Conservation Law Found. v. Ross (374 F. Supp. 3d 77, 2019)

A. MSA Claim

As noted, the Court embarks on its journey with Plaintiff's MSA claim. Getting a handle on this Act, however, is no mere day sail. A fair amount of rigging therefore precedes the full airing of CLF's challenge.

1. Threshold Issues

In order to set up the analytical framework that guides its inquiry, the Court first wades into the parties' disagreement about what restrictions the statute - or, more precisely, one provision of the statute - places on the Agency's actions in developing conservation measures. It next offers a few words about the nature of judicial review of an agency decision rendered subject to this standard.

a. Meaning of MSA's EFH Provision

As explained earlier, amendments to FMPs must comply with a plethora of statutory requirements. One such provision plays a starring role here. Unlike other requirements, which target the commercial and recreational catching of fish directly, this one aims at protecting the critical habitat of each managed species of fish. Id. § 1853(a)(7). The Council must first identify these "essential fish habitats" (EFH), which the MSA defines as the "waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity." Id. § 1802(10). Crucially for this case, once these habitats are identified, FMPs must "minimize to the extent practicable adverse effects on such habitat caused by fishing." Id. § 1853(a)(7). (For ease of reference, the Court will refer to this statutory language as the "EFH provision.") Complying with this latter mandate was the Council's core objective in initiating the Habitat Amendment. See 76 Fed. Reg. at 35408-09. CLF's contention is that it fell short. Much turns, therefore, on the precise meaning of this command. It is with this issue of statutory interpretation that the Court thus starts.

Agreement evident in the parties' briefs sets the bounds of this dispute. They are notably on the same page that the "practicable" language permits, or perhaps even requires, the Council to weigh social and economic harms to fishers against any conservation value. See Pl. Mot. at 27; Def. Opp. & Mot. at 16; see also Pl. Opp. & Reply at 3 (" 'Practicable' implicitly requires that NMFS not focus on the EFH ecological benefits exclusively but must also weigh them against socio-economic factors."). The parties also agree that the Council must harmonize the ten national standards in any action, which requires it to balance multiple objectives. See Pl. Mot. at 27; Pl. Opp. & Reply at 3; Def. Opp. & Mot. at 17. Where they disagree, however, is in the relative priority assigned to these goals.

CLF contends that, as a categorical matter, conservation objectives take priority over economic considerations. See Pl. Mot. at 28, 30. This interpretation, it says, follows from the "plain meaning" of the statute. Id. at 27. Only when two proposed actions have similar conservation goals can the Council turn to economic considerations. Id. at 28, 30. And even then, only an "extreme economic hardship" justifies diverging from a more conservation-friendly alternative. See Pl. Opp. & Reply at 6, 8.

Not quite, retorts the Service. It sees the balancing as more flexible. Under its approach, the Council is entrusted with "conduct[ing] a thorough consideration of complex factors representing a broad array of interests with the goal of achieving the greatest benefit to the nation from each managed fishery." Def. Opp. & Mot. at 21. Unlike CLF, the Service does not think that the Council is required to "prioritize alternatives based solely on conservation value." Id. at 22. It goes so far as to say that "[n]othing ... require[s] the Council, where there were multiple alternatives for each sub-region that were potentially practicable, to choose the one with the highest conservation value." ECF

No. 32 (Def. Reply) at 8. Herein lies the rub.

The Government's view advanced in its brief, however, is only a litigation position. Although the Service has promulgated a regulation that expands on the meaning of the statutory provision at issue, see 50 C.F.R. § 600.815(a)(2)(ii)-(iii), that regulation does not answer directly the operative issue here: the statute's relative weighing of conservation and economic considerations. Lacking any on-point agency interpretation capable of warranting Chevron deference, the Court's statutory interpretation here proceeds de novo. See Menkes v. U.S. Dep't of Homeland Sec., 637 F.3d 319, 345 (D.C. Cir. 2011) (noting that "Chevron deference ... does not apply to an agency's litigation position").

The Court nonetheless largely agrees with the Government that the statutory scheme does not impose the rigid prioritization urged by Plaintiff. Although it understands why reading the requirement to "minimize ... the adverse effects of fishing" in a vacuum would yield CLF's interpretation, resort to the full statute dispels this hierarchy. That is because, as the parties acknowledge, in any FMP or amendment to an FMP, this is not the only requirement with which a Council must comply. The ten national standards also compete for attention, many of which are similar in structure to the provision at issue here. Three, for instance, command the Council to "minimize" something. See 16 U.S.C. § 1851(a)(7)-(9). Six of the ten impose some sort of requirement "to the degree practicable" or "where practicable." Id. § 1851(a)(3), (5), (7)-(10). To comply with the national standards and the requirement here, therefore, an FMP - to the degree or where "practicable" - must "minimize" all of the following: the adverse effects of fishing on habitat, the economic impacts on fishing communities, costs and duplication, and bycatch and the mortality of bycatch. It must also, "where practicable, consider efficiency in the utilization of fishery resources," although the MSA cautions that "no such measure shall have economic allocation as its sole purpose." Id. § 1851(a)(5). This is not the first court in this district to recognize that several of these statutory goals stand in some tension. See Oceana, 24 F.Supp.3d at 68 (noting "somewhat conflicting nature" of national standards and stating that they "require the agency to balance several competing considerations in developing FMPs").

The upshot of this statutory structure is that Congress did not intend any of these specified goals - i.e. , the ones limited to actions that are "practicable" - to take priority over the others. That includes CLF's focus on the habitat-conservation goal. Rather, the legislature wrote the essential-fish-habitat provision "to allow for the application of agency expertise and discretion in determining how best to manage fishery resources." Conservation Law Found., 37 F.Supp.3d at 251 (citing Conservation Law Found. v. Evans, 360 F.3d 21, 28 (1st Cir. 2004) ); see also Oceana, Inc. v. Evans, 2005 WL 555416, at *35 (D.D.C. Mar. 9 2005) (same); Oceana, 384 F.Supp.2d at 242 (same). The provision does not "require Councils to do everything they can to protect essential fish habitat." Conservation Law Found., 37 F.Supp.3d at 251. To borrow an apt description from another court, a "singular focus on alternatives that close fishing grounds in order to protect EFH ignores [the MSA's] statutory mandates and effectively reads 'practicable' out of the MSA." Oceana, 2005 WL 555416, at *35. Congress's inclusion of the term "practicable" is thus critical; it is the means by which it "delegated to the agency the discretion to weigh the relevant factors" embodied in the MSA's competing objectives. Oceana, 24 F.Supp.3d at 67. The Council is no doubt required to consider the impact of fishing on essential habitat. It need not, however, exalt this objective over all others.

