CONSERVATION LAW FOUNDATION, et al.,
Plaintiffs,

Civil No. 00 1718 GK

V.

NORMAN MINETA, et al.,
Defendants and

FISHERIES SURVIVAL FUND
Defendant/Intervenor.

FEDERAL DEFENDANTS' MEMORANDUM IN OPPOSITION TO  PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

LOIS J. SCHIFFER
Assistant Attorney General
U. S. Department of Justice

WILMA LEWIS
United States Attorney

LORI CARAMANIAN
GEOFFREY GARVER
U.S. Department of Justice
Environment and Natural Resources
 Division
General Litigation Section

OF COUNSEL:
Gene Martin
Julie Williams
Office of General Counsel
National Oceanic and Atmospheric Administration

August 2, 2000

INTRODUCTION

The federal defendants hereby oppose the motion of plaintiffs Conservation Law Foundation and American Oceans Project (collectively CLF) for preliminary injunction. By separate motion and supporting memorandum filed concurrently with this opposition memorandum, defendants seek prompt dismissal of the Complaint. For the reasons supporting the defendants' motion to dismiss, CLF has no chance of success on the merits of the plaintiffs challenge to the rules implementing Frameworks 12 and 13-the two final rules promulgated under the Magnuson-Stevens Fisheries Conservation and Management Act (Magnuson-Stevens Act) at issue in this case because the Court lacks jurisdiction of CLF's Complaint. Defendants incorporate by reference the arguments set forth in the Memorandum of Points and Authorities in Support of Federal Defendants' Motion to Dismiss.

Even if the Court had jurisdiction of the Complaint, the Magnuson-Stevens Act precludes the Court from ordering preliminary relief enjoining implementation of the challenged regulations pending review on the merits. The judicial review provisions of the Magnuson-Stevens Act clearly preclude such relief, even though plaintiffs challenge Frameworks 12 and 13 solely on the basis of alleged violations of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq. See 16 U.S.C. § 1855(f)(1)(A).
 

Further, even if the Court had authority to grant preliminary injunctive relief, CLF's motion should be denied. First, CLF's challenge to Frameworks 12 and 13 is not likely to succeed on the merits. Second, far from causing irreparable injury, the rules opening the scallop fisheries in the closed areas at issue here contain important conditions, which CLF fails to adequately acknowledge, that among other things limit the area to be opened to portions of the closed areas, limit by-catch of the non-scallop species of most concern yeowtail flounder), impose a sea scallop trip limit of 10,000 lbs. of meats per trip, require a premium on days-at-sea* (DAS) that are deducted from a vessel's annual day-at-sea allocation for trips in the closed areas, and limit the number of trips into the closed areas. Further, the rules shift the impacts of scallop fishing from diminished scallop areas that have been fished extensively during the closure of the areas at issue here, and, by making bigger scallops available for fishing in the closed areas, they allow the catch limits for the scallop fishery to be attained more quickly and with less extensive disturbance of the sea bottom. Accordingly, preliminary injunctive relief would be inappropriate even if it were authorized.

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*The DAS regime allocates to each scallop vessel the same number of DAS that can be fished in a fishing year. The number of DAS referred,40~ herein specifies DAS allocations for full-time vessels, which make up the majority of vessels fishing for scallops.

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Although CLF's lawsuit is cast solely as a NEPA challenge, the rules that CLF challenges were promulgated under the Magnuson-Stevens Act, and CLF intimates that the challenged rules either violate, or will lead to violations of, the Magnuson-Stevens Act as well. Accordingly, we summarize relevant provisions of all of these statutory authorities.

A. The Magnuson-Stevens Act

Under the Magnuson-Stevens Act, Congress delegated to the Secretary of Commerce "broad authority to manage and conserve coastal fisheries." Kramer v. Mosbacher, 878 F.2d 134, 135 (4" Cir. 1989). To assist the Secretary in carrying out specific management and conservation duties, the Act created independent regional fishery management councils, including the New England Fishery Management Council (Council) which is responsible for developing Fishery Management Plans (FMPs) for the sea scallop and groundfish fisheries. Id. A council's "principal task is to prepare fishery management plans ("FMPs") for its area, which must 'assess and specify the present and probable future condition of, and the maximum sustainable yield' of a fishery." Id. (quoting 16 U.S.C. §§ 1852, 1853). The Sustainable Fisheries Act of 1996 (SFA) amended the Magnuson Act, subsequently called the Magnuson-Stevens Act, to require, among other mandates, councils to rebuild overfished fisheries in no more than ten years and to identify essential fish habitat and mitigate harm to essential fish habitat to the extent practicable. 16 U.S.C. §§ 1853(a)(7)1854(e). The SFA also established new standards for determining optimum yield for overfished fisheries based on the need to attain maximum sustainable yield (MSY). 16 U.S.C. §1802(28).

All FMPs and implementing regulations must be consistent with the ten national standards for fishery conservation and management set out in Section 301 of the Magnuson-Stevens Act, 16 U.S.C. § 1851(a). Final implementing regulations, once promulgated by the Secretary, have the force and effect of law. 16 U.S.C. §§ 1854, 1855; see Alaska Factory Trawler Ass'n v. Baldridge, 831 F.2d 1456, 1464 (9" Cir. 1987).

All FMPs and FMP amendments developed by the Council include "framework" regulatory adjustment provisions to allow the councils and the National Marine Fisheries Service (NMFS) to respond to annual fluctuations in the status of managed stocks and to make periodic changes in certain fishing limitations (e.g., size limits, DAS limits, trip limits, area restrictions, etc.) in a timely manner. The types of measures that may be changed through the framework process are established in the FMPs under time-sensitive procedures set forth in the Magnuson-Stevens Act. See 16 U.S.C. § 1854. Essentially, the framework process allows NMFS to make timely mid-course corrections to carry out the objectives of the plan and amendments. Once established, the framework provisions authorize the councils and NMFS to change designated fish stock parameters and management measures under an FMP in accordance with the subject framework procedure. Frameworks 12 and 13 are framework adjustments that were promulgated in accordance with framework procedures established by the scallop FMP. See 50 CFR § 648.55.

B. The National Environmental Policy Act

The purpose and intent of NEPA is to focus the attention of the federal government and the public on a proposed action so that the consequences of the action can be studied before the action is implemented and potential negative environmental impacts can be avoided. 42 U.S.C. § 4321; 40 C.F.R. § 150 1. 1 (c); Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371 (1989). To that end, NEPA requires the preparation of an environmental impact statement (EIS) for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). NEPA mandates the procedures by which agencies must consider the environmental impacts of their actions, but does not dictate the substantive results. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Regulations promulgated by the Council on Environmental Quality (CEQ), 40 C.F.R. § § 15 00-1508, provide guidance in the application of NEPA, and they are entitled to substantial deference. Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989).

Not every federal action or proposal requires preparation of an EIS. Where the environmental impacts of an action are less than significant, an agency may comply with NEPA through preparation of an environmental assessment (EA) and a finding of no significant impact (FONSI). See 40 C.F.R. §§ 1501.3; 1501.4(c), (e); 1508.9. An EA provides sufficient evidence and analysis for determining whether an action has significant environmental impacts and includes "brief discussions of the need for the proposal, of alternatives . . ., [and] of the environmental impacts of the proposed action and alternatives..." 40 C.F4R. §1508.9. An EA can be "tiered" to an EIS for a broader program or plan, without the need for re-doing the broader analysis in the prior EIS. 40 C.F.R. §1502.20. The CEQ regulations provide criteria for determining the significance of environmental impacts. 40 CFR, § 1508.27.

Pursuant to the CEQ regulations, the National Oceanic and Atmospheric Administration (NOAA) has adopted procedures, applicable to NMFS, for implementing and complying with NEPA. See NAO 216-6, Environmental Review Procedures for Implementing the National Environmental Policy Act (Attached hereto as Exhibit 1). The NOAA NEPA procedures generally track the CEQ regulations regarding the requirements for EAs, and the criteria for determining significance. NAO 216-6 § 5.03. The procedures also generally track the CEQ regulations regarding the criteria for determining environmental significance. NAO 216-6 §6.01.

In addition, the NOAA procedures set forth specific guidance for determining the significance of fishery management actions, including criteria related to impacts on fishery resources and habitat. NAO 216-6 § 6.02. Many of these criteria are virtually identical to criteria for approving FMPs, amendments and framework adjustments. The NOAA procedures note that "EAs are the most common NEPA documents prepared for FMP amendments and regulatory actions." NAO 216-6 § 6.03(d)(1). Thus, unless NMFS is preparing a new FMP for a previously unregulated species or significant environmental impacts are reasonably expected, an EA/FONSI is appropriate for framework actions and other fisheries management actions. NAO 216-6 § 6.03(d)(2), (3).

iii. FACTUAL BACKGROUND

The plaintiffs paint a grossly misleading picture of the scallop fishing that is allowed under the two final rules that they challenge in this case. Both rules, which implement the underlying decisions in Frameworks 12 and 13, are intended to ease economic impacts on the scallop industry, while preventing harm to the environment. The rules are required to be conservation-positive, or at least conservation-neutral. In a sense, this challenge arises because NMFS and the Council, who jointly manage the areas at issue here, have successfully carried out their mission. There are an abundance of scallops in the three areas that NMFS decided to open. Those three areas, the Nantucket Lightship Area (NLA), Closed Area I and Closed Area 11, are located on the Georges Banks, an area of vital importance to many species and to those who earn a living fishing for scallops, monkfish, groundfish, such as yellowtail flounder, cod and haddock, and many other species.

