Court Vacates Monitoring and Enforcement Requirements

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SandBar 7:2, July, 2008 Court Vacates Monitoring and Enforcement Requirements Fishing Company of Alaska, Inc. v. Gutierrez, 510 F.3d 328 (D.C. Cir. 2007). Sara Wilkinson, 3L, University of Mississippi When the Secretary of Commerce (Secretary), acting through the National Marine Fisheries Service (NMFS), enacted regulations creating a minimum “groundfish retention standard” for the Bering Sea and Aleutian Islands fisheries, an Alaskan fishing company challenged the regulations. The U.S. Court of Appeals for the District of Columbia ruled in favor of the company and ordered that the monitoring and enforcement (M&E) requirements be vacated. Background The seas off the Alaskan coast play host to a wide variety of groundfish.1 Commercial fishing vessels on the Bearing Sea and around the Aleutian Islands catch the groundfish using large nets or “trawls” to drag the ocean floor. Unwanted groundfish, known as “bycatch,” are often mixed in the trawls with more commercially desirable species and are thrown back into the ocean dead or dying. In 1996, in an attempt to minimize the environmental effect of large bycatch, Congress added a goal of minimizing bycatch in the formal statement of policy in the Magnuson-Stevens Fishery Conservation and Management Act (MSA). The North Pacific Fishery Management Council (Council), a regional body created by the MSA, must implement such congressional policies within its region by developing fishery management plans (FMPs) and amendments.2 In its June 2003 meeting, the Council adopted an Amendment3 to the regional FMP supporting the idea of a minimum groundfish retention standard through the imposition of economic disincentives on vessels with high bycatch rates. The Council also approved an outline for the implementation of the Amendment through regulatory measures. Measures requiring vessels to keep observers on board to monitor bycatch and the use of certified scales to weigh fish were included in the outline. On May 24, 2005, after drafting language for the proposed regulation based on the Council’s outline, NMFS forwarded the text of the proposed regulation to the Council’s Executive Director with instructions to submit all pertinent documents to the Secretary for review. The draft text created by NMFS included three M&E requirements that were not originally considered by the Council in its June 2003 meeting. In April 2006, the Secretary issued a final rule with regard to the Council’s FMP Amendment that adopted the draft text created by NMFS, including the three M&E requirements not contemplated by the Council. The Fishing Company of Alaska (FCA) brought suit in district court charging that the 2006 rule establishing minimum “groundfish retention standards” was unlawful because of its addition of the three M&E requirements. In addition, FCA alleged that the M&E requirements were substantively inconsistent with the MSA’s “National Standards” for conservation. The district court granted summary judgment to the Secretary and FCA appealed. NMFS’s Addition of M&E Provisions In the appeal, FCA did not challenge NMFS’s role in drafting the language of the regulation, but the substantive change in the language previously considered and approved by the Council.4 The Secretary contended that the MSA does not address the development process of proposed regulations; therefore, the regulation was properly submitted when the ExecutiveDirector forwarded the pertinent documents back to NMFS in May 2005. According to the MSA, the Council is required to submit proposed regulations which it “deems necessary or appropriate for the purposes of…implementing a fishery management plan or plan amendment …simultaneously with the plan or amendment”5 to the Secretary. The court noted that even if the Executive Director’s actions could be attributed to the Council, he did not deem the three new M&E requirements “necessary or appropriate” as required by MSA. Because the Secretary did not have an indication that the plan had been deemed necessary or appropriate, the court found that the Secretary’s publication of the rule was inconsistent with the law. The court based their opinion on several facts: (1) there was no indication that the Council or anyone acting for the Council knew that the M&E requirements existed or deemed them necessary or appropriate; (2) NMFS’s letter that accompanying the draft text called no attention to the added provisions; (3) the Executive Director made no note of the substantive changes in his cover letter when he distributed the draft text to the Secretary per NMFS’s instructions; (4) The Council’s Environmental Assessment (EA) assumed the absence of the added M&E provisions; and, (5) NMFS’s admission that the Council did not have the opportunity to consider the new M&E provisions until after final submission to the Secretary. NMFS defended the three additional M&E provisions as clarifications of details of the FMP originally contemplated and passed by the Council. In addition, the Secretary claimed that the additions were not inconsistent with the Council’s original regulatory outline for implementation of the FMP. The court dismissed these arguments and held that the additional M&E requirements were inconsistent with the Council’s original outline to the point that they constituted material additions to the Council’s amendment. Conclusion The U.S. Court of Appeals for the D.C. Circuit found that the procedural inadequacy of the Council’s action fatally tainted the three M&E requirements added by NMFS to the Final Rule. Under the law, the Secretary was required to decide whether the entirety of the proposed regulation had been lawfully submitted and deemed “necessary or appropriate.” The court found that the Secretary should have required some indication that the Council deemed the M&E requirements necessary or appropriate prior to their submission as is required by the MSA. In publishing the proposed rule with the three additional M&E requirements, the Secretary’s conduct was inconsistent with law. As such, the court deemed that FCA was entitled to relief, reversed the district court’s summary judgment to the Secretary and remanded the case with instructions to strike the three disputed M&E requirements from the final rule. Endnotes 1. Groundfish are fish that spend most of their lives on or near the ocean floor. 2. For an FMP or an amendment to an FMP to take effect, it must first be submitted to the Secretary for review of compliance with applicable law and publication in the Federal Register for public comment. Throughout the review and public comment process, the Secretary is bound by the judicial review procedures of the Administrative Procedure Act, namely a requirement that the Secretary’s actions not be an “arbitrary and capricious abuse of discretion…” 3. Amendment 79, See Groundfish Retention Standard, 70 Fed. Reg. 35,054, 35,055 (June 16, 2005) see also Final Rule, 71 Fed. Reg. at 17,362. 4. NMFS acknowledged that the M&E requirements were not before the Council when it took its final action in June 2003. Final Rule, 71 Fed. Reg. at 17373. 5. 16 U.S.C. § 1853(c).
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SandBar 7:2, July, 2008

