Campanale & Sons, Inc. v. Evans

United States Court of Appeals
For the First Circuit

No. 01-2282

CAMPANALE & SONS, INC.; C.E.H., INC.; AND
NARRAGANSETT SEAHAWK, INC.,

Plaintiffs, Appellants,

v.

DONALD L. EVANS,
SECRETARY OF COMMERCE,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald L. Lagueux, U.S. District Judge]

Before

Torruella, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.

Mark A. McSally, with whom Kelly, Kelleher, Reilly & Simpson
was on brief, for appellants.
David J. Lazerwitz, Attorney, Appellate Section, Environment
& Natural Resources Division, with whom Thomas L. Sansonetti,
Assistant Attorney General, John T. Stahr, Attorney, Appellate
Section, and Charles Lynch, Office of Regional Counsel, were on
brief, for appellee.

November 22, 2002
 TORRUELLA, Circuit Judge. This case involves regulation

of one of New England's most famed resources: the American lobster.

Despite the lobster's somewhat other-worldly appearance with its

protruding eyes, spindly legs, and oversized claws, its meat is

highly valued by epicures across the country, making the lobster

fishery one of the most competitive and valuable fisheries in North

America. As a result of this competition, however, American

lobsters along the Atlantic Coast are overfished, jeopardizing the

sustenance of the fishery. In an effort to conserve the lobster

population, and pursuant to statutory authority, the Secretary of

Commerce promulgated regulations that, inter alia, limited the

number of lobster traps permitted per fishing vessel. Lobster

fishermen who reside in and whose vessels are based in Rhode Island

brought suit challenging the Secretary's regulations on various

grounds. Both parties moved for summary judgment. Adopting the

magistrate judge's report and recommendation, the district court

granted summary judgment for the Secretary of Commerce. The

lobster fishermen instituted this appeal. Because we find that the

district court erred in granting summary judgment for the

Secretary, we reverse.

I.

Before delving into the merits, we first address the

relevant regulatory history and the factual and procedural

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background of this case, so as to provide a context for the

fishermen's claims advanced on appeal.

A. Statutory Background

1. The Magnuson-Stevens Fishery Conservation and Management Act

Congress enacted the Magnuson-Stevens Fishery

Conservation and Management Act ("Magnuson-Stevens Act"), 16 U.S.C.

§§ 1801 et seq., in 1976 to, inter alia, "take immediate action to

conserve and manage the fishery resources found off the coasts of

the United States." 16 U.S.C. § 1801(b)(1). Pursuant to this

goal, the Magnuson-Stevens Act established an exclusive economic

zone ("EEZ"), covering the waters 3 to 200 miles offshore of the

United States,1 over which the federal government claims "sovereign

rights and exclusive fishery management authority over all fish,

and all Continental Shelf fishery resources" located therein. Id.

§ 1811. To implement conservation measures within the EEZ, the

Magnuson-Stevens Act directs the establishment of regional fishery

management councils to prepare, monitor, and revise fishery

management plans, "which will achieve and maintain, on a continuing

basis, the optimum yield from each fisher." Id. § 1801(b)(4). The

regional fishery management councils are designed to "enable the

States, the fishing industry, consumer and environmental

organizations, and other interested persons to participate in, and

1
The area within three miles of shore is regulated by the
individual states bordering that territory.

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advise on, the establishment and administration of such [fishery

management] plans" and to "take into account the social and

economic needs of the States." Id. § 1801(b)(5).

Under this authority, Congress created eight regional

fishery management councils (collectively "Regional Councils"),

composed of state fishery officials, the National Marine Fisheries

Service ("NMFS") regional director, and qualified individuals who

are "knowledgeable regarding the conservation and management, or

the commercial or recreational harvest, of the fishery resources of

the geographical area concerned." Id. § 1852. A Regional

Council's primary function is, for each fishery under its authority

that requires conservation measures, to prepare a fishery

management plan ("FMP") that establishes guidelines over the

fishery and meets the conservation goals set forth in the Act. Id.

§ 1852(h)(1). These FMPs are prepared in response to the Secretary

finding that a fishery is overfished, see id. § 1854(e)(1), and

requesting conservation measures, see id. § 1854(e)(2). The

Regional Council then submits the FMP to the Secretary of Commerce

("Secretary") for review. Id. § 1852(h)(1). If the FMP is

approved, the Secretary is then responsible for enacting

implementing regulations. 16 U.S.C. § 1854.

In sum, "[t]he Magnuson-Stevens Act's main thrust is to

conserve the fisheries as a continuing resource through a mixed

federal-state regime; the FMPs are proposed by state Councils but

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the final regulations are promulgated by the Secretary through the

Fisheries Service." Mass. v. Daley, 170 F.3d 23, 27-28 (1st Cir.

1999).

2. The Atlantic Coastal Fisheries Cooperative Management Act

The Atlantic Coastal Fisheries Cooperative Management Act

("ACFCMA" or "Atlantic Coastal Act"), 16 U.S.C. §§ 5101 et seq.,

was enacted in 1993 in response to Congress' concern over

"disparate, inconsistent, and intermittent State and Federal

regulation that has been detrimental to the conservation" of

Atlantic Coastal fishery resources. Id. § 5101(a)(3). The

Atlantic Coastal Act was passed "to support and encourage the

development, implementation, and enforcement of effective

interstate conservation and management" of the fisheries along the

Atlantic Coast. Id. § 5101(b).

Pursuant to this purpose, the ACFCMA created a new

management regime, wherein:

The responsibility for managing Atlantic
coastal fisheries rests with the States, which
carry out a cooperative program of fishery
oversight and management through the Atlantic
States Marine Fisheries Commission. It is the
responsibility of the Federal Government to
support such cooperative interstate management
of coastal fishery resources.

Id. § 5101(a)(4). The Atlantic States Marine Fisheries Commission

("Atlantic States Commission" or "ASMFC") is composed of

representatives from the states along the Atlantic Coast from Maine

to Florida, as well as from the District of Columbia. Id. § 5102

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(3), (13); Pub. L. No. 77-539, 56 Stat. 267 (1942); Pub. L. No. 81-

721, 64 Stat. 467 (1950).

Under the Atlantic Coastal Act, the Atlantic States

Commission is responsible for preparing and adopting a coastal

fishery management plan ("CMP"), 16 U.S.C. § 5104(a)(1), the

equivalent of the Magnuson-Stevens Act's FMP, for coastal fishery

resources, which are defined as any fisheries that move among

jurisdictional waters of two or more states or one state and the

EEZ, id. § 5102(2). The ASMFC, in preparing CMPs, "shall consult

with appropriate [Regional] Councils to determine areas where such

coastal fishery management plan may complement Council fishery

management plans." Id. § 5104(a)(1).

While the focus of the Atlantic Coastal Act is on state

waters and coordinating plans among the coastal states and Regional

Councils, the Act addresses federal and state cooperation in

coastal fisheries management by providing for the development of

federal regulations to support the ASMFC's coastal fisheries

management efforts. See id. § 5103. Accordingly, the Act provides

that, "[i]n the absence of an approved and implemented" FMP under

the Magnuson-Stevens Act, and "after consultation with the

appropriate [Regional] Councils, the Secretary may implement

regulations to govern fishing" in the EEZ, provided that such

regulations are compatible with the CMP and are consistent with the

national standards of the Magnuson-Stevens Act. Id. § 5103(b)(1).

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B. Factual Background

1. The American Lobster Fishery and Initial Conservation Efforts

American lobsters are found in coastal waters ranging

from Maine to North Carolina. Although NMFS has estimated that

about eighty percent of the American lobster population is located

in the nearshore area (i.e., within three miles of the coast, and

therefore subject to state management), the remaining twenty

percent are found in the EEZ. The vast majority of lobsters are

fished using lobster traps; only a few percent of those fished are

caught using trawls, gillnets, dredges, or by divers.

Federal management of the American lobster began in 1978

when NMFS and the states of Maine, New Hampshire, Rhode Island,

Massachusetts, Connecticut, New York, Pennsylvania, Delaware,

Maryland, Virginia, and North Carolina developed a FMP pursuant to

the Magnuson-Stevens Act. This effort resulted in the adoption and

implementation of an Interstate Fishery Management Plan ("ISFMP")

for state and federal waters. In 1983, the New England Fishery

Management Council ("NEFMC"), one of the eight Regional Councils

established by the Magnuson-Stevens Act, produced, and NMFS

implemented, a FMP for the American lobster fishery based on the

ISFMP. Despite these conservation measures, the 1993 annual report

of the Northeast Stock Assessment Workshop revealed that the

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American lobster stock was overfished.2 The increase in fishing

mortality rates was attributed to increased lobster trap fishing.