CLF downplays the fact that the entire Georges Bank was intensively fished for scallop and groundfish until 1994, when NMFS took emergency action to close approximately 5 500 square miles of groundfish and scallop fisheries in the NLA, Closed Area I and Closed Area 11 in order to protect certain species of groundfish, primarily cod, haddock and yellowtail flounder. 59 Fed. Reg. 6392602 (Dec. 12, 1994). While these areas were very productive scallop fishing areas, they were also closed to scallop fishing because scallop dredges and nets are known to take groundfish, most notably yellowtail flounder, as incidental catch*.2 These areas were subsequently closed on a longterm basis through regulations implementing Framework Adjustment 9 to the Northeast Multispecies FMP**.

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*Incidental catch refers to catch of species that a vessel may not have been targeting during a fishing trip, but that is caught in the same net or dredge.

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**The Northeast Multispecies FMP is the conservation and management plan for 14 species of "groundfish" collectively referred to as "multispecies." Multispecies generally reside and are caught on or near the ocean bottom, hence the generic name of "groundfish." These species are n1anaged through a combination of measures including, DAS restrictions, landing limits, closed areas, gear restrictions and size limits. These management measures are designed to protect primarily three  species, cod, haddock and yellowtall flounder, along with halibut. The benefits that inure to these species benefit the other 10 multispecies.

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Amendment 7 also allowed NMFS to increase DAS, through framework adjustments, so long as the adjustments included conservation equivalent measures such as closing or restricting access to areas where scallops are found. Amend. 7 at 21-24. Thus, if NMFS determined that closing a scallop fishing area was equivalent to a specific reduction in DAS, it could increase the DAS allocation by that amount to balance out the fishing mortality reduction achieved by closing the area.

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*Amendment 7 established a similar day-at-sea allocation schedule for part-time and occasional limited access scallop vessels. Amend. 7 at 13.

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On October 7, 1998, the Council prepared and submitted to NMFS a set of amendments to existing FMP's, including the Multispecies and Scallop FMPs, to address the essential fish habitat (EFH) requirements of the SFA. NMFS approved the amendments on March 3,1999. Amendment 9 to the Scallop FMP and Amendment I I to the Northeast Multispecies FMP, among other things, identified essential fish habitat for*these fisheries, which included both open and closed areas on Georges Bank; described the effects of fishing gear on the EFH; established a Habitat Area of Particular Concern (HAPC) in the northern portion of Closed Area II; and determined that no' additional measures, other than those already in place, needed to be taken to mitigate impacts on the EFH. Amend. 9 to the Scallop FMP at 181 (attached hereto as Exhibit 3). While these amendments acknowledged that the closed areas in question provided some protection to EFH, they did not identify the habitat of the closed areas (other than the HAPC) as being any more important to the protection of EFH than other EFH outside the closed areas, which includes most of the current scallop fishing grounds.

Due to the significant growth of scallops in these closed areas and the initial success of the Scallop FMP, after reviewing data from an experimental scallop fishery in Closed Area 11, on June 15, 1999 NMFS implemented Framework Adjustment 11 to the Scallop FMP (concurrently with Framework Adjustment 29 to the Northeast Multispecies FMP*) to allow limited access to a portion of Closed Area 11 for the remainder of the 1999 calendar year. 64 Fed. Reg. 31144 (June 10, 1999). The primary intent of Framework I I was to allow scallopers to benefit from the significant biomass of scallops in Closed Area 11 by letting them catch a large amount of large scallops in a relatively short amount of time. Id. The Council also determined that opening a portion of Closed Area II to scallop fishing would result in no more fishing mortality than leaving it closed, and, in fact, could result in a decline in fishing mortality, and a shift of fishing effort from areas outside Closed Area 11 with fewer and smaller scallops to inside Closed Area 11 with more and larger scallops. Id. at 31145.

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*A framework adjustment to the Northeast Multispecies FMP was necessary because the area was closed pursuant to the Multispecies FMP, not the Scallop FMP.

On September, 1 1999, the council released its Scallop Fishery Management Plan Stock Assessment and Fishery Evaluation (SAFE) Report (attached hereto as Exhibit 4). The SAFE report updated the status of the scallop resource since implementation of Amendment 7 through analysis of 1998 and some 1999 data, taking into account, for the first time since 1994, the effect of closed areas on fishing mortality and rebuilding objectives. SAFE Report, Sec. 3.1'.1; 81. Based on this updated assessment, which indicated the continued good health and growth of the scallop resource, the Council and NMFS decided to partially reopen the three closed areas on a very limited basis to allow scallop fishing for 2000, and to increase the number of days at sea allowed for scallop fishing for 2000. The Council developed and submitted to NMFS Framework Adjustment 12 to increase the DAS from the scheduled 51 to 120, the same number of DAS allowed in 1999. The goal of Framework Adjustment 12 is to set the specifications for the annual DAS allocations to meet the mortality objectives in Amendment 7. FW 12, at 9. The increase in the DAS allocations were necessary to achieve optimum yield as defined in Amendment 7*, while not exceeding the annual mortality target, specified in the FMP. The fishing mortality target and the DAS allocation set forth in Framework Adjustment 12 is consistent with achieving optimum yield by allowing fishing at a level consistent with the Amendment 7 rebuilding objectives. FW 12, at 9; Amend. 7, at 4-17.

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*Optimum yield for overfished fisheries, such as the scallop fishery, is defined as the level of fishing "consistent with producing maximum sustainable yield (MSY)." 16 U.S.C. § 1 802(28)(C) MSY is defined as the "largest long-term catch or yield that can be taken from a stock or stock complex under prevailing ecological and environmental conditions." 50 C.F.R. § 600.3 1 0(c)(1)(i). Under Amendment 7, optimum yield for 2000 is the catch derived from fishing at the 2000 biomass level when fishing morality is equal to 0.34. Amend. 7 at 11.

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NMFS determined that the increase in DAS to 120 "will meet the 2000 fishing mortality target, as long as scallops in the closed areas remain protected or that access to the closed areas is conservation-neutral (i.e., does not increase fishing mortality)." FW 12, at 9. The conservation benefits derived from factoring in the large biomass of scallops in the closed areas obviates the need to take the drastic reductions in DAS called for by Amendment 7, which did not take the conservation benefits of those areas into account. See id. In fact, reducing DAS to 51 as called for by Amendment 7 was not only unnecessary, but it would not be consistent with achieving optimum yield as required by the Magnuson-Stevens Act because it would have forced scallop vessels to fish at a level of fishing significantly less than needed to achieve the long-term optimum yield for the fishery. Id. An EA and FONSI were completed in support of this framework, which NMFS approved and implemented on March 1, 2000. 65 Fed. Reg. 11478 (March 3, 2000).

Concurrently with the development of Framework 12, the Council developed Framework 13 (and the companion framework 34 to the Northeast Multispecies FMP necessary to open the closed areas) which would open portions of Closed Areas I and 11 and the NLA on a very limited basis for a part of the 2000 fishing year. The Council submitted the framework to NMFS on March 7, 2000, and NMFS approved and implemented all but one measure of the framework on June 15, 2000. 65 Fed. Reg. 3 7903 (June 1. 9, 2000). NMFS disapproved a measure that would have allowed general category scallop vessels access to the closed areas because it would have been too difficult to administer and enforce, particularly for purposes of monitoring a separate TAC for these vessels. Id. at 37906. Finally, in February, 2000, the Council also issued a Notice of Intent to prepare Amendment 10 to the Scallop FMP to develop a rotational-area-based management system and a Supplemental Environmental Impact Statement to analyze the impacts of management alternatives regarding such a system. 65 Fed. Reg. 5488 (February 4, 2000).

Like Framework 11, the purpose of Framework 13 is to allow the scallop fishery to benefit from the significant buildup of stock biomass since the areas were closed and to reduce fishing effort in other scallop areas where the stock is dominated by smaller scallops. Framework 13 (hereinafter FW 13), at 8 (Exhibit 2 to Plfs. Br.). Shifting fishing effort from the open areas with smaller scallops to the closed areas with bigger scallops reduces the overall number of scallops caught, thereby reducing overall fishing mortality. Id. It also potentially benefits EFH by drastically reducing the frequency and intensity of scallop gear on the bottom in closed areas compared to open areas. Id. at 127. For a set amount of scallops, Framework 13 reduces the total resource-wide bottom time needed for scallop harvesting by 22%. Id.

Framework 13 allows controlled access by scallop dredge vessels to Closed Area 11 from June 15 - August 14, 2000 (limited to 3 trips per vessel and 10,000 lbs. of scallops per trip) Nantucket Lightship from August 15 - September 30, 2000 (limited to trip per vessel and 10,000 lbs. of scallops per trip), and Closed Area I from October I - December 31, 2000 (limited to 2 trips per vessel and 10,000 lbs. of scallops per trip). NMFS deliberately chose the timing, size and location of areas to be opened to mitigate any impact to essential fish habitat and reduce likelihood of catching yellowtail flounder and to some degree barndoor skate. FW 13, at 19-23, 33-39. Staggering the openings of the three areas also makes enforcement easier. Id. at 35.

