United States Court of Appeals
For the First Circuit
____________________________
No. 11-1952
JAMES LOVGREN; NEW HAMPSHIRE COMMERCIAL FISHERMEN'S ASSOCIATION;
PAUL THERIAULT; CHUCK WEIMER; DAVID ARIPOTCH; TEMPEST FISHERIES,
LTD.; GRACE FISHING, INC.; RICHARD GRACHEK; ROANOKE FISH CO.,
INC.; AMERICAN ALLIANCE OF FISHERMEN AND THEIR COMMUNITIES; NEW
BEDFORD FISH LUMPERS PENSION PLAN; ATLANTIC COAST SEAFOOD, INC.;
LYDIA & MAYA, INC.; JOHN & NICHOLAS, INC.; BERGIE'S SEAFOOD,
INC.; NORDIC, INC.; LYMAN FISHERIES, INC.; THE HOPE II, INC.;
REIDAR'S MANUFACTURING, INC.; DIAMOND DOG FISHING CORP.; ATLANTIC
ENTERPRISES, LLC; WANCHESE FISH COMPANY; EASTER JOY, INC.; LOCAL
1749 ILA, AFL-CIO, NEW BEDFORD FISH LUMPERS PENSION PLAN,
Plaintiffs,
------
CITY OF NEW BEDFORD; CITY OF GLOUCESTER,
Plaintiffs, Appellants,
v.
THE HONORABLE GARY LOCKE, Secretary of Commerce; THE NATIONAL
OCEANIC AND ATMOSPHERIC ADMINISTRATION, (NOAA); THE NATIONAL
MARINE FISHERIES SERVICE, (NMFS); CONSERVATION LAW FOUNDATION,
INC.; JANE LUBCHENCO, Administrator of the National Oceanic and
Atmospheric Administration,
Defendants, Appellees,
------
ATLANTIC COASTAL COOPERATIVE STATISTICS PROGRAM, (ACCSP);
ATLANTIC STATES MARINE FISHERIES COMMISSION, (ASMFC),
Defendants.
____________________________
No. 11-1964
JAMES LOVGREN,
Plaintiff, Appellant,
------
CITY OF NEW BEDFORD; NEW HAMPSHIRE COMMERCIAL FISHERMEN'S
ASSOCIATION; PAUL THERIAULT; CHUCK WEIMER; DAVID ARIPOTCH;
TEMPEST FISHERIES, LTD.; GRACE FISHING, INC.; RICHARD GRACHEK;
ROANOKE FISH CO., INC.; AMERICAN ALLIANCE OF FISHERMEN AND THEIR
COMMUNITIES; NEW BEDFORD FISH LUMPERS PENSION PLAN; CITY OF
GLOUCESTER; ATLANTIC COAST SEAFOOD, INC.; LYDIA & MAYA, INC.;
JOHN & NICHOLAS, INC.; BERGIE'S SEAFOOD, INC.; NORDIC, INC.;
LYMAN FISHERIES, INC.; THE HOPE II, INC.; REIDAR'S MANUFACTURING,
INC.; DIAMOND DOG FISHING CORP.; ATLANTIC ENTERPRISES, LLC;
WANCHESE FISH COMPANY; EASTER JOY, INC.; LOCAL 1749 ILA, AFL-CIO,
NEW BEDFORD FISH LUMPERS PENSION PLAN,
Plaintiffs,
------
v.
THE HONORABLE GARY LOCKE, Secretary of Commerce; THE NATIONAL
OCEANIC AND ATMOSPHERIC ADMINISTRATION, (NOAA); THE NATIONAL
MARINE FISHERIES SERVICE, (NMFS); CONSERVATION LAW FOUNDATION,
INC.; JANE LUBCHENCO, Administrator of the National Oceanic and
Atmospheric Administration,
Defendants, Appellees,
------
ATLANTIC COASTAL COOPERATIVE STATISTICS PROGRAM, (ACCSP);
ATLANTIC STATES MARINE FISHERIES COMMISSION, (ASMFC),
Defendants.
____________________________
-2-
No. 11-1987
JAMES LOVGREN; CITY OF NEW BEDFORD; PAUL THERIAULT; CHUCK WEIMER;
TEMPEST FISHERIES, LTD.; GRACE FISHING, INC.; ROANOKE FISH CO.,
INC.; NEW BEDFORD FISH LUMPERS PENSION PLAN; CITY OF GLOUCESTER;
ATLANTIC COAST SEAFOOD, INC.; LYDIA & MAYA, INC.; JOHN &
NICHOLAS, INC.; BERGIE'S SEAFOOD, INC.; NORDIC, INC.; LYMAN
FISHERIES, INC.; THE HOPE II, INC.; REIDAR'S MANUFACTURING, INC.;
DIAMOND DOG FISHING CORP.; ATLANTIC ENTERPRISES, LLC; WANCHESE
FISH COMPANY; EASTER JOY, INC.; LOCAL 1749 ILA, AFL-CIO, NEW
BEDFORD FISH LUMPERS PENSION PLAN,
Plaintiffs,
------
NEW HAMPSHIRE COMMERCIAL FISHERMEN'S ASSOCIATION; DAVID ARIPOTCH;
RICHARD GRACHEK; AMERICAN ALLIANCE OF FISHERMEN AND THEIR
COMMUNITIES,
Plaintiffs, Appellants,
v.
THE HONORABLE GARY LOCKE, Secretary of Commerce; THE NATIONAL
OCEANIC AND ATMOSPHERIC ADMINISTRATION, (NOAA); THE NATIONAL
MARINE FISHERIES SERVICE, (NMFS); CONSERVATION LAW FOUNDATION,
INC.; JANE LUBCHENCO, Administrator of the National Oceanic and
Atmospheric Administration,
Defendants, Appellees,
------
ATLANTIC COASTAL COOPERATIVE STATISTICS PROGRAM, (ACCSP);
ATLANTIC STATES MARINE FISHERIES COMMISSION, (ASMFC),
Defendants.
____________________________
-3-
No. 11-2001
JAMES LOVGREN; CITY OF NEW BEDFORD; NEW HAMPSHIRE COMMERCIAL
FISHERMEN'S ASSOCIATION; PAUL THERIAULT; CHUCK WEIMER; DAVID
ARIPOTCH; RICHARD GRACHEK; AMERICAN ALLIANCE OF FISHERMEN AND
THEIR COMMUNITIES; NEW BEDFORD FISH LUMPERS PENSION PLAN; CITY OF
GLOUCESTER; ATLANTIC COAST SEAFOOD, INC.; REIDAR'S MANUFACTURING,
INC.; LOCAL 1749 ILA, AFL-CIO; NEW BEDFORD FISH LUMPERS PENSION
PLAN,
Plaintiffs,
------
TEMPEST FISHERIES, LTD.; GRACE FISHING, INC.; ROANOKE FISH CO.,
INC.; LYDIA & MAYA, INC., JOHN & NICHOLAS, INC.; BERGIE'S
SEAFOOD, INC.; NORDIC, INC.; LYMAN FISHERIES, INC.; THE HOPE II,
INC.; DIAMOND DOG FISHING CORP.; ATLANTIC ENTERPRISES, LLC;
WANCHESE FISH COMPANY; EASTER JOY, INC.
Plaintiffs, Appellants,
v.
