Guindon v. Pritzker

• Decision Date: 26 March 2014
• Docket Number: Civil Action No. 13–00988 BJR
• Citation: 31 F.Supp.3d 169
• Court: U.S. District Court — District of Columbia
• Parties: Keith Guindon, et al., Plaintiffs, v. Penny Sue Pritzker, in her official capacity as Secretary of the United States Department of Commerce; National Oceanic and Atmospheric Administration; and National Marine Fisheries Service, Defendants, and Coastal Conservation Association, Defendant–Intervenor.

31 F.Supp.3d 169

Keith Guindon, et al., Plaintiffs

v. Penny Sue Pritzker, in her official capacity as Secretary of the United States Department of Commerce; National Oceanic and Atmospheric Administration; and National Marine Fisheries Service, DefendantsandCoastal Conservation Association, Defendant–Intervenor.

Civil Action No. 13–00988 BJR

United States District Court, District of Columbia.

Filed March 26, 2014

J. Timothy Hobbs, K & L Gates, LLP, Seattle, WA, Michael Fenton Scanlon, K & L Gates LLP, Washington, DC, for Plaintiffs.

Mark Arthur Brown, Sr., Joanna K. Brinkman, U.S. Department of Justice, Washington, DC, for Defendants.

Mark C. Rutzick, Mark C. Rutzick, Incorporated, Oak Hill, VA, for Defendant–Intervenor.

MEMORANDUM OPINION GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Barbara Jacobs Rothstein, Judge.

This case concerns management of the red snapper fishery in the Gulf of Mexico. The responsibility of managing the fishery lies with the Secretary of Commerce (“Secretary), through the National Marine Fisheries Service (NMFS), a sub-agency of the National Oceanic and Atmospheric Administration (NOAA). Plaintiffs are commercial fishermen challenging three NMFS regulations that set quotas and fishing season lengths for the recreational sector of the fishery. Plaintiffs bring claims under the Magnuson–Stevens Fishery Conservation and Management Act (“MSA”), 16 U.S.C. §§ 1801 –1884, the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701 –06, and the National Environmental Policy Act (“NEPA”), 42. U.S.C. § 4321 et seq. Plaintiffs, Defendants, and Defendant–Intervenor have moved for Summary Judgment. Having reviewed the parties' briefs and the administrative record, and having heard oral argument from all sides, the Court grants Plaintiffs' Motion for Summary Judgment and denies Defendants' and Defendant–Intervenor's cross-motions.

I. BACKGROUND

A. Statutory and Regulatory Framework

Congress enacted the MSA “to conserve and manage the fishery resources found off the coasts of the United States,” “to promote domestic commercial and recreational fishing under sound conservation and management principles,” and “to provide for the preparation and implementation, in accordance with national standards, of fishery management plans which will achieve and maintain, on a continuing basis, the optimum yield from each fishery.” 16 U.S.C. § 1801(b). As a matter of declared policy, Congress sought “to assure that the national fishery conservation and management program utilizes, and is based upon, the best scientific information available.” Id. § 1801(c)(3).

The MSA divides the country into eight regions, and establishes a council in each region to manage the region's marine fisheries. See id. § 1852. Each regional council must prepare a fishery management plan (hereinafter “FMP”) for each fishery that falls under its authority, along with any amendments to the FMP that are necessary from time to time. Id. § 1852(h)(1). The councils submit FMPs, FMP amendments, and proposed regulations to the Secretary, who reviews the submissions for consistency with the MSA and other applicable laws. Id. § 1854(a). The Secretary, acting through NMFS, must approve, disapprove, or partially approve the submission within 30 days. Id. Proposals submitted by the Council to the Secretary are also called “framework actions,” in that they provide a framework from which the Secretary may issue one or more implementing regulations.

1. National Standards

The legal framework Congress established to direct the management of fish stocks is of necessity multifaceted, specific, and complex. To accomplish the overall goals of the MSA, Congress set forth ten “national standards for fishery conservation and management” at the beginning of the statute. Id. § 1851. Three are relevant to this action:

Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry. Id. § 1851(a)(1) (“National Standard 1”).

Conservation and management measures shall be based upon the best scientific information available. Id. § 1851(a)(2) (“National Standard 2”).

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. Id. § 1851(a)(4) (“National Standard 4”)

FMPs and FMP amendments must conform to the National Standards. See id. § 1851(a). Any proposed regulations must conform to the National Standards and to the FMP. Id. §§ 1851(a), 1854(b)(1).