In 1996, a panel of independent stock assessment experts echoed the

1993 findings that the American lobster was overfished and made

recommendations to curb the problem.

As a result of these studies, NMFS was concerned that the

current federal conservation measures under the Magnuson-Stevens

Act were insufficient to protect the lobster fishery. Thus, on

March 27, 1996, NMFS proposed withdrawing the lobster FMP as

inconsistent with the national standards of the Magnuson-Stevens

Act and issuing new regulations under the Atlantic Coastal Act.

This suggestion prompted the development of Amendment 3 to the

ISFMP and the rulemaking that is challenged in this appeal.

2. Amendment 3 to the ISFMP

Pursuant to its authority under the Atlantic Coastal Act,

the Atlantic States Commission developed and adopted Amendment 3 to

the ISFMP in December 1997. Among other measures, Amendment 3

included the following provision, limiting the number of traps per

vessel allowed in the offshore region of "Area 3":

2
"Overfishing" or "overfished" is defined as "a rate or level of
fishing mortality that jeopardizes the capacity of a fishery to
produce the maximum sustainable yield on a continuing basis." 16
U.S.C. § 1802(29). In the lobster fishing context, overfishing
occurs when the mortality rate results in an estimated egg
production per lobster that is less than 10 percent of what it
would be in a non-fished population.

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 3.3.3.1 Limits on the number of traps per
vessel
In Area 3, the Lobster Conservation Management
Team, constituted under Section 3.4, shall
develop a program to cap and then reduce
effort, based upon historical participation,
vessel size or other relevant criteria, for
the purpose of achieving the egg production
rebuilding schedule of Section 2.5. The
program may recommend alternative measures,
besides effort control, that would achieve
stock rebuilding targets. The program shall
be presented to the ASMFC Lobster Management
Board prior to July 1, 1998; and be designed
for implementation effective January 1, 1999.
If a program is not forthcoming, a limit of
2,000 traps shall be implemented on January 1,
1999.

Thus, although Amendment 3 contained a trap limit, this limit was

only to take effect if the Area 3 Lobster Conservation Management

Team ("LCMT")3 failed to recommend alternative conservation

measures by July 1, 1998.

Meanwhile, on March 17, 1998, NMFS issued a Draft

Environmental Impact Statement ("DEIS") pursuant to the National

Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., to

evaluate alternative conservation measures for federal waters that

would be compatible with those under Amendment 3. The DEIS

considered a number of alternatives, including implementing

3
The Area 3 Lobster Conservation Management Team was created by
Amendment 3 to make recommendations on conservation measures for
Area 3 to the Atlantic States Commission. Any recommendations
would then be reviewed by the Commission's Lobster Management
Board, and then by the Commission's Lobster Technical Committee,
provided that such recommendations were submitted prior to the
July 1, 1998 deadline specified in Section 3.3.3.1 of Amendment 3.

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Amendment 3's trap limit and regulating offshore fishing based on

historic participation. As required under NEPA, NMFS requested

public comments on the alternatives in the DEIS.

On July 29, 1998, almost one month after the deadline

announced by Amendment 3, the Area 3 LCMT submitted its plan to the

Atlantic States Commission's Lobster Management Board. The LCMT's

plan provided for trap limits based on historical participation in

the lobster fishery. The Lobster Technical Committee approved the

plan and forwarded it to the Lobster Management Board. The

Atlantic States Commission then began consideration of the LCMT

plan in April and May 1999, with plans to finish its assessment by

December 1999.

3. NMFS' Continued Rulemaking Under the Atlantic Coastal Act

While the LCMT was developing its recommendation to the

Atlantic States Commission, NMFS continued its efforts to develop

regulations governing the EEZ that would be compatible with the

measures applicable to state waters and recommended for federal

waters under Amendment 3. On January 15, 1999, after consideration

of the public comments received on its DEIS, NMFS published its

proposed rule in the Federal Register.

The proposed rule recommended setting trap limits of

2,000 in 1999 and 1,800 in 2000 for the offshore area. As the Area

3 LCMT plan had not yet been approved by the Atlantic States

Commission at this time, NMFS did not include the historic

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participation plan in its proposed rule. The public comment period

for the proposed rule ran from January 11, 1999 to February 26,

1999.

On May 10, 1999, NMFS published the Final Environmental

Impact Statement ("FEIS"). At this time, the Atlantic States

Commission had just completed public hearings on the LCMT plan, but

had still not yet approved the plan.

4. Adoption of the LCMT Plan and NMFS' Second Rulemaking

On August 3, 1999, more than one year after the deadline

set out in Amendment 3, the Atlantic States Commission finally

approved the LCMT plan for trap limits based on historic

participation and recommended that NMFS implement the substance of

the LCMT plan.

Based on this recommendation, NMFS promulgated a notice

of new proposed rulemaking on September 1, 1999, which included the

possibility that future conservation measures could be based in

part on historical participation in the lobster fishery. While

NMFS began this new separate rulemaking process based on historic

participation it simultaneously continued the rulemaking process

establishing flat trap limits pursuant to the Atlantic States

Commission's recommendations in Amendment 3.4

4
NMFS opted not to include the LCMT plan in the rulemaking
process that it had already begun because it would have had to
start the rulemaking process afresh, meaning that no plan would be
able to go into effect until this new process was completed. The
course of the rulemaking for this process was estimated by the

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5. NMFS' Final Rule and On-going Rulemaking on the LCMT Plan

On December 6, 1999, NMFS published the final rule

withdrawing the FMP for the American lobster and establishing

federal regulations under the Atlantic Coastal Act, which included

the flat trap limit set forth in the proposed rule. These

regulations were scheduled to take effect on May 1, 2000. The

relevant part of the promulgated regulations concerning offshore

Area 3 provide:

§ 697.19 Trap limits and trap tag requirements
for vessels fishing with traps.
.........
(b) Trap limits for vessels fishing or
authorized to fish in the EEZ Offshore
Management Area.
(1) Beginning January 5, 2000, through
April 30, 2000, vessels fishing only EEZ
Offshore Management Area 3, or, fishing only
EEZ Offshore Management Area 3 and the Area
2/3 Overlap, shall not fish with, deploy in,
possess in, or haul back from such area more
than 2,000 traps.
(2) Beginning May 1, 2000, vessels
fishing only in or issued a management area
designation certificate or valid limited
access American lobster permit specifying only
EEZ Offshore Management Area 3, or, specifying
only EEZ Offshore Management Area 3 and the
Area 2/3 Overlap, shall not fish with, deploy
in, possess in, or haul back from such area
more than 1,800 traps.

50 C.F.R. § 697.19.

defendant-appellee to last one to two years. NMFS stated that
"continued delay for full consideration of the LCMT plans until a
date yet to be determined by the Atlantic States Commission
jeopardizes needed management measures to protect the lobster
resource."

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 Despite this final rule, NMFS indicated that it was still

pursuing the LCMT plan under a separate on-going rulemaking

process. Accordingly, on December 10, 1999, NMFS published a

Notice of Intent to Prepare an Environmental Impact Statement for

the LCMT plan and requested written comments. NMFS also published

a supplemental DEIS and held public hearings in four states. As a

result of the comment process, on January 3, 2002, NMFS issued a

proposed rule based on the LCMT's historic participation plan. If

this proposed rule were adopted, it would replace the trap limit

set forth in the final rule that is challenged in this appeal.5

C. Procedural Background

Plaintiffs-appellants in the three underlying

consolidated cases are American lobster fishermen and lobster

business owners or shareholders, who all reside in or whose vessels

are berthed in Rhode Island. On January 4 and 5, 2000, the three

sets of plaintiffs filed complaints in the United States District

Court for the District of Rhode Island, challenging the Secretary

of Commerce's promulgation of the December 6, 1999 final rule

imposing the trap limits. Plaintiffs asserted that the final rule

violates the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701

5
The fact that the Secretary is currently promulgating a rule
that follows the recommendation of the Council does not mean that
he followed the proper procedure for the rule that is subject to
litigation. It actually might show prejudice, because if the
Secretary had consulted with the councils regarding the litigated
rule, perhaps he never would have passed it, but instead would have
adopted a historic participation model as he is doing now.