THE HONORABLE GARY LOCKE, Secretary of Commerce; THE NATIONAL
OCEANIC AND ATMOSPHERIC ADMINISTRATION, (NOAA); THE NATIONAL
MARINE FISHERIES SERVICE, (NMFS); CONSERVATION LAW FOUNDATION,
INC.; JANE LUBCHENCO, Administrator of the National Oceanic and
Atmospheric Administration,
Defendants, Appellees,
------
ATLANTIC COASTAL COOPERATIVE STATISTICS PROGRAM, (ACCSP);
ATLANTIC STATES MARINE FISHERIES COMMISSION, (ASMFC),
Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
-4-
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
James F. Kavanaugh, Jr., with whom John Farrell Folan and
Folan & McGlone, P.C., were on brief, for plaintiffs-appellants New
Bedford, MA and Gloucester, MA and Tempest Fisheries, et al.
Stephen M. Ouellette, with whom Ouellette & Smith and Caitlin
W. Delphin, were on brief, for plaintiffs-appellants Rhode Island
Alliance of Fishermen, New Hampshire Commercial Fisherman's
Association, Richard Grachek and David Aripotch.
Patrick F. Flanigan, with whom Law Office of Patrick F.
Flanigan, Thomas Bond, and The Kaplan/Bond Group, were on brief,
for plaintiff-appellant James Lovgren.
Joan M. Pepin, Attorney, Appellate Section, U.S. Department of
Justice, Environmental & Natural Resources Division, with whom
Ignacia S. Moreno, Assistant Attorney General, Robert J. Lundman,
Andrea E. Gelatt, James A. Maysonett, Brian A. McLachlan, and Gene
S. Martin, National Marine Fisheries Service, were on brief, for
the federal defendants-appellees.
Peter Shelley was on brief for defendant-appellee Conservation
Law Foundation.
Eldon V.C. Greenberg, with whom Garvey Schubert Barer and M.
Pilar Falo, were on brief, for Representatives Barney Frank and
John Tierney, Amicus Curiae.
Arthur P. Krieger, with whom Anderson & Krieger LLP, were on
brief, for Food & Water Watch, Inc., Amicus Curiae.
Roger Fleming, with whom Erica A. Fuller, Stephen E. Roady,
and Earth Justice, were on brief, for Georges Bank Cod Fixed Gear
Sector, Amicus Curiae.
November 28, 2012
-5-
LYNCH, Chief Judge. This case involves legal challenges
to recent federal management actions taken in New England's
sensitive Multispecies Groundfish Fishery. We reject the many
challenges and affirm entry of summary judgment for the federal
defendants.
Under the Magnuson-Stevens Fishery Conservation and
Management Act, 16 U.S.C. §§ 1801-1884, the New England Fishery
Management Council ("N.E. Council") regulates fishery resources
within the federal waters off New England's coast. It does so
primarily through Fishery Management Plans ("FMPs"), which it
reevaluates biennially in light of the latest scientific
information and congressionally imposed mandates and deadlines to
prevent overfishing. Those mandates and deadlines were recently
altered by the Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act of 2006, Pub. L. No. 109-479, 120 Stat. 3575
(2007), which introduced a suite of stringent protections for
depleted fisheries.
This litigation centers on the N.E. Council's adjustments
to the FMP governing the Northeast Multispecies Groundfish Fishery
("Fishery"). The N.E. Council was required by law to implement
changes to the Fishery's 2004 FMP by the 2010 fishing year, taking
into account both the Reauthorization Act's new protections and the
results of a study conducted in 2008 on the health of the Fishery's
stocks of fish. The study results showed that the situation was
-6-
worse than previously believed. A number of groundfish stocks were
overfished and subject to overfishing; only two stocks had improved
since the 2004 FMP's implementation. This trend has continued to
the present.1
The N.E. Council adopted a new proposed groundfish FMP,
Amendment 16, after 3 years' work, which included several
publications in the Federal Register, eight public hearings, and
receipt of numerous comments. The federal environmental impact
statement prepared for Amendment 16 acknowledged the severe
economic hardships facing New England's fishing communities.
On January 21, 2010, Amendment 16 was upheld on
administrative review by the National Marine Fisheries Service
("NMFS") of the National Oceanic and Atmospheric Administration
("NOAA") within the U.S. Department of Commerce. The NMFS
promulgated Amendment 16 through three related sets of regulations
that, inter alia, altered and expanded the Fishery's preexisting
1
On September 13, 2012, the U.S. Department of Commerce
issued a formal disaster declaration for the Fishery. The official
press release recognized that "[d]espite fishermen's adherence to
catch limits, several key fish stocks are not rebuilding, resulting
in the expectation that further cuts to catch limits may be
necessary in the 2013 fishing season . . . . The disaster
declaration makes it possible for Congress to appropriate money
toward alleviating the financial hardship to fishermen caused by
the fishery disaster." Press Release, U.S. Department of Commerce,
Secretary of Commerce Declares Disaster in Northeast Groundfish
Fishery (Sept. 13, 2012), available at http://www.nmfs.noaa.gov/
mediacenter/2012/09/13_secretary_of_commerce_declares_disaster_in_
northeast_groundfish_fishery.html; see also Jess Bidgood & Kirk
Johnson, U.S. Declares a Disaster for Fishery in Northeast, New
York Times, Sept. 13, 2012, at A18.
-7-
"sector allocation program" and established new restrictions on
fishing activities to end and prevent overfishing. These
regulations took effect on May 1, 2010.
Plaintiffs then filed suit in federal court alleging that
Amendment 16 conflicts with the Reauthorization Act's provisions
governing "limited access privilege programs," 16 U.S.C. § 1853a,
with the ten "national standards" applicable to all FMPs, id.
§ 1851(a)(1)-(10), and with the requirements of the National
Environmental Policy Act, 42 U.S.C. § 4321 et seq. They
unsuccessfully sought to enjoin implementation of Amendment 16.
The district court granted summary judgment for defendants as to
all claims. City of New Bedford v. Locke, No. 10-10789-RWZ, 2011
WL 2636863 (D. Mass. June 30, 2011). We affirm.
I.
Amendment 16 arose within the complicated statutory and
regulatory system governing New England's federal fisheries.
A. Statutory Background: The Magnuson-Stevens Act and the
National Environmental Policy Act
More than thirty years ago, in response to growing
concerns about the nation's depleted fisheries, Congress adopted
the Magnuson-Stevens Fishery Conservation and Management Act
("MSA"), 16 U.S.C. §§ 1801-1884, "to conserve and manage the
fishery resources found of the coasts off the United States," id.
§ 1801(b)(1). Under the MSA, the federal government exercises
"exclusive fishery management authority" over waters that are 3 to
-8-
200 nautical miles off the United States shoreline. Id. § 1811(a);
Little Bay Lobster Co. v. Evans, 352 F.3d 462, 464 (1st Cir. 2003).
Management of territorial divisions within these waters is
entrusted to eight Regional Fishery Management Councils, which are
composed of state and federal fishery officials and other private
individuals appointed by the Secretary of Commerce. 16 U.S.C.
§ 1852(a)-(b).2
Councils regulate fishing activities through FMPs and
amendments thereto, id. § 1852(h)(1), which they submit to the NMFS
for review, id. § 1853(c). After ensuring that a proposed FMP is
consistent with the MSA, its ten national standards, and any other
applicable laws, id. § 1854(a)(1)(A), and after a statutorily
designated period of public comment, id. § 1854(a)(1)(B), the NMFS
executes a finalized FMP through regulations, id. § 1854(b), as it
did for Amendment 16.
The National Environmental Policy Act ("NEPA"), in turn,
requires federal agencies to include an environmental impact
2
The Secretary's appointments to Regional Councils "must be
individuals who, by reason of their occupational or other
experience, scientific expertise, or training, are knowledgeable
regarding the conservation and management, or the commercial or
recreational harvest, of the fishery resources of the geographical
area concerned." 16 U.S.C. § 1852(b)(2)(A). The N.E. Council is
currently composed of eighteen voting members -- a Regional
Administrator of the NMFS, the five principal officials with marine
fishery management responsibility in the member states, and twelve
private individuals who are appointed by the Secretary -- as well
as four non-voting members from various federal agencies. The
present membership of the N.E. Council is available at
http://www.nefmc.org/staff/index.html.
