Black v. Pritzker

• Citation: 121 F.Supp.3d 63
• Decision Date: 10 August 2015
• Docket Number: Civil Action No. 14–782 (CKK)
• Parties: Anthony Black, et al, Plaintiffs, v. Penny Sue Pritzker, Secretary, U.S. Department of Commerce, et al, Defendants.
• Court: U.S. District Court — District of Columbia

121 F.Supp.3d 63

Anthony Black, et al, Plaintiffs,

v.Penny Sue Pritzker, Secretary, U.S. Department of Commerce, et al, Defendants.

Civil Action No. 14–782 (CKK)

United States District Court, District of Columbia.

Signed August 10, 2015

James Patrick Walsh, Lisa Beth Zycherman, Davis Wright Tremaine LLP, Washington, DC, for Plaintiffs.

Kevin W. McArdle, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, United States District Judge

Plaintiffs, Anthony Black, American Triumph LLC, Matthew James Freitas, Sea Quest LLC, Benjamin Maughan, Jr., Ocean Conquest LLC, Keith Bass, Jr., Ocean Encounter LLC, Paul Magellan, Sea Honor LLC, John Zolezzi, and Pacific Ranger LLC, bring this action against Defendants, Penny Sue Pritzker, in her official capacity as Secretary of the U.S. Department of Commerce ("Secretary"), and Kathryn D. Sullivan, in her official capacity as Administrator of the National Oceanic and Atmospheric Administration ("NOAA Administrator"), to review the final decisions of the NOAA Administrator imposing civil penalties on Plaintiffs for violations of the Western and Central Pacific Fisheries Convention Implementation Act ("WCPFCIA"), 16 U.S.C. § 6901, et seq., and/or the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. § 1361, et seq. Specifically, Plaintiffs, owners and operators of six U.S. flag tuna purse seine fishing vessels, seek an order setting aside each of the civil penalty determinations, totaling approximately $1,500,000. Presently before the Court are the parties' cross-motions for summary judgment. Upon consideration of the pleadings,¹ the relevant legal authorities, and the record as a whole, the Court GRANTS Defendants' [18] Motion for Summary Judgment and DENIES Plaintiffs' [16] Motion for Summary Judgment. Accordingly, judgment shall be entered for Defendants.

I. BACKGROUND

A. Statutory and Regulatory Framework

1. Western and Central Pacific Fisheries Convention Implementation Act

In 2007, the United States ratified the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean ("Convention"). III.G.58 at 003539.² One function of the Convention is to adopt Conservation and Management Measures ("CMMs") for members and participants of the Convention to implement through their national laws and procedures. Id. at 003541. The Western and Central Pacific Fisheries Convention Implementation Act ("WCPFCIA"), 16 U.S.C. § 6901, et seq., provides the authority for the Secretary of Commerce ("Secretary"), in consultation with the Secretary of State and the Secretary of the Department in which the Coast Guard is operating, to develop regulations to carry out the obligations of the United States under the Convention, including the implementation of CMMs. 16 U.S.C. § 6904(a). The Secretary has delegated this authority to the National Marine Fisheries Services ("NMFS"), a component of the National Oceanic and Atmospheric Administration ("NOAA") within the Department of Commerce. III.G.58 at 003541. Further, the enforcement of violations of the WCPFCIA are governed by the penalty provisions of the Magnuson–Stevens Fishery Conservation and Management Act ("Magnuson Act"). 16 U.S.C. § 6905(c).

At issue in the instant action is CMM 2008–01, the Conservation and Management Measure for Bigeye and Yellowfin Tuna in the Western and Central Pacific Ocean, which was adopted by the Commission in December 2008. Pursuant to CMM 2008–01, specific provisions target reducing fishing mortality on bigeye tuna and controlling fishing mortality on yellowfin tuna by reducing the risk of overfishing during certain periods of time in 2009, 2010, and 2011. III.G.58 at 003541. Specifically, CMM 2008–01 prohibited purse seine fishing³ on Fish Aggregation Devices ("FADs") between: August 1, 2009, and September 30, 2009; July 1, 2010, and September 30, 2010; and July 1, 2011, and September 30, 2011. III.I.1 at 003723–25. FADs were defined in CM 2008–01 as "any man-made device, or natural floating object, whether anchored or not, that is capable of aggregating fish." Id. at 003721 n.1. In addition to the prohibition on the use of FADs, CMM 2008–01 also required that during the specified periods of time, all purse seine vessels engaged in fishing were to carry on board an observer from the Regional Observer Program to monitor that the vessel did not deploy or service any FAD or associated electronic devices or fish on schools in association with FADs. Id. at 003723.

