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North Carolina Fisheries Association, Inc. v. Gutierrez

August 17, 2007

NORTH CAROLINA FISHERIES ASSOCIATION, INC., ET AL., PLAINTIFFS,
v.
CARLOS GUTIERREZ, SECRETARY, UNITED STATES DEPARTMENT OF COMMERCE, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Amendment 13C to the South Atlantic Snapper-Grouper Fishery Management Plan imposed tighter restrictions on the harvest of snowy grouper, vermilion snapper, and black sea bass, and loosened existing restrictions on the fishing of red porgy. See 71 Fed. Reg. 55,096 (Sept. 21, 2006). In this suit, the North Carolina Fisheries Association, Inc., two North Carolina fishermen, and a seafood company (collectively "plaintiffs"), joined by the State of North Carolina as amicus curiae, challenge the validity of Amendment 13C under the Magnuson-Stevens Fishery Conservation and Management Act ("MSA"), 16 U.S.C. §§ 1801-1883; the Regulatory Flexibility Act ("RFA"), 5 U.S.C. §§ 601-612; and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. Plaintiffs and defendant Carlos Gutierrez, sued in his official capacity as Secretary of Commerce, have both moved for summary judgment on the basis of the administrative record. A hearing on the motions was held on June 14, 2007, and resolution of the case was expedited at the request of the parties and in accordance with the MSA. See 16 U.S.C. § 1855(f)(4). After careful review of the administrative record and the parties' submissions, and for the reasons set forth below, the Court will grant in part and deny in part both of the cross-motions for summary judgment.

I. BACKGROUND

A. Statutory and Regulatory Framework

1. Magnuson-Stevens Fishery Conservation and Management Act*fn1

The MSA established a national program for the conservation and management of fishery resources. Congress believed that such a program was "necessary to prevent overfishing, to rebuild overfished stocks, to insure conservation, to facilitate long-term protection of essential fish habitats, and to realize the full potential of the Nation's fishery resources." 16 U.S.C. § 1801(a)(6). To accomplish these broadly framed goals, the statute promotes cooperation between federal and state officials, and among those officials and representatives of fishing-industry, environmental, and consumer organizations. See id. § 1801(b)(5). These representatives interact in eight regional fishery management councils, each of which has authority over the coastal waters adjacent to its member states. Id. § 1852(a)(1). Regional councils, whose membership is statutorily defined, are charged with enacting and regularly updating fishery management plans ("FMP") that meet the objectives of, and are consistent with the standards set forth in, the MSA. Id. § 1852(h). The councils consist of voting and non-voting members, and are also required to "establish and maintain" a scientific and statistical committee ("SSC") and advisory panels that represent the interests of the fishing industry and other sectors. Id. § 1852(g). "Decisions and recommendations made by [these] committees and panels," however, are merely "advisory in nature" and do not bind either the councils or federal agency officials. Id. § 1852(g)(5). The federal official responsible for fishery management is nominally the Secretary of Commerce ("the Secretary" or "defendant"), see id. § 1802(34), but in practice he delegates much of his authority and many of his preliminary duties to the National Marine Fisheries Service ("NMFS"). See C & W Fish Co., Inc. v. Fox, 931 F.2d 1556, 1558 & n.1 (D.C. Cir. 1991); Oceana, Inc. v. Evans, 384 F. Supp. 2d 203, 209 n.2 (D.D.C. 2005). Particularly relevant to this suit is the process by which the Secretary and the regional councils -- here, the South Atlantic Fishery Management Council ("the Council") -- promulgate FMPs and amendments to those plans. The primary responsibility for researching and developing the FMPs and their amendments normally falls on the regional councils, which are required by statute to "prepare and submit" any amendments to the Secretary and, in formulating amendments, to "conduct public hearings" at locations throughout their member states. 16 U.S.C. §§ 1852(h)(1), (3). Councils then work with NMFS to transmit to the Secretary both the proposed FMP or amendment and any accompanying regulations that the particular council "deems necessary and appropriate" to implement that plan or amendment. Id. § 1853(c). Once the FMP or amendment is submitted, the Secretary must "immediately" -- that is, within five days of receipt, id. § 1854(a)(5) -- commence his review and make the plan or amendment available for notice and public comment. Id. §§ 1854(a)(1), (b)(1). Lacking the authority to modify the council's submission, the Secretary may approve the plan or amendment as consistent with applicable law, or he may either disapprove or partially approve it as inconsistent with such law. Id. § 1854(a)(3). If the proposal is approved, then NMFS assumes the task of implementing the measures adopted by the council. Id. § 1855(d). The Secretary's determination that the proposal is partially or completely deficient returns the matter to the council, which may then "submit a revised plan or amendment to the Secretary for review." Id. § 1854(a)(4).