-9-
statement ("EIS") for any action that "significantly affect[s] the
quality of the human environment," 42 U.S.C. § 4332(2)(C),
including FMPs, see Campanale & Sons, Inc. v. Evans, 311 F.3d 109,
113 (1st Cir. 2002). An EIS must provide a "full and fair
discussion of significant environmental impacts [of the intended
action]" and "inform decisionmakers and the public of the
reasonable alternatives which would avoid or minimize adverse
impacts or enhance the quality of the human environment." 40
C.F.R. § 1502.1.
B. Regulatory History: The Northeast Multispecies Groundfish
Fishery
The Fishery is composed of thirteen bottom-dwelling fish
species, inhabiting waters from Maine to the mid-Atlantic, which
are divided for management purposes into twenty individual
"stocks." Since the MSA's inception, the Fishery has faced
persistent problems with overfishing and depletion of stocks.3 In
response, the N.E. Council has over the years adopted an assortment
of regulatory strategies, with varying degrees of success. See,
e.g., Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 107
(1st Cir. 1997).
3
For example, in 1976, the Fishery's annual landings (i.e.,
pounds of fish caught) had fallen from a peak in 1965 of 288,000
tons to approximately 105,000 tons. Thereafter, the N.E. Council
prohibited foreign fishing in the Fishery, 42 Fed. Reg. 13,926
(Mar. 14, 1977), which produced a temporary increase in landings.
However, as U.S. vessels replaced foreign ones, problems with
overfishing arose again and landings fell.
-10-
In 1985, the N.E. Council developed the Northeast
Multispecies Fishery Management Plan, the Fishery's first permanent
FMP, which took effect in 1986. 51 Fed. Reg. 29,642-02 (Aug. 20,
1986); see also Conservation Law Found. of New Eng., Inc. v.
Franklin, 989 F.2d 54, 58 (1st Cir. 1993). The 1986 FMP
established restrictions on gear and fish sizes and provided for
periodic area closures. 51 Fed. Reg. at 29,647-53. Later
amendments augmented these restrictions, but they proved
collectively ineffective in reducing overfishing. See Associated
Fisheries, 127 F.3d at 107; Conservation Law Found., 989 F.2d at
58. By the mid-1990s, the Fishery's annual landings and biomass
had reached historic lows, AR4 019875, 019879, and significant
revisions to the Fishery's management system became necessary.
1. Amendment 5 (1994): A Revised Permitting Scheme
and the Days-at-Sea Effort-Reduction Program
In 1994, the NMFS approved Amendment 5 ("A5"), 59 Fed.
Reg. 9872 (Mar. 1, 1994), the first in a series of amendments to
the 1986 FMP that substantially altered the Fishery's management
strategy.
A5 introduced two measures of present significance: a new
approach to permits5 and a Days-at-Sea management program. First,
4
We will cite to information contained in the administrative
record as "AR ___".
5
Before A5, vessel owners had applied on an annual basis to
receive or renew their federal multispecies permit -- a document
issued by the NOAA Regional Administrator that entitled a vessel to
-11-
the Council sought to reduce total fishing activity by restricting
the availability of permits, and A5 "substantially change[d] the
fishing vessel permit application process." Id. at 9874. Vessel
owners now applied for a permit in one of three permit classes.
See id. at 9886. Each permit class was subject to eligibility
criteria based largely on the fishing gear and capacity of the
underlying vessel.6 See id. at 9886-89.
Second, A5 established the Days-at-Sea ("DAS") effort-
reduction program. Id. at 9873. This program attempted to curb
overfishing through a series of "input" controls, or restrictions
on the effort fishermen could "input" into catching fish,7 rather
catch stocks within the Fishery subject to that year's management
measures. To participate in the Fishery, a vessel had to have a
valid multispecies permit on board at all times. See 51 Fed. Reg.
29,642-02, 29,647 (codified at 50 C.F.R. § 651.4 (1986)).
6
For larger vessels, a "limited access multispecies permit"
was required. 59 Fed. Reg. at 9886 (codified at 50 C.F.R. § 651.4
(1995)); see also Associated Fisheries, 127 F.3d at 108. Vessels
had to apply for a limited access multispecies permit by December
31, 1994. Id. at 9888. The value of the permit was enhanced
because A5 authorized a partial moratorium on the issuance of new
permits after 1995. Id. at 9886 ("To be eligible to renew or apply
for a limited access multispecies permit after 1994, a vessel must
have been issued a limited access multispecies permit for the
preceding year, or the vessel must be replacing a vessel that had
been issued a limited access multispecies permit for the preceding
year . . . .").
The two other permit classes were "hook-gear-only" and
"possession-limit-only." Id. These permits were created, in part,
to reduce the impact of A5's fishing restrictions for limited
access multispecies permits on small and medium-sized vessels. Id.
at 9874 (response to comment 4).
7
The parties and the Fishery's regulations interchange the
terms "effort" and "input" in referring to the DAS program's
-12-
than through an alternate model of "output" controls, or
restrictions on the number of fish coming out of a fishery. See
Medeiros v. Vincent, 431 F.3d 25, 30-31 (1st Cir. 2005) (describing
"input" and "output" controls). The DAS input control program was
oft-amended and yielded mixed results as to prevention of
overfishing. Associated Fisheries of Me., Inc. v. Evans, 350 F.
Supp. 2d 247, 249 (D. Me. 2004). While the overall biomass of the
Fishery improved, certain pivotal stocks, including cod and
flounder, remained acutely diminished. AR 019875, 031537.
2. Amendment 13 (2004): The First and Limited Sector
Allocation Program
In March 2004, the NMFS partially approved Amendment 13
("A13"), designed "to end overfishing and rebuild NE multispecies
(groundfish) stocks," 69 Fed. Reg. 22,906, 22,906 (Apr. 27, 2004),
in part building upon the DAS input control measures. A13 reduced
some DAS allocations, eliminated certain exemptions, increased
vessel monitoring, and announced a rebuilding strategy for the
Fishery. Id.; see also Associated Fisheries, 350 F. Supp. 2d at
250. Significantly, A13 also introduced a new management system,
the "sector allocation program," 69 Fed. Reg. at 22,914-15, as a
partial alternative method of management.
restrictions on fishing (e.g., effort-based or input-based
management, effort or input controls, etc.). We use the term
"input" exclusively.
-13-
A13's sector allocation program allowed fishermen to
choose, in lieu of fishing under the revised DAS program, to band
together into voluntary, self-selecting groups or "sectors." Id.
at 22,914. Each sector would receive its own allocation of either
DAS or Total Allowable Catch ("TAC"). Id. Unlike a DAS
allocation, a TAC allocation is an "output" control that caps the
total amount of fish that may be caught in a given fishing year.
See Oceana, Inc. v. Locke, 831 F. Supp. 2d 95, 102-03 (D.D.C.
2011). Under A13, both TAC and DAS allocations were held by
sectors for the exclusive use of their members. See 69 Fed. Reg.
at 22,945 (defining a sector as "a group of vessels that have
voluntarily signed a contract and agree to certain fishing
restrictions, and that have been allocated a portion of the TAC of
a species, or an allocation of DAS").
