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State v. Locke

April 30, 2009

THE STATE OF NEW YORK, ALEXANDER B. GRANNIS, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, AND THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, PLAINTIFFS, UNITED BOATMEN OF NEW YORK, INC., NEW YORK FISHING TACKLE TRADE ASSOCIATION, INC., AND THE FISHERMEN'S CONSERVATION ASSOCIATION, INTERVENOR-PLAINTIFFS
v.
GARY LOCKE, IN HIS OFFICIAL CAPACITY AS AND ORDER SECRETARY OF THE UNITED STATES DEPARTMENT OF COMMERCE, THE UNITED STATES DEPARTMENT OF COMMERCE, JANE LUBCHENCO, IN HER OFFICIAL CAPACITY AS UNDER SECRETARY OF COMMERCE AND AS ADMINISTRATOR FOR THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, JAMES W. BALSIGER, IN HIS OFFICIAL CAPACITY AS ACTING ASSISTANT ADMINISTRATOR FOR THE NATIONAL MARINE FISHERIES SERVICE, AND THE NATIONAL MARINE FISHERIES SERVICE, DEFENDANTS.



The opinion of the court was delivered by: Charles P. Sifton (electronically signed) United States District Judge

MEMORANDUM OPINION

SIFTON, Senior Judge.

Plaintiffs the State of New York, Alexander B. Grannis as Commissioner of the New York State Department of Environmental Conservation, and the New York State Department of Environmental Conservation (together, "plaintiffs"), along with intervenor-plaintiffs United Boatmen of New York, Inc. ("UBNY"), New York Fishing Tackle Trade Association, Inc. ("NYFTTA"), and the Fishermen's Conservation Association ("FCA") (together, "intervenor-plaintiffs"), bring this action against defendants Gary Locke, in his official capacity as Secretary of the United States Department of Commerce, the United States Department of Commerce, Jane Lubchenco, in her official capacity as Under Secretary of Commerce and Administrator for the National Oceanic and Atmospheric Administration, the National Oceanic and Atmospheric Administration ("NOAA"), James W. Balsiger, in his official capacity as the Acting Assistant Administrator for the National Marine Fisheries Service ("NMFS") (together, the "federal defendants"),*fn1 and the Atlantic States Marine Fisheries Commission (the "ASMFC" or "Commission"). Plaintiffs claim that the final management rule for the 2008 recreational summer flounder fishery issued by the Department of Commerce (the "DOC"), through the NMFS, pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, as amended in 1996 by the Sustainable Fisheries Act, 16 U.S.C. §§ 1801, et seq. (the "MSA"), violates the MSA as well as standards of decision making under the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (the "APA"). In addition to these claims, intervenor-plaintiffs claim that that the final management rule for the 2008 recreational summer flounder fishery issued by the ASMFC violates the ASMFC Compact & Rules and Regulations, Pub. L. 77-539 (1942), as amended by Pub. L. 81-721 (1950) ("ASMFC Compact"), the Atlantic Coastal Fisheries Cooperative Management Act, Pub. L. 103-206, 16 U.S.C. §§ 5101-5108 (the "ACFCMA"), the ASMFC Interstate Fisheries Management Program Charter (hereinafter "ISFMP Charter," available at http://www.asmfc.org (last visited Apr. 7, 2009)), and the APA.

Presently before this Court is intervenor-plaintiffs' motion for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65(a) and the Administrative Procedures Act, 5 U.S.C. § 705, to prevent the implementation of the proposed 2009 summer flounder conservation equivalency regulations pending this review. In addition, the County of Suffolk and the Town of East Hampton (together, "amici") request leave to appear in this case as amici curiae and to submit memoranda of law in support of intervenor-plaintiffs' motion. For the reasons that follow, intervenor-plaintiffs' motion is denied, and amici's requests to appear in this matter are denied.

BACKGROUND

The following facts are taken from the Complaint, the Complaint in Intervention, and the parties' submissions in connection with this matter. Disputes are noted. Appendix A lists some of the bodies, statutes, regulations, and acronyms necessary to understand the factual background of this matter.

