United States District Court, District of Columbia
ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY
JUDGMENT IN PART AND DENYING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT IN PART
BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE.
case represents the latest chapter in the management of the
red snapper fishery in the Gulf of Mexico. Plaintiffs,
commercial fishermen and their affiliated business entities
and trade associations, bring this action against Defendants
United States Secretary of Commerce,
(“Secretary”), the National Oceanic and
Atmospheric Administration, (“NOAA”), and the
National Marine Fisheries Service, (“NMFS”).
Plaintiffs assert claims under the Magnuson-Stevens Fishery
Conservation and Management Act (“MSA”), 16
U.S.C. §§ 1801-1884 (2012), the National
Environmental Policy Act (“NEPA”), 42 U.S.C.
§ 4321 et seq. (2012), and the Administrative
Procedure Act (“APA”), 5 U.S.C. §§
before the Court is Plaintiffs' Motion for Summary
Judgment and Defendants' Motion for Summary Judgment.
Having reviewed the parties' briefs, the administrative
record, and the relevant authority, and having heard oral
argument, the Court GRANTS Plaintiffs' Motion for Summary
Judgment in part. The Court's reasoning follows.
Magnuson-Stevens Fishery Conservation and Management
1976, Congress enacted the MSA to, among other things,
“conserve and manage the fishery resources found off
the coasts of the United States, ” and “promote
domestic commercial and recreational fishing under sound
conservation and management principles.” 16 U.S.C.
§ 1801(b)(1), (3). To accomplish those goals, the MSA
divides the country into eight regions, and establishes a
council in each region to manage the region's marine
fisheries. See Id. § 1852. Each council then
prepares and submits to the Secretary a Fishery Management
Plan (“FMP”) and, over time, necessary amendments
to the plan that aim to “achieve and maintain, on a
continuing basis, the optimum yield from each fishery.”
Id. §§ 1801(b)(4), 1852(h)(1).
imposes several requirements for FMPs and amendments.
Specifically, an FMP or amendment must contain measures
“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.”
Id. § 1853(a)(1)(A). FMPs and amendments
additionally must conform to ten National Standards
established by the MSA. Id. § 1851(a). Two of
those National Standards are relevant here:
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. (“National Standard One”).
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. (“National Standard
Id. § 1851(a)(1), (4).
any FMP or amendment related to the red snapper fishery is
governed by section 407 of the MSA. Section 407(d)(1)
requires that any FMP, amendment, or implementing regulation
must contain conservation and management measures that
“establish separate quotas for recreational fishing . .
. and commercial fishing that, when reached, result in a
prohibition on the retention of fish caught during
recreational fishing and commercial fishing, respectively,
for the remainder of the fishing year.” Id.
§ 1883(d)(1). Section 407(d)(2) provides that any FMP,
amendment, or implementing regulation establishing quotas for
recreational and commercial fishing must ensure that
“such quotas reflect allocations among such sectors and
do not reflect any harvests in excess of such
allocations.” Id. § 1883(d)(2).
preparing an FMP or amendment, a council submits it to the
NMFS, which acts in practice on behalf of the Secretary, for
review. See generally Id. § 1854. NMFS reviews
the submission for consistency with the MSA and solicits
public comments for sixty days. Id. §
1854(a)(1)(A)-(B). Within thirty days of the end of the
comment period, NMFS shall approve, disapprove, or partially
approve the FMP or amendment. Id. § 1854(a)(3).
If NMFS approves, a final rule is published in the Federal
Register. See Id. § 1854(b)(3). Approved FMPs
or amendments are subject to judicial review within thirty
days under the APA. See Id. § 1855(f)(1).
National Environmental Policy Act.
requires an agency to “consider every significant
aspect of the environmental impact of a proposed
action” and “inform the public that it has indeed
considered environmental concerns in its decisionmaking
process.” Baltimore Gas & Elec. Co. v. Nat.
Res. Def. Council, Inc., 462 U.S. 87, 97 (1983)
(internal quotation marks omitted). To comply with those
obligations, agencies must prepare an Environmental Impact
Statement, (“EIS”), in which the agency takes a
“hard look” at the environmental consequences
before taking major action. Id.; see also
42 U.S.C. § 4332(C). An EIS must “inform
decisionmakers and the public of the reasonable alternatives
which would avoid or minimize adverse impacts . . . of the
human environment.” 40 C.F.R. § 1502.1; see
also id § 1502.14(a) (explaining that an agency
must “rigorously explore and objectively evaluate all
The Gulf of Mexico Red Snapper Fishery.
Gulf of Mexico Fishery Management Council, (the “Gulf
Council”), manages red snapper in the Gulf of Mexico.