The making of allocations to A13 sectors followed a
formal procedure. Id. at 22,981-83. At least one year prior to
the date on which it intended to begin operations, a would-be
sector (or any person participating in one) had to submit a TAC or
DAS allocation proposal to the Council on behalf of a group of
limited access NE multispecies vessels.8 Id. at 22,981. If
approved, the Council would then initiate a framework adjustment to
8
A limited access NE multispecies vessel is a vessel that has
been issued and is fishing pursuant to a limited access NE
multispecies permit, a modified version of the limited access
permit established by A5. 69 Fed. Reg. at 22,946.
-14-
authorize a TAC or DAS allocation to a sector based on the fishing
history of its members.9 Id. Finally, after approval and
allocation, a sector would submit its own binding management plan,
detailing how its members would each fish the sector's allocation.
Id. at 22,982. These plans were subject to "solicitation of public
comment and consultation with the Council," id. at 22,929
(response to comment 64), and sector participants were required to
possess a Letter of Authorization, issued by the NMFS, evidencing
their sector affiliation, id. at 22,982-83. Amendment 16, as
described below, modified the timing of some steps in this process.
The impact of A13's adoption of sector management was at
least twofold. First, sectors offered fishermen a degree of
flexibility in adjusting to "increasing restrictions imposed to
rebuild groundfish stocks." Id. at 22,944. Because sectors fished
their allocations to their liking, sector participants could remain
economically viable by "pool[ing] harvesting resources and
consolidat[ing] operations in fewer vessels if they desire[d]."
Id. at 22,943.
Second, sectors allowed participating fishermen to
protect themselves from reductions in annual allocations. While
sector members were jointly and severally liable for their own
9
A sector's allocation was based on an average of the
cumulative fishing histories of its members, as reported by those
members to the NMFS, during the 5-year period prior to submission
of the proposal. See id. at 22,981.
-15-
overfishing, id. at 22,982, they were immune from "reductions of
catch or effort as a result of the actions of vessels outside
[their] sector," id. at 22,943. This encouraged stewardship and
self-policing among sector members and reduced the need for
intervention by the Council and NMFS. Id. at 22,914.
A13 approved one sector, the Georges Bank Cod Hook Gear
Sector, id. at 22,914-15, and a second, the Georges Bank Cod Fixed
Gear Sector, was approved in 2006, see 71 Fed. Reg. 62,156, 62,165
(Oct. 23, 2006). Both opted for a TAC allocation.
In 2009, these sectors represented approximately 50 of
the Fishery's 700 active fishing vessels. AR 052784. The
remainder of the Fishery's vessels chose to continue fishing under
a more restrictive version of the DAS input control program and
were subject to the restrictions attached to their permit class.
AR 047761, 052784.
3. Amendment 16 (2006 - Present): A Shift Away from Input-
Based Management
On November 6, 2006, the N.E. Council published a notice
of intent to begin preparing Amendment 16 ("A16"), 71 Fed. Reg.
64,941, the subject of this litigation. The notice stated that,
"[i]n addition to considering adjustments to the current effort
control management system," A16 might introduce "other management
systems" to "replace or supplement" the existing scheme. Id. at
64,942. Measures under consideration included expansion of the
sector program as well as an "individual quota system[]." Id.
-16-
The notice proposed an implementation date for A16 of May
1, 2009, or the start of the 2009 fishing year. Id. at 64,943.
Two months later, however, Congress passed the Reauthorization Act,
and the Council delayed its preparations so that A16 could meet the
newly imposed congressional requirements.
C. The Magnuson-Stevens Reauthorization Act
On January 12, 2007, the Reauthorization Act took effect.
See 2007 U.S.C.C.A.N. S83 (Jan. 12, 2007). The Reauthorization Act
established new conservation mandates for all FMPs. FMPs were now
required to include "annual catch limits" ("ACLs") that were set
at a level "such that overfishing does not occur in the fishery,"
as well as "measures to ensure accountability" ("AMs") to these
limits. 16 U.S.C. § 1853(a)(15). Reflecting Congress's intent to
increase the role of science in fishery management, proposed ACLs
could "not exceed the fishing level recommendations of [a
council's] scientific and statistical committee or the peer review
process." Id. § 1852(h)(6).10
Congress also added a section to the MSA governing the
implementation of new "limited access privilege programs," or
LAPPs. 16 U.S.C. § 1853a. Unlike with the Reauthorization Act's
mandatory ACLs and AMs, councils were not required to adopt LAPPs
in managing fisheries within their jurisdiction. Id. § 1853a(a).
10
In the House Report, Congress described the increased role
of science under the Reauthorization Act as the Act's "most
important" managerial tool. H.R. Rep. No. 109-567, at 23 (2006).
-17-
However, councils that chose to develop a LAPP through an FMP had
to incorporate certain protections elaborated in section 1853a.
Most of section 1853a's requirements applied to all councils, e.g.,
id. § 1853a(b)(1), (5), but Congress both imposed a unique
requirement on the N.E. Council and created a unique exception to
that requirement. The N.E. Council could not adopt an "individual
fishing quota" ("IFQ"), a type of LAPP, unless such a measure was
first approved in a referendum by more than two-thirds of the
Fishery's "eligible permit holders" and other "fishery
participants," as determined by the Secretary. Id.
§ 1853a(c)(6)(D)(i). But Congress also exempted "sector
allocation[s]" from the referendum requirement. Id.
§ 1853a(c)(6)(D)(vi).
Councils and the NMFS were required to implement new FMPs
by the 2010 fishing year for all fisheries subject to overfishing,
and by the 2011 fishing year for all others. See Pub. L. No. 109-
479, Tit. I, § 104(b), 120 Stat. at 3584 (providing effective dates
for 16 U.S.C. § 1853(a)(15)).
1. A16's Development After the Reauthorization Act
In light of the Reauthorization Act's new requirements,
the N.E. Council postponed its proposed implementation date for A16
from the start of the 2009 fishing year to the start of the 2010
fishing year (May 1, 2010). In the interim, in September of 2008,
the Council received the results of the third Groundfish Assessment
-18-
Review Meeting ("GARM III"), a scientific evaluation of the
Fishery's health. GARM III concluded that eleven of the Fishery's
stocks were overfished and subject to overfishing.11 By comparison,
GARM II, conducted in 2004, identified seven such stocks. AR
018986-87, 022347. The scientific results of GARM III had to be
given weight in the development of A16.
On April 24, 2009, after eight hearings at which public
comments were received, and over forty additional meetings, the
N.E. Council published a draft EIS analyzing measures under
consideration for A16, 74 Fed. Reg. 18,705 (Apr. 24, 2009), with
comments due by June 8, 2009. In June 2009, the Council adopted
its final measures for A1612 and submitted the plan to the NMFS for
review and approval. The NMFS published a notice of availability
for that version of A16, along with its final EIS, on October 23,
2009, 74 Fed. Reg. 54,773 (Oct. 23, 2009), with comments due by
December 22, 2009. On December 31, 2009, the NMFS published a
11
The MSA treats the terms "overfished" and "overfishing"
synonymously. See 16 U.S.C. § 1802(34). However, as used by the
NMFS, these terms are distinct. A stock is "overfished" when its
"biomass," or population, "has declined below a level that
jeopardizes the capacity of the stock" to produce the maximum
sustainable yield on a continuing basis. A stock experiences
"overfishing" when it "is subjected to a level of fishing mortality
or annual total catch that jeopardizes" maximum sustainable yield.
50 C.F.R. § 600.310(e)(2)(i)(B), (E).
12
The final vote on A16 was fourteen in favor, one opposed,
and one abstention. One council member voted against A16 on the
basis of its catch allocation scheme, which we discuss in Section
IV.B, below.
