Lovgren v. Locke

701 F.3d 5

James LOVGREN; New Hampshire Commercial Fishermen's Association; Paul Theriault; Chuck Weimer; David Aripotch; Tempest Fisheries, Ltd.; Grace Fishing, Inc.; Richard Grachek; Roanoke Fish Co., Inc.; American Alliance of Fishermen and Their Communities; New Bedford Fish Lumpers Pension Plan; Atlantic Coast Seafood, Inc.; Lydia & Maya, Inc.; John & Nicholas, Inc.; Bergie's Seafood, Inc.; Nordic, Inc.; Lyman Fisheries, Inc.; The Hope II, Inc.; Reidar's Manufacturing, Inc.; Diamond Dog Fishing Corp.; Atlantic Enterprises, LLC; Wanchese Fish Company; Easter Joy, Inc.; Local 1749 ILA, AFL–CIO, New Bedford Fish Lumpers Pension Plan, Plaintiffs,

City of New Bedford; City of Gloucester, Plaintiffs, Appellants,

v.The Honorable Gary LOCKE, Secretary of Commerce; The National Oceanic and Atmospheric Administration, (NOAA); The National Marine Fisheries Service, (NMFS); Conservation Law Foundation, Inc.; Jane Lubchenco, Administrator of the National Oceanic and Atmospheric Administration, Defendants, Appellees,Atlantic Coastal Cooperative Statistics Program, (ACCSP); Atlantic States Marine Fisheries Commission, (ASMFC), Defendants.

James Lovgren, Plaintiff, Appellant,

City of New Bedford; New Hampshire Commercial Fishermen's Association; Paul Theriault; Chuck Weimer; David Aripotch; Tempest Fisheries, Ltd.; Grace Fishing, Inc.; Richard Grachek; Roanoke Fish Co., Inc.; American Alliance of Fishermen and Their Communities; New Bedford Fish Lumpers Pension Plan; City of Gloucester; Atlantic Coast Seafood, Inc.; Lydia & Maya, Inc.; John & Nicholas, Inc.; Bergie's Seafood, Inc.; Nordic, Inc.; Lyman Fisheries, Inc.; The Hope II, Inc.; Reidar's Manufacturing, Inc.; Diamond Dog Fishing Corp.; Atlantic Enterprises, LLC; Wanchese Fish Company; Easter Joy, Inc.; Local 1749 ILA, AFL–CIO, New Bedford Fish Lumpers Pension Plan, Plaintiffs,

v.The Honorable Gary Locke, Secretary of Commerce; The National Oceanic and Atmospheric Administration, (NOAA); The National Marine Fisheries Service, (NMFS); Conservation Law Foundation, Inc.; Jane Lubchenco, Administrator of the National Oceanic and Atmospheric Administration, Defendants, Appellees,Atlantic Coastal Cooperative Statistics Program, (ACCSP); Atlantic States Marine Fisheries Commission, (ASMFC), Defendants.

James Lovgren; City of New Bedford; Paul Theriault; Chuck Weimer; Tempest Fisheries, Ltd.; Grace Fishing, Inc.; Roanoke Fish Co., Inc.; New Bedford Fish Lumpers Pension Plan; City of Gloucester; Atlantic Coast Seafood, Inc.; Lydia & Maya, Inc.; John & Nicholas, Inc.; Bergie's Seafood, Inc.; Nordic, Inc.; Lyman Fisheries, Inc.; The Hope II, Inc.; Reidar's Manufacturing, Inc.; Diamond Dog Fishing Corp.; Atlantic Enterprises, LLC; Wanchese Fish Company; Easter Joy, Inc.; Local 1749 ILA, AFL–CIO, New Bedford Fish Lumpers Pension Plan, Plaintiffs,

New Hampshire Commercial Fishermen's Association; David Aripotch; Richard Grachek; American Alliance of Fishermen and Their Communities, Plaintiffs, Appellants,

v.The Honorable Gary Locke, Secretary of Commerce; The National Oceanic and Atmospheric Administration, (NOAA); The National Marine Fisheries Service, (NMFS); Conservation Law Foundation, Inc.; Jane Lubchenco, Administrator of the National Oceanic and Atmospheric Administration, Defendants, Appellees,Atlantic Coastal Cooperative Statistics Program, (ACCSP); Atlantic States Marine Fisheries Commission, (ASMFC), Defendants.

James Lovgren; City of New Bedford; New Hampshire Commercial Fishermen's Association; Paul Theriault; Chuck Weimer; David Aripotch; Richard Grachek; American Alliance of Fishermen and Their Communities; New Bedford Fish Lumpers Pension Plan; City of Gloucester; Atlantic Coast Seafood, Inc.; Reidar's Manufacturing, Inc.; Local 1749 ILA, AFL–CIO; New Bedford Fish Lumpers Pension Plan, Plaintiffs,

Tempest Fisheries, Ltd.; Grace Fishing, Inc.; Roanoke Fish Co., Inc.; Lydia & Maya, Inc., John & Nicholas, Inc.; Bergie's Seafood, Inc.; Nordic, Inc.; Lyman Fisheries, Inc.; The Hope II, Inc.; Diamond Dog Fishing Corp.; Atlantic Enterprises, LLC; Wanchese Fish Company; Easter Joy, Inc. Plaintiffs, Appellants,

v.The Honorable Gary Locke, Secretary of Commerce; The National Oceanic and Atmospheric Administration, (NOAA); The National Marine Fisheries Service, (NMFS); Conservation Law Foundation, Inc.; Jane Lubchenco, Administrator of the National Oceanic and Atmospheric Administration, Defendants, Appellees,Atlantic Coastal Cooperative Statistics Program, (ACCSP); Atlantic States Marine Fisheries Commission, (ASMFC), Defendants.

