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March 31, 2003


The opinion of the court was delivered by: Richard Berman, District Judge.


I. Introduction

In this action, filed October 26, 2001, Natural Resources Defense Council and Environmental Defense ("Plaintiffs"), nonprofit environmental membership organizations, seek a declaratory judgment, pursuant to 28 U.S.C. § 2201, that the tilefish Fishery Management Plan ("FMP") — that is, a plan to conserve tilefish resources — issued by Donald Evans, in his capacity as Secretary of Commerce ("Secretary"), The National Oceanic and Atmospheric Administration and The National Marine Fisheries Service ("Nat'l Marine Fish. Serv."), (collectively, "Defendants") violated the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson Act"), 16 U.S.C. § 1801 to 1883, the National Environmental Policy Act ("Nat'l Envtl. Policy Act"), 42 U.S.C. § 4321 to 4370f, and the Administrative Procedure Act ("Admin.Proced.Act"), 5 U.S.C. § 551 to 559; 701 to 706. Plaintiffs claim that Defendants wrongly refused to limit the use of "bottom-tending mobile gear" to protect tilefish habitat and that the Environmental Impact Statement ("Envtl.Imp.Stmt.") included in the FMP is inadequate.*fn1 Defendants respond that there is no evidence that bottom-tending mobile gear causes an "identifiable adverse effect" upon tilefish habitat and that the Envtl. Imp. Stmt. satisfies all statutory requirements. For the reasons set forth below, the Court denies Plaintiffs' motion for summary judgment and grants Defendants' cross motion for summary judgment.

II. Background

The Magnuson Act of 1976 established a statutory framework to conserve and manage fishery resources. 16 U.S.C. § 1801 to 1883. The Act creates eight regional councils to represent the interests of the various states in each region, id. at § 1852, including the Mid-Atlantic Fishery Management Council ("Mid-Atl. Fish. Mgmt. Council" or the "Council"), which created the FMP at issue. The Secretary staffs the regional councils with individuals who have knowledge of conservation and management of fish resources based upon their occupational experience or scientific expertise. Id. at § 1852(b)(2)(A). Each regional council develops and implements FMPs for the management and conservation of fisheries. Id. at § 1852. After a council develops an FMP, the Secretary, acting through the Nat'l Marine Fish. Serv., determines whether the FMP complies with the Magnuson Act and other applicable laws. Id. at § 1854. The Secretary then publishes a notice in the Federal Register that the FMP is available for comment from interested parties during a sixty-day comment period. Id. Within thirty days of the end of the comment period, the Secretary approves, disapproves or partially approves the FMP. Id. Congress amended the Magnuson Act in 1996 by enacting the Sustainable Fisheries Act which requires that FMPs identify and describe "essential fish habitats" to "minimize to the extent practicable adverse effects on such habitat caused by fishing." Id. at § 1853(a)(7).

The Nat'l Envtl. Policy Act provides that federal agencies must include a detailed statement of the environmental impact of any proposal the agency plans to implement. 42 U.S.C. § 4332. Council on Environmental Quality regulations require that Envtl. Imp. Stmts. "should present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public." 40 C.F.R. § 1502.14.

In 1998, the Nat'l Marine Fish. Serv. declared tilefish (Lopholatilus chamaeleonticeps) to be overfished, thus triggering the need for an FMP.*fn2 AR1386. The Mid-Atl. Fish. Mgmt. Council issued a draft tilefish FMP and Envtl. Imp. Stmt. in May 1999 for comment. AR825. The draft considered, among other things, the impact of bottom-tending mobile gear on tilefish habitat and, despite the paucity of evidence in respect of adverse effects on tilefish habitat, stated:

Based on the best available scientific information, it can be inferred that trawling is causing long-term physical adverse impacts to tilefish EFH [i.e., "essential fish habitat"]. It is further implied that in some cases those adverse impacts may be severe, at least locally. AR870(citations omitted)(emphasis added).
The draft FMP cited studies of the impact of bottom-tending mobile gear on other (i.e., non-tilefish) habitats. AR868-70. The draft recommended changes to the use of bottom-tending mobile gear. AR843.