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proposed rule which would implement the FMP recommended in A16, 74
Fed. Reg. 69,382 (Dec. 31, 2009), with comments due by January 20,
2010.
After considering all comments, the NMFS largely approved
A16 and issued three related sets of regulations: (1) Amendment 16,
which details A16's rebuilding program and revises existing
management strategies, 75 Fed. Reg. 18,262 (Apr. 9, 2010); (2) the
Sector Operations Rule, which approves seventeen additional sectors
under the revised sector allocation program, 75 Fed. Reg. 18,113
(Apr. 9, 2010); and (3) Framework Adjustment 44, which establishes
catch limits for each stock within the Fishery, 75 Fed. Reg. 18,356
(Apr. 9, 2010). These regulations took effect on May 1, 2010, and
it is these regulations which are challenged. We group together
all three under the generic term A16.
2. Changes Resulting from A16
Extensive revisions to the Fishery's management system
were necessary to meet the Reauthorization Act's mandates to end
overfishing and rebuild affected stocks. See 16 U.S.C.
§ 1854(e)(3). Two decades of almost exclusive input-based
management had left the Fishery's stocks on the brink of collapse.
The necessary scope of these revisions made some economic hardship
inevitable. Recognizing this fact, the N.E. Council introduced
measures to mitigate such harm to the extent they deemed
practicable.
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Two of A16's management measures are central to this
appeal. First, consistent with the mandate of 16 U.S.C.
§ 1853(a)(15), A16 established new "ACLs for all stocks covered by
the NE Multispecies FMP," 75 Fed. Reg. at 18,357, and AMs to ensure
compliance with these limits, id. at 18,360. ACLs were set below
the acceptable biological catch levels recommended by the Council's
Science and Statistical Committee, and were subject to biennial
adjustment based on the best available data. For certain stocks,
A16's ACLs represented significant reductions from previous fishing
levels. Plaintiffs do not challenge these reductions per se, but
do attack defendants' decision to develop ACLs on a stock-by-stock
basis.
Second, A16 altered and expanded the sector allocation
program introduced by A13. To streamline the sector allocation
procedure, A16 assigned every limited access permit holder a
"potential sector contribution" ("PSC"), which represented a share
of the new ACLs for each of the Fishery's stocks. 75 Fed. Reg. at
18,276. PSCs were assigned for each stock based on a permit
holder's historic landings from 1996 to 2006, id.; this was a
departure from the five-year time frame used under A13, 69 Fed.
Reg. at 22,981.
Upon a permit-holder joining a sector, his or her PSC
would be combined with the PSCs of other members to determine that
sector's "annual catch entitlement" ("ACE"), or the maximum amount
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of each fish stock that a sector's members could collectively
catch. 75 Fed. Reg. at 18,276. In contrast to A13, there was no
DAS alternative to ACE allocations; that choice was "[c]onsistent
with the Council's intent to transition from input controls to
output controls." Id. Once a sector reached its ACE, it had to
cease fishing activity in that stock, id. at 18,277 with one
caveat: A16 sectors could lease ACE from other sectors, subject to
certain requirements, and so add to their own catch for a
particular stock. Id.
Participation by permit holders in sectors remained
voluntary, and permit holders who chose not to participate had an
alternative: they would fish in the "common pool." Id. at 18,267,
18,275. Within the common pool, all fishing activities were
governed by an amended DAS input control system. Id. at 18,268.
As a result, for those who chose not to join a sector but to fish
in the common pool, the PSCs assigned to those permit holders
became irrelevant and played no role in regulating fishing
activity. AR 047767 ("This action essentially results in the
commercial groundfish fishery being managed under two different
regimes: sectors and effort [input] controls.").
At the time A16 was promulgated, it was unknown who among
the Fishery's permit holders would pick which option. When the
sector rosters were finalized, some 812 of the Fishery's 1477
eligible permit holders had chosen to join a sector. Although this
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sector choice represented only 55% of the Fishery's individual
permits, these vessels were responsible for 98% of the previous
decade's catch. 75 Fed. Reg. at 18,114, 18,115 tbl. 1. This was
a significant change from the number of permits and catch
percentage represented by sectors under A13.
II.
There are several cases brought by different plaintiffs
which were consolidated before this court on appeal. We briefly
address the district court proceedings, the parties' arguments on
appeal, and the governing standards of review.
A. District Court Proceedings
On August 3, 2010, two actions challenging aspects of A16
were consolidated in the District of Massachusetts. The first,
filed by the cities of New Bedford and Gloucester (each major
fishing ports) and others (collectively, "New Bedford"), alleged
that A16 violated the MSA's ten national standards and the NEPA.
New Bedford sought an order enjoining enforcement of A16 and
requiring defendants to take certain actions. The second, filed by
fisherman James Lovgren, on behalf of himself and similarly
situated fishermen (collectively, "Lovgren"), advanced similar
claims, but also alleged that A16 was an IFQ and that defendants
had failed to conduct a referendum as required by the
Reauthorization Act, see 16 U.S.C. § 1853a(c)(6)(D)(i). Lovgren
sought a declaratory judgment that defendants violated the MSA and
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other relief. Defendants in both actions were the federal agencies
and officials responsible for implementing and enforcing A16,
including the NMFS, the NOAA, former Secretary of Commerce Gary
Locke, and NOAA Administrator Jane Lubchenco. Conservation Law
Foundation ("CLF") intervened in defense of A16.
On June 30, 2011, the district court issued an order
resolving cross-motions for summary judgment in favor of
defendants. City of New Bedford, 2011 WL 2636863. Several
plaintiffs moved for reconsideration, which was denied on August
17, 2011. Four timely appeals ensued.
B. Parties and Arguments on Appeal
Plaintiff-appellants are New Bedford (No. 11-1952),
Lovgren (No. 11-1964), American Alliance of Fishermen ("American
Alliance") (No. 11-1987), and others.13 Two Congressmen who
represented New Bedford and Gloucester at the time of A16's
enactment, and Food & Water Watch, Inc. ("FWW"), filed briefs
amicus curiae in support of certain arguments by plaintiffs.
Defendants and intervenor CLF remain as appellees. Amicus Georges
Bank Cod Fixed Gear Sector, a sector established under A13,
supports A16.
Plaintiffs challenge A16 on a multitude of grounds.
Taken together, the challenges fall into three broad categories:
13
Plaintiff-appellant Tempest Fisheries, LTD (No. 11-2001) did
not submit its own brief, but joined in the brief of New Bedford
plaintiffs.
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(1) that A16's sector program is a LAPP, an IFQ, or both under the
MSA, contrary to defendants' determination, and as a result, A16
was implemented without certain protections required by the
Reauthorization Act's LAPP provisions, found in 16 U.S.C. § 1853a;
(2) that certain features of A16 contravene several of the MSA's
ten national standards; and (3) that A16 was implemented without
proper consideration of reasonable alternatives and the best
available information, in violation of the NEPA. Within these
categories, each plaintiff asserts its own arguments, which are at
times in tension with those advanced by other plaintiffs or amici.
We refer to these individual arguments where such reference is
helpful.
Federal defendants and CLF defend A16 against legal
attack on the following bases: (1) A16 is a proper exercise of the
NMFS's delegated power under the MSA because (a) no element in
A16's sector program meets the elements of the statutory definition
of a LAPP or an IFQ, and (b) the NMFS's interpretation of the
Reauthorization Act is entitled to deference; (2) A16 is consistent
with the ten national standards, and the Reauthorization Act's
mandatory conservation requirements explain many of the choices
said to violate those standards; and (3) the N.E. Council and the
NMFS met their respective obligations under the NEPA.
