Hadaja, Inc. v. Evans

• Decision Date: 15 May 2003
• Docket Number: No. C.A. 01-517S.,C.A. 01-517S.
• Citation: 263 F.Supp.2d 346
• Parties: HADAJA, INC., Plaintiff, v. Donald EVANS, In his official capacity as United States Secretary of Commerce, Defendant.
• Court: U.S. District Court — District of Rhode Island

263 F.Supp.2d 346

HADAJA, INC., Plaintiff, v. Donald EVANS, In his official capacity as United States Secretary of Commerce, Defendant.

No. C.A. 01-517S.

United States District Court, D. Rhode Island.

May 15, 2003.

Richard Leo Walsh, III, North Kingstown, RI, for Plaintiff.

Michael P. Iannotti, U.S. Attorney Office, Providence, RI, S. Jay Govindan, U.S. Dept. of Justice, Washington, DC, for Defendant.

DECISION AND ORDER

SMITH, District Judge.

On October 26, 2001, Plaintiff Hadaja, Inc. ("Hadaja" or "Plaintiff") initiated this action seeking judicial review of rules promulgated by the Defendant regarding the "Tilefish Fishery Management Plan" ("TFMP").¹ Hadaja moved for summary judgment on November 26, 2002. In essence, Hadaja argues that certain regulations put in force as a result of the adoption of the TFMP violate mandates of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. § 1801 et seq. Defendant cross-moved for summary judgment on December 10, 2002, claiming that the TFMP regulations at issue were properly enacted in an effort to conserve the suffering tilefish population. On March 21, 2003, this Court heard oral argument on the parties' motions. After considering the parties' oral arguments, their briefs, and navigating the voluminous administrative record (the "Record"), this Court grants the Plaintiffs Motion for Summary Judgment in part and denies it in part. Similarly, the Defendant's Motion for Summary Judgment is granted in part and denied in part.

Factual Background

The tilefish, Lopholatilus chameleonticeps, and commonly known as the "Clown of the Sea," is one of the most colorful fishes in North American waters with a body that is blue-green, yellow, rose, silver with golden spots and a yellow mask around the eyes. It inhabits the outer continental shelf from Nova Scotia to South America, and is relatively abundant in the Southern New England to Mid-Atlantic area at depths of 80 to 440 meters. It is generally found in and around submarine canyons where it occupies burrows along the ocean floor.

While tilefish have been fished since the late 1800s, the frequency of tilefish landings has decreased over the past fifty years. On June 15, 1993, the National Marine Fisheries Service ("NMFS") established a control date for entry into the tilefish fishery, which meant that commercial vessels after that date "would not be assured of future access to or an allocation of the tilefish resource if a management regime [was] developed and implemented." Record at 2028. In 1998, the NMFS determined that the tilefish fishery was overfished.²

A. The Background of the Magnuson-Stevens Act

Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act (the "Act") in order to respond to overfishing and inadequate conservation measures that were "threatening future commercial and recreational fishing, as well as the very survival of the species." Hall v. Evans, 165 F.Supp.2d 114, 123 (D.R.I.2001) (quoting Parravano v. Babbitt, 837 F.Supp. 1034, 1040 (N.D.Cal. 1993)). In order to render the management process provided in the Act more efficient, Congress created a number of different regional fishery management councils composed of state fisheries officials, the NMFS administrator, and other qualified representatives from the academic, recreational, and environmental communities. Each council controls the fisheries in the states over which it has control, and its primary responsibility is to develop management plans that establish the rules for each fishery as ordered by the Act. See 16 U.S.C. § 1854(e)(2); 50 C.F.R. § 600.310(e)(2). In this case, the relevant council is the Mid-Atlantic Fishery Management Council (the "Council").

When the Secretary of Commerce determines that a fishery has been overfished, the Secretary informs the appropriate council, which in turn has one year to prepare a fishery management plan ("FMP") that will rebuild the stocks of fish and end overfishing. See 16 U.S.C. § 1854(e)(3); 50 C.F.R. § 600.310(e)(3). After a council submits an FMP to the Secretary of Commerce, the Secretary (usually acting through the NMFS) must review the FMP and ensure that it complies with federal law and the relevant provisions of the Act. See 16 U.S.C. § 1851(a)(1-10), § 1854(a)(1); 50 C.F.R. §§ 600.310-600.355. The Secretary must also allow public comment on the FMP over a period of sixty days following its submission. See 16 U.S.C. § 1854(a)(1)(B).

