developed, and the Secretary implemented, the no sale provision which applies to commercial and recreational fishermen. Finally, the FMP includes the paper trail provision in recognition of the reality that the no sale provision -- and its attendant conservation effect -- would be completely diluted absent an effective method for determining whether a billfish was harvested from within its management unit.
Viewed as a whole, the FMP's conservation and management measures -- whether challenged by the plaintiffs or not
-- demonstrate that the Secretary and the Councils were greatly concerned with reducing billfish mortality and conserving the billfish resource. See e.g., AR App. Vol. IV, 1988.29 at 2 ("Release of billfish by [commercial fishermen] and of small billfish by recreation[al] fishermen will clearly increase the average size of the billfish population."). The FMP enables billfish to attain sexual maturity and gives them opportunity to reproduce before being harvested. 53 Fed.Reg. at 37,767; see AR App. Vol. I, FMP at 49-58. In fact, the record reflects that the Councils chose the minimum size limits specifically to reduce the mortality rates of those billfish species most in need of conservation by between thirty and fifty percent. AR App. Vol. I, FMP at 50. Furthermore, while acknowledging that the no possession provision would result in some waste (by forcing commercial fishermen to discard dead billfish), the FMP correctly concludes that the provision would nevertheless promote conservation, because approximately 59% of the billfish caught by longline fishermen are alive when brought on board. Id. at 58-59. Even assuming, as the plaintiffs claim, that this figure is somewhat inflated, the Court cannot hold that there is no adequate conservation justification on this record for the no possession provision.
Nor does this Court's conclusion that there is a sufficient conservation justification for the Secretary's billfish regulations waver in the face of the plaintiffs' argument that -- due to the extensive nature of the foreign billfish harvest from beyond the EEZ -- only international management measures would have any effect on the billfish resource.
Merely because billfish are also harvested beyond the EEZ is no reason why the Secretary should not regulate them within the bounds of his authority under the Act. When Congress passed the Magnuson Act it was well aware of the existence of international fishery management agreements, especially the one that the plaintiffs specifically mention, the International Convention for the Conservation of Atlantic Tunas. See 16 U.S.C. § 1827(b)(1)(B); see also § 1801(b)(2), (c)(5). Moreover, Congress explicitly recognized the problems associated with "massive foreign fishing fleets," § 1801(a)(3), and found that "international fishery agreements have not been effective in preventing or terminating the overfishing of . . . valuable fishery resources. There is danger that irreversible effects from overfishing will take place before an effective international agreement on fishery management jurisdiction can be negotiated, signed, ratified, and implemented," § 1801(a)(4). The plaintiffs point to nothing indicating that Congress intended to preclude the Secretary from implementing management and conservation measures whenever a species of fish was subject to foreign as well as domestic harvest within and beyond the EEZ.
(2) Economic and Social Considerations
While the Secretary, when contemplating whether to approve an FMP, should certainly take economic considerations into account, the Magnuson Act is clear on its face that the Secretary is not limited to conducting a strict economic cost/benefit analysis but should also engage in a more qualitative analysis of the relevant social factors. Congress specifically required the Secretary to manage fishery resources to "provide the greatest overall benefit to the Nation, with particular reference to food production and recreational opportunities " and to modify the biological figure (maximum sustainable yield) "by any relevant economic, social, or ecological factors." § 1802(18) (emphasis added); see § 1853 (any FMP must contain description of fishery including, inter alia, "any recreational interests in the fishery"); see also 50 C.F.R. § 602.11(e)(2) (one of two values that should receive "serious attention" in determining greatest benefit to nation is "recreational opportunities," which "includes recognition of the importance of the quality of the recreational fishing experience"). As the Ninth Circuit held in the analogous context of reviewing an amendment to an FMP:
The Secretary does not have to conduct a formal cost/benefit analysis of [the amendment]. He, therefore, does not need to demonstrate that it is the least restrictive alternative available for managing the sablefish resource. The Secretary could reasonably have concluded from the record that pot and trawl fishing should be curtailed in Alaska for both sociological and environmental reasons, and that the amendment would be beneficial to the nation as a whole, even though some interest groups might be harmed.
