Coastal Conservation Ass'n v. United States Department of Commerce

Case: 16-30137 Document: 00513837458 Page: 1 Date Filed: 01/17/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 17, 2017
No. 16-30137
Lyle W. Cayce
Clerk
COASTAL CONSERVATION ASSOCIATION; CHARLES A. CAPLINGER,
IV; ADAM GUILLORY; GEORGE A. HUYE,
Plaintiffs - Appellants
v.
UNITED STATES DEPARTMENT OF COMMERCE, Penny S. Pritzker,
Secretary; NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, Eileen Sobeck, Assistant Administrator; NATIONAL
MARINE FISHERIES SERVICE, Eileen Sobeck, Assistant Administrator,
Defendants - Appellees
v.
CHARTER FISHERMAN'S ASSOCIATION,
Intervenor - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
Before STEWART, Chief Judge, SMITH and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
Several private anglers and the Coastal Conservation Association, a
group representing private anglers (collectively, CCA), appeal the district
court’s summary judgment dismissal of their lawsuit, which challenged
Case: 16-30137 Document: 00513837458 Page: 2 Date Filed: 01/17/2017
No. 16-30137
Amendment 40 to the Reef Fish Fishery Management Plan and the Final Rule
implementing that amendment. Because we find that Amendment 40 is
consistent with its organic statute and was properly devised and implemented,
we AFFIRM the judgment of the district court.
I
This dispute centers on the management of the red snapper fishery in
the Gulf of Mexico. This fishery is regulated pursuant to the Magnuson-
Stevens Act, 16 U.S.C. § 1801 et seq. (the MSA or the Act). The MSA was
passed by Congress in 1976 in order to “take immediate action to conserve and
manage the fishery resources found off the coasts of the United States” and
“promote domestic commercial and recreational fishing under sound
conservation and management principles.” Id. at § 1801(b)(1), (3). To
accomplish these goals, the MSA established eight Regional Fishery
Management Councils, each tasked with preparing fishery management plans
(FMPs) to address conservation and management of fisheries under their
control. The Councils are empowered to draft FMPs that are “necessary and
appropriate for the conservation and management of the fishery, to prevent
overfishing and rebuild overfished stocks, and to protect, restore, and promote
the long-term health and stability of the fishery.” Id. at § 1853(a)(1)(A).
The Gulf Council is one such regional council, with authority to manage
fisheries in the federal waters of the Gulf of Mexico off the coasts of Texas,
Louisiana, Mississippi, Alabama, and Florida. The Act requires the Councils
to form their fishery management plans through a process of notice-and-
comment rulemaking. FMPs are proposed by the Regional Councils, with final
regulations promulgated by the Secretary of Commerce through the National
Marine Fishery Service (NMFS). Once the Secretary, through the NMFS,
reviews the plans and publishes the final regulations in the Federal Register,
they have the full force of law. Id. at § 1854.
2
Case: 16-30137 Document: 00513837458 Page: 3 Date Filed: 01/17/2017
No. 16-30137
Every FMP must be consistent with ten National Standards, codified at
16 U.S.C. § 1851(a). Two of these standards are relevant to the instant
litigation:
(2) Conservation and management measures shall be based
upon the best scientific information available.
(8) Conservation and management measures shall, consistent
with the conservation requirements of this chapter (including
the prevention of overfishing and rebuilding of overfished
stocks), take into account the importance of fishery resources to
fishing communities by utilizing economic and social data that
meet the requirements of paragraph (2), in order to (A) provide
for the sustained participation of such communities, and (B) to
the extent practicable, minimize adverse economic impacts on
such communities.
Id. at § 1851(a).
In addition to the National Standards, the management of Gulf of Mexico
red snapper is addressed specifically in Section 407 of the Act. Section 407,
which was added to the Act in 1996, requires that any FMP for the red snapper
fishery adopted by the Gulf Council must “establish separate quotas for
recreational fishing (which, for the purposes of this subsection shall include
charter fishing [i.e., fishing from chartered vessels]) 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.” Id. at § 1883(d)(1).
Red snapper stock is managed under the Reef Fish FMP, first
implemented by the Secretary in 1984. In 1990, in response to observed
declines in the adult population of red snapper, the Council implemented
Amendment 1 to the Reef Fish FMP with the goal of rebuilding the adult red
snapper population by 2000. 1 The Gulf Council manages the recreational
1 This target date was ultimately extended to 2032. Coastal Conservation Ass’n v.
Gutierrez, 512 F. Supp. 2d 896, 899 (S.D. Tex. 2007).
