Full opinion text
AMENDED ORDER ZILLY, District Judge. I. INTRODUCTION The Gulf of Alaska (GOA) and the Bering Sea/Aleutian Islands region (BSAI), collectively referred to as the North Pacific ecosystem, is home to the largest commercial fishery in the United States. This region is also home to the western population of Steller sea lions, which were listed under the Endangered Species Act (ESA) ás a threatened species in 1990 and reclassified as endangered in 1997. This case arises out of the complex and difficult-to-assess interaction between the fisheries and the Steller sea lion population. The federal defendants in this ease are subject to the complicated legal dictates of the ESA, the National Environmental Policy Act (NEPA), and the Magnuson-Ste-vens Fishery Conservation and Management Act (Magnuson Act). Pursuant to the Magnuson Act, the North Pacific Fisheries Management Council (Council) authorizes Fishery Management Plans (FMPs) which regulate all aspects of the fisheries in the GOA and BSAI. Under the ESA, the National Marine Fisheries Service (NMFS) must consult, either formally or informally, to ensure that these FMPs are not likely to jeopardize the continued existence of the Steller sea lions, nor to modify their critical habitat. NEPA requires that environmental information is made available to decision-makers, including the Council and the Secretary of Commerce, as well as to the public, for use in such decision-making as the creation and amendment of the FMPs. Plaintiffs filed suit against NMFS and William M. Daley, Secretary of Commerce (collectively NMFS), in April 1998, challenging the 1998 North Pacific Fishery Management Plans under both the ESA and NEPA. Representatives of the fishing industry intervened (collectively interve-nors or industry). The Court granted additional environmental organizations leave to file amicus briefs in support of plaintiffs. The focus of the litigation has now shifted to the parameters of the 1999 fisheries in the GOA and BSAI. In particular, plaintiffs and intervenors challenge determinations made in NMFS’s Biological Opinion issued December 3, 1998 regarding the 1999-2001 atka mackerel fishery and the 1999-2001 pollock fisheries. Sl-55. Plaintiffs and intervenors also challenge the “Final Reasonable and Prudent Alternatives” passed by the Council and approved by NMFS. Finally, plaintiffs challenge the legal adequacy of the Supplemental Environmental Impact Statement (SEIS), issued on December 18, 1998, regarding the North Pacific fisheries. This matter currently is before the Court on cross-motions for summary judgment: plaintiffs’ motion, docket no. 181, defendants’ motion, docket no. 184, and intervenors’ motion, docket no. 187. On May 13, 1999, the Court heard argument on these motions and took the matter under advisement in order to carefully study the issues presented. Having considered the arguments of counsel, the motions, all materials filed in support and in opposition, the amicus briefs, and the record in this case, the Court hereby GRANTS in part and DENIES in part the motions of plaintiffs, defendants, and intervenors. II. BACKGROUND A. Steller Sea Lions Steller sea lions are closely related to other types of sea lions and to fur seals. The genus to which Steller sea lions belong is thought to be at least 3 million year's old. Female Steller sea lions average 2.3 meters in length and 263 kilograms weight, while males are somewhat larger, at 2.8 meters and 566 kilograms. Males live to about 20 years old, and females can reach 30 years old. In 1965, the population of the western stock of Steller sea lions was estimated at 230,000 animals. They inhabit coastal areas around the North Pacific Rim, from Southern California to Japan. Before the recent population decline, approximately 75% of the world’s population of Steller sea lions were found in Alaska. The majority of Steller sea lions are still found in Alaska, primarily in the Gulf of Alaska and Bering Sea/Aleutian Islands area. Over the last three decades, however, the population of Steller sea lions in the North Pacific has declined approximately 85%. In 1990, NMFS listed the Steller sea lion as a threatened species under the ESA, and established emergency protective regulations in an attempt to stop the population decline and to begin the process of recovery. In 1993, NMFS designated “critical habitat” for the Steller sea lion, based in significant part on protecting food resources for the sea lions. This critical habitat consists of the area around 40 rookeries and 82 haulouts, which provide areas for reproduction, feeding, rest, and protection from predators and weather. In 1997, based on genetic distinctions, the Steller sea lion species was separated into the western and eastern populations; the western population’s status was then changed to endangered. During the 1990s, the rate of decline has slowed to single-digits, but nevertheless continues. AR-125 at 4; Sl-236. NMFS has determined that the next twenty years will likely be crucial for Steller sea lion survival and recovery. Sl-55 at 60. B. Fishing Industry 1. Pollock and Mackerel The North Pacific is home to the largest commercial fishing industry in the United States. The most abundant fish in the region, and the major component of the North Pacific fishing industry, is the walleye pollock (pollock). Pollock is a bottom-dwelling fish and a member of the cod family. Sl-55 at 21. Mature female pollock are approximately 40 cm in length, and males are longer. Id. Pollock have a fairly short life-span and a high mortality rate, in part because they are sometimes highly cannibalistic. The estimated biomass of pollock in the North Pacific ecosystem has fluctuated significantly since the 1960s. In the east Bering Sea, for example, the estimated biomass was less than 2 million metric tons (mmt) in the mid-1960s, rose to nearly 8 mmt in 1971, declined to 4 mmt in 1978, peaked at 14 mmt in 1984, declined to 8 mmt in 1990, increased again to over 12 mmt in 1993, and dropped to 7 mmt in 1997. Sl-55 at 25. The fishing effort directed toward pollock has also fluctuated. From 1964 to 1970, the pollock catch in the BSAI rose from approximately 200,-000 to 1 million mt. Id. at Fig. 13. In the late 1980s, the total catch peaked at approximately 2.7 mmt. Id. A significant portion of this catch came from what later was designated as Steller sea lion critical habitat. Id. By the mid-1990s, the total pollock catch in the BSAI had declined to approximately 1.25 mmt, but much of the catch came from within Steller sea lion critical habitat. Id. Scientists believe that the pollock population changes stem in large part from climate changes which have effected the rest of the North Pacific ecosystem as well. In part because of these changes, Steller sea lions have become increasingly dependent on pollock as their major source of prey. In the Aleutian Islands, atka mackerel (mackerel) also form a very significant part of the sea lions’ diet. Mackerel are a pelagic, dense schooling fish. They reach a maximum size of 50-55 cm, at age 4 to 6 years. Sl-55 at 7. Biomass trends for the atka mackerél'are similar to those for