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Conservation Council for Hawaii v. National Marine Fisheries Service

United States District Court, D. Hawaii

December 23, 2015

CONSERVATION COUNCIL FOR HAWAII, CENTER FOR BIOLOGICAL DIVERSITY, and TURTLE ISLAND RESTORATION NETWORK, Plaintiffs,
v.
NATIONAL MARINE FISHERIES SERVICE, UNITED STATES DEPARTMENT OF COMMERCE, and PENNY PRITZKER, SECRETARY OF COMMERCE, Defendants.

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

Leslie E. Kobayashi, Judge

Before the Court is Plaintiffs Conservation Council for Hawaii, Center for Biological Diversity, and Turtle Island Restoration Network’s (collectively “Plaintiffs”) Motion for Summary Judgment and for Vacatur (“Motion”), filed on July 20, 2015. [Dkt. no. 47.] On August 20, 2015, Intervenor-Defendant Hawaii Longline Association (“HLA”) filed its memorandum in opposition (“HLA Opposition”), and Defendants National Marine Fisheries Service (“NMFS”), United States Department of Commerce, and Penny Pritzker, Secretary of Commerce (collectively “Federal Defendants”) filed their memorandum in opposition (“Federal Defendants Opposition”).[1] [Dkt. nos. 50, 52.] Plaintiffs filed their reply on September 3, 2015. [Dkt. no. 57.]

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

BACKGROUND

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

In the instant case,

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

[Amended Complaint at ¶ 1.] The contested rule is NMFS, National Oceanic and Atmospheric Administration (“NOAA”), and Department of Commerce’s Final rule and final specifications regarding Western Pacific Pelagic Fisheries; U.S. Territorial Catch and Fishing Efforts Limits. This Court will refer to it as the “Quota Shifting Rule.”[2]

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

I. The Convention

The United States Senate consented to the ratification of the Convention in 2004.[3] S. Exec. Rep. No. 109-08, at 2, 6. The Senate’s report acknowledged that legislation was necessary to implement the Convention. Id. at 5. The ratification occurred in 2007, [Amended Complaint at ¶ 29; Federal Defs.’ Answer at ¶ 29, ] when the United States deposited the instrument of ratification and became a party to the Convention thirty days later. Pub. L. No. 109-479, 120 Stat. 3575 (Jan. 12, 2007).

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

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

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

The Commission’s functions include, inter alia:

(a) determine the total allowable catch or total level of fishing effort within the Convention Area for such highly migratory fish stocks as the Commission may decide and adopt such other conservation and management measures [(“CMMs”)] and recommendations as may be necessary to ensure the long-term sustainability of such stocks; [and]
(c) adopt, where necessary, conservation and management measures and recommendations for non-target species and species dependent on or associated with the target stocks, with a view to maintaining or restoring populations of such species above levels at which their reproduction may become seriously threatened[.]

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

II. Relevant CMMs

A. CMM 2005-01

The Commission’s CMM 2005-01 addressed bigeye and yellowfin tuna. [Pltfs.’ Concise Statement of Undisputed Material Facts (“Pltfs.’ CSOF”), filed 7/20/15 (dkt. no. 48), Declaration of David L. Henkin (“Henkin Declaration”), Exh. 8 (CMM 2005-01).] It provides that: “Through the adoption of necessary measures, the total level of fishing effort for bigeye and yellowfin tuna in the Convention Area shall not be increased beyond current levels.” [Id. at ¶ 1 (footnote omitted).] The United States’s bigeye tuna catch limit for the three years after the adoption of CMM 2005-01 was set at its 2004 catch level, [id. at ¶ 17 & n.2, ] which was 4, 181 metric tons (“mt”). [HLA’s Concise Statement in Opposition to Pltfs.’ Concise Statement of Material Facts (“HLA CSOF”), filed 8/20/15 (dkt. no. 51), Decl. of Ryan P. Steen (“Steen Decl.”), Exh. 3 (CMM 2008-01) at 41 (Attachment F (table of “Baseline Longline Bigeye Tuna Catches, by Flag”)).]

2. CMM 2008-01

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

-Ensure through the implementation of compatible measures for the high seas and [exclusive economic zones (“EEZs”)] that bigeye and yellowfin tuna stocks are maintained at levels capable of producing their maximum sustainable yield; . . . [and]
-Achieve, through the implementation of a package of measures, over a three-year period commencing in 2009, a minimum of 30% reduction in bigeye tuna fishing mortality from the annual average during the period 2001-2004 or 2004[.]

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

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

under the authority provided in Section 113(a), [4] the American Samoa government entered into a two-year fishing agreement with U.S. vessels in the Hawaii Longline Association (HLA), which include nearly all vessels operating in the Hawaii longline fishery. Consistent with Section 113(a), NMFS attributed 628 mt of bigeye tuna caught by HLA vessels under the agreement in 2011 to American Samoa.

