Case 3:10-cv-00271-TMB Document 20 Filed 02/03/11 Page 1 of 23

IGNACIA S. MORENO
Assistant Attorney General
SETH M. BARSKY, Section Chief
DANIEL POLLAK, Trial Attorney (Cal. Bar 264285)
U.S. Department of Justice
Environment and Natural Resources Division
Wildlife and Marine Resources Section
Ben Franklin Station, P.O. Box 7369
Washington, D.C. 20044-7369
Tel: (202) 305-0201
Fax: (202) 305-0275

Additional Attorneys Listed on Signature Page

Attorneys for Federal Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA
(Anchorage)

STATE OF ALASKA, )
)
Plaintiff, )
v. )
) No. 3:10-CV-00271-TMB
JANE LUBCHENCO, in her official )
capacity as Administrator, National Oceanic ) Answer
and Atmospheric Administration; )
NATIONAL MARINE FISHERIES )
SERVICE; JAMES W. BALSIGER, in his )
official capacity as NMFS Alaska Region )
Administrator; and GARY LOCKE, in his )
official capacity as the United States )
Secretary of Commerce, )
)
Defendants. )

Jane Lubchenco, the National Marine Fisheries Service, James W. Balsiger, and Gary

Locke (collectively “Federal Defendants”) plead as follows in response to Plaintiff State of

Alaska’s Complaint (Doc. 1). The numbered paragraphs of Federal Defendants’ Answer
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correspond to the numbered paragraphs of Plaintiff’s Complaint. Defendants, by and through

counsel, deny every statement, matter, allegation or thing in Plaintiff’s Complaint unless

hereinafter specifically admitted or modified. In response to the like-numbered paragraphs of

Plaintiff's Complaint, Defendants hereby state and aver as follows:

INTRODUCTION

1. The allegations in Paragraph 1 are the Plaintiff’s description of the nature of its suit

that require no response. To the extent a response is deemed required, Federal Defendants deny

each of the allegations.

2. The allegations in Paragraph 2 are the Plaintiff’s description of the nature of its suit

and legal conclusions that require no response. To the extent a response is deemed required,

Federal Defendants deny each of the allegations.

JURISDICTION AND VENUE

3. The allegations in Paragraph 3 are legal conclusions that require no response. To the

extent a response is deemed required, Federal Defendants deny each of the allegations.

4. The allegations in Paragraph 4 are legal conclusions that require no response. To the

extent a response is deemed required, Federal Defendants deny each of the allegations.

5. The allegations in Paragraph 5 are legal conclusions that require no response. To the

extent a response is deemed required, Federal Defendants deny each of the allegations.

6. The allegations in the first and second sentences of Paragraph 6 are legal conclusions

that require no response. To the extent a response is deemed required, Federal Defendants deny

each of the allegations. Federal Defendants admit the allegations in the third and fourth

sentences of Paragraph 6.

PARTIES
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7. The allegations in Paragraph 7 are legal conclusions that require no response. To the

extent a response is deemed required, Federal Defendants deny each of the allegations.

8. The allegations in the first and second sentences of Paragraph 8 are legal conclusions

that require no response. To the extent a response is deemed required, Federal Defendants deny

each of the allegations. The allegations in the third sentence of Paragraph 8 purport to

characterize the document attached to Plaintiff’s complaint as “Exhibit 1,” a document that

speaks for itself and is the best evidence of its contents. Federal Defendants deny any allegations

inconsistent with its plain language and meaning.

9. The allegations in the first sentence of Paragraph 9 are vague and ambiguous, and

Federal Defendants deny them on that basis. The allegations in the second sentence of Paragraph

9 are legal conclusions that require no response. To the extent a response is deemed required,

Federal Defendants deny each of the allegations.

10. The allegations in Paragraph 10 are vague and ambiguous, and Federal Defendants

deny them on that basis.

11. Federal Defendants admit the allegation in Paragraph 11. Federal Defendants aver

that the State of Alaska also participated beyond the extent allowed to other members of the

public through its representative on the North Pacific Fishery Management Council (“NPFMC”),

as well as the participation on the NPFMC Science and Statistical Committee by staff from

Alaska’s Department of Fish and Game.

12. The allegations in Paragraph 12 are legal conclusions that require no response. To

the extent a response is deemed required, Federal Defendants deny each of the allegations.

