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Kahea and Food & Water Watch, Inc. v. National Marine Fisheries Service; Michael D. Tosatto; In His

April 27, 2012


The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge



Plaintiffs KAHEA and Food and Water, Inc., seek to invalidate a one-year fishing permit issued by the National Marine Fisheries Service ("NMFS") to Kona Blue Water Farms, Inc., ("KBWF"). See Complaint for Injunctive and Declaratory Relief ¶ 1, Aug. 2, 2011, ECF No. 1. The permit authorizes KBWF to "stock, culture and harvest" almaco jack fish using "CuPod gear" in federal waters off the coast of the Big Island. Administrative Record ("AR") at 90. The "CuPod" is a brass-link mesh cage that, instead of being tethered to land or anything stationary, is instead continuously towed behind a vessel, remaining submerged at a predetermined depth during normal operations. AR at 17, 19. The permit in issue authorized KBWF to hold up to 2,000 almaco jack at one time in the CuPod, where they were expected to grow. AR at 91. Plaintiffs describe the KBWF project as a fish farm and characterize its operations as "aquaculture." See Compl. ¶ 1, 5.

Defendants issued KBWF a Special Coral Reef Ecosystem Fishing Permit, see 50 C.F.R. § 665.224, pursuant to its regulating authority under the Magnuson-Stevens Fishery Conservation and Management Act ("MSA"), 16 U.S.C. §§ 1801-1884. Plaintiffs argue that, although Defendants may properly issue such permits authorizing "fishing," KBWF's project invovles aquaculture, which is not fishing under the MSA. Plaintiffs also argue that, by issuing KBWF a fishing permit, Defendants made a de facto rule that aquaculture is fishing under the MSA, in violation of the MSA and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-559, 701-706. Finally, Plaintiffs assert that Defendants violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321-4347, by failing to prepare an Environmental Impact Statement.

Plaintiffs and Defendants have filed cross-motions for summary judgment. The court denies Plaintiffs' motion and grants Defendants' motion.


A. The MSA.

The MSA, 16 U.S.C. §§ 1801 to 1883, was enacted, among other reasons, "to conserve and manage the fishery resources found off the coasts of the United States" and, in particular, within the United States' exclusive economic zone. 16 U.S.C. § 1801(b)(1). See generally Sea Hawk Seafood, Inc., v. Locke, 568 F.3d 757 (9th Cir. 2009); Or. Trollers Ass'n v. Gutierrez, 452 F.3d 1104, 1108 (9th Cir. 2006). The MSA provides for the establishment of eight Regional Fishery Management Councils, 16 U.S.C. § 1852(a), each made up of "individuals who, by reason of their occupational or other experience, scientific expertise, or training, are knowledgeable regarding conservation and management, or the commercial or recreational harvest, of the fishery resources of the geographical area concerned." Id. § 1852(b)(2)(A). The Western Pacific Regional Council (the "Council") oversees Hawaii. Id. § 1852(a)(1)(H)

Each Regional Council is required to prepare and submit to the Secretary of Commerce a fishery management plan ("FMP"), as well as any amendments to the FMP as "are necessary from time to time." Id. § 1852(h)(1). An FMP should contain various information with respect to any fishery, including conservation and management measures to be undertaken; a description of the fishery, including the number of vessels to be allowed in the fishery and the type and quantity of fishing gear to be used; and the identification of essential fish habitats. Id. § 1853(a)(1)-(15). An FMP may require any fishing vessel to obatin a permit authorizing its operation. Id. § 1853(b)(1). The FMP applicable to Hawaii is the Hawaii Archipelagic Fishery Ecosystem Plan. See Administrative Record ("AR") at 2659-2944.

Congress delegated to the Secretary of Commerce the overall authority to implement the MSA. The Secretary acts through the NMFS and the National Oceanic Atmospheric Administration. Sea Hawk, 568 F.3d at 759. The Secretary is also vested with the authority to approve, reject, or partially approve an FMP and any amendments the FMP. 16 U.S.C. § 1854(a)(1)(B).


NEPA is the "basic national charter for protection of the environment." 40 C.F.R. § 1500.1(a). Congress enacted NEPA to ensure that all federal agencies would factor environmental considerations into decisionmaking. To achieve this goal, NEPA requires a federal agency to prepare an EIS for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). "NEPA ensures that the agency . . . will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger [public] audience." Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998).

