Opinion
Case No. 8:03-cv-124-T-24EAJ
December 17, 2003
ORDER
This cause comes before the Court for consideration of the Ocean Conservancy and the National Audubon Society's ("Plaintiffs") Motion for Summary Judgment (Doc. No. 8), Donald L. Evans, in his official capacity as Secretary of the U.S. Department of Commerce, the National Oceanic Atmospheric Administration, and the National Marine Fisheries Service's (collectively referred to as "NMFS" or "Federal Defendants") Motion for Summary Judgment (Doc. No. 20), Southern Offshore Fishing Association, Robert Spaeth, Fisherman's Ice Bait, Inc., Willie R. Etheridge Seafood Co., Inc., Russell H. Hudson, Dewey Hemilright, and Agger Fish Corporation's (collectively referred to as "Defendant-Intervenors") Motion for Summary Judgment (Doc. No. 21), and the responses thereto.
Plaintiffs are challenging the Federal Defendants' actions relating to the management of large coastal shark (LCS) stocks in the Atlantic Ocean and the Gulf of Mexico. Specifically, the Plaintiffs allege that the Federal Defendants' approval of an emergency rule and its companion Environmental Assessment (EA) setting LCS commercial quotas for the first half of the 2003 fishing season violates the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. § 1801 et seq., the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq.
The Federal Defendants' management of large coastal stocks in the Atlantic Ocean and the Gulf of Mexico has been the subject of almost continuous litigation in this district for the past seven years. In 1997, shark fishermen and other constituents from the shark fishing industry filed a lawsuit challenging the 1997 commercial catch quotas. See Southern Offshore Fishing Ass'n v. Daley, Case No. 8:97-cv-1134-T-23EAJ. That lawsuit was followed in 1999 with another shark fishing industry suit challenging measures adopted by Federal Defendants in response to a 1998 assessment of Atlantic shark stocks. See Southern Offshore Fishing Ass'n v. Daley, Case No. 8:99-cv-1455-T-23EAJ. The 1997 and 1999 lawsuits were resolved by way of a Settlement Agreement. Plaintiffs then challenged the Federal Defendants' actions under the Settlement Agreement that resolved the two prior cases. See Ocean Conservancy v. Evans, Case Nos. 8:01-cv-1399-T-24EAJ and 8:02-cv-163-T-24EAJ.
The cornerstone of the Settlement Agreement was the agreement for the NMFS to convene an independent scientific review of the 1998 Atlantic shark stock assessment. In accordance with the Settlement Agreement, because a majority of the independent reviewers concluded that the scientific conclusions and scientific management recommendations contained in the 1998 stock assessment were not based on scientifically reasonable uses of appropriate fisheries stock assessment techniques and/or best available biological and fishery information relating to Atlantic large coastal sharks, NMFS announced that the 1997 catch quotas would remain in effect pending completion of a new stock assessment in 2002. This Court granted summary judgment in favor of Federal Defendants and the Defendant-Intervenors on Plaintiffs' challenge to the Defendants' actions under the Settlement Agreement. See Ocean Conservancy v. Evans, Case Nos. 8:01-cv-1399-T-24EAJ, Doc. No. 60.
In the instant case, Plaintiffs challenge an Emergency Rule that the Federal Defendants promulgated based on the results of the 2002 LCS stock assessment, which was completed pursuant to the Settlement Agreement.
I. BACKGROUND
A. Legal Framework
1. The Magnuson-Stevens Fishery Conservation and Management Act (MSA)
The Secretary of Commerce has the primary responsibility under the MSA to prepare and implement fishery management plans (FMPs) identifying conservation and management measures for Atlantic sharks and other "highly migratory species." 16 U.S.C. § 1852(a)(3); 1853(a); 1854(c)(1)(C); 1854(g)(1). All FMPs and implementing regulations must be consistent with the ten national standards for fishery conservation and management set out in § 301 of the MSA. 16 U.S.C. § 1851(a).
The term "highly migratory species" means tuna species, marlin, oceanic sharks, sailfishes and swordfish. 16 U.S.C. § 1802(20).
NMFS' advisory guidelines based on these standards are codified at 50 C.F.R. § 600.305-340. NMFS first published these guidelines on Sept. 15, 1976, 41 Fed. Reg. 39,441, and has amended them on numerous occasions since the first publication.
In 1996, Congress amended the MSA through the Sustainable Fisheries Act (SFA), Pub.L. 104-297, 110 Stat. 3559 (1996). In particular, the SFA strengthened the MSA by establishing clear requirements to prevent overfishing, rebuild overfished fisheries, and minimize bycatch. See 16 U.S.C. § 1853(a)(10), (11).
2. The National Environmental Policy Act (NEPA)
The purpose and intent of NEPA is to focus the attention of the federal government and the public on a proposed action so that the consequences of the action can be studied before the action is implemented and potential negative environmental impacts can be avoided. 42 U.S.C. § 4321; 40 C.F.R. § 1501.1(c); Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371 (1989). To that end, NEPA requires the preparation of an environmental impact statement (EIS) for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). NEPA mandates the procedures by which agencies must consider the environmental impacts of their actions, but does not dictate the substantive results. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).
Not every federal action or proposal requires preparation of an EIS. Where the environmental impacts of an action are less than significant, an agency may comply with NEPA through preparation of an environmental assessment (EA) and a finding of no significant impact (FONSI). See 40 C.F.R. § 1501.3; 1501.4(c), (e); 1508.9. An EA provides sufficient evidence and analysis for determining whether an action has significant environmental impact and includes "brief discussions of the need for the proposal, of alternatives . . ., [and] of the environmental impacts of the proposed action and alternatives. . . ." 40 C.F.R. § 1508.9.
3. Administrative Procedure Act (APA)
The APA generally requires agencies to publish proposed substantive rules in the Federal Register and accept public comment before making them effective. 5 U.S.C. § 553(b)-(c). There is an exception, however, when no other statute requires notice or a hearing and "the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." 5 U.S.C. § 553(b)(B).
4. Standard and Scope of Review
The appropriate standard for judicial review of the Federal Defendants' decision to promulgate the challenged emergency rule is the arbitrary and capricious standard under the APA, 5 U.S.C. § 706(2)(A). See e.g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971); North Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1538 (11th Cir. 1990) (applying arbitrary and capricious standard in review under NEPA); Alaska Factory Trawler Ass'n v. Baldridge, 831 F.2d 1456, 1460 (9th Cir. 1987) (applying arbitrary and capricious standard under the MSA). See also Environmental Coalition of Broward County, Inc. v. Myers, 831 F.2d 984, 986 (11th Cir. 1987) (courts should give deference to the agency determination in the case of "complex environmental statutes such as the Clean Water Act."). In applying the arbitrary and capricious standard, the focal point for judicial review should be the administrative record that was before the agency at the time of the decision, not some new record made initially in the reviewing court. See Camp v. Pitts, 411 U.S. 138, 142 (1973). The Supreme Court has explained the deferential nature of the arbitrary and capricious standard of review:
[The reviewing court] must consider whether the decision was based on consideration of the relevant factors and whether there has been a clear error of judgment. . . . Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.Overton Park, 401 U.S. at 416.
Congress entrusted decisions regarding fisheries management under the MSA to the Secretary of Commerce, who in turn has delegated these responsibilities to the National Marine Fisheries Service, recognizing that such decisions involve balancing many complex, highly technical factors within that agency's special expertise. See, e.g., Kramer v. Mosbacher, 878 F.2d 134, 135 (4th Cir. 1989) (Congress delegated to NMFS by and through the Secretary of Commerce "broad authority to manage and conserve coastal fisheries"). "When examining this kind of scientific determination . . . a reviewing court must generally be at its most deferential." Baltimore Gas Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983); see also Marsh, 490 U.S. at 377. De novo review cannot be reconciled with the complex, technical requirements for conservation and management of fishery resources under the MSA.
