Gulf Fishermens Ass'n v. Nat'l Marine Fisheries Serv., CIVIL ACTION NO: 16-1271

• Decision Date: 24 September 2018
• Docket Number: CIVIL ACTION NO: 16-1271
• Parties: GULF FISHERMENS ASSOCIATION et al. v. NATIONAL MARINE FISHERIES SERVICE et al.
• Court: U.S. District Court — Eastern District of Louisiana

341 F.Supp.3d 632

GULF FISHERMENS ASSOCIATION et al.

v.NATIONAL MARINE FISHERIES SERVICE et al.

CIVIL ACTION NO: 16-1271

United States District Court, E.D. Louisiana.

Signed September 24, 2018

Filed September 25, 2018

Marianne Cufone, Emily Henrion Posner, New Orleans, LA, Amy Luisa Van Saun, Pro Hac Vice, Portland, OR, George A. Kimbrell, Pro Hac Vice, Sylvia Shih-Yau Wu, San Francisco, CA, for Plaintiffs.

Kevin W. McArdle, Frederick Harter Turner, Michelle-Ann C. Williams, U.S. Department of Justice, Washington, DC, K. Paige O'Hale, U.S. Attorney's Office, New Orleans, LA, for Defendants.

SECTION: "H"(1)

ORDER AND REASONS

JANE TRICHE MILAZZO, UNITED STATES DISTRICT JUDGE

Before the Court are Cross Motions for Summary Judgment (Docs. 80, 82). For the following reasons, Plaintiffs' Motion is GRANTED, and Defendants' Motion is DENIED.

BACKGROUND

This case is a challenge to administrative action by the National Marine Fisheries Service (NMFS), whereby it adopted a regulatory scheme for offshore aquaculture in the federal waters of the Gulf of Mexico Exclusive Economic Zone.¹ Plaintiffs include a bevy of special interests groups representing both food safety advocates and Gulf fishermen.² Plaintiffs challenge the aquaculture regulations as facially invalid because they fall outside NMFS's authority to regulate fisheries under the Magnuson-Stevens Fishery Conservation and Management Act (MSA). They also challenge the propriety of the rulemaking process under which the regulations were enacted. Plaintiffs aver that the Agency failed to properly consider a litany of environmental problems that will be presented by aquaculture in the Gulf of Mexico.

Plaintiffs seek declaratory and equitable relief declaring that Defendants violated the MSA, the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), and the Administrative Procedures Act (APA) when they enacted regulations regarding offshore aquaculture. Plaintiffs ask this Court to vacate the regulations as arbitrary and capricious agency actions and order Defendants to comply with theses statutes before proposing any new action regarding aquaculture in the Gulf of Mexico.

Plaintiffs and Defendants have filed Cross-Motions for Summary Judgment on all issues raised in this case.

LEGAL STANDARD

Challenges to agency action brought under the MSA, NEPA, and ESA are subject to judicial review on specific grounds set forth in the APA.³ The APA states, in pertinent part:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall--

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be--

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;⁴

The Fifth Circuit has mirrored this language, finding that courts should only overturn rules pursuant to the APA if agency action "is arbitrary, capricious, and abuse of discretion, not in accordance with law, or unsupported by substantial evidence on the record taken as a whole."⁵

The Court must also be mindful of the two-step process of judicial review of agency action outlined in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.⁶ Pursuant to Chevron , a court reviewing an agency's construction of a statute must first ask "whether Congress has directly spoken to the precise question at issue."⁷ If Congressional intent is clear, "that is the end of the matter."⁸ If, however, the statute is silent or ambiguous with regard to the specific issue, the question then becomes whether agency action is "based on a permissible construction of the statute."⁹ "If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute."¹⁰ Indeed, the Court cannot substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency."¹¹

STATUTORY FRAMEWORK

Before addressing the merits of these motions, a brief background of the statutory scheme governing this dispute is helpful. The Magnuson-Stevens Act was passed by Congress in 1976 for the purpose of conserving and managing fishery resources nationwide.¹² To accomplish this goal, the MSA established eight Regional Fishery Management Councils, each tasked with preparing Fishery Management Plans ("FMPs") to address conservation and management of fisheries under their control.¹³ The Councils are empowered to draft FMPs that are "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."¹⁴ The Gulf Council is one such regional council, with authority to manage fisheries in the federal waters of the Gulf of Mexico off the coasts of Texas, Louisiana, Mississippi, Alabama, and Florida.

