Sustainable Fisheries Coal. v. Raimondo

589 F.Supp.3d 162

SUSTAINABLE FISHERIES COALITION, Plaintiff,

v.The Honorable Gina RAIMONDO, Secretary of Commerce, Defendant.

Civil No. 21-10204-LTS

United States District Court, D. Massachusetts.

Filed March 4, 2022

Shaun M. Gehan, The Law Office of Shaun M. Gehan PLLC, Washington, DC, for Plaintiff.

Robert M. Norway, United States Department of Justice, Washington, DC, for Defendant The Honorable Wynn Coggins.

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

SOROKIN, United States District Judge

The subject of the pending cross-motions for summary judgment is a challenge to the National Marine Fisheries Services's¹ final rule amending the Fishery Management Plan for Atlantic Herring. The Plaintiff, Sustainable Fisheries Coalition ("SFC"), is an unincorporated trade association with members that include various participants in the herring fishing industry. Doc. No. 1 ¶ 7.² SFC objects to a portion of the final rule implementing a ban on the use of midwater trawl gear in certain inshore waters. The Defendant opposes SFC's Motion and seeks summary judgment on all claims, contending that the final rule was rational and supported by the administrative record. For the reasons stated herein, the Court ALLOWS the Plaintiff's Motion for Summary Judgment solely on the grounds that the final rule violates the Administrative Procedure Act and National Standard 4 (Doc. No. 29). The Court ALLOWS the Defendant's Motion for Summary Judgment insofar as the final rule provides a lawful fishery impact statement but DENIES the Motion on all other grounds (Doc. No. 33).

I. STATUTORY BACKGROUND

The purpose of the Magnuson-Stevens Fishery Conservation and Management Act ("MSA"), 16 U.S.C. §§ 1801 et seq., is to, inter alia, "take immediate action to conserve and manage the fishery resources found off the coasts of the United States." 16 U.S.C. § 1801(b)(1). The MSA established an "exclusive economic zone" that encompasses waters 3 to 200 miles offshore of the United States, "over which the federal government claims ‘sovereign rights and exclusive fishery management authority over all fish, and all Continental Shelf fishery resources’ located therein.’ " Campanale & Sons, Inc. v. Evans, 311 F.3d 109, 110 (1st Cir. 2002) (quoting 16 U.S.C. § 1811 ). The MSA calls for the creation of regional fishery management councils tasked with "prepar[ing], monitoring, and revis[ing]" fishery management plans designed to "achieve and maintain, on a continuing basis, the optimum yield for each fishery." 16 U.S.C. § 1801(b)(4)-(5). Pursuant to this authority, Congress created eight regional fishery management councils "composed of persons with various interests in the region's fisheries" including state fishery officials and the National Marine Fisheries Service ("NMFS") regional director. W. Sea Fishing Co. v. Locke, 722 F. Supp. 2d 126, 130 (D. Mass. 2010) ; 16 U.S.C. § 1852.

The primary purpose of a Regional Council is to create fishery management plans ("FMP") for overfished species that require conservation in its jurisdiction. 16 U.S.C. § 1852(h)(1). FMPs must take measures to conserve, manage, and protect the fishery with an eye towards its "long-term health and stability." Id. § 1853(a)(1). In addition, FMPs must conform with the ten national standards set forth in the MSA. Id. § 1851(a)(1)-(10). A Regional Council presents the proposed FMP to the Secretary of Commerce for review and approval. Id. § 1852(h)(1). If approved, the Secretary enacts regulations to implement the FMP. Id. § 1854.

"In sum, ‘[t]he Magnuson–Stevens Act's main thrust is to conserve the fisheries as a continuing resource through a mixed federal-state regime; the FMPs are proposed by state Councils but the final regulations are promulgated by the Secretary through the Fisheries Service.’ " Evans, 311 F.3d at 111 (alteration in original) (quoting Mass. v. Daley, 170 F.3d 23, 27-28 (1st Cir. 1999)).

II. AMENDMENT 8

The subject of this dispute is Amendment 8 to the FMP for Atlantic Herring. Atlantic Herring are silver fish with green or blue backs. Atlantic Herring, NOAA Fisheries, https://www.fisheries.noaa.gov/species/atlantic-herring#overview ("Atlantic Herring Overview"). They can reach 14 inches in length and have an impressive lifespan of up to 15 years. Id. Atlantic Herring can be found across the continental shelf waters of the Northeast Atlantic from Labrador to Cape Hatteras but are most prominent in the waters north of Cape Cod. AR24456. A migratory species, Atlantic Herring travel in schools seeking locations to spawn, feed, and spend the winter. Atlantic Herring Overview. Other fish, marine mammals, and seabirds rely on Atlantic herring as prey. Id.