Fishing Company of Alaska, Inc. v. Gutierrez, 510 F.3d 328 (D.C. Cir. 2007).

Sara Wilkinson, 3L, University of Mississippi

When the Secretary of Commerce (Secretary), acting through the National Marine Fisheries Service (NMFS), enacted regulations creating a minimum “groundfish retention standard” for the Bering Sea and Aleutian Islands fisheries, an Alaskan fishing company challenged the regulations. The U.S. Court of Appeals for the District of Columbia ruled in favor of the company and ordered that the monitoring and enforcement (M&E) requirements be vacated.

Background

The seas off the Alaskan coast play host to a wide variety of groundfish.1 Commercial fishing vessels on the Bearing Sea and around the Aleutian Islands catch the groundfish using large nets or “trawls” to drag the ocean floor. Unwanted groundfish, known as “bycatch,” are often mixed in the trawls with more commercially desirable species and are thrown back into the ocean dead or dying.

In 1996, in an attempt to minimize the environmental effect of large bycatch, Congress added a goal of minimizing bycatch in the formal statement of policy in the Magnuson-Stevens Fishery Conservation and Management Act (MSA). The North Pacific Fishery Management Council (Council), a regional body created by the MSA, must implement such congressional policies within its region by developing fishery management plans (FMPs) and amendments.2

In its June 2003 meeting, the Council adopted an Amendment3 to the regional FMP supporting the idea of a minimum groundfish retention standard through the imposition of economic disincentives on vessels with high bycatch rates. The Council also approved an outline for the implementation of the Amendment through regulatory measures. Measures requiring vessels to keep observers on board to monitor bycatch and the use of certified scales to weigh fish were included in the outline.

