Natural Resources Defense Council, Inc.; Oceana, Inc. v. National Marine Fisheries Service

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 NATURAL RESOURCES DEFENSE
COUNCIL, INC.; OCEANA, INC.,
Plaintiffs-Appellants,
v.
NATIONAL MARINE FISHERIES
SERVICE; DONALD EVANS, Secretary No. 03-16842of Commerce; NATIONAL
OCEANIC AND ATMOSPHERIC D.C. No.
ADMINISTRATION, CV-02-01650-CRB
Defendants-Appellees, OPINION
and
WEST COAST SEAFOOD PROCESSORS
ASSOCIATION; FISHERMEN’S
MARKETING ASSOCIATION,
Defendants-intervenors-
Appellees. 
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
February 15, 2005—San Francisco, California
Filed August 24, 2005
Before: Dorothy W. Nelson, William A. Fletcher and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
11409

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COUNSEL
Andrew P. Caputo, Natural Resources Defense Counsel, San
Francisco, California; Sylvia F. Liu, Oceana, Washington,
D.C., and Janis Searles, Oceana, Portland, Oregon, for the
plaintiffs-appellants.
David C. Shilton, Environment and Natural Resources Divi-
sion, United States Department of Justice, Washington, D.C.,
for the defendants-appellees.
James P. Walsh, Davis Wright Tremaine, LLP, San Francisco,
California, for the defendants-intervenors-appellees.
OPINION
FISHER, Circuit Judge:
Appellee National Marine Fisheries Service (“the Agency”)
set 2002 fishing limits for four species of Pacific groundfish
that are commonly sold as “red snapper.” Appellant Natural
Resources Defense Council (“NRDC”), an environmental
organization, brought suit in federal district court challenging
the four limits as violating the Magnuson-Stevens Fishery
Conservation and Management Act (“the Magnuson Act” or
“the Act”), 16 U.S.C. §§ 1801 et seq., which directs that the
Agency prevent overfishing; the Administrative Procedure
Act (“APA”), 5 U.S.C. §§ 501 et seq., which directs agencies
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to consider relevant factors in setting such limits; and the
National Environmental Policy Act (“NEPA”), 42 U.S.C.
§§ 4321 et seq., which directs agencies to prepare adequate
environmental analyses when undertaking such actions. The
district court granted summary judgment to the Agency and
intervenor-appellees Fishermen’s Marketing Association and
West Coast Seafood Processors Association (“Intervenors”).
Because we conclude that the 2002 darkblotched rockfish
limit was based on an impermissible construction of the Act,
we reverse and remand; we affirm the limits as to the other
three species.
I. Background
A. The National Marine Fisheries Service, the
Magnuson Act, Section 1854 and the National
Standards Guidelines
Congress enacted the Magnuson Act to “conserve and man-
age the fishery resources found off the coasts of the United
States.” 16 U.S.C. § 1801(b)(1).1 The Agency is charged with
developing and implementing rebuilding plans for overfished
fish species. § 1854.2 In 1996, Congress amended the Act by
passing the Sustainable Fisheries Act (“SFA”). Pub. L. No.
104-297, 110 Stat. 3559 (1996). The SFA added new require-
ments to the Act to accelerate the rebuilding of overfished
species.
The Act, as amended by the SFA, contains a provision the
proper interpretation of which is the main subject of this
1Hereinafter, all statutory citations are to 16 U.S.C. unless otherwise
indicated.
2The Act vests this responsibility with the Secretary of Commerce, but
“[t]he Secretary carries out his management and conservation duties
through the [Agency] and eight Regional Fishery Management Councils
established by the [Act].” Yakutat, Inc. v. Gutierrez, 407 F.3d 1054, 1058
(9th Cir. 2005); see § 1852(a).
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appeal. Section 1854 of the Act provides in part that when any
species is found to be overfished, the Agency must approve
a rebuilding plan that:
(A) specif[ies] a time period for ending overfish-
ing and rebuilding the fishery that shall —
(i) be as short as possible, taking into
account the status and biology of any over-
fished stock of fish, the needs of fishing
communities, . . . and the interaction of the
overfished stock of fish within the marine
ecosystem; and
(ii) not exceed 10 years, except in cases
where the biology of the stock of fish, [or]
other environmental conditions . . . dictate
otherwise.
