The opinion of the court was delivered by: Garaufis, District Judge.
Plaintiffs have brought suit seeking invalidation of U.S.
Department of Commerce (the "Secretary") final regulations
implementing federal quotas for the summer 2000 and 2001 scup
fisheries.*fn1 Plaintiffs intend by this lawsuit to compel
the Secretary to allocate a specific percentage of the overall
summer scup quota to each state participating in the fishery.
Plaintiffs now move for partial summary judgment on the grounds
that the summer 2000 regulations are arbitrary and capricious.
Because this court concludes that the Secretary's action is not
arbitrary and capricious, the motion is denied and this claim is
The Atlantic Coastal Fisheries Cooperative Management Act (the
"Cooperative Act"), id. § 5101 et seq., permits Eastern
Coastal states to participate in the management of Atlantic
Ocean fisheries under a dual federal-state management regime.
The Magnuson-Stevens Act expressly delegates exclusive
regulatory authority within three miles of a state's coastline,
traditionally recognized as state territorial waters ("State
Waters"), to the individual states. See
16 U.S.C. § 1856(a)(1), (a)(2)(A). The Atlantic States Marine Fisheries
Commission (the "States Commission"), which is comprised of
representatives from the Eastern Coast states, prepares Coastal
Fishery Management Plans ("CFMPs"). See id. § 5104. CFMPs do
not require separate federal approval, but the states themselves
are required under the Cooperative Act to implement and enforce
CFMPs through state legislation. Id. §§ 5102(10); 5104(b). If
a state fails to implement or otherwise comply with a CFMP, the
Secretary, upon certain conditions, may intervene to impose a
moratorium on fishing in the noncompliant state's State Waters.
See id. § 5106.
During the summer months, scup school primarily in State
Waters and in Federal Waters during the winter months. (Admin.R.
at 2.) In early 1995, the Fisheries Service concluded "that the
scup stock is overexploited and at a low abundance level."
(Admin.R. at 12.) In response, the Fisheries Service adopted a
scup FMP (the "Federal Plan") proposed jointly by the
Mid-Atlantic Fishery Management Council (the "Federal Council")
and the States Commission, with input from the New England and
South Atlantic Fishery Management Councils. The Federal Plan
divided the fishing year into two winter periods and one summer
period and set targets for fishing quotas to protect the fish
stock. See 62 Fed. Reg. 5375, 43,420; 50 C.F.R. § 648.120(c),
(d). The States Commission then adopted an identical plan as a
scup CFMP (the "State Plan"). See 62 Fed. Reg. 5375.
2. Massachusetts Litigation
In June 1997, Massachusetts filed an action in federal
district court to set aside the Secretary's Federal Plan to the
extent that it established a state-by-state allocation of the
summer quota. See Com. of Mass. by Div. of Marine Fisheries v.
Daley, 10 F. Supp.2d 74 (Mass. 1998). Massachusetts claimed that
the state-by-state allocations were discriminatory. See id. at
75. The state argued that the data used to determine the
allocations underestimated its appropriate share because scup
caught and sold by small scale fishermen and dealers, who were
not required to (and in fact did not) report amounts of scup
caught and sold to the state or to the Fisheries Service,
constituted 90% of the state's scup fishery. See id. at 76.
The district court set aside the federal stateby-state
allocations of the summer quota as discriminatory to
Massachusetts local fisherman. See id. at 78.
In February 1999, the First Circuit affirmed the district
court's decision on other grounds. Mass. v. Daley,
170 F.3d 23, 31-32 (1st Cir. 1999). The court acknowledged that "if the
state-by-state quotas were shown to be necessary to achieve the
[Magnuson-Stevens Act's] main conservation goal, we would decide
the case in favor of the Secretary." Id. at 30. Nonetheless,
the court held against the Secretary because the administrative
record did not "explain why the state-by-state quota was
necessary at all." Id. at 30. The court held that
state-by-state allocation of the summer quota was not invalid
per se, but required adequate justification in the
administrative record.: "nothing in this opinion precludes the
adoption — subject always to swift judicial review — of
state-by-state quotas on an emergency basis, or through further
proceedings in the ordinary course, or both." Id. at 32.
Instead of remanding the case back to the Secretary, the court
set aside the regulations to the extent they implemented Federal
Plan state-by-state allocations but left intact the regulations
implementing the Federal Plan's overall coastwide quota. Id.
Even before the district court decision, Massachusetts had
ignored the Federal and State Plan dual regime. In January 1998,
the Fisheries Service determined that Massachusetts' 1997 summer
scup landings exceeded its 1997 Federal Plan allocation by over
one million pounds. See 63 Fed. Reg. 3478-80. Subtracting
Massachusetts' overages from the following year's allocation,
the Fisheries Service determined that no commercial quota was
available to Massachusetts for the 1998 summer period. See 63
Fed. Reg. 3480. Under the procedures envisioned by the Federal
Plan, the Secretary would have closed the Massachusetts scup
fishery for the 1998 summer period.