Conservation Council for Hawaii v. National Marine Fisheries Service (154 F. Supp. 3d 1006, 2015)

United States District Court for the District of Hawaii 2015-12-23

Conservation The Public Health and Welfare Government Organization and Employees

Citations

Full opinion text

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND FOR VACATUR

Leslie E. Kobayashi, United States District Judge

Before the Court is Plaintiffs Conservation Council for Hawaii, Center for Biological Diversity, and Turtle Island Restoration Network’s (collectively “Plaintiffs”) Motion for Summary Judgment and for Vacatur (“Motion”), filed on July 20, 2015. [Dkt. 'no. 47.] On August 20, 2015, Inter-venor-Defendant Hawaii Longline Association (“HLA”) filed its memorandum in opposition (“HLA Opposition”), and Defendants National Marine Fisheries Service (“NMFS”), United States Department of Commerce, and Penny Pritzker, Secretary of Commerce (collectively “Federal Defendants”) filed their memorandum in opposition (“Federal Defendants Opposition”). [Dkt. nos. 50, 52.] Plaintiffs filed their reply on September 3, 2015. [Dkt. no. 57.]

This matter came on for hearing on September 25, 2015, and, later that day, this Court issued an entering order directing the parties to file additional memoran-da. [Dkt. no. 64.] HLA and the Federal Defendants filed them respective memo-randa on October 9, 2015. [Dkt. nos. 66, 68.] Plaintiffs also filed their memorandum on October 9, 2015. [Dkt. no. 69.] After careful consideration of the Motion, supporting and opposing memoranda, the arguments of counsel, and the relevant legal authority, Plaintiffs’ Motion is HEREBY GRANTED IN PART AND DENIED IN PART.' For the reasons set forth below, this Court GRANTS Plaintiffs’ Motion insofar as this Court FIÑDS that Plaintiffs have standing to pursue this action and CONCLUDES that their claims are justi-ciable, but this Court DENIES Plaintiffs’ Motion in all other respects.

BACKGROUND

Plaintiffs filed this action on November 20,2014. Plaintiffs filed their First Amended Complaint for Declaratory and Injunc-tive Relief (“Amended Complaint”) on January 15, 2015. [Dkt. no. 18.] They bring this case pursuant to, inter alia, the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701-06, and the Magnuson-Ste-vens Fishery Conservation and Management Act (“Magnuson-Stevens Act”), 16 U.S.C. § 1855(f). [Id. at ¶6.] This case concerns the limits on fishing and catching of bigeye tuna in the Western and Central Pacific Ocean (“WCPO”). The parties agree that it “is an important food fish and is particularly prized for sushi. In Hawai’i, it is one of two species known as ‘ahv, the other is yellowfin tuna.” [Id. at ¶ 39; Federal Defs.’ Answer to Amended Complaint (“Federal Defs.’ Answer”), filed 2/2/15 (dkt. no. 21), at ¶ 39.] The Federal Defendants acknowledge that, “in 2004, NMFS determined that overfishing is occurring Pacific-Wide on bigeye tuna, but that the stock is not overfished.” [Federal Defs.’ Answer at ¶ 40.]

In the instant case,

Plaintiffs seek to set aside (1) NMFS’s final rule implementing a management framework for specifying catch and effort limits and accountability measures for pelagic fisheries in the U.S. Pacific territories of American Samoa, Guam, and the Commonwealth of the Northern Marina Islands; (2) NMFS’s associated final specifications purporting to establish a separate catch limit of 2,000 metric tons of long-line caught bigeye tuna for each of the three territories; and (3) NMFS’s authorization for each territory to allocate up to 1,000 metric tons of that limit to eligible U.S. longline fishing vessels. See 79 Fed. Reg. 64,097 (Oct. 28, 2014).

[Amended Complaint at ¶ 1.] The contested rule is NMFS, National Oceanic and Atmospheric Administration (“NOAA”), and Department of Commerce’s Final rule and final specifications regarding Western Pacific Pelagic Fisheries; U.S. Territorial Catch and Fishing Efforts Limits. This Court will refer to it as the “Quota Shifting Rule.”

The legal landscape of the instant dispute begins with the international Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (“Convention”).

I. The Convention

The United States Senate consented to the ratification of the Convention in 2004. S. Exec. Rep. No. 109-08, at 2, 6. The Senate’s report acknowledged that legislation was necessary to implement the Convention. Id. at 5. The ratification occurred in 2007, [Amended Complaint at ¶ 29; Federal Defs.’ Answer at ¶ 29,] when the United States deposited the instrument of ratification and became a party to the Convention thirty days later. Pub. L. No. 109-479, 120 Stat. 3575 (Jan. 12, 2007).

The objective of the Convention is “to ensure, through effective management, the long-term conservation and sustainable’ use of highly migratory fish stocks in the western and central Pacific Ocean in accordance with” the “United Nations Convention on the Law of the Sea of 10 December 1982” (“1982 Convention”) and the “Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks” (“Agreement”). [Henkin Deck, Exh. 4 (Convention) at art. 2 & art. 1, §§ a-b.]

The Convention established the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (“Commission” or “WCPFC”)/' [Id. at art. 1, § e & art. 9 (Establishment of the Commission).] As a “Contracting Party” to the Convention, the United States is a member of the. Commission. [Id. at art. 34, §§ 1, 4.] American Samoa, Guam, and the Northern Mariana Island (“CNMI”) are among the territories that are allowed to participate in the Commission (“Participating Territories” or “PTs”). [Id. at art. 43.] The Convention’s area of application, ie. “the area of competence of the Commission” (“Convention Area”), is defined in Article 3, section 1.

The Convention requires members of the Commission to, inter alia: “adopt measures to ensure long-term sustainability of highly migratory fish stocks in the Convention Area and promote the objective of their optimum utilization”; [id. at art. 5, § a;] and “promptly implement the provisions of this Convention and any conservation, management and other measures or matters which my be agreed pursuant to this Convention from time-to time and shall operate in furthering the objective of this Convention” [id. at art. 23, § 1],

The Commission’s functions include, inter alia:

(a) determine the total allowable catch or total level of fishing effort within the Convention Area for such highly migratory fish stocks as the Commission may decide and adopt such other conservation and management measures [ (“CMMs”) ] and recommendations as may be necessary to ensure the long-term sustainability of such stocks; [and]

(c) adopt, where necessary, conservation and management measures and' recommendations for non-target species and species dependent on or associated with the target stocks, with a view to maintaining or restoring populations of such species above levels at which their reproduction may become seriously threatened[J

[Id. at art. 10, § 1.] The Department of Commerce has stated that, “[a]s a Contracting Party to the Convention and a Member of the [Commission], the United States is obligated to implement the decisions of the [Commission].” 77 Fed. Reg. 51709, 51710 (Aug. 27, 2012).