As CLF points out, there is language in one D.C. Circuit opinion that appears to suggest otherwise. In NRDC, the circuit stated that "the Service must give priority to conservation measures" and that "[i]t is only when two different plans achieve similar conservation measures that the Service takes into consideration adverse economic impacts." NRDC, Inc. v. Daley, 209 F.3d 747, 753 (D.C. Cir. 2000). Those statements, however, must be understood in context. In NRDC, the court considered the interplay of two national standards regarding a plan's proposed imposition of a catch limit on certain species of fish. National standard one provides that the Agency "shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery." 16 U.S.C. § 1851(a)(1). In setting catch limits to implement this conservation goal, the Service - consistent with national standard eight - must also, "to the extent practicable, minimize adverse economic impacts on [fishing] communities." Id. § 1851(a)(8). At issue in NRDC was whether there was a conflict between these two directives. See 209 F.3d at 753 ; see also 16 U.S.C. § 1851(a)(1), (8). The language in the circuit's holding quoted above was its answer to this question - i.e. , because conservation measures take priority, there is no tension.

A glance at the statute's language confirms the logic of that court's view in this context. National standard one is an unqualified directive: the Service "shall prevent overfishing while achieving ... optimum yield." 16 U.S.C. § 1851(a)(1). National standard eight, conversely, is qualified both by its introductory verb - "minimize," instead of "prevent" - and the limitation to only further this goal "to the extent practicable." Id. § 1851(a)(8). Given this language, it makes perfect sense that the conservation goal embodied by the directive to prevent overfishing be given priority over the goal of minimizing adverse impacts.

Unlike NRDC, the challenge in this case is not to the Service's prescribed catch limits that attempt to "maximize the harvest of a single class of fish over its entire life span" - i.e. , achieve optimum yield. See NRDC, 209 F.3d at 749. At issue here, rather, is another type of conservation measure: habitat protection. CLF invites this Court to extend the circuit's holding in NRDC from the overfishing context to habitat-protection measures. See Pl. Mot. at 28.

The Court declines the invitation to read such a hierarchy into the Act's essential-fish-habitat provision. Applying the logic underlying NRDC to statutory text here proves central to this conclusion. Unlike the directive to "prevent overfishing," the EFH provision is qualified by both its verb ("minimize") and the limitation to actions that are "practicable." The structure of this mandate is thus functionally identical to much of national standard eight, which is the precise provision that the court in NRDC held was subordinate to a more explicit directive. For many of the reasons already explained, the inclusion of the word "practicable" is "crucial." Conservation Law Found., 37 F.Supp.3d at 251. So while the potential tension in NRDC lay between an explicit directive and an effort to "minimize" something to the extent "practicable," that is not the case here. Rather, the weighing of competing objectives lies within an objective to "minimize to the extent practicable." This language grants the Service broad discretion to weigh relevant factors, rather than imposing any rigid hierarchy among them. NRDC's statement limiting any consideration of economic impacts to situations in which "two different plans achieve similar conservation measures," 209 F.3d at 753, simply does not make sense in the context of the EFH provision.

To be sure, CLF appears to retreat from this position in its Reply brief. It contends that the Council need not adopt any restriction that imposes an "extreme economic hardship." Pl. Opp. & Reply at 6, 8, 14. But whence CLF finds this limit is unclear. The language does not exist in the statute or in any of the regulations governing EFH. And, absent a hook in the law, this Court sees no reason to adopt it in place of the more flexible balancing that flows from the statutory structure.

Finally, before moving on, the Court notes that its conclusion here also does away with another variant of CLF's challenge. Plaintiff asserts throughout its briefs that the Council and the Service both misunderstood the MSA's requirements. It contends that both the formal goals and objectives created by the Council to guide its action, as well as several statements sprinkled throughout the record, demonstrate this misunderstanding. See, e.g., Pl. Mot. at 30-32; Pl. Opp. & Reply at 5. Certainly, if that were true, it could be grounds to condemn the Service's Amendment: an agency's decision "based on an improper understanding of the law" can render it arbitrary or capricious. See Kazarian, 596 F.3d at 1118. But that is not what happened here. Rather, as the prior discussion shows, it appears that CLF is the party unclear on the MSA's directive. Because Plaintiff's contention here rests primarily on a view of the law with which the Court disagrees, its conclusion falls too. The Court has analyzed the Council's goals and objectives - some of which explicitly relate to the Amendment's groundfish, rather than habitat-protection purposes, see 82 Fed. Reg. at 46750 - as well as the other record statements to which Plaintiff points. It has little trouble concluding that these statements are consistent with the MSA, as interpreted above.

b. Nature of Judicial Review

The preceding section mapped the contours of the MSA's directive to protect essential habitat. With that task complete, the Court's exercise in statutory interpretation also concludes; what remains is governed by arbitrary-or-capricious review. See Judulang v. Holder, 565 U.S. 42, 53 n.7, 132 S.Ct. 476, 181 L.Ed.2d 449 (2011) (noting that "arbitrary or capricious review under the APA," rather that Chevron, is "the more apt analytical framework" when agency's decision "is not an interpretation of any statutory language"). That is because CLF's extant challenges to the Amendment concern the manner in which the Service implemented an established, but inherently discretionary, directive. This sort of dispute is "a garden variety APA arbitrary and capricious claim, and [the Court] should treat it as such." Chamber of Commerce of U.S. v. FEC, 76 F.3d 1234, 1235-36 (D.C. Cir. 1996). For this reason, the "vast majority" of courts in this district have analyzed these kinds of challenges to fishery-management plans under that standard, although a few have employed Chevron. See NRDC, 71 F.Supp.3d at 64 ; see also id. at n.16 (noting "some ambiguity regarding the proper standard of review with respect to claims of this nature").

