the boat co. lawsuit
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Peter Van Tuyn (AK Bar No. 8911086)Rebecca L. Bernard (AK Bar No. 0105014)BESSENYEY & VAN TUYN, LLC310 K St., Suite 200Anchorage, AK 99501
Telephone: (907) 278-2000Fax: (907) 278-2004 [email protected]
Paul Olson (AK Bar No. 0710062)606 Merrill St.Sitka, AK 99835Telephone: (907) 738-2400
Attorneys for Plaintiff The Boat Company
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF ALASKA
)THE BOAT COMPANY, )
)Plaintiff, )
)v. ) Case No. 3:12-cv-00250-HRH
)
REBECCA BLANK, in her official capacity as )Acting Secretary of the United States )Department of Commerce; )
) NATIONAL OCEANIC AND )ATMOSPHERIC ADMINISTRATION; )
) NATIONAL MARINE FISHERIES )SERVICE; and )
)JAMES W. BALSIGER, in his official )Capacity as Regional Administrator, Alaska )Regional Office, NATIONAL MARINE )FISHERIES SERVICE, )
)Defendants. )
_______________________________________)
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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INTRODUCTION
1. The amount of bycatch (non-target and discarded catch) that results from the
deployment of non-selective trawl gear in the Gulf of Alaska trawl fisheries is massive. For
example, the mortality of Pacific Halibut and Chinook salmon caused by bycatch in the trawl
fishery exceeds the amount of fish harvested by many sport, subsistence and commercial
fisheries that use selective gear to target these species. Data collected by at-sea observers
provides the best available scientific information for managing the fisheries and developing
measures to minimize bycatch in furtherance of the purposes and national standards of the
[Magnuson-Stevens Act]. NMFS, Groundfish Fisheries of the Exclusive Economic Zone Off Alaska and Pacific Halibut Fisheries, Observer Program, 77 F ED . R EG . 70062, 70062 (Nov. 21,
2012) (Final Rule). This case concerns the adequacy of the at-sea observer program used by
the National Marine Fisheries Service (Fisheries Service or NMFS) as the primary means of
complying with its legal mandate to monitor bycatch occurring in the groundfish fisheries of the
Exclusive Economic Zone off Alaska, which in turn allows the Fisheries Service to comply with
its legal mandate to minimize such bycatch.
2. Federal fisheries law requires the preparation of fishery management plans
(FMPs) for fisheries occurring in federal waters. FMPs must establish standardized bycatch
reporting methodologies (SBRMs) to assess the amount and type of bycatch occurring in the
fisheries, and must include conservation and management measures that, to the extent
practicable, minimize bycatch and the mortality of bycatch. Information collected on the amount
and type of bycatch is crucial to devising and implementing conservation policies mandated by
law and critical to sustaining coastal communities and healthy ecosystems, recovering protected
species, and minimizing the waste resulting from bycatch.
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3. The Fisheries Service relies exclusively on observers to estimate bycatch of
species such as salmon and halibut by assessing the type and amount of bycatch from observed
vessels. The Fisheries Service then uses this information to estimate bycatch for the entire fleet,
including unobserved operations and vessels. NMFS, ALASKA GROUNDFISH FISHERIES FINAL
PROGRAMMATIC SUPPLEMENTAL E NVIRONMENTAL IMPACT STATEMENT App. F at F-11-16, 17
(2004) (G ROUNDFISH PSEIS). Where the Fisheries Service determines that observers are
critical to bycatch assessment needs, the law requires that the Fisheries Service establish a
mandatory and adequate observer program in the FMP. Pacific Marine Conservation Council
v. Evans, 200 F.Supp.2d 1194, 1201 (N.D. Cal. 2002).4. On November 21, 2012, the Fisheries Service published regulations implementing
Amendment 76 to the FMP for Groundfish of the Gulf of Alaska, adopted by the North Pacific
Fishery Management Council, which restructured the existing observer program for the Gulf of
Alaska groundfish fisheries. Final Rule, 77 F ED . R EG . at 70062 (Final Rule). 1 The existing
observer program required vessels longer than 125 feet to carry observers 100% of the time and
vessels between 60 and 125 feet to carry observers at least 30% of the time, 50 C.F.R.
679.50(c)(1)(iv), (v), and required vessel operators to contract directly with a company that
provides the actual observers (observer providers). Id. 679.50(h).
5. The Final Rule expands the existing observer program to cover vessels that are
less than 60 feet length overall and all halibut vessels, and it imposes a new 1.25% ex-vessel
value fee on these fishery participants in order to fund this partial coverage program. Final
Rule, 77 F ED . R EG . at 70064. Under the Final Rule, the Fisheries Service contracts with the
observer providers and develops annual deployment plans to direct the assignment of observers
1 The Final Rule also implemented Amendment 86 to the FMP for Groundfish of the Bering Sea andAleutian Islands Management Area, which similarly restructured the observer program for that area. Id.This Complaint addresses only Amendment 76.
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for partial coverage vessels. Id. at 70063. Vessels in the full coverage category continue to
contract directly with an observer provider. Id .
6. The Fisheries Service concludes in its National Environmental Policy Act
(NEPA) Environmental Assessment (EA) for the Final Rule that 30% observer coverage is a
performance standard and a minimum requirement to ensure adequate bycatch data
collection. NMFS, E NVIRONMENTAL ASSESSMENT /R EGULATORY IMPACT R EVIEW /I NITIAL
R EGULATORY FLEXIBILITY A NALYSIS FOR PROPOSED AMENDMENT 86 TO THE FISHERY
MANAGEMENT PLAN FOR GROUNDFISH OF THE BERING SEA/ALEUTIAN ISLANDS MANAGEMENT
AREA AND AMENDMENT 76 TO THE FISHERY MANAGEMENT PLAN FOR GROUNDFISH OF THE GULF
OF ALASKA xx, 180 (2011) (EA). And the stated purpose of the Fisheries Services Final Rule
is to reduce statistical bias in observer-collected data and address cost inequities in the existing
observer program. Id. at 70062-70063. Yet the Final Rule fails to ensure observer coverage
adequate to generate statistically reliable bycatch estimates because, among other problems, it
does not prescribe any minimum level of observer coverage and it allows the ex-vessel fee to
dictate observer coverage, rather than the other way around. In its first Annual Deployment Plan
(ADP), which it finalized before publishing the Final Rule which the ADP implements, the
Fisheries Service implements an observer coverage rate for 2013 of only 13%, and observer
coverage is shifted from larger, higher-impact trawl vessels to smaller, lower-impact selective
gear vessels. NMFS, 2013 OBSERVER PROGRAM : NMFS A NNUAL DEPLOYMENT PLAN at 11, 22
(2012).
