North Carolina Fisheries Ass'n, Inc. v. Gutierrez

Decision Date17 August 2007
Docket NumberCivil Action No. 06-1815 (JDB).
Citation518 F.Supp.2d 62
PartiesNORTH CAROLINA FISHERIES ASSOCIATION, INC., et al., Plaintiffs, v. Carlos GUTIERREZ, Secretary, United States Department of Commerce, Defendant.
CourtU.S. District Court — District of Columbia

David Earl Frulla, Shaun Michael Gehan, Kelley, Drye & Warren, LLP, Washington, DC, for Plaintiffs.

Lisa Lynne Russell, U.S. Department of Justice, Robert Pendleton Williams, U.S. Department of Justice, Wildlife and Marine Resources Section, Environment and Natural Resources Division, Washington, DC, for Defendant.


BATES, District Judge.

Amendment 13C to the South Atlantic Snapper-Grouper Fishery Management Plan imposed tighter restrictions on the harvest of snowy grouper, vermilion snapper, and black sea bass, and loosened existing restrictions on the fishing of red porgy. See 71 Fed.Reg. 55,096 (Sept. 21, 2006). In this suit, the North Carolina Fisheries Association, Inc., two North Carolina fishermen, and a seafood company (collectively "plaintiffs"), joined by the State of North Carolina as amicus curiae, challenge the validity of Amendment 13C under the Magnuson-Stevens Fishery Conservation and Management Act ("MSA"), 16 U.S.C. §§ 1801-1883; the Regulatory Flexibility Act ("RFA"), 5 U.S.C. §§ 601-612; and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. Plaintiffs and defendant Carlos Gutierrez, sued in his official capacity as Secretary of Commerce, have both moved for summary judgment on the basis of the administrative record. A hearing on the motions was held on June 14, 2007, and resolution of the case was expedited at the request of the parties and in accordance with the MSA. See 16 U.S.C. § 1855(f)(4). After careful review of the administrative record and the parties' submissions, and for the reasons set forth below, the Court will grant in part and deny in part both of the cross-motions for summary judgment.

A. Statutory and Regulatory Framework
1. Magnuson-Stevens Fishery Conservation and Management Act1

The MSA established a national program for the conservation and management of fishery resources. Congress believed that such a program was "necessary 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." 16 U.S.C. § 1801(a)(6). To accomplish these broadly framed goals, the statute promotes cooperation between federal and state officials, and among those officials and representatives of fishing-industry, environmental, and consumer organizations. See id. § 1801(b)(5). These representatives interact in eight regional fishery management councils, each of which has authority over the coastal waters adjacent to its member states. Id. § 1852(a)(1). Regional councils, whose membership is statutorily defined, are charged with enacting and regularly updating fishery management plans ("FMP") that meet the objectives of, and are consistent with the standards set forth in, the MSA. Id. § 1852(h). The councils consist of voting and nonvoting members, and are also required to "establish and maintain" a scientific and statistical committee ("SSC") and advisory panels that represent the interests of the fishing industry and other sectors. Id. § 1852(g). "Decisions and recommendations made by [these] committees and panels," however, are merely "advisory in nature" and do not bind either the councils or federal agency officials. Id. § 1852(g)(5). The federal official responsible for fishery management is nominally the Secretary of Commerce ("the Secretary" or "defendant"), see id. § 1802(34), but in practice he delegates much of his authority and many of his preliminary duties to the National Marine Fisheries Service ("NMFS"). See C & W Fish Co., Inc. v. Fox, 931 F.2d 1556, 1558 & n. 1 (D.C.Cir.1991); Oceans, Inc. v. Evans, 384 F.Supp.2d 203, 209 n. 2 (D.D.C. 2005).

