Southern Offshore Fishing Ass'n v. Daley

• Decision Date: 24 February 1998
• Docket Number: No. 97-1134-CIV-T-23C.,97-1134-CIV-T-23C.
• Citation: 995 F.Supp. 1411
• Parties: SOUTHERN OFFSHORE FISHING ASSOCIATION, et al., Plaintiffs, v. William M. DALEY, Defendant.
• Court: U.S. District Court — Middle District of Florida

995 F.Supp. 1411

SOUTHERN OFFSHORE FISHING ASSOCIATION, et al., Plaintiffs, v. William M. DALEY, Defendant.

No. 97-1134-CIV-T-23C.

United States District Court, M.D. Florida, Tampa Division.

February 24, 1998.

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Charles Paul Schropp, Schropp, Buell & Elligett, P.A., Tampa, FL, David E. Frulla, Brand, Lowell & Ryan, P.C., Washington, DC, for Southern Offshore Fishing Assoc., Directed Shark Fishery Assoc., Seafood Atlantic, Inc., Fishermen's Ice and Bait, Inc., Harrison Int'l, Enterprises, Inc., Willie R. Etheridge Seafood Co., Inc., Tristram Colket, Harold West, Bruce Stiller, and Glen Hopkins.

Mark A. Brown, Wildlife & Marine Resources Section, Environment & Natural Resources Div., Washington, DC, Mariam McCall, NOAA GCF, Silver Spring, MD, for William M. Daley, Secretary of Commerce.

Cody Fowler Davis, Macfarlane, Ferguson & McMullen, Tampa, FL, Colin C. Deihl, Dawn McKnight, Mark Hughes, Earthlaw, University of Denver School of Law, Foote Law, Denver, CO, for Center for Marine Conservation, National Audubon Society, Inc., Natural Resources Defense Council, Inc., Biodiversity Legal Foundation, Amici Curiae.

ORDER

MERRYDAY, District Judge.

The plaintiffs, a coalition of shark fishermen and shark fishing organizations, challenge the 1997 commercial harvest quotas imposed by the United States Secretary of Commerce and his designees ("Secretary") for the capture of Atlantic sharks currently under federal management. The plaintiffs allege that the administrative decision is unsupported by the record and is contrary to law. I conclude that the Secretary acted within his regulatory discretion in setting the quotas but failed to conduct a proper analysis to determine the quotas' economic effect on small businesses.

The Atlantic Shark Fishery

At least 73 shark species inhabit the Atlantic coast of the United States, the Gulf of Mexico, and the Caribbean Sea. U.S. fishermen harvest (the prevalent euphemism for commercial and sports fishing) sharks both recreationally and commercially. Although small, localized shark fisheries have existed along all U.S. coasts for many years, shark fishing has increased in recent years as domestic and international markets expanded pari passu with increases in demand for sundry shark products, including fins, meat, and hides. In the 1970's and 1980's the U.S. government actively promoted commercial exploitation of the Atlantic shark fishery. The government's objective was to develop a presumably "underutilized resource" and to relieve the acute fishing pressure on more commercially popular fish stocks. Fishermen, including some of the individual plaintiffs in this case, undertook commercial shark fishing in the 1980's as a result of the government's promotional efforts.

"Directed shark fishing vessels" — boats purchased, equipped, and operated chiefly for commercial shark fishing — are usually small (45 feet or less in length) compared to typical commercial fishing vessels. The shark fishery became a "small boat" fishery when in 1994 the imposition of a strict 4,000 pound per trip limit rendered fishing by larger vessels economically unfeasible. Often owned and operated by individuals, directed vessels are sailed by small crews, yield only frail profits, and venture into U.S. waters only. A few self-employed fishermen, including some parties to this case, devote a large portion of their commercial efforts to the capture of Atlantic shark species, especially large coastal sharks. Other vessels harvest sharks as an incident to their pursuit of other Atlantic migratory species, including tuna and swordfish. Unlike the directed shark vessels, the larger, oceanic vessels range far beyond U.S. waters.

In February, 1997, 1,598 U.S. vessels were licensed to commercially harvest sharks in the Atlantic Ocean and the Gulf of Mexico. Recent increases in commercial shark fishing have not decreased the popularity of recreational shark fishing, a venturesome, rigorous, and often competitive diversion for some sportsmen.

Before July, 1993, most data on shark landings were submitted voluntarily to the Secretary and to states by fishermen who recorded the weight of dressed carcass and average prices of sharks purchased by seafood dealers.¹ Other sources of commercial catch data included voluntary logbooks that recorded the dressed weight of individual fish. Estimates of commercial landings were based on the number of boats identified as targeting coastal sharks. Further, telephone interviews and surveys of anglers at selected fishing sites provided data on recreational shark fishing.

