Guindon v. Pritzker , 31 F. Supp. 3d 169 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KEITH GUINDON, et al.,
Plaintiffs,
v.
PENNY SUE PRITZKER, in her official
capacity as Secretary of the United States
Department of Commerce; NATIONAL Civil Action No. 13-00988 (BJR)
OCEANIC AND ATMOSPHERIC
ADMINISTRATION; and NATIONAL MEMORANDUM OPINION
MARINE FISHERIES SERVICE, GRANTING PLAINTIFFS’ MOTION
FOR SUMMARY JUDGMENT
Defendants, and
COASTAL CONSERVATION
ASSOCIATION,
Defendant-
Intervenor.
This case concerns management of the red snapper fishery in the Gulf of Mexico.
The responsibility of managing the fishery lies with the Secretary of Commerce
(“Secretary), through the National Marine Fisheries Service (NMFS), a sub-agency of the
National Oceanic and Atmospheric Administration (NOAA). Plaintiffs are commercial
fishermen challenging three NMFS regulations that set quotas and fishing season lengths
for the recreational sector of the fishery. Plaintiffs bring claims under the Magnuson-
Stevens Fishery Conservation and Management Act (“MSA”), 16 U.S.C. §§ 1801-1884,
the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701-06, and the National
Environmental Policy Act (“NEPA”), 42. U.S.C. §§ 4321 et seq. Plaintiffs, Defendants,
and Defendant-Intervenor have moved for Summary Judgment. Having reviewed the
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parties’ briefs and the administrative record, and having heard oral argument from all
sides, the Court grants Plaintiffs’ Motion for Summary Judgment and denies Defendants’
and Defendant-Intervenor’s cross-motions.
I. BACKGROUND
A. Statutory and Regulatory Framework
Congress enacted the MSA “to conserve and manage the fishery resources found off
the coasts of the United States,” “to promote domestic commercial and recreational
fishing under sound conservation and management principles,” and “to provide for the
preparation and implementation, in accordance with national standards, of fishery
management plans which will achieve and maintain, on a continuing basis, the optimum
yield from each fishery.” 16 U.S.C. § 1801(b). As a matter of declared policy, Congress
sought “to assure that the national fishery conservation and management program
utilizes, and is based upon, the best scientific information available.” Id. § 1801(c)(3).
The MSA divides the country into eight regions, and establishes a council in each
region to manage the region’s marine fisheries. See id. § 1852. Each regional council
must prepare a fishery management plan (hereinafter “FMP”) for each fishery that falls
under its authority, along with any amendments to the FMP that are necessary from time
to time. Id. § 1852(h)(1). The councils submit FMPs, FMP amendments, and proposed
regulations to the Secretary, who reviews the submissions for consistency with the
MSA and other applicable laws. Id. § 1854(a). The Secretary, acting through
NMFS, must approve, disapprove, or partially approve the submission within 30 days.
Id. Proposals submitted by the Council to the Secretary are also called “framework
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actions,” in that they provide a framework from which the Secretary may issue one or
more implementing regulations.
1. National Standards
The legal framework Congress established to direct the management of fish stocks is
of necessity multifaceted, specific, and complex. To accomplish the overall goals of the
MSA, Congress set forth ten “national standards for fishery conservation and
management” at the beginning of the statute. Id. § 1851. Three are relevant to this
action:
Conservation and management measures shall prevent overfishing while
achieving, on a continuing basis, the optimum yield from each fishery for
the United States fishing industry. Id. § 1851(a)(1) (“National Standard
1”).
Conservation and management measures shall be based upon the best
scientific information available. Id. § 1851(a)(2) (“National Standard 2”).
If it becomes necessary to allocate or assign fishing privileges among
various United States fishermen, such allocation shall be (A) fair and
equitable to all such fishermen; (B) reasonably calculated to promote
conservation; and (C) carried out in such manner that no particular
individual, corporation, or other entity acquires an excessive share of such
privileges. Id. § 1851(a)(4) (“National Standard 4”)
FMPs and FMP amendments must conform to the National Standards. See id. §
1851(a). Any proposed regulations must conform to the National Standards and to the
FMP. Id. §§ 1851(a), 1854(b)(1).
2. Other Relevant MSA Provisions
In addition to the National Standards, the MSA contains two other requirements
relevant to this action. Section 303(a)(15) of the MSA requires that every FMP
“establish a mechanism for specifying annual catch limits in the plan…implementing
regulations, or annual specifications, at a level such that overfishing does not occur in the
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fishery, including measures to ensure accountability.” Id. § 1853(a)(15). Congress added
this requirement in 2007. See Pub. L. No. 109-479, § 104(a)(10), 120 Stat 3575, 3584
(2007).
Section 407(d), an MSA provision specific to the Gulf of Mexico red snapper fishery,
requires that any FMP, FMP amendment, or implementing regulation must contain
conservation and management measures that “establish separate quotas for recreational
fishing…and commercial fishing that, when reached, result in a prohibition on the
retention of fish caught during recreational fishing and commercial fishing, respectively,
for the remainder of the fishing year.” 16 U.S.C. § 1883(d)(1). Congress added this
provision as part of the Sustainable Fisheries Act of 1996. See Pub. L. 104-297, §
207(b), 110 Stat. 3559, 3614 (1996).
It also bears noting that states manage their own waters, and do not always conform
to federal rules concerning season length, size limits, or bag limits (the number of fish a
fisherman can catch and keep per day). State regulations thus may affect the federal
management scheme.
3. The Secretary’s Advisory Guidelines
The Secretary has promulgated various “advisory guidelines” that do not have the
force and effect of law but are intended to assist regional councils in developing FMPs.
See id. §1851(b); 50 C.F.R. §§ 600.305–600.355. These guidelines flesh out and
explicate the National Standards set forth in the MSA. For purposes of this case, the
most relevant guidelines are the ones that explain the statutory objective, expressed in
National Standard 1, of “prevent[ing] overfishing while achieving, on a continuing basis,
the optimum yield.” 16 U.S.C. § 1851(a)(1); 50 C.F.R. § 600.310.
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4. Catch Limit Terminology
The Secretary balances the twin goals of National Standard 1 – preventing
overfishing and achieving optimum yield – through a system of catch limits. The
guidelines establish a set of “reference points” for catch limits, starting with the absolute
maximum that should be harvested and working down from there. 50 C.F.R. §
600.310(b)(2)(iv). Each reference point uses specific terms and phrases that, for clarity,
the Court sets out as follows:
Maximum Sustainable Yield (MSY): MSY is the guiding reference point
and the “basis for fishery management.” Id. § 600.310(b)(2)(i). MSY is
the largest catch that can be taken under prevailing environmental
conditions, id. § 600.310(e)(1)(i)(A), and it relates directly to the concept
of “overfishing.”
Overfishing: “Overfishing” occurs when a stock of fish has a level of
fishing mortality or annual total catch that jeopardizes the capacity of the
stock to produce the MSY on a continuing basis. Id. §
600.310(e)(2)(i)(B).
Overfishing Limit (OFL): The OFL is the catch level above which
overfishing occurs. Id. § 600.310(e)(2)(i)(D). A regional council’s
Scientific and Statistical Committee (SSC) sets the OFL each year. The
OFL represents the upper boundary in any consideration of catch limits.
However, catch limits are not automatically set at the OFL. NMFS also
takes into account “scientific uncertainty” and “management uncertainty.”
Scientific Uncertainty: “Scientific uncertainty” refers to the possibility of
error in estimating biomass, mortality rates, and other factors separate
from the government’s role in fishery management. See id. §
600.310(f)(1).
Management Uncertainty: “Management uncertainty” refers to
uncertainty in the government’s management of the fishery, including the
accuracy of reported catch data and the ability of the government to
constrain the catch. See id.
Acceptable Biological Catch (ABC): ABC is an annual catch figure, set
at or below the OFL, with the difference between the OFL and the ABC
designed to account for scientific uncertainty in the SSC’s calculation of
the OFL. Id. §§ 600.310(b)(2)(v)(D), 600.310(f)(2)(ii). The SSC sets both
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the OFL and the ABC. ABC is an expression of the amount of fish that
fishermen could harvest during a particular year without overfishing the
stock, with accommodation for scientific uncertainty.
Annual Catch Limit (ACL): ACL differs from the ABC in that the ABC
estimates the amount of fishing the NMFS could permit without
overfishing, whereas the ACL represents the amount that the agency
actually permits each year. NMFS may set the ACL at or below the ABC.
Accountability Measures (AMs): AMs are “management controls to
prevent ACLs, including sector–ACLs, from being exceeded, and to
correct or mitigate overages of the ACL if they occur.” Id. §
600.310(g)(1). “AMs should address and minimize both the frequency
and magnitude of overages and correct the problems that caused the
overage in as short a time as possible.” Id. The guidelines describe two
kinds of AMs: “inseason” AMs, and “AMs for when the ACL is
exceeded,” referred to by the parties as “postseason AMs.” Id.
Inseason AMs: Inseason AMs are AMs that the agency implements
during the fishing season to constrain catch. One inseason AM, often
referred to as a “buffer,” involves setting the amount of permitted catch
below the ACL to guard against management uncertainty. Id. §
600.310(g)(2). Other inseason AMs include closing the fishery when the
ACL has been exceeded or is projected to be reached, and lowering the
bag limit. Id.
Postseason AMs: The guidelines instruct regional councils to determine
as soon as possible after the end of the season whether the ACL has been
exceeded. Id. 600.310(g)(3). If so, one postseason AM would be to revise
the inseason AMs applicable to the next season, in order to prevent
another overage. Id. Another postseason AM is an “overage adjustment,”
also known as a “payback” provision, where the NMFS reduces the next
season’s ACL to account for the overage. See id. If catch exceeds the
ACL more than once in four years, the regulations provide that “the
system of ACLs and AMs should be re-evaluated, and modified if
necessary, to improve its performance and effectiveness.” Id.
Rebuilding Plan: A rebuilding plan is a multiyear management plan that
aims to return a fishing stock to productive capacity in a certain
timeframe. If a stock is subject to a rebuilding plan, postseason AMs
“should include overage adjustments that reduce the ACLs in the next
fishing year by the full amount of the overages, unless the best scientific
information available shows that a reduced overage adjustment, or no
adjustment, is needed to mitigate the effects of the overages.” Id.
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Sector-ACLs and Sector AMs: ACL may be divided into sectors (e.g.
recreational or commercial). Id. § 600.310(f)(2)(iv). The guidelines
specify that “if the management measures for different sectors differ in the
degree of management uncertainty, then sector ACLs may be necessary so
that appropriate AMs can be developed for each sector.” Id. §
600.310(f)(5)(ii).
