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September 20, 2001


The opinion of the court was delivered by: Roberts, District Judge.


Plaintiffs, individuals and associations involved in the recreational fishing industry, brought this challenge to the Commerce Secretary's*fn1 regulations implementing the final 1999 Highly Migratory Species Fishery Management Plan. Both parties have moved for summary judgment. Because the Secretary acted within his authority as to all of the challenged actions, defendants' cross-motion for summary judgment will be granted and plaintiffs' motion for summary judgment will be denied.

I. Introduction

Plaintiffs are recreational fishers who depend economically on yellowfin tuna and shark fisheries. (Pls.' Compl. ¶¶ 1-16.) These tuna and shark species are known as Highly Migratory Species ("HMS"). (Id. ¶ 17.)*fn2

Recreational fishing for HMS is subject to statutory and regulatory regimes, as well as international agreements, designed to protect HMS. (Pls.' Statement of Material Facts ("Pls.' Statement") ¶¶ 1-5, 9-11,) The focus of this litigation is the final 1999 Highly Migratory Species Fishery Management Plan for Atlantic Tunas, Swordfish and Sharks ("HMS FMP"), promulgated by the National Marine Fisheries Service ("NMFS"), pursuant to its authority delegated by the Secretary of Commerce ("Secretary") under the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson-Stevens Act"), 16 U.S.C. § 1801-83 (1994 & West. Supp. 2000).

Plaintiffs claim that two of the HMS FMP's regulations are arbitrary and capricious, including (1) recreational retention limits on yellowfin tuna ("YFT"), see 50 C.F.R. § 635.22(d); and (2) recreational retention limits on large coastal, small coastal and pelagic sharks, see 50 C.F.R. § 635.20(e)(2), 635.22(c). Specifically, plaintiffs claim that each regulation violates certain National Standards set forth in the Magnuson-Stevens Act. See 16 U.S.C. § 1851(a)(1)-(10).

In addition, plaintiffs claim that the YFT retention limit disadvantages United States fishers relative to fishers from other nations, in violation of 16 U.S.C. § 1854(g)(1)(C). Finally, plaintiffs assert that in promulgating the YFT retention limit, defendants violated the Regulatory Flexibility Act, 5 U.S.C. § 601-612 (1994 & West Supp. 2000), as amended by the Small Business Regulatory Enforcement and Fairness Act ("SBREFA"), Pub.L. No. 104-121, §§ 241-42, 101 Stat. 857, 864-68 (1996), by failing adequately to evaluate its effects on small business entities.*fn3

II. Legal Framework

A. The Magnuson-Stevens Act

The purpose of the Magnuson-Stevens Act is to protect HMS in waters extending two hundred (200) miles from the United States coast through conservation and management measures. See 16 U.S.C. § 1801(a), (b). Congress found that many HMS were "overfished"*fn4 and that as a result of "increased fishing pressure" and "the inadequacy of fishery resource conservation and management practices," the survival of HMS "is threatened." 16 U.S.C. § 1801(a)(2). Congress also found that other species, while not technically overfished, were "so substantially reduced in number that they could become similarly threatened." Id.

The Magnuson-Stevens Act directs the Secretary to prepare "fishery management plans which will achieve and maintain, on a continuing basis, the optimum yield*fn5 from each fishery," 16 U.S.C. § 1801(b)(4), including HMS. See 16 U.S.C. § 1854(g)(1). That responsibility is delegated to NMFS. Id.

A plan issued pursuant to the Magnuson-Stevens Act must be consistent with ten National Standards. See 16 U.S.C. § 1851(a). Plaintiffs raise four of these standards in their claims, arguing that each of the 1999 HMS FMP regulations at issue violated the following standards:

(1) 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.
(2) Conservation and management measures shall be based upon the best scientific information available.
(4) Conservation and management measures shall not discriminate between residents of different States. 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.
(8) Conservation and management measures shall, consistent with the conservation requirements of this chapter (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities.

