Lewis v. Locke et al
Filing
25
OPINION AND ORDER on motions for summary judgment entered in lead case, Case No. 2:09-cv-641-FTM-SPC. The Clerk shall enter judgment accordingly on all claims in favor of the Federal Defendants, terminate all deadlines and close the file. Signed by Judge John E. Steele on 9/29/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
COASTAL CONSERVATION ASSOCIATION,
Plaintiff,
vs.
Case No.
2:09-cv-641-FtM-29SPC
REBECCA M. BLANK1, in her official
capacity as Acting Secretary of the
United
States
Department
of
Commerce; THE NATIONAL OCEANIC and
ATMOSPHERIC
ADMINISTRATION;
THE
NATIONAL MARINE FISHERIES SERVICES,
Defendants,
THE GULF OF MEXICO REEF
SHAREHOLDERS’
ALLIANCE;
ENVIRONMENTAL DEFENSE FUND,
FISH
THE
Intervenor-Defendants,
___________________________________
BRIAN E. LEWIS; TROY FUSSELL, et al.
Plaintiffs,
vs.
Case No.
REBECCA M. BLANK, in her official
capacity as Acting Secretary of the
United
States
Department
of
Commerce; THE NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION; and THE
NATIONAL MARINE FISHERIES SERVICES,
Defendants.
___________________________________
1
See Fed. R. Civ. P. 25(d)(1).
2:10-cv-95-FtM-29SPC
OPINION AND ORDER
On August 16, 2011, United States Magistrate Judge Sheri
Polster Chappell submitted a Report and Recommendation (Doc. #85)
to the Court recommending the following dispositions of pending
summary judgment motions: That Plaintiffs’ Brian E. Lewis and Troy
Fussell’s Motion for Summary Judgment (Doc. #61) be denied; that
Plaintiff Coastal Conservation’s Motion for Summary Judgment (Doc.
#64) be denied; that Federal Defendants Gary Locke, in his official
capacity as Secretary of the United States Department of Commerce,
the
National
Oceanic
and
Atmospheric
Administration,
and
The
National Marine Fisheries Services’s Cross Motion for Summary
Judgment (Doc. #68) be granted; and that Intervenor-Defendants the
Environmental
Defense
Fund
and
the
Gulf
of
Mexico
Reef
Fish
Shareholders’ Alliances’s Motion for Summary Judgment (Doc. #71) be
granted. Plaintiffs Coastal Conservation Association and the Lewis
plaintiffs have filed Objections (Docs. ## 87, 91) to the Report
and
Recommendation,
to
which
the
Federal
Defendants
Intervenor Defendants filed Responses (Docs. ## 92, 93).
and
the
At the
Court’s request, doc. #94, Coastal Conservation Association filed
a Reply (Doc. #95) concerning the issue of standing.
I.
After conducting a careful and complete review of the findings
and recommendations, a district judge may accept, reject or modify
-2-
the magistrate judge’s report and recommendation.
28 U.S.C. §
636(b)(1); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir.
2010).
A district judge “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations
636(b)(1)(C).
to
which
objection
is
made.”
28
U.S.C.
§
See also United States v. Farias-Gonzalez, 556 F.3d
1181, 1184 n.1 (11th Cir. 2009).
This requires that the district
judge “give fresh consideration to those issues to which specific
objection has been made by a party.”
Jeffrey S. v. State Bd. of
Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990)(quoting H.R. 1609,
94th
Cong.,
§
2
(1976)).
The
district
judge
reviews
conclusions de novo, even in the absence of an objection.
legal
See
Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir.
1994).
II.
Plaintiffs challenge the Final Rule of the National Marine
Fisheries Service (NMFS) implementing Amendment 29 to the Fishery
Management Plan for the Reef Fish Resources of the Gulf of Mexico
(“Reef Fish FMP”).
74 Fed. Reg. 44,732 (Aug. 31, 2009)(to be
codified at 50 C.F.R. pt. 622).
Amendment 29 is mainly concerned
-3-
with the grouper2 and tilefish3 fisheries4, and establishes a system
of individual fishing quotas (IFQ)5 for the commercial sector6 of
the Reef Fish Fishery for the Gulf of Mexico Exclusive Economic
Zone (the Reef Fish Fishery).
Recreational fishing7 in the Reef
Fish Fishery is not included in the Amendment 29 IFQ system, and
therefore
Amendment
recreational
29
fishing.
does
The
not
limit
lengthy
or
otherwise
procedural
regulate
history
which
culminated in the adoption of Amendment 29 is accurately set forth
in the “Facts” section of the Report and Recommendation (doc. #85,
2
The Eleventh Circuit has noted that “[g]rouper is a delicious
fish indigenous to the waters of the Gulf of Mexico.”
United
States v. Coy, 19 F.3d 629, 631 n.2 (11th Cir. 1994).