13. Federal Defendants admit the allegations in Paragraph 13.

14. Federal Defendants admit the allegations in Paragraph 14.

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15. In response to the allegations in the first sentence of Paragraph 15, Federal

Defendants admit that within the Department of Commerce and the National Oceanic and

Atmospheric Administration (“NOAA”), NMFS has been delegated the responsibility for

implementing the Endangered Species Act (“ESA”) and the Magnuson-Stevens Fishery

Conservation and Management Act (“MSA”). Federal Defendants further admit that NMFS has

responsibility for complying with the National Environmental Policy Act (“NEPA”), the

Regulatory Flexibility Act (“RFA”), and the Administrative Procedure Act (“APA”) to the extent

those statutes relate to NMFS’ implementation of the ESA and MSA.

16. Federal Defendants admit the allegations in Paragraph 16.

LEGAL BACKGROUND

17. The allegations in Paragraph 17 purport to characterize the National Environmental

Policy Act (“NEPA”) and regulations thereunder, a statute and regulations that speak for

themselves and contain the best evidence of their contents. Federal Defendants deny any

allegation inconsistent with the plain language and meaning of the NEPA statute and regulations.

18. The allegations in Paragraph 18 purport to characterize NEPA, regulations

thereunder, and the U.S. Supreme Court’s opinion in Robertson v. Methow Valley Citizens

Council, 490 U.S. 332 (1989), a statute, regulations and opinion that speak for themselves and

contain the best evidence of their contents. Federal Defendants deny any allegation inconsistent

with the plain language and meaning of the NEPA statute and regulations and the Methow Valley

opinion.

19. The allegations in Paragraph 19 purport to characterize NEPA and regulations

thereunder, a statute and regulations that speak for themselves and contain the best evidence of

their contents. Federal Defendants deny any allegation inconsistent with the plain language and
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meaning of the NEPA statute and regulations.

20. The allegations in Paragraph 20 purport to characterize regulations under NEPA,

regulations that speak for themselves and contain the best evidence of their contents. Federal

Defendants deny any allegation inconsistent with the plain language and meaning of the NEPA

regulations.

21. The allegations in Paragraph 21 purport to characterize regulations under NEPA,

regulations that speak for themselves and contain the best evidence of their contents. Federal

Defendants deny any allegation inconsistent with the plain language and meaning of the NEPA

regulations.

22. The allegations in Paragraph 22 purport to characterize NEPA and regulations

thereunder, and the Ninth Circuit’s opinion in Bob Marshall Alliance v. Hodel, 852 F.2d 1223

(9th Cir. 1998), a statute, regulations, and opinion that speak for themselves and contain the best

evidence of their contents. Federal Defendants deny any allegation inconsistent with the plain

language and meaning of the NEPA statute, regulations, and the Bob Marshall Alliance opinion.

23. The allegations in Paragraph 23 purport to characterize the Ninth Circuit’s opinion in

Oregon Natural Resources Council v. U.S. Bureau of Land Management, 470 F.3d 818 (9th Cir.

2006), an opinion that speaks for itself and contains the best evidence of its contents. Federal

Defendants deny any allegation inconsistent with the plain language and meaning of the Oregon

Natural Resources Council opinion.

24. The allegations in Paragraph 24 purport to characterize regulations under NEPA,

regulations that speak for themselves and contain the best evidence of their contents. Federal

Defendants deny any allegation inconsistent with the plain language and meaning of the NEPA

regulations.
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25. The allegations in Paragraph 25 purport to characterize the Ninth Circuit’s opinion in

Ocean Advocates v. U.S. Army Corps. of Engineers, 402 F.3d 864 (9th Cir. 2005), an opinion

that speaks for itself and contains the best evidence of its contents. Federal Defendants deny any

allegation inconsistent with the plain language and meaning of the Ocean Advocates opinion.

26. The allegations in Paragraph 26 purport to characterize the ESA, a statute that speaks

for itself and contains the best evidence of its contents. Federal Defendants deny any allegation

inconsistent with the plain language and meaning of the ESA.

27. The allegations in the first sentence of Paragraph 27 purport to characterize

regulations under the ESA, regulations that speak for themselves and contain the best evidence of

their contents. Federal Defendants deny any allegation inconsistent with the plain language and

meaning of the ESA regulations. The allegations in the second sentence of Paragraph 27 are

conclusions of law that require no response. To the extent a response is deemed required,

Defendant denies each of the allegations.