pollock: in 1977, the biomass in the BSAI was approximately 300,000 mt. It rose in the early 1980s, fell again, then peaked at approximately 1.3 mmt in 1991. Id. at' Fig. 2. In the 1990s, the biomass has declined steadily, to approximately 600,000 mt in 1998. Id. The amount of mackerel caught has been generally rising since the late 1970s, with a brief peak in the mid-1980s at 30,000 mt, a decline in the late 1980s to approximately 18,000 mt, then sharp and steady growth throughout the early 1990s. Id. at Fig. 5. By 1996, the total atka mackerel catch reached nearly 80,000 mt. Id. Since 1980, the percentage of the catch occurring in Steller sea lion critical habitat has been almost always above 75%, and in many years was well over 90%. Id. 2. Legal Parameters The Magnuson Act provides the legal framework for federal management of the fisheries in the North Pacific. This Act establishes eight Regional Fishery Management Councils, including the North Pacific Fishery Management Council, that have primary responsibility for designing fishery management measures, including the Fishery Management Plans (FMPs) and implementing regulations. The Secretary of Commerce reviews these proposals, and can either approve or disapprove, in whole or in part, those recommendations; the Secretary cannot make changes to the proposals or take action based on a policy disagreement with the Councils’ recommendations. The FMPs must specify each fishery’s optimum yield, the catch level which would provide the greatest benefit to the nation. The plans must also state how much of that optimum yield can be expected to be harvested by vessels from the United States. Additionally, the FMPs must specify the level of fishing that would constitute overfishing. The FMPs typically contain a high level of detail concerning all the variables involved in fishing, including Total Allowable Catch (TAC) limits for targeted species, “time and area closures, gear restrictions, by catch limits of prohibited species, and allocation of TACs among vessels delivering to different types of processor groups, gear types, and qualifying communities.” S2-350 at 9. With respect to some fisheries, including the atka mackerel fishery, there has been no temporal allocation of the TAC; in other words, the fleet fishes until the TAC is met, and then fishing stops for the year. In other fisheries, the TAC has been allocated among fishing seasons: for example, the 1998 BSAI pollock fishery involves 45% of the TAC being taken in the “A” season, which ran from approximately January 20th to March 20th, and the remaining 55% of the TAC was taken in the “B” season, during September and October. TACs may also be allocated by location, by type of vessel, and by numerous other factors. C. Biological Opinions Under the ESA The ESA imposes on all federal agencies a duty to “insure” that action taken by the agencies does not jeopardize endangered species or adversely modify their critical habitat. Section 7 of the ESA provides for the “action” agency to consult with an expert agency to determine whether jeopardy or adverse modification is likely to occur. The final product of a formal consultation is the issuance of a Biological Opinion (BiOp), which sets forth the expert agency’s conclusions regarding jeopardy and adverse modification, as well as the reasoning supporting the opinion. Since the Steller sea lions were first listed as threatened, NMFS’s Office of Sustainable Fisheries (the action agency for ESA purposes) has participated in formal and informal consultation with NMFS’s Office of Protected Resources (the expert agency), regarding the effect of the fisheries on Steller sea lions. See Sl-55 at 141 (summarizing previous consultations). These prior consultations considered the role of the fisheries in sea lion population decline, and concluded that the effect of the fisheries on the sea lions was as yet undetermined. See, e.g., AR-34 at 6, 13; AR-36 at 6. All Biological Opinions issued prior to 1998 concluded that the fishery management processes were taking into account the needs of the Steller sea lions, and that the FMPs under review did not depart significantly from prior practices, so they concluded that no jeopardy or adverse modification was occurring. See, e.g., AR-34 at 17-18; AR-36 at 8. On December 3, 1998, NMFS issued its BiOp on the effect of the 1999-2001 pollock and mackerel fisheries on the Steller sea lions. Sl-55. The BiOp set forth at great length the current scientific information about the sea lions, mackerel, and pollock. It acknowledged the continued scientific uncertainty about competition between the fisheries and sea lions. Importantly, however, it discussed new evidence that the mackerel fishery caused localized deple-tions of available prey in Steller sea lion critical habitat. The Biological Opinion also noted that the Council had taken precautionary action based on this data, by proposing a series of new regulations designed to spread out the mackerel fishery, both spatially and temporally. The BiOp concluded that the proposed changes to the fishery structure as contained in the FMP minimized the risk of localized depletion, and therefore that the mackerel fishery would not cause jeopardy or adverse modification. For the first time in the lengthy consultation process, however, NMFS concluded that the BSAI and GOA pollock fisheries were likely to result in jeopardy to the Steller sea lions and adverse modification of their critical habitat. While lacking the direct evidence of localized depletion found regarding the mackerel fishery, the BiOp nevertheless found that competition probably does occur between the pollock fisheries and sea lions “because the pollock fisheries: (1) operate in the same areas where sea lions feed; (2) operate during seasons when sea lions may be especially vulnerable to competition and reduction in availability of prey; (3) catch pollock at the same or overlapping depths at which sea lions feed; and (4) catch the same size pollock on which sea lions feed.” Def. Mem. in Supp., docket no. 185, p. 16; see also Sl-55 at 98-111. The BiOp concluded that this competition results in localized depletions of pollock. The BiOp, without clearly and specifically analyzing the proposed pollock fisheries, concluded that the pollock fisheries were likely to jeopardize the continued existence of Steller sea lions and to adversely modify their critical habitat. Federal law requires that once a jeopardy or adverse modification determination has been made, the consulting agency must propose “Reasonable and Prudent Alternatives,” which are alternative actions that can be taken consistent with the purpose of the original project but the consulting agency believes would avoid jeopardy or adverse modification. See 50 C.F.R. § 402.02. The BiOp therefore proposed three “principles” (temporal dispersion, spatial dispersion, and pollock trawl exclusion zones) for reasonable and prudent alternatives, then gave examples of measures which would fulfill these objectives. On December 13, 1998, the Council approved new measures, which became the “Final RPAs” when the Director of the consulting agency concurred in the