§ 1854(e)(4).
The Act also sets forth a series of “national standards” with
which any rebuilding plans must be “consistent,” and pro-
vides for the establishment of National Standards Guidelines
(“NSGs”) that must be “based on the national standards” for
use in “assist[ing] in the development of fishery management
plans.” §§ 1851(a), (b). The Act provides that NSGs “shall
not have the force and effect of law.” Id.
There is some ambiguity to § 1854(e)(4). Section
1854(e)(4)(i) specifies that the rebuilding time period be as
“short as possible,” but also directs that the Agency “tak[e]
into account the status and biology of [the] . . . overfished
stock” and “the needs of fishing communities.” Section
1854(e)(4)(ii) in turn plainly mandates that the rebuilding plan
be no longer than 10 years, so long as biologically or environ-
mentally possible.3 However, if it is not possible to rebuild
3A separate provision allowing for a longer period if necessary to com-
ply with the terms of an international agreement is not relevant here. See
§ 1854(e)(4)(A)(ii).
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within 10 years, the Act is not clear as to the exact limits on
the length of the rebuilding period.
Seeking to clarify the proper interpretation of § 1854(e)(4),
the Agency in 1997 sought “comment on whether or not it is
correct in its interpretation that the duration of rebuilding pro-
grams should not be unspecified and, if so, what factors
should be considered in determining that duration.” See 62
Fed. Reg. 67,610 (Dec. 29, 1997). The Agency propounded
two alternate interpretations for public comment: that when-
ever it would take longer than 10 years to rebuild an overfi-
shed species, either (1) all fishing of that species would be
banned until the rebuilding was complete or (2) the Agency
would set a ceiling on the rebuilding duration that would be
reached by adding the shortest possible time to rebuild plus
“one mean generation time . . . based on the species’ life-
history characteristics.” Id. at 67,609-10. A “mean generation
time” is a scientific term, not mentioned in the Act itself,
measuring how long it will take for an average mature fish to
be replaced by its offspring. After notice and comment, the
Agency adopted the second interpretation in a NSG (“the
1998 NSG”). See 50 C.F.R. § 600.310(e)(4)(ii)(B). The
Agency reasoned that:
[f]or stocks that will take more than 10 years to
rebuild, the guidelines [adopted] impose an outside
limit that is objective, measurable, and linked to the
biology of the particular species . . . . The guidelines
strike a balance between the Congressional directive
to rebuild stocks as quickly as possible, and the
desire . . . to minimize adverse economic effects on
fishing communities. For stocks that cannot be
rebuilt within 10 years, the guideline allows flexibil-
ity in setting the rebuilding schedule beyond the no-
fishing mortality period, but places a reasonable,
species-specific cap on that flexibility by limiting the
extension to one mean generation time.
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63 Fed. Reg. 24,217 (May 1, 1998).
B. The 2001 and 2002 Limits for Darkblotched
Rockfish
The Pacific Coast Groundfish Fishery is one of the fisheries
the Agency oversees, covering the bottom-feeding fish spe-
cies dwelling in the waters off the coasts of California, Ore-
gon and Washington. In 2000, the Agency assessed the status
of one species of Pacific groundfish within the fishery —
darkblotched rockfish. It found that the species was at 22% of
its unfished population level (its predicted level absent any
fishing), and therefore concluded that the species was “overfi-
shed” within the meaning of the Act. 66 Fed. Reg. 2,347,
2349-50 (Jan. 11, 2001). The Agency further concluded that
the species could be rebuilt in 10 years or less, triggering
§ 1854(e)(4)(ii)’s mandatory requirement that the rebuilding
take place within 10 years. The Agency then set a 130 metric
ton “fishing harvest level,” or quota, i.e., a set limit of dark-
blotched rockfish that could be fished in 2001.
In 2001, the Agency updated its assessment of dark-
blotched rockfish and concluded that it had significantly over-
estimated the health of the species. The Agency now esti-
mated that the species was almost twice as depleted as
previously thought — it was at only 12% of its unfished pop-
ulation level. In the Agency’s calculations, rebuilding there-
fore could not be accomplished within 10 years; the minimum
period for rebuilding was now 14 years.