7. Further, the Fisheries Service has not provided for species-specific and fishery-
specific bycatch monitoring needs. For example, the FMP identifies halibut and salmon as
prohibited species that must be avoided by groundfish fisheries at the risk of fishery closures.
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NORTH PACIFIC FISHERY MANAGEMENT COUNCIL , FISHERY MANAGEMENT PLAN FOR GROUNDFISH
OF THE GULF OF ALASKA 39-40 (2012) (GOA FMP). To implement this mandate the FMP
places a strict limit on the amount of prohibited species that can be taken as bycatch -- once the
limit is met the directed fishery must stop. Id., App. A at A-5, A-12. The Fisheries Service
cannot manage the prohibited species catch without a well-founded observer program. EA at
138-139.
8. The Final Rule also contains a critical loophole; it allows the Fisheries Service to,
on its own initiative and without independent review, avoid deploying adequate levels of
observer coverage in any year in which the ex-vessel fee does not provide adequate revenue.The amendment does not require the Fisheries Service to identify alternative methods of
achieving adequate coverage levels. Neither does it establish a priority for bycatch data
collection when funding shortfalls occur.
9. Without adequate observer coverage, the Fisheries Service will be unable to
acquire statistically reliable bycatch information for the groundfish fisheries. As a result,
fisheries managers will not be able accurately to assess how trawl bycatch impacts Alaskas
declining populations of important fish resources targeted by subsistence, recreational, and
commercial fishermen. Fisheries managers will not be able to enforce caps on bycatch of
prohibited species because the managers will not have statistically reliable information as to the
amount and type of the bycatch component of the overall catch in each fishery. Fishery
managers also will not be able accurately to assess the impacts on protected species populations
or to enforce caps on incidental take levels designed to prevent jeopardy of extinction and allow
the recovery of protected species. Thus, the Final Rule restructuring of the observer program is
arbitrary.
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10. The arbitrary restructuring of the observer program also has implications for the
legally-mandated SBRM. In other regions, the Fisheries Service has established an SBRM
through formal rulemaking or an amendment to the FMP. See, e.g., Magnuson-Stevens Fishery
Conservation and Management Act Provisions; Fisheries of the Northeastern United States;
Northeast Region Standardized Bycatch Reporting Methodology Omnibus Amendment, 73 F ED .
R EG . 4736 (Jan. 28, 2008); Fisheries Off West Coast States, Pacific Coast Groundfish Fishery;
Amendment 18, 71 F ED . R EG . 66122 (Nov. 13, 2006). The Fisheries Service has not, however,
clearly established an SBRM for the Alaska Region.
11.
In its Final Rule, the Fisheries Service asserted for the first time that the CatchAccounting System (CAS) described in the FMP for the Alaska groundfish fisheries is the
Alaska Regions SBRM. Final Rule, 77 Fed. Reg. at 70068. The CAS describes a combination
of observer data, landing reports and at-sea production reports for multiple management
purposes. GOA FMP at 25. It does not, however, provide for fishery-specific or species-specific
observer deployments for the purpose of bycatch reporting.
12. Neither the CAS nor the Final Rule, standing alone, establishes an adequate
SBRM. Indeed, if the CAS is the Alaska Regions effort to comply with the SBRM requirement,
which is not at all a given, the Final Rule eviscerates it by failing to ensure collection of
statistically adequate bycatch data. Under any scenario, the Fisheries Service is thus in violation
of the SBRM requirement of federal fisheries law.
13. An additional flaw in the funding mechanism established by the Final Rule is that
it is based on an EA that assumed observer contract costs of $467 per day. EA at 112. At that
rate the 1.25% ex-vessel fee was estimated to generate $4.2 million per year, slightly exceeding
the $4 million needed to fund observer coverage at the minimum 30% rate. Id. at 106.
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14. Before publishing the Final Rule, however, the Fisheries Service entered into a
contract with an observer provider that greatly exceeded the costs estimated in the EA. The
Fisheries Service acquired $4.4 million in federal funds for the first year of the program, about
the same amount it estimated would be generated each year by the 1.25% ex-vessel fee. 77 F ED .
R EG . at 70083. However, this funding was sufficient to provide for an observer coverage rate of
only 13%, less than half the 30% coverage rate the Fisheries Service had determined to be
necessary to produce statistically reliable data. ADP at 22. These increased contract costs and
reduced observer coverage levels were not analyzed in the EA that formed the basis for the
Fisheries Services Finding of No Significant Impact (FONSI), nor did the Fisheries Service prepare a supplemental analysis to consider the implications of the new information about the
true contract costs.
15. Further, the Fisheries Services EA analyzed only those impacts attributable to the
expanded scope of the observer program and the new funding and deployment mechanism, EA at
203, 214, and it failed to analyze the environmental impacts of the specific level and quality of
data that actually will be generated by the restructured observer program. The restructured
program will generate statistically inadequate data, thus undermining fisheries managers efforts
to make scientifically sound management and conservation decisions. Because the Fisheries
Services decision has environmental implications that were not addressed in the EA, its FONSI
based on that EA is arbitrary.
16. Because the indirect and cumulative impacts of the Final Rule on affected
fisheries and the marine environment are potentially significant, the Fisheries Services decision
to prepare a FONSI and not to prepare an EIS was arbitrary.
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17. The Final Rule thus failed to implement statutory provisions designed to facilitate
science-based management of fishery resources through the collection of statistically adequate
data about bycatch. Without statistically adequate data about bycatch, fisheries managers cannot
make scientifically sound decisions that will arrest the recent declines in the highly valuable
halibut and Chinook populations declines that have affected and will continue to affect The
Boat Companys recreational halibut and salmon fishing business and conservation programs.