proposal on December 16, 1998. See Sl-56. The Final RPAs included a number of measures proposed in the December 3rd BiOp, but also involved numerous changes. Both plaintiffs and intervenors now challenge the December 1998 BiOp and the Final RPAs. The plaintiffs and amici support NMFS’s jeopardy assessment regarding the pollock fisheries. They contend, however, that the draft and Final RPAs are arbitrary and capricious because they do not apply the governing legal standards and because they do not remedy the problems on which NMFS based its jeopardy assessment. Plaintiffs also challenge the no-jeopardy or adverse modification finding regarding the mackerel fishery, claiming that management measures on which the agency relies for its findings of no jeopardy or adverse modification are even less adequate than the Final RPAs proposed for the pollock industries. The in-tervenors support NMFS’s determination of no jeopardy from the mackerel fishery, and argue that the existing scientific evidence renders a jeopardy finding for the pollock fisheries arbitrary and capricious. Intervenors further argue that the NMFS has not met its burden of showing that each component of the RPAs is essential and effective for avoiding jeopardy and adverse modification. Finally, the defendants argue that NMFS’s determinations in the BiOp are well-reasoned, rationally-based, and “resulted from an intense deliberative process that considered all relevant factors.” Def.Mem. in Supp., docket no. 185, p. 1. They also contend “that the RPAs are NMFS’s best evaluation of measures that would avoid competition between the fisheries and the sea lions and mitigate the [BiOp’s] jeopardy conclusion.” Id. D. Supplemental Environmental Impact Statement This case also involves claims by plaintiffs based on the National Environmental Policy Act (NEPA). NEPA requires that an environmental impact statement (EIS) be prepared on proposals for legislation and other major federal actions significantly affecting the quality of the human environment. See 40 C.F.R. § 1502.3. The Fishery Management Plans (FMPs), such as those for the fisheries in this case, undisputedly constitute major federal actions requiring an EIS. Accordingly, NMFS published an EIS for the GOA fishery in 1978, in connection with the FMP for that year. AR-19. The Bering Sea EIS was published in 1981. AR-20. These FMPs and their accompanying EISs address numerous issues, including when, where, and how the fish are caught, TAC levels, bycatch, habitat destruction, socioeconomic issues, and other marine mammals affected. NEPA requires continuing environmental analysis for changes to ongoing federal actions, such as the dozens of amendments to the FMPs for the North Pacific fisheries. If an agency finds that a change is not substantial, however, it can prepare an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) rather than a supplemental environmental impact statement (SEIS). The key difference, for present purposes, between an EA/FONSI and an SEIS is that the latter must consider a broad range of alternatives to the proposed federal action, while an EA can simply approve the action as proposed. NMFS had prepared EAs/FONSIs for all prior amendments to the FMPs, and had never prepared an SEIS until December 1998. During the approximately twenty years since the original EISs were prepared, however, there have been dramatic changes to the North Pacific ecosystem. Steller sea lions were listed as a threatened species nine years after preparation of the original EISs, and the western population was classified as endangered sixteen years after their preparation. In fact, the original EISs considered the Stel-ler sea lion population as being at an optimal sustainable level. This period also saw significant population declines of fin-seals, harbor seals, and several species of whales, birds and fish in the North Pacific ecosystem. This area went through a major climate change during this period, which significantly affected the prevalence of various fish species, which in turn affected the focus of the fishing industry. When the original EISs were prepared, the fishing fleet was dominated by foreign vessels; it is now almost entirely composed of American vessels. This change has significantly altered the fishing industry’s economic effects on Alaskan communities. The size and capacity of the trawlers used has also increased considerably, which allows more fish to be caught in a shorter amount of time. This highlights only a small fraction of the changes which occurred in the North Pacific in the 1980s and 1990s. These extensive changes in the North Pacific led to sharp criticism within NMFS over the adequacy of the existing documents for NEPA compliance. Some NMFS employees have urged the preparation of a supplemental EIS since the early 1990s. NMFS did not take its first formal step towards doing so, however, until March 1997, when NMFS issued a notice of intent to prepare an SEIS regarding the BSAI and GOA groundfisheries. AR-7 (62 Fed.Reg. 15,151 (1997)). NMFS announced that the SEIS would “incorporate! ] the following: The amendments to the groundfish FMPS; the annual process for determining the TAC specifications; and the public process in place for implementing new regulations, revising existing ones, and incorporating new information.” AR-7 at 2. After 18 months of preparation, the agency issued a draft EIS for public review and comment in September 1998. The final SEIS (FSEIS) was issued on December 18, 1998. S2-350. It discussed in great detail the new developments regarding the North Pacific fisheries, from the changes in the way the fisheries occur to the listings of the Steller sea lion and several other species under the ESA, to the new scientific information obtained since the prior EISs had been prepared. The critical “alternatives” section of the FSEIS, however, analyzed this information only under a range of alternative TAC levels. Plaintiffs contend that this narrow scope violates NEPA; the defendants argue that this approach fulfills their NEPA obligations. III. Endangered Species Act Claims A. Standard of Review Challenges to Biological Opinions issued pursuant to ESA Section 7, 16 U.S.C. § 1536, are reviewed under the Administrative Procedures Act (“APA”) to. determine whether the Biological Opinion was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); See Bennett v. Spear, 520 U.S. 154, 174, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); Southwest Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 522 (9th Cir.1998). In determining “whether an agency decision was ‘arbitrary or capricious,’ the reviewing court ‘must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ ” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). “Normally, an agency rule would be 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 Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). An agency action is also arbitrary when it fails “to articulate a satisfactory explanation for its action.” Northern Spotted Owl v. Hodel, 716 F.Supp. 479, 482 (W.D.Wash.1988). “In applying [the arbitrary and capricious] standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); Inland