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et seq., various provisions of the Atlantic Coastal Act, the

Magnuson-Stevens Act, and the Regulatory Flexibility Act ("RFA"),

5 U.S.C. §§ 601 et seq. Plaintiffs sought a declaratory judgment

that the final rule was arbitrary and capricious and specific

relief ordering the Secretary to implement a trap limit regulation

based on historic participation.

After the defendant, the Secretary of Commerce, filed his

answer on April 11, 2000, the plaintiffs filed a consolidated

motion for summary judgment on October 20, 2000. The Secretary

filed an opposition motion and a cross-motion for summary judgment.

The district court then referred the case to a magistrate judge for

preliminary review, findings, and recommended disposition. On

May 4, 2001, after a hearing on the cross-motions for summary

judgment, the magistrate judge issued a Report and Recommendation

to the district court recommending that the court grant the

Secretary's motion for summary judgment and deny the plaintiffs'

motion. Plaintiffs filed timely objections to the magistrate

judge's report.

On August 7, 2001, the district court accepted the

magistrate judge's report and recommendation and granted summary

judgment in favor of the Secretary in the three consolidated cases.

On September 6, 2001, plaintiffs in one of the three underlying

suits, Campanale & Sons, Inc., C.E.H., Inc., and Narrangansett

Seahawk, Inc. (collectively "appellants"), filed a notice of appeal

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from the district court's final judgment. Appellants seek review

of only four of the claims that were presented to the district

court: (1) the Atlantic Coastal Act's "consultation" requirement;

(2) compliance with the Magnuson-Stevens Act's national standard 2;

(3) compliance with national standard 8; and (4) alleged violation

of the RFA.

II.

This Court reviews de novo a district court's grant of

summary judgment. See Associated Fisheries of Me., Inc. v. Daley,

127 F.3d 104, 109 (1st Cir. 1997). In this case, since appellants

allege violations of the Atlantic Coastal Act, the precise standard

of review is provided by the APA, 5 U.S.C. §§ 701 et seq. See

Dubois v. United States Dep't of Agric., 102 F.3d 1273, 1284 (1st

Cir. 1996) (applying APA standard of review to agency action under

federal statute which does not itself specify a standard of

review); see also 16 U.S.C. §§ 5101 et seq. (not discussing

judicial review for ACFCMA).

Under the APA's standard of review, this Court can set

aside agency action only if we determine such action to be

"arbitrary, capricious, an abuse of discretion," or "without

observance of procedure required by law," or otherwise contrary to

law. See 5 U.S.C. § 706(2)(A)-(D); see also Associated Fisheries,

127 F.3d at 109. When the issue is whether the agency followed the

requisite legal procedure, our review is limited, but exacting.

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See Natural Res. Def. Council, Inc. v. Sec. & Exch. Comm'n, 606

F.2d 1031, 1045, 1048-49 (D.C. Cir. 1979). We review only to

determine whether "statutorily prescribed procedures have been

followed." Id. at 1045. Thus, despite applying a de novo

standard, our review is narrow. See id.; see also Mass. v. Daley,

170 F.3d 23, 28 (1st Cir. 1999) ("[N]ominally reviewing the

decision de novo but effectively reviewing the Secretary's action

under the APA").

In exercising our review of the district court's grant of

summary judgment for defendant, we determine whether the summary

judgment record shows that there is no genuine issue as to any

material fact and whether the moving party is entitled to judgment

as a matter of law. See Fed. R. Civ. P. 56(c). In so doing, we

must view the record evidence in the light most favorable to the

non-moving party. See Feliciano de la Cruz v. El Conquistador

Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000).

III.

Appellants assert that the district court erred in

concluding that the Secretary satisfied the "consultation"

requirement of the Atlantic Coastal Act. The Atlantic Coastal Act,

in relevant part, provides, "[i]n the absence of an approved and

implemented fishery management plan under the Magnuson-Stevens

Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.),

and after consultation with the appropriate Councils, the Secretary

-16-
may implement regulations to govern fishing in the exclusive

economic zone," as long as such regulations are "compatible with

the effective implementation of a coastal fishery management plan"

and "consistent with the national standards" of the Magnuson-

Stevens Act. 16 U.S.C. § 5103(b)(1) (emphasis added).6 The ACFCMA

does not define "consultation."7

Appellants contend that the "after consultation with the

appropriate Councils" language requires the Secretary (or NMFS, as

his designee) to consult with the relevant Regional Councils, the

New England Fishery Management Council ("NEFMC") and the Mid-

Atlantic Fishery Management Council ("MAFMC"), before he is

permitted to implement regulations affecting the EEZ under the

Atlantic Coastal Act. As a result, appellants assert that issuing

regulations without first consulting these councils constitutes an

agency action "without observance of procedure required by law," 5

U.S.C. § 706(2)(D), warranting the regulations to be set aside.

Although appellants concede that the administrative record contains

6
We note that the Atlantic Coastal Act, a specific law, overrides
a more general law such as the APA.
7
The dissent analogizes to other cases in which we have held that
the National Historic Preservation Act and NEPA require only that
the agency be informed of and consider various alternative
positions. Those statutes, however, lack the specific consultation
language found in the Atlantic Coastal Act. The Atlantic Coastal
Act requires the Secretary to consult with the Regional Councils
because they are presumed to have expertise that the Secretary does
not. It therefore makes sense to impose a greater duty of
consultation in these cases because the Secretary may not otherwise
be fully informed.

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some correspondence between these councils and NMFS, appellants

argue that these letters were merely part of the public comment

process for agency rulemaking and did not constitute "consultation"

within the meaning of the Atlantic Coastal Act. Moreover,

appellants assert that any correspondence that did occur between

the councils and the Secretary was insufficient for consultation

because it occurred after the Secretary had already made decisions

and recommendations regarding the regulations.

The district court, rejecting the appellants' argument

that the Secretary implemented regulations without "consultation,"

granted summary judgment in favor of the defendant. The court

found that there was "sufficient evidence in the Record that NEFMC

and MAFMC gave their opinions or at least were afforded the

opportunity by NMFS to give their opinions on the proposed

regulations." Ace Lobster Co., Inc. v. Evans, 165 F. Supp. 2d 148,

172 (D.R.I. 2001). The evidence relied upon by the court was the

following: the FEIS was sent to the Executive Directors of NEFMC

and MAFMC; NMFS received public comments on the DEIS, some of which

were from NEFMC and MAFMC; and five comments on the DEIS were

authored in part by the NEFMC, to which NMFS responded directly.

Id. at 171. The court bolstered its conclusion that this

correspondence satisfied the consultation requirement by reasoning

that "the underlying statutory ideology of the ACFCMA--that of

state-influenced management of the lobster resource supported by

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the Federal government--is not offended by the perhaps less than

exhaustive 'consultation' with NEFMC and MAFMC (neither of which

are state-managed bodies)." Id. at 172. We disagree with the

court's conclusion that the evidence, viewed in the light most

favorable to appellants, sufficiently demonstrated consultation so

as to warrant summary judgment.

Our general rules of statutory interpretation dictate a

narrow course for us on review: unless the statutory language is

ambiguous, we generally are limited by its plain meaning. See

Herman v. Héctor I. Nieves Transp., Inc., 244 F.3d 32, 34 (1st Cir.

2001); see also Boivin v. Black, 225 F.3d 36, 40 (1st Cir. 2000)

("We assume that the words that Congress chose to implement its

wishes, if not specifically defined, carry their ordinary meaning

and accurately express Congress' intent."). In this case, there is

no ambiguity: "consultation" means what consultation ordinarily

means. See Black's Law Dictionary 311 (7th ed. 1999) (defining

consultation as "[t]he act of asking the advice or opinion of

someone").

The gravamen of the district court's error in finding

sufficient evidence of "consultation" is that it relied solely upon

correspondence that was part of a general public comment process

statutorily required by NEPA, rather than by the ACFCMA. See 42

U.S.C. § 4332 (requiring environmental impact statements to

accompany "every recommendation or report on proposals for

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legislation and other major Federal actions significantly affecting

the quality of the human environment" and to be made available to

the public). Thus, the cited correspondence between NMFS and NEFMC

or MAFMC did not differ from NMFS' correspondence with the general

public. Under NEPA, the FEIS was required to be made available to

the public at large, so the fact that NEFMC and MAFMC were provided

with a copy was simply part of this obligation. Moreover, when

NEFMC and MAFMC proffered public comments to the DEIS, they were

acting no differently than other members of the public who are

given an opportunity to respond to environmental impact statements

under NEPA. Consultation, within the parameters of the Atlantic

Coastal Act, must mean something more than general participation in

the public comment process on environmental impact statements,

otherwise the consultation requirement would be rendered nugatory.8

See Héctor I. Nieves Transp., 244 F.3d at 36 ("A primary canon of

statutory construction is that a statute should be construed so as

not to render any of its phrases superfluous.").