Framework 13 continued the requirement of a mandatory deduction of 10 DAS from each vessel's DAS allocation for each trip into a closed area, regardless of the length of the trip. Id. at 3033. The effect of this measure is to reduce available time for scallop vessels to fish outside the closed areas. Id. at 45. This trade-off between DAS fished inside the closed area and outside the closed area compensates for any increased mortality in the closed areas, and is expected to have significant benefits for essential fish habitat as discussed above. Similar to Framework 11, Framework 13 requires extensive observer coverage to monitor the yellowtail flounder incidental catch, (which requires a 2% set aside of the scallop TAQ, and a TAC for yellowtail flounder which, if reached, results in the closing of the relevant area. Id. at 30-33; 56-57. Finally, 1% of the total scallop TAC was set aside to fund scallop research trips. Id. All of these measures severely restrict access to the closed areas and mitigate any potential impact on the scallop stock, the yellowtail flounder stock, and essential fish habitat.

IV. ARGUMENT

A. Magnuson-Stevens Act Precludes Preliminary Injunctive Relief

Defendants demonstrate in the Memorandum of Points and Authorities in Support of Federal Defendants' Motion to Dismiss, filed concurrently with this memorandum, that the Complaint in this case is time-barred under the Magnuson-Stevens Act's exclusive judicial review provisions. However, even if the Court had jurisdiction, the Court could not issue a preliminary injunction. In addition to requiring that petitions for judicial review of Magnuson-Stevens Act regulations such as the rules implementing Frameworks 12 and 13 be filed within 30 days of their promulgation, the Magnuson-Stevens Act explicitly precludes preliminary injunctive relief in cases challenging such regulations. See 16 U.S.C. § 1855(f). Plaintiffs cannot avoid this proscription on injunctive relief by raising only a NEPA challenge to the rules.

1. The Magnuson-Stevens Act expressly disallows preliminary injunctions

Although judicial review of regulations promulgated under the Magnuson-Stevens Act is governed by certain provisions of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq., the Magnuson-Stevens Act specifically exempts Magnuson-Stevens Act regulations like the Framework 12 and 13 rules from the preliminary relief provisions of the APA. 16 U.S.C. § 1855(f)(1). The preliminary relief provision of the APA grants courts the authority to "issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings." 5 U.S.C. §705. The Judicial review provisions of the Magnuson-Stevens Act, 16 U.S.C. 1855(f)(1)(A), expressly states that "section 705 of [Title 5] is not applicable" to review of Magnuson-Stevens Act regulations. See Kramer v. Mosbacher, 878 F.2d 134, 137 (41h Cir. 1989) ("The exclusion of Section 705 powers prevents a reviewing court from issuing the sort of preliminary injunction granted by the district court"); Connecticut v. Daley, 53 F. Supp.2d 147, (D. Conn. 1999), affd, 204 F.3d 413 (2d Cir. 2000).

2. The bar in 16 U.S.C. § 1855(f) on preliminary injunctions applies to NEPA challenges to Magnuson-Stevens Act regulations

The plaintiffs do not avoid the prohibition of preliminary injunctions in 16 U.S.C. § 1855(f)(1) by raising only a NEPA challenge. NEPA does not provide an independent basis for judicial review of agency action. Because Congress did not create a private right of action under NEPA, litigants seeking to challenge agency action for violations of NEPA must normally rest their claim for judicial review on the APA. See Public Citizen v. U.S. Trade Representative, 5 F.3d 549, 5 5 1 (D. C. Cir. 1993), cert. denied, 5 10 U. S. 1041 (1994). However, where the agency action for which review is sought is a regulation promulgated by the Secretary under the Magnuson-Stevens Act, the Magnuson-Stevens Act which imports some of thejudicial review provisions of the APA but expressly excludes section 705 supplants inconsistent provisions of the APA and provides the exclusive avenue for judicial review.

Nothing in section 1855(f) states or implies that its application depends on the nature of the judicial review requested, particularly where the relief sought is an order declaring unlawful and setting aside Magnuson-Stevens Act regulations. The APA provisions that the Magnuson-Stevens Act incorporates include provisions authorizing the reviewing court to

hold unlawful and set aside agency action, findings, or conclusions found to be - (A) arbitrary, capricious, and 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 limitation, or short of statutory right; [or] (D) without observance of procedures required by law.

Allowing CLF to seek review of its NEPA challenge to Frameworks 12 and 13 directly under the APA, including section 705, instead of under 16 U.S.C. § 1855(f), would contravene Congress's clear intent to preclude preliminary injunctions of regulations promulgated under the MagnusonStevens Act until the regulations are reviewed on the merits. See 1976 U.S. Code Cong. & Admin. News, 593, 678 (regulations are subject to review "except that the reviewing court is without authority to enjoin the implementation of those regulations pending the judicial review"). Indeed, allowing NEPA to lift the Magnuson-Stevens Act's ban on preliminary reliefwould essentially result in the repeal of the Magnuson-Stevens Act provision in cases involving counts under both NEPA and the Magnuson-Stevens Act. Nothing in the Magnuson-Stevens Act, NEPA or the APA supports finding such an implied repeal, which is highly disfavored. See TVA v. Hill, 437 U.S. 153, 189 (1978). By contrast, reviewing CLF's NEPA claim under 16 U.S.C. § 1855(f) avoids any statutory conflict or implied repeal.

A recent case in the District of Massachusetts, A.M.L. International Inc., v. Daley, Civil Action No. 00-10241-EFH, Memorandum and Order, slip op. (D. Mass. May 18, 2000) (attached as Exhibit 5), strongly supports rejection of CLF's reliance on NEPA to seek a preliminary injunction. In that case, the court held that the plaintiff could not avoid the prohibition on preliminary injunctive relief under 16 U.S.C. § 1855(f) by basing the request for relief on the Regulatory Flexibility Act. The court explained:

The Regulatory Flexibility Act. . . is not a hook which can remove the prohibitions of the Magnuson-Stevens Act. The statutory interpretation proposed by the plaintiffs would essentially muddy the clear language of the Magnuson-Stevens Act in cases where violations of the Regulatory Flexibility Act are also asserted. Such an interpretation runs directly contrary to the intent of Congress - that this Court may not issue a preliminary injunction to prevent the enforcement of a rule promulgated pursuant to the Magnuson-Stevens Act pending a final review on the merits.

*While the Magnuson-Stevens Act precludes preliminary injunctive relief, it includes a specific procedure for expedited judicial review. Under 16 U.S.C. § 1855(f)(3)(A), the United States must file a response to a petition for review, along with the administrative record, no later than 45 days after the date the Secretary of Commerce is served with that petition. 16 U.S.C. § 1855(f)(3)(B). The Magnuson-Stevens Act also provides that the petitioner can seek expedited review. 16 U.S.C. § 1855(f)(4).

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  I. Standards of review

  a. Standard for preliminary injunction

To obtain the "extraordinary relief of a preliminary injunction" Plaintiffs must satisfy four strict requirements. Fund for Animals v. Frizzell, 530 F.2d 982, 986 (D.C. Cir. 1975). Plaintiffs must show (1) that they have a substantial likelihood of success on the merits of this litigation; (2) that there is a substantial threat that they will suffer irreparable injury if the injunction is not granted; (3) that the threatened irreparable injury to them outweighs the threatened harin that the injunction may do to defendants or third parties; and (4) that the granting of a preliminary injunction is in the public interest. Washington Metropolitan Area Transit Comm'n v. Holidgy Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977). Finally, the plaintiffs have the burden of proving the need for injunctive relief by a clear showing that the extraordinary and drastic remedy of a preliminary injunction is needed; defendants bear no burden to defeat the motion. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 442-43 (1974).

The traditional equitable rules for injunctive relief are not altered in a case that invokes an environmental statute, and the Supreme Court has cautioned the lower courts against assuming that a federal judge is "mechanically obligated" to grant an injunction for every violation of law. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 323 (1982). There is no presumption of irreparable harm in environmental cases, even if a likely violation is found. Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 542 (1987); Sierra Club v. Watkins, 808 F. Supp. 852, 875 (D.D.C. 1991). Thus, a procedural injury resulting from a failure to comply with NEPA cannot alone support a finding of irreparable harm. See Fund for Animals v. Clark, 27 F. Supp.2d 8, 14 (D.D.C. 1998). Plaintiffs must also demonstrate that they would suffer other, concrete injuries. Id. at 14. Further, even a showing of irreparable injury does not mandate relief. The movant's burden is particularly heavy where, as here, the interim relief sought is to restrain a governmental program intended to serve the public interest. Yakus v. United States, 321 U.S. 414,440 (1944). A plaintiff s delay in seeking injunctive relief also undermines a claim of irreparable injury. Kansas Health Care Ass'n, Inc. v. Kansas Dept. of Social & Rehab. Servs., 31 F.3d 1536, 1543-44 (10th Cir. 1994).

b. Standard for judicial review of an EA/FONS1

Pursuant to 16U.S.C. § 1855(f), the Court must uphold Frameworks 12 and 13 against CLF's NEPA challenge unless the Court finds that NMFS's NEPA analysis in support of the rules was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In applying this standard, "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Campv.Pitts,411 U.S. 138,142 (1973); Coalition on Sensible Transportation, Inc. (COST) v. Dole, 826 F.2d 60, 72 (D.C. Cir. 1987). The scope of the court's review under the arbitrary and capricious standard is narrow. Puerto Rico Higher Education Assistance Co1p. v. Rile , 10 F.3d 847, 850 (D.C. Cir. 1993). The Court must ensure that the NMFS examined the relevant data and articulated a satisfactory explanation for its decision but may not substitute its judgment for that of the NMFS. Id.

