Coastal Conservation Association et al v. U.S. Department of Commerce

Filing 72

ORDER AND REASONS denying Plaintiffs' 35 Motion for Summary Judgment; granting Defendants' 42 Motion for Summary Judgment; granting Intervenor Defendant's 45 Motion for Summary Judgment, for reasons set forth in document. Signed by Judge Jane Triche Milazzo. (ecm)

.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

COASTAL CONSERVATION
ASSOCIATION, ET AL

CIVIL ACTION

VERSUS

NO: 15-1300

UNITED STATES DEPARTMENT
OF COMMERCE, ET AL

SECTION: “H”(3)

ORDER AND REASONS
Before the Court are a Motion for Summary Judgment filed by Plaintiffs
(Doc. 35), a Motion for Summary Judgment filed by Defendants (Doc. 42), and
a Motion for Summary Judgment filed by Intervenor Defendant (Doc. 45). For
the following reasons, Plaintiffs’ Motion is DENIED, and Defendant and
Intervenor Defendant’s Motions are GRANTED.
STATUTORY FRAMEWORK
Before addressing the merits of these motions, a brief background of the
statutory scheme governing this dispute is helpful. This dispute centers on the
management of the red snapper fishery in the Gulf of Mexico. This fishery,
1

along with fisheries nationwide, is regulated pursuant to the MagnusonStevens Act (the “MSA”). The MSA was passed by Congress in 1976 for the
purpose of, inter alia, conserving and managing fishery resources nationwide.1
To accomplish this goal, the MSA established eight Regional Fishery
Management Councils, each tasked with preparing Fishery Management
Plans (“FMPs”) to address conservation and management of fisheries under
their control.2 The Councils are empowered to draft FMPs that are “necessary
and appropriate for the conservation and management of the fishery, to
prevent overfishing and rebuild overfished stocks, and to protect, restore, and
promote the long-term health and stability of the fishery.”3 The Gulf Council
is one such regional council, with authority to manage fisheries in the federal
waters of the Gulf of Mexico off the coasts of Texas, Louisiana, Mississippi,
Alabama, and Florida.
The Act requires the Councils to form their fishery management plans
through a process of notice-and-comment rulemaking. FMPs are proposed by
the Regional Councils, with final regulations promulgated by the Secretary of
Commerce through the National Marine Fisheries Service (“NMFS”). 4 The
Secretary and the NMFS have limited discretion in choosing to adopt or reject
FMPs approved by the Regional Councils; however, the decisions of the
16 U.S.C. § 1801(b)(1).
Id. at § 1852(h)(1).
3 Id. at § 1853(a)(1)(A).
4 See Campanale & Sons, Inc. v. Evans, 311 F.3d 109, 111 (1st Cir. 2002). The
NMFS is a division of the National Oceanic and Atmospheric Administration (“NOAA”),
which is in turn a division of the Department of Commerce.
1
2

2

Councils are without regulatory effect until the NMFS acts.5

Once the

Secretary, through the NMFS, reviews the plans and publishes the final
regulations in the Federal Register, they have the full force of law.6
Any Fishery Management Plan (“FMP”) must be consistent with ten
National Standards, codified at 16 U.S.C. § 1851(a). Three of these standards
are relevant to the instant litigation:
(2) Conservation and management measures shall be based
upon the best scientific information available.
(4) Conservation and management measures shall not
discriminate between residents of different States. If it becomes
necessary to allocate or assign fishing privileges among various
United States fishermen, such allocation shall be (A) fair and
equitable to all such fishermen; (B) reasonably calculated to
promote conservation; and (C) carried out in such manner that no
particular individual, corporation, or other entity acquires an
excessive share of such privileges.
(8) Conservation and management measures shall,
consistent with the conservation requirements of this chapter
(including the prevention of overfishing and rebuilding of
overfished stocks), take into account the importance of fishery
resources to fishing communities by utilizing economic and social
data that meet the requirements of paragraph (2),7 in order to (A)
provide for the sustained participation of such communities, and
(B) to the extent practicable, minimize adverse economic impacts
on such communities.