3
The more modest description of tilefish is that it is
“commonly known as the ‘Clown of the Sea,’ is one of the most
colorful fishes in North American waters with a body that is
blue-green, yellow, rose, silver with golden spots and a yellow
mask around the eyes.” Hadaja, Inc. v. Evans, 263 F. Supp. 2d 346,
348 (D.R.I. 2003).
4
A “fishery” is “(A) one or more stocks of fish which can be
treated as a unit for purposes of conservation and management and
which are identified on the basis of geographical, scientific,
technical, recreational, and economic characteristics; and (B) any
fishing for such stocks.” 16 U.S.C. § 1802(13).
5
“The term ‘individual fishing quota’ means a Federal permit
under a limited access system to harvest a quantity of fish,
expressed by a unit or units representing a percentage of the total
allowable catch of a fishery that may be received or held for
exclusive use by a person.” 16 U.S.C. § 1802(23).
6
“Commercial fishing” means “fishing in which the fish
harvested, either in whole or in part, are intended to enter
commerce or enter commerce through sale, barter or trade.”
16
U.S.C. § 1802(4).
7
“Recreational fishing” is defined as fishing for sport or
pleasure. 16 U.S.C. § 1802(37).
-4-
pp. 3-11), and is fully adopted by the Court8.
Recommendation
Framework”,
also
accurately
including
the
Gulf
The Report and
summarizes
of
Mexico
the
Fishery
“Statutory
Management
Council, the Fishery Management Plan, and Limited Access Privilege
Programs
under
the
Magnuson–Stevens
Fishery
Conservation
and
Management Act (Magnuson-Stevens Act), the National Environmental
Policy Act (NEPA), the Regulatory Flexibility Act (RFA), and the
Administrative Procedures Act (APA).
(Doc. #85, pp. 11-18.)
The
Court fully adopts this section of the Report and Recommendation,
as well as the “Standard of Review” section set forth at pages 1820.
III.
A.
Standing of Coastal Conservation Association:
The Report and Recommendation found that Coastal Conservation
Association (CCA) has standing to proceed in this case (Doc. #85,
pp. 21-25).
No party filed a timely objection to this finding.
The Federal Defendants, in their Memorandum in Opposition to CCA’s
objections, concede they failed to file objections as to the
8
The Court would supplement the “Facts” section with the
following additional information from the Federal Defendants’
Memorandum: The Federal “Defendants published a proposed rule on
regulations implementing Amendment 29 on April 30, 2009. 74 Fed.
Reg. 20,134 (Apr. 30, 2009); AR 396 at 12353. The record before the
Court reflects that Bob Hayes submitted a comment concerning the
proposed rule on behalf of Plaintiff CCA. AR 402 at 12465. Among
other concerns, Mr. Hayes noted that ‘[t]here is no discussion on
the impact of the recreational fishery or any other commercial
fishery which might catch grouper incidentally.’ Id. at 12466.”
(Doc. #92, p. 4.)
-5-
standing finding, but argue for four pages that CCA lacks standing
(Doc. #92, pp. 6-109).
The Intervening Defendants do likewise.
(Doc. #93, pp. 3-7.)
The Court finds defendants’ lack of respect
for
with
and
compliance
the
court’s
procedures
noteworthy,
particularly in a case where part of the claims relate to the
Federal Defendants’ alleged prejudicial disregard for their own
procedural
correct
requirements.
that
standing
Nonetheless,
is
a
because
component
of
defendants
subject
are
matter
jurisdiction, Florida ex rel. Atty. Gen. v. U.S. Dep’t of Health &
Human Servs., 648 F.3d 1235 (11th Cir. 2011), and as such may be
raised at any time, Ouachita Watch League v. Jacobs, 463 F.3d 1163,
1170 (11th Cir. 2006)(considering standing issue raised for the
first time on appeal), the Court will consider the objections to
standing.
“Standing under Article III of the Constitution requires that
an injury be concrete, particularized, and actual or imminent;
fairly traceable to the challenged action; and redressable by a
favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 130 S. Ct.
2743, 2752 (2010)(citing Horne v. Flores, 557 U.S.
Ct. 2579, 2591-2592 (2009)).
,
, 129 S.
The fuller statement of the rule is
that
9
The page numbers referred to are those assigned by CM/ECF at
the upper right hand corner of the docketed document, not the page
numbers at the bottom of the page.
-6-
to satisfy Article III's standing requirements, a
plaintiff must show (1) it has suffered an “injury in
fact” that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2)
the injury is fairly traceable to the challenged action
of the defendant; and (3) it is likely, as opposed to
merely speculative, that the injury will be redressed by
a favorable decision. An association has standing to
bring suit on behalf of its members when its members
would otherwise have standing to sue in their own right,
the interests at stake are germane to the organization's
purpose, and neither the claim asserted nor the relief
requested requires the participation of individual
members in the lawsuit.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528
U.S. 167, 180-81 (2000).
“[W]hen the plaintiff is not himself the
object of the government action or inaction he challenges, standing
is
not
precluded,
but
it
difficult’ to establish.”
is
ordinarily
‘substantially
more
Summers v. Earth Island Inst., 555 U.S.