However interesting this issue of administrative law, it ultimately matters little to the nuts and bolts of this Court's analysis. That is because, as this circuit has repeatedly pointed out, there is often much "overlap" between the second step of Chevron and arbitrary-or-capricious review. See, e.g., Pharm. Research & Mfrs. of Am. v. FTC, 790 F.3d 198, 204 (D.C. Cir. 2015) ; Animal Legal Def. Fund, Inc. v. Glickman, 204 F.3d 229, 234 (D.C. Cir. 2000) ; Arent v. Shalala, 70 F.3d 610, 616 (D.C. Cir. 1995). That point aside, recognizing virtue in some legal formality, the Court uses the case law building out the arbitrary-or-capricious standard of review as its guiding light.

Starting with the basics, it is the "actions of the NFMS in promulgating regulations to adopt a Fishery Management Plan [that] are subject to judicial review," rather than the actions of the Council directly. See NRDC, 71 F.Supp.3d at 43 (citing N.C. Fisheries Ass'n v. Gutierrez, 550 F.3d 16, 17 (D.C. Cir. 2008) ). The Service's role here, as explained above, is to determine whether the Council's proposed plan complies with applicable law. But the Court does not review the Service's conclusion de novo. See Blue Ocean Inst. v. Gutierrez, 585 F.Supp.2d 36, 43 (D.D.C. 2008). Rather, the "court's 'task is ... to determine whether the Secretary's conclusion that the standards have been satisfied is rational and supported by the record.' " Id. at 41 (quoting C & W Fish Co. v. Fox, Jr., 931 F.2d 1556, 1562 (D.C. Cir. 1991) ).

Finally, in its Reply brief, CLF asserts that the Court should not grant any deference to the Council or "sanction NFMS' deference" to that body. See Pl. Opp. & Reply at 14. Because Plaintiff's explanation of this contention is brief, the Court struggles to discern the precise argument it is trying to make. If CLF is attempting to argue that no Chevron deference is due to the Council following the Supreme Court's decision in Mead, 533 U.S. at 231-32, 121 S.Ct. 2164 - an argument at least one student commentator has made, see Kate Stanford, Note, The Need for Chevron Step Zero in Judicial Review of Interpretations Developed by Fishery Management Councils, 19 N.Y.U. Envtl. L.J. 380 (2012) - that line of reasoning finds no success here. As the earlier analysis makes clear, it is the APA's arbitrary-or-capricious review, not Chevron, that applies. If Plaintiff instead means to assert that some standard other than arbitrary and capricious governs this review of agency action, then it needs to supply more than a passing reference to do away with this pillar of administrative law.

Alternatively, perhaps CLF means to argue that the Court should look only to the Record of Decision (ROD) and implementing regulatory language to locate the Service's rationale, instead of crediting anything in the Final Environmental Impact Statement (FEIS). The rationale here might be that, while the ROD (and likely the text in the Federal Register) originates with the Service, the FEIS is "[p]repared by the ... Council." EFH 5780. This too founders. For one, the FEIS is not prepared by the Council alone, but "[i]n cooperation with the ... Service." Id. Second, the statutory scheme sets out a division of labor that grants a significant role to the Council. The statute does not require the Service to make its own factual findings about fish habitat and the impacts of management measures. In fact, it is only under narrow circumstances that the Agency even develops its own management measures. See Anglers Conservation Network, 70 F.Supp.3d at 431. The Court sees little reason why it should grant the Council any less leeway to exercise its expertise than it would another body housed within an administrative agency. Finally, even if an agency does not fully explain its decision, it is nevertheless upheld "if the agency's path may be reasonably discerned." Bowman Transp., Inc., 419 U.S. at 286, 95 S.Ct. 438. The FEIS - a document the Service's Record of Decision explicitly incorporates, see Record of Decision at 1 - is the place where that path would be most evident. Whatever it may be, Plaintiff's argument against deference finds little refuge here. And with that, loyal readers, the Court may weigh anchor.

2. Gulf-of-Maine Protection Measures

CLF's discontent with the Service's approval of the Habitat Amendment in the Gulf of Maine is geographically comprehensive: it raises challenges to the level of habitat protection in all three sub-regions. The Court will sail through each in order, moving from east to west.

a. Eastern Gulf of Maine

Setting out, the Court first encounters Plaintiff's challenge to the Eastern Gulf of Maine measures. The Habitat Amendment establishes a single protected area within this region, which it closed to all mobile bottom-tending gear. See 83 Fed. Reg. at 15241. Dubbed the "Small Eastern Maine Habitat Management Area," this 529-square-kilometer region covers a roughly rectangular shape extending from points south of Mount Desert Island to Isle Au Haut. See EFH 6211-12. The Service approved this measure because it "achieves a notable level of protection for vulnerable habitat without significant economic impacts." 83 Fed. Reg. at 15260. Plaintiff believes that the Amendment should have protected more.

Prior to this Amendment, no habitat in the Eastern Gulf of Maine garnered any protection at all from fishing. To draw up potential geographic areas for fishing restrictions, the Council employed its SASI model and other survey data. This process yielded four possible habitat-management areas, which are represented in Figure 1: Machias HMA, Large Eastern Maine HMA, Small Eastern Maine HMA, and the Toothaker Ridge HMA. See EFH 6207. Notably, Small Eastern Maine is contained wholly within Large Eastern Maine. For purpose of analysis, the Council then combined various permutations of these areas into three alternatives. Alternative 1 left things as they were at the time of the Amendment - i.e. , no habitat in the Eastern Gulf of Maine would receive any protection. Id. The second alternative proposed protection of the Machias and Large Eastern Maine HMAs. Id. Alternative 3, finally, combined the Machias, Small Eastern Maine, and Toothaker Ridge regions for protection. Id. For each alternative, the Council also considered a range of fishing restrictions. Plaintiff, however, makes little argument about the specific restrictions chosen, instead focusing on the geographic component. The Court follows suit.

Figure 1: Eastern Gulf of Maine Alternatives The Council chose, and the Service approved, protection of the Small Eastern Maine area only, with a full prohibition on mobile bottom-tending gear there. See 83 Fed. Reg. at 15241-42. Although not strictly one of the three alternatives outlined above, the FEIS refers to it as "a variation of Alternative 3," since it does protect one of the three areas that composed that alternative. See EFH 6207.