28. The allegations in Paragraph 28 purport to characterize the Ninth Circuit’s opinions

in Butte Environmental Council v. U.S. Army Corps of Engineers, 620 F.3d 936 (9th Cir. 2010)

and Gifford Pinchot Task Force v. U.S. Fish & Wildlife Service, 378 F.3d 1059 (9th Cir. 2004),

opinions that speak for themselves and are the best evidence of their contents. Federal

Defendants deny any allegation inconsistent with the plain language and meaning of the Butte

Environmental Council and Gifford Pinchot Task Force opinions.

29. The allegations in paragraph 29 purport to characterize the ESA and regulations

thereunder, a statute and regulations that speak for themselves and contain the best evidence of

their contents. Federal Defendants deny any allegation inconsistent with the plain language and

meaning of the ESA statute and regulations.

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30. The allegations in paragraph 30 purport to characterize the ESA and regulations

thereunder, a statute and regulations that speak for themselves and contain the best evidence of

their contents. Federal Defendants deny any allegation inconsistent with the plain language and

meaning of the ESA statute and regulations.

31. The allegations in paragraph 31 purport to characterize regulations under the ESA,

regulations that speak for themselves and contain the best evidence of their contents. Federal

Defendants deny any allegation inconsistent with the plain language and meaning of the ESA

regulations.

32. The allegations in Paragraph 32 purport to characterize the U.S. Supreme Court’s

opinion in Bennett v. Spear, 520 U.S. 154 (1997), an opinion that speaks for itself and is the best

evidence of its contents. Federal Defendants deny any allegation inconsistent with the plain

language and meaning of the Bennett v. Spear opinion.

33. The allegations in Paragraph 33 purport to characterize the ESA and the U.S.

Department of Interior and U.S. Department of Commerce, “Notice of Interagency Cooperative

Policy Regarding the Role of the State Agencies in Endangered Species Act Activities,” 59 Fed.

Reg. 34274 (July 1, 1994) (“Interagency Cooperative Policy”), a statute and Federal Register

notice that speak for themselves and contain the best evidence of their contents. Federal

Defendants deny any allegation inconsistent with the plain language and meaning of the ESA

statute and Interagency Cooperative Policy.

34. The allegations in Paragraph 34 purport to characterize U.S. Fish and Wildlife

Service and the National Marine Fisheries Service, “Consultation Handbook, Procedures for

Conducting Consultation & Conference Activities Under Section 7 of the ESA,” March 1988,

(“Consultation Handbook”), a document that speaks for itself and contains the best evidence of
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its contents. Federal Defendants deny any allegation inconsistent with the plain language and

meaning of the Consultation Handbook.

35. The allegations in Paragraph 35 are conclusions of law that require no response. To

the extent a response is deemed required, Federal Defendants deny each of the allegations.

36. The allegations in Paragraph 36 purport to characterize the MSA, a statute that speaks

for itself and contains the best evidence of its contents. Federal Defendants deny any allegation

inconsistent with the plain language and meaning of the MSA.

37. The allegations in Paragraph 37 purport to characterize the MSA, a statute that speaks

for itself and contains the best evidence of its contents. Federal Defendants deny any allegation

inconsistent with the plain language and meaning of the MSA.

38. Federal Defendants deny the allegations in Paragraph 38, and aver that the NPFMC

has authority under the MSA to recommend fishery management plans (“FMPs”), fishery

management plan amendments, and regulations consistent with those fishery management plans

and amendments, that, when approved by the Secretary of Commerce, regulate federal fishing in

the Exclusive Economic Zone (“EEZ”) off Alaska. Federal Defendants further aver that FMPs

developed by the NPFMC govern the management of groundfish fisheries within the EEZ in the

Bering Straits and Aleutian Islands (“BSAI”) and the Gulf of Alaska (“GOA”).

39. The allegations in Paragraph 39 purport to characterize the MSA, a statute that

speaks for itself and contains the best evidence of its contents. Federal Defendants deny any

allegation inconsistent with the plain language and meaning of the MSA.

40. The allegations in Paragraph 40 purport to characterize the MSA and NEPA, statutes

that speak for themselves and contain the best evidence of their contents. Federal Defendants

deny any allegation inconsistent with the plain language and meaning of the MSA and NEPA
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statutes.

