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October 31, 2002


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 term which 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 (West 2000).

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 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"*fn5 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*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 duplication.
(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.
(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 discarded.

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 [1853](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).

B. 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). 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. Co., 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 ...

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