Under certain circumstances, the Secretary or his designees, rather than the regional councils, will be the initial movers. For example, where "the Secretary finds that an emergency exists or that interim measures are needed to reduce overfishing for any fishery, he may promulgate emergency regulations or interim measures necessary to address the emergency or overfishing, without regard to whether a fishery management plan exists for such fishery." 16 U.S.C. § 1855(c); 50 C.F.R. § 600.310(e)(5). Such interim measures last only 180 days, 16 U.S.C. § 1855(c)(3)(B), or 186 days under the Reauthorization Act, see Pub. L. No. 109-479, § 108(a), 120 Stat. at 3594. Agency initiative is also required when the Secretary learns through the statutorily mandated annual-review process that a fishery is overfished. The MSA requires in such situations that the Secretary "immediately notify the appropriate council and request that action be taken to end overfishing in the fishery and to implement conservation and management measures to rebuild the affected stocks of fish." 16 U.S.C. § 1854(e)(2). Under the version of the statute in effect until 2007, the councils had up to a year to prepare a FMP, plan amendment, or proposed regulations designed "to end overfishing in the fishery and to rebuild affected stocks of fish." Id. § 1854(e)(3)(A). The FMP, plan amendment, or regulations proposed by the council must "specify a time period for ending overfishing and rebuilding the fishery" that is "as short as possible" and that "allocate[s] both overfishing restrictions and recovery benefits fairly and equitably among sectors of the fishery." Id. § 1854(e)(4).

Secretarial review of a FMP or plan amendment submitted by a regional council focuses on the proposed action's consistency with the substantive criteria set forth in, and the overall objectives of, the MSA. As to the latter, the Secretary examines whether the council's proposal conforms to the explicit statutory requirements and whether it contains measures that are "necessary and appropriate for the conservation and management of the fishery, 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). FMPs, plan amendments, and regulations must "be consistent with" the ten "national standards for fishery conservation and management." Id. § 1851(a). Three of those -- National Standards 2, 4, and 8 -- are of particular importance here. National Standard 2 requires that "[c]onservation and management measures . . . be based upon the best scientific information available." Id. § 1851(a)(2). Standard 4 governs the allocation of fishing privileges, barring discrimination between residents of different states and requiring that any allocations made be "fair and equitable" to all fishermen. Id. § 1852(a)(4). National Standard 8 mandates that the measures selected "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." Id. § 1851(a)(8). This focus on the welfare of fishing communities, however, must be "consistent with the conservation requirements" of the MSA, "including the prevention of overfishing and rebuilding of overfished stocks." Id.

FMPs, plan amendments, and regulations promulgated by the Secretary are subject to judicial review under the MSA. 16 U.S.C. § 1855(f). The statute requires that courts review conservation and management measures under the familiar standards set forth in the Administrative Procedure Act ("APA"). Thus, a court considering challenges to the Secretary's actions shall "set aside" such actions "only . . . on a ground specified in section 706(2)(A), (B), (C), or (D) of [Title 5]." Id. § 1855(f)(1)(B). Section 706(2), in turn, obliges courts reviewing agency action to "hold unlawful and set aside" that action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or if the agency has exceeded its authority, violated a party's constitutional rights, or failed to comply with procedural requirements. If the party challenging the Secretary's action so requests, the court is obliged to hold a hearing and to "expedite the matter in every possible way." 16 U.S.C. § 1855(f)(4).

