Opinion
Case No. 21-cv-00736-VC
2022-06-13
OCEANA, INC., Plaintiff, v. Wynn COGGINS, et al., Defendants.
Stephen Mashuda, Stephen D. Mashuda, Earthjustice, Seattle, WA, Andrea A. Treece, Earthjustice, San Francisco, CA, for Plaintiff. Clifford Eugene Stevens, Jr., United States Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendants.
Stephen Mashuda, Stephen D. Mashuda, Earthjustice, Seattle, WA, Andrea A. Treece, Earthjustice, San Francisco, CA, for Plaintiff.
Clifford Eugene Stevens, Jr., United States Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendants.
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Re: Dkt. Nos. 32, 35
VINCE CHHABRIA, United States District Judge
In regulating fishing, the National Marine Fisheries Service performs a congressionally mandated balancing act—too much fishing and the fish may die out; too little fishing and jobs and food are sacrificed. In 2020, the agency promulgated a rule limiting the amount of anchovy that may be caught each year off the California coast. Oceana, an environmental nonprofit focused on ocean advocacy, thinks the agency's catch limit is too high. It filed this lawsuit with the goal of requiring the agency to take a more conservative approach that it believes will better protect anchovy and the predators that rely on them for food.
This is not the first time Oceana has challenged the agency's regulations for this subpopulation of anchovy. Twice, the agency promulgated rules setting the catch limit. Twice, Oceana sued. And twice, a court vacated the agency's regulation and ordered it to try again. Now, on the third go-round, the agency prevails.
The heart of Oceana's challenge is that when the agency set the catch limit, it unlawfully disregarded two recent studies, each of which found that the anchovy population collapsed between 2009 and 2014. But in adopting the most recent rule, the agency adequately explained why the population estimates from these studies were too unreliable to use. Similarly, the agency sufficiently justified its decision to use other estimates when setting the anchovy catch limit. And ultimately, the agency's conclusion that its catch limit will prevent overfishing was well within the range of reasonableness. The regulation is therefore valid, and the agency is entitled to summary judgment.
I
A
Fish are valuable renewable resources, contributing to our nation's food supply, creating jobs, and providing recreational opportunities. But certain populations are at risk, whether due to too much fishing, environmental changes, or both. Recognizing this danger, Congress enacted the Magnuson-Stevens Act "to take immediate action to conserve and manage the fishery resources found off the coasts of the United States." 16 U.S.C. § 1801(b)(1).
At the outset, it's worth clarifying one piece of terminology used in the Act: "fishery." For the most part, the word "fishery" refers to a particular group of fish within a specific geographic area (for example, anchovy located off specified parts of the California coast). The Act accordingly defines a "fishery" as "one or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics." § 1802(13)(A). Somewhat confusingly, the term "fishery" can also sometimes refer to the entity or industry that engages in fishing. § 1802(13)(B). In this ruling, "fishery" is always used in the former sense, referring to a particular group of fish.
The Act sets up a distributed system of governance. Eight Regional Councils are tasked with protecting fisheries within their jurisdictions under the oversight of the National Marine Fisheries Service. See § 1852(h)(1); § 1801(b)(4) ; § 1854(a)(3). Their mission is "to prevent overfishing, to rebuild overfished stocks, to insure conservation, to facilitate long-term protection of essential fish habitats, and to realize the full potential of the Nation's fishery resources." § 1801(a)(6). Fishery management occurs in two stages. First, a Council creates a "fishery management plan" that describes in general terms how the fisheries within its jurisdiction will be governed. Fishery management plans do not have any regulatory effect on their own—"implementing regulations must also be enacted in order to effectuate them." North Carolina Fisheries Association, Inc. v. Gutierrez , 550 F.3d 16, 17 (D.C. Cir. 2008). Accordingly, at the second stage, a Council promulgates regulations implementing its plan. See § 1853(c)(1). These regulations impact fishing activity by, for example, limiting the number of fish that can be caught each year. "Plans and implementing regulations are both subject to public notice and comment rulemaking prior to approval by the Service." North Carolina Fisheries Association , 550 F.3d at 17. Fishery management plans can be (and frequently are) amended through this same process. See § 1854(a)(1).
The statute places oversight authority in the Secretary of Commerce, who has in turn delegated this responsibility to the Service. See Pacific Dawn LLC v. Pritzker , 831 F.3d 1166, 1170 (9th Cir. 2016). The Service "is housed in the National Oceanic and Atmospheric Administration in the Department of Commerce." Id. at 1170 n.4.
Regulations are first promulgated by the relevant Council and then submitted to the Service for approval. For simplicity, this ruling will not distinguish between these bodies, but will refer to the actors behind these regulations as the "agency."