CLF takes issue with the Service's approval of this designation. Reduced to its core, Plaintiff's suggestion is that it was arbitrary and capricious for the Service to approve a plan that did not protect additional habitat. See Pl. Mot. at 32-33. The Court's earlier analysis interpreting the MSA, however, dispenses with two varieties of CLF's claim. First, to the degree it contends that the Service was required to adopt the maximum conservation measures that did not result in an extreme economic hardship to fishers, the MSA does not so require. Second, and similarly, the Court sees no evidence in the record that the Service or the Council misunderstood the statute's directive. What is left, then, is Plaintiff's contention that there does not exist an adequate explanation establishing a rational connection between the facts found and the decision rendered. See Pl. Mot. at 33. Probing this challenge requires the Court to look through the record of the Council's rejection of - and the Service's approval of that rejection of - measures in the Machias, Large Eastern Maine, and Toothaker Ridge regions. In so doing, it does not find the record to manifest the deficiencies Plaintiff promises.

What the record does reveal is consideration of the impacts of each proposed closure on the effected habitat and fishing communities. See, e.g., EFH 6207-21 (habitat impacts); EFH 6347-60 (human impacts). As all sides agree, these are factors the Council was permitted - and even obliged - to consider in determining whether a closure was practicable. See Am. Oceans Campaign, 183 F.Supp.2d at 4 (requiring decision based on "relevant factors"). When all was said and done, the Council concluded that this balance favored establishing a habitat closure only in the Small Eastern Maine area because that area "protect[s] habitats of similar species as the large area that was considered, but with fewer economic impacts on the fishing industry." 83 Fed. Reg. at 15242. For the reasons mentioned below, the Court locates in the record a satisfactory explanation connecting the facts found with this conclusion. See State Farm, 463 U.S. at 43, 103 S.Ct. 2856. No more is required.

Compared with the other closures considered, the Small Eastern Maine area comprises the habitat most vulnerable to bottom-trawling gear. See EFH 6212 (mapping relative vulnerability). In general, the magnitude of positive impact from a closure depends on the vulnerability of the management area to negative impact from fishing. See EFH 6201. This habitat, moreover, is especially important to the managed species. The Council's expert analysis concluded that this area had a significantly higher abundance of managed fish over the past decades compared to the other proposed closures. See EFH 6217 (map of relative weighted persistence showing concentration in Small Eastern Maine region); EFH 6199 (defining weighted persistence as measure of "the number of decades in which the species was present" and "the relative abundance of the species"); see also EFH 6221 ("In addition, the very far above average weighted persistence areas are included within th[e Small Eastern Maine] HMA, and do not overlap the Toothaker Ridge or Machias HMAs."). Combining these features, the Council concluded that, relative to the other areas, "the Small Eastern Maine HMA appears to potentially provide the most habitat protection." EFH 6221.

On the other side of the scale, the impact of the closure on fishing communities was especially minimal. Despite being larger than either the Toothaker Ridge or Machias HMAs, see EFH 6221, the area generates significantly less revenue from the types of fishing affected by a closure. Purse Seine - a midwater gear used in the herring fishery, see EFH 6209 - and lobster traps are the two principal drivers of revenue in the Small Eastern Maine HMA, neither of which is subject to a prohibition on mobile bottom-tending gear. See EFH 6347-49 (graph of fishing revenue); EFH 6350-51 (table of fishing revenue);

EFH 6221 (noting that purse-seine gear "is not considered to be bottom-tending and therefore is not expected to cause adverse impacts on seabed habitats").

Turning to the other regions, it is understandable why the calculus that led the Council to conclude that the Small Eastern Maine HMA warranted protection yielded different conclusions for the other potential closures. Compared with Small Eastern Maine, those potential fishing closures would provide fewer benefits to habitat but have a higher adverse economic impact on fishers.

In Machias, for example, the Council concluded that the habitat is "somewhat less vulnerable to accumulating adverse effects of fishing due to more rapid recovery times associated" with the type of habitat. See EFH 6219; see also EFH 6212 (map of trawl vulnerability). The habitat also evinces a markedly lower prevalence of protected species than other areas in the Gulf of Maine. See EFH 6217. Further, this HMA's proximity to Canada could dampen the effectiveness of any fishing prohibition. Because "portions" of the Machias HMA are in the grey zone, an area that can be fished by both U.S. and Canadian vessels, these waters "could continue to be fished with mobile bottom-tending gears by Canadian" boats, even if the U.S. were to forbid such gear. See EFH 6220. This occurrence "would undermine the effectiveness of the mobile bottom-tending gear closure and compromise habitat recovery." EFH 6219. A closure there, however, would have a larger impact on U.S. fishing communities than a closure in the Small Eastern Maine HMA. In particular, the clam and scallop fisheries have "the most potential revenue displacement," at levels that far exceed any fishery in Small Eastern Maine. Compare EFH 6355 (revenue displacement in Machias between 8% and 17% of average revenue per trip) with EFH 6358 (revenue displacement in Small Eastern Maine generally less than 1%).

Toothaker Ridge tells a similar story. Like Machias, the habitat type is "relatively less vulnerable and consists mainly of mud-dominated areas." EFH 6221; see also EFH 6212 (maps of trawl vulnerability and dominant substrate). On the economic side of the scale, the magnitude of bottom-trawl fishing in this area is greater than in Small Eastern Maine. See EFH 6359. The Council thus concluded that, in comparison to Small Eastern Maine, closing Toothaker Ridge would have a larger impact on these fishers. Id. ("A complete exclusion of mobile bottom-tending gear [in Small Eastern Maine, Machias, and Toothaker Ridge would] ... mainly affect[ ] bottom trawl fisherman in the vicinity of Toothaker Ridge, and clam dredge fisherman around Machias."). A closure here, moreover, would have disproportionate effects on a small number of fishers, rather than dispersing the economic pain among a larger fleet. Id. (noting that data "suggest[s] that a few individuals utilize this area more intensively than the majority of individuals fishing in the area"). This, too, is a rational reason to be wary of closing the area.

The Service's decision in Large Eastern Maine, although ultimately sufficiently articulated and rational, is harder to understand. On the one hand, in support of the Service's decision, maps of the region do show minimal trawl vulnerability. See EFH 6212. But on the other, like Small Eastern Maine - which, as a reminder, is a wholly included subset of Large Eastern Maine - both show above-average abundance of managed fish. See EFH 6217. The larger area also holds benefits that the smaller, protected area does not: unlike the Small Eastern Maine HMA, "the Large Eastern Maine HMA is expected to afford more protection for deeper water species and lifestages, such as adult monkfish." EFH 6219-20. Then again, by virtue of its size, closing the larger region would have significantly larger economic consequences. See EFH 6358 (noting that "the Small Eastern Maine area encompasses roughly 23-28% of the revenue associated with the Large Eastern Maine area").