2. Regulatory Flexibility Act ("RFA")

FMPs and plan amendments must also conform to "other applicable law," 16 U.S.C. § 1853(a)(1), a category that includes the Regulatory Flexibility Act. The RFA, 5 U.S.C. §§ 601-612, is a "[p]urely procedural" statute that "obliges federal agencies to assess the impact of their regulations on small businesses." U.S. Cellular Corp. v. FCC, 254 F.3d 78, 88 (D.C. Cir. 2001). As the First Circuit has explained, the RFA "does not alter the substantive mission of the agencies under their own statutes; rather, the Act creates procedural obligations to assure that the special concerns of small entities are given attention in the comment and analysis process when the agency undertakes rule-makings that affect small entities." Little Bay Lobster Co., Inc. v. Evans, 352 F.3d 462, 470 (1st Cir. 2003); see also 5 U.S.C. § 606 ("The requirements of [5 U.S.C. §§ 603-04] do not alter in any manner standards otherwise applicable by law to agency actions."). Agencies must first determine whether the regulation under consideration would "have a significant economic impact on a substantial number of small entities." Id. § 605(b). The term "small entities" includes small businesses and small organizations. Id. § 601(6). Only if the proposed regulation would have such an impact do the statute's two primary procedural obligations attach. Those obligations are the preparation first of an initial and then of a final regulatory flexibility analysis, commonly referred to as an IRFA and a FRFA. Id. §§ 603-604. Sections 603 and 604 of the statute establish the explanations and considerations that IRFAs and FRFAs, respectively, "shall contain." Id. §§ 603(b), 604(a). Both forms of analysis generally "describe[] the effect of the proposed rule on small businesses and discuss[] alternatives that might minimize adverse economic consequences." Nat'l Women, Infants, and Children Grocers Ass'n v. Food and Nutrition Serv., 416 F. Supp. 2d 92, 108 (D.D.C. 2006). But once the decision has been made to promulgate the regulation, the FRFA must provide, among other components, "a description of the steps the agency has taken to minimize the significant economic impact on small entities," including "a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency . . . was rejected." 5 U.S.C. § 604(a)(5).

The RFA authorizes judicial review of an agency's compliance with many but not all of the statutory requirements. 5 U.S.C. § 611(a). Courts can, for instance, determine an agency's compliance with the FRFA requirements set forth in § 604 of the RFA, but cannot adjudicate whether an agency violated the statute by failing to prepare an IRFA. See Allied Local & Reg'l Mfrs. Caucus v. Envtl. Protection Agency, 215 F.3d 61, 79 (D.C. Cir. 2000). Even when an agency's action is subject to judicial review, all that is required of the agency is "a 'reasonable, good-faith effort to carry out [RFA's] mandate.'" U.S. Cellular Corp., 254 F.3d at 88 (quoting Alenco Commc'n, Inc. v. FCC, 201 F.3d 608, 625 (5th Cir. 2000)). Failure to comply with one or more of the statutory requirements, moreover, does not necessarily mean that the regulation must be invalidated. To the contrary, the D.C. Circuit has held that such an omission "may be, but does not have to be, grounds for overturning a rule." Cement Kiln Recycling Coal. v. Envtl. Protection Agency, 255 F.3d 855, 868 (D.C. Cir. 2001) (citation and quotation marks omitted); see also 5 U.S.C. § 611(a)(4) (authorizing courts to take "corrective action consistent with" the RFA, "including, but not limited to (A) remanding the rule to the agency, and (B) deferring the enforcement of the rule against small entities").