Alaska Factory Trawler Ass'n v. Baldridge, 831 F.2d 1456, 1460 (9th Cir. 1987) (emphasis added); see Pacific Coast Fed'n of Fishermen's Ass'n v. Secretary of Commerce, 494 F. Supp. 626, 631 (N.D.Cal. 1980) (emphasis added) ("Having considered the economic impact, the Council is free to adopt a[n FMP]. It need not undertake a rigorous exercise in microeconomic analysis.").
Similarly, the Court cannot conclude that the administrative record is so devoid of quantitative economic and qualitative social justifications that the Secretary's decision to approve the FMP was arbitrary or capricious. The Councils, as well as Congress, recognized that billfish occupy a unique position in this country in that they have little or no commercial value (in terms of food production) but are highly prized by countless recreational fishermen merely for the experience of catching, or attempting to catch, one of these fish. See AR App. Vol. I, FMP at 20, 35. For example, "participants in this fishery are willing to spend large sums of money . . . and time in the fishery even though the catch per unit of effort is extremely low in comparison with that in other marine recreational fisheries." Id. at 34. In 1978 the billfish fishery provided an estimated one million days of recreation for approximately 66,000 people, generating direct expenditures of about $ 100 million, or about $ 1,300 per fish caught. Id. at 36. It is likely that the total value of the recreational billfish fishery -- and its concomitant impact on the economies of many coastal communities -- is greater today than it was in 1978.
On the other hand, commercial fishermen catch billfish only as a by-product of their fishing activities directed at tuna and swordfish. In 1986 the estimated ex-vessel value of billfish caught by longline fishermen was about $ 134,000, which represented only 0.4 percent of the value of their entire catch. Id. at 29, 33; AR App. Vol. I, FMP Source Doc. at 8-15 & Table 8-4. The FMP correctly notes that the valuation figures for the recreational and commercial billfish fisheries cannot be compared directly, but it also correctly observes that these figures "provide some indication of the considerable difference in relative value of [billfish] to the two user groups." AR App. Vol. I, FMP at 34. Furthermore, it is estimated that in 1983 the total recreational catch of marlin (blue and white) was about 10,100, id. at 24, Table 2,
whereas extrapolations based on observer data from 1985-1987 indicate that longline fleets caught about 37,000 marlin, id. at 22-23. Even if the latter figure were greatly reduced to compensate for the difference in years covered by the data and for possible distortions due to the concentration of observer effort in the southern region of the fishery, these statistics reveal that commercial fishermen catch far more billfish than recreational fishermen. In light of the data discussed above and other less quantifiable considerations,
the Secretary could properly conclude that, on the whole, the nation would benefit most from an effort to reduce billfish mortality caused by commercial fishing and maximize billfish availability for recreational fishing.
The Court recognizes -- and takes very seriously -- its duty to engage in a "thorough, probing, in-depth review" and conduct a "searching and careful" inquiry, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 416, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971), into the Secretary's decision to implement the FMP. However, "the ultimate standard of review is a narrow one [, and] the Court is not empowered to substitute its judgment for that of the agency." Id. at 416; see Maine v. Kreps, 563 F.2d 1052, 1055 (1st Cir. 1977) ("A reviewing court . . . may not substitute its own judgment as to values and priorities for that of the Secretary.").
Thus, whether the Councils' two "cost/benefit scenarios" support the FMP or are flawed, as the plaintiffs argue, is not dispositive. See Michigan Consol. Gas Co. v. Federal Energy Regulatory Comm'n., 883 F.2d 117, 123 (D.C.Cir. 1989) ("Whether FERC's [competitive] model is 'faulty' or not, which we do not decide, we are not at liberty to replace FERC's economic reasoning, supported by its technical expertise, with our own."), petition for cert. filed, No. 89-1161 (Jan. 24, 1990). As a threshold matter, the Court has already held that the Magnuson Act does not require the Secretary to subject each FMP to a formal cost/benefit analysis. Alaska Factory Trawler Ass'n, 831 F.2d at 1460. Moreover, this question of whether certain billfish conservation and management measures would be in the nation's "best interest" is "a classic example of a factual dispute the resolution of which implicates substantial agency expertise." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S. Ct. 1851, 1860, 104 L. Ed. 2d 377 (1989). It is therefore especially appropriate for the Court to defer to the expertise and experience of those individuals and entities -- the Secretary, the Councils, and their advisors -- whom the Act charges with making difficult policy judgments and choosing appropriate conservation and management measures based on their evaluations of the relevant quantitative and qualitative factors. See Pittston Coal Group v. Sebben, 488 U.S. 105, 109 S. Ct. 414, 438, 102 L. Ed. 2d 408 (1988) ("As an interpretive question becomes more technical, the expertise of the agency charged with a statute's administration becomes greater and deferring to its construction rather than importing our own becomes more appropriate."); see also Oregon Natural Resources Council, 109 S. Ct. at 1861 ("When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts, even if, as an original matter, a court might find contrary views more persuasive.").
