Salmon Spawning & Recovery Alliance v. National Oceanic & Atmospheric Administration's National Marine Fisheries Service

concurring in part and dissenting in part:

I agree with the government that the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service’s (“NMFS”) “current conditions” methodology was reasonable and is entitled to deference. I therefore concur in the majority disposition with the following exception:

I agree with the petitioners that NMFS acted arbitrarily and capriciously when it approved the planned exploitation rates for the Georgia Strait Region. In approving the Georgia Strait Region exploitation rate, the agency ignored the results of the methodology it otherwise vigorously defends and approved a harvesting rate inconsistent with its own analysis. Moreover, the reasons the agency provided for departing from its chosen analytic framework are speculative and not supported by evidence in the record or by a quantitative analysis. For these reasons, I would hold the agency’s conclusion with respect to the Georgia Strait region arbitrary and capricious.

More specifically, the agency approved an exploitation rate for Nooksack salmon that is not only not “at or below” the benchmark rebuilding exploitation rate (“RER”), but is, in fact, more than twice…

MEMORANDUM *

Wild Pish Conservancy and related plaintiffs (collectively, the “Conservation Groups”) appeal from the district court’s grant of summary judgment to the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (“NMFS”). The facts are known to the parties and need not be repeated here, except as necessary to explain our decision.

We are not allowed to “substitute [our] judgment for that of the agency,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 , 91 S.Ct. 814 , 28 L.Ed.2d 136 (1971), and may only set aside the actions of NMFS in this case if they were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706 (2)(A); The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008) (en banc) (“[A] decision [i]s arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” (internal…