Massachusetts Audubon Society, Inc. v. Daley, Civ.A. 97-12297-WGY.

• Decision Date: 17 December 1998
• Docket Number: No. Civ.A. 97-12297-WGY.,Civ.A. 97-12297-WGY.
• Parties: MASSACHUSETTS AUDUBON SOCIETY, INC., Plaintiff, v. William DALEY, in his capacity as Secretary of Commerce for the United States; Rolland A. Schmitten, in his capacity as Assistant Administrator for Fisheries of the National Oceanic and Atmospheric Administration and Director of the National Marine Fisheries Service; Gary A. Matlock, in his capacity as Director of the Office of Sustainable Fisheries of the National Marine Fisheries Service; Rebecca Lent, in her capacity as Chief of the Highly Migratory Species Management Division of the National Marine Fisheries Service, Defendants.
• Court: U.S. District Court — District of Massachusetts

31 F.Supp.2d 189

MASSACHUSETTS AUDUBON SOCIETY, INC., Plaintiff, v. William DALEY, in his capacity as Secretary of Commerce for the United States; Rolland A. Schmitten, in his capacity as Assistant Administrator for Fisheries of the National Oceanic and Atmospheric Administration and Director of the National Marine Fisheries Service; Gary A. Matlock, in his capacity as Director of

the Office of Sustainable Fisheries of the National Marine Fisheries Service; Rebecca Lent, in her capacity as Chief of the Highly Migratory Species Management Division of the National Marine Fisheries Service, Defendants.

No. Civ.A. 97-12297-WGY.

United States District Court, D. Massachusetts.

December 17, 1998.

COPYRIGHT MATERIAL OMITTED

William C. Henchy, Orleans, MA, for Massachusetts Audubon Society, plaintiff.

Mark A. Brown, U.S. Department of Justice, Wildlife & Marine Resources, Washington, DC, John A. Capin, United States Attorney's Office, Boston, MA, for William Daley, In his capacity as Secretary of Commerce for the United States, defendants.

MEMORANDUM AND ORDER

YOUNG, District Judge.

The plaintiff, the Massachusetts Audubon Society ("Audubon"), brings suit for declaratory and injunctive relief against the defendants, William Daley, Secretary of Commerce, along with the heads of various sub-agencies within the Department of Commerce charged with fisheries management responsibilities (the "Agency"). Audubon assails the Agency's management of the Atlantic Bluefin Tuna fishery as violative of federal law and international treaty obligations, to the detriment of the fishery and the recovery of the species. In four separate Counts (a fifth Count was resolved by stipulation of the parties), Audubon charges violations of the Atlantic Tunas Convention Act ("the Act"), 16 U.S.C. §§ 971 et seq., its implementing regulations, 50 C.F.R. Part 285, and the International Convention for Conservation of Atlantic Tunas ("the Convention").

The Agency takes the position that its actions in regulating the fishery are fully consistent with applicable law, and are not arbitrary or capricious. The parties apparently agree that there are no genuine issues of material fact, and each has moved for summary judgment.

FACTUAL AND LEGAL BACKGROUND

The United States joined the Convention in 1969, in response to growing exploitation of tuna and similar fish and the need to maintain sustainable population levels for those species. Article III of the Convention provides for the creation of an International Commission for the Conservation of Atlantic Tunas ("the Commission"). Article VIII of the Convention empowers the Commission to make recommendations to member nations regarding conservation measures.

In 1975, Congress enacted the Act to implement the Convention. See 16 U.S.C. § 971. Authority to administer the terms of the convention domestically is conferred on the Secretary of Commerce ("the Secretary"). See 16 U.S.C. § 971d(a). The Secretary has additional authority to manage Atlantic Bluefin Tuna under the Magnuson-Stevens Fishery Conservation and Management Act ("the Magnuson-Stevens Act"), 16 U.S.C. § 1852(a)(3); 16 U.S.C. § 1854(g)(1). The Act also requires that regulations under the Act be consistent with fishery management plans under the Magnuson-Stevens Act. See 16 U.S.C. § 971d(c)(1)(C).

The Act authorizes and directs the Secretary to administer and enforce regulations to carry out the purposes and objectives of the Convention and the Act. See 16 U.S.C. § 971d(a). The Secretary is also required to promulgate "such regulations as may be necessary and appropriate to carry out" any specific recommendation of the Commission, upon favorable action by the Secretary of State. See 16 U.S.C. § 971d(c)(1)(A). No regulation, however, may have the effect of increasing or decreasing any allocation or quota of fish or fishing mortality level recommended by the Commission and agreed to by the United States. See 16 U.S.C. § 971d(c)(3). Accordingly, the Court looks first to the recommendations of the Commission to identify those recommendations with which the Secretary must comply.