B. Management of the Gulf of Mexico Red Snapper Fishery
1. How NMFS Establishes Quotas and Sets Season Length
The Gulf of Mexico Fishery Management Council (“Council”) is the regional
council charged with managing red snapper and other reef fish species in the Gulf of
Mexico. See 16 U.S.C. § 1852(E). The Council’s area includes Texas, Louisiana,
Mississippi, Alabama, and Florida. Id.In managing the fishery, the Council and NMFS rely on the Southeast Data,
Assessment, and Review (or “SEDAR”) stock assessment, which is a periodic evaluation
of the red snapper stock that encompasses the amount and weight of fish, spawning data,
mortality rates, and other indicators related to the size and health of the fishery. See AR
1097. As SEDAR stock assessments become available, the Council uses them to set
future management plans or adjust existing plans.
Each year, before the red snapper season begins, the Council receives a
recommendation as to that year’s Acceptable Biological Catch (ABC) from the Council’s
Scientific and Statistical Committee (SSC). The Council then proposes to NMFS a red
snapper “quota” for the year. The recommended quota is intended to serve as the total
ACL for red snapper in the Gulf of Mexico fishery. 1 Because the quotas include fish
harvested in adjoining state waters, NMFS must take those state harvests into account in
1
“Quota” is used to refer to red snapper catch limits because the 2007 MSA amendment referred not to
“annual catch limits” but to “quotas for recreational fishing…and commercial fishing.” See 16 U.S.C. §
1883(d)(1). NMFS has determined that quotas and ACLs are functionally equivalent, and that the sum of
the recreational and commercial quotas is equivalent to a stock ACL. AR 4784.
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managing the Gulf of Mexico red snapper fishery. See 50 C.F.R. § 622.8(a). Pursuant to
Section 407(d) of the MSA, the fishery is subdivided into recreational and commercial
sectors, with separate quotas for each. Thus, the Council will also specify the allocation
of the total quota between the commercial and recreational sectors. Currently, the FMP
specifies that the commercial sector receives 51 percent of the quota and the recreational
sector receives 49 percent. AR 5074.
NMFS manages the commercial and recreational sectors differently. In the
commercial sector, each participant receives an Individual Fishing Quota (“IFQ”), which
entitles that participant to a fixed, specific portion of the annual commercial catch. See
50 C.F.R. § 622.21. Commercial vessels must install geographical monitoring systems
and may only sell their catch to authorized dealers. See id. §§ 622.28 (“Vessel
Monitoring Systems”), 622.40 (“Restrictions on Sale/Purchase”). Since 2007, these
management measures have assured that the commercial sector does not exceed its quota.
AR 4782. In fact, as the 2010 Amendment to the Reef Fish FMP observed, “there is no
possibility of a quota overrun for the commercial sector.” AR 369.
By contrast, NMFS manages the recreational sector using only size limits, bag
limits, and length of season. The only AM currently in place for the recreational sector is
in-season closure of the fishery. See 78 FR 17882, 17883 (Mar. 25, 2013) (“The in-
season closures are the accountability measures for the recreational red snapper sector.”).
NMFS estimates in advance how long it will take for the recreational sector to harvest its
quota, based on historical data, then sets the season length according to that projection.
AR 4262.
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The primary data source for estimating recreational “landings” (total weight of
red snapper caught) is the Marine Recreational Information Program (MRIP). 2 NMFS
implemented MRIP several years ago in an effort to improve the quality of the agency’s
landings estimates. AR 4665. MRIP data are collected in two-month “waves,” with data
available 45 days after the wave ends. AR 761. MRIP produces an estimate of red
snapper landings through a combination of “dockside intercepts” (referred to as “landings
data”) and phone surveys (referred to as “effort data”). AR 4714.
The dockside intercept program, known as the Access Point Angler Intercept
Survey (APAIS), involves communicating with recreational fishermen when they return
from fishing trips. AR 5073. Of particular relevance to this case is an alteration to the
APAIS sampling design that NMFS made in March 2013. See AR 4999. The change
allowed NMFS to capture data from fishing trips at time intervals during the day that the
agency had not previously sampled. AR 5000.
2. Recent History of Recreational Sector Management
Red snapper stock is managed under the Reef Fish Fishery Management Plan
(“Reef Fish FMP”), first implemented by the Secretary in 1984. AR 6. At that time the
agency had already observed declines in the adult population of red snapper. Id. The
Council first amended the Reef Fish FMP in 1990 (“Amendment 1”), with the goal of
stabilizing long-term population levels by 2000. AR 371. Red snapper is currently
designated as “overfished,” and is subject to a rebuilding plan. 3 Over time NMFS has
2
NMFS also uses a “headboat” survey performed by the Southeast Fisheries Science Center, and a Texas
Parks and Wildlife Department survey of charter and private fishers. AR 4714. Those surveys are not at
issue in this case.
3
A stock is considered “overfished” when its biomass has declined below a level that jeopardizes the
capacity of the stock to produce MSY on a continuing basis. 50 C.F.R. § 600.310(e)(2)(i)(E). Because it
takes time for biomass levels to recover, a stock may be designated as “overfished” even when
“overfishing” is not currently taking place. The Gulf of Mexico red snapper stock fits that description.
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extended the target date to complete rebuilding of the stock. AR 368. Currently the
target is 2032. Id.Amendment 1 to the Reef Fish FMP required that the annual catch be allocated
between recreational and commercial sectors based on historical percentages. AR 12.
The regulations implementing Amendment 1 set the allocation at 51 percent commercial
and 49 recreational, an allocation that survives to the present. See AR 5074.
Prior to 1997, the Secretary permitted recreational red snapper fishing year-round,
with catch levels constrained only by bag and size limits. AR 4346. From 1997 to 1999,
NMFS used in-season monitoring, along with data from prior seasons, to project when
the quota would be reached and when to close the season. AR 4346. “In-season
monitoring” meant that, during the fishing season, an NMFS “quota monitoring team”
tracked available landings data and combined that data with past patterns to project when
recreational sector would reach its quota. Id. The agency would announce the closure
date several weeks in advance. Id.For the 2000 season NMFS abandoned its in-season quota monitoring operation
and began setting fixed season lengths in advance, based only on projections of when the
quota would be reached. Id. 4 In 2000, NMFS set the recreational quota at 4.47 million
pounds, with a 2-fish bag limit and a season lasting from April 21 to October 31. AR
4347. The quota, bag limit, and season length established in 2000 remained in effect
through 2007. Id. During that period, recreational landings exceeded the quota in some
years and fell below in others. AR 3524.
4
This did not mean that NMFS stopped gathering landings data. It only meant that, during the season,
NMFS no longer monitored the sector’s progress in harvesting toward the quota.
10
In 2008, the Council amended the Reef Fish FMP with the goals of ending red
snapper overfishing by 2009 or 2010 and rebuilding the stock by 2032. AR 368. To that
end, the Council prohibited fishing from January 1 to May 31 and from October 1 to
December 31. AR 4347. This meant that NMFS could not open the season until June 1,
and could not keep it open past September 30.
The recreational quota for the 2008 season was reduced to 2.45 million pounds.
AR 3524. NMFS set a 66-day season for 2008, closing August 5 rather than September
30, in light of decisions by Florida and Texas not to conform to federal rules. AR 4347.
Even so, recreational landings exceeded the 2008 quota by 1.26 million pounds, or about
51 percent. AR 3524.
For 2009, with the same recreational quota of 2.45 million pounds, NMFS set the
season at 75 days. AR 4347. The recreational landings exceeded the quota by 2.175
million pounds, or about 88 percent. AR 3524.
For 2010 NMFS raised the recreational quota to 3.403 million pounds, and set the
season at 53 days. AR 4347. The Deep Water Horizon spill cut the season short. AR
4347.
NMFS set the 2011 recreational quota at 3.521 million pounds, and projected a
48-day season on the basis of that quota. AR 4348. After the season ended, but before
NMFS had received preliminary landings estimates, the Council authorized raising the
recreational quota by 0.345 million pounds and suggested reopening the season in the
fall. Id. NMFS adopted the Council’s recommended quota increase. Id. However,
preliminary June and July landings estimates indicated that recreational landings had
exceeded not only the original quota but also the newly increased quota. Id. For that
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reason, NMFS did not reopen the 2011 season. Id. The final estimates revealed that
recreational landings exceeded the 2011 quota by 734,000 pounds. AR 3524.
In 2012, NMFS removed the restriction on fall fishing, such that the recreational
season would not automatically close on October 1. This change allowed NMFS more
flexibility to reopen the season in the fall, if it determined that additional quota was
available. See 77 FR 31734, 31737 (May 30, 2012).
The 2012 recreational quota was set at 3.959 million pounds. AR 3524. The
agency initially set a 40-day season, but extended six more days in light of extreme
weather conditions. AR 4347. The 2012 recreational landings exceeded the quota by
1.187 million pounds, or about 30 percent. AR 3524.
C. The Challenged Agency Actions
1. The May Final Rule and June Temporary Rule
A 2012 regulatory amendment to the Reef Fish FMP set total quotas for both
2012 and 2013. AR 1086. The total quota for 2013, including commercial and
recreational, was set at 8.69 million pounds, an increase over 2012. AR 1086. The 2012
FMP amendment specifically stated that the 2013 quota increase was contingent on the
acceptable biological catch not being exceeded in 2012, and provided that “[i]f NMFS
determines the 2012 ABC is exceeded, NMFS will maintain the 2012 commercial and
recreational quotas in the 2013 fishing year.” Id.As discussed above, the recreational sector did exceed its quota in 2012, by 1.187
million pounds. AR 3524. The Council’s SSC nevertheless set the 2013 ABC at 8.46
million pounds, rather than at the 2012 quota level (8.08 million). AR 2294. The SSC
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declined to offer any guidance beyond 2013, because it expected a new stock assessment
in 2013. Id.The Council met in February 2013 to consider the SSC’s recommendations. AR
2926; AR 4335. It published its recommendation in the form of a Framework Action,
issued on March 26, 2013 (“March Framework Action”). 5 The Council cited preliminary
data indicating that the recreational sector had exceeded the 2012 quota of 3.959 million
pounds by over a million. AR 4344. Three quota alternatives for 2013 were considered:
(1) no action (i.e., leaving the 2013 quota at 2012 levels), (2) setting the quota at the level
of the 2013 ABC (8.46 million pounds), and (3) implementing a 20 percent buffer for the
recreational sector. AR 4349. The Council chose the second alternative, recommending
a quota of 8.46 million pounds, equal to the ABC, with no buffer. Id. Though, as the
Council recognized, this was “not as biologically conservative” as the buffer alternative,
the Council observed that it “ha[d] managed the recreational red snapper sector based on
the ABC for several years.” Id.In light of plans by the Gulf states to implement season lengths and bag limits
inconsistent with the proposed federal regulations, NMFS published an emergency rule
on March 25, 2013, authorizing state-specific closure dates for the recreational sector. 78
FR 17883. A final rule published on May 29, 2013 (the “May Final Rule”) approved the
Council’s recommended quota of 8.46 million pounds. AR 4680. This created a
commercial quota of 4.315 million pounds and a recreational quota of 4.145 million
pounds. Id. The May Final Rule also established individual closure dates for each Gulf
state. Id.5
Plaintiffs refer to this document as the “February Framework Action,” due to the meeting date, but in the
interests of clarity the Court will refer to it by its publication date.