B. Snapper-Grouper Fishery FMP and Amendment 13C

The FMP relevant to this case is the South Atlantic Snapper-Grouper Fishery Management Plan. Established in 1983, the original FMP addressed 13 species of fish, a number that has steadily risen to the current total of 73. See 50 C.F.R. Part 622, App. A, Table 4. Access to the fishery had been open and virtually unlimited prior to 1983. But conservation measures have vastly increased over the last 24 years, transforming the fishing industry in member states like North Carolina. Acting through plan amendments, more streamlined regulatory amendments, and emergency interim rules, the Secretary and his designees have enacted, among other measures, minimum-size requirements, prohibitions on certain types of traps and nets, quotas, trip limits (limits on the gutted weight of fish caught per trip, not a cap on the number of trips), seasonal and area closures, and recreational bag limits (a cap on the number of fish that recreational anglers may catch per trip). Administrative Record ("AR") 4769. More recently, access to the fishery has been restricted by requiring those seeking entry to purchase a permit. AR 4827; Pls.' Mem. in Supp. of Mot. for Summ. J. ("Pls.' Mem.") at 11.

Amendment 13C, the subject of this lawsuit, imposes restrictions on the harvest of four species in the fishery: snowy grouper, golden tilefish, vermilion snapper, and black sea bass. Snowy grouper are large, deep-sea fish -- growing to 4 feet long and 66 pounds -- that live up to 40 years. AR 4803. Golden tilefish are similarly large (measuring up to 50 inches and 66 pounds) and long-lived, and are also harvested (that is, caught) in deeper waters. AR 4805. The other two species, vermilion snapper and black sea bass, are harvested closer to the ocean surface. Vermilion snapper are relatively small -- about 2 feet long and 7 pounds -- and can live up to 14 years. AR 4805-06. Black sea bass are a similar size, live approximately 10 years, and are harvested using "pots" that resemble lobster traps.

Amendment 13C has a tortuous history, the twists and turns of which must be recounted because they lie at the heart of plaintiffs' claims. The regulatory action began as Amendment 13, a comprehensive set of measures that the Council started developing in 2001. AR 31. Amendment 13 was intended to address 12 species already designated as overfished, others not yet subjected to overfishing, and regulations governing the Oculina Experimental Closed Area. Those regulations were scheduled to sunset soon, and the complexity of the full amendment made its enactment prior to the sunset date impossible. NMFS therefore decided to carve out the Oculina-related regulations as Amendment 13A and to repackage the remaining measures as the broader Amendment 13B. AR 5350. Amendment 13A was enacted in 2004. AR 36, 43.

Meanwhile, data on the four species discussed above, as well as red porgy, was being collected as part of the Southeastern Data Assessment and Review ("SEDAR") process. The process, which defendant characterizes as "rigorous" and plaintiffs view as controversial, see Def.'s Combined Mem. & Opp'n ("Def.'s Mem.") at 11; Pl.'s Mem. at 12, took place between 2002 and 2004. SEDAR concluded that snowy grouper (AR 1585), golden tilefish (AR 5015), vermilion snapper (AR 736, 5050), and black sea bass (AR 823, 886, 5098) were undergoing overfishing, which means that the fish were being removed at a rate that jeopardized the species' ability to produce maximum sustainable yield ("MSY") on a continuing basis. See 16 U.S.C. § 1802(29) (2000); 50 C.F.R. 600.310(d)(1)(i). MSY, in turn, is defined as "the largest long-term average catch or yield that can be taken from a [stock of fish] under prevailing ecological and environmental conditions." Id. § 600.310(c)(1)(i). SEDAR also determined that snowy grouper (AR 4976), black sea bass (AR 5098), and red porgy (AR 5156) were "overfished," a state in which the size (or "biomass") of the fish stocks had declined to a level where management practices would have to be changed in order to achieve MSY and rebuild the stocks. Id § 600.310(d)(1)(iii). Species that are overfished and subject to overfishing, NMFS says, present the "worst case scenario" from a conservation and management standpoint. Def.'s Mem. at 6.

