City of New Bedford v. Locke
| Decision Date | 30 June 2011 |
| Docket Number | CIVIL ACTION NO. 10-10789-RWZ |
| Parties | CITY OF NEW BEDFORD, et al. v. HONORABLE GARY LOCKE, etc., et al. |
| Court | U.S. District Court — District of Massachusetts |
ZOBEL, D.J.
In 2009, the Department of Commerce introduced a trio of rules and regulations, Amendment 16, Framework 44, and the sector operations rule (collectively "A16"), that regulate fishing off the coast of New England and the mid-Atlantic states. The City of New Bedford along with other parties (collectively the "New Bedford Plaintiffs") challenged A16 in this court and plaintiff James Lovgren filed a similar suit in the District of New Jersey. The Lovgren suit was transferred here and consolidated with the New Bedford litigation. (Docket # 17.) The Secretary of Commerce Gary Locke (the "Secretary"), the National Oceanic and Atmospheric Administration and its administrator Jane Lubchenco, and the National Marine Fisheries Service ("NMFS") (collectively the "Agency"), are named as defendants, joined by intervenor the Conservation Law Foundation, Inc.
Plaintiffs have cast a dragnet in this litigation, woven from a multitude of alleged failings of A16. They argue that the Agency misinterpreted the law, relied oninaccurate facts, and acted in an arbitrary and capricious manner in implementing A16, primarily in violation of the Magnuson-Stevens Act ("MSA") and the procedural directives of the National Environmental Policy Act ("NEPA"). Now pending are the parties' cross-motions for summary judgment. Their briefs are supplemented by memoranda of amici Congressmen Barney Frank and John Tierney, the Commonwealth of Massachusetts, and Food and Water Watch, Inc., all in support of plaintiffs, and the Georges Bank Cod Fixed Gear Sector, in support of Defendants.
The Northeast multispecies fishery includes 13 species of groundfish, divided into 20 stocks, located off the coasts of New England and the mid-Atlantic states. Administrative Record ("AR") 1001 at 56717-18. These stocks have been fished for centuries and annual output peaked at more than a quarter of a million tons in the 1960s. AR 320 at 19875. Since then, as fishing technology has improved, fishing has depleted stocks and output has declined precipitously, to less than 50,000 tons in the 1990s. Some of this reduction reflects changes in the geographical boundaries of the fishery and environmental factors, but there is no dispute that current harvests are substantially below long-term sustainable levels.
Congress enacted the MSA in 1976, amended in significant part by the Sustainable Fisheries Act in 1996 and the Magnuson-Stevens Reauthorization Act of 2006, to restore this fishery to robust health. 16 U.S.C. § 1801 et seq. The MSA directs the creation of eight fishery management councils, each council representing a coastal region. Id. at § 1852. The New England Fishery Management Council("NEFMC") represents Maine, New Hampshire, Massachusetts, Rhode Island, and Connecticut, and has authority over the fisheries in the Atlantic ocean seaward of those states. Id. Each council is required to prepare and amend as necessary a fishery management plan ("FMP") containing "conservation and management measures . . . to prevent overfishing," 16 U.S.C. § 1853, consistent with 10 "National Standards" that set forth general principles such as fairness, efficiency, and concern for fishing communities, id. at § 1851(a). An FMP is submitted to the Secretary for approval, where it is evaluated by NMFS, after which it takes effect. Id. at § 1854. The target for an FMP is the "maximum sustainable yield" ("MSY"), see id. at § 1802(33)-(34), 50 C.F.R. § 600.310(b)(2)(i), the "largest long-term average catch or yield that can be taken from a stock or stock complex," 50 C.F.R. § 600.310(e)(1)(I). See AR 997 at 56488 ().
