Fishing Rights Alliance, Inc. v. Pritzker, Case No: 8:15–cv–1254–MSS–MAP

• Decision Date: 30 March 2017
• Docket Number: Case No: 8:15–cv–1254–MSS–MAP
• Parties: The FISHING RIGHTS ALLIANCE, INC., Kurt Theodore, an individual, and Jack Hexter, an individual, Plaintiffs, v. Penny PRITZKER, Secretary of Commerce, Eileen Sobeck, Assistant Administrator for Fisheries, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, National Marine Fisheries Service, Roy Crabtree, Ph.D, Regional Administrator for the National Marine Fisheries Service, Southeast Region, and Charter Fishermans Association, Defendants.
• Court: U.S. District Court — Middle District of Florida

247 F.Supp.3d 1268

The FISHING RIGHTS ALLIANCE, INC., Kurt Theodore, an individual, and Jack Hexter, an individual, Plaintiffs,

v.Penny PRITZKER, Secretary of Commerce, Eileen Sobeck, Assistant Administrator for Fisheries, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, National Marine Fisheries Service, Roy Crabtree, Ph.D, Regional Administrator for the National Marine Fisheries Service, Southeast Region, and Charter Fishermans Association, Defendants.

Case No: 8:15–cv–1254–MSS–MAP

United States District Court, M.D. Florida, TAMPA DIVISION.

Signed March 30, 2017

Craig L. Berman, Berman Law Firm, PA, St Petersburg, FL, for Plaintiffs.

Mark Arthur Brown, US Department of Justice—ENRD, Washington, DC, Adam Babich, Tulane Environmental Law Clinic, New Orleans, LA, Justin Bloom, Justin Bloom, Attorney at Law, Sarasota, FL, for Defendants.

ORDER

MARY S. SCRIVEN, UNITED STATES DISTRICT JUDGE

THIS CAUSE comes before the Court for consideration of Plaintiffs' Motion for Summary Judgment Against the Federal Defendants, (Dkt. 21), Defendants' Response in opposition thereto, (Dkt. 34), Plaintiffs' Reply in support of their Motion, (Dkt. 36), Defendants' Cross–Motion for Summary Judgment, (Dkt. 33), Plaintiffs' Response in opposition thereto, (Dkt. 36), Defendants' Reply in Support of their Motion, (Dkt. 43), the Amicus Curiae Brief Filed on Behalf of Ocean Conservancy and Environmental Defense Fund in Support of Defendants' Motion for Summary Judgment, (Dkt. 46), and the Amicus Curiae Brief filed by the Charter Fisherman's Association in opposition to Plaintiffs' Motion for Summary Judgment. (Dkt. 47) Upon consideration of all relevant filings, case law, and being otherwise fully advised, the Court DENIES Plaintiffs' Motion for Summary Judgment and GRANTS Defendants' Motion for Summary Judgment.

I. STATUTORY AND REGULATORY FRAMEWORK

This case concerns the regulation of the red snapper fishery in the Gulf of Mexico under the Magnuson–Stevens Fishery Conservation and Management Act ("MSA" or "Act"), 16 U.S.C. §§ 1801 et seq. Congress promulgated the MSA with the goal of conserving and protecting the fishery resources in the federal waters of the United States Exclusive Economic Zone ("EEZ"), the area that extends 200 nautical miles from the seaward boundary of each of the coastal states. (AR 16365) The Act established eight (8) Regional Fishery Management Councils with authority over the fisheries within the bodies of water bordering each region. 16 U.S.C. § 1852(a). The Councils are tasked with developing fishery management plans ("FMPs") containing management and conservation measures for the fisheries within the designated region. Every FMP must be "necessary and appropriate for the conservation and management of the fishery, to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery." 16 U.S.C. § 1853. Relevant to the instant case, the Gulf of Mexico Fishery Management Council ("Gulf Council"), which consists of the States of Texas, Louisiana, Mississippi, Alabama and Florida, is empowered to prepare FMPs concerning the fisheries in the Gulf of Mexico. 16 U.S.C. § 1852(a)(1)(E).

The members of the Gulf Council must vote to adopt an FMP or an amendment to an FMP, after which time, the FMP is submitted to the Secretary of Commerce for approval. 16 U.S.C. § 1852(e)(1), (h)(1). The Secretary of Commerce, through a delegation of authority, acts through the National Marine Fisheries Service ("NMFS"). Gulf Fishermen's Ass'n v. Gutierrez , 529 F.3d 1321, 1322 (11th Cir. 2008). NMFS reviews the plan or amendment and publishes it in the Federal Register for public comment for a 60–day period, after which time NMFS shall approve, disapprove, or partially approve the plan or amendment. 16 U.S.C. § 1854. Once NMFS approves an FMP or amendment to an FMP, it is implemented as a regulation in the Federal Register and has the force of law.