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However, the District Court for the Southern District of Texas vacated the
emergency rule on May 31, 2013, finding that the rule “was not enacted in compliance
with the required criteria for emergency measures,” and also that the state-specific
closure dates “impermissibly discriminate[d] against citizens of different states in
violation of 16 U.S.C. § 1851(a)(4).” Texas v. Crabtree, 948 F. Supp. 2d 676, 690 (S.D.
Tex. 2013).
NMFS responded to the court’s decision by publishing a temporary rule (the
“June Temporary Rule”), which eliminated the state-specific closure dates and set a Gulf-
wide recreational sector closure date of June 29, 2013. 78 FR 34586, 34587. The 8.46
million pound quota remained in effect. NMFS set the season length at 28 days to reflect
the agency’s projections as to when the recreational quota would be reached. Id. at
34586.
2. The September Final Rule
A new stock assessment arrived in May of 2013, as anticipated. AR 4778. The
SSC reviewed the stock assessment and determined that the ABC for 2013 could be
increased to 13.5 million pounds total, as long as it fell to 11.9 and 10.6 million pounds in
2014 and 2015, respectively. Id. Because the ABC was set very close to the overfishing
limit (OFL), with only a small affordance for scientific uncertainty, the SSC also
recommended a 20 percent buffer to account for management uncertainty. Id.The full Council did not meet until July 2013, after the 28-day June fishing season
had closed. The Council published another framework action (the “July Framework
Action”) recommending that NMFS set the 2013 quota below the ABC, at 11 million
pounds rather than 13.5 million pounds, in order to achieve a “constant catch” in 2014
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and 2015. Id. The Council determined that setting the 2013 quota at 11 million pounds
would reduce the likelihood that NMFS would have to decrease quotas in 2014 and 2015.
Id.The Council also suggested reopening the season in the fall to allow for
harvesting of the additional quota amount, but only “contingent upon there being unused
quota available.” AR 4786. Every alternative considered by the Council specified that
there must be unused quota available for NMFS to reopen the season. Id. The Council
noted that “[b]ecause of the potential for a quota overage during the June season, the full
amount of a quota increase may not be available.” Id. Thus, the length of the reopened
season “would be based on the landings from the June season subtracted from the total
recreational quota (original quota plus increase).” Id. The Council also opined that a
split season “would allow NMFS to better determine how much quota is available before
setting the closing date for the supplemental season, which should result in more accurate
projections for 2013.” AR 4785.
Though the Council considered the SSC’s suggestion of a 20 percent buffer, it did
not adopt the proposed buffer. The Council explained that the distance between the ABC
(13.5 million) and the 2013 quota (11 million), which the Council recommended in order
to achieve a constant catch through 2013, 2014, and 2015, would also function as a “de
facto buffer” against overages in the recreational sector. AR 4785. According to the
Council, “an additional buffer [was] not necessary to prevent risking the rebuilding plan
or overfishing.” Id. The Council acknowledged that “management uncertainty was high
for the recreational sector,” based on “quota overages in recent years,” but maintained
that “reductions in overages are likely for upcoming years because the recent benchmark
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stock assessment provides data that is more updated than what has recently been used for
projections and is based on better models, and because the system for collecting
recreational data has improved.” Id.Also in July 2013, before NMFS knew how much red snapper had been caught
during the June 2013 season, the agency evaluated how long a fall season might last. AR
5006. Based on historical landings data, NMFS estimated that the fall catch rate would
be roughly 50 percent of the summer catch rate. Id. At that rate, the proposed quota
increase would allow NMFS to reopen the fishing season for 21 days in the fall. Id. This
21-day estimate assumed that recreational landings in the June 2013 season had met,
without exceeding, the quota then in effect (4.145 million pounds). AR 5011.
On August 14, 2013, NMFS published a Notice of Proposed Rulemaking,
describing the proposal to increase the 2013 quota to 11 million pounds total. 78 FR
49440, 49441. An 11 million pound total quota would allow 5.61 million pounds for the
commercial sector and 5.39 million for the recreational sector. NMFS explained in the
notice that “[i]f this rule is implemented and the recreational quota for red snapper were
to increase, NMFS may be able to reopen the recreational season for red snapper during
2013, if additional quota is available after the June landings are known.” Id.In late August, NMFS received the June 2013 landings estimates. As it turned
out, MRIP landings estimates indicated that recreational fishermen actually caught 6.13
million pounds of red snapper during the June 2013 season. AR 5073. This exceeded
NMFS’s estimate of what would be caught during the 28-day June season by 1.985
million pounds. It also exceeded the proposed new quota by 740,000 pounds.
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A question emerged as to the cause of the large overage. Ned Cyr, the Director of
the NMFS Office of Science and Technology (OST), analyzed the MRIP landings
estimates to determine why they were “higher than anticipated.” AR 4999. Cyr noted as
a possible cause that NMFS had recently implemented several improvements to the
MRIP sampling methodology, specifically the change to APAIS sampling design. Id.;
see Part I(B)(1), supra.
OST analyzed whether any of the 2 million pound overage “could be attributable
to any changes in the sampling design.” AR 4999. The analysis indicated that “sampling
under the new design was capturing charter and private boat angler fishing trips in time
intervals that had no sampled trips in the previous years.” Id. In other words, the staff
conducting dockside interviews had reached fishermen at new times of day. This “raised
concern that the improved temporal coverage may have been partly responsible for the
big increase in red snapper catch, especially if trips returning in these previously
uncovered time intervals tended to be more directed to offshore fishing and red snapper.”
AR 5000.
To assess how much of the overage was due to improved sampling, OST
attempted to simulate what the 2013 recreational landings would have been under the old
APAIS sampling design. AR 5000-5001. By removing the variable of sampling design
from the equation, OST hoped to determine how much, if any, of the 2 million pound
overage could be attributed to the design change. The simulations “did not provide
strong evidence that effects related to the change to the new, improved…sampling design
could easily explain much of the increase in the red snapper catch estimates from 2012 to
2013.” AR 5001. Cyr characterized the analyses performed by OST as “inconclusive.”
17
Id. He admitted that OST “[had] not been able to demonstrate that the change to the new
APA1S sampling design had a significant effect,” though he also cautioned that OST
could not “safely conclude at this time that the change in design had no effect.” Id.
On September 9, 2013, Bonnie Ponwith, Director of the Southeast Fisheries
Science Center, recommended that instead of using the MRIP landings estimate, which
was 6.13 million pounds, NMFS should assume that the recreational sector caught
exactly as much as the agency projected would be caught during the June 2013 season –
i.e., 4.145 million pounds. AR 5003. Ponwith acknowledged that reopening the fishing
season in October 2013 was “premised on landings from the June season falling at or
below the recreational quota currently in place.” Id. Assuming a catch of 4.145 million
pounds would allow NMFS to reopen the season. Id.
According to Ponwith, the “new dockside intercept protocols” made using the
actual 2013 MRIP estimates “complicated.” Id. The 2013 quota was set based on
landings estimates that used old sampling protocols, whereas the 2013 MRIP estimates
used newer protocols, so Ponwith deemed the figures “non-comparable.” Id. She noted
that OST’s evaluation was inconclusive, and further analysis would not be complete
before NMFS decided whether to reopen the fishing season in October. Id. For that
reason, she concluded that “currently the best scientific information available for
determining the landings during the June season is the projection that was used to set the
season length.” Id. Ponwith acknowledged that “[t]here is uncertainty in the projection,
because it is based on assumptions about effort levels, catch-per-unit effort and average
weights for landed fish.” Id. Accordingly, she recommended that “this uncertainty should be
factored into decisions about season length for the fall season.” Id.
18
In preparation for issuing a final rule, NMFS drafted an addendum to its previous
assessment of possible fall season length, which had projected a 21-day fall season. See
AR 5011. The agency recognized that its prior estimate was “contingent on the previous
quota of 4.145 [million pounds] being met, but not exceeded during the June 2013
[season].” AR 5011. NMFS noted that the MRIP estimates indicated a 1.98 million pound
overage. Id. NMFS also explained that MRIP catch estimates for June 2013 were “more
accurate and less biased than those produced in past years because MRIP redesigned the
Access Point Angler Intercept Survey in March 2013 to provide much better coverage of the
variety of fishing trips ending at different times of day.” Id. The addendum echoed
Ponwith’s conclusion that the 2013 quota and the 2013 MRIP landings estimates were “not
directly comparable.” Id. Because NMFS could not form “a sufficient understanding of how
to use the new MRIP landing estimates without better understanding how they fit into the
broader scientific basis for red snapper management,” the agency “determined the best course
of action is to base a decision on whether to proceed with a fall season using previous
projections developed for estimating the supplemental season length.” Id.
As discussed above, NMFS had previously projected that catch rates in the fall would
be 50 percent of summer catch rates. However, public testimony indicated that fall fishing
effort might prove higher than NMFS had expected. Id. NMFS deemed it unrealistic to
assume that fall catch rates would exactly equal summer catch rates, due to “children being in
school, inclement weather, and other activities, such as hunting and football.” AR 5013. To
account for possible increased effort in the fall, as well as “questions about the new data,”
NMFS chose to split the difference and assume fall catch rates would be 75 percent of
summer catch rates. AR 5012. This meant a 14-day season rather than a 21-day season. Id.
19
On September 18, 2013, NMFS published a final rule (the “September Final
Rule”) increasing the 2013 quota to 11 million pounds and setting a 14-day fall fishing
season. 78 FR 57313, 57315. The final rule describes the June 2013 landings estimates
as “unexpectedly high relative to previous years.” Id. at 57314. NMFS stated that “[i]t is
misleading to make a direct comparison between these numbers, however, because if the
new MRIP methodology had been available to use in the 2013 stock assessment on which
the current ABCs and quotas are based, then the original quotas may have been set much
higher.” Id. The September Final Rule includes NMFS’s conclusion that “the best
scientific information available to determine landings during the June season is the
projection used to set the season length.” Id.
