Oceana, Inc. v. Ross

• Court: District Court, N.D. California
• Decided: May 5, 2021
• Docket: 3:19-cv-03809
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11

12 OCEANA, INC., Case No. 19-CV-03809-LHK

13 Plaintiff, ORDER DENYING MOTION TO COMPEL 14 v. Re: Dkt. No. 88 15 WYNN COGGINS, et al., 16 Defendants. 17 Plaintiff Oceana, Inc. (“Plaintiff”) brings this action against Defendant Wynn Coggins, in 18 her official capacity; Defendant National Oceanic and Atmospheric Administration (“NOAA”); 19 and Defendant National Marine Fisheries Service (“NMFS”) (collectively, “Government 20 Defendants”). On September 2, 2020, the Court granted in part and denied in part the parties’ 21 motions for summary judgment (“the September 2, 2020 Order”). Oceana v. Ross, 483 F. Supp. 3d 22 764 (N.D. Cal. 2020). Before the Court is Plaintiff’s motion to compel compliance with the 23 September 2, 2020 Order. Having considered the parties’ submissions, the relevant law, and the 24 record in this case, the Court DENIES Plaintiff’s motion to compel. 25 I. BACKGROUND 26 Below, the Court summarizes the most relevant parts of the instant case. The September 2, 27 1 2020 Order provides a more fulsome description of the background of the instant case. See 2 Oceana, 483 F. Supp. 3d at 767–774. 3 In response to overfishing concerns, Congress enacted the Magnuson-Stevens Fishery 4 Conservation and Management Act of 1976 (“Magnuson-Stevens Act”). The Magnuson-Stevens 5 Act created eight Regional Fishery Management Councils and requires the Councils to create 6 fishery management plans (“FMPs”) aimed at preventing overfishing. 16 U.S.C. §§ 1852(h)(1), 7 1801(b)(4), 1854(a)(3). The Magnuson-Stevens Act sets ten “national standards for fishery 8 conservation and management,” the first two of which are relevant to the instant case. 16 U.S.C. § 9 1851(a). National Standard One requires that “[c]onservation and management measures shall 10 prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery 11 for the United States fishing industry.” 16 U.S.C. § 1851(a)(1). National Standard Two requires 12 that “[c]onservation and management measures shall be based upon the best scientific information 13 available.” 16 U.S.C. § 1851(a)(2). 14 The Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 15 2006 requires that each FMP “establish a mechanism for specifying annual catch limits [“ACLs”] 16 in the plan . . . at a level such that overfishing does not occur in the fishery.” 16 U.S.C. § 17 1853(a)(15). ACLs are set with reference to the overfishing limit (“OFL”) and the acceptable 18 biological catch (“ABC”). The OFL is a quantifiable factor that is “used to determine if 19 overfishing has occurred, or if the stock or stock complex [of a fishery] is overfished.” 50 C.F.R. 20 § 600.310(e)(2)(i)(A). The ABC is “a level of a stock or stock complex’s annual catch that 21 accounts for the scientific uncertainty in the estimate of OFL and any other scientific uncertainty.” 22 Id. § 600.310(f)(2)(ii). 23 On April 8, 2019, the NMFS published a proposed rule in the Federal Register to set an 24 ACL for the central population of the anchovy. AR 292:17233–17236. The NMFS proposed an 25 OFL of 94,290 metric tons (“mt”), an ABC of 23,573 mt and an ACL of 23,573 mt. Id. at 17233– 26 17234. 