The plaintiff bears the burden of showing that the federal defendants acted in a manner contrary to the APA. San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Comm'n, 789 F.2d 26, 37 (D.C. Cir.), cert. denied, 479 U.S. 923 (1986). Whether NMFS properly exercised its discretion does not "rais[e] issues of fact," but "primarily raise[s] issues of law." James Madison Limited v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996), cert. denied, 519 U.S. 1077 (1997). The ultimate legal issue is whether the agency articulated a rational connection between the facts found and the choice made. Id.

Additional considerations attach when reviewing under the APA whether an agency action complies with NEPA. As the D.C. Circuit has explained:

The NEPA process involves an almost endless series of judgment calls.... It is of course always possible to explore a subject more thoroughly. The line-drawing decisions necessitated by this fact of life are vested in the agencies, not the courts. The latters' "role ... is simply to ensure that the agency has adequately considered and disclosed the environmental impacts of its actions and that its decision is not arbitrary and capricious."

First, the agency must have accurately identified the relevant environmental concerns. Second, once the agency has identified the problem it must have taken a "hard look" at the problem in preparing the EA. Third, if a finding of no significant impacts is made, the agency must be able to make a convincing case for its finding. Last, if the agency does find an impact of true significance, preparation of an EIS can be avoided only if the agency finds that changes or safeguards in the project sufficiently reduce the impact to a minimum.

2. Plaintiffs are not likely to succeed on the merits

  a. The Court lacks jurisdiction

For the reasons supporting the defendants' motion to dismiss, CLF has no chance of success on the merits of the plaintiffs challenge to Frameworks 12 and 13 because the Court lacks jurisdiction of CLF's Complaint. As noted above, defendants incorporate by reference the arguments set forth in the Memorandum of Points and Authorities in Support of Federal Defendants' Motion to Dismiss.

  b. The plaintiffs improperly rely on expert declarations

Plaintiffs improperly rely on the declarations of Les Watling and Ransom Myers to support the merits of their NEPA claims.* Although NEPA plaintiffs may in some circumstances be "entitled to introduce evidence tending to show significant impacts or realistic alternatives that the responsible officials ignored," Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d at 72, that entitlement is not open-ended. The Supreme Court has made clear that

while it is true that NEPA places upon an agency the obligation to consider every aspect of the environmental impact of a proposed action, it is still incumbent upon intervenors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors' position and contentions.

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*The defendants do not object to CLF's reliance on these declarations in regard to their burden to demonstrate irreparable injury.

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Here, plaintiffs participated in the administrative process leading to the promulgation of the rules implementing Frameworks 12 and 13, and on January 14, 2000 they provided nine pages of comments on the proposed adjustments. See FW 13, at 168. They now rely extensively on the Watling and Myers declarations not only to show harm, but to bolster their claim that the rules implementing Frameworks 12 and 13 violate NEPA. See Watling Decl., at IT 4 (Exhibit 4 to Plfs. Br.), 11 -25; Myers Decl., at TJ 5-6, 11-42 (Exhibit 5 to Plfs. Br.); Plfs. Br. at 14-16, 18-22, 30-32, 34-36. Moreover, both declarations are replete with references to information that the declarants claim was available to NMFS for examining the impacts of Frameworks 12 and 13. The plaintiffs have provided no justification for not having brought this information to the agency's attention during the development and NEPA analysis of Frameworks 12 and 13. See, e.g., Watling Decl., at TT 4-10. 21, 25, Myers Decl., at TT 15-16, 18, 20-22, 42.

The declarations are also filled with argument and overstatements for which expert declarations are not necessary, and which call into question their reliability. For example, paragraphs 11 to 19 of the Watling declaration contain conclusory arguments regarding the challenged EAs, including an observation that the NEPA document for Amendment 9 was an EA, not an EIS. CLF does not need an expert declaration to raise this negligible oversight. As another example, Dr. Watling takes issue with the statement that groundfish stocks are recovering on Georges Bank, arguing conclusorily that some stocks are many years away from recovery. Watling Decl., ~ 26. That the full recovery may not be imminent does not mean that the stocks are not recovering. Still later, both Dr. Watling and Dr. Myers complain that scallop fishing "will remove any possibility of having unfished areas available as controls for gear impact studies in the Georges Bank region." Id. at ~ 27B; see also Myers Decl., at J~ 45-51 This contention, which is obviously overstated, ignores the fact that only portions of Closed Areas I and the NLA will be opened to scallop fishing, leaving large areas unfished for potential use in future research, and that two fisheries remain completely closed in the Mid-Atlantic region. Moreover, these overstatements call into question the probity of the declarations. Cf. Animal Defense Fund, Inc. v. Glickman, 943 F. Supp. 44, 57 (D.D.C. 1996) (extra-record evidence on post-promulgation events in a rule challenge "must have some alternative indicia of reliability before it will be considered"), aff d in part on other grounds, 154 F.3d 426 (D.C. Cir. 1998), cert. denied, 526 U.S. 1064 (1999), and rev'd in part on other grounds, 204 F.3d 229 (D.C. Cir. 2000).

In short, the Watling and Myers declarations raise matters that either should have been presented to NMFS during the agency's consideration, do not need to be raised by way of expert declarations, or are argumentative or overstated. Accordingly, if the Court reaches CLF's motion for preliminary injunction, the Court should ignore these declarations in considering the likelihood of success on the merits.

  c. NMFS Has Taken the Requisite "Hard Look" at the Environmental  Impacts of the Frameworks 12 and 13, and Properly Determined That   It Did Not Need to Prepare Environmental Impact Statements

The record reflects that NMFS took a hard look at the questions of whether the number of DAS for scallop vessels should be increased and the closed areas partially reopened; identified the appropriate environmental concerns such as impacts on other species and on the scallop resource; and made a convincing case that the impacts were not significant, particularly given the mitigation measures that the Frameworks establish. Plaintiffs' challenge to the EAs for Framework Adjustments 12 and 13 fails to account for the mountain of support for the actions that is contained both in the Frameworks, and in other supporting documents like Amendment 7 and the 1999 SAFE Report, which plaintiffs do not even mention. Instead, their argument relies heavily on their conclusory allegations that the EAs do not adequately analyze the effects of the action on EFH; the effects of the action on nursery habitat for groundfish; data concerning bycatch resulting from the action; the effect of the action on ovdrfishing of sea scallops; the effect of the action on opportunities for scientific research; the ability to enforce fishing restrictions in closed areas; and whether the action complies with the requirements of the SFA. Plfs. Br. at 15.

Essentially, Plaintiffs ask the Court to substitute their judgment for that of the experts, the Council and NMFS. The Court should reject these claims. In Sierra Club v. Watkins, 808 F. Supp. 852, 860-2 (D.D.C. 1991), the court explained that the judiciary must be wary not to overstep its bounds by evaluating the relative merit of conflicting scientific theories, which is committed to discretion of agency experts. When reviewing agency determinations, especially with respect to judgments within an agency's expertise, areviewing court "must generallybe at its most deferential." Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87,103 (1983).*

*Plaintiffs have failed to meet their burden of showing that there is a substantial scientific dispute that makes this action highly controversial, Coalition on Sensible Transportation v. Dole, 642 F.Supp. 573, 585 (D.D.C. 1986), particularly given the deference due NMFS as to its expert determinations as to the health of the scallop fishery, and on the lack of significant impacts of the actions on groundfish and scallops, and on EFH. "Highly controversial" means that there is a "substantial dispute" about "the size, nature, or effect of the major federal action[J rather than to the existence of opposition to a use." Town of Orangetown V. Gorsuch, 718 F.2d 29, 39 (2d Cir. 1983), cert. denied sub nom. Town of Orangetown v. Ruckelshaus, 465 U.S. 1099 (1984). While the plaintiffs contend in their January 14, 2000 comments that the proposed action is controversial because NMFS and the Council "received numerous oral and written comments on its proposal last year about the environmental impacts of opening Closed Area II," FW 13, at 168, their opposition to the proposed actions simply cannot support a finding that the effects are controversial. See Friends of the Ompompanoosuc v. FERC, 968 F.2d 1549, 1557 (2d Cir. 1992)(there is a difference between controversy and opposition).