41. The allegations in Paragraph 41 purport to characterize the MSA, a statute that speaks

for itself and contains the best evidence of its contents. Federal Defendants deny any allegation

inconsistent with the plain language and meaning of the MSA.

42. The allegations in Paragraph 42 purport to characterize the Administrative Procedure

Act (“APA”), a statute that speaks for itself and contains the best evidence of its contents.

Federal Defendants deny any allegation inconsistent with the plain language and meaning of the

APA.

43. The allegations in Paragraph 43 purport to characterize the APA, a statute that speaks

for itself and contains the best evidence of its contents. Federal Defendants deny any allegation

inconsistent with the plain language and meaning of the APA.

44. The allegations in Paragraph 44 purport to characterize the APA, a statute that speaks

for itself and contains the best evidence of its contents. Federal Defendants deny any allegation

inconsistent with the plain language and meaning of the APA.

45. The allegations in Paragraph 45 purport to characterize the Regulatory Flexibility Act

(“RFA”), a statute that speaks for itself and contains the best evidence of its contents. Federal

Defendants deny any allegation inconsistent with the plain language and meaning of the RFA.

46. The allegations in Paragraph 46 purport to characterize the RFA, a statute that speaks

for itself and contains the best evidence of its contents. Federal Defendants deny any allegation

inconsistent with the plain language and meaning of the RFA.

FACTUAL BACKGROUND

47. The allegations in Paragraph 47 purports to characterize the Final Biological

Opinion, a document that speaks for itself and contains the best evidence of its contents. Federal
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Defendants deny any allegation inconsistent with its plain language and meaning.

48. The allegations in Paragraph 48 purport to characterize the Final Biological Opinion,

a document that speaks for itself and contains the best evidence of its contents. Federal

Defendants deny any allegation inconsistent with its plain language and meaning.

49. The allegations in Paragraph 49 purport to characterize the Final Biological Opinion,

a document that speaks for itself and contains the best evidence of its contents. Federal

Defendants deny any allegation inconsistent with its plain language and meaning.

50. The allegations in Paragraph 50 purport to characterize the Final Biological Opinion,

a document that speaks for itself and contains the best evidence of its contents. Federal

Defendants deny any allegation inconsistent with its plain language and meaning.

51. The allegations in Paragraph 51 purport to characterize the Final Biological Opinion,

a document that speaks for itself and contains the best evidence of its contents. Federal

Defendants deny any allegation inconsistent with its plain language and meaning.

52. The allegations in Paragraph 52 purport to characterize the Final Biological Opinion,

a document that speaks for itself and contains the best evidence of its contents. Federal

Defendants deny any allegation inconsistent with its plain language and meaning.

53. The allegations in Paragraph 53 purport to characterize the Final Biological Opinion,

a document that speaks for itself and contains the best evidence of its contents. Federal

Defendants deny any allegation inconsistent with its plain language and meaning.

54. The allegations in Paragraph 54 purport to characterize the Final Biological Opinion,

a document that speaks for itself and contains the best evidence of its contents. Federal

Defendants deny any allegation inconsistent with its plain language and meaning.

55. The allegations in Paragraph 55 purport to characterize the Final Biological Opinion,
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a document that speaks for itself and contains the best evidence of its contents. Federal

Defendants deny any allegation inconsistent with its plain language and meaning.

56. Federal Defendants deny the allegations in the first sentence of Paragraph 56, and

aver that there are likely multiple factors causing these trends, one of which is nutritional stress

resulting from the groundfish fisheries evaluated in the Biological Opinion. Federal Defendants

deny the allegations in the second sentence of Paragraph 56.

57. Federal Defendants admit the allegations in Paragraph 57.

58. In response to the allegations in the first sentence of Paragraph 58, Federal

Defendants admit that NMFS prepared a Steller sea lion recovery plan in 2008 (“2008 Recovery

Plan”) pursuant to ESA Section 4(f). The remaining allegations in Paragraph 58 purport to

characterize the 2008 Recovery Plan, a document that speaks for itself and is the best evidence of

its contents. Federal Defendants deny any allegation inconsistent with the plain language and

meaning of the 2008 Recovery Plan.