(3) Magnuson Act's National Standards
The Magnuson Act requires that any FMP, and any implementing regulations promulgated by the Secretary, must be consistent with seven "national standards for fishery conservation and management." 16 U.S.C. § 1851(a). The plaintiffs claim that the billfish FMP and the Secretary's regulations violate four of those national standards. The Court disagrees and will address each of the plaintiffs' arguments in turn.
National Standard 1 requires that "conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry."
§ 1851(a)(1). The FMP defines optimum yield ("OY") for the fishery as "the greatest number of billfish that can be caught by the recreational fishery in the EEZ, consistent with the provisions of this [FMP], considering the biological limitations of the stock and the unavoidable incidental catches in other fisheries." AR App. Vol. I, FMP at 35 (emphasis added). Two of the plaintiffs' criticisms of this OY formulation overlap with issues previously addressed and do not merit further extended discussion.
The plaintiffs also argue that this specification of OY is fundamentally flawed because it is not derived from a concrete maximum sustainable yield ("MSY") figure. MSY is "the largest quantity of fish that can be harvested annually from a resource without reducing its long-term productive potential." Id. at ii. The plaintiffs' argument notwithstanding, the national standards guidelines -- promulgated pursuant to the Magnuson Act's specific mandate, 16 U.S.C. § 1851(b) -- recognize that under some circumstances defining a precise numerical MSY may be impossible:
The determination of OY requires a specification of MSY. However, where sufficient scientific data as to the biological characteristics of the stock do not exist, . . . or where frequent large-scale fluctuations in stock size make this concept of limited value, the OY should not be based on a fabricated MSY but on the best scientific information available.
50 C.F.R. § 602.11(c)(3) (1987) (emphasis added). The Court is not convinced that National Standard 1 nor any other part of the Magnuson Act require that, in every instance, the absence of a definite MSY figure invalidates an FMP. See id. § 602, Appendix A to Subpart B, Standard 1 (emphasis added) (guidelines recognize "that MSY represents the underlying biological rationale upon which most determinations of OY rest").
Instead of fabricating a definite MSY figure -- which would be of limited value in this case -- the FMP candidly acknowledges that shortcomings in data on the billfish stock prevent anything other than "[provisional] estimates of MSY." AR App. Vol. I, FMP at 11. The FMP does estimate North Atlantic blue marlin MSY at about 2400-2500 metric tons and MSY of the entire Atlantic stock of sailfish and spearfish combined at about 2100 metric ton and uses 1000 metric tons as a "proxy" for the white marlin MSY. Id. Thus, merely because the Councils could not arrive at concrete numerical OY and MSY specifications for the billfish fishery by using the best scientific data available, does not mean that the FMP violates National Standard 1. See 50 C.F.R. § 602, Appendix A to Subpart B, Standard 1 (1987) ("The guidelines acknowledge . . . that in some fisheries a numerical MSY is not essential in establishing an appropriate underlying biological basis for OY.").
National Standard 2 requires that "conservation and management measures shall be based upon the best scientific information available." 16 U.S.C. § 1851(a)(2). The Court has already considered and rejected the plaintiffs' argument that the FMP is not based on the best scientific information available. See supra Part II(B)(1) at 21-23. Moreover, the guidelines for this national standard state unequivocally: "The fact that scientific information concerning a fishery is incomplete does not prevent the preparation and implementation of an FMP." 50 C.F.R. § 602.12(b) (1987) (emphasis added).
National Standard 4 provides:
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.