Further, even if the Court were to consider the "evidence" submitted by the plaintiffs' declarants, it does not support a finding that there is a genuine scientific controversy over the impacts of the action. First, the plaintiffs have incorrectly framed the issue. The question is not whether the flaction will achieve the optimum yield for scallops," Plfs. Br. at 30, but whether the agency has properly accounted for environmental impacts under NEPA. Myers' contention that a rotational management system would increase yield is not relevant to the question of whether there is scientific controversy regarding the decision to open the closed areas. Plfs. Ex. 5, at T~34-36. Moreover, the rotational management system would be a major change in the FMP, which is more properly considered in the context of an amendment to the FMP than in a framework adjustment.

Plaintiffs also cite, the Watling declaration, ~T 27A-D for the proposition that the action will adversely affect EFH. NMFS acknowledges the impacts of scallop dredging on different habitats. At most, the Watling declaration evinces a concern that opening the closed areas will impact the opportunities for research, ~27A, B, and asserts, without any support, the potential for loss of feeding areas for groundfish and nursery habitat, particularly for cod. T27C-D. In fact, available studies show that complex habitat types, such as gravelly bottom, are important as groundfish nursery areas. Amend. 9, at 40-4 1. As discussed previously, this action takes place in sandy bottomed areas, which recover more quickly from the impacts of scallop fishing, while the complex bottomed areas remain well-protected in the closed portions of the three areas, which also preserve ample opportunities for research.

In fact, the EAs properly considered the impacts of the action on the environment, taking into account the mandates of the SFA, and utilizing the best scientific data available, including the SAFE Report, which was specifically "prepared in anticipation of potential management adjustments for the fishing year beginning on March 1, 2000." SAFE Report, at 1.0. As evidenced by the documents supporting the decision, and as explained below, plaintiffs' allegations are baseless and should be rej ected. NMFS is responsible for protecting fisheries, including scallops fisheries. Before making its decisions, NMFS conducted separate analysis and documentation processes for the Frameworks that included expert evaluations of their likely environmental effects. In other words, NMFS took a "hard look" at each of the Frameworks, "identified the relevant areas of environmental concern," and determined convincingly that the probable environmental impacts were not significant. Humane Society, 840 F.2d at 62. Moreover, NMFS reasonably concluded that mitigation measures will minimize any impacts. See Sierra Club v. DOT, 753 F.2d 120, 127 (D.C. Cir. 1985). Accordingly, NMFS' EAs and FONSIs should be upheld.

i. Scallop fishing is temporary and is confined to a limited portion of the closed areas

Plaintiffs' brief creates the false impression that NMFS intends to open Closed Areas I and 11 and the NLA in their entirety. In fact, only approximately half of Closed Area II, a third of Closed Area I, and a very small section of the NLA will be opened. See FW 13, at 36, Fig. 21. In addition, the re-opened area excludes an area containing the experimental fishery where research survey samples have been conducted. Id. at 38. The decision to exclude a southern portion of the area, which contains significant scallop biomass, was made to protect more sensitive habitat. Id. at 39.

Further, the action is temporary.* A portion of Closed Area 11 is open for scallop fishing from June 15 to August 14, 2000. FW 13, at 33. The Council shortened the season for Closed Area 11 to mid-summer, to eliminate safety risks that may occur during late September and October, when weather conditions deteriorate. Id. at 35. In addition, the shorter season decreases the risk of yellowtail flounder bycatch in Closed Area 11, which was generally low during the summer months, and increased during late September and October. Id. A portion of the NLA is open from August 15 to September 30, 2000, FW 13, at 36, a shorter season than for the other two areas. Id. at 47. The Council chose a shorter season to avoid overlapping seasons for access to Closed Areas I and 11. Id. The decision to avoid overlapping seasons allows for better monitoring and enforcement of fishing requirements. Id. at 35. In addition, as discussed above, the short season minimizes the potential for bycatch of yellowtail flounder. Id. at 37. Finally, a portion of Closed Area I will be open from October I to December 31, 2000.

*Because the actions openings are temporary, they do not set a precedent so as to require an EIS. 40 C.F.R. § 1508.27(b)(6). Plaintiffs are therefore incorrect in asserting that the actions at issue will set a dangerous precedent that "areas set aside for conservation may be opened up to environmentally dangerous actions whenever that is profitable." Plfs. Br. at 32. To the contrary, NMFS explicitly states that " [a]ccess to the groundfish closed areas may or may not continue beyond the 2000 fishing year under a future rotational management system," F 13 at 62, and that "[it] is ... unreasonable to adjust day-at-sea allocations beyond the 2000 fishing year, until the long term strategy for closed areas is settled." F12atIO-11. In addition, plaintiffs' contention ignores the fact that all three areas were fished heavily in the past. Watling Decl., T27A. Finally, the argument is inconsistent with CLF's support for rotational management, which would routinely open closed areas to fishing.

Thus, the record reflects that NMFS took a hard look at the potential environmental impacts of opening parts of the closed areas, and decided to limit the seasons and the openings so as to promote maximum conservation of the resources and protection of sensitive areas. Because these limitations kept the impacts from becoming significant, EAs for the two frameworks were appropriate. Cf. American Horse Protection Ass'n v. Andrus, 608 F.2d 811, 814-15 (9' Cir. 1979)(interim removal of 400 horses from public lands environmentally insignificant, whereas long term removal of 3500 to 7000 horses would require separate significance determination).

ii. NMFS properly considered the impacts of dredging on fish habitat

Plaintiffs argue that the EAs failed to analyze the impacts of scallop dredging on fish habitat. They make the unfounded suggestion that,the "Defendants do not know the nature of the habitat in the areas to be opened." Plfs. Br. at 17. In fact, Framework 13 contains ample analysis of the possible impacts of dredging on fish habitat, and the composition of the sea bottom in each of the three areas at issue. See FW 13, at 126-34, Impacts on Habitat and Essential Fish Habitat, which also incorporates the comprehensive analysis of those impacts contained in Amendment 9 to the Sea Scallop FMP and Amendment I I to the Northeast Multispecies FMP. While CLF may not be satisfied with the discussion of the impact, the EAs' analysis was adequate to support the actions. Izaak Walton League of America v. Marsh, 655 F.2d 346, 377 (D.C. Cir. 1981), cert. denied, 454 U.S. 1092 (1981) ("Detailed analysis is required only where impacts are likely"); Sierra Club v. United States Forest Service, 46 F.3d 835, 840 (8th Cir. 1995)(EA "cannot be both concise and brief and provide detailed answers for every question"). Framework 13 also recognizes that the impacts from opening the closed areas will be accompanied by a corresponding decrease in fishing activity and, thus, impacts, in other currently open areas. FW 13, at 126.

First, Framework 13 discusses the various impacts associated with dredges, depending on the bottom profile. For example, if the bottom is composed of rock and gravel substrates, dredges can scrape and smooth gravel mounds and may remove or crush seafloor life. Id. at 127. These types of rocky, complex habitats take longer to recover from the impacts of scallop fishing. Id. Conversely, in sandy bottoms, where the vast majority of this action will occur, gear may flatten sand ridges and remove some seafloor life,* but the habitat recovers much more quickly. Id. Framework 13 analyzes the rates of habitat recovery associated with scallop fishing, and recognizes that opening the closed areas "may be a benefit to the habitat of the region derived from the shift of fishing effort ... [which] is expect[ed] to drastically reduce the frequency and intensity of scallop fishing gear use throughout the region by reducing the bottom time needed to harvest a given amount of sea scallops and reducing the number of days actually fished compared to the regulated number of DAS allocated to each scallop vessel." Id. at 127. A recent study found that in gravelly areas bottom fishing gear may reduce the number of organisms by 48%, while in sandy areas, the number of organisms was reduced by only 5%. Id. FW 13 estimated that by opening the closed areas there would be a 22% reduction in bottom time needed to harvest the same number of scallops if the areas remained closed. Id.

*Contrary to plaintiffs assertion that "scallop dredging removes the top two inches of sea floor sediment," Plfs. Br. at 37, scallop gear used in New England - the New Bedford drag actually operates by riding "up off the bottom about four inches on smooth, flat bottom" only "com[ing] in contact with the higher areas of the sea floor" on "rougher bottom." Amend 9. at 152.

Second, based on the available data, NMFS opened only those less-sensitive portions of the closed areas that are believed to be characterized by relatively flat and sandy bottom. Id. at 127. Plaintiffs' statement that "defendants intentionally chose to open an area about which they were ignorant" overstates the case. Plfs. Br. at 17. The southern portion of Closed Area 11, where scallop fishing was permitted under Frameworks 11 and 13, is known to be comprised of relatively flat sand. FW 13, at 129. While NMFS acknowledged some lack of information as to the composition of the opened portion of Closed Area 1, the available information showed that "the area appears to be comprised of predominantly sandy substrate." Id. NMFS intentionally avoided those areas known to contain hard and complex substrates which exist "to the south of the area proposed for scallop fishing." Id. Similarly, the entirety of the NLA is known to be "primarily comprised of relatively flat and sandy or other relatively soft bottom habitats." Id. at 130. NMFS acknowledged reports of small, patchily distributed hard-bottom areas in the NLA, but expected the potential adverse impacts to be minimal since the reports were highly variable and vessels will be allowed only one trip into the area*. Id. at 130.

