While a reversal of position in and of itself would not necessarily be considered arbitrary, defendants must provide a reasoned analysis supporting the change. See Motor Vehicles Mfrs., 463 U.S. at 42. However, Amendment One simply provides that supersession "would adversely impact the cooperative state/federal approach to restoration/maintenance of the stock proposed under this amendment" and then discusses the costs of enforcement. Likewise, the explanation defendants now provide is that the reversal on the supersession issue reflects a new policy of cooperative management between the states and the federal government. Certainly cooperation between state and federal governments is permissible, as well as desirable, as long as the management schemes do not conflict and the objectives of the MFCA are accomplished. However, defendants emphasize the state-federal cooperation as if it were an end, indeed the most important end, unto itself. In so doing, they appear to have overlooked the fact that under the MFCA, effective fishery conservation and management, according to national standards, is the goal. If that can be accomplished through cooperative federal and state initiatives, a court would not interfere with the Secretary's scheme. However, in this case, the Secretary has allowed continued enforcement of state laws, which he has in the past acknowledged to be in conflict with federal regulations that he has promulgated. The Court, too, finds that a conflict exists and concludes, therefore, that the state laws cannot coexist in the federal scheme.
Additionally, the regulations require compliance with state laws, even if a vessel is not registered in the state where the catch is landed. Thus, the regulations go beyond what is authorized by the MFCA. See 16 U.S.C.A. § 1856(a)(3). In their Memorandum of Points and Authorities, defendants state that "it is . . . obvious that those state laws to which the Secretary has deferred, are valid only to the extent they apply to vessels registered in the state which is seeking to apply them." The Court agrees that the regulations would only be valid in that limited context. However, if defendants are arguing that the regulation may stand and will simply be applied as stated above, the Court must disagree. As written, defendants' regulation is invalid, as it provides that "a person landing red drum other than from a directed commercial red drum fishery, must comply with the landing and possession laws of the State where landed." It does not include a clause limiting the states to enforcement of its laws only as to fishing vessels registered in the state seeking enforcement. Although the Court must give deference to the Agency's interpretation and application of its own regulations, where, as in this instance, the regulation so clearly violates the Agency's enabling statute, the Court may not allow the regulation to stand. In addition, there is no evidence that the Agency has adopted a lawful interpretation of the regulation's reach or that it has applied the regulation narrowly. Instead, the Court has only what may be characterized as a litigation-generated rationale for the regulation.
Plaintiffs argue next that the division of the red drum fishery in the EEZ into primary and secondary zones is improper and is in violation of various provisions of the MFCA and the regulations. There is no question that the MFCA authorizes an FMP to "designate zones where, and periods when, fishing shall be limited, or shall not be permitted, or shall be permitted only by specified types of fishing vessels or with specified types and quantities of fishing gear[.]" 16 U.S.C.A. § 1853(b)(2). Such designation is within the discretion of the Council or the Secretary who prepared the FMP, and that discretion has been exercised in designating zones in several FMPs in the Gulf. See, e.g., 50 C.F.R. §§ 638.22, 642.29, 658.22-658.25 (1990). Plaintiffs argue, however, that as to redfish, the division is unjustified and cannot stand.
An action by the Secretary is presumed to be valid, and the Court must not substitute its own judgment for that of the Secretary. Environmental Defense Fund, Inc. v. Costle, 211 App. D.C. 313, 657 F.2d 275, 283 (D.C. Cir. 1981). The Court must be especially wary of substituting its judgment for that of the Secretary in a situation in which the Secretary has called upon the scientific or technical expertise of the Gulf Council and the Agency. See Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103, 76 L. Ed. 2d 437, 103 S. Ct. 2246 (1983). The MFCA vests broad authority in the Secretary to promulgate regulations that will carry out the approved FMP. See Kramer v. Mosbacher, 878 F.2d 134, 135 (4th Cir. 1989). The Court has carefully reviewed the entire extensive administrative record in this case and will not attempt to repeat portions thereof. Based upon the record, the Court cannot and does not conclude that the division of the redfish fishery into primary and secondary zones was arbitrary and capricious.
Finally, plaintiffs argue that defendants' closure of the directed commercial red drum fishery in the EEZ pending a 20% escapement of juvenile fish from inshore waters is contrary to the National Standards and without a rational basis. Because commercial harvesting of redfish in the EEZ developed so suddenly and so rapidly, the Gulf Council and the Secretary were forced to make rapid decisions about the stock, based, unfortunately, on imperfect information. "However, the Magnuson Act does not force the Secretary and Councils to sit idly by, powerless to conserve and manage a fishery resource, simply because they are somewhat uncertain about the accuracy of relevant information" National Fisheries Institute, Inc. v. Mosbacher, 732 F. Supp. 210, 220 (D.D.C. 1990). The National Standards require that an FMP and its regulations must be based upon "the best scientific evidence available." 16 U.S.C.A. § 1851(a)(2). Again, after a full review of the administrative record and, in light of all of the arguments raised by plaintiffs, the Court concludes that the decision of the Secretary is based upon relevant considerations and is supported by the record.
For all of the above reasons, it is appropriate to enter summary judgment in favor of plaintiffs and against defendants and defendant-intervenors as to supersession, and against plaintiffs and in favor of defendants and defendant-intervenors as to the division into zones and the closure of the directed redfish fishery. An appropriate Order accompanies this Opinion.
ORDER - August 6, 1991, Filed
Upon consideration of plaintiffs' motion for summary judgment and the cross-motions for summary judgment of defendants and defendant-intervenors, the relevant oppositions thereto, and the entire record herein, for the reasons set forth in the accompanying Opinion, it hereby is
ORDERED, that plaintiffs' motion is granted in part and denied in part. It hereby further is
ORDERED, that defendants' motion is granted in part and denied in part. It hereby further is
ORDERED, that defendant-intervenors' motions are granted in part and denied in part. It hereby further is
ORDERED, that the case is dismissed.