See e.g., United States v. Ward, 618 F. Supp. 884, 900 (E.D.N.C. 1985) ("In the end, however, the EPA is required to act upon the informed scientific opinion of its employees. The agency's decision is, therefore, entitled to great deference from this court.").
Even in the case of "specialists express[ing] conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts, even if, as an original matter, a court might find contrary views more persuasive."Marsh, 490 U.S. at 378.
The standard of review for claims under the MSA, NEPA, and the APA itself is supplied by the APA, 5 U.S.C. § 706(2). The Court should hold unlawful and set aside any of NMFS' challenged actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right," 5 U.S.C. § 706(2)(C), or "without observance of procedure required by law," 5 U.S.C. § 706(2)(D).
"Judicial review of an informal administrative agency decision focuses first upon whether the administrator acted within the scope of his or her authority, and, second, upon whether the administrator's decision was arbitrary and capricious." City of Pompano Beach v. F.A.A., 774 F.2d 1529, 1539 n. 10 (11th Cir. 1985) (citing Overton Park, 401 U.S. at 416).
"In an APA case, the factfinding capacity of the district court is typically unnecessary. The Court is to decide, on the basis of the record the agency provides, whether the actions pass muster under the appropriate APA standard of review." Loggerhead Turtle v. County Council of Volusia County, 120 F. Supp.2d 1005, 1013 (M.D. Fla. 2000). "Since the Court determines the issues based on the agency's administrative record, a trial is generally unnecessary and summary judgment is often appropriate." Id. at 1011-12.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of showing the Court, by reference to materials on file that there are no genuine issues of material fact that should be decided at trial. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Clark v. Coats Clark, Inc., 929 F.2d 604 (11th Cir. 1991). When the party moving for the summary judgment bears the burden of persuasion on the issue at trial, its showing must sustain the burden as well as demonstrate the absence of a genuine dispute. See Celotex, 477 U.S. at 331-32. Therefore, the moving party must satisfy both the initial burden of production on the summary judgment motion, by showing that no genuine dispute exists as to any material fact, and the ultimate burden of persuasion on the claim, by showing that it would be entitled to a directed verdict at trial. When the party moving for the summary judgment does not bear the burden of persuasion on the issue at trial, the moving party discharges its burden on a motion for summary judgment by "showing" or "pointing out" to the Court that there is an absence of evidence to support the non-moving party's case. See id. at 325. Rule 56 permits the moving party to discharge its burden with or without supporting affidavits and to move for summary judgment on the case as a whole or on any claim. See id. When a moving party has discharged its burden, the non-moving party must then "go beyond the pleadings," and by its own affidavits, or by "depositions, answers to interrogatories, and admissions on file," designate specific facts showing that there is a genuine issue for trial. Id. at 324. In the instant case, the facts underlying the Plaintiffs' claims in this action are documented in the Administrative Record before this Court. Therefore, the relevant legal inquiry centers on whether the disputed actions are supported by the Administrative Record in this case.
In sum, this Court may not substitute its judgment for the NMFS' expertise, nor may it substitute an objecting party's preferences for that of the agency. See Overton Park, 401 U.S. at 416. Accordingly, NMFS' decisions are to be upheld unless Plaintiffs can demonstrate, on the Administrative Record, that the challenged decisions were arbitrary and capricious or not otherwise in accordance with law.
The facts underlying this action are undisputed by the parties.
1. The 1993 Fishery Management Plan
Federal management of the Atlantic shark fishery began in 1993 with the adoption of the final Fishery Management Plan (FMP) for Atlantic sharks. See 58 Fed. Reg. 21,949 (April 26, 1993). The 1993 FMP imposed various management measures directed to stop overfishing of large coastal sharks (LCS) and to prevent the overfishing of small coastal sharks (SCS) and pelagic sharks. For example, the 1993 FMP created a federal permitting system and established the first commercial catch quotas imposed on the fishery and the first recreational bag limits. The FMP also banned the practice of "finning" (removing only the fins and discarding the remainder of the shark into the sea, resulting in death) and established a comprehensive and mandatory system for data collection and reporting. Under the 1993 FMP, NMFS received information concerning possible changes in fishery management measures from a science body called the Shark Evaluation Workshop (SEW). The SEW included NMFS, industry, environmental, and independent scientists convened by NMFS to evaluate available data on sharks and to consider management implications of stock assessment results. NMFS summarized deliberations of the SEW in an SEW report.
a. The 1996 SEW
NMFS convened the 1996 SEW meeting in June 1996. A SEW report was prepared by NMFS to summarize the SEW deliberations and to evaluate management implications. Reviewing 1995 catch data, the SEW reported that in 1995 the documented U.S. commercial landings of large coastal sharks were 3,117 metric tons dressed weight. Recreational harvests of large coastal sharks were estimated to be about 780 metric tons. The SEW used three population models to assess population levels of large coastal sharks: a demographic model, a production model, and a maximum likelihood model. The SEW acknowledged that each approach had certain strengths and weaknesses.
Available data, viewed using the three modeling approaches, indicated a statistically significant negative trend in catch rates over time for 19 of 26 individual species or species groups studied. However, there was no statistically significant evidence that shark stocks were either increasing or decreasing since management under the FMP began. The SEW concluded that, even though NMFS had already instituted catch limits (the 1995 catch was only 48% of the peak estimated catch of 1983), additional reductions of fishing mortality of 50% or more would be needed to stabilize and potentially to begin recovering stocks of large coastal sharks.
b. 1997 Interim Regulations
Considering the findings of the 1996 SEW, the Secretary determined in late 1996 that sharks remained overfished despite the various conservation measures undertaken since the 1993 FMP. Therefore, on April 7, 1997, NMFS issued a final rule reducing commercial quotas for large coastal sharks by half, maintaining the quota for pelagic sharks, and establishing a quota for small coastal sharks. See 62 Fed. Reg. 16,648. The Secretary adopted the 1997 catch quotas as a risk-averse, interim measure to achieve an immediate 50% reduction in fishing mortality as the Secretary continued to develop a long-term rebuilding schedule.See id. at 16,648.
The final rule also implemented other measures to conserve Atlantic shark stocks, including the reduction of recreational bag limits, establishment of a catch-and-release only fishery for white sharks and prohibitions on possession of four other species, and prohibition of filleting at sea. See 62 Fed. Reg. 16,648. The rule also restated and re-emphasized the 1993 FMP's requirements for species-specific identification by all owners or operators, dealers, and tournament operators of all sharks landed under the FMP. See id. at 16,652-53.
2. The 1997 1999 Lawsuits
In the 1997 lawsuit, the shark fishing industry plaintiffs challenged the 1997 commercial catch quotas. Among other claims, the industry plaintiffs argued that the quotas were based on unproven scientific models that failed to account for the effects of shark migration and fishing by other countries. In a decision issued February 24, 1998, Judge Merryday found that the quotas were based upon the best available scientific information, in accordance with National Standard 2:
The administrative record before the Court evinces a healthy debate (both within NMFS and between NMFS and participating constituencies) which featured noticeably vocal expert opinions both supporting and opposing the means employed by the Secretary. . . . Judicial review at this juncture is limited to determining whether the Secretary intelligently and knowingly decided on a rational policy, given the scientific and judgmental tools available to him. I find that the Secretary fulfilled the minimum obligations imposed by the APA and National Standard Two.Southern Offshore Fishing Ass'n v. Daley, 995 F. Supp. 1411, 1432-33 (M.D. Fla. 1998).