27 On May 31, 2019, the NMFS published a final rule in the Federal Register (“the 2019 1 Catch Rule”). AR 264:16386–16392. The 2019 Catch Rule averaged anchovy abundance 2 estimates from the three preceding years (2016–2018) and arrived at an average biomass of 3 394,519 mt. Id. at 16387–16388. The 2019 Catch Rule calculated the OFL by multiplying the 4 average biomass from 2016–2018 by an estimate of the rate of fishing mortality for anchovy at 5 MSY (0.239). Id. at 16387. This yielded an MSY and OFL of 94,290 mt. Id. at 16387–16388. The 6 NMFS then calculated an acceptable biological catch (“ABC”) of 23,573 by reducing the OFL by 7 75% pursuant to Amendment 13. Id. The NMFS then set the annual catch limit (“ACL”) to equal 8 the ABC at 23,573 mt. Id. 9 On June 28, 2019, Plaintiff filed a complaint that challenged the OFL, ABC, and ACL set 10 in the 2019 Catch Rule as well as Amendments 8 and 13 to the Pacific Council’s Coastal Pelagic 11 Species Fishery Management Plan (“CPS FMP”). ECF No. 1. On August 23, 2019, the Court 12 granted California Wetfish Producers Association and Monterey Fish Company Inc.’s 13 (“Intervenor-Defendants”) unopposed motion to intervene. ECF No. 27. 14 On March 17, 2020, Plaintiff filed a motion for summary judgment. ECF No. 59. On April 15 20, 2020, Intervenor-Defendants and Government Defendants filed their cross-motions for 16 summary judgment. ECF Nos. 63, 64. 17 On September 2, 2020, the Court granted in part and denied in part Plaintiff’s motion for 18 summary judgment and Government Defendants’ and Intervenor Defendants’ cross-motions for 19 summary judgment. Oceana, 483 F. Supp. 3d at 764. As to Plaintiff’s challenge to Amendments 8 20 and 13 to the CPS FMP, the Court granted Government Defendants’ and Intervenor Defendants’ 21 cross-motions for summary judgment. Id. at 778–79. As to Plaintiff’s challenge to the OFL, ABC, 22 and ACL set in the 2019 Catch Rule, the Court granted Plaintiff’s motion for summary judgment. 23 Id. at 779–88. 24 Specifically, the Court concluded that the OFL, ABC, and ACL set in the 2019 Catch Rule 25 were arbitrary and capricious for two reasons. First, the OFL, ABC, and ACL set in the 2019 26 Catch Rule were not based on the best scientific information available because the NMFS 27 dismissed two studies, MacCall (2016) and Thayer et al. (2017). Id. at 780–83. Because the 2019 1 Catch Rule was not based on the best information available, the Court concluded that the NMFS 2 “offered an explanation for its decision that runs counter to evidence before the agency” and failed 3 to “articulate a rational connection between the facts found and the conclusions reached.” Id. at 4 783 (quotation omitted). 5 Second, the OFL, ABC, and ACL set in the 2019 Catch Rule did not prevent overfishing 6 because they set static OFL, ABC, and ACL values for an indefinite period of time, and the 7 evidence did not demonstrate that those limits would prevent overfishing. Id. at 783–88. 8 Accordingly, the NMFS “offered an explanation for its decision that runs counter to evidence 9 before the agency.” Id. at 788 (quotation omitted). 10 Because the Court concluded that the 2019 Catch Rule was arbitrary and capricious, the 11 Court vacated the 2019 Catch Rule and remanded the 2019 Catch Rule “for further action 12 consistent with this order.” Id. at The Court “decline[d] Plaintiff’s invitation to ‘require’ the 13 NMFS ‘to issue a new catch rule [that] ensure[s] . . . annual limits are adjusted annually.’” Id. The 14 Court declined to “dictate the substance of any new catch rule on remand.” Id. The Court ordered 15 Defendants to “promulgate a new rule in compliance with the Magnuson-Stevens Act and the 16 APA within 120 days.” Id. 17 After entering the September 2, 2020 Order, the Court entered judgment in the instant case. 18 ECF No. 78. On October 30, 2020, Defendants appealed the September 2, 2020 Order to the Ninth 19 Circuit. ECF No. 81. The Ninth Circuit has not yet issued a decision. 20 On November 18, 2020, the NMFS published a proposed rule in the Federal Register to set 21 an ACL for the central population of the anchovy. 85 Fed. Reg. 73446. The NMFS proposed an 22 OFL of 119,153 mt, an ABC of 29,788 mt, and an ACL of 25,000 mt. 85 Fed. Reg. at 73446. 