II. Relevant CMMs

A. CMM 2005-01

The Commission’s ' CMM '2005-01 addressed bigeye and -yellowfin tuna. [Pltfs.’ Concise Statement of Undisputed Material Facts (“Pltfs.’ CSOF”), filed 7/20/15 (dkt. no.' 48), Declaration of David .L. Henkin (“Henkin Declaration”), Exh. 8 (CMM 2005-01).] It provides that: “Through the adoption of necessary measures, the total level of fishing effort for bigeye and yel-lowfin tuna in the Convention Area shall not be increased beyond current levels.” [Id. at ¶ 1 (footnote omitted).] The United States’s bigeye tuna catch limit for the three years after the adoption of CMM 2005-01 was set at its 2004 catch level, [id. at ¶ 17 & n.2,] which was 4,181 metric tons (“mt”). [HLA’s Concise Statement in Opposition to Pltfs.’ Concise Statement of Material Facts (“HLA CSOF”), filed 8/20/15 (dkt. no. 51), Decl. of Ryan P. Steen (“Steen Decl.”), Exh. 8 (CMM 2008-01) at 41 (Attachment F (table of “Baseline Longline Bigeye Tuna Catches, by Flag”)).]

2. CMM 2008-01

The Commission’s CMM 2008-01 recognized that prior CMMs that “were developed to mitigate the overfishing of bigeye and yellowfin tuna and to limit the growth of fishing capacity in the” WCPO “have been unsuccessful in either restricting the apparent growth of fishing capacity or in reducing the fishing mortality of bigeye or juvenile yellowfin tuna.” [Id. at 1.] The objectives of CMM 2008-01 include:

-Ensure through the implementation of compatible measures for the high seas' and [exclusive economic zones (“EEZs”) ] that bigeye and yellowfin tuna stocks are maintained at levels capable of producing their maximum sustainable yield; ... [and]

-Achieve, through the implementation of a package of measures, over a three-year period commencing in 2009, a minimum of 30% reduction in bigeye tuna fishing mortality from the annual average during the period 2001-2004 or 2004[.}

[Id¿'at ¶ 1.] Thus, “[t]he total catch of bigeye tuna by longline fishing gear [was to] be subject to a phased reduction such that by 1 January 2012 the longline catch of bigeye tuna [would be] 70% of the average annual catch” in 2Ó04 for the United States, China, and Indonesia. [Id. at 7, ¶ 31 '& n.3.] However, because the United States’s catch in the WCPO was less than 5,000 mt in 2004, it was only required to implement a ten percent reduction in 2009, 2010, and 2011. [Id. at 8, ¶¶33, '35 & 41 (Attachment F).] Its limit for each of those years was 3,763 mt, and the limit stayed the same in 2012. See 77 Fed. Reg. 51709, 51711 (Aug. 27, 2012). The limit did not apply to American Samoa, Guam, and the CNMI (collectively, “U.S. ,PTs”) because they were among* the “participating territories that caught less than 2,000 tonnes in 2004.”. [Steen Decl., Exh. 3 (CMM 2008-01) at 8, ¶ 32.] The limits for those PTs in 2009 through 2011 were either 2,000 mt or no limit, as long they were “undertaking responsible development of their domestic fisheries.” [Id. at 8, ¶¶'32; 34.]

The United States reached its catch limit before the end of. the year in 2009 and 2010, resulting in the closure of the long-line fishery in Hawai’i, ie. “NMFS prohibited retention of bigeye tuna in the WCPO.” [Steen Deck, Exh. 1 (Amendment 7 Fishery Ecosystem Plan for’ Pelagic Fisheries of the Western Pacific Region, etc., Including an Environmental Assessment and Regulatory Impact Review, dated 3/27/14 (“Amendment 7 EA”)) at 14.] In 2011, affer NMFS forecasted that the limit would be reached, in late-November,

under the authority provided in Section 113(a),[] the American Samoa government entered into a two-year fishing agreement with U.S. vessels in the Hawaii Longline Association (HLA), which include nearly all vessels operating in the Hawaii longline fishery. Consistent with Section 113(a), NMFS attributed 628 mt of bigeye tuna caught by HLA vessels under the agreement in 2011 to American Samoa.

[Id.] A similar situation arose in 2012, and NMFS attributed 771 mt of bigeye tuna catch to American Samoa. In 2013, there was a similar agreement with the CNMI. [Id.] 501 mt of bigeye tuna caught by Hawai’i longline vessels was attributed to the CNMI. Quota Shifting Rule, 79 Fed. Reg. at 64099. This Court will refer to this type of agreements as “specified fishing agreements.”

3. CMM 2013-01

The Commission’s CMM 2013-01 again recognized that prior CMMs “have been unsuccessful in either restricting the apparent growth of fishing capacity or in reducing the fishing mortality of bigeye or juvenile yellowfin tuna.” [Steen Deck, Exh. 2 (CMM 2013-01) at 1.] Paragraph 40 of CMM 2013-01 states: “The catch limits in 2014 and thereafter for bigeye tuna shall be as specified in Attachment F. Any overage of the catch limit by a CCM shall be deducted from the catch limit for the following year for that CCM.” [Id. at 10.] Attachment F, titled “Bigeye Longline Catch Limits by Flag,” sets the following catch limits for the United States: 2014— 3,763 mt; 2015 — 3,554 mt; 2016 — 3,554 mt; and 2017 — 3,345 mt. [Id. at 21.] CMM 2013-01 states: “Paragraph 40 does not apply to members that caught less than 2,000 tonnes in 2004. Each member that caught less than 2,000 tonnes of bigeye in 2004 shall ensure that their catch does not exceed 2,000 tonnes in each of the next 4 years (2014, 2015, 2016 and 2017).” [Id. at 10, ¶ 41.] It states that “opportunities for non-members will be decided by the Commission on a case by case basis.” [Id.] CMM 2013-01 does not address the 2014-2017 bigeye tuna catch limits for PTs.

For purposes of, inter alia, paragraph 40, “attribution of catch and effort shall be to the flag State, except that catches and effort of vessels notified as chartered under CMM 2011-05 shall be attributed to the chartering Member or Participating Territories.” [Id. at 3, ¶ 5.] However, CMM 2013-01 also states: “Unless otherwise stated, nothing in this Measure shall prejudice .the rights and obligations of those small island developing State Members and Participating Territories in the Convention Area seeking to develop their domestic fisheries.” [Id. at 4, ¶ 7.]

CMM 2013-01 was later replaced by CMM 2014-01. [Reply, Suppl. Decl. of David L. Henkin (“Henkin Reply Deck”), Exh. 42 (CMM 2014-01) at 14, ¶ 62.] CMM 2014-01 has the same catch limits for the United States. [Id. at 22 (Attachment F).] The parties’ arguments are based on CMM 2013-01, because it was the operative measure when NMFS promulgated the Quota Shifting Rule. However, the Court notes that the relevant provisions of CMM 2014-01 appear to be substantively identical to the relevant provisions of CMM 2013-01.

