The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Pacific halibut are a highly desired catch off the coast of Southeast Alaska. This lawsuit pits operators of charter fishing vessels ("Charter Operators")*fn1 against the local commercial and subsistence halibut fishermen. Through the National Marine Fisheries Service ("NMFS"), the Secretary of Commerce has issued a formal Rule limiting customers on guided sport boats to a catch of one halibut per calendar day. See 74 Fed. Reg. 21194 (adopted May 6, 2009; effective June 5, 2009); 50 C.F.R. § 300.65(d)(2). The Charter Operators contend that the Secretary*fn2 failed to explain why limiting the charter sector to a harvest level adopted in 2003 was fair and equitable. The Secretary and Intervenors*fn3 oppose. Because the record as a whole reflects that the Secretary adequately considered the equities of the allocation of the halibut harvest, the Secretary's decision was not arbitrary, capricious, or contrary to law. The Secretary and Intervenors' motions for summary judgment will be granted, and the Charter Operators' cross motion for summary judgment will be denied.
A. Statutory and Regulatory Provisions
Under the Northern Pacific Halibut Act (the "Halibut Act"), 16 U.S.C. §§ 773-773k, the Secretary has broad authority and discretion to "adopt such regulations as may be necessary to carry out the purposes and objectives of the Convention and the Act." Id. § 773c(b)(1); see 50 C.F.R. §§ 300.60 - 300.66. The "Convention" referred to is a treaty between the United States and Canada called the Convention for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, Ottawa, 1953, 5 U.S.T. 5, T.I.A.S. 2900 (as amended by the Protocol Amending Convention, Washington, 1979, 32 U.S.T. 2483, 2487, T.I.A.S. 9855). Under the Halibut Act, the International Pacific Halibut Commission ("IPHC"), established by the Convention, can recommend regulations regarding Northern Pacific Halibut to the U.S. Secretaries of State and Commerce. 16 U.S.C. § 773c(c). If approved by both Secretaries, the Secretary of Commerce promulgates the regulations via publication in the Federal Register. Id.; 50 C.F.R. § 300.62.
The Halibut Act also provides the Northern Pacific Management Council (the "Council") with authority to recommend regulations to the Secretary to allocate harvesting privileges among U.S. fishermen. 16 U.S.C. § 773c(c). The Halibut Act requires allocation determinations to be fair and equitable. Id. Every year, the IPHC sets the annual total constant exploitation yield ("Total CEY"), that is, the total amount of halibut that may be harvested by all fishing sectors - commercial, sport (charter and unguided), and subsistence - in a given area in a given year. 74 Fed. Reg. at 21194. The IPHC then subtracts estimates of all non-commercial removals (including sport, subsistence, bycatch, and waste) to determine the remainder. The remainder constitutes the available commercial catch, i.e., the "Fishery CEY." Id.
In 2003, the Council recommended that the Secretary adopt a guideline harvest policy to use as a benchmark for monitoring the charter harvest of Pacific halibut. The Secretary adopted the policy and promulgated a regulation, which provides that the Guideline Harvest Level (or "GHL") may be adjusted downward if the IPHC reduces the CEY. See 68 Fed. Reg. 47256 (the "GHL regulations"). The GHL was intended to represent a pre-season specification of an acceptable annual harvest by the charter sector in management Areas 2C and 3A. Id. at 47258. The GHL regulations establish the total maximum poundage for the charter vessel fishery each year according to a predetermined formula that depends on that year's CEY. Id. at 47259.
The GHL regulations struck a balance between maintaining historical fishing practices in what had been a predominantly commercial fishery while allowing growth in the newer guided sport fishing sector. The regulations achieved this balance by allocating to the charter fishery an additional 25% above what it was harvesting at the time. "[T]he goal for the GHL was to provide a limit on the total amount of harvests in the guided fishery that would be designated as a fixed poundage based on an amount equal to 125 percent of the average 1995-1999 harvests. This amount was set higher than existing harvest levels to accommodate some future growth in the recreational sector." 68 Fed. Reg. at 47259; see also 72 Fed. Reg. 74257, 74259 (Dec. 31, 2007) (the GHL regulations allocated to the charter sector 25% more than the average of the guided sport harvest in 1995-1999, a time when the halibut biomass was high).