Two arguments in the record ultimately tip the scales in the Service's favor. First, the Council acknowledged the habitat value of the area, but justified its action out of a "concern[ ] that closing the area to mobile bottom-tending gears could affect the local scallop fishery." EFH 6758. Although the support for this proposition in the administrative record is a bit thin, it is present. See EFH 6347 (graph showing revenue from "other gear"); EFH 6355 (noting that "other gear" includes scallop dredges, which "cannot be detailed for privacy purposes"); EFH 6358 (similar). Second, the record reveals why the Council may have been particularly concerned with adverse economic impacts on the fishing community. It points out that these impacts of those closures would target "smaller coastal communities that have high levels of engagement and reliance on commercial fishing and have limited economic opportunities outside of fishing and relatively high social vulnerability indices." EFH 6357. At bottom, the Service's decision checks out.

This tour of the record demonstrates what the Service needs it to. It shows the Court that the "major issues of policy were ventilated" and permits it to see "why the agency reacted to them as it did." Republican Nat. Comm. v. FEC, 76 F.3d 400, 407 (D.C. Cir. 1996) (citation omitted). The Service, aided by the Council, considered the relevant factors of habitat protection and economic impact and reached a conclusion that protected habitat in Small Eastern Maine only. The "rational connection between the facts found and the choice made" is evident. See State Farm, 463 U.S. at 43, 103 S.Ct. 2856.

Plaintiff offers three retorts to this conclusion. First, it notes that the record is rife with concessions that the adverse economic impacts of closing additional areas are not particularly substantial. See, e.g., EFH 6356 (noting that closure in Machias and Large Eastern Maine "has a relatively small impact on the total revenues"); id. (noting that short-term impacts are "expected to be slightly negative"). Making a judgment about the level of economic impact that justifies excluding a closure, however, is beyond this Court's role. "[T]he proper function of the court is not to weigh evidence anew," NRDC, 71 F.Supp.3d at 61, and it is similarly "forbidden from substituting [its] judgment for that of the agency." U.S. Telecom Ass'n v. FCC, 825 F.3d 674, 697 (D.C. Cir. 2016) (citation omitted). The weighing of relevant factors is a judgment left to the Agency. That CLF would have reached a different conclusion is of little moment under this standard of review.

Second, Plaintiff points out that a draft Environmental Impact Statement concluded that both Alternatives 2 and 3 - which would have closed far more ocean habitat to fishing - could "likely be considered practicable." EFH 4177. This early finding gives the Court some pause. For although the Agency is imbued with significant discretion, that delegation largely lies within the statutory language to limit actions to those "practicable." An Agency's conclusion that an action is practicable seems to be the conclusion of a discretionary inquiry, rather than one factor to be weighed in that process. It seems that the Agency would need to provide a compelling reason to discard an alternative that was both practicable and had a measurably positive effect on essential fish habitat, provided that the habitat was subject to the adverse effects of fishing.

Ultimately, however, the document's draft status dissuades the Court from placing much weight on it. Absent this document, the Court would uphold the Service's action in this sub-region for the reasons already explained. The inclusion of the draft does not upset this decision. That the record shows some early reticence is of little significance. The Council, certainly, is not bound to the conclusions it reaches in the draft document, which was prepared well before the Council selected its preferred alternatives. The Final EIS, which like the draft was prepared by the Council in cooperation with the Service, supersedes the earlier document. It is thus the reasoning and conclusions in the final document that serve as the operative portion of the record in this regard.

As a final retort, CLF takes issue with the fact that there is no explicit practicability finding in any of the final documents justifying the Council's decision and the Service's approval of that decision. The Court's search for any law imposing this procedural requirement, however, comes up empty. The Service need only articulate a reason for its decision based on relevant factors and grounded in the facts found in the record. This it has done. Similarly, CLF's repeated assertions that it thinks the unchosen alternatives are practicable does not persuade the Court. It is the Service's judgment that matters in this respect, not Plaintiff's.

b. Central Gulf of Maine

Next up is the Central Gulf of Maine, represented in Figure 2. Unlike its eastern neighbor, parts of this area received habitat protection prior to this Amendment. With some exceptions, the Habitat Amendment kept in place the prior regime, but altered protection in a couple of areas and modified the boundaries in another. CLF's challenge to this region is twofold. In this Amendment, the Council maintained one region - Cashes Ledge - as a groundfish closure, a protective measure that diverges in some respects from the habitat closures that define the other areas. Not re-designating this area as a habitat closure, CLF says, was arbitrary and capricious. See Pl. Mot. at 34-35. Similar to the Eastern Gulf, it also believes that an additional area - here, Platts Bank - warranted closure. Id. at 35.

Figure 2: Central Gulf of Maine Alternatives i. Cashes Ledge Groundfish Closure Area

Some background may help to set the stage. Much of the debate turns on a series of closures surrounding Cashes Ledge, which lies almost due south of the Toothaker Ridge. In 2002, in response to a declining Atlantic cod population - a species within the groundfish fishery - the Service closed a large area surrounding Cashes Ledge to gear capable of catching groundfish. See EFH 7170. In this Amendment process, the Council considered doing away with this closure, which would have opened up much of these waters to such fishing. See EFH 6237. Although the Council ultimately opted against this tack, CLF says it should have gone a step further and re-designated the area encompassed within the groundfish closure as a habitat-management area. These two types of closures differ some in purpose and application and the latter, Plaintiff says, could be more protective. The Court now dives into these waters.

Reduced to its bones, CLF suggests that the administrative record required the Council to have designated the entire Cashes Ledge as a habitat-management area, instead of merely maintaining it as a groundfish closure. The building blocks for this argument appear to be as follows. Plaintiff contends that the Council analyzed the area's habitat value but then, in discussing the manner to protect that habitat, pulled a fast one. See Pl. Mot. at 17, 34. The Council, it says, "assumed the whole area would be protected as a habitat-management area and closed indefinitely," when in fact the approved measure was merely a groundfish closure, which, unlike a habitat closure, is subject to reopening when the stock of the relevant fish population - here, Atlantic cod - sufficiently rebuilds. Id. at 34; see also id. at 19. Without further explanation, CLF does not think that the Council has provided a reasoned basis why the groundfish closure provides enough protection to the underlying habitat. See Pl. Opp. & Reply at 6. Therefore, Plaintiff says, the Service's decision to maintain a groundfish closure is unsupported by the record. Id. at 7.