3
Case: 16-30137 Document: 00513837458 Page: 4 Date Filed: 01/17/2017
No. 16-30137
sector using several imprecise measures, including length of season. Guindon
v. Pritzker, 31 F. Supp. 3d 169, 178 (D.D.C. 2014). The recreational sector
exceeded its quota in every year from 1991-2005, from 2007-2009, and from
2011-2013. 2 The Gulf Council has largely responded to these violations by
shortening the fishing season. 79 Fed. Reg. 27,768, 27,768-69 (May 15, 2014)
(Emergency Rule To Revise the Recreational Accountability Measures and
Revise the 2014 Recreational Fishing Season for Red Snapper in the Gulf of
Mexico). The season in 2014 was only nine days long. Id. at 27,770.
NMFS is responsible for ensuring that the entire recreational Gulf
harvest does not exceed the recreational quota, taking into account harvest in
both federal and state waters. See 50 C.F.R. § 622.8(a). While the Gulf Council
has shortened the fishing season in federal waters, the Gulf states have
responded by loosening restrictions in state waters: in 2014, while the season
in federal waters was nine days long, Mississippi and Alabama waters were
open for 21 days, Florida for 52 days, Louisiana for 286 days, and Texas for 365
days. Only private anglers with boats can take advantage of the state seasons;
federal regulations require federally permitted charter boats to comply with
the federal regulations, which “are more restrictive than state regulations . . .
regardless of where the fish are harvested.” 50 C.F.R. § 622.20(a)(1). And
while there has been a moratorium on the issuance of new charter vessel
permits for Gulf reef fish since 2003, “there is no limit to the number of anglers
fishing from private recreational vessels that target reef fish species.” 80 Fed.
Reg. 3541, 3,542 (January 23, 2015) (Notice of Proposed Amendment 40).
In 2013, the Gulf Council and NMFS proposed Amendment 40 as a
means to address problems that had arisen with the red snapper fishery. In
2 The Charter Fisherman’s Association notes in its brief that “2006 and 2010 were
unusual years, because 2006 followed Hurricanes Katrina and Rita and 2010 was the year of
the Deepwater Horizon oil spill.”
4
Case: 16-30137 Document: 00513837458 Page: 5 Date Filed: 01/17/2017
No. 16-30137
the notice of proposed rulemaking, the Secretary explained, “Establishing
separate components [for charter and private anglers] is . . . intended to
provide a basis for flexible management that can be tailored to the needs of
each component, thereby reducing the likelihood for recreational quota
overruns which could negatively impact the rebuilding of the red snapper
stock.” Id. The Secretary also described how the privileged position of private
anglers—in particular, the access to state waters during state seasons and the
lack of a limit on private vessels targeting red snapper—had adversely affected
the charter industry, explaining that “[b]y establishing separate sectors,
NMFS intends to stabilize the Federal for-hire component’s participation in
the sector.” Id.
The Final Rule, issued in 2015, contains measures to establish two
components within the recreational sector for Gulf of Mexico red snapper: a
federal charter component and a private angling component. 80 Fed. Reg.
22,422 (April 22, 2015) (Final Rule Implementing Amendment 40). The Final
Rule allocates the red snapper recreational quota between these two
components and establishes separate red snapper season closure provisions for
the two components. Id. Each component’s season will begin on June 1 and
the season length will be projected from each component’s annual catch target.
Id. at 22,423. The separate component quotas and associated management
measures are only effective for the 2015, 2016, and 2017 fishing years, after
which they sunset unless the Gulf Council takes further action. Id. The Final
Rule reiterated NMFS’s finding that Amendment 40 will provide a basis for
increased flexibility in future management of the recreational sector, and
reduce the likelihood of recreational quota overruns, which could negatively
impact the rebuilding of the red snapper stock. Id. at 22,422.
The CCA filed this action against the Secretary of Commerce, the
Director of NOAA, and the Director of NMFS (collectively, the Secretary)
5
Case: 16-30137 Document: 00513837458 Page: 6 Date Filed: 01/17/2017
No. 16-30137
challenging Amendment 40 and the Final Rule in late April, 2015. The Charter
Fisherman’s Association (the CFA), which represents charter fishing
businesses, intervened as a defendant. The parties filed cross-motions for
summary judgment; on January 5, 2016, the district court granted the
defendants’ and intervenor-defendants’ motions. This appeal followed.