On May 24, 2005, after drafting language for the proposed regulation based on the Council’s outline, NMFS forwarded the text of the proposed regulation to the Council’s Executive Director with instructions to submit all pertinent documents to the Secretary for review. The draft text created by NMFS included three M&E requirements that were not originally considered by the Council in its June 2003 meeting. In April 2006, the Secretary issued a final rule with regard to the Council’s FMP Amendment that adopted the draft text created by NMFS, including the three M&E requirements not contemplated by the Council.

The Fishing Company of Alaska (FCA) brought suit in district court charging that the 2006 rule establishing minimum “groundfish retention standards” was unlawful because of its addition of the three M&E requirements. In addition, FCA alleged that the M&E requirements were substantively inconsistent with the MSA’s “National Standards” for conservation. The district court granted summary judgment to the Secretary and FCA appealed.

NMFS’s Addition of M&E Provisions

In the appeal, FCA did not challenge NMFS’s role in drafting the language of the regulation, but the substantive change in the language previously considered and approved by the Council.4 The Secretary contended that the MSA does not address the development process of proposed regulations; therefore, the regulation was properly submitted when the ExecutiveDirector forwarded the pertinent documents back to NMFS in May 2005.

According to the MSA, the Council is required to submit proposed regulations which it “deems necessary or appropriate for the purposes of…implementing a fishery management plan or plan amendment …simultaneously with the plan or amendment”5 to the Secretary. The court noted that even if the Executive Director’s actions could be attributed to the Council, he did not deem the three new M&E requirements “necessary or appropriate” as required by MSA. Because the Secretary did not have an indication that the plan had been deemed necessary or appropriate, the court found that the Secretary’s publication of the rule was inconsistent with the law.

The court based their opinion on several facts: (1) there was no indication that the Council or anyone acting for the Council knew that the M&E requirements existed or deemed them necessary or appropriate; (2) NMFS’s letter that accompanying the draft text called no attention to the added provisions; (3) the Executive Director made no note of the substantive changes in his cover letter when he distributed the draft text to the Secretary per NMFS’s instructions; (4) The Council’s Environmental Assessment (EA) assumed the absence of the added M&E provisions; and, (5) NMFS’s admission that the Council did not have the opportunity to consider the new M&E provisions until after final submission to the Secretary.

NMFS defended the three additional M&E provisions as clarifications of details of the FMP originally contemplated and passed by the Council. In addition, the Secretary claimed that the additions were not inconsistent with the Council’s original regulatory outline for implementation of the FMP. The court dismissed these arguments and held that the additional M&E requirements were inconsistent with the Council’s original outline to the point that they constituted material additions to the Council’s amendment.

Conclusion

The U.S. Court of Appeals for the D.C. Circuit found that the procedural inadequacy of the Council’s action fatally tainted the three M&E requirements added by NMFS to the Final Rule. Under the law, the Secretary was required to decide whether the entirety of the proposed regulation had been lawfully submitted and deemed “necessary or appropriate.” The court found that the Secretary should have required some indication that the Council deemed the M&E requirements necessary or appropriate prior to their submission as is required by the MSA. In publishing the proposed rule with the three additional M&E requirements, the Secretary’s conduct was inconsistent with law. As such, the court deemed that FCA was entitled to relief, reversed the district court’s summary judgment to the Secretary and remanded the case with instructions to strike the three disputed M&E requirements from the final rule.

Endnotes

1. Groundfish are fish that spend most of their lives on or near the ocean floor.

2. For an FMP or an amendment to an FMP to take effect, it must first be submitted to the Secretary for review of compliance with applicable law and publication in the Federal Register for public comment. Throughout the review and public comment process, the Secretary is bound by the judicial review procedures of the Administrative Procedure Act, namely a requirement that the Secretary’s actions not be an “arbitrary and capricious abuse of discretion…”

3. Amendment 79, See Groundfish Retention Standard, 70 Fed. Reg. 35,054, 35,055 (June 16, 2005) see also Final Rule, 71 Fed. Reg. at 17,362.

4. NMFS acknowledged that the M&E requirements were not before the Council when it took its final action in June 2003. Final Rule, 71 Fed. Reg. at 17373.

5. 16 U.S.C. § 1853(c).