All fishery management plans and their implementing regulations must comply with ten "national standards for fishery conservation and management." § 1851(a). Two of these national standards are relevant in this case. Beginning with the simpler standard, National Standard Two requires plans and regulations to be "based upon the best scientific information available." § 1851(a)(2). National Standard One specifies that the agency shall "prevent overfishing," while also achieving, on an ongoing basis, "the optimum yield from each fishery." § 1851(a)(1). "Overfishing" is a rate of fishing mortality that "jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis." § 1802(34). The "optimum yield" of a fishery is "the amount of fish" that "will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities," while "taking into account the protection of marine ecosystems." § 1802(33)(A). The optimum yield "is prescribed on the basis of the maximum sustainable yield from the fishery, as reduced by any relevant social, economic, or ecological factor." § 1802(33)(B). Finally, the "maximum sustainable yield" is "the largest long-term average catch" that can be taken from a stock "under prevailing ecological, environmental conditions and fishery technological characteristics." 50 C.F.R. § 600.310(b)(i), (e)(1)(i)(A). Under all that jargon, the principle is simple: Agency regulations must permit as much fishing as they can without putting the future of the fishery at risk.
B
One of the primary management tools available under the Act is the "annual catch limit"—the quantity of fish that may be removed from a stock via fishing each year. Catch limits are high stakes; a limit set too high may put the future of the fish stock at risk, while a limit too low may stymie food production and economic activity. Because of the importance of these regulations and the difficulty of getting it right, catch limits are set through a three-step process. First, the agency sets the "overfishing limit." As already noted, the overfishing limit is the agency's best estimate of the maximum quantity of fish that can be caught per year without jeopardizing the ability of the fishery to produce at its maximum sustainable level—in other words, the quantity above which overfishing occurs. 50 C.F.R. § 600.310(e)(2)(i)(B), (C), (D). Next, the agency identifies the "acceptable biological catch"—a figure "that accounts for the scientific uncertainty in the estimate of [the overfishing limit], any other scientific uncertainty, and the Council's risk policy," usually by adjusting the overfishing limit downward by some factor. § 600.310(f)(1)(ii). Finally, the agency sets the "annual catch limit," or the actual amount of the fishery's stock that may be caught annually. The annual catch limit may equal the acceptable biological catch, but it may not exceed it. See § 600.310(f)(1)(iii).
To use an example that hits close to home in this case: If the agency calculates an overfishing limit of 100,000 metric tons (mt) of a particular stock of fish, the acceptable biological catch would be some fraction of this figure, perhaps 25% (25,000 mt), to hedge the risk inherent in calculating the overfishing limit. The agency could then set an annual catch limit of 25,000 mt or less.
C
This case concerns the northern anchovy—a small fish off the west coast of the United States that serves as "an important source of forage to local predators." 2016 AR 30:924 [hereinafter Fishery Management Plan]. For management purposes, the northern anchovy population is divided into two subpopulations, each of which is managed as its own fishery. The central subpopulation ranges from San Francisco, California, south to Punta Baja, Mexico, while the northern subpopulation ranges from San Francisco north to British Columbia. Id. In this lawsuit, Oceana has challenged the agency's management of the central subpopulation.
The framework for anchovy management is laid out in the Coastal Pelagic Species Fishery Management Plan, which also governs the management of pacific sardine, pacific (chub) mackerel, market squid, jack mackerel, and krill. Id. at 892. The Plan divides these species into three categories of management: "prohibited harvest," "active," and "monitored." Id. Species within the prohibited harvest category, unsurprisingly, cannot be fished at all. Id. at 893. Next comes active management, which is reserved for fisheries "requiring relatively intense harvest management procedures." Id. at 892. Catch limits for actively managed fisheries are reassessed on a periodic basis (usually yearly). Id. at 892–93. Monitored management, by contrast, is more hands off. The fisheries are not ignored—the agency still "track[s] trends" in abundance levels, for example—but there is no requirement that catch limits be reevaluated on a regular basis. Id. Instead, the catch limits for species within the monitored category are "specified for multiple years until such time as the species becomes actively managed or new scientific information becomes available." Id. at 924. As the Plan explains, the purpose of these management categories is to efficiently allocate agency resources: "The distinction enables managers and scientists to concentrate efforts on stocks ... that need the greatest attention or where the most significant benefits might be expected." Id. at 892–93.
Two aspects of the Plan are relevant here. First, the Plan places northern anchovy within the monitored category. Id. at 924. And second, it specifies a 75% uncertainty buffer between the anchovy overfishing limit and acceptable biological catch. Id. at 921.
D
The regulation at issue in this lawsuit is a catch limit set in 2020 for the central subpopulation of northern anchovy. This is not the first such catch limit that Oceana has challenged. The 2020 rulemaking was the third attempt by the agency to set a catch limit for this fishery within the past six years, after its two prior attempts were vacated by court orders.
From here on, all references to anchovy refer specifically to the fishery at issue in this case—the central subpopulation of the northern anchovy.
1. 2016 Catch Rule: In 2016, the agency promulgated a rule setting the annual catch limit for this fishery at 25,000 mt. 81 Fed. Reg. 74,309, 74,309 (Oct. 26, 2016). This figure was calculated from an overfishing limit of 100,000 mt, which the agency set based on the long-term average biomass of anchovy in the region from 1964 to 1990. Id. at 74,309 tbl.1; 2020 AR 1:2 [hereinafter Preamble].