Judge Merryday also found that the quotas complied with National Standard 1, noting that "the Secretary's decision to reduce the LCS quotas constitutes a cautious, risk-averse approach, designed to safeguard against further injurious declines in shark stocks and to ensure optimal yield and repopulation." Id. at 1431. Although Judge Merryday found that the quotas complied with National Standards 1 and 2, he ordered the Secretary of Commerce to re-consider on remand the possible socioeconomic effects of the quotas according to provisions of the Regulatory Flexibility Act ("RFA"), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996 ("SBREFA"), 5 U.S.C. § 601 et seq., as well as certain provisions of the MSA, 16 U.S.C. § 1854(g)(1)(G)(ii) and 16 U.S.C. § 1851(a)(8). See id. at 1437. Judge Merryday held that the public interest warranted retaining the quotas in effect during the remand See id.
a. The Remand
Judge Merryday ordered NMFS "to undertake a rational consideration of the economic effects and potential alternatives to the 1997 quotas." Southern Offshore Fishing Ass'n, 995 F. Supp. at 1437. Citing Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104 (1st Cir. 1997), Judge Merryday directed the NMFS to "submit to the Court an analysis that complies with applicable law" on or before May 15, 1998. Id. Therefore, NMFS was afforded less than three months to complete the requisite analyses on remand Though not required by the Court's order, NMFS provided a brief public comment period on a draft of the economic analysis. See "Atlantic Shark Fisheries; Notice of Availability," 63 Fed. Reg. 19,239 (April 17, 1998).
On May 15, 1998, NMFS submitted to the Court and to industry plaintiffs an analysis titled "Final Consideration of the Economic Effects and Potential Alternatives to the 1997 Quotas on the Atlantic Large Coastal Shark Fishery" (hereinafter referred to as "Remand Submission"). NMFS determined that the 1997 quotas may result in significant economic effects on a substantial number of fishery participants. See Remand Submission at 3. NMFS considered possible alternatives to the quotas and determined that "there were no available alternatives that could reduce economic impacts without possibly jeopardizing the long term viability of the LCS stocks, and thus the fishery." Id. at 3. Accordingly, NMFS concluded that the 1997 quotas "were the only viable alternative to ensure that the LCS stocks would not decline further as that rebuilding program was established and minimized to the extent practicable the economic effects in both the short-term and long-term." Id.
In the Remand Submission, NMFS specifically advised the Court that NMFS was preparing to convene a new SEW to analyze non-quota alternatives during 1998:
NMFS is also holding a 1998 SEW to analyze some of these alternatives. These alternatives include but are not limited to time/area closures, establish additional prohibited sharks, and trip/bag changes. These alternatives are not discussed here but may be fully discussed in the proposed [Highly Migratory Species] FMP and the 1998 SEW report. . . .
Remand Submission at 33. See also Remand Submission at 35 ("NMFS is continuing to consider minimum size limits as possible alternatives to quota adjustments in the development of the rebuilding program, in conjunction with the HMS AP and the 1998 SEW."). NMFS filed a copy of the SEW report with the Court on or about September 28, 1998.
b. The Special Master Proceedings
Upon an initial review of the Remand Submission and the industry plaintiffs' objections, the Court expressed concern regarding the sufficiency of NMFS' analysis of less restrictive alternatives to the quota reduction: "the defendant affords minimal treatment to more realistic and constructive alternatives such as minimum size limits, nursing and pupping area closures, and staggered closures." See Southern Offshore Fishing Ass'n v. Daley, Case No. 8:97-cv-1134-T-23EAJ, Doc. No. 85 at 6. Over the NMFS' objections, the Court appointed a special master to analyze the Remand Submission with respect to the availability of workable alternatives to the 1997 quotas.
After Judge Merryday appointed the Special Master, the parties stipulated to stay the special master proceedings while pursuing Court-mandated mediation and settlement discussions. Meanwhile, NMFS was in the process of preparing a new "Fishery Management Plan for Atlantic Tunas, Swordfish and Sharks" (HMS FMP). NMFS published a "Notice of Availability" of the Draft FMP for LCS and other highly migratory species ("HMS") in the Federal Register on October 26, 1998. See 63 Fed. Reg. 57,093. NMFS subsequently proposed regulations in accordance with the preferred alternatives from the draft FMP on January 20, 1999. See 64 Fed. Reg. 3,154.
In September 1997, the Secretary, by and through NMFS, issued a report to Congress identifying LCS as "overfished," pursuant to 16 U.S.C. § 1854(e)(1). Report to Congress, "Status of Fisheries of the United States," September 1997. This certification triggered a one-year timetable during which the Secretary had to develop a management plan to end overfishing and to rebuild affected stocks of fish in as short a period of time as possible. See 16 U.S.C. § 1854(e)(3). NMFS prepared a fishery management plan to address a rebuilding program for LCS in this context.
NMFS adopted the final HMS FMP in April 1999. NMFS published the Final Rule to implement the HMS FMP on May 28, 1999. See 64 Fed. Reg. 29,090. The rule included new 1999 shark quotas to achieve long-term stock recovery in accordance with the mandate of Congress at 16 U.S.C. § 1854(e) and the rebuilding schedule set forth in the HMS FMP. In addition to new quotas, the rule also included a suite of other management measures for sharks, including minimum sizes and a more species-specific management approach than utilized in the past.
As to the necessary time period for ending overfishing and rebuilding the fishery, the MSA specifies that the time shall "not exceed 10 years, except in cases where the biology of the stock of fish, other environmental conditions, or management measures under an international agreement in which the United States participates dictate otherwise." 16 U.S.C. § 1854(e)(4)(A)(ii). Due to the relatively long reproductive cycles of large coastal sharks, NMFS adopted a 39-year rebuilding schedule for the sandbar complex of species and a 30-year rebuilding schedule for the blacktip complex of species. See 64 Fed. Reg. at 29,107.
Settlement negotiations in the 1997 lawsuit broke down around the time NMFS issued the final rule to implement the HMS FMP, and the industry plaintiffs filed a motion to hold the Secretary of Commerce in contempt for promulgating the new shark fishing regulations. On June 30, 1999, Judge Merryday enjoined NMFS from implementing new management measures until the special master completed review of NMFS' actions on remand See Southern Offshore Fishing Ass'n v. Daley, 55 F. Supp.2d 1336, 1346 (M.D. Fla. 1999). Judge Merryday stated that "with considered and purposeful delay, NMFS elected to circumvent unilaterally the judicial process and achieve its desired goals at the expense of justice and fair play. The defendant's litigation position has adulterated into evasion." Id. Judge Merryday noted the Court had "inherent authority and jurisdiction to require bona fide compliance with its February 24, 1998, order and other pertinent orders. . . ." Id. at 1346. By virtue of the Court's order, the 1997 quotas remained in place.
On October 1, 1999, the Special Master issued recommended findings of fact and conclusions of law. See Southern Offshore Fishing Ass'n v. Daley, Case No. 8:97-cv-1134-T-23EAJ, Doc. No. 123. The Special Master's report found that NMFS reasonably determined that there were no available alternatives to the 1997 LCS quotas but also concluded that NMFS's decision to reject alternatives to lowering fishing quotas "constituted bad faith and a lack of candor to the-Court." Id. The Special Master based this finding on two factors: 1) the agency's characterization of the universe of affected fishers in the Remand Submission on alternatives to the 1997 quotas; and 2) the agency's representations to the Court concerning the proceedings of the 1998 stock assessment, which was being conducted at the same time that NMFS was working on the Remand Submission. See id. NMFS filed extensive objections to the Special Master's report.