The Final Rule also harms The Boat Companys mission is to develop programs to assist and
support the natural environment of southeast Alaska by sponsoring programs aimed at natural
resource conservation. In particular, The Boat Company focuses on efforts to stabilize and protect halibut and salmon populations and habitat. Accordingly, The Boat Company brings this
lawsuit to compel the Fisheries Service to reconsider the Final Rule, to revise and supplement its
environmental analysis, and to revise its restructured observer program to ensure at least 30%
observer coverage, which the Fisheries Service has determined is the bare minimum required to
generate statistically reliable information on the amount and type of bycatch in the Gulf of
Alaska federal fisheries as required to manage them in compliance with controlling law.
JURISDICTION AND VENUE
18. This court properly has jurisdiction over this action under 28 U.S.C. 1331
(federal question) and 28 U.S.C. 1346 (United States as a defendant). Judicial review is
authorized by 16 U.S.C. 1855(f) and 5 U.S.C. 706 because plaintiff is adversely affected within
the meaning of the relevant statutes.
19. The decision giving rise to this complaint was made by the Fisheries Services
Alaska region. Venue is proper in this district court pursuant to 28 U.S.C. 1391(e).
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20. The Court may issue a declaratory judgment in this case pursuant to 28 U.S.C.
2201-2202, and may grant relief pursuant to the Magnuson-Stevens Act, 16 U.S.C. 1861(d)
and 1855(f), and the APA, 5 U.S.C. 706.
21. This action asserts violations of legal mandates contained within the Magnuson-
Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801-1883; the National
Environmental Policy Act (NEPA), 42 U.S.C. 4321-4270e; and the Administrative
Procedure Act (APA), 5 U.S.C. 701-706.
PARTIES
22.
Plaintiff The Boat Company is a tax-exempt, 501(c)(3) charitable educationfoundation and Alaska non-profit corporation that was established in 1979 and has operated its
vessels in southeast Alaska since 1980. The Boat Company conducts multi-day tours in
southeast Alaska aboard two vessels, the 145 M/V Liseron and the 157 M/V Mist Cove.
Clients sport fish in nine nineteen-foot skiffs deployed from the larger boats. The Boat Company
primarily caters to couples and families who have a wide range of interests, including
recreational fishing for halibut, salmon and other species. The Boat Company enters into annual
contracts with outdoor and fishing equipment company Orvis and is the only Orvis-endorsed
cruise fishing operation in the Northern Hemisphere. A primary attraction of The Boat
Companys multi-day tours is that it provides the opportunity for clients whose primary interest
is sport fishing to bring along individuals and families who can engage in sport fishing and a full
range of other recreational experiences while accompanying the pure sport fisher. The Boat
Companys business cannot attract its targeted clientele without adequate opportunities for sport
fishing.
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23. The Boat Company is concerned about and directly affected by the environmental
consequences of unsustainable fishing practices in Gulf of Alaska trawl fisheries. The Boat
Companys business depends on the Fisheries Services ability to count and protect populations
of migratory fish species such as halibut and Chinook salmon that are intercepted as bycatch in
the trawl fisheries. The Boat Company is injured when fish populations that are targeted by
recreational fishermen are depleted to a level that the allowable recreational catch of such fish is
reduced, as has happened here. This depletion is caused, in part, by the Fisheries Services
inadequate bycatch data collection and minimization efforts in the Gulf of Alaska commercial
groundfish fisheries.24. For example, halibut bycatch in trawl fisheries has considerable impact on the
availability of halibut to southeast Alaska target fisheries. N ORTH PACIFIC FISHERY
MANAGEMENT COUNCIL , PUBLIC R EVIEW DRAFT E NVIRONMENTAL ASSESSMENT R EGULATORY
IMPACT R EVIEW /I NITIAL R EGULATORY FLEXIBILITY A NALYSIS TO R EVISE HALIBUT PROHIBITED
SPECIES CATCH LIMITS , AMENDMENT 95 TO THE GULF OF ALASKA GROUNDFISH FISHERY
MANAGEMENT PLAN 27-28 (2012) ( AMENDMENT 95 EA). Over the past five years, the guideline
harvest level for southeast Alaska charter fisheries had declined from 1,432,000 net pounds to
788,000 net pounds resulting in progressively more restrictive management measures. Id. at 2.
Over a period of five years, regulations have reduced a two-fish bag limit of any size to a one-
fish limit of any size to a one-fish limit of less than 37 inches. Id. at 51. Meanwhile, the
Fisheries Service authorizes trawl fisheries in the Gulf of Alaska to take 3,300,000 million net
pounds per year. Id. at 7. The reduced size limit results in disappointed clients who prefer to
catch larger fish and the reduced bag limit creates a competitive disadvantage because clients
may choose other sport fishing opportunities. In fact, charter operators in other areas with higher
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bag limits aggressively pursue The Boat Companys targeted clientele by marketing the higher
bag limits.
25. The Boat Company advocates for better policies to conserve fishery resources
impacted by trawl bycatch. Its representatives participate in fishery council meetings,
International Pacific Halibut Commission meetings and administrative processes related to
bycatch minimization measures. Its directors also actively participate in international fishery
conservation initiatives, including measures to reduce trawl bycatch.
26. The failure to collect statistically reliable data on the amount and type of bycatch
injures The Boat Company by undermining its ability to attract its targeted clientele, which alsoundermines its business stability.
27. The Boat Companys charitable programs fund a broad array of conservation
interests. For over 30 years, The Boat Company has reinvested all residual income beyond its
general overhead operating expenses back into conservation, education and other programs that
benefit southeast Alaskas coastal fishing communities. These investments include contributions
to salmon enhancement programs that are affected, as the experts agree, by Gulf of Alaska trawl
bycatch, albeit to an unknown degree. Consequently, the Fisheries Services observer program
also injures The Boat Companys ability to accomplish its broader mission of advocating for
management measures that will sustain marine resources for all Alaskans and particularly
southeast Alaska coastal fishing communities.