23 On December 31, 2020, the NMFS published a final rule in the Federal Register (“the 2020 24 Catch Rule”). 85 Fed. Reg. 86855. The 2020 Catch Rule set an OFL of 119,153 mt, an ABC of 25 29,788 mt, and an ACL of 25,000 mt. 85 Fed. Reg. at 86861. 26 On January 29, 2021, Plaintiff filed the instant motion to compel compliance with the 27 September 2, 2020 Order. ECF No. 88 (“Mot.”). On February 3, 2021, Defendants filed an 1 opposition. ECF No. 91 (“Opp’n”). On February 19, 2021, Plaintiff filed a reply. ECF No. 93 2 (“Reply”). 3 On January 29, 2021, the same day that Plaintiff filed the instant motion, Plaintiff also 4 filed a new lawsuit challenging the 2020 Catch Rule. Case No. 21-CV-00736-LHK, ECF No. 1. 5 On April 1, 2021, the Court concluded that the instant case was related to Plaintiff’s new lawsuit. 6 ECF No. 96. On April 6, 2021, Government Defendants filed an answer and a notice stating that 7 the administrative record had been filed. Case No. 21-CV-00736, ECF Nos. 23, 24. 8 II. LEGAL STANDARD 9 Federal courts have “inherent power to enforce compliance with their lawful orders.” 10 Shillitani v. United States, 384 U.S. 364, 370 (1966). This power extends “to the specific context 11 of a mandate issued to a federal agency.” California v. United States Dep’t of Labor, 155 F. Supp. 12 3d 1089, 1095–96 (E.D. Cal. 2016) (citing Flaherty v. Pritzker, 17 F. Supp. 3d 52, 55 (D.D.C. 13 2014). “Should an agency neglect the orders of a federal court, an order enforcing the original 14 mandate is . . . ‘particularly appropriate.’” Id. (quoting Int’l Ladies’ Garment Workers’ Union v. 15 Donovan, 733 F.2d 920, 922 (D.C. Cir. 1984)). 16 A court should grant a motion to enforce a final judgment “when a prevailing plaintiff 17 demonstrates that a defendant has not complied with a judgment entered against it, even if the 18 noncompliance was due to misinterpretation of the judgment.” Heartland Hosp. v. Thompson, 328 19 F. Supp. 2d 8, 11 (D.C. Cir. 2004). “Success on a motion to enforce a judgment gets a plaintiff 20 only ‘the relief to which [the plaintiff] is entitled under [its] original action and the judgment 21 entered therein.’” Heartland Reg’l Med. Ctr. v. Leavitt, 415 F.3d 24, 29 (D.C. Cir. 2005) (quoting 22 Watkins v. Washington, 511 F.2d 404, 406 (D.C. Cir. 1975)). However, if “the plaintiff has 23 received all relief required by that prior judgment, the motion to enforce is denied.” Id. 24 III. DISCUSSION 25 In the instant motion, Plaintiff moves to compel compliance with the September 2, 2020 26 Order because the OFL, ABC, and ACL set in the 2020 Catch Rule violates the September 2, 2020 27 Order. Mot. at 8–16. Plaintiff requests that the Court find NMFS in contempt of the September 2, 1 2020 Order; require NMFS to issue a new proposed and final rule correcting the OFL, ABC, and 2 ACL; and order NMFS to amend the CPS FMP. Id. at 4–5. 3 Defendants contend that the Court cannot invalidate the 2020 Catch Rule based on the 4 September 2, 2020 Order, which pertains to the 2019 Catch Rule. Opp’n at 2–4. For the reasons 5 below, the Court agrees. 6 The Magnuson-Stevens Act adopts the Administrative Procedure Act’s (“APA”) “standard 7 for judicial review of agency action set forth in 5 U.S.C. § 706(2)(A).” Or. Trollers Ass’n v. 8 Gutierrez, 452 F.3d 1104, 1116 (9th Cir. 2006) (citing 16 U.S.C. § 1855(f)(1)). Under the APA, 9 judicial review is based on the administrative record that was before the agency at the time the 10 action was taken. See 5 U.S.C. § 706(2)(A) (“In making the foregoing determinations, the court 11 shall review the whole record of those parts of it cited by a party.”); Citizens to Pres. Overton 12 Park, 401 U.S. at 410 (“[R]eview is to be based on the full administrative record that was before 13 the Secretary at the time he made his decision.”). The court must “determine whether or not as a 14 matter of law the evidence in the administrative record permitted the agency to make the decision 15 it did.” Occidental Eng’g Co. v. INS, 753 F.2d 766, 769–70 (9th Cir. 1985). 