Empire Pub. Lands Council v. Glickman, 88 F.3d 697, 703 (9th Cir.1996). “Deference to an agency’s technical expertise and experience is particularly warranted with respect to questions involving engineering and scientific matters.” United States v. Alpine Land and Reservoir Co., 887 F.2d 207, 213 (9th Cir.1989). When scientific evidence is equivocal, a court is to defer to an agency’s reasonable interpretation of that evidence. Central Ariz. Water Conservation Dist. v. United States EPA, 990 F.2d 1531, 1540 (9th Cir.1993). “When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Marsh, 490 U.S. at 378, 109 S.Ct. 1851. “The deference a court must accord an agency’s scientific ... expertise is not unlimited, however. Thus the presumption of agency expertise may be rebutted if its decisions, even though based on scientific expertise, are not reasoned.” Defenders of Wildlife v. Babbitt, 958 F.Supp. 670, 679 (D.D.C.1997). See also Northern Spotted Owl, 716 F.Supp. at 482 (“Judicial deference to agency expertise is proper, but the Court will not do so blindly.”). B. ESA Obligations The ESA imposes on all federal agencies a duty to insure that their actions will not “jeopardize” endangered species or “adversely modify” their critical habitat. The statute does not define “jeopardize,” but the implementing regulations provide: Jeopardize the continued existence of means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species. 50 C.F.R. § 402.02. The regulations also define “adverse modification:” Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical. 50 C.F.R. § 402.02. The Biological Opinion correctly cites these definitions, and the parties agree that they provide the relevant legal standards by which to evaluate the BiOp. To effectuate the ESA’s duty to avoid jeopardy and adverse modification, the Act provides for consultation by an expert agency, to evaluate the consequences of a proposed action on a listed species. 16 U.S.C. § 1536(a)(2). The expert agency then prepares a Biological Opinion, which sets forth the expert agency’s: opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat. If jeopardy or adverse modification is found, the [expert agency] shall suggest those reasonable and prudent alternatives which [it] believes would not violate subsection (a)(2) of this section and can be taken by the Federal agency ... in implementing the agency action. 16 U.S.C. § 1536(b)(3)(A). In this case NMFS’s Office of Protected Resources prepared a Biological Opinion on the 1999-2001 BSAI and GOA fishery management plans. This December 1998 BiOp constitutes the final agency action for purposes of judicial review pursuant to the APA. Bennett, 520 U.S. at 178, 117 S.Ct. 1154. C. Pollock Fisheries Jeopardy Assessment To logically evaluate the ESA issues presented, the Court must begin by considering the pollock fishery jeopardy determination. Plaintiffs and defendants argue that the Court should uphold this determination. The intervenors, however, contend that NMFS failed to make the pollock jeopardy determination “based on the best scientific and commercial data available,” as required by 16 U.S.C. § 1536(a)(2). Specifically, the intervenors contend that: (1) NMFS failed to consider relevant information contrary to its conclusion, (2) the existing scientific data does not support NMFS’s conclusion, and (3) the method used in the Biological Opinion is merely speculation based on an absence of data. Each contention is discussed in order. 1. Evidence Regarding Lack of Appropriate Prey and Climate Change Industry contends that the Steller sea lion decline is caused by environmental changes and the resulting lack of appropriate prey. See Int. Mem. in Supp., docket no. 188, p. 3-5. They further contend that there is “growing agreement in the scientific community that this general collapse is not associated with fishing activities but is due to a reduced ‘carrying capacity’ of the North Pacific ecosystem as a whole.” Id. at 4. They argue that NMFS’s treatment of these issues in the Biological Opinion violated the ESA both by failing to use the best scientific data available and by reaching arbitrary and capricious conclusions based on the available data. These challenges must, fail under the prevailing legal standards. The Biological Opinion stated that environmental changes may have contributed to the decline, which may have multiple causes. Sl-55 at 72-73. The BiOp concluded, however, that: “[t]he existence of a strong environmental influence on sea lion trends does not rule out the possibility of significant fisheries-related effect.” Id. at 73. Similarly, the BiOp noted that: The amount of [diet] diversity has varied considerably and may be an important factor ... but clearly sea lions are not limited to the extreme of only one prey type.... In spite of any debate about the nutritional value of pollock, the fact remains that pollock is a major prey of sea lions. Simply put, sea lions eat, and therefore depend, on pollock. In the present context, the question to be addressed is whether fishery removal of pollock from critical habitat is to the sea lions’ advantage, disadvantage, or of no particular consequence. Id. at 73-74. Although the intervenors point to scientific testimony disagreeing with NMFS’s conclusion, “an agency must have discretion to rely on the reasonable opinions of its own qualified experts.” Marsh, 490 U.S. at 378, 109 S.Ct. 1851. NMFS considered and rejected the theory favored by the intervenors. This rejection was not arbitrary and capricious. 2. Evidence Supporting Competition Theory Similarly, the Court rejects inter-venors’ contention that NMFS’s conclusion was not based on sufficient scientific evidence. NMFS based its jeopardy determination on the theory that sea lions and the fisheries “compete” with each other for available prey. See Sl-55 at 75-82, 98-111. In support of this theory, NMFS relied on scientific evidence establishing a significant overlap between the size of pollock taken by the fisheries and that consumed by the Steller sea lions. Id. at 76-78. Specifically, NMFS found that sea lions consume a wide range of pollock, including the larger pollock targeted by the fishery. Further, NMFS concluded that biomass consumed at each length, rather than number consumed of a given size, was the relevant measure for dietary significance. Id. NMFS also found that the fisheries catch pollock at the same or overlapping depths at which sea lions feed, relying on studies of sea lion foraging patterns and of fishing industry practice. Id. at 78-79. The agency found that the fisheries operated extensively in sea lion critical habitat. Id. at e.g. 27-28. Additionally, much of the fishing activity in sea lion critical habitat occurs in the winter months; NMFS relied on scientific evidence that sea lions are particularly vulnerable to competition during this period. See id. at 79-80. Finally, a key new study showed that the mackerel fishery was causing localized depletions of prey, for similar reasons. Id. at 17-20. Thus, the Biological Opinion relied on significant evidence that the pollock fisheries were competing with the Steller sea lions for prey, at times which were particularly likely to harm the endangered species. 