Pacific Marine Conservation Council v. Evans

The Pacific Fishery Management Council (Pacific Council), the regional fishery council in charge of managing the federal waters off Washington, Oregon, and California, implemented the Pacific Coast Groundfish Fishery Management Plan (FMP). To bring the FMP into compliance with the bycatch reporting and reduction requirements in the Sustainable Fisheries Act (SFA), the Pacific Council implemented Amendment 13 with the approval of the National Marine Fisheries Service (NMFS) (defendant). The NMFS was the federal agency responsible for managing all national fisheries and fishery councils. Amendment 13 stated that (1) the Pacific Council may establish an observer program to station trained observers on fishing vessels to record bycatch; and (2) the Pacific Council may implement techniques to reduce bycatch and bycatch mortality, including modifying fishing gear requirements and shortening fishing seasons. Although NMFS acknowledged that an observer program was necessary to meet the SFA’s bycatch reporting and reduction requirements, NMFS approved Amendment 13 as-is and did not require the Pacific Council to alter Amendment 13 to make the observer program mandatory. Similarly, any bycatch reduction techniques that required an observer program to function, such as incentive programs for low-bycatch vessels and bycatch discard caps, were purposefully excluded from Amendment 13. The Pacific Marine Conservation Council (PMCC) (plaintiff) challenged NMFS’s approval of Amendment 13, arguing that (a) Amendment 13 violated the SFA because it failed to establish an adequate bycatch reduction protocol; and (b) NMFS cannot justify its failure to include either a mandatory observer program or observation-based bycatch management techniques in Amendment 13 because NMFS never conducted a practicability assessment.