FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PACIFIC COAST FEDERATION OF 

FISHERMEN’S ASSOCIATIONS; PORT

ORFORD OCEAN RESOURCE TEAM;

SAN FRANCISCO CRAB BOAT

OWNERS ASSOCIATION,

Plaintiffs-Appellants, No. 11-17108

v. D.C. No.

REBECCA M. BLANK, in her official  3:10-cv-04790-CRB

capacity as Acting Secretary of the OPINION United States Department of

Commerce; NATIONAL MARINE

FISHERIES SERVICE; NATIONAL

OCEANIC AND ATMOSPHERIC

ADMINISTRATION,

Defendants-Appellees. 

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted

August 7, 2012—San Francisco, California

Filed September 10, 2012

Before: Consuelo M. Callahan and Paul J. Watford,

Circuit Judges, and Edward R. Korman,

Senior District Judge.*

*The Honorable Edward R. Korman, Senior District Judge for the U.S.

District Court for Eastern New York, sitting by designation. 

10747
Opinion by Judge Callahan

10748 PACIFIC COAST FEDERATION v. BLANK
COUNSEL

Mark A. White and Andrea Kendrick, Chapman Popik &

White LLP, San Francisco, California; Mary L. Hudson

(argued), Law Office of Mary L. Hudson, Sausalito, California; Alan Waltner, Law Offices of Alan Waltner, San Francisco, California, for the plaintiffs-appellants.

Ignacia S. Moreno, Meredith Flax, Romney Philpott, Joseph

Matthews, Brian C. Toth (argued), U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C.; Mariam McCall, Office of General Counsel,

National Oceanic & Atmospheric Administration, Seattle,

Washington, for the defendants-appellees.

Shirish Gupta, San Mateo, California, for amicus curiae Food

& Water Watch, Inc.

Michael F. Scanlon and J. Timothy Hobbs (argued), K&L

Gates LLP, Seattle, Washington, for amici curiae Environmental Defense Fund, United Catcher Boats, and Midwater

Trawlers Cooperative.

OPINION

CALLAHAN, Circuit Judge:

In 2011, the National Marine Fisheries Service (“NMFS”)

and the Pacific Fishery Management Council (“Pacific Council” or “Council”) adopted changes to the fishery management

plan for the trawl sector of the Pacific Coast groundfish fishery. The changes, adopted as Amendments 20 and 21 to the

PacificCoast Groundfish Fishery Management Plan, are

designed to increase economic efficiency through fleet consolidation, reduce environmental impacts, and simplify future

decisionmaking. 

PACIFIC COAST FEDERATION v. BLANK 10751
Plaintiffs-Appellants Pacific Coast Federation of Fishermen’s Associations, et al. (“plaintiffs”) are a collection of primarily non-trawl fishermen’s associations and groups whose

longtime participation in the fishery may shrink under

Amendments 20 and 21. They argue that the Amendments are

unlawful under the Magnuson-Stevens Fishery Conservation

and Management Act (“MSA”), 16 U.S.C. §§ 1801-1884,

which imposes procedural and substantive requirements for

managing fisheries, and the National Environmental Policy

Act (“NEPA”), 42 U.S.C. §§ 4321-4347, which imposes

purely procedural requirements for reviewing the potential

environmental effects of proposed agency actions. 

The district court, which had jurisdiction pursuant to 16

U.S.C. § 1861(d) and 28 U.S.C. § 1331, granted summary

judgment to the defendants. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm. NMFS1 complied with the

MSA’s provisions, which required the agency to consider

fishing communities but did not require it to develop criteria

for allocating fishing privileges to such communities or to

restrict privileges to those who “substantially participate” in

the fishery. NMFS also complied with NEPA by preparing a

separate study for each amendment, analyzing a reasonable

range of alternatives, adequately evaluating potential environmental effects, and adopting flexible mitigation measures

designed, in part, to lessen the potential adverse effects of

Amendments 20 and 21 on fishing communities. The plaintiffs reasonably disagree with the balance NMFS struck

between competing objectives, but they do not show that

NMFS exceeded its statutory authority under the MSA or

ignored its obligations under NEPA. 

1The plaintiffs’ MSA arguments concern both NMFS and Pacific Council because both agencies share responsibility for implementing that statute. In contrast, only NMFS has obligations under NEPA. For ease of

reference, we refer simply to “NMFS” throughout this opinion. 

10752 PACIFIC COAST FEDERATION v. BLANK
BACKGROUND

A. Statutory and regulatory background

1. The MSA

a. Fishery management plans

The MSA establishes eight Fishery Management Councils

composed of fishing representatives and government and

tribal officials. 16 U.S.C. § 1852. The Councils are charged

with preparing fishery management plans for fisheries that

require “conservation and management.” Id. § 1852(h)(1).

Plans must contain measures to “prevent overfishing and

rebuild overfished stocks,” id. § 1853(a)(1)(A), and “assess

and specify,” among other things, the “optimum yield” from

each fishery, id. § 1853(a)(3); see also 50 C.F.R. § 600.10

(defining “optimum yield”). 

To the extent measures are necessary to reduce overall harvest to prevent overfishing, a fishery management plan must

allocate any harvest restrictions fairly and equitably among

the commercial and recreational sectors that participate in the

fishery. 16 U.S.C. § 1853(a)(13), (14). Plans may include

restrictions on fish catch or gear types, establish a limited

access system in order to achieve optimum yield, or include

any other measures “determined to be necessary and appropriate for the conservation and management of the fishery.” Id.

§ 1853(b)(3), (4), (6), (14). Plans must comply with ten

national standards. Id. §§ 1851(a), 1853(a)(1)(C),

1854(a)(1)(A). As relevant here, National Standard 2 requires

that “[c]onservation and management measures shall be based

upon the best scientific information available.” Id.

§ 1851(a)(2); see also 50 C.F.R. § 600.315(b)(1). National

Standard 8 requires that 

[c]onservation and management measures shall, consistent with the conservation requirements of this

PACIFIC COAST FEDERATION v. BLANK 10753
chapter (including the prevention of overfishing and

rebuilding of overfished stocks), take into account

the importance of fishery resources to fishing communities by utilizing economic and social data that

meet the requirements of [National Standard 2], in

order to (A) provide for the sustained participation of

such communities, and (B) to the extent practicable,

minimize adverse economic impacts on such communities.

16 U.S.C. § 1851(a)(8); see also 50 C.F.R. § 600.345(b)(2).2

The Fishery Management Councils submit fishery management plans for review by the public and review and approval

by NMFS, acting on behalf of the Secretary of Commerce. 16

U.S.C. § 1854(a). The Councils and NMFS follow the same

process for regulations to implement a given plan. Id.

§§ 1853(c), 1854(b). 

b. Limited access programs

Beginning in 1990, the Fishery Management Councils

began to regulate certain fisheries by adopting programs limiting those who could enter and participate in the fisheries. See

16 U.S.C. § 1853(b)(6) (authorizing “limited access system[s]

. . . in order to achieve optimum yield”). These programs were

referred to as “individual fishing quota” programs, under

which individual fishery participants received privileges to

harvest a specific quantity of fish.

In 1996, Congress imposed a temporary moratorium on

new quota programs until the National Academy of Sciences

2

“Fishing community” means a “community which is substantially

dependent on or substantially engaged in the harvest or processing of fishery resources to meet social and economic needs, and includes fishing vessel owners, operators, and crew and United States fish processors that are

based in such community.” 16 U.S.C. § 1802(17). 

10754 PACIFIC COAST FEDERATION v. BLANK
studied those programs and their effects on fishing communities. Pub. L. No. 104-297, § 108(f), 110 Stat. 3559, 3577-79

(1996). The resulting report concluded that quota programs

can be effective solutions to a host of fishery-related problems, including economic inefficiency, overcapitalization (too

many resources directed at too few fish), and overfishing, but

that such programs also can have serious adverse impacts on

fishing communities. The report ultimately recommended lifting the quota moratorium, subject to the report’s guidance.