D. Procedural History
Plaintiffs filed suit challenging the May Final Rule and the June Temporary Rule on
June 28, 2013. See Dkt. #1. The parties then moved to stay the case, anticipating NMFS
would publish another final rule for the fall 2013 season and that Plaintiffs would seek to
amend their complaint to include a challenge to that rule. The Court granted the stay, and
also granted the Coastal Conservation Association’s motion to intervene on behalf of
Defendants. See Dkt. #33. After NMFS published the September Final Rule, Plaintiffs
amended their Complaint to include a challenge to that rule as well. See Dkt. #31.
Plaintiffs claim that NMFS violated the following MSA provisions: Section 407(d)
(16 U.S.C. § 1883(d)(1)), National Standard 2 (16 U.S.C. § 1851(a)(2)), Section
303(a)(15) (16 U.S.C. § 1853(a)(15)), Section 304(b) (16 U.S.C. § 1854(b)(1)), National
Standard 4 (16 U.S.C. § 1851(a)(4)), National Standard 1 (16 U.S.C. § 1851(a)(1)), and
Section 303(a)(1)(A) (16 U.S.C. § 1853(a)(1)(A)). See Pls’ First Amended Complaint
20
(“Compl.”), Dkt. #31, ¶¶ 86-119. 6 Plaintiffs also bring claims under the APA and NEPA.
See id. ¶¶ 121-31.
The Court granted the parties’ request for expedited proceedings. Plaintiffs, NMFS,
and CCA have all filed motions for summary judgment. The Court heard oral argument
on February 11, 2014.
II. LEGAL STANDARD
Under the MSA, the Court reviews the regulatory actions at issue in this case under
the standard set forth in the APA, except that a court “shall only set aside any such
regulation or action on a ground specified in section 706(2)(A), (B), (C), or (D) of [the
APA].” 16 U.S.C. § 1855(f)(1). Under Section 706 of the APA, a reviewing court shall
“hold unlawful and set aside agency action, findings, and conclusions found to
be…arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A). 7
Under the APA’s “narrow” standard of review, “a court is not to substitute its
judgment for that of the agency,” Motor Vehicle Manufacturers Ass'n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), and “will defer to the [agency’s]
interpretation of what [a statute] requires so long as it is ‘rational and supported by the
record.’” Oceana, Inc. v. Locke, 670 F.3d 1238, 1240 (D.C. Cir. July 19, 2011) (quoting
C & W Fish Co. v. Fox, 931 F.2d 1556, 1562 (D.C. Cir. 1991)).
Nevertheless, to meet the APA standard an agency must “examine the relevant
data and articulate a satisfactory explanation for its action including a rational connection
6
Plaintiffs’ Amended Complaint also includes an alleged violation of National Standard 5, 16 U.S.C. §
1851(a)(5). However, Plaintiffs have relinquished that claim. See Pls’ Reply in Support of Plaintiffs’
Motion for Summary Judgment, Dkt. #49, at 13 n.22.
7
Review of agency actions under NEPA is also performed according to the APA standard. See Balt. Gas
& Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97–98 (1983).
21
between the facts found and the choice made.” Id. (internal quotation omitted). An
agency acts arbitrarily and capriciously “if the agency has relied on factors which
Congress has not intended it to consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to difference in view
or the product of agency expertise.” Advocates for Highway & Auto Safety v. Fed. Motor
Carrier Safety Admin., 429 F.3d 1136, 1144-45 (D.C. Cir. 2005) (quoting State Farm,
463 U.S. at 48). “This deferential standard cannot permit courts to ‘merely to rubber
stamp agency actions,’ nor be used to shield the agency's decision from undergoing a
‘thorough, probing, in-depth review.’” Flaherty v. Bryson, 850 F. Supp. 2d 38, 47
(D.D.C. 2012) (internal citations omitted). The court should evaluate “whether the
decision was based on a consideration of the relevant factors and whether there has been
a clear error of judgment.” Id.III. DISCUSSION
A. CCA’s Procedural Challenges
Defendant-Intervenor Coastal Conservation Association (CCA) raises a host of
procedural challenges. CCA contends that Plaintiffs lack Article III standing on all
claims, and that all claims are moot in light of the 2013 season closure. Defendant-
Intervenor’s Cross-Motion for Summary Judgment (“Defendant-Intervenors Mot.”), Dkt.
#43, at 20, 36. CCA also argues that Plaintiffs abandoned certain claims, and waived
others by not raising them before the agency. Id. at 12, 14. Finally, CCA insists that
some of Plaintiffs’ claims are challenges to agency inaction, and thus fall outside the
scope of judicial review authorized by the MSA. Id. at 21; Defendant-Intervenor’s Reply
22
in Support of Cross-Motion for Summary Judgment (“Defendant-Intervenor’s Reply”),
Dkt. #50, at 8.
For the reasons given below, the Court concludes that: (1) Plaintiffs have standing to
sue; (2) the case is not moot; (3) Plaintiffs preserved all but one claim, which they
acknowledge abandoning; (4) Plaintiffs properly raised their objections before the agency
in administrative proceedings; and (5) the challenged actions fall within the judicial
review provisions of the MSA.
1. Plaintiffs Have Article III Standing
“To satisfy Article III's standing requirements, a plaintiff must show that (1) he or
she has suffered an injury in fact that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision.” Gilardi v. U.S. Dept. of Health and
Human Serv., 733 F.3d 1208, 1228 (D.C. Cir. 2013). “[I]n reviewing the standing
question, the court must be careful not to decide the questions on the merits for or against
the plaintiff, and must therefore assume that on the merits the plaintiffs would be
successful in their claims.” City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir.
2003).
CCA claims that Plaintiffs have no “injury in fact” because jeopardy to long-term
stock conservation is neither actual nor imminent. Defendant-Intervenor’s Mot. at 27.
CCA also contends that the challenged actions have not reduced or affected the
commercial fishing quota. Id. at 29. Even if Plaintiffs could prove an injury, CCA
argues, the alleged injury is not fairly traceable, or likely to be redressed, because
23
Plaintiffs have not shown a connection between management of the recreational sector
and injuries to the commercial sector. Id. at 30-31. 8
The Court need not address this matter in great depth, as the Plaintiffs’ standing to
bring this suit is self-evident. See Sierra Club v. E.P.A., 292 F.3d 895, 899-900 (D.C.
Cir. 2002) (“In many if not most cases the petitioner’s standing to seek review of
administrative action is self-evident; no evidence outside the administrative record is
necessary for the court to be sure of it.”). Plaintiffs are commercial red snapper
fishermen. Compl. ¶ 2. They allege that the challenged agency actions led to an
overharvesting of red snapper that threatens their livelihood. Id. It is self-evident that
overharvesting of red snapper in either sector could negatively impact both sectors’
interests in the fishery’s health. Plaintiffs have also explained how overages in the
recreational sector could affect the plan for a “constant catch” in 2014 and 2015. See Pls’
Motion for Summary Judgment (“Pls’ Mot.”), Dkt. #42, at 34; Pls’ Reply at 4; see also
AR 4860, 5074 (explaining that a higher 2013 catch would require lower quotas in 2014
and 2015, for both recreational and commercial sectors).
CCA cites no case in which a group of fishermen were denied standing to
challenge a rule that regulated the amount of catch in their fishery. Courts in this Circuit
have granted standing to similar plaintiffs in the same (or even more attenuated)
circumstances. See, e.g., Ctr. for Biological Diversity v. Blank, 933 F. Supp. 2d 125,
136-38 (D.D.C. 2013) (granting environmental group standing to challenge bluefin tuna
management measures, even where quota was not reduced); Flaherty v. Bryson, 850 F.
Supp. 2d 38, 48 (D.D.C. 2012) (granting standing where the plaintiffs claimed that their
8
The Court notes that the federal defendants do not challenge Plaintiffs’ standing on the MSA and APA
claims.
24
ability to harvest striped bass was harmed by NMFS’s failure to adopt adequate
conservation measure to protect the Atlantic herring upon which striped bass feed); Am.
Oceans Campaign v. Daley, 183 F. Supp. 2d 1, 10 (D.D.C. 2000) (granting standing to
recreational fishermen who alleged that NMFS management measures failed to prevent
commercial fishers from damaging fish habitats); N. Carolina Fisheries Ass'n, Inc. v.
Gutierrez, 518 F. Supp. 2d 62, 81-83 (D.D.C. 2007) (granting standing to commercial
fishermen who challenged management restrictions on commercial snapper-grouper
fishery).
The Court sees no reason to deny standing to Plaintiffs simply because Plaintiffs
are commercial fishermen challenging management of the recreational sector. Red
snapper fishermen, commercial or recreational, harvest the same stock from the same
waters. Overharvesting of red snapper is as likely to injure commercial as recreational
fishing interests, and overharvesting is directly traceable, indeed dependent upon,
NMFS’s management actions or lack thereof. Furthermore, the Court’s decision in this
case is likely to redress Plaintiffs’ injury. Accordingly, Plaintiffs have Article III
standing.
2. Plaintiffs’ Claims are Not Moot
“A case becomes moot…when the issues presented are no longer ‘live’ or the
parties lack a legally cognizable interest in the outcome.” Already, LLC v. Nike, Inc., 133
S. Ct. 721, 726 (2013) (internal quotation omitted). Unless and until “it becomes
impossible for the court to grant any effectual relief whatever to the prevailing party,” the
case is not moot. United States v. Philip Morris USA Inc., 566 F.3d 1095, 1135 (D.C.
Cir. 2009).
25
The mootness doctrine does not apply where “(1) the challenged action was in its
duration too short to be fully litigated prior to its cessation or expiration, and (2) there
was a reasonable expectation that the same complaining party would be subjected to the
same action again.” United Bhd. of Carpenters & Joiners of Am., AFL-CIO v. Operative
Plasterers’ & Cement Masons’ Int’l Ass’n of U.S. & Canada, AFL-CIO (“Carpenters”),
721 F.3d 678, 687 (D.C. Cir. 2013) (internal quotation omitted). This is known as the
“capable of repetition yet evading review” exception. Id.An action is “capable of repetition” if there is “a reasonable degree of likelihood
that the issue will be the basis of a continuing controversy between the two parties.” Id.
at 688 (quotation omitted). Courts focus not on “whether the precise historical facts that
spawned the plaintiff’s claims are likely to recur,” but rather on “whether the legal wrong
complained of by the plaintiffs is reasonably likely to recur.” Del Monte Fresh Produce
Co. v. United States, 570 F.3d 316, 324 (D.C. Cir. 2009). “In estimating the likelihood of
an event's occurring in the future, a natural starting point is how often it has occurred in
the past.” Carpenters, 721 F.3d at 688 (quoting Clarke v. United States, 915 F.2d 699,
704 (D.C. Cir. 1990) (en banc)). An action “evades review” where “the challenged
activity is by its very nature short in duration, so that it could not, or probably would not,
be able to be adjudicated while fully live.” Conyers v. Reagan, 765 F.2d 1124, 1128
(D.C. Cir. 1985) (internal quotations and emphasis omitted).