III. Implementation Act

In 2007, Congress passed the Western and Central Pacific Fisheries Convention Implementation Act (“Implementation Act”). Pub. L. 109-479, Title V, § 501, 120 Stat. 3656. It is codified at 16 . U.S.C. § 6901 et seq. 16 U.S.C. § 6904 governs the Secretary of Commerce’s (“Secretary”) rule-making authority. It states:

(a) Promulgation of regulations

The Secretary, in consultation with the Secretary of State and, with respect to enforcement measures, the Secretary of the Department in which the Coast Guard is operating, is authorized to promulgate such regulations as may be necessary to carry out the United States international obligations under the WCPFC Convention and this chapter, including recommendations and decisions adopted by the Commission. ■ In cases where the Secretary has discretion in the implementation of one or more measures' adopted by the Commission that would govern fisheries under the authority of a Regional Fishery Management Council,-the Secretary may, to the extent practicable within the implementation schedule of the WCPFC Convention ‘-and any recommendations and decisions adopted by the Commission, promulgate such regulations in accordance with the procedures established by the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.).

(b) Additions to fishery regimes and regulations

The Secretary may promulgate regulations applicable to all vessels and persons subject to the jurisdiction of the United States,‘including United States flag vessels wherever they may be operating, on such date as the Secretary shall prescribe.

The parties agree that “[t]he authority to promulgate' regulations pursuant to the Implementation Act has been delegated to NMFS.” [Amended- Complaint at ¶ 34; Federal Defs.’ Answer at ¶34 (admitting allegations in Plaintiffs’ paragraph 34).]

The Enforcement section of the Implementation, Act states, in pertinent part:

The Secretary shall prevent any person from violating this chapter in the same manner, by the same means, and with the sáme jurisdiction, powers, and duties ■ as though all applicable terms and provisions of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1857) were incorporated into and made a part of this chapter. Any person * that.violates any provision of this chapter is subject to the penalties and entitled to the privileges and immunities provided in the Magnuson-Stevens Fish- - ery Conservation and Management Act [16 U.S.C.A. 1801 et seq;] in the same manner, by the same means,; and with the same jurisdiction, power, and duties as though all applicable terms and provisions of that Act were incorporated into and made a part of this chapter.

16- U.S.C. § 6905(c). Because “all applicable terms and provisions” of the Magnu-son-Stevens Act are effectively incorporated into the Implementation-Act when addressing violations of the Implementation Act, this Court concludes, that regulations promulgated pursuant to , the Implementation Act are subject to judicial review in the manner described in the. Magnuson-Stevens Act.

IY. Magnuson-Stevens Act

The Ninth Circuit has stated:

The Magnuson-Stevéns Fishery Conservation and Management Act (“Mag-nuson-Stevens Act”), 16 U.S.C. §§ 1801-1884, “was enacted to establish -a federal-regional partnership to manage fishery resources.” Nat’l Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 749 (D.C.Cir.2000). Under the Magnuson-Stevens Act, the federal government exercises “sovereign rights and exclusive fishery management authority over all fish, and all Continental Shelf fishery resources, within the exclusive economic zone” (“EEZ”), 16 U.S.C. § 1811(a), which'extends from the seaward boundary of each coastal state to 200 miles, offshore, id. § 1802(11); City of Charleston v. A Fisherman’s Best, Inc., 310 F.3d 155, 160 (4th Cir.2002). The Magnuson-Ste-vens Act expressly preserves the jurisdiction of the states over fishery management within their boundaries. See 16 -U.S.C. § 1856(a)(1).

To manage fishing in the EEZ, the Magnuson-Stevens Act calls for the creation of regional Fishery Management Councils (“FMCs”), composed of state and federal officials and experts appointed by the Secretary of the National Marine Fisheries Service (“NMFS”). 16 U.S.C. § 1852(b)(l)-(2). With the cooperation of “the States, the fishing industry, consumer- and environmental organizations, and other interested persons,” ' id, § 1801(b)(5), the NMFS and FMCs develop and promulgate Fishery Management Plans (“FMPs”) to “achieve and maintain, on á continuing basis, the optimum -yield from each fishery,” id. '§ 1801(b)(4). In the Magnuson-Stevens Act, “optimum yield” means the amount of fish that “will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems.” Id. § 1802(33); see also 50 C.F.R. § 600.310(e)(3).

Chinatown Neighborhood Ass’n v. Harris, 794 F.3d 1136, 1139-40 (9th Cir.2015) (footnotes omitted). The regional council for Hawai’i, American Samoa, Guam, and the CNMI is the Western Pacific Fishery Management Council (“WESPAC” or “the Council”). 16 U.S.C. § 1852(a)(1)(H).,

The FMPs and FMP amendments that the regional councils prepare must be reviewed and approved by NMFS, and must comply with the requirements of 16 U.S.C. § 1853(a) and applicable laws. See 16 U.S.C. § 1854(a)(l)-(3). In addition, regional councils can propose regulations or modifications to regulations that are necessary to implement an FMP or an FMP amendment. § 1853(c). Any FMP or regulation implementing an FMP pursuant' to the Magnuson-Stevens Act must be consistent with ten “national standards for fishery conservation and management.” 16 U.S.C. § 1851(a).

Regulations promulgated pursuant to the Magnuson-Stevens Act are subject- to judicial review under certain provisions-of the APA 16 U.S.C. § 1855(f). Section 1855(f)(1)(B) states that “the appropriate court shall-only set aside any such regulation or action on a ground specified in section 706(2)(A), (B), (C), or (D) of’ the APA. 5 U.S.C. § 706 is quoted infra.

V. Quota Shifting Rule

On December 23, 2013, pursuant to Amendment 113, WESPAC transmitted Amendment 7 to the Secretary, who approved it on March 28, 2014, after Amendment 113 had lapsed. The Quota Shifting Rule, published on October 28, 2014, “implement[s] conservation and management measures described in Amendment 7.” 79 Fed. Reg. at 64098. It authorizes “territories to enter into specified fishing agreements with U.S. fishing vessels permitted under the FEP [ (Fishery Ecosystem Plan) ], and to allocate to those vessels a specified portion of the territory’s catch or fishing effort limit, as determined by NMFS and” WESPAC. Id. Further,- it notes that:

NMFS is using the framework process to specify a longline bigeye tuna catch limit of 2,000 mt for each U.S. participating territory. Additionally, NMFS specifies that each territory may allocate up to 1,000 mt of that limit to U.S. longline fishing vessels based in other U.S. participating territories or in Hawaii, and identified in a specified fishing-.agreement. NMFS will monitor catches of longline-eaught bigeye tuna, including catches made under specified fishing • agreements, and restrict catches, as appropriate, using the accountability measures described in this final rule. The longline bigeye tuna catch limit specifications are effective for the 2014 fishing year, ¡which began on January 1, 2014.