The Secretary, anticipating this argument, counters that

commentary by NEFMC or MAFMC, made as part of the NEPA process, can

8
There is no evidence to support the dissent’s view that the
consultation language is simply meant as a "fail-safe." Where the
statutory language is clear, it is not the role of the judiciary to
substitute its judgment for that of Congress. Here, Congress
specifically inserted a requirement to consult with the Agencies.
If Congress so intended, it could have easily explained that this
consultation was only necessary if the Secretary was not required
to release an EIS under NEPA.

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still constitute consultation under the Atlantic Coastal Act. The

Secretary contends that the ACFCMA "does not require that []

consultation occur through a distinct process or provide that it

cannot be combined with other statutory or regulatory processes."

Although the Secretary offers no legal support for this

proposition, we agree with the Secretary's position as a

theoretical matter; in some circumstances, consultation that occurs

pursuant to NEPA's requirements may also fulfill the Atlantic

Coastal Act's requirement of consultation.9 However, this is not

such a case.

Here, the comments made pursuant to NEPA and upon which

the district court relied are insufficient to satisfy the ACFCMA's

consultation requirement. NEPA was created, in part, "to promote

efforts which will prevent or eliminate damage to the environment

and biosphere and stimulate the health and welfare of man." 42

U.S.C. § 4321 (establishing congressional purpose of NEPA). In

view of this goal, NEPA requires that the public be given an

opportunity for public comment, see 42 U.S.C. § 4332, to help

ensure that the government is aware of and has considered all

significant environmental effects in formulating its proposed

action. Cf. Conservation Law Found., Inc. v. Busey, 79 F.3d 1250,

9
Contrary to the dissent’s assertion, we do not claim that the
requirements under NEPA and the Atlantic Coastal Act are redundant.
We agree that in some situations the two can be handled together.
Here, however, additional consultation was required by the Atlantic
Coastal Act, the paramount applicable statute.

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1271 (1st Cir. 1996) (commenting that NEPA is designed to force

government decision makers to consider environmental impact); Warm

Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1021 (9th Cir.

1980) (noting purpose of input under NEPA is "to further the

statutory purpose of encouraging widespread discussion and

consideration of the environmental risks and remedies associated

with the pending project.").

The ACFCMA, however, is more specifically designed "to

support and encourage the development, implementation, and

enforcement of effective interstate conservation and management of

Atlantic coastal fishery resources." 16 U.S.C. § 5101(b).

Although in some circumstances the goals of preventing

environmental damage under NEPA and conserving Atlantic coastal

fishery resources under the ACFCMA may coalesce, they are not

always synonymous. As a result, public comments made by one of the

Regional Councils in response to an environmental impact statement

under NEPA may not raise the same issues that the same council

would raise when consulting with the Secretary under the ACFCMA

about proposed regulations governing fishing in the EEZ. Thus,

without notice to the NEFMC or MAFMC that the Secretary was

intending to use their comments to the DEIS or FEIS to fulfill the

consultation requirement of the ACFCMA, the councils may not have

appropriately tailored their environmental comments to correspond

with advice they would have offered the Secretary under the

-22-
ACFCMA.10 In this case, the Secretary did not provide any such

notice to the Regional Councils. Thus, it was inappropriate for

the district court to rely on the DEIS/FEIS public comments as

showing that NEFMC and MAFMC "were afforded the opportunity by NMFS

to give their opinions on the proposed regulations." Although the

councils were given the opportunity to offer their environmental

assessments of the proposed regulations, the documents relied upon

by the district court do not demonstrate that NMFS solicited the

councils' advice regarding the soundness of the regulations for

conserving Atlantic Coastal fishery resources.11

However, even if the district court erred in relying on

the environmental impact statement commentary as sufficient

evidence of consultation, we can still affirm the district court's

judgment if there are other grounds evident in the record to

support the court's finding of consultation. See Houlton Citizens'

Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999).

The Secretary points to a number of documents as supporting his

10
We are not engrafting a notice requirement onto the ACFCMA.
Rather, we are suggesting that the Secretary might satisfy both
NEPA and the Atlantic Coastal Act by providing notice that the DEIS
is meant to elicit all comments from the councils.
11
Furthermore, while the Secretary may have been aware that the
councils preferred trap limits based on historic participation,
there is no evidence that NMFS understood the reasons for this
preference.

-23-
claim that NMFS properly consulted NEFMC and MAFMC.12 While some

of these documents do show correspondence between NMFS and NEFMC

and/or MAFMC, many involve general discussions about management of

the lobster fishery rather than specific views about the proposed

conservation measures for the EEZ. Moreover, although the

administrative record arguably does indicate that NMFS kept NEFMC

informed of its intent to withdraw the lobster FMP and instead

regulate under the Atlantic Coastal Act, NMFS never requested

12
The dissent finds that nine documents between NMFS and the New
England Council demonstrate sufficient consultation for purposes of
the Atlantic Coastal Act. We find this evidence insufficient.

Items 1-4, 5 and 7 concern a discussions of the FMP that was
in place until March 1996. The Council was fighting to maintain
the existing FMP, while NMFS proposed to amend or withdraw it.
Item 8 simply alerted the Council that NMFS would withdraw the FMP
and proceed under the Atlantic Coastal Act.

Item 6 references a meeting regarding a "stock assessment" and
the biology and productivity of American lobster. There is nothing
to suggest this meeting discussed the FMP or any new regulations.

Thus, until March 1996, all relevant discussion had concerned
whether to amend the FMP or withdraw it. No alternative
regulations had been proposed. These general correspondence are
not applicable to whether or not NMFS consulted with the Council
before implementing the challenged rule. It was not until NMFS
announced that the FMP would be withdrawn and regulations would be
imposed under the Atlantic Coastal Act that the Act, and its
consultation requirement, even came into play.

The first time NMFS announced its proposed alternatives was in
the DEIS, released March 17, 1998. Item 9 is the Council's
response to the publicly released DEIS, and the first time the
Council expressed its preference for a historic participation
model. This public commentary is the only possible "consultation"
because it is the only time the Council was responding to specific
proposed regulations.

-24-
NEFMC's or MAFMC's opinion or advice regarding this intent, but

merely stated that NMFS "will keep [NEFMC] informed." The

Secretary does not proffer any evidence in the administrative

record where NMFS affirmatively solicits advice or an opinion from

the Regional Councils regarding its proposed regulations.13

Even after our independent review of the lengthy

administrative record in this case, we are unable to find any

evidence that NMFS "ask[ed] the advice or opinion" of NEFMC or

MAFMC, or afforded them a proper opportunity to express their

opinions, regarding the proposed rule. Although we agree with the

district court that ACFCMA "is not offended by . . . perhaps less

than exhaustive 'consultation' with NEFMC and MAFMC," there must be

some effort by NMFS to receive the councils' views regarding

proposed regulations over Atlantic Coastal fishery resources and

then consider such advice. Consultation with the relevant councils

is key in the Secretary's development of effective regulations

because the councils have valuable expertise and insight. See 16

U.S.C. §§ 1852(h)(3) (requiring the councils to conduct public

hearings "to allow all interested persons an opportunity to be

heard in the development of fishery management plans"), 1852(h)(5)

13
This court has the discretion to consider the issue of
harmlessness sua sponte and to overlook the parties' failure to
argue it. See United States v. Shea, 159 F.3d 37, 40 (1st Cir.
1998). However, we do not believe that this case is an appropriate
one in which to exercise that discretion. The harmlessness inquiry
here is a factual one, and one we think best undertaken initially
by the district court.

-25-
(requiring councils to review and revise assessments of the optimum

yield from each fishery), 1852(b)(2)(A) (requiring that council

members be qualified by expertise regarding conservation and

management of fishery resources). Without some communication

between NMFS and the councils to elicit such expertise, the

consultation requirement is meaningless.14

We rule that there is insufficient evidence in the record

to show that the Secretary complied with Congress' explicit

procedural requirement to consult with the appropriate councils

before implementing regulations governing fishing in the EEZ.