The report noted that quota programs are most likely to be

successful when their objectives are clear and there is “broad

stakeholder support and participation.” Finally, the report

emphasized the need for quota programs to be designed on a

fishery-by-fishery basis.

In 2007, Congress reauthorized the MSA and lifted the

quota moratorium by adding a section that authorizes “limited

access privilege programs.” Pub. L. No. 109-479, § 106, 120

Stat. 3575, 3586 (2007) (codified at 16 U.S.C. § 1853a).

Under such programs, of which quota programs are a subset,

fishery participants receive “privileges” (or, in the case of

quota programs, “quota shares”) to harvest a certain portion

of the total catch allowed for a particular species. 16 U.S.C.

§ 1802(26). NMFS and the Fishery Management Councils

must structure limited access programs in accordance with

various requirements, some of which concern fishing communities and form the basis of the plaintiffs’ arguments in this

case. See infra Discussion, § A (discussing 16 U.S.C.

§ 1853a(c)(3), (5)). 

2. NEPA

NEPA requires federal agencies to examine and disclose

the environmental impacts of their proposed actions. Baltimore Gas & Elec. Co. v. NRDC, Inc., 462 U.S. 87, 97 (1983).

NEPA’s mandate is purely procedural. Robertson v. Methow

Valley Citizens Council, 490 U.S. 332, 350-51 (1989); NeighPACIFIC COAST FEDERATION v. BLANK 10755
bors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1070

(9th Cir. 2002).

NEPA requires federal agencies to prepare an environmental impact statement (“EIS”) for all “major Federal actions

significantly affecting the quality of the human environment.”

42 U.S.C. § 4332(2)(C). Under NEPA’s implementing regulations, 40 C.F.R. §§ 1500-1508 (1986), an agency prepares a

draft EIS in which it evaluates the proposed action and its

direct, indirect, and cumulative environmental impacts and

compares the proposed action with reasonable alternatives,

including a “no action” alternative, id. § 1502.14. The agency

then circulates the draft EIS for public review and comment.

Id. §§ 1502.19, 1503.1. The agency reviews and responds to

any comments, makes any appropriate changes to the EIS,

and then circulates the final EIS. Id. § 1503.4. Finally, the

agency selects an alternative and issues a decision. Id.

§ 1505.2.

B. Factual background

1. The Pacific groundfish fishery

The Pacific groundfish fishery extends 200 miles into the

Pacific Ocean, along the coasts of California, Oregon, and

Washington, and includes more than 90 species of fish that

dwell near the sea floor. Fishers use many different types of

gear, including trawl nets (nets dragged by boats along the sea

floor), traps, and longlines, but trawls dominate. The trawl

sector consists of two fisheries, one targeting Pacific whiting

(hake) and another targeting non-whiting species. The nontrawl sector includes fishers who use what is called “fixed

gear,” such as longlines and pots, and primarily targets sablefish.

Every two years, the Pacific Council establishes catch limits, called “optimum yields” or “annual catch limits,” which

“represent an annual quantity of fish that the groundfish fish10756 PACIFIC COAST FEDERATION v. BLANK
ery as a whole may catch.” Catch limits are divided among

different sectors of the fishery, such as between trawlers and

fixed gear fishers; these divisions are called “allocations.”

Prior to Amendments 20 and 21, the Council enforced catch

limits primarily by regulating the number of fishing trips. The

Council also used gear restrictions and seasonal and area closures. Through trip limits the Council was able to measure

and restrict harvests, but it was not able to comprehensively

measure or limit “bycatch,” which refers to non-targeted (and

often overfished) species that are incidentally caught and discarded. Indeed, before Amendments 20 and 21, bycatch was

recorded on only one-quarter of non-whiting trawl fishing

trips.

In mixed-stock fisheries like the Pacific groundfish fishery,

harvests of healthy species are constrained by measures to

protect overfished species, “even if those species are not targeted by any particular fishery.” The result is sub-optimal harvests. Between 1999 and 2002, seven species were designated

as overfished and have since had very low catch limits. See

NRDC v. Evans, 290 F. Supp. 2d 1051, 1052-53 (N.D. Cal.

2003). The Council has made various efforts over the years to

achieve optimum yields in the trawl fishery while reducing

adverse impacts to these overfished species. Nonetheless, “biological, social, and economic concerns” have remained, and

the fishery has continued to be viewed as “unsustainable.”

2. Amendments 20 and 21

In 2003, the Pacific Council set out to develop a program

for better managing the Pacific groundfish fishery. The Council ultimately settled on a goal to

[c]reate and implement a capacity rationalization

plan that increases net economic benefits, creates

individual economic stability, provides for full utilization of the trawl sector allocation, considers enviPACIFIC COAST FEDERATION v. BLANK 10757
ronmental impacts, and achieves individual

accountability of catch and bycatch.3

The Council also set other goals, such as simplifying the process for making allocations and reducing Pacific halibut

bycatch. 

Work on a plan to achieve these goals began in earnest in

2006, with public workshops, Council meetings, and structuring of alternative courses of action. The Council decided to

divide its goals into two proposals, one for rationalization of

the trawl sector and another for allocations and Pacific halibut

bycatch. Accordingly, NMFS prepared a separate draft and

final EIS for each proposal, evaluating alternatives, considering the alternatives’ potential environmental and economic

consequences, and discussing possible mitigation. The public

was invited to comment on each version of each EIS, as well

as on all proposed and final rules. See Pacific Coast Groundfish Fishery Management Plan, Amendments 20 and 21,

Trawl Rationalization Program, 75 Fed. Reg. 60,868, 60,868

(Oct. 1, 2010) (codified at 50 C.F.R. pt. 660).

In August 2010, NMFS approved Preferred Alternative 4b

as Amendment 20, and various preferred alternatives as

Amendment 21. NMFS issued regulations codifying the

Amendments about two months later. 75 Fed. Reg. at 60,868.

Amendment 20 (“Trawl Rationalization”) divides the trawl

fishery into three sectors4 and then assigns a discrete number

3According to the Amendment 20 EIS, “rationalization” is “meant to

encompass a variety of measures intended to improve the management of

groundfish resources, in part by improving the economic efficiency of the

fishery.” NMFS focused on rationalizing the trawl sector because of its

historic dominance and superior harvesting abilities. 

4These sectors are: (1) on-shore whiting and non-whiting vessels; (2)

off-shore whiting motherships (which process catch from other vessels);

and (3) off-shore catcher-processors, which process their own catch on

board. The plaintiffs here challenge only the provisions of Amendments

20 and 21 pertaining to the on-shore, non-whiting sub-sector. 

10758 PACIFIC COAST FEDERATION v. BLANK
of fishing privileges within each sector. For the on-shore sector, privileges are initially allocated based on catch history

and then become freely transferable after two years. Liberal

transferability is expected to yield economic efficiency and

bycatch reductions, but it also may force out participants from

local fishing communities by consolidating privileges and

making them more expensive. All trawl vessels must employ

observers who measure the number of target fish caught and

the number of non-target fish discarded as bycatch. Finally,

Amendment 20 includes various measures to reduce adverse

impacts to fishing communities. See infra Discussion, §§ A.1,

B.4.

Besides limiting Pacific halibut bycatch, Amendment 21

(“Intersector Allocation”) does various things to support

Amendment 20, the most important of which is to fix allocations of 19 groundfish stocks among the various trawl and

non-trawl sectors. For other species, the Pacific Council will

continue to assign allocations every two years. Amendments

20 and 21 were implemented on January 1, 2011. See 75 Fed.

Reg. at 60,868; Pacific Coast Groundfish Fishery Management Plan, Amendments 20 and 21, Trawl Rationalization

Program, 75 Fed. Reg. 78,344, 78,344 (Dec. 15, 2010) (codified at 50 C.F.R. pt. 660).

C. Procedural background

The plaintiffs filed suit in October 2010. In January 2011,

the plaintiffs filed an amended complaint alleging that: (1)

Amendment 20’s limited access program violated 16 U.S.C.