Id. (emphasis added).

The Amended Complaint alleges that the Quota Shifting Rule: violates the Implementation Act and the APA (“Count I”); and violates • the -Magnuson-Stevens Act and the APA (“Count II”). Plaintiffs seek the following relief: a declaratory judgment concerning the alleged violations; an order vacating and setting aside the Quota Shifting Rule; any appropriate injunctive relief; reasonable attorneys’ fees and costs; and any other appropriate relief.

Plaintiffs argue that, because the United States agreed to abide by the catch limits established pursuant to the Convention, the Magnuson-Stevens Act and the Implementation Act require NMFS to implement regulations that enforce the catch limits. According to Plaintiffs, the Quota Shifting Rule violates the applicable CMMs, and therefore: 1) NMFS exceeded its authority -under the Magnuson-Stevens Act and the Implementation Act when it promulgated the Rule; and 2) the rule is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law, within the meaning of the APA. Plaintiffs therefore argue that this Court should conclude that the Quota Shifting Rule is unlawful and set it aside.

STANDARD

The parties agree that this Court’s review of the Quota Shifting Rule is pursuant to the Magnuson-Stevens Act. When reviewing a regulation promulgated pursuant to the Magnuson-Stevens Act, a district court “shall only set aside any such regulation or action on a ground specified in section 706(2)(A), (B), (C), or (D) of’ the APA. 16 U.S.C. § 1855(f)(1)(B). The APA provides, in relevant part:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

(2) hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [and]

(D) without observance of procedure required by law[.]

5 U.S.C. § 706. Thus, the Ninth Circuit has stated:

In reviewing regulations promulgated under the [Magnuson-Stevens Act], “our only function is to determine whether the Secretary [of Commerce] ‘has considered the relevant factors and articulated a rational connection between the Facts found and the choice made.’ ” Alliance Against IFQs v. Brown, 84 F.3d 343, 345 (9th Cir.1996) (quoting Wash. Crab Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1440-41 (9th Cir.1990)). “We determine only if the Secretary acted in an arbitrary and capricious manner in promulgating such regulations.” Alliance Against IFQs, 84 F.3d at 345. “Under the APA, we will reverse the agency action only if the action is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.” Lands Council v. Powell, 379 F.3d 738, 743 (9th Cir.2004), amended by 395 F.3d 1019 (9th Cir.2005).

Fishermen’s Finest, Inc. v. Locke, 593 F.3d 886, 894 (9th Cir.2010) (some alterations in Fishermen’s Finest). “Even when an agency explains its decision with ‘less than ideal clarity,’ ” the Court must uphold the action “if the agency’s path may be reasonably discerned.” San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 994 (9th Cir.2014) (citation omitted). This deference is “at its highest where a court is reviewing an agency action that required a high level of technical expertise.” Id.

I. Arbitrary and Capricious Review

The Ninth Circuit has stated that:

“Review under the arbitrary and capricious standard is narrow, and we do not substitute our judgment for that of the agency.” Ecology Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir.2009) (alterations omitted) (quoting Lands Council v. McNair (Lands Council II), 537 F.3d 981, 987 (9th Cir.2008) (en banc), overruled on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)) (internal quotation marks omitted). “Rather, we will reverse a decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation 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.” Id. (quoting Lands Council II, 537 F.3d at 987) (internal quotation marks omitted).

Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105, 1110 (9th Cir.2015). This showing is a “heavy burden.” Managed Pharmacy Care v. Sebelius, 716 F.3d 1235, 1244 (9th Cir.2013).

The arbitrary and capricious standard

requires the [agency] to articulate [] a rational connection between' the facts found and the choice made. [We] review the record to ensure that agency decisions are founded on a reasoned evaluation of the relevant factors, and may not rubberstamp ... administrative decisions that [are] inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute

Sierra Club v. U.S. E.P.A., 671 F.3d 955, 961 (9th Cir.2012) (some alterations in' Sierra Club) (citations and quotation marks omitted).

II. Exceeds Authority Review

When evaluating a challenge to an agency action pursuant to § 706(2)(C), courts dpply the two-step framework that the United States Supreme Court set forth in Chevron, U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See, e.g., Nw. Envtl. Advocates v. U.S. E.P.A., 537 F.3d 1006, 1014 (9th Cir.2008). This district court has described the Chevron framework as follows:

Under the Chevron framework, the court must first “determine whether ‘the intent of Congress is clear.’ ” Marmolejo-Campos v. Holder, 558 F.3d 903, 908 (9th Cir.2009) (quoting Chevron, 467 U.S. at 842, 104 S.Ct. 2778). “[I]f the intent of Congress is clear and unambiguously expressed by the statutory language at issue,” the court’s analysis ends, Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81, 93, 127 S.Ct. 1534, 167 L.Ed.2d 449 (2007), and “both the court and the agency ‘must give effect to the unambiguously expressed intent of Congress.’” Marmolejo-Campos, 558 F.3d at 908 (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778). If, on the other hand, • the statute is silent or otherwise-.ambiguous, the court must determine “whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778.

In step 2 of the Chevron analysis, the court need not find that the agency “interpretation is the only permissible construction of [the statute] or. even the reading [the court] would have reached, but only that [the agency’s] interpretation is not. arbitrary and capricious.” Natural Res. Def. Council v. E.P.A., 526 F.3d 591, 605 (9th Cir.2008) (citing Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. 2778). To determine if the construction is permissible, the court must “ ‘look to the plain and sensible meaning of the statute, the statutory' provision in the context of the whole statute and case law, and to the legislative purpose and intent.’ ” Id. (quoting Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1022 (9th Cir.2005)).

Skyson USA, LLC v. United States, 651 F.Supp.2d 1202, 1206-07 (D.Hawai’i 2009) (alterations in Skyson).

DISCUSSION

I. Standing

At the outset, this Court must address Defendants’ argument that Plaintiffs do not have standing to challenge the Quota Shifting Rule. Defendants argue that Plaintiffs have not demonstrated that they have personally suffered a concrete and particularized injury that is attributable to the Quota Shifting Rule; Defendants argue that Plaintiffs cannot establish standing with allegations of harm to the marine ecosystem in general and to the nearshore fisheries that their members use and enjoy. Further, even assuming, arguendo, that Plaintiffs’ alleged ecosystem harm is a legally cognizable injury, Defendants' argue that this Court should still find that Plaintiffs lack standing because the alleged injuries are conjectural and -hypothetical, not actual or imminent.

Plaintiffs have “the burden of proving the existence of Article III standing at all stages of the litigation.” See Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 807 F.3d 1031, 1043 (9th Cir.2015). “To establish standing, organizations, like individuals, must satisfy the requirements of three elements: (1) injury-in-fact, (2) causation, and (3) redressability.” Int’l Longshore & Warehouse Union v. Nelson, 599 Fed.Appx. 701, 701 (9th Cir.2015).

