . . and as scientific uncertainty increases.” Id. § 600.310(f)(2)(ii).
`The function of acceptable biological catch is to ensure that any uncertainty in
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`estimating the overfishing limit does not result in overfishing.
`Each fishery management plan must “establish a mechanism for specifying annual
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`catch limits in the plan (including a multiyear plan), implementing regulations, or annual
`specifications, at a level such that overfishing does not occur in the fishery, including measures
`to ensure accountability.” 16 U.S.C. § 1853(a)(15). NMFS’s Guidelines specify that annual
`catch limits may not be set at values higher than the acceptable biological catch and in most
`instances should be set lower. 50 C.F.R. § 600.310(f)(4)(i).
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`NMFS Must Rebuild Overfished Populations to Healthy Levels that Support Sustainable
`Fishing and Ecosystem Needs
`The MSA requires the Secretary to report annually to the Congress on the status
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`of fish populations. In these reports, the Secretary must identify fish populations that are
`overfished as well as fish populations that are subject to overfishing. 16 U.S.C. § 1854(e)(1); 50
`C.F.R. § 600.310(j)(1).
`38. Within two years after NMFS designates a population as overfished, the relevant
`council must develop a fishery management plan, fishery management plan amendment, or
`regulations to end overfishing “immediately” and rebuild the population. 16 U.S.C. §
`1854(e)(3)(A). This plan, amendment, or regulation (the “rebuilding plan”) must specify a time
`for rebuilding the population that is “as short as possible,” taking into account, among other
`things, the status and biology of the overfished species. Id. § 1854(e)(4)(A)(i). The Act requires
`that the rebuilding period may not exceed 10 years, unless the biology of the stock, other
`environmental conditions, or management measures under an international agreement dictate
`otherwise. Id. § 1854(e)(4)(A)(ii).
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`
`CASE NO.
`
`10
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`Case 5:21-cv-05407-VKD Document 1 Filed 07/14/21 Page 12 of 49
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`To determine a target rebuilding timeframe based on these considerations, NMFS
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`first calculates the outer bounds of that timeframe: the amount of time it would take to rebuild
`the population in the absence of any fishing pressure, referred to as “Tmin,” and the maximum
`amount of time NMFS may authorize to rebuild an overfished population, referred to as
`“Tmax.” 50 C.F.R. § 600.310 (j)(3)(i)(A)–(B).
`NMFS then chooses a target timeframe for rebuilding that is between Tmin and
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`Tmax, after taking into account the considerations described above (the biology of the stock,
`other environmental conditions, or management measures under an international agreement). 50
`C.F.R. § 600.310 (j)(3)(i); 16 U.S.C. § 1854(e)(4)(A)(ii). When taking into account these
`conditions to determine a rebuilding timeframe, NMFS may not prioritize short-term economic
`considerations over conservation goals. Nat. Res. Def. Council v. NMFS, 421 F.3d 872, 879 (9th
`Cir. 2005); See also Nat. Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 753 (D.C. Cir. 2000).
`Furthermore, NMFS may only use economic considerations to select one management plan over
`another if the conservation outcomes of the two plans are similar. See id. (stating “under the . . .
`[MSA], the Service must give priority to conservation measures. It is only when two different
`plans achieve similar conservation measures that the Service takes into consideration adverse
`economic consequences.”).
`NMFS’s guidelines specify that NMFS must rebuild the overfished population to
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`a biomass level capable of achieving maximum sustainable yield over the long-term—in other
`words, a fish population level capable of supporting a long-term sustainable fishery, referred to
`as “biomass at maximum sustainable yield” or “BMSY.” 50 C.F.R. § 600.310(j)(3)(i)(A).
`NMFS’s guidelines define “maximum sustainable yield” as “the largest long-term
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`average catch or yield that can be taken from a stock . . . 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).
`NMFS must ensure that the rebuilding plan achieves at least a 50 percent chance
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`of rebuilding to the long-term, healthy biomass within the specified timeframe. 50 C.F.R. §
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`CASE NO.
