Fishermen's Dock Co-op., Inc. v. Brown

• Decision Date: 02 February 1996
• Docket Number: No. 95-1002,95-1002
• Citation: 75 F.3d 164
• Parties: 26 Envtl. L. Rep. 20,812 FISHERMEN'S DOCK COOPERATIVE, INCORPORATED, of Point Pleasant Beach, New Jersey; Belford Seafood Cooperative, of Belford, New Jersey; Wanchese Fish Company, of Virginia, North Carolina and Massachusetts; Seafarers International Union, Plaintiffs-Appellees, v. Ronald H. BROWN, Secretary of Commerce, Defendant-Appellant, Natural Resources Defense Council, Incorporated; American Sportfishing Association; Center For Marine Conservation; Chesapeake Bay Foundation; Coastal Conservation Association; Conservation Law Foundation, Incorporated; Environmental Defense Fund, Incorporated; Long Island Soundkeeper Fund; National Audubon Society; Trout Unlimited, Amici Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 164

75 F.3d 164

26 Envtl. L. Rep. 20,812

FISHERMEN'S DOCK COOPERATIVE, INCORPORATED, of Point

Pleasant Beach, New Jersey; Belford Seafood Cooperative, of

Belford, New Jersey; Wanchese Fish Company, of Virginia,

North Carolina and Massachusetts; Seafarers International

Union, Plaintiffs-Appellees, v. Ronald H. BROWN, Secretary of Commerce, Defendant-Appellant,

Natural Resources Defense Council, Incorporated; American

Sportfishing Association; Center For Marine Conservation;

Chesapeake Bay Foundation; Coastal Conservation

Association; Conservation Law Foundation, Incorporated;

Environmental Defense Fund, Incorporated; Long Island

Soundkeeper Fund; National Audubon Society; Trout

Unlimited, Amici Curiae.

No. 95-1002.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 30, 1995.

Decided Feb. 2, 1996.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk; Robert G. Doumar, District Judge. (CA-94-338-2).

ARGUED: Jonathan Flint Klein, United States Department of Justice, Washington, D.C., for Appellant. David Earl Frulla, Brand, Lowell & Ryan, P.C., Washington, D.C., for Appellees. ON BRIEF: Lois J. Schiffer, Assistant Attorney General, Robert L. Klarquist, Charles W. Brooks, United States Department of Justice, Washington, D.C.; Helen F. Fahey, United States Attorney, George M. Kelley, III, Assistant United States Attorney, Norfolk, Virginia; Mariam McCall, Joel G. MacDonald, Office of the General Counsel, National Oceanic and Atmospheric Administration, Silver Spring, Maryland, for Appellant. Stanley M. Brand, Brand, Lowell & Ryan, P.C., Washington, D.C., for Appellees. Peter Lehner, Sarah Chasis, William Schrenk, Natural Resources Defense Council, Inc., New York, New York, for Amici Curiae.

Before NIEMEYER and MICHAEL, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Reversed by published opinion. Senior Judge PHILLIPS wrote the opinion, in which Judge NIEMEYER and Judge MICHAEL joined.

OPINION

PHILLIPS, Senior Circuit Judge:

The Secretary of Commerce (the Secretary) appeals a district court order that invalidated the Department of Commerce's commercial catch quota for summer flounder for 1994 and that imposed another quota in its place. Because the district court misapplied the statutory requirement that the Department set the quota in accord with the "best scientific information available," and consequently erred in invalidating the agency-set quota, we reverse.

I

This case involves a challenge by a coalition of commercial fishers (the Coalition) to the 1994 commercial catch quota for summer flounder promulgated by the Department of Commerce (the Department). The Department sets the quota every year through a complex process mandated by the Magnuson Fishery Conservation and Management Act, 16 U.S.C. § 1801 et seq., and by federal regulations, 50 C.F.R. Part 625. Within the Department of Commerce are eight regional fishery management councils, established by the Act, whose job it is to develop plans for the conservation and management of the fish in each council's respective section of the American coastal waters. Among these bodies is the Mid-Atlantic Fishery Management Council ("the Council"), which has among its responsibilities the management of the summer flounder fishery, including the annual setting of the commercial catch quota.

Before it could set annual quotas, the Council was required to develop a Fishery Management Plan for Summer Flounder, which it did in 1992. Amendments to the plan were promulgated in 1993 and 1994 as well. As part of this Plan, the Council had to set for each of several years a "target fishing mortality rate." The fishing mortality rate is a statistic called F that expresses the depletion of the stock of fish attributable to fishers, whether by capture or by discard of fatally wounded fish or otherwise, in a given year. For 1994, the Fishery Management Plan set a target F of 0.53 and thus required that the commercial catch quota for 1994 be set at a level that would ensure that the actual F would not exceed 0.53. See 50 C.F.R. § 625.20(b)/(c).