14
The dissent argues that "at least some deference is owed the
agency's view that it has engaged in consultation [because]
Congress has left it to the Secretary to reasonably construe
'consultation' [and] deference is also owed agencies due to their
'specialized experience.'" These statements, although correct as
generalities, hardly fit the circumstances of this appeal. We are
unaware of any line of cases that allows an agency to make a
binding determination that it has complied with specific
requirements of the law. Although the agency can in the first
instance conclude that it has engaged in consultation, this self-
serving conclusion cannot be the end of judicial inquiry if a party
properly makes a challenge, as has happened in this case. See 5
U.S.C. § 706 (providing for judicial review of agency actions). As
to the so-called "specialized experience" of the agency, it would
appear that it is the courts that qualify for such a title on an
issue of legislative interpretation. Interpretation of the word
"consult" is purely a legal question for the courts. See 5 U.S.C.
§ 706 ("the reviewing court shall decide all relevant questions of
law [and] interpret . . . statutory provisions"). Using
traditional methods of statutory construction, we hold that the
agency did not adequately consult with the Councils, as required by
statute. Such a legal determination does not require deference to
the agency. See INS v.Cardoza-Fonseca, 480 U.S. 421, 446 (1987);
accord Grinspoon v. Drug Enforcement Admin., 828 F.2d 881, 885 (1st
Cir. 1987) (interpreting a statute without deference to the
agency's interpretation).

-26-
Thus, we reverse the district court's grant of summary judgment for

defendant and remand for further proceedings consistent with this

opinion.15

IV.

Because we find that the summary judgment record on the

consultation issue, viewed in the light most favorable to

appellants, does not support judgment as a matter of law for

defendant, we reverse and remand the case for further proceedings

consistent with this opinion.

"Dissent follows"

15
Because we reverse summary judgment on the consultation issue,
which may be determinative of whether the regulations will be set
aside under 5 U.S.C. § 706(2)(D), we need not address the
appellants' remaining claims.

-27-
 LYNCH, Circuit Judge (Dissenting). Despite my respect

for my colleagues, I dissent. By any definition the Secretary has

engaged in "consultation": he sought comments from the Council on

the very point at issue (a possible rule based on historic

participation), received them in writing, and responded in writing.

The majority says this exchange does not count because the

Secretary did so in the course of receiving public comments on a

draft Environmental Impact Statement (DEIS) under the National

Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370 (2000).

The majority argues that if this did count as consultation, that

would make the separate consultation requirement of 16 U.S.C.

§ 5103(b)(1) (2000) redundant, and Congress does not enact

superfluous provisions. With respect, the majority is, in my view,

quite wrong in its ruling on statutory interpretation.

The majority also argues that even if there were no

redundancy, further consultation is required, but does not say why.

In fact, the two statutes cover similar concerns -- including both

economic and environmental considerations -- and there is no need

for further consultation.

Moreover, even if the majority's statutory interpretation

is correct, there is still the question of whether the plaintiffs

have demonstrated prejudicial error under 5 U.S.C. § 706 (2000) or

are entitled to any relief. The district court should address

these issues on remand.

-28-
 I.

The majority holds that the Secretary cannot meet his

obligation to consult with the New England Council under

§ 5103(b)(1) by giving notice of proposed alternative approaches to

the lobster overfishing problem to the Council, receiving

commentary from the Council, and responding to those comments

because he did so in the course of meeting NEPA requirements. The

majority reaches this holding because it believes that the

consultation requirement would otherwise be rendered redundant.

That is not so.

The majority's reasoning necessarily rests on the premise

that in all situations the consultation requirement of § 5103(b)(1)

would be rendered redundant if an agency could be said to have

consulted under ACFCMA by complying with the notice and comment

requirements under NEPA for a DEIS. That premise -- that the

universe of regulation under ACFCMA and NEPA are perfectly

congruent, like circles atop each other -- is fallacious, as shown

below. In many circumstances there is no overlap and no possible

redundancy.

ACFCMA, 16 U.S.C. §§ 5101-5108 (2000), authorizes the

Atlantic States Marine Fisheries Commission to develop coastal

management plans. Id. § 5104(a). Plans adopted by the Commission

may not be implemented by the Secretary until "after consultation

with the appropriate Councils." Id. § 5103(b)(1). The strictures

-29-
of NEPA require that a federal agency issue an environmental impact

statement (EIS) only for "major Federal actions significantly

affecting the quality of the human environment." 42 U.S.C.

§ 4332(C) (2000). If the proposed action would not have a

significant effect on the environment, the agency need not produce

an EIS. See 40 C.F.R. §§ 1501.4(e), 1508.9(a)(1) (2001).

Given that there was a separate requirement of notice and

opportunity to comment under NEPA, it is fair to ask why Congress

imposed a consultation requirement in ACFCMA. The most plausible

reading is that Congress wished to assure that if consultation did

not occur in the process of meeting other regulatory requirements,

there would be consultation with the councils in any event. The

consultation requirement is a fail-safe.

There may well be situations in which that fail-safe is

needed. The majority itself notes one such situation: when the

DEIS does not cover the subject matter of the proposed regulation

on which there should be consultation with the council. The

majority thus refutes its own logic, which rests on a claim of

redundancy. Another example is when the Secretary's proposed

regulation does not require issuance of a DEIS, because the

regulation would not have a significant effect on the environment.

A third is when the Secretary does not, in the course of the DEIS,

give specific notice to the councils and they, ignorant of the

opportunity, do not comment. The circles of regulatory scope of

-30-
ACFCMA and NEPA do not sit atop each other, but instead constitute

a Venn diagram, with only partial overlap. The lack of contiguity

between the regulatory schemes eliminates the redundancy argument

upon which the entire logic of the majority opinion rests.

Furthermore, that portions of the NEPA and ACFCMA

regulatory regimes may overlap does not create an objectionable

redundancy. A great many systems have redundancy built in, just to

provide an additional fail-safe. No one considers those redundant

systems to be superfluous; they are there for a purpose.

Rather, it is the majority's opinion which will create a

duplication of effort which is contrary to congressional intent.

Congress surely prefers agencies to be efficient and avoid

unnecessary procedural steps. That is the thrust of the Regulatory

Flexibility Act, 5 U.S.C. §§ 601-612 (2000), among many other laws.

See, e.g., Paperwork Reduction Act of 1995, 44 U.S.C. §§ 3501-3521

(2000). Congress also prefers, as NEPA itself says, that the

agencies try to coordinate and administer in a coherent fashion

their various environmental responsibilities. See 42 U.S.C.

§ 4332. Yet the majority opinion holds that the Secretary must

meet his obligation to consult with the New England Council about

the best way to protect lobsters and the lobster fishery in a

separate procedure totally apart from the public procedure of DEIS

comments on the possible alternative solutions to the very same

problem of lobster overfishing. On these facts, the majority's

-31-
requirement that there be a separate procedure of consultation

creates redundancy, inefficiency, and delay. See Coalition for

Lower Beaufort County v. Alexander, 434 F. Supp. 293, 295 (D.D.C.

1977) (NEPA "was not intended to create a bureaucratic nightmare in

which form rather than substance governs").

That is a bad outcome in any situation. It is a

particularly bad outcome where Congress has specifically retooled

regulation in the area of fisheries through ACFCMA, taking power

away from the councils in order to make the regulatory system

speedier and more efficient. Further detail on this regulatory

background is set forth as Appendix A. And even worse, the

majority's outcome introduces delay into the very process Congress

tried to place on a fast track: the protection of the lobster

fishery.16

The statute does not, contrary to the majority, prohibit

the Secretary from complying with the consultation requirement of

ACFCMA and the notice and hearing requirements of NEPA at the same

time. Congress would applaud such initiative. The agency here did

not engage in empty formalisms. It specifically sent the various

16
In September 1996, Congress passed fisheries legislation that
established new general procedures for the revocation of an FMP,
but which recognized the urgency of the lobster overfishing
problem. The new provision exempted only the lobster FMP, by name,
from the new requirements. See Sustainable Fisheries Act of 1996,
Pub. L. No. 104-297, § 109(i), 110 Stat. 3587, 3587 (1996). This
congressional action advanced the Secretary's goal of transferring
authority over lobster management from the Council to the
Commission.