The 2003 GHL regulations did not actually limit harvests by charter vessel fishermen; they merely set benchmarks for use in future regulation. AR 32, March 2009 Environmental Assessment ("EA")*fn4 at 18.*fn5 Charter harvests can be regulated by subsequent regulation, like the Final Rule at issue here.
The GHL regulations were set up to follow and react to actual harvest figures, i.e., harvest restrictions could be adopted in the year following a year that the Guideline Harvest Level was exceeded.*fn6 From 2004 to 2007, the GHL in Area 2C was 1.432 million pounds. 74 Fed. Reg. at 21207; EA at 18. In 2008, in response to a reduction in the CEY estimated by the IPHC, the charter GHL was reduced substantially to 931,000 pounds. In 2009, the charter GHL was reduced to 788,000 pounds. 74 Fed. Reg. at 21207. If the halibut stock rebounds, the GHL will increase. See 50 C.F.R. § 300.65(c).
C. The Current Litigation
In recent years, the guided sport sector has exceeded the Guideline Harvest Level in Area 2C by significant margins: by 22% in 2004; by 36% in 2005; by 26% in 2006; and by 34% in 2007. 73 Fed. Reg. 78276, 78277-78 (Dec. 22, 2008 Proposed Rule).*fn7 In 2008, the charter sector harvested an estimated 1.914 million pounds of halibut, more than double the 2008 Guideline Harvest Level. See EA at 9 (2008 charter harvest was 983,000 pounds above the 2008 GHL); see also 73 Fed. Reg. at 78277-78. No regulations had been imposed on the charter sector limiting the annual charter harvest until the recently promulgated Final Rule.*fn8 Only the commercial sector has been subject to annual harvest limits, and their limits have been reduced by 54% between 2005 and 2009. 74 Fed. Reg. at 21207; see also id. at 21196 ("A major user group, the commercial setline fishery, has a strictly managed annual catch limit.").
The lack of limits on the charter harvest did not pose a problem when the halibut biomass was large and the non-commercial harvest was small and stable. However, the charter harvest has been steadily escalating. See 74 Fed. Reg. at 21203 (the charter sector harvest has increased by 107% between 1999 and 2005). And the biomass of halibut is declining at this time. Accordingly, the Council recommended that the charter harvest be regulated, and the Secretary of Commerce adopted the Final Rule at issue in this case, limiting each charter sport fisherman in Area 2C to one halibut per calendar day. See 74 Fed. Reg. 21194 (effective June 5, 2009).
The Complaint alleges three causes of action. In Count I, The Charter Operators allege that the Secretary violated the APA, 5 U.S.C. § 504, by promulgating the Final Rule without analyzing whether the allocation of the halibut harvest in Area 2C was fair and equitable as required by the Halibut Act, 16 U.S.C. § 733c(c). Compl. ¶¶ 47-48. Count II alleges that the Secretary violated the APA, 5 U.S.C. § 504, and the Halibut Act, 16 U.S.C. §§ 733c(c) & 1853(b)(6), by basing the Final Rule on the 2003 GHL, which was in turn based on "old" data from 1995 through 1999. The Charter Operators contend that the Secretary should have relied on "more recent and readily available information." Id. ¶¶ 49-50. Finally, Count III asserts that the Secretary promulgated the Final Rule in violation of the Halibut Act because the Final Rule does not provide a fair and equitable allocation of the halibut harvest. The Final Rule allegedly imposes harm on the charter sector without a reasonably proportionate benefit to the commercial sector. Further, the Secretary allegedly failed to consider recent growth in the unguided and subsistence sectors. Id. ¶¶ 51-52.
The Charter Operators sought a preliminary injunction enjoining enforcement of the Final Rule, and the Court denied the motion, finding that the Charter Operators had not shown the likelihood of success on the merits. See Van Valin v. Locke, 628 F. Supp. 2d 67, 73-76 (D.D.C. 2009). Now the parties have filed cross motions for summary judgment.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
B. Administrative Procedure Act
The APA, 5 U.S.C. § 551 et seq., requires a reviewing court to set aside an agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
5 U.S.C. § 706(2)(A); Tourus Records, Inc. v. Drug Enforcement Admin., 259 F.3d 731, 736 (D.C. Cir. 2001). In making this inquiry, the reviewing court "must consider whether the [agency's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989) (internal quotation marks and citation omitted). At a minimum, the agency must have considered relevant data and articulated an explanation establishing a "rational connection between ...