BOSTON – June 30, 2011 – Judge Rya Zobel has ruled against the Cities of New Bedford and Gloucester et al on all counts in their case against NOAA on Amendment 16.
Excerpts of the judge's ruling follow.
While it is a close call, I do not find that the Agency's conclusion that Amendment 16 implements neither a LAPP nor an IFQ, reached as part of the rulemaking process, see AR 864 at 50496-98 (FWW comment that the sector model is an IFQ and thus a LAPP); AR 997 at 56516 (Agency response to FWW comment), is manifestly contrary to statute. The agency reasons that fishermen are issued permits with an associated PSC, but that the PSC never operates as a limitation on how much the permit holder may catch and only acquires meaning when aggregated with other PSCs in a sector. AR 103; AR 997 at 56516. While a sector is, arguably, limited by an ACE to a quantity of fish within the meaning of the LAPP and IFQ definitions, sectors are "temporary, voluntary, fluid associations of vessels" that are not issued permits. AR 997 at 56499. Accordingly, there is no "permit . . . to harvest a quantity of fish." 16 U.S.C. § 1802(26).
The Agency's position that Amendment 16 is not an IFQ, subject to a referendum, binds this court for the additional reason that the statute excludes "sectors" from the referendum requirement, 16 U.S.C. § 1853a(c)(6)(D)(vi), and the Agency reasonably interpreted the exemption to apply to the A16 sector program, AR 997 at 56516. The sector exemption was introduced as part of a 2007 amendment to the MSA, after A13 was implemented. While "sector" is not defined in the statute, it is reasonable to infer Congress was referring to the existing A13 sector program, as it was the only sector program then managed by the NEFMC. There are, to be sure, differences between the A13 and A16 sector programs, but both apply quota-like allowable catch limits to sectors. 69 Fed. Reg. at 22914 (describing A13 sector regulations). It is not manifestly contrary to law to construe the "sector" exclusion as a reference to the quota-like limits applicable to these sectors.
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Plaintiffs raise a second issue of statutory interpretation. They argue that, contrary to the Agency's position, the statute requires a fishery to be managed only as an aggregate quantity, rather than in respect to individual stocks, when it comes to measuring MSY and the determination of overfishing. The issue arises because two of the groundfish stocks in the Northeast multispecies fishery are in robust health, while the remaining 20-odd stocks are either overfished or subject to overfishing. Conservation measures for these many threatened stocks have the practical effect of limiting catch for the two abundant stocks.
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While there is sufficient ambiguity in the above statutory language to encompass either the Agency's or the plaintiffs' interpretation, the rest of the MSA makes clear that the Agency must manage the health of individual stocks.2 National Standard 8 identifies "rebuilding of overfished stocks" as a conservation requirement. Id. at § 1851(8). A fishery management plan "shall" contain conservation measures "necessary . . . to prevent overfishing and rebuild overfished stocks," id. at § 1853(a), and "may" establish limitations necessary for conservation based on "species," id. at § 1853(b). The Secretary is required to notify Congress when a fishery is overfished, and within one year the relevant Fishery Management Council must prepare a plan "to rebuild affected stocks of fish." 16 U.S.C. § 1854(e)(3). The fishery must be rebuilt as quickly as possible, taking into account various factors including "the biology of any overfished stocks of fish," not to exceed 10 years, except where one of several conditions, including "the biology of the stock of fish," dictate otherwise. Id. at § 1854(e)(4). The Secretary is required to review such a plan at intervals not to exceed two years to determine if there has been adequate progress "rebuilding affected fish stocks." Id. at § 1854(e)(7).
The Agency's interpretation is also longstanding and codified in regulation, and deserving of deference. Mead Corp., 533 U.S. at 228 (identifying consistency as a factor which weighs in favor of deference).
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Plaintiffs argue that the combined effect of the reduced ACL and the sector program will be economically ruinous for fishermen and fishing communities, and therefore the Agency failed to "assess" the economic and social impacts of A16. The FIS requirement is, however, procedural, not substantive. The Agency, through the NEMFC, produced multiple, extensive environmental assessments that more than satisfy this procedural requirement. AR 773 48382-534 (A16 FEIS); AR 882 51221-250 (environmental assessment for Framework 44); AR 898-99, 901-913, 915-16 (environmental assessments for individual sectors).
It is also clear from the record that the Agency "took into account" this information. There is no dispute that the A16 policies instituted to rebuild fish stocks will have a negative short-term economic effect on the fishery.