“[A]n association has standing to bring suit on behalf of its members when: [1] its members would otherwise have standing to sue in their own right; [2] the interests it seeks to protect are germane to the organization’s purpose; and [3] neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”

Id. at 702 (alterations in Nelson) (quoting Hunt v. Wash. State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)).

However, the relevant injury “is not injury to the environment but injury to the plaintiff.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The Ninth Circuit has stated that:

[Environmental and aesthetic injuries constitute irijuries in fact for standing purposes. See, e.g., Mount Graham Red Squirrel v. Espy, 986 F.2d 1568, 1581-82 (9th Cir.1993) (extinction of species whose observation in the wild provided plaintiffs scientific, Recreational and aesthetic enjoyment conferred requisite injury for standing purposes); Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1396 (9th Cir.1992) (diminished opportunity for Fund .members to view the northern bison herd in Yellowstone established standing to challenge the National Park Service’s 1990 bison management plan); Alaska Fish & Wildlife Fed’n and Outdoor Council, Inc. v. Dunkle, 829 F.2d 933, 937 (9th Cir.1987) (decrease in number of migratory birds resulting from a permissive hunting policy injured “those who wish to hunt, photograph, observe, or carry out scientific studies on the migratory birds”).

Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172, 1176-77 (9th Cir.2000). The Supreme . Court has stated that “a plaintiff claiming injury from environmental damage must use the area affected by the challenged activity and not an area roughly ‘in the vicinity’ of it.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 565-66, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

In the instant case, Plaintiff Center for Biological Diversity (“the Center”) “is- a nonprofit corporation that works through science, law and policy to secure a future for all species, great or small, hovering-on the brink of extinction. ... The Center is dedicated to the preservation, protection, and restoration of biodiversity, native species, and eco§ystems.” [Pltfs.’ CSOF, Decl. of Miyoko Sakashita (“Sakashita Decl.”) at ¶ 3.] It has over 50,000 members, including “members who reside throughout Hawaii and who use the areas that serve as habitat for the fish; marine mammals, sea turtles and other wildlife killed by the Hawai’i-based deep-set longline fishery.” [Id.] For example, Robert Wintner is a Maui resident and a member of the TIRN. He has been “an avid snorkeler and scuba diver for more than 60 years.” [Id. Decl. of Robert Wintner (‘Wintner Deck”) ¶¶1, 3.] Since 2004, he has dived between twenty to thirty times a year in the open ocean near Molokini, where he has observed various pelagic species, including yellowfin tuna, a species that the Hawai’i longline fishery kills as by-catch when fishing for bigeye tuna. Although Wintner has never seen a bigeye tuna at Molokini, he knows others who have, and he hopes to have a chance to observe and photograph bigeye tuna there in the future. [Reply, Suppl. Deck of Robert Wintner (“Wintner Suppl. Deck”,) at ¶¶ 3-4.] Wintner states:

I am concerned that NMFS’ Quota Shifting Rule will destabilize the marine ecosystem in this region and impact both pelagic and nearshore species and habitat by reducing stocks -of bigeye tuna, a critical apex predator, as well as reducing stocks of ecologically valuable “by-catch” including seabirds, marine mammals, sea turtles, and other species.

[Wintner Deck at ¶ 3.]

Colleen Rene Umberger, a Maui resident and member of CCH, is an avid scuba diver who has made over 10,000 dives— primarily in Hawai’i — in the past thirty years. [Pltfs.’ CSOF, Deck of Colleen Rene Umberger (“Umberger Deck”) ¶¶ 1-2.] While diving in pelagic ecosystems in Ha-wai’i and the Indo-Pacific, she has encountered several species of tuna, including bigeye tuna. [Suppl. Deck of Colleen Rene Umberger (“Umberger Suppl. Deck”), filed 9/23/15 (dkt. no. 58.1), at ¶¶3-4] She states that her “enjoyment of these areas is dependent on [her] ability to observe pelagic species, including the bigeye tuna, in their natural habitat,” and her “recreational, spiritual and. aesthetic interests are harmed by NMFS’s Quota Shifting Rule because it allows longliners tp remove beautiful marine animals from ,the ocean that contribute to the complex reef ecosystems [she] regularly dive[s] in for the purpose of observing marine animals in the wild.” [Umberger Deck at ¶¶ 5, 7.]

Even viewing the record in the light most favorable to Defendants, this Court finds that: 1) Plaintiffs are representing members who face, inter alia, actual and imminent environmental and aesthetic injuries from the alleged overfishing of bigeye tuna; 2) the injuries are fairly traceable to the challenged Quota Shifting Rule; 3) the injuries, are likely to be redressed by a favorable decision in this case because invalidating the Quota Shifting Rule would result in lower levels of bigeye tuna catch by Hawai’i longliners; 4) the interests that Plaintiffs seek to protect in this case are germane to their organizations’ purposes; and 5) neither the claims asserted-nor the relief requested in this case require the participation of Plaintiffs’ members. This Court therefore FINDS tliat there are no issues of material fact as to the standing issue, and CONCLUDES, as a matter of law, that Plaintiffs have standing to pursue the claims in this case. See Fed. R. Civ. P. 56(a) (stating that a party is entitled tó summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law”). Plaintiffs’ Motion is GRANTED as to the standing issue.

II. Justiciability

Defendants argue that, even if Plaintiffs have standing to pursue the claims in this case, the claims -are not justiciable because they improperly seek to enforce international law. In Defendants’ view, the only recourse to address NMFS’s allegedly erroneous interpretation and , application of the Convention and the CMMs is to bring the United States’s violations to the Commission’s attention. The Supreme Court has stated:

This Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that — while they constitute international law commitments — do not by themselves function as binding federal law. The distinction was well explained by Chief Justice Marshall’s opinion in Foster v. Neilson, 2 Pet. 253, 315, 7 L.Ed. 415 (1829), overruled on other grounds, United States v. Percheman, 7 Pet. 51, 8 L.Ed. 604 (1833), which held that a treaty is “equivalent to an act of the legislature,” and hence self-executing, when it “operates of itself without the aid of any legislative provision.” Foster, supra, at 314. When, in contrast, “[treaty] stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect.” Whitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 31 L.Ed. 386 (1888). In sum, while treaties “may comprise international commitments ... they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.” Igartua-De La Rosa v. United States, 417 F.3d 145, 150 (C.A.1 2005) (en banc) (Boudin, C. J.).