This increased rebuilding time meant, by necessity, that the
rebuilding plan was no longer limited by § 1854(e)(4)(ii)’s
mandatory 10-year cap; instead, the only applicable statutory
time limit was § 1854(e)(4)(i)’s command that the rebuilding
period be “as short as possible.” Further, according to the
interpretation of the Act set forth in the 1998 NSG, the
revised minimum rebuilding period triggered a new ceiling
that was the 14-year period plus “one mean generation time,”
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which in the case of the long-lived darkblotched rockfish was
33 years. The Agency, in short, switched from operating
under the statutory constraint of 10 years rebuilding time to
a new constraint, dictated by the 1998 NSG, of 47 years. The
Agency then set a “target” rebuilding time of 34 years, and in
accordance with this target, raised the fishing level harvest for
2002 from the previous year’s 130 metric tons to 168 metric
tons.4
NRDC brought suit alleging that the new quota violated the
Act, the Administrative Procedure Act and the National Envi-
ronmental Policy Act. The district court concluded that the
quota violated none of these statutes and granted summary
judgment for the Agency. Natural Res. Def. Council, Inc. v.
Nat’l Marine Fisheries Serv., 280 F.Supp. 2d 1007, 1014-15
(N.D. Cal. 2003).
C. The Agency’s 2002 Specifications for Three Other
Groundfish Species
The Agency also set 2002 quotas for three other overfished
groundfish species — bocaccio, cowcod and canary rockfish
— that were identical to the levels set in 2001, despite evi-
dence that fishing of these overfished species in the prior two
years had been significantly higher than that allowed by the
previous year’s quotas. The Agency reasoned that because it
did not have newly available data as to the status of these spe-
cies (owing to its policy of conducting stock assessments
every three years), its response to the evidence of overfishing
would be to put in place interim measures (such as establish-
ing no-fishing zones in certain areas), and then to set new
quotas once the next assessment was completed.
NRDC charged that the Agency’s failure to adjust the quo-
4The new quota meant only that the “target rebuilding time” had even
odds of being reached; it had a 70% chance of being reached within the
outer limit of 47 years. 67 Fed. Reg. 10,491 (Mar. 7, 2002).
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tas violated the Act, APA and NEPA. The district court also
granted the Agency summary judgment on these claims. 280
F.Supp. 2d at 1017-1018.
II. Standard of Review
We review de novo the district court’s grant of summary
judgment. Turtle Island Restoration Network v. Nat’l Marine
Fisheries Serv., 340 F.3d 969, 973 (9th Cir. 2003). “De novo
review of a district court’s judgment concerning a decision of
an administrative agency means the court views the case from
the same position as the district court.” Id.
The Administrative Procedure Act dictates that we should
“hold unlawful and set aside agency action . . . [that is] arbi-
trary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A); see also
§ 1855(f)(1)(B); Midwater Trawlers Co-op v. Dep’t of Com-
merce, 282 F.3d 710, 716 (9th Cir. 2002) (recognizing that the
Magnuson Act adopts APA’s standard of review). We must
also “determine whether the agency articulated a rational con-
nection between the facts found and the choice made.” Ariz.
Cattle Growers’ Ass’n v. United States Fish & Wildlife Serv.,
273 F.3d 1229, 1236 (9th Cir. 2001) (citation omitted).
We should not defer to an agency’s interpretation of a stat-
ute if Congress’ intent can be clearly ascertained through
analysis of the language, purpose and structure of the statute.
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 842-43 (1984). If, however, Congress’ intent is not
clear, and if “Congress delegated authority to the agency gen-
erally to make rules carrying the force of law, and [ ] the
agency interpretation claiming deference was promulgated in
the exercise of that authority,” United States v. Mead Corp.,
533 U.S. 218, 226-27 (2001), then we must defer to the agen-
cy’s construction of the statute so long as “the agency’s
answer is based on a permissible construction of the statute.”
Chevron, 467 U.S. at 843. If the Mead requirements for Chev-
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ron deference are not met, we review the agency’s interpreta-
tion under the Skidmore standard, whereby the interpretation
is “entitled not to deference but to a lesser ‘respect’ based on
the persuasiveness of the agency decision.” Wilderness Soc’y
v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1067 (9th Cir.