The NMFS actions Plaintiffs challenge are precisely the sort of agency actions for
which the “capable of repetition yet evading review” exception exists. The “legal
wrongs” at issue are alleged failures by NMFS to comply with MSA requirements,
leading to overages in the recreational sector. In future agency decisions, the
26
administrative records will by necessity differ at least somewhat from the record before
the Court, but the same “legal wrongs” may well recur. Overages in the recreational
sector have occurred in six of the last seven years. This frequency suggests that future
overages are at a minimum “capable of repetition.” See Carpenters, 721 F.3d at 688.
NMFS may publish quotas and season lengths right up to the moment the fishing
seasons begins, and even after it has begun. The season may last less than a month. In
this case, NMFS published the May Final Rule on May 29, 2013, two days before the
beginning of the 2013 fishing season. AR 4680. The June Temporary Rule, which set a
Gulf-wide closing date, was published ten days into the season. See 78 FR 34586, 34587.
NMFS published the September Final Rule less than two weeks before reopening the
fishing season on October 1, 2013. See 78 FR 57313, 57315. Such actions “could not, or
probably would not, be able to be adjudicated while fully live.” Conyers, 765 F.2d at
1128. For these reasons, Plaintiffs’ case satisfies the “capable of repetition yet evading
review” exception to the mootness doctrine. 9
3. Plaintiffs Preserved All But One Claim
Claims not briefed may be deemed abandoned. See Terry v. Reno, 101 F.3d 1412,
1415 (D.C. Cir. 1996). CCA argues that Plaintiffs have abandoned their claims under
National Standard 5 (16 U.S.C. § 1851(a)(5)), National Standard 1 (16 U.S.C. §
1851(a)(1)), 16 U.S.C. § 1853(a)(1)(A), and a portion of their APA claim concerning
NMFS’s determination of the projected catch rate in the fall 2013 fishing season. See
Defendant-Intervenor’s Mot. at 12. CCA also contends that Plaintiffs have abandoned all
9
As with standing, the federal defendants do not join CCA in arguing mootness. It is instructive that the
agency apparently accepts that Plaintiffs have standing, and that this Court can grant relief.
27
claims related to the June Temporary Rule. Id. Plaintiffs concede that they have
abandoned their claim under National Standard 5. See Pls’ Reply at 13, n. 22.
Plaintiffs’ briefs demonstrate that they preserved all other claims. National
Standard 1, 16 U.S.C. § 1853(a)(1)(A), is mentioned explicitly, and by implication,
throughout Plaintiffs’ briefs. See Pls’ Mot. at 29-30, n. 24. Plaintiffs also explain in their
opening and reply briefs why NMFS erred in adjusting the catch rate for the fall 2013
season, which preserves that portion of their APA claim. See id. at 19; Pls’ Reply at 18.
Finally, in challenging the 28-day June 2013 season, Plaintiffs thereby directly
challenged the portion of the June Temporary Rule that set the Gulf-wide fishing season
length. See id. at 14 (noting that “NMFS set the recreational fishing season for June 2013
in the May Final Rule and June Temporary Rule,” and arguing that “NMFS violated
Section 407(d) by authorizing a 28-day recreational fishing in June that resulted in a 48%
overage”). This preserved Plaintiffs’ challenge to the June Temporary Rule.
4. Plaintiffs Properly Raised Their Concerns with NMFS
“[A] party will normally forfeit an opportunity to challenge an agency rulemaking
on a ground that was not first presented to the agency for its initial consideration.”
Flaherty, 850 F. Supp. 2d at 57 (quoting Advocates for Highway & Auto Safety, 429 F.3d
at 1150). Plaintiffs must “alert the agency to their position and contentions, in order to
allow the agency to give the issue meaningful consideration.” Id. However, courts have
found this requirement satisfied where a third party raised the issue during administrative
proceedings, or where an agency’s decision “indicates that the agency had the
opportunity to consider the very argument pressed by the petitioner on judicial review.”
28
Natural Res. Def. Council, Inc. v. E.P.A., 824 F.2d 1146, 1151 (D.C. Cir. 1987) (internal
quotations omitted).
CCA contends that Plaintiffs failed to raise their issues before the agency in
advance of the May and September Final Rules. 10 CCA also emphasizes that three of the
plaintiffs submitted a comment supporting the proposal that became the September Final
Rule, and that Plaintiffs never “proposed a specific accountability measure that NMFS
should adopt.” Defendant-Intervenor’s Mot. at 15, 19.
Upon review of the comments submitted on the May and September Final Rules,
it is evident that NMFS was presented with the objections underlying this action and had
a fair opportunity to consider them.
a. Comments on the May Final Rule
Plaintiff Wayne Werner’s comments on the May Final Rule complained that
“[t]he existing plan contains no accountability measures as required by the law.” AR
4620. Specifically, Werner noted that “[t]he overage from the previous year is not
deducted from the following year's quota; the enforcement and monitoring does not
increase; the number of anglers is not capped.” Id. Werner cited MSA Section 407(d)’s
requirement that NMFS prohibit the retention of fish above the quota, explaining that
“the agency has established a pattern of failing to prohibit the retention of fish far after
the recreational quota has been reached,” a “violation of the provision.” Id. Werner
asserted that the recreational overages actually operate to “reallocate quota from the
commercial to the recreational sectors.” Id. Citing National Standard 4, Werner wrote
10
CCA also argues that all claims against the May Final Rule were “merged” into claims against the
September Final Rule. See Defendant-Intervenor’s Mot. at 18. CCA does not explain why such a merger
should make irrelevant any comments Plaintiffs submitted to NMFS in connection with the May Final
Rule. Accordingly, the Court considers separately the Plaintiffs participation in each rulemaking.
29
that “continued effective reallocation by allowing the recreational sector to exceed its
catch is unfair and does not promote conservation.” AR 4621.
Plaintiff Fish for America’s comments on the May Final Rule echoed all of
Werner’s objections. Fish for America suggested that NMFS sets the recreational fishing
season length “with full knowledge that the lack of monitoring and other factors will
result in continued overages the following year with no payback provisions in place.”
AR 4623. Fish for America also elaborated on the reallocation complaint: “Although the
recreational quota is technically limited to 49 percent of the total, the understanding that
it will be exceeded in practice makes that technicality meaningless and results in an
effective violation of 407(d).” AR 4624.
A third party, the Environmental Defense Fund (EDF), raised similar concerns in
its comments. EDF referenced “the history of consistent overages in the recreational red
snapper fishery under measures like those in the proposed rule,” which made it “only
remotely possible that the measures succeed as required by the Magnuson-Stevens Act.”
AR 4617. According to EDF, “the current recreational management plan” made it
“almost certain” that quota overages would continue, “potentially jeopardizing recent
rebuilding of the red snapper stock.” Id. EDF cited the same sections of the MSA as did
Werner and Fish for America, along with 16 U.S.C. § 1853(a)(1)(A). Id.Though the agency need not have received notice of precisely which causes of
action Plaintiffs would eventually bring, the comments reveal that in fact NMFS did have
explicit notice of Plaintiffs’ claims under MSA Section 407(d), Section 303(a)(15), and
National Standard 4. See 16 U.S.C. §§ 1883(d)(1) (requiring prohibition on the retention
of fish), 1853(a)(15) (requiring accountability measures), 1851(a)(4) (requiring fair and
30
equitable allocation reasonably calculated to promote conservation). The concern around
de facto reallocation, expressed by all three commenters, also covers Plaintiffs’ cause of
action under MSA Section 304(b). See id. § 1854(b)(1) (requiring consistency between
FMP and management measures). 11
b. Comments on the September Final Rule
Plaintiffs Guindon, Werner, and Waters (hereinafter “Guindon”) submitted
lengthy written comments on the September Final Rule. Guindon’s comment supported
increasing the 2013 quota to 11 million pounds. See AR 4989. However, at the time
Guindon submitted the comment, NMFS had not yet published its decision to reopen the
recreational fishing season in fall 2013. The comment made crystal clear that Guindon
supported only “that portion of the proposed rule that would increase the 2013 total
allowable catch to 11 million pounds.” Id. Guindon remained concerned that the
proposed rule “fail[ed] to include meaningful accountability measures for the recreational
sector.” Id. Guindon also reiterated that “[t]he lack of meaningful accountability
measures for the recreational sector violates several provisions of the Magnuson-Stevens
Act,” and explained that further recreational overages would accomplish a “de facto
reallocation from the commercial to the recreational sector that is inconsistent with the
apportionment between those sectors as established by the Reef Fish FMP.” AR 4989-
90. Guindon insisted that “if the preliminary results [estimating June 2013 landings]
prove accurate, the recreational sector should be required to pay back in 2014 any
overage from 2013.” AR 4991. In addition, though Guindon supported increasing the
quota to 11 million pounds, the comment attacked the logic underpinning the Council’s
recommendation. Id. at 4990-91. Guindon explained that the gap between the ABC and
11
Fish for America also explicitly cited this section in its comments. See AR 4624.
31
the quota could not achieve “constant catch” while also serving as a “de facto buffer”
against recreational overages, and asserted that such a “de facto buffer” would penalize
the commercial sector, which has no overages. Id.
EDF also submitted comments on the September Final Rule, suggesting sector-
specific buffers (which would mean a buffer on the recreational sector). AR 4984.
EDF’s comment again expressed skepticism that existing management measures would
succeed, given the history of overages, and EDF again identified the MSA provisions that
would be violated. AR 4985 (citing 16 U.S.C. §§ 1883(d), 1853(a)(15), 1853 (a)(1)(A),
1854(b)).
These comments gave NMFS sufficient notice of the issues underlying the present
action. 12 Guindon’s comments on the “constant catch” plan became the basis of
Plaintiffs’ claim that setting the quota at 11 million was arbitrary and capricious, in
violation of the APA. See Compl. §§ 121-26. Guindon also revisited the issues raised in
Werner’s and Fish for America’s comments on the May Final Rule. EDF echoed its
earlier comments. Whether or not Plaintiffs (or a third party) were actually required to
identify specific accountability measures that NMFS should adopt, the record reveals that
commenters did so. See AR 4620 (“[t]he overage from the previous year is not deducted
from the following year's quota; the enforcement and monitoring does not increase; the
number of anglers is not capped”); AR 4623 (discussing payback provisions); AR 4984
(suggesting sector-specific buffers); AR 4991 (suggesting a payback provision for 2014).