3. Methodology NMFS acknowledged that this scientific evidence is not “conclusive.” Id. at 99. The ESA, however, only requires that decisions be made on the basis of “the best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2). This standard requires “far less” than conclusive proof. See Defenders of Wildlife, 958 F.Supp. at 680. In fact, Congress intended that agencies give “the benefit of the doubt to the species.” Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir.1988) (citing H.R.Conf.Rep. No. 96-697, at 12, reprinted in 1979 U.S.C.C.A.N. 2572, 2576). One of the express purposes of the ESA is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” 16 U.S.C. § 1531(b). NMFS did so by evaluating the best evidence currently available and concluding that jeopardy and adverse modification were likely to occur. Besides the specific evidence discussed above, the Biological Opinion supported its jeopardy assessment by a two-step approach. First, it considered a number of potential non-fishery causes for the Steller sea lions’ decline: predation, disease, toxic substances, oil and gas or mineral development, disturbance by non-fishing activities, research, commercial and/or subsistence harvest of sea lions, natural environmental changes, and prey quality. Sl-55 at 66-74. Based on consideration of the scientific evidence related to these factors, the BiOp concluded that these factors were not likely to be major causes of the decline, and/or that they were not likely to still pose significant impediments to recovery. Id. Having thus eliminated non-fishery related causes for the decline, and acknowledging that no data conclusively established a positive or negative impact from the fisheries on Steller sea lions, NMFS then turned to three “assumptions:” (1) “the abundance of any species in a particular space at a particular time is finite;” therefore removing hundreds of thousands of tons of fish per day must, “at least on a very local scale and for short periods of time, reduce the biomass of the [remaining] targeted fish;” (2) the likelihood of localized depletions rises when fish are patchily distributed, as pollock are; and (3) “[i]f the reductions in schools of pollock or mackerel occur within the foraging areas of the endangered western population of Steller sea lions, the reduced availability of prey is likely to reduce the foraging effectiveness of sea lions.” Id. at 100. The BiOp then detailed the evidence supporting these assumptions, and concluded that based on the available data and the reasonable assumptions, jeopardy and adverse modification were likely to occur. Such an approach can hardly be considered arbitrary and capricious. NMFS examined a number of other potential causes for the Steller sea lions’ decline. They evaluated a great deal of evidence indicating that the fishery was competing with the sea Hons for prey during critical times of the year, especially in light of the three reasonable assumptions discussed above. NMFS found that although the fishery may not be the sole cause of the decline, nor the sole factor preventing recovery, the fishery was nevertheless likely to jeopardize the continued existence of the Stel-ler sea lion population. In so finding, NMFS provided a reasonable interpretation of equivocal evidence, to which this court must defer. See Central Ariz., 990 F.2d at 1540. Accordingly, plaintiffs and NMFS are entitled to summary judgment upholding the determination that the pollock fisheries in the GOA and BSAI were likely to result in jeopardy and adverse modification. D. Mackerel Fishery Finding of No Jeopardy The plaintiffs argue that the same evidence on which NMFS relied to find jeopardy for the pollock fisheries compels a similar finding for the mackerel fisheries. In fact, plaintiffs contend, the evidence is even stronger in the latter context: the only study to find occurrences of localized depletion concerned the mackerel fishery. See S1-55 at 17-19. The plaintiffs thus argue that the BiOp’s conclusion that the mackerel fishery is not likely to cause jeopardy or adverse modification is arbitrary and capricious. Instead of analyzing the relevant differences, or even providing any comparative discussion of the two fisheries at all, the BiOp simply set forth a great deal of data, then stated its conclusions, without making its reasoning explicit. After reviewing the Opinion closely, however, the Court concludes that the Biological Opinion provided a rational basis for the different treatment of the effect of the pollock and mackerel fisheries on the Steller sea lions. First, the pollock fishery accounted for a much larger percentage of the overall groundfish catch in the BSAI than did the mackerel fishery. Compare Sl-55 Figs. 11 and 7. Secondly, the two fisheries have historically been conducted very differently. The mackerel fishery has involved a single season, with 100% of the total mackerel TAC taken between January and late March or early April. Id. at 103. The BSAI pollock fishery, in contrast, has been split between two seasons, with more than half of the catch occurring in September and October. Id. at 115. The spatial allocation involved is different as well. The mackerel fishery is broken up into three distinct management areas; fishing begins in the easternmost subarea, then moves westward through the other two. Id. at 8. The pollock fishery does not operate under similar spatial-management measures. Most importantly, however, in early 1998, the North Pacific Fishery Management Council considered the evidence of localized mackerel depletion and proposed significant changes to the mackerel fishery, while no such changes were made regarding the pollock fishery. Beginning in 1999, the mackerel fishery will be split into two seasons, with the TAC split evenly between them. Id. at 104. This measure will therefore cut in half the total number of mackerel taken during the critical winter months. Additionally, the percentage of mackerel caught in sea lion critical habitat will be reduced from the recent levels of 70-98% to 40% by 2002. These changes spatially and temporally distribute the mackerel fishery, and represent significant changes from the status quo that was found to result in localized depletions. These measures are also similar to the changes that NMFS proposed for the pollock fishery as RPAs. The Biological Opinion could be written much more clearly. Nevertheless, when viewed under the deferential “arbitrary and capricious” standard, the BiOp contains enough information to justify the no-jeopardy conclusion reached for the mackerel fishery. This conclusion finds further support in the administrative record, particularly in the Environmental Assessment prepared for NEPA compliance, on the environmental effects of the proposed changes to the mackerel fishery on the Steller sea lions. See AR-28. Defendants and intervenors are therefore entitled to summary judgment upholding the determination that the mackerel fishery is not likely to cause jeopardy or adverse modification. E. Pollock Fisheries Reasonable and Prudent Alternatives Broadly speaking, “reasonable and prudent alternatives” (RPAs) are the solutions to the problems inherent in a proposed federal action which lead the consulting agency to find that the action will result in jeopardy. Specifically, the ESA provides, “If jeopardy or adverse modification is found, the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate subsection (a)(2) of this section and can be taken by the Federal agency or applicant in implementing the agency action.” 