II
We review a grant of summary judgment de novo, applying the same
standard as the district court. Louisiana Crawfish Producers Ass’n-W. v.
Rowan, 463 F.3d 352, 355 (5th Cir. 2006). On appeal, the CCA argues that: (1)
the MSA prohibits the Gulf Council from regulating charter fishing separately
from other recreational fishermen; (2) the Gulf Council and the NMFS failed
to adequately “assess, specify, and analyze” the likely economic and social
effects of Amendment 40; and (3) the selection of data ranges used to calculate
quota allocations was arbitrary and capricious. We address each argument in
turn.
A. Subquotas within the Recreational Sector
In reviewing an agency’s construction of a statute that it is tasked with
administering, this court follows the two-step framework set out by the
Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). “First, always, is the question whether Congress has
directly spoken to the precise question at issue. If the intent of Congress is
clear, that is the end of the matter; for the court, as well as the agency, must
give effect to the unambiguously expressed intent of Congress.” Id. at 842-43.
However, “if the statute is silent or ambiguous with respect to the specific
issue, the question for the court is whether the agency’s answer is based on a
permissible construction of the statute.” Id. at 843. The agency’s view “governs
if it is a reasonable interpretation of the statute—not necessarily the only
possible interpretation, nor even the interpretation deemed most reasonable
6
Case: 16-30137 Document: 00513837458 Page: 7 Date Filed: 01/17/2017
No. 16-30137
by the courts.” Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 (2009)
(emphasis in original).
The CCA argues that Amendment 40’s establishment of two components
within the recreational sector for Gulf of Mexico red snapper—a federal charter
component and private angling component—conflicts with the unambiguously
expressed intent of Congress in adopting Section 407. Specifically, the CCA
argues that “[t]he words of 16 U.S.C. § 1883(d) on their face prohibit a separate
charter fishing quota,” and that “[t]he plain meaning of 16 U.S.C. § 1883(d) is
also shown by two canons of statutory interpretation.” We find neither of these
arguments persuasive.
As to the former, the CCA begins from a false premise: Amendment 40
does not in fact create a “separate” charter fishing quota. Rather, it creates a
sub-quota for charter fishing within the recreational sector. See 80 Fed. Reg.
22,422, 22,422 (“This final rule contains measures to establish two components
within the recreational sector for Gulf of Mexico . . . red snapper (a Federal
charter vessel/headboat (for-hire) component and private angling component).”
(emphasis added)). This is not a mere semantic distinction: Amendment 40
requires that all recreational landing—whether by private or charter anglers—
cease when the total sector quota of 5.390 million pounds is reached. See 80
Fed. Reg. 22,422, 22,430. There is no language within Section 407 that
prohibits the subdivision of the recreational or commercial fishing quotas. See
16 U.S.C. § 1883(d)(1).
The CCA’s argument that two canons of statutory interpretation
demonstrate that Section 407 prohibits the establishment of sub-quotas is
equally unconvincing. First, the CCA argues that the canon of expressio unius
est exclusio alterius militates in favor of its position. This canon holds that
“expressing one item of a commonly associated group or series excludes
another left unmentioned.” United States v. Vonn, 535 U.S. 55, 65 (2002). The
7
Case: 16-30137 Document: 00513837458 Page: 8 Date Filed: 01/17/2017
No. 16-30137
CCA argues that this canon supports its argument because “Congress’
mandate in 16 U.S.C. § 1883(d) for two quotas prohibits NMFS from creating
a third quota,” and “Congress’ mandate that the recreational fishing quota
‘shall include charter fishing’ implies exclusion of authority to create a
separate charter fishing quota.” However, as previously discussed,
Amendment 40 does not create a separate quota for charter fishing; the sub-
quotas for private and charter anglers are included within the recreational
fishing quota. 80 Fed. Reg. 22,422, 22,430. And the exclusio unius canon
cannot be used to read Section 407 as prohibiting the creation of sub-quotas.