488, 129 S. Ct. 1142, 1149 (2009)(quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 562 (1992)). Standing is a threshold legal
issue, and at the summary judgment stage there must be specific
facts in the record, which for summary judgment purposes are taken
as
true,
which
establish
standing.
Alabama-Tombigbee
Rivers
Coalition v. Norton, 338 F.3d 1244, 1252 (11th Cir. 2003); Region
8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800,
806 (11th Cir. 1993).
(1) Injury in Fact:
The primary focus of defendants’ standing objections is that
CCA failed to establish an injury in fact.
The relevant showing
for Article III standing purposes “is not injury to the environment
-7-
but injury to the plaintiff.”
Friends of the Earth, Inc., 528 U.S.
at 181.
We have held that environmental plaintiffs adequately
allege injury in fact when they aver that they use the
affected area and are persons “for whom the aesthetic and
recreational values of the area will be lessened” by the
challenged activity. Sierra Club v. Morton, 405 U.S. 727,
735, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). See also
Defenders of Wildlife, 504 U.S. [555] at 562-563, 112 S.
Ct. 2130 (“Of course, the desire to use or observe an
animal species, even for purely esthetic purposes, is
undeniably a cognizable interest for purposes of
standing.”).
Id.
at
183.
“While
generalized
harm
to
the
forest
or
the
environment will not alone support standing, if that harm in fact
affects the recreational or even the mere esthetic interests of the
plaintiff, that will suffice.”
Summers, 129 S. Ct. at 1149.
Here, the injury in fact that CCA asserts is a procedural
injury only, i.e., the failure to comply with the obligations set
forth in Title 16, United States Code, Section 1853(a)(9).
(Doc.
#95, pp.
in a
3-6.)
“To
show
a
cognizable
injury
in
fact
procedural injury case, a plaintiff must allege that the agency
violated certain procedural rules, that these rules protect a
plaintiff’s concrete interests and that it is reasonably probable
that the challenged action will threaten these concrete interests.”
Ouachita Watch League, 463 F.3d at 1170 (citing Sierra Club v.
Johnson, 436 F.3d 1269, 1278-79 (11th Cir. 2006)).
“It is well
settled that, in a NEPA suit, ‘a cognizable procedural injury
exists when a plaintiff alleges that a proper EIS has not been
-8-
prepared.
.
.
when
the
plaintiff
also
alleges
a
‘concrete’
interest--such as an aesthetic or recreational interest--that is
threatened
by
the
proposed
actions.’”
Id.
at
1171
(quoting
Johnson).
The Court concludes that CCA meets the constitutional test for
injury in fact.
summary
It is not disputed that CCA has alleged and, for
judgment
standing
purposes
shown,
that
the
Federal
Defendants violated a procedural rule, i.e. failing to assess,
specify, and analyze the affect of Amendment 29 on recreational
fishing, as required by 16 U.S.C. § 1853(a)(9).
The record also establishes, without contradiction, that the
members of the CCA use the Reef Fish Fishery for recreational
fishing
purposes.
Amendment
recreational sector.
29
potentially
impacts
the
The Federal Defendants themselves note that
while Amendment 29 is “not directed at the recreational sector of
the Gulf reef fishery and as such do not present many potential
impacts to the recreational sector,” “to the extent that actions
contained in Amendment 29 do present potential impacts to the
recreational sector, those impacts are addressed in the FEIS, . .
.”
(Doc. #92, p. 4)(quoting AR 429 at 12830).
The potential
impacts addressed in the FEIS include economic losses for anglers
and for-hire vessels, and the social environmental impact on
communities.
The
(AR 436 at 13049-13051, 13053-13063, 13151-13153.)
recreational
fishing
interests
-9-
of
the
CCA
members
are
sufficient to establish a concrete interest that is affected by
Amendment 29.
specify and
The record also shows that the failure to assess,
analyze
the
potential
effect
of
Amendment
29
on
recreational fishing makes it reasonably probable that defendants’
interests will be harmed.
#66, p. 6.)
(Docs. #36, pp. 3-4; #87, pp. 17-18,
CCA has shown an injury-in-fact to proceed in this
case.
(2) Fairly Traceable (Causation):
Constitutional standing also requires that CCA establish that
the injury is fairly traceable to defendants’ action. To establish
causation, CCA must demonstrate only that it is reasonably probable
that the challenged actions will threaten its concrete interests.
Ouachita Watch League, 463 F.3d at 1172.
As with injury in fact,
the proper focus on causation is not harm to the environment but
harm to plaintiffs.
Id.
As the Court found above, CCA was harmed
when its procedural rights were violated (assumed to be true for
summary judgment standing purposes).
Since the Federal Defendants
failed to follow the requirements of Section 1853(a)(9) (according
to CCA), it is clear that the Federal Defendants caused CCA’s
alleged injury, and CCA has satisfied its burden as to causation.
Id.