16 U.S.C. § 1536(b)(3)(A). Further definition of the term “reasonable and prudent alternatives” is found in the regulations: Reasonable and prudent alternatives refer to alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action, that can be implemented consistent with the scope of the Federal agency’s legal authority and jurisdiction, that is economically and technologically feasible, and that the Director believes would avoid the likelihood of jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat. 50 C.F.R. § 402.02. This definition contains four distinct requirements for any valid RPA: it must (1) be consistent with the purpose of the underlying action; (2) be consistent with the action agency’s authority; (3) be economically and technically feasible; and (4) “avoid the likelihood” of jeopardy or adverse modification. Plaintiffs contend that the draft and final RPAs violate the fourth prong of this definition; the intervenors argue that the RPAs violate the third prong. Defendants argue in support of the RPAs. 1. Defining “RPAs” Being Reviewed In evaluating these challenges, the Court must define what constitutes the RPAs under review. In this case, that is a somewhat complicated question for a number of reasons. The Biological Opinion contains proposes solutions at various levels of generality. The BiOp sets forth three principles that any reasonable and prudent alternative must accomplish: (1) temporal dispersion of the fishery; (2) spatial dispersion of the fishery; and (3) protection of rookeries and haulouts by implementation of additional no-trawl zones. Sl-55 at 114-120. Within the discussion of each general principle, the BiOp then provides more specific goals which “must” be accomplished, for example “[distribute the pollock trawl harvest into at least four seasons (two in the period of January through May and two in the period from June through October).” Id. at 117. The case also involves “draft” and “final” RPAs; the former are found in the December 1998 BiOp, while the latter are the emergency measures that the North Pacific Fishery Management Council adopted ten days later in response to the BiOp. See Sl-56 (memorandum from Director of action agency to Director of consulting agency outlining changes; signed concurrence by consulting agency). The parties discussed these issues at oral argument. The Court agrees with the parties’ consensus that the Court should evaluate the management measures as a whole for compliance with the four-prong standard for evaluating RPAs. This represents the middle ground between defining the RPAs as either the three general principles mentioned above or looking at each individual management measure in isolation. There is no serious dispute over the appropriateness of the three general principles; the dispute centers instead over their implementation. On the other hand, looking at the effectiveness of each specific measure or its scientific and economic feasibility would provide a distorted view of the situation. It is therefore appropriate to analyze the overall management scheme proposed. The Court also finds that it can consider both the draft and final RPAs in evaluating NMFS’s compliance with the ESA. The only substantive analysis of the RPAs found in the record is in the Biological Opinion. The action agency, NMFS’s Office of Sustainable Fisheries, prepared a memorandum summarizing the Council’s changes. The Director of the consulting agency, NMFS’s Office of Protected Resources, then signed the memorandum, thereby indicating her approval of the Council’s changes. In other words, the voluminous record does not contain a single sentence reflecting the reasons why NMFS found the final RPAs to be adequate. Under these circumstances, the Court looks to the record as a whole, and to the BiOp’s section on draft RPAs in particular, to determine whether NMFS acted arbitrary and capriciously. 2. Avoiding Jeopardy and Adverse Modification Plaintiffs challenge both the proposed and final RPAs for their failure to analyze jeopardy and advérse modification separately. The ESA requires that each federal agency “shall ... insure that any action ... is not likely to jeopardize the continued existence of any endangered species ... or result in the destruction or adverse modification of habitat of such species.” 16 U.S.C. § 1536(a)(1) (emphasis added). Jeopardy relates to the overall continued existence of a species, and examines the effects of an action on the species. Adverse modification, in contrast, concerns the effects of an action on the species’ critical habitat. Although there is considerable overlap between the two, the Act establishes two separate standards to be considered. See Conservation Council for Haw. v. Babbitt, 2 F.Supp.2d 1280, 1287 (D.Haw.1998). NMFS should therefore have analyzed the two separately or provided an explanation for why, in this case, the two could be treated together. Id. Although NMFS should thus have applied both standards in analyzing the RPAs, NMFS actually failed to apply either standard. For example, the BiOp states that one specific goal of spatial dispersion is to reduce the level of catch taken from critical habitat. The ESA requires consideration of what catch levels would “reduce appreciably the likelihood of survival and recovery” of the Steller sea lions, or would avoid “appreciably diminishing] the value of critical habitat.” 50 C.F.R. § 402.02. The BiOp, however, only looks at what would be “consistent with past fishery practices and still provide! ] a considerable reduction from the current” levels. Sl-55 at 118. The Court recognizes the difficult line-drawing issues presented in deciding, for instance,- exactly what level of catch inside critical habitat would result in jeopardy or adverse modification. Nevertheless, NMFS must comply with the mandates of the Endangered Species Act, including asking the required questions. The Council’s modifications to the RPAs aggravated this problem. For example, the BiOp stated that temporal dispersion of the winter/spring roe fishery was necessary, and suggested splitting 45% of the winter TAC into two seasons, beginning January 20th and March 1st, respectively. Id. at 117, 121. The Council, however, moved the Bering Sea A2 season’s starting date to February 20th, and eliminated the A2 season entirely for the Gulf of Alaska. Sl-56 at 3, 5. Additionally, the BiOp proposed allocating 20% of the yearly Bering Sea TAC to the Al season, and 25% to the A2 season. Sl-55 at 121. The Council changed the allocation to 27.5% and 12.5%, respectively. Sl-56 at 3. Because the BiOp only related its proposed allocations to current practices rather than the standards for adverse modification and jeopardy, it is impossible for the Court to evaluate the changes made by the Council and to review NMFS’s approval of these changes. Similarly, NMFS’s failure to analyze either the draft or final RPAs under the appropriate legal standards makes it impossible for this Court to find that the agency has “articulated a rational connection between the facts found and the choice made.” Pyramid Lake, 898 F.2d at 1414 (emphasis added). 