A.M.L. Intern., Inc. v. Daley

Decision Date28 July 2000
Docket NumberNo. Civ.A. 00-10241-EFH.,Civ.A. 00-10241-EFH.
Citation107 F.Supp.2d 90
PartiesA.M.L. INTERNATIONAL, INC., et al., Plaintiffs, v. The Honorable William M. DALEY, United States Secretary of Commerce, Defendant.
CourtU.S. District Court — District of Massachusetts

Mary E. Kelleher, Mickelson, Barnet & Associates, P.C., New Bedford, MA, for plaintiffs.

Lisa Lynne Russell, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for defendant.

MEMORANDUM AND ORDER

HARRINGTON, District Judge.

I. Introduction

The fishing industry is, and has always been, an extremely important part of this nation's heritage. The United States is the world's fifth largest fishing nation, harvesting approximately ten billion pounds of fish, and producing approximately $3.5 billion in dockside revenues each year. The United States is the third largest seafood exporter, with exports valued at over $3 billion annually.1

This case concerns the spiny dogfish, a small shark whose habitat extends from Nova Scotia to Florida. The vast majority of the spiny dogfish fishing industry, however, exists in the New England and mid-Atlantic waters. The directed fishery of the spiny dogfish has emerged only within the last fifteen years.2 During this time, commercial landings have increased approximately ten-fold. Since 1990, the United States fishing industry has landed and processed an average of forty (40) million pounds of spiny dogfish each year. Indeed, in 1999, more than forty (40) percent of all fish caught by weight in the Northwest Atlantic were spiny dogfish.

The plaintiffs in this case are New England and mid-Atlantic companies which harvest, process and export spiny dogfish. The plaintiffs constitute the vast majority of the spiny dogfish fishing and processing industry. Last year, the plaintiffs processed over forty (40) million pounds, and generated revenues in excess of $20 million from sales of spiny dogfish. Additionally, the plaintiffs represent many individuals whose livelihood depends on the harvest, processing and sale of spiny dogfish.

This dispute arose when the Secretary of the United States Department of Commerce ("the Secretary"), through the National Marine Fisheries Service ("NMFS"), imposed regulatory restrictions through the implementation of the spiny dogfish Fishery Management Plan ("SDFMP") on the spiny dogfish fishing industry. The Secretary acknowledges that the quota restrictions contained in the plan will likely have the effect of shutting down the spiny dogfish industry for at least the next five years. See Final Rule, 65 Fed.Reg. 1557, 1566-67 (January 11, 2000).

The plaintiffs bring this case, therefore, seeking to invalidate the SDFMP. The plaintiffs argue that the actions of the Secretary were arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. This Court is now faced with the weighty task of either declaring the plan invalid as a matter of law, or upholding the actions of the Secretary. This Court is well aware that the latter decision may well cause the collapse of the spiny dogfish fishing and processing industry.3

II Statutory Framework

In 1976, Congress passed the Fishery Conservation and Management Act ("the Magnuson-Stevens Act") in order to preserve our fishery resources by creating a national exclusive economic zone which extends two hundred (200) miles from the United States coast. See 16 U.S.C. § 1801 et seq; see also Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 107 (1st Cir.1997). The Magnuson-Stevens Act, additionally, establishes a national program for the conservation and management of fishery resources "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).

To allow broad-based participation in the management process, the Magnuson-Stevens Act created eight regional fishery management councils composed of state fishery managers, the regional NMFS fisheries administrator, and qualified fishing industry, academic, and environmental representatives. See 16 U.S.C. § 1852(a)(1). Each council has authority over the fisheries seaward of the states comprising it. See id. The primary responsibility of the councils is the development of fishery management plans that establish the rules for each fishery and meet national conservation and management standards established in the Magnuson-Stevens Act. See 16 U.S.C. § 1852(h).

In 1996, Congress ushered in a new era in fisheries management by making significant revisions to the Magnuson-Stevens Act through the Sustainable Fisheries Act. See Pub.L. No. 104-297, 110 Stat. 3559 (1996). The Magnuson-Stevens act was revised because, "it was very clear that major changes were needed. Despite numerous efforts to improve the law over the past two decades, the sad reality [was] that the act did not prevent the current crisis in ... groundfish stocks, a crisis for the conservation of both fish stocks and fishing families." See 142 Cong.Rec. H11418, 11439 (September 27, 1996) (statement of Rep. Studds). Indeed, Congress recognized that revisions to the Magnuson-Stevens act were critical in order to "put our fisheries back onto a sustainable path and literally avert an environmental catastrophe on a national level.... We are precariously close to fisheries failures in many of our most commercially important fish stocks, and it is imperative that we take immediate action if we are to avert disasters." See 142 Cong.Rec. S10794, 10811-12 (September 18, 1996) (statement of Sen. Kerry).