Shortly after the rule was promulgated, Oceana filed a lawsuit, arguing that the rule violated National Standard One (overfishing) and Two (best available science). The case was assigned to Judge Koh in the San Jose division of the Northern District of California. Judge Koh found for Oceana on cross motions for summary judgment and vacated the rule. See Oceana, Inc. v. Ross (Oceana I) , 2018 WL 1989575 (N.D. Cal. Jan. 18, 2018). She held that the overfishing limit was not based on the best scientific information available because it relied upon outdated population data. In light of a recent study by Alec MacCall arguing that the anchovy population had collapsed dramatically between 2009 and 2011, Judge Koh concluded that the population estimates relied upon by the agency (spanning from 1964 to 1990) were no longer accurate. Id. at *11, *15. Judge Koh therefore held that the agency had not shown that the rule would prevent overfishing, concluding that "it was at minimum arbitrary and capricious for the Service to fail to consider whether the [overfishing limit] estimate still prevented overfishing." Id. at *15.
2. 2019 Catch Rule: The agency promulgated a revised rule in May 2019, this time proposing an overfishing limit of 94,290 mt and an annual catch limit of 23,573 mt. Rather than relying on historic population estimates, the agency turned to the newest estimates available, basing its overfishing limit on abundance estimates from 2016, 2017, and 2018. See Oceana, Inc. v. Ross (Oceana II) , 483 F. Supp. 3d 764, 773 (N.D. Cal. 2020). Again, Oceana challenged the rule in the Northern District of California. The case was deemed related to the prior challenge under the district's local rules and assigned, again, to Judge Koh. See Civil L.R. 3-12(a). And again, she found for Oceana on cross motions for summary judgment and vacated the rule. Judge Koh first concluded that the rule was not based upon the best scientific information available because the agency unreasonably disregarded two recent studies, an updated MacCall study from 2016 and a 2017 study by Julie Thayer, each of which showed a dramatic collapse in the anchovy population between 2009 and 2014. See id. at 780–81. "Without any competing information to rely upon," Judge Koh reasoned, the agency "could not have concluded that Thayer et al. (2017) and its estimates for 2009 to 2014 were not the best scientific information available." Id. "[B]y averaging anchovy biomass estimates and setting unchanging [catch limits] for an indefinite period of time, the 2019 Catch Rule entirely fails to account for drastic anchovy population fluctuations that are only documented by MacCall (2016) and Thayer et al. (2017)." Id. at 783.
Judge Koh found that the rule violated National Standard One's command to prevent overfishing for similar reasons.
The [agency] set the [annual catch limit] for an indefinite period of time without a mechanism to respond to significant changes in anchovy abundance, even though the best scientific information available established that anchovy population fluctuations are common and extreme. Given this backdrop, it was at
minimum arbitrary and capricious for the [agency] to fail to consider whether the [catch limits] would still prevent overfishing, especially given that the anchovy population will fluctuate again in the future.
Id. at 784. Judge Koh rejected the agency's argument that the 75% buffer between the overfishing limit and the acceptable biological catch (and hence, annual catch limit) was sufficient to prevent overfishing:
Thayer et al. (2017) concluded that anchovy biomass dropped 77% in a single year (1986 to 1987), dropped 90% over a two-year period (2005 to 2007), and dropped by 99% over a four-year period (2005 to 2009) .... The precautionary 75% buffer between the [overfishing limit] and the [acceptable biological catch and annual catch limit] would not prevent overfishing when the anchovy population similarly decreases in the future.
Id. (citations omitted).
3. 2020 Catch Rule: On December 31, 2020, the agency promulgated an anchovy catch limit for the third time. As with the first rule, the 2020 Catch Rule sets the annual catch limit at 25,000 mt. And like the second rule, the 2020 Catch Rule is based upon the agency's most recent abundance estimates, this time averaging biomass estimates from 2016, 2017, 2018, and 2019 for an average anchovy biomass of 498,547 mt. See Preamble at 6.
| 2016 | 151,558 mt |
| 2017 | 308,173 mt |
| 2018 | 723,826 mt |
| 2019 | 810,634 mt |
Table 1: Anchovy Biomass Estimates Per Year
To calculate the overfishing limit, the agency multiplied this abundance estimate by the agency's estimate of the rate of fishing mortality that would result in the maximum sustainable yield (23.9%), arriving at an overfishing limit of 119,153 mt. Id. at 7. Accounting for the 75% buffer dictated by the Plan, the acceptable biological catch was therefore equal to 29,788 mt. Id. Finally, in its discretion, the agency reduced this figure further still, setting an annual catch limit of 25,000 mt. Id.
Oceana does not challenge the accuracy of this mortality rate.
Once again, Oceana filed suit. And once again, the case was deemed related to the prior challenges and was reassigned to Judge Koh. Before Judge Koh could adjudicate the cross motions for summary judgment, she was elevated to the Ninth Circuit. The case was randomly reassigned to the undersigned judge.