-32-
regulatory options to the Council, received pertinent comments, and

responded to them. The historic participation model for trap

limits, the very plan plaintiffs now claim was not the subject of

consultation, was among the alternatives included in the DEIS.

This communication satisfied the policy concerns behind both

ACFCMA's consultation requirement and NEPA's EIS requirement.

The majority, in footnote nine, attempts to avoid the

weakness of its redundancy logic by saying that it does not really

rely on redundancy, but that the requirements of ACFCMA and NEPA

could not be handled together because "some additional consultation

was required." The majority does not explain why. It certainly

cannot be that there was no opportunity for the Council to comment

on material issues during the course of its NEPA response. First,

§ 5103(b)(1) does not require that the Secretary consult with the

councils on particular specific matters. In fact, under § 5103(b),

the only requirement for valid consultation is that it occur before

the regulation in question is implemented. Second, the majority

may mistakenly assume in footnote nine, without any analysis, that

there was no consultation on the economic impact of the purported

regulation. This, in turn, rests on the erroneous assumptions

that: (a) NEPA commentary does not address economic impact, and (b)

NEPA commentators are precluded from discussing economic impact.

Both assumptions are wrong as a matter of law. Both assumptions

are factually untrue.

-33-
 The purpose of the EIS under NEPA is very similar to the

purpose of the ACFCMA consultation requirement: "[T]he EIS helps

. . . to ensure that the agency takes a 'hard look' at the

environmental consequences of its proposed action and to make

information on the environmental consequences available to the

public, which may then offer its insight to assist the agency's

decision-making through the comment process." DuBois v. United

States Dept. of Agric., 102 F.3d 1273, 1285-86 (1st Cir. 1996).

Where the policies promoted by the requirements under ACFCMA and

NEPA -- "consultation" and "notice and comment" -- are so similar,

it makes sense for the agency to handle them together. Moreover,

the path the agency took had the added benefit that the public

could see the Council's comments and the Secretary's response.

There was no "consultation" behind closed doors or at an obscure

meeting.

While one purpose of NEPA and its EIS requirements is

environmental protection, another is to strike a balance between

that protection and economic productivity. See 42 U.S.C. § 4321

(describing the purposes of NEPA as including "encourag[ing]

productive and enjoyable harmony between man and his environment").

Similarly, environmental impact statements must address "the

relationship between local short-term uses of man's environment and

the maintenance and enhancement of long-term productivity."

-34-
§ 4332(C)(iv). In short, the nature of NEPA's provisions addresses

economic as well as environmental factors.

Here, as a matter of fact, the Council was on notice that

the lobster fishery DEIS and request for comments put economic

considerations on the table. The DEIS issued by the agency, in its

opening paragraphs, made this clear: "The DEIS considers the

biological and economic effects of several alternative actions for

waters under federal jurisdiction" (emphasis added).

Even had the DEIS not made the breadth of issues open for

comment so explicit, there is no restriction on the subject matter

or content of comments made to an agency issuing an EIS. The

Council was free to respond to the DEIS however it wished. Further

economic concerns were relevant in the response.

The majority attempts to justify its result by saying

that it is required by the plain meaning of the statute. That is

a red herring. The majority's reasoning rests not on plain meaning

but on a supposed redundancy between two statutes (a redundancy

that does not exist) or a supposed preclusion of economic

commentary (a preclusion that does not exist).

Even if plain meaning were somehow at issue, the

disagreement really is not about a dictionary definition of

"consultation." The dispute is about which of the very many ways

there are of eliciting the views of others amounts to the sort of

-35-
"consultation" Congress intended. On this point, there is

ambiguity and the statute does not tell us the answer.

The statutory text containing the "consultation"

requirement is clear in certain respects. It is clear that the

"consultation" need take place only before "implementation" of the

regulation; section 5103(b)(1) imposes no other constraints on when

consultation can take place. Any consultation between the agency

and the councils on the subject addressed by the proposed

regulations would meet the strictures of § 5103(b)(1), then, even

if that consultation took place before formal notice of the

proposed rule. The long-running communication between the

Secretary and the Council, summarized in Appendix B, demonstrates

just this sort of pre-implementation consultation.

The statute is also clear that there is no separate

notice provision requiring that the Secretary announce that he is

"consulting" with the councils or that the councils be informed of

exactly how the Secretary plans to meet the consultation

requirement. Courts are not free to engraft additional procedural

requirements onto § 5103(b)(1) when Congress has not done so. Cf.

Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council,

Inc., 435 U.S. 519, 545 (1978) (prohibiting judicial additions to

the procedural requirements of the Administrative Procedure Act

(APA), 5 U.S.C. §§ 551-559, 701-706 (2000)). By creating a

requirement that the agency give separate notice to the councils

-36-
that the DEIS comment period is meant to meet the parallel ACFCMA

consultation requirement as well, the majority makes precisely this

error.

When analyzing similar, though not identical, language in

other statutes that are designed to produce informed

decisionmaking, this court has required only that the agency be

informed of and consider various alternatives or positions. In our

NEPA decisions this court has said that the court's substantive

role is "only to assure itself that the agency has given good faith

consideration to the environmental consequences of its actions and

should not pass judgment on the balance struck by the agency among

competing concerns." Roosevelt Campobello Int'l Park Comm'n v.

United States Envtl. Prot. Agency, 684 F.2d 1041, 1045 (1st Cir.

1982); see Baltimore Gas & Elec. Co. v. Natural Res. Def. Council,

Inc., 462 U.S. 87, 105 (1983); see also Save Our Heritage, Inc. v.

Fed. Aviation Admin., 269 F.3d 49, 58 (1st Cir. 2001) (the National

Historic Preservation Act (NHPA) "imposes both a substantive

obligation to weigh effects . . . and a procedural obligation to

consult"); DuBois, 102 F.3d at 1284 ("'NEPA does not mandate

particular results'; it 'simply prescribes the necessary

process.'") (quoting Robertson v. Methow Valley Citizens Council,

490 U.S. 332, 350 (1989); Robertson, 490 U.S. at 350 ("If the

adverse environmental effects . . . are adequately identified and

evaluated, the agency is not constrained by NEPA from deciding that

-37-
other values outweigh the environmental costs."); Vermont Yankee,

435 U.S. at 558 (Congress, in enacting NEPA, meant only "to insure

a fully informed and well-considered decision"). The analogous

additional procedural requirements of ACFCMA, then, are designed

only to ensure that an agency takes particular factors into

consideration when making decisions. That has surely been done

here.

Finally, for two different reasons, at least some

deference is owed to the agency's view that it has engaged in

consultation. First, Congress has left it to the Secretary to

reasonably construe "consultation." ACFCMA on this point is in

contrast with NHPA, 16 U.S.C. § 407f. Under NHPA, Congress

empowered the Advisory Council on Historic Preservation to

promulgate rigorous procedural rules governing the consultation

process. Id. § 470s. The actual consultation process under NHPA

has not been left up to the individual agencies but has been

codified by regulation. 36 C.F.R. Part 800 (2001). Here, by

contrast, the regional councils have not been given any formal

power to determine the structure or content of the consultation

process. Given the counter-example of NHPA and Congress's choice

not to pursue a similar path under ACFCMA in § 5103(b)(1), Congress

apparently intended that the Secretary here be permitted to

determine the appropriate consultation procedures (subject to the

-38-
underlying APA constraint that the interpretation not be arbitrary

and capricious).

Deference is also owed agencies due to their "specialized

experience." Skidmore v. Swift & Co., 323 U.S. 134, 139 (1944);

see United States v. Mead Corp., 533 U.S. 218, 234-39 (2001)

(applying Skidmore deference). The consultation requirement of

§ 5103(b)(1) is not a generalized procedural hurdle; it requires

that the Secretary consult with a particular set of organizations

with which the agency is intimately familiar. The Secretary was

presumably aware of how best to consult with the regional councils

regarding fishery regulation. He consulted with the New England

Council over a period of many years, as described in Appendix B,

and we should accept his entirely reasonable determination that

this consultation was adequate under ACFCMA.

The Secretary's regulation of the lobster fishery is

taking place on two tracks, one slightly in advance of the other.

In addition to the rule now being challenged, the Secretary has

proposed, received comments on, but not yet adopted a new

replacement rule which follows the historic participation model for

setting trap limits. See American Lobster Fishery, 67 Fed. Reg.

