Ocean Conserancy v. Evans

Decision Date31 March 2003
Docket NumberNo. 8:02-CV-163-T-24EAJ.,No. 8:01-CV-1399-T-24EAJ.,8:01-CV-1399-T-24EAJ.,8:02-CV-163-T-24EAJ.
Citation260 F.Supp.2d 1162
PartiesTHE OCEAN CONSERVANCY, et al. Plaintiffs, v. Donald L. EVANS, et al. Defendants. The Ocean Conservancy, et al. Plaintiffs, v. Donald L. Evans, et al. Defendants.
CourtU.S. District Court — Middle District of Florida

Charles Paul Schropp, Schropp, Buell & Elligett, P.A, Tampa, FL, David E. Frulla, Corey A. Rubin, Brand Lweill & Ryan, P.C, Washington, DC, for Southern Offshore Fishing Ass'n., Robert Spaeth, Fisherman's Ice & Bait, Inc., Willie R. Etherdige Seafood Co., Inc., Russell Hudson, Dewey Hemiliright, Agger Fish Corp.

Michael Rubinstein, U.S. Attorney's Office, Tampa, FL, Mark A. Brown, Wildlife & Marine Resources Section, Environment & Natural Resources Div, U.S. Dept. of Justice, Washington, DC, for Donald L. Evans, in his official capacity as Secretary of the U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service.

ORDER

BUCKLEW, District Judge.

This cause comes before the Court for consideration of the Ocean Conservancy and the National Audubon Society's ("Plaintiffs") Motion for Summary Judgment (Doc. No. 36), Donald L. Evans, in his official capacity as Secretary of the U.S. Department of Commerce, the National Oceanic & Atmospheric Administration, and the National Marine Fisheries Service's (collectively referred to as "NMFS" or "Federal Defendants") Motion for Summary Judgment (Doc. No. 44), Southern Offshore Fishing Association, Robert Spaeth, Fisherman's Ice & Bait, Inc. d/b/a Madeira Beach Seafood, Willie R. Etheridge Seafood Co, Inc., Russell Hudson, Dewey Hemiliright, and Agger Fish Corporation's (collectively referred to as "Defendant-Intervenors") Motion for Summary Judgment (Doc. No. 48), and the parties' responses and replies thereto.

Plaintiffs are challenging the Federal Defendants' actions relating to the management of large coastal shark (LCS) stocks in the Atlantic Ocean and the Gulf of Mexico. Specifically, the Plaintiffs allege that the Federal Defendants have violated the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. § 1801 et seq., the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., and the Freedom of Information Act (FOIA), 5 U.S.C. § 552.

The Federal Defendants' management of large coastal stocks in the Atlantic Ocean and the Gulf of Mexico has been the subject of almost continuous litigation in this district for the past five years. In 1997, shark fishermen and other constituents from the shark fishing industry filed a lawsuit challenging the 1997 commercial catch quotas. See Southern Offshore Fishing Ass'n v. Daley, Case No. 8:97-cv-1134-T-23EAJ. That lawsuit was followed in 1999 with another shark fishing industry suit challenging measures adopted by Federal Defendants in response to a 1998 assessment of Atlantic shark stocks. See Southern Offshore Fishing Ass'n v. Daley, Case No. 8:99-cv-1455-T-23EAJ. Plaintiffs in the present lawsuit challenge the Federal Defendants' actions under a Settlement Agreement that resolved the two prior cases. Although Plaintiffs try to present their allegations as unrelated to or independent of the Federal Defendants' decision to enter into the Settlement Agreement in the prior cases, the conclusion is inescapable that most, if not all, of Plaintiffs' claims are a challenge to the validity of the Settlement Agreement itself.1

The cornerstone of the settlement was the agreement for the NMFS to convene an independent scientific review of the 1998 Atlantic shark stock assessment. In accordance with the Settlement Agreement, because a majority of the independent reviewers concluded that the scientific conclusions and scientific management recommendations contained in the 1998 stock assessment were not based on scientifically reasonable uses of appropriate fisheries stock assessment techniques and/or best available biological and fishery information relating to Atlantic large coastal sharks, NMFS announced that the 1997 catch quotas would remain in effect pending completion of a new stock assessment in 2002.

