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NEW YORK v. EVANS

September 12, 2001

STATE OF NEW YORK, ERIN M. CROTTY, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, AND NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, PLAINTIFFS, AND RHODE ISLAND DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, INTERVENING PLAINTIFF,
V.
DONALD L. EVANS, IN HIS OFFICIAL CAPACITY AS SECRETARY OF COMMERCE OF THE UNITED STATES, THE UNITED STATES DEPARTMENT OF COMMERCE, SCOTT B. GUDES, IN HIS OFFICIAL CAPACITY AS UNDERSECRETARY AND ADMINISTRATOR FOR THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, WILLIAM T. HOGARTH, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE NATIONAL MARINE FISHERIES SERVICE, THE NATIONAL MARINE FISHERIES SERVICE, AND UNITED STATES OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: Garaufis, District Judge.

MEMORANDUM & ORDER

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 dismissed.

I. Statutory Background

The Secretary regulates the Atlantic Coast scup fishery pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (the "Magnuson-Stevens Act"), 16 U.S.C. § 1801 et seq. The Magnuson-Stevens Act establishes an Exclusive Economic Zone ("Federal Waters"), extending from 3 miles seaward off the coastline to 200 nautical miles offshore. See id. §§ 1802(11)(a). The United States (with exceptions not relevant here) exercises "exclusive fishery management authority" over fisheries within Federal Waters, id. § 1811(a), through Fishery Management Plans ("FMPs"), see id. § 1853. Regional Fishery Management Councils propose FMPs which are adopted by the National Marine Fisheries Service ("Fisheries Service"), in accordance with national standards and requirements under the Magnuson-Stevens Act. See id. §§ 1851-54. The Secretary promulgates regulations implementing these FMPs. See id. § 1854(b). The Secretary's regulations have the force of law within Federal Waters. See id. § 1856(a).

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.

II. Factual Background

1. The Dual Regime

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.

On May 22, 1997 the Secretary published final regulations implementing a regulatory amendment (the "Regulatory Amendment") allocating state-by-state on a percentage basis the summer period's overall federal scup quota. See 62 Fed. Reg. 27,978. Under the Regulatory Amendment the Secretary would announce in the Federal Register each state's attainment of its scup quota; the state would then close its scup fishery, thereby prohibiting vessels licensed to fish under state permits from selling scup to fish dealers. Upon attainment of every state's quota, the Secretary would close the scup fishery in Federal Waters and forbid vessels licensed to fish under federal permits from selling scup to fish dealers. See 62 Fed. Reg. 5376. The States Commission adopted an addendum to the State Plan subdividing the overall summer quota into state-by-state allocations identical to the Regulatory Amendment. (See Admin.R. at 70-90.) Under this dual regime, any scup caught in either Federal or State Waters were counted against both the Federal Plan quota and the State Plan quota of the state where the fish were sold to fish dealers. See 50 C.F.R. § 648.120(d)(4). Any fish sold in excess of a state's quota was recorded as an "overage." See id. While the Regulatory Amendment did not expand the Secretary's power to regulate in State Waters, a state's overages during one year's summer period would be subtracted by the Secretary from that state's Federal Plan quota for the next summer as a penalty. See. id.

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.

Daley, however, invalidated the Federal Plan state-by-state allocations of the summer quota effectively prohibiting calculation and enforcement of Massachusetts' overages. See Daley, 10 F. Supp.2d at 79. Thus constrained, the Secretary regulated the summer scup fishery in 1998 exclusively through enforcement of the overall coastwide summer quota, When this quota had been met, the Secretary closed Federal Waters to further scup fishing. (See Admin.R. at 1341.) During the 1998 summer period, Massachusetts ...


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