New York v. Raimondo

Decision Date29 March 2022
Docket Number1:21-cv-00304 (MKV)
Citation594 F.Supp.3d 588
Parties State of NEW YORK, Basil Seggos, as Commissioner of the New York State Department of Environmental Conservation, and the New York State Department of Environmental Conservation, Plaintiffs, v. Gina M. RAIMONDO, in her official capacity as Secretary of the United States Department of Commerce, the United States Department of Commerce, the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service, a/k/a NOAA Fisheries, Defendants.
CourtU.S. District Court — Southern District of New York

Andrew Jon Gershon, Channing R. Wistar-Jones, New York State Office of the Attorney General, New York, NY, for Plaintiffs.

Lucas Estlund Issacharoff, United States Attorney's Office, New York, NY, for Defendants.

Hope Senzer Gabor, Jonathan A. Tand & Associates, Westbury, NY, for Amicus Suffolk County.


MARY KAY VYSKOCIL, United States District Judge:

Plaintiffs, the State of New York, Basil Seggos as Commissioner of the New York State Department of Environmental Conservation, and the New York Department of Environmental Conservation (collectively, "New York"), bring this action against Gina M. Raimondo, in her official capacity as Secretary of the United States Department of Commerce (the "Secretary"),1 the United States Department of Commerce ("DOC"), the National Oceanic and Atmospheric Administration ("NOAA"), and the National Marine Fisheries Service ("NMFS"), also known as NOAA Fisheries (collectively, "Commerce"), challenging regulations that establish annual quotas for commercial fishing of summer flounder, or fluke, among mid-Atlantic states. New York seeks summary judgment on a four-count complaint that these regulations are not in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (the "MSA"), 16 U.S.C. §§ 1801 et seq. , and are arbitrary and capricious under the Administrative Procedure Act (the "APA"), 5 U.S.C. § 706(2)(A). Commerce has cross-moved for summary judgment. For the following reasons, New York's Motion for Summary Judgment is denied and Commerce's Motion for Summary Judgment is granted.

I. The Magnuson-Stevens Act

The MSA establishes a national program for conservation and management of fishery resources. 16 U.S.C. § 1801(a)(6). Under the MSA, the federal government has jurisdiction over fishery resources within the exclusive economic zone ("EEZ"), which encompasses ocean waters from three miles offshore to 200 miles offshore. 16 U.S.C. §§ 1801(a)(6), 1811(a). NMFS is the federal agency that, acting under authority delegated from the Secretary of Commerce, is responsible for managing those fisheries pursuant to the MSA.2 States maintain jurisdiction over waters up to three nautical miles off their coastlines. 16 U.S.C. § 1856.

The MSA establishes eight regional councils responsible for developing and recommending to NMFS federal fishery management plans ("FMPs") governing the fishery within their respective geographic areas. 16 U.S.C. § 1801(b)(4) ; Nat'l Res. Def. Council, Inc. v. Daley , 209 F.3d 747, 749 (D.C. Cir. 2000). The Mid-Atlantic Fishery Management Council (the "Mid-Atlantic Council"), of which New York is a voting member, is responsible for recommending FMPs to NMFS for federal fisheries in the Atlantic Ocean seaward of New York, New Jersey, Delaware, Pennsylvania, Maryland, Virginia, and North Carolina. See 16 U.S.C. § 1852(a)(1)(B).

The MSA requires that federal FMPs be consistent with ten "national standards." See 16 U.S.C. § 1851(a). As relevant here, the ten standards include, but are not limited to:

(2) Conservation and management measures shall be based upon the best scientific information available.
(4) Conservation and management measures shall not discriminate between residents of different States. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges.
(5) Conservation and management measures shall, where practicable, consider efficiency in the utilization of fishery resources; except that no such measure shall have economic allocation as its sole purpose.
(7) Conservation and management measures shall, where practicable, minimize costs and avoid unnecessary duplication.
(8) Conservation and management measures shall, consistent with the conservation requirements of this chapter (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities by utilizing economic and social data that meet the requirements of paragraph (2), in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities
(10) Conservation and management measures shall, to the extent practicable, promote the safety of human life at sea.

16 U.S.C. § 1851(a). NMFS, by and through the authority of the Secretary, is charged with determining whether these standards have been met before approving proposed FMPs and promulgating rules to implement them. 16 U.S.C. § 1854(a).