16 U.S.C. § 1854.
Id.
7 National Standard 2 requires that all “[c]onservation and management measures
shall be based upon the best scientific information available.” 16 U.S.C. § 1851(a)(2).
5
6

3

In addition to the National Standards, the management of Gulf of Mexico
red snapper is addressed specifically in section 407 of the Act. This section
requires that any FMP for the red snapper fishery adopted by the Gulf Council
must “establish separate quotas for recreational fishing (which, for the
purposes of this subsection shall include charter fishing) and commercial
fishing that, when reached, result in a prohibition on the retention of fish
caught during recreational fishing and commercial fishing, respectively, for the
remainder of the fishing year.”8
FACTUAL BACKGROUND
Plaintiffs object to Defendants’ enactment of Amendment 40 to the Gulf
of Mexico Fishery Management Council’s Reef Fish Fishery Management Plan
and the associated Rule setting fishing quotas and seasons for 2015–2017.
Plaintiffs include the Coastal Conservation Association (“CCA”)9 and three of
its members: Charles Caplinger, Adam Guillary, and George Huye.
Defendants include the United States Department of Commerce, the National
Oceanic and Atmospheric Administration, and the National Marine Fisheries
Service (the “Federal Defendants”). The Charter Fisherman’s Association, an
organization of charter-for-hire businesses, intervened as a defendant in this
matter.

16 U.S.C. § 1883.
Coastal Conservation is a non-profit national association of recreational anglers
with 120,000 members in 17 states.
8
9

4

The Gulf Council has managed the red snapper fishery for more than
three decades.

Throughout that period, the Council and the NMFS have

directed their efforts toward rebuilding the fishery through the use of various
management methods. Prior to 1997, the recreational red snapper season was
open year-round in federal waters. The NMFS subsequently implemented an
in-season monitoring and closure process within the recreational sector to
conform landings to quotas established under rebuilding targets then in effect.
From 2000 to 2007, due to a regulatory amendment replacing the system of inseason monitoring and closure projections with a fixed season based on a
preseason projection of when the recreation quota would be reached, the
recreational season remained open for 194 days. Following the adoption of a
revised rebuilding plan, the 2008 season marked the beginning of a pattern of
markedly shortened recreational red snapper seasons. This rebuilding effort
has been complicated by state seasons that are much longer and have higher
bag limits than their federal counterpart.

As a further component of

management efforts, federal for-hire permits have been under a moratorium
since 2004, and federal permit holders have been prohibited since 2009 from
fishing in state waters when federal waters are closed. Despite these efforts,
the total snapper catch exceeded the recreational quota each year except
2010.10
Amendment 40 comes as an attempt to reign in the consistent overages
in the recreational sector by providing for increased flexibility in the
10

AR Doc. 230.

5

management of the sector.

It divides the recreational sector into two

components: a federal for hire component comprised of charter fisherman
holding federal permits and a private angling component, which includes
private anglers and state-licensed charter fishermen.11 The final rule allocates
the recreational red snapper quota between the two components and provides
for separate season closures for the two components.12 It allocates 42.3 percent
of the recreational quota to federally licensed charter fishermen and 57.7 to
the remaining recreational fishermen.13
CCA asserts that its members will be harmed by Amendment 40 because
it will reduce the maximum quantity of red snapper that individual
recreational fisherman can catch. Plaintiffs, the Federal Defendants, and the
Intervenor-Defendants have each filed Motions for Summary Judgment in this
matter.
LEGAL STANDARD
Under the Magnuson-Stevens Act, regulations promulgated by Secretary
of Commerce under the MSA are only subject to judicial review on specific
grounds set forth in the Administrative Procedures Act (“APA”).14 The APA
states, in pertinent part:

11

Amendment 40, 80 Fed Reg. 22422 (April 22, 2015) (to be codified at 50 C.F.R. pt.

622).
Id.
Id.
14 16 U.S.C. § 1855(f)(1).
12
13

6

To the extent necessary to decision and when presented, the
reviewing court shall decide all relevant questions of law, interpret
constitutional and statutory provisions, and determine the
meaning or applicability of the terms of an agency action. The
reviewing court shall-(1) compel agency action unlawfully withheld or unreasonably
delayed; and
(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;15
The Fifth Circuit has mirrored this language, finding that courts should only
overturn rules pursuant to the APA if agency action “is arbitrary, capricious,
and abuse of discretion, not in accordance with law, or unsupported by
substantial evidence on the record taken as a whole.”16
The Court must also be mindful of the two-step process of judicial review
of agency action outlined in Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc.17