Medellin v. Texas, 552 U.S. 491, 504-05, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) (some alterations in Medellin). The Supreme Court also clarified that: “What we mean by ‘self-executing’ is that the treaty has automatic domestic effect as federal law upon ratification. Conversely, a ‘non-self-executing’ treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty has domestic effect depends upon implementing legislation passed by Congress.” Id. at 505 n. 2, 128 S.Ct. 1346. Further,

A treaty is, of course, “primarily a compact between independent nations.” Head Money Cases, 112 U.S. 580, 598, 5 S.Ct. 247, 28 L.Ed. 798 (1884). It ordinarily “depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it.” Ibid.; see also The Federalist No. 33, p. 207 (J. Cooke ed. 1961) (A. Hamilton) (comparing laws that individuals are “bound to observe” as “the supreme law'of the land” with “a mere treaty, dependent on the good faith, of the parties”). “If these [interests] fail, its infraction becomes the subject of international negotiations and reclamations .... It is obvious that with all this the judicial courts have nothing to do and can give no redress.” Head Money Cases, supra, at 598, 112 U.S. 580, 5 S.Ct. 247. Only “[i]f the treaty contains stipulations which are self-executing, that is, require np legislation to make them operative, [will] they have the force and effect of a legislative enactment.” Whitney [v. Robinson], [124 U.S. 190] , 194, 8 S.Ct. 456 [31 L.Ed. 386] [ (1888) ].

Id. at 505-06, 128 S.Ct. 1346 (some alterations in Medellin) (emphasis added).

As previously noted, the Implementation Act gives the Secretary the authority “to promulgate such regulations as may be necessary to carry out the United States international- obligations under the WCPFC Convention and this chapter, including recommendations and decisions adopted by the Commission,” 16 U.S.C. § 6904(a), and that authority has been delegated to NMFS. The Implementation Act and the regulations promulgated thereto are clearly enforceable in the United States. To the extent that Plaintiffs allege that NMFS exceeded- its Implementation Act authority when it promulgated the Quota Shifting Rule, that claim' is justicia-ble.

The Federal Defendants acknowledge that the Quota Shifting Rule was promulgated pursuant to the Magnuson-Stevens Act. See Fed. Defs.’ Opp. at 12-13 (quoting 79 Fed. Reg. at 64097-98 (stating that WESPAC “recommends conservation and management measures for NMFS to'implement under the authority of’ Magnuson-Stevens Act); 79 Fed. Reg. at 64106-07 (“NMFS is taking this action under the [Magnuson-Stevens Act], which authorizes NMFS to promulgate regulations necessary or appropriate to implement a plan amendment .... ”); 79 Fed. Reg. at 64111 ((iThe authority -citation for part 600 is revised- to read' as follows: Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seg.”)); see also Steen Decl., Exh. 1 (Amendment 7 EÁ) at 3-4 (abstract of the amendment). Under the Magnuson-Stevens Act:

(1) ... actions described in paragraph (2) shall be subject to judicial review to the extent authorized by, and in accordance with, chapter 7 of Title 5, if a •petition for such review is filed within 30 days after the date on which the regulations are promulgated or the action is published in the Federal Register, as applicable; except that—

(B) the appropriate court shall only set aside any such regulation or action on a ground specified in section 706(2)(A), (B), (C), or (D) of such Title.

(2) The actions referred to in paragraph .(1) are actions that are taken by the Secretary under regulations which implement a fishery management plan, including but not limited to actions that establish the date of closure of a fishery to commercial or recreational fishing.

16 U.S.C. • § 1855(f). To the extent that Plaintiffs bring a claim pursuant to the APA that- the Quota Shifting Rule violates the Magnuson-Stevens Act, the claim is justiciable.

First, as to Plaintiffs’ Implementation Act claim,'the -Federal Defendants assert that the Quota ■ Shifting Rule-was only enacted- pursuant' to the Magnuson-Ste-vens Act. ‘However, they admit that “NMFS implemented ‘technical administrative changes’ to certain existing international fisheries .requirements under the Implementation Act to make them consistent with the” Quota Shifting Rule. [Federal Defs.’ Response to Pltfs.’ Concise Statement of Facts (“Federal- Defs.’ CSOF”), filed 8/21/15 (dkt. no. 55), at.1i.19 (citing 79 Fed. Reg. at 640 (stating that the rale “also makes several technical administrative changes to the regulations”).] In addition,- the Quota Shifting Rule’s .List of Subjects includes 50 C.F.R. Part 300, “Administrative practice and procedure, Fish, Fisheries, Fishing, Marine resources, Reporting and recordkeeping requirements, Treaties.” 79 Fed. Reg. at 64110. Part 300, Subpart O, titled “Western and Central Pacific Fisheries for Highly,. Migratory Species,” states: “This subpart implements provisions of the Western and Central Pacific Fisheries Convention Implementation Act (Act) and applies to persons and vessels subject to the jurisdiction of the United States.” 50 C.F.R. § 300.210. One of the regulations in Subpart O is 50 C.F.R. § 300.224, “Longline fishing restrictions.” That regulation is clearly part of the management framework implemented in the Quota Shifting Rule. See, e.g., 79 Fed. Reg. at 64100 (stating that “NMFS has already implemented the 3,763 'mt catch limit for longline-caught bigeye tuna for the United States for 2014” (citing 50 CFR 300.224)). Thus, even though the Quota Shifting Rule does- not expressly invoke NMFS’s Implementation Act authority, see, e.g., id. at 64106 (“NMFS is taking this action under the Magnuson-Stevens Act.”), this Court concludes that the rule is . clearly part of the regulatory system authorized in the Implementation Act. ,

Defendants next argue that Plaintiffs do not seek -review of the Quota Shifting Rule pursuant to either the Implementation Act or the Magnuson-Stevens Act. According to - Defendants, Plaintiffs’ claims actually allege violations of the CMMs, -which are not domestically enforceable. Defendants urge this Court to follow the analysis in Natural Resources Defense Council v. Environmental Protection Agency, 464 F.3d 1 (D.C.Cir.2006), in which the D.C. Circuit held that post-ratification decisions by the parties to the Montreal Protocol on Substances that Deplete the Ozone Layer (“Montreal Protocol”), Sept. 16, 1987, S. Treaty Doc. NO. 100-10,1522 U.N.T.S. :29, were .not. .enforceable in United States courts.

Similar" to the instant" case: the United States "entered'into the Montreal Protocol with" various" other countries; the Senate ratified the treaty in 1988; and" Congress implemented it by incorporating the terms of the protocol in the Clean Air Act. The Montreal Protocol “requires signatory nations ... to reduce and eliminate their production and use of ozone-depleting chemicals in accordance with agreed-upon timetables.” NRDC, 464 F.3d at 3 (citing Montreal Protocol arts. 2-21). The Montreal Protocol allows, for exceptions from the ban for production and consumption that is necessary for critical uses, and the parties meet annually to determine the critical uses-and how much production and consumption- is necessary for the critical uses. Id. at 4. At a- March 2004 meeting, -the parties to the Montreal. Protocol agreed upon Decision ExI/3 and Decision XI/6. The Environmental Protection Agency (“EPA”) promulgated-rales to implement the critical use exceptions. Id. at 5. The NRDC brought suit to challenge the rule, arguing that it violated Decision ExI/3 and Decision XI/6 on various grounds. Id. The D.C. Circuit held that:

The “decisions”.of the Parties — post-ratification side agreements reached by consensus among 189 nations — are not “law” within the meaning of the Clean Air Act and are not enforceable in federal court.

