Connecticut v. Daley
| Decision Date | 04 May 1999 |
| Docket Number | No. 3:98 CV 173(CFD).,No. Civ.A3:97CV2726(CFD).,Civ.A3:97CV2726(CFD).,3:98 CV 173(CFD). |
| Parties | State of CONNECTICUT, Plaintiff, v. William M. DALEY, Secretary of Commerce of the United States, Defendant. |
| Court | U.S. District Court — District of Connecticut |
Kimberly P. Massicotte, David H. Wrinn, Brian J. Comerford, Attorney General's Office, Hartford, Connecticut, for plaintiff.
Mark A. Brown & Warigia Bowman, U.S. Department of Justice, Environmental & Natural Resources Division, Washington, D.C., for defendant.
State of New Jersey, Barbara Conklin, Trenton, New Jersey, State of Rhode Island, Gary Powers, State of Rhode Island, Department of Environmental Management, Providence, Rhode Island, amicus curiae parties.
RULING ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT
The plaintiff, State of Connecticut ("Connecticut"), and the defendant, William M. Daley, Secretary of Commerce of the United States ("Secretary"), have filed motions for summary judgment in these consolidated actions.1 Upon consideration of the parties' written and oral arguments and review of the administrative record filed in these cases, Connecticut's motion for summary judgment [Doc. # 15 and # 26] is DENIED with respect to both actions and the Secretary's cross-motion for summary judgment [Doc. # 28] is GRANTED with respect to both actions for the reasons set forth below.
These lawsuits concern commercial fishing of summer flounder (Paralichthys dentatus). The summer flounder, also known as fluke, is native to the Atlantic Ocean and has a geographical range that extends from Nova Scotia to Florida. The highest concentration of summer flounder is found between Cape Cod, Massachusetts and Cape Fear, North Carolina. Depending on the season, summer flounder can be found from the outer portion of the continental shelf to shallow coastal waters. Atlantic States Marine Fisheries Comm'n, Fishery Management Report No. 23, Amendment 2 to the Summer Flounder Fishery Management Plan 12 (March 1993). Over the course of many years, a combination of factors, including over-fishing, has depleted the summer flounder stock. The decreased availability of summer flounder and the efforts to conserve and restore the summer flounder stock has increased pressure on the commercial fishing industry and led to a number of disputes, including this one, over fishing rights. See, e.g., Fishermen's Dock Co-op., Inc. v. Brown, 867 F.Supp. 385 (E.D.Va. 1994), rev'd, 75 F.3d 164 (4th Cir.1996); North Carolina Fisheries Ass'n, Inc. v. Daley, 27 F.Supp.2d 650 (E.D.Va.1998).
Both of the cases filed by Connecticut petition the court to review separate final actions taken by the Secretary concerning the Fishery Management Plan (FMP) for summer flounder. The FMP for summer flounder was developed, at the direction of Congress, by the Mid-Atlantic Fishery Management Council2 ("MAFMC" or "Council") and the Atlantic States Marine Fisheries Commission3 ("ASMFC" or "Commission") and is intended to allow for a maximum number of summer flounder to be caught while also providing a conservation framework for the summer flounder stock to be replenished.4 The Secretary5 approved the FMP and adopted regulations implementing the FMP in 1988. See 50 C.F.R. §§ 648.100-648.106. Since 1988, the Secretary has also approved several amendments to the FMP proposed by the Council and Commission and has adopted regulations that have implemented the amendments. Two amendments in particular are at issue in these cases: Amendment 10, which was adopted by the Council and Commission and approved by the Secretary; and proposed Amendment 11, which was not adopted or sent to the Secretary for approval.
The first action of the Secretary challenged by Connecticut is his decision not to issue regulations implementing an alternative quota system that was considered, but not recommended, by the Council and Commission when they prepared Amendment 10 to the FMP in 1997. The Council and Commission had discussed replacing the current state-by-state quota system6 with various coast wide quota alternatives when they were drafting Amendment 10. The Council and Commission, however, ultimately decided to retain the state-by-state system and did not include in Amendment 10 any recommendation for the Secretary to institute a coast wide quota system. The Secretary, following the requisite notice and comment period, issued regulations on December 3, 1997, that adopted most of the recommendations of the Council and Commission contained in Amendment 10. See Amendment 10 to the Summer Flounder FMP, 62 Fed.Reg. 63,872-63,876 (1997) ().7 The Secretary did not issue any new regulations concerning the quota system for summer flounder. Connecticut then filed its first petition for review on December 31, 1997, challenging the Secretary's failure to change the quota system. The case was assigned to this court with the docket number 3:97 CV 2726.