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A16 establishes PSC for all stocks other than GB Cod on the basis of permit landings from 1996-2006. For GB Cod, permits that participated in the A13 sectors have a PSC calculated on the basis of landings between 1996-2001, which was the period used to determine the sector allocation under A13, while other permits have a PSC calculated using the standard 1996-2006 time frame. Plaintiffs argue this distinction is arbitrary and not "fair and equitable to all fishermen." 16 U.S.C. § 1851(a)(4).
The record shows that the Agency's allocation method is rational.
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Plaintiffs argue, in conclusory fashion, that the ACLs for some stocks are overly conservative. A reviewing court should be most deferential where an Agency is making difficult scientific predictions in its area of special expertise. Baltimore Gas & Elec. Co v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983). The Agency decided upon the A16 ACL methodology after a reasoned and scientifically grounded process…
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The New Bedford Plaintiffs separately object that bycatch and discards are not considered when calculating PSC, but are "assumed" and count against a sector's ACE. See AR 997 at 56565-66. They are assumed fleet-wide, however, only if a sector has inadequate monitoring to determine an actual sector-specific rate. AR 997 at 56502. There is also nothing arbitrary about holding fishermen accountable for bycatch and discards. See 16 U.S.C. § 1851(a)(9) (specifying that conservation measures should "minimize bycatch").
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Plaintiffs object that PSC was not calculated based "upon the best scientific information available" as required by National Standard 2. 16 U.S.C. § 1851(a)(2). Fishermen are required to submit a vessel trip report ("VTR") to NMFS for each landing. Dealers are also required to report their purchases. The database used to calculate PSC was populated with the dealer report data. There is no dispute that the database contains errors and plaintiffs argue that the dealers' original paper reports, not the database into which the information was later entered, provide the best available information.
There is, however, no evidence in support of plaintiffs' argument that the paper reports would be a more reliable source of information than the existent database.
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The groundfish fishery extends into the geographic area of both the NEFMC and the Mid-Atlantic Fishery Management Council. By statute, the Secretary has the discretion to designate one council to prepare the fishery management plan, 16 U.S.C. § 1854(f), and has selected the NEFMC. Plaintiff Lovgren argues that the NEFMC did not involve or consider the needs of mid-Atlantic fishermen when preparing A16. This position finds no evidentiary support. To the contrary, the record contains numerous examples of input from, and consideration of, mid-Atlantic fishermen, including plaintiff Lovgren.
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NEPA creates various procedural requirements for federal actions such as A16. It requires "in every . . . report on . . . major Federal actions . . . a detailed statement" addressing several considerations, including "alternatives to the proposed action." 42 U.S.C. § 4332(2)(C)(iii). This section must "briefly discuss the reasons [why an alternative was] eliminated." 40 C.F.R. § 1502.14. Plaintiffs object that the Agency failed to consider alternatives, in particular, the "point system."
The Agency considered numerous alternatives to the measures adopted in A16. AR 773 at 47773-76; 47927-78. One alternative considered early in the process, during the "scoping" period when the NEFMC was "select[ing] a range of alternatives to be considered and analyzed," AR 18 at 4461, was the point system. See AR 59 at 5876, 5888-92. The NEFMC elected to defer consideration of the point system and other options until Amendment 17, AR 773 at 47822, "because of concerns the design of the measures could not be completed in time," AR 773 at 47977.
The determination to defer consideration of the point system was not arbitrary. Early in the process, the NEFMC Multispecies oversight committee identified specific concerns as to how a point system would integrate with existing management systems including sectors and be correlated with hard catch limits, such that "it was not clear which of the alternative systems would meet Council objectives, or which ones could be developed and implemented in the limited time available."
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Plaintiffs argue that the Agency violated the Regulatory Flexibility Act ("RFA") and the Paperwork Reduction Act ("PRA") because the costs of sector monitoring are excessive. … Arguments about the substantive merits of a new rule are beyond the scope of these procedural requirements.
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Plaintiff Lovgren separately asserts that A16 violates the Fifth Amendment because, so far as I can discern from the convoluted briefing, there was a taking without notice and an opportunity to be heard. This claim is groundless.
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Conclusion
The New Bedford Plaintiffs' motion for summary judgment (Docket # 56) is DENIED. Plaintiff Lovgren's motion for summary judgment (Docket # 61) is DENIED. Defendant Conservation Law Foundation's motion for summary judgment (Docket # 73) is ALLOWED. The Agency's motion for summary judgment (Docket # 75) is ALLOWED. The New Bedford Plaintiffs' motion to strike (Docket # 99) is DENIED. The New Bedford motion for leave to file a supplemental complaint (Docket # 108) is DENIED.