(3) Redressability:
As to redressability, if the Court concludes that the Federal
Defendants failed to follow Section 1853(a)(9), it has the power to
-10-
order the agency to comply.
As the injury CCA asserts is the
Federal Defendants’ failure to comply with the statutory provision,
that injury is plainly redressable.
Ouachita Watch League, 463
F.3d at 1173.
(4) Additional Association Requirements:
An association has standing to bring suit on behalf of its
members if “(a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect are germane
to the organization's purpose; and (c) neither the claim asserted
nor the relief requested requires the participation of individual
members in the lawsuit.”
Hunt v. Wash. State Apple Adver. Comm'n,
432 U.S. 333, 343 (1977). Although no defendant has yet challenged
CCA’s standing for failure to satisfy any of these requirements,
the Court finds that CCA has in fact satisfied these requirements.
(See Doc. #1, ¶¶ 19, 20.)
Because defendants are incorrect on the merits, the Court
adopts the finding of the Report and Recommendation that CCA has
standing to proceed in this case.
B.
Coastal Conservation Association’s Objections:
“Standing to raise a claim is one thing, the merits of the
claim
is
another.”
Alabama-Tombigbee
Rivers
Coalition
Kempthorne, 477 F.3d 1250, 1264 (11th Cir. 2007).
reviews
objection
to
an
Report
-11-
and
Recommendation
v.
The Court
de
novo,
utilizing the substantive standard which provides in relevant part
that
[t]he reviewing court shall ... (2) hold unlawful and set
aside agency action, findings, and conclusions found to
be—(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (B) contrary to
constitutional right, power, privilege, or immunity; (C)
in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right; (D) without
observance of procedure required by law; . . . .
5 U.S.C. § 706(2)(A)-(D).
In its Objections, CCA seeks to set aside Amendment 29 because
it was an agency action which is “otherwise not in accordance with
law” within the meaning of 5 U.S.C. § 706(2)(A).
This is so, CCA
argues, because the federal agencies were required by the MagnusonStevens Act, 16 U.S.C. § 1853(a)(9), to “assess, specify, and
analyze the likely effects” of Amendment 29 on the recreational
sector of the Reef Fish Fishery, but failed to do so.
CCA argues
that the statutory obligation to “assess, specify, and analyze” all
components of the Reef Fish Fishery is undisputed by the Federal
Defendants (although not by Intervenor Defendants), so the case
hinges on whether the Federal Defendants in fact did so.
CCA then
argues that defendants incorrectly assert, and the Report and
Recommendation incorrectly found, that defendants had done so. CCA
asserts that defendants must analyze and explain why the effects
they identify are likely to occur, when in fact defendants and the
Report and Recommendation simply conflate mere description of the
past and present circumstances of the recreational sector without
-12-
actual analysis of the likely future effects of Amendment 29 on the
recreational fishing sector.
(Doc. #87.)
(1) Report and Recommendation’s Summary of CCA’s Argument:
The Report and Recommendation summarizes CCA’s challenges to
Amendment 29 as follows:
The Plaintiff, Coastal Conservation Association (Coastal
Conservation) argues that Amendment 29 was issued in
violation of the MSA because the Federal Defendants
failed to consider the effect of Amendment 29 on the
entire fishery; failed to consider its effect on the
recreational sector; failed to comply with National
Standards 1, 2, 8, and 9 of the MSA; and finally
Amendment 29 violated National Environmental Policy Act
(NEPA).
(Doc. #85, p. 21.)
CCA argues that this
. . . misses an important nuance. Amendment 29 violates
the Magnuson-Steven Act because Defendants were required
to assess Amendment 29's impact upon the entire fishery,
of which the recreational sector is a part. Defendants’
failure to consider impacts upon the entire fishery and
their failure to consider impacts upon the recreational
sector are one and the same because the recreational
sector is a party of the fishery.
(Doc. #87, p. 6)(emphasis in original).
The Court frankly sees no
nuance which was missed by the magistrate judge.10
If CCA’s
argument to the contrary is intended as an objection, it is
overruled.
10
Similarly, the Report and Recommendation later stated:
“Coastal Conservation bases its standing on the MSA’s requirement
that the agency assess and analyze the impact of the Amendment on
the entire fishery, which Coastal argues includes the recreational
sector. As such, Coastal reasons that the failure of the Federal
Defendants to analyze the effects of Amendment 29 on the
recreational sector is itself an injury in fact sufficient to give
it standing.” (Doc. #85, p. 23.)
-13-
(2)
§ 1853(a)(9) As Independent Basis to Challenge
Agency Action and As Binding Statutory Requirement:
The Court agrees with CCA (Doc. #87, p. 7) that the Report and
Recommendation
implicitly
recognized
that
Section
1853(a)(9)
provides an independent basis for CCA’s challenge to Amendment 29.
The Court also agrees with CCA that the Report and Recommendation
does
not
assert
that
CCA
must
prevail
on
one
of
challenges in order to set aside the agency action.
7.)
its
other
(Doc. #87, p.