3. Fit Between Individual Measures and Principles Guiding RPAs Furthermore, the plaintiffs correctly argue that several of the individual management measures do not seem to accomplish the RPAs’ principles of temporal dispersion, spatial dispersion, and protection of rookeries and haulouts. For example, the BSAI pollock fishery over the last several years has been divided into two seasons: a winter “A” season running from January to March, and a fall “B” season of September and October. S1-55 at 115, 116. In 1998, 45% of the TAC was allocated to the A season, and 55% was allocated to the B season. Id. In finding that the proposed 1999-2001 BSAI pollock fisheries would result in jeopardy, NMFS cited this temporal compression as “of particular concern.” Id. at 108. The final RPAs, however, do not seem to disperse the fishery temporally. The new Al season begins January 20th, the same day that the A season used to begin. The A2 season is scheduled to begin February 20th, with a five-day “stand-down” period in-between. Sl-56 at 3, 5. This stand-down period ensures that the Al season can only last 26 days. The combined annual harvest for the Al & A2 seasons is set at 40% of the total yearly TAC, with 27.5% allocated to the Al season. Id. If the fishery took the entire 27.5% TAC in Al, as permitted, and trawling occurred at the same rate during Al and A2, it would only take an additional 11 days to catch the A2 TAC. This in turn would mean that the Al & A2 seasons would end, with 40% of the yearly TAC taken, by March 2nd. Thus, it seems entirely possible that the final RPA would not lengthen the winter fishery at all; the only dispersive effect would be that 40% rather than 45% of the total TAC would be taken. Further, these figures concern percentages of TAC levels rather than tons of pollock caught. If the Bering Sea TAC was increased from, for example 100,000 metric tons to 150,000 metric tons, fishing under the RPAs would actually result in the removal of more pollock during this period. It is possible that this analysis does not consider some other aspect of the problem, which would explain NMFS’s approval of this measure as “consistent with the spirit and intent” of the Biological Opinion. This, however, illustrates the problem discussed in the previous subsection of this Order: NMFS has completely failed to analyze how these individual measures avoid jeopardy or adverse modification. NMFS also has not explained how the various management measures work together. At oral argument, counsel responded to this Court’s question about analysis by saying “NMFS is relying on the statistics. We’re relying on the numbers....” Tr. at p. 53, 11. 16-17. The record, however, does not demonstrate this reliance. “Where an agency fails to articulate a rational connection between the facts found and the choice made, the Court [or counsel] may not supply a reasoned basis for the agency’s action that the agency itself has not given.” Defenders of Wildlife, 958 F.Supp. at 679 (internal citation and punctuation omitted). Even under the “arbitrary and capricious” standard of review, the government must establish that its RPAs fulfill their purpose of “avoid[ing] the likelihood of jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat.” 50 C.F.R. § 402.02. The RPAs in this case may do so, but NMFS has not provided any analysis justifying that conclusion. NMFS’s ESA Section 7 Consultation Handbook makes it clear that NMFS must provide such analysis: “When a reasonable and prudent alternative consists of multiple activities, it is imperative that the [biological] opinion contain a thorough explanation of how each component of the alternative is essential to avoid jeopardy and/or adverse modification.” AR-18 at 4-41. NMFS must explain how the management measures proposed fit together to accomplish the goal of avoiding jeopardy and adverse modification. Without some rational explanation, the Court cannot conduct a meaningful review. The Court therefore finds the RPAs to be arbitrary and capricious under Pyramid Lake, 898 F.2d at 1417, and Defenders of Wildlife, 958 F.Supp. at 679. Accordingly, the Court grants plaintiffs summary judgment on their claims regarding the RPAs. 4. Scientific and Technical Feasibility The intervenors contend that the RPAs should also be found to be arbitrary and capricious because NMFS failed to establish that they meet the third part of the definition of an RPA, i.e. that they are “economically and technologically feasible.” 50 C.F.R. § 402.02. It remains an open question whether this requirement should be interpreted as referring only to whether the RPA is feasible for the agency, or whether it relates to the effects on third parties. The intervenors, however, contend that NMFS must balance the benefit to the species against the economic and technical burden on the industry before approving an RPA. Such a result would be fundamentally inconsistent with the purposes of the ESA and with case law interpreting the Act. See, e.g., Tennessee Valley Auth. v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (enjoining the opening of a nearly completed dam because opening the dam would wipe out all of endangered species’ critical habitat). The “guiding standard” for determination of RPAs is jeopardy, Idaho Dept. of Fish & Game v. NMFS, 850 F.Supp. 886, 896 (D.Or.1994), vacated as moot, 56 F.3d 1071 (9th Cir.1995), not economic impact on third parties such as the fishing industry. This is not to say, however, that NMFS cannot consider industry concerns when shaping RPAs. NMFS must come up with reasonable and prudent alternatives that are consistent with the purposes of the underlying action and the action agency’s authority, that are economically and technologically feasible, and which avoid the likelihood of jeopardy and adverse modification. 