The second action taken by the Secretary that Connecticut challenges is his denial of Connecticut's petition for rule making. In April 1997, Connecticut filed a petition for rule making that asked the Secretary to replace the current state-by-state quota system pursuant to his authority under 5 U.S.C. § 553. See 16 U.S.C. § 1855(d) (). Connecticut requested that the Secretary institute a coast wide quota system to replace the state-by-state quota system. Connecticut's petition for rule making proposed two alternatives, either: (1) a system which contained three unequal periods with a coast wide quota during the winter periods (January-April and November-December) and a state-by-state quota in the summer period (May-October), which was Connecticut's preferred option; or (2) a system divided into three coast wide quota periods (January-April, May-October, November-December) with a corresponding system of coast wide landing limits.
Connecticut also proposed that any state-by-state quota system enforced by the Secretary be based on landings data collected from the years 1990 through 1992, rather than the current data taken from the years 1980 through 1989. Connecticut argued that the existing method of calculating each state's quota percentage was unfair because it failed to account for the fact that many of the northern states along the summer flounder fishery, including Connecticut, had instituted larger minimum size requirements for fish to be landed in those states' ports during the 1980 through 1989 time period. Connecticut believes this caused a lower number of fish to be landed in Connecticut ports during the base period. Connecticut's petition argued that the northern states are unfairly penalized with small quota percentages for their early efforts at conservation in the 1980s, while the southern states' larger quota percentages are the result of their smaller minimum size requirements in effect from 1980 through 1989. These smaller minimum size requirements, Connecticut argues, enabled the southern fishermen to land smaller fish, and thus more fish, during the base period, which increased their allotment under the state-by-state quota system.
The Secretary published notice of Connecticut's petition for rule making in the Federal Register, inviting public comment. Petition for Rulemaking for Redistribution of the Summer Flounder Quota, 62 Fed. Reg. 29,694-29,695 (1997). During the comment period, the Secretary received letters in support of Connecticut's petition from the Commonwealth of Massachusetts, the State of New Hampshire, the State of Connecticut, a co-signed letter from Connecticut Senators Christopher Dodd and Joseph Lieberman and Connecticut Representative Sam Gejdenson, a letter from the Southern New England Fishermen's and Lobstermen's Association, Inc., and several form letters and postcards from interested fishermen. No comments in opposition to Connecticut's petition were apparently filed.
While Connecticut's petition for rule making was under consideration by the Secretary, the Council and Commission were preparing Amendment 10 which, as stated above, was approved by the Secretary on December 3, 1997. During the same time period, the Commission, through its Summer Flounder Technical Committee ("Technical Committee"), was also considering Amendment 11. Amendment 11 proposed a change in how the state-by state quota percentages were calculated to account for the difference in size limits set by each state for summer flounder caught during the period from 1980 through 1989. The alternative calculation methods proposed by the Committee were then considered by the Commission's Summer Flounder Management Board at its annual meeting held October 19-23, 1997. The Management Board, after discussing the issue at some length, declined to recommend the Committee's proposals to the full Commission for an endorsement to the Secretary. The Secretary, therefore, was never formally presented with Amendment 11 for his consideration in adopting new rules and regulations for the summer flounder FMP.
Following the adoption of Amendment 10 and the Management Board's vote not to recommend Amendment 11, the Secretary also denied Connecticut's petition for rule making. Decision on Petition for Rulemaking for Redistribution of the Summer Flounder Quota, 63 Fed.Reg. 2,651-2,654 (Dep't Commerce 1998). Connecticut filed its second petition for review on January 29, 1998, challenging the Secretary's decision to deny Connecticut's petition for rule making. The second case was assigned to Chief District Judge Alfred V. Covello and given the docket number 3:98 CV 173. The second action was transferred to this court o...
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