A. Fish Quotas

Since its inception, the Commission has made a number of recommendations regarding Atlantic Bluefin Tuna, principally fishing quotas. In 1974, the Commission recommended that member nations prohibit the taking and landing of Atlantic Bluefin Tuna weighing less than 6.4 kilograms (14 pounds), with a 15% tolerance for incidental catch, and that member nations take steps to limit fishing mortality to recent levels. See Administrative Record Supplement ("A.R.Supp.") ch. XI, Tab 8. The Secretary promulgated regulations implementing those recommendations from 1975 to 1982; those regulations are not disputed in this action.

In 1981, the Commission recommended that harvest levels of Atlantic Bluefin Tuna be reduced as near to zero as feasible, consistent with ongoing scientific monitoring. See Administrative Record ("A.R.") Vol. 1, ch. I, Tab 1. Fishing for Atlantic Bluefin Tuna was thereafter limited by a scientific monitoring quota established on an annual or biannual basis.

Beginning in 1992, the Committee also recommended that any excess over annual or biannual quotas be subtracted from the quota for the following year or biannual period. See A.R. Vol. 5, ch. IX, Tab 4.

B. Small Fish

In order to implement these quotas in the United States, the Secretary has classified Atlantic Bluefin Tuna by size into six categories. See 50 C.F.R. § 285.26. In general, the larger classes of fish are considered sexually mature spawning stock, and the smaller classes are juvenile fish not yet capable of reproducing. In commercial terms, larger fish are targeted by commercial fishing operations for sale at market, while the juvenile fish are typically pursued by recreational anglers, often on charter boats.

As part of its 1991 recommendations, the Commission recommended that the United States, Japan, and Canada put an end to the landing of the smallest two classes, School and Small School Tuna, subject to a tolerance of 8% by weight of the national catch. The tolerance is to be accompanied by measures to ensure "that there would not be any economic gain to the fishermen from such fish." See A.R. Vol. 5, ch. VIII, Tab 9.

C. Monitoring

A recent amendment to the Act directs the Secretary to develop a comprehensive research and monitoring program for the conservation of the Atlantic Bluefin and other species. The Secretary is specifically required to provide for "collection of comparable real-time data on commercial and recreational catches and landings through the use of permits, logbooks, landing reports for charter operations and fishing tournaments, and programs to provide reliable reporting of the catch by private anglers." 16 U.S.C. § 971i(b)(2)(E).

The National Marine Fisheries Service ("the Service") employs two separate systems for monitoring the catch of Atlantic Bluefin Tuna. For the commercial fishery, landings are documented by requiring fish dealers to tag individual fish and file landing reports within twenty-four hours of landing, and prior to shipping. See 50 C.F.R. §§ 285.29, 285.30. Dealers are also required to file biweekly reports with the Service.

For the recreational fishery, the Service regulations prohibit the sale or purchase of any of the four smaller classes of Atlantic Bluefin Tuna. See 50 C.F.R. § 285.31(a)(34). In light of this prohibition, the Service has not used dealer tagging for the recreational catch, but uses other methods instead. Specifically, the regulations call for mandatory telephone reporting by recreational anglers, along with supplemental measures established by the Director. See 50 C.F.R. § 285.29

The central objection in Audubon's Complaint is that the Service regulations inadequately protect small fish, which Audubon regards as essential to the recovery of the species. Audubon repeatedly emphasizes in its moving papers that the Agency is violating the Convention's "emphasis on the protection of juvenile fish." The Complaint identifies four specific shortcomings. First, Audubon complains that the quota monitoring program for the recreational fishery is unreliable and does not allow accurate, realtime monitoring of small fish landings, resulting in persistent over fishing of those classes in violation of the Convention and the National Marine Fisheries Service's own regulations. Second, Audubon claims that the defendants have failed to deduct from the 1997 quota for the Angling (small fish) category the over-harvest from 1996, in violation of 50 C.F.R. § 285.22(h). Third, Audubon claims that the defendants are violating the terms of the Convention by failing to prevent economic gain on the landing of small fish. Finally, Audubon claims that the particular allocation of the United States quota among various size classes of fish, particularly the juvenile fish allocation, violates the Congressional mandate to rebuild over-fished species as quickly as possible.

ANALYSIS

As an initial matter, the scope of the Court's review of administrative rulemaking is narrow. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Particular deference is due to an Agency's construction of a statutory scheme it is charged with the responsibility of administering. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In such cases, the question for the Court is twofold. If "Congress has directly spoken to the precise question at issue," then "the court, as well as the Agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. 2778. But "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778. Thus, the question to...