A violation of Section 1853(a)(9) can be a free-standing and
legally sufficient basis to set aside agency action.
The Court agrees with the CCA (Doc. #87, pp. 4-7) that the
Federal Defendants were required to assess, specify, and analyze
the likely effects of Amendment 29 on the recreational fishing
sector. The pertinent portion of the Magnuson-Stevens Act provides
that a fishery management plan or amendment prepared by a Council
with respect to any fishery “shall”
include a fishery impact statement for the plan or
amendment (in the case of a plan or amendment thereto
submitted to or prepared by the Secretary after October
1, 1990) which shall assess, specify, and analyze the
likely effects, if any, including the cumulative
conservation, economic, and social impacts, of the
conservation and management measures on, and possible
mitigation measures for-(A) participants in the fisheries and fishing communities
affected by the plan or amendment;
(B) participants in the fisheries conducted in adjacent
areas under the authority of another Council, after
consultation with such Council and representatives of
those participants; and
-14-
(C) the safety of human life at sea, including whether
and to what extent such measures may affect the safety of
participants in the fishery; . . .
16 U.S.C. § 1853(a)(9).
As relevant here, this requires that an
amendment to a fishery management plan “include a fishery impact
statement” “which shall assess, specify, and analyze the likely
effects, if any,” on “participants in the fisheries and fishing
communities affected by the plan or amendment; . . .”
Recreational
fishing
is
a
recognized
and
statutorily
Id.
defined
activity, and such fishers are “participants in the fisheries”
“affected by the plan or amendment.”
do not contend otherwise.
Id.
The Federal Defendants
(Doc. #92, p. 12)(“As a threshold
matter, Defendants do not dispute that they were obligated to
‘assess, specify and analyze’ likely effects of Amendment 29 on all
segments of the Reef Fish fishery, including the recreational
sector, as provided in 16 U.S.C. § 1853(a)(9).”) The Court rejects
Intervening Defendants’ position that “Section 1853(a)(9) does not
mandate any analysis of the recreational sector, . . .”
(Doc. #93,
p. 10.)
(3) Federal Defendants’ Compliance with § 1853(a)(9):
The focus of CCA’s objections is that the administrative
record fails to support a finding that the Federal Defendants
complied with the statutory requirement to include a fishery impact
statement
which
assesses,
specifies,
and
analyzes
the
effects, if any, of Amendment 29 on recreational fishing.
-15-
likely
While a
reasonable reading of the Report and Recommendation would indicate
that the substance of this argument was necessarily rejected, CCA
is correct that the Report and Recommendation does not contain a
specifically identified section addressing 16 U.S.C. § 1853(a)(9).
Accordingly, in its place the Court’s de novo determination of this
issue is as follows.
CCA asserts that the Federal Defendants merely described the
current state of the recreational fishing sector, rather than
address the likely effects of Amendment 29, which it describes as
an entirely new regulatory framework which was “a seismic shift”
from the prior forms of regulations. (Doc. #87, p. 11.)
CCA
further argues that the Federal Defendants fail to point to record
evidence which establishes that they analyzed the likely effects of
Amendment 29 on the recreational fishing sector.
Finally, CCA
argues that the Federal Defendants are not entitled to deference in
this case because they simply relied upon conclusory statements
instead of the required analysis and assessment of the impact of
Amendment 29.
The Court agrees with both sides that CCA’s issue does not
involve statutory interpretation which calls for deference to the
agency’s construction of a statute under Chevron U.S.A. Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1984).
(Docs. #87, p. 18-19; #92, pp. 16-17.)
The Court further agrees
with the Federal Defendants, however, that the case does involve
-16-
special scientific and technical expertise by the agencies.
While
assessing fishing regulations for grouper and tilefish may not have
the consequences of assessing the long-term effects of nuclear
waste storage, the Court does find the statement in Baltimore Gas
& Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87 (1983)
persuasive: “[A] reviewing court must remember that the Commission
is making predictions, within its area of special expertise, at the
frontiers of science. When examining this kind of scientific
determination, as opposed to simple findings of fact, a reviewing
court must generally be at its most deferential.” Id. at 103
(citation omitted).
Thus, in cases where the substance of the
decision is at issue, a court gives deference to a final agency
decision.
Sierra Club v. Johnson, 436 F.3d at 1273.
In this case,
however, the issue is not whether the substantive decision is
correct, but whether the Federal Defendants followed the proper
procedures in reaching that decision.
The Federal Defendants and the Intervenor Defendants assert
that the Federal Defendants did in fact “assess, specify and
analyze
the
likely
effects,
recreational fishing sector.
if
any”
of
Amendment
29
on
the
The Federal Defendants point to the
Final Environmental Impact Statement (FEIS), which discusses the
recreational sector in several sections. Specifically, the Federal
Defendants state:
The Amendment 29 FEIS described in detail the number of
recreational participants in the fisheries, the number of
-17-
recreational fishing trips taken, and the amount of fish
that was annually harvested by recreational fishermen.