12
Without deciding whether a lawsuit on its own would provide sufficient notice to the agency, the Court
observes that Plaintiffs filed this suit on June 26, 2013, and that the parties jointly moved for a stay on July
29, 2013, in recognition that Plaintiffs would likely amend their complaint to include the final rule NMFS
planned to publish in September. See Dkt. #1, 21.
32
The only causes of action that are not directly addressed, with citations to the
MSA, are Plaintiffs’ causes of action under National Standards 1 and 2. However,
National Standard 1 is a general obligation to “prevent overfishing while achieving, on a
continuing basis, the optimum yield from each fishery.” 16 U.S.C. § 1851(a)(1). To the
extent that NMFS requires any notice at all with respect to its general responsibilities
under National Standard 1, many of the commenters’ objections could be fairly read as
implying a violation of this standard. See, e.g., AR 4617 (explaining that recreational
overages “potentially jeopardiz[e] recent rebuilding of the red snapper stock”).
As for National Standard 2, which requires NMFS to use “the best scientific
information available,” the commenters submitted their comments before NMFS decided
to substitute the projected 2013 landings for the actual 2013 MRIP landings estimates.
See AR 4989 (comments submitted August 29, 2013); AR 5014 (NMFS decision
memorandum recommending approval of fall fishing season, dated September 10, 2013);
78 FR 57313 (September Final Rule, dated September 18, 2013). Plaintiffs were never
given an opportunity to comment on NMFS’s decision to designate the 2013 projections
as the “best scientific information available,” see 78 FR 57313, 57314, and thus cannot
be retroactively required to have exhausted that issue during administrative proceedings.
5. Plaintiffs’ Claims Fall Within the Scope of the MSA’s Judicial
Review Provision
The MSA provides that courts shall only set aside agency regulations “on a
ground specified in section 706(2)(A), (B), (C), or (D) of [the APA].” 16 U.S.C. §
1855(f)(1)(B). CCA argues that insofar as Plaintiffs claim that NMFS should have
adopted additional accountability measures, the judicial review provisions of the MSA
preclude the Court from granting relief. See Defendant-Intervenor’s Reply at 9. CCA
33
observes that Congress conspicuously omitted Section 706(1), which authorizes courts to
“compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. §
706(1). According to CCA, Congress intended this omission to foreclose plaintiffs from
challenging “agency inaction.” See Defendant-Intervenor’s Reply at 9.
This novel argument finds no support in the case law. CCA has not identified any
decision distinguishing between agency action and agency inaction in the MSA context. 13
In any event, the Court need not decide precisely what Congress intended to leave out of
the MSA judicial review provision because Plaintiffs have alleged that three specific
agency actions – the May Final Rule, June Temporary Rule, and September Final Rule –
violated the MSA. If the Court finds any of those agency actions to be “arbitrary and
capricious, an abuse of discretion, or otherwise not in accordance with law,” see 5 U.S.C.
§ 706(2)(A), the MSA authorizes setting that action aside. See 16 U.S.C. §1855(f)(1)(B).
B. Plaintiffs’ MSA Challenges
1. NMFS Failed to Prohibit the Retention of Fish After the
Recreational Quota Had Been Reached, in violation of Section
407(d)
Section 407(d) requires NMFS to “establish…quotas for recreational
fishing…that, when reached, result in a prohibition on the retention of fish…for the
remainder of the fishing year.” 16 U.S.C. § 1883(d)(1). The Court has identified no
cases applying this provision, nor do the parties put forth any particular interpretation of
the phrase “result in a prohibition on the retention of fish,” except as implied by their
13
In several MSA cases, courts have actually included Section 706(1) when setting forth the APA standard
of review, notwithstanding the excision of that section from 16 U.S.C. § 1855(f)(1)(B). See, e.g., Texas v.
Crabtree, 948 F. Supp. 2d 676, 680 (S.D. Tex. 2013); Connecticut v. Daley, 53 F. Supp. 2d 147, 156 (D.
Conn. 1999) aff'd sub nom. Connecticut v. U.S. Dep't of Commerce, 204 F.3d 413 (2d Cir. 2000).
34
arguments. The statute does not explain what methods of “prohibition” will satisfy the
requirement, and the legislative history gives no indication.
The provision’s first clause imposes on NMFS an obligation to “establish a
quota,” and the second clause essentially explains how the quota must function – i.e., to
“result in a prohibition on the retention of fish.” Id. Thus, the Court concludes that under
Section 407(d), NMFS must close the season, and may not reopen it, whenever the
agency determines that the quota has been reached. The Court will also presume that
NMFS has complied with the statute if it implements some effective mechanism to
prohibit the retention of fish above the quota. This might include setting a season length
in advance based on a projection of when the quota will be met, but such a projection
must be accurate and conservative enough to effectively accomplish the statutory
mandate.
Plaintiffs claim that NMFS violated Section 407(d) by approving a 28-day season
based on a “flawed projection model,” without adequate accountability measures, and by
reopening the season in the fall when the recreational quota had already been reached and
exceeded. Pls’ Mot. at 14-15. NMFS contends that its method of complying with
Section 407(d) was, and has been, to project when the quota will be met and set the
length of the fishing season accordingly. Defs’ Mot. at 28.
NMFS also argues that its decision to reopen the season in fall 2013 complied
with Section 407(d) because the agency had concluded that there was additional quota
available. Id. at 31. Despite the preliminary MRIP landings data from the June 2013
season, which indicated an overage of almost 2 million pounds, NMFS determined that
the “best scientific information available” was the original projection used to set the
35
season length. Id. Under that projection, by definition, the amount of catch harvested in
June 2013 exactly met the recreational quota of 4.145 million pounds. According to
NMFS, this justified reopening the season so that the recreational sector could capture its
share of the quota increase.
The Court agrees with Plaintiffs that NMFS violated Section 407(d) in setting the
June 2013 season, and in reopening the recreational fishing season in the fall. If NMFS’s
estimates in previous years had come at all close to accurately predicting recreational
landings, or if NMFS had some credible reason to believe that 2013 would be different,
the Court might have been limited to sympathizing with Plaintiffs’ frustrations at
watching an agency fail to accomplish a statutory mandate. But by 2013 at least, if not
sooner, the agency had experienced many years of recreational overage, and possessed
several remedial tools to effectuate its statutory responsibility. At a certain point NMFS
was obligated to acknowledge that its strategy of incrementally shortening the season was
not working. Administrative discretion is not a license to engage in Einstein's definition
of folly – doing the same thing over and over again and expecting a different result. 14
Section 407(d) required NMFS to implement management measures with a fighting
chance of “result[ing] in a prohibition on the retention of fish” – be that a buffer, a
dramatically shortened season, or some other strategy. Failing to do so was arbitrary and
capricious.
14
The Court need not specify the precise moment at which an agency’s past failures to accomplish a
statutory mandate make continuing with the status quo arbitrary and capricious. The sufficiency of an
agency’s rationale depends on the “nature and context of the challenged action.” Cleary, Gottlieb, Steen &
Hamilton v. Dep't of Health & Human Servs., 844 F. Supp. 770, 783 (D.D.C. 1993). In this case, NMFS
had experienced at least four years of extreme overages under its existing management scheme, and also
had at its disposal several means to address those overages.
36
The agency’s conduct in reopening the fishing season in fall 2013 was yet more
egregious. To summarize the sequence of events: (1) in July 2013, the Council proposed
increasing the 2013 quota and suggested reopening the season in the fall, contingent on
there being unused quota available; (2) in early August, NMFS published a proposal
discussing the possibility of reopening the season, contingent on available quota; (3) in
late August, NMFS received MRIP landings estimates indicating an overage that
exceeded both the current and proposed quota; (4) NMFS reopened the fall season
anyway.
In July 2013, when the Council authorized reopening the season in the fall, it did
so “contingent upon there being unused quota available,” and observed that “[b]ecause of
the potential for a quota overage during the June season, the full amount of a quota
increase may not be available.” AR 4786. The Council intended the length of the
reopened season to be “based on the landings from the June season subtracted from the
total recreational quota (original quota plus increase).” Id. In fact, the Council expected
the break in time caused by the split season to “result in more accurate projections for
2013,” because NMFS could “better determine how much quota is available before
setting the closing date for the supplemental season.” AR 4785. The Council also
specifically noted in the July Framework Action that “the system for collecting
recreational data has improved.” AR 4785. All this suggests that the Council expected
NMFS to use the June 2013 MRIP landings estimate, or at least some estimate based on
recreational data from the 2013 season, when deciding whether to reopen.
In August 2013, NMFS proposed increasing the recreational quota from 4.145 to
5.39 million pounds, with a possible supplemental season contingent on the availability
37
of additional quota “after the June landings are known.” 78 FR 49440, 49441. Then
NMFS received the June landings estimate of 6.13 million pounds, which exceeded the
quota then in effect by 2 million pounds, or about 48 percent. AR 5073. It also exceeded
the proposed 5.39 million quota by over 700,000 pounds.
At that point the agency changed course. NMFS characterized the 48 percent
overage as “unexpectedly high relative to previous years,” AR 5073, though in the
previous five years the average overage was 42 percent. See AR 3524. 15 OST was asked
to explore the effect of sampling design on the MRIP landings estimates, but found no
indication that the massive overage occurred as a result of those design changes. AR
5001. Despite OST’s “inconclusive” finding, NMFS declared the 2013 MRIP landings
estimates “non-comparable” to the 2013 quota. The agency then determined that,
according to the “best scientific information available,” the recreational sector caught
exactly what the agency expected it would catch during the 28-day June season, i.e. 4.145
million pounds. AR 5003. This allowed NMFS to reopen the fishing season in the fall.
The agency’s decision makes very little sense. NMFS decided to reopen the
season without accounting in any way for the possibility that some, if not most or all, of
the estimated overage was due to fishing effort. Assuming that the recreational sector
caught exactly what the agency predicted it would, despite “more accurate” evidence of a
massive overage – was a glaring dismissal of the “relevant factors,” and a “clear error of
15
This figure excludes the 2010 season, cut short by the Deep Water Horizon oil spill. Here the Court
follows NMFS’s lead. NMFS generally excludes data from the 2010 season when reviewing recreational
sector landings, or otherwise treats that season as an aberration. See AR 2553 (“2010 data we did drop
because of the oil spill and unusual fishing behavior that occurred in that particular year”); AR 4016 (“2010
was the only year without an overage as a result of decreased fishing because of the Deepwater Horizon
MC252 oil spill”); AR 4364 (excluding 2010 data from red snapper landings summary).