Pursuant to Chevron, a court reviewing an agency’s

construction of a statue must first ask “whether Congress has directly spoken
to the precise question at issue.”18 If Congressional intent is clear, “that is the
15
16

5 U.S.C. § 706.
Buffalo Marine Services, Inc. v. U.S., 663 F.3d 750, 753 (5th Cir. 2011) (citations

omitted).
17
18

467 U.S. 837 (1984).
Id. at 842.

7

end of the matter.”19 If, however, the statute is silent or ambiguous with regard
to the specific issue, the question then becomes whether agency action is “based
on a permissible construction of the statute.”20 “If Congress has explicitly left
a gap for the agency to fill, there is an express delegation of authority to the
agency to elucidate a specific provision of the statute by regulation. Such
legislative regulations are given controlling weight unless they are arbitrary,
capricious, or manifestly contrary to the statute.”21 Indeed, the Court cannot
substitute its own construction of a statutory provision for a reasonable
interpretation made by the administrator of an agency.”22
LAW AND ANALYSIS
Plaintiffs make four arguments in support of their contention that this
Court should invalidate Amendment 40.

First, they argue that the MSA

prohibits the Gulf Council from regulating charter/headboat fishing separately
from other recreational fishermen. Second, they argue that the Gulf Council
and the NMFS failed to adequately “assess, specify, and analyze” the likely
economic and social effects of Amendment 40.

Third, they argue that

Amendment 40 makes an unfair and inequitable allocation of fishery resources
in violation of National Standard 4. Finally, they argue that Amendment 40
makes an improper delegation of the Council’s authority by authorizing the

Id. at 843.
Id. at 843–44.
21 Id.
22 Id. at 844.
19
20

8

NMFS staff to set final allocation levels. The Court will address each of these
arguments in turn.
I. Amendment 40 Does Not Violate the Act by Regulating
Charter/Headboat Fishermen Separately From the Remainder of the
Recreational Sector.
As previously noted, Gulf red snapper are specifically addressed in the
MSA. It states, in relevant part, that the Gulf Council shall “establish separate
quotas for recreational fishing (which, for the purposes of this subsection shall
include charter fishing) and commercial fishing that, when reached, result in
a prohibition on the retention of fish caught during recreational fishing and
commercial fishing, respectively, for the remainder of the fishing year.” 23
Plaintiffs’ argue that this specific language precludes further separation of the
enumerated red snapper sectors. They aver that Amendment 40, by separating
the federal for-hire sector from the remainder of the recreational sector, in
effect impermissibly creates three sectors.
In support of their argument, Plaintiffs rely on two principles of
statutory construction: expressio unius est exclusio alterius (the expression of
one thing implies the exclusion of another) and the principle that a specific
statute controls over a more general statute. Because Congress has dictated
that red snapper must be divided into sectors for recreation and commercial
fishing, Plaintiffs assert that the Gulf Council and the NMFS are precluded
from establishing a third quota for federal charter fishermen. They argue that
23

16 U.S.C. § 1883(d).

9

the decision to separate the recreational sector into two components is not
entitled to deference under the Chevron standard because Congress has
directly spoken to the question at issue. They further assert that the reference
to the federal for-hire and recreational quotas as “components” of the overall
recreational “sector” is naught more than semantics designed to mask the fact
that they have impermissibly created a third sector.
Defendants’ Motion argues that Amendment 40 is consistent with the
MSA because it “does not alter the existing, overall recreational quota that,
when reached, results in a prohibition on the retention of fish caught for the
remainder of the fishing year.” They argue that the division of the recreational
sector into a federal for-hire component and a private angling component is
merely a method to help insure that the recreational fishermen remain within
their quota, and note that once the total recreational quota is reached all
recreational harvest of red snapper in federal waters will be prohibited
regardless of whether one component has remaining allocation. They note that
the statute does not prohibit the establishment of sub-quotas, nor does it
dictate the methods the NMFS may employ to ensure that the sectors remain
within their quotas. They argue that Amendment 40 is within the broad
discretion of the Council and the Secretary to “establish specified limitations
which are necessary and appropriate for the conservation and management of
the fishery . . . .”24 Intervenors join in these arguments.