The NEFMC adopted the Northeast Multispecies Fishery Management Plan in 1986 ("NEFMP"). It has been amended several times in the intervening years before A16, most recently in substantial part by Amendment 13 ("A13") in 2004. 69 Fed. Reg. 22906 (Apr. 27, 2004). The NEFMP has historically limited fishing through "days-at-sea" effort restrictions, which limit the effort that fishermen expend as a proxy for total fish caught. It has been partially effective; some overfished stocks have recovered while others have shown little or no improvement. AR 550 at 31537. As of the most recent assessment, in 2009, two Haddock stocks, Redfish, and American Plaice were rebuilt to MSY with sustainable mortality, while the majority of the other stocks wereboth overfished and subject to overfishing.1 AR 773 at 47763; see AR 320 at 18989. The Agency has determined that dramatic decreases in fishing mortality are necessary to restore these stocks. AR 773 at 64.
The three measures collectively referred to as A16 constitute the Agency's revisions to the NEFMP to restore these overfished stocks to health. A key part of this amendment, and a focal point of contention in this lawsuit, is an expansion and revision of the "sector" program introduced in A13. Sectors are an alternative to days-at-sea effort controls, whereby a group of fishermen jointly form a sector and are collectively assigned a catch limit, an "Annual Catch Entitlement" ("ACE"). Fishermen who do not join sectors continue to operate in the "common pool," subject to days-at-sea constraints. For two stocks, A16 also considers the annual catch of recreational fishermen.
Under A16, each multispecies fishery permit holder is allocated a "potential sector contribution" ("PSC") based upon its landings history. AR 997 at 56500-01. This is a proportional measure of the vessel's landing history relative to the total landings over a given period of time for each stock. PSC is not a limit on how much a permit holder can catch. If permit holders choose to join a sector, their PSCs are aggregated to constitute the sector's ACE, a proportion of the total "Annual Catch Limit" ("ACL") for the entire commercial fishing sector which is a cap on annual harvest. ACEmay be traded between sectors. Sectors operate under various reporting requirements to ensure they do not exceed their ACE.
Amendment 16 implements this sector system and makes other changes to the NEFMP. AR 997. Framework 44 establishes the ACL for fishing years 2010-12. AR 1001. Sector ACEs for fishing year 2010 are implemented with the sector operations rule. AR 996. In 2010, 812 of 1477 permit holders joined one of 17 sectors. The sectors hold approximately 98% of the historical landings during the relevant PSC period. The recreational sector was allocated 27.5% of GOM haddock and 33.7% of GOM cod, but nothing of the other stocks.
The standard of review for agency actions challenged under either the MSA or NEPA is that of the Administrative Procedures Act. 16 U.S.C. § § 1855(f); Dubois v. U.S. Dep't of Agric., 102 F.3d 1273, 1284 (1st Cir. 1996).
The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be - (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law.
5 U.S.C. § 706.
"An agency's decision is not arbitrary and capricious if that decision was based on consideration of the relevant factors and if it did not commit a clear error of judgment." Town of Winthrop v. FAA, 535 F.3d 1, 8 (1st Cir. 2008).
Plaintiffs dispute the Agency's conclusion that Amendment 16 does not create either a limited access privilege program ("LAPP") or an individual fishing quota ("IFQ"), two labels appearing in the MSA statute which, if applicable, trigger certain procedural and substantive protections. Initially, this dispute raises the threshold question of what deference is due to the Agency's interpretation of the MSA statute.
When Congress has "explicitly left a gap for an agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation," and any ensuing regulation is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute.
United States v. Mead Corp., 533 U.S. 218, 227 (2001) (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984).
Mead Corp., 533 U.S. at 230 (internal citations omitted).
Congress expressly delegated to the Secretary the authority to create FMPs. 16 U.S.C. §§ 1852(h), 1854. Amendment 16 to the NEFMP is the product of a highly formalized administrative procedure, including a notice-and-comment period. Id. at §§ 1852-54. Chevron deference is warranted.
IFQ and "limited access privilege" are both defined as a "federal permit" issued under a "limited access system" to harvest a quantity of fish representing a portion ofthe total allowable catch of the fishery that may be held for exclusive use by a person. 16 U.S.C. § 1802(23) and (26). A "limited access privilege" is issued "under section 1853a" and "includes an individual fishing quota." Id. at § 1802(26). Section 1853a sets forth various requirements that a LAPP must satisfy before it may be approved by the Secretary and mandates that an IFQ program in the New England fishery be submitted to a referendum and receive 2/3 approval of fishery participants.
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