U.S. fishermen share the Atlantic shark resource with fishermen from Mexico, Cuba, Nicaragua, and other countries bordering the Gulf of Mexico, the Caribbean Sea, and the southwestern waters of the North Atlantic Ocean. Foreign commercial shark fishing into stocks adjoining the U.S. preceded federal government efforts to develop the U.S. commercial shark fishery.

Fishery Management

Through the Magnuson-Stevens Fishery Conservation and Management Act, as recently amended and renamed by the Sustainable Fisheries Act of 1996, 16 U.S.C. §§ 1801, et seq. (the "Magnuson Act"), Congress delegated to the Secretary "broad authority to manage and conserve coastal fisheries." Kramer v. Mosbacher, 878 F.2d 134, 135 (4th Cir.1989). To assist the Secretary in carrying out specific management and conservation duties, the Magnuson Act created five independent regional fishery management councils. A council's "principal task is to prepare fishery management plans [("plans")] for its area." Id. However, the council system is inapplicable to species that the statute considers "highly migratory." The Magnuson Act assigns the responsibility to prepare and implement plans for Atlantic sharks, as "highly migratory species," exclusively to the Secretary. 16 U.S.C. § 1854(g).

The Secretary's authority and discretion with respect to the management of Atlantic sharks are not unfettered. In preparing, amending, and implementing an FMP under the Magnuson Act, the Secretary must consider various competing factors aimed at promoting conservation and protecting the fishing industry. See 16 U.S.C. § 1854(g)(1).² In addition, all of the Secretary's regulatory actions must be consistent with the ten national standards for fishery conservation and management prescribed by § 1851(a), which, like § 1854(g)(1), requires the Secretary to account for competing environmental and economic considerations.³ Finally, the Secretary must also comply with the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. §§ 601, et seq. (the "RFA"), which requires an agency in the process of rule-making to consider the effect of the agency's proposed regulation on small enterprises and to prescribe pertinent mitigating measures. Both the Magnuson Act and the RFA provide for judicial review of the Secretary's actions pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701, et seq. ("APA"). See 16 U.S.C. § 1855(f); 5 U.S.C. § 611(a)(1).

On February 25, 1993, the Secretary's designee, the National Marine Fishery Service ("NMFS"), issued the "Fishery Management Plan for Sharks of the Atlantic Ocean" (the "FMP"), governing the Atlantic shark fishery along the U.S. coastline from Texas to New England. A.R. Vol. 1, tab I-1 (FMP, February 25, 1993). After three drafts and an animated public discussion, the FMP was promulgated by NMFS in accordance with the administrative rule-making process prescribed by 16 U.S.C. § 1855(d). See 50 C.F.R. part 678 (1993)(FMP). Generally, the FMP imposes resource management measures designed to prevent a destructive intensity of shark fishing and to incrementally, but ineluctably, rebuild the shark stock.⁴

Of the 73 species of sharks known to inhabit the Atlantic and Gulf coasts of the U.S., 39 commercially exploited species are grouped by the FMP into three classes: large coastal sharks ("LCS"), small coastal sharks ("SCS"), and pelagic sharks.⁵ NMFS manages the three classes of sharks as a theoretical "management unit" that ranges across state, federal, and international boundaries.

NMFS and shark scientists historically use "catch per unit of effort" ("CPUE") indices to detect decline and growth in stocks. CPUE indices provide an estimate of stock abundance by measuring the amount of fishing effort needed to catch a fish. Based on stock assessments compiled from existing CPUE data indicating that catches exceeded resource production since 1987, the FMP concludes that LCS are overfished. "Overfished" means "a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis." 16 U.S.C. § 1802(29).⁶ The FMP also determines that SCS and pelagic sharks, while not overfished, are nonetheless fully exploited.

The FMP notes that both fish and fishermen migrate. The FMP concludes that, "Many species of sharks migrate beyond U.S. waters and are harvested by foreign nations. It is therefore necessary that the management regime consider transboundary distribution." A.R. Vol. 1, tab I, 1, at 105(FMP). The FMP also states that, "[I]n 1988, Cuba landed about 3,500 [metric tons ("mt") dressed weight] of sharks, Mexico harvested 12,000 mt of sharks in the Gulf of Mexico, and the total U.S. commercial catch was 5,276 mt." Id. Reviewing the Atlantic sharks' migratory patterns and the international shark harvest, the FMP concludes that, "To effectively manage sharks throughout their range, cooperation, particularly with Mexico, should be sought through existing conventions and agreements, such as MEXUS-Gulf, International Convention for the Conservation of Atlantic Tunas, and others." Id.

To prevent overfishing and stimulate rebuilding of stocks, the FMP creates a comprehensive permitting system and establishes the first...