28. The Boat Company and its charitable programs will suffer direct and immediate
injury as a result of the Fisheries Services failure to establish an adequate observer program and
adequate SBRM that generates statistically reliable data. These interests will continue to be
impaired unless the court grants the relief requested herein.
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29. Defendant Rebecca Blank is Acting Secretary of the United States Department of
Commerce. She is sued in her official capacity as the chief officer of the federal department
charged by the United States Congress with managing United States marine fisheries.
30. Defendant National Oceanic and Atmospheric Administration (NOAA) is an
agency of the United States Department of Commerce with supervisory responsibility for the
National Marine Fisheries Service. The Secretary of Commerce has delegated responsibility for
managing United States marine fisheries to NOAA, which in turn has sub-delegated that
responsibility to the National Marine Fisheries Service.
31.
Defendant National Marine Fisheries Service (Fisheries Service or NMFS) isan agency of the United States Department of Commerce that has been delegated the
responsibility to manage United States marine fisheries through fishery management plans, plan
amendments and regulations implementing those plans and plan amendments.
32. Defendant James W. Balsiger is Regional Administrator for the Alaska Regional
Office of NMFS, which adopted the Final Rule. He is sued in his official capacity.
STATUTORY AND REGULATORY BACKGROUND
I. THE ADMINISTRATIVE PROCEDURE ACT
33. The Administrative Procedure Act provides that [a] person suffering legal wrong
because of agency action, or adversely affected or aggrieved by agency action within the
meaning of the relevant statue, is entitled to judicial relief thereof. 5 U.S.C. 702. Agency
action made reviewable by statute and final agency action for which there is no other adequate
remedy in a court are subject to a judicial review. Id. 704.
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34. In an APA suit, the reviewing court shall 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. Id. 706(2).
II. THE MAGNUSON-STEVENS ACT
35. The Magnuson-Stevens Act established a system for conserving and managing
fishery resources primarily in United States territorial waters and in the exclusive economic
zone, which extends from the boundaries of state waters (three miles from shore in Alaska) to
200 miles offshore or to an international boundary with neighboring countries.
36.
The Magnuson-Stevens Act created eight regional fishery management councilsand charged them with preparing fishery management plans for all managed species. The North
Pacific Fishery Management Council has jurisdiction over federal fisheries in the Gulf of Alaska.
16 U.S.C. 1852(a)(1)(G).
37. Councils are initially responsible for developing plans and plan amendments for
each fishery that requires conservation and management within the councils respective
geographic areas of authority. Id. 1852(h)(1).
38. Councils must include in their FMPs or FMP amendments the measures necessary
to conserve and manage particular species of fish. Id. 1853(a)(1)(A).
39. After developing a plan or plan amendment, the council submits the rule to the
Secretary of Commerce, who, acting through the Fisheries Service, evaluates the rule for
consistency with the national standards set forth in 16 U.S.C. 1851(a), other provisions of the
Magnuson-Stevens Act, and any other applicable law. If the Secretary determines that the rule is
consistent with all applicable law, the Secretary approves the rule. Otherwise the Secretary may
completely, or partially, disapprove the rule. Id. 1854(a).
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40. The Magnuson-Stevens Act sets deadlines for the Secretary to approve,
disapprove, or partially approve amendments and promulgate implementing regulations. Id.
1854(a), (b).
41. The Magnuson-Stevens Act defines bycatch as fish which are harvested in a
fishery, but which are not sold or kept for personal use and includes economic and regulatory
discards 16 U.S.C. 1802(2). Fish is defined to include all marine life except marine
mammals and birds. 16 U.S.C. 1802(12).
42. Concerned about the significant amount of bycatch and waste occurring in federal
fisheries and recognized that existing measures were not sufficient to address the bycatch problem, Congress amended the Magnuson-Stevens Act in 1996 to add new provisions requiring
the Fisheries Service to monitor and minimize bycatch and bycatch mortality. Congress
specifically intended for the new measures to apply to North Pacific federal fisheries and
imposed additional requirements to lower total discards in Alaskas fisheries. 16 U.S.C.
1862(f); S. Rep. No. 104-276, 104 th Cong., 2d Sess., 33 (1996). Principal sponsor Senator Ted
Stevens stated that the intent of the amendments was to bring a stop to this inexcusable amount
of waste. 142 Cong. Rec. S10810 (daily ed. September 18, 1996) (statement of Sen. Stevens).
43. The 1996 amendments specifically required that each FMP establish a
standardized reporting methodology to assess the amount and type of bycatch occurring in the
fishery. 16 U.S.C. 1853(a)(11). The amendments also required that each Council prepare
FMP amendments [n]ot later than 24 months after the date of the enactment of the SFA in
order to address the bycatch reporting methodology and other new requirements. Section 108(a),
(b), Pub. L. 104-297, codified at 16 U.S.C. 1853 note.
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44. After the passage of the 1996 amendments, the Fisheries Service prepared,
pursuant to 16 U.S.C. 1851(b), guidelines to assist regional fishery management councils in
developing fishery management plans and promulgated the guidelines as a final rule. 63 F ED .
R EG . 24,212 (May 1, 1998).
45. The guidelines state that bycatch may impede efforts to protect marine
ecosystems and achieve sustainable fisheries by increasing the uncertainty as to the amount of
removals and by precluding more productive uses of fishery resources. 50 C.F.R.
600.350(2)(b).
46.
The guidelines further state that:Councils must
(1) Promote development of a database on bycatch and bycatch mortality to theextent practicable. A review, and where necessary, improvement of datacollection methods, data sources, and applications of data must be initiated for each fishery to determine the amount, type, disposition, and other characteristics of bycatch and bycatch mortality for purposes of this standardand of section 303(a)(11) [16 U.S.C. 1853(a)(11)] and (12) of theMagnuson-Stevens Act. Bycatch should be categorized to focus on
management responses necessary to minimize bycatch and bycatch mortalityto the extent practicable. When appropriate, management measures, such asat-sea monitoring programs, should be developed to meet these informationneeds. Id. 600.350(d).