282 (proposed Jan. 3, 2002) (to be codified at 50 C.F.R. Part 697);

see also Extension of Comment Period, 67 Fed. Reg. 4697 (Jan. 31,

2002) (extending comment period on proposed historic participation

rule until Feb. 28, 2002). This is the model that plaintiffs in

-39-
the present case prefer. The proposed rule should be made final

soon, the comment period having closed over seven months ago. The

Secretary's version of a historic participation model works out

many technical details that were incomplete when the rule

challenged in this litigation was proposed. The consideration of

this proposed rule again shows that consultation took place and the

Council's concerns were heard. Presumably implementation of a

historic participation rule will moot this appeal.

II.

This court has discretion to determine the harmlessness

of the error, although neither side has briefed the issue to us.

United States v. Shea, 159 F.3d 37, 40 (1st Cir. 1998)

(harmlessness can be raised sua sponte); United States v. Rose, 104

F.3d 1408, 1414 (1st Cir. 1997) (same); see Save Our Heritage, 269

F.3d at 61 (applying harmless error sua sponte in an administrative

review context); Moulton v. Rival Co., 116 F.3d 22, 26 (1st Cir.

1997) (applying harmless error analysis in a civil context). The

majority opinion chooses not to exercise that discretion,

preferring to remand the issue to the district court.

Some reference to the common standards in the area may be

of assistance on remand. Judicial review of agency rulemaking is

not directly analogous to judicial review of an agency

adjudication:

A judicial determination that an agency erred
in the process of adopting a new policy does

-40-
 not necessarily mean that the status quo ante
-- the agency's old policy -- is superior to
the agency's new policy. Frequently, the
basis for setting aside the new policy is
remote from the central purpose and basis of
the new policy. Yet, judicial review of the
agency rulemaking process is so demanding that
the process of policymaking on remand from a
court decision reversing an agency decision
usually requires many years. If the new
policy is superior to the old policy, the
public can suffer significant harm
attributable to the years of delay.

1 R.J. Pierce Jr., Administrative Law Treatise, § 7.13 (4th ed.

2002).

This is one reason that the APA instructs a reviewing

court to consider whether the alleged error caused actual

prejudice. See 5 U.S.C. § 706 (mandating that when a court reviews

an agency action, "due account shall be taken of the rule of

prejudicial error"). The burden is on the plaintiffs to show such

prejudice. See Air Canada v. Dep't of Transp., 148 F.3d 1142, 1156

(D.C. Cir. 1998); see also Nieves-Villanueva v. Soto-Rivera, 133

F.3d 92, 102 (1st Cir. 1997) ("In a civil case, the party asserting

error bears the burden of demonstrating that the error was harmful

. . . .").

Our court and others have interpreted this APA

requirement as a harmless error rule, and have refused to grant

relief when a procedural error in the regulatory process (or an

alleged one) did not produce a different result for the plaintiff.

See, e.g., Save Our Heritage, 269 F.3d at 61-63 (finding agency's

-41-
alleged failure to consult under NHPA was harmless error where

impact on historic site was de minimis); First Am. Discount Corp.

v. Commodity Futures Trading Comm'n, 222 F.3d 1008, 1015-16 (D.C.

Cir. 2000) (holding failure to provide notice and seek comments on

alternative compliance mechanism was harmless error where plaintiff

had invoked that mechanism); Sierra Club v. Slater, 120 F.3d 623,

637 (6th Cir. 1997) (finding error in notice harmless because a

"notice requirement was functionally satisfied" through other

means).

Further, even if the Secretary had erred by failing to

consult and even if the error were prejudicial to plaintiffs, that

still would not lead to vacating the regulation. It is in the

reviewing court's sound discretion to remand a rule to an agency to

mend procedural defects without overturning it in its entirety.

See Cent. Me. Power Co. v. Fed. Energy Regulatory Comm'n, 252 F.3d

34, 48 (1st Cir. 2001) (declining to enjoin regulation while case

remanded to agency for further explanation); Sugar Cane Growers

Coop. of Fla. v. Veneman, 289 F.3d 89, 98 (D.C. Cir. 2002)

(remanding rule that violated notice and comment requirements

without vacating it because of chaotic practical consequences of

vacating); United Mine Workers v. Fed. Mine Safety & Health Admin.,

920 F.2d 960, 967 (D.C. Cir. 1990) ("Relevant to the choice are the

seriousness of the order's deficiencies . . . and the disruptive

consequences of an interim change that may itself be changed.").

-42-
 The district court should also consider this issue on

remand.

III.

Because I differ with the majority's holding, I

respectfully dissent.

-43-
 Appendix A: Background

A. Statutory Context

The Secretary's regulation of federal waters is meant to
be done in coordination with the states' regulation of their own
coastal waters. The original model was one established by the
Magnuson-Stevens Act. 16 U.S.C. §§ 1801-1883 (2000). That
statute, first enacted in 1976, see Fishery Management and
Conservation Act, Pub. L. No. 94-265, 90 Stat. 331 (1976),
established eight regional councils, including the New England
Council, composed of representatives of various stakeholders, such
as state regulators, industry, environmentalists, and academics.
Id. § 1852(a)(1). The Magnuson-Stevens regime established a
complex relationship between the Secretary and the regional
councils which afforded the latter considerable power. For
example, while it was the Secretary who determined that a
particular aquatic species needed conservation measures to stop
overfishing, it was the council that then developed the fishery
management plan (FMP) in response, which the Secretary, through his
designee the National Marine Fisheries Service (NMFS), either
approved or disapproved. Id. § 1852(h). Not surprisingly, this
process was cumbersome and diffused authority too much.

In response, Congress enacted the Atlantic Coastal
Fisheries Cooperative Management Act (ACFCMA) in 1993. Pub. L. No.
103-206, Title VIII, §§ 801-811, 107 Stat. 2419, 2447 (1993). It
is that statute which we interpret. The ACFCMA relied on the
Atlantic States Marine Fisheries Commission ("Atlantic States
Commission" or "Commission"), an organization more closely
controlled by state governments, to play a more active role in the
process of developing regulation over fisheries in federal waters.17
See 16 U.S.C. § 5101(a)(4). According to the Secretary, some
members of the New England Council also sit on the Atlantic States
Commission.

17
The Atlantic States Commission was formed originally by a
congressionally-approved interstate compact in 1942. See Pub. L.
No. 77-539, 56 Stat. 267 (1942). It is composed of three
representatives from each state on the eastern seaboard (as well as
the District of Columbia): a state legislator, the head of the
state agency responsible for fishery management, and a
gubernatorial nominee with "knowledge of and interest in the marine
fisheries problem." See id. at Art. III.

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 Under the ACFCMA, the Atlantic States Commission now
develops its own management plans for Atlantic waters, called
coastal management plans (CMPs), which are distinct from the FMPs
developed by regional councils. See 16 U.S.C. § 5104(a)(1)
(authorizing Atlantic States Commission to "prepare and adopt
coastal fisheries management plans to provide for the conservation
of coastal fisheries resources"). In preparing a CMP, the Atlantic
States Commission in turn consults with the appropriate regional
councils. Id. The statute did not disband the regional councils
on the east coast, but it did reduce their power over regulation in
the EEZ. The Secretary now has the authority to work principally
through the Commission when developing new regulations for the EEZ.
See 16 U.S.C. § 5103. The regulations promulgated under that
authority are subject to the conditions that give rise to the
disputes in this case.

B. Regulatory Process Leading to the Challenged Rule

The regulatory process which resulted in the challenged
regulations took a period of years; we view it as starting before
1995. The need for more aggressive action to preserve the Atlantic
lobster fishery has been evident since at least 1993, when a report
revealed that the American lobster stock was overfished.18 That
finding was reinforced by a lobster stock assessment in 1996. On
September 30, 1997, the NMFS placed the American lobster on a list
of overfished fisheries.

Prior to that, in July of 1995, the New England Council
had corresponded with the NMFS and various states, attempting to
get all to agree in concept, before there were any public hearings
about it, to the lobster management strategy developed by the
Council's Effort Management Teams (EMTs). The NMFS responded that
the staff of the two groups had already been involved together in
the development of lobster management plans by EMTs, that many of
the states had declined to participate in the Council's proposed
process, and that the agency would therefore consider using its
power under ACFCMA and withdrawing the New England Council's
lobster FMP.