-25-
C. Standard of Review
We review the district court's grant of summary judgment
de novo. Little Bay Lobster Co., 352 F.3d at 466. Judicial review
of regulations challenged under the MSA and the NEPA is governed by
the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. See
16 U.S.C. § 1855(f); see also Associated Fisheries, 127 F.3d at 109
(MSA); Airport Impact Relief, Inc. v. Wykle, 192 F.3d 197, 202 (1st
Cir. 1999) (NEPA). Our review is limited to the administrative
record, Massachusetts ex rel. Div. of Marine Fisheries v. Daley,
170 F.3d 23, 28 n.4 (1st Cir. 1999), on the basis of which we may
set aside an agency action only if it is "arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law." 5
U.S.C. § 706(2)(A). "Because the APA standard affords great
deference to agency decisionmaking and because the Secretary's
action is presumed valid, judicial review, even at the summary
judgment stage, is narrow." Associated Fisheries, 127 F.3d at 109.
We address separately each of plaintiffs' challenges.
III.
The first set of issues on appeal concerns whether the
implementation of A16 is contrary to law because its sector
program: (1) is a LAPP or an IFQ and does not contain the mandatory
protections announced in 16 U.S.C. § 1853a; (2) is an IFQ and was
not subject to approval through a referendum, id. § 1853a(c)(6)(D);
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or (3) is an otherwise arbitrary or capricious exercise of the
NMFS's delegated authority.
Section 1853a provides that "[a]fter January 12, 2007, a
Council may submit, and the Secretary may approve, for a fishery
that is managed under a limited access system, a limited access
privilege program to harvest fish if the program meets the
requirements of this section." Id. § 1853a(a). Defendants concede
that A16 does not contain the protections set out in the remainder
of section 1853a, and the parties agree that the Fishery is managed
under a "limited access system." Their disagreement centers on
whether the NMFS illegally concluded that the features of A16's
sector program did not qualify as a LAPP, a conclusion that
rendered section 1853a inapplicable.
Our analysis of an agency's interpretation of a statute
proceeds in three stages. First, we assess the statutory text to
determine "whether Congress has directly spoken to the precise
question at issue. If so, courts, as well as the agency, must give
effect to the unambiguously expressed intent of Congress." Saysana
v. Gillen, 590 F.3d 7, 12 (1st Cir. 2009) (citations omitted)
(quoting Succar v. Ashcroft, 394 F.3d 8, 22 (1st Cir. 2005))
(internal quotation marks omitted). Second, if Congress's intent
is uncertain, we decide whether and to what extent the agency's
interpretation is entitled to deference. See Mayo Found. for Med.
Educ. & Research v. United States, 131 S. Ct. 704, 712 (2011)
-27-
(resolving the parties' competing arguments on "the proper
framework for evaluating [the agency's construction of] an
ambiguous provision"); United States v. Mead Corp., 533 U.S. 218,
227-31 (2001). Finally, we evaluate the agency's interpretation
under the governing standard to determine whether it "exceeds the
bounds of the permissible." Barnhart v. Walton, 535 U.S. 212, 218
(2002).
Plaintiffs argue, for different reasons, that the
analysis should end at stage one. New Bedford and American
Alliance make two arguments: first, that A16's sector program meets
the statutory definition of a LAPP; and second, that even if there
is some technical reading on which it does not, A16's sector
program should be treated as a LAPP nonetheless. This is so
because, considered in its totality, the sector program is
functionally, if not formally, equivalent to a LAPP.14
Plaintiffs assert that section 1853a's protections are
important because they were designed to ameliorate the "well-known
adverse effects of quota based programs." These protections,
missing from A16, include: (1) restrictions on foreign
participation in a LAPP, 16 U.S.C. § 1853a(c)(1)(D)-(E); (2)
procedures to ensure equitable allocations of fishing privileges,
id. § 1853a(c)(1)(I), (c)(5)(A); (3) limitations on excess
14
For the purposes of this argument, the parties agree that
there is no meaningful distinction between a LAPP and an IFQ.
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consolidation, id. § 1853a(c)(5)(D); and (4) measures to recover
and minimize costs associated with LAPP formation, id. § 1853a(e).
New Bedford and American Alliance submit that A16's sector program
has these problematic features against which the § 1853a
protections were designed and that should trigger section 1853a's
corresponding protections.
Lovgren, supported by New Bedford, makes a somewhat
different argument that A16 is not only a LAPP but also an IFQ,
for which approval through a referendum is required.15 The
referendum requirement is found at 16 U.S.C. § 1853a(c)(6)(D)(i)
and provides that:
[T]he New England [Council] . . . may not
submit, and the Secretary may not approve or
implement, a fishery management plan or
amendment that creates an individual fishing
quota program, including a Secretarial plan,
unless such a system, as ultimately developed,
has been approved by more than 2/3 of those
voting in a referendum among eligible permit
holders, or other persons [deemed eligible to
vote by the Secretary].
Importantly, there is an exemption from the referendum requirement
concerning sectors, which both parties emphasize. Congress
expressly stated that "[i]n this subparagraph, the term 'individual
fishing quota' does not include a sector allocation." Id.
§ 1853a(c)(6)(D)(vi) (emphasis added).
15
American Alliance acknowledges that "[t]he applicability of
the referendum requirement is less clear," but it "join[s] in the
arguments asserted by the other Appellants."
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Federal defendants offer separate responses to these
arguments. As to New Bedford and American Alliance's argument,
federal defendants do not argue that the statute compels the result
that A16's sector program is not a LAPP or an IFQ, but rather that
their result is the most reasonable interpretation of congressional
intent and that Congress entrusted to them and their considerable
expertise this area of fisheries management.16 However, with
respect to Lovgren's argument, federal defendants do argue that the
text Congress enacted plainly decided that A16's sectors are not
IFQs for purposes of the referendum requirement.
At the first stage of analysis, for the reasons which
follow, we agree with defendants that the statutory text does not
compel the conclusion that A16's sector program meets the statutory
definition of a LAPP or an IFQ. Rather, the text of the
Reauthorization Act not only permits the NMFS's interpretation, but
lends support to its reasonableness at the third stage of our
analysis. Moreover, federal defendants' argument that the text
does not permit the conclusion that A16's sector program is subject
to the referendum requirement is correct. We reject Lovgren's
argument to the contrary.
We next conclude that, at a minimum, Chevron deference is
called for, Chevron, U.S.A., Inc. v. Natural Res. Def. Council,
16
CLF takes a different position that the statutory text
compels a conclusion that A16's sector program is not a LAPP.
-30-
Inc., 467 U.S. 837 (1984), and that we must defer to the agency's
reasoned decision that A16's sector program is not a LAPP and is
not an IFQ, Mead, 533 U.S. at 229.
A. Clarity of the Statute
We first ask whether Congress has expressed a clear
intent that the features of A16's sector program bring it within
the statutory definition of a LAPP or an IFQ. See Succar, 394 F.3d
at 22. "If Congress's intent is clear, that intent governs -- both
the court and the agency must give it full effect." Dominion
Energy Brayton Point, LLC v. Johnson, 443 F.3d 12, 15 (1st Cir.
2006).
The Reauthorization Act did not define the term "limited
access privilege program," but it did define a "limited access
privilege." The parties refer to both as LAPPs, and so will we.
The term "limited access privilege" --
(A) means a Federal permit, issued as part of
a limited access system under section 1853a of
this title to harvest a quantity of fish
expressed by a unit or units representing a
portion of the total allowable catch of the
fishery that may be received or held for
exclusive use by a person; and
(B) includes an individual fishing quota; but
(C) does not include community development
quotas as described in section 1855(i) of this
title.