16 U.S.C. § 1852(E). The management unit for red snapper
extends from the United States-Mexico border in the west
through the northern Gulf of Mexico waters and west of the
Dry Tortugas and the Florida Keys. AR 001486. Although
managed as a unit, two primary sub-stocks of red snapper
reside in the Gulf of Mexico: one sub-stock resides in the
Eastern Gulf and the other in the Western Gulf, separated by
the Mississippi River. Id.
of red snapper began in the 1980s with the implementation of
the Reef Fish Fishery Management Plan, (“Reef Fish
FMP”). AR 000006. At that time, routine assessments
indicated that red snapper was in decline, or in an
overfished condition. AR 020348. In efforts to rebuild the
stock, the Gulf Council adopted Amendment 1 to the Reef Fish
FMP. Amendment 1, among other things, specified a framework
for setting the total allowable catch (“TAC”) to
allow for annual management changes. AR 020333. Amendment 1
additionally indicated how the TAC would be allocated between
the commercial and recreational sectors in the fishery.
Id. Amendment 1 allotted 51 percent to the
commercial sector and 49 percent to the recreational sector
based on percentages of total landings during a base period
from 1979 to 1987. Id.
managing the fishery, the Gulf Council and NMFS rely on the
Southeast Data, Assessment and Review, (“SEDAR”),
stock assessment, a periodic evaluation of the amount and
weight of fish, spawning data, mortality rates, and other
information related to the size and health of the fishery.
See, e.g., AR 001482. Once a SEDAR stock assessment
is conducted, the Gulf Council's Scientific and
Statistical Committee, (“SCC”), reviews the
assessment and recommends to the Gulf Council the acceptable
biological catch, (“ABC”), for the year. AR
000010-12. The Gulf Council then proposes to NMFS a total
quota for the year that is then divided according to the
51/49 allocation. Id.
Management of the Commercial Sector.
1990 and 2006, the Gulf Council and NMFS managed the
commercial sector by setting quotas at 51 percent of the TAC
and closing the fishing season once the quota was reached. AR
020354. As a result, the commercial sector operated like a
derby: commercial fishermen raced to catch as many fish as
possible before the fishery closed. AR 039012-039013. That
resulted in short seasons, overages, and economic
2007, the commercial sector implemented an individual fishing
quota, (“IFQ”), program. See 71 Fed.
Reg. 67, 447, 67, 447 (Nov. 22, 2006). The IFQ program works
as follows: (1) Each qualifying vessel receives shares of the
commercial quota based on the vessel's historical
participation in the fishery; (2) At the start of each
season, each shareholder receives an allocation in pounds
based on the amount of shares they have; and (3) Each
shareholder may then harvest his allocation, purchase
allocation from other fishermen, or sells his allocation to
others. AR 020354. Since implementing the IFQ program, the
commercial sector has not exceeded its quota, and the
commercial fishing season operates year round. AR 020350.
Management of the Recreational Sector.
the recreational sector has proven more difficult. Beginning
with Amendment 1 to the Reef Fish FMP, the Gulf Council and
NMFS did not initially establish a quota for the recreational
sector. Instead, Amendment 1 specified a recreational
allocation in pounds that was based on 49 percent of the TAC.
As such, from 1991 until 1997, the Gulf Council and NMFS set
an allocation of red snapper for the recreational sector each
year, and managed the recreational sector through bag and
size limits with a year-round open season. See,
e.g., 56 Fed. Reg. 33, 883 (July 24, 1991). During those
six years, the recreational sector exceeded their allocation
every year, except 1996. AR 020353.
1997, the Gulf Council and NMFS established a quota for the
recreational sector. See 62 Fed. Reg. 42, 478, 42,
479 (Aug. 7, 1997). From 1997 to 1999, the Gulf Council and
NMFS implemented in-season monitoring and a season-closure
process to keep the recreational sector within their quota.
AR 020351. Closures occurred in 1997, 1998, and 1999, with
seasons becoming shorter each year. Id. In 2000, the
Gulf Council and NMFS abandoned in-season monitoring and set
a fixed season length for the recreational sector.
See 65 Fed. Reg. 50, 158, 50, 158 (Aug. 17, 2000).
From 2000 until 2007, the recreational sector operated under
a quota of 4.47 million pounds and a season lasting from
April 21 to October 31 (194 days). Id.
2008, the recreational sector began operating under variable
season lengths. AR 020351. This meant that the Gulf Council
and NMFS predicted the recreational catch rate in advance
using past trends and changes in the average size of
recreationally harvested red snapper. Id. The
recreational season then began each year on June 1 and closed
on the date when the quota was projected to be reached.