See AR 436 at 13049-13050. The FEIS also made note of the
primary gear types used by recreational fishermen and how
that gear could affect the grouper and tilefish habitat.
Id. at 13067. The potential impacts of past, current, and
reasonably foreseeable future actions on the recreational
sector were also discussed in the FEIS’s assessment of
the potential cumulative effects. Id. at 13151-13153,
13154.
The
FEIS also
explained
that
additional
information on the recreational sector was available in
five other documents incorporated by reference: Reef Fish
Amendment 27/Shrimp Amendment 14 (GMFMC 2007); Reef Fish
Amendment 25/Coastal Migratory Pelagics Amendment 17
(GMFMC 2005b); the 2005 recreational fishery grouper
regulatory amendment (GMFMC 2005c); Reef Fish Amendment
30A; and Reef Fish Amendment 30B. AR 436 at 13409. The
Amendment 29 FEIS concluded that “[t]his action is
largely socioeconomic and administrative in nature, and
would not directly affect the physical, biological, or
ecological environments.” Id. at 13067. As to potential
effects on the recreational sector in particular, the
FEIS stated that, “[s]ince this amendment is mainly
concerned with the grouper and tilefish commercial
fisheries, only a general summary of description of [sic]
the recreational sector is presented.” Id. The final rule
also addressed comments that Federal Defendants had
failed to consider potential effects on the recreational
sector. AR 429 at 12830 (stating in response to public
comments that “[a]ctions contained in Amendment 29 are
not directed at the recreational sector of the Gulf reef
fish fishery and as such do not present many potential
impacts to the recreational sector”).
(Doc. #92, pp. 12-13.)
In addition to this, the Intervenor
Defendants point to the conclusion that Amendment 29 does “not
present many potential impacts to the recreational sector” as being
supported
amendments’
by
the
failure
Federal
to
Defendants’
change
the
consideration
total
catch
limit
of
the
or
the
allocation of that catch limit between commercial and recreational
-18-
sectors,
and
the
pre-existing
recreational fishery.
regulations
governing
the
(Doc. #93, p. 11.)
The issue before the Court in the Section 1853(a)(9) challenge
by CCA is not whether the conclusions on how Amendment 29 will
likely affect the recreational fishing sector are correct. Rather,
the issue is whether the Federal Defendants arrived at the answer
only after complying with the obligation to assess, specific, and
analyze how Amendment 29 would likely affect the recreational
fishing sector.
that
the
The Court concludes, as did the magistrate judge,
record
establishes
that
the
Federal
Defendants
sufficiently assessed, specified, and analyzed the likely impact of
Amendment 29 on the recreational fishing sector.
(See, e.g., Doc.
#73-1, AR at 11684-11685, 11801-11803; AR 436 at 13154, 13197.)
(4) Other Objections:
CCA’s statement that it “does not intend to concede any of its
arguments” as to the other challenges (Doc. #87, p. 7 n.6) cannot
reasonably
be
construed
as
an
objection
because
it
does not
“specifically identify the portions of the proposed findings and
recommendation to which objection is made and the specific basis
for objection.”
1989).
Heath v. Jones, 863 F.2d 815, 822 (11th Cir.
“It is critical that the objection be sufficiently
specific and not a general objection to the report.”
Prem, Inc.,
omitted).
208
F.
App’x
781,
784
(11th
Cir.
Macort v.
2006)(citation
To the extent this statement can be construed as a
-19-
meaningful objection, it is overruled.
Those portions of the
Report and Recommendation addressing CCA’s other challenges are
adopted by the Court.
C.
Lewis Plaintiffs:
The Lewis plaintiffs have also filed Objections to the Report
and Recommendation (Doc. #91).
Their objections are as follows:
(1) The Report and Recommendation failed to correctly evaluate the
plain language and purpose of 16 U.S.C. § 1853a(c)(6)(D)(i), failed
to properly apply the two-part test in Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984), and
therefore improperly failed to declare the Federal Defendants’
“substantially fished” voter-eligibility criteria to be illegal
(Doc. #91, pp. 6-11); (2) the Report and Recommendation erred in
failing to find the Federal Defendants’ construction of 16 U.S.C.
§
1853a(c)(6)(D)(i)
to
be
impermissible
and
arbitrary
and
capricious by misapplying step two of the Chevron test (Doc. #91,
pp. 11-16); (3) the Report and Recommendation erred in finding that
Amendment 29 did not violate National Standard 9 and the NEPA
regarding “bycatch” (Doc. #91, pp. 17-23); and (4)
the Report and
Recommendation erred by failing to address plaintiffs’ arguments
that Amendment 29 does not comply with the statutory requirements
of 16 U.S.C. § 1853a(c)(5)(A) and (B) (Doc. #91, pp. 24-26).
-20-
(1) “Substantially Fished” Voter-Eligibility Criteria:
The Lewis plaintiffs argue that the Report and Recommendation
failed to correctly evaluate the plain language and purpose of 16
U.S.C. § 1853a(c)(6)(D)(i) and failed to properly apply the twopart Chevron test, and as a result improperly failed to declare
defendants’ “substantially fished” voter-eligibility criteria to be
illegal.