Oceana raises four challenges to the rule. First, Oceana contends that the rule violates National Standard Two's requirement that regulations be based upon the best available science, because the agency again rejected the MacCall and Thayer studies. Second, Oceana argues that the rule will not prevent overfishing (as required by National Standard One) due to the dramatic fluctuations in the anchovy population that can be expected in the future. Third, Oceana asserts that the rule violates National Standard One for the additional reason that it fails to account for the needs of anchovy predators. And finally, Oceana argues that the Fishery Management Plan governing this anchovy subpopulation is unlawful because it places them in the monitored, rather than active, management category. This fourth argument gets at the heart of Oceana's complaint. At bottom, Oceana objects to any approach that does not require the agency to periodically reassess the catch limit for this fishery.
II
The Magnuson-Stevens Act adopts the standard of review set forth in the Administrative Procedure Act. See 16 U.S.C. § 1855(f)(1) ; Oregon Trollers Association v. Gutierrez , 452 F.3d 1104, 1116 (9th Cir. 2006). Agency regulations will be set aside if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Agency action is arbitrary and capricious if "the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Manufacturers Association of the United States v. State Farm Mutual Automobile Insurance Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). While "[t]he scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency," the agency nevertheless must "examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ " Id. (quoting Burlington Truck Lines v. United States , 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962) ).
A note about the prior challenges. Each time Judge Koh vacated the agency's catch rule, the agency " ‘deal[t] with the problem afresh’ by taking new agency action." Department of Homeland Security v. Regents of the University of California , ––– U.S. ––––, 140 S. Ct. 1891, 1908, 207 L.Ed.2d 353 (2020) (quoting SEC v. Chenery Corp. , 332 U.S. 194, 201, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947) ). "An agency taking this route is not limited to its prior reasons but must comply with the procedural requirements for new agency action." Id. Therefore, even though the 2020 Catch Rule has many similarities to the prior two rules, this Court is not bound by the reasoning of the court that considered the prior rules. Similarly, the agency rationale to be considered in this challenge is that laid out in the preamble to the 2020 Catch Rule—not the explanations offered in support of either prior rule. Accordingly, the fact that this case reaches a different result from the prior two challenges does not necessarily mean that either of those cases was decided incorrectly. That said, the Court does disagree with a couple aspects of the prior orders; each such disagreement is identified below.
III
National Standard Two requires regulations to be "based upon the best scientific information available." 16 U.S.C. § 1851(a)(2). Oceana argues that the 2020 Catch Rule fails to comply with this standard because the agency declined to incorporate estimates from two recent studies (MacCall and Thayer) that show the anchovy population collapsed between 2009 and 2014. See 2020 AR 19:874 (MacCall); 2020 AR 19:411 (Thayer). Instead, the agency calculated the overfishing limit using only biomass estimates from the four most recent years—after MacCall and Thayer say the population recovered.
If there was solid evidence demonstrating the magnitude of the anchovy collapse from 2009 to 2014, it would be suspicious for the agency to conveniently ignore these figures and instead rely solely upon the anchovy biomass estimates from the last four years. But the agency reasonably concluded that these figures are unreliable. It therefore had no obligation to use them when setting the catch limit. A
To begin, the fact that MacCall and Thayer provide the only estimates of anchovy biomass during the period from 2009 to 2014 does not automatically make these studies the "best scientific information available." To see why, turn to the agency's regulations that flesh out this standard. The regulations stress that when it comes to the scientific information used to set catch limits, quality matters. "Fishery conservation and management require high quality and timely biological, ecological, environmental, economic, and sociological scientific information to effectively conserve and manage living marine resources." 50 C.F.R. § 600.315(a)(1). To that end, the regulations specify factors that must be considered when evaluating scientific information—particularly when the information is new, evolving, or uncertain. See § 600.315(a)(4). The agency must consider the information's "relevance, inclusiveness, objectivity, transparency and openness, timeliness, verification and validation, and peer review, as appropriate." § 600.315(a)(6). The regulations contemplate this rigorous evaluation of all relevant scientific information to ensure that the agency is basing its regulations upon information that is sufficiently reliable. There is no reason to think that any information may be immune from this scrutiny—even when it is the "only" information on a given topic.
After all, if a scientist were to go to the beach, count the anchovy they see, and submit it to the agency as an estimate of the anchovy population at a given time, the agency would obviously be under no obligation to use that estimate when setting catch limits—even if this were the only estimate of the anchovy population from that year. Such a sloppy study would not meet any of the criteria that the agency is required to consider when evaluating scientific information. "Only," therefore, cannot necessarily mean "best."
Thus, assuming the agency's reasons for discrediting the anchovy biomass estimates from MacCall and Thayer withstand scrutiny (more on that later), the agency may (and perhaps, must) decline to rely upon these estimates when setting the anchovy catch limit. This does not mean the agency is flying blind. Instead, the agency can turn to other estimates of anchovy biomass that it has deemed more reliable. To the extent that Judge Koh's ruling vacating the prior catch rule rested on the idea that the absence of other data mandated reliance on MacCall and Thayer, this Court disagrees. See Oceana II , 483 F. Supp. 3d at 781 ("[T]he [agency] does not present any alternative abundance estimates for 2009 to 2014, the years in which Thayer et al. (2017) estimate historically low anchovy abundance. Without any competing information to rely upon, the [agency] could not have concluded that Thayer et al. (2017) and its estimates for 2009 to 2014 were not the best scientific information available.").