16 The court must set aside an agency action where the action is “arbitrary, capricious, an 17 abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). APA review 18 is deferential and narrow, and “[t]he court is not empowered to substitute its judgment for that of 19 the agency.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated 20 on other grounds, Califano v. Sanders, 430 U.S. 99 (1977). “If the court determines that the 21 agency’s course of inquiry was insufficient or inadequate, it should remand the matter to the 22 agency for further consideration and not compensate for the agency’s dereliction by undertaking 23 its own inquiry into the merits.” Asarco v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980); accord N. 24 Air Cargo v. Postal Serv., 674 F.3d 852, 861 (D.C. Cir. 2012) (“When a district court reverses 25 agency action and determines that the agency acted unlawfully, . . . the appropriate course is 26 simply to identify a legal error and then remand to the agency, because the role of the district court 27 in such situations is to act as an appellate tribunal.”). “[T]o order the agency to take specific 1 actions is reversible error.” Flaherty, 17 F. Supp. 3d at 57. 2 In sum, APA review of an agency is based on the administrative record of that agency 3 action. See 5 U.S.C. § 706(2)(A); Citizens to Pres. Overton Park, 401 U.S. at 410. If the court 4 concludes that the agency action violates the APA, the normal course is to remand the matter to 5 the agency for further consideration rather than dictating the agency’s future actions. Asarco, 616 6 F.2d at 1160. 7 “It is both logical and precedented that an agency can engage in a rulemaking to correct a 8 prior rule which a court has found defective.” N.A.A.C.P., Jefferson County Branch v. Donovan, 9 737 F.2d 67, 72 (D.C. Cir. 1984). When the agency makes a new rule and the plaintiffs, 10 contending that the new rule violates the court’s prior order, move to enforce the court’s prior 11 order, several courts have denied the motion to enforce. 12 For example, in Fund for Animals v. Norton, the United States District Court for the 13 District of Columbia invalidated the National Park Service’s 2003 Rule regarding winter use of 14 three parks and remanded to the agency. 390 F. Supp. 2d 12, 14 (D.D.C. 2005). The agency then 15 promulgated a 2004 Rule governing winter use of the three parks. Id. The plaintiffs moved to 16 enforce the court’s earlier order on the grounds that the 2004 Rule failed to correct the deficiencies 17 that led the Court to vacate the 2003 Rule. Id. The court denied the plaintiffs’ motion. Id. at 15. 18 The court observed that “[w]hile plaintiffs’ motion is styled as one to ‘enforce’ the Court's 19 December 16, 2003 Order, it is in essence a challenge to the National Park Service's 2004 20 Temporary Winter Use Plan—not the 2003 Decision that was the subject of the 2003 Order.” Id. 21 The court stated that “[t]he 2004 Decision is a new “final agency action” resulting from an entirely 22 new rule making process; it imposes different substantive requirements, involves a different scope, 23 and is based upon a different administrative record . . . not before the Court in this case.” Id. Thus, 24 the court concluded that “the proper avenue for plaintiffs' arguments is a new lawsuit squarely 25 challenging the validity of the 2004 Decision.” Id. 26 Similarly, in National Wildlife Federation v. U.S. Army Corps. of Engineers, the court 27 found that a 1998 Record of Decision by the U.S. Army Corps of Engineers was unlawful and 1 remanded to the agency to issue a new Record of Decision. 