2003); Skidmore v. Swift & Co., 323 U.S. 134 (1944).
III. Discussion
A. The 2002 Darkblotched Rockfish Quota
1. Chevron Deference
The Agency arrived at its increased 2002 darkblotched
rockfish quota by applying its interpretation of § 1854(e)(4)
of the Magnuson Act as set forth in the 1998 NSG. NRDC
argues that this interpretation of the Act is not entitled to
Chevron deference for two separate reasons.
First, NRDC argues that Congress’ intent in this section of
the Act is clear, thereby precluding the need for any deference
to the Agency’s interpretation of the statute. We disagree. As
we noted above, § 1854(e)(4)(ii) is explicit that if a species
can be rebuilt within 10 years, it must be. But § 1854(e)(4)(i),
which states that the rebuilding period must be as “short as
possible, taking into account the status and biology of any
overfished stock of fish [and] the needs of fishing communi-
ties,” introduces an ambiguity into the calculus. When it is not
biologically possible to rebuild within 10 years, may the
Agency extend the rebuilding period beyond the shortest pos-
sible rebuilding time to account for the needs of fishing com-
munities? It would be possible to resolve the ambiguity by
concluding that the Act as a whole makes it clear that the
needs of fishing communities are perfectly aligned with the
environmental goal of rebuilding fish stocks in as short a time
as possible. But if this were the case, the language “the needs
of fishing communities” would be redundant (as these needs
would be no different than the need to rebuild stocks in as
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short a time as possible). But see Natural Res. Def. Council,
Inc. v. Daley, 209 F.3d 747, 753 (D.C. Cir. 2000) (“[W]e
reject the District Court’s suggestion that there is a conflict
between the [Act’s] expressed commitments to conservation
and to mitigating adverse economic impacts.”).5 There is
therefore an ambiguity in this part of the statute, requiring
interpretation. See Chevron, 467 U.S. at 843 (holding that
“[if] Congress has not directly addressed the precise question
at issue,” it is necessary to move to the second step of the
Chevron analysis).
NRDC next argues that because the Act explicitly provides
that NSGs do not have the force of law, Chevron deference
is not appropriate. See Mead, 533 U.S. at 226-27 (holding
Chevron deference to be appropriate only if “Congress dele-
gated authority to the agency generally to make rules carrying
the force of law, and [ ] the agency interpretation claiming
deference was promulgated in the exercise of that authority”).
The Agency responds that although the 1998 NSG does not
have the force of law, the 2002 darkblotched rockfish quota
itself — which is what is actually being challenged here —
is a binding regulation that does have the force of law, requir-
ing Chevron deference, and that to hold otherwise would
mean punishing the Agency for taking the additional step of
setting out the interpretation in an NSG.
We need not resolve this question here, because even under
the Chevron standard of review, the 2002 quota was based on
an impermissible construction of the Act. We therefore will
assume that Chevron review is appropriate even as to the
1998 NSG’s statutory interpretation that was applied to reach
the quota, without deciding the issue.
5Daley may be correct as to the long-term needs of fishing communities,
but undoubtedly the short-term economic interests of fishing communities
diverge in some respects from the needs of fish species.
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2. The 2002 Quota Is Based on an Impermissible
Construction of the Act
Under Chevron, we must determine whether “the agency’s
[quota] is based on a permissible construction of the statute.”
Chevron, 467 U.S. at 843. Chevron review is also described
as determining whether the quota reflects “a reasonable inter-
pretation” of the statute. Id. at 844.