Meanwhile, as the special master proceedings were pending, the shark fishing industry plaintiffs filed a new lawsuit challenging the final rule that implemented the new management measures.See Southern Offshore Fishing Ass'n v. Daley, Case. No. 8:99-cv-1455-T-23EAJ. As in the lawsuit challenging the 1997 interim quotas, industry plaintiffs raised various claims under the MSA and the RFA. In particular, they disputed NMFS' reliance upon a new statistical model on which the new quotas were based. By late 1999, the parties completed expedited briefing on the merits of the new lawsuit, and NMFS filed a motion to dissolve the injunction on the new management measures. Pending the Court's ruling on that motion, the injunction remained in effect through 2000.
The 1998 Shark Evaluation Report, on which Federal Defendants relied in promulgating the HMS FMP, differed from previous shark stock assessments in its use of Bayesian statistical analysis. The Bayesian approach replaces unknown parameters by known probability distributions for those parameters observed previously, which are referred to as priors. In Case No. 8:99-cv-1455-T-23EAJ, the shark industry plaintiffs alleged that Bayesian analysis is unreliable due to several life history characteristics, such as long life spans among certain shark species.
On or about November 24, 2000, the parties reached a settlement of all claims in both cases and filed a joint motion with the Court to adopt the settlement. The Court entered an order granting the parties' joint motion on December 7, 2000, vacating the injunction, and dismissing the case. See Southern Offshore Fishing Ass'n v. Mineta, 2000 WL 33171005 (M.D. Fla. Dec. 7, 2000). In that order, the Court denied a motion to intervene that had been filed by four environmental groups (including the Plaintiffs in the instant case, the National Audubon Society and the Ocean Conservancy (formerly Center for Marine Conservation)). Id. at *1. The Court also noted that it considered "Objections to the Settlement Agreement" filed by the amici and found the objections "insufficient to warrant denial of the parties' motion to approve their lawful settlement agreement, which was accomplished only after protracted, detailed, and arduous negotiation between the parties." Id. The amici groups did not appeal the order denying their intervention.
3. Implementation of the Settlement Agreement
The centerpiece of the Settlement Agreement in the 1997 and 1999 cases was the parties' agreement to a detailed procedure to convene an independent scientific review panel to review the science underlying the challenged management measures set forth in the 1999 final rule. The agreed procedures included, inter alia, specific terms of reference setting forth the findings to be made by the independent reviewers, a requirement that the reviewers consider an industry-provided position paper, and confidentiality measures to safeguard the identity of the reviewers pending completion of the review. The parties agreed that the independent reviewers would be selected through the Center for Independent Experts (CIE) at the University of Miami. The parties agreed that the 1997 interim commercial quota, which was still then in effect by virtue of the Court's earlier order enjoining the 1999 regulations, would remain in effect pending completion of the independent review.
The Settlement Agreement stipulated that the 1999 levels would take effect only if a majority of the panelists found that the conclusions and management recommendations contained in the 1998 SEW Report were based on scientifically reasonable uses of appropriate fisheries stock assessment techniques and best available (at the time of the 1998 SEW Report) biological and fishery information relating to Atlantic LCS.
In the Settlement Agreement, NMFS also committed to submit the outcome of the forthcoming stock assessment for LCS to the same independent scientific review process to be completed before NMFS adjusts the fishing quotas or undertakes other management measures for LCS. NMFS retained the discretion to adjust quotas based on a new stock assessment prior to completion of the peer review if "emergency action is necessary (e.g., due to imminent stock collapse)."
On March 6, 2001, NMFS issued an emergency rule to re-establish the 1997 interim quota, in accordance with the Settlement Agreement. See 66 Fed. Reg. 13,441. NMFS used its express authority under the MSA to issue this emergency rule without prior notice and comment. As noted in the Federal Register notice,
[t]he [Assistant Administrator for Fisheries] finds that there is good cause to waive the requirement to provide prior notice and an opportunity for public comment pursuant to authority set forth at 5 U.S.C. § 553(b)(B), as such provisions would be contrary to public interest. This emergency rule is necessary to meet the requirements of a court-approved settlement agreement. Further litigation that could further delay implementation of appropriate quotas is contrary to the public interest, because of the concern that [large coastal shark] stocks would experience further decline during any protracted litigation.Id. at 13,442. Although not required by the Settlement Agreement, NMFS' emergency rule also suspended non-quota commercial management measures such as counting state landings and dead discards against future quotas and setting a minimum size for ridgeback LCS.
Twenty-two species of Atlantic and Gulf of Mexico LCS co-occur in the United States waters. These species may be classified as ridgeback or non-ridgeback, depending on whether they exhibit a characteristic ridge along the back of the animal. Sandbar (a ridgeback) and blacktip (a non-ridgeback) sharks are the primary species caught in the commercial fishery, accounting for approximately 60-75% of the annual catch. AR 8-249 at 15.
On June 26, 2001, NMFS published a Federal Register notice that set the opening and closing dates for the second semi-annual 2001 LCS fishing season. The notice provided background on industry litigation relating to the Atlantic shark fishery and stated that, because independent peer reviews of the 1998 LCS stock assessment were not complete as required under the Settlement Agreement, annual quota levels for LCS would remain at 1997 levels. Id.
On June 29, 2001, industry plaintiffs and NMFS filed a Joint Status Report in the 1999 case to notify the Court concerning the implementation of the parties' Settlement Agreement. The parties notified the Court that the scientific reviews completed to date did not conform to the criteria set forth in the Settlement Agreement in several material respects. First, the Statement of Task transmitted to the panelists by the CIE differed from the Statement of Task incorporated in the parties' Settlement Agreement, and consequently, the reviews prepared by the individual panelists did not meet the requirements of the Settlement Agreement. Second, the industry position paper was timely submitted by industry plaintiffs pursuant to Section 3(c)(iii) of the Settlement Agreement but was not transmitted to the individual panelists for consideration in their reviews. Third, the CIE inadvertently disclosed to NMFS' designees the identity of one of the three panelists prior to completion of that panelist's review. Further, the CIE released to NMFS' designees, who provided the commercial fishing interests a copy, the reviews prepared by two panelists that were not in conformance with the Settlement Agreement.
Accordingly, the parties negotiated amendments to the Settlement Agreement (Amended Settlement Agreement), filed with the Court on or around July 25, 2001, to provide for a new independent review panel to be convened to fulfill the parties' intent in the original Settlement Agreement. The new independent review panel was convened by Natural Resources Consultants, Inc. (NRC). In accordance with the same procedure contemplated in the original Settlement Agreement, the amendments specified that the 1997 interim quotas would remain in effect pending completion of the new independent review. The parties agreed that revised reports from the CIE reviewers could be considered by the agency in future stock assessments but would not be used to fulfill the terms of the parties' settlement.
Judge Merryday denied all pending motions in the 1999 case, including the motion to amend the Settlement Agreement, finding that the Court lacked jurisdiction to rule on the motions because it had previously dismissed the case with prejudice. Therefore, the Amended Settlement Agreement never received court approval.
On July 26, 2001, the Plaintiffs filed a complaint challenging the Federal Defendants' decision to open the second semi-annual 2001 fishing season for LCS with a fishing quota based on 1997 quota levels. See Ocean Conservancy v. Evans, Case No. 8:01-cv-1399-T-24EAJ.