The Court reads the record differently. To begin with, to the degree CLF means to imply that the Council or the Service operated under a misconception about the effects of a groundfish closure, the record flatly contradicts this claim. In the federal-register discussion of the Council's deliberations, the Service explicitly delineated the differences between the two types of closures. See 83 Fed. Reg. at 15253. Nor is there anything in the record to indicate that the Council - the expert body charged with recommending fishing restrictions - misunderstood the effect of a groundfish closure. See, e.g., EFH 6235 (discussing the groundfish closure).

The question then becomes whether the Council's decision to retain a groundfish closure finds support in the record. Some context helps here regarding the daylight between a habitat closure and a groundfish closure. In essence, these two measures are different sides of the same coin. By restricting fishing gears capable of catching groundfish, a groundfish closure seeks to protect those species directly by limiting their exposure to fishers, thus boosting their productivity and ensuring a more sustainable population. See Conservation Law Found., 37 F.Supp.3d at 240 ("Closed areas 'protect[ ] a segment of the [fish] stock' and also 'specifically enhance' those 'ecosystem and stock characteristics [that] affect groundfish productivity.' "); 82 Fed. Reg. at 46750 ("These goals are focused on enhancing groundfish productivity and maximizing the societal net benefits from groundfish."); Pl. Mot. at 13 n.4 ("A groundfish mortality closure is an area that has been closed to fishing boats or gear capable of catching a particular species for the purpose of reducing the total catch of that species by the fleet.").

The immediate purpose of a habitat closure, on the other hand, is the protection of vulnerable habitat. But the reason for this protection brings this analysis full circle. As the Council put it, the "underlying premise" is that "habitats [are] linked to higher survival and/or growth rates of juvenile fish." EFH 7808. Protecting such habitats thus can boost "stock productivity" of aquatic populations. See EFH 7864. This should sound familiar. Importantly, there is often significant - and sometimes complete - overlap between gears capable of catching groundfish and the mobile bottom-tending gears often prohibited in habitat closures. In this case, the difference between a groundfish closure and a habitat closure - i.e. , that protection of habitat is not the primary goal of a groundfish closure - is largely academic. See Pl. Mot. at 13 n.4 (noting that a groundfish closure "is not closed for habitat protection purposes, although the benthic habitats do benefit from the absence of fishing gear damage"). In practice, this distinction between the two primary types of closures in the Cashes Ledge area reveals little difference, with one exception discussed below.

The Court, consequently, finds no prohibition on employing a management tool originally developed for another purpose to support a habitat goal. CLF's abstract contention that the area should be protected "for its habitat value" - as opposed to, presumably, groundfish-rebuilding purposes - finds no success here absent some concrete difference between the two closures. And, as CLF concedes, both restrict "virtually the same fishing gears" in the short term. See Pl. Opp. & Reply at 6. Nor does the Court see any other categorical reason that the Service cannot rely on the effect of a groundfish closure for its effect on habitat. See 83 Fed. Reg. at 15242 (noting habitat value of groundfish closure). While it is certainly true that some other types of fishing restrictions "do not necessarily" satisfy the aims of protecting habitat, see Oceana, 2005 WL 555416, at *33, there is almost complete overlap here.

Plaintiff does point to one key difference. It is temporal: the groundfish closure will be re-evaluated should cod populations improve and may be scrapped, while a habitat closure would not be subject to this process. For two reasons, the delta between this process and a hypothetical HMA designation is small. For one, habitat measures themselves are subject to periodic review - in this case, every ten years. See 50 C.F.R. § 600.815(a)(10) ; 83 Fed. Reg. at 15276. Second, as the Government points out, the Council will have to grapple with the effects on habitat of any decision to remove the groundfish closure in response to a rebuilt stock. See Def. Opp. & Mot. at 25. This is because that decision would come with an amendment to the groundfish FMP, which itself must comply with the EFH provision. See 16 U.S.C. § 1853(a). In approving the Habitat Amendment, the Service explicitly acknowledged this requirement. If the "Council [were to] decide in the future to remove the fishing restrictions in response to the full recovery of Gulf of Maine cod," the Service said, it "would need to consider how the changes minimize the adverse effects of fishing on EFH to comply with the Magnuson-Stevens Act." 83 Fed. Reg. at 15253.

If that is all true, Plaintiff retorts, and the existing groundfish closure provides sufficient ancillary habitat protection, then how can the Council's action regarding Fippennies Ledge be explained? See Pl. Opp. & Reply at 7, 10. Some brief explanation may help to place this question in context. The Habitat Amendment established a new habitat-management area - Fippenies Ledge HMA - which the Council closed to all mobile bottom-tending gear. See 83 Fed. Reg. at 15242. This HMA, however, lies wholly within the larger groundfish closure. See EFH 7813. CLF's point thus appears to be that, if a groundfish closure sufficed to protect the rest of the habitat in the area as the Government contends, then surely the same would be true of Fippennies Ledge, rendering the Council's action redundant. See Pl. Opp. & Reply at 7, 10. The Government has an obvious response: should the Council later remove the groundfish restriction, then Fippennies Ledge, home to especially vulnerable habitat, would continue to warrant protection. See Def. Opp. & Mot. at 25-26.

But, Plaintiff rejoins, does this same theory not apply to the rest of the closure? See Pl. Opp. & Reply at 7, 10. Asked another way, if the Council thinks the whole area warrants protection now, would it not still warrant protection if the cod population rebuilds? This argument falters in its premise and logic. For one, it is not clear that the Council ever concluded that the level of protection offered by the closure was necessary for EFH minimization. The Service read the Council's decision as concluding that it needed to keep the closure for groundfish purposes, and the effect on EFH protection, although welcome, was mostly a bonus. See 83 Fed. Reg. at 15242 (noting that although groundfish closure maintained to "support[ ] the goals and objectives of improving groundfish productivity," it "will also ensure that a more diverse array of bottom habitats that support a greater variety of species remain protected"). The Court sees nothing irrational in this reading.