59. Federal Defendants admit the allegations in the first sentence of Paragraph 59. The

allegations in the second and third sentences of Paragraph 59 purport to characterize NMFS’

August 2010 Draft Biological Opinion regarding authorization of groundfish fisheries under the

Fishery Management Plan for groundfish of the Bering Sea and Aleutian Islands Management

Area, authorization of groundfish fisheries under the Fishery Management Plan for groundfish of

the Gulf of Alaska, and State of Alaska parallel groundfish fisheries (“Draft Biological

Opinion”), a document that speaks for itself and is the best evidence of its contents. Federal

Defendants deny any allegation inconsistent with the plain language and meaning of the Draft

Biological Opinion.

60. Federal Defendants admit the allegations in the first sentence of Paragraph 60. The
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allegations in the second sentence of Paragraph 60 purport to characterize NMFS, Revisions to

the Steller Sea Lion Protection Measures for the Aleutian Islands Atka Mackerel and Pacific Cod

Fisheries, Council Review Draft EA/RIR (Aug. 2010) (“Draft EA/RIR”), a document that speaks

for itself and is the best evidence of its contents. Federal Defendants deny any allegation

inconsistent with the plain language and meaning of the Draft EA/RIR.

61. In response to the allegations in Paragraph 61, Federal Defendants admit that on

August 2, 2010, NMFS released the Draft Biological Opinion and Draft EA/RIR for a 25-day

comment period. Federal Defendants admit the allegations in the second sentence of Paragraph

61.

62. Federal Defendants admit the allegations in the first sentence of Paragraph 62.

Federal Defendants lack information and knowledge sufficient to form a belief as to the truth of

the allegations in the second sentence of Paragraph 62, and deny them on that basis, but aver that

NMFS released the draft Biological Opinion on August 2, 2010. Federal Defendants deny the

allegations in the third sentence of Paragraph 62.

63. In response to the allegations in the first sentence of Paragraph 63, Federal

Defendants admit that on August 18, 2010, Alaska Governor Sean Parnell requested an extension

of the comment period on the Biological Opinion, and admit that the draft Biological Opinion

was nearly 800 pages in length and that the draft EA/RIR was more than 240 pages in length.

The remaining allegations in the first sentence of Paragraph 63 purports to characterize Governor

Parnell’s August 18, 2010 extension request, a document that speaks for itself and is the best

evidence of its contents. Federal Defendants deny any allegations inconsistent with its plain

language and meaning. In response to the allegations in the second sentence of Paragraph 63,

Federal Defendants admit that NMFS provided a seven-day extension in response to Governor
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Parnell’s request.

64. In response to the allegations in the first sentence of Paragraph 64, Federal

Defendants admit that the NPFMC met in August 2010 to discuss the proposed RPA. Federal

Defendants lack information and knowledge sufficient to form a belief as to the truth of the

allegations in the second sentence of Paragraph 64 and deny them on that basis. Federal

Defendants deny the information in the third sentence of Paragraph 64.

65. In response to the allegations in the first sentence of Paragraph 65, Federal

Defendants admit that the NPFMC received public comment and considered changes to the

proposed RPA that would have reduced the scope of proposed fishery restrictions. Federal

Defendants admit the allegations in the second sentence of Paragraph 65.

66. In response to the allegations in Paragraph 66, Federal Defendants admit that the

NPFMC offered an additional alternative containing fewer restrictions on fishing, a proposal that

was supported by some industry groups and the Advisory Panel. Federal Defendants deny the

remaining allegations in Paragraph 66, and aver that the alternative recommended by the NPFMC

did not meet the objectives and performance standards outlined in the draft Biological Opinion

and was not likely to have avoided jeopardy to the Western Distinct Population Segment of the

Steller sea lion and adverse modification of its critical habitat.

67. In response to the allegations in Paragraph 67, Federal Defendants admit the State of

Alaska on September 2, 2010 requested additional time to review and comment on the Draft

Biological Opinion and Draft EA/RIR.

68. Federal Defendants admit the allegations in the first sentence of Paragraph 68.

Federal Defendants deny the allegations in the second sentence of Paragraph 68.

69. The allegations in the first sentence of Paragraph 69 purport to characterize NMFS’
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November 24, 2010 Biological Opinion regarding authorization of groundfish fisheries under the

Fishery Management Plan for groundfish of the Bering Sea and Aleutian Islands Management

Area, authorization of groundfish fisheries under the Fishery Management Plan for groundfish of

the Gulf of Alaska, and State of Alaska parallel groundfish fisheries (“Final Biological

Opinion”), a document that speaks for itself and is the best evidence of its contents. Federal

Defendants aver that the Final Biological Opinion was made available to the public on NMFS’

website on December 8, 2010. Federal Defendants deny any allegations inconsistent with its

plain language and meaning. Federal Defendants admit the allegations in the second sentence of

Paragraph 69.

