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Latest Challenge to NMFS Summer Flounder Quota Fails
North Carolina Fisheries Ass’n. v. Evans, 172 F. Supp. 2d 792 (E.D. Va. 2001).

Sarah Elizabeth Gardner, 2L

In the latest challenge to the National Marine Fisheries Service (NMFS) summer flounder quota, Virginia District Court Judge Doumar found that the challenges to the regulations implementing the fishery management plan (FMP) were untimely and that the agency did not violate the Magnuson Act when it set the quota specifications.

Background
The Magnuson Act created eight regional fishery management councils whose main responsibility includes developing an FMP, setting out the rules for each fishery to meet the national conservation and management standards imposed by the Act. The eastern seaboard states’ governments, in response, established the Atlantic States Marine Fisheries Commission (Commission) to monitor fisheries in state controlled waters (from the coast line to three miles out). Congress then amended the act in 1996 with the Sustainable Fisheries Act (SFA) to address the problem of stock conservation, providing conservation efforts be allocated fairly and equitably between fishing sectors. The SFA gave the Secretary the responsibility of ensuring that the FMPs submitted by the councils complied with not only the previous standards imposed by the Magnuson Act but also with the new SFA equality provisions.

As revised by the Magnuson Act, the NMFS and the Commission developed and implemented an FMP for summer flounder. The NMFS then passed Amendment 2 to the FMP, establishing a rebuilding schedule for the stock. This amendment required decreases in the fishing mortality rate each year until the fishing mortality rate associated with the maximum yield per recruit was achieved. It also established annual coast wide quota procedures, designating the quota split between commercial and recreational fisheries to be 60/40, basing the allotments on historical percentages caught by the two sectors. Amendment 2 required an overage determination on a state-by-state basis, maintaining that the following year’s quota for that state be reduced by the previous year’s overage.

On January 29, 2001, the Secretary of Commerce issued an emergency rule setting the 2001 summer flounder quotas and on March 23, 2001, the Secretary issued his final rule. On April 20, 2001, both North Carolina commercial fisherman and the North Carolina Fisheries Association filed suit against the Secretary, challenging the summer flounder quota specifications set by the NMFS. The District Court ruled that the challenges against the summer flounder FMP were untimely and the annual quota specification was not in violation of the Magnuson Act.

Time-Barred Challenges
The plaintiffs first claimed the NMFS did not publish the quotas within a reasonable time, keeping them from being able to determine how to operate their businesses and allocate their fishing efforts for the 2001 season. The District Court quickly disposed of this issue, ruling that the quota for 2001 had been published in a reasonable time and therefore did not need to be addressed.

The plaintiffs also claimed that the system used by the NMFS for determining overages was unfair, penalizing the commercial fishermen twice and only penalizing the recreational fishermen once. The plaintiffs explained that if the NMFS finds an overage, caused by either commercial or recreational fishermen, the overall quota for the next year is reduced, penalizing both sectors alike. However, any overage found to be caused directly by a commercial fisherman reduces his total allowable landings, requiring a “pay back” by reducing his allotment for the following year. Recreational fishermen are not individually penalized in this way. The NMFS countered that the challenges to these regulations were time-barred because the Magnuson Act requires that such claims be brought within thirty days of promulgation in the Federal Register.1 The regulations related to overages stem from Amendment 2, promulgated on August 6, 1992. The Court found the plaintiffs’ challenge was not predicated on the quota decisions made in 2001 but was a challenge to the 1992 implementing regulations. Therefore, any challenges to the regulations were “barred by the 30-day statute of limitations.”2

The plaintiffs next claimed the monitoring measures employed by the NMFS were inequitable and unfair.3 The Court found that neither the Secretary’s emergency rule nor his final rule altered the Amendment 2 procedures with respect to the monitoring and overage measures used for both fisheries. Therefore, the Court concluded the challenges were also time-barred because they were not filed pursuant to the 30-day statute of limitations.4

National Standard Challenges
The plaintiffs further claimed that the Secretary violated National Standard One of the Magnuson Act on two grounds: (1) the NMFS reduced the optimum yield for both commercial and recreational fisheries by not imposing consequences on recreational fisherman for quota violations and (2) the NMFS set quota levels below the overfishing threshold established in the FMP. National Standard One requires that “conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States Fishing Industry.”5 The Magnuson Act defines optimum yield as “the amount of fish which . . . in the case of an overfished fishery, provides for rebuilding to a level consistent with producing the maximum sustainable yield in such fishery.”6 The Court noted that the first argument was identical to the issue in North Carolina Fisheries Ass’n. Inc. v. Daley, which was rejected by the District Court in 1997.7 In that case, Judge Doumar explained that the determination of the optimum yield was an ongoing process. Therefore, this Court found that “overages in a particular segment of the fishery from year to year do not preclude attainment of optimum yield.”8 The Court further found that the NMFS target for 2001 established a quota lower than the one established by the FMP. However, the Court found that the significantly decreased target biomass was temporary and in response to the District of Columbia Circuit’s ruling in Natural Resources Defense Council v. Daley.9 The Daley court required the NMFS to set the 2001 quota at such a level as to achieve the target biomass that would have been reached had the 1999 and 2000 targets been met. Therefore, the Court found this lower fishing mortality rate did not violate National Standard One.

The plaintiffs’ last contention was that the March 23, 2001 final rule did not comply with National Standard Two which requires the best scientific evidence available be used in the establishment of conservation and management measures. They claimed that the lower mortality rate and the NMFS conclusion that the fishery was overfished was not supported by scientific evidence. The Secretary responded that he based his decisions upon the information he had at the time of the FMP preparation and regulation’s implementation, in accordance with the agency’s national standard guidelines.10 The evidence showed that the NMFS used the proper calculation to indicate the threshold below which the stock is deemed to be overfished. According to the January 1, 2000 estimate of biomass, the NMFS found the stock remained overfished. The evidence also showed that even if the NMFS erred in its estimate and the stock was not overfished, the stock could not maintain a maximum sustainable yield. The Court found that the evidence presented supported the Secretary’s decisions.11

The Court therefore found for the Secretary on all claims noting that he met the burdens placed upon him under the Mag-nuson Act and its implementing regulations. The Court also noted that they could not say that the Secretary’s decisions “were unreasonable or devoid of justification.”12

ENDNOTES
1. 16 U.S.C. § 1802(28) (2001).
2. North Carolina Fisheries Ass’n Inc. v. Evans, 172 F. Supp. 2d 792, 798-99 (E.D. Va. 2001).
3. 16 U.S.C. §§ 303-304 (2001).
4. Id. at § 1855(f).
5. Id. at § 1851(a)(1).
6. Id. at § 1802(28).
7. North Carolina Fisheries Ass’n. Inc. v. Daley, 16 F. Supp. 2d 647 (E.D. Va. 1997).
8. Evans, 172 F. Supp. 2d at 800.
9. Natural Resources Defense Council v. Daley, 209 F.3d 747 (D.C. Cir. 2000).
10. 50 C.F.R. § 305.315(b)(2) (2000).
11. Evans. at 803.
12. Id.

University of Mississippi