24

16 U.S.C. § 1853(b)(3).

10

The Court is bound to apply the Chevron standard in resolving this
dispute. First, the Court must look to whether Congress has directly spoken
to the issue at hand.25 Plaintiffs vehemently argue that the Acts language
dictating that there be separate quotas for recreational (which shall include
charter) and commercial fisherman serves as a ban on further subdivision of
the recreational quota. This Court disagrees. Although Section 407 of the Act
dictates that the recreational sector “shall include charter fishing,” it does not
impose a facial prohibition on further subdivision of the recreational sector via
the imposition of sub-quotas. Indeed, the MSA directs the Council to enact
FMP measures that it deems “necessary and appropriate for the conservation
and management of the fishery.”26 This empowering language represents a
delegation of authority to the agency. Amendment 40 “does not change the fact
that there is a total recreation quota or the requirement that the recreational
sector be closed when that total quota is reached.”27 The final rule is clear that
“if NMFS determines that the Gulf-wide recreational quota has been met, all
recreational harvest of red snapper in the EEZ will be prohibited regardless of
whether one component has remaining allocation.”28 Thus, despite Plaintiffs’
arguments, it is apparent that there is a distinction between granting the
federal for-hire fishermen their own, independently managed quota and the
sub-quota system as established by Amendment 40. Whether the sub-quota is

Chevron, 467 U.S. at 842.
16 U.S.C. § 1853 (a)(1)(A).
27 80 Fed. Reg. at 22427.
28 Id.
25
26

11

referred to as a “component” or a “sector” is of no moment to the practical
consequences of the rule. Absent a facial prohibition, the Court must look to
the second prong of the Chevron analysis.
The second prong of the Chevron analysis requires the Court to consider
whether the action taken by the agency is based on a permissible construction
of the statute. Where, as here, Congress has specifically delegated to the
agency the authority to promulgate regulations, agency actions may be
overturned only if “they are arbitrary, capricious, or manifestly contrary to the
statute.”29 The Court’s review is confined to this stringent standard. It may
not make policy decisions or substitute its judgment for the informed judgment
of the agency.30
The Court cannot find that Amendment 40 is an arbitrary and capricious
exercise of regulatory authority.

FMPs routinely set different sub-quotas

based on various factors, and other courts have found this to be an appropriate
exercise of authority under the Act.31 The Council has determined, after much
study and comments from the public, that this division will aid in efficient
management of the recreational sector.32 The Federal Defendants’ have clearly
identified a rational basis for their decision to subdivide the recreational quota:

Chevron, 467 U.S. at 844.
Id. at 843–44.
31 See, e.g., Ctr. For Biological Diversity v. Blank, 933 F. Supp. 2d 125, 133 (D.D.C.
2013) (upholding temporal, geographic, and size-based sub-quotas for the Atlantic Bluefin
tuna quota); Ocean Conservancy v. Evans, 260 F. Supp. 2d 1162, 1179 (M.D. Fla. 2003)
(establishing sub-quotas within the commercial shark fishing quota according to species).
32 See AR Doc. 230.
29
30

12

improved management of the recreational sector. Plaintiffs have failed to point
to facts established in the administrative record indicating that this decision
is arbitrary and capricious. Under Chevron and the APA, this decision is
entitled to the deference of this Court, and Defendants are entitled to summary
judgment in their favor on this claim.
II.

The Gulf Council and NMFS Did Not Violate 16 U.S.C. §

1853(a)(9) and National Standard 8 by Failing to Assess, Specify, and
Analyze the Likely Economic and Social Effects of Amendment 40
Plaintiffs next argue that Amendment 40 fails to comply with both
National Standard 8 and 16 U.S.C. § 1853(a)(9). National Standard 8 requires
the NMFS to “take into account the importance of fishery resources to fishing
communities by utilizing economic and social data,” while 16 U.S.C. §
1853(a)(9) imparts a duty to “assess, specify, and analyze” the likely economic
and social effects of a management plan or amendment, and include these
findings in a Fishery Impact Statement (“FIS”). The national standards
specifically indicate that “conservation and management measures shall be
based upon the best scientific information available.”33 Plaintiffs assert that
16 U.S.C. § 1853(a)(9) imposes a more powerful affirmative duty to collect and
generate data on economic and social effects; however, they cite no law in
support of this interpretation. In pertinent part, this statute states that each
proposed amendment shall:

33

16 U.S.C. § 1851(a)(2).

13

include a fishery impact statement for the plan or
amendment . . . 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
(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;34
Courts have previously held that the requirements of 16 U.S.C. §
1853(a)(9) are “procedural, not substantive.”35 With regard to compliance with
the National Standards, Courts have noted that the analysis of alternatives is
subject to a rule of reason, as study could go on forever. 36 “By requiring that
decisions be based on the best scientific information available, the Act
acknowledges that such information may not be exact or totally complete.”37
“About the best a court can do is to ask whether the Secretary has examined
the impacts of, and alternative to, the plan he ultimately adopts and whether
a challenged failure to carry the analysis further is clearly unreasonable.” 38
16 U.S.C. § 1853.
City of New Bedford v. Locke, No. 10-10789-RWZ, 2011 WL 2636863, at *6 (D.
Mass. June 30, 2011) aff'd sub nom. Lovgren v. Locke, 701 F.3d 5 (1st Cir. 2012).
36 Little Bay Lobster Co., Inc. v. Evans, 352 F.3d 462, 470 (1st Cir. 2003).
37 Parravano v. Babbitt, 837 F. Supp. 1034, 1046 (N.D. Cal. 1993) aff'd, 70 F.3d 539
(9th Cir. 1995).
38 Little Bay Lobster Co., Inc., 352 F.3d at 470.
34
35

14

“Absent some indication that superior or contrary data was available and that
the agency ignored such information, a challenge to the agency's collection of
and reliance on scientific information will fail.”39
Defendants assert that they “undertook a qualitative analysis based on
the best scientific information available.” Indeed, the final environmental
impact statement includes a FIS as required by 16 U.S.C. § 1853(a)(9).40 This
FIS outlines the available data and posits the economic and social effects of
Amendment 40.

Importantly, Plaintiffs cannot point to any superior or

contrary data in support of their arguments. This fact points strongly in favor
of a judgment in favor of Defendants on this argument. Plaintiffs cite to only
one case where a court found that the Secretary’s analysis did not comply with
National Standard 8.41 In that case, however, plaintiffs could point to specific,
extant data that the Secretary ignored in analyzing the economic impacts of
proposed agency actions.42 Here, Plaintiffs have pointed to no such data.
The Final Environmental Impact Statement at issue includes
substantial background data on the red snapper fishery, including historic
landings by state, licensure by state, and poverty rates by county.43 The
Council also endeavored to gather input from Gulf Cost communities through

39

N. Carolina Fisheries Ass'n, Inc. v. Gutierrez, 518 F. Supp. 2d 62, 85 (D.D.C.

40

AR Doc. 230 at 16351–56.
North Carolina Fisheries Ass’n, Inc., v. Daley, 27 F. Supp. 2d 650, 661 (E.D. Va.

2007).
41

1998).
42
43

Id.
AR Doc. 230.

15

eight public hearings.44 After looking at this data, the Council gave its analysis
on the conservation, economic, and social impacts of the Amendment, as
required by law. As to conservation, the Council found that the fishery would
likely experience a reduction in discard mortality and a lower probability of
overfishing.45 As to economic effects, the Council found that sector separation
would likely result in “a more predictable season length, better business
planning, and improvements to the economic performance of for-hire
businesses.”46 It further found that sector separation would provide increased
management flexibility to implement measures designed to increase the
economic benefits to each component.47 Finally, with regard to social effects,
the NMFS stated that Amendment 40 would likely halt the decline in the
proportion of landings from federally permitted for-hire vessels.48 The NMFS
also noted the smaller quota allocated to recreational fishermen is offset by the
fact that these individuals can, due to lengthy state seasons, pursue snapper
fishing opportunities in state waters while federal waters are closed to them.
The federal for-hire sector may not take advantage of state fishing
opportunities. Though these analyses are somewhat brief, the Court cannot,
based on the deferential standard outlined in Chevron, substitute its own

AR Doc. 230.
AR Doc. 230 at 16289
46 AR Doc. 230 at 16290.
47 AR Doc. 230 at 16290.
48 AR Doc. 230 at 16291.
44
45

16

judgment for that of the agency.49 Accordingly, Defendants and Intervenors
are entitled to judgment in their favor on this claim.
III. Amendment 40 Does Not Make an Unfair and Inequitable
Allocation of Fishery resources in Violation of National Standard 4 by
Favoring

