Coastal Conservation Ass'n v. Locke
| Decision Date | 16 August 2011 |
| Docket Number | Case No. 2:10-cv-95-FtM-29SPC,Case No. 2:09-cv-641-FtM-29SPC |
| Parties | COASTAL CONSERVATION ASSOCIATION, Plaintiff, v. GARY LOCKE, in his official capacity as Secretary of the United States Department of Commerce; THE NATIONAL OCEANIC and ATMOSPHERIC ADMINISTRATION; THE NATIONAL MARINE FISHERIES SERVICES, Defendants, THE GULF OF MEXICO REEF FISH SHAREHOLDERS' ALLIANCE; THE ENVIRONMENTAL DEFENSE FUND, Intervenor-Defendants. BRIAN E. LEWIS; TROY FUSSELL, Plaintiffs, v. GARY LOCKE, in his official capacity as Secretary of the United States Department of Commerce; THE NATIONAL OCEANIC and ATMOSPHERIC ADMINISTRATION; THE NATIONAL MARINE FISHERIES SERVICES, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court on the Plaintiffs, Brian E. Lewis and Troy Fussell's Motion for Summary Judgment concerning their Complaint in case number 2:10-cv-95 (Doc. # 61) filed on November 26, 20101 ; the Plaintiff Coastal Conservation's Motion for Summary Judgment (Doc. # 64) filed on December 3, 2010; The Defendants, Gary Locke, in his official capacity as Secretary of the United States Department of Commerce, the National Oceanic and Atmospheric Administration; The National Marine Fisheries Services's (Federal Defendants) Cross Motion for Summary Judgement (Doc. # 68) filed on January 14, 2011; and the Intervenor-Defendants, the Environmental Defense Fund, and the Gulf of Mexico Reef Fish Shareholders' Alliance's Motion for Summary Judgment and Response in Opposition to the Plaintiffs' Motions for Summary Judgment (Doc. # 71) filed on January 14, 2011.
The Federal Defendants filed their Response in Opposition to the Plaintiffs' Motions for Summary Judgment (Doc. # 70) on January 14, 2011. The Plaintiffs, Brian E. Lewis and Troy Fussell filed their Reply Brief (Doc. # 74) to the Federal Defendant's Opposition and Motion for Summary Judgment on January 31, 2011. The Plaintiff, Coastal Conservation Association filed its Reply Brief (Doc. # 75) on February 4, 2011. The Amicus Curiae, Food and Water Watch, filed its Memorandum of Amicus Curiae in Support of the Plaintiffs' Motions for Summary Judgment (Doc. # 67) on December 15, 2010. The Motions for Summary Judgment are now ripe for the Court's review and recommendation.
Congress delegated to the National Marine Fishery Service (NMFS) through the Magnuson-Stevens Fishery Conservation and Management Act (MSA) 16 U.S.C. § 1801 et. seq., by and through the Secretary of Commerce, broad authority to manage and conserve coastal fisheries. The numerous species of reef fish in the Gulf of Mexico are managed as a complex by the Gulf of Mexico Fishery Management Council (Gulf Council). 16 U.S.C. § 1802(a)(1)(E); 50 C.F.R. § 622, Appendix A, Table 3 (listing Gulf of Mexico reef fish species). The Gulf Counsel consists of members from the States of Texas, Louisiana, Mississippi, and Florida, with seventeen (17) voting members, eleven (11) of whom are appointed by the Secretary of Commerce and at least one member appointed from each of the Gulf States. The Gulf Council is charged with overseeing the fisheries in the Gulf of Mexico by preparing fishery management plans (FMP) for the various reef fish in the Gulf of Mexico. The Gulf Council originally implemented an FMP for reef fish (the Reef Fish FMP) in 1981. (Ar. 1). The Reef Fish FMP has been modified by more than twenty (20) amendments and eight (8) interim or emergency rules or regulatory adjustments over that time. (Ar. 11689-11695).