True, the regulations acknowledge that the agency may sometimes rely upon incomplete or uncertain scientific information: "The fact that scientific information concerning a fishery is incomplete does not prevent the preparation and implementation of" a fishery management plan. § 600.315(e)(2) ; see also Midwater Trawlers Cooperative v. Department of Commerce , 393 F.3d 994, 1003 (9th Cir. 2004). For example, "[i]n some cases, due to time constraints, results of important studies or monitoring programs may be considered for use before they are fully complete." § 600.315(a)(6)(v). In these situations, the agency should acknowledge the uncertainty but proceed anyway, as "interim results may be better than no results to help inform a management decision." Id. But while the regulations permit the agency to consider studies that have not yet been finalized or achieved full acceptance within the scientific community, they do not require the agency to use unreliable information. To the contrary, the regulations stress the importance of independently evaluating scientific information to determine that it is accurate and verified. See § 600.315(a)(6)(iii), (vi).
B
To make sense of the agency's critique of MacCall and Thayer, it helps to understand the landscape of anchovy biomass estimates. As it turns out, it's difficult to count anchovy (there are a lot of them, after all). Scientists therefore track the anchovy population by sampling the biomass at different locations and extrapolating the total biomass from the samples. Two sampling methods are relevant here. First, the acoustic-trawl method uses echosounders and nets to sample the anchovy population. "In general terms, the contemporary [acoustic-trawl method] combines information from satellite-sensed oceanographic conditions, calibrated multifrequency echosounders, probe-sampled oceanographic conditions, pumped samples of fish eggs, and trawl-net catches of juvenile and adult" fish. 2020 AR 69:1939. The second approach, the daily egg-production method, relies upon samples in a similar way. But with this measurement technique, the sampling results in an estimate of anchovy egg and larval densities, which scientists then use "to back calculate the size of the spawning stock that produced the eggs." 2019 AR 412:19264. To go from an estimate of egg and larval biomass to the spawning population requires some knowledge of anchovy reproductive data (such as fecundity and the ratio of female anchovy to male). Id. The source of reproductive data affects the accuracy of the ultimate biomass estimate—more reliable reproductive data result in a more reliable overall estimate.
The MacCall and Thayer studies estimate anchovy biomass from 1951 to 2015 using the daily egg-production method. But because the adult population was not sampled in each of those years, the studies rely upon reproductive data from the 1980s to extrapolate the spawning adult biomass from the egg and larval data. This move rests upon an assumption that the reproductive makeup of anchovy stays relatively constant over time. Otherwise, the decision to rely upon reproductive data from the ‘80s will result in inaccurate estimates—some years the estimates will be too high, and some years they will be too low.
The agency challenges the assumption that the reproductive makeup of anchovy stays relatively constant. Indeed, it is "[t]his method of expansion"—using biological data from the 1980s to expand from egg and larval data to adult biomass for a given year—that "was the primary technical flaw identified with the MacCall and Thayer methodology." Preamble at 6; see also id. at 4 ("Specifically, [the agency] and other outside scientists had valid concerns regarding the method used to try to estimate the total abundance of all adult (or spawning adult) anchovy in any one year from counts of anchovy eggs and larvae from only a portion of the California coast where anchovy are found and without using biological information collected from adult anchovy that same year."). The agency therefore concluded that "the year-specific estimates in the MacCall and Thayer publications are not appropriate to use as independent measures for determining reference points for central anchovy and whether those reference points will prevent overfishing." Preamble at 5. The problem is well illustrated by considering the data available from 2017. In 2017, agency scientists estimated anchovy biomass using the daily egg-production method but relying upon reproductive data from the same year, rather than the 1980s. See Preamble at 6. The agency arrived at a biomass of 308,173 mt. Id. Thayer's estimate from 2017 is 1,169,400 mt. Id.
In arriving at this conclusion, the agency reviewed two reports: a report from a May 2016 workshop of coastal pelagic species experts and an October 2016 report by agency scientists. See Preamble at 4; see also 2019 AR 412; 2019 AR 416. These reports were not included in the administrative record that the parties submitted to the Court pertaining to the 2020 Catch Rule, although they were both submitted to the Court as part of the administrative record for the 2019 Catch Rule. Despite this omission, the agency clearly considered both reports when drafting the 2020 rule, as both are cited in the preamble to the 2020 rule. See Preamble at 4 nn. 13–14.
Oceana counters that this criticism of MacCall and Thayer is unfair because the relevant reproductive data are not available for the period from 2009 to 2014, so MacCall and Thayer had no choice but to rely upon reproductive data from a different year to calculate their estimates. But this misses the point. The agency is not faulting MacCall and Thayer for its failure to use contemporary biological data where none is available. Rather, it is arguing that the estimates, however resourceful they may be given the data limitations, are not sufficiently reliable to be used when estimating the anchovy biomass for the purpose of setting catch limits.