38
judgment.” Flaherty, 850 F. Supp. 2d at 47. Under the APA standard articulated in
Flaherty and other MSA cases, reopening the season was arbitrary and capricious. 16
NMFS attempted to justify its action by explaining that “if the new MRIP
methodology had been available to use in the 2013 stock assessment on which the current
ABCs and quotas are based, then the original quotas may have been set much higher.” 78
FR 57313, 57314. In other words, NMFS disregarded the 2013 MRIP landings estimates
not because they were inaccurate but because they raised the possibility that NMFS had
set the prior quotas unnecessarily and unfairly low. It is not clear to the Court why the
possibility of unfairness in prior quotas, or even in a current quota, would justify
disregarding accurate and reliable information. NMFS never revised or disavowed those
earlier quotas. Instead it chose to adopt a landings estimate that it knew to be inaccurate,
apparently to avoid punishing fishermen who might have been permitted to catch more
under a hypothetical prior quota.
2. NMFS Failed to Use the Best Scientific Information Available,
in violation of National Standard 2
NMFS’s dismissal of the 2013 MRIP landings estimates also violated National
Standard 2, which requires NMFS to base all conservation and management measures on
the “best scientific information available.” 16 U.S.C. § 1851(a)(2). National Standard 2
obligates NMFS to make “a thorough review of all the relevant information available at
the time.” Ctr. for Biological Diversity, 933 F. Supp. 2d at 148 (quoting N.C. Fisheries
Ass’n, 518 F. Supp. 2d at 85). NMFS may not “disregard superior data in reaching its
conclusion.” Id. Challenges brought under National Standard 2 will normally fail, unless
16
The Court notes that in 2011, when faced with a similar situation, the agency acted more rationally.
Additional quota had become available after the June 2011 season closed, but when preliminary estimates
indicated that recreational landings in June had already exceeded the additional quota, NMFS declined to
reopen the season in the fall. See AR 4348.
39
there is “some indication that superior or contrary data was available and that the agency
ignored such information.” N.C. Fisheries Ass’n, 518 F. Supp. 2d at 85.
“Superior or contrary data” is precisely what NMFS ignored in promulgating the
September Final Rule. NMFS conceded in the Rule itself that the June 2013 landings
estimates were “more accurate and less biased than those produced in past years.” AR
5073. Though NMFS insists that it never ignored that data, merely tabled it for further
evaluation, the record demonstrates that the agency disregarded the estimate entirely in
formulating the September Final Rule. Faced with reliable data as to how many fish were
landed in the recreational sector, NMFS did not even factor the possibility of a massive
overage into its decision to reopen the fall season.
NMFS scientists made clear that they could not attribute the “unexpectedly
high” 17 landings to differences in sampling methodology. See AR 5001. Even the
Director of NMFS’s Southeast Fisheries Science Center, who originally deemed the 2013
MRIP estimates “non-comparable,” still recognized the uncertainty concerning what was
actually caught in June 2013 and recommended that such uncertainty “should be factored
into decisions about season length for the fall season.” AR 5003. NMFS nevertheless
reopened the season, as if there remained any possibility that the recreational sector had
actually landed only 4.145 million pounds of red snapper. This is a quintessential
example of ignoring “superior or contrary data.” N.C. Fisheries Ass’n, 518 F. Supp. 2d at
85. 18
17
The Court questions whether landings representing a 48 percent overage can fairly be characterized as
“unexpectedly high” in light of the similar overages in recent years.
18
NMFS did revise its estimate of fall catch rates upward from 50 percent to 75 percent of summer catch
rates, but as the agency acknowledged, this was primarily in response to public comment from fishermen
evincing enthusiastic plans to fish again in the fall. See AR 5011-12. The agency’s cryptic reference to
“questions about the new data,” AR 5012, hardly constitutes a “thorough review” of the available
information. See Ctr. for Biological Diversity, 933 F. Supp. 2d at 148. National Standard 2 would
40
Center for Biological Diversity offers an illustrative counterpoint to NMFS’s
actions in this case. In Center for Biological Diversity, the plaintiff claimed that NMFS
violated National Standard 2 by failing to consider an alternative model for estimating
fish population. 933 F. Supp. 2d at 148. Noting that the alternative model “was not even
finalized at the time,” the court described the plaintiff’s argument as “border[ing] on the
frivolous,” but the court also asserted that “even if the full results of the…model had been
available at the time, it is well established that NMFS ‘may choose’ between ‘conflicting
facts and opinions,’ so long as it ‘justif[ies] the choice.’” Id. at 149 (quoting Fishermen's
Finest, Inc. v. Locke, 593 F.3d 886, 890 (9th Cir. 2010). The court cautioned that “the
Secretary can act when the available science is incomplete or imperfect, even where
concerns have been raised about the accuracy of the methods or models employed.” Id. at
150 (internal quotation omitted). For these reasons, the Court upheld NFMS’s actions as
within the bounds of the agency’s discretion, and not violative of National Standard 2.
Id.
In this case, the landings estimate was complete, i.e. “available” to NMFS before
the agency decided to designate something else as the “best scientific information
available.” See AR 5011. This was not a matter of selecting between competitive
statistical models. NMFS disregarded the actual landings estimate in favor of a
projection that the agency knew (with near certainty) was inaccurate. That is a far cry
from the agency’s actions in Center for Biological Diversity, or other cases in which
NMFS rules withstood challenges under National Standard 2. See, e.g., Flaherty, 850 F.
logically require the agency to consider (1) the conflict between the estimate the agency proposed to adopt,
4.145 million pounds, and the actual estimated landings of 6.13 million pounds, and (2) the possibility that,
in light of the 2 million pound overage, the model used to calculate the summer catch rate (from which the
agency proposed to derive the fall catch rate) might itself contain flawed assumptions about fishing effort.
41
Supp. 2d at 61-62 (upholding selection of a three-year annual average figure to estimate
recent catch, where plaintiffs identified no “superior or contrary data” and the regional
council gave four rationales, including fishing industry custom, an anomaly in the most
recent single year, and creation of a buffer); The Ocean Conservancy v. Gutierrez, 394 F.
Supp. 2d 147, 158 (D.D.C. 2005) aff'd sub nom. Oceana, Inc. v. Gutierrez, 488 F.3d 1020(D.C. Cir. 2007) (upholding NMFS’s decision to consider “not only its own data, but also
other studies, expert opinions, and considerations raised by the public at large”); Van
Valin v. Locke, 671 F. Supp. 2d 1, 13 (D.D.C. 2009) (upholding NMFS’s decision to
disregard recent participation data in setting a bag limit, where incorporating the data
would allow certain fishermen to profit from the overfishing that the regulation was
intended to combat).
Of course NMFS may decline to use information it deems inconclusive or
irrelevant. 19 NMFS may also designate its own projections as the best available scientific
information, where circumstances warrant. 20 This case, the Court trusts, is a rare instance
of an agency disregarding accurate and reliable data to avoid penalizing recreational
fishermen. National Standard 2 requires at minimum that reliable data be treated as such.
3. NMFS Failed to Require Adequate Accountability Measures,
in violation of Section 303(a)(15)
Section 303(a)(15) provides that every FMP must “establish a mechanism for
specifying annual catch limits in…implementing regulations…at a level such that
19
As the cases establish, NMFS may also choose to rely on incomplete or imperfect information. See N.C.
Fisheries Ass’n, 518 F. Supp. 2d at 85 (“It is well settled—and both applicable regulations and consistent
case law confirm—that the Secretary can act when the available science is incomplete or imperfect, even
where concerns have been raised about the accuracy of the methods or models employed.”); Center for
Biological Diversity, 993 F. Supp. 2d at 150 (same).
20
For example, if some factor corrupted landings estimates in such a way that they became useless, or if an
unusual event (such as the oil spill) skewed the data irretrievably, the agency’s projections – adjusted as
necessary – might offer the best estimate of landings during that time.
42
overfishing does not occur in the fishery, including measures to ensure accountability.”
16 U.S.C. § 1853(a)(15). Plaintiffs argue that NMFS’s failure to require any
accountability measures violated Section 303(a)(15). Pls’ Mot. at 22. NMFS insists that
the agency already uses the accountability measure of in-season closure, and only the
Council can approve post-season accountability measures. Defs’ Mot. at 34. 21
At the outset, the Court recognizes that Section 303(a)(15) is phrased in terms of
what an FMP must contain, namely, “measures to ensure accountability,” not in terms of
what every regulation or proposed regulation must contain. See 16 U.S.C. § 1853(a)(15).
This gives NMFS’s argument some surface appeal, in that the responsibility to revise the
FMP lies primarily with the Council. However, if the FMP does not contain adequate
AMs, either because of an error in judgment at the outset or because changing
circumstances require additional AMs, NMFS is not left helpless, with hands tied, hoping
that the Council will eventually correct the omission. The statute and the agency’s own
guidelines make abundantly clear that AMs can and should be used to address
management uncertainty. NMFS must disapprove and return for revision any Council
proposal that does not contain adequate AMs. The agency cannot excuse its obligation
by arguing that only the Council can authorize an AM. If the Council fails to propose a
necessary AM, or, as in this case, explicitly rejects an AM over the recommendation of
its SSC, NMFS must fulfill its statutory responsibility as a backstop.
21
NMFS also argues that Plaintiffs’ challenge under Section 303(a)(15) is time-barred, Defs’ Mot. at 26,
because the most recent FMP amendment occurred in 2010 and plaintiffs must bring suit within 30 days.
See 16 U.S.C. § 1855(f)(1). Plaintiffs respond, correctly, that they timely filed a challenge to three NMFS
rules published in 2013, and that their Section 303(a)(15) claim alleges that NMFS failed to perform its
statutory duty when it approved those three rules without requiring adequate AMs. Pls’ Mot. at 9. Whether
NMFS has such a statutory duty is a separate question, but Plaintiffs’ challenge is directed at the agency’s
2013 rules, not at the 2010 FMP Amendment. As such, Plaintiffs’ claim is timely.
43
The question then becomes whether some additional AM was necessary in this
case. As the court recognized in Oceana, Inc. v. Locke, “[t]he MSA does not elaborate
on what constitutes ‘measures to ensure accountability’ with ACLs under § [303(a)(15)].”
831 F. Supp. 2d 95, 116 (D.D.C. 2011). However, the guidelines issued by the Secretary,
codified at 50 C.F.R. § 600.310, help flesh out the concept of accountability measures.
Those guidelines are entitled to deference. See Oceana, Inc. v. Locke, 831 F. Supp. 2d at
116 (citing Natural Resources Def. Council, Inc. v. Daley, 209 F.3d 747, 752–53 (D.C.
Cir. 2000) (“Courts must defer to an agency's reasonable interpretation of ambiguous
provisions in a statute it administers…in accordance with the analytical framework
established by the Supreme Court in Chevron”).