The initial purpose of Amendment 8 was to establish an "acceptable biological catch" ("ABC") control rule for Atlantic herring that accounted for herring's role in the ecosystem, including its role as a "forage species" or prey for other species. AR24320; Doc. No. 30 at 18-19. In February of 2015, the New England Fishery Management Council ("the Council") launched the process for developing Amendment 8 by publishing a Notice of Intent ("NOI") and initiating a public comment period. AR24373.

A few months later in August of 2015, the Council published a second NOI announcing that the Council was expanding the purpose of Amendment 8. AR24320. In addition to establishing an ABC control rule, Amendment 8 would address "localized depletion in inshore waters." Id. Localized depletion "is when harvesting takes more fish than can be replaced either locally or through fish migrating into the catch area within a given time period." AR24655. A second round of public comments focused on the expansion of the Amendment's purpose revealed concerns about localized depletion's biological impact on both herring and herring predators, its economic impact on businesses that rely on predators of herring, and the resulting potential for conflict between competing users of herring. AR24320. In response to such comments, the Council's "consideration of localized depletion in Amendment 8 included user group conflict, both an evaluation of impacts of the user group conflict and consideration of competing interests for how herring should be used." Id.

The Council's Plan Development Team ("PDT") was tasked with: (1) analyzing the existing literature on relationships between herring and its predators, (2) developing mapping tools to capture areas used by the herring fishery and predator fisheries, (3) undertaking an overlap analysis to identify the existence of user conflict, (4) assessing the impact of the herring fishery on predator fisheries, and (5) determining how fisheries would respond to closures. AR24656. The Council developed ten "alternatives" to address the issue of localized depletion, which were the subject of numerous hearings and public comments. AR24385. Ultimately, the Council settled on Amendment 8, a hybrid of three of the alternatives presented. AR24444. The Council adopted Amendment 8 on September 25, 2018. AR24320. NMFS sought public comments on the Amendment from August 21, 2019 to October 1, 2019. Id. NMFS then published a proposed rule for the Amendment on October 9, 2019, and, again, sought public comments. Id. Finally, NMFS approved the final rule on November 19, 2019.

According to the Final Rule, Amendment 8 "specifies a long-term acceptable biological catch control rule for herring and addresses localized depletion and user group conflict." AR24319-20. The Plaintiff does not challenge the ABC control rule, but only the portions of the Amendment that address localized depletion and user group conflict. Specifically, the challenged portion of the Amendment creates an exclusion zone of twelve miles from the shore in which Midwater Trawl ("MWT") vessels are prohibited from fishing ("the exclusion zone").³ AR24321-22. The exclusion zone, which is in effect all year, runs from the Canadian border to an area east of Long Island and encompasses a buffer of roughly twenty miles off Cape Cod and Nantucket Island. AR24321-22; Doc. No. 30 at 24. Only MWT vessels are prohibited from fishing in the exclusion zone.⁴ AR24321; Doc. No. 30 at 24.

The Plaintiff brings three primary challenges to the exclusion zone. First, it contends that the final rule is arbitrary and capricious and thus violative of the Administrative Procedure Act ("APA"). Next, it claims that the final rule is inconstant with MSA National Standards 1, 2, 4, 5, 7, and 8. Finally, it argues that the Defendant failed to undertake its statutory duty under the MSA to provide a fishery impact statement.

III. LEGAL STANDARD

Pursuant to the MSA, regulations promulgated by the Secretary are reviewed under the standard set forth by the APA. 16 U.S.C. § 1855(f)(1) ; Frontier Fishing Corp. v. Pritzker, 770 F.3d 58, 62 (1st Cir. 2014). The APA's "highly deferential" standard permits courts to set aside an agency decision if it is arbitrary, capricious, or otherwise unlawful. 5 U.S.C. § 706(2)(A)-(D) ; Locke, 722 F. Supp. 2d 126 at 136. The Court must determine whether the Secretary's action "was consonant with [the agency's] statutory powers, reasoned, and supported by substantial evidence in the record." Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997). The burden of proof lies with SFC. Locke, 722 F. Supp. 2d at 136.

Under the arbitrary and capricious standard of review, agency decisions are granted a "presumption of validity," a presumption that is particularly strong when applied "in a technical and complex regulatory schema, such as fisheries management." Id. at 136 (citing National Fisheries Inst. Inc. v. Mosbacher, 732 F.Supp. 210, 223 (D.D.C. 1990) ). "[A] court should not substitute its judgment for that of the agency." Adams v. U.S. E.P.A., 38 F.3d 43, 49 (1st Cir. 1994). Though deferential, the standard is not toothless. A court must set aside regulations "if the agency has relied on factors which Congress has not intended it to consider,...