On October 8, 2001, NMFS received five reviews procured through NRC under the amendments to the Settlement Agreement. Under the terms of the amendments to the Settlement Agreement, to ensure that the names of the reviewers were not released to staff before the review documents were deemed complete by counsel, NMFS staff did not find out the results or even see the reviews until the last week of October. NMFS received three completed reviews from the CIE during the same general time period. Because one of the NRC reviewers had participated in the CIE review, NMFS evaluated the findings of the four remaining NRC reviewers for purposes of determining whether a majority of the independent reviewers concluded that the scientific conclusions and scientific management recommendations contained in the 1998 stock assessment were or were not based on scientifically reasonable uses of appropriate fisheries stock assessment techniques and/or best available biological and fishery information relating to Atlantic LCS. Three of the four remaining NRC reviewers concluded that the scientific conclusions and scientific management recommendations contained in the 1998 SEW Report were not based on scientifically reasonable uses of appropriate fisheries stock assessment techniques and/or best available (at the time of the 1998 SEW Report) biological and fishery information relating to Atlantic LCS.
On December 28, 2001, in accordance with the terms of the Settlement Agreement, NMFS issued an emergency rule to retain the 1997 LCS quotas pending further rulemaking following completion of the next LCS and SCS stock assessments by the NMFS Southeast Fisheries Science Center, which was scheduled to be completed in 2002. Although not obligated by the Amended Settlement Agreement, NMFS also continued the suspension of non-quota commercial management measures for LCS. See 66 Fed. Reg. 67,118 (December 28, 2001). Noting that it would be impracticable to provide prior notice and opportunity for public comment, the emergency rule stated that there is good cause to waive the requirement to provide prior notice and an opportunity for public comment. Id. at 67,121. Accordingly, the emergency rule specified that NMFS was accepting comments for 90 days through March 28, 2002. Id. at 67,120. Based on any comments and the results of the LCS and SCS stock assessments, the emergency rule stated that "NMFS will modify these regulations through a standard rulemaking process as appropriate." Id.
NMFS completed an environmental assessment (EA) on December 17, 2001, with an associated finding of no significant impact (FONSI).
On January 28, 2002, the Plaintiffs filed a complaint challenging the Federal Defendants' decision to issue an emergency rule to establish the commercial quotas for Atlantic LCS for the 2002 fishing season at 1997 levels and to suspend regulations on management measures for Atlantic LCS, SCS and pelagic sharks. See Ocean Conservancy v. Evans, Case No. 8:02-cv-163-T-24EAJ. This action was then consolidated withOcean Conservancy v. Evans, Case No. 8:01-cv-1399-T-24EAJ as both actions challenged the Federal Defendants' actions under the Settlement Agreement that resolved the 1997 and 1999 cases.
In the May 29, 2002 Federal Register notice, NMFS also announced that it intended to implement new management measures for LCS and SCS by January 1, 2003, through notice and comment rulemaking based on the results of the 2002 LCS and SCS stock assessments. The SCS assessment was finalized in March 2002.
The 2002 LCS SEW was held on June 24-28, 2002. The purpose of the SEW was to evaluate recent data on sharks in light of recommendations from the independent reviewers and to consider management implications of stock assessment results. Forty-one documents with relevant shark data and modeling information were submitted to the SEW. A draft Meeting Report summarizing the SEW proceedings was released on July 3, 2002, and a final report was released on August 20, 2002.
On July 12, 2002, NMFS notified the Court in Ocean Conservancy, Case No. 8:01-cv-1399-T-24EAJ, Exhibit 2 to Doc. No. 53, that, given the large number of papers to be reviewed from the 2002 LCS SEW; issues raised at the SEW; the peer review process for the 2002 LCS stock assessment, which was required under the court-approved Settlement Agreement; and the need to develop new management measures and conduct environmental, social, and economic analyses of those measures, it was unlikely that the agency would be able to conduct full notice and comment rulemaking on Atlantic shark management measures by January 1, 2003. NMFS further stated that it may implement interim measures by January 1, 2003, while developing longer-term management measures pursuant to full notice and comment rulemaking after that date.
The NMFS Southeast Fisheries Science Center completed a detailed, 222-page stock assessment report based on the SEW proceedings on September 24, 2002. The 2002 SEW found that 21 of 22 species in the LCS complex continue to experience overfishing, and 20 of 22 species continue to be overfished. The 2002 stock assessment concluded, however, that the status of the resource improved since 1998. Although the aggregate group of all LCS species as a whole is overfished, the outlook was found to be favorable for the commercially-important sandbar and blacktip sharks. Upon receipt of the 2002 stock assessment, NMFS immediately contracted for an independent review, in accordance with the Settlement Agreement.
In contrast to the 1998 SEW Report, which prompted NMFS to adopt a 39-year rebuilding schedule for the sandbar complex of species and a 30-year rebuilding schedule for the blacktip complex of species, the 2002 stock assessment concluded that LCS stocks in the aggregate could reach maximum sustainable yield ("MSY") within only ten years. The 2002 stock assessment also concluded that sandbar sharks are at or above levels of MSY and that blacktip sharks are already rebuilt. While noting that overfishing of sandbar sharks may occur at current levels, the Report concluded that no reduction in catch is required for blacktip sharks and even an increase of 20 to 50 percent could maintain the stock.
Based on the 2002 stock assessments for the LCS and SCS, NMFS determined that an amendment to the HMS FMP is necessary to rebuild or prevent overfishing of Atlantic sharks. NMFS released the 2002 stock assessment to SEW participants on October 1, 2002 and published a Notice of Availability of that assessment on October 17, 2002. 67 Fed. Reg. 64,098. NMFS requested public comment on options to manage the Atlantic shark fisheries and published a Notice of Intent to prepare an EIS on an amendment to the HMS FMP. 67 Fed. Reg. 69,180.
NMFS concluded that in order to ensure that the invalidated 1999 quotas did not come into effect, NMFS had to submit any new final rule or emergency rule based on the LCS and SCS stock assessments to the Office of the Federal Register by December 20, 2002, to ensure publication in time for the anticipated reopening of the fishery on January 1, 2003. NMFS decided that with an independent review of the 2002 LCS stock assessment still pending, and with less than three months between receipt of the 2002 stock assessment and the Federal Register deadline, it was not feasible to complete an FMP amendment and an implementing rule with full notice and comment prior to the reopening of the fishery. Accordingly, NMFS prepared an Emergency Rule to reopen the shark fishery in 2003 while simultaneously proceeding with work on an FMP amendment. By October 17, 2002, NMFS regulatory staff circulated an outline of management alternatives based on the LCS and SCS stock assessments. NMFS' regulatory staff coordinated with scientists at the NMFS Southeast Science Center to verify certain conclusions drawn from the 2002 stock assessment. NMFS' regulatory staff also coordinated with the NMFS Office of Protected Resources and the NMFS Office of Habitat Conservation concerning possible effects on protected species and essential fish habitat.
On December 19, 2002, NMFS completed an EA and issued a Decision Memorandum adopting an Emergency Rule to reopen the fishery on January 1, 2003. The Decision Memorandum noted that the results of the peer review process for the 2002 LCS stock assessment would be available for consideration by the time the Emergency Rule was issued, and that the agency would take public comment and hold at least one public hearing on the measures implemented in the Emergency Rule. The Federal Register published the Emergency Rule on December 27, 2002. 67 Fed. Reg. 78,990.
The Emergency Rule, which is at issue in this case, implements annual quotas of 783 metric tons ("mt") dressed weight ("dw") and 931 mt dw for the commercial ridgeback and non-ridgeback LCS shark fisheries respectively. The LCS commercial quota for 2003 is an increase from the 1,285 mt dw quota under which the fishery had been operating pursuant to the Court-imposed injunction and the Settlement Agreement, and which did not account for state landings, to a total of 1,714 mt dw, which is similar to the total landings of LCS by federal and state commercial fishermen in recent years. The Emergency Rule suspends the regulation regarding the commercial ridgeback LCS minimum size but implements measures for season-specific quota adjustments and counting dead discards and state landings after a federal closure against the commercial quotas.
