IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

STATE OF ALASKA, Plaintiff, v. JANE LUBCHENCO, et al., Defendants. Case No. 3:10-cv-00271-TMB

ALASKA SEAFOOD COOPERATIVE, et al., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants. Case No. 3:11-cv-00001-TMB

FREEZER LONGLINE COALITION, Plaintiff, v. JANE LUBCHENCO, et al., Defendants. Case No. 3:11-cv-00004-TMB

ORDER Oral argument in this matter is scheduled for this afternoon. Typically, it is this Courts practice to announce questions that it would like the parties to address at the beginning of oral argument. However, given the amount of material in this case, the length of the argument, and
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the number of questions, the Court has decided to provide the questions to the Parties in advance of the argument in this case. The Court would appreciate it if the Parties would direct some of the time at oral argument to responding to questions listed below. Questions for all Parties 1. Do all of the Parties contemplate that the Courts ruling on the present motions

will dispose of the case one way or the other? In other words, if the Court rules in favor of the Defendants, do the Parties anticipate that the Court will enter summary judgment for the Defendants despite the fact that the Defendants have not cross-moved for summary judgment? Alternatively, are Defendants contending that there are genuine disputes of material fact that would preclude the Court from granting Plaintiffs motions if it were inclined to do so? 2. The Parties dispute whether the National Marine Fisheries Service (NMFS)

properly invoked the good cause exception to the notice and comment requirements under the Administrative Procedure Act (APA). Defendants argue that it was proper because NMFS could not allow the proposed action to proceed (i.e., the opening of the fisheries under the thenexisting restrictions) once it had found jeopardy and adverse modification. What would have happened on January 1, 2011, if NMFS had taken no action? Would the fisheries have opened, or did that require some affirmative act from NMFS? Questions for Plaintiffs 3. Plaintiffs argue that NMFS did not have authority to issue the Interim Final Rule

(IFR), and that only the North Pacific Fishery Management Council (Council) could issue this type of regulation under the Magnuson Stevens Fishery Conservation and Management Act (MSA). Did the Council ever suggest to NMFS that it did not have the power to issue the IFR?
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4.

Plaintiffs argue that NMFS improperly invoked the good cause exception to the

APA notice and comment requirements because there was no real emergency here. What, in their view, were NMFSs options once it issued the final BiOp finding that the fisheries would jeopardize the western Distinct Population Segment of the Stellar sea lion (WDPS) or adversely modify its critical habitat? Could NMFS have let the fisheries proceed under the old restrictions? If NMFS had done so, would that violate the Endangered Species Act (ESA)? 5. Plaintiffs argue that NMFS gave too much consideration to recovery

considerations when making its jeopardy and adverse modifications determinations under ESA 7(a)(2). But Plaintiffs also appear to recognize that NMFS must give recovery some consideration under the applicable Ninth Circuit decisions. How much, in the Plaintiffs view, is too much? Under their view of the law, is NMFS in an impossible position given that it must consider recovery, but cannot consider it too much? 6. Plaintiffs suggest that NMFS had to definitively prove a causal relationship

between the fisheries and the WDPS population in order to find jeopardy and adverse modification under ESA 7(a)(2). But the agencys obligation is to insure that the proposed action will not jeopardize the species continued existence or adversely modify its critical habitat. Doesnt the plain language of the statute suggest that, if anything, the agency has to err on the side of assuming that a causal relationship does exist? In other words, doesnt the agency have to satisfy itself that there is no jeopardy or adverse modification? 7. Plaintiffs argue that NMFS improperly based its jeopardy and adverse

modification findings on analyses of two sub-regions within the WDPS. Do Plaintiffs dispute the legal proposition that NMFS can make a finding of jeopardy or adverse modification based

on its analysis of a subset of a species where it finds that harm to the subset would affect the species overall? 8. Plaintiffs appear to argue that the beneficial environmental impacts of the

restrictions were interrelated with negative economic and social impacts, requiring that NMFS prepare a full environmental impact statement (EIS). Defendants appear to think that Plaintiffs may be arguing that the beneficial impacts, alone, required preparation of an EIS. Is that the case? If so, however, would it require NMFS to weigh the economic and social considerations that Plaintiffs argue should preclude the restrictions at issue here? 9. Plaintiffs also claim that NMFS should have issued a full EIS because the

restrictions were controversial and their effects are uncertain. But under Plaintiffs view, wouldnt the environmental effects be less significant than what NMFS believes? In other words, NMFS believes that there will be beneficial effects from the restrictions, but if Plaintiffs are correct, the restrictions will have almost no effect on the environment. Questions for Defendants 10. NMFS issued the IFR pursuant to its powers under 305(d) of the MSA and

3.5.3 of the Fishery Management Plans (FMP). Had NMFS ever issued a rule like this before under either 305(d) or the FMPs? Had NMFS ever issued any regulations under the FMPs? Had the Council? 11. NMFS started this process in October of 2005 when the Council asked it to

initiate a 7(a)(2) consultation. Over five years later, in November of 2010, NMFS issued the final BiOp where it found jeopardy and adverse modification. But instead of going through the typical APA notice and comment process, NMFS invoked the good cause exception before

issuing the IFR. What was the emergency? Why couldnt NMFS have taken another few months to collect comments on the rule given that they had already taken five years? 12. If NMFS had allowed the fisheries to go forward under the prior restrictions on

January 1, 2011, could it have simply adjusted the restrictions once it completed the APA notice and comment process? 13. In this case, NMFS argues that it properly considered recovery as part of its ESA

7(a)(2) analysis. In their reply brief, Plaintiffs argue that the Federal Defendants have taken an inconsistent position in the National Wildlife Federation v. NMFS case pending in the District of Oregon, citing excerpts of their brief where the Federal Defendants argue that an action need not achieve recovery in order to satisfy 7(a)(2). What is Defendants response? 14. Plaintiffs argue that NMFS failed to apply the correct adverse modification

standard. NMFS stated that it was not using the regulatory definition in light of the Ninth Circuits decision in Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1070 (9th Cir. 2004). In that case, the court held that the regulatory definition was invalid to the extent that it only required an agency to consider survival and not recovery. However, subsequently, the Ninth Circuit decided Butte Envtl. Council v. U.S. Army Corp of Engrs, 620 F.3d 936, 948 (9th Cir. 2010), where the court held that the part of the regulatory definition providing that an adverse modification is a direct or indirect alteration that appreciably diminishes the value of the critical habitat is still valid. That decision was issued two months before the draft BiOp. Did NMFS apply the wrong standard? If so, why wouldnt that be arbitrary and capricious? 15. NMFS issued a full EIS on prior occasions when it re-evaluated the fishery

restrictions in the late 1990s and early 2000s. Initially, it also indicated that it was going to do so
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here. Why didnt it? Was it just rushing to complete the process in order to protect itself against litigation from Oceana and Greenpeace? Dated at Anchorage, Alaska, this 21st day of December, 2011. /s/ Timothy M. Burgess TIMOTHY M. BURGESS UNITED STATES DISTRICT JUDGE