FISHERMEN'S DOCK CO-OP. v. Brown

• Decision Date: 28 October 1994
• Docket Number: Civ. A. No. 2:94cv338.
• Citation: 867 F. Supp. 385
• Parties: FISHERMEN'S DOCK COOPERATIVE, INC. OF POINT PLEASANT BEACH, NEW JERSEY et al., Plaintiffs, v. Ronald H. BROWN, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

867 F. Supp. 385

FISHERMEN'S DOCK COOPERATIVE, INC. OF POINT PLEASANT BEACH, NEW JERSEY et al., Plaintiffs, v. Ronald H. BROWN, Defendant.

Civ. A. No. 2:94cv338.

United States District Court, E.D. Virginia, Norfolk Division.

November 4, 1994.

Nunc Pro Tunc October 28, 1994.

Waverley Lee Berkley, III, McGuire, Woods, Battle & Boothe, Norfolk, VA, Stanley M. Brand, David E. Frulla, Brand & Lowell, Washington, DC, for plaintiffs Fishermen's Dock Co-op., of Point Pleasant Beach, NJ, Belford Seafood Co-op. of Belford, NJ, Wanchese Fish Co. of Virginia, North Carolina and Massachusetts, and Seafarers Intern. Union.

George M. Kelley, III, U.S. Attys. Office, Norfolk, VA, Charles W. Brooks, U.S. Dept. of Justice, Environment and Natural Resources Div., Washington, DC, Joel G. MacDonald, U.S. Dept. of Commerce, National Oceanic and Atmospheric Admin., Office of Gen. Counsel, Gloucester, MA, for defendant Ronald H. Brown, Secretary of Commerce.

OPINION AND ORDER

DOUMAR, District Judge.

Plaintiffs bring this action challenging the 1994 commercial catch quotas for summer flounder set by the Secretary of Commerce, Ronald H. Brown, and his designees, and asking that the quota be set aside. For the reasons discussed below, this Court finds that the plaintiffs' request should be GRANTED; accordingly, 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.

Factual Background

Plaintiffs are a coalition of owners and operators of fishing vessels from up and down the Eastern Seaboard and organizations representing them.¹ Plaintiffs brought this action against the Honorable Ronald H. Brown, Secretary of the Department of Commerce (the "Secretary"), in his official capacity, pursuant to the Magnuson Fishery Conservation and Management Act, 16 U.S.C. § 1801 et seq. (the "Magnuson Act") seeking review of the 1994 commercial catch quota for the summer flounder fish species (the "1994 quota").

Congress passed the Magnuson Act in 1976 to regulate fishery resources in federal waters off the coasts of the United States. 16 U.S.C. § 1801(b). Under the Magnuson Act, Regional Fishery Management Councils promulgate fishery management plans ("FMPs") which regulate fishing within their respective regions. 16 U.S.C. § 1852(h). The fishery management plans must be consistent with the seven national standards for fishery conservation and management set forth at 16 U.S.C. § 1851.² Fisheries off the Atlantic Coast are managed by three different councils: the New England, Mid-Atlantic, and South Atlantic Fishery Management Councils. 16 U.S.C. § 1852(a)(1)-(3). These three councils, in conjunction with the Atlantic States Marine Fisheries Commission ("ASMFC"), prepared what the parties refer to as "Amendment 2," a body of regulations under which the summer flounder quotas were set. 50 C.F.R. § 625.20.

Amendment 2 requires that the Summer Flounder Monitoring Committee ("SFMC") review a number of factors³ "to determine the allowable levels of fishing and other restrictions necessary to result in a fishing mortality rate of 0.53 for the year 1994, and using that information, recommend a commercial quota to the Demersal Species Committee of the Mid-Atlantic Fishery Management Council ("MAFMC" or "Council") and to the ASMFC. 50 C.F.R. § 625.20(b)(1). Final approval of the FMP is reserved for the Secretary of Commerce; he must examine the plan to determine whether it is consistent with the National Standards, the Magnuson Act, and other applicable law. 16 U.S.C. § 1854(a). If the Secretary (or the Regional Director of the National Marine Fisheries Service ("NMFS"), on behalf of the Secretary) does not notify the Council that he disapproves of the FMP, the plan takes effect after publication in the Federal Register and after 95 days have elapsed from the time of receipt. 16 U.S.C. § 1854(b)(1)(A). Alternatively, the FMP takes effect if the Secretary (or Regional Director of NMFS) notifies the Council in writing that he does not intend to disapprove of the plan between 60 and 95 days after receipt. 16 U.S.C. § 1854(b)(1)(B).