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`Case 5:21-cv-05407-VKD Document 1 Filed 07/14/21 Page 13 of 49
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`600.310(j)(i)(3)(A). Indeed, a rebuilding plan with a less than a coin’s flip chance of success is
`arbitrary and capricious and not in accordance with the law. See Nat. Res. Def. Council, Inc. v.
`Daley, 209 F.3d at 754 (invalidating a fishery management plan with a less-than-50 percent
`chance of success as arbitrary and capricious).
`If, within two years after NMFS identifies a population as overfished, the relevant
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`council fails to submit a rebuilding plan that rebuilds the population and prevents overfishing,
`NMFS must prepare a rebuilding plan within nine months. 16 U.S.C. § 1854(e)(5).
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`NMFS Must Identify and Protect Essential Fish Habitat
`The MSA recognizes that healthy fish populations depend on healthy habitat. 16
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`U.S.C. § 1801(a)(9), (b)(7). The Act thus requires NMFS to designate and conserve habitat
`components that are necessary for spawning, breeding, feeding, or growth to maturity as
`“essential fish habitat” (“EFH”). Id. §§ 1802(10), 1853(a)(7), 1855(b)(1).
`The MSA requires councils to “prevent, mitigate, or minimize any adverse effects
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`from fishing, to the extent practicable, if there is evidence that a fishing activity adversely
`affects . . . [essential fish habitat] in a manner that is more than minimal and not temporary in
`nature.” 50 C.F.R. § 600.815(a)(2)(ii); see also 16 U.S.C. § 1853(a)(7) (statutory requirement).
`Amendments to fishery management plans “must ensure that the FMP continues to minimize to
`the extent practicable adverse effects on EFH caused by fishing.” 50 C.F.R. § 600.815(a)(2)(ii).
`Adverse effects mean “any impact that reduces quality and/or quantity of” essential fish habitat.
`Id. § 600.810(a). Actions that reduce the availability of prey species, including removals by
`fishing, can constitute an adverse effect on essential fish habitat. Id. § 600.815(a)(7).
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`The National Environmental Policy Act
`Enacted by Congress in 1969, NEPA establishes a national policy to “encourage
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`productive and enjoyable harmony between man and his environment” and “promote efforts
`which will prevent or eliminate damage to the environment and biosphere and stimulate the
`health and welfare of man.” 42 U.S.C. § 4321.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`CASE NO.
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`12
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`Case 5:21-cv-05407-VKD Document 1 Filed 07/14/21 Page 14 of 49
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`NEPA has a dual purpose. “First, it places upon [a federal] agency the obligation
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`to consider every significant aspect of the environmental impact of a proposed action. Second, it
`ensures that the agency will inform the public that it has indeed considered environmental
`concerns in its decisionmaking process.” Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062,
`1066 (9th Cir. 2002) (alteration in original).
`The Council on Environmental Quality promulgated regulations implementing
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`NEPA, which are “binding on all Federal agencies.” 40 C.F.R. § 1500.3; see id. §§ 1500.1–
`1508.11
`Under NEPA, a federal agency is required to prepare an environmental impact
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`statement (“EIS”) for any major federal action significantly affecting the human environment.
`42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1501.3(a)(3).
`An agency must accurately and transparently analyze the environmental impact of
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`its entire “action.” 42 U.S.C. § 4332; 40 C.F.R. § 1501.3(b). This analysis must be based on
`accurate, high quality information. 40 C.F.R. § 1502.23 (agencies must “ensure the professional
`integrity, including scientific integrity, of the discussions and analyses in environmental
`documents”). NEPA also requires that agencies inform both the decision-maker and the public
`about the environmental effects of the government’s decision-making. Dep’t of Transp. v. Pub.
`Citizen, 541 U.S. 752, 768 (2004).
`If an action is not likely to have a significant impact on the environment or the
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`environmental impact is unknown, agencies must prepare an environmental assessment (“EA”).
`40 C.F.R. § 1501.3(a)(2). If the EA demonstrates that the action is likely to significantly affect
`the environment, then the agency must prepare an environmental impact statement (“EIS”). Id.,
`1501.5(c). If the EA demonstrates that the action is not likely to significantly affect the
`environment, then the agency must prepare a finding of no