Id. During this period (2008-2012), the recreational
sector exceeded their quota every year, except 2010. AR
to Defendants, lack of real-time data on recreational
landings complicates efforts to determine recreational
fishing seasons. (Doc. No. 22, at 13). Prior to 2008, NMFS
collected data on the recreational sector through the Marine
Recreational Fishery Statistics Survey, which generated
effort and catch data through onsite interviews with anglers
and offsite telephone surveys. AR 000573-74. In 2008, NMFS
implemented an improved recreational data collection program,
called the Marine Recreational Information Program,
(“MRIP”). AR 020693. In 2013, NMFS updated MRIP
protocols to include data from fishing trips at time
intervals that the agency had not previously sampled,
resulting in higher estimates of recreational landings and
Prior Litigation: Guindon v. Pritzker (Guindon I), 31
F.Supp.3d 169 (D.D.C. 2014).
issue of NMFS's management of the recreational sector
came to a head when Plaintiffs brought suit against
Defendants concerning the 2013 recreational season. In
Guindon v. Pritzker (Guindon I), 31 F.Supp.3d 169
(D.D.C. 2014), Plaintiffs challenged, among other things,
NMFS's action to set a 28-day season in 2013 and then
reopen the season in the fall after the recreational sector
had already reached and exceeded their quota. Id. at
181-185. Ruling in Plaintiffs' favor on all of their MSA
claims, the Court focused on NMFS's repeated failure to
hold the recreational sector accountable. Id. at
response to the Court's decision, NMFS took three actions
relevant to the present case. First, for the 2014 season,
NMFS set a target catch level for the recreational sector
that was 20 percent below the recreational quota and reduced
the recreational season to nine days. See 80 Fed.
Reg. 14, 328, 14, 328 (Mar. 19, 2015); see also 79
Fed. Reg. 27, 768, 27, 769 (May 15, 2014). NMFS subsequently
promulgated a Final Rule that permanently established a
recreational catch level with a 20 percent buffer and a quota
overage adjustment that would reduce the recreational quota
the year following a quota overage by the amount of that
overage. See 80 Fed. Reg. at 14, 328.
having modified its MRIP protocols in 2013 and believing the
modified protocols to be the most accurate means of measuring
recreational landings, NMFS convened a calibration workshop
to adjust prior recreational landings to reflect what those
landings would have been under the modified MRIP protocols.
AR 001461-001481. The MRIP calibration revealed higher
historical recreational landings. AR 020360.
as mentioned, the Gulf Council and NMFS rely on the SEDAR
stock assessment each year. In 2014, the SEDAR stock
assessment was updated to include the calibrated historical
recreational landings. AR 020331. After reviewing the 2014
update to the SEDAR stock assessment, the SSC determined that
the ABC could be increased to 13 million pounds in 2015 with
further increases over the next two years. Id. In
February 2015, the SSC received an additional update to the
2014 SEDAR stock assessment that included the 2014 landings,
which were lower than previously assumed. Id. As a
result, the SSC re-evaluated its projections and recommended
that the ABC be adjusted to 14.3 million pounds in 2015,
13.96 million pounds in 2016, and 13.74 million pounds in
2017. Id. The Gulf Council then approved a framework
action to implement commercial and recreational quotas
derived from the ABC levels. See 80 Fed. Reg. 24,
832, 24, 832 (May 1, 2015).
The Challenged Agency Action: Amendment 28 to the Reef
new, higher ABC levels, established as a result of the
revised 2014 update to the SEDAR stock assessment that made
use of the MRIP calibration, informed the then-ongoing
efforts by the Gulf Council to reconsider the appropriate
allocation between the commercial and recreational sectors,
leading to the adoption and implementation of Amendment 28.
AR 020320. Amendment 28 initially aimed to “consider
changes to the commercial and recreational red snapper
allocation to increase the net benefits from red snapper
fishing.” 78 Fed. Reg. 66, 900, 66, 900 (Nov. 7, 2013).
Pursuant to that purpose, the Gulf Council considered
alternatives that would have shifted allocation from the
recreational sector to the commercial sector. AR 020722.
After learning that it was not possible to determine changes
in economic benefits and receiving information from the MRIP
calibration, the Gulf Council modified the purpose of
Amendment 28 to the following: “reallocate the red
snapper harvest consistent with the 2014 red snapper
assessment update to ensure the allowable catch and recovery
benefits are fairly and equitably allocated between the
commercial and recreational sectors to achieve optimum
yield.” AR 020332.
Gulf Council considered nine alternatives for adjusting the
red snapper allocation. Notably, the Gulf Council evaluated a
“no action” alternative, which would have
retained the allocation established in Amendment 1. AR
020335. The Gulf Council determined that the “no
action” alternative would have been the most
“environmentally preferable alternative” because
it would have resulted in the “least commercial
discards and . . . the lowest decrease [in the spawning
potential ratio, (“SPR”), ] for the eastern
portion of the red snapper stock.” AR 020730-AR 020731.
Ultimately, the Gulf Council approved Alternative 8, which
reallocates the TAC of red snapper from the commercial sector
to the recreational sector, giving as its reason for doing
so, the increase in allowable harvest due to changes in