Federal and State Fishery Regulatory Schemes

The subject matter of this action is the regulation of fisheries, both at the federal and state level, specifically with regard to summer flounder, popularly known as "fluke." Federal fishery regulation is governed principally by the MSA, which embodies Congress' desire to implement a "national program for the conservation and management of the fishery resources of the United States." 16 U.S.C. § 1801(a)(6). The MSA establishes eight regional councils responsible for developing and recommending to the United States Secretary of Commerce (the "Secretary") federal fishery management plans ("FMPs") governing each fishery within their respective geographic areas. The Secretary, advised by the Councils and the National Marine Fisheries Service ("NMFS"), possesses final authority to approve federal FMPs under the MSA. These federal FMPs govern fishing in federal waters in the United States Exclusive Economic Zone ("EEZ"), which encompasses ocean waters from three miles offshore to 200 miles offshore. 16 U.S.C. § 1811(a). State membership in the Councils is governed by statutory provisions. 16 U.S.C. § 1852(a). New York is a voting member of the Mid Atlantic Fishery Management Council (the "MAFMC" or "Council"), which is responsible for the preparation of the federal summer flounder FMP.

The MSA requires that federal FMPs be consistent with ten "national standards," see 16 U.S.C. § 1851(a), including requirements that management plans adopted under the Act "prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry," and that they rest on the "best scientific information available." 16 U.S.C. § 1851(a)(1)-(2). The NMFS, by and through the authority of the Secretary, is charged with determining whether these standards have been met before approving proposed FMPs and promulgating rules implementing them.

16 U.S.C. § 1854(a).

The management of fisheries within state waters, including inland waters and costal waters extending three miles seaward from shore, is subject to regulation by the states under their police powers. In 1942, the fifteen Atlantic states, including New York, and the District of Columbia entered into an interstate compact establishing the Atlantic State Marine Fisheries Commission (the "ASMFC" or "Commission"), which was approved by Congress pursuant to Article I, Section 10, clause 3 (the "Compact Clause") of the United States Constitution,*fn2 for the purpose of "promot[ing] the better utilization of the fisheries . . . of the Atlantic seaboard by the development of a joint program for the promotion and protection of such fisheries."

Pub. L. 77-539 (1942), as amended by Pub. L. 81-721 (1950) ("ASMFC Compact"), Art. I.*fn3 Each member state appoints three representatives to the ASMFC: its director of marine fisheries, a state legislator, and a public member appointed by the Governor. ASMFC Compact, Art. III. The Commission operates through species-specific management boards, including the Summer Flounder, Scup, and Black Sea Bass Management Board (the "Board"), which develops and proposes FMPs for summer flounder. The ASMFC Compact does not limit the powers or sovereignty of its member states over state waters. See ASMFC Compact, Art. IX.

The Atlantic Coastal Fisheries Cooperative Management Act

In 1993, Congress enacted the Atlantic Coastal Fisheries Cooperative Management Act, Pub. L. 103-206, 16 U.S.C. §§ 5101-5108 (the "ACFCMA"), to promote the conservation of "[c]oastal fishery resources that migrate, or are widely distributed, across the jurisdictional boundaries of two or more of the Atlantic States and of the federal Government[.]" 16 U.S.C. §§ 5101(a)(3), (b). The ACFCMA calls for the coordination of federal and state efforts concerning inter-jurisdictional fisheries, such as the summer flounder fishery. 16 U.S.C. § 5101(a)(3). In serving this objective, the ACFCMA imposes federal obligations on the Commission, in addition to the original mandate of the Commission as expressed in the ASMFC Compact.

The ACFCMA directs the ASMFC to develop "coastal fishery management plans to provide for the conservation of coastal fishery resources." 16 U.S.C. § 5104(a)(1). These FMPs must be "based on the best scientific information available." 16 U.S.C. § 5104(2)(A). In addition, the ASMFC must provide "adequate opportunity for public participation" in the FMP preparation process. 16 U.S.C. § 5104(a)(2)(B). The ACFCMA requires the Commission to identify the states to which a given FMP developed by the Commission applies, and those states are in turn required to "implement and enforce the measures of such plan within the timeframe established in the plan." 16 U.S.C. § 5104(b)(1). In addition, the ACFCMA confers authority on the Commission to monitor a state's implementation and enforcement of Commission FMPs. If the Commission determines that a state is not in compliance with an FMP, it is required to notify the Secretary.

