A.P. Bell Fish Co. v. Raimondo
| Decision Date | 06 January 2023 |
| Docket Number | Civil Action 22-1260 (TJK) |
| Parties | A.P. BELL BISH COMPANY, INC. et al., Plaintiffs, v. GINA RAIMONDO, in her official capacity as Secretary of Commerce, et al., Defendants, and COASTAL CONSERVATION ASSOCIATION et al., Defendant-Intervenors. |
| Court | U.S. District Court — District of Columbia |
This case is about the allocation of red-grouper-fishing privileges in the Gulf of Mexico among recreational and commercial fishermen. Plaintiffs-commercial fishermen and a trade association-launch several legal challenges at the most recent allocation. In general, they argue that the relevant agency based the allocation on bad data, applied those data arbitrarily, disregarded pro-conservation mandates and other legal requirements, and committed itself to a new policy without weighing suitable alternatives. But because the administrative record does not support those claims, the Court will grant summary judgment for Defendants.
Plaintiffs sue mainly under the framework established by the Magnuson-Stevens Conservation and Management Act of 1976 Pub. L. No. 94-265, 90 Stat. 331, 331-61 () (“MSA”). The MSA established eight regional fishery councils. 16 U.S.C. § 1852(a)(1). Those councils recommend fishery-management measures to the Secretary of Commerce (“the Secretary”). Id. § 1852(h)(1). The councils sometimes must act, in turn, on the recommendations of a scientific committee created to assist with the more technical aspects of fishery management. See id. § 1852(g)(1), (h)(6)-(7).
When the Secretary receives a recommendation from one of the councils, she must independently review its legality and initiate the notice-and-comment process. 16 U.S.C. § 1854(a)(1). She must then approve or disapprove the plan within 30 days after the comment period. Id. § 1854(a)(3). In practice, the Secretary acts through the National Marine Fisheries Service (“the Service”), an office of the National Oceanic and Atmospheric Administration inside the Department of Commerce. See AR 7948.
One of the councils' functions is to recommend to the Service “annual catch limits for each of [their] managed fisheries.” 16 U.S.C. § 1852(h)(6). That process is based on a council's assessment of a fishery's stock. See, e.g., AR 7177. A council's scientific committee reviews the results of a stock assessment and recommends values for inputs that are used to create annual catch limits. See AR 7979. A council reviews those recommendations and produces its own recommendations to be incorporated in a fishery management plan. See AR 7995, 8000-01. The Service then uses those recommendations and the notice-and-comment process to generate a final rule. See 16 U.S.C. § 1854(a)(1)(B), (2)-(3).
Plaintiffs oppose a final rule known as Amendment 53 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (“A53”). AR 7946. A53 reduced the amount of red grouper that may be fished from the Gulf of Mexico. See AR 7987-95. It also altered the proportions of allowable catch that may be fished by recreational and commercial fishermen. See id. The latter aspect of A53 is the focus of Plaintiff's challenge.
Chief among the MSA's substantive legal requirements are the ten “national standards for fishery conservation and management.” 16 U.S.C. § 1851(a). Each national standard directs the Secretary to ensure that a management plan “comports with” “a specific and essential policy objective.” C & W Fish Co. v. Fox, Jr., 931 F.2d 1556, 1562 (D.C. Cir. 1991). Essential though they are, the national standards sometimes present “competing goals.” N.C. Fisheries Ass'n v. Gutierrez, 518 F.Supp.2d 62, 102 (D.D.C. 2007). Thus, one of the Service's critical roles is to “strike the appropriate balance” among them. Id. That decision must receive a “a high degree of deference” because it implicates the agency's technical expertise. Nat. Res. Def. Council v. Nat'l Marine Fisheries Serv., 71 F.Supp.3d 35, 64 (D.D.C. 2014).
But the Service's discretion is bounded. The national standards express justiciable “limitations . . . on the Service's authority.” Groundfish F. v. Ross, 375 F.Supp.3d 72, 85 (D.D.C. 2019); see also, e.g., Guindon v. Pritzker (Guindon I), 31 F.Supp.3d 169, 195-97 (D.D.C. 2014); Guindon v. Pritzker (Guindon II), 240 F.Supp.3d 181, 194-95 (D.D.C. 2017); see also generally 16 U.S.C. § 1855(f)(1). Courts must ensure the Service weighs the requirements of the national standards and engages in “reasoned decision making” that is “supported in the record.” Oceana, Inc. v. Raimondo (Oceana II), 530 F.Supp.3d 16, 29 (D.D.C. 2021).