On January 24, 2003, the Plaintiffs filed this action challenging the December 2002 decision by the Federal Defendants to increase the annual fishing quota for the 2003 fishing season, suspend the minimum size requirements for ridgeback sharks, and extend the close of the spring fishing season from April 15th, 2003 to May 15th, 2003 pursuant to MSA, NEPA and the APA. On March 31, 2003, this Court entered summary judgment in favor of the Federal Defendants and Defendant-Intervenors inOcean Conservancy v. Evans, Case Nos. 8:02-cv-153-T-24EAJ and 8:01-cv-1399-T-24EAJ.
Although the "recent developments" do not directly affect the instant case, they are set forth for contextual purposes.
On August 1, 2003, Federal Defendants published in the Federal Register the "Proposed rule; notice of availability of draft Amendment 1 to Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (Amendment 1); request for comments." See 68 Fed. Reg. 45,196. The Federal Defendants filed a Notice of Filing with this Court (Doc. No 29) indicating that, pursuant to Amendment 1, they anticipated promulgating new management measures for LCS, including quotas, for the 2004 commercial fishing year.
The Federal Defendants filed a copy of the Federal Register notice ( 68 Fed. Reg. 64,622 — November 14, 2003) on the availability of the Final Environmental Impact Statement (EIS) regarding "Atlantic Tunas, Swordfish, and Sharks Fishery Management Plan, To Prevent Overfishing and Rebuild Overfished Species, Update Essential Fish Habitat, Atlantic, Gulf of Mexico and Caribbean Sea." See Federal Defendants' Notice of Filing, Doc. No. 31. Amendment 1 incorporates the Final Environmental Impact Statement referenced in the November 14, 2003 notice of availability, in addition to a Final Regulatory Impact Analysis, Final Regulatory Flexibility Analysis, and a Final Social Impact Analysis. Federal Defendants indicated in the Notice of Filing that they anticipate publishing a final rule to implement Amendment 1 shortly after expiration of the 30-day waiting period that commenced with the publication of the November 14, 2003 notice of availability.
II. DISCUSSION
This action challenges NMFS' approval of the Emergency Rule for the 2003 LCS fishery. Specifically, Plaintiffs challenge this rule based on the agency's failure to prevent overfishing, minimize bycatch, rebuild overfished stocks and use the best available science under National Standards 1, 2 and 9 of the MSA; its failure to undertake the statutorily required prior public notice and comment on the management measures; and its failure to comply with NEPA. The Court will address the Plaintiffs' arguments in turn.
A. NMFS' Action Violates the Magnuson-Stevens Act
Any FMP, plan amendment, or implementing regulation must be consistent with the MSA's ten national standards (NS) for fishery conservation and management. See 16 U.S.C. § 1851(a). Plaintiffs allege that Federal Defendants violated three national standards in implementing the Emergency Rule — National Standards 1, 2 and 9.
1. NMFS' Management Measures Violate National Standard 9 — the Bycatch Accounting and Minimization Provisions of the MSA
The Sustainable Fisheries Act (SFA) added new provisions to the MSA designed to address the serious problem of "bycatch," which is the incidental harvest of fish discarded for economic or regulatory reasons (e.g., the fish are too small, not valuable, or cannot be landed legally). See 16 U.S.C. § 1802(2) (33). Pursuant to National Standard 9 of the MSA, any conservation and management measure implemented by NMFS must "to the extent practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch." See 16 U.S.C. § 1851(a)(9), 1853(a)(11).
Plaintiffs argue that despite this mandate, NMFS has taken several actions that will have the opposite effect and are necessarily arbitrary and capricious. Plaintiffs allege that extending the fishing season for non-ridgeback sharks for one month longer than ridgeback sharks virtually guarantees a significant and illegal increase in bycatch. Plaintiffs point out that for that month all ridgebacks caught will necessarily be thrown overboard dead or dying. Moreover, all non-ridgebacks whose quotas have been reached (and thus cannot be landed) will also be discarded dead at sea as bycatch because NMFS is only controlling landings, not catch. Plaintiffs also contend that NMFS failed to consider that in extending the fishing season into May, it allows fishing during the critical May-June pupping season for female sharks. Plaintiffs ultimately argue that Federal Defendants have exacerbated bycatch through its actions.
NMFS argues that the Emergency Rule satisfies National Standard 9 by suspending the LCS commercial minimum size, implementing separate quotas for ridgeback and nonridgeback sharks, and requiring that dead discards be counted against the quotas. NMFS contends that to minimize bycatch it established a requirement for counting dead discards against the quota to provide an incentive to fishermen to avoid non-marketable sharks as much as possible and minimize dead discards to the extent practicable. Federal Defendants argue that contrary to Plaintiffs' assertions, the Emergency Rule will not result in unnecessary bycatch because fishermen target their catch of shark species, not all caught sharks are discarded dead, and extension of the non-ridgeback season into mid-May is consistent with NMFS' prior limitations regarding pupping seasons.
Consistent with the 2002 LCS stock assessment and the HMS FMP, this Emergency Rule maintains separate quotas for ridgeback and nonridgeback sharks. Federal Defendants assert that the HMS FMP established separate quotas to allow fishing effort and management measures to be more species-specific, or more tailored to species complexes with similar life history traits. NMFS recognized that dividing the LCS complex into ridgeback and non-ridgeback subgroups raised reporting and enforcement concerns due to the issue of correct species identification. However, the 2002 LCS stock assessment recommended managing on a species-specific basis, and NMFS concluded that the benefits of a separate ridgeback and nonridgeback quota approach outweighed the risk of discards of non-targeted sharks. NMFS maintains that to minimize any impact, it will monitor the effect of the Emergency Rule and consider public comments before modifying and/or extending this action of managing on a species-specific basis. In addition, NMFS states that it will re-evaluate all measures in the Emergency Rule as it develops an amendment to the HMS FMP.
Federal Defendants have clearly identified rational bases for their decisions in relation to the Emergency Rule. The Court finds that the Plaintiffs have failed to carry their burden of showing that the Federal Defendants have failed to reduce bycatch "to the extent practicable" and that the decisions they made were arbitrary and capricious. Federal Defendants are entitled to summary judgment on this claim.
2. NMFS' Action Unlawfully Perpetuates Overfishing and Fails to Rebuild Overfished LCS Stocks as Required by the MSA
National Standard 1 requires that "[c]onservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery." 16 U.S.C. § 1851(a)(1). A fishery is "overfished" if the rate or level of fishing mortality "jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis." 16 U.S.C. § 1802(29). In an overfished fishery, the "optimum yield" to be attained under NS 1 must "provide for rebuilding to a level consistent with producing the maximum sustainable yield in such fishery." 16 U.S.C. § 1802(28)(C). The MSA also requires the Federal Defendants to minimize the adverse economic impact of their fishery management decisions to the extent practicable. See 16 U.S.C. § 1851(a)(8).
Plaintiffs claim that the Federal Defendants have acted arbitrarily and capriciously, in violation of NS 1, by not ending overfishing and ensuring rebuilding. Specifically, Plaintiffs allege that NMFS has allowed continued overfishing on 21 of 22 species in the LCS complex.