§ 1853a by failing to protect and promote the interests of fishing communities, specifically by failing to develop procedures

that would have allowed such communities to receive an initial allocation of privileges; (2) the program violated § 1853a

by failing to restrict the authority to receive and hold privileges to those who “substantially participate” in the fishery;

(3) NMFS violated various MSA national standards in

PACIFIC COAST FEDERATION v. BLANK 10759
approving Amendments 20 and 21; and (4) NMFS violated

NEPA in studying the Amendments.

The district court granted the plaintiffs’ request to expedite

the case under 16 U.S.C. § 1855(f)(4), and, after a hearing,

granted summary judgment in favor of the defendants on all

claims. Pac. Coast Fed’n of Fishermen’s Ass’n v. Locke, 2011

WL 3443533 (Aug. 5, 2011) (unpublished). The court held

that NMFS met its statutory obligations to fishing communities under the MSA, was not required to restrict privileges to

those who “substantially participate” in the fishery, followed

applicable national standards, and complied with NEPA.

NMFS, the court wrote, “could have gone about the process

of developing Amendments 20 and 21 differently and perhaps

avoided at least some of the issues presently before the

Court.” Id. at *1. However, “the Court is not called upon to

decide whether a different process might have been utilized or

whether the path ultimately chosen . . . is the wisest policy.”

Id.

The plaintiffs filed a timely notice of appeal. We granted

the plaintiffs’ unopposed motion to expedite the appeal. The

plaintiffs bring forward many, but not all, of the arguments

they made below.5

STANDARD OF REVIEW

We review the district court’s summary judgment de novo.

Humane Soc’y of the U.S. v. Locke, 626 F.3d 1040, 1047 (9th

Cir. 2010). Our review of NMFS’s compliance with the MSA

and NEPA is governed by the Administrative Procedure Act

5Two groups of amici who participated in the district court also participate on appeal. Supporting the plaintiffs is Food & Water Watch, Inc., a

non-profit organization representing fishers, conservationists, and consumers. Supporting NMFS are the Environmental Defense Fund (an environmental conservation group) and United Catcher Boats and Midwater

Trawlers Cooperative (fishing trade associations). 

10760 PACIFIC COAST FEDERATION v. BLANK
(“APA”), 5 U.S.C. §§ 701-706, under which a court may set

aside an agency action if it is “arbitrary, capricious, an abuse

of discretion or otherwise not in accordance with law,” id.

§ 706(2)(A); see also 16 U.S.C. § 1855(f)(1) (APA governs

NMFS’s compliance with the MSA); Pac. Rivers Council v.

U.S. Forest Serv., ___ F.3d ___, 2012 WL 2333558, *6 (9th

Cir. June 20, 2012) (APA governs agency’s compliance with

NEPA). 

Under the APA’s “arbitrary and capricious” standard, we

must determine whether the agency “has considered the relevant factors and articulated a rational connection between the

facts found and the choice made.” Baltimore Gas & Elec. Co.,

462 U.S. at 105; see also Midwater Trawlers Coop. v. Dep’t

of Commerce, 282 F.3d 710, 717 (9th Cir. 2002). This standard of review is “highly deferential, presuming the agency

action to be valid and affirming the agency action if a reasonable basis exists for its decision.” Nw. Ecosystem Alliance v.

U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir.

2007) (citation and internal quotation marks omitted).

Finally, NMFS’s interpretation of the MSA is reviewed

under the two-step framework of Chevron, U.S.A., Inc. v.

NRDC, Inc., 467 U.S. 837 (1984). We ask first “whether Congress has directly spoken to the precise question at issue.” Id.

at 842. If it has, we “must give effect to the unambiguously

expressed intent of Congress,” regardless of the agency’s

interpretation. Id. at 842-43. If, however, the statute is “silent

or ambiguous” with regard to the issue, we next ask “whether

the agency’s answer is based on a permissible construction of

the statute.” Id. at 843 (footnote omitted). We must defer to

the agency’s interpretation if it is reasonable. Id. at 844 (holding that when Congress has left a gap for an agency to fill, “a

court may not substitute its own construction of a statutory

provision for a reasonable interpretation made by the administrator of an agency”).

PACIFIC COAST FEDERATION v. BLANK 10761
DISCUSSION

A. NMFS complied with the MSA.

1. NMFS met its statutory obligations to fishing

communities.

Section 1853a(c) of the MSA, entitled “Requirements for

limited access privileges,” contains various provisions related

to fishing communities. Among other things, to be eligible to

participate in a limited access program, fishing communities

must “meet criteria developed by the relevant Council [and]

approved by the Secretary” and “develop and submit a community sustainability plan.” 16 U.S.C. § 1853a(c)(3)(A)(I). In

developing participation criteria, the Pacific Council must

consider factors such as traditional fishing practices, the “cultural and social framework relevant to the fishery,” economic

barriers to access, and economic and social impacts from the

limited access program on fishery-dependent persons and

businesses. Id. § 1853a(c)(3)(B). 

[1] Section 1853a(c) also requires NMFS to “establish procedures to ensure fair and equitable initial allocations” of

privileges. Such procedures must “include consideration of”

current and past harvests, employment in the harvesting and

processing sectors, investments in and dependent on the fishery, and “the current and historical participation of fishing

communities.” Id. § 1853a(c)(5)(A). In addition, NMFS must

(B) consider the basic cultural and social framework

of the fishery, especially through—

(i) the development of policies to promote

the sustained participation of small owneroperated fishing vessels and fishing communities that depend on the fisheries . . . ;

and

10762 PACIFIC COAST FEDERATION v. BLANK
(ii) procedures to address concerns over

excessive geographic or other consolidation

in the harvesting or processing sectors of

the fishery.

Id. § 1853a(c)(5)(B). NMFS also must 

include measures to assist, when necessary and

appropriate, entry-level and small vessel owneroperators, captains, crew, and fishing communities

through set-asides of harvesting allocations, including providing privileges, which may include setasides or allocations of harvesting privileges, or economic assistance in the purchase of limited access

privileges.

Id. § 1853a(c)(5)(C). Finally, NMFS must “ensure that limited access privilege holders do not acquire an excessive share

of the total limited access privileges in the program” by establishing a maximum share and “any other limitations or measures necessary,” and must “authorize” privileges “to be held,

acquired, used by, or issued under the system to persons who

substantially participate in the fishery.” Id. § 1853a(c)(5)(D)-

(E).

The plaintiffs argue that the preceding provisions required

NMFS to (1) develop criteria for ensuring that quota shares

are distributed to fishing communities, and (2) adopt “other

measures and policies” to ensure the sustained participation of

fishing communities. NMFS responds that § 1853a(c) only

required it to consider the sustained participation of fishing

communities against other objectives, including by developing optional participation criteria or other measures, and that

in any event Amendments 20 and 21 adequately serve to protect fishing communities. 