Further, the record is rife with reasons that the Fippennies Ledge HMA may warrant a higher level of protection than the rest of the seabed in the groundfish closure. The key difference between the two closures, readers will remember, is that the groundfish closure's protection may be re-evaluated earlier than that for Fippennies Ledge - i.e. , if cod populations bounce back before the Council reviews HMA designations. A varying level of habitat vulnerability between the two areas would explain this disparate treatment. The record so provides. While the management areas in the region consist of "higher vulnerability" substrate, the rest of the Cashes Ledge Groundfish Closure Area is an exception. See EFH 6222. It is characterized by a "mix of shallow coarse sediment ... around a central mud basin," which results in lower habitat vulnerability. Id. Conversely, the ledge and bank features - those subject to the current HMAs - are "among the most highly vulnerable in the sub-region." EFH 6235. Given the differences in habitat vulnerability pointed out by the Council, the Court concludes that the administrative record supports the Service's decision.

ii. Platts Bank

Cruising northwest from Cashes Ledge, the Court next arrives at the dispute concerning Platts Bank. This one is reminiscent of earlier challenges discussed. The Council rejected a habitat closure in Platts Bank based largely on economic impacts on fishing communities, and the Service approved this move. Because Plaintiff offers no contention that it considered an improper factor - or, more accurately, no contention unresolved by the Court's conclusion about what the MSA requires - the nature of judicial review largely limits CLF, once again, to contending that the record cannot support the conclusion. On this count, it again falls short. The Court will run through the Agency's reasoning before addressing any lingering rejoinders.

In approving the Council's decision not to implement a closure in Platts Bank, the Service relied on its "concern regarding the displacement of current fishing and the economic impact to a sub-set of the fleet." See 83 Fed. Reg. at 15260. CLF's challenge is straightforward. It contends that this determination about the adverse economic impacts is unsupported by the record. As evidence, it maintains that the "actual practicability analysis" concluded that the economic impact on fishers "if those Platts Bank areas were closed would be 'relatively marginal/negligible' " and might even "be beneficial to fishers" in the short term. See Pl. Mot. at 35 (citing EFH 6371, 7840).

Plaintiff misreads the record. The reference to "relatively marginal/negligible" harms, as well as the benefit to fishers, does not refer to the effect of closing Platts Bank alone. As noted earlier, the Council combined various permutations of new or modified closures in formal alternatives, for which it then conducted a comparative analysis. Here, the reference is to the full suite of changes embodied by one of these alternatives - Alternative 3 - which also consists of modifying the boundaries on the Jeffreys Bank and Cashes Ledge habitat areas, designating new management areas on Ammen Rock and Fippennies Ledge, and, importantly, doing away with Cashes Ledge groundfish closure. See EFH 6370-71. Given that this Alternative would open significant square mileage of ocean to fishing, the conclusion that the Alternative in total might have some economic benefit is hardly surprising. See EFH 6239.

The analysis unique to Platts Bank, conversely, directly supports the Service's conclusion. In 2013, one of the Council's teams reported that scallop fishing was occurring on Platts Bank. See EFH 6360. After further investigation, it discovered that a small number of individuals were responsible for a large portion of the scallop dredging in the area. Specifically, five individuals accounted for 90% of the revenue and 65% of the trips to the region. Id. The sum of the revenue potentially displaced by the closure was significant to those fishers: scallop fishing in the Platts Bank region accounted for nearly 40% of an average fishing trip's revenue. See EFH 6370. From these numbers, the Council determined that closing Platts Bank would "have a large impact on fishing vessels from the midcoast Maine area." EFH 6371-72. "These vessels," the Council concluded, "are highly dependent on groundfish in these areas." See EFH 6372. The Service's view that the Council's decision rested on the adverse "economic impact to a sub-set of the fleet" is thus amply supported by the administrative record. See EFH 55745.

Not yet content, CLF in its Reply brief returns to some of the same arguments the Court found unpersuasive in the earlier discussion of management measures taken in the Eastern Gulf of Maine. It reiterates its position that because the Council determined that the full Alternative - which, again, includes eliminating the groundfish closure and a number of other changes - would not result in significant economic hardship, the Council was bound to determine that the option was practicable and then bound to implement it. Again, this misses the distinction between the impact of the full Alternative 3 and the impact of Platts Bank alone. Even setting this point to one side, CLF still comes up empty. As the Court has already explained, CLF's line of reasoning both confuses the MSA's mandate and usurps the Agency's role in balancing complex factors. Finally, CLF also points to the draft document in which the Council tentatively concluded that the full Alternative "appears to be moderately practicable." EFH 4178; see also Pl. Opp. & Reply at 10. For the reasons the Court rejected a similar argument earlier, it finds it no more persuasive this time around. It also notes that even if the Agency concluded that it would be practicable to implement the full suite of options embodied by that Alternative, it does not necessarily follow that the same conclusion applies to closing Platts Bank alone - i.e. , without also opening up other areas to fishing simultaneously.

In sum, the Agency's line of reasoning is apparent. It is reasoning with which Plaintiff may not agree, but that disagreement does not render it irrational. See State Farm, 463 U.S. at 43, 103 S.Ct. 2856 (holding that agency is required only to "articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made").

c. Western Gulf of Maine

This expedition through the waters of the Gulf of Maine is nearly complete. The final leg of the Court's trip takes it to the Western Gulf of Maine, an area that lies in the broad swath of water south of Portland and east of Boston and is represented in Figure 3. The Service's approval of two specific changes serves as the entrée for the Court's discussion of this region. First up are two overlapping management areas called, uninventively, the Western Gulf of Maine Habitat Closure Area and the Western Gulf of Maine Groundfish Closure Area. Prior to this Amendment, the northern, western, and southern boundaries of these two areas overlapped, but the eastern boundary of the groundfish closure extended some miles beyond that of the habitat closure. See EFH 7814. The Habitat Amendment modified the former to align with the latter - i.e. , moved westward the groundfish closure's eastward boundary, thus reducing by roughly 25% the area covered and opening up those waters to fishing. See 83 Fed. Reg. at 15246. Plaintiff, understandably, is not a fan of this action. The Council also considered but rejected establishing a new management area called the Bigelow Reserve closer to the coast. CLF believes that its failure to do so was a mistake. The Court takes each contention in turn.