FMPs must be consistent with ten National Standards provided in the MSA. 16 U.S.C. § 1851. The following three National Standards are pertinent to this case:

(4) Conservation and management measures shall not discriminate between residents of different States. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges.

(5) Conservation and management measures shall, where practicable, consider efficiency in the utilization of fishery resources; except that no such measure shall have economic allocation as its sole purpose.

(10) Conservation and management measures shall, to the extent practicable, promote the safety of human life at sea.

Furthermore, the MSA contains a provision that specifically addresses the Gulf Council's governing of the red snapper fishery. Section 407(d) of the MSA, entitled "Catch Limits" provides:

Any fishery management plan, plan amendment, or regulation submitted by the Gulf Council for the red snapper fishery after October 11, 1996, shall contain conservation and management measures that—

(1) establish separate quotas for recreational fishing (which, for the purposes of this subsection shall include charter fishing) and commercial fishing that, when reached, result in a prohibition on the retention of fish caught during recreational fishing and commercial fishing, respectively, for the remainder of the fishing year; and

(2) ensure that such quotas reflect allocations among such sectors and do not reflect any harvests in excess of such allocations.

16 U.S.C. § 1883(d). As such, the red snapper quota must be divided between the recreational and commercial sectors.

II. FACTUAL BACKGROUND

A. History of the Management of the Red Snapper Fishery in the Gulf of Mexico

In November 1984, the Secretary implemented the Reef Fish FMP, the fishery management plan governing the red snapper fishery in the Gulf of Mexico. Original Fishery Management Plan for the Reef Fish Fishery of the Gulf of Mexico, 49 Fed. Reg. 39,548 (Oct. 9, 1984). In 1990, the Gulf Council determined that the red snapper population was "severely overfished" and began efforts to rebuild the red snapper stock. Amendment 1 to the Reef Fish FMP, 55 Fed. Reg. 2,078 (Jan. 22, 1990) ; see also 16 U.S.C. § 1854 (requiring Regional Councils to prepare and implement an FMP or amendment to an FMP "to end overfishing immediately in the fishery and to rebuild affected stocks of fish" upon awareness that a fishery is overfished). By 2005, the red snapper stock, still overfished, reflected a population of about seven percent of its historic abundance. Coastal Conservation Ass'n v. Gutierrez , 512 F.Supp.2d 896, 898 (S.D. Tex. 2007) (citing Amendment 22 to the Reef Fish FMP).

Over time and through the implementation of various conservation and management measures, the red snapper stock began to recover, allowing for an increased quota for both the commercial sector and the recreational sector of the red snapper fishery. (AR 16276, 16328) Nonetheless, the recreational sector, which is managed under a quota, bag and size limits, and closed seasons has consistently exceeded its allotted quota every year except two from 1997 to 2013.¹ (AR 16332) In 2014, a federal district court required NMFS to implement further accountability measures within the recreational sector to reduce overfishing. Guindon v. Pritzker , 31 F.Supp.3d 169, 197 (D.D.C. 2014) (citing 16 U.S.C. § 1853(a)(15) ).

One measure historically implemented to help the rebuilding effort in the red snapper fishery is the shortening of the recreational sector's season. (AR 16348) For example, in 2008, the federal red snapper recreational season length was reduced from 194 days to 65 days. (AR 16330) In 2014, prompted by the Guindon decision, NMFS implemented an emergency rule that reduced the federal season to only 9 days. (AR 16390) However, the federal season length reduction has been counteracted by non-conforming state regulations allowing for substantially longer seasons for red snapper fishing. For instance, in 2014, while the federal season was nine days long, Texas waters were open for a total of 365 days, Louisiana for 286 days, Florida for 52 days, and Mississippi and Alabama for 21 days. (AR 16277) NMFS must take into account the amount of red snapper stock harvested in state waters when determining when the recreational quota is reached, see 50 C.F.R. § 622.8(a). Thus, "when states adopt inconsistent, less restrictive regulations for state waters[,] the length of the federal recreational red snapper season must be shortened to account for increased landings from state waters." (AR 16321) For example, in 2014, since "over half of the recreational quota was projected to be caught outside of the federal season in 2014[,] the remaining recreational quota only allowed for a nine-day season to be set." (AR 16322)

The impact of the inconsistent federal and state seasons is felt most by federally permitted for-hire vessels. For-hire vessels are charter vessels and headboats² on which anglers pay operators to be taken on a fishing trip. (AR 16276) Federal for-hire vessels' red snapper fishing opportunities are limited to those provided under federal law because such vessels are not permitted to fish for red snapper in state waters during the state season. (AR 16371); see 74 Fed. Reg. 17,603 (Apr. 16, 2009) ; 50 C.F.R. § 622.20(b)(3). In contrast, recreational private anglers enjoy both federal and state waters access during their respective seasons. (AR 16371) Additionally, because there has been a moratorium on the issuance of new federal reef fish for-hire permits since 2004, fishing access in federal waters by non-boat-owning anglers is limited. (AR 16288, 16294)

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