Mexican Gulf Fishing Co. v. U.S. Dep't of Commerce

• Decision Date: 28 February 2022
• Docket Number: CIVIL ACTION NO. 20-2312
• Citation: 587 F.Supp.3d 428
• Parties: MEXICAN GULF FISHING COMPANY, et al., Plaintiffs v. U.S. DEPARTMENT OF COMMERCE, et al., Defendants
• Court: U.S. District Court — Eastern District of Louisiana

587 F.Supp.3d 428

MEXICAN GULF FISHING COMPANY, et al., Plaintiffs
v.
U.S. DEPARTMENT OF COMMERCE, et al., Defendants

CIVIL ACTION NO. 20-2312

United States District Court, E.D. Louisiana.

Signed February 28, 2022

587 F.Supp.3d 436

A. Gregory Grimsal, Kristina Marie Lagasse, Gordon, Arata, Montgomery & Barnett, New Orleans, LA, John Julian Vecchione, Pro Hac Vice, Kara Rollins, Pro Hac Vice, Sheng Tao Li, Pro Hac Vice, New Civil Liberties Alliance, Washington, DC, for Plaintiffs Mexican Gulf Fishing Company, Billy Wells, A&B Charters Inc., Allen Walburn, Kraig Dafcik, Ventimiglia LLC, Frank Ventimiglia, Fishing Charters of Naples, Jim Rinckey, Capt. Joey D. Charter Inc., Joey Dobin.

Nicole Smith, Shampa Panda, US DOJ-ENRD Wildlife and Marine Resources, Washington, DC, Elizabeth A. Chickering, U.S. Attorney's Office, New Orleans, LA, for Defendants.

SECTION: "E" (1)

ORDER AND REASONS

SUSIE MORGAN, UNITED STATES DISTRICT JUDGE

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Before the Court are cross motions for summary judgment.¹ Plaintiffs Billy Wells; Mexican Gulf Shipping Co.; Allen Walburn; A&B Charters, Inc.; Kraig Dafcik; Joseph Dobin; Joey D. Charters; Frank Ventimiglia; Ventimiglia Charters; Jim Rinckey; and Fishing Charters of Naples (collectively, "Plaintiffs") filed a motion for summary judgment.² Defendants the U.S. Department of Commerce, the National Oceanic and Atmospheric Administration, the National Marine Fisheries Service, and their respective heads in their official capacities (collectively, the "Government") have filed a combined opposition and cross motion for summary judgment.³ Plaintiffs filed a combined opposition to the Government's motion and reply in support of their own motion.⁴ The Government filed a reply in support of their motion.⁵ Having considered the briefs, the record, and the applicable law, the Court now issues its ruling.

BACKGROUND

Plaintiffs are a group of charter boat captains and owners who take clients fishing in the Gulf of Mexico.⁶ Defendants are various federal government agencies and officials, including the United States Department of Commerce ("USDOC"), the National Oceanic and Atmospheric Administration ("NOAA"), and the National Marine Fisheries Service ("NMFS").⁷ USDOC is the primary agency responsible for domestic marine fisheries in federal waters and has delegated this responsibility to NOAA.⁸ NOAA has subdelegated those responsibilities to NMFS.⁹

On July 21, 2020, the Government published a Final Rule requiring Gulf for-hire vessel owners and operators to submit electronic fishing reports "prior to removing any fish from the vessel" or "[i]f no fish were retained by any person on the vessel during a trip, ... within 30 minutes of the completion of the trip" and to submit the fishing report "via NMFS approved hardware and software, as posted on the NMFS Southeast Region website."¹⁰ These reports must contain "all fish harvested and discarded, and any other information requested."¹¹ While the regulatory text does not define this "other information,"

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the preamble in the Final Rule explains NMFS will require "information about the permit holder, vessel, location fished, fishing effort, discards, and socio-economic data," specifically including "five economic values per trip: The charter fee, the fuel price and estimated amount of fuel used, number of paying passengers, and the number of crew for each trip."¹² The Final Rule also requires affected vessels to have "NMFS–approved hardware and software with a minimum capability of archiving GPS locations" that "must be permanently affixed to the vessel and have uninterrupted operation."¹³ Affected vessels "must allow NMFS, the U.S. Coast Guard, and their authorized officers and designees access to the vessel's position data."¹⁴ On August 20, 2020, Plaintiffs filed this action for declaratory relief voiding the Final Rule and injunctive relief enjoining the Government from enforcing the challenged portions of the Final Rule.¹⁵ Plaintiffs challenge the inclusion of "other information" unspecified in the regulatory text—including the five socio-economic values—in the electronic reporting, which took effect on January 5, 2021.¹⁶ Plaintiffs also challenge the mandatory tracking, whose effective date was delayed until March 1, 2022.¹⁷