16 U.S.C. § 1802(26) (emphasis added). The definition of an
"individual fishing quota," which was added to the MSA by the
Sustainable Fisheries Act, Pub. L. No. 104-297, Tit. I, § 102, 110
Stat. 3562, 3562 (1996), differs slightly, as emphasized below:
-31-
The term "individual fishing quota" means a
Federal permit under a limited access system
to harvest a quantity of fish, expressed by a
unit or units representing a percentage of the
total allowable catch of a fishery that may be
received or held for exclusive use by a
person. Such term does not include community
development quotas as described in section
1855(i) of this title.
16 U.S.C. § 1802(23) (emphasis added). The parties agree that the
distinction between "limited access privileges" and "individual
fishing quotas," both individually and as management programs, is
largely irrelevant here. With the notable exception of the
referendum requirement, which applies only to IFQs, section 1853a's
protections apply equally to both LAPPs and IFQs.
In developing A16, the N.E. Council was cognizant of the
Reauthorization Act's LAPP provisions. During the scoping process,
the Council declined to pursue certain proposals which might raise
questions about the applicability of section 1853a's protections.17
Additionally, before settling on specific revisions to A13's sector
allocation program, the Council obtained advice from the NMFS to
ensure that the measures under review did not violate the terms of
17
For example, one of the proposals received by the Council,
and not adopted, advocated for a "points system" of management;
that in turn raised the question, as the Council recognized, of
whether the "points system" would be subject to section 1853a's
referendum requirement. AR 005854-55. Although the Council
expressed interest in evaluating the points system in future
amendments, it recognized the need to eliminate overfishing and
promulgate an FMP by the statutory deadline. AR 047813, 047820-22;
see also Section V, below.
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section 1853a, AR 051697-99, and considered public comments on the
issue as well, AR 050496.
Through these deliberations, the N.E. Council and NMFS
concluded that A16's sector program was not a LAPP and that
section 1853a's provisions did not apply. In A16's final rule, the
NMFS offered the following explanation:
Based upon the comments received on the
proposed rule for this action, there remains
some confusion as to whether a sector is a
limited access privilege program (LAPP), as
defined in the Magnuson-Stevens Act. NMFS
would like to clarify that NMFS does not
consider sectors to be LAPPs, and they are not
subject to the referendum or cost-recovery
requirements of the Magnuson-Stevens Act.
There is no permit issued to a sector, and no
permanent or long-term allocation of fish is
made to any sector. Unlike individual fishing
quotas (IFQs), sectors are temporary,
voluntary, fluid associations of vessels that
can join together to take advantage of
flexibilities and efficiencies that sectors
are afforded. Vessel owners may choose to
join a sector or not, and can change their
decisions from one year to the next, based on
what they believe are the best opportunities
for them at that point in time.
75 Fed. Reg. at 18,275. A second discussion, appearing in the
comments portion of A16's final rule, added to this reasoning that
its sectors were not LAPPs because "[i]ndividual sectors are not
issued a permit, they are not allocated a portion of the TAC, and
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they are not clearly 'persons' eligible to hold a LAPP under [§
1853a]."18 Id. at 18,292 (response to comment 49).
On appeal, defendants argue that the NMFS's conclusion
that A16's sector program is not a LAPP is consistent with the
statutory definition of that term and with the provisions of
section 1853a. As to the referendum requirement, defendants say
the statutory language flatly precludes Lovgren's interpretation.
Plaintiffs argue that the text of the Reauthorization Act compels
opposite conclusions on both fronts. The statutory text supports
the defendants.
1. Text of the Statute: Elements in the Statutory Definition
of a LAPP
Defendants' lead argument is that, under A16's sector
program, "no one -- not an individual, a vessel, nor a sector --
receives" an allocation that meets each element in the statutory
definition of a LAPP. The argument has two components: first,
18
Other discussions in A16's final regulations indirectly
address the status of sectors vis-a-vis LAPPs and IFQs. See, e.g.,
Amendment 16, 75 Fed. Reg. at 18,295 (response to comment 59)
("Amendment 16 does not directly or deliberately allocate any
fishing privileges . . . . Sectors themselves are merely vehicles
for allowing individual fishermen to voluntarily enter into an
arrangement to fish under certain exemptions to the FMP based on
their individual fishing histories. Nothing in Amendment 16 . . .
actually allocate[s] directly or even indirectly any new fishing
privileges to individual fishermen, and, sectors themselves do not
acquire any privileges that were not already in existence based on
fishermen's preexisting histories."); Sector Operations Rule, 75
Fed. Reg. at 18,114 ("[B]ecause sector ACEs are temporary in nature
and depend upon the collective PSCs of participating vessels, no
one sector will be allocated a permanent share of any resource.").
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sectors (as a whole) do not receive a "Federal permit," 16 U.S.C.
§ 1802(26)(A), as that term is understood in fishery management;
and second, while fishermen and their vessels (individually) do
receive a "Federal permit," that alone is not enough because it
does not entitle them "to harvest a quantity of fish" for their
"exclusive use," which are also essential elements in the
definition of a LAPP. Id. These elements, not present in A16's
sector program, are required in the statutory definitions of both
a LAPP and an IFQ. This undercuts all of plaintiffs' section 1853a
claims. We conclude that the statutory definition of a LAPP
permits defendants' construction.
We start with the term "Federal permit," which has an
understood meaning in fisheries management. "The understanding of
a term employed by Congress is ordinarily determined as of the time
of [a statute's] enactment." Hernández-Miranda v. Empresas Díaz
Massó, Inc., 651 F.3d 167, 175 (1st Cir. 2011). The use of the
term "permit" in the federal regulation of fisheries considerably
predates the Reauthorization Act. See, e.g., United States v.
Kaiyo Maru No. 53, 503 F. Supp. 1075, 1077 (D. Alaska 1980)
(foreign fishing permits); Pac. Nw. Generating Coop. v. Brown, 822
F. Supp. 1479 (D. Or. 1993) (commercial fishing permits); see also
Se. Fisheries Ass'n, Inc. v. Chiles, 979 F.2d 1504, 1507 (11th Cir.
1992) (noting that "[t]he fish were caught pursuant to a federal
permit"). A "permit" is a document, issued by the Secretary or an
-35-
authorized federal agency, that authorizes its holder to
participate in a federal fishery. See 16 U.S.C. § 1853(b)
(authorizing regional councils to "require a permit to be obtained
. . . [for] any fishing vessel of the United States fishing, or
wishing to fish, in [federal waters] . . . [or for] the operator of
any such vessel"); see also Am. Pelagic Fishing Co. v. United
States, 379 F.3d 1363, 1379 (Fed. Cir. 2004) (noting that the MSA
authorizes "regional councils to require federal permits for U.S.
fishermen to fish in any fishery within [federal waters]" (citing
16 U.S.C. § 1853(b)(1))). In a fishery where a permit is required
to participate, it is unlawful to fish without one or in a manner
inconsistent with a permit's terms or conditions. 16 U.S.C.
§ 1857(1)(A)-(B).
At least since A5, there has been a highly regulated
permitting system in the Fishery, see Section I.B.1, above, which
remains in effect now, 50 C.F.R. § 648.4 (2012). The permits
acquired under section 648.4 are issued by the NOAA Regional
Administrator through a formal application process. See, e.g., id.
§ 648.4(a)(1)(i)(B), (I)(1)-(2) (limited access multispecies
permits); id. § 648.4(a)(1)(ii) (open access permits). The class
of permit a vessel holds dictates the manner in which that vessel
may fish, and the issued permit must be kept on board the vessel at
all times. Id. § 648.4(a)(1).