By early 2005, the Council had become concerned that Amendment 13B was taking too long and that the four fish stocks deemed overfished by SEDAR needed to be addressed more expeditiously. AR 2396; id. at 5351, 70 Fed. Reg. at 43,127. Much as it had done with Amendment 13A, the Council began to explore other ways to address the results of the SEDAR process. The Council first prepared a "Strawman Options Paper" in advance of a meeting scheduled for June 2005.AR 2396-2410. In that paper, the Council proposed implementing interim measures pursuant to 16 U.S.C. §§ 1854(e)(6) and 1855(c). AR 2396-99. Interim measures last only 180 days, meaning that they would have expired before the time at which the rest of Amendment 13B was likely to be ready for implementation. Moreover, the statutory mechanism did not permit the Secretary to take the desired step of reducing the restrictions then in place on fishing red porgy and thereby increasing the amount of red porgy that could be harvested. AR 2097. The Council therefore opted for another mechanism short of a formal plan amendment -- a so-called "regulatory amendment." Through regulatory amendments, the Secretary can establish or modify, among other restrictions, quotas, trip limits, recreational bag limits, minimum sizes, gear restrictions, and area or seasonal closures. See 50 C.F.R. § 622.48(f).

The next key event was the June 2005 Council meeting. Discussion at the meeting focused on what was by then known as Regulatory Amendment 9, the limited measure targeting the overfishing of snowy grouper, golden tilefish, vermilion snapper, and black sea bass. NMFS Council representative Dr. Roy Crabtree urged that many of the concerns voiced and proposals advanced be deferred until the formal consideration of the broader Amendment 13B, which he assured Council members would permit changes to, for example, bans on the sale of certain fish during spawning season. AR 2331, 2467. Among the concerns raised was one of particular importance to plaintiffs here. Specifically, members of the Council's Snapper-Grouper Advisory Panel objected to the prospect of fish caught and sold by recreational fisherman being counted against the quota established for commercial fishermen. AR 2150.

Of the many other issues raised at the June meeting, two are especially pertinent to plaintiffs' suit. First, some Council members questioned the soundness of the data gathered on the four species and SEDAR's evaluation of that data. Foremost among them was Dr. Louis Daniel, then Council Chair and representative of the North Carolina Division of Marine Fisheries, who noted that some of the data upon which the Council was basing its actions was itself "incomplete." AR 2052, 2276. Dr. Daniel's assessment was consistent with that of a peer-review panel that had emphasized some substantial weaknesses in the data. AR 1740; see also AR 1694. Second, a number of proposals for alternative restrictions were made and rejected as either impractical or beyond the scope of Regulatory Amendment 9. A proposal to allocate quota percentages geographically based on historical records of fish landed was among those rebuffed as impractical, see AR 2242-45, whereas the aforementioned issue of great concern to the Advisory Panel members -- recreationally caught fish counting against the commercial quota --was deemed beyond the scope of the amendment. AR 2467.

The Council next met in September 2005. Members learned at that time that an important measure to change the fishing year of black sea bass could not be carried out through a regulatory amendment. AR 2615. They also learned that converting the regulatory amendment to a more formal plan amendment would allow them to implement the measure and would not significantly delay the amendment's effective date because an environmental impact statement ("EIS") had already been prepared. AR 2616. The Council then voted to transform Regulatory Amendment 9 into plan Amendment 13C. AR 2620.

Progress on Amendment 13C sped forward in the final months of 2005. Ten separate public hearings were held in the member states between November 7, 2005 and December 5, 2005. AR 3226-27; 3259-3401. The Council's Scientific and Statistical Committee ("SSC") convened in mid-October and declared that Amendment 13C was based on the best scientific information available at that time. AR 3629. Days later, a draft EIS was released for a period of public comment that would run through December 5. AR 5358-59. The Council met again in December of 2005, just after the end of the public-comment period. AR 3726-4087. After reviewing the comments received from the public and from the Advisory Panel, the Council selected some "preferred alternatives" -- i.e., options for ending overfishing -- that diverged in key ways from the choices agreed to at the September meeting. The Council decided, among other things, to phase out overfishing of snowy grouper and black sea bass over three years (rather than immediately) in order to minimize the unavoidable adverse economic impact on fishermen and fishing communities. AR 5580. Pointing to uncertainty regarding the condition of vermilion snapper and to the predicted economic effects of a lower cap, the Council also voted to increase the selected quota for that species. AR 5592. With these changes, the Council voted 12-to-1 to approve Amendment 13C and to send it to the Secretary for approval. AR 4077.