The problems with Thayer's 2013 estimate are even more jarring. For that year, Thayer estimates an anchovy biomass of 7,500 mt. 2020 AR 19:270. But the agency explains (and Oceana does not contest) that fishery catches alone exceeded 7,500 mt in 2013—"in other words, fishermen actually caught more anchovy than Thayer had estimated even existed." Preamble at 5. And fishing accounts for only a small fraction of the anchovy that is removed in any given year—the vast majority (over seven times the amount that is fished, according to one account) is eaten by predators. See 2019 AR 412:19273. In short, Thayer's 2013 estimate is way off.
Oceana argues that this discrepancy does not undermine MacCall and Thayer because MacCall and Thayer estimate spawning (i.e., reproductively mature) biomass, whereas predators and fisheries catch all ages of anchovy, including larvae and juveniles. For this argument to be persuasive, Oceana would need to show that the difference between spawning biomass and total biomass exceeds the difference between the amount of anchovy removed by fisheries and that removed by predators. It has not done so. Indeed, the very study that Oceana points to in support of this argument finds that "[s]pawning biomass may sometimes be very similar to total biomass for [anchovy], but not always." 2020 AR 84:2370. Moreover, in years in which the difference between spawning and total biomass is large, the agency is further justified in declining to rely upon MacCall and Thayer's estimates. If total anchovy biomass is considerably greater than spawning biomass, it would be unreasonable for the agency to calculate a catch limit based on spawning biomass estimates. Finally, Oceana's argument is undermined by the fact that the studies’ errors occur in both directions—sometimes MacCall and Thayer overestimate anchovy abundance, whereas sometimes they underestimate it. If the discrepancy were primarily due to the fact that MacCall and Thayer estimate spawning biomass, their estimates would consistently understate the population.
This is another place where the Court parts ways with the analysis in one of Judge Koh's prior rulings. See Oceana I , 2018 WL 1989575, at *12 (rejecting the agency's argument against the MacCall study "because the MacCall study estimates spawning adult anchovy biomass, whereas the fishery landings to which Defendants point include both adult and juvenile biomass, thereby inflating the amount of biomass relative to the MacCall study").
The discrepancies are not limited to 2013 and 2017. Comparing the agency's biomass estimates for the years 1961 to 1994 to MacCall and Thayer reveals an average per-year difference of over 550,000 mt—with the largest difference being nearly 1.8 million mt. See Preamble at 5–6. The fact of these differences alone does not demonstrate MacCall and Thayer's unreliability; it could be the agency's estimates that are off. But when considered alongside the issues highlighted above, the agency reasonably concluded that "the estimates from MacCall and Thayer [are] unreliable as a measure of the actual population size of central anchovy." Id. at 6. Indeed, MacCall and Thayer themselves noted that "estimates for recent single years are imprecise and should not be used individually for interpretation." 2020 AR 19:413; see also id. ("Although the abundance estimates are imprecise at this low level, the biomass is almost certainly less than 100,000 mt.").
Oceana argues that the agency's rejection of MacCall and Thayer was unreasonable because (as the agency acknowledged) MacCall and Thayer improved upon the agency's own methodology in certain ways. For example, agency scientists noted that the MacCall study "identified a potential bias in previous egg-production estimates of anchovy abundance." 2019 AR 412:19264. The bias was caused by the fact that the stations from which samples were taken in the agency's historical surveys had been "weighted equally and treated as if they were obtained from a simple random sample." Id. This may not have been appropriate, because anchovy tend to occur at greater densities near shore, and the stations at which samples were taken were spaced more closely in the near shore than they were offshore. Id. As a result, "[p]revious studies may have overestimated anchovy abundance when the population size was small and underestimated the population size when it was large." Id. In other words, according to the agency's own scientists, the agency's data may underestimate anchovy population fluctuations.
This is not enough to undermine the agency's argument that MacCall and Thayer are unreliable. To prevail on this point, Oceana would need to demonstrate that any potential improvement over the agency's methodology makes up for the deficiencies in MacCall and Thayer's approach. But Oceana has not done so. The agency's conclusion that MacCall and Thayer are "not the best scientific information available on the historical annual biomass estimates of anchovy in any given year" was therefore reasonable. Preamble at 6.
IV
Oceana next argues that the 2020 Catch Rule violates National Standard One because it does not prevent overfishing. See 16 U.S.C. § 1851(a)(1). The core of Oceana's argument is that a static, unchanging catch limit of 25,000 mt (or any static catch limit, for that matter) cannot prevent overfishing in the face of an anchovy population that fluctuates dramatically.
Recall that overfishing occurs when a fishery "is subjected to a level of fishing mortality or total catch" that jeopardizes the fishery's capacity to produce the maximum sustainable yield "on a continuing basis." 50 C.F.R. § 600.310(e)(2)(i)(B). The agency is tasked with setting the limit at an annual amount that corresponds with "the level of fishing mortality ... above which overfishing is occurring." § 600.310(e)(2)(i)(C), (D). By definition, then, exceeding the overfishing limit for one year constitutes overfishing. See § 600.310(e)(2)(ii)(A)(2 ).