Perhaps the most significant revision to the Magnuson-Stevens Act was the removal of some discretion regarding "overfished" fisheries.4 If the Secretary determines at any time that a fishery is overfished, the Secretary must immediately notify the appropriate fishery council, and request that action be taken to end overfishing in the fishery and to implement conservation and management measures to rebuild affected stocks of fish. See 16 U.S.C. § 1854(e)(2); 50 C.F.R. § 600.310(e)(2). Once a council has been notified that a particular stock is overfished, it has only one year to prepare a fishery management plan to end overfishing and rebuild the stocks.5 See 16 U.S.C. § 1854(e)(3); 50 C.F.R. § 600.310(e)(3). The primary purpose of a plan is to establish conservation and management measures which 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." See 16 U.S.C. § 1853(a)(1)(A). The ultimate goal, therefore, of any fishery management plan is to establish measures which achieve a rate or level of fishing mortality that allows the fishery to produce the maximum sustainable yield on a continuing basis.6 See 16 U.S.C. § 1802(29); 50 C.F.R. § 600.310(a)

After a council submits a fishery management plan to the Secretary, the Secretary is required to immediately review the plan to ensure that it is consistent with ten "National Standards" and other provisions of the Magnuson-Stevens Act as well as any other applicable law. See 16 U.S.C. §§ 1851(a)(1)-(10), 1854(a)(1); 50 C.F.R. §§ 600.310-600.355. After a fishery management plan is submitted, the Secretary must accept public comment for sixty days. See 16 U.S.C. § 1854(a)(1)(B). Within thirty days of the end of the public comment period, the Secretary must approve, disapprove or partially approve the plan. See 16 U.S.C. § 1854(a)(3).

Finally, if the Secretary determines that an emergency exists, or that interim measures are needed to reduce overfishing, he may promulgate such interim measures necessary to address the emergency, whether or not a fishery management plan exists. See 16 U.S.C. § 1855(c)(1); 50 C.F.R. § 600.310(e)(5). An interim measure is treated as an amendment to a fishery plan for the period it is in effect. See 16 U.S.C. § 1855(c)(3). The Secretary is not required to accept public comment when implementing interim measures in exceptional circumstances.7 See 50 C.F.R. § 600.310(e)(5)(ii).

III. Administrative Background

On April 3, 1998, the Secretary designated the spiny dogfish as "overfished." See Notification of an Overfished Fishery, 63 Fed.Reg. 17820 (April 10, 1998); see also 16 U.S.C. § 1854(e)(2); 50 C.F.R. § 600.310(e)(2). Joint management responsibility was given to the New England Fisheries Management Council ("NEFMC") and the Mid-Atlantic Fisheries Management Council ("MAFMC").8 Over the course of the following year, the NEFMC and the MAFMC developed a fishery plan for the spiny dogfish which proposed management measures to control fishing mortality, contained a definition of overfishing, set forth a five (5) year stock rebuilding schedule, and identified and described the essential fish habitat. See Notice of Availability of Fishery Management Plan and Request for Comment, 64 Fed. Reg. 34759 (June 29, 1999). Public comment on the SDFMP ended on August 30, 1999.9 On September 29, 1999, the Secretary partially approved the SDFMP.10

On January 11, 2000, the Secretary published the final SDFMP and regulatory measures contained therein. See Final Rule, 65 Fed.Reg. 1557 (January 11, 2000). The Secretary determined that the SDFMP, except for the disapproved measure, was necessary for the conservation and management of the spiny dogfish fishery, and that it was consistent with the Magnuson-Stevens Act and other applicable laws. See id. at 1565. Importantly, one of the measures implemented by the SDFMP was a commercial quota to be specified annually and allocated semi-annually. See id. at 1558. The SDFMP anticipated a one-year "exit fishery" with a quota of twenty-two (22) million pounds from May 1, 1999 through April 30, 2000. Each year thereafter, the councils...

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