The Court in Oceana v. Locke correctly concluded that NMFS guidelines
interpreting the MSA are not entitled to automatic Chevron deference, because “they do
not carry the force of law.” Id.; see also 16 U.S.C. § 1851 (“The Secretary shall establish
advisory guidelines (which shall not have the force and effect of law)”). However, the
guidelines are entitled to “considerable deference” in light of their thoroughness, the
agency’s expertise, and the administrative formalities involved in their promulgation.
See Oceana v. Locke, 831 F. Supp. 2d at 117; United States v. Mead Corp., 533 U.S. 218,
228 (2001) (assessing “the degree of the agency's care, its consistency, formality, and
relative expertness, and…the persuasiveness of the agency's position”).
According to the NMFS guidelines, accountability measures “should address and
minimize both the frequency and magnitude of overages and correct the problems that
caused the overage in as short a time as possible.” 50 C.F.R. § 600.310(g)(1). Where
overages occur, “AMs must be triggered and implemented as soon as possible to correct
44
the operational issue that caused the ACL overage, as well as any biological
consequences to the stock or stock complex resulting from the overage when it is
known.” Id. § 600.310(g)(3). Finally, “if the management measures for different sectors
differ in the degree of management uncertainty, then sector ACLs may be necessary so
that appropriate AMs can be developed for each sector.” Id. § 600.310(f)(5)(ii).
Oceana v. Locke offers a pertinent example of the standard that NMFS must meet
under Section 303(a)(15). The plaintiff in that case claimed that NMFS had failed to
implement adequate accountability measures for five species in a fishery. 831 F. Supp.
2d at 114. NMFS had allocated all the catch for those five species to so-called “common-
pool” vessels, with no catch allocated to vessels that fished under a permit. Id. at 115.
Though there were accountability measures for the common-pool segment, there were no
accountability measures for the permitted vessels. Id. NMFS argued that because
permitted vessels were prohibited from harvesting any of those five species, specific
accountability measures were unnecessary. Id. The plaintiffs responded that bycatch (the
catching of fish not targeted by the fisherman) would still occur, and could in fact cause
an overage, thus requiring specific accountability measures for permitted vessels. Id. at
115-16.
The court in Oceana v. Locke concluded that the guidelines “clearly favor”
establishment of sector-specific AMs whenever there are sector-specific ACLs. Id. at
117. But specific AMs were not mandatory so long as NMFS implemented sufficient
overall AMs to prevent overfishing. Id. (citing 50 C.F.R. § 600.310(f)(5)(ii)). The
overall AMs in place in that fishery were not sufficient to protect those five species. Id.
at 118. Even prohibiting the retention of the five species was not enough, because
45
without specific AMs the permitted vessels could catch the five species as bycatch “with
impunity, and in doing so, cause their continued overfishing.” Id. at 120. The court
reached its conclusion while recognizing that under normal circumstances deference to
NMFS is “especially appropriate” in highly technical decisions. Id. (quoting Nat'l
Fisheries Inst., Inc. v. Mosbacher, 732 F. Supp. 210, 223 (D.D.C. 1990)). But in that
case, NMFS had failed to “articulate a rational connection between the facts found and
the choice made.” Id. (quoting Baltimore Gas and Elec. Co. v. Natural Res. Def.
Council, Inc., 462 U.S. 87, 105 (1983).
If anything, the instant case presents an even more striking disconnect between the
agency’s decision and the facts before it. The administrative record is replete with
references to the high degree of management uncertainty in the recreational sector, as
compared to the commercial sector, which had none. See AR 4349 (“the recreational
quota has regularly been exceeded”); AR 4384 (“A buffer for the commercial sector is
not believed to be necessary because the commercial sector has not exceeded its quota
since implementation of the IFQ program in 2007…the purpose of the recreational buffer
is to address management uncertainty and reduce the likelihood that the recreational
sector would exceed its quota”); AR 4724 (“Considerable uncertainty exists in projecting
season estimates given variability in average weights, catch per day, and implementation
of incompatible state regulations”).
NMFS administrator Roy Crabtree described the recreational sector’s particular
management uncertainties to the Council’s Reef Fish Management Committee in January
2013, and to the full Council in June 2013. See AR 2542 (“If you look at the
performance of the fishery in the past, we have, more often than not, had overages in the
46
range of a million pounds...We still have a lot of management uncertainty in this fishery
in terms of our ability to close the fisheries on time in the recreational sector”); AR 3930
(“There’s been a great deal of management uncertainty and that’s reflected in the quota
overruns to the recreational sector…We all know there’s a great deal of uncertainty
inherent in determining when to close the recreational fishery and what they’re ultimately
going to catch…There is a need for a buffer that reflects management uncertainty,
because there is certainly management uncertainty in the recreational fishery”).
All this evidence of high management uncertainty explains why the SSC
recommended a 20 percent buffer for the recreational sector. AR 4778. The Council
well understood this. In the July Framework Action, the Council discussed the SSC’s
buffer recommendation as one possible alternative, explaining that buffers “would be
applied separately to the recreational and commercial sectors because there is a different
level of management uncertainty between the sectors.” AR 4784. Specifically, the
commercial buffer would be 0 percent “because the sector is under an IFQ program, has
accurate landings data, and has not exceeded its quota in the last four years,” but the
recreational buffer would be 20 percent “primarily because of the quota overages in three
of the past four years.” Id.Yet the Council rejected the buffer, while proposing no other accountability measures
for the recreational sector, and NMFS approved the Council’s proposal. 22 The agency
did so though it evidently comprehended the degree of management uncertainty in the
22
The Council did explain that its decision to set the quota at 11 million, rather than 13.5 million, would act
as a “de facto buffer” against recreational overages. AR 4785. Perhaps this could be construed as an
accountability measure, but it was not a sector-specific accountability measure. The guidelines “clearly
favor” sector-specific AMs, Oceana v. Locke, 831 F. Supp. 2d at 117, because as this case demonstrates,
imposing a restriction on an entire fishery to accommodate management uncertainty in one sector may
penalize fishermen in another.
47
recreational sector, or at least recognized the “known unknowns” associated with
managing that sector. 23 As the court explained in Oceana v. Locke, NMFS’s guidelines
“clearly favor” the establishment of sector-specific accountability measures where
management uncertainty differs between sectors. 831 F. Supp. 2d at 117; see also 50
C.F.R. § 600.310(f)(5)(ii) (explaining that sector-specific ACLs allow development of
“appropriate AMs…for each sector”). The single accountability measure included in the
FMP, in-season closure, has done very little to prevent quota overages. Given
management uncertainties, the agency’s approval of a 28-day season, and the decision to
reopen the season in the fall, with no additional AMs, effectively allowed the recreational
sector to overharvest red snapper “with impunity.” Id. at 120. Such a dogged belief that
somehow 2013 would be different than previous years defies logic. The Court
acknowledges the deference customarily owed when an agency utilizes its scientific
expertise, but in this instance NMFS has not “articulate[d] a rational connection between
the facts found and the choice made.” Baltimore Gas and Elec. Co., 462 U.S. at 105.
This Court will not dictate precisely which accountability measures NMFS should
have required, or should require in the future. That decision is best left to the expertise
and discretion of the agency tasked with carrying out the statute. NMFS need not
implement so many accountability measures that overharvesting and overfishing become
utterly beyond possibility. That reads too much into the MSA. However, Section
303(a)(15) would lose all teeth and coherence if NMFS, faced with persistent overages
and high management uncertainty, could claim compliance by simply identifying any
control that technically qualifies as an “accountability measure.” In this case, it is
23
See Citizens for Responsibility & Ethics in Washington v. Dep't of Educ., 538 F. Supp. 2d 24, 30 (D.D.C.
2008) (describing “known unknowns”); Republic of Iraq v. Beaty, 556 U.S. 848, 860 (2009).
48
apparent from the record that the existing scheme does not “ensure accountability” within
the meaning of Section 303(a)(15).
4. NMFS Has Effectively Reallocated Catch from Commercial to
Recreational Sector, in violation of Section 304(b) and National
Standard 4
Section 304(b) of the MSA requires consistency between the FMP and
implementing regulations. See 16 U.S.C. § 1854(b). Plaintiffs argue that NMFS violated
Section 304(b) by creating a “de facto reallocation” of quota from the commercial to the
recreational sector, such that the actual allocation of quota did not reflect the 51/49 split
established in the FMP. See Pls’ Mot. at 30. NMFS contests Plaintiffs’ statement that the
agency has accomplished a “de facto reallocation,” emphasizing the agency’s shortening
of the fishing season in recent years. Defs’ Mot. at 37.
NMFS seems to argue that as long as the 51/49 split remained on paper, and the
agency did something to carry it out, there could not be a “de facto reallocation.” The
Court views this contention with some skepticism. But even accepting NMFS’s view, the
agency’s decision to reopen the fall season despite reliable evidence that the sector had
already exceeded its quota overtly contravened the terms of the FMP. NMFS essentially
guaranteed that the actual catch allocation would skew widely from the 51/49 allocation,
as indeed it did. This violated Section 304(b).
Plaintiffs also claim that the “de facto reallocation” runs afoul of National
Standard 4, which provides that allocation of fishing privileges must be fair and equitable
to all fishermen, and reasonably calculated to promote conservation. See 16 U.S.C. §
1851(a)(4). NMFS maintains that rules can have a disparate effect on fishing sectors
while remaining “fair and equitable” within the meaning of the statute. Def’s Mot. at 3.
49
The Court need not investigate NMFS’s interpretation of the “fair and equitable”
provision, because the agency’s actions ran counter to the second prong of National
Standard 4. When an agency blinds itself to the high likelihood that its actions will cause
overharvesting, the Court cannot characterize those actions as “reasonably calculated to
promote conservation.” 16 U.S.C. § 1851(a)(4). For that reason, the September Rule, at
least, violates National Standard 4.
C. Plaintiffs’ NEPA Claim
Plaintiffs seek no relief under NEPA that differs in any way from the relief sought
under the MSA. See Compl. at 34. In light of the Court’s decision to vacate the May,
June, and September Final Rules, the Court need not decide Plaintiffs’ NEPA claims at
this time. See Natural Res. Def. Council, Inc., 209 F.3d at 749 (finding “no need to reach
appellants' NEPA claims” where court remanded a rule to NMFS).
IV. CONCLUSION
For the reasons given above, the Court finds that the May Final Rule, June Temporary
Rule, and September Final Rule were arbitrary and capricious and not in accordance with
the MSA. Under the MSA, NMFS has a statutory duty to: prohibit the retention of fish
after quotas are reached in the Gulf of Mexico red snapper fishery; use the best scientific
information available when making management decisions; require whatever
accountability measures are necessary to constrain catch to the quota; avoid decisions that
directly conflict with the FMP’s allocation of catch; and, where sectors are managed
separately, avoid penalizing one sector for overages that occur only in another.
March 26, 2014
50
BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE
51