50 C.F.R. § 402.02. When faced with a range of possible measures that are consistent with this definition, NMFS can pick amongst them based on other factors, including effects on the fishing industry. Southwest Center, 143 F.3d at 523; see also Bennett, 520 U.S. at 176, 117 S.Ct. 1154 (finding that an important purpose of the “best scientific data” requirement is to avoid needless economic dislocation, and noting that the ESA allows a project to go forward if no RPAs exist and the benefits of the action outweigh harm to the species). These two determinations are separate steps, however, and contrary to intervenors’ arguments, they should not be combined. In the present case, NMFS approved changes in management measures based solely on an attempt to minimize the impact on the fishing industry, without explicitly considering what effect the changes would have on the Steller sea lions. Similarly, although NMFS must explain how the RPAs would avoid jeopardy and adverse modification, they do not have to discuss or recommend every management measure that would achieve these results. The Court therefore rejects inter-venors’ contention that the RPAs are arbitrary and capricious because they are not economically and technically feasible for the fishing industry. Nevertheless, the intervenors point to examples where NMFS’s failure to analyze the RPAs according to the applicable legal standards worked to the in-tervenors’ detriment. For example, the Biological Opinion stated that spatial distribution of the TAC should be based on existing study or management areas. S1-55 at 119. The BiOp then recommended combining the Catcher Vessel Operation Area (CVOA) with the Southeast Bering Sea foraging area, which is critical habitat, to form one management complex. Id. Both the foraging area and the CVOA are very large areas; although they overlap substantially, large areas in the CVOA are not Steller sea lion critical habitat. See S1-55 at Fig. 9. Unlike most critical habitat, the foraging area at issue here is not simply around rookeries and haulouts—it extends far out to sea. Id. The record does not'disclose any explanation for treating the two together as a CVOA-CH complex. There is no analysis of how this measure, alone or in combination, is likely to avoid jeopardy or adverse modification, or how it is economically or technically feasible. Although NMFS is not required to pick the best option for the industry any more than for the species, it must provide some analysis of the options it selects. The Court therefore finds that intervenors are also entitled to summary judgment that NMFS arbitrarily and capriciously failed to analyze the RPAs under the appropriate legal standards. F. Conclusion In preparing the December 1998 BiOp, NMFS faced an extremely difficult task. The scientific evidence of the fisheries’ effect on the Steller sea lion population remained somewhat uncertain. They faced ongoing litigation from both environmental groups and the fishing industry. NMFS also struggled to reconcile Magnuson Act requirements with ESA mandates. The North Pacific ecosystem poses complex scientific and management issues, to which there are no easy answers. NMFS considered the available evidence and the ESA’s legal standards, and concluded that the pollock fisheries were likely to result in jeopardy and adverse modification, while the mackerel fishery was not. The Court finds that NMFS is entitled to summary judgment upholding these determinations. When assessing the ways to remedy the identified problems, however, NMFS failed to apply the appropriate legal standards or to explain its proposed measures. Instead, NMFS recommended a complicated set of interrelated fishery management measures, which then were modified by the action agency and re-approved by NMFS. The plaintiffs and the intervenors are entitled to summary judgment that NMFS violated the Endangered Species Act by failing to articulate a rational connection between the facts found and the choices made regarding the RPAs. IV. NEPA CLAIMS A. Standard of Review Compliance with the National Environmental Policy Act of 1969 (NEPA) is reviewed under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Northwest Resource Info. Ctr., Inc. v. NMFS, 56 F.3d 1060, 1066 (9th Cir.1995). Factual disputes, which implicate substantial agency expertise, are reviewed under the arbitrary and capricious standard, while legal disputes are reviewed under the reasonableness standard. Price Road Neighborhood Ass’n v. United States DOT, 113 F.3d 1505, 1508 (9th Cir.1997). “In evaluating whether an agency’s [environmental impact statement] complies with NEPA’s requirements, we must determine whether it contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Muckleshoot Indian Tribe v. United States Forest Serv., 177 F.3d 800, 809 (9th Cir.1999) (internal quotation omitted). “In short, we must ensure that the agency has taken a ‘hard look’ at the environmental consequences of its proposed action.” Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir.1998). B. NEPA Obligations NEPA “is our basic national charter for protection of the environment.” 40 C.F.R. § 1500.1(a). “The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.” 40 C.F.R. § 1500.1(c). NEPA therefore requires that when “proposals for legislation and other major Federal actions significantly [affect] the quality of the human environment,” the responsible federal agency must prepare a detailed statement which includes the environmental impact of the proposed action, any unavoidable negative environmental effects of the proposal, and alternatives to the proposed action. See 42 U.S.C. § 4332(C). This detailed written document is an Environmental Impact Statement (EIS). 40 C.F.R. § 1508.11. An EIS serves “as an action-forcing device to insure that [NEPA’s] policies and goals” are taken into account during agency decision-making. 40 C.F.R. § 1502.1. The alternatives section, which should “present the environmental impacts of the proposal and the alternatives in comparative form [in order to] sharply defin[e] the issue,” is therefore “the heart of the” EIS. 40 C.F.R. § 1502.14. NEPA also requires an agency to continue evaluating a project’s environmental effects, even after preparation of an initial EIS. The EIS can form the basis for subsequent NEPA documentation, allowing the agency to incorporate by reference prior discussions of general issues and to focus on the specific issues relevant to the subsequent action. See 40 C.F.R. § 1502.20. If the agency determines that a subsequent action will not have a significant effect on the environment, it can prepare an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI), and can “tier” these documents off the existing EIS. An EA/FONSI is not sufficient, however, in certain circumstances: (C) Agencies: (1) Shall prepare supplements to either draft or final environmental impact statements if: (i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. 40 C.F.R. § 1502.9(c). NMFS prepared environmental impact statements for the GOA and BSAI groundfisheries in 1979 and 1981, respectively, The supplemental EIS was released in December 1998. It updated the scientific information known about the North Pacific ecosystem, and analyzed this information by considering a range of alternative TAC levels under which the fisheries could be conducted. Plaintiffs argue that such a focus violates NEPA by being too narrow. Specifically, plaintiffs contend that NEPA required preparation of an SEIS “of broad scope, with alternatives and analyses that considered and addressed the fisheries’ multiple environmental issues and impacts.” Pl.Mem. in Supp., docket no. 182, p. 39. Defendants counter that they properly defined the scope of the SEIS and that they considered an adequate range of alternatives. C. History of NEPA Compliance/Decision to Prepare SEIS In support of their argument that NEPA required preparation of a broad SEIS, plaintiffs rely on the history of NEPA compliance in this case. They point out that the Final Supplemental EIS, which NMFS issued in December 1998, was t