70. The allegations in Paragraph 70 purport to characterize the Biological Opinion, a

document that speaks for itself and is the best evidence of its contents. Federal Defendants deny

any allegations inconsistent with its plain language and meaning.

71. The allegations in Paragraph 71 purport to characterize the Biological Opinion, a

document that speaks for itself and is the best evidence of its contents. Federal Defendants deny

any allegations inconsistent with its plain language and meaning.

72. Federal Defendants admit the allegations in Paragraph 72.

73. Federal Defendants admit the allegations in Paragraph 73.

74. Federal Defendants deny the allegations in the first sentence of Paragraph 74, and

aver that the Interim Final Rule was published on December 13, 2010, with a 30-day comment

period running through January 12, 2011, which was later extended for 45 days to run through

February 28, 2011. In response to the second sentence of Paragraph 74, Federal Defendants

admit that NMFS did not submit the Draft Biological Opinion for external independent peer

review. Federal Defendants aver that the Draft Biological Opinion was subjected to peer review
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by independent peer reviewers within NMFS who were not involved in producing the Biological

Opinion. Federal Defendants admit that NMFS did not separately respond to the State regarding

the comments the State provided on the Draft Biological Opinion and EA/RIR, and aver that

NMFS considered all such comments from the State of Alaska during the development of its

Final Biological Opinion and the Interim Final Rule.

75. The allegations in the first sentence of Paragraph 75 are vague and ambiguous, and

Federal Defendants deny them on that basis. The allegations in the second, third, and fourth

sentences of Paragraph 75 purport to characterize the final EA/RIR, a document that speaks for

itself and is the best evidence of its contents. Federal Defendants deny any allegations

inconsistent with its plain language and meaning. The allegations in the fifth sentence of

Paragraph 75 are vague and ambiguous, and Federal Defendants deny them on that basis.

Federal Defendants deny that the impacts on onshore processing were not adequately evaluated

or disclosed in the EA/RIR.

76. The allegations in Paragraph 76 are vague and ambiguous, and Federal Defendants

deny them on that basis.

77. The allegations in the first sentence of Paragraph 77 are vague and ambiguous, and

Federal Defendants deny them on that basis. The allegations in the second through sixth

sentences of Paragraph 77 purport to characterize the December 2009 draft EA/RIR, a document

that speaks for itself and is the best evidence of its contents. Federal Defendants deny any

allegations inconsistent with its plain language and meaning.

78. The allegations in Paragraph 78 purport to characterize the December 2009 draft

EA/RIR, a document that speaks for itself and is the best evidence of its contents. Federal

Defendants deny any allegations inconsistent with its plain language and meaning.
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79. The allegations in the first sentence of Paragraph 79 are vague and ambiguous, and

Federal Defendants deny them on that basis. The allegations in the second through fifth

sentences of Paragraph 79 purport to characterize the final EA/RIR, a document that speaks for

itself and is the best evidence of its contents. Federal Defendants deny any allegations

inconsistent with its plain language and meaning.

80. The allegations in Paragraph 80 purport to characterize the final EA/RIR, a document

that speaks for itself and is the best evidence of its contents. Federal Defendants deny any

allegations inconsistent with its plain language and meaning.

FIRST CLAIM FOR RELIEF

81. Federal Defendants incorporate herein by reference the responses to each allegation

set forth in paragraphs 1 through 80 of the Answer.

82. Federal Defendants deny the allegations in Paragraph 82.

83. Federal Defendants deny the allegations in Paragraph 83.

84. The allegations in Paragraph 84 purport to characterize NEPA, statute that speaks for

itself and contains the best evidence of its contents. Federal Defendants deny any allegation

inconsistent with the plain language and meaning of the statute.

85. Federal Defendants deny the allegations in Paragraph 85.

SECOND CLAIM FOR RELIEF

86. Federal Defendants incorporate herein by reference the responses to each allegation

set forth in paragraphs 1 through 85 of the Answer.

87. Federal Defendants deny the allegations in Paragraph 87.

88. Federal Defendants deny the allegations in Paragraph 88.

89. Federal Defendants deny the allegations in Paragraph 89.

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90. Federal Defendants deny the allegations in Paragraph 90.