16 U.S.C. § 5105. If the Secretary independently determines that a state has not complied with the FMP, and that the FMP is "necessary for conservation of the fishery," 16 U.S.C. § 5106(a), the Secretary is directed to declare a moratorium on fishing for the particular species within the coastal waters of the non-complying state. 16 U.S.C. § 5106(c).

Under the ACFCMA, in the absence of a pre-existing approved federal FMP, fishing regulations implemented by the Secretary and the NMFS for federal waters must be compatible with those implemented by the states, and the Secretary "may include measures recommended by the [ASMFC] to the Secretary that are necessary to support the provisions of the coastal fishery management plan." 16 U.S.C. § 5103(b)(1). However, federal and state regulations need not be identical.

The Summer Flounder Fishery

Summer flounder are currently distributed along the Atlantic Coast from North Carolina to Canada. They support both commercial and recreational fisheries along the Atlantic Coast, and are one of the most sought-after fish by both commercial and recreational anglers. Summer flounder are migratory, traveling between state and federal waters throughout their life cycle. However, most summer flounder landings are taken in shore from state jurisdictional waters. The 1980s and early 1990s saw extensive depletion of summer flounder stocks, followed by a partial and continuing recovery in more recent years. Congress has specified a January 1, 2013 deadline for the re-establishment of the summer flounder fishery. Pub. L. 109-479, Sec. 120(a) (Jan. 12, 2007); 72 Fed. Reg. 32813 (June 14, 2007).

The ASMFC Board on behalf of the Atlantic states and the federal MAFMC meet together twice a year to plan management measures for the summer flounder fishery. Beginning in 2001, and continuing through 2009, the Board and the MAFMC have voted to propose to their respective organizations yearly management regimes for the recreational summer flounder fishery known as "conservation equivalency," or "state-by-state" regulation, which have been subsequently adopted and implemented by the NMFS and the states each year. In simplified terms, this approach takes the annual coastwide quota ("total allowable landings," or "TAL," sometimes referred to as "specifications") for the total number of pounds of summer flounder that may be harvested in a given year and divides the quota among the participating coastal states in the form of a percentage share of the total. Once the TAL and state quotas are set, each state is then required to formulate management measures in terms of minimum size limits, daily bag limits, and seasonal limitations, that are expected to constrain that state's recreational landings to their assigned percentage of the coastwide TAL.

Technical Information and Data Underlying the Summer Flounder FMP

Federal, ASMFC, and state participants jointly coordinate the review and development of scientific and technical information necessary to develop FMPs. Technical staff develop stock assessment models that estimate the total stock abundance, the stock status (i.e., whether overfishing is occurring), and forecast future stock abundance based on fishing mortality rates. These assessments are subject to outside peer review. A summer flounder Monitoring Committee composed of technical staff from the NMFS, the United States Fishing and Wildlife Service ("USFWS"), the Commission, ASMFC member states, and the Council convenes to assess information concerning stock status in order to provide advice on management measures.

TALs and state quotas used for the commercial summer flounder fishery are calculated based upon records of direct reporting of catch. Because the recreational summer flounder fishery is more dispersed and irregular than its commercial counterpart, however, TALs and state quotas for the recreational fishery are calculated based upon survey data rather than direct reporting of catch. For recreational quotas, both the federal government and the ASMFC employ the Marine Recreational Fisheries Statistics Survey ("MRFSS"), developed by NMFS as a means of obtaining estimates of recreational participation, effort, and catch in marine waters.*fn4 MRFSS data is collected by two independent surveys: (1) a telephone survey of households in coastal counties, and (2) an "intercept," or interview survey of anglers by trained interviewers stationed at fishing access sites. Data from the two independent surveys are combined and analyzed to produce estimates of fishing effort, catch, and participation for six two-month periods ("waves") each year.

