Gen. Category Scallop Fishermen v. Sec'y Of United States Dep't Of Commerce

Citation720 F.Supp.2d 564
Decision Date14 April 2010
Docket NumberCivil Action No. 08-2264 (MLC).
PartiesGENERAL CATEGORY SCALLOP FISHERMEN, Plaintiffs, v. SECRETARY OF UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.
CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey

OPINION TEXT STARTS HERE

COPYRIGHT MATERIAL OMITTED.

Patrick F. Flanigan, Law Office of Patrick Flanigan, Swarthmore, PA, for Plaintiffs.

Bradley H. Oliphant, United States Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

COOPER, District Judge.

Plaintiffs, former general category scallop permit holders, brought this action against the Secretary of the United States Department of Commerce (Secretary), the National Oceanic and Atmospheric Administration (“NOAA”), and the National Marine Fisheries Service (“NMFS” and, collectively, defendants). (Dkt. entry no. 21, 2d Am. Compl. at 1.) Plaintiffs challenge a final rule issued by the NMFS on behalf of the Secretary, Amendment 11 to the Atlantic Sea Scallop Fishery Management Plan, 73 Fed. Reg. 20090 (Apr. 14, 2008) (codified at 50 C.F.R. pt. 648) (Amendment 11). ( Id. at 2.) Plaintiffs allege that Amendment 11 violates, inter alia, the United States Constitution, the Administrative Procedures Act, and the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (“Magnuson-Stevens Act). 1

Plaintiffs now move for summary judgment in their favor, pursuant to Federal Rule of Civil Procedure (“Rule”) 56, seeking a judgment declaring Amendment 11 invalid and remanding Amendment 11 for development consistent with the law. (Dkt. entry no. 26, Pl. Mot. Summ. J.; dkt. entry no. 36, Pl. Notice of Re-filing; Pl. Br. at 4.) Defendants cross-move for summary judgment in their favor. (Dkt. entry no. 30, Defs. Cross Mot. Summ. J.; dkt. entry no. 37, Defs. Notice of Re-filing.) The Court held a hearing on January 27, 2010. The Court has reviewed the parties' written submissions, as well as the Administrative Record (“A.R.”). For the reasons stated herein, the Court will deny the motion and grant the cross motion.

BACKGROUND
I. Magnuson-Stevens Act

The Magnuson-Stevens Act delegates authority to the NMFS and the Secretary to manage and conserve coastal fisheries. (Dkt. entry no. 30, Defs. Br. at 3; Pl. Br. at 3.) The Magnuson-Stevens Act created eight Regional Fishery Management Councils (“Councils”), which prepare fishery management plans (“FMP”) or FMP amendments and recommend implementing regulations for each fishery under their authority. (Defs. Br. at 3; Pl. Br. at 3; dkt. entry no. 26, Joint Stmt. of Material Facts Not in Dispute at ¶ 2.) See 16 U.S.C. §§ 1852, 1854.

The New England Fishery Management Council (“NEFMC” or “Council”) has responsibility for recommending management measures for the Atlantic sea scallop fishery (“fishery”). (Defs. Br. at 3; Pl. Br. at 4.) 2 See also 50 C.F.R. § 600.110(a); 69 Fed. Reg. 35194 (June 23, 2004). Councils transmit the FMPs or amendments and proposed regulations to the Secretary for review. (Defs. Br. at 4.) See 16 U.S.C. § 1854. After a public comment period, the Secretary, if appropriate, approves the FMP or amendment. (Defs. Br. at 5; Pl. Br. at 3.) See 16 U.S.C. § 1854(a). The Secretary publishes proposed regulations in the Federal Register, and, after a public comment period, promulgates final regulations. (Defs. Br. at 5.) See 16 U.S.C. § 1854(b). FMPs, amendments, and rules implementing the same, must balance the needs of the fishery users against conservation goals, consistent with ten national standards listed in the Magnuson-Stevens Act. (Joint Stmt. at ¶ 3.) See 16 U.S.C. § 1851(a).