The draft FMP gave rise to a great deal of comment. See AR1289, 2486, 2528. For example, the Northeast Fisheries Science Center challenged the draft FMP's inference, stating that "[t]he use of shallow water examples of possible gear effects to biogenic habitat is misleading." AR1069. Public hearings in Rhode Island, New York and New Jersey gave rise to the following reactions: "Emerson Hasbrouck (Cornell), . . . a port agent from 1975 through 1988 . . . disagree[d] with conclusion [sic] specifically for tilefish. Assumed impacts to tilefish are not relatable." AR1115. Bonnie Aripotch commented that "[t]here is no science for `tilefish.'" AR1117. Fisherman Dan Farnham argued that "gear impacts are not specifically identified for tilefish" and that "[t]he best tilefish landings occur where bottom gear is fished heavily." AR1093, 1111. Maggie Raymond, a representative of Garden State Seafood and other organizations, commented that the Council should research the gear impacts on tilefish habitats before implementing the draft FMP or "[t]here will be lost revenues with this alternative." AR1112, 1094. Fisherman Joe Nolan believed the conclusions in the draft "would destroy historic fishermen." AR1116, 1093. Likewise, Kevin Maguire asked the Council "not [to] put people out of business," AR1117, and Diana Weir commented that the "'flawed' plan . . . will decimate our Montauk fisherman." AR1121. In contrast, Sonja Fordham from the Center for Marine Conservation stated "that a precautionary approach is warranted for such a long-lived, slow-growing, habitat-dependent species, that's in such an overfished state. We recognize that data on specific — the specific association are [sic] not strong." AR1296-97, 1122, 1116.

Commenters who opposed the "inference" that bottom-tending mobile gear negatively impacts tilefish habitat generally based their arguments on the lack of available evidence. AR1092-95, 1111-17, 1135. Commenters who supported the inference generally sought a precautionary approach, that is, limiting or banning the use of bottom-tending mobile gear despite the lack of evidence of its effects on tilefish habitat. AR1296-97, 1381, 1873, 2338; see also AR1252.

Interested parties, including Dr. Ken Able, a recognized expert on tilefish, AR1224, 1252, representatives from the Nat'l Marine Fish. Serv. and Mid-Atl. Fish. Mgmt. Council, and others met in September 1999 as a working group to discuss, among other things, bottom-tending mobile gear's impact on tilefish habitat. AR1196, 1224, 1252. Dr. Able was "unaware of any work on the east coast that would address gear impact questions for tilefish. . . . Theoretically, trawls could pass over the burrows without destroying them or could potentially cause sediments to fill the burrows. Able ha[d] not seen evidence of burrows filled in by trawls in his submersible work." AR1196. In short, no scientific data existed which proved a negative impact on tilefish habitat, according to Dr. Able. AR1196-99. The Mid-Atl. Fish Mgmt. Council acknowledged that they lacked evidence for their opinion that bottom-tending mobile gear had an adverse impact on tilefish habitat. AR1203, 1224-25, 1297, 1873.

At an October 14, 1999 meeting of the Mid-Atl. Fish. Mgmt. Council, the chairman of the Council stated that "what [Dr. Able] said and what the rest of the researchers concluded was that there really is nothing definitively known on tilefish gear or on bottom tending gear impacting tilefish habitat. . . . We can make all the associations we want, but we don't have any direct evidence. There's nothing in the literature. He knows of nothing." AR1224.

At a November 1999 meeting of the Mid-Atlantic Fish. Mgmt. Council, one staff member noted that "the conclusion of the working group was that nothing definitively was known directly about tilefish being directly impacted by bottom tending mobile gear. There is nothing direct in the literature. Unquestionably, trawl gear-patterns are found in tilefish burrows. . . . What the working group and the tilefish technical team now is recommending is that there not be gear impact measures in this FMP at this time, that there be a research approach." AR1289. A Council member noted: "The fact is there is no evidence as to what mobile gear does. It's not that there isn't much. There isn't any. . . . We simply have no information to justify . . . the proposals we went out to public hearing with. We just had nothing." AR1297 (emphasis added). Consequently, the Council voted to "eliminate the recommendation [from the draft FMP] to close ocean areas to protect tilefish habitat from supposed impact from mobile gear at this time." AR1299. Rather, the Council approved a plan to implement a research program to study the impact of bottom-tending mobile gear on tilefish habitat within two years. AR1322-24, 1382, 1903.

The Council submitted the revised tilefish FMP and Envtl. Imp. Stmt. to the Nat'l Marine Fish. Serv. in March 2000. ...

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