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NATIONAL COALITION FOR MARINE CONSERVATION v. EVANS
October 31, 2002
NATIONAL COALITION FOR MARINE CONSERVATION, ET AL., PLAINTIFFS
DONALD L. EVANS, ET AL., DEFENDANTS, AND BLUE WATER FISHERMEN'S ASSOCIATION, INTERVENOR-DEFENDANTS, THE BILLFISH FOUNDATION, ET AL., PLAINTIFFS, V. DONALD L. EVANS, ET AL., DEFENDANTS, AND BLUE WATER FISHERMEN'S ASSOCIATION, INTERVENOR-DEFENDANTS A FISHERMAN'S BEST, INC., ET AL. PLAINTIFFS, V. DONALD L. EVANS, DEFENDANT, AND NATIONAL COALITION FOR MARINE CONSERVATION, ET AL., INTERVENOR-DEFENDANTS
The opinion of the court was delivered by: Richard W. Roberts, United States District Judge
Plaintiffs in these consolidated cases are non-profit and other
organizations involved in marine conservation, or recreational or
commercial pelagic longline fishing, that bring divergent challenges to
certain of the Commerce Secretary's*fn1 regulations implementing the
final 1999 Highly Migratory Species Fishery Management Plan. Plaintiffs
National Coalition for Marine Conservation ("National Coalition"), The
Billfish Foundation and A Fisherman's Best, and the federal defendants,
each have filed cross-motions for summary judgment.*fn2 Because the
Secretary acted within his authority as to the challenged regulations,
the federal defendants' motion for summary judgment will be granted and
the plaintiffs' motions for summary judgment will be denied.
Highly Migratory Species ("HMS") include species such as billfish (a
includes blue marlin and white marlin), tuna, sharks and
swordfish.*fn3 Pelagic longline fishers catch HMS with forty-mile long
fishing lines set up in certain ocean depths in the Atlantic Ocean. See
Administrative Record ("A.R.") Vol. 8, Doc. 152, at 2-88. Currently, 450
vessels are permitted to use these fishing lines. See A.R. Vol. 45,
Doc. H134, at 8-3.
Pelagic longline fishing and pelagic fish are subject to statutory and
regulatory regimes, as well as international agreements, designed to
protect HMS. 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
Plaintiffs and intervenors claim that certain of the HMS FMP's
regulations are arbitrary and capricious, as promulgated in the 1999
final HMS FMP and Amendment 1 to the Atlantic Billfish FMP ("Billfish
Amendment"), 64 Fed. Reg. 29,090 (May 28, 1999), and the August 1, 2000
Closure Rule ("Closure Rule"), 65 Fed. Reg. 47,214 (Aug. 1, 2000)
(codified at 50 C.F.R. pt. 635). National Coalition, The Billfish
Foundation and A Fisherman's Best challenge the HMS FMP's alleged failure
to minimize blue and white marlin bycatch to the extent practicable. A
Fisherman's Best also challenges the HMS FMP's Closure Rule. The
Environmental Intervenors also assert that the HMS FMP fails to minimize
blue and white marlin bycatch or establish a reliable bycatch reporting
methodology, but support defendants' Closure Rule as consistent with the
Magnuson-Stevens Act. Finally, intervenor-defendants, represented by
Blue Water Fishermen's Association, claim that the Closure Rule does not
violate the Magnuson-Stevens Act and that NMFS is not obligated to enact
additional measures to minimize bycatch.*fn4
Specifically, the plaintiffs each claim that the HMS FMP violates
certain National Standards and other regulations set forth in the
Magnuson-Stevens Act. See 16 U.S.C. § 1851(a)(1), (2), (4),
(7)-(10); see also 16 U.S.C. § 1853(a)(10), (11), 1854(e)(3),
1854(g)(1)(C), (g)(1)(G)(ii)-(iii). A Fisherman's Best also asserts that
in promulgating the HMS FMP, the defendant violated the Regulatory
Flexibility Act ("RFA"), 5 U.S.C. § 601-612, 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 the HMS FMP's effect on small business entities.
