Burke v. Coggins
| Decision Date | 18 February 2021 |
| Docket Number | Case No. 1:20-cv-00667 (TNM) |
| Citation | 521 F.Supp.3d 31 |
| Court | U.S. District Court — District of Columbia |
| Parties | Gary BURKE, et al., Plaintiffs, v. Wynn COGGINS, as acting Secretary, U.S. Department of Commerce, et al., Defendants, Oceana, Inc., Intervenor-Defendant. |
Daniel T. Woislaw, Pacific Legal Foundation, Arlington, VA, Michael Poon, Damien M. Schiff, Pacific Legal Foundation, Sacramento, CA, for Plaintiffs.
Bridget Kennedy McNeil, U.S. Department of Justice, Denver, CO, for Defendants.
Lide E. Paterno, Stacey H. Mitchell, Michael W. Fires, David H. Quigley, Akin Gump Strauss Hauer & Feld LLP, Washington, DC, for Intervenor-Defendant.
Some California fishermen sued the Secretary of Commerce and the National Marine Fisheries Service (collectively, the "Government") challenging a rule that will close their swordfish fishery if they accidentally kill or injure too many marine mammals or turtles. Remarkably, the Government agrees with the fishermen that the rule is invalid and should be vacated. Even before the rule's promulgation, the Service maintained that the rule conflicts with the governing statute because it imposes significant short-term economic effects with only minor conservation benefits. The Service made this position clear in the final rule and only promulgated it to comply with another court's order. Oceana, Inc., however, intervened here to preserve the rule. It raises procedural and substantive challenges to the Service's determination that the rule violates the law. The parties cross-move for summary judgment.
The Court casts its line in favor of the fishermen. The Service's determination that the rule conflicts with the governing statute finds support in the administrative record. For the following reasons, the Court will grant Plaintiffs’ summary judgment motion and deny Defendants’ and Oceana's motions for summary judgment.
The Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson Act") seeks to "conserve and manage the fishery resources found off the coasts of the United States" and to "promote domestic commercial and recreational fishing under sound conservation and management principles." 16 U.S.C. § 1801(b)(1), (3). It contemplates the creation and implementation of "fishery management plans." Id. §§ 1801(b)(4), 1853. The Secretary delegated to the Service authority to manage these plans.
All fishery management plans and "any regulation promulgated to implement any such plan" must comply with the Magnuson Act's ten "National Standards." Id. § 1851(a). As relevant here, National Standard 2 provides that "[c]onservation and management measures shall be based upon the best scientific information available." Id. § 1851(a)(2). National Standard 7 requires that "[c]onservation and management measures shall, where practicable, minimize costs and avoid unnecessary duplication." Id. § 1851(a)(7). And National Standard 8 states that "[c]onservation and management measures shall, consistent with the conservation requirements of this chapter ..., take into account the importance of fishery resources to fishing communities ...." Id. § 1851(a)(8).
"Regional Fishery Management Councils" prepare fishery management plans and propose regulations to implement them. Id. §§ 1852, 1853. There are eight regional councils. See id. § 1852(a)(1). The Pacific Council has authority over fisheries in California, Oregon, Washington, and Idaho. Id. § 1852(a)(1)(F). Each regional council "reflect[s] the expertise and interest" of the represented states. Id. § 1852(a)(2).
These regional councils submit proposed regulations for fishery management plans to the Service for review. See id. § 1854. The Service then determines whether the regulation complies with the fishery management plan, the Magnuson Act, and "other applicable law." Id. § 1854(b)(1). If the Service approves the regulations, it publishes them in the Federal Register for public comment. Id. § 1854(b)(1)(A). The Service must "promulgate final regulations within 30 days after the end of the comment period." Id. § 1854(b)(3). If the Service disapproves the proposed regulations, it must notify the regional council and "provide recommendations on revisions that would make the proposed regulations consistent." Id. § 1854(b)(1)(B).
Plaintiffs are three California commercial fishermen who participate in the West Coast drift gill net swordfish fishery (the "Fishermen").3 See Decl. of Jeff Hepp ¶ 2, ECF No. 20-3; Decl. of Fred Hepp ¶ 2, ECF No. 20-4; Decl. of Gary Burke ¶ 2, ECF No. 20-5. A drift gill net is "a wall of nylon netting that hangs in the water column and is kept at the proper depths through weights and buoys." Compl. ¶ 46, ECF No. 1. The net's mesh "is large enough to allow a fish to insert its head but not its body, thus catching the fish by its gills." Id. These drift gill nets also produce "bycatch"—species inadvertently captured and then discarded. See 16 U.S.C. § 1802(2) ().