*Contrary to plaintiffs' claims, there are no "highly uncertain" impacts or "unique and unknown risks" associated with the Frameworks so as to require an EIS. 40 C.F.R. § 1508.27(b)(5). As described above, NMFS has been documenting, analyzing, and implementing various aspects of and changes to the Scallop FMP since its inception. While there is some incomplete information regarding the composition of the seafloor in Closed Area I and the NLA, NMFS's belief that the area to be opened contains mostly sandy bottom was an informed assumption. Moreover, these areas were extensively fished prior to 1994. Further, although NMFS did not have time to include all of the information collected during 1999 before making the decision to open the closed areas, NMFS included the information available. Research on the areas at issue here is ongoing. If an agency were always required to wait until a study was completed, no final action could ever be taken. Instead, the agency properly used the information it had, noted the lack of complete data, and analyzed the impacts. NMFS made an informed judgment that the risks of the incomplete information were acceptable, given the ample information that was available.

Thus, NMFS' decision to open portions of the closed areas was reasonably based on information indicating that the vast majority of the areas to be opened are sandy bottom, the kind of habitat that best recovers from scallop fishing. Ld. Further, NMFS noted that scallop fishing would be diverted from areas with complex sea bottom. Id., at 129-30. NMFS took a hard look at the small risk to Closed Area I and the NLA posed by the lack of complete data, and determined that the risk was justified, particularly given the other biological and economic benefits of opening the areas. Id.

The plaintiffs further allege that the EAs did not consider the fact that the habitat in the closed areas is essential to groundfish, and charge that the EA failed to analyze the impacts of opening the areas on groundfish. Plfs. Br. at 16, 18. Again, those claims are contradicted by the analysis contained in FW 13*. First, as noted above, the portions of the areas proposed to be opened are primarily areas of low ecological complexity, i.e., sandy bottom. Areas of higher ecological complexity, e.g., hard substrates consisting of rock or boulder piles, will, for the most part, remain closed. FW 13 at 129-30. Bottom types of higher complexity provide protection for groundfish, in part by allowing them to avoid predators, which increases the survival rate, particularly for juveniles. FW 13, at 126. Further, FW 13 recognizes that there may be an increased impact on the habitat in the reopened areas, but that impact will be accompanied by a decrease in fishing activity and impacts in other areas. Id Moreover, groundfish stocks on the Georges Banks are recovering. In particular, fishing mortality of Georges Bank yellowtail flounder, a groundfish stock especially vulnerable to scallop dredges, is well below the target level set in Amendment 7 to the Multispecies FMP. Id. at 8. Distribution of winter and summer flounder and monkfish occurs largely outside the closed areas. Although the net impact of the shift in scallop fishing on those stocks is uncertain, combined with the decision to increase the twine top mesh for the dredge, the overall impact "will ensure the access program will be conservation-neutral for many species." FW 13, at 49. Specifically, the increase in mesh size will significantly reduce bycatch for yellowtail flounder, winter flounder, and windowpane flounder. "Catches of summer flounder and possibly skates could be reduced as well..." Id. FW 13 further states that cod and haddock are "not very vulnerable to capture by scallop dredges..." Id. at 17.

*Plaintiffs' argument that the areas at issue are ecologically critical areas is without support. While plaintiffs are correct that the closed areas have been designated EFH, they fail to take note of the fact that the open areas have also been  designated EFH. FW 13 at 126, citing Amend. 9, at 9-25. The Magnuson Act defines EFH as "those waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity." 16 U.S.C. § 1802(10). While those areas are clearly important to fish, that designation does not compel the conclusion that the areas have unique characteristics or that they are ecologically critical areas as contemplated by NEPA. See 40 C.F.R. § 1508.27(b)(3). The actions here are designed to shift fishing from some EFH that is overfished to areas that are abundant with scallops. Nor does it follow that they are ecologically critical areas merely because they have been closed since 1994.

As "evidence" that NMFS failed to consider a "large amount of benthic biological data," the plaintiffs cite the existence of samples taken by NMFS in the 50s and 60s as well as samples taken as part of an oil and gas drilling baseline study. Plfs. Br. at 16. Even if the Court were to consider that data, which, as discussed above, it should not, the plaintiffs' statement that NMFS did not consider benthic impacts is wrong. For Closed Area 11, Framework 13 states that the impacts to bottom habitat are expected to be minimal. FW 13, at 129. While NMFS recognized the lack of available information regarding b6nthic organisms in Closed Area I and the NLA, it nevertheless judged the risk to be justified, given the benefits associated with the action. Id. at 129-30.

Further, both studies the plaintiffs cite fail to show impacts on benthic organisms and impacts on the food chain. Plaintiffs' expert admits that the samples from the 50s and 60s have never been qualitatively analyzed. Watling Decl. at T 8. The second sample set, taken as part of the oil and gas drilling study, indicates only that the Georges Bank is divided into seven sedimentary provinces, and that the EA should have used the data to make extrapolations about the composition of the biological communities. Id. at 9. However, the EA for Amendment 9 to the Sea Scallop Management Plan, incorporated by reference here, described the geography of the Georges Bank in detail, including descriptions of the seven sedimentary provinces. Amend. 9, at 12-13, 17-21. Finally, the impacts of dredging on benthic organisms in the Georges Bank were also described in Amendment 9, using the best scientific information available as required by the Magnuson-Stevens Act. Amend. 9 at 141 144 and Appendix E; FW 13 at 127.

iii. The EAs properly considered the impacts of the proposed actions on bycatch of yellowtail flounder and other species

Data on bycatch was collected during the 1998 and 1999 experimental fisheries. The bycatch data from the experimental fishery in Closed Area 11 was analyzed in the EA for Framework Adjustment 11, which is incorporated in Framework 13. FW 13, at 114; Framework I I (hereinafter FW 11) at 117-127 (Exhibit 10 to Ms. Br.). Plaintiffs make much of the omission of some of the 1999 data on bycatch of groundfish species in the closed areas. See National Helium Corp. v. Morton, 486 F.2d 995,1004 (10th Cir. 1973), cert. denied, 416 U.S. 993 (1974) (§ 4332(2)(C) (EIS need not be unreasonably or interminably delayed in order to include the results of works in progress which might shed some additional light on the subject of the EIS); EDF v. Hoffman, 566 F.2d 1060, 1068 (81h Cir. 1977) (where EIS contained an adequate discussion of groundwater impacts, the agency's decision not to wait for the study results was not arbitrary one); see also fn. 13. NMFS and the Council, however, noted the incompleteness of the analysis, and relied on the available data, which provided significant information. See FW 13, at 114; cf. 40 C.F.R. §15 02.22 (an EIS should make clear that there is incomplete or unavailable information). Even though all of the bycatch data in the 1999 experimental fishery was not yet available for the Framework Adjustment 13 analysis, NMFS analyzed the information for the most crucial species, yellowtail flounder, and concluded that there was not a significant risk. FW 13, at 115. Further, NMFS used the data gathered from these experimental fisheries to help identify areas within the closed areas that would be the most beneficial to the sea scallop fishery, while potentially mitigating negative effects on the groundfish resource. Id. The experimental fisheries data also helped NMFS to determine what the rate of catch would be over the course of the reopened periods, as the stock is fished down, and helped determine possible bycatch mitigation measures. -Id. at 118. For example, NMFS limited the scallop season in the NLA to August 15 to September 30, when the seasonal availability of yellowtail flounder was known to be very low. Id. at 37. The existing data indicated that few cod and haddock were taken during the experimental fishery. Id. Similarly, although bycatch of barndoor skates was high in the experimental fishery, nearly all of the bycatch occurred outside the areas proposed for access here. Id.

Further, FW 13 mitigates the potential impacts of the action on finfish by requiring scallop dredges to have a twine top with mesh that is no smaller than ten inches. Id. at 49. The larger mesh is expected to result in a significant reduction in bycatch, especially for several species of flounder, and possibly for skates. FW 13, at 49. Finally, in the event that information or data indicate that the total yellowtail flounder bycatch or the total scallop catch will exceed the TACs for yellowtail flounder, the Regional Administrator may suspend the re-opening of the closed areas. Id. at 34.

iv. The action will not contribute to the overfishing of scallops

Plaintiffs allege that the EAs failed to consider the impacts on scallops, and that they will contribute to overfishing of the resource. In fact, the evidence amply shows that there will be no negative impact on scallops. Both Framework 12 and 13 considered the impacts on scallops, and both state that the action will be conservation-neutral. FW 12, at 9; FW 13, at 96. Framework 13 benefits the resource because it decreases overall bottom dredge time inside and outside the closed areas; reduces mortality on smaller scallops in open areas by permitting harvest of larger scallops in the closed areas, and contributes to rebuilding of the stock by increasing survival rates of the rapidly-growing smaller scallops. FW 13, at 96. Indeed, as noted in Framework 12, overharvesting in the open areas is styinying stock rebuilding because scallops are being caught before they reach optimum size. FW 12, at 10. At the same time, scallops in the closed areas are large, and eventually natural mortality will take its toll on them. Id. Thus, by allowing access to the closed areas, the action potentially increases the yield of scallops by 17%, while preventing increases in scallop fishing mortality. FW 13, at 96.