Criticism of Technical Information and Data Underlying the Summer Flounder FMP

According to intervenor-plaintiffs, since its inception, the accuracy of the MRFSS data and the manner of its application have been criticized and questioned by the fishing community, fishery scientists, and fishery managers. Interv. Compl. ¶¶ 5, 66-71. In 2006, allegedly responding to this criticism, NOAA commissioned the National Academy of Sciences/National Research Council ("NAS/NRC") to perform an independent, peer-reviewed evaluation of the MRFSS and to make recommendations for its application and improvement. Id. ¶¶ 6, 69. According to intervenor-plaintiffs, the report issued by NAS/NRC indicates that use of the MRFSS data is not appropriate for small-scale management and allocation of fish stocks, but rather is better suited to large-scale stock management. The report observes that "[c]urrent users require data with higher resolution --spatially, temporally, and taxonomically -- than the current MRFSS can deliver." Federal Administrative Record ("FAR") at 1181. It further notes that "[c]urrently, many fisheries are monitored at the state level, which is a finer stratification than intended originally for the data collected." Id. It also remarks that "[a]s managers use recreational data on finer temporal and spatial scales, issues of precision and bias become more pronounced. Existing spatial and temporal sampling strata may be of too coarse a resolution to generate estimates that are adequate for the management requirements." Id. at 1184.

In addition, since 2002 and through 2009, the recreational state quotas have been based upon MRFSS data from 1998, referred to as the "proxy year." According to Toni M. Kearns, Senior Fishery Management Plan Coordinator for Management at the Commission, the selection of 1998 as the baseline proxy year was the product of extensive research and debate both by the summer flounder Technical Committee ("Technical Committee"), which is composed of biologists from all coastal states and a biologist from NMFS, and the ASMFC Board. Declaration of Toni M. Kearns ("Kearns Decl.") at ¶¶ 16-17. The New York delegation to the Board supported the use of 1998 as the baseline. Id. ¶ 17. Both the Technical Committee and the Board reevaluated the use of 1998 as the proxy year as recently as 2007 and 2008, and decided to retain the use of 1998 as the proxy year. Id. ¶ 18.

Government fisheries managers at both the state and federal level, along with scientists and members of the recreational fishing community, are currently collaborating to improve the methodology used to survey anglers to generate estimates of recreational summer flounder catch and landings. Id. ¶ 25. An updated angler survey program funded by NOAA, the Marine Recreational Information Program ("MRIP"), will be phased in over the next two to three years. Id. ¶¶ 25-26. MRIP is expected to address many of the issues raised with MRFSS, including data gaps, bias, consistency, accuracy and timeliness. Id. ¶ 26. Currently, however, MRFSS remains the only coastwide comprehensive survey of recreational summer flounder harvest.

Id. ¶ 19.

The 2008 Summer Flounder FMP

This action challenges the 2008 regulations for the recreational summer flounder fishery. As previously noted, the 2008 TAL was calculated based upon MRFSS data, using 1998 as the base year for allocation of the TAL among the states. See Commission Administrative Record ("CAR") at 70, 73, 75-76. The MAFMC and the ASMFC Board set the 2008 TAL for summer flounder at 15,770,000 pounds, of which the recreational harvest limit was 6,215,800 pounds. See FAR at 366, 1546. In December 2007, over the objections of representatives from New York and other states, the MAFMC and the Board voted to implement the TAL by means of conservation equivalency measures, rather than coastwide regulations. FAR at 304-05, 362; Interv. Compl. ¶ 75.

In addition, as part of the 2008 summer flounder conservation management process, both the Board and the MAFMC adopted measures to respond to repeated "overages" in many states. See, e.g., CAR at 361-62 (discussing overages in 2007), CAR at 367 (noting that New York's recreational fishery was 55 percent over its quota for 2007). The incidence of overages, or landings in excess of the portion of the TAL allotted to each state, prompted the Board and the MAFMC, on the advice of the Technical Committee, to adopt and implement a Performance Based Adjustment Factor ("Adjustment Factor"). FAR at 384-414, CAR at 298. The Adjustment Factor was intended to address the issue created by the failure of certain states' management measures to achieve landings within that state's allocated share of the recreational portion of the TAL. The Adjustment Factor requires that states with a recent record of exceeding annual targets adopt more conservative regulations (i.e., size, bag, and seasonal limits), in proportion to the magnitude of past overages. See CAR at 298-301. It does not change a state's allocated quota, but rather requires states with past chronic overages to adopt regulations more likely to result in total landings within the state's quota.