47. When the Fisheries Service determines that observers are critical to bycatch
assessment needs, it must establish a mandatory and adequate observer program in the FMP.
Pacific Marine Conservation Council, 200 F.Supp.2d at 1201.
III. THE NATIONAL ENVIRONMENTAL POLICY ACT
48. The National Environmental Policy Act (NEPA) requires federal agencies to
analyze the foreseeable environmental impacts, including direct, indirect, and cumulative
impacts, of major Federal actions. 42 U.S.C. 4332(2)(C). NEPA requires the analysis and
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consideration of cumulative effects that result from the incremental impact of the action when
added to other past, present, and reasonably foreseeable future actions. 40 C.F.R. 1508.25(a).
49. An amendment to an FMP is a major federal action as defined by NEPA. 40
C.F.R. 1508.18; NOAA Administrative Order 216-6 6.01.
50. A federal agency may develop an environmental assessment (EA) in order to
determine whether it is necessary to develop a more detailed environmental impact statement
(EIS). 40 C.F.R. 1501.4. If the agency finds as a result of preparing the EA that there are no
significant impacts from the proposed action, it prepares and signs a Finding of No Significant
Impact (FONSI). If the agency finds a likelihood of significant impact, it goes on to prepare an
EIS.
51. An EA must provide sufficient evidence and analysis for determining whether
the project will have a significant impact on the environment. 40 C.F.R. 1508.9(a)(1). NEPA
regulations identify several factors to consider in determining whether an EIS is necessary,
including [t]he degree to which the possible effects on the human environment are highly
uncertain or involve unique or unknown risks[,] [t]he degree to which the action may
establish a precedent or represents a decision in principle about a future consideration[,]
[w]hether the action is related to other actions with individually insignificant but cumulatively
significant impacts, and whether the action may violate federal environmental laws. 40 C.F.R.
1508.27(b).
52.
For purposes of determining whether to prepare an EIS, [s]ignificance cannot beavoided by terming an action temporary or by breaking it down into small component parts. 40
C.F.R. 1508.27(b)(7).
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53. NOAA guidelines establish more specific guidance for determining whether an
EIS is necessary, including whether the action jeopardizes the sustainability of a target or non-
target species, whether the action may be reasonably expected to adversely affect endangered or
threatened species; and whether the action may have substantial cumulative adverse effects.
NOAA Administrative Order 216-6 6.02.
54. NEPA regulations require that a federal agency prepare a supplemental NEPA
analysis if [t]he agency makes substantial changes in the proposed action that are relevant to
environmental concerns or if [t]here are significant new circumstances or information relevant
to environmental concerns and bearing on the proposed action or its impacts. 40 C.F.R. 1502.9(c).
SUMMARY OF FACTS AND GENERAL ALLEGATIONS
I. THE GULF OF ALASKA FISHERY AND BYCATCH OF HALIBUT ANDCHINOOK
55. Halibut is a highly valuable subsistence, recreational, and commercial fish species
that has experienced significant population declines over the past decade. In southeast Alaska,Area 2C, the guideline harvest level for the charter sector has declined from 1,432,000 net
pounds to 788,000 net pounds in the past five years and fishery managers have implemented
restrictive management measures to keep the sector within its allocation. Amendment 95 EA at
2. According to a recent Council problem statement on halibut bycatch:
[T]he total biomass and abundance of Pacific halibut has varied and in recentyears the stock has experienced an ongoing decline in size at age for all ages in allareas. Exploitable biomass has decreased 50 percent over the past decade. Inrecent years, the directed halibut catch limits in the GOA regulatory areas 2C, 3Aand 3B have declined steadily. From 2002 to 2011 the catch limit for thecombined areas 2C, 3A, and 3B declined by almost 50 percent. Id.
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56. The Gulf of Alaska is currently the center of halibut distribution. Id. at 18.
Halibut are a highly migratory stock, however, and in general, juvenile and adult halibut migrate
southeast along the Alaska coast and beyond to spawn. Id.
57. Despite recent declines in the halibut population, the Fisheries Service has
authorized GOA trawl fisheries to take 3,300,000 net pounds of halibut as bycatch every year
since 1990. Id. at 7; GOA FMP, App. A at A-5.
58. Trawl fisheries take three-fourths of the halibut bycatch in the Gulf of Alaska.
I NTERNATIONAL PACIFIC HALIBUT COMMISSION , R EPORT OF ASSESSMENT AND R ESEARCH
ACTIVITIES 384 (2011). The International Pacific Halibut Commission (IPHC) scientists believethat bycatch estimates for the Gulf of Alaska are minimum estimates. Id. at 381. The IPHC
experts also conclude that low levels of observer coverage undermine the accuracy of the
estimates. Id. The Fisheries Service acknowledges current levels of halibut prohibited species
catch in the Gulf of Alaska are poorly understood. A MENDMENT 95 EA at 114.
59. Alaskas Chinook (king) salmon fisheries are also troubled. Average sport and
commercial harvestable numbers of Chinook have consistently declined in state targeted
fisheries. N ORTH PACIFIC FISHERY MANAGEMENT COUNCIL , FINAL E NVIRONMENTAL
ASSESSMENT R EGULATORY IMPACT R EVIEW /I NITIAL R EGULATORY FLEXIBILITY A NALYSIS TO
R EVISE CHINOOK PROHIBITED SPECIES CATCH LIMITS IN THE GULF OF ALASKA POLLOCK FISHERY ,
AMENDMENT 93 TO THE GULF OF ALASKA GROUNDFISH FISHERY MANAGEMENT PLAN 42-43
(2012) (A MENDMENT 93 EA). On September 13, 2012, acting Secretary of Commerce
Rebecca Blank announced a Chinook salmon fishery disaster for portions of the state of Alaska.
60. The scarce information available indicates that some number of southeast Alaska
Chinook are taken in Gulf of Alaska trawl fisheries. Id. at 123. The Fisheries Service does not
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have enough information, however, on the origins of Chinook taken in its trawl fisheries and
cannot estimate the impacts of bycatch on Chinook user groups and stocks. Fisheries of the
Exclusive Economic Zone Off Alaska: Chinook Salmon Bycatch Management in the Gulf of
Alaska Pollock Fishery; Amendment 93, 77 F ED . R EG . 42629, 42632 (July 20, 2012).