THIRD CLAIM FOR RELIEF

91. Federal Defendants incorporate herein by reference the responses to each allegation

set forth in paragraphs 1 through 90 of the Answer.

92. Federal Defendants deny the allegations in Paragraph 92.

93. Federal Defendants deny the allegations in Paragraph 93.

94. Federal Defendants deny the allegations in Paragraph 94.

95. Federal Defendants deny the allegations in Paragraph 95.

FOURTH CLAIM FOR RELIEF

96. Federal Defendants incorporate herein by reference the responses to each allegation

set forth in paragraphs 1 through 95 of the Answer.

97. The allegations in Paragraph 97 purport to characterize NEPA and regulations

thereunder, a statute and regulations that speak for themselves and contain the best evidence of

their contents. Federal Defendants deny any allegation inconsistent with the plain language and

meaning of the statute and regulations.

98. The allegations in Paragraph 98 purport to characterize regulations under NEPA,

regulations that speak for themselves and contain the best evidence of their contents. Federal

Defendants deny any allegation inconsistent with the plain language and meaning of the NEPA

regulations.

99. The allegations in Paragraph 99 purport to characterize regulations under NEPA,

regulations that speak for themselves and contain the best evidence of their contents. Federal

Defendants deny any allegation inconsistent with the plain language and meaning of the NEPA

regulations.
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100. Federal Defendants deny the allegations in Paragraph 100.

101. Federal Defendants deny the allegations in Paragraph 101.

FIFTH CLAIM FOR RELIEF

102. Federal Defendants incorporate herein by reference the responses to each allegation

set forth in paragraphs 1 through 101 of the Answer.

103. Federal Defendants deny the allegations in the first and second sentences of

Paragraph 103. In response to the allegations in the subparts of Paragraph 103, Federal

Defendants respond as follows:

a. Federal Defendants deny the allegations in the first sentence of subpart a. The

allegations in the second sentence of subpart a are conclusions of law that require no response.

To the extent a response is deemed required, Federal Defendants deny each of the allegations.

Federal Defendants deny the allegations in the third and fourth sentences of subpart a. To the

extent the fourth sentence of subpart a purports to characterize the 2008 Recovery Plan, the 2008

Recovery Plan is a document that speaks for itself and is the best evidence of its contents.

Federal Defendants deny any allegations inconsistent with its plain language and meaning.

b. Federal Defendants deny the allegations in subpart b.

c. Federal Defendants deny the allegations in subpart c. To the extent subpart c

characterizes the 2008 Recovery Plan, the 2008 Recovery Plan is a document that speaks for

itself and is the best evidence of its contents. Federal Defendants deny any allegations

inconsistent with its plain language and meaning.

d. Federal Defendants deny the allegations in subpart d.

e. Federal Defendants deny the allegations in subpart e.

f. Federal Defendants deny the allegations in subpart f.

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g. Federal Defendants deny the allegations in subpart g.

h. Federal Defendants deny the allegations in subpart h, and aver that NMFS considered

the RPA proposed by the NPFMC, a less restrictive RPA than the alternative adopted, and did

not adopt that RPA because it would not have avoided jeopardy to the Western Distinct

Population Segment of the Steller sea lion and adverse modification of its critical habitat.

104. Federal Defendants deny the allegations in Paragraph 104.

SIXTH CLAIM FOR RELIEF

105. Federal Defendants incorporate herein by reference the responses to each allegation

set forth in paragraphs 1 through 104 of the Answer.

106. Federal Defendants deny the allegations in Paragraph 106.

107. The allegations in Paragraph 107 are the Plaintiff’s description of the nature of its

suit and legal conclusions that require no response. To the extent a response is deemed required,

Federal Defendants deny each of the allegations.

108. Federal Defendants deny the allegations in Paragraph 108.

SEVENTH CLAIM FOR RELIEF

109. Federal Defendants incorporate herein by reference the responses to each allegation

set forth in paragraphs 1 through 108 of the Answer.

110. Federal Defendants deny the allegations in the first sentence of Paragraph 110. The

allegations in the second and third sentences of Paragraph 110 purport to characterize the MSA, a

statute that speaks for itself and contains the best evidence of its contents. Federal Defendants

deny any allegation inconsistent with the plain language and meaning of the statute.