The process of setting the quota began, for present purposes, with the holding of a Stock Assessment Workshop, a gathering of marine scientists whose mission it was to estimate the size, age structure, and any other relevant characteristics of current populations of various species of fish off the Atlantic coast. The numbers produced by the Workshop for summer flounder were then presented to the Summer Flounder Monitoring Committee (the Monitoring Committee), a sub-unit of the Council, on September 1, 1993 with recommendations from Council staff. The Monitoring Committee is a group of scientists constituted by the Department who are required to recommend, among other things, a commercial catch quota. The quota for 1994 was to be based on the scientific information from the Workshop and was to be designed to ensure that the "fishing mortality rate," F, did not exceed the 0.53 level previously announced as the 1994 target by the Fishery Management Plan. The Monitoring Committee recommended a quota of 16,005,560 pounds. That recommendation then went to the Demersal Species Committee of the Council and to the Atlantic States Marine Fisheries Commission, an interstate organization with which the Council cooperates. Those two bodies, meeting jointly on September 23, approved the Monitoring Committee's recommendation and passed it on to the Council which, in turn, recommended it to the Regional Director for approval. After the requisite notice and comment, during which no objections pertinent to this appeal seem to have been filed, the quota became final in early 1994.

At the heart of the case is the way the Monitoring Committee used the Workshop's data regarding the "recruitment" of summer flounder--that is, the number of new flounder expected to appear in the population in 1994. At the Committee's annual quota-setting meeting, staff member Wendy Gabriel had presented the Committee with the geometric mean of the previous five years' estimated recruitments and the values one standard deviation above and below that mean. Then, on recommendation of Council staff, and specifically following the lead of Gabriel's presentation of the recruitment statistics to the Committee, the Committee chose to recommend that the quota be set on the basis of a conservative estimate of recruitment. In particular, the staff had recommended, and the Committee then chose to use, an estimate of recruitment equal to the figure one standard deviation below the geometric mean rather than a recruitment estimate equal to that geometric mean. As a direct consequence, the Committee recommended that the previous year's quota be increased for 1994 only to about 16 million pounds (a 28% increase) whereas incorporation of the geometric-mean estimate would have boosted the quota to about 19 million pounds.

The lower quota was ratified at every step of review and published in the Federal Register accompanied by four justifications that closely reflected those articulated in the original staff recommendation. As articulated in the Federal Register, the four reasons for using the lower estimate were the following: First, the summer flounder population was composed mainly of fish aged 2 and under; so an overestimate in recruitment would have great power to cause an overestimate in overall stock size and thus "would result in quotas that would exceed the target fishery mortality rate (F level)." Second, "the probability of achieving the target F level is higher at the lower harvest level" with staff estimating an 80% probability that the proposed quota would keep actual F under target F. Third, three risky assumptions--that the previous year's quota would prove to have been adhered to, that all landings get reported, and that discard rates would not increase--underlay the estimate of the stock size and suggested that the stock-size curve might be overly optimistic. Fourth, since the target F was scheduled to decrease dramatically for 1996, it was better to err on the safe side now so as to minimize the chances of having to reduce the 1996 quota even more than was already anticipated. J.A. 350. In short, the Council believed that the uncertainty in the recruitment estimates was so great and the long-term flounder population so fragile a resource for the fishers, especially in light of a coming reduction in the target fishing mortality rate for 1996, that a low estimate of recruitment was the prudent estimate.

In challenging the quota, the Coalition argued that use of the lower estimate rather than the geometric mean in calculating the quota constituted a failure to use the best scientific information available as required by 16 U.S.C. § 1851(a)(2). After holding a three-day hearing to have the administrative record explained, the district court agreed and held that the quota, therefore, represented an arbitrary and capricious decision on the part of the Department. The court concluded that only the geometric-mean estimate could constitute the best scientific information available in this case. On this basis, the court held that "the 1994 commercial catch quota is invalidated to the extent that it deviates downward from the figure reached using the best scientific information available, which was 19.05 million pounds for 1994," Fishermen's Dock Cooperative v. Brown, 867 F.Supp. 385, 386 (E.D.Va.1994), and ordered that the quota be reset at that figure. The key parts of the district court's opinion read as follows:

The Court finds that the use of figures one standard deviation below the mean was arbitrary and capricious. The use of a figure one standard deviation below the mean was chosen not because it was the best scientific information available, but solely because it increased the percentages of reaching not a balanced result but a result which protected the summer flounder stock to the detriment of the...