Massachusetts v. Pritzker

• Decision Date: 08 April 2014
• Docket Number: Civil Action No. 13–11301–RGS.
• Parties: Commonwealth of MASSACHUSETTS, and State of New Hampshire v. Penny PRITZKER, et al.
• Court: U.S. District Court — District of Massachusetts

10 F.Supp.3d 208

Commonwealth of MASSACHUSETTS, and State of New Hampshire

v.Penny PRITZKER, et al.

Civil Action No. 13–11301–RGS.

United States District Court, D. Massachusetts.

Signed April 8, 2014.

Peter C.L. Roth, Office of the Attorney General, Concord, NH, Christian F. Capizzo, Rhode Island Attorney General's Office, Providence, RI, Jennifer G. Miller, Daniel J. Hammond, Massachusetts Attorney General's Office, Julia E. Kobick, Office of the Attorney General Martha Coakley, Boston, MA, for Commonwealth of Massachusetts, and State of New Hampshire.

Jeremy S. Hessler, Mary Hollingsworth, United States Department of Justice, Washington, DC, Christine J. Wichers, United States Attorney's Office, Boston, MA, for Penny Pritzker, et al.

MEMORANDUM AND ORDER ON THE PARTIES' CROSS–MOTIONS FOR SUMMARY JUDGMENT

STEARNS, District Judge.

Plaintiff Commonwealth of Massachusetts and Intervenor–Plaintiff State of New Hampshire brought this lawsuit alleging that the Secretary of Commerce (Secretary)¹ , through the National Marine Fisheries Service (NMFS)² , unlawfully promulgated Frameworks (FWs) 48 and 50 regulating New England's Multispecies Fishery, in violation of the Magnuson–Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. §§ 1801 –1884. Plaintiffs now move on summary judgment to vacate the Frameworks. Defendants counter with their own motion for summary judgment. A hearing on the cross-motions was held on April 4, 2014.

BACKGROUND

Out of concern for rapidly depleting national fisheries and the ecological and social consequences that would follow, Congress enacted the MSA in 1976 to establish a national program for the conservation and management of fishery resources.³ See 16 U.S.C. § 1801(a). The Act delegates to the Secretary the authority to implement a comprehensive national fisheries management program 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.” Id. § 1801(a)(6). The Act created eight Regional Fishery Management Councils (Councils) composed of state fishery managers, the regional NMFS fisheries administrator, and representatives of the fishing, environmental, and academic communities. Id. § 1852(a)-(c). Councils are responsible for preparing Fishery Management Plans (FMPs) and amendments, as well as recommending implementing regulations for the Exclusive Economic Zones. The zones extend 3 to 200 nautical miles seaward from the coastal boundaries of the States within each region. Id. §§ 1811(a), 1852(h)(1), 1853(c).

A council is required to submit a completed draft FMP (or amendment) to NMFS for review.⁴ Id. §§ 1853(c), 1854(a). NMFS must ensure that the plan complies with the ten National Standards for fishery conservation and management set out in the MSA. See id. § 1851(a). After publishing notice of the plan in the Federal Register and receiving public comment,⁵ NMFS then approves, disapproves, or partially approves the plan through a final rulemaking. Id. § 1854(a)(3). NMFS may disapprove a proposed plan, in whole or in part, only to the extent that it is inconsistent with applicable law—the agency cannot substantively modify a plan or amendment of its own volition. Id. NMFS (as the Secretary's designee) may, however, promulgate regulations necessary to effectuate a FMP or plan amendment. Id. § 1855(d).

The New England Fisheries Management Council (NEFMC) oversees nine separate fisheries in the Atlantic Ocean seaward of the coast of Maine, New Hampshire, Massachusetts, Rhode Island, and Connecticut. Id. § 1852(a)(1)(A). NEFMC promulgated the first Northeast Multispecies Fisheries Management Plan (Groundfish FMP) in 1985. The Northeast Multispecies Fishery (or Groundfish Fishery) is a “mixed stock” fishery of thirteen groundfish species divided into twenty stocks that are often caught together.⁶ Since its inception, the Groundfish FMP has undergone significant management changes in an effort to combat persistent overfishing and dwindling fishery stocks.⁷ In 1996, “with the population of cod and other groundfish on the verge of collapse,” NMFS and NEFMC created an expedited regulatory process known as a “framework adjustment.” Gulf of Maine Fisherman's Alliance v. Daley, 292 F.3d 84, 86 (1st Cir.2002). Framework adjustments allow NMFS and NEFMC to respond more quickly and efficiently to fluctuations in the groundfish population. See id.

Congress significantly amended the MSA through enactment of the Magnuson–Stevens Fishery Conservation and Management Reauthorization Act of 2006, “which introduced a suite of stringent protections for depleted fisheries.” Lovgren v. Locke, 701 F.3d 5, 12 (1st Cir.2012). The Reauthorization Act mandated, among other requirements, that FMPs include Annual Catch Limits (ACLs) set “at a level such that overfishing does not occur in the fishery,” as well as the imposition of “measures to ensure accountability” for strict adherence to the limits. 16 U.S.C. § 1853(a)(15).⁸ The ACLs developed by a Council “may not exceed the fishing level recommendations of its scientific and statistical committee or the peer review process.” Id. § 1852(h)(6).