Federal Defendants counter that, as noted in the 2002 LCS assessment, under the quotas that have been in place since 1997, the overall status of the LCS has been improving. Federal Defendants assert that the quota established under the Emergency Rule is consistent with NS 1 because it accounts for both federal and state LCS landings, based on the 2002 LCS stock assessment, and does not result in an overall increase in fishing effort. In addition, NMFS points out that the quotas specified in the Emergency Rule are tailored to prevent overfishing but are not tied to particular targets in the existing plan. Based on the results of the 2002 stock assessment, the NMFS is implementing an FMP amendment to develop and implement a new or revised rebuilding plan.
This Court once again finds itself in the position of deferring to the Secretary's decision. See Southern Offshore Fishing Ass'n v. Daley, 995 F. Supp. 1411, 1431 (M.D. Fla 1998) (the court should defer to the Secretary's decision in "making difficult policy judgments and choosing appropriate management and conservation measures based on [his] evaluation of the relevant quantitative and qualitative factors."). Plaintiffs have failed to establish that the Federal Defendants have acted arbitrarily and capriciously and have failed to prevent overfishing. Federal Defendants are entitled to summary judgment on this claim.
3. NMFS Did Not Base Its Action on the Best Available Scientific Information
National Standard 2 requires that "[c]onservation management measures shall be based on the best scientific information available." 16 U.S.C. § 1851(a)(2). Under the national standard guidelines, "[s]cientific information includes, but is not limited to, information of a biological, ecological, economic, or social nature." 50 C.F.R. § 600.315(b)(1). "FMPs must take into account the best scientific information available at the time of preparation." 50 C.F.R. § 600.315(b)(2); see also Southern Offshore Fishing Ass'n, 995 F. Supp. at 1432 ("under the `best scientific information available' standard, the Secretary must derive his determinations from the sum of pertinent and available information."); J.H. Miles Co., Inc. v. Brown, 910 F. Supp. 1138, 1151-52 (E.D. Va. 1995) ("[T]he Magnuson Act permits the Secretary's designees to act on information that is incomplete or if there are differences in available information."; upholding, under APA "arbitrary and capricious" standard, NMFS' decision to reject newest estimates from surf clam survey because data varied significantly from prior surveys). When NMFS' decisions are reviewed for compliance with NS 2, the agency "warrants cautious deference in matters falling within [its] studied specialty and concerning which equivocal evidence and genuine scientific debate abound." Southern Offshore Fishing Ass'n, 995 F. Supp. at 1425.
NMFS states in its Emergency Rule that the 2002 LCS stock assessment "currently constitutes the best available science for LCS." 67 Fed. Reg. 78,990 at 78,991. Plaintiffs do not dispute that the 2002 SEW constitutes the best available science. Plaintiffs contend instead that the Federal Defendants have ignored most of it in reaching their decision regarding the Emergency Rule. Plaintiffs argue that the NMFS focuses on the findings in the 2002 SEW that blacktip sharks can withstand 20% increases in catch while ignoring the findings that all other species are experiencing overfishing and many need up to 50% reductions in mortality. Plaintiffs further argue that in calculating the total quotas for LCS in its Emergency Rule, NMFS claims to have reduced quotas for some species, but this reduction is a fiction because the real-world effect of the Emergency Rule is increased LCS mortality. Specifically, while vulnerable LCS species cannot be landed after their quotas are met, they will still be caught as bycatch and thrown overboard dead or dying; thus, contributing to mortality levels.
Federal Defendants counter that the Emergency Rule is based on the 2002 stock assessment finding that the commercially-predominant sandbar and blacktip sharks are no longer overfished. NMFS states that it reasonably decided to adjust the non-ridgeback quota to allow for a modest increase in fishing effort on blacktip sharks while capping the overall quota at levels consistent with recent federal and state landings.
Based upon the record, the Court finds that the Emergency Rule takes into account the best scientific information available at the time of promulgation and that the Plaintiffs have failed to establish that the Federal Defendants violated NS 2. Accordingly, Federal Defendants are entitled to summary judgment on this claim.
B. NMFS' Environmental Assessment of the December 2002 Emergency Rule Violates the National Environmental Policy Act
"NEPA declares a broad national commitment to protecting and promoting environmental quality." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989) (citing 42 U.S.C. § 4331)). NEPA requires federal agencies to analyze the direct, cumulative, and long-term environmental consequences of their actions to ensure that federal agencies fully consider potential environmental consequences before making decisions. Id. at 349. "The sweeping policy goals announced in § 101 of NEPA are . . . realized through a set of `action forcing' procedures" that require agencies to take a "hard look" at the environmental consequences of their actions. Id. at 350. In other words, the statute does not set out substantive environmental standards, but instead is "primarily procedural." Metcalf v. Daley, 214 F.3d 1135, 1141 (9th Cir. 2000). "[A]gency action taken without observance of the procedure required by law will be set aside."Id.
There are two kinds of documents an agency may prepare to fulfill these requirements. First, NEPA requires that an environmental impact statement (EIS), a detailed analysis of the environmental impact of the agency's actions, be prepared for all "major Federal actions significantly affecting the quality of the human environment." See 42 U.S.C. § 4332(2)(C)(i); 40 C.F.R. § 1501.4, 1502.1. Alternatively, if an agency's regulations do not categorically require the preparation of an EIS, then the agency must first prepare an EA to determine whether an action will have significant environmental impact necessitating an EIS. If the agency decides that its action will significantly affect the environment, then an EIS must be prepared. If the agency decides that its action will not significantly affect the environment, then the agency must prepare a finding of no significant impact (FONSI) and "provide sufficient evidence and analysis" to support its decision. See 40 C.F.R. § 1508.9(a)(1). Based upon an EA, NMFS executed a FONSI on the December 2002 Emergency Rule.
An EA "[s]hall include brief discussions of the need for the proposal, of alternatives . . . [and] of the environmental impacts of the proposed action and alternatives." 40 C.F.R. § 1508.9(b). The Council on Environmental Quality, which promulgated the NEPA regulations, has explained that "[s]ince the EA is a concise document, it should not contain long descriptions or detailed data which the agency may have gathered . . . [T]he EA may incorporate by reference background data to support its concise discussion of the proposal and relevant issues." 46 Fed. Reg. 18,026, 18,037 (Mar. 23, 1981) (CEQ's 40 most frequently asked questions).
The standard of review applicable to the Court's review of the administrative record supporting the EA is provided by the APA, which allows the court to set aside agency action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Hill v. Boy, 144 F.3d 1446, 1450 (11th Cir. 1998). This standard is "exceedingly deferential" to the agency. See Fund for Animals v. Rice, 85 F.3d 535, 541 (11th Cir. 1996). The Court must consider whether there has been a clear error of judgment. See North Buckhead Civic Ass'n, 903 F.2d at 1538-39. The arbitrary and capricious standard gives a court the "least latitude in finding grounds for reversal"; a decision should not be set aside "simply because the court is unhappy with the results reached." Id. at 1539. In determining whether an agency's decision not to prepare an EIS is arbitrary and capricious, the court should consider three criteria: (1) whether the agency "accurately identified the relevant environmental concern"; (2) whether the agency took a "hard look" at this environmental concern in preparing the EA; and (3) if an agency issues a FONSI, whether the agency can "make a convincing case for its finding." Hill, 144 F.3d at 1450. An agency can meet these requirements if it examines the relevant data and presents a rational connection between the facts and the ultimate choice. Sierra Club v. Corps of Engineers, 295 F.3d 1209, 1216 (11th Cir. 2002).
