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Guindon v. Pritzker

United States District Court, District of Columbia

March 3, 2017

KEITH GUINDON, et al., Plaintiffs,
PENNY SUE PRITZKER, in her official capacity as Secretary of the United States Department of Commerce; NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION; and NATIONAL MARINE FISHERIES SERVICE, Defendants




         This 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. §§ 701-706 (2012).

         Presently 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.


         A. Statutory Background.

         1. Magnuson-Stevens Fishery Conservation and Management Act.

         In 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).

         The MSA 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 Four”).

Id. § 1851(a)(1), (4).

         Furthermore, 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).

         After 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).

         2. National Environmental Policy Act.

         NEPA 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 reasonable alternatives”).

         B. Factual Background.

         1. The Gulf of Mexico Red Snapper Fishery.

         The 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.

         Management 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.[1] 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.

         In 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.

         2. Management of the Commercial Sector.

         Between 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 instability. Id.

         In 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.

         3. Management of the Recreational Sector.

         Managing 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.

         In 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.

         In 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 020353.

         According 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 discards. Id.

         4. Prior Litigation: Guindon v. Pritzker (Guindon I), 31 F.Supp.3d 169 (D.D.C. 2014).

         The 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 200-201.

         In 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.

         Second, 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.

         Third, 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).

         5. The Challenged Agency Action: Amendment 28 to the Reef Fish FMP.

         The 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.

         The 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 ...

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