[2] NMFS is correct. The allocation provisions of

§ 1853a(c)(5) require NMFS, in developing “procedures to

PACIFIC COAST FEDERATION v. BLANK 10763
ensure fair and equitable initial allocations” of quota shares,

to “includ[e] consideration of” four specific factors and to

“consider” the “basic cultural and social framework of the

fishery.” Id. § 1853a(c)(5)(A)-(B). These provisions do not

require that fishing communities receive an allocation of

quota or, as the district court explained, “even be made eligible to do so.” Pac. Coast Fed’n of Fishermen’s Ass’n, 2011

WL 3443533, *6. Similarly, the plain language of

§ 1853a(c)(3) says that fishing communities must do certain

things “[t]o be eligible” to participate in a fishery, including

comply with “participation criteria for eligible communities”

that NMFS develops. 16 U.S.C. § 1853a(c)(3)(A)-(B). But

this language does not mandate that NMFS actually develop

participation criteria. In short, § 1853a requires NMFS to take

fishing communities into account in fashioning a limited

access program (something NMFS did; see infra); it does not

require NMFS to guarantee communities any particular role

in that program. Congress could have taken any number of

steps to guarantee fishing communities a specific role, but it

did not.6

The plaintiffs rely on § 1853a(c)’s legislative history to

supply mandatory requirements not found within the MSA

itself. Although there is “no reason to resort to legislative history” where, as here, the statute is clear, United States v. Gonzales, 520 U.S. 1, 6 (1997); see also Am. Rivers v. FERC, 201

F.3d 1186, 1204 (9th Cir. 1999), legislative history nonetheless can be “instructive,” Suzlon Energy Ltd. v. Microsoft

Corp., 671 F.3d 726, 728 (9th Cir. 2011). Here, § 1853a(c)’s

legislative history actually underscores the fact that NMFS

6For example, Congress could have: (1) added requirements pertaining

to participation criteria or allocations in the eleven requirements for limited access programs listed in § 1853a(c)(1); (2) imposed requirements on

NMFS or the Pacific Council, not just on fishing communities, in subsection (c)(3); (3) used a word stronger than “consider” in subsection (c)(5);

or (4) required an allocation to fishing communities in subsection (c)(5)

in the same way it prohibited an allocation to regional fishery associations

in subsection (c)(4). 

10764 PACIFIC COAST FEDERATION v. BLANK
was required only to consider fishing communities in developing a limited access program, not guarantee them a certain

type or level of participation in it. 

For example, the House Report on the bill that eventually

would become § 1853a states that the bill “creates a discretionary authority and criteria for the allocation of shares to

fishing communities and regional fishery associations.” H.R.

Rep. No. 109-567, at 32 (2006). In keeping with this permissive language, the Senate Report for the corresponding Senate

bill states that the bill “contains specific provisions that would

authorize the issuance of quota to fishing communities.” S.

Rep. No. 109-229, at 25 (2006) (emphasis added); see also id.

at 8 (explaining that limited access programs would be “expanded to allow allocation of harvesting privileges to fishing

communities . . . .” (emphasis added)).7

The plaintiffs alternatively argue that Amendments 20 and

21 “defy[ ] the National Standard 8 policy of fostering community participation in the fishery.” But that standard requires

only that conservation and management measures “take into

account the importance of fishery resources to fishing communities by utilizing [the best available] economic and social

data.” 16 U.S.C. § 1851(a)(8) (emphasis added). As we have

explained, “[t]he National Standards do not require any particular outcome with respect to allocations; rather, they provide a framework for the Council’s analysis. There is nothing

in the MSA that guarantees [a particular group] a directed . . .

fishery.” Fishermen’s Finest, Inc. v. Locke, 593 F.3d 886, 896

(9th Cir. 2010); see also 50 C.F.R. § 600.345(b)(2)

(“[National] [S]tandard [8] does not constitute a basis for allo7Senator Daniel Inouye, one of the bill’s sponsors, talked about his

intent to reduce overcapacity but also “sustain thriving fishing communities” by “promot[ing] access to residents of our coastal communities.” 152

Cong. Rec. S. 11,701, at 11,700 (Dec. 8, 2006). But even Senator Inouye

referred only to the need to “consider” and “take into account” limited

access programs’ social and economic implications. Id.

PACIFIC COAST FEDERATION v. BLANK 10765
cating resources to a specific fishing community nor for providing preferential treatment based on residence in a fishing

community.”). 

[3] The question remains whether NMFS met its obligations to consider fishing communities in fashioning Amendments 20 and 21. It did. NMFS recognized that fishing

communities must be considered under the MSA; surveyed

the current status of fishing communities (including observing

that many are “faltering” under the status quo); described the

effects of quota programs and other management tools on

those communities; and explained how communities participated in the Pacific Council’s decisions. In addition, NMFS

proposed, and the Council adopted, various measures to mitigate the impacts of trawl rationalization on fishing communities, including, among other things: an adaptive management

program under which up to ten percent of quota shares would

be reserved for communities; a two-year moratorium on share

transfers; a five-year review that includes a community advisory committee; and limits on the accumulation of shares by

single entities. These measures will provide an “equitable initial allocation” of quota shares, “assist” entry-level participants and fishing communities, and prevent a single share

holder from acquiring “excessive” shares. 16 U.S.C.

§ 1853a(c)(5)(A), (C)-(D). 

It is true that, despite these measures, Amendments 20 and

21 may weaken at least some fishing communities. Yet

NMFS was aware of the potential implications of approving

Amendments 20 and 21. For example, NMFS explained in its

final rule adopting the Amendments:

While the trawl rationalization program would move

the fishery toward some of its most important goals

and objectives, in order for the program to realize

those benefits, a large amount of consolidation

would have to occur, resulting in fewer people

employed in the fishery. The Council acknowledged

10766 PACIFIC COAST FEDERATION v. BLANK
and expressed concern about the expected consolidation and its impacts, and noted the need to attend to

the potential for disproportionate impacts on some

communities. . . . The Council also expressed an

interest in maintaining the character of the fleet and

a diversified industry. Balancing the need for consolidation to generate adequate levels of benefit with

the potential adverse impacts of consolidation was a

major challenge. At the same time, continuation of

status quo would have its own impacts, with both the

buyback program and cumulative limits having

caused significant consolidation in the fleet and a

redistribution of vessels along the coast.

Because of the high degree of concern about

impacts on communities and maintaining some sharing of benefits (both among harvesters and between

harvesters, processors, and others dependent on the

fishery) the Council made a number of tradeoffs in

the trawl rationalization program that may prevent

the program from reaching the full degree of economic efficiency that might otherwise be achievable

through rationalization. For example, accumulation

limits would help disperse fishery benefits, but

would inhibit consolidation. Additionally, some

[quota] was set aside for use in an [adaptive management program] to address such objectives as community and processor stability, new entry, conservation,

and other unidentified/unforeseen adverse consequences. A number of other measures were also considered as the Council struggled to find a balance

among sectors, states, vessels, ports, conservation

obligations, and its responsibility to try to develop a

regime that maximizes economic benefits while

simultaneously realizing, recognizing, and honoring

the social effects of its decisions.

75 Fed. Reg. at 60,872. 

PACIFIC COAST FEDERATION v. BLANK 10767
[4] In arguing that NMFS was required to adopt a policy

that better protects the historic role of non-trawl fishing communities in the groundfish fishery, the plaintiffs seek relief the

MSA does not require and this court is not empowered to

grant. See Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“[A]

reviewing court may not set aside an agency rule that is rational, based on consideration of the relevant factors and within

the scope of the authority delegated to the agency by the statute . . . . The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its

judgment for that of the agency.”). 

2. NMFS was not required to restrict quota shares

to those who “substantially participate” in the fishery.

Section 1853a(c) provides:

(1) In general. Any limited access privilege program

to harvest fish submitted by a Council or approved

by the Secretary under this section shall— 

. . . . 

(D) prohibit any person other than a United

States citizen, a corporation, partnership, or

other entity established under the laws of

the United States or any State, or a permanent resident alien, that meets the eligibility

and participation requirements established

in the program from acquiring a privilege to

harvest fish, including any person that

acquires a limited access privilege solely

for the purpose of perfecting or realizing on

a security interest in such privilege; 

. . . . 

10768 PACIFIC COAST FEDERATION v. BLANK
(5) Allocation. In developing a limited access

privilege program to harvest fish a Council or the

Secretary shall—

. . . . 

(E) authorize limited access privileges to

harvest fish to be held, acquired, used by,

or issued under the system to persons who

substantially participate in the fishery,

including in a specific sector of such fishery, as specified by the Council. 

. . . . 

(7) Transferability. In establishing a limited access

privilege program, a Council shall—

(A) establish a policy and criteria for the

transferability of limited access privileges

(through sale or lease), that is consistent

with the policies adopted by the Council for

the fishery under paragraph (5) . . . . 