One way the Service interprets the national standards is by promulgating regulations. Such regulations lack “the force and effect of law.” 16 U.S.C. § 1851(b). So they do not qualify for Chevron deference. United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). Still, courts have tended to extend them “considerable deference” under the Skidmore framework because of “their thoroughness, the agency's expertise, and the administrative formalities involved in their promulgation.” Guindon I, 31 F.Supp.3d at 198 (quotation omitted). The Service's regulations interpreting the national standards are codified at 50 C.F.R. §§ 600.305-600.355.
The MSA contains other legal requirements too. Section 1853(a), for example, codifies fifteen elements that “[a]ny fishery management plan” must contain. Those include the directive to incorporate “conservation and management measures” that will “prevent overfishing and rebuild overfished stocks [and] protect, restore, and promote the long-term health and stability of the fishery.” 16 U.S.C. § 1853(a)(1). Unlike the national standards, those elements are not competing policy objectives that must be balanced-they are discrete legal requirements that, if unsatisfied, may warrant judicial vacatur of a management plan. See, e.g., N.C. Fisheries Ass'n, 518 F.Supp.2d at 101, 103-04 ().
A53 altered a management plan that has governed reef fishing in the Gulf since 1984. See AR 7974; Reef Fish Fishery of the Gulf of Mexico, 49 Fed.Reg. 39548, 39548-58 (Oct. 9, 1984) (“FMP”). To provide context for A53, the Court briefly traces that scheme's evolution.
The original management plan did not limit the volume of red grouper that could be caught. See FMP, 49 Fed.Reg. at 39548. Later data-collection efforts, though, raised concerns about the long-term health of the red-grouper stock. See Amendment Number 1 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico, 55 Fed.Reg. 2078, 2078-79 (Jan. 22, 1990) (A1). The Service responded with a minimum-size limit and quotas for both the recreational and commercial fishing sectors. Id. at 2080. The Service explained that it had allocated allowable catch among the sectors according to its estimates of the “historical percentages harvested by each user group during the base period of 1979-87.” Proposed Amendment Number 1 to the Reef Fish Fishery Management Plan, 54 Fed.Reg. 41297, 41307 (Oct. 6, 1989) (PA1); see also A1, 55 Fed.Reg. at 2085 (approving that proposal).
In other words, the Service planned to set overall catch limits based on the need to prevent overfishing and then to allocate the total amount of catch authorized among the sectors based on estimates of their historical participation in the red-grouper fishery. See PA1, 54 Fed.Reg. at 41307. The Service's catch-estimation efforts have thus undergirded its management plans. As Plaintiffs observe, the commercial sector is subject to “[s]trict monitoring,” which makes measures of that sector's fishing efforts more exact. ECF No. 20 at 17-19. But estimating catch for the recreational sector is an imprecise science at best.
The Service estimates recreational catch in two steps. First, it approximates the catch rate, the number of fish caught per angler, per trip. See AR 18891. Second, it gauges fishing effort, the number of fishing trips. See id. By multiplying those numbers together, the Service derives its estimate of the total catch by species. Id. Each step is much more complex than that simple description betrays, but that is the basic idea.
Those two constituent estimations can be performed in different ways. When the Service first allocated allowable catch, it used estimation methods the Court will call collectively “CHTS.”[1] Under the CHTS system, the Service calculated the catch rate through a survey based on dockside intercepts of fishing vessels. See AR 18988-89. And it appraised fishing effort by randomly sampling coastal households by calling landline telephones and asking respondents “to provide details about all fishing trips that occurred during the prior 60 days.” AR 18923-25.
The initial red-grouper allocation did not abate concerns about the stock's vitality. In fact, CHTS-based assessments in 1999 and 2002 concluded that the stock level needed improvement. Notice of Rebuilding Plan for Red Grouper in the Gulf of Mexico, 69 Fed.Reg. 1278, 1278 (Jan. 8, 2004). The Service's solution was a “10-year red grouper rebuilding plan” that aimed for “a reduction . in overall red grouper harvest.” Proposed Rebuilding Plan for Red Grouper in the Gulf of Mexico, 69 Fed.Reg. 7898, 7899 (Feb. 20, 2004). Meanwhile, the Service observed that its estimates of relative historical fishery participation between the recreational and commercial sectors had been mostly constant. Rebuilding Plan for Red Grouper in the Gulf of Mexico, 69 Fed.Reg. 33315, 33317 (June 15, 2004). So it applied “the same...
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