... If the “decisions” are “law” — enforceable in federal court like statutes or legislative rules — then Congress either has delegated lawmaking authority to an international body or authorized amendments to a treaty without presidential signature or Senate ratification, in violation of Article II of the Constitution. ...

Id. at 8. The Eighth Circuit recognized that, when Congress implemented the Montreal Protocol, it directed the EPA to abide by the Protocol’s terms. Id. at 9 (citing 42 U.S.C. §§ 7671(d)(6), 7671m(b)). More importantly, however:

Nowhere does the Protocol suggest that the Parties’ post-ratification consensus agreements about how to implement the critical-use exemption are binding in domestic courts. The only pertinent, language in Article 2H(5) states that the Parties will “decide to permit” production and consumption necessary to satisfy those uses that they “agree[ ]” to be critical uses. The Protocol is silent on any specific conditions accompanying the critical-use exemption. Post-ratification agreements setting these conditions are not the Protocol.

Id. (alteration in NRDC). The decisions could not be subsequent interpretations of the Montreal Protocol because the Protocol did not contain details about the critical-use exemption. Instead of “interpret[ing] treaty language,” the decisions “fill[ed] in treaty gaps,” and- therefore could not be considered interpretations and applications of the Protocol. Id. at 9. The D.C. Circuit held that article 2H(5)— the only provision addressing, critical uses — was merely .an “agreement to agree,” which was unenforceable in contract. Id. at 9-10. In other words, “[without congressional action, ... side agreements reached after a treaty has been ratified are not the law of the land; they are enforceable not through the federal courts,, but through international negotiations,” Id.

This Court, however, finds that there are critical differences between the Montreal Protocol and its implementing statute and the instant Convention and the Implementation Act. First, unlike the Montreal Protocol, the Convention expressly states that the Commission shall, inter alia;

(a) determine the total allowable catch or total level of fishing effort within" the Convention Area for such highly migratory fish stocks as the Commission may decide and adopt such other conservation and management measures and recommendations as may be necessary to ensure the long-term sustainability of such stocks;

(c) adopt, where necessary, conservation and management measures and recommendations fór nontarget species and species dependent on or associated with the target stocks, with a view to ’ maintaining or restoring populations of such species above levels at which their reproduction" may become seriously 'threatened; [and]

(g) develop, where necessary, criteria for the allocation of the total allowable catch or the total level of fishing effort for highly migratory fish stocks in the Convention Area[.]

[Henkin Decl., Exh. ¡4 (Convention) at art. 10, § l (emphases added).] Further, unlike the Montreal Protocol, the Convention contemplates, that-the Commission members will enforce the CMMs. The Convention requires the members to, inter alia:

-“implement and enforce conservation and management measures through effective monitoring, control and surveillance”; [id. at art. 5, § j;]

-“promptly implement the provisions of this Convention and any conservation, management and other measures or matters which may be agreed pursuant to this, Convention”; [id. at art. 23, § 1;] and

-“take such measures as may be necessary to ensure that ... fishing vessels flying its flag comply with the provisions of this Convention and the conservation and management measures adopted pursuant hereto and that such vessels do not engage in any activity which undermine the effectiveness , of such measures” [id. at art. 24, § 1(a) ].

Finally, unlike the Clean Air Act’s implementation of the Montreal Protocol, the Implementation Act expressly authorizes NMFS “to promulgate such regulations as may be necessary to carry out the United States international obligations under the WCPFC Convention and this chapter, including recommendations and decisions adopted by the Commission.” 16 U.S.C. § 6904(a) (emphasis added). For these reasons, this Court concludes that the CMMs are distinguishable from the decisions described in NRDC, and this Court declines to follow the reasoning set forth in that ease.

Further, this Court concludes that NMFS — pursuant to the Implementation Act and the Magnuson-Stevens Act— adopted the Quota Shifting Rule, which it believes is necessary to carry out the United States’s obligations in the ■ relevant CMMs. The Quota Shifting Rule clearly treats certain CMMs — in particular CMM 2013-01 — as authoritative and asserts that the rule follows them. For example, the Quota Shifting Rule states:

-“This final rule is consistent with the WCPFC CMM 2013-01 objectives of ending overfishing of bigeye tuna, while allowing for the limited transfer of available quota between U.S. participating territories and eligible U.S. fisheries.” 79 Fed. Reg. at 64098.

-“This action is consistent with WCPFC CMM 2013-01, and other applicable laws.” Id.

-“NMFS .,. will implement the U.S. catch , limits specified in CMM 2013-01 . for subsequent years in one or more separate rulemakings, as appropriate.” Id. at 64100.

-“As documented in the ’ EA, catches by Hawaii and territory longline fisheries, when combined with U.S. WCPO longline limit for bigeye tuna of 3,763 mt per year (which will be 'reduced in 2015 and again in 2Ó17) would not ' impede the CMM 2013-01 objective of ending overfishing on bigeye tuna.” Id.

-“This final rule is consistent with CMM 2013-01 for longline-caught yellow-fin, tuna and the fishing effort limits for albacore under CMM 2005-02_This final rule does not undermine the WCPFC’s measures for silky sharks or oceanic whitetip sharks under CMMs 2013-08 and 2011-04, respectively.” Id.

-“The management framework implemented by this rule requires the Council to review any proposed and existing catch or fishing effort limits and ■ - allocation limits at least annually to ensure consistency with the FEP, Magnuson-Stevens - Act, WCPFC decisions, and other applicable laws.” Id at 64101 (emphasis added).

-“NMFS reviews the recommended limits for consistency with all applicable laws and WCPFC - CMMs and, if consistent, NMFS will approve the recommendation.” Id.

Thus, insofar as the Quota Shifting Rule makes CMM 2013-01 and other CMMs part of the regulatory scheme promulgated pursuant to the Implementation Act. and the Magnuson-Stevens Act, this Court concludes that those CMMs are domestically enforceable. Because the relevant CMMs are domestically enforceable, this Court CONCLUDES that Plaintiffs’ claims are justiciable. Plaintiffs’ Motion is therefore GRANTED as to the justiciability issue.

This Court now turns to the merits of Plaintiffs’ claims.