16 U.S.C. § 1853a(c). 

The plaintiffs argue that § 1853a(c)(5) and (c)(7) require

NMFS to restrict the authority to receive and hold quota

shares to those who “substantially participate” in the fishery.

NMFS, however, construes § 1853a(c)(1)(D) to be the sole

provision setting forth who is excluded from acquiring quota

shares, and § 1853a(c)(5)(E) to mean “that those who substantially participate in the fishery must be among those eligible

to acquire [shares], but are not the only entities or person[s]

who can receive [shares].” 75 Fed. Reg. at 78,353. 

[5] NMFS has the better argument, for three reasons. First,

reading § 1853a(c)(5) and (c)(7) as the plaintiffs do requires

PACIFIC COAST FEDERATION v. BLANK 10769
inserting the word “only” or “solely” into subsection (c)(5).

The courts, however, “ordinarily resist reading words or elements into a statute that do not appear on its face.” Dean v.

United States, 556 U.S. 568, 572 (2009); see also Stanton Rd.

Assocs. v. Lohrey Enters., 984 F.2d 1015, 1020 (9th Cir.

1993) (explaining that the court “lack[s the] power” to “read

into the statute words not explicitly inserted by Congress”). 

Second, while the MSA refers to “persons who substantially participate in the fishery” in § 1853a(c)(5), that phrase

is not found in § 1853a(c)(1)(D), which is the only provision

that specifies who may not acquire quota shares—i.e., “any

person other than” an American citizen, lawful permanent resident, or legal entity who meets “the eligibility and participation requirements established in the program.” 16 U.S.C.

§ 1853a(c)(1)(D). “It is a general principle of statutory construction that when one statutory section includes particular

language that is omitted in another section of the same Act,

it is presumed that Congress acted intentionally and purposely

in the disparate inclusion or exclusion.” Barnhart v. Sigmon

Coal Co., 534 U.S. 438, 452 (2003) (citation and internal quotation marks omitted). 

[6] Third, limiting quota shares to those who “substantially

participate” in the fishery would conflict with other parts of

§ 1853a(c). See La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355,

370 (1986) (“[W]here possible, provisions of a statute should

be read so as not to create a conflict.”). Section

1853a(c)(1)(D) allows a quota share (which is, once again, a

type of “privilege”) to be held by “any person that acquires

a limited access privilege solely for the purpose of perfecting

or realizing on a security interest in such privilege.” 16 U.S.C.

§ 1853a(c)(1)(D). This allowance is inconsistent with limiting

shares to “substantial participants” in the fishery. Similarly,

§ 1853a(c)(5)(C) directs NMFS to “include measures to

assist, when necessary and appropriate, entry-level . . . owneroperators, captains, crew, and fishing communities through

set-asides of harvest allocations, including providing privi10770 PACIFIC COAST FEDERATION v. BLANK
leges.” Id. § 1853a(c)(5)(C) (emphasis added). “Entry-level”

persons and communities are, by definition, persons and communities who do not yet “substantially participate” in the fishery. Though the plaintiffs are correct that entry-level persons

may join through community and regional fishing associations, nothing in the MSA limits them to those avenues.8

[7] Despite this commonsense reading of the MSA, the

plaintiffs proffer four reasons why NMFS is obligated to limit

quota shares to those who “substantially participate” in the

fishery. First, the plaintiffs say it is “significant[ ]” that

§ 1853a(c)(1)(D) refers to “the eligibility and participation

requirements established in the program.” The implication is

that NMFS was required to adopt eligibility criteria that

accord with how the plaintiffs read the MSA. However, as the

district court explained, the plaintiffs seek to “graft[ ] a

requirement for agency action onto an authorization for

agency action.” Pac. Coast Fed’n of Fishermen’s Ass’n, 2011

WL 3443533, *9 (emphasis added). That is, § 1853a(c)(1)(D)

does not require, but rather simply contemplates, that “eligibility and participation requirements” may be “established in

the program.” Moreover, even if NMFS were required to

establish eligibility criteria beyond those in the MSA, there is

no mandate that those criteria screen out everyone who does

not “substantially participate” in the fishery.9

Second, the plaintiffs point to certain statements in

§ 1853a(c)’s legislative history. Again, legislative history is

8Throughout most of NMFS’s decisionmaking process, fishing communities expressed little or no interest in receiving an initial allocation of

quota shares. Accordingly, NMFS developed other mechanisms (adaptive

management, transferability and accumulation limits, etc.) to address the

impacts of Amendments 20 and 21 on fishing communities. 

9To the extent the plaintiffs argue that § 1853a(c)(5)(E) itself sets forth

the “eligibility and participation requirements” referred to in

§ 1853a(c)(1)(D), that argument fails; § 1853a(c)(1)(D) plainly contemplates requirements “established in the program” by NMFS, not by the

MSA. 

PACIFIC COAST FEDERATION v. BLANK 10771
irrelevant where, as here, the statute is clear. Am. Rivers, 201

F.3d at 1204. In any event, the best history the plaintiffs can

point to is a Senate Report that states: “[S]ection [1853a]

restricts the holding, acquisition, use, or issuance of [privileges] only to persons who substantially participate in a fishery.” S. Rep. No. 109-229, at 26 (2006) (emphasis added).

However, this statement, when read in context, plainly is concerned not with whether those who have not historically participated in the fishery should receive privileges, but with the

possibility a person might obtain a privilege and then fail to

use it, thereby effectively reducing the total allowable catch.

See id.

10 Moreover, the corresponding House Report states

that a very similar provision to § 1853a(c)(5) “authorize[s] all

those who substantially participate in the fishery to hold a

limited access privilege”—it does not say that the provision

restricts privileges to that group.11 H.R. Rep. No. 109-567, at

32 (July 17, 2006) (emphasis added). 

Third, the plaintiffs refer to a November 2007 NMFS technical memorandum the Pacific Council considered when

developing Amendments 20 and 21. The memorandum

explains:

10The full paragraph reads: “[Privileges] are not intended to be used as

a mechanism to reduce harvests through refinement of catch quota by

those who are not fishery participants. Total quota available for harvest is

established separately under the conservation requirements of the Act.

Therefore, this section restricts the holding, acquisition, use, or issuance

of [privileges] only to persons who substantially participate in a fishery.”

11The plaintiffs also cite an individual representative’s statement that

the then-bill “protects small fishermen from those who would like to consolidate fisheries. The privileges are to be held by fishermen who are

actively engaged and substantially participate in the fishery.” 152 Cong.

Rec. E2243-02 (daily ed. Dec. 27, 2006) (statement of Rep. Rahall). Even

if this statement could be read to support the plaintiffs’ argument, “[t]he

floor statements of an individual member of Congress who did not sponsor

the bill . . . have limited value in interpreting congressional intent.” Inland

Empire Pub. Lands Council v. Glickman, 88 F.3d 697, 702 (9th Cir.

1996). 

10772 PACIFIC COAST FEDERATION v. BLANK
The MSA does put some constraints on what the

Councils can choose to do. As previously discussed,

[§ 1853(c)(5)(E)] links privileges to be acquired or

held by persons to those who substantially participate in the fishery. 

. . . . 

While the Councils have some latitude in determining who may or may not acquire harvesting privileges, it is certainly more restrictive than the

“anybody can own” criterion mentioned above,

because of the citizenship requirements and the

“substantially participate in the fishery” clause. 

(Emphasis added.) However, even this excerpt stands only for

the proposition that privileges and participation are and must

be “link[ed],” a requirement NMFS has satisfied by making

substantial participants eligible to receive quota shares. 

The plaintiffs’ final argument is one of policy: allowing

persons who do not substantially participate in the fishery to

acquire and hold quota shares leads to “liberal transferability,” which in turn can result in “extreme or excessive fleet

consolidation, regional shifts in fishing commerce, loss of

fishing-related employment[,]” and other effects. However, as

discussed above, NMFS was aware of these effects but

decided to partially prioritize economic efficiency and fleet

consolidation over the protection of existing fishery participants, a choice that required fewer restrictions on who could

acquire and hold quota shares. The MSA did not preclude

NMFS from making that choice. 

