Personal Watercraft Industry Ass'n v. Department of Commerce, s. 93-5336

• Decision Date: 03 March 1995
• Docket Number: Nos. 93-5336,s. 93-5336
• Citation: 48 F.3d 540
• Parties: , 310 U.S.App.D.C. 364, 25 Envtl. L. Rep. 20,681 PERSONAL WATERCRAFT INDUSTRY ASSOCIATION; A. Mason Killebrew, Jr.; Derek Coppersmith, Appellees/Cross-Appellants, v. DEPARTMENT OF COMMERCE; National Oceanic and Atmospheric Administration, Appellants/Cross-Appellees. & 93-5348.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 540

48 F.3d 540

40 ERC 1411, 310 U.S.App.D.C. 364, 25

Envtl. L. Rep. 20,681

PERSONAL WATERCRAFT INDUSTRY ASSOCIATION; A. Mason

Killebrew, Jr.; Derek Coppersmith, Appellees/Cross-Appellants, v. DEPARTMENT OF COMMERCE; National Oceanic and Atmospheric

Administration, Appellants/Cross-Appellees.

Nos. 93-5336 & 93-5348.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 6, 1995.

Decided March 3, 1995.

Ellen J. Durkee, Atty., U.S. Dept. of Justice, Washington, DC, argued the cause for appellants. With her on the briefs were Lois J. Schiffer, Acting Asst. Atty. Gen., Charles R. Shockey and David C. Shilton, Attys., U.S. Dept. of Justice, Washington, DC.

Robert B. Dickson, Washington, DC, argued the cause for appellees. With him on the brief were Michael A. Wiegard and Randall M. Stone, Washington, DC.

Before: BUCKLEY, RANDOLPH, and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

These are cross-appeals from the district court's judgment setting aside one of the regulations designed to protect and preserve the Monterey Bay National Marine Sanctuary off the central California coast. The regulation governs the use of "motorized personal watercraft"--jet skis, wet bikes, miniature speed boats, air boats, hovercraft, and the like--on the Sanctuary's waters. The district court thought it arbitrary to regulate this sort of small craft without regulating other vessels. We reverse this portion of the court's judgment.

I

The Monterey Bay National Marine Sanctuary encompasses 4000 square nautical miles of coastal and ocean waters, and the submerged lands thereunder. It is the nation's largest ocean sanctuary, spreading seaward as far as forty-six nautical miles, and extending along the California coast from the Gulf of Farallones in the north to San Simeon and Cambria Rock in the south. It encompasses the Monterey Peninsula, the "finest meeting of land and water in existence," so Robert Louis Stevenson believed. The area is home to thirty-one species of marine mammals, including the sea otter and twenty-one other threatened or endangered species protected under the Endangered Species Act, 16 U.S.C. Secs. 1531-1544. There are large concentrations of whales, pinnipeds (e.g., seals) and seabirds. Fish stocks are substantial. Varieties of crustaceans and other invertebrates abound. Among the Sanctuary's diverse flora are forests of giant kelp growing from the seabed, with fronds towering to the surface as much as 175 feet above. Residents and visitors use the Sanctuary for kayaking, fishing, scuba diving, surfing, sailing, swimming, and other recreational activities.

Title III of the Marine Protection, Research, and Sanctuaries Act (the Act), as amended, 16 U.S.C. Secs. 1431-1439, authorizes the Secretary of Commerce to designate as national marine sanctuaries discrete areas of the marine environment that are "of special national significance." 16 U.S.C. Sec. 1433(a). In 1988, Congress directed the Secretary to issue a "notice of designation" under 16 U.S.C. Sec. 1434(b)(1) for the waters in the vicinity of Monterey Bay "no later than December 31, 1989." Pub.L. No. 100-627, Sec. 205(a)(3), 102 Stat. 3213, 3217 (1988). The National Oceanic and Atmospheric Administration (NOAA), to whom the Secretary had delegated authority, complied, but not until August 3, 1990, when it published in the Federal Register a notice of proposed designation, proposed implementing regulations, and a draft environmental impact statement discussing options for managing the proposed sanctuary. 55 Fed.Reg. 31,786 (Aug. 3, 1990). The agency requested comments within sixty days (by October 2, 1990).

In June 1992, after three public hearings and after receiving more than 1200 comments, NOAA issued its Final Environmental Impact Statement and, on September 18, 1992, its final regulations formalizing the designation of the Monterey Bay National Marine Sanctuary. 57 Fed.Reg. 43,310 (Sept. 18, 1992); 15 C.F.R. pt. 944.

One of the final regulations, 15 C.F.R. Sec. 944.5(a)(8), limits the operation of "motorized personal water craft," also known as "thrill craft," in the Monterey Bay Sanctuary to four designated zones and access routes, an area of fourteen square nautical miles. The regulation defines "motorized personal watercraft" as:

any motorized vessel that is less than fifteen feet in length as manufactured, is capable of exceeding a speed of fifteen knots, and has the capacity to carry not more than the operator and one other person while in operation. The term includes, but is not limited to, jet skis, wet bikes, surf jets, miniature speed boats, air boats and hovercraft.