The changes approved during the December 2005 meeting meant that Amendment 13C was materially different from the one that had been planned at the September Council meeting. In light of those changes, the Council requested that its staff work together with NMFS personnel on an interdisciplinary plan team ("IPT") to finalize the updated amendment for Secretarial review. AR 32; AR 5614, 71 Fed. Reg. at 55,096. (A more detailed account of the IPT's alterations is provided in Part III.B.2, infra.) The IPT also added text to comply with a regulatory requirement imposed by the Council for Environmental Quality (see 40 C.F.R. § 1508.27) and to address the potential long-term benefits of the reconstituted amendment and the effects of continued overfishing -- something that had been requested during the Council's September meeting. See AR 2577; AR 5614-15, 71 Fed. Reg. at 55,096-97. Those edits were designed largely to reflect the changes adopted by the Council between its September and December meetings and to correct some conclusions that NMFS no longer believed to be supported by the analyses conducted. In February 2006, the Council submitted the revised Amendment 13C to the Secretary for review and approval. The amendment was also sent to NMFS's Southeast Regional Science Center, which approved the revised product as based on the best scientific information available. AR 5472-74.

Not everyone agreed with the Science Center's conclusion. Preston Pate, head of the North Carolina Division of Marine Fisheries, sent a letter to Dr. Crabtree in May 2006 voicing concern over changes in the tone and content of the analyses being submitted to the Secretary. AR 5496-97. The Council's SSC, speaking through its chairman, likewise complained that the committee had not had an opportunity to review the revised social and economic analyses before their presentation to the Secretary. AR 7228-31. Hence, the SSC could aver that the amendment draft reviewed in October 2005 had been based on the best available science, but could neither confirm nor deny the same regarding the updated version. Id. at 7231.

Despite these concerns, the Secretary pressed forward, publishing the proposed rule in the Federal Register on June 9, 2006. AR 5392. Notice of the final rule was then published on September 21, 2006. AR 5614-26. That notice included responses to 19 separate public comments, the first of which addressed the changes made by the IPT following the Council's December 2005 meeting. AR 5614-15. The remaining comments reflected the Secretary's difficult task of balancing conservation efforts against the needs of fishermen and fishing communities. Whereas some comments challenged the scientific basis for concluding that the four fish species were overfished and emphasized the negative socio-economic impacts that the amendment would have on recreational and commercial interests, other comments emphasized Amendment 13C's failure to end overfishing of the four species immediately and highlighted the lack of a formal rebuilding plan. AR 5615-19. The final rule noted the availability of a final regulatory flexibility analysis ("FRFA") and, borrowing from the FRFA, provided a comprehensive review of the measures implemented, the alternatives considered and rejected, and the projected consequences of Amendment 13C.

What, then, did Amendment 13C do? For one thing, it imposed a "hard quota" on commercial fishing of the four species, meaning that once the quota is reached, the harvest and sale of the species is prohibited. In addition, Amendment 13C established strict trip limits for snowy grouper and golden tilefish, quotas that become increasingly strict over a three-year period for snowy grouper and black sea bass, lower recreational limits for all but vermilion snapper, and new gear requirements for the fishing of black sea bass. The specific nature of the measures, as well as their projected effects on the fisheries, are recounted in detail in the administrative record. See AR 5586-88 (snowy grouper); AR 5589-91 (golden tilefish); AR 5591-96 (vermilion snapper); AR 5596-5603 (black sea bass).