B. NMFS complied with NEPA.

1. NMFS was not required to evaluate Amendments

20 and 21 and in a single EIS.

The plaintiffs argue that a single EIS was required for

Amendments 20 and 21 under two NEPA regulations: 40

PACIFIC COAST FEDERATION v. BLANK 10773
C.F.R. §§ 1502.4(a) and 1508.25(a)(1). Section 1502.4(a)

states that “[p]roposals or parts of proposals which are related

to each other closely enough to be, in effect, a single course

of action shall be evaluated in a single impact statement.”

Section 1508.25(a)(1), meanwhile, directs agencies to study

“connected actions” in “the same impact statement,” and sets

forth criteria for determining whether actions are “connected.”

[8] As an initial matter, the plaintiffs argue that a single

EIS was separately required under both sections. However,

§ 1502.4(a) does not impose an independent test for determining when to study related actions in a single EIS. Klamath Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989, 998 (9th Cir.

2004). Rather, as the section’s full language makes clear, it

directs agencies to § 1508.25 to make that determination: 

Agencies shall make sure the proposal which is the

subject of an environmental impact statement is

properly defined. Agencies shall use the criteria for

scope (§ 1508.25) to determine which proposal(s)

shall be the subject of a particular statement. Proposals or parts of proposals which are related to each

other closely enough to be, in effect, a single course

of action shall be evaluated in a single impact statement.

40 C.F.R. § 1502.4(a) (emphasis added). Thus, whether an

agency must prepare a single EIS for more than one proposal

turns on the criteria set forth in § 1508.25.12

12This conclusion is not undermined by dictum in Native Ecosystems

Council v. Dombeck, 304 F.3d 886, 893 (9th Cir. 2002), that “[a] single

NEPA review document is required for distinct projects when there is a

single proposal governing the projects, [citation], or when the projects are

‘connected,’ ‘cumulative,’ or ‘similar’ actions under the regulations implementing NEPA.” (Emphasis added.) Both Native Ecosystems Council and

the case it cites, Kleppe v. Sierra Club, 427 U.S. 390, 399, 410 (1976),

were concerned with whether an EIS was required for nonexistent pro10774 PACIFIC COAST FEDERATION v. BLANK
[9] Turning to those criteria, the plaintiffs argue that

Amendments 20 and 21 are “connected” actions. Actions are

“connected” if they:

(i) Automatically trigger other actions which may

require environmental impact statements.

(ii) Cannot or will not proceed unless other actions

are taken previously or simultaneously.

(iii) Are interdependent parts of a larger action and

depend on the larger action for their justification.

Id. § 1508.25(a)(1). By contrast, “[w]hen one of the projects

might reasonably have been completed without the existence

of the other, the two projects have independent utility and are

not ‘connected’ for NEPA’s purposes.” Great Basin Mine

Watch v. Hankins, 456 F.3d 955, 969 (9th Cir. 2000) (“The

crux of the [independent utility] test is whether each of two

projects would have taken place with or without the other

. . . .”) (citation and internal quotation marks omitted). 

[10] Amendments 20 and 21 have independent utility, and

thus are not connected actions under § 1508.25(a)(1). First,

the two amendments have overlapping, but not co-extensive,

goals. Whereas Amendment 20’s goals are to increase net

economic benefits, maximize allowable trawl harvests, consider environmental impacts, and improve individual accountgrammatic proposals, not whether two or more existing proposals were a

“single course of action.” In any event, we have since reaffirmed that

§ 1502.4(a) “directs the agency to use the ‘scoping’ provisions contained

in 40 C.F.R. § 1508.25 to determine whether nominally separate proposals

are a ‘single course of action.’ ” Klamath Siskiyou Wildlands Ctr., 387

F.3d at 998; cf. Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291,

1306 (9th Cir. 2003) (explaining that Ninth Circuit case law requires “the

preparation of a comprehensive EIS only for cumulative and connected

actions,” not “similar” actions). 

PACIFIC COAST FEDERATION v. BLANK 10775
ability of catch and bycatch, Amendment 21’s goals are to

simplify allocation decisions, support Amendment 20, and

limit Pacific halibut bycatch. Similarly, whereas Amendment

20 is limited to trawling, Amendment 21 allocates catch limits

between trawl and non-trawl sectors. While it is true the

record is replete with statements about how Amendments 20

and 21 are linked, two actions are not connected simply

because they benefit each other or the environment. See Nw.

Res. Info. Ctr. v. NMFS, 56 F.3d 1060, 1068-69 (9th Cir.

1995) (two actions were not connected merely because they

both would benefit salmon); Sylvester v. U.S. Army Corps of

Eng’rs, 884 F.2d 394, 400 (9th Cir. 1989) (“[E]ach [action]

could exist without the other, although each would benefit

from the other’s presence.”). 

Perhaps more important than parsing NMFS’s words or

predicting whether it would adopt one Amendment without

the other is answering the question whether, in preparing separate EISs, NMFS evaded its duty to fully study the combined

effects of Amendments 20 and 21. This is the real concern

behind § 1508.25. See Great Basin Mine Watch, 456 F.3d at

969 (“The purpose of this requirement is to prevent an agency

from dividing a project into multiple ‘actions,’ each of which

individually has an insignificant environmental impact, but

which collectively have a substantial impact.” (citation and

internal quotation marks omitted)); W. Radio Servs. Co. v.

Glickman, 123 F.3d 1189, 1194 (9th Cir. 1997) (explaining

that NEPA prevents an agency from “illegally segmenting

projects in order to avoid consideration of an entire action’s

effects on the environment”) (citing Thomas v. Peterson, 753

F.2d 754, 758-59 (9th Cir. 1985) (finding connected actions

under § 1508.25)).

[11] This “divide and conquer” concern is not present here.

NMFS prepared lengthy EISs that thoroughly studied the

direct, indirect, and cumulative effects of Amendments 20 and

21, individually and together. The plaintiffs nonetheless argue

that studying the two Amendments in separate EISs allowed

10776 PACIFIC COAST FEDERATION v. BLANK
NMFS to “dismiss public comments . . . on the basis that they

were made on the wrong EIS or were outside the scope of the

particular amendment.” However, the plaintiffs’ record citations, and indeed the record as a whole, show just the opposite: NMFS clarified what each amendment did and

substantively addressed the misdirected comment or referred

the reader to the appropriate EIS, where those issues were

always addressed. NMFS’s decision to prepare two amendments, and hence two EISs, did not undermine its compliance

with NEPA. 

2. NMFS studied a reasonable range of alternatives.

[12] NEPA requires an agency to study a range of reasonable alternatives to the proposed action. See 42 U.S.C.

§ 4332(2)(C); 40 C.F.R. §§ 1502.1, 1502.14, 1502.16; Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 865

(9th Cir. 2004). The alternatives analysis is the “heart” of an

EIS. Ctr. for Biological Diversity v. U.S. Dep’t of Interior,

623 F.3d 633, 642 (9th Cir. 2010) (quotation marks and citation omitted). We “review an agency’s range of alternatives

under a ‘rule of reason’ standard that requires an agency to set

forth only those alternatives necessary to permit a reasoned

choice.” Presidio Golf Club v. Nat’l Park Serv., 155 F.3d

1153, 1160 (9th Cir. 1998) (quotation marks, alteration, and

citation omitted); see also N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 978 (9th Cir. 2006) (“Under NEPA, ‘an

agency’s consideration of alternatives is sufficient if it considers an appropriate range of alternatives, even if it does not

consider every available alternative.’ ” (quoting Headwaters,

Inc. v. BLM, 914 F.2d 1174 (9th Cir. 1990))).13

13The Supreme Court has made clear that “inherent in NEPA and its

implementing regulations is a ‘rule of reason.’ ” Dep’t of Transp. v Public

Citizen, 541 U.S. 752, 767 (2004); see also Vermont Yankee Nuclear

Power Corp. v. NRDC, Inc., 435 U.S. 519, 551 (1976) (“Common sense

also teaches us that the ‘detailed statement of alternatives’ cannot be found

wanting simply because the agency failed to include every alternative

device and thought conceivable by the mind of man.”). 

