Gen. Category Scallop Fishermen v. Sec'y

• Decision Date: 16 March 2011
• Docket Number: No. 10–2341.,10–2341.
• Citation: 635 F.3d 106
• Parties: GENERAL CATEGORY SCALLOP FISHERMEN, Appellantv.SECRETARY, UNITED STATES DEPARTMENT OF COMMERCE; The National Oceanic and Atmospheric Administration; The National Marine Fisheries Service.
• Court: U.S. Court of Appeals — Third Circuit

635 F.3d 106

GENERAL CATEGORY SCALLOP FISHERMEN, Appellant

v.SECRETARY, UNITED STATES DEPARTMENT OF COMMERCE; The National Oceanic and Atmospheric Administration; The National Marine Fisheries Service.

No. 10–2341.

United States Court of Appeals, Third Circuit.

Argued: Jan. 27, 2011.Filed: March 16, 2011.

Patrick F. Flanigan, Esq. (Argued), Swarthmore, PA, for Plaintiff–Appellant.Thekla Hansen–Young, Esq. (Argued), United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Defendant–Appellee.Before: McKEE, Chief Judge, SMITH, Circuit Judge, and STEARNS, District Judge.^*

OPINION

STEARNS, District Judge.

This appeal arises from a dispute over the right of fishermen to access the Atlantic Sea Scallop Fishery. At issue is an order of the United States District Court for the District of New Jersey denying summary judgment on all claims by Appellants, who are former general category scallop permit holders, while granting summary judgment on all claims to Appellees Gary Locke, in his capacity as Secretary of the United States Department of Commerce, National Oceanic and Atmospheric Administration (NOAA), and National Marine Fisheries Service (NMFS). We are asked to resolve: (1) whether NMFS complied with the Administrative Procedures Act (APA), 5 U.S.C. §§ 701–706, and the Magnuson–Stevens Fishery Conservation and Management Act of 1976 (Magnuson–Stevens Act), 16 U.S.C. §§ 1801–1883, when it promulgated regulations implementing Amendment 11 to the Atlantic Sea Scallop Fishery Management Plan, including a “control date” that effectively terminated the access rights of general scallop fishermen who were not established in the fishery prior to November 1, 2004; (2) whether the process by which Amendment 11 was adopted complied with the Magnuson–Stevens Act requirement that public hearings be held in “appropriate locations in the geographical area” that will be affected by changes to a Fishery Management Plan (FMP); (3) whether NMFS reasonably concluded that Amendment 11's reliance on NMFS internal dataset to determine permit eligibility complied with the Magnuson–Stevens Act's National Standard 2, which requires the use of the “best scientific information available”; and (4) whether NMFS reasonably concluded that Amendment 11's limitations on the general category scallop fishery were consistent with the Magnuson–Stevens Act's National Standard 5, which prohibits the implementation of any fishery management measure that has “economic allocation as its sole purpose.” We will affirm the judgment of the District Court.²

I.The Magnuson–Stevens Act

The Magnuson–Stevens Act, as amended by Congress in 1990 and 1996, delegates to NMFS, by and through the Secretary of Commerce, the authority to implement a comprehensive national fisheries management program in order “to prevent overfishing, to rebuild overfished stocks, to insure conservation, to facilitate long-term protection of essential fish habitats, and to realize the full potential of the Nation's fishery resources.” See 16 U.S.C. § 1801(a)(6).³ The Secretary's authority is exercised through eight Regional Fishery Management Councils composed of state fishery managers, the regional NMFS fisheries administrator, and representatives of the fishing, environmental, and academic communities. The Councils are responsible for preparing FMPs and recommending implementing regulations for the Exclusive Economic Zone that stretches 200 nautical miles seaward from the coastal boundaries of the States within each region.⁴ The task of approving an FMP falls to the Secretary of Commerce, who is mandated to review the FMP to ensure that it complies with the ten “National Standards” established by the Magnuson–Stevens Act.⁵ See 16 U.S.C. § 1851(a)(1)-(10). The Secretary must also publish the proposed FMP and accept public comment for a 60–day period before giving his or her final approval. 16 U.S.C. § 1854(a)(1)(B). An implementing regulation goes through the same process of review, although the Secretary may limit the period for public comment to a minimum of 15 days. 16 U.S.C. § 1854(b)(1)(A). NMFS is the executive agency responsible for overseeing the enforcement of an approved FMP and any of its attendant regulations.