After accumulating and analyzing scientific information about the factors set forth at 50 C.F.R. § 625.20, the SFMC provided the Council with three potential quota figures for meeting a fishing mortality rate of 0.53 in 1994: the geometric mean (19.05 million pounds)⁴, one standard deviation above the mean, and one standard deviation below the mean (16.005 million pounds). The Council set the 1994 summer flounder commercial catch quota at 16.005 million pounds, one standard deviation below the geometric mean. 59 Fed.Reg. 10587 (1994).

Plaintiffs contend that the 1994 commercial quota recommendation made by defendant's designees as required by Amendment 2, and accepted by the defendant, violated National Standard 2 of the Magnuson Act, 16 U.S.C. § 1851(a)(2). Specifically, plaintiffs claim that defendant's designees failed to use the best scientific information available to them in a number of areas when setting the 1994 quotas, and instead substituted their own arbitrary and overly conservative estimates of recruitment, stock size, and discard mortality, then arbitrarily deviated from the figure reached using these estimates. Moreover, plaintiffs contend that defendant's designees completely disregarded other available scientific information, including commercial catch indices and sea surface temperature. As a result, plaintiffs claim that the 1994 quota is arbitrary and capricious. See 16 U.S.C. § 1855(d). Defendant counters that the information used in setting the quota was the best scientific information available at the time the quota was set. Further, defendant claims that the estimates utilized in creating the quota were derived directly from the data and based on the opinions and analyses of the scientists involved in the 16th Summer Assessment Workshop, the meeting at which the summer flounder data is presented and subjected to peer review. Therefore, defendant contends, the 1994 commercial catch quota was not arbitrary and capricious.

Plaintiffs also argue that the meetings at which these decisions were made were not open to the public, as required by 16 U.S.C. § 1852(j).⁵ Plaintiffs contend that the process systematically excluded the opinions and input of commercial fishermen, and discouraged them from attending the meetings at which the quotas were set. Defendant counters that his designees complied with the guidelines for conducting business at council and committee meetings.

Procedural Background

Plaintiffs brought what appears to have been a similar suit during the summer of 1993 in the United States District Court for the District of Columbia challenging the 1993 flounder quota (the "1993 suit"). The District Court was unable to hear the parties' cross motions for summary judgment in the 1993 suit until December 14, 1993, and at that time found the matter moot because the effective period of the 1993 quota was to expire on December 31, 1993. The court dismissed the suit without prejudice and instructed plaintiffs that if they brought any challenges to later summer flounder quotas in the District of Columbia, the court would consider those challenges related to the 1993 suit so that the judge familiar with the facts and law could hear them. Plaintiffs have appealed the court's ruling that the 1993 suit was moot.

Plaintiffs filed the present suit in this court on April 5, 1994. On June 3, 1994, defendant filed an Answer and a Motion and Memorandum in Support to Transfer Venue to the United States District Court for the District of Columbia. On June 14, 1994, plaintiffs filed a Memorandum in Opposition to defendant's Motion and a Motion to Expedite Consideration of this Case pursuant to 16 U.S.C. § 1855(b)(4),⁶ on the grounds that the effective period of the quota expires on December 31, 1994. On July 12, 1994, the Court denied defendant's Motion to Transfer Venue and granted plaintiffs' Motion to Expedite Consideration of the case.

Counsel for both sides entered a Joint Motion to Submit Case on Cross Motions for Summary Judgment on July 26, 1994. Both parties filed their Motions for Summary Judgment on August 15, 1994. On September 12, 1994, the Court heard oral argument on the motions, and on September 19, 1994, the Court denied both Motions for Summary Judgment and ordered the parties to prepare to try the issue of whether defendant's designees used the best scientific information available in setting the 1994 summer flounder quota. Trial commenced on October 17, 1994.

Findings of Fact

1. Quota setting is an imperfect process. It appears to the Court that despite the enormous number of tables generated and the amount of scientific information presented, the scientists are still far from certain about such things as stock size, recruitment and the like. The problem with attempting to make these determinations is that scientific data as to certain environmental factors is simply not available; therefore, scientists can only guess as to the impact environmental factors will have on the fishery in any given year. To the extent that good scientific information on many of these factors exists, the scientists have that information; however, the monitoring of environmental factors could be much better. In many instances, the best scientific information available appears to be whatever information the scientists have collected.

2. Generally, the Court finds that the information utilized by the scientists was deficient in several areas. However, the Court also finds that plaintiffs have been unable to show how other information would affect any of the results or the quota setting process.

3. It appears to the Court that the geometric or arithmetic mean used in any particular situation was chosen so as to generate the most conservative result in the quota setting...