61. Because some Chinook stocks that traverse through southeast Alaska and are
taken as trawl bycatch in the GOA are listed species under the federal Endangered Species Act,
Chinook bycatch in the GOA groundfish trawl fisheries is subject to an incidental take limit of
40,000 Chinook. NMFS, Endangered Species Act Section 7(a)(2) Supplemental Biological
Opinion: Supplemental Biological Opinion Reinitiating Consultation on the January 11, 2007Supplemental Biological Opinion Regarding Authorization of the Gulf of Alaska (GOA)
Groundfish Fisheries 3 (January 9, 2012). The trawl fisheries exceeded this limit in at least 2007
and 2010. Id.
62. The Fisheries Services most recent supplemental biological opinion on Chinook
take in the groundfish trawl fisheries stated that overall low observer coverage levels were
problematic because bycatch estimates were based on extrapolations from observed vessels. Id.
at 4. The Fisheries Service anticipated that the restructured program would improve rather than
diminish coverage levels under the pre-existing program. Id. at 4-5.
II. HISTORY OF THE GOA GROUNDFISH OBSERVER PROGRAM
63. The Fisheries Service implemented an observer program in 1990 with
Amendment 18. 77 F ED . R EG . at 23328. Amendment 18 required vessels longer than 60 feet to
carry observers for a portion of their fishing time and vessels longer than 125 feet to carry
observers 100% of the time. GOA FMP at 24 3.2.4.1 (2011).
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64. As the Fisheries Service has found, the quality of the data obtained for the partial
coverage fleet under the 1990 observer program is deficient and of limited utility. NMFS,
Groundfish Fisheries of the Exclusive Economic Zone off Alaska and Pacific Halibut Fisheries;
Observer Program, 77 F ED . R EG . 23326, 23328 (Proposed Rule, April 18, 2012). One of the
more significant problems is that the partial coverage sector controls when and where to carry
observers. Id. at 23328. This means that vessels can engage in non-representative fishing when
carrying observers. Stated another way, the non-randomized placement of observers undermines
the statistical reliability of the Fisheries Services bycatch estimates. Id. at 23330.
65.
In October 2010, the North Pacific Fishery Management Council adoptedAmendment 76 to restructure the observer program. 77 F ED . R EG . 15020. Amendment 76
expanded the partial coverage program to include vessels less than 60 feet in length and all
halibut vessels and changed the funding and deployment system for observer coverage under the
existing program. 77 F ED . R EG . at 70063. Amendment 76 provides that [a]ll vessels fishing for
groundfish may be required to carry one or more observers, for at least a portion of their
fishing time. FMP at 24. The vessels will be required to carry an observer as determined by
NMFS, according to an annual sampling and deployment plan. Id.
66. On November 21, 2012, the Fisheries Service adopted its Final Rule
implementing Amendment 76. 77 F ED . R EG . at 70062.
67. The Fisheries Services analysis indicated that the agency would implement a
30% coverage level as a requirement and a minimum standard for the randomized,
restructured program. EA at 180. The 30% coverage level was the least conservative rate
based on previous variance estimates produced by the agency in Bering Sea studies during the
1990s and was below recommended coverage rates defined from past optimization analyses. Id.
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68. The Final Rule also imposed a new funding mechanism for the partial coverage
fleet, which will now pay an ex-vessel value based fee of 1.25%. 77 F ED . R EG . at 70064. The
Fisheries Service recognized that this approach could yield revenue shortfalls relative to desired
amounts of observer coverage. EA at xxi. The Fisheries Service estimated that the 1.25% fee
would generate $4.2 million and fund 9,027 days of observer coverage at $467 per day, thus
achieving the 30% observer coverage level. Id. at 106, 112.
69. The Fisheries Service finalized its contract with the observer provider nearly two
months before releasing the final rule. NMFS, 2013 OBSERVER PROGRAM : NMFS A NNUAL
DEPLOYMENT PLAN , DRAFT VERSION at 3 (2012). The Fisheries Service used $4.4 million infederal start-up funding for the initial contract. 77 F ED . R EG . at 70083. The funds were sufficient
to purchase only 4,134 observer days. ADP at 22. As a result, the observer coverage rate was
13% instead of the required minimum rate of 30%. Id. at 10. In addition, the proposed
deployments reduce coverage in the large-volume trawl fisheries and substantially reduce the
amount of observed catch from previous levels. Id. at 11, 22.
70. The Fisheries Service explicitly stated that it will adjust coverage levels for
specific sectors as needed, and within budgetary constraints. 77 F ED . R EG . at 60066. The
Fisheries Service anticipated that it would reduce coverage levels due to declining prices or
fishery harvests. EA at xxi, 70. Consequently, the Final Rule fails to ensure the statistical
adequacy of bycatch data because the amount of observer coverage depends on the amount of
revenue generated by the ex-vessel value fee, which the Fisheries Service itself recognized
would be inadequate.
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71. Further, the Fisheries Service acknowledged that it would have to prioritize
available observer days based on funding levels but then failed to develop a prioritization
process. EA at 70.
72. The Fisheries Service has found that for the GOA groundfish fishery, data
collected by at-sea observers provides the best available scientific information for managing the
fisheries and developing measures to minimize bycatch in furtherance of the purposes and
national standards of the [Magnuson-Stevens Act]. 77 F ED . R EG . at 70062. The Fisheries
Service relies exclusively on observers to estimate overall bycatch by observing types and
amounts of bycatch from observed vessels, thus allowing Fisheries Service experts to extrapolatethis data to estimate bycatch amounts and types for the fishery as a whole. G ROUNDFISH PSEIS
App. F at F-11-16, 17. Thus, by approving a restructured observer program that fails to ensure
the collection of statistically reliable bycatch data, the Fisheries Service has severely impaired its
primary means of acquiring such data as federal fisheries law requires it to do.