The interpretation of § 1854(e)(4) stated in the 1998 NSG,
as applied in the 2002 quota, is not a permissible (or reason-
able) construction of the statute; it is directly at odds with the
text and purpose of the Act.6 Section 1801 of the Act contains
its “Findings, purposes and policy.” The “Findings” section
states that the nation’s fishery resources “constitute valuable
and renewable natural resources,” that many of these species’
“survival is threatened” and that others’ survival will soon be
threatened by “increased fishing pressure, . . . the inadequacy
of fishery resource conservation and management practices
and controls.” §§ 1801(a)(1), (2). The next subsection recog-
nizes “commercial and recreational fishing” as a “major
source of employment” that “contributes significantly to the
economy of the Nation.” § 1801(a)(3). But even here, the Act
urges that the economies of many coastal areas “have been
badly damaged by the overfishing of fishery resources at an
ever-increasing rate over the past decade.” Id. The Act goes
on to explain that “[i]f placed under sound management
before overfishing has caused irreversible effects, the fisheries
can be conserved and maintained so as to provide optimum
yields on a continuing basis.” § 1801(a)(5). These observa-
tions lead to the conclusion that “[a] national program for the
6NRDC counsel confirmed at oral argument that its appeal is as applied;
it challenges only this particular application of the Act. We also note that
because the Act explicitly states that NSGs do not have the force of law,
there would be no way for us to review the 1998 NSG facially; as dis-
cussed above, it gains the force of law (and hence becomes reviewable)
only through specific applications, such as the 2002 darkblotched rockfish
quota.
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conservation and management of the fishery resources of the
United States is necessary 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).
The “purposes” section adds that “[i]t is therefore declared to
be the purposes of the Congress in this chapter . . . to take
immediate action to conserve and manage the fishery
resources . . . .” § 1801(b)(1).
[1] The purpose of the Act is clearly to give conservation
of fisheries priority over short-term economic interests. See
Daley, 209 F.3d at 753 (“[U]nder the [Act], the [Agency]
must give priority to conservation measures.”). The Act sets
this priority in part because the longer-term economic inter-
ests of fishing communities are aligned with the conservation
goals set forth in the Act. Without immediate efforts at
rebuilding depleted fisheries, the very long-term survival of
those fishing communities is in doubt. See id. This back-
ground provides helpful context for interpreting § 1854. How-
ever, even if we turn to the plain language of § 1854(e)(4)
and, without such context, ask how its two subsections inter-
act, we still must reject the interpretation of the Act contained
in the 1998 NSG as it was applied to this species.
[2] Section 1854 contains two significant mandates that
constrain the Agency’s options in adopting a rebuilding plan
for an overfished species. First, the time period must be “as
short as possible,” although the Agency may take into
account the status and biology of the overfished species and
the needs of fishing communities. See § 1854(e)(4)(i). Sub-
section (i)’s commands apply to all rebuilding periods, what-
ever their length. Second, Congress specified a presumptive
cap of 10 years on any rebuilding period, subject to excep-
tional circumstances beyond the Agency’s control — such as
an international treaty or, relevant here, “the biology of the
stock of fish.” See § 1854(e)(4)(ii).
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[3] We have noted some ambiguity in subsection (i)’s man-
date to rebuild a species in “as short [a time period] as possi-
ble” while giving consideration to “the needs of fishing
communities.” The natural reading of this language, however,
is that Congress intended to ensure that overfished species
were rebuilt as quickly as possible, but wanted to leave some
leeway to avoid disastrous short-term consequences for fish-
ing communities. To use an example relevant here, even if a
fishing community is actively seeking not to fish for a certain
species, it will inevitably catch some of the overfished species
in the process of fishing for other, more plentiful fish — what
is known as “bycatch.” Because almost no groundfish that are
caught as bycatch survive even if they are thrown back into
the ocean, an absolute ban on catching any of a species of
groundfish could mean a total moratorium on all fishing in the
parts of the fishery containing groundfish, with obvious
adverse consequences for fishing communities. Section
1854(e)(4)(i), then, allows the Agency to set limited quotas
that would account for the short-term needs of fishing com-
munities (for example, to allow for some fishing of plentiful
species despite the inevitability of bycatch), even though this
would mean that the rebuilding period would take longer than
it would under a total fishing ban.7
[4] Reading subsection (i) in this light, it is apparent that
Congress intended subsection (ii) as a limit on the Agency’s
discretion. The Agency may consider the short-term economic
needs of fishing communities in establishing rebuilding peri-
ods, but may not use those needs to go beyond the 10-year
cap set by subsection (ii). To breach this cap, the Agency may
only consider circumstances that “dictate” doing so. One such
circumstance, albeit not relevant here, would be an interna-
tional agreement. Another that is relevant is “the biology of
7This appears to explain the 2001 quota. The Agency determined that
the darkblotched rockfish stock could be rebuilt within 10 years, but it still
had the flexibility under the statute to set a fishing quota of 130 million
tons for 2001 rather than ban fishing entirely.