PACIFIC COAST FEDERATION v. BLANK 10777
[13] In this case, NMFS studied enough alternatives “to

permit a reasoned choice.” In Chapter 2 of the Amendment 20

EIS, NMFS studied in detail seven alternatives (four primary

alternatives, two of which had sub-alternatives). These alternatives varied in many respects, ranging from how they managed catch, initially allocated privileges, and treated

processors to the accumulation limits they set and the species

they covered. The alternatives’ most important difference was

their “catch control tool”; whereas the “no action” or “status

quo” alternative would have used trip and seasonal limits, the

other alternatives proposed various types of quota systems or

cooperatives. For Amendment 21, NMFS studied six alternatives in detail, which differed primarily based on how they

allocated groundfish stocks among different sectors.

The plaintiffs object that NMFS considered only quota programs in the Amendment 20 EIS, “with no variations at all

from NMFS’s initial proposal (such as community shares,

auctions, limited term shares, etc.).” In the plaintiffs’ view,

NMFS was required to “embrace the range of options an

agency can lawfully pursue under its substantive mandates.”

This argument fails as a matter of law and a matter of fact.

“An agency need not . . . discuss alternatives similar to alternatives actually considered, or alternatives which are ‘infeasible, ineffective, or inconsistent with the basic policy

objectives’ ” of the project. N. Alaska Envtl. Ctr., 457 F.3d at

978 (quotation omitted); Westlands Water Dist., 376 F.3d at

868, 871. NMFS identified Amendment 20’s “purpose and

need” as providing a trawl rationalization program that would

improve economic efficiency and stability, consider environmental impacts, and reduce bycatch through individual

accountability. NMFS reasonably determined that quota programs would be most effective in meeting these goals for

most sectors, but it studied alternatives that differed in how

those programs would be designed and implemented.14 These

14Because project alternatives are based on an EIS’s “purpose and

need,” 40 C.F.R. § 1502.13, an agency’s alternatives analysis may be

10778 PACIFIC COAST FEDERATION v. BLANK
alternatives allowed NMFS to fully vet the consequences of

its actions. 

Moreover, NMFS did consider catch control tools besides

quotas. Most obviously, NMFS studied in detail a “no action”

alternative that would have used trip and seasonal limits (the

Pacific Council’s current management tools) in place of quotas. NMFS also studied in detail three alternatives that would

have used cooperatives rather than quotas, although only for

sectors not at issue in this litigation. NMFS also briefly considered and rejected auctions, performance-based allocations,

and area-based management. NEPA permits agencies to eliminate alternatives from detailed analysis so long as they

“briefly discuss the reasons for their having been eliminated.”

40 C.F.R. § 1502.14(a). 

As for Amendment 21, the plaintiffs complain that NMFS

studied alternatives that uniformly were based on recent catch

inadequate if it draws its purpose and need statement too narrowly, Nat’l

Parks & Conservation Ass’n v. BLM, 606 F.3d 1058, 1070-72 (9th Cir.

2009). Only amicus Food & Water Watch argues that NMFS committed

this error here; the plaintiffs do not raise this issue except in their reply

brief, and then only tersely. See Simmons v. Navajo Cnty., Ariz., 609 F.3d

1011, 1022 n.3 (9th Cir. 2010) (“[W]e decline to consider an argument

raised only by [amicus] on appeal.” (alteration in Simmons) (quotation

marks and citation omitted)); Turtle Island Restoration Network v. U.S.

Dep’t of Commerce, 672 F.3d 1160, 1166 n.8 (9th Cir. 2012)

(“[A]rguments raised for the first time in a reply brief are waived.” (quotation marks and citation omitted)). 

Even if this issue were properly before us, we would conclude that

NMFS drafted reasonable statements of purpose and need for Amendments 20 and 21. See Friends of Southeast’s Future v. Morrison, 153 F.3d

1059, 1066-67 (9th Cir. 1998) (explaining that “this court has afforded

agencies considerable discretion to define the purpose and need of a project,” and accordingly reviews such a statement for reasonableness).

NMFS’s statements sought to further MSA-compliant management goals

and were not so narrow as to leave only one viable alternative. See Nat’l

Parks & Conservation Ass’n, 606 F.3d at 1070; City of Carmel-By-TheSea, v. U.S. Dep’t of Transp., 123 F.3d 1142, 1155-56 (9th Cir. 1997). 

PACIFIC COAST FEDERATION v. BLANK 10779
histories, with only “minor variations in the allocation methodology.” As with Amendment 20, the plaintiffs overlook

Amendment 21’s purpose and need, which was to simplify

management decisions by making fixed allocations, support

trawl rationalization by eliminating the uncertainty of biennial

allocations, and limit Pacific halibut bycatch. Thus, while the

alternatives take the similar approach of making fixed allocations for certain stocks, they differ materially in how they

would make those allocations—i.e., based on recent total

catch percentages for some or all sectors, on historical landed

catch for some sectors, or on recent catch with carve-outs for

certain species. These material differences allowed NMFS to

thoroughly study the potential consequences of its action.

Finally, the plaintiffs contend that NMFS’s decision was

predetermined because NMFS “had selected all of the key

features of their proposed trawl [quota] Program by September 2006,” before NMFS prepared the EISs. The plaintiffs are

incorrect. NMFS identified preferred alternatives at various

points in the NEPA process, just as NEPA requires. See 40

C.F.R. § 1502.14(e); see also Metcalf v. Daley, 214 F.3d

1135, 1142 (9th Cir. 2000) (“NEPA does not require that

agency officials be ‘subjectively impartial,’ ” only that “projects be objectively evaluated.” (citation omitted)). However,

NMFS did not select alternatives until the conclusion of the

NEPA process. The planning and evaluation for Amendments

20 and 21 took seven years, during which time NMFS appropriately winnowed its options. 

3. NMFS adequately evaluated impacts on fish 

habitat and non-trawl fishing communities.

[14] An EIS must contain “a reasonably thorough discussion of the significant aspects of the probable environmental

consequences” of a proposed action. City of Carmel-By-TheSea, 123 F.3d at 1150 (quotation marks and citation omitted).

“Alternatively phrased, we review agency decisions to ensure

that ‘the agency has taken a “hard look” at the potential envi10780 PACIFIC COAST FEDERATION v. BLANK
ronmental consequences of the proposed action.’ ” Nw. Envtl.

Advocates v. NMFS, 460 F.3d 1125, 1133 (9th Cir. 2006)

(quoting Klamath-Siskiyou Wildlands Ctr., 387 F.3d at 993).

Excluding appendices, the Amendment 20 and 21 EISs

contain 384 and 102 pages of detailed effects analysis, respectively. The plaintiffs nonetheless complain that this analysis

is inadequate because it focuses mostly on socioeconomic

impacts; only a small portion is devoted to the Amendments’

environmental effects, and an even smaller portion to the

Amendments’ effects on groundfish habitat specifically. In

the plaintiffs’ view, NEPA requires more, especially since the

Amendments will, in their view, “ensure the long-term domination of trawling” in the fishery and trawling is harder on

fish habitat than fishing using fixed gear.

[15] The plaintiffs are incorrect. Amendments 20 and 21

will not necessarily favor trawling over fixed gear relative to

current management. The EISs explain that trawling is permitted under the existing fishery management plan and is

responsible for the majority of the catch. Amendments 20 and

21 may actually decrease trawling’s dominance by consolidating the trawling fleet, allowing trawlers to switch to fixed

gear, and allocating more fish to non-trawlers than they have

caught in recent years. NMFS will re-evaluate Amendment

21’s allocations every five years. 