As explained above, the agency calculated the overfishing limit by multiplying the average anchovy biomass from 2016 to 2019 (498,547 mt) by 23.9%—the maximum rate at which anchovy can be harvested without jeopardizing the fishery's ability to produce at its maximum sustainable level. The result is an overfishing limit of 119,153 mt. The acceptable biological catch is 25% of that amount, or 29,788 mt, to account for the possibility that the overfishing limit is not adequately protective of the anchovy population. And the annual catch limit is lower still—25,000 mt, reflecting a discretionary decision by the agency that an additional uncertainty buffer is warranted.
Oceana does not contend that a catch limit of 25,000 mt is inadequate at recent biomass levels. Rather, it contends that the agency has not adequately considered the possibility that the population will drop suddenly, possibly in the near future. But this concern is addressed by the requirement contained in the Fishery Management Plan that the acceptable biological catch be only 25% of the overfishing limit for this anchovy subpopulation. Indeed, the agency uses this type of buffer for species in the "monitored" category to address the precise concerns expressed by Oceana. As previously explained, the acceptable biological catch is the level of catch that "accounts for the scientific uncertainty in the estimate of [the overfishing limit], any other scientific uncertainty, and the Council's risk policy." 50 C.F.R. § 600.310(f)(1)(ii). "Scientific uncertainty refers to uncertainty in the information about a stock and its reference points" and can arise from uncertainty in the estimates of a stock's biomass, projections into the future, "longer-term uncertainties due to potential ecosystem and environmental effects," and "other factors." § 600.310(f)(1)(vi).
During the hearing, the parties suggested that the present anchovy biomass in this region is even higher than it was in 2019, hovering around 2 million mt.
Pointing to MacCall and Thayer, Oceana contends that the 75% buffer established by the agency is insufficient because anchovy biomass can drop as much as 77% in a single year. But as already explained, the agency has reasonably concluded that MacCall and Thayer's biomass estimates are not reliable. For the same reasons, the agency may decline to take the magnitude of their fluctuations at face value when determining whether the catch limit will prevent overfishing.
This is another area of disagreement with Judge Koh's ruling vacating the 2019 Catch Rule. She found that the rule would not prevent overfishing because "the best scientific information available establishes that the anchovy population can drop by as much as 77% in a single year, 90% over two years, or even 99% over four years." Oceana II , 483 F. Supp. 3d at 783.
Oceana next argues that, even without relying upon MacCall and Thayer's absolute estimates, the 2020 Catch Rule will not prevent overfishing in the future. The argument goes something like this:
(1) The agency calculated an overfishing limit of 119,153 mt.
(2) This overfishing limit was calculated based on a maximum sustainable yield mortality rate of 23.9%, meaning the agency believes the fishery can withstand a 23.9% reduction in its population due to fishing without jeopardizing the stock's ability to produce the maximum sustainable yield.
(3) If the biomass dips below 100,000 mt in a given year, a catch equal to the 25,000 mt limit (25% of the anchovy population) would exceed this 23.9% mortality rate.
(4) Exceeding the 23.9% mortality rate constitutes overfishing.
(5) Because anchovy biomass has dropped below 100,000 mt in the past, it will do so in the future.
(6) The industry is likely to fish right up to the catch limit. Therefore,
(7) in some future year there will be overfishing.
Not so fast. For one thing, premise five is far from a sure bet; it is not quite true that MacCall and Thayer declare that anchovy biomass will drop below 100,000 mt in the future. Rather, they argue that the population has done so twice since the 1950s, for ecological reasons largely unknown. See 2020 AR 19:880. Premise six is suspect as well. When the anchovy population is low, fishing is more difficult. It is therefore unlikely that the industry will be able to catch the full amount available to it when biomass is low. See 2020 AR 74:2039.
But Oceana's larger conceptual error occurs at premise four. Recall, one last time, that overfishing occurs whenever "the capacity of a fishery to produce the maximum sustainable yield on a continuing basis" is jeopardized. 16 U.S.C. § 1802(34). The overfishing limit is the numerical instantiation of this concept; a single yearly catch above the overfishing limit constitutes overfishing. See Fishery Management Plan at 920 ("In operational terms, overfishing occurs ... whenever catch exceeds" the overfishing limit."). The 23.9% mortality rate, in contrast, is not an annual limit. Rather, it's the "fishing mortality rate that, if applied over the long term , would result in" the maximum sustainable yield. 50 C.F.R. § 600.310(e)(1)(i)(B) (emphasis added). Considered in the context of the 2020 Catch Rule, then, overfishing occurs in a given year if the catch exceeds 119,153 mt, or if the population has dropped low enough for long enough to put the stock's ability to produce the maximum sustainable yield at risk. See § 600.310(e)(2)(i)(B). But from the mere fact that fishermen caught more than 23.9% of the stock in one particular year, it does not automatically follow that overfishing has occurred.
