Boatmen v. Gutierrez, 06-CV-400 (JBW).

• Decision Date: 01 May 2006
• Docket Number: No. 06-CV-400 (JBW).,06-CV-400 (JBW).
• Parties: United BOATMEN, et al., Plaintiffs, v. Carlos GUTIERREZ, in his official capacity as Secretary of the United States Department of Commerce, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

429 F.Supp.2d 543

United BOATMEN, et al., Plaintiffs, v. Carlos GUTIERREZ, in his official capacity as Secretary of the United States Department of Commerce, et al., Defendants.

No. 06-CV-400 (JBW).

United States District Court, E.D. New York.

May 1, 2006.

COPYRIGHT MATERIAL OMITTED

Law Office of Philip L. Curcio by Philip L. Curcio, Melville, NY, Bogan & Bogan, LLC by Raymond D. Bogan, Point Pleasant Beach, NY, for all Plaintiffs.

United States Attorney's Office by Robert B. Kambic, and Vincent Lipari, Central Islip, NY, for Defendants Carlos Gutierrez, National Oceanic and Atmospheric Admin., National Marine Fisheries Service.

Law Office of Sean H. Donahue by Sean H. Donahue, Washington, D.C., for Defendant Atlantic States Marine Fisheries Commission.

Connecticut Office of the Attorney General by Sharon Anne Scully, Hartford, CT, for Defendant State of Connecticut.

New York State Office of the Attorney General, Environmental Protection Bureau by Gregory J. Nolan, New York City, for Defendant State of New York.

Natural Resources Defense Council by Amelia Evangelista Toledo, New York, NY, for Amicus Natural Resources Defense Council.

MEMORANDUM, ORDER AND FINAL JUDGMENT

WEINSTEIN, Senior District Judge.

Table of Contents

                  I. Introduction ...................................................................... 546
                 II. Facts ............................................................................. 546
                III. Law ............................................................................... 547
                     A. Standard of Review of Administrative Decisions ................................. 547
                     B. Fishery Quotas ................................................................. 548
                     C. Standard for Granting Summary Judgment ......................................... 548
                IV. Application of Law to Facts ........................................................ 549
                V. Declaratory Judgment ................................................................ 550
                VI. Conclusion ......................................................................... 550
                Appendix A ............................................................................. 550
                

I. Introduction

Plaintiffs are commercial and recreational fishermen suing various administrative officers and bodies that control the amount of fluke that can be taken from waters off the East Coast of the United States during the 2006 fishing season. At the court's direction, all parties have moved for disposition on an expedited basis. After consideration of the considerable administrative record, summary judgment for defendants is granted.

Administration of the Atlantic summer flounder (fluke) fisheries is exceptionally complex, necessitating a sensitive balancing and cooperation among many interests. The fish are pelagic, with their eggs floating on the open sea, subject to the vagaries of current, tide, temperature, and nonhuman predators. The federal government controls the habitat from three miles out, with the competing states individually administering their own waters up to the three mile limit. Commercial and sport fisheries vie for shares within each state's waters, with the individual states controlling total landings by fixing dates and areas for the fishing season, and minimum size. The fish move freely across boundaries, particularly in the spring, crossing the three mile limit towards the shore. The effects on the tourism industry, fishing fleets, rod, tackle and bait shops, as well as fishing devotees and gastronomes, requires the exercise of substantial political wisdom. Under the circumstances—as well as the law—conservative projections to protect this important resource are warranted. The decisions now challenged, taken by the various administrative bodies involved, were well calculated to protect jobs as well as the pleasure of the public into the foreseeable future, as required by law. Conservation has been served with-out unnecessary harm to other interests, including those of plaintiffs.

II. Facts

Summer flounder, commonly known as fluke, are flat, demersal finfish found along the Atlantic coast of North America. They are one of the most sought after fish by commercial and recreational anglers. Fluke catch limits are subject to an array of regulations by state and federal administrative bodies. Appendix A lists some of the bodies, statutes, regulations, and acronyms necessary to understand the full four volume administrative record ("AR") and the extensive briefs, with which the parties and interested persons are assumed to be familiar.