As the Supreme Court has explained, the canon does not apply “unless it is fair
to suppose that Congress considered the unnamed possibility and meant to say
no to it.” Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1175 (2013) (quoting
Barnhart v. Peabody Coal Co., 537 U.S. 149, 169 (2003)). Nothing in the text
or the legislative history of Section 407 suggests that it would be fair to suppose
that Congress considered the possibility that the Gulf Council would opt to
subdivide the recreational sector and meant to prohibit it from doing so. See
16 U.S.C. § 1883(d)(1); S. Rep. No. 104-276, 104th Cong., 2nd Sess. (May 23,
1996).
The CCA next argues that the canon that a specific statute prevails over
an inconsistent general statute supports its position. “The general/specific
canon is perhaps most frequently applied to statutes in which a general
permission or prohibition is contradicted by a specific prohibition or
permission. To eliminate the contradiction, the specific provision is construed
as an exception to the general one.” RadLAX Gateway Hotel, LLC v.
Amalgamated Bank, 132 S. Ct. 2065, 2071 (2012). The CCA argues that,
because the specific language of Section 407 “conflicts” with the general
authorization in 16 U.S.C. § 1853(b)(3)(A) for NMFS to establish regulatory
quotas for fishery sectors, the later-enacted, specific language should apply.
8
Case: 16-30137 Document: 00513837458 Page: 9 Date Filed: 01/17/2017
No. 16-30137
However, we perceive no conflict between the two provisions. In promulgating
Amendment 40, the Secretary heeded Section 407’s instruction and
“establish[ed] separate quotas for recreational fishing (which, for the purposes
of this subsection shall include charter fishing) and commercial fishing.” 16
U.S.C. § 1883(d)(1). The fact that charter fishing is included within the
recreational fishing sector as one of two distinct components is immaterial.
The CCA does not challenge the district court’s finding that, viewing
Section 407 as ambiguous on the issue of sub-quotas, the interpretation of
Section 407(d) to allow sub-quotas is permissible under step two of Chevron.
Nor does the CCA challenge the district court’s finding that the Secretary had
a “rational basis for [its] decision to subdivide the recreational quota.” Those
challenges are therefore forfeited. See Cinel v. Connick, 15 F.3d 1338, 1345
(5th Cir. 1994) (“An appellant abandons all issues not raised and argued in its
initial brief on appeal.”).
Amendment 40 does not create a separate quota for charter fishing; it
subdivides the recreational sector into private and charter components. The
directive to “establish separate quotas for recreational fishing (which, for the
purposes of this subsection shall include charter fishing) and commercial
fishing” does not unambiguously prohibit the Secretary from creating sub-
quotas within the recreational sector. Even assuming, arguendo, that a
prohibition on sub-quotas is a reasonable interpretation of the section, it could
not be said that “Congress has directly spoken to the precise question at issue.”
Chevron, 467 U.S. at 842. Because Section 407 does not clearly prohibit the
creation of sub-quotas, we affirm the district court’s grant of summary
judgment to the Secretary on this issue.
B. Economic and Social Impact Analysis
In reviewing an FMP or an amendment to an FMP, this court’s task “is
not to review de novo whether the amendment complies with [the ten National
9
Case: 16-30137 Document: 00513837458 Page: 10 Date Filed: 01/17/2017
No. 16-30137
Standards] but to determine whether the Secretary’s conclusion that the
standards have been satisfied is rational and supported by the record.” C & W
Fish Co. v. Fox, 931 F.2d 1556, 1562 (D.C. Cir. 1991); see also Alaska Factory
Trawler Ass’n v. Baldridge, 831 F.2d 1456, 1460 (9th Cir. 1987); Maine v.
Kreps, 563 F.2d 1043, 1050-51 (1st Cir. 1977). However, when a challenge to
an FMP is based on the Secretary’s interpretation of the MSA, we apply the
Chevron analysis. 467 U.S. at 843. The CCA argues that the Secretary failed
to perform her duties under National Standards 8 and 2 to use the best
available economic and social data to minimize adverse economic impacts of
Amendment 40 and under 16 U.S.C. § 1853(a)(9) to assess, specify, and analyze
the economic and social impacts of Amendment 40 and to include these
findings in a Fishery Impact Statement (FIS).
No federal appellate court has yet interpreted the requirements of
§ 1853(a)(9). However, the two district courts that have considered challenges
brought under § 1853(a)(9) agree that “[t]he FIS requirement is . . . procedural,
not substantive,” and that it is satisfied where NMFS produces the required
assessments, without respect to their conclusions. City of New Bedford v.