2001 WL 34045735 (D. Or. Aug. 21, 2 2001). After the agency issued a new Record of Decision in 2001, the plaintiffs moved the court to 3 declare that the agency had failed to comply with its prior order, to invalidate the agency’s 2001 4 Record of Decision, and to order the agency to issue a new Record of Decision. Id. at *1. 5 Alternatively, the plaintiffs moved for leave to amend their complaint to challenge the 2001 6 Record of Decision. Id. The court denied the plaintiffs’ motion to enforce the judgment but 7 granted the plaintiffs’ motion for leave to amend the complaint. Id. The court stated that it would 8 “address the plaintiffs’ complaints relating to the merits of the May 2001 [Record of] Decision 9 when an amended complaint is filed and the administrative record is available for examination.” 10 Id. 11 In State of California v. United States Department of Interior, another court in this district 12 came to a similar decision. 2020 WL 1496278 (N.D. Cal. Mar. 16, 2020), report & 13 recommendation adopted (N.D. Cal. July 30, 2020). In that case, the court vacated the Office of 14 Natural Resources Revenue’s Final Repeal of its Valuation Rule based on the agency’s failure to 15 comply with the APA. Id. at *1–*2. As a result of the vacatur of the Final Repeal, the Valuation 16 Rule was left in effect. Id. at *2. The agency later postponed implementation of the Valuation 17 Rule. Id at *3. The intervenor-plaintiffs moved for enforcement of the court’s prior order. Id. The 18 court concluded that the relief sought by the movants was beyond the scope of the court’s prior 19 order, which had simply vacated the Final Repeal and left the Valuation Rule in place. Id. at *4. 20 The court emphasized that the prior order did not address the postponement. Id. The court stated 21 that, if the movants wanted to raise the postponement, they would “have to file a new lawsuit 22 challenging the postponement.” Id. 23 Like the plaintiffs in these cases, Plaintiff is moving to enforce a court order, which 24 concluded a prior rule was arbitrary and capricious, based on Plaintiff’s contention that a new rule 25 does not comply with the court order. Indeed, the 2020 Catch Rule is a new rule because it 26 resulted from a different rulemaking process, has a different administrative record, and sets a 27 different OFL, ABC, and ACL than the 2019 Catch Rule. Compare AR 264:16387–16388 (2019 1 Catch Rule) (setting an OFL of 94,200 mt, an ABC of 23,573 mt, and an ACL of 23,573 mt) with 2 85 Fed. Reg. at 86861 (2020 Catch Rule) (setting an OFL of 119,153 mt, an ABC of 29,788 mt, 3 and an ACL of 25,000 mt). Like other courts that have considered this issue, the Court concludes 4 that Plaintiff cannot move to enforce a court order that concluded that a prior rule was arbitrary 5 and capricious, but rather must challenge the new rule based on its own administrative record.1 6 In the September 2, 2020 Order, the Court reviewed the 2019 Catch Rule based on the 7 administrative record that was before NMFS when NMFS promulgated the 2019 Catch Rule. The 8 Court assessed whether “the evidence in the administrative record permitted the agency to make 9 the decision it did.” Occidental Eng’g Co., 753 F.2d at 769–70. The Court concluded that the 10 evidence in the administrative record did not permit NMFS to make the decision it did because 11 NMFS’s decision ran counter to the evidence that was before the agency. Oceana, 483 F. Supp. 3d 12 at 783, 788. The Court thus vacated the 2019 Catch Rule and remanded to the agency Id. at 788. 