A. The Magnuson-Stevens Act
The Magnuson-Stevens Act directs the Secretary to prepare "fishery
management plans which will achieve and maintain, on a continuing basis,
the optimum yield*fn6 from each fishery," 16 U.S.C. § 1801(b)(4),
including HMS. See 16 U.S.C. § 1854(g)(1). The Act delegates that
responsibility 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 altogether raise seven of these
standards in their claims, arguing that the 1999 HMS FMP regulations at
issue violated at least one of them. The standards at issue are:
(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. . . .
(7) Conservation and management measures shall, where
practicable, minimize costs and avoid unnecessary
(9) Conservation and management measures shall, to the
extent practicable, (A) minimize bycatch and (B) to
the extent bycatch cannot be avoided, minimize the
mortality of such bycatch.
(10) Conservation and management measures shall, to
the extent practicable, promote the safety of human
life at sea.
16 U.S.C. § 1851(a)(1), (2), (4), (7)-(10).
Bycatch, a term used in National Standard Nine, is defined as "fish
which are harvested in a fishery, but which are not sold or kept for
personal use, and includes economic discards and regulatory discards.
Bycatch does not include fish released alive under a recreational catch
and release fishery management program." 16 U.S.C. § 1802(2). In
other words, bycatch is fish that fishers catch but throw back into the
ocean, either because they are not the kind of fish that people will buy
(being too small, of the wrong gender or of bad quality), or because a
regulation dictates that the fish cannot be kept. See
50 C.F.R. § 600.350(c). This second kind of bycatch is referred to
as a regulatory discard. Regulatory discards may occur where certain
fish species are so overfished that they cannot be kept or sold. See
50 C.F.R. § 622.32 (describing those species of fish which may not be
harvested or possessed). All fish caught in excess of that limit must be
The regulations further require NMFS to minimize bycatch such that
"[f]ish that are bycatch and cannot be avoided must, to the extent
practicable, be returned to the sea alive." 50 C.F.R. § 600.350(d).
NMFS's regional councils must "[p]romote development of a database on
bycatch and bycatch mortality in the fishery to the extent practicable.
A review and, where necessary, improvement of data collection methods,
data sources, and applications of data must be initiated for each fishery
to determine the amount, type, disposition, and other characteristics of
bycatch and bycatch mortality in each fishery for purposes of this
standard and of section (a)(11) and (12) of the Magnuson-Stevens
Act. . . . When appropriate, management measures, such as at-sea
monitoring programs, should be developed to meet these information
needs." 50 C.F.R. § 600.350(d)(1). NMFS shall "[s]elect measures
that, to the extent practicable, will minimize bycatch and bycatch
mortality." 50 C.F.R. § 600.350(d)(3).
In addition to the National Standards, several other Magnuson-Stevens
Act provisions are at issue. First, the Act requires fishery management
plans to "prevent overfishing and rebuild overfished stocks, and to
protect, restore, and promote the long-term health and stability of the
fishery." 16 U.S.C. § 1853(a)(1)(A). Second, the Act also requires
fishery management plans to "establish a standardized reporting
methodology to assess the amount and type of bycatch occurring in the
fishery, and include conservation and management measures that, to the
extent practicable and in the following priority — (A) minimize
bycatch; and (B) minimize the mortality of bycatch which cannot be
avoided." 16 U.S.C. § 1853(a)(11). Third, the Act requires that when
the Secretary prepares the HMS FMP, the plan should (1) "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," and (2) ensure that conservation and management
measures "take into consideration traditional
fishing patterns of fishing
vessels of the United States and the operating requirements of the
fisheries, [and] are fair and equitable in allocating fishing privileges
among United States fishermen and do not have economic allocation as the
sole purpose." See 16 U.S.C. § 1854(g)(1)(C), (g)(1)(G)(ii)-(iii).
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). 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).*fn7
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, 743-44 (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; 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).
The APA standard accords great deference to agency decisionmaking, and
the Secretary's action enjoys an initial presumption of validity. See
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16
(1971). Thus, even at the summary judgment stage, the scope of judicial
review is narrow. Id. A court must 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. Id. at 416. 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 (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.
463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United
States, 371 U.S. 156, 168 (1962)). 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), cert. denied, 532 U.S. 1018 (2001).
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 (1986). This case involves
parties' cross-motions for summary judgment as to certain administrative
decisions in the 1999 HMS FMP. Specifically, at issue is whether ...