Locke, No. CIV.A. 10-10789-RWZ, 2011 WL 2636863, at *6 (D. Mass. June 30,
2011), aff’d sub nom. Lovgren v. Locke, 701 F.3d 5 (1st Cir. 2012); accord
Coastal Conservation Ass’n v. Blank, No. 2:09-CV-641-FTM-29, 2011 WL
4530544, at *7 (M.D. Fla. Sept. 29, 2011) (“The issue before the Court in the
Section 1853(a)(9) challenge . . . is not whether the conclusions on how [the
proposed FMP amendment] will likely affect the recreational fishing sector are
correct. Rather, the issue is whether the [NMFS] arrived at the answer only
after complying with the obligation to assess, specificy, and analyze how [the
amendment] would likely affect the recreational fishing sector.”). We agree
with this interpretation of § 1853(a)(9).
10
Case: 16-30137 Document: 00513837458 Page: 11 Date Filed: 01/17/2017
No. 16-30137
National Standard 8 requires the NMFS to “take into account the
importance of fishery resources to fishing communities by utilizing economic
and social data.” 16 U.S.C. § 1851(a)(8). The First Circuit has noted that “the
required analysis of alternatives and impacts is subject to a rule of reason, for
study could go on forever.” Little Bay Lobster Co. v. Evans, 352 F.3d 462, 470
(1st Cir. 2003). “About the best a court can do is to ask whether the Secretary
has examined the impacts of, and alternatives to, the plan [s]he ultimately
adopts and whether a challenged failure to carry the analysis further is clearly
unreasonable, taking account of the usual considerations (e.g., whether
information is available and whether the further analysis is likely to be
determinative).” Id. In addition, the First Circuit has observed that “[t]he
plain language of [National Standard] 8 and its advisory guidelines make clear
that these obligations are subordinate to the MSA’s overarching conservation
goals.” Lovgren, 701 F.3d at 35. Indeed, the guidelines specifically state,
“Deliberations regarding the importance of fishery resources to affected fishing
communities . . . must not compromise the achievement of conservation
requirements and goals of the FMP.” 50 C.F.R. § 600.345(b)(1).
National Standard 2 states that “conservation and management
measures shall be based upon the best scientific information available.” 16
U.S.C. § 1851(a)(2). According to the advisory guidelines, “best scientific
information” under National Standard 2 “includes, but is not limited to,
information of a biological, ecological, economic, or social nature.” 50 C.F.R.
§ 600.315(b)(1). However, “[t]he fact that scientific information concerning a
fishery is incomplete does not prevent the preparation and implementation of
an FMP.” Id. at § 600.315(e)(2). Our sister circuits have given great latitude
to the Secretary in determining what is the best information available. See
Gen. Category Scallop Fishermen v. Sec’y, U.S. Dep’t of Commerce, 635 F.3d
11
 Case: 16-30137 Document: 00513837458 Page: 12 Date Filed: 01/17/2017
No. 16-30137
106, 115 (3d Cir. 2011); Washington Crab Producers, Inc. v. Mosbacher, 924
F.2d 1438, 1448-1449 (9th Cir. 1990).
The CCA first asserts that 16 U.S.C. § 1853(a)(9) and National Standard
8 impose an affirmative duty to collect and generate only quantitative, rather
than qualitative, predictions of economic and social effects. In support it points
to Merriam-Webster’s definition of data as “factual information (as
measurements or statistics)” and argues that “it is clear that Amendment 40
and the documents supporting it did not contain a single piece of economic or
social ‘data’” so defined.
The CCA cites no law that supports its interpretation of § 1853(a)(9) and
National Standard 8. It is not at all clear that Congress intended to limit the
analysis of economic and social impacts to quantitative data, and it is evident
that the Secretary has long interpreted “data” in National Standard 8 to mean
both qualitative and quantitative data. The advisory guidelines are
unambiguous on this point: “Qualitative and quantitative data may be used,
including information provided by fishermen, dealers, processors, and fisheries
organizations and associations.” 50 C.F.R. § 600.345(c)(2). The Secretary’s
interpretation of “data” is reasonable. See Chevron, 467 U.S. at 843. Indeed,
in ConocoPhillips Co. v. United States Environmental Protection Agency, 612
F.3d 822, 841 (5th Cir. 2010), we upheld the EPA’s reliance on qualitative data
against a similar challenge.