Federally

Licensed

Charter/Headboats

Over

Other

Recreational Fishing Interests Without Comparing the Relative
Harms and Benefits of the Decision
Plaintiffs next argue that Amendment 40 violates National Standard 4
by dividing the recreational sector into separate components without
measuring the impacts of the allocation on the affected groups. National
Standard 4 provides:
(4) Conservation and management measures shall not
discriminate between residents of different States. If it becomes
necessary to allocate or assign fishing privileges among various
United States fishermen, such allocation shall be (A) fair and
equitable to all such fishermen; (B) reasonably calculated to
promote conservation; and (C) carried out in such manner that no
particular individual, corporation, or other entity acquires an
excessive share of such privileges.50
Plaintiffs argue that Amendment 40 violates this standard for three reasons.
First, they argue that Amendment 40 is impermissible because it discriminates
against recreational anglers without the requisite finding that the hardship to
this group is outweighed by the total benefit to the red snapper fishery.

49
50

See Chevron, 467 U.S. at 844.
16 U.S.C. § 1851.

17

Second, they argue that Amendment 40 is unlawful because it has the effect of
discriminating between residents of different states. Finally, they argue that
the decision to average 2006–2013 catch numbers with 1986–2013 numbers in
deciding the quota allocations was arbitrary and capricious. The Court will
address each of these arguments in turn.
A. Discrimination Against Private Anglers
Plaintiffs first argue that Amendment 40 impermissibly discriminates
against recreational anglers without the requisite finding that the hardship to
this group is outweighed by the total benefit to the red snapper fishery. Under
applicable guidelines, the NMFS may make an allocation that imposes
hardship on one group if that hardship is “outweighed by the total benefits
received by another group or groups.”51 Furthermore, “[a]n allocation need not
preserve the status quo in the fishery to qualify as ‘fair and equitable,’ if a
restructuring of fishing privileges would maximize overall benefits.”52
“[National Standard] 4's advisory guidelines provide that an allocation is ‘fair
and equitable’ where it is ‘justified in terms of the objectives of the FMP’ and
serves to ‘maximize overall benefits.’ An allocation that meets these
requirements is rarely deemed invalid.”53

51

50 C.F.R. § 600.325 (c)(3)(i)(B). See also Loggren v. Locke, 701 F.3d 5, 35 (1st Cir.

2012.).
Id.
Lovgren v. Locke, 701 F.3d 5, 35 (1st Cir. 2012) (citing 50 C.F.R. §
600.325(c)(3)(i)(A)-(B)).
52
53

18

Defendants contend that Amendment 40 complies with National
Standard 4 in this respect.

Indeed, contrary to Plaintiffs’ assertions,

Defendants do make the finding that the allocation is fair and equitable to all
fishermen.54 The final rule states that NMFS “determined that the allocation
is fair and equitable because it reflects both historical changes in the
recreational sector as well as current conditions, and is expected to increase
the total benefits to the recreational sector.”55 It is apparent from the record
that the detriment suffered by private anglers in the reduction of their federal
season is offset by the fact that they may pursue snapper fishing opportunities
in state waters.56 As noted above, federally permitted for-hire fishermen are
prohibited from taking advantage of these opportunities. The Council also
found that sector separation allows for better management of the fishery by
stabilizing the federal for-hire component’s participation in the sector,
increasing access of anglers who do not own vessels, creating a base for further
management focused on maximizing opportunities for each component,
reducing discard mortality, and reducing the likelihood or quota overages in
the recreational sector.57 Accordingly, this Court cannot find that the decision
to allocate fish between the federal for-hire component and the private angling
component was arbitrary and capricious in this regard, as the Council has
provided a rational justification for its decision.

80 Fed Reg. at 22,425.
Id.
56 AR Doc. 230 at 16322.
57 80 Fed. Reg. at 22,425.
54
55

19

B. Amendment 40 Does Not Impermissibly Discriminate
Between Residents of Different States
Plaintiffs next argue that Amendment 40 is unlawful because it has the
effect of discriminating against residents of different states. This argument is
based primarily on the fact that charter fishermen holding federal for-hire
permits are unevenly distributed across the Gulf Coast. Therefore, they argue,
fishermen in states with fewer federally permitted charters are necessarily
disadvantaged by these provisions.
Plaintiffs assert that “discriminatory effects are prohibited just as much
as discriminatory intent.”