The Act requires the Councils to form their FMPs through a process of notice-and-comment rulemaking. FMPs and proposed regulations to implement the FMP are proposed by the Regional Councils, with final regulations promulgated by the Secretary of Commerce through the NMFS.¹⁵ The Secretary and the NMFS have limited discretion in choosing to adopt or reject FMPs approved by the Regional Councils; however, the decisions of the Councils are without regulatory effect until the NMFS acts.¹⁶ Once the Secretary, through the NMFS, reviews the plans and publishes the final regulations in the Federal Register, they have the full force of law.¹⁷

LAW AND ANALYSIS

On January 13, 2016, Defendant NMFS, with the help of the Gulf Council, finalized regulations authorizing a commercial aquaculture permitting scheme in federal waters ("the Regulations"). This action was analyzed in an FMP and programmatic Environmental Impact Statement ("PEIS"), treating all farmed fish as a fishery unit under the MSA. The Regulations establish a permitting scheme for conducting commercial aquaculture in the Gulf of Mexico. The scheme creates an application process for the permitting of aquaculture facilities and establishes regulations for the management of these facilities.

Plaintiffs complain that the adoption of the Regulations was outside of the authority of the NMFS. Plaintiffs also argue that the NMFS's actions violate the standards of the MSA, NEPA, and ESA because the Regulations allow a permit holder to farm fish in most areas of the Gulf with little oversight and defer consideration of the environmental and socioeconomic impacts of aquaculture on a discretionary and individual applicant basis. Because this Court ultimately finds that the NMFS was without authority under the MSA to promulgate the Regulations, it need not address Plaintiffs' other arguments.

A. The MSA Does Not Authorize the Regulation of Aquaculture

Plaintiffs argue that, pursuant to Section 705(2)(C) of the APA, the NMFS exceeded its statutory authority in implementing aquaculture regulations. Specifically, they argue that the Regulations are ultra vires because the MSA grants the NMFS the authority to regulate only fishing, and aquaculture is not fishing. The NMFS interprets the MSA to include the authority to regulate aquaculture. This Court must consider these arguments under a Chevron analysis, asking first "whether Congress has directly spoken to the precise question at issue" and second whether the NMFS's interpretation is arbitrary or capricious.¹⁸

The MSA grants the NMFS "broad authority to issue any regulation deemed ‘necessary’ to effectuate the underlying purposes of the statute."¹⁹ The NMFS bases its authority to promulgate the aquaculture regulations on the MSA's definition of "fishing." The MSA defines "fishing" as:

(A) the catching, taking, or harvesting of fish;

(B) the attempted catching, taking, or harvesting of fish;

(C) any other activity which can reasonably be expected to result in the catching, taking, or harvesting of fish; or

(D) any operations at sea in support of, or in preparation for, any activity described in subparagraphs (A) through (C).²⁰

The NMFS contends that the term "harvesting" gives it the authority to regulate aquaculture. It has interpreted "harvesting" to mean the "act or process of gathering a crop," in this case a crop of fish. Defendants argue that because the MSA does not directly address the precise question at issue and nothing in the MSA prohibits its promulgation of these regulations, then the Step 1 analysis ends. Courts, however, have expressly rejected such an argument. " ‘To suggest, as the [agency] effectively does, that Chevron step two is implicated at any time a statute does not expressly negate the existence of a claimed administrative power ... is both flatly unfaithful to the principles of administrative law ... and refuted by precedent.’ "²¹

Rather, in addressing Chevron Step 1, the Court must look to determine Congress's intent. "[I]f Congress's intent can be ascertained from the plain language of the statute, then that intent must be given effect."²² Courts have held that Congress must have explicitly or implicitly delegated authority to an agency before it can receive deference under Chevron Step 2.²³ " ‘The power of an administrative agency to administer a congressionally created and funded program necessarily requires the formulation of policy and the making of rules to fill any...