JH Miles & Co., Inc. v. Brown

• Decision Date: 04 December 1995
• Docket Number: Civ. A. No. 2:95cv595.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: J.H. MILES & CO., INC., Chincoteague Seafood Co., Inc., Blount Seafood Corp., Cape May Foods, Inc., Mid-Atlantic Foods, Inc., Rich-Seapak Corp., Nanticoke Seafood Corp., Sea Watch International, Ltd., Surfside Products, Inc., South Jersey Surf Clam, Inc., Borden, Inc., F/V Enterprise, Inc., Beth Dee Bob Partnership, F/V Seaquest, Inc., Plaintiffs, v. Ronald H. BROWN, Secretary of Commerce, Defendant.

910 F. Supp. 1138

J.H. MILES & CO., INC., Chincoteague Seafood Co., Inc., Blount Seafood Corp., Cape May Foods, Inc., Mid-Atlantic Foods, Inc., Rich-Seapak Corp., Nanticoke Seafood Corp., Sea Watch International, Ltd., Surfside Products, Inc., South Jersey Surf Clam, Inc., Borden, Inc., F/V Enterprise, Inc., Beth Dee Bob Partnership, F/V Seaquest, Inc., Plaintiffs, v. Ronald H. BROWN, Secretary of Commerce, Defendant.

Civ. A. No. 2:95cv595.

United States District Court, E.D. Virginia, Norfolk Division.

December 4, 1995.

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Waverley Lee Berkley, III, McGuire, Woods, Battle & Boothe, Norfolk, VA, Stanley M. Brand, David E. Frulla, Brand & Lowell, Washington, DC, for J.H. Miles & Co., Inc., Chincoteague Seafood Co., Inc., Blount Seafood Corporation, Cape May Foods, Inc., Mid-Atlantic Foods, Inc., Rich-Seapak Corporation, Nanticoke Seafood Corp., Sea Watch International, Ltd., Surfside Products, Inc., South Jersey Surf Clam, Inc., Borden, Inc., F/V Enterprise, Inc., Beth Dee Bob Partnership, F/V Seaquest, Inc.

George M. Kelley, III, United States Attorney's Office, Norfolk, VA, Samuel D. Rauch, III, John L. Marshall, U.S. Dept. of Justice, Env. & Natl. Res. Div., Wildlife & Marine Res. Section, Washington, DC, for Ronald H. Brown.

Geoffrey Footner Birkhead, Vandeventer, Black, Meredith & Martin, Norfolk, VA, for BJ Clam Company, Inc., Eastern Shore Seafood Products, Inc.

OPINION AND ORDER

DOUMAR, District Judge.

Plaintiffs bring this action challenging the 1995 commercial catch quotas for surf clams and ocean quahogs set by the Secretary of Commerce, Ronald H. Brown, and his designees, and asking that the quotas be set aside. For the reasons discussed below, the Court finds that the plaintiffs' request should be DENIED.

I. Factual Background

Plaintiffs are a coalition of surf clam and ocean quahog¹ processors, as well as owners and operators of fishing vessels from up and down the Eastern Seaboard.² Plaintiffs bring this action against the Honorable Ronald H. Brown, Secretary of the Department of Commerce (the "Secretary"), in his official capacity, pursuant to the Magnuson Fishery Conservation and Management Act, 16 U.S.C. § 1801 et seq. (the "Magnuson Act") seeking review of the 1995 commercial catch quotas for surf clams and ocean quahogs (the "1995 quota").

A. The Magnuson Act

The Magnuson Act was enacted in 1976 to regulate fishery resources in federal waters off the coasts of the United States. 16 U.S.C. § 1801(b). The Act contains several objectives. Most relevant to the case at bar are the dual commands of "promoting domestic commercial and recreational fishing under sound conservation and management principles." 16 U.S.C. § 1801(b)(3); see also 16 U.S.C. § 1851(a)(1) ("Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery....").

The Magnuson Act contains seven "National Standards" for fishery conservation and management.³ Under the Act, Regional Fishery Management Councils promulgate fishery management plans ("FMPs") which regulate fishing within their respective regions. 16 U.S.C. § 1852(h). In general, fisheries off the Atlantic Coast are managed by three different councils: the New England, Mid-Atlantic, and South Atlantic Fishery Management Councils. 16 U.S.C. § 1852(a)(1)-(3). Management of the surf clam and ocean quahog fisheries is the sole responsibility of the Mid-Atlantic Council. 50 C.F.R. § 652.21 (1994).

B. The Quota-Setting Process

1. In General

In establishing the annual catch quotas, the Mid-Atlantic Fishery Management Council ("Council") operates within the parameters of what the parties call "Amendment 8," a fishery management plan (FMP) promulgated in 1990, and set forth in 50 C.F.R. Part 652. Amendment 8 provides a range within which annual quotas must be set. Surf clams quotas must be within a range of 1.85-3.4 million bushels per year; ocean quahog quotas must be within a range of 4-6 million bushels per year. 50 C.F.R. § 652.21.