In 2015, the Pacific Council recommended a rule that would immediately close the drift gill net swordfish fishery in California and Oregon if the mortality or injury for some marine mammals and turtles meets or exceeds the "hard caps" (or limit) over a rolling two-year period ("Hard Caps Rule").4 See AR24731; AR30509–10. The closure continues until May 1 of the fishing season following two seasons of no hard cap exceedance. AR24731. The purpose of the Hard Caps Rule was to "conserve non-target species and further reduce bycatch ... in the [drift gill net] fishery below levels currently permitted by applicable law while maintaining or enhancing an economically viable U.S. West Coast-based swordfish fishery." AR20175.
The Service first found the Hard Caps Rule consistent with the Magnuson Act and published it for public comment. AR30463–66. The comments, however, prompted the Service to "conduct[ ] further analysis of the economic effects," which revealed "significant adverse short-term economic effects that were not identified at the proposed rule stage." AR24731. The "[a]dditional analysis indicated that taking action as proposed would threaten the economic viability of the [drift gill net] fishery while providing minor environmental benefits." AR20291. The Service thus found the Hard Caps Rule inconsistent with National Standard 7 of the Magnuson Act. See AR24733 ("[The Service] conducted additional economic analysis and found the regulations to be inconsistent with [ ] National Standard 7."). So it withdrew the rule. AR30467.
Oceana successfully challenged the withdrawal in the U.S. District Court for the Central District of California. See AR30416–23. The Central District ruled that the Service must either promulgate the Hard Caps Rule as is or consult with the Pacific Council on any revisions because the Service had approved the proposed rule. AR 30422. In other words, the court held that the Service could not withdraw the Hard Caps Rule after its preliminary approval. The court remanded to the Service for further action. AR30423.
Over a year later, Oceana moved to enforce the court's decision because the Service had still not promulgated the Hard Caps Rule. AR30303–09. The court granted the motion and ordered the Service to promulgate any final rule within thirty days. AR30309. The Service lacked time to consult with the Pacific Council to revise the Hard Caps Rule before this deadline, so the Service published the Hard Caps Rule as proposed. AR20154. In the final rule, the Service noted that promulgation was "necessary to comply with a court order," and that the Hard Caps Rule is "inconsistent with [Magnuson Act] National Standard 7." AR24733; see also AR20155 (January 29, 2020 Decision Memorandum concluding that the Hard Caps Rule "is not consistent with [Magnuson Act] National Standard 7," and that it "does not minimize costs and avoid unnecessary duplication").
The Fishermen then sued the Secretary and the Service under the Administrative Procedure Act ("APA") here. They claim that the Hard Caps Rule conflicts with National Standards 2, 7, and 8 of the Magnuson Act. Compl. ¶¶ 63–74. They also raise two constitutional challenges. The Fishermen first contend that appointment of the regional councils’ members violates the Appointments Clause.5 Id. ¶¶ 75–87. Second, they argue that the removal process for nearly all regional council members violates the Take Care Clause.6 Id. ¶¶ 88–95. The Fishermen seek declaratory relief and an injunction "setting aside the Hard Caps Rule" and "forbidding [the Government] from enforcing it." Id. at 23.
Oceana moved to intervene to defend the Hard Caps Rule. See Oceana, Inc.’s Unopposed Mot. Intervene, ECF No. 16. The Court granted this motion. See Order, ECF No. 17.
The parties cross-move for summary judgment. The Government concedes that the Fishermen are entitled to summary judgment on their APA claim because the Hard Caps Rule conflicts with National Standard 7. See Defs.’ Cross-Mot. Summ. J. ( ) at 20–21, ECF No. 26.7 The Government also agrees that vacatur of the Hard Caps Rule is appropriate. Id. It asks the Court not to reach the Fishermen's constitutional claims or, alternatively, to interpret the Magnuson Act to avoid any constitutional issue. Id. at 26–33.
Oceana seeks to preserve the Hard Caps Rule under National Standard 7. See Oceana, Inc.’s Cross-Mot. Summ. J. ("Oceana Mot."), ECF No. 28. It characterizes the Service's position as an impermissible "post-hoc determination." Id. at 24. Oceana also argues that the administrative record does not support the finding that the Hard Caps Rule violates National Standard 7. Id. at 25–26.
The cross-motions are ripe for disposition.8
Regulations under the Magnuson Act—such as the Hard Caps Rule—are subject to judicial review under the APA. 16 U.S.C. § 1855(f)(1). When reviewing agency...
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