Similarly, Framework 12 explicitly calculated the DAS adjustment to ensure that fishing mortality goals for 2000 would be achieved. FW 12, Section 6.2.6. 1. The long-term impacts on scallops were analyzed in the EA. Long-term biological and yield projections were made in Section 6.2.6.2. Id. at 29-37, Table 12. Plaintiffs also ignore the extensive analysis in the 1999 SAFE report, which provided new scientific evidence that justifies the increase to 120 full-time DAS, because it allows NMFS to achieve the Amendment 7 mortality objective for 2000, and does not jeopardize rebuilding of the scallop stock established by Amendment 7. Plaintiffs urge the Court to accept Myers' contention that the EAs are flawed because they do not account for indirect mortality on scallops. While the Court should not consider the Myers declaration, this allegation is also misplaced. The mortality estimates for scallops are based on survey data, which implicitly takes into account discard and non-catch mortality. Although catch is used in the formula to estimate fishing mortality, the trend is scaled to the average fishing mortality calculated from the survey data alone. SAFE Report, at 63. This method combines equations 18 and 19 from the 291h Stock Assessment Workshop report. SAW 29 at 104 (attached hereto as Exhibit 6). The survey-based mortality estimates were derived from a comparison of the number of small scallops to the number of larger scallops in the next year, accounting for the estimated one-year growth rate of sea scallops. SAW29 at 103. The number of small scallops and large scallops in the next year are the mean number of scallops observed by the survey and therefore reflect all sources of mortality, including landings, discards, non-catch mortality (Le. damage by fishing gear and unreported landings), and natural mortality (i.e. from predation and disease). When the survey-based fishing mortality is related to the primary management measure (annual DAS allocations), it implicitly takes into account discard and non-catch mortality. Section 6.2.6.1 describes how the primary mortality control, day-at-sea allocations and use, were correlated with the fishing mortality estimates. FW 12, at 20. Thus, the EAs appropriately considered impacts on the scallop fishery, and ensured that the actions will not result in a net negative impact scallops, fish, or habitat.

v. CLF's contention that the Frameworks make experimental research impossible is meritless

Plaintiffs argue that the "EA does not consider the impact of the action in destroying experimental controls for fishing gear impacts research." Plfs. Br. at 22. In fact, as noted above, since FW 13 opens only portions of each of the three closed areas, plaintiffs' cursory argument that there will be no unfished areas available for research is meritless, and contrary to the evidence. Thousand of square nautical miles in the closed areas remain available for research. In addition, two Mid-Atlantic areas will also remain closed. Amend. 7, at 16-17. None of the on-going and existing research projects currently located in the closed areas are near the areas to be opened for scalloping. Moreover, opening the areas to scallop fishing may actually enhance research opportunities because it will provide valuable data regarding the impacts of scallop fishing in recovered or recovering habitat. Finally, the Council is currently engaged in a formal process to identify and designate a dedicated habitat research area.

vi. The EAs adequately analyzed enforcement issues

Contrary to CLF's assertions, NMFS adequately considered enforcement issues in adopting FW 12 and 13. Plaintiffs' argument that the EAs did not analyze the issue because the information was contained elsewhere in the same document, is an attempt to elevate form over substance. U Dubois v. Department of Agriculture, 102 F.3d 1273, 1287 (Is' Cir. 1996), cert. denied, 521 U.S. 1119 (1997) ("courts should not 'fly speck' an EIS and hold it insufficient based on inconsequential or technical deficiencies"). As plaintiffs admit, the issue is discussed in § 4.8, Compliance and enforcement, which recognizes the potential for increased opportunities for scallopers to illegally enter the area to target groundfish or to avoid trip limit rules for scallops. FW 13, at 29. The Framework discusses several options for limiting that problem. For example, Framework 13 will require all vessels in the closed area to use a computerized tracking system*, which, as plaintiffs concede, PlEs. Br. at 22, will boost the ability to enforce the possession limit. FW 13, at 39. A demarcation line will clearly define the closed areas, and could also reduce the incentive to transfer scallops at sea. The vessels in the three re-opened areas will be subject to a trip limit that discourages targeting groundfish, and is relatively easy to enforce. Id. at 29, 39. In addition, the Framework requires that no two closed areas be open at the same time because of the need for effective enforcement and monitoring. Id. at 35.

*The electronic tracking system that monitors when a vessel is at sea or at dock, when it is in a closed area, and uses email to send daily reports on the area fished and catch taken. FW 13, at 55.

The Framework also considered the option of requiring a buffer zone, but concluded it was of little benefit in preventing illegal transfers at sea. Instead, NMFS decided to increase use of a computerized system to keep track of a vessel's location. Id. at 39.

Further, NMFS recognized the importance of an observer to provide reporting data on catches and bycatches, particularly here, "where a high level of observer coverage is needed because of the concerns over important impacts from scallop fishing in the groundfish closed areas..." FW 13, at 56. Thus, the Framework devotes significant analysis to the issue of observers on scallop fishing trips, noting that the goal should be minimum observer coverage of 25% of scallop trips in each groundfish closed area. Id. at 56-57. A one-percent TAC supplement was also allowed to fund the high level of observer coverage that Framework 13 requires in the closed areas. Id. at 42.

vii. The actions at issue comply with the SFA, and the EAs properly considered cumulative impacts of the actions

Plaintiffs argue that NMFS failed to consider whether these actions violate the requirements of the SFA to protect essential fish habitat, and that cumulative impacts were not considered*. In fact, the EA for Framework Adjustment 12 estimates the long-term and cumulative impact of the proposed action in Section 6.2.6.2, showing the effects on biomass rebuilding through 2008, compared to the status quo. FW 12, at 19-30. Along with this analysis, the 1999 SAFE report shows that the Framework 12 action would meet the Amendment 7 rebuilding objectives, fishing mortality target for 2000, and improve yield. FW 12, at 5; SAFE Report at 81-129. While overexploitation may continue in the open areas, the low mortality in closed areas would allow the FMP to reduce overfishing and promote rebuilding, in compliance with the Amendment 7 objectives. FW 12, at 5-6,52.

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*Plaintiffs' contention that the challenged rules are likely to violate the SFA, the MagnusonStevens Act and the APA are belled by their failure to challenge NMFS on the grounds that those statutes have been violated. Both Frameworks found that the actions were consistent with applicable law, as also shown herein. See FW 12, at 16-55, FW 13, at 89-164.

viii. NMFS properly considered the alternatives in both EAs

Plaintiffs' sole claim that NMFS failed to consider alternatives is that "defendants have not analyzed this action in relation to the alternative of developing a rotational area management plan for scallops that might prevent overfishing." Plf. Br. at 3 1. In fact, NMFS considered a broad range of alternatives*. An EA need only contain a "brief discussion" of alternatives. 40 C.F.R. 1508.9(b); Lodge Tower Condominium Ass'n v. Lodge Properties, Inc., 880 F. Supp. 1370, 1383 (D. Colo. 1995) (citing 40 C.F.R. § 1508.9(a)(1), § 1501.4(c)), aff'd, 85 F.3d 476 (10th Cir. 1996). The burden is on plaintiffs to establish that an alternative is reasonable, and should have been considered, and they have not done so here. City of Angoon v. Hodel, 803 F.2d 1016 (9th Cir. 1986), cert. denied, 108 S. Ct.197 (1987).

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*In Framework 12, NMFS considered three alternatives, the proposed alternative, which increased the DAS allocations to 120 full-time, 48 part-time, and 10 occasional during the 2000 fishing year; the no action alternative, which would maintain the status quo with 51 full-time, 20 part-time and 4 occasional DAS allocation; and an increase in DAS allocations to 142 full-time, 57 part-time, and 22 occasional. In Framework 13, NMFS considered the proposed action; two additional alternatives for Closed Area 1, which would allow access to various parts of Closed Area 1; two additional alternatives for Closed Area II, allowing access to various parts of the Area, and three additional alternative analyzing access by season, including consideration of sequential openings of the three Areas. FW 13 also considered two alternatives with respect to buffer zones for the closed areas; two alternatives relating to observers; and alternatives relating to scallop research.

cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man. Time and resources are simply too limited to hold that an impact statement ... falls because the agency failed to ferret out every possible alternative, regardless of how uncommon or unknown that alternative may have been at the time the project was approved.

See also Sierra Club v. United States Forest Service, 46 F.3d 835, 840 (8th Cir. 1995)(EA "cannot be both concise and brief and provide detailed answers for every question"). The actions at issue here are short-term adjustments to Amendment 7, which implement yearly adjustments based on current conditions. Neither is intended to set forth a long-term management strategy, such as a rotational management system, which is more appropriately considered as part of the amendment process, and which was considered in the EIS for Amendment 7*. Amend. 7, at 16, 119. NMFS therefore appropriately deferred consideration of a long-term rotational management system to the plan amendment process. See FW 13, at 62. Finally, the Council and NMFS are currently considering a comprehensive area rotational management regime in developing proposed Amendment 10 to the scallop FMP and has issued a notice of intent to do a supplemental environmental impact statement on such a regime. 65 Fed. Reg. 5488 (February 4, 2000).