The CCA next argues that the Secretary should have acquired or
produced quantitative data. This argument is also unpersuasive. National
Standard 2 states that “conservation and management measures shall be
based upon the best scientific information available.” Id. at § 1851(a)(2)
(emphasis added). The Secretary stated in the preamble to the Final Rule that
the additional quantitative economic analysis that the CCA demanded was not
12
Case: 16-30137 Document: 00513837458 Page: 13 Date Filed: 01/17/2017
No. 16-30137
“available” within the meaning of National Standard 2. 80 Fed. Reg. 22,422,
22,426. As the Secretary explained in the FIS and in her brief on appeal:
[T]he economic impacts of Amendment 40 on private-vessel
anglers depends on such difficult-to-predict factors as how the Gulf
States will choose to regulate the red snapper harvest in their
waters, as well as the decisions of private-vessel anglers regarding
whether to fish in State waters for red snapper or in State or
federal waters for other fish species once the red snapper quota for
the private-vessel component is met.
The National Standards do not require analysis of unpredictable, and
thus unavailable, data. See Little Bay Lobster, 352 F.3d at 470. Significantly,
the CCA does not identify any available information that the Secretary
ignored. As several of our sister circuits have held, “[i]f no one proposed
anything better, then what is available is the best.” Massachusetts ex rel. Div.
of Marine Fisheries v. Daley, 170 F.3d 23, 30 (1st Cir. 1999); see also Nw. Envt’l
Def. Ctr. v. Brennen, 958 F.2d 930, 936 (9th Cir. 1992) (rejecting a “best
scientific information available” claim because the challenger “has not pointed
to any scientific evidence inconsistent with the Secretary’s decision”);
Midwater Trawlers Coop. v. Dep’t of Commerce, 393 F.3d 994, 1004 (9th Cir.
2004) (affirming regulation based on best scientific evidence available when
“no new information” contradicted the agency’s data).
Nor is the Secretary required to “acquire or produce” the CCA’s preferred
quantitative data. As previously discussed, the advisory guidelines specify
that “[t]he fact that scientific information concerning a fishery is incomplete
does not prevent the preparation and implementation of an FMP.” 50 C.F.R.
§ 600.315(e)(2). The Act does not unambiguously require the Secretary to
produce quantitative data, and we view her interpretation of the statute’s
requirements as reasonable. See Chevron, 467 U.S. at 843. It follows from this
reasonable interpretation that the Secretary is not obligated to produce further
data when she possesses some, albeit incomplete, scientific information. See,
13
Case: 16-30137 Document: 00513837458 Page: 14 Date Filed: 01/17/2017
No. 16-30137
e.g., Ecology Ctr., Inc. v. U.S. Forest Serv., 451 F.3d 1183, 1194 n.4 (10th Cir.
2006) (citing Recreational Fishing Alliance v. Evans, 172 F. Supp. 2d 35, 44
(D.D.C. 2001)) (“An agency is not required to collect additional evidence under
the Magnuson-Stevens Fishery Conservation and Management Act.”);
Washington Crab Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1448-1449 (9th
Cir. 1990) (“[t]here simply is no requirement that the Secretary do what the
appellants insist” when it comes to developing and analyzing the effects of an
FMP).
Furthermore, the FIS prepared by the Gulf Council was based on
significant background data, both quantitative and qualitative. The
quantitative data includes, for example, a ranking of communities based upon
the number of charter permits and charter permits divided by population;
species-specific harvest data for headboats (boats renting individual seats to
recreational anglers), linked to specific communities through the homeport
identified for each vessel; a ranking of communities based on the number of
federal for-hire permits; estimates of the number of red snapper target trips
for shore, charter, and private/rental boat anglers; and estimates of the
average red snapper target effort and the associated business activity.
After considering this data, the Council gave its analysis of the
conservation, economic, and social impacts of the Amendment and its
alternatives. Discussing the social effects of the establishment of private and
charter components within the recreational section, the Council concluded:
Indirect social benefits for the private angling component would be
expected to result from management measures accounting for
their specific needs and characteristics, including regional
preferences for access to fishing opportunities. For the federal for-
hire component, indirect social benefits would primarily result
from mitigating the trend of decreasing access to red snapper by
the federal for-hire component. For-hire operators, their angler
passengers, and the communities where these vessels are
14
Case: 16-30137 Document: 00513837458 Page: 15 Date Filed: 01/17/2017
No. 16-30137
homeported would then be expected to benefit as a result of
increased stability of access to red snapper.