The NMFS proposed a regulation ("FAD Regulation") to implement the requirements of CMM 2008–01. The proposed rule and request for comments was published on June 1, 2009, and the final regulation was published by the National Oceanic and Atmospheric Administration ("NOAA") on August 4, 2009. III.H.1 at 003702. The final regulation indicated that the FAD prohibition period for 2009 would run from August 3, 2009, to September 30, 2009, despite the fact the regulation was not published in its final form until August 4, 2009. Id. As part of the published final regulation, the NMFS also addressed comments that it had received in response to the publication of the proposed rule. The following comment and response is relevant to the instant action:

Comment 5: During a FAD prohibition period, the following activities should not be prohibited: (1) in situations in which there are no FADs in the area of the fishing vessel, capturing a school of tuna that has aggregated under the fishing vessel; [and] (2) capturing fish that are in the vicinity of a floating object but not associated with the object....

Response: Regarding activity (1), the commenter's view is consistent with the intent of the proposed rule; however, NMFS will revise the final rule to clarify that the meaning of a FAD does not include the purse seine vessel itself. Having said that, it is important to note that under the proposed rule it would be prohibited during a FAD prohibition period to set a purse seine in an area into which fish were drawn by a vessel from the vicinity of a FAD. Regarding activity (2), NMFS does not agree. Although fish may indeed be found in the vicinity of a FAD but not necessarily associated with it, NMFS finds that in order to ensure that fishing on schools in association with FADs does not occur, it is necessary to also prohibit fishing on schools that are merely in the vicinity of FADs. Under the proposed rule, this would be accomplished by prohibiting setting a purse seine within one nautical mile of a FAD.

Id. at 003704.

In relevant part, the final regulation provided that the owners, operators, and crew of fishing vessels of the United States during the specified period shall not:

(1) Set a purse seine around a FAD or within one nautical mile of a FAD.

(2) Set a purse seine in a manner intended to capture fish that have aggregated in association with a FAD, such as by setting the purse seine in an area from which a FAD has been moved or removed within the previous eight hours, or setting the purse seine in an area in which a FAD has been inspected or handled within the previous eight hours, or setting the purse seine in an area into which fish were drawn by a vessel from the vicinity of a FAD.

(3) Deploy a FAD into water.

(4) Repair, clean, maintain, or otherwise service a FAD, including any electronic equipment used in association with a FAD, in the water or on a vessel while at sea except that:

(i) A FAD may be inspected and handled as needed to identify the owner of the FAD, identify and release incidentally captured animals, un-foul fishing gear, or prevent damage to property or risk to human safety; and

(ii) A FAD may be removed from the water and if removed may be cleaned, provided that it is not returned to the water.

Id. at 003714. Based on the comments to the proposed regulation, the NMFS revised the definition of a FAD "to clarify that it does not include a fishing vessel, provided that the fishing vessel is not used for the purpose of aggregating fish." Id.at 003710. As such, a FAD was defined in the final version of the regulation as "any artificial or natural floating object, whether anchored or not and whether situated at the water surface or not, that is capable of aggregating fish, as well as any objects used for that purpose that are situated on board a vessel or otherwise out of the water. The meaning of FAD does not include a fishing vessel, provided that the fishing vessel is not used for the purpose of aggregating fish. " Id. at 003712–13 (emphasis added). The final FAD Regulation also implemented the requirement that an observer be on board any vessel that was engaging in fishing during the specified time periods. Id. at 003713.

2. Marine Mammal Protection Act

The Marine Mammal Protection Act ("MMPA"), 16 U.S.C. § 1361, et seq., makes it unlawful "for any person subject to the jurisdiction of the United States or any vessel or other conveyance subject to the jurisdiction of the United States to take any marine mammal on the high sea." 16 U.S.C. § 1372(a)(1). "Take" means "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." Id. at § 1362(13). Further, the MMPA defines "harassment" as "any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering." Id. at § 1362(18)(A).

Relevant to the instant action is the exception under the MMPA for the incidental taking of marine mammals during commercial fishing operations. Pursuant to 16 U.S.C. § 1387(a)(2), marine mammals may be taken incidentally in the course of commercial fishing operations and the Secretary of Commerce may issue annual permits to United States purse seine fishing...