The record is candid that the effects of Amendments 20 and

21 on groundfish habitat are less conclusive. The Amendment

20 EIS discusses “general shifts in fishing location [that]

would translate to either an increase or decrease of trawling

in certain areas.” Rationalization would allow for shifts

between trawl gear and fixed gear. Although fixed gear “is

thought to be less destructive to bottom habitat” than trawl

gear, and therefore could “reduce the impacts to habitat that

is currently trawled,” that switch also could aggravate adverse

impacts by exposing currently-untrawled areas to fishing. The

EIS supports this discussion with modeling, incorporates by

PACIFIC COAST FEDERATION v. BLANK 10781
reference, pursuant to 40 C.F.R. § 1502.21, a previous comparative analysis of the effects of different types of gear on

fish habitat, and refers readers to Amendment 19, which was

specifically aimed at protecting fish habitat. See 71 Fed. Reg.

27,408 (May 11, 2006) (codified, as amended, at 50 C.F.R. pt.

660). 

As for Amendment 21, NMFS explained that it would “not

provide more bottom trawl opportunity than status quo management measures and allocations,” and in fact would provide

higher non-trawl allocations for most species than the status

quo or any other alternative. Thus, even if trawl gear has more

impacts than fixed gear on fish habitat, “potential adverse

impacts from trawl gear could be expected to be lower under

the proposed action than under” current management or other

alternatives. These discussions may be less robust than the

discussions of socioeconomic effects, but NEPA only requires

agencies to discuss impacts “in proportion to their significance.” 40 C.F.R. § 1502.2(b).

The plaintiffs’ two remaining arguments lack merit. First,

the Amendment 20 and 21 EISs extensively discuss potential

effects on non-trawl communities. While the plaintiffs point

specifically to the non-trawl community of Port Orford, Oregon, the Amendment 20 EIS at least mentions that community

at several points, and the plaintiffs make no showing that the

EISs’ more general discussion of non-trawl communities does

not apply to Port Orford. 

Second, in arguing that NMFS failed to adequately study

the impacts of trawling on groundfish habitat, the plaintiffs

contend that NMFS also failed to comply with MSA National

Standard 2, which provides that “[c]onservation and management measures shall be based upon the best scientific information available,” 16 U.S.C. § 1851(a)(2), and with various

other “action forcing” National Standards that promote conservation, see id. § 1851(a)(1), (4), (5), (9). NMFS, however,

explained why Amendments 20 and 21 comply with each of

10782 PACIFIC COAST FEDERATION v. BLANK
the National Standards; disclosed the potential impacts of

trawling on habitat and identified uncertainty where it exists;

and ultimately settled on amendments that promote conservation by posting observers on all boats, improving economic

efficiency and individual accountability, and reducing

bycatch.15

4. MNMFS adequately considered mitigation.

[16] NEPA’s implementing regulations require agencies to

discuss potential mitigation measures in their EISs and decision documents. See 40 C.F.R. §§ 1502.14(f), 1502.16(e)-(h),

1505.2(c), 1508.25(b)(3); see also id. § 1508.20 (defining

“mitigation”). Mitigation must “be discussed in sufficient

detail to ensure that environmental consequences have been

fairly evaluated.” Methow Valley Citizens Council, 490 U.S.

at 353. Such discussion necessarily includes “an assessment

of whether the proposed mitigation measures can be effec15The National Standards, and the MSA more generally, require NMFS

to balance conservation with yield, not favor one at the expense of the

other. See Alliance Against IFQs v. Brown, 84 F.3d 343, 349 (9th Cir.

1996) (observing this “tension” in the Standards). As NMFS explained, 

As management needs arise, the Council and NMFS respond to

them. Amendment 19 established extensive protections for habitat. Amendment 20 maintains those protections while specifically

addressing a separate management need for rationalization as

described in the purpose and needs statement. While [fishery

management plan] amendments must comply with the broad

array of policy objectives in the MSA’s National Standards and

within the FMP, not every [plan] amendment will thoroughly

address every management need in the fishery simultaneously.

NMFS and the Council will continue to review the best available

information regarding habitat needs and develop additional management measures if necessary and appropriate. 

Cf. Nw. Res. Info. Ctr., 56 F.3d at 1069 (“[W]e . . . cannot force an agency

to aggregate diverse actions to the point where problems must be tackled

from every angle at once. To do so risks further paralysis of agency decisionmaking.”). 

PACIFIC COAST FEDERATION v. BLANK 10783
tive.” S. Fork Band Council of W. Shoshone of Nev. v. U.S.

Dep’t of Interior, 588 F.3d 718, 727 (9th Cir. 2009). 

Amendment 20 contains two primary mitigation features.

The first is an “adaptive management program” under which

up to ten percent of the quota shares each year will be set

aside to address unforeseen effects, such as harm to fishing

communities and barriers to entry for new participants. In the

record, NMFS discussed, but did not adopt, criteria for deciding when and how to allocate these reserve shares, and stated

that shares not used for adaptive management would be proportionally distributed to privilege holders. The second mitigation feature is a quadrennial review to make sure the

program is meeting its goals, with the first review occurring

five years after program implementation. The review process

includes a community advisory committee. Amendment 20

also contains other measures expected to meaningfully reduce

the impacts of trawl rationalization on fishing communities,

such as caps on the accumulation of quota shares and an initial two-year moratorium on transferring shares. Amendment

21 contains a five-year review provision, but no other mitigation.

[17] The plaintiffs argue that these mitigation measures are

vague, uncertain, and inadequate. However, we previously

have found reasonably detailed mitigation evaluations like the

ones at issue here to be sufficient. See, e.g., Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 476-77 (9th Cir.

2000); City of Carmel-by-the-Sea, 123 F.3d at 1154; see also

Tillamook Cnty. v. U.S. Army Corps of Eng’rs, 288 F.3d

1140, 1144 (9th Cir. 2002) (“While the [agency] was required

to develop the proposed mitigation measures ‘to a reasonable

degree,’ it was not required to develop a complete mitigation

plan detailing the ‘precise nature . . . of the mitigation measures.’ ” (quoting Wetlands Action Network, 222 F.3d at

1121))). The plaintiffs also argue that there is no assurance

that adaptive management reserve shares will be allocated to

fishing communities. However, an “assurance” that a particu10784 PACIFIC COAST FEDERATION v. BLANK
lar number of privileges will go to a particular purpose at a

particular time is not only inconsistent with the notion of

“adaptive management,” it is not required by NEPA: “a mitigation plan need not be legally enforceable, funded or even in

final form to comply with NEPA’s procedural requirements.”

Nat’l Parks & Conservation Ass’n v. U.S. Dep’t of Transp.,

222 F.3d 677, 681 n.4 (2000); see also Methow Valley Citizens Council, 490 U.S. at 352 (“There is a fundamental distinction, however, between a requirement that mitigation be

discussed in sufficient detail to ensure that environmental

consequences have been fairly evaluated, on the one hand,

and a substantive requirement that a complete mitigation plan

be actually formulated and adopted, on the other.”).16 Moreover, NMFS explained that waiting to distribute privileges

under the adaptive management program makes sense; the

Amendments will be easier to implement, their effects will be

more discernible, and the program will be better developed.

CONCLUSION

The MSA requires NMFS to consider fishing communities

in fashioning a limited access program, not to guarantee them

a particular role in the program. The MSA also requires

NMFS to make fishing privileges available to those who substantially participate in a fishery, not to restrict such privileges

to that group. NMFS satisfied these duties and complied with

the MSA’s National Standards. As for NEPA, NMFS appropriately studied Amendments 20 and 21 in separate EISs, considered an adequate range of alternatives, evaluated the

Amendments’ impacts on fish habitat and non-trawl communities, and considered and adopted appropriate mitigation

measures. The district court’s judgment for the Federal

Defendants-Appellees is AFFIRMED. 

16An agency must implement the measures it chooses to adopt in its

decision. See 40 C.F.R. § 1505.3. However, NEPA, as a purely procedural

statute, does not require an agency to adopt particular mitigation measures.

PACIFIC COAST FEDERATION v. BLANK 10785