Nos. 11–1952, 11–1964, 11–1987, 11–2001.

United States Court of Appeals, First Circuit.

Nov. 28, 2012.

James F. Kavanaugh, Jr., with whom John Farrell Folan and Folan & McGlone, P.C., were on brief, for plaintiffs-appellants New Bedford, MA and Gloucester, MA and Tempest Fisheries, et al.

Stephen M. Ouellette, with whom Ouellette & Smith and Caitlin W. Delphin, were on brief, for plaintiffs-appellants Rhode Island Alliance of Fishermen, New Hampshire Commercial Fisherman's Association, Richard Grachek and David Aripotch.

Patrick F. Flanigan, with whom Law Office of Patrick F. Flanigan, Thomas Bond, and The Kaplan/Bond Group, were on brief, for plaintiff-appellant James Lovgren.

Joan M. Pepin, Attorney, Appellate Section, U.S. Department of Justice, Environmental & Natural Resources Division, with whom Ignacia S. Moreno, Assistant Attorney General, Robert J. Lundman, Andrea E. Gelatt, James A. Maysonett, Brian A. McLachlan, and Gene S. Martin, National Marine Fisheries Service, were on brief, for the federal defendants-appellees.

Peter Shelley was on brief for defendant-appellee Conservation Law Foundation.

Eldon V.C. Greenberg, with whom Garvey Schubert Barer and M. Pilar Falo, were on brief, for Representatives Barney Frank and John Tierney, Amicus Curiae.

Arthur P. Krieger, with whom Anderson & Krieger LLP, were on brief, for Food & Water Watch, Inc., Amicus Curiae.

Roger Fleming, with whom Erica A. Fuller, Stephen E. Roady, and Earth Justice, were on brief, for Georges Bank Cod Fixed Gear Sector, Amicus Curiae.

Before LYNCH, Chief Judge, TORRUELLA and BOUDIN, Circuit Judges.

LYNCH, Chief Judge.

This case involves legal challenges to recent federal management actions taken in New England's sensitive Multispecies Groundfish Fishery. We reject the many challenges and affirm entry of summary judgment for the federal defendants.

Under the Magnuson–Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801–1884, the New England Fishery Management Council (“N.E. Council”) regulates fishery resources within the federal waters off New England's coast. It does so primarily through Fishery Management Plans (“FMPs”), which it reevaluates biennially in light of the latest scientific information and congressionally imposed mandates and deadlines to prevent overfishing. Those mandates and deadlines were recently altered by the Magnuson–Stevens Fishery Conservation and Management Reauthorization Act of 2006, Pub. L. No. 109–479, 120 Stat. 3575 (2007), which introduced a suite of stringent protections for depleted fisheries.

This litigation centers on the N.E. Council's adjustments to the FMP governing the Northeast Multispecies Groundfish Fishery (“Fishery”). The N.E. Council was required by law to implement changes to the Fishery's 2004 FMP by the 2010 fishing year, taking into account both the Reauthorization Act's new protections and the results of a study conducted in 2008 on the health of the Fishery's stocks of fish. The study results showed that the situation was worse than previously believed. A number of groundfish stocks were overfished and subject to overfishing; only two stocks had improved since the 2004 FMP's implementation. This trend has continued to the present.¹

The N.E. Council adopted a new proposed groundfish FMP, Amendment 16, after 3 years' work, which included several publications in the Federal Register, eight public hearings, and receipt of numerous comments. The federal environmental impact statement prepared for Amendment 16 acknowledged the severe economic hardships facing New England's fishing communities.

On January 21, 2010, Amendment 16 was upheld on administrative review by the National Marine Fisheries Service (“NMFS”) of the National Oceanic and Atmospheric Administration (“NOAA”) within the U.S. Department of Commerce. The NMFS promulgated Amendment 16 through three related sets of regulations that, inter alia, altered and expanded the Fishery's preexisting “sector allocation program” and established new restrictions on fishing activities to end and prevent overfishing. These regulations took effect on May 1, 2010.

Plaintiffs then filed suit in federal court alleging that Amendment 16 conflicts with the Reauthorization Act's provisions governing “limited access privilege programs,” 16 U.S.C. § 1853a, with the ten “national standards” applicable to all FMPs, id. § 1851(a)(1)-(10), and with the requirements of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. They unsuccessfully sought to enjoin implementation of Amendment 16. The district court granted summary judgment for defendants as to all claims. City of New Bedford v. Locke, No. 10–10789–RWZ, 2011 WL 2636863 (D.Mass. June 30, 2011). We affirm.

I.

Amendment 16 arose within the complicated statutory and regulatory system governing New England's federal fisheries.

A. Statutory Background: The Magnuson–Stevens Act and the National Environmental Policy Act

More than thirty years ago, in response to growing concerns about the nation's depleted fisheries, Congress adopted the Magnuson–Stevens Fishery Conservation and Management Act (“MSA”), 16 U.S.C. §§ 1801–1884, “to conserve and manage the fishery resources found of the coasts off the United States,” id. § 1801(b)(1). Under the MSA, the federal government exercises “exclusive fishery management authority” over waters that are 3 to 200 nautical miles off the United States shoreline. Id., § 1811(a);...