In addition, the regulations recognize that some risk of overfishing is acceptable. When setting the buffer between the overfishing limit and the acceptable biological catch, the agency can consider its "risk policy," which can "be based on an acceptable probability (at least 50 percent) that catch equal to the [acceptable biological catch] will not result in overfishing." § 600.310(f)(1)(ii), (2)(i). Importantly, the agency has considerable discretion in evaluating the level of risk it is willing to tolerate, given the competing interests of stakeholders impacted by fishery management. "When determining the risk policy," the agency can "consider the economic, social, and ecological trade-offs between being more or less risk averse." § 600.310(f)(2)(i). Oceana is wrong to assume that the agency must place so heavy a thumb on the scale in favor of conservation at the expense of the food supply or people's economic livelihood.
Finally, any risk is mitigated by the statutory and regulatory safeguards that require the agency to monitor and revisit catch limits as conditions change on the ground. Oceana's characterization of the catch rule as "set it and forget it" is not accurate. The agency is required to "immediately" notify the relevant Council whenever it determines that a fishery "is approaching an overfished condition." § 600.310(j)(1)(iii). Upon such a notification, "a Council must prepare and implement" a revised fishery management plan or regulation. § 600.310(j)(2)(ii) ; see also 16 U.S.C. § 1854(e)(1) (requiring the agency to report annually to Congress and the Councils on the status of the fisheries and "identify those fisheries that are overfished or are approaching a condition of being overfished"); § 1854(e)(2) (requiring the agency to "immediately" initiate regulatory action if it is determined at any time that a fishery is overfished). Considering the "presumption of regularity" afforded agencies, it is appropriate to assume that the agency will act where the statute and regulations so require. See Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders , 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) ; United States v. Chemical Foundation, Inc. , 272 U.S. 1, 14–15, 47 S.Ct. 1, 71 L.Ed. 131 (1926).
As noted at the outset, it appears that the primary goal of this lawsuit is to force the agency to revise the Fishery Management Plan—moving anchovy from the "monitored" management category to "active." To that end, Oceana argues that the Plan itself is unlawful because it permits "indefinite" anchovy catch limits. But because the agency rationally concluded that the 2020 Catch Rule would prevent overfishing, Oceana's attempt to reach through the 2020 Catch Rule to challenge the 2011 Plan's classification of this fishery fails.
V
Finally, Oceana argues that the 2020 Catch Rule will not protect the marine ecosystem when anchovy abundance declines. When the anchovy population declines, predators may lack access to food. And even if the population eventually recovers, it may be too late, as "predators cannot wait for the [anchovy population] to average out over multiple years; if their food sources diminish for prolonged periods, they starve." Dkt. No. 32 at 20–21.
For Oceana to prevail on this argument, it would need to show that even when the agency has set a catch limit that prevents overfishing, the agency is compelled to further reduce the limit in the interests of anchovy predators. But the Act does not command as much. Unlike the parts of the Act that discuss the agency's duty to prevent overfishing, the statutory and regulatory language discussing the protection of marine ecosystems is highly deferential. For example, the statute mandates that the agency "shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery." 16 U.S.C. § 1851(a)(1). Yet in setting the optimum yield, the agency need only "tak[e] into account the protection of marine ecosystems" when determining the amount of fish that will "provide the greatest overall benefit to the Nation." § 1802(33)(A). The agency is required to set a catch limit "at a level such that overfishing does not occur," 50 C.F.R. § 600.310(b)(2)(iii), but is simply encouraged to take "[e]cological and environmental information ... into account, to the extent practicable" when specifying the maximum sustainable yield, § 600.310(e)(1)(v)(C). And "[e]cological and environmental information that is not directly accounted for in the specification of" the maximum sustainable yield "can be among the ecological factors considered" when regulating. Id. (emphasis added).
The protection of marine ecosystems is but one factor the agency should consider when determining the amount of catch that will provide the greatest benefit to the nation. Other factors include "the benefits of food production" and importance of "maintaining an economically viable fishery," the protection of marine ecosystems, and other "social, economic, and ecological factors." § 600.310(e)(3)(iii)(A)(1 ), (3 ) ; § 600.310(e)(3)(iii)(B). Factors sometimes pull in opposite directions. See § 600.310(e)(3)(iii)(B) ("There will be inherent trade-offs when determining the objectives of the fishery."); cf. Lovgren v. Locke , 701 F.3d 5, 32–33 (1st Cir. 2012) (noting the "potential for tension" between the Act's requirement to prevent overfishing while achieving the optimum yield). When they do, it is up to the agency to weigh these trade-offs according to its policy priorities.
Of course, the agency is not permitted to ignore ecological considerations when setting catch limits. But it has not done so here. In the preamble to the 2020 Catch Rule, the agency notes that it "determined that no further reduction to the [catch limit] was necessary because there is no evidence that harvest up to the [catch limit] over the long term will cause harm to anchovy predator species through prey removal." Preamble at 9. This is because "anchovy biomass is driven primarily by environmental conditions," not fishing. Id. And when the population does decline, the agency found that fishing has a limited impact on predators. See id. ("[T]here was no evidence of direct competition between the fishery and anchovy predators during the years Oceana and Earthjustice purport that the anchovy population was low."). The agency has therefore sufficiently considered the protection of the marine ecosystem in promulgating the 2020 Catch Rule.
* * *
The defendants’ motion for summary judgment is granted and Oceana's motion for summary judgment is denied.