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the stock of fish” — that is, when the current number of fish
in the fishery and the amount of time required for the species
to regenerate make it impossible to rebuild the stock within 10
years, even with a total moratorium on fishing. In such cases,
subsection (ii) recognizes that the presumptive 10-year cap
cannot apply. That said, it is manifestly unreasonable to con-
clude, as the Agency apparently has, that Congress intended
in such circumstances to relieve the Agency of its continuing
obligation to rebuild the species in a time frame that is “as
short as possible.”
[5] The 2002 quota was not based on a permissible con-
struction of the Act, because the Agency altered dramatically
the balance between the needs of a species and of fishing
communities with no statutorily grounded justification.8
NRDC argues that if the rebuilding period must exceed 10
years, the Act mandates a total moratorium on all fishing —
the alternative interpretation of § 1854 that the Agency
rejected when it adopted the 1998 NSG. Although NRDC’s
interpretation of the statute is reasonable, it is not the only
reasonable one. It is also reasonable to conclude that the
needs of fishing communities may still be taken into account
even when the biology of the fish dictates exceeding the 10-
year cap — so long as the weight given is proportionate to the
weight the Agency might give to such needs in rebuilding
periods under 10 years. This interpretation would allow the
Agency’s rebuilding periods to account for short-term con-
cerns such as bycatch in the same manner whether the
rebuilding period exceeds 10 years or not.
8In cases of species with much shorter mean generation times, the 1998
NSG might dictate a quota that limits the Agency’s discretion in a way
that appropriately reflects congressional intent. It is no answer to the irra-
tionality of the interpretation as applied to this species, however, that it
may be rational as applied to some other species. As the Agency itself has
noted, it is the 2002 darkblotched rockfish quota that is being challenged
here.
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[6] The 2002 darkblotched rockfish quota is patently unrea-
sonable, however, and reflects no such measured proportion-
ality. Freed from the 10-year cap because of the biology of the
rockfish (its long regeneration time and its dire condition), the
Agency simply applied the 1998 NSG’s formulaic approach
and increased the annual take. In 2001, the Agency set a
quota of 130 million tons of darkblotched rockfish because it
believed the species had been reduced to only 22% of its unfi-
shed population. When its revised estimate revealed that the
species was doing much worse, the Agency expanded the
fishing of the species from 130 million tons to 168 million
tons, a 29% increase. Whatever the outer limits of the range
of permissible constructions of the Act, we are certain that
what lies beyond them is an interpretation allowing the
Agency, upon discovering that a species is in significantly
worse shape than previously thought, to increase dramatically
the fishing pressure on that species. Increasing the annual take
in these circumstances is simply incompatible with making
the rebuilding period as short as possible.
We are not prepared to accept NRDC’s argument that once
the 10-year cap is lifted because the biology of the fish dic-
tates it, the Act in turn dictates that the Agency can no longer
consider the short-term economic needs of fishing communi-
ties at all. Such an argument, although plausible, does not
appear to give due consideration to the continuing operation
of subsection (i)’s command to take the needs of fishing com-
munities into account. But neither are we prepared to accept
the Agency’s interpretation, which would ignore the primary
mandate of subsection (i) — that the rebuilding period be “as
short as possible.” At least as applied here, the Agency’s
interpretation not only increased the fishing take by almost
30% but extended the maximum rebuilding period from less
than 10 years to 47 years. Plainly, the Act does not contem-
plate that the Agency grant the least protection to the fish spe-
cies in the worst shape.
The arguments of the Agency and Intervenors regarding
potentially dire consequences for fishing communities seem
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persuasive at all only because they assume that the sole alter-
native is NRDC’s strict moratorium. The district court made
this same flawed assumption:
Faced with a choice between an interpretation of the
[Act] that requires a moratorium on harvesting of
fish species that take more than ten years to regener-
ate naturally, and an interpretation that permits lim-
ited harvesting over the course of a longer rebuilding
period, [the Agency] selected . . . the latter interpre-
tation. In light of [the Act’s] dual conservationist and
commercial objectives, an interpretation that accom-
modates both objectives, rather than selecting one to
the exclusion of the other, is permissible.