The FMPs may include a system to limit access to any fishery in order to achieve optimum yield if the council and the NMFS take certain factors into account. These factors are: (a) present participation in the fishery; (b) historical fishing practices in, and dependence on, the fishery; (c) the economics of the fishery; (d) the capability of fishing vessels used in the fishery to engage in other fisheries; (e) the cultural and social framework relevant to the fishery and any affected fishing communities; and (f) any other relevant considerations. See 16 U.S.C. § 1853(b)(6). The FMPs are then promulgated by the Secretary through the NMFS as regulations published in the Federal Register. 16 U.S.C. § 1854(b)(1)(A). See also Massachusetts v. Daley, 170 F.3d 23, 27-28 (1st Cir.1999). The final implementing regulations, once promulgated by the Secretary, have the full force and effect of law. See 16 U.S.C. §§ 1854, 1855.

Importantly, the regulations must be consistent with ten "National Standards" for fishery conservation and management set out in Section 301 of the Magnuson-Stevens Act, 16 U.S.C. § 1851(a). In this case, Hadaja alleges violations of three of the National Standards: Standard One, 16 U.S.C. § 1851(a)(1), which requires conservation and management measures to prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery; Standard Two, 16 U.S.C. § 1851(a)(2), which requires that conservation and management measures be based on the "best scientific information available;" and Standard Four, 16 U.S.C. § 1851(a)(4), which prohibits conservation and management measures from discriminating between residents of different states.

B. The TFMP

1. Limited Access

After determining that the tilefish fishery was overfished, the Council assessed the stock of tilefish in the Middle Atlantic-Southern New England region and created a Tilefish Committee (the "Committee") to make recommendations. The Committee determined that a limited access scheme was appropriate for dealing with the tilefish fishery. A limited access scheme restricts the number of vessels allowed to fish in a particular fishery with the goal of ending overfishing and rebuilding the fish population. Record at 2028. Public hearings were held in Rhode Island, New York, and New Jersey during August of 1999. Record at 1390-93; 1409-14; 1423-27. Hadaja did not attend any of these hearings.

The Council has the authority to enact permitting restrictions pursuant to 50 C.F.R. § 648.293. At the direction of the Council, the Committee contemplated five limited access schemes, with the preferred scheme providing for various full-time and part-time access permits. Record at 2222. Under the preferred scheme, the majority of the full-time permit holders were located in Montauk, New York. Record at 2437. The majority of part-time vessels were located in Rhode Island and New Jersey. Id. However, the Historic Tilefish Coalition and the Montauk Tilefish Association, industry groups from New Jersey and New York, did not agree with this proposal because they felt the preferred scheme did not adequately represent their memberships. In response to the objections, the Committee urged the industry groups to reach a compromise regarding the limited entry option for later inclusion in the FMP. Id.

As a compromise, the industry groups split the full-time permit category into two tiers of four vessels each. The four vessels that qualified for the first tier are from Montauk, New York. Record at 2437. The second tier is composed of boats from New York and New Jersey. The compromise also provided for a part-time category, which would consist of forty-two vessels, eleven of which would be able to prequalify for a part-time permit based upon their historical participation³ in the tilefish fishery.

The compromise also provided that incidental permits would be available to all other vessels that do not qualify for fulltime or part-time permits. An incidental permit would allow a vessel to obtain up to 300 pounds of tilefish per trip regardless of a vessel's historical participation in the tilefish fishery. See 50 C.F.R. § 648.292. Importantly, however, vessels that would not qualify for full-time or part-time permits under the compromise would not receive priority to fish in the tilefish fishery once the fishery had been sufficiently rebuilt. Record at 2029-30, 2437. It is this provision with which Hadaja is most concerned. Because Hadaja only is eligible for an incidental permit under the compromise plan, it would be unable to fully participate in the tilefish fishery in the event it is rebuilt.

In other words, Hadaja has been relegated to perenial secondary status once the fishery is rebuilt, because he does not qualify for part-time status now. Other vessels, blessed by this plan with "parttime" permits will stand to ramp-up to fulltime status when the fishing is rebuilt, leaving Hadaja and others in their wake.

2. Trawling

In addition to creating the permit-based limited access scheme, the Committee evaluated the use of different types of fishing gear on the tilefish population. Based on available studies, the Committee determined that trawling was having a long-term, negative impact on the tilefish population. Record at 1903. While trawling represented a low percentage of the total tilefish landings, the Committee concluded that trawling contributed to a high rate of tilefish mortality. Additionally, the Committee inferred that trawling...