15 C.F.R. Sec. 944.3. NOAA's final regulations did not restrict the use of other types of vessels in the Monterey Bay Sanctuary. The agency stated that it was then working with the Coast Guard to determine whether such measures were needed. 57 Fed.Reg. at 43,311-12.

In July 1992, the Personal Watercraft Industry Association, an organization consisting of manufacturers and distributors, submitted comments to NOAA opposing the restrictions placed on personal watercraft. Thereafter the agency denied the Association's petition for rulemaking to rescind the "thrill craft" regulation. 58 Fed.Reg. 15,271 (Mar. 22, 1993).

The Association and two individuals then brought this action for judicial review of the regulation in the district court. Their complaint contained four claims for relief. The first three were of a piece: the regulation was not supported by adequate evidence; the agency had no basis for regulating personal watercraft but not regulating other vessels; the record does not contain evidence to show that restricting the use of personal watercraft was "necessary or reasonable." Complaint pp 25-34. The fourth claim was that NOAA failed to respond to the Association's comments that the restrictions were unreasonable and unnecessary. Complaint p 36.

On cross-motions for summary judgment, the district court held that the restriction on personal watercraft was arbitrary and capricious because NOAA had treated personal watercraft differently from all other vessels without providing a sufficient explanation. Personal Watercraft Indus. Ass'n v. Department of Commerce, No. 93-1381, at 3 (D.D.C. Aug. 24, 1993). The court rejected the Association's claim that NOAA should have replied to its comments. Id. at 2-3 n.1.

II

A

We begin with the Association's argument that NOAA did not adequately respond to its comments. There is little to this. The comment period closed on October 2, 1990. 55 Fed.Reg. at 31,786. The Association submitted its comments in July 1992. ¹ Agencies are free to ignore such late filings, as for the most part NOAA did here. Tex Tin Corp. v. EPA, 935 F.2d 1321, 1323 (D.C.Cir.1991). The Association's tardiness cannot be excused. The 1990 notice of proposed rulemaking sufficiently alerted it to the possibility of NOAA's regulating personal watercraft. It is true that in the notice NOAA did not propose to regulate personal watercraft. But the distinct prospect of the agency's doing so was plain for all to see. Under the heading "Activities Subject to Regulation," the 1990 notice listed numerous activities "subject to regulation, including prohibition, to the extent necessary and reasonable" to ensure the successful implementation of the Sanctuary designation. 55 Fed.Reg. at 31,788. One of the activities was operating "thrill craft" in the Sanctuary. Id. To indicate what the agency had in mind, the proposed regulations included a definition of "thrill craft," a definition matching the final regulation's description of "motorized personal watercraft." Id. at 31,794. When NOAA announced the schedule for public hearings, it mentioned that "[t]wo other activities are potentially subject to regulations: commercial vessel traffic (other than fishing) and operation of 'thrill craft.' " 55 Fed.Reg. 31,798 (Aug. 3, 1990). The 1990 notice of proposed rulemaking also referred to the Draft Environmental Impact Statement; this document discussed "the serious threat" to the Sanctuary posed by personal watercraft. The 1990 notice thus "adequately frame[d] the subjects for discussion ...," Connecticut Light & Power Co. v. NRC, 673 F.2d 525, 533 (D.C.Cir.), cert. denied, 459 U.S. 835, 103 S.Ct. 79, 74 L.Ed.2d 76 (1982). Nothing more was necessary.

B

The Association complains about a "study" NOAA used in determining where personal watercraft would be allowed within the Sanctuary, but it is hard to tell exactly what the complaint is. Only two paragraphs of the Association's fifty-page brief are devoted to this topic; the summary of argument ignores it entirely. The two paragraphs are under the following heading, which does not talk directly about the study: the "personal watercraft restrictions were developed after the comment period closed and never made available for public scrutiny and comment." Appellees' Brief at 47. That of course is true with respect to NOAA's final regulations, and indeed would be true in any rulemaking proceeding in which an agency formulated its final rules in response to comments. If the heading is supposed to capture a colorable argument, we fail to see it. "Rulemaking proceedings would never end if the agency's response to comments must always be made the subject of additional comments." Community Nutrition Inst. v. Block, 749 F.2d 50, 58 (D.C.Cir.1984).

Perhaps a bit of background will clear things up. After the comment period on the proposed regulations closed in October 1990, NOAA retained Dr. James W. Rote, a marine biologist and former Director of the Office of Habitat Protection at NOAA. Dr. Rote was to "gather information about current restrictions and current areas of motorized personal watercraft use in the proposed Monterey Bay National Marine Sanctuary area" and "to develop recommended zones to which motorized personal watercraft use might be restricted."...