73. As required by NEPA, the Fisheries Service prepared an environmental analysis
of the restructured observer program before approving the Final Rule. The EA, however,
analyzed only those impacts attributable to the expanded observer program and its new funding
and deployment mechanism. Id. at 203. The EA did not consider the direct and indirect impacts
of this action as they pertain to the effects of the groundfish fisheries on marine resources. Id.
The EA also did not consider reasonably foreseeable cumulative negative impacts to marine
resources that would result from data deficiencies. Id. at 214-215. In particular, the EA did not
assess the statistical reliability of observer data collected at a 13% deployment rate, and the
Fisheries Service failed to supplement its environmental analysis to account for the
environmental and economic effects of the significant increase in observer contract costs. The
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Fisheries Service also failed to prepare a full environmental impact statement (EIS) despite the
potentially significant environmental impacts of failing to collect statistically adequate data on
the amount and type of bycatch occurring in the GOA trawl fisheries.
FIRST CLAIM FOR RELIEF:
THE FISHERIES SERVICES PURPORTED STATISTICAL BYCATCH REPORTINGMETHODOLOGY FOR THE ALASKA REGION IS INCONSISTENT WITH THE
REQUIREMENTS OF THE MAGNUSON-STEVENS ACT, IN VIOLATION OF THEMAGNUSON-STEVENS ACT AND THE APA
74. Plaintiff realleges and incorporates by reference the allegations of paragraphs 1-
73 in this First Claim for Relief.
75. In the Federal Register notice adopting the Final Rule, the Fisheries Service stated
in response to comments that the [Catch Accounting System], which is described in Section
3.2.4.2 of the GOA FMP is the NMFS Alaska regions standardized bycatch reporting
methodology. 77 F ED . R EG . at 70068. To plaintiffs knowledge and belief, the Fisheries
Service has never before identified the Catch Accounting System (CAS) as the Alaska Regions
SBRM.76. Section 3.2.4.2 of the GOA FMP covers catch reporting from multiple data
sources but neither categorizes bycatch nor initiates data collection methods, sources and
applications for each fishery to determine the amount, type and other characteristics of bycatch.
77. Accordingly, the CAS is not an adequate SBRM, and the Fisheries Service is thus
in violation of the Magnuson-Stevens Act and the APA. Oceana v. Locke, 670 F.3d 1238, 1241-
1242 (D.C. Cir. 2011); Oceana v. Evans, 384 F.Supp.2d 203, 232-234 (D.D.C. 2005).
SECOND CLAIM FOR RELIEF:
THE FINAL RULE FAILS TO ESTABLISH AN ADEQUATE STATISTICALBYCATCH REPORTING MECHANISM, IN VIOLATION OF THE MAGNUSON-
STEVENS ACT AND THE APA
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78. Plaintiff realleges and incorporates by reference the allegations of paragraphs 1
77 in this Second Claim for Relief.
79.
The Final Rule restructures the existing observer program by adopting a funding
and deployment mechanism that fails to achieve the Fisheries Services own performance
standard and minimum requirement of 30% observer coverage.
80. Whether standing alone, or as one component of the CAS, which the Fisheries
Service has identified as its Alaska Region SBRM, the observer program is the only measure that
strives to characterize bycatch. G ROUNDFISH PSEIS, App. F at F-11-16-17; EA at 138-139;
Jennifer Cahalan et al., Catch Sampling and Estimation in the Federal Groundfish Fisheries off
Alaska, U.S. DEPT COMM ., NOAA TECH . MEMO . NMFS-AFSC-205 at 39 (2010) ( NOAA TECH .
MEMO . NMFS-AFSC-205). Without this information NMFS cannot estimate bycatch in the
Gulf of Alaska groundfish fishery. Id.
81. The Final Rule effectively either creates or amends the Alaska Region SBRM,
and it does so in a manner that is arbitrary and contradicted by the Fisheries Services ownanalyses.
82. The Final Rule links the level of observer coverage to a funding mechanism rather
than coverage levels necessary to generate reliable estimates. The Final Rule is only a funding
and deployment mechanism, which is not an adequate SBRM. Oceana v. Locke, 670 F.3d 1238,
1241-1242 (D.C. Cir. 2011); Oceana v. Evans, 384 F.Supp.2d 203, 232-234 (D.D.C. 2005).
There is no prioritization process or identifiable standard to guide the Fisheries Services
judgment when revenue shortfalls occur.
83. Accordingly, the Final Rule fails to establish an adequate SBRM, in violation of
the Magnuson-Stevens Act and the APA.
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THIRD CLAIM FOR RELIEF:
THE FINAL RULE AND THE ADP EVISCERATE THE FISHERIES SERVICESSTATISTICAL BYCATCH REPORTING METHODOLOGY FOR THE ALASKAREGION, IN VIOLATION OF THE MAGNUSON-STEVENS ACT AND THE APA
84. Plaintiff realleges and incorporates by reference the allegations of paragraphs 1-
83 in this Third Claim for Relief.
85. Jointly and separately, the Final Rule and the ADP restructured the existing
observer program by adding a funding and deployment mechanism that fails to achieve the
Fisheries Services own performance standard and minimum requirement of 30% observer
coverage. EA at 180; ADP at 10, 22.86. To the extent that the CAS is the SBRM, the observer program is the only
component that seeks to characterize bycatch. G ROUNDFISH PSEIS, App. F at F-11-16-17; EA at
138-139; N OAA TECH . MEMO . NMFS-AFSC-205 at 39; see Oceana v. Evans, Civ. No. 04-0811,
2005 U.S. Dist. LEXIS 3959 32 (D.D.C. 2005) (observer programs are an essential component
of an adequate bycatch reporting methodology.).
87. By approving a restructured observer program that fails to meet its own minimum
requirement for adequate observer coverage, the Fisheries Service has rendered a key component
of the SBRM inadequate, thereby eviscerating the CAS SBRM.
88. Accordingly, by approving the Final Rule, the Fisheries Service violated the
Magnuson-Stevens Act and the APA.