*Moreover, the system proposed in Framework 13, which allows some scallop harvesting in the closed areas, will achieve, on a short term basis, the result plaintiffs suggest would be attained under a rotational system; i.e., a shift in fishing effort from the open fishing areas, which will reduce localized overfishing, while at the same time increasing yield of scallops.

ix. The EAs Omplied with AO 216-6

Contrary to plaintiffs' assertion that NMFS failed to comply with AO 216-6, the, EAs specifically assess the significance of the action according to the five criteria set forth in AO 216-6. Both EA/FONSIs discuss whether the action can be reasonably expected to (1) jeopardize the sustainability of target species; (2) cause substantial damage to the ocean and coastal habitats and/or essential fish habitat; (3) adversely impact public health and safety; (4) adversely impact endangered or threatened species marine mammals, or their critical habitat; (5) result in cumulative adverse impacts with substantial effects on the target species or non-target species; or (6) have a substantial impact on biodiversity and ecosystem function within the affected area. Id.

Based on the information in the EA and Framework 12, the FONSI for Framework 12 finds that the action will not jeopardize long-term productive capability of the scallops because rebuilding occurred more quickly than anticipated, and new projections indicate that the action is consistent with SFA mandates and fishing mortality rates set in Amendment 7. FW 12, at 52. The action is not expected to change impacts on ocean and coastal habitats; have an adverse impact on public health or safety; or jeopardize endangered or threatened species. Id. Finally, the measures in Framework 12 are management adjustments to achieve optimum yield without jeopardizing the stock rebuilding program for sea scallops or groundfish, and are not expected to have any cumulative adverse impacts. Id. at 52-53.

Similarly, the FONSI for Framework 13 contains analysis of the same criteria, and concludes that the proposal to temporarily open a closed groundfish area for scallop fishing is conservation neutral for the scallop resource, because by harvesting mature scallops and delaying exploitation of younger scallops that predominate in the open areas, the action will promote quicker rebuilding of the scallop fishery without increasing mortality above the target for 1999. FW 13, at 159. The action is not expected to do substantial damage to ocean and coastal habitats since it is expected to result in a decline in the total amount of fishing time. Id. at 160. It is not expected to have an adverse impact on public health or safety, particularly since it includes a requirement that a trip to a closed area will automatically accumulate 10 DAS, no matter how long the trip actually takes, which eliminates incentives to fish as quickly as possibly that can lead to safety problems. Id. at 160. The action is not expected to adversely impact endangered or threatened species or marine populations. The FONSI recognizes the possibility that the barndoor skate may be adversely affected, but since a formal assessment of the barndoor skate population is not final the agency could not determine whether the population would be jeopardized. Id. at 160-61. Finally, the action is not expected to have any cumulative adverse impacts. Id. at 160. Given the discussion of the AO 216-6 factors in both EAs, the plaintiffs claim that NMFS violated its own regulations is simply without merit.

d. The balance of harms and the public interest weigh against preliminary injunctive relief

Plaintiffs have failed to demonstrate that they are entitled to the extraordinary relief of a preliminary injunction. Plaintiffs' delay in seeking a preliminary injunction weighs heavily against their claim for emergency relief In addition, they overstate the potential for irreparable injury, while simultaneously ignoring injuries that will be avoided under Frameworks 12 and 13 and harms to other interests that an injunction would cause. Finally, a preliminary injunction is not in the public interest.

i. Plaintiffs' delay belies their claim the emergency relief is needed

Plaintiffs' claim that there is a need for emergency relief is undermined by their delay of 31 days for Framework 13 and 139 days for Framework 12 in seeking a preliminary injunction. Essentially, plaintiffs, through their own inaction, have manufactured an "emergency," where none actually exists. This Court rejected a similar strategy in Fund for Animals v. Frizzell, 530 F.2d 982 (D.C. Cir. 1975). There, the court held that its "conclusion that an in unction should not issue is bolstered by the delay of the appellants in seeking one." Id. at 987. Like all such applications, Plaintiffs' present application for a preliminary injunction supposedly "is based upon an urgent need for the protection of Plaintiffs rights." Their "inexcusable" delay in seeking relief indicates that speedy action is not required. Fund for Animals v. Frizzell, 530 F.2d at 987. See also Kansas Health Care Ass'n, Inc., 31 F.3d at 1543-44.

ii. Frameworks 12 and 13 will not cause the harm plaintiffs allege

Plaintiffs' claim of irreparable harm contains a fundamental inconsistency. Plaintiffs strongly advocate a system of rotational management for the New England scallop fishery, whereby areas will be opened and closed in rotation. Yet, under such a system, closed areas newly opened to the scallop fishery would experience exactly the same kind of injury of which plaintiffs complain here.

Further, CLF leaves the misleading impression that Framework 13 opens all of Closed Area I and the NLA to the scallop fishery. For example, they claim that Framework 13 will preclude research based on comparisons between areas that have been closed to scallop dredging for long periods of time to areas that have been dredged. Plfs. Br. at 36; Watling Decl., at I 27B ("Opening of these Closed areas will remove any possibility of having unfished areas available as controls for gear impact studies in the Georges Bank region. ")(emphasis added). However, because only a portion of these areas will be opened, Framework 13 in no way precludes such research opportunities.

Plaintiffs also exaggerate the extent of the harm due to scallop dredging in Closed Area I and the NLA in claiming that the newly opened areas could take 25 to 50 years to heal. Ms. Br. at 36. This claim implies that these areas, which were so degraded in 1994 that they required emergency closure, would require 25 to 50 years to return to their currrent condition. In fact, as the evidence shows, the closed areas improved significantly after a five-year closure. While total recovery might take 25 to 50 years, Watling Decl., at T 27, the goal of the FMP and the EFH Amendment is to promote rebuilding of groundfish and scallops, not to return the area to a pristine state. Further, this claim ignores the continued possibility of longer-term recovery in the majority of Closed Area 1 and the NLA, most of which will remain closed to the scallop fishery.

iii. The rules contain measures that mitigate the scope and severity of any environmental harm

In contending that Frameworks 12 and 13 will cause them irreparable injury, plaintiffs ignore several mitigation measures incorporated into the rules. As explained above, these measures include, among other things, limitations on the types of fishing allowed (i.e., NMFS rejected a general opening); limits based on bycatch of yellowtail flounder that may greatly curtail the opening of Closed Area 1; selection of areas within the closed areas that avoid areas known to have more sensitive sea bottoms; limitations on the scallop seasons so as to avoid impacts on other fisheries; measures to enhance enforcement; encouragement of fishery research; tradeoffs of DAS for fishing in the closed areas; and trip limits for fishing in the closed areas.

iv. The rules will decrease scallop dredging in other areas

Plaintiffs also ignore the decrease in scallop dredging in areas that have were extensively fished for scallops during the closure of Closed Area 1 and the NLA. By shifting the fishery to areas within those previously closed areas, Frameworks 12 and 13 will allow scallop beds that have been fished extensively to begin to replenish and recover. Requiring a tradeoff of DAS for fishing in the closed areas will reduce scallop fishing in areas outside of the closed areas, benefitting scallops, finish and other species caught as bycatch in those areas, and habitat.

V. Scallop catch limits will be attained with less extensive dredging

Finally, plaintiffs fail to acknowledge adequately that Framework 13 will allow the scallop fishing limit to be attained through dredging of a smaller area than would be required if fishing were allowed only in the areas that have been open to the scallop fishery for the past five years. Because the scallops in Closed Area I and the NLA have not been fished since December 1994, the scallop biomass per unit area is significantly higher than in areas that have been open to the scallop fishery in that time period. Therefore, in Closed Area I and the NLA, the TAC for scallops can be attained more quickly, with less dredging, than in the previously open areas. Further, because the scallops in Closed Area 1 and the NLA are larger, the TAC can be attained with fewer scallops.

e. A preliminary injunction is not in the public interest

Where, as in this case, governmental action is sought to be enjoined, the balance of harms and whether a preliminary injunction would serve the public interest may be analyzed together. "[W]here an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff." Weinberger, 456 U.S. at 312 (198 1). In the instant case, the equities weigh in favor of allowing the NMFS to proceed with Frameworks 12 and 13. Plaintiffs do not consider the ftill range of interests at stake, and in particular ignore the interests of the intervenors. See Mem. Supporting FSF's Motion to Intervene, at 7-8. A preliminary injunction would thwart the goals of the Frameworks to attain the multiple purposes of the Magnuson-Stevens Act, which include long-term protection of both the fishing industry and the resources on which the industry depends.

VI. CONCLUSION

For the foregoing reasons, the Court must deny the plaintiffs' motion for preliminary injunction and dismiss the Complaint.

Respectfully submitted this 2 nd day of August, 2000.
LOIS J. SCHIFFER
Assistant Attorney General
U. S. Department of Justice

WILMA LEWIS
United States Attorney

LORI CARAMANIAN
GEOFFREY GARVER
U.S. Department of Justice
Environment and Natural Resources Division
General Litigation Section
P.O. Box 663
Washington, D.C. 20044-0663
Telephone: (202) 305-0436/0481
FAX: (202) 305-0506

OF COUNSEL:
Gene Martin
Julie Williams
Office of General Counsel
National Oceanic and Atmospheric Administration