Framework Adjustment 14 Does Not Violate Magnuson-Stevens Act
Conservation Law Foundation v. Evans, 360 F.3d 21 (1st Cir. 2004).

T. B. Boardman Jr., J.D.1

Introduction
In the latest challenge to the National Marine Fisheries Service (NMFS), the First Circuit Court of Appeals denied an appeal by the Conservation Law Foundation and Oceana (together, CLF) concerning a 2001 framework adjustment to the Atlantic Sea Scallop Fishery Management Plan. CLF asserted that the NMFS’s failure to close four sensitive scalloping areas was arbitrary and capricious and its failure to provide a notice and comment period for the framework adjustment violated the Magnuson-Stevens Act. The First Circuit denied CLF’s claims and also denied the agency’s assertion that the case was moot.

Background
Scallops are benthic inhabitants that are typically fished by dredging, a method that is detrimental to the seabed habitat. NMFS manages scalloping in the Atlantic coastal waters through the Atlantic Sea Scallop Fishery Management Plan. For the 2001 and 2002 fishing years, NMFS adjusted the Plan with Framework 14 pursuant to its authorization under the Magnuson-Stevens Fisheries Conservation and Management Act (Magnuson-Stevens Act). Framework 14 closed approximately 5,000 square nautical miles to scallop fishing. Additionally, it maintained restrictions on days at sea, catch and mesh sizes, and limited seasonal access to sensitive areas.
However, the southeast part of Georges Bank, the Great South Channel, the New York Bright, and Delmarva, all composed of gravel and sandy bottoms and particularly vulnerable to harm from dredging, remained open to scalloping. As a result, the CLF complained that NMFS failed to give habitat protection and the reduction of groundfish bycatch ample consideration. The CLF challenged NMFS’s Framework 14 both substantively, as arbitrary and capricious, and procedurally, for failing to provide the minimum fifteen days for public comment required by the Magnuson-Stevens Act in the United States District Court of Massachusetts. The District Court granted the agency’s motion for summary judgment and an appeal to the United States Court of Appeals for the First Circuit ensued.

Mootness
On March 1, 2003, while CLF’s appeal was pending, Framework 14 was superseded by Framework 15. As a result, the defendants contended that the expiration of Framework 14 rendered the case moot. The First Circuit noted that for the defendant to prevail on the mootness claim it bore a “heavy” burden in demonstrating that the allegedly wrong behavior could not reasonably be expected to recur.2

NMFS simply could not carry this burden since Framework 15’s only modification to Framework 14 was an increase in the limits on the amount of scallops that could be held on board a fishing vessel. Therefore, the court questioned whether the alleged wrongs had already recurred. Moreover, even though Framework 15 was promulgated in a procedurally proper manner the challenge was not moot because NMFS’s preceding procedural deficiencies were capable of repetition. As a result, the court held that the case was not moot.

Substantive Challenge
Under the Magnuson-Stevens Act and the Administrative Procedure Act, agency action can only be upset by the court if the action is arbitrary or capricious. CLF contended that NMFS’s failure to close scallop harvesting in the four areas was arbitrary and capricious because it failed its duty to minimize, “to the extent practicable”: 1) adverse effects on essential fish habitat, and 2) bycatch.3

According to CLF, NMFS “ignored relevant factors” that should have been considered and failed to “articulate a rational basis” for declining to close the four areas.4 However, the Court found that NMFS is only required to minimize adverse effects and bycatch “to the extent practicable,” not to implement virtually any measure to address essential fish habitat and bycatch concerns, as the CLF seemed to require. As a result, the CLF’s arguments were flawed because they did not account for the existing restrictions on scallop fishing imposed by Framework 14, which statutorily satisfied NMFS’s obligations. The court held that the plaintiffs did not show that NMFS acted irrationally in implementing Framework 14 without imposing additional closures.5

Procedural Challenge
CLF’s final attack was on NMFS’s failure to provide a public comment period in developing Framework 14. The Magnuson-Stevens Act requires notice and comment for regulations that modify or amend a fishery management plan.6 The CLF equated the framework adjustment to an amendment or modification and therefore asserted that notice and comment was required. However, the First Circuit affirmed the District Court’s finding that a framework adjustment is distinguishable from an amendment or a modification and therefore is not subject to notice and comment.

The court pointed to section 1855(f) to explain such a distinction. Section 1855(f) clearly makes a distinction between “regulations promulgated by the Secretary” and “actions that are taken by the Secretary under regulations which implement a fishery management plan.”7 The Court recognized that “a framework adjustment such as Framework 14 was implemented through an action of the Secretary after a finding by the Council that a formal regulation was neither necessary nor appropriate.”8 As a result, the Court held that the District Court properly classified Framework 14 as an action, not a regulation, and found that it was not subject to notice and comment.

In the alternative, CLF alleged procedural harm under the Administrative Procedure Act because NMFS failed to demonstrate good cause for waiving notice and comment. The First Circuit quickly dismissed this claim by first noting that fourteen public meetings, a supplemental environmental impact statement, CLF’s submission of written and oral comment prior to and during Council meetings, and NMFS’s responses to CLF’s concerns, demonstrated that CLF was not ignored. Moreover, the court found that CLF “failed to identify any comment that they were prevented from making because of this alleged procedural defect that would have made a difference in the result.”9 Accordingly, even if CLF’s allegations were true, the omission of a formal public comment period would be mere harmless error because the omission of a formal public comment period would have no bearing on the decision reached by NMFS.

Conclusion
A challenge to a framework adjustment that has been superceded will be considered moot only if under the new framework the alleged wrongs will not recur. While an amendment or modification to a fishery management plan requires a notice and comment period under the Magnuson-Stevens Act, a framework adjustment, such as Framework 14, is distinguishable and does not require such attention. Pursuant to the Magnuson-Stevens Act, an agency is not required to implement every measure that would minimize the adverse effects to essential fish habitats. Instead, it has an obligation to implement actions only to the extent practicable.

Endnotes
1. Terrell B. Boardman Jr. is a graduate of Roger Williams School of Law, Bristol, Rhode Island, and is currently pursuing a Masters in Marine Affairs at the University of Rhode Island.
2. Conservation Law Foundation v. Evans, 360 F.3d 21, 24 (1st Cir. 2004).
3. 16 U.S.C. § 1683 (2004).
4. Conservation Law Foundation, 360 F.3d at 28.
5. Id.
6. 16 U.S.C. § 1854 (2004).
7. Id. § 1855(f).
8. Conservation Law Foundation, 360 F.3d at 29 (internal quotations omitted).
9. Id.

University of Mississippi