111. In response to the allegations in Paragraph 111, Federal Defendants admit that the

Interim Final Rule promulgated by NMFS constitutes a regulation under the MSA. Federal
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Defendants deny the remaining allegations in Paragraph 111.

112. Federal Defendants deny the allegations in Paragraph 112.

EIGHTH CLAIM FOR RELIEF

113. Federal Defendants incorporate herein by reference the responses to each allegation

set forth in paragraphs 1 through 112 of the Answer.

114. Federal Defendants deny the allegations in Paragraph 114.

115. Federal Defendants deny the allegations in Paragraph 115.

116. Federal Defendants deny the allegations in Paragraph 116.

117. Federal Defendants deny the allegations in the first sentence of Paragraph 117. The

allegations in the second sentence are vague and ambiguous, and Federal Defendants deny them

on that basis. The third sentence of Paragraph 117 purports to characterize the Final Biological

Opinion, a document that speaks for itself and contains the best evidence of its contents. Federal

Defendants deny any allegation inconsistent with its plain language and meaning. Federal

Defendants deny the allegations in the fourth sentence of Paragraph 117.

118. Federal Defendants deny the allegations in Paragraph 118.

NINTH CLAIM FOR RELIEF

119. Federal Defendants incorporate herein by reference the responses to each allegation

set forth in paragraphs 1 through 118 of the Answer.

120. Federal Defendants deny the allegations in Paragraph 120.

121. Federal Defendants deny the allegations in Paragraph 121.

TENTH CLAIM FOR RELIEF

122. Federal Defendants incorporate herein by reference the responses to each allegation

set forth in paragraphs 1 through 121 of the Answer.

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123. Federal Defendants deny the allegations in Paragraph 123.

124. The first sentence of Paragraph 124 purports to characterize the APA, a statute that

speaks for itself and contains the best evidence of its contents. Federal Defendants deny any

allegation inconsistent with its plain language and meaning. Federal Defendants deny the

allegations in the second sentence of Paragraph 124.

PRAYER FOR RELIEF

The remainder of the Complaint consists of Plaintiff’s prayer for relief, which requires no

response. To the extent a response is required, Federal Defendant denies that Plaintiff is entitled

to the relief requested or any relief whatsoever.

AFFIRMATIVE DEFENSES

1. Plaintiff fails to state a claim upon which relief can be granted.

2. This court lacks subject matter jurisdiction over some or all of Plaintiff’s claims.

3. Some or all of Plaintiff’s claims in this action are barred by reason of the failure to

exhaust administrative remedies.

4. To the extent Plaintiff presents to the Court any issue or contention which is contrary

to any position taken by Plaintiff in prior litigation or administrative proceedings, Plaintiff is

estopped from presenting any such issue, contention or claim.

Dated this 3rd day of February, 2011. Respectfully submitted,

IGNACIA S. MORENO
Assistant Attorney General
Environment & Natural Resources Division
KRISTEN L. GUSTAFSON,
Assistant Chief

/s/ Daniel Pollak

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DANIEL POLLAK, Trial Attorney (Cal. Bar

264285)
U.S. Department of Justice
Environment and Natural Resources Division
Wildlife and Marine Resources Section
Ben Franklin Station, P.O. Box 7369
Washington, D.C. 20044-7369
Tel: (202) 305-0201
Fax: (202) 305-0275

/s/ John H. Martin

JOHN H. MARTIN, Trial Attorney (Colo. Bar
32667)
U.S. Department of Justice
Environment and Natural Resources Division
Wildlife and Marine Resources Section
999 18th Street, South Terrace Suite 370
Denver, CO 80202
Tel: (303) 844-1383
Fax: (303) 844-1350
Email: john.h.martin@usdoj.gov

/s/ Dean K. Dunsmore

DEAN K. DUNSMORE, Trial Attorney
U.S. Department of Justice
Environment & Natural Resources Division
801 B Street, Suite 504
Anchorage, AK 99501-3657
Tel: (907) 271-5452
Fax: (907) 271-5827
Email: dean.dunsmore@usdoj.gov

Attorneys for Federal Defendants

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Certificate of Service

I hereby certify that on February 3, 2011, I electronically filed the foregoing Answer with

the Clerk of the Court via the CM/ECF system, which will send notification of such to the

attorneys of record.

Bradley Edward Meyen

Brad.Meyen@alaska.gov

Murray Dov Feldman

mfeldman@hollandhart.com

/s/ Daniel Pollak

DANIEL POLLAK