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

3. CMM 2013-01

The Commission’s CMM 2013-01[5] again recognized that prior CMMs “have been unsuccessful in either restricting the apparent growth of fishing capacity or in reducing the fishing mortality of bigeye or juvenile yellowfin tuna.” [Steen Decl., Exh. 2 (CMM 2013-01) at 1.] Paragraph 40 of CMM 2013-01 states: “The catch limits in 2014 and thereafter for bigeye tuna shall be as specified in Attachment F. Any overage of the catch limit by a CCM shall be deducted from the catch limit for the following year for that CCM.”[6] [Id. at 10.] Attachment F, titled “Bigeye Longline Catch Limits by Flag, ” sets the following catch limits for the United States: 2014 - 3, 763 mt; 2015 - 3, 554 mt; 2016 -3, 554 mt; and 2017 - 3, 345 mt. [Id. at 21.] CMM 2013-01 states: “Paragraph 40 does not apply to members that caught less than 2, 000 tonnes in 2004. Each member that caught less than 2, 000 tonnes of bigeye in 2004 shall ensure that their catch does not exceed 2, 000 tonnes in each of the next 4 years (2014, 2015, 2016 and 2017).” [Id. at 10, ¶ 41.] It states that “opportunities for non-members will be decided by the Commission on a case by case basis.” [Id.] CMM 2013-01 does not address the 2014-2017 bigeye tuna catch limits for PTs.

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

CMM 2013-01 was later replaced by CMM 2014-01. [Reply, Suppl. Decl. of David L. Henkin (“Henkin Reply Decl.”), Exh. 42 (CMM 2014-01) at 14, ¶ 62.[7] CMM 2014-01 has the same catch limits for the United States. [Id. at 22 (Attachment F).] The parties’ arguments are based on CMM 2013-01, because it was the operative measure when NMFS promulgated the Quota Shifting Rule. However, the Court notes that the relevant provisions of CMM 2014-01 appear to be substantively identical to the relevant provisions of CMM 2013-01.

III. Implementation Act

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

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

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

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

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

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

IV. Magnuson-Stevens Act

The Ninth Circuit has stated:

The Magnuson-Stevens Fishery Conservation and Management Act (“Magnuson-Stevens Act”), 16 U.S.C. §§ 1801-1884, “was enacted to establish a federal-regional partnership to manage fishery resources.” Nat’l Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 749 (D.C. Cir. 2000). Under the Magnuson-Stevens Act, the federal government exercises “sovereign rights and exclusive fishery management authority over all fish, and all Continental Shelf fishery resources, within the exclusive economic zone” (“EEZ”), 16 U.S.C. § 1811(a), which extends from the seaward boundary of each coastal state to 200 miles offshore, id. § 1802(11); City of Charleston v. A Fisherman’s Best, Inc., 310 F.3d 155, 160 (4th Cir. 2002). The Magnuson-Stevens Act expressly preserves the jurisdiction of the states over fishery management within their boundaries. See 16 U.S.C. § 1856(a)(1).
To manage fishing in the EEZ, the Magnuson-Stevens Act calls for the creation of regional Fishery Management Councils (“FMCs”), composed of state and federal officials and experts appointed by the Secretary of the National Marine Fisheries Service (“NMFS”). 16 U.S.C. § 1852(b)(1)-(2). With the cooperation of “the States, the fishing industry, consumer and environmental organizations, and other interested persons, ” id. § 1801(b)(5), the NMFS and FMCs develop and promulgate Fishery Management Plans (“FMPs”) to “achieve and maintain, on a continuing basis, the optimum yield from each fishery, ” id. § 1801(b)(4). In the Magnuson-Stevens Act, “optimum yield” means the amount of fish that “will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems.” Id. § 1802(33); see also 50 C.F.R. § 600.310(e)(3).

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

The FMPs and FMP amendments that the regional councils prepare must be reviewed and approved by NMFS, and must comply with the requirements of 16 U.S.C. § 1853(a) and applicable laws. See 16 U.S.C. § 1854(a)(1)-(3). In addition, regional councils can propose regulations or modifications to regulations that are necessary to implement an FMP or an FMP amendment. § 1853(c). Any FMP or regulation implementing an FMP pursuant to the Magnuson-Stevens Act must be consistent with ten “national standards for fishery conservation and management.” 16 U.S.C. § 1851(a).

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

V. Quota Shifting Rule

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

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

Id. (emphasis added).

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

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

STANDARD

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

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall-
. . . .
(2) hold unlawful and set aside agency action, findings, and conclusions found to be-
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [and]
(D) without observance of procedure required by law[.]

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

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

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

I. Arbitrary and Capricious Review

The Ninth Circuit has stated that:

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

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

The arbitrary and capricious standard

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

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


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