Blue Water Fisherman's Ass'n v. Mineta

• Decision Date: 25 September 2000
• Docket Number: No. Civ.A. 99-2846 RWR.,Civ.A. 99-2846 RWR.
• Parties: BLUE WATER FISHERMAN'S ASSOCIATION, et al., Plaintiffs, v. Norman MINETA, Defendant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 150

122 F.Supp.2d 150

BLUE WATER FISHERMAN'S ASSOCIATION, et al., Plaintiffs, v. Norman MINETA, Defendant.

No. Civ.A. 99-2846 RWR.

United States District Court, District of Columbia.

September 25, 2000.

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David Earl Frulla, Brand & Frulla, P.C., Washington, D.C., for plaintiffs.

Mark A. Brown, Janice M. Schneider, U.S. Department of Justice, Environmental & Natural Resources Division, Washington, D.C., for defendant.

MEMORANDUM OPINION

ROBERTS, District Judge.

Plaintiffs, individuals and associations involved in the pelagic longline fishing industry, brought this challenge to the Commerce Secretary's¹ ("Secretary's") regulations implementing the final 1999 Highly Migratory Species Fishery Management Plan. The parties have filed cross-motions for summary judgment and presented oral arguments. Because I find that the Secretary acted within his authority as to all of his challenged actions save one, defendant's motion for summary judgment will be granted except as to the mandatory vessel monitoring system ("VMS") requirements. Plaintiffs' motion for summary judgment as to the VMS requirements will be granted since the record does not support a blanket requirement that all pelagic longline fishers, regardless of their proximity to targeted conservation areas, install a VMS unit. Accordingly, I will remand defendant's determinations under Counts Three and Four of the Amended Complaint regarding the mandatory VMS requirements, 50 C.F.R. § 635.69, to the Secretary.

I. Introduction

Pelagic longline fishers catch species such as tuna, shark and swordfish. (Pls.' Stmt. Material Facts ("Pls.' Stmt.") ¶ 12.) These species are known as Highly Migratory Species ("HMS"). (Id.)² Pelagic longline fishers catch HMS with long fishing lines attached to "a series of leaders that connect to individual hooks in the ocean at specific depths." (Id. at ¶ 13.) There are less than 300 pelagic longline fishing boats currently in operation "over wide areas of the Atlantic Ocean, the Caribbean Sea, and the Gulf of Mexico," (id. at ¶ 37), and the number of longline boats has remained constant since 1987. (Def.'s Resp. to Pls.' Stmt. ¶ 37.) Pelagic longline fishers earn an average yearly income of $53,064, before paying fixed operating and maintenance costs. (Pls.' Stmt. ¶ 42.)

Pelagic longline fishing and pelagic fish are subject to statutory and regulatory regimes, as well as international agreements, designed to protect HMS. (Pls.' Stmt. ¶ 43.) The focus of this litigation is the final 1999 Highly Migratory Species Fishery Management Plan for Atlantic Tunas, Swordfish and Sharks ("HMS FMP"), promulgated by the National Marine Fisheries Service ("NMFS"), pursuant to its authority delegated by the Secretary of Commerce ("Secretary") under the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson-Stevens Act"), 16 U.S.C. §§ 1801-83 (1994 & West. Supp.2000).

Plaintiffs claim that four of the HMS FMP's regulations are arbitrary and capricious, including (1) limits on Atlantic bluefin tuna ("ABT") that can be caught and kept per fishing trip, see 50 C.F.R. § 635.23(f); (2) an area ban on fishing during the month of June, see 50 C.F.R. § 635.21(c)(2); (3) annual quotas for blue sharks and subquotas for porbeagle sharks, see 50 C.F.R. § 635.27(b); and (4) a requirement that all pelagic longline fishers install a VMS unit on their vessels, see 50 C.F.R. § 635.69. Specifically, the plaintiffs claim that each regulation violates certain National Standards set forth in the Magnuson-Stevens Act. See 16 U.S.C. §§ 1851(a)(1)-(10), 1853(a)(1)(C).

In addition, plaintiffs claim that each regulation impermissibly imposes more regulatory restrictions on the commercial fishing sector than on the recreational fishing sector. Finally, plaintiffs assert that in promulgating the challenged regulations, the defendant violated the Regulatory Flexibility Act ("RFA"), 5 U.S.C. §§ 601-612 (1994 & West Supp.2000), as amended by the Small Business Regulatory Enforcement and Fairness Act ("SBREFA"), Pub.L. No. 104-121, §§ 241-42, 101 Stat. 857, 864-68 (1996), by failing adequately to evaluate their effects on small business entities.

