sufficient ITQs to operate their vessels at full capacity, and ultimately will be driven out of business. It is quite possible that scale economies and transferability of ITQs will produce some consolidation. It is also possible that small fishermen enjoy advantages of their own, and nothing prevents coalitions of small owners from pooling their allocations to obtain efficiencies. Moreover, single vessel or small fleet owners may happen to have substantial allocations depending upon their history. Even where a fisherman with a small allocation decides to exit, transferability of the ITQ provides at least some compensation. There is nothing intentionally invidious or inherently unfair in the plan adopted by the Council and the Secretary. "Inherent in an allocation is the advantaging of one group to the detriment of another." 50 C.F.R. § 602.14(c)(3)(i).
2. Limitation of Access to the Quahog Fishery
Aside from the general challenges to the ITQ system described above, plaintiffs make several specific challenges to the decision to limit access to the ocean quahog fishery by bringing it under the same regulatory scheme as the two surf clam fisheries. They argue that the decision lacks support in the administrative record; that it does not comply with the Act's express requirements for a limited access management scheme; and that it violates applicable National Standards. The Court will address each claim in turn.
The Administrative Record. Plaintiffs contend that the decision to include ocean quahogs in the ITQ system lacks support in the administrative record and was arbitrary and capricious. Such claims are reviewed under a standard of deference. National Fisheries Inst. v. Mosbacher, 732 F. Supp. 210, 219 (D.D.C. 1990). While the Court indeed must ensure that the Secretary's decision was rational, it "'is not empowered to substitute its judgment for that of the agency.'" Id. at 223 (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971)). Under this standard, the Court concludes that the Secretary's decision, though based on conflicting, even speculative, evidence about trends affecting the ocean quahog resource in the future, nonetheless had a rational basis, and was not arbitrary or capricious.
In brief, plaintiffs' argument is that any regulation of the resource is responding to a "problem that does not exist."
They dispute the Council's claim of an upward trend in the ocean quahog harvest data, and its prediction that the same "overcapitalization" that required restriction of access to the surf clam fisheries eventually will occur in this fishery. They cite the lower market demand for quahogs, and the undisputed fact that the annual quahog catch quota has never been reached. They correctly assert that the Council and the Secretary may not reason by analogy from the surf clam resource to the quahog resource, but must have an independent rational basis for the decision. Motor Vehicle Mfrs. Ass'n v. EPA, 247 U.S. App. D.C. 268, 768 F.2d 385 (D.C.Cir. 1985), cert. denied, 474 U.S. 1082, 88 L. Ed. 2d 892, 106 S. Ct. 852 (1986).
However, the administrative record shows that the Council's Scientific and Statistical Committee recommended the inclusion of quahogs in a comprehensive fishery management plan for several years prior to adoption of Amendment 8, AR 65, 197, 1805, and that the Council considered other alternatives, AR 496-97, 502-03. The ultimate decision to adopt this recommendation was based on several related grounds, including the fact that surf clams and quahogs had become substitute goods for certain uses, AR 65, 388; that existing surf clam restrictions had already resulted in movement of vessels from that fishery into the quahog fishery, AR 197, 1805; and that the potential for further migration to and increased catches in the quahog fishery would be heightened by placing the surf clam fishery under the ITQ system while leaving the quahog fishery unregulated, AR 399, 1692. The Council coupled these long-term concerns with evidence of a recent increase in the quahog harvest. AR 1886.
In sum, the threat to the ocean quahog resource is reflected in the need for the existing annual quotas. An increase in this threat is posed by the diversion of ships from the surf clam to the quahog fishery as surf clam restrictions tighten. Both regulators and fishermen have an interest in having ground rules established before any problem matures. Contrary to plaintiffs' arguments, the Act does not mandate any finding of necessity before fishery access can be limited. The accompanying regulations state that "in an unutilized or underutilized fishery, [limited access] may be used to reduce the chance that [overfishing or overcapitalization] will adversely affect the fishery in the future." 50 C.F.R. § 602.15(c). The issue thus turns on predictions about the future in an area of technical and scientific expertise, where special deference is due to regulatory agencies. Building & Constr. Trades Dep't v. Brock, 267 U.S. App. D.C. 308, 838 F.2d 1258, 1266 (D.C.Cir. 1988). Although plaintiffs' attack on this determination is by no means a frivolous one, the Court holds that the Council and the Secretary did have a rational basis for their action.
16 U.S.C. § 1853(b)(6). The Magnuson Act expressly provides that the Council and the Secretary may
establish a system for limiting access to the fishery in order to achieve optimum yield if, in developing such system, the Council and the Secretary take into account -- (A) present participation in the fishery, (B) historical fishing practices in, and dependence on, the fishery, (C) the economics of the fishery, (D) the capability of fishing vessels used in the fishery to engage in other fisheries, (E) the cultural and social framework relevant to the fishery, and (F) any other relevant considerations.