The Secretary then published an advance notice of
proposed rulemaking (ANPR), indicating that NMFS was considering
such a process under the ACFCMA and asking for comments. See

18
Attempting to address the same lobster overfishing problem, the
New England Council had also amended its FMP for the American
lobster seven times from 1986 to 1999. The Secretary corresponded
with the Council about the adequacy of these amendments.

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Advance Notice of Proposed Rulemaking, 60 Fed. Reg. 48,086 (Sept.
18, 1995). The ANPR explained that acting under ACFCMA "would
remove management responsibility for the lobster fishery from the
[New England] Council's purview," although the resulting
regulations could incorporate ideas from the Council's EMT plans.
One affected state responded that it preferred the rulemaking to be
transferred to the Atlantic States Commission from the New England
Council. On February 23, 1996, the NMFS informed the New England
Council in a letter that it intended to shift rulemaking for the
American lobster in the EEZ to the Atlantic States Commission, and
that it would encourage the Commission to come up with a more
definite lobster fisheries plan. A month later, the NMFS announced
its initial determination that it would withdraw approval of the
New England Council's FMP for American lobster and, in order to see
that the fishery more closely complied with state administrative
programs, issue regulations formulated through the Atlantic States
Commission under ACFCMA. See American Lobster Fishery; Removal of
Regulations, 61 Fed. Reg. 13,478 (Mar. 27, 1996).

In September 1996, Congress passed fisheries legislation
that established new general procedures for the revocation of an
FMP, but which recognized the urgency of the lobster overfishing
problem by making it easier for the Secretary to withdraw approval
of the lobster FMP. The new provision exempted only the lobster
FMP, by name, from the new requirements. See Sustainable Fisheries
Act of 1996, Pub. L. No. 104-297, § 109(i), 110 Stat. 3587 (1996).
This congressional action advanced the Secretary's goal of
transferring authority over lobster management from the Council to
the Commission.

Prompted by the Secretary's actions, the Atlantic States
Commission began to develop a plan for the conservation of the
American lobster fishery. In December 1997, the Commission
approved Amendment 3 to its Interstate Fishery Management Plan.
The Amendment established an advisory group (the Lobster
Conservation Management Team or "LCMT"), including plaintiff
Campanale and Sons, Inc. ("Campanale") and other industry
representatives, to recommend a lobster management plan based on
historic participation. Amendment 3 also included a uniform limit
of 2000 traps as a default measure that would take effect unless
the LCMT came up with an alternate plan by certain deadlines.

In furtherance of Amendment 3, on March 17, 1998 NMFS
issued a draft environmental impact statement ("DEIS") pursuant to
the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-
4370 (2000). The DEIS sought to evaluate alternative management
measures for federal waters that would be compatible with the
measures developed under Amendment 3. Among the alternatives, the

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DEIS expressly considered: maintaining the status quo (Alternative
1); implementing Amendment 3's default limitation of 2000 traps
(Alternative 2); implementing a nearshore/offshore trap cap
differential, with a buffer zone, and continuing existing
management measures (Alternative 3); a two-tier nearshore and
offshore trap limit with a buffer zone (Alternative 4); nearshore
uniform trap limits and offshore limits set by historic
participation (Alternative 5); and banning fishing for and
possession of lobsters (Alternative 6). As required under NEPA,
NMFS requested public comments on the alternatives set forth in the
DEIS. See Council on Environmental Quality NEPA Regulations, 40
C.F.R. Pts. 1502, 1503 (2002) (explaining EIS and public comment
process). A number of public hearings were also held on the DEIS
in the various states that participate in the lobster fishery.

The New England Council was specifically sent the DEIS so
that it could comment. The DEIS also itself referred to prior
interactions between NMFS and the New England Council on the
matter. The DEIS noted that the New England Council, when it was
revising its FMP, had missed the deadline for adopting a plan and
had not reached a "final agreement" on specific measures to prevent
lobster overfishing. The New England Council did respond to the
DEIS and indicated its support for an alternative based on historic
participation rather than a uniform flat trap limit.

On May 10, 1999, the Secretary issued a Final
Environmental Impact Statement (FEIS), which reflected comments
that had been received, including those from the New England
Council. The Council had commented that in selected management
areas it supported a historic participation trap limit. The
Secretary responded that this approach had also been proposed
through the LCMT as part of the Commission's deliberations and was
the specific subject of hearings to be held by the Commission in
May of 1999. The response also supported an industry-wide
evaluation by the Commission "on the merits of historic
participation."

The LCMT and the Atlantic States Commission did not meet
the deadlines set in Amendment 3 for development of the historic
participation rule. That, in turn, created an obligation for the
Secretary to come up with at least an interim rule. The flat trap
limit rule that was adopted, and is the subject of this lawsuit,
was compatible with the default limit of 2000 traps set by the
Commission in Amendment 3.

The Secretary proposed the challenged rule in January
1999. At that time the Commission still had not completed a viable
historic participation rule. The Secretary delayed publication of

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a final rule, giving the Atlantic States Commission yet more time
to act. The Secretary finally promulgated the rule, implementing
a flat trap limit consistent with the Commission's default measure,
in December 1999. See American Lobster Fishery, 64 Fed. Reg.
68,228 (Dec. 6, 1999) (to be codified at 50 C.F.R. Part 697).

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 Appendix B: Secretary's "Consultation" Actions

Arguing that he did consult, the Secretary points to a
number of documents (including documents which reflect staff level
communication between the Secretary and the New England Council),
to the comments submitted by the New England Council in response to
the DEIS, and finally to the involvement of the Atlantic States
Commission, on which members of the regional councils sit. Taken
together, these interactions satisfied the "consultation"
requirement of § 5103(b)(1), as the Secretary contends:

1). A 1994 letter from NMFS to the New England Council
concerning approval and disapproval of some FMP amendments that the
Council had proposed, and warning that the Secretary might withdraw
approval of the FMP and promulgate new rules through the Atlantic
States Commission "under the Atlantic Coastal Act."

2). Letters sent in July 1995 by the New England Council
to state regulators and to the NMFS regional director, Andrew
Rosenberg, seeking to get them all to agree in concept to the
Council's lobster strategy, based on the EMT plans, before public
hearings about it that fall.

3). A response letter, dated August 9, 1995, from
Rosenberg to the New England Council. Rosenberg says that NMFS
staff had already been involved in development of the EMT plans,
and had raised their "[ l]egal and enforcement concerns" in that
process. He goes on to note the "recent letters from the states
opting out of this cooperative effort" -- apparently referring to
state regulators' responses to the Council's July 1995 inquiries.
As a result, Rosenberg concludes, the NMFS "must now reevaluate its
options which include amending the plan by Secretarial action or
withdrawing the lobster FMP." That is, the NMFS would need to
consider either (1) imposing changes under the Magnuson-Stevens
Act, or (2) using the Secretary's power under ACFCMA and
withdrawing the FMP. (The second option is what the agency
ultimately pursued).

4). A September 8, 1995 e-mail message from an NMFS
official describing Rosenberg's participation in an August 1995
meeting of the New England Council where he reiterated the contents
of his letter.

5). The September 1995 ANPR announcing the proposal to
withdraw the FMP and proceed under ACFCMA, as well as an internal
NMFS memo by Rosenberg preparing for this notice.

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 6). A September 27, 1995 memo from Rosenberg concerning
his participation in a September 1995 meeting of the New England
Council about the timing of the lobster stock assessment.

7). An October 24, 1995 letter from the New England
Council to Rosenberg. The letter accepts that it may be
appropriate to develop a lobster plan with the Commission as "the
lead fishery management institution" and the New England Council
playing a supporting role in a "joint planning process."

8). A letter dated February 23, 1996 from the Director
of the NMFS to the New England Council, which informs the Council
that the NMFS plans to publish a proposed rule in the Federal
Register withdrawing the lobster FMP and replacing it with
regulations developed under ACFCMA in cooperation with the
Commission.

9). The comments submitted by the New England Council in
response to the DEIS, which are described in the FEIS and set forth
in the main text of the dissent.

Some of this interaction cited by the Secretary occurred
in 1995 and 1996, a few years before the challenged rule was
proposed in January 1999. But the statute does not contain any
requirement about when the consultation take place, other than that
it must be before implementation of the rule. In fact, the earlier
dialogue was an important part of a lengthy process of coming to a
rule, a process which culminated in a proposed rule in 1999 and an
implemented rule in 2000.

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