With respect to the economic effects of the subdivision, the Council noted that
the change “could potentially result in a more predictable season length, better
business planning, and improvements to the economic performance of for-hire
businesses,” while admitting that “the establishment of separate components
and allocations to each component would limit the private angling component
to harvesting the proportion of the recreational red snapper quota allocated to
them.”
Although the Council’s analysis does not offer quantitative predictions of
the effects that Amendment 40 might have on the fishing community, the
Council used the best available data to reasonably “assess, specify, and
analyze” the likely economic and social effects of Amendment 40. 16 U.S.C.
§§ 1851(a)(2), 1851(a)(8), 1853(a)(9). We therefore conclude that the “basic
obligation to assess the impacts of, and alternatives to, the adopted plan as a
whole was achieved.” See Little Bay Lobster Co., 352 F.3d at 470.
C. Allocations
Finally, the CCA argues that the Secretary’s decision to base allocations
on the average of two sets of catch data, one covering 2006-2013 and one
covering 1986-2013, was arbitrary and capricious. We may set aside an agency
action only if it is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A); Buffalo Marine Services,
Inc., 663 F.3d at 753. “Under this highly deferential standard of review, a
reviewing court has the least latitude in finding grounds for reversal.”
Louisiana Crawfish Producers, 463 F.3d at 355 (quoting Sabine River Auth.,
951 F.2d at 678). When determining whether an agency action was arbitrary
or capricious, our task “is to ensure that the agency ‘considered the relevant
factors and articulated a rational connection between the facts found and the
15
Case: 16-30137 Document: 00513837458 Page: 16 Date Filed: 01/17/2017
No. 16-30137
choice made.’” Sierra Club v. U.S. Fish & Wildlife Serv., 245 F.3d 434, 444
(5th Cir. 2001) (quoting Baltimore Gas & Elec. Co. v. Natural Resources
Defense Council, Inc., 462 U.S. 87, 105 (1983)).
Amendment 40 established the allocation between the federal charter
and private angling components. The Secretary determined that a fair and
equitable allocation between the charter and private-vessel components would
result from using both historic harvest information, spanning the period from
1986 to 2013, as well as more recent harvest information. 80 Fed. Reg. 22,422,
22,429. The CCA argues that “[t]here is simply no rational basis for relying on
1986 data to make a resource allocation decision for 2015-2017,” and that the
use of catch history dating back to 1986 did not capture the “dramatic shift of
recreational fishing away from charter boats and toward private angling,”
which it deems the “most dominant” change in the fishery.
Before coming to its decision, the Council considered eight alternative
sets of harvest data, covering different spans of time. These alternatives were
discussed at length in the FIS, as well as in the preamble to the proposed rule.
See 80 Fed. Reg. 3,541, 3,543. The Secretary explained:
The Council selected the alternative that combined the longest
time period of available landings (1986-2013) with landings from
a more recent range of years (2006-2013). Averages from each of
the two time periods were then equally weighted to determine the
allocation. The Council selected this allocation because it reflects
both historical changes in the recreational sector as well as current
conditions. It is also an approach used by the Council in setting
allocations for other species (e.g., the jurisdictional apportionment
of black grouper and yellowtail snapper resources between the
Gulf and South Atlantic Councils).
Id. In the FIS, the Gulf Council explained these “historical changes,” which
include the shortening of the fishing season in federal waters, restricting the
ability of charter anglers to fish, and the loosening of restrictions in state
waters, increasing the ability of private anglers to fish. The Council described
16
Case: 16-30137 Document: 00513837458 Page: 17 Date Filed: 01/17/2017
No. 16-30137
how the changes affected the more recent landing data. The Council justified
the selection of the mixed data set by explaining that it would “balance the
history of the recreational sector with more current conditions.”
The record demonstrates that the Secretary considered the relevant
factors and provided a rational justification for her decision to include older
data in making its allocations. As a result, we find the CCA has failed to carry
its burden to show that this decision was arbitrary and capricious. See Sierra
Club, 245 F.3d at 444.
III
For the foregoing reasons, we AFFIRM the judgment of the district court.
17