To bring the Groundfish FMP into compliance with the new MSA requirements, NEFMC proposed, and NMFS approved, Amendment 16 in 2009.⁹ At the time the Amendment was promulgated, the latest assessment of the Groundfish Fishery (completed in 2008) concluded that eleven of the Fishery's stocks were overfished and subject to overfishing.¹⁰ 75 Fed.Reg. 18,262 (Apr. 9, 2010) (Third Groundfish Assessment Review Meeting results or GARM III). As is relevant here, Amendment 16 established a mechanism for setting ACLs for each stock managed by the Groundfish FMP. Id. ; see also 78 Fed.Reg. 19,368 (Mar. 29, 2013).

The ACL is derived from three calculations. First, the Council must determine the Overfishing Limit (OFL). The OFL is the catch level above which overfishing occurs—in other words, the catch level above the maximum sustainable yield (MSY). 50 C.F.R. § 600.310(e)(2)(i)(D) ; 75 Fed.Reg. 18,356, 18,357 (Apr. 9, 2010). The Acceptable Biological Catch (ABC)—the maximum amount of fish that may be caught without surpassing the OFL—is then calculated from the OFL, taking into account scientific uncertainty in the initial estimate. 50 C.F.R. § 600.310(f)(2)(ii). In order to set the ABC, the Council must develop an ABC “control rule” based on advice from its Scientific and Statistical Committee (SSC) that “articulate[s] how ABC will be set compared to the OFL based on the scientific knowledge about the stock ... and the scientific uncertainty in the estimate of OFL and any other scientific uncertainty.” Id. §§ 600.310(f)(1), (2)(iii), (4). The objective of the control rule is to provide a buffer between OFL and ABC such that there is less than a 50% chance that overfishing will occur. Id. § 600.310(f)(4). Finally, working from the ABC, the Council sets the ACL for each stock, leaving a second buffer between the ABC and ACL for management uncertainty. Id. § 600.310(f)(1).¹¹

Despite the new conservation measures imposed by the MSA, many groundfish stocks in New England did not show any sustained improvement. An assessment of the fishery completed in 2012 found that many of the stocks remained overfished and, of these stocks, a majority were subject to overfishing. See AR Doc. 43 at 2,558 (NOAA Assessment). In September of that year, Acting Secretary Blank formally declared the Groundfish Fishery a “disaster.” See AR Doc. 138 at 8,841 (letter to Governor Deval Patrick).

NEFMC adopted and NMFS promulgated Framework 50 to set specifications (OFLs, ABCs, ACLs) for groundfish stocks for the fishing years (FY) 2013–2015.¹² FW 50 instituted “severe cutbacks in catch limits” to prevent overfishing and rebuild overfished stocks. 78 Fed.Reg. 26,118, 26,145 (May 3, 2013). The catch limits are the lowest ever set for many of the stocks—including GOM and GB cod—in some cases representing an almost eighty percent reduction from 2012 levels (including the GOM cod stock). Compare 78 Fed.Reg. 26,172, 26,181 (May 3, 2013) (listing ACLs for FY 2013–2015) with 75 Fed.Reg. at 18,360 (listing ACLs for FY 2010–2012).¹³ FW 48 imposed a range of measures, some favorable and others unfavorable to the immediate interests of the Massachusetts fishing community. Among other provisions, FW 48 listed the status of GOM and GB cod as “overfished” and “subject to overfishing,” revised the status of SNE/MA yellowtail flounder and white hake to “not overfished” and “not subject to overfishing,” and allowed sectors to apply for exemptions from previously-imposed year-round closure areas. See 78 Fed.Reg. at 26,122–26,131.

Massachusetts alleges that the new catch limits will effectively close down the entire Groundfish Fishery, and through this lawsuit moves to vacate Framework 48 and Framework 50 for failure to comply with National Standards 2 and 8 of the MSA. New Hampshire intervened in the action pursuant to Fed.R.Civ.P. 24(a)(2), contending that the frameworks also violate National Standard 1. For the reasons to be explained, the court will allow the Secretary's motion for summary judgment.

STANDARD OF REVIEW

Challenges to agency actions under the MSA are reviewed under the Administrative Procedures Act (APA). 16 U.S.C. § 1855(f)(1) ; Conservation Law Found. v. Evans, 360 F.3d 21, 27 (1st Cir.2004). The APA permits a court to invalidate an agency action only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

The MSA's ten National Standards “are broadly worded statements of the MSA's objectives for all fishery conservation and management measures” and their purposes “can be in tension with one another.” Lovgren, 701 F.3d at 32. “Compliance with the national standards requires balancing by the agency and the exercise of discretion and judgment.” Id....