III. Alleged Violation of CMM 2013-01

The gravamen of Plaintiffs’ case is that the Quota Shifting Rule violates CMM 2013-01, which is binding authority for purposes of the rule. As previously noted, CMM 2013-01 set the following bigeye tuna catch limits for the United States: 2014 — 3,763 mt; 2015 — 3,554 mt; 2016— 3,554 mt; and 2017 — 3,345 mt. [Steen Decl., Exh. 2 (CMM 2013-01), at 21 (Attachment F (Bigeye Longline Catch Limits by Flag)).] The Quota Shifting Rule allows each U.S. PT to “allocate up to 1,000 mt of [its] limit to eligible U.S. longline fishing vessels.” 79 Fed. Reg. at 64097. Plaintiffs argue that the rule violates CMM 2013-01 for several reasons.

A. Catch Limits Applicable to the U.S. PTs

In the Quota Shifting Rule, NMFS takes the position that “individual catch limits do not apply to the U.S. participating territories under CMM 2013-01,” and the rule “specifies] a longline bigeye- tuna catch limit of 2,000 mt for each U.S. participating territory.” 79 Fed. Reg. at 64098. Plaintiffs first argue that this interpretation of CMM 2013-01 is not supported by the measured language. Plaintiffs emphasize that the only exception to paragraph 5’s rule attributing catch to the flag State is the CMM 2011-05 charter. Thus, they argue that thé U.S. PTs are not separate entities for purposes of catch allocation because any catch by a U.S. PT counts against the United States’s limit. The Quota Shifting Rule explains the NMFS’s position as follows:

[WESPAC] based the 2,000-mt limit for each U.S. territory on past limits provided to WCPFC members that harvested less than 2,000 • mt annually in previous CMMs (2008-01 and 2011-01), and which-is currently set forth in paragraph 41 of CMM 2013-01. Paragraph 41 states that each member that caught less than 2,000 mt of bigeye in 2004 ensure that its catch does not exceed 2,000 mt in each of the next 4 years (2014, 2015, 2016, and 2017). However, paragraph 7 of CMM 2013-01 exempts [Small Island Developing States (“SIDS”) ] and PTs from the 2,000 mt annual limit meaning that, under WCPFC decisions, these members are not subject to individual bigeye limits. This final rule would effectively remove that exemption and make American Samoa, Guam, and the CNMI subject to' 2,000 mt limits for 2014.

79 Fed. Reg. at 64103. The issue before this Court is whether this interpretation of CMM 2013-01 is either arbitrary and capricious or exceeds- NMFS’s authority.

As previously noted, CMM 2013-01 states that Attachment F sets forth the bigeye tuna catch -limits for 2014 and beyond, and that “[a]ny overage of the catch limit by a CCM shall be deducted from the catch limit for the following year for that CCM.” [Steen Deck, Exh. 2 (CMM 2013-01) at 10, ¶40 (emphases added).] Paragraph 41 exempts certain Commission members from the effect of paragraph 40, and it states that the Commission will decide non-members’ opportunities on a case by case basis. [Id. at 10, ¶ 41.] However,- CCMs also include PTs, see, e.g., Hen-kin Deck, Exh. 8 (CMM 2005-01) at 2, and paragraph 41 does not address catch limits or opportunities for PTs. CMM 2013-01 does not expressly establish catch, limits for PTs, but neither does it expressly state that each PT’s catch is attributed to “the Contracting Party having responsibility for its'international affairs.” See Convention at art. 43, § 1.

Plaintiffs’ position is premised upon paragraph 5, which states that — for purposes of inter alia, paragraph 40 — “attribution of catch and effort shall be to the flag State.” [Steen Deck, Exh. 2 (CMM 2013-01) at 3, ¶ 5.] CMM 2013-01, however, does not define “flag State.” It includes a reference to “Member flag States,” [Id. at 5, ¶ 13,] which suggests that “Member” and “flag State” are not synonymous and that there are “flag States” that are not “Members.” This weighs against Plaintiffs’ argument that paragraph 5 requires that a U.S. PT’s catch be attributed to the United States.

While this Court acknowledges that CMMs áre not treaties, they are post-ratification decisions adopted by a body created pursuant to a treaty, and the purpose of the CMMs is to implement the Convention, a-treaty. Therefore, in interpreting CMM 2013-01, this Court is guided by the principles governing the interpretation :of treaties. The Supreme Court has stated:

The interpretation of a treaty! like the interpretation of a statute, begins with its text. Air France v. Saks, 470 U.S. 392, 396-397, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985). Because a treaty ratified by the United States is. ‘-‘an agreement among sovereign powers,” we have also considered as “aids to its interpretation” the negotiation and drafting history of the treaty as well as “the postratification understanding”- of . signatory nations. Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996).

Medellin, 552 U.S. at 506-07, 128 S.Ct. 1346 (some citations omitted).' This Court concludes that the text of CMM 2013-01 is ambiguous as to the issue of whether PTs are separate entities from their responsible Contracting Parties for purposes of catch allocation limits, and this Court will look to the prior relevant CMMs to aid its interpretation of CMM 2013-01.

CMM 2013-01 states that it replaces CMM 2012-01. [Steen Deck, Exh. 2 (CMM 2013-01) at 13, ¶ 57.] CMM 2012-01 states that it replaces CMM 2008-01 and CMM 2011-01. [Id., Exh. 11 (CMM 2012-01), at 10, ¶ 34.] Further, the Quota Shifting Rifle states that NMFS previously implemented the United States’s 2014 catch limit pursuant to CMM. 2012-01. 79 Fed. Reg. at 64098 (citing 78 FR 58240, September 23, 2013). NMFS also relied on CMM 2008-01 and CMM 2011-01 as authority to support its interpretation of CMM 2013-01 in the Quota Shifting Rule. Id. at 64108 (“[Nothing in CMM 2013-01 or predecessor decisions of the WCPFC requires that vessels operate under charters for purposes of catch attribution. To the contrary, CMM 2011-01 incorporated paragraph 2 of CMM 2008-01.”). Thus, this Court concludes that — in addition to CMM 2013-01, discussed supra Discussion Section II — CMM 2008-01, CMM 2011-01, and CMM 2012-01 are domestically enforceable in this action because they are relevant measures that NMFS has included in the regulatory scheme promulgated pursuant to the Implementation Act and the Magnuson-Ste-vens Act.

Attachment F to CMM 2013-01 only lists the catch limits “by Flag” for China, Indonesia, Japan, the Republic of Korea, Chinese Taipei, and the United States. These are described as “CCMs.” [Steen Decl., Exh. 2 (CMM 2013-01) at 21 (Attachment F).] Of these CCMs, the United States’s limits are the lowest. In contrast, Attachment F’to CMM 2012-01, which also listed limits “by Flag,” listed thirty-two CCMs.' In addition to China, Indonesia, Japan, the Republic of Korea, Chinese Taipei, and the United States, Attachment F to CMM 2012-01 listed the catch limits for: Australia (2,000); Belize (803); European Union (2,000); New Zealand (2,000); and Philippines (2,000). There were no' catch limits specified for the other CCMs, which included the U.S. PTs. [Id., Exh. 11 (C