280 F.Supp. 2d at 1014. The Agency was “faced with [this]
choice” only because it proposed these two extreme interpre-
tations, and no others.9
[7] Our rejection of the Agency’s interpretation is com-
pelled by the language of § 1854, which requires that rebuild-
ing take place in “as short [a time] as possible” and, if
biologically possible, in less than 10 years. § 1854(e)(4). That
simple command cannot be reconciled with a rebuilding
period that is from 20 to 33 years longer than the biologically
shortest possible rebuilding period (and that increases the
annual take in the meanwhile). We hold that even granting the
Agency some leeway in extending rebuilding periods when
the 10-year cap is not applicable, the 2002 darkblotched rock-
fish quota was based on an impermissible construction of the
Act.10
9The closest any party came to explaining the Agency’s justification for
its decision to increase the quota was Intervenors’ counsel’s assertion that
the Act was “not written by biologists,” apparently a criticism of the strin-
gency of its rebuilding commands, and in particular of the presumptive 10-
year cap.
10We therefore do not reach NRDC’s alternative arguments that the
Agency violated the APA by failing to consider relevant biological factors
and the NEPA by failing to do the required environmental analysis.
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B. The 2002 Limits for Three Other Groundfish Species
Do Not Violate the APA or the NEPA
NRDC additionally argues that the 2002 levels for three
other groundfish species violate the APA and the NEPA. The
Administrative Procedure Act requires that courts determine
if agency actions are “arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). The National Environmental Policy Act requires
agencies to consider the environmental consequences of an
action before taking it. See Robertson v. Methow Valley Citi-
zens Council, 490 U.S. 332, 349 (1989). A reviewing court’s
ultimate NEPA inquiry is whether an agency has taken the
required “hard look” at the environmental consequences of its
action. See Greenpeace Action v. Franklin, 14 F.3d 1324,
1332 (9th Cir. 1993).
Bocaccio, cowcod and canary rockfish are three additional
Pacific groundfish species that have been found to be overfi-
shed. When it set 2002 levels for these fish, the Agency sim-
ply carried over the levels from the previous year. The
Agency concluded that there was no new information on these
stocks to warrant changing the quotas. NRDC argues that
because the Agency was aware that the actual amount of these
fish that had been caught in previous years far exceeded the
set quotas, the Agency should have reduced the 2002 quotas
to compensate — and that its failure to do so was arbitrary
and capricious in violation of the APA, and reflected a failure
to take the NEPA’s “hard look.” The Agency argues that
over- or under-harvests for a single year are accounted for
through alternate mechanisms. Assessments are conducted
only every three years because of budgetary constraints, so
quota revisions likewise take place every three years. In the
meantime, however, additional “management measures” are
undertaken, such as restrictions on fishing in specific areas
within the fishery, or on fishing during certain parts of the
year when there is a greater chance of bycatch.
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The district court concluded that:
[The Agency’s] decision to maintain harvest limits at
their 2001 levels was reasonably connected to —
indeed, was dictated by — the agency’s policy of
resetting harvest limits only after conducting a stock
reassessment. In turn, that policy, which is a product
of limited resources available to the agency to man-
age eighty-two different fish species, was neither an
abuse of discretion nor contrary to law . . . . [T]he
Court [also] finds that the EA’s analysis was ade-
quate to permit informed decision-making under the
circumstances.
280 F.Supp. 2d at 1017 & n.4.
[8] We agree. Even if there are other reasonable approaches
to dealing with the problem of exceeding quotas, we cannot
say that the Agency’s actions were “arbitrary, capricious,”
“contrary to law” or that they did not reflect a sufficiently
“hard look.” We therefore affirm the district court on these
claims.
IV. Conclusion
We reverse the district court’s holding that the Agency did
not violate the Magnuson Act in setting its 2002 fishing quota
for darkblotched rockfish. We remand to the district court for
any further proceedings consistent with this opinion. See
Ocean Advocates v. United States Army Corps of Engineers,
402 F.3d 846, 871 (9th Cir. 2005) (remanding to district court
to consider remedy in first instance).
We affirm the district court’s holding as to the 2002 limits
for the other three species of groundfish. The parties shall
bear their own costs.
AFFIRMED in part, REVERSED in part and
REMANDED.
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