The Settlement Agreement itself was achieved after protracted litigation and court-mandated mediation. Plaintiffs in the present case participated as amicus curiae throughout the litigation in the two prior cases. Although the Plaintiffs here did not participate in the settlement negotiations in the two prior cases, Judge Merryday considered their objections before entering the settlement.

I. BACKGROUND
A. Legal Framework

1. The Magnuson-Stevens Fishery Conservation and Management Act (MSA)

The Secretary of Commerce has the primary responsibility under the M.S.A. § to prepare and implement fishery management plans (FMPs) identifying conservation and management measures for Atlantic sharks and other "highly migratory species."2 16 U.S.C. §§ 1852(a)(3); 1853(a); 1854(c)(1)(C); 1854(g)(1). All FMPs and implementing regulations must be consistent with the ten national standards for fishery conservation and management set out in § 301 of the MSA. 16 U.S.C. § 1851(a).3 Of particular relevance to Plaintiffs' claims in the instant case is National Standard 2, which provides that "[conservation and management measures shall be based upon the best scientific information available." 16 U.S.C. § 1851(a)(2).

In 1996, Congress amended the M.S.A. § through the Sustainable Fisheries Act (SFA), Pub.L. 104-297, 110 Stat. 3559 (1996). In particular, the SFA strengthened the M.S.A. § by establishing clear requirements to prevent overfishing, rebuild overfished fisheries, and minimize bycatch. See 16 U.S.C. §§ 1853(a)(10), (11).

2.The National Environmental Policy Act (NEPA)

The purpose and intent of NEPA is to focus the attention of the federal government and the public on a proposed action so that the consequences of the action can be studied before the action is implemented and potential negative environmental impacts can be avoided. 42 U.S.C. § 4321; 40 C.F.R. § 1501.1(c); Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). To that end, NEPA requires the preparation of an environmental impact statement (EIS) for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). NEPA mandates the procedures by which agencies must consider the environmental impacts of their actions, but does not dictate the substantive results. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).

Not every federal action or proposal requires preparation of an EIS. Where the environmental impacts of an action are less than significant, an agency may comply with NEPA through preparation of an environmental assessment (EA) and a finding of no significant impact (FONSI). See 40 C.F.R. §§ 1501.3; 1501.4(c), (e); 1508.9. An EA provides sufficient evidence and analysis for determining whether an action has significant environmental impacts and includes "brief discussions of the need for the proposal, of alternatives ..., [and] of the environmental impacts of the proposed action and alternatives...." 40 C.F.R. § 1508.9.

3. Administrative Procedure Act (APA)

The APA generally requires agencies to publish proposed substantive rules in the Federal Register and accept public comment before making them effective. 5 U.S.C. § 553(b)-(c). There is an exception, however, when no other statute requires notice or a hearing and "the agency for good cause finds ... that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." 5 U.S.C. § 553(b)(B).

4. Standard and Scope of Review

The appropriate standard for judicial review of the Federal Defendants' decision to promulgate the challenged emergency rule is the arbitrary and capricious standard under the APA, 5 U.S.C. § 706(2)(A). See e.g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); North Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1538 (11th Cir.1990) (applying arbitrary and capricious standard in review under NEPA); Alaska Factory Trawler Ass'n v. Baldridge, 831 F.2d 1456, 1460 (9th Cir.1987) (applying arbitrary and capricious standard under the MSA). See also Environmental Coalition of Broward County, Inc. v. Myers, 831 F.2d 984, 986 (11th Cir.1987) (courts should give deference to the agency determination in the case of "complex environmental statutes such as the Clean Water Act."). In applying the arbitrary and capricious standard, the focal point for judicial review should be the administrative record that was before the agency at the time of the decision, not some new record made initially in the reviewing court. See Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). The Supreme Court has explained the deferential nature of the arbitrary and capricious standard of review:

[The reviewing court] must consider whether the decision was based on 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.

Overton Park, 401 U.S. at 416, 91 S.Ct. 814.

Congress entrusted decisions regarding fisheries management under the M.S.A. § to the Secretary of Commerce, who in turn has delegated these responsibilities to the National Marine Fisheries Service,...

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