16 U.S.C. § 1851(a)(1), (2), (4), (8).

Plaintiffs also challenge the YFT retention limit under another provision of the Magnuson-Stevens Act, which requires that when the Secretary prepares the HMS FMP, the plan should, to the extent practicable, minimize any disadvantage the regulations might place on United States fishers as compared to foreign fishers. See 16 U.S.C. § 1854(g)(1)(C) (Secretary shall "evaluate the likely effects, if any, of conservation and management measures on participants in the affected fisheries and minimize, to the extent practicable, any disadvantage to United States fishermen in relation to foreign competitors").

B. Atlantic Tunas Convention Act

In addition to the Magnuson-Stevens Act, the Atlantic Tunas Convention Act ("ATCA"), 16 U.S.C. § 971 (1994), provides further authority for the Secretary to promulgate tuna conservation programs. In enacting ATCA, Congress gave the State Department authority to participate in the International Convention for the Conservation of Atlantic Tunas ("Convention"). See 16 U.S.C. § 971c, d(a). ATCA directs the Secretary to issue and enforce fishery management plans that comport with the Convention's objectives. See 16 U.S.C. § 971d.

Under ATCA, the State Department has broad discretion to implement tuna conservation programs, "except that no regulation . . . may have the effect of increasing or decreasing any allocation or quota of fish or fishing mortality level to the United States agreed to pursuant to a recommendation of the Commission." 16 U.S.C. § 971d(c)(1)(A), 971d(c)(3)(K). The "Commission" is the International Commission for the Conservation of Atlantic Tunas ("ICCAT"). 16 U.S.C. § 971a. ICCAT carries out the Convention's objectives of maintaining the tuna population and makes recommendations for achieving the Convention's tuna conservation goals. (Defs.' Combined Mem. in Opp'n to Pls.' Mot. for Summ. J. and Supp. Cross-Mot. for Summ. J. ("Defs.' Mem.") at 2-3.) Therefore, while the State Department cannot alter the United States YFT quota, pursuant to the Magnuson-Stevens Act and ATCA, it may develop conservation programs (such as retention limits) in conjunction with the fixed YFT quota.

C. Standard of Review

The Magnuson-Stevens Act provides for judicial review of an HMS FMP under the same standards as those set forth in the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A)-(D) (1994). See 16 U.S.C. § 1855(f). The APA directs that "the reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

In reviewing an agency's action to determine whether it was arbitrary and capricious, courts are constrained to review only those facts before the agency at the time of the action. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 74344, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). "If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." Id. at 744, 105 S.Ct. 1598; accord Southwest Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58, 61 (D.C.Cir. 2000) (reversing the district court's order directing that the agency collect more evidence to support its position because the district court was empowered to decide the issue presented based solely on the information available to the agency).

A court should engage in a searching and careful review of agency action but should not attempt to substitute its own judgment for the judgment of the agency. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Because the agency is expected to have expertise is its area, a certain degree of deference is due, particularly on issues about which experts disagree. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).

Despite this deferential standard, "the agency must examine the relevant data and articulate a satisfactory explanation for its action including a `rational connection between the facts found and the choice made.'" Motor Vehicle Mfrs. Ass'n, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). To determine whether the agency has articulated a satisfactory explanation,

[A court] must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. . . . Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies: `We may not supply a reasoned basis for the agency's action that the agency itself has not given.' . . . We will, however, `uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.'

Id. (internal citations omitted). For an agency's decisionmaking to be rational under Motor Vehicle Mfrs. Ass'n, the agency "must respond to significant points raised during the public comment period" and "consider significant alternatives to the course it ultimately chooses." Allied Local & Regional Mfrs. Caucus v. EPA, 215 F.3d 61, 80 (D.C.Cir. 2000).

Summary judgment is appropriate where "there is no genuine issue as to any material fact and [] the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment must provide the district court with a factual record sufficient to demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This case involves parties' motions for summary judgment as to certain administrative decisions in the 1999 HMS FMP. Specifically, I must determine whether the record supports the contention that 1999 HMS FMP satisfies the substantive requirements set out by the Magnuson-Stevens Act, as well as the Regulatory Flexibility Act.

III. Substantive Disputes

A. Yellowfin Tuna ...

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