Coastal Conservation Ass'n v. U.S. Dep't of Commerce

• Decision Date: 17 January 2017
• Docket Number: No. 16-30137,16-30137
• Citation: 846 F.3d 99
• Parties: 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
• Court: U.S. Court of Appeals — Fifth Circuit

846 F.3d 99

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

No. 16-30137

United States Court of Appeals, Fifth Circuit.

Filed January 17, 2017

846 F.3d 103

Mark C. Rutzick, Oak Hill, VA, Albert Kirk Gasperecz, Esq., Adams & Reese, L.L.P., New Orleans, LA, for Plaintiffs–Appellants.

David C. Shilton, Esq., Mark A. Brown, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendants–Appellees.

Adam Babich, Michelle Felterman, Tulane University, Tulane Environmental Law Clinic, New Orleans, LA, for Intervenor–Appellee

Monica Burke Goldberg, Environmental Defense Fund, Washington, DC, J. Timothy Hobbs, K & L Gates, L.L.P., Seattle, WA, for Amici Curiae.

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 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.

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

846 F.3d 104

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 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 the notice of proposed rulemaking, the Secretary explained,

846 F.3d 105

"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) 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...