13 However, the Court declined to “dictate the substance of any new catch rule on remand.” Id. 14 Specifically, the Court “decline[d] Plaintiff’s invitation to ‘require’ the NMFS ‘to issue a new 15 catch rule [that] ensure[s] . . . annual limits are adjusted annually.’” Id. The Court ordered 16 Defendants to “promulgate a new rule in compliance with the Magnuson-Stevens Act and the 17 APA within 120 days.” Id. 18 In the instant motion, Plaintiff moves to compel compliance with the September 2, 2020 19 Order. Plaintiff contends that Defendants have failed to comply with the September 2, 2020 Order 20 based on Defendants’ issuance of the 2020 Catch Rule. Mot. at 8–16. However, the 2020 Catch 21 22 1 Plaintiff contends that Fund for Animals is distinct from the instant case for two reasons. First, in 23 Fund for Animals, the previous order “was narrowly grounded on APA and NEPA violations regarding the 2003 rule making process and did not reach plaintiffs’ substantive legal challenges.” 24 390 F. Supp. 2d at 15. However, in the instant case, the September 2, 2020 Order was also grounded in APA violations. Oceana, 483 F. Supp. at 783, 788. Second, in Fund for Animals, the 25 new rule “imposes different substantive requirements, involves a different scope, and is based upon a different administrative record.” Id. However, in the instant case, the 2020 Catch Rule also 26 imposes a different catch limit, resulted from a new rulemaking, and is based on a new administrative record. Compare AR 264:16387–16388 (2019 Catch Rule) (setting an OFL of 27 94,200 mt, an ABC of 23,573 mt, and an ACL of 23,573 mt) with 85 Fed. Reg. at 86861 (2020 Catch Rule) (setting an OFL of 119,153 mt, an ABC of 29,788 mt, and an ACL of 25,000 mt). 1 Rule is beyond the scope of the September 2, 2020 Order. In the September 2, 2020 Order, the 2 Court invalidated the 2019 Catch Rule and remanded to the agency. Oceana, 483 F. Supp. 3d at 3 788; see also Asarco, 616 F.2d at 1160 (“If the court determines that the agency’s course of 4 inquiry was insufficient or inadequate, it should remand the matter to the agency for further 5 consideration and not compensate for the agency’s dereliction by undertaking its own inquiry into 6 the merits.”). The Court expressly declined to “dictate the substance of any new catch rule on 7 remand.” Id.; see also Flaherty, 17 F. Supp. 3d at 57 (“[T]o order the agency to take specific 8 actions is reversible error.”). Accordingly, vacating the 2020 Catch Rule would expand the scope 9 of the Court’s September 2, 2020 Order because it would dictate the substance of a new catch rule, 10 which the Court’s September 2, 2020 Order expressly declined to do. See State of California v. 11 United States Department of Labor, 155 F. Supp. 3d at 1096 (denying the plaintiffs’ request to 12 direct the agency to certify grants because the court’s previous order remanded the matter to the 13 agency rather than instructing the agency to reach any particular result). 14 Moreover, the September 2, 2020 Order’s analysis was specific to the 2019 Catch Rule and 15 its administrative record. Specifically, the September 2, 2020 Order concluded that the 2019 Catch 16 Rule was arbitrary and capricious because the 2019 Catch Rule ran counter to the evidence that 17 was before NMFS. Oceana, 483 F. Supp. 3d at 783, 788. That conclusion stemmed from the 18 Court’s analysis of the administrative record for the 2019 Catch Rule, which included the evidence 19 before NMFS at the time the decision was made. Id. However, the 2020 Catch Rule has a new 20 administrative record, resulted from a new rulemaking process, and sets a different OFL, ABC, 21 and ACL than the 2019 Catch Rule did. Compare AR 264:16387–16388 (2019 Catch Rule) 22 (setting an OFL of 94,200 mt, an ABC of 23,573 mt, and an ACL of 23,573 mt) with 85 Fed. Reg. 23 at 86861 (2020 Catch Rule) (setting an OFL of 119,153 mt, an ABC of 29,788 mt, and an ACL of 24 25,000 mt). Without examining the administrative record for the 2020 Catch Rule, the Court 25 cannot know what evidence was before NMFS and thus cannot determine whether the 2020 Catch 26 Rule ran counter to the evidence that was before NMFS. See Fund for Animals, 390 F. Supp. 2d at 27 15 (denying plaintiffs’ motion to enforce as to new rule because that rule’s administrative record 1 was not before the court). 