This contention is not, however, supported by

applicable guidelines and case law. The guidelines define an allocation as “a
direct and deliberate distribution of the opportunity to participate in a fishery
among identifiable, discrete user groups or individuals.”58 The guidelines
make clear that “only those measures that result in direct distributions of
fishing privileges will be judged against the allocation requirements of
Standard 4.”59 Here, the “discrimination” between residents of different states
complained of by Plaintiffs is merely incidental to the purpose and execution
of Amendment 40.

Amendment 40 makes no facial allocation between

residents of different states.60 Accordingly, because no state-based allocations
have been made, National Standard 4 is not implicated in this regard.

50 C.F.R. § 600.325 (c)(1). See also Little Bay Lobster Co., Inc. v. Evans 352 F.3d
462, 469 (1st Cir. 2003).
59 Id.
58

20

C. Selection of Data Range Used to Calculate Quotas Was
Not Arbitrary and Capricious
Plaintiffs finally contend that Defendants’ choice to base the quota
allocations on an average of the 2006–2013 catch numbers and the 1986–2013
numbers was arbitrary and capricious. As long as it justifies its decision, the
Council has discretion in selecting the appropriate data set upon which to base
an allocation.61 The record before the Court indicates that the Gulf Council
considered eight different allocation alternatives before making this decision. 62
The Council selected Alternative 7 as the preferred alternative “to balance the
history of the recreational sector with more current conditions.”63 The Council
determined that allocations based solely on more recent years “did not capture
changes that have occurred in the fishery, such as changes in regulations and
disruptive events such as hurricanes and oil spills that have affected how
recreational fishing is prosecuted.”64 The Council has, therefore, provided a
justification for its decision to include older data in making its allocations.
Plaintiffs fail to carry their burden to show that this decision was arbitrary
and capricious.
IV. The Gulf Council Did Not Unlawfully Abdicate Its DecisionMaking Authority By Approving Amendment 40 Without Setting Any
Allocation Levels and By Delegating That Task to NMFS Staff

Fisherman’s Finest, Inc. v. Locke, 593 F.3d 886, 897 (9th Cir. 2010).
AR Doc. 230 at 16317.
63 AR Doc. 230 at 16555.
64 80 Fed. Reg at 22,429.
61
62

21

In their final claim, Plaintiffs argue that the Gulf Council improperly
delegated its statutory authority to the NMFS staff by allowing the NMFS to
set final allocation percentages without the Council’s approval.

The final

allocation numbers were adjusted slightly after the Council approved
Amendment 40 due to a calibration of Marine Recreational Informational
Program (MRIP) landing estimates.65 At the time of this approval, the Council
was well aware of the ongoing workshop evaluating the methods to
appropriately calibrate this data, and it was presented with the preliminary
results of this workshop.66 The Council approved the incorporation of this data
into the final rule.67 Accordingly, the Council delegated the task of setting final
allocations according to the calibrated landing data, within a margin of plus or
minus 3.3 percent of the allocations considered by the Council.68 The final
allocations set by NMFS were within 1.7 percent of those approved by the
Council, well within this range.69
Plaintiffs contend that delegation violates the MSA because the NMFS
does not have the power to change the substance of actions approved by the
Council. They rely primarily on the case of Fishing Company of Alaska, Inc. v.
Gutierrez.70

There, the final rule promulgated by the NMFS included

substantive

enforcement

provisions

AR Doc. 276 at 21991.
AR Doc. 199 at 11067.
67 AR Doc. 199 at 11070–11072.
68 AR Doc. 199 at 11067.
69 AR Doc. 230 at 16323.
70 510 F.3d 328 (D.C. Cir. 2007).
65
66

22

that

the

North

Pacific

Fishery

Management Council never adopted.71 Defendants contend that this case is
inapplicable because the changes made by the NMFS were not substantive.
This Court agrees. The NMFS merely adjusted numbers consistent with the
final MRIP data, as directed by the Council. The final allocations were made
pursuant to the approved formula and well within the approved range.
Importantly, there is no evidence that the NMFS had any discretion to
determine these final allocations; it merely mechanically applied the formula
approved by the Council. Accordingly, there has been no improper delegation
of authority to set the final allocation percentages.
CONCLUSION
For the foregoing reasons, Plaintiffs Motion for Summary Judgment is
DENIED, Defendants’ Motion for Summary Judgment is GRANTED, and
Defendant Intervenor’s Motion for Summary Judgment is GRANTED.
New Orleans, Louisiana this 4th day of January, 2016.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

71

Id. at 332–33.

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