2. Other Relevant MSA Provisions

In addition to the National Standards, the MSA contains two other requirements relevant to this action. Section 303(a)(15) of the MSA requires that every FMP “establish a mechanism for specifying annual catch limits in the plan ... implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.” Id. § 1853(a)(15). Congress added this requirement in 2007. See Pub.L. No. 109–479, § 104(a)(10), 120 Stat 3575, 3584 (2007).

Section 407(d), an MSA provision specific to the Gulf of Mexico red snapper fishery, requires that any FMP, FMP amendment, or implementing regulation must contain conservation and management measures that “establish separate quotas for recreational 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.” 16 U.S.C. § 1883(d)(1). Congress added this provision as part of the Sustainable Fisheries Act of 1996. See Pub.L. 104–297, § 207(b), 110 Stat. 3559, 3614 (1996).

It also bears noting that states manage their own waters, and do not always conform to federal rules concerning season length, size limits, or bag limits (the number of fish a fisherman can catch and keep per day). State regulations thus may affect the federal management scheme.

3. The Secretary's Advisory Guidelines

The Secretary has promulgated various “advisory guidelines” that do not have the force and effect of law but are intended to assist regional councils in developing FMPs. See id. § 1851(b); 50 C.F.R. §§ 600.305 –600.355. These guidelines flesh out and explicate the National Standards set forth in the MSA. For purposes of this case, the most relevant guidelines are the ones that explain the statutory objective, expressed in National Standard 1, of “prevent[ing] overfishing while achieving, on a continuing basis, the optimum yield.” 16 U.S.C. § 1851(a)(1) ; 50 C.F.R. § 600.310.

4. Catch Limit Terminology

The Secretary balances the twin goals of National Standard 1—preventing overfishing and achieving optimum yield—through a system of catch limits. The guidelines establish a set of “reference points” for catch limits, starting with the absolute maximum that should be harvested and working down from there. 50 C.F.R. § 600.310(b)(2)(iv). Each reference point uses specific terms and phrases that, for clarity, the Court sets out as follows:

Maximum Sustainable Yield (MSY): MSY is the guiding reference point and the “basis for fishery management.” Id. § 600.310(b)(2)(i). MSY is the largest catch that can be taken under prevailing environmental conditions, id. § 600.310(e)(1)(i)(A), and it relates directly to the concept of “overfishing.”

Overfishing: “Overfishing” occurs when a stock of fish has a level of fishing mortality or annual total catch that jeopardizes the capacity of the stock to produce the MSY on a continuing basis. Id. § 600.310(e)(2)(i)(B).

Overfishing Limit (OFL): The OFL is the catch level above which overfishing occurs. Id. § 600.310(e)(2)(i)(D). A regional council's Scientific and Statistical Committee (SSC) sets the OFL each year. The OFL represents the upper boundary in any consideration of catch limits. However, catch limits are not automatically set at the OFL. NMFS also takes into account “scientific uncertainty” and “management uncertainty.”

Scientific Uncertainty: “Scientific uncertainty” refers to the possibility of error in estimating biomass, mortality rates, and other factors separate from the government's role in fishery management. See id. § 600.310(f)(1).

Management Uncertainty: “Management uncertainty” refers to uncertainty in the government's management of the fishery, including the accuracy of reported catch data and the ability of the government to constrain the catch. See id.

Acceptable Biological Catch (ABC): ABC is an annual catch figure, set at or below the OFL, with the difference between the OFL and the ABC designed to account for scientific uncertainty in the SSC's calculation of the OFL. Id. §§ 600.310(b)(2)(v)(D), 600.310(f)(2)(ii). The SSC sets both the OFL and the ABC. ABC is an expression of the amount of fish that fishermen could harvest during a particular year without overfishing the stock, with accommodation for scientific uncertainty.

Annual Catch Limit (ACL): ACL differs from the ABC in that the ABC estimates the amount of fishing the NMFS could permit without overfishing, whereas the ACL represents the amount that the agency actually permits each year. NMFS may set the ACL at or below the ABC.

Accountability Measures (AMs): AMs are “management controls to prevent ACLs, including sector—ACLs, from being exceeded, and to correct or mitigate overages of the ACL if they occur.” Id. § 600.310(g)(1). “AMs should address and minimize both the frequency and magnitude of overages and correct the problems that caused the overage in as short a time as possible.” Id. The guidelines describe two kinds of AMs: “inseason” AMs, and “AMs for when the ACL is exceeded,” referred to by the parties as “postseason AMs.” Id.

Inseason AMs:

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