On June 2, 2021, the Court certified a class action for Gulf For-hire vessel charter boat owners and operators who are permitted to fish by the Fishery Management Councils of the Gulf of Mexico and South Atlantic and are harmed by the Final Rule.¹⁸ The parties have now filed cross motions for summary judgment on all claims.¹⁹

LEGAL STANDARD

When presented with a motion for summary judgment, a court normally considers whether the record, " ‘viewed in the light most favorable to the non-moving party,’ evinces a genuine issue of material fact," and "[o]nly if the court answers the inquiry in the negative will the moving party be entitled to judgment as a matter of law."²⁰ This formula adjusts, however, when it arises in the context of judicial review of an administrative agency's decision.²¹ In such cases, the "motion for summary judgment stands in a somewhat unusual light, in that the administrative

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record proves the complete factual predicate for the court's review."²² Therefore, the movant's burden becomes "similar to his ultimate burden on the merits."²³

Nevertheless, summary judgment "remains ‘an appropriate procedure for resolving a challenge to a federal agency's administrative decision when review is based on the administrative record.’ "²⁴ When reviewing an administrative agency's decision on summary judgment, the district court must "determine whether as a matter of law, evidence in the administrative record permitted the agency to make the decision it did, and summary judgment is an appropriate mechanism for deciding the legal question of whether an agency could reasonably have found the facts as it did."²⁵ Under the Administrative Procedure Act ("APA"), a court will set aside or otherwise disturb non-adjudicatory agency action if the party pursuing judicial review shows that the agency "action, findings, and conclusions" are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;" "contrary to constitutional right, power, privilege, or immunity;" "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;" or "without observance of procedure required by law," among other reasons not implicated in this case.²⁶ To find an agency action arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, "the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency."²⁷ "The burden of proving that an agency decision was arbitrary or capricious [or made without proper procedures] rests with the party seeking to overturn the agency decision."²⁸

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UNDISPUTED MATERIAL FACTS

The facts of this case by and large come from the administrative record, which the Government has filed into the Court's record in its entirety.²⁹ The parties do not dispute the facts contained in the administrative record. Any other factual disputes are noted below.

I. Statutory Background

The Magnuson-Stevens Fishery Conservation and Management Act ("MSA") establishes a national program for conservation and management of fishery resources with federal jurisdiction over such resources within the exclusive economic zone, which extends from the seaward boundary of each coastal State out to 200 nautical miles.³⁰ Key purposes of the MSA are to "conserve and manage the fishery resources found off the coasts of the United States" and "promote domestic commercial and recreational fishing under sound conservation and management principles."³¹ Congress has recognized that "[t]he collection of reliable data is essential to the effective conservation, management, and scientific understanding of the fishery resources of the United States."³²

The NMFS, acting under authority delegated from the Secretary of Commerce, is responsible for managing fisheries pursuant to the MSA. Regulation of fisheries is accomplished through fishery management plans and amendments to those plans (hereinafter, collectively referred to as "FMPs") as well as implementing regulations.³³ The MSA sets forth required provisions for FMPs, including that they must contain measures "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."³⁴ To address overfishing, FMPs must establish mechanisms for annual catch limits and accountability measures.³⁵ The MSA expressly authorizes any FMP to "require the use of specified types and quantities of fishing gear, fishing vessels or equipment for such vessels, including devices which may be required to facilitate enforcement provisions of this [Act]."³⁶ FMPs and their implementing regulations must be consistent with ten National Standards as well as any other applicable law.³⁷ National Standard 1 requires that "[c]onservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry."³⁸ National Standard 2 requires that measures be based on the "best scientific information

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available."³⁹ National Standard 8 requires that "[c]onservation and management measures shall, consistent with the conservation requirements of this [Act] (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to...