A scientific assessment of the status of the fluke stock was conducted by the Northeast Fisheries Science Center (the "Center") in June 2005, at the 41st Northeast Regional Stock Assessment Workshop ("SAW"). The SAW process convenes scientists from around the world who are experts in fisheries stock assessment methodology. AR 200-297. The SAW assessment uses data from the Center research cruises as well as from various fishery surveys. AR 200, 519. The assessment also employs recreational summer flounder catch and landing estimates generated by the Marine Recreational Fishing Statistical Survey ("MRFSS"). AR 201, 519.

The Stock Assessment Review Committee ("SARC") indicated that the fluke stock was being overfished relative to the biological reference points established by the fluke fishery management plan ("FMP"). AR 299. Previous assessments had overestimated recent years' stock biomass ("B") and underestimated the fishing mortality rate ("F"). AR 1025. SARC panelists accepted the recommendation of the Center to update the biological reference points in the FMP.

The Monitoring Committee met on July 28, 2005, to consider the latest information on the status of the summer flounder stock. AR 505. It recommended that a quota of 26 million pounds be adopted for 2006, 2007, and 2008, an approach referred to as "constant harvest strategy." Id.

After considerable discussion, the Council adopted the Monitoring Committee's recommended quota approach. AR 506-552. It then submitted this recommendation to the Regional Administrator of the NMFS, together with an analysis of two other approaches: the status quo quota of 33 million pounds; and a "constant F strategy" that would set quotas for 2006, 2007, and 2008 equivalent to the level that has at least a 50 percent probability of success of ensuring that the specified F, "Fmax", will not be exceeded. Under the constant F strategy, the quota for 2006 would be 23.59 million pounds. AR 634.

The Regional Administrator concluded that adopting the Council's recommendation would be inconsistent with her obligation to publish a quota that has at least a 50 percent probability of success of ensuring that the specified F will not be exceeded. See C.F.R. § 648.100(d). She decided that neither the recommended quota nor the status quo quota would be consistent with this obligation. The constant harvest strategy of 26 million pounds had a 25 percent probability of success, while the status quo alternative of 33 million pounds exceeded the Fmax for 2006 by 51 percent. A quota of 23.59 million pounds was the only alternative that had been considered by the Council that could meet the requirement of a 50 percent probability of achieving the Fmax in 2006.

The Secretary of Commerce (the "Secretary") published a proposed rule to implement a 2006 quota of 23.59 million pounds. AR 936. After receiving numerous public comments on the proposal, a final rule implementing this quota was published on December 29, 2005. AR 1096.

Plaintiffs allege that the adoption of a 23.59 million pound quota violates National Standards One, Two, Six, and Eight of the Magnuson-Stevens Act, U.S.C. § 1801 et seq. ("MSA"); that defendants failed to comply with the requirements of the Regulatory Flexibility Act, 5 U.S.C. 60 et seq. ("RFA"), the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA"), and Executive Order 12866; that defendant ASMFC violated the terms of the ACFCMA and its own voting rules and procedures; and that defendants violated the requirements of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ("APA").

III. Law

A. Standard of Review of Administrative Decisions

The Secretary's actions are reviewed under the standards set by the APA. 16 U.S.C. § 1855(f)(1); 5 U.S.C. §§ 706(2)(A)(D). Under the APA, agency action is only disturbed if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A)(1980).

Review is "searching and careful" but "narrow"; the court may not substitute its judgment for that of the Secretary. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The court defers to the agency where the agency's particular technical expertise is involved, as is the case in fishery management. See, e.g., National Fisheries Institute v. Mosbacher, 732 F.Supp. 210, 223 (D.D.C.1990) (It is "especially appropriate for the Court to defer to the expertise and experience of those individuals and entities—the Secretary, the Councils, and their advisors— whom the [MPA] charges with making difficult policy judgments and choosing appropriate conservation and management measures based on their evaluations of the relevant quantitative and qualitative factors." (citing Pittston Coal Group v. Sebben, 488 U.S. 105, 150, 109 S.Ct. 414, 102 L.Ed.2d 408 (1988); Marsh, 490 U.S. at 378, 109 S.Ct. 1851)).

Under the APA standard of review, the agency's actions are assumed to be valid. See United States v. F/V Alice Amanda, 987 F.2d 1078, 1085 (4th Cir. 1993). Plaintiffs bear the burden of showing, by citation to evidence in the administrative record, that an agency's actions are arbitrary and capricious. The court must consider the reasonableness of an agency action based on the record in existence at the time of the decision; it will not engage in an evidentiary hearing or a...