2 Although several cases have held that plaintiffs cannot move to enforce a court order in 3 these circumstances, Plaintiffs do not cite any cases where a court enforced a prior order, which 4 invalidated a prior rule under the APA and remanded to the agency, as to a new rule. The Court 5 has found one similar case, International Ladies’ Garment Workers’ Union v. Donovan. 733 F.2d 6 at 921. In that case, the D.C. Circuit held that “the Secretary of Labor’s rescission of homework 7 restrictions in the knitted outerwear industry was arbitrary and capricious.” Id. The D.C. Circuit 8 vacated the rescission, such that the homework restrictions were reinstated, and remanded to the 9 Secretary. Id. The Secretary then issued a final emergency rule suspending the effect of the court’s 10 decision for a period of 120 days. Id. at 921. The plaintiffs then filed a motion to compel 11 compliance with the D.C. Circuit’s decision. Id. After the district court concluded that it could not 12 issue the relief sought by plaintiffs, the D.C. Circuit remanded to the district court for 13 consideration of whether the emergency rule violated the terms the D.C. Circuit’s mandate. Id. at 14 923. The D.C. Circuit observed that the Secretary had “simply reimplemented precisely the same 15 rule that this court vacated as ‘arbitrary and capricious’ in its first decision.” Id. The D.C. Circuit 16 explained that the Secretary’s attempt to suspend the court decision and reimplement the same 17 exact rule conflicted with “the interest of the judicial branch in seeing that an unambiguous 18 mandate is not blatantly disregarded by parties to a court proceeding.” Id. 19 The instant case is distinguishable from Donovan. Unlike Donovan, NMFS has not 20 suspended the effect of the September 2, 2020 Order. Nor has NMFS “simply reimplemented 21 precisely the same rule that this court vacated as ‘arbitrary and capricious’ in its first decision.” Id. 22 Rather, NMFS has issued a new rule with a new administrative record. Compare AR 264:16387– 23 16388 (2019 Catch Rule) (setting an OFL of 94,200 mt, an ABC of 23,573 mt, and an ACL of 24 23,573 mt) with 85 Fed. Reg. at 86861 (2020 Catch Rule) (setting an OFL of 119,153 mt, an ABC 25 of 29,788 mt, and an ACL of 25,000 mt). Accordingly, rather than moving to enforce a judgment 26 that pertained to a different rule and a different administrative record, Plaintiff must challenge the 27 2020 Catch Rule based on its own administrative record. Seeming to acknowledge this, on the 1 same day that Plaintiff filed the instant motion to compel, Plaintiff filed a new lawsuit challenging 2 the 2020 Catch Rule. Case No. 21-CV-00736, ECF No. 1. In that new lawsuit, Defendants have 3 already filed the administrative record. Case No. 21-CV-00736, ECF No. 23. Plaintiff thus seems 4 || to acknowledge that Plaintiff must challenge the 2020 Catch Rule in a new lawsuit rather than in a 5 |} motion to compel compliance with the Court’s September 2, 2020 Order. 6 || IV. CONCLUSION 7 For the foregoing reasons, the Court DENIES Plaintiff’s motion to compel. 8 || ITIS SO ORDERED. 9 10 || Dated: May 5, 2021 1] K ‘ LUCY H. KOH 12 United States District Judge

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