Plaintiffs argue that the EA and FONSI that accompany NMFS' Emergency Rule failed to adequately analyze the adverse direct impacts of increasing the commercial LCS quota and of extending the fishing season for non-ridgeback sharks on: (1) the health of the LCS complex as a whole; (2) ridgeback and non-targeted non-ridgeback sharks that will face sharp increases of bycatch; and (3) female and juvenile sharks during the Spring pupping season. Plaintiffs also complain that NMFS brushed aside the cumulative and long-term effects of these actions such as the ability of the LCS complex to maintain current population levels, rebuild to maximum sustainable yields (MSY) and protect vulnerable depleted stocks, including stocks that are candidates for Endangered Species Act listing.
Federal Defendants assert that it properly analyzed the environmental impact of its decision to issue the December 2002 Emergency Rule in the EA. Federal Defendants point to the fact that the objective of the rulemaking was to set the 2003 LCS quota pending completion of the amendment to the FMP and to amend management measures that were no longer based on the best available science under the MSA.
While Plaintiffs may disagree with the Federal Defendants' conclusions, the Court finds that the record demonstrates that NMFS did consider the impact of the action and that the agency's experts properly concluded that no significant impact would occur. Accordingly, Federal Defendants are entitled to summary judgment on this claim.
C. NMFS Unlawfully Promulgated the December 2002 Rule Without Notice and Comment
The MSA specifically requires NMFS to publish an FMP, plan amendment, or proposed regulation for highly migratory species in the Federal Register for notice and comment. See 16 U.S.C. § 1854(c)(4)(B); 1854(c)(6). More generally, the APA requires an agency to publish general notice of proposed rule making in the Federal Register and provide an opportunity for interested persons to participate in the rule making by submitting comments. See 5 U.S.C. § 553(b) (c).
In enacting the notice and comment provisions of the APA, "Congress realized that an agency's judgment would only be as good as the information upon which it drew. It prescribed these procedures to ensure that the broadest base of information would be provided to the agency by those most interested and perhaps best informed on the subject of the rulemaking at hand" Brown Exp., Inc. v. United States, 607 F.2d 695, 701 (5th Cir. 1979).
The APA provides for an exception to the requirement for notice and comment rulemaking "when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." 5 U.S.C. § 553(b)(B). This exception is to be narrowly construed and infrequently invoked. See United States Steel Corp. v. EPA, 595 F.2d 207, 214 (5th Cir.), clarified on other grounds, 598 F.2d 915 (5th Cir. 1979); State of N.J., EPA v. United States EPA, 626 F.2d 1038, 1045-46 (D.C. Cir. 1980). An agency's decision not to comply with the APA's notice and comment requirement is reviewed under the standard supplied by 5 U.S.C. § 706(2)(D) (reviewing court shall hold unlawful and set aside agency action found to be "without observance of procedure required by law.").
The case law of the Fifth Circuit prior to September 30, 1981 has been adopted as precedent in this judicial circuit.Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).
Plaintiffs contend that NMFS violated the APA by failing to provide notice and opportunity for public comment prior to its December 2002 decision, published via emergency rule, to set 2003 LCS quotas and continue the suspension of certain non-quota management measures. NMFS argues that it complied with the APA by providing a statement of good cause that sets forth specific facts and reasons why prior notice and comment were impracticable and contrary to the public interest in the instant case. NMFS' statement of good cause noted, in part, that:
NMFS now has updated 2002 stock assessments for both LCS and SCS that constitute the best available science for these species and indicate that the status of both LCS and SCS have changed since the previous stock assessments. However, the 2002 LCS stock assessment did not become available in time to allow for prior notice and an opportunity for public comment on these interrelated LCS and SCS measures. Therefore, because any further delay in implementing new measures, based on the 2002 LCS stock assessments, will result in regulations based on outdated science going into effect, and a violation of the settlement agreement, the [Assistant Administrator for Fisheries] finds good cause under 5 U.S.C. § 553(b)(B) to waive prior notice and the opportunity for public comment.
AR 8-253 at 78,993.
Federal Defendants argue that an amendment to the HMS FMP would likely entail completion of an environmental impact statement pursuant to NEPA. NEPA requires a 45-day comment period for draft EIS's and a 30-day comment period for final EIS's. FMP amendments generally also require consultation with affected regional fishery management councils and convening a meeting of the relevant Advisory Panel. 16 U.S.C. § 1854(g)(1)(A). Federal Defendants contend that there clearly was insufficient time to complete these steps prior to the opening of the commercial fishing season in January 2003. There was insufficient time, Federal Defendants argue, to issue a proposed and final rule even without an amendment to the HMS FMP.
Federal Defendants argue that apart from the mechanics of publishing a proposed and final rule in the Federal Register, issuance of a proposed and final rule would have required compliance with deadlines set forth in the HMS FMP, the Coastal Zone Management Act (CZMA), and the APA. The HMS FMP states that the NMFS will attempt to provide 45-day comment periods on proposed rule. The CZMA, 16 U.S.C. § 1456(c)(1)(C), requires coordination with state governments to ensure consistency of federal programs with state management programs at least 90 days before final approval of the federal activity. Then, once a final rule is promulgated, the APA requires a 30-day cooling off period. 5 U.S.C. § 553(d).
Although the Plaintiffs argue that the impending deadline of January 1, 2003 for the opening of the new fishing season does not justify NMFS' failure to comply with statutory notice and comment requirements, this Court finds that NMFS has demonstrated the impracticability of affording notice and comment and properly invoked the good cause exception. See United States Steel Corp. v. EPA, 595 F.2d 207, 213 (5th Cir. 1979). The Federal Defendants are entitled to summary judgment on this claim. III. CONCLUSION
The Plaintiffs cite to NRDC v. Evans, 316 F.3d 904 (9th Cir. 2003), in support of their argument on this issue. There the court considered whether NMFS had violated the MSA and the APA by publishing annual specifications (i.e., quotas) for the Pacific groundfish fishery for 2001 via emergency rule and rejected NMFS' argument that it had properly invoked the APA's good cause exception where two months had elapsed between the Council's submission to NMFS of the 2001 specifications and NMFS' enactment of the same through emergency rule. Id. at 908, 912-13. "[T]he agency did not demonstrate that some exigency apart from generic complexity of data collection and time constraints interfered with its ability to promulgate specifications and management measures." Id. at 912. Unlike the facts in NRDC v. Evans, the Federal Defendants in the instant case have engaged in context-specific analysis of the circumstances giving rise to good cause when it issued the Emergency Rule without notice and comment.
Plaintiffs have failed to carry their burden at summary judgment of showing that NMFS' actions in promulgating the Emergency Rule were arbitrary and capricious or otherwise in violation of the MSA or any other applicable law.
Accordingly, it is ORDERED AND ADJUDGED that:
(1) Plaintiffs' Motion for Summary Judgment (Doc. No. 8) is DENIED.
(2) Federal Defendants' Motion for Summary Judgment (Doc. No. 20) is GRANTED.
(3) Defendant-Intervenors' Motion for Summary Judgment (Doc. No. 21) is GRANTED.
(4) The Plaintiffs' Motion to Strike Defendant-Intervenors' Extra-Record Exhibits (Doc. No. 23) is DENIED AS MOOT. The Court did not consider the exhibits in its review of this action.
(5) Each party is to bear its own costs and attorneys' fees.
(6) The Clerk is directed to enter judgment in favor of Donald L. Evans, in his official capacity as Secretary of the U.S. Department of Commerce, the National Oceanic Atmospheric Administration, the National Marine Fisheries Service, Southern Offshore Fishing Association, Robert Spaeth, Fisherman's Ice Bait, Inc., Willie R. Etheridge Seafood Co., Inc., Russell H. Hudson, Dewey Hemilright, and Agger Fish Corporation and CLOSE this case.