Particularly relevant to this suit is the process by which the Secretary and the regional councils — here, the South Atlantic Fishery Management Council ("the Council") — promulgate FMPs and amendments to those plans. The primary responsibility for researching and developing the FMPs and their amendments normally falls on the regional councils, which are required by statute to "prepare and submit" any amendments to the Secretary and, in formulating amendments, to "conduct public hearings" at locations throughout their member states. 16 U.S.C. §§ 1852(h)(1), (3). Councils then work with NMFS to transmit to the Secretary both the pro= posed FMP or amendment and any accompanying regulations that the particular council "deems necessary and appropriate" to implement that plan or amendment. Id. § 1853(c). Once the FMP or amendment is submitted, the Secretary must "immediately" — that is, within five days of receipt, id. § 1854(a)(5) — commence his review and make the plan or amendment available for notice and public comment. Id. §§ 1854(a)(1), (b)(1). Lacking the authority to modify the council's submission, the Secretary may approve the plan or amendment as consistent with applicable law, or he may either disapprove or partially approve it as inconsistent with such law. Id. § 1854(a)(3). If the proposal is approved, then NMFS assumes the task of implementing the measures adopted by the council. Id. § 1855(d). The Secretary's determination that the proposal is partially or completely deficient returns the matter to the council, which may then "submit a revised plan or amendment to the Secretary for review." Id. § 1854(a)(4).

Under certain circumstances, the Secretary or his designees, rather than the regional councils, will be the initial movers. For example, where "the Secretary finds that an emergency exists or that interim measures are needed to reduce overfishing for any fishery, he may promulgate emergency regulations or interim measures necessary to address the emergency or overfishing, without regard to whether a fishery management plan exists for such fishery." 16 U.S.C. § 1855(c); 50 C.F.R. § 600.310(e)(5). Such interim measures last only 180 days, 16 U.S.C. § 1855(c)(3)(B), or 186 days under the Reauthorization Act, see Pub.L. No. 109-479, § 108(a), 120 Stat. at 3594. Agency initiative is also required when the Secretary learns through the statutorily mandated annual-review process that a fishery is overfished. The MSA requires in such situations that the Secretary "immediately notify the appropriate council and request that action be taken to end overfishing in the fishery and to implement conservation and management measures to rebuild the affected stocks of fish." 16 U.S.C. § 1854(e)(2). Under the version of the statute in effect until 2007, the councils had up to a year to prepare a FMP, plan amendment, or proposed regulations designed "to end overfishing in the fishery and to rebuild affected stocks of fish." Id. § 1854(e)(3)(A). The FMP, plan amendment, or regulations proposed by the council must "specify a time period for ending overfishing and rebuilding the fishery" that is "as short as possible" and that "allocate[s] both overfishing restrictions and recovery benefits fairly and equitably among sectors of the fishery." Id. § 1854(e)(4).

Secretarial review of a FMP or plan amendment submitted by a regional council focuses on the proposed action's consistency with the substantive criteria set forth in, and the overall objectives of, the MSA. As to the latter, the Secretary examines whether the council's proposal conforms to the explicit statutory requirements and whether it contains measures that 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." 16 U.S.C. § 1853(a)(1)(A). FMPs, plan amendments, and regulations must "be consistent with" the ten "national standards for fishery conservation and management." Id. § 1851(a). Three of those — National Standards 2, 4, and 8 — are of particular importance here. National Standard 2 requires that "[c]onservation and management measures ... be based upon the best scientific information available." Id. § 1851(a)(2). Standard 4 governs the allocation of fishing privileges, barring discrimination between residents of different states and requiring that, any allocations made be "fair and equitable" to all fishermen. Id. § 1852(a)(4). National Standard 8 mandates that the measures selected "take into account the importance of fishery resources to fishing communities 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." Id. § 1851(a)(8). This focus on the welfare of fishing communities, however, must be "consistent with the conservation requirements". of the MSA, "including the prevention of overfishing and rebuilding of overfished stocks." Id.

FMPs, plan amendments, and regulations promulgated by the Secretary are subject to judicial review under the MSA. 16 U.S.C. 1855(f). The statute requires that courts review conservation and management measures under the familiar standards set forth in the Administrative Procedure Act ("APA"). Thus, a court considering challenges to the Secretary's actions shall "set aside" such actions "only ... on a ground specified in section 706(2)(A), (B), (C), or (D) of [Title 5]." Id. § 1855(f)(1)(B). Section 706(2), in turn, obliges courts reviewing agency action to "hold unlawful and set aside" that action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or if the agency has exceeded its authority, violated a party's constitutional rights, or failed to comply with procedural requirements. If the party challenging the Secretary's action so requests, the court is obliged to...

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