The New England Fishery Management Council and the Scallop Fishery

The development of the Atlantic Sea Scallop FMP is the responsibility of the New England Fishery Management Council (NEFMC). All parties agree that the NEFMC is not an “agency” within the meaning of the APA. In 1994, the “limited access” scallop FMP then in place was amended (Amendment 4) to provide for an “open access” fishery to “allow a flexible program for seasonal or opportunistic fisheries targeting inshore scallops.” Both “limited access” and “open access general category” scalloping permits authorized the harvest of up to 400 pounds of Atlantic sea scallops daily. Only large-scale scallop boats, however, were eligible for the “limited access” permits. Small-scale scallop fishing vessels and vessels that harvested scallops as an incidental bycatch were issued “general category” permits. The Appellants are small-scale general category scallop fishermen.

After the passage of Amendment 4, the number of general category permit holders exploded, fueling concerns about overfishing.⁶ These concerns prompted the NEFMC to consider regulatory responses to limit the number of participants in the general category scallop fishery. On August 31, 2004, the NEFMC published a “Notice of a Public Meeting” in the Federal Register announcing a three-day meeting to be held from September 14–16, 2004, in Fairhaven, Massachusetts, “to consider actions affecting New England fisheries in the exclusive economic zone.” According to the meeting agenda, among the issues that “[might] be discussed” were “actions to address overfishing” and “actions to cap or reduce general category scallop landings and/or improve reporting measures.”

During the meeting, NEFMC Vice–Chairman Thomas Hill announced his intention “to propose a motion to establish a control date effective [upon] publication of the Federal Register ... that would freeze the number of permits in the fishery.” ⁷ One of the participants (Maggie Raymond of the Associated Fisheries of Maine) objected that the subject of a control date “was not posted on the agenda [and so] this would be the only opportunity for the public to speak to that.” Hill replied that the NEFMC “never notifie[s] the public in advance,” because it “defeats the purpose of the control date if you notify in advance.” Hill's motion to publish notice of a control date for the general category permit scallop fishery was adopted by a 13–1 vote, with two abstentions.

NMFS published the notice in the Federal Register on November 1, 2004. In relevant part, the Advance Notice of Proposed Rulemaking (ANPR) sought public comment on:

proposed rulemaking to control future access to the open access vessel permit category (general category) Atlantic sea scallop fishery if a management regime is developed and implemented under [the Magnuson–Stevens Act] to limit the number of participants in this sector of the scallop fishery.... This announcement is intended, in part, to promote awareness of potential eligibility criteria for future access so as to discourage speculative entry into the fishery while the [NEFMC] considers whether and how access to the general category sea scallop fishery could be controlled. The date of publication of this notice, November 1, 2004, shall be known as the “control date” and may be used for establishing eligibility criteria for determining levels of future access to the sea scallop fishery subject to Federal authority.

69 Fed.Reg. 63341.

Amendment 11

In January of 2006, the NEFMC initiated a “scoping” process inviting the fishing public to participate in the crafting of Amendment 11 to the Atlantic Sea Scallop FMP.⁸ As announced, the purpose of Amendment 11 was to establish “criteria and authority for determining the percentage of scallop catch allocated to the general category fleet” and to implement an Individual Fishing Quota (IFQ) permit system. Between February of 2006 and June of 2007, the NEFMC held 35 public meetings in seven states to discuss the adoption of Amendment 11. On April 11, 2007, the NEFMC submitted a Draft Supplemental Environmental Impact Statement to NMFS, the final version of which was submitted to NMFS on September 24, 2007. The NEFMC formally adopted Amendment 11 on June 20, 2007. On December 17, 2007, NMFS published Amendment 11 in the Federal Register with its proposed implementing regulations and invited public comment through January 31, 2008. On February 27, 2008, NMFS adopted Amendment 11 on behalf of the Secretary of Commerce. The final rule was published on April 14, 2008, and took effect on July 1, 2008.

Amendment 11 significantly reduced the number of vessels eligible to participate in the scallop harvest by replacing the open access general category fishery with a “limited access general category” (LAGC). Amendment 11 provides for three classes of LAGC scalloping permits: (1) an IFQ permit; (2) a Northern Gulf of Maine permit; and (3) an incidental catch permit. At issue in this appeal is the IFQ permit, which allows a permittee to land up to 400 pounds of shucked scallop meat per trip.⁹

To be eligible for an IFQ permit, NMFS records must confirm that the applicant vessel landed at least 1,000 pounds of scallop meat in any fishing year between March 1, 2001, and November 1, 2004. The vessel must also have been issued a general category scallop permit during the fishing year in which the qualifying landing was made. The individual quota is determined by a formula that weights the vessel's best year of scalloping and the number of years it has been actively engaged in scallop fishing. These numbers are derived from NMFS landings data compiled from dealer reports. A vessel owner may...