C. Procedural History

This suit challenging the validity of Amendment 13C was filed on October 20, 2006 by plaintiffs the North Carolina Fisheries Association, Inc. ("NCFA"), Jeff Oden, Joseph Andrew High, and Avon Seafood. NCFA is a non-profit organization formed in 1952 whose members rely on the Snapper-Grouper Fishery for their livelihoods and whose primary purpose is to advance the interests of its members before the Council and other regulatory bodies. Compl. ¶ 8. Jeff Oden is a commercial fisherman based in Hatteras, North Carolina; he obtains approximately 40 percent of his income from the Snapper-Grouper Fishery, and alleges that he will be particularly affected by the trip limits that Amendment 13C establishes for the harvest of snowy grouper. Id. ¶ 9. Plaintiff Joseph Andrew High is also a commercial fisherman. He is based in Wilmington, North Carolina, and earns most of his revenue from black sea bass. Id. ¶ 10. Avon Seafood is a fish-packing plant in a town of the same name that earns up to 20 percent of its annual revenue from the buying and selling of snapper and grouper species. Amendment 13C, plaintiffs claim, may well put Avon Seafood out of business. Id. ¶ 11. Along with Oden and High, Avon Seafood joined with other snapper-grouper fishermen to form a group, the South Atlantic Fisheries Association ("SAFSA"), in order to protect their interests. SAFSA opposed the implementation of interim measures via the regulatory action that became Amendment 13C and submitted extensive comment letters to that effect in advance of the Council's June 2005 and December 2005 meetings. AR 2504-23; id. at 4101-4112

In their four-count complaint naming Secretary of Commerce Carlos Gutierrez as defendant, plaintiffs allege that Amendment 13C violates the MSA, the Administrative Procedure Act ("APA") as incorporated by the MSA, and the Regulatory Flexibility Act ("RFA"). Plaintiffs' claims mirror what agency officials have expressly articulated as the three most controversial aspects of Amendment 13C: (1) the scientific basis for the measures implemented; (2) the short-term economic impact on fishermen and fishing communities, particularly in North Carolina; and (3) the alterations made by the IPT after the Council approved a revised Amendment 13C in December 2005. See AR 5581. According to plaintiffs, these aspects of the amendment render it not just "controversial," but legally infirm. The first two counts of the Complaint allege that the Secretary failed to comply with National Standards 2, 4, 5, 6, and 8, though plaintiffs have since abandoned their reliance on Standards 5 and 6. See Pl.'s Mem. at 42 n.33. Count III asserts that Amendment 13C's unitary focus on ending overfishing violated the requirement in the MSA that plan amendments be designed both "to end overfishing in the fishery and to rebuild affected stocks of fish." 16 U.S.C. § 1854(e)(3) (emphasis added). Finally, Count IV alleges a violation of the RFA. Plaintiffs seek an order that, among other remedies, declares Amendment 13C and its accompanying regulations unlawful, enjoins the amendment's enforcement, and awards plaintiffs their attorney fees and costs. See Compl., Prayer for Relief.

The State of North Carolina has filed a friend-of-the-court brief supporting plaintiffs' claims. In its amicus brief, the State makes essentially two points. The State first emphasizes what it describes as the devastating effect of Amendment 13C on its fishing communities, arguing that the amendment affects North Carolina fishermen far more than it does fishermen in the other states governed by the FMP. Amicus Br. at 4. Second, the State asserts that it has a continuing interest in the proper functioning of the regional council system. When that system breaks down, as North Carolina believes it did during the preparation of Amendment 13C, the member states allegedly lose their ability "to participate with confidence" in the Council and to work cooperatively with the Secretary and his designees. Id. at 5.

The Secretary, as one would expect, frames the case quite differently. In his view, plaintiffs are rehashing in their lawsuit a series of "policy arguments" that were made and rejected at the administrative level. Def.'s Mem. at 25. And because first the Council and then the Secretary "carefully considered" those policy arguments in enacting Amendment 13C, defendant insists that the amendment is entitled to deference and must be sustained. Id. (quoting Nat'l Fisheries Inst., Inc. v. Mosbacher, 732 F. Supp. 210, 227 (D.D.C. 1990)). The Secretary thus seeks summary judgment on the basis of the administrative record. At a hearing held on June 14, 2007, the Court heard argument on the cross-motions for summary judgment. Following the hearing, the Court ordered the parties to submit supplemental briefs addressing a question of statutory construction ...


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