If, as here, an agency's regulations do not categorically require or exclude the preparation of an EIS, the agency must first prepare an Environmental Assessment ("EA") to determine whether the action will have a significant effect on the environment. 40 C.F.R. § 1501.4. An EA is less comprehensive and less detailed than an EIS. See Conner v. Burford, 848 F.2d 1441, 1446 (9th Cir. 1988); 40 C.F.R. § 1508.9. It is a document that: (1) provides sufficient evidence and analysis for determining whether to prepare an EIS or to issue a Finding of No Significant Impact ("FONSI"); (2) aids in an agency's compliance with NEPA when no EIS is necessary; and (3) facilitates preparation of an EIS when one is necessary. See 40 C.F.R. § 1508.9(a). If the EA establishes that the agency's action "may have a significant effect upon the . . . environment, an EIS must be prepared." Found. for N. Am. Wild Sheep v. United States Dep't of Agric., 681 F.2d 1172, 1178 (9th Cir. 1982). If the EA indicates that the agency's action will not significantly affect the quality of the human environment, the agency must issue a FONSI. See Blue Mountains, 161 F.3d at 1212.


KBWF applied for and was granted a Special Coral Reef

Ecosystem Fishing Permit ("SCREFP") by the NMFS that authorized KBWF to "demonstrate" the "Velella Concept" in federal waters. AR at 90. The Velella Concept cultures 2,000 almaco jack inside a CuPod, which is a 132-cubic-meter cage. AR at 19-20.

The fish cultured in the CuPod were to be obtained from KBWF's land--based hatchery and taken to the CuPod. AR at 19-20. Once at the project site, which was three nautical miles offshore, the CuPod was to be towed behind a sailing vessel in deep waters (between 10,000 to 20,000 feet). The CuPod was to be constantly moving. AR at 20. Upon completing their growth cycle inside the CuPod, the fish were to be removed and taken to land. AR at 26.

KBWF submitted its permit application on November 5, 2010. The NMFS proposed the issuance of a limited, one-year permit so that KBWF could demonstrate the Velella Concept. See AR at 19. As part of its review process, the NMFS prepared a draft EA. AR at 4450. After receiving public comment and approval by the Council, the NMFS submitted its final EA. Based on the EA, the NMFS determined that the KBWF project would not have a significant impact on the quality of the human environment and issued a FONSI. See AR at 10. On July 6, 2011, the SCREFP was issued. See AR at 90. The permit was to expire on July 8, 2012. Id.

Plaintiffs brought this action on August, 2, 2011, challenging the issuance of the permit under the MSA, NEPA, and the APA. They assert that the NFMS lacked the authority to issue the permit under the MSA (Claim One); that Defendants engaged in de facto rulemaking in violation of the MSA and the APA (Claims Two, Three, Four, and Six); and that Defendants violated NEPA by failing to prepare an EIS (Claim Five). The Complaint seeks a court order declaring that the permit in issue is unlawful, requiring Defendants to "suspend, rescind, or revoke" the permit, and enjoining any further activity authorized by the permit.

On February 9, 2012, after the parties had filed competing summary judgment motions, KBWF completed its project. See Defs.' Ex. C, ECF No. 38-1. KBWF removed and dismantled the CuPod. Id. Defendants say that no additional operations are scheduled to be conducted under the permit. Id. at Decl. of Alvin Katekaru ¶ 2. After being questioned by the court at the hearing on these motions about whether KBWF, or any other company, could resume operations under the existing permit, the NMFS terminated the permit. Decl. of Michael D. Tosatto, ¶ 2, Attachment A, ECF No. 44.


Summary judgment shall be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A moving party has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).

The burden initially falls on the moving party to identify for the court "the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. Catrett, 477 U.S. 317, 323 (1986)); accord Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 987 (9th Cir. 2006). "A fact is material if it could affect the outcome of the suit under the governing substantive law." Miller, 454 F.3d at 987. When the moving party bears the burden of proof at trial, that party must satisfy its burden with respect to the motion for summary judgment by coming forward with affirmative evidence that would entitle it to a directed verdict if the evidence were uncontroverted at trial. Id. (quoting C.A.R. Transp. Brokerage Co., Inc. v. Darden Rest., Inc., 213 F.3d 474, 480 (9th Cir. 2000)). When the nonmoving party bears the burden of proof on one or more issues at trial, the party moving for summary judgment may satisfy its burden with respect to those issues by pointing out to the court an absence of evidence from the nonmoving party. Miller, 454 F.3d at 987.

When the moving party meets its initial burden on a summary judgment motion, "[t]he burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial." Id. The court must not weigh the evidence or determine the truth of a matter; it should only determine whether there is a genuine issue for trial. See Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). On a summary judgment motion, "the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor." Miller, 454 F.3d at 988 (brackets omitted) (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)).

Summary judgment may also be appropriate when a mixed question of fact and law involves undisputed underlying facts. See EEOC v. UPS, 424 F.3d 1060, 1068 (9th Cir. 2005); Colacurcio v. ...

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