16 U.S.C. § 1851(a)(4). One of the plaintiffs' National Standard 4 arguments merits little additional discussion.
The plaintiffs also contend that the FMP violates National Standard 4 because its allocation of billfish fishing privileges discriminates against commercial fishermen and is not "fair and equitable" to all billfish fishermen.
The Court disagrees. It should be noted that the provisions challenged by the plaintiffs are not facially discriminatory against commercial fishermen. They either make permissible distinctions based upon different types of fishing gear used, see 50 C.F.R. § 644.22 (1988) (no possession provision applies to vessels with pelagic longline or drift net aboard), or apply to both recreational and commercial fishermen, see § 644.24(a), (b) (no sale and paper trail provisions).
Merely because these provisions have a greater impact upon one type of gear user or group of fishermen does not necessarily mean that they violate National Standard 4. See Alaska Factory Trawler Ass'n, 831 F.2d at 1460 ("Even though there may be some discriminatory impact from the [FMP amendment], the regulations satisfy the requirements of National Standard 4 in that they are tailored to solve a gear conflict problem and to promote the conservation of sablefish."). The FMP's burdens also fall upon recreational fishermen: the minimum size provision greatly reduces the number of billfish that recreational fishermen may retain. 50 C.F.R. § 644.21 (1988). As the Court has repeatedly held today, the provisions challenged in this suit -- and the ensuing advantages for recreational fishermen -- are necessary and rationally related to the FMP's legitimate objective of conserving billfish while also providing the greatest overall benefit to the nation. See 50 C.F.R. § 602.14(c) (1987) ("an FMP may contain management measures that allocate fishing privileges if such measures are necessary or helpful in furthering legitimate objectives"); § 602.14(c)(3)(i)(B) ("An allocation of fishing privileges may impose a hardship on one group if it is outweighed by the total benefits received by another group or groups."). Thus, the billfish FMP does not violate National Standard 4.
Finally, National Standard 5 requires that "conservation and management measures shall, where practicable, promote efficiency in the utilization of fishery resources." 16 U.S.C. § 1851(a)(5) (emphasis added). The plaintiffs argue that, by requiring commercial fishermen to discard dead billfish, the no possession and no sale provisions do not promote efficiency. As an initial matter, the plaintiffs' argument ignores the "where practicable" caveat of National Standard 5 and fails to recognize, as Congress did, that "there are certain instances in which maximum efficiency would be inappropriate. For instance, recreational fishing need not be made efficient, or much of the sport would be removed." S.Rep. No. 416, 94th Cong., 1st Sess. at 31 (1975). Efficiency is not of paramount importance in this case because the primary benefit of the billfish resource to the nation as a whole is recreational fishing opportunities and not food production, which (at least in the United States) is nothing more than a by-product of commercial fishing activities directed at other species.
Nevertheless, the plaintiffs focus their efficiency analysis too narrowly and fail to realize that the challenged provisions do promote efficiency. The guidelines for National Standard 5 state that "given a set of objectives for the fishery, an FMP should contain management measures that result in as efficient a fishery as is practicable or desirable," 50 C.F.R. § 602.15(b)(1) (1987), and define efficiency as "the ability to produce a desired effect or product (or achieve an objective) with a minimum of effort, costs, or misuse of valuable biological and economic resources," § 602, Appendix A to Subpart B, Standard 5. The FMP before this Court achieves, with a minimum of cost, its objective of conserving billfish and maintaining the billfish resource for recreational purposes. The alternatives are neither desirable -- such as not implementing the challenged provisions in the first place, which would defeat the FMP's objectives -- nor practicable -- such as placing an observer on board of every domestic commercial fishing vessel, which would be much more costly than discarding incidentally caught, dead billfish. Thus, the challenged provisions promote efficiency and are consistent with National Standard 5.
The plaintiffs attack the validity of the Secretary's decision to implement the FMP by making what are, to a large extent, policy arguments on behalf of the interest group of commercial fishermen. Particularly relevant in this regard is slightly paraphrased language from the Supreme Court's Chevron opinion:
[The Secretary's decision to implement the FMP] represents a reasonable accommodation of manifestly competing interests and is entitled to deference: the regulatory scheme is technical and complex, the agency considered the matter in a detailed and reasoned fashion, and the decision involves reconciling conflicting policies. . . .