On November 16, 2004, National Marine Fishery Service (NMFS) announced that the Gulf Council was considering the establishment of an individual fishing quota (IFQ) to control participation or effort in the commercial grouper fishery of the Gulf of Mexico. 69 Fed. Reg. 67,106 (Nov. 16, 2004). Under an IFQ program each participant is allocated a fixed percentage (i.e., an individual quota) of the total catch to harvest. 16 U.S.C. § 1802 (23). The Gulf Council stated that existing regulatory measures governing the commercial harvest of grouper and tilefish had resulted in the overcapitalization of the fishery. (Ar. 12935-12936). In other words, the collective harvest capacity of fishery vessels and participants was in excess of that required to efficiently harvest thecommercial share of the total allowable catch (TAC). More simply put, there were too many boats chasing too few fish. As a result of this overcapitalization, the commercial grouper regulations had become increasingly restrictive, thereby intensifying what is known as "derby" conditions under which fishermen race to harvest as many fish as possible before the quota runs out. (Ar. 12936). Thus, the Gulf Council undertook the amendment process to reduce overcapacity in the commercial grouper and tilefish fisheries to achieve and maintain the fisheries optimum yield (OY). (Ar. 12936).
In order to establish the criteria to determine who substantially fished the grouper and tilefish fishery, the NMFS announced that the Gulf Council was considering October 15, 2004, as a possible control date to begin its review of the catch histories of those individuals who participated in the grouper and tilefish fishery. 69 Fed. Reg. 67,106 (Nov. 16, 2004). The control date would establish a time frame to determine who substantially fished the reef fishery for grouper and tilefish between a start date and an end date. The control date would then be used by the Gulf Council to establish a catch history over a period of several years to determine who substantially fished the reef fishery for grouper and tilefish. The determination of who substantially fished the reef fishery for grouper and tilefish would be important because only those participants would be determined to have substantially fished the reef fishery, and therefore would later be allowed to vote on Amendment 29.
A notice was sent out regarding the issue which stated (Ar. 67,107). The notice requested that any comments be submitted within thirty (30) days, however, none of the Plaintiffsresponded to the Notice. (Ar. 342). The Gulf Council eventually settled on the dates between January 1, 1999, through December 31, 2004, as the control dates.
In 2006, Congress recognized that the tools available to the regional councils to manage stocks of fish were not generating the healthy and productive fisheries intended under the MSA:
[A] full 10 years after passage of the [1996 Sustainable Fisheries Act (SFA) amendments], recent evaluations of stock status have revealed that overfishing is still occurring in a number of fisheries, even those fisheries under a rebuilding plan. In many cases, this has resulted from failure of a plan to require adherence to scientifically-established mortality limits from one year to the next.
S. Rep. No. 109-229, at 21 (2006).
Congress thereafter added a new section to the MSA expressly authorizing regional councils to implement Limited Access Privilege Programs (LAPPs), including IFQ programs. Pub. L. No. 109-479, § 106, 120 Stat. 3575, 3586 (2007) (). A LAPP is a program that authorizes the permit holder to harvest a certain portion of the total catch allowed for a particular species. 16 U.S.C. § 1802(26). LAPPs are a broad description for a number of different catch share programs under which the allowable catch of fish is distributed among the participants in the fishery, giving each one a specified stake in the annual harvest. One type of LAPP is an IFQ program, a method which was already being considered by the Gulf Council.
On September 12, 13, 17, and 18, 2007, the Gulf Council convened scoping hearings regarding Amendment 29 at locations throughout the Gulf States' coastal regions. (Ar. 13191-13193). Advance notice of the hearings was provided by the NMFS by publication in the Federal Register. 72 Fed. Reg. 48, 259 (August 23, 2007); (Ar. 5922). Neither group of Plaintiffs made comments to the publication nor the proposed Amendment 29 at that time. (Ar. 5924-5956).Although Coastal Conservation did make comments regarding another proposal related to Amendment 30. (Ar. 5924-5956).
In promulgating Amendment 29, the Council considered three alternative approaches for managing effort in the commercial grouper and tilefish fisheries of the Gulf of Mexico: the status quo, the establishment of an IFQ program, and the establishment of an endorsement program. (Ar. 12946-12956). The Gulf Council also briefly considered an auction plan, but determined that it would not prevent the issues being addressed by Amendment 29. Under the status quo, the grouper and tilefish fisheries would continue to be managed using a combination of permit moratorium, quotas, season closures, minimum size limits, and trip limits. (Ar. 12947). This regulatory approach, however, led to the overcapitalization problem the Gulf Council was trying to resolve with Amendment 29.
Under an endorsement program, fishermen would receive permits that granted the right to harvest grouper and tilefish under certain limiting conditions. (Ar. 12953). For example, permits could be issued with endorsements that limit the type of fishing gear being used (such as longline or vertical line gear) and could further limit the maximum allowable harvest per fishing trip. (Ar. 12953). Upon detailed study of this alternative, the Council concluded that derby conditions could still persist and that permit endorsements would not significantly modify...
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