II. General Category Scallop Fishery Prior to Amendment 11

The management plan for the Atlantic Ocean scallop fishery was amended in 1994 to establish an “open access” scallop fishery. See Amendment 4 to Atlantic Sea Scallop FMP, 59 Fed. Reg. 2757 (Jan. 19, 1994). Under Amendment 4, the FMP provided for either a “limited access” or “open access general category” scallop permit, and it allowed holders of either type of permit to fish up to 400 pounds of Atlantic sea scallops per day. (Joint Stmt. at ¶ 7; Defs. Br. at 4-5.) 3

Vessels eligible for “limited access” permits under Amendment 4 were generally the large-scale scallop fishing boats, commonly referred to as “trip boats” because they remain at sea for several days at a time. ( See Pl. Br. at 29 n. 17.) Vessels eligible for “general category” permits under Amendment 4 were either small-scale scallop fishing vessels, or vessels holding non-scallop fishing permits that would harvest scallops as incidental to their fishing catch. See Advance Notice of Proposed Rulemaking, 69 Fed. Reg. 63341 (Nov. 1, 2004) (noting that the NEFMC's “original intent in establishing the general category scallop permit [program] implemented in 1994 ... was to accommodate customary scallop bycatch in other fisheries and allow a flexible program for seasonal or opportunistic fisheries targeting inshore scallops”). Plaintiffs are all small-scale general category scallop fishermen who, prior to Amendment 11, were able to catch up to 400 pounds of scallops per day under their permits.

Participation levels in the general category scallop fishery rose under Amendment 4, and in response the NEFMC began to consider methods to limit that participation. Those potential methods included limiting the eligibility criteria for future permits. (Defs. Br. at 5-6.) A “Notice of a Public Meeting” was published in the Federal Register on August 31, 2004, advising that NEFMC would hold a three-day meeting on September 14-16, 2004, “to consider actions affecting New England fisheries in the exclusive economic zone (EEZ).” 69 Fed. Reg. 53045 (Aug. 31, 2004). 4 The notice advised that the scallop committee of the NEFMC would receive management advice on issues including “actions to cap or reduce general category scallop landings.” Id. The agenda for the September 14-16, 2004 meeting advised that with regard to the scallop fishery, “the following issues may be discussed ... actions to address overfishing ... [and] actions to cap or reduce general category scallop landings and/or improve reporting measures....” (A.R. at 3165.)

During the NEFMC meeting, the vice-chairman of the NEFMC stated his intention “to propose a motion to establish a control date effective [on] publication of the Federal Register ... that would freeze the number of permits in the fishery.” (Pl. Br. at 8; A.R. at 3493.) 5 Although a participant at the meeting objected to the NEFMC's taking this action because the agenda for the meeting had not indicated that a control date would be considered, the vice-chairman responded that “it defeats the purpose of the control date if you notify in advance.” (A.R. at 3593-94.) The NEFMC proceeded to vote on September 14, 2004, whether to publish a notice in the Federal Register. (A.R. at 3586-97.) The motion that the NEFMC request that a control date be published in the Federal Register for the general category permit scallop fishery passed 13-1, with two abstentions. (A.R. at 3600.)

NMFS published a notice in the Federal Register on November 1, 2004, at the recommendation of the NEFMC, informing the public that it was considering further regulation of the scallop fishery. (Defs. Br. at 5.) That “Advance Notice of Proposed Rulemaking” states in pertinent part:

NMFS announces that it is considering, and is seeking 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 Fishery Conservation and Management Act (Magnuson-Stevens Act) to limit the number of participants in this sector of the scallop fishery. This sector of the fishery includes vessels with general category permits, as well as vessels with limited access scallop permits that land scallops while not on a scallop day-at-sea (DAS). 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 New England Fishery Management Council (Council) considers whether and how access to the general category sea scallop fishery should 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 (Nov. 1, 2004) (emphasis added).

III. Amendment 11 to the Atlantic Sea Scallop FMP

Amendment 11 is an amendment to the FMP for the Atlantic Sea Scallop Fishery. (Defs. Br. at 6.) It “establishes criteria and authority for determining the percentage of scallop catch allocated to the general category fleet,” and establishes an Individual Fishing Quota (“IFQ”) permit system. 73 Fed. Reg. at 20090.

The NEFMC began to develop Amendment 11 in January 200 6 to consider means of curtailing the amount of scallop landings by the general category fleet, and held 35 meetings between January 2006 and June 2007 to discuss alternatives to a limited access program for the general category vessels. Id. The NEFMC adopted a Draft Supplemental Environmental Impact Statement on April 11, 2007, which sets forth the proposed action and discussion of alternative actions considered, with rationales for preferred action. Id. ( See A.R. at 12630 (April 2007 DSEIS).) A Final Supplemental Environmental Impact Statement was submitted to NMFS on September 24, 2007. (A.R. at 13414 (September 2007 FSEIS).)

The NEFMC adopted Amendment 11 on June 20, 2007, and a proposed rule for Amendment 11 was published in the Federal Register in December 2007 with a comment period ending in January 2008. (Joint Stmt. at ¶ 10.) See Proposed Rule and Request for Comments, 72 Fed. Reg. 71315 (Dec. 17, 2007). The NMFS approved Amendment 11 on February...

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