II. Legal Framework

A. The Magnuson-Stevens Act

The purpose of the Magnuson-Stevens Act is to protect HMS in waters extending two hundred (200) miles from the United States coast through conservation and management measures. See 16 U.S.C. §§ 1801(a), (b). Congress found that many HMS were "overfished"³ and that as a result of "increased fishing pressure" and "the inadequacy of fishery resource conservation and management practices," the survival of HMS "is threatened." 16 U.S.C. § 1801(a)(2). Congress also found that other species, while not technically overfished, were "so substantially reduced in number that they could become similarly threatened." Id.

The Magnuson-Stevens Act directs the Secretary to prepare "fishery management plans which will achieve and maintain, on a continuing basis, the optimum yield⁴ from each fishery," 16 U.S.C. § 1801(b)(4), including HMS. See 16 U.S.C. § 1854(g)(1). That responsibility is delegated to NMFS. Id.

A plan issued pursuant to the Magnuson-Stevens Act must be consistent with ten National Standards. See 16 U.S.C. § 1851(a). Plaintiffs raise five of these standards in their claims, arguing that each of the 1999 HMS FMP regulations at issue violated one or all of them. The standards at issue are:

(1) Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.

(2) Conservation and management measures shall be based upon the best scientific information available.

(7) Conservation and management measures shall, where practicable, minimize costs and avoid unnecessary duplication.

(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 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.

(9) Conservation and management measures shall, to the extent practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch.

16 U.S.C. §§ 1851(a)(1), (2), (7)-(9).

Bycatch is defined as "fish which are harvested in a fishery, but which are not sold or kept for personal use, and includes economic discards and regulatory discards. Such term does not include fish released alive under a recreational catch and release fishery management program." 16 U.S.C. § 1802(2). In other words, bycatch is those fish that fishers catch but throw back into the ocean, either because they are not the kind of fish that people will buy (being too small, of the wrong gender or of bad quality), or because a regulation dictates that the fish cannot be kept. See 50 C.F.R. § 600.350(c). This second kind of bycatch is referred to as a regulatory discard. Regulatory discards may occur where certain fish species are so overfished that they cannot be kept or sold. See 50 C.F.R. § 622.32 (describing those species of fish which may not be harvested or possessed). For example, the 1999 HMS FMP allows pelagic longline fishers fishing south of a certain latitude to retain only one large or medium bluefin tuna per fishing trip. See 50 C.F.R. § 635.23(f)(1). All fish caught in excess of that limit must be discarded.

In addition to the National Standards, two other provisions of the Magnuson-Stevens Act are at issue. First, the Act requires fishery management plans to allocate fishing benefits equitably between recreational and commercial fishers to the extent practicable. See 16 U.S.C. §§ 1853(a)(12), (14). Second, the Act requires that when the Secretary prepares the HMS FMP, the plan should, to the extent practicable, minimize any disadvantage the regulations might place on United States fishers as compared to foreign fishers. See 16 U.S.C. § 1854(g)(1)(C) (Secretary shall "evaluate the likely effects, if any, of conservation and management measures on participants in the affected fisheries and minimize, to the extent practicable, any disadvantage to United States fishermen in relation to foreign competitors").

B. Atlantic Tunas Convention Act

In addition to the Magnuson-Stevens Act, the Atlantic Tunas Convention Act ("ATCA"), 16 U.S.C. § 971 (1994), provides further authority for the Secretary to promulgate tuna conservation programs. In enacting ATCA, Congress gave the State Department authority to participate in the International Convention for the Conservation of Atlantic Tunas ("Convention"). See 16 U.S.C. §§ 971c, 971d(a). The purpose of the Convention is to protect Atlantic tuna species through international cooperation. (Def.'s Mem.Supp. Summ.J. ("Def.'s Mem.") at 4 & n. 1.) ATCA directs the Secretary to issue and enforce fishery management plans that comport with the Convention's objectives. See 16 U.S.C. § 971d.

Under ATCA, the State Department has broad discretion to implement tuna conservation programs, "except that no regulation ... may have the effect of increasing or decreasing any allocation or quota of fish or fishing mortality level to the United States agreed to pursuant to a recommendation of the Commission." 16 U.S.C. §§ 971d(c)(1)(A), 971d(c)(3)(K). The "Commission" is the International Commission for the Conservation of Atlantic Tunas ("ICCAT"). 16 U.S.C. § 971a. ICCAT carries out the Convention's objectives and makes recommendations for achieving the Convention's ABT conservation goals. (Def.'s Mem. at 4.) Therefore, while the State Department cannot alter the United States ABT quota,...