FOURTH CLAIM FOR RELIEF:
THE FINAL RULE IS ARBITRARY AND CAPRICIOUS, IN VIOLATION OF THEMAGNUSON-STEVENS ACT AND THE APA
89. Plaintiff realleges and incorporates by reference the allegations of paragraphs 1-
88 in this Fourth Claim for Relief.
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90. The Final Rule adopts a funding and deployment mechanism for the North Pacific
Groundfish Fishery Observer Program that fails to achieve the Fisheries Services own
performance standard and minimum requirement of 30% observer coverage. EA at 180; ADP at
22.
91. Accordingly, by adopting the Final Rule, the Fisheries Service acted arbitrarily
and capriciously, in violation of the Magnuson-Stevens Act and the APA.
FIFTH CLAIM FOR RELIEF:
THE FISHERIES SERVICE FAILED TO ADEQUATELY DISCLOSE AND ANALYZEENVIRONMENTAL IMPACTS, IN VIOLATION OF NEPA AND THE APA
92. Plaintiff realleges and incorporates by reference the allegations of paragraphs 1-
91 in this Fifth Claim for Relief.
93. The EA analyzed only those environmental impacts attributable to the expanded
scope of the observer program and the new funding and deployment mechanism. EA at 203. It
did not specifically consider impacts to fishery resources under the assumption that the effects of
fisheries have previously been evaluated. Id. The cumulative effects analysis also failed toconsider reasonably foreseeable negative impacts that could accrue from the inadequate level and
quality of data. EA at 214. The restructured observer program will generate statistically
inadequate data, thus undermining fisheries managers efforts to make scientifically sound
management and conservation decisions. The Fisheries Services decision therefore has
environmental impacts that should have been addressed in the environmental analysis.
94. Further, the EA concluded that the new funding mechanism would generate
enough revenue to increase the amount of observer days and enable the Fisheries Service to fund
observer coverage at the required minimum 30% rate. EA at 213. The EA failed to analyze the
environmental implications of the increased contract costs, which will provide for a decreased
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number of observer days and an observer coverage rate of only 13%. The EA did not assess the
statistical reliability of observer data collected at a 13% deployment rate.
95. Accordingly, the EA and FONSI are arbitrary and capricious, in violation of
NEPA and the APA.
SIXTH CLAIM FOR RELIEF:
THE FISHERIES SERVICE FAILED TO PREPARE A SUPPLEMENTALENVIRONMENTAL ANALYSIS, IN VIOLATION OF NEPA AND THE APA
96. Plaintiff realleges and incorporates by reference the allegations of paragraphs 1-
95 in this Sixth Claim for Relief.
97. NEPA regulations require that federal agencies prepare supplemental NEPA
documents if [t]he agency makes substantial changes in the proposed action that are relevant to
environmental concerns or if [t]here are significant new circumstances or information relevant
to environmental concerns and bearing on the proposed action or its impacts. 40 C.F.R.
1502.9(c).
98.
The observer contract cost increase was significant new information that wasmore than a minor variation from the cost figures used in the EA. The resulting decrease in
proposed coverage levels from a 30% to a 13% actual deployment rate substantially changed the
proposed action. The change was not merely a reduced version of previously considered
alternatives in terms of the quantity of data. Instead, the change directly bears on the substantive
quality of the data acquired through the observer program.
99. The significant decrease in proposed coverage levels will have direct
consequences on the adequacy of the data on which fisheries managers rely to make
scientifically sound management decisions, and it is therefore relevant to environmental
concerns.
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100. Accordingly, the Fisheries Services failure to supplement its environmental
analysis for the Final Rule was arbitrary and capricious, in violation of NEPA and the APA.
SEVENTH CLAIM FOR RELIEF:
THE FISHERIES SERVICE FAILED TO PREPARE AN EIS, IN VIOLATION OF NEPAAND THE APA
101. Plaintiff realleges and incorporates by reference the allegations of paragraphs 1-
100 in this Seventh Claim for Relief.
102. The Final Rule will have significant and fundamental indirect and cumulative
impacts on the environment because the data collected by observers will form the scientific basis
for major conservation and management decisions for all Gulf of Alaska groundfish fisheries.
By failing to ensure the collection of statistically reliable data, the amendment undermines the
ability of fisheries managers to make scientifically sound management and conservation
decisions, with potentially significant impacts on affected fisheries, ESA-listed Chinook salmon,
and the marine environment.
103. Accordingly, the Fisheries Services decision not to prepare an EIS was arbitrary
and capricious, in violation of NEPA and the APA.
EIGHTH CLAIM FOR RELIEF:
THE FISHERIES SERVICES APPROVAL OF THE ADP VIOLATES THE APA
104. Plaintiff realleges and incorporates by reference the allegations of paragraphs 1-
103 in this Eighth Claim for Relief.
105. The Fisheries Service finalized the ADP before publishing the Final Rule which
the ADP was intended to implement.
106. It is arbitrary, capricious and contrary to law for the Fisheries Service to
implement a rule before that rule is finalized.
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107. The Fisheries Service thus violated the APA in approving the ADP.
PRAYER FOR RELIEF
WHEREFORE, The Boat Company respectfully requests that the Court:
1. Enter a declaratory judgment that the Final Rule and the ADP violated the Magnuson-
Stevens Act and the APA and that the EA/FONSI violated NEPA and the APA.
2. Remand the Final Rule and the EA/FONSI to the Fisheries Service to develop a
standardized bycatch reporting methodology, an adequate funding mechanism for the
observer program, and a NEPA analysis that complies with the courts order.
3.
Enter an order awarding The Boat Company its fees, expenses, and costs.4. Provide such other and further relief as the Court deems necessary, just and proper.
Respectfully submitted,
______________________________________
Rebecca L. Bernard (AK Bar No. 0105014)Peter Van Tuyn (AK Bar No. 8911086)BESSENYEY & VAN TUYN, LLC310 K St., Suite 200Anchorage, AK 99501Telephone: (907) 278-2000Fax: (907) 278-2004
Paul Olson (AK Bar No. 0710062)606 Merrill St.
Sitka, AK 99835Telephone: (907) 738-2400 [email protected]
Attorneys for The Boat Company
DATE: December 26, 2012