Following the implementation of the Adjustment Factor, the ASMFC evaluated and approved proposed regulations submitted by states in the summer flounder fishery. As finally approved, New York's management measures for 2008 consist of: (1) a minimum size of 20.5 inches; (2) a possession limit of four fish; and (3) a season of May 15 to September 1. See FAR at 1547, CAR at 319, 344-45.

On May 23, 2008, NMFS published a final rule approving, for federal waters, management measures identical to those approved by the Board for state waters. FAR at 1546-56. Like the ASMFC's approach, the federal regulations provide for a state-specific conservation equivalency approach to respecting the 2008 TAL.

The Proposed 2009 Summer Flounder FMP

The present motion for a preliminary injunction seeks to prevent the implementation of the proposed 2009 summer flounder regulations pending this review of the 2008 regulations. In the fall and winter of 2008, the federal MAFMC and the ASMFC Board adopted a recommendation to increase the summer flounder TAL for 2009 to 18.45 million pounds, of which the recreational harvest limit was set at 7.16 million pounds. See Declaration of Philip L. Curcio ("Curcio Decl.") Exs. A (copy of December 15, 2008 press release); C (copy of August 11, 2008 press release); Kearns Decl. ¶ 28. The MAFMC and Board also once again adopted conservation equivalency measures to achieve state-specific harvest limits. Id. Ex. A; see also Kearns Decl. ¶ 33. In addition, for states having exceeded their 2008 target, the Board passed a motion requiring that at least fifty perfect of the necessary reductions for 2009 be achieved by season closures rather than by imposing more stringent size or bag limits. Id.

The Board and the MAFMC did not adopt a Performance Based Adjustment Factor for 2009

In 2008, New York recreational anglers landed an estimated 583,031 summer flounder, representing an overage of 61% with respect to the 2008 recreational harvest limit of 361,000 fish for New York. Kearns Decl. ¶ 29; Curcio Decl. Ex. B. For 2009, New York's harvest limit is 365,000 fish, which requires New York to develop measures to constrain its harvest by 37% relative to 2008. Curcio Decl. Ex. B. On March 25, 2009, NYDEC finalized New York's recreational summer flounder regulations for 2009, as approved by ASMFC, which include a 21-inch minimum size limit (half an inch larger than 2008), a two-fish maximum possession limit, and an open season from May 15-June 15 and July 3-August 17. Kearns Decl. ¶ 37.

On January 25, 2009, the MAFMC made its recommendations to the Secretary concerning federal regulations for the summer flounder fishery for the 2009 season. However, the Secretary's proposed regulations were not published until April 1, 2009. Because a 30-day notice and comment period is necessary, following which the Secretary must review the comments and comply with other federal rulemaking procedures, the promulgation of a final federal regulation for the 2009 summer flounder recreational fishery is not expected until June 1, 2009.

Effect of Summer Flounder FMPs, Including Proposed 2009 Regulations

Intervenor-plaintiffs state that due to the conservation equivalency state-by-state approach to respecting the recreational portion of the summer flounder TAL, which has been in place since 2001, New York's recreational fishing community has suffered grievously. Dennis Kanyuk, president of intevenor-plaintiff United Boatmen of New York and owner of a party boat in Point Lookout, New York, states that from 2003 to 2008, he saw gross revenue losses of 30% and knows other professional party boat owners who have either suffered similar losses or gone out of business. Declaration of Dennis Kanyuk ("Kanyuk Decl.") ¶¶ 1-2, 5. Mr. Kanyuk attributes these losses and business failures to the conservation equivalency measures. Id. ¶ 3. In addition, according to Melissa Dearborn, vice-president of a wholesale supplier of fishing bait and tackle products and a member of intervenor-plaintiff organization New York Fishing Tackle Trade Association, from 2001 to 2008, her company's aggregate sales of bait products specific to the fluke fishery have decreased by 68%. Declaration of Melissa Dearborn ("Dearborn Decl.") ¶¶ 1-3. Ms. Dearborn also attributes these losses to the conservation equivalency measures. Id. ¶ 4.

Should the proposed 2009 regulations be implemented, Mr. Kanyuk states that the party and charter boat industry anticipates, on average, an additional 40% loss from 2008 to 2009. Kanyuk Decl. ΒΆ 2. According to Ms. Dearborn, her fluke bait sales will experience another 42% decrease from 2008, and her aggregate ...


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