These plaintiffs further argue that the Report and
Recommendation
misapplied
step
two
of
the
Chevron
test,
and
erroneously failed to find the Federal Defendants’ construction of
16 U.S.C. § 1853a(c)(6)(D)(i) to be impermissible and arbitrary and
capricious.
A portion of the Magnuson-Stevens Act provides that “[i]n
developing a limited access privilege program to harvest fish a
Council or the Secretary shall - - . . . (E) authorize limited
access privileges to harvest fish to be held, acquired, used by, or
issued under the system to persons who substantially participate in
the fishery, including in a specific sector of such fishery, as
specified by the Council.” 16 U.S.C. § 1853a(c)(5)(E).
The Act
continues in pertinent part:
the . . . Gulf Councils may not submit, and the Secretary
may not approve or implement, a fishery management plan
or amendment that creates an individual fishing quota
program, including a Secretarial plan, unless such a
system, as ultimately developed, has been approved by .
. . a majority of those voting in the referendum among
eligible permit holders with respect to the Gulf Council.
For multispecies permits in the Gulf of Mexico, only
those participants who have substantially fished the
species proposed to be included in the individual fishing
-21-
quota program shall
referendum. . . .
be
eligible
16 U.S.C. § 1853a(c)(6)(D)(i).
to
vote
in
such
a
Neither the term “substantially
participate” nor “substantially fished” is defined in the statute.
Chevron “set up a two-step framework for evaluating whether a
court must defer to an agency’s construction of a statute it is
charged with administering. Deference from the court is due if (1)
Congress has not spoken directly on the precise question at issue
and its intent is unclear, and (2) the agency’s interpretation is
based on a permissible construction of the statute.”
In re MDL-
1824 Tri-State Water Rights Litig., 644 F.3d 1160, 1193 (11th Cir.
2011).
As to the first step, “[i]f the intent of Congress is
clear, that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed intent of
Congress.”
Chevron, 467 U.S. at 842–843. But “[w]hen. . . the
statute is silent or ambiguous with respect to the specific issue,
the question for the court is whether the agency’s answer is based
on a permissible construction of the statute.”
Quinchia v. United
States Att’y Gen., 552 F.3d 1255, 1258 (11th Cir. 2008)(quoting
Chevron, 467 U.S. at 842-843).
The Court agrees with the Report and Recommendation that the
term “substantially fished” is not defined by statute, and finds
that the intent of Congress as to its meaning is not clear.
The
Court has found no other statute utilizing the term “substantially
fished”, and no statute has been identified by any party.
-22-
The
Court rejects plaintiffs argument that a plain reading of the
statute itself provides a sufficient definition or evidence of
Congressional intent.
The Report and Recommendation correctly
proceeded to the second Chevron step.
The procedures and guidelines for the statutorily required
referenda,
including
voter
eligibility,
regulation, 50 C.F.R. § 600.1310.
are
set
by
As to voter eligibility, the
regulation provided:
(c) Referenda voter eligibility-(1) Permit holders and other fishery participants.
(i) To be eligible to vote in IFQ referenda,
permit holders and other fishery participants
must meet voter eligibility criteria.
(ii) Holders of multispecies permits in the
Gulf of Mexico must have substantially fished
the species proposed to be included in the IFQ
program to be eligible to vote in a referendum
on the proposed program.
(iii) When developing eligibility criteria for
permit holders in an IFQ program referendum,
the relevant Council or Secretary must
consider, but is not limited to considering:
(A) The full range of entities
likely to be eligible to receive
initial quota allocation under the
proposed IFQ program;
(B) Current and historical harvest
and participation in the fishery;
and
(C)
Other
factors
as
may
be
determined by the Council with
jurisdiction over the fishery for
which an IFQ program is proposed to
-23-
forth
be relevant to the fishery and to
the proposed IFQ program.
50 C.F.R. § 600.1310(c)(1).
The “substantially fished” criterion
were set forth as follows:
When
developing
criteria
for
identifying
those
multispecies permit holders who have substantially fished
the species to be included in the IFQ program proposal,
the Council or Secretary must consider, but is not
limited to considering:
(i) Current and historical harvest and participation in
the fishery;
(ii) The economic value of and employment practices in
the fishery; and
(iii) Any other factors determined by the Council with
jurisdiction over the fishery for which an IFQ program is
proposed to be relevant to the fishery and the proposed
IFQ program.
50 C.F.R. § 600.1310(c)(3).
Additionally, the regulation provides
that “Council-recommended criteria under paragraph (c) of this
section
may
participation
include,
or
but
reliance
are
on
not
the
limited
fishery
as
to,
levels
of
represented
by
landings, sales, expenditures, or other considerations.” 50 C.F.R.
§ 600.1310(d).
The process by which the Federal Defendants arrived at the
definition
of
“substantially
fished”
as
to
Amendment
29
is
described in detail in the Report and Recommendation (Doc. #85, pp.