Figure 3: Western Gulf of Maine Alternatives i. Groundfish Closure Area

Start with the change to the Western Gulf of Maine Groundfish Closure Area. The Service approved this decision because the "bottom habitats just outside the eastern boundary of the current groundfish closure are primarily deeper, low vulnerability mud habitats." 83 Fed. Reg. at 15253. Allowing groundfish-fleet access into these "productive fishing grounds" would thus have "approximately the same level" of impact on groundfish resources, but in a "less costly, more practicable way." Id. Plaintiff's attack here is straightforward and reminiscent of its prior arguments. The Service's conclusion, it says, is not supported by the administrative record. To vet this claim, the Court first runs through the Agency's analysis before once again diving into the record's cavernous waters.

In determining that the changes to the groundfish closure complied with the MSA's directive, the Service weighed both the habitat value of protecting the seabed and economic objectives. Compared with the seabed that remained protected, the five-nautical-mile-wide stretch opened in the Amendment consists of "primarily deeper, low vulnerability mud habitats." Id.; see also id. at 15246 ("[T]he area remaining closed has more vulnerable habitat than the area being opened."). This habitat variation meant that, even after opening up this swath to fishing, the smaller closure would deliver "approximately the same level" of protection, see id. at 15253, "albeit slightly less beneficial than the status quo." Id. at 15246. Turning to the other side of the scale, the Service concluded that the Amendment to the closure provided some economic benefits to fishers. "Allowing the groundfish fleet into [these] productive fishing grounds," it said, would be "less costly." Id. at 15253. Opening up these waters, while retaining the full habitat closure, the Service thus concluded, would constitute a "more practicable way" to protect against the adverse effects of fishing. Id. Along similar lines - although admittedly lacking in some of the nuance evident elsewhere in the Service's analysis - the Record of Decision summarizes the change as "maintain[ing] the same positive impacts on habitat and groundfish resources as the existing closures, with the same economic benefits." EFH 8919.

CLF's contention is that the record shows that the larger area has superior habitat benefits, while resulting in similar economic consequences. See Pl. Mot. at 36. From this premise, it concludes that the only rational decision was for the Service to retain the full groundfish closure. Id. at 36-37. The Court has already rejected Plaintiff's weighing of the factors considered. This deficiency aside, the record is again CLF's foe on this front.

The Court's perusal of this tome finds fertile ground for the Service's determination. The Council, too, determined that the "eastern sliver" of the Western Gulf of Maine Closure Area consisted of less vulnerable habitat. See EFH 6254. Unlike the adjacent ledge and bank features to the west, this sliver is "relatively deep and muddy" and "likely less vulnerable to impact than nearby structured habitats," which remain protected. See EFH 6256. The trawl vulnerability and substrate maps generated by SASI's analysis of the substrate corroborate these determinations. See EFH 6246. As CLF points out, it does appear that this sliver contained one "shallow feature," an oceanic area with the seemingly incongruous name of Wildcat Knoll. See Pl. Opp. & Reply at 17 (citing EFH 6254); see also EFH 6257 (noting that Wildcat Knoll consists of gravel habitat). Even so, the Court does not think that the existence of one relatively small feature within the broader area so disturbs the Council's finding that the full area consists of less vulnerable habitat so as to render its decision irrational.

The same is true of the economic side of this equation. The preferred alternative, which would "[s]hift[ ] the boundary west by approximately five nautical miles[,] could reduce steam times by an hour or so per day" for the area's fishers. See EFH 6385. For reasons related to the cod-catch rate in the area, the Council also found that "there is some benefit to opening [these] areas ... to fishermen." EFH 6385. Although present, the Council - as the Service recognized - did not find the magnitude of these economic benefits overwhelming. Rather, they would "likely" fall somewhere along a spectrum from "small to negligible." Id.

With the decisions supported in the record, CLF next attacks the Service's calculus. It contends that keeping the full groundfish closure off limits was "practicable"; because that option would "produce[ ] superior beneficial EFH results," the Service was thus required to conclude that the Council's decision ran afoul of the MSA. See Pl. Opp. & Reply at 11. Once again, this mode of argument comes up empty, for reasons that have now been rehearsed seemingly ad infinitum in this Opinion. It is precisely the weighing of relevant factors that falls to the expertise of the Agency. This Court will not accept CLF's invitation to substitute its judgment. See U.S. Telecom Ass'n, 825 F.3d at 697.

To the degree CLF contends that the Service did conclude this option to be practicable based on the 2014 draft document, see Pl. Opp. & Reply at 11, the Court does not ascribe to it the weight Plaintiff urges for the reasons already mentioned.

That being said, the Court is not blind to the oddity of this situation. The Council undertook this Amendment process with the stated goal of minimizing to the extent practicable the adverse effects of fishing on habitat and then, in the Western Gulf of Maine, opted for an edit to existing management measures that reduced square mileage of waters closed to fishing. But, consistent with the Court's earlier analysis, it would have little difficulty upholding this suite of management closures had there been fewer or no pre-existing restrictions. And CLF has not provided, nor has the Court been able to independently draw up, any good reason why a different initial condition should change the discretion afforded to the Secretary in balancing the factors associated with a particular measure.

ii. Bigelow Bight

With that, the Court turns to the final challenge under the MSA: Bigelow Bight. This one need not be long. The Service approved the Council's recommendation to forgo this closure because of the economic impacts that would ensue. See 83 Fed. Reg. at 15253. CLF again says that the record does not support the result. The Court, nonetheless, has little problem finding the rational line between the facts found there and the Agency's action.

The Service offered the following rationale in approving the Council's determination: "NFMS agrees with the Council's determination that they would incur unacceptable costs to the industry, particularly the inshore groundfish fishery and are, therefore, impracticable." Id. Ample support exists in the record for this conclusion. The Council found that a "diverse, and relatively stable, assemblage of fishing gears" was used in the area. See EFH 6390. The consequences of closure would be broad ranging, as it would be felt "across all commercial gear and recreational fleet[s]," and "from Maine to Massachusetts." EFH 6392. More specifically, a restriction on mobile bottom-tending gear would affect over one million dollars in revenue, according to data collected over a three-year period. See EFH 6391. The harm would not be distributed equally. The shrimp fishery would likely be disproportionately