The management of fisheries within state waters, including inland waters and coastal waters extending three miles seaward from shore, is subject to regulation by the states under their police powers. See 16 U.S.C. § 1856. In 1942, the fifteen Atlantic states, including New York, and the District of Columbia entered into an interstate compact establishing the Atlantic State Marine Fisheries Commission (the "ASMFC" or "Atlantic States Commission"), which was approved by Congress pursuant to Article I, Section 10, clause 3 (the "Compact Clause") of the United States Constitution, for the purpose of "promot[ing] the better utilization of the fisheries ... of the Atlantic seaboard by the development of a joint program for the promotion and protection of such fisheries." Pub. L. 77–539 (1942), as amended by Pub. L. 81–721 (1950) ("ASMFC Compact"), Art. I.

II. Regulations Of The Summer Flounder Fishery
A. The Atlantic Coastal Fisheries Cooperative Management Act

Summer flounder, the species of fish at issue in this case, are unique in that they exhibit strong seasonal inshore-offshore movement. AR 2562.3 Essentially, summer flounder normally inhabit shallow coastal and estuarine waters during the warmer months, within the three-nautical-mile limit subject to state regulations, but remain further offshore during the fall and winter, in the EEZ subject to federal regulation. AR 2562, 2568.

In 1993, Congress enacted the Atlantic Coastal Fisheries Cooperative Management Act, Pub.L. 103–206, 16 U.S.C. §§ 5101 – 5108 (the "Atlantic Coastal Act"), to promote the conservation of "[c]oastal fishery resources that migrate, or are widely distributed, across the jurisdictional boundaries of two or more of the Atlantic States and of the federal Government." 16 U.S.C. §§ 5101(a)(3), (b). The Atlantic Coastal Act calls for the coordination of federal and state efforts concerning inter-jurisdictional fisheries, such as the summer flounder fishery. 16 U.S.C. § 5101(a)(3). The Atlantic Coastal Act provides that in preparing coastal FMPs for a fishery located in both state waters and the EEZ, the "[Atlantic States] Commission shall consult with appropriate Councils to determine areas where such coastal fishery management plan[s] may complement Council fishery management plans." 16 U.S.C. § 5104(a)(1).

B. The Summer Flounder FMP And 1993 Allocation Rule

The initial summer flounder management plan was prepared by the Atlantic States Commission in 1982. AR 2568. In 1988, the Mid-Atlantic Council formulated an FMP that was based on the Atlantic States Commission plan. See AR 2568. In 1992, that FMP was amended to include a number of management measures, including a commercial summer flounder state-by-state allocation. 57 Fed. Reg. at 57,373. Each state's allocation—the percentage that may be "landed" or brought to port in each state—was calculated from each state's percentage of summer flounder landings in the years 1980 through 1989. 57 Fed. Reg. at 57,359. Under the state-by-state quota system, all summer flounder landed for sale in a state are applied against that state's annual commercial quota, regardless of where in the ocean the summer flounder were harvested or caught. 57 Fed. Reg. at 57,365, 57,373. All member states of the Atlantic States Commission, including New York, voted in favor of the state-by-state quota system in 1992. 57 Fed. Reg. at 57,359.

In 1993, the state-by-state quotas were revised based on new information provided by the State of Connecticut. The allocation quotas were finalized by the Mid-Atlantic Council and the Atlantic States Commission and adopted by NMFS in Amendment 4 (then codified at 50 C.F.R. § 625.20; now found at 50 C.F.R. § 648.102(c)(1)(i) ) (the "1993 Allocation Rule"). Under the 1993 Allocation Rule, the state-by-state quotas were set as follows: Maine 0.04756%; New Hampshire 0.00046%; Massachusetts 6.82046%; Rhode Island 15.68298%; Connecticut 2.25708%; New York 7.64699%; New Jersey 16.72499%; Delaware 0.01779%; Maryland 2.03910%; Virginia 21.31676%; North Carolina 27.44584%. 58 Fed. Reg. 49,937 (Sept. 24, 1993).

C. The 2020 Allocation Rule

In September 2014, the Mid-Atlantic Council announced its intent to prepare an environmental impact statement for a broad management action addressing several categories of issues related to summer flounder. See 79 Fed. Reg. 55,432 ; AR 234-236. A draft environmental impact statement was issued in April 2018 (the "draft EIS") and stated that the Mid-Atlantic Council was considering ...

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