4-10, 42-44). The Federal Defendants determined that participants
were deemed to have “substantially fished” the reef if they landed
8,000 pounds of grouper and/or tilefish per permit within each of
-24-
the years between 1999 and 2004, with the ability to drop one year
if it fell below the 8,000 pound limit. (AR 279 at 10924.)
This
criteria allowed thirty-one percent of the reef fish permit holders
to vote, but they accounted for approximately ninety percent of the
annual harvest.
After full consideration of the matters raised in
the objections by the Lewis plaintiffs, the Court concludes that
the Report and Recommendation did not err in any of the respects
argued.
The Report and Recommendation did not fail to correctly
evaluate the plain language of the statute, and did not err in its
application of the Chevron test to the facts of this case.
While
the definition of “substantially fished” could have been different,
it is clearly not arbitrary or capricious.
(2) “Bycatch” and Bycatch Mortality:
The Lewis plaintiffs argue that the Report and Recommendation
erred in
finding
that Amendment
29
did
Standard 9 and the NEPA regarding bycatch.
not
violate
National
They argue that the
Federal Defendants never assessed and analyzed whether the supposed
bycatch reduction benefits would in fact minimize bycatch and
bycatch mortality and failed to adequately address turtles.
(Doc.
#91, pp. 17-23.)
“Bycatch” is defined as the “fish which are harvested in a
fishery, but which are not sold or kept for personal use, and
includes economic and regulatory discards.”
16 U.S.C. § 1802(2).
In 1996, Congress responded to environmental concerns about bycatch
-25-
by amending its formal statement of policy in the Magnuson-Stevens
Act, stating congressional intent to “encourage[ ] development of
practical measures that minimize bycatch and avoid unnecessary
waste of fish”.
16 U.S.C. § 1801(c)(3).
National Standard 9
provides that
Any fishery management plan prepared, and any regulation
promulgated to implement any such plan, pursuant to this
subchapter shall be consistent with the following
national
standards
for
fishery
conservation
and
management: . . . (9) Conservation and management
measures shall, to the extent practicable, (A) minimize
bycatch and (B) to the extent bycatch cannot be avoided,
minimize the mortality of such bycatch.
16 U.S.C. § 1851(a)(9).
The Report and Recommendation addressed
both issues raised by the Lewis plaintiffs.
The Magistrate Judge
found that changes in classifications of grouper species will
reduce bycatch discards, and also found that allowing permit
holders to exceed their allocation will prevent discard of overages
and reduce
bycatch.
The
Magistrate
Judge
found
the
Federal
Defendants addressed the issue and established that bycatch would
be reduced under Amendment 29.
As to the sea turtles, the
Magistrate Judge found that the Federal Defendants did take a “hard
look” and considered the bycatch impact on sea turtles.
In fact,
beyond what was required, Amendment 31 was developed based upon the
greater impact of commercial longlines on the fishery.
pp. 53-56, 61-64.)
(Doc. #85,
The Court agrees and overrules this objection.
-26-
(3) Failure to Address Certain Arguments:
Plaintiff argues that the Report and Recommendation erred by
failing to address plaintiffs’ arguments that Amendment 29 did not
comply
with
the
statutory
requirements
of
16
U.S.C.
§
1853a(c)(5)(A) and (B) to establish procedures regarding initial
allocations.
(Doc. #91, pp. 24-26.)
The Court disagrees.
The
Motion and Memorandum of Law in Support of Summary Judgment for the
Plaintiffs Lewis and Fussell (Doc. #63) failed to even cite these
subsections of the statute in its argument.
Therefore, this
objection is overruled.
Accordingly, it is now
ORDERED:
1.
The Report and Recommendation Doc. #85) is adopted as
supplemented herein.
2.
The Motion for Summary Judgment For The Plaintiffs Lewis
and Fussell (Doc. #61) is DENIED.
3.
The Motion for Summary Judgment (Doc. #64) for Plaintiff
Coastal Conservation Association is DENIED.
4.
The Federal Defendants’ Cross Motion for Summary Judgment
(Doc. #68) on behalf of Defendants Rebecca M. Blank, in her
official
capacity
Department
of
as
Acting
Commerce,
the
Secretary
National
of
the
Oceanic
United
and
States
Atmospheric
Administration, and The National Marine Fisheries Services, is
-27-
GRANTED.
Judgment on all claims shall be entered in favor of the
Federal Defendants in both cases.
5. The Cross Motion for Summary Judgment (Doc. #71) on behalf
of Intervenor-Defendants the Environmental Defense Fund and the
Gulf of Mexico Reef Fish Shareholders’ Alliances is GRANTED to the
extent that judgment on all claims shall be entered in favor of the
Federal Defendants.
6.
The Clerk of the Court shall enter judgment accordingly
and close the file.
DONE AND ORDERED at Fort Myers, Florida, this
September, 2011.
Copies:
Hon. Sheri Polster Chappell
Counsel of record
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29th
day of
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