The Council recommends the annual quotas to the Secretary, within the aforementioned ranges, based on several factors listed in Amendment 8. The Council must consider "current stock assessments, catch reports, and other relevant information" concerning:

(i) Exploitable and spawning biomass relative to the optimum yield;

(ii) Fishing mortality rates relative to the optimum yield;

(iii) Magnitude of incoming recruitment;⁴

(iv) Projected effort and corresponding catches;

(v) Geographical distribution of the catch relative to the geographical distribution of the resource; and

(vi) Status of areas previously closed to surf clam or ocean quahog fishing that are to be opened during the year and areas likely to be closed to fishing during the year.

50 C.F.R. § 652.21. The quota is to be set at a level "most consistent" with the objectives of the FMP. Id.

In preparing to recommend the quotas, the staff of the Council review all available data and subject the information to peer review before two committees of the Council: a "Scientific and Statistical Committee" and a "Surf Clam and Ocean Quahog Committee" Def. Br. at 7. These committees review the information and present a proposal to the Council. The Council conducts a public meeting to discuss the proposals, and ultimately makes a formal proposal to the National Marine Fisheries Service, an agency of the Department of Commerce. The Fisheries Service funnels the recommendation to the Secretary. In setting the quotas, the Secretary may deviate from the recommendations of the Council only if he can demonstrate that they "violate the national standards of the Magnuson Act" and the objectives of the FMP. 50 C.F.R. § 652.21.

2. The 1995 Quota-setting Process

In September, 1994, the Council began formulating its recommendations for the 1995 quotas. The Council used a mathematical formula comprised of three numbers: (1) recent quota or catch data (to estimate the current harvest rate), (2) the "supply years" remaining at the current harvest rate (a "supply year" prediction is "an estimate of the number of years that remain before the resource is depleted or `fished out'"); and (3) the "supply year policy," a number chosen by the Council as a "policy" which would allow the fishery to continue at the same rate for a given number of years. The "supply year policy" for surf clams is ten years; for ocean quahogs, it is 30 years.

For surf clams, the application of the formula, which is set forth precisely in the footnote below, resulted in a quota of 2.565 million bushels.⁵ For ocean quahogs, the application of the formula yielded a quota of 4.9 million bushels.⁶ Both quotas were below the 1994 levels. The 1995 surf clam quota was ten percent below the year before; the ocean quahog quota was a reduction of nine percent from 1994. Pl. Br. at 15.⁷

Obviously critical to these calculations are the numbers used in the formula. Plaintiffs allege that both the "supply years" (the multiplicand) and the "supply year policy" (the divisor) were too conservative, and that a higher number should have been chosen, which would have yielded a higher quota. It bears emphasis that the plaintiffs do not seek a quota higher than 1994; rather, they seek retention of the 1994 quota levels.

Underlying all this is the scientific analysis of the state of the fishery, embodied in the "Stock Assessment Reports," which are prepared every few years by the Northeast Fishery Science Center's (NEFSC)⁸ Stock Assessment Review Committee. Def. Br. at 7. The assessments are designed, as the term suggests, to describe the "state of the fishery." The reports evaluate the size or abundance of the clam population, the trends in commercial catch data and what is referred to as commercial "effort" data,⁹ and data compiled by research survey vessels, which survey the fishery every two or three years by collecting clams in the major fishing areas over a period of several weeks.

Two facts which made the 1995 quota process different from the norm bear particular emphasis. First, in estimating biomass, or population abundance, the scientists employed a new scientific model in 1995, referred to as the "modified DeLury model." This model "combines commercial and survey abundance indices, along with annual catch data to estimate annual fishing mortality and stock sizes." A.R. 678. The "DeLury" model replaced the "area swept biomass" model previously utilized, which relied on the research vessel survey data exclusively. Id. The decision to shift to a new model had been recommended in the 1993 stock assessment, also known as the Report of the 15th Stock Assessment Workshop (15th SAW). A.R. 30, 45.¹⁰

Second, there was substantial controversy surrounding the research survey conducted in the summer of 1994 by the NEFSC research vessel, the Delaware II. The survey results suggested a large increase in the surf clam and ocean quahog population in most of the major areas of the fishery. Because the data produced by the 1994 survey were so at variance with 19 previous surveys conducted over the past three decades, the Council, and by extension the Secretary, decided that the results were a scientific anomaly, and could not be relied upon in setting the 1995 quotas. The results were thus not incorporated into the most recent Stock Assessment Report and have been "set aside," pending further scientific review. A.R. 1072. The plaintiffs' case rests largely on the 1994 survey. They contend that the survey indicates a significant recruitment to the fishery over the past several years, that the stocks are more abundant than previously believed, and that setting aside the 1994 survey in establishing the 1995 quotas, inter alia, violated several standards of the Magnuson Act.

These contentions are analyzed in detail below.

II. Procedural Background

The action arises from the Secretary's...