-36-
Plaintiffs acknowledge that the ACE allocation made to
sectors is not a "Federal permit" under the Fishery's regulations.
New Bedford argues, however, that the appropriate construction of
the term "Federal permit," in relation to the LAPP requirements, is
not the document described in these regulations, but the
layperson's meaning of the word "permit." They offer the following
dictionary definition: "1. Permission, esp. in written form. 2. A
document for [sic] certificate giving permission to do something;
license; warrant," American Heritage Dictionary (2d. ed. 1976), and
reason that the ACE allocation made to sectors qualifies as a
"Federal permit" because it is a form of permission.
There is no indication that Congress intended the term
"Federal permit" to take on a layperson's notion of any permission
under the Reauthorization Act when it has long had a specialized
meaning. Indeed, the MSA continues to distinguish "Federal
permits" from other forms of permission relating to fishing. See
16 U.S.C. § 1801(b)(7) (identifying the MSA's purpose of, inter
alia, "promot[ing] the protection of essential fish habitat in the
review of projects conducted under Federal permits, licenses, or
other authorities" (emphasis added)).19
19
Other provisions in the Reauthorization Act show that where
Congress intended to broaden the scope of a "permit," federal or
otherwise, it did so specifically and with limiting instructions.
See 16 U.S.C. § 1853a(b) (clarifying that "[l]imited access
privilege, quota share, or other limited access system
authorization established, implemented, or managed under this
chapter -- (1) shall be considered a permit for the purposes of
-37-
New Bedford's argument to the contrary is misguided.
Under traditional rules of statutory construction, "identical words
used in different parts of the same [A]ct are intended to have the
same meaning." Dep't of Revenue of Or. v. ACF Indus., Inc., 510
U.S. 332, 342 (1994) (quoting Sorenson v. Sec'y of Treasury, 475
U.S. 851, 860 (1986)) (internal quotation marks omitted). This is
particularly true where those words are employed by Congress across
multiple amendments to the same statute. See Hernández-Miranda,
651 F.3d at 175 ("The fact that Congress used the same terminology
in the 1991 amendments as in [prior amendments to the Civil Rights
Act] makes it quite likely . . . that it intended to adopt" the
same meaning).
Here, the term "Federal permit" has been used to describe
the document issued in the regulation of IFQs since the Sustainable
Fisheries Act in 1996. Several fisheries in the United States had
implemented IFQs before 1996 that assigned harvest privileges to
fishermen and fishing vessels through a federally regulated permit.
See 57 Fed. Reg. 57,130, 57,136 (Dec. 3, 1992) (Alaska Halibut IFQ
program: "The annual IFQ allocation . . . would be issued to each
QS holder in the form of an IFQ permit" (emphasis added)); cf. 56
Fed. Reg. 57,302-03, 57,309 (Nov. 8, 1991) (Atlantic Wreckfish ITQ
sections 1857, 1858, and 1859 of this title" (emphasis added)).
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["individual transferable quota"20]: "Wreckfish may not be possessed
on board a fishing vessel -- (i) In an amount exceeding the total
of the ITQ coupons on board the vessel; (ii) That does not have on
board a vessel permit for wreckfish"). The same is true of the use
of permits in the regulation of current LAPPs and IFQs. See, e.g.,
50 C.F.R. § 660.100 ("The [Pacific coast groundfish] trawl
rationalization program creates limited access privileges," which
attach to the permits described in §§ 660.111 (definitions),
660.140 (Shorebased IFQ Program), 660.150 (Mothership Coop
Program), and 660.160 (Catcher/processor Coop Program)); id.
§ 679.4(d)(1)(i) (Alaskan EEZ sablefish and halibut IFQ permits);
id. § 680.4(d) (Alaskan EEZ crab IFQ permit). This includes the
N.E. Council's own IFQ program. Id. § 648.4(a)(2)(ii)(A) (Scallop
IFQ permit). These programs, all developed with the same language
in mind, demonstrate that defendants' construction of the term
"Federal permit" is not prohibited, but entirely permissible.
Significantly, the analysis cannot end there. The term
"Federal permit," as used in the statutory definition of what
constitutes a LAPP, is itself subject to two limiting clauses: the
permit must also be "to harvest a quantity of fish" and "for
exclusive use by a person." 16 U.S.C. § 1802(26)(A). These
20
An individual transferable quota, or ITQ, is identical to
an IFQ except that the fishing privilege in an ITQ is transferable.
See Sea Watch Int'l v. Mosbacher, 762 F. Supp. 370, 373 (D.D.C.
1991).
-39-
clauses, which also predate the Reauthorization Act, see Pub. L.
No. 104-297, Tit. I, § 102, require that, to meet the definition of
a LAPP, the permit must allow its recipient, and only its
recipient, to catch fish. This too is consistent with the permits
issued in the regulation of preexisting LAPPs, which authorize an
individual or entity to harvest some portion of a fishery's TAC,
but not true of A16's sector program. See, e.g., 50 C.F.R.
§ 679.4(d)(1)(i) ("An IFQ permit authorizes the person identified
on the permit to harvest IFQ halibut or IFQ sablefish . . . until
the amount harvested is equal to the amount specified under the
permit . . . ."); id. § 648.53(h)(1) ("For each fishing year of the
IFQ program, a vessel issued an IFQ scallop permit may only harvest
and land the total amount of scallop meats allocated [to that
vessel's permit] in accordance with this subpart."); id.
§ 660.25(e)(1)-(2) ("An MS coop [and C/P coop] permit conveys a
conditional privilege to an eligible coop entity to receive and
manage a coop's allocation of designated species and species
groups," subject to the procedures announced in §§ 660.150 and
660.160); see also Pac. Coast Fed'n of Fishermen's Ass'n v. Locke,
No. C 10-04790 CRB, 2011 WL 3443533, at *1 n.4 (N.D. Cal. Aug. 5,
2011) ("A 'limited access privilege' is a federal permit that
provides a person an exclusive privilege to harvest a specific
portion of a fishery's total allowable catch."); Alliance Against
IFQs v. Brown, 84 F.3d 343, 345 (9th Cir. 1996) ("The basic scheme
-40-
is that any boat that fishes commercially for the regulated fish in
the regulated area must have an individual quota share (IFQ) permit
on board, specifying the individual fishing quota allowed for the
vessel . . . .").
Plaintiffs argue that A16's PSC allocation meets both of
these two additional requirements. Not so. There is no dispute
that the PSC assigned to fishermen does not, by itself, allow them
to catch any fish. It is only upon joining a sector that a
fisherman's PSC becomes an allocation of catch. Even then, federal
defendants emphasize, the quantity of fish an individual member is
allowed to harvest is uncertain; sectors may assign individual
members an ACE allocation according to the sector's own
preferences, as expressed through a binding management plan.21 The
federal defendants' conclusion that the A16 sector program does not
meet the statutory elements for a LAPP or an IFQ conforms to long-
standing regulations governing fisheries and is permissible.
2. The Referendum Requirement and Other Provisions in
Section 1853a
Turning from the definition of a LAPP/IFQ, the parties
point to other provisions in section 1853a to reinforce their
21
New Bedford responds that sectors merely return the PSC
allocated to individual fishermen back to them. However, this is
not required by A16. How sectors choose to fish their allocation
is up to them. Additionally, as New Bedford acknowledges, all
sectors withhold a portion of their ACE allocation to avoid fishing
overages. 75 Fed. Reg. at 18,114. This alone demonstrates that
individual fishermen do not exclusively control their own
allocations.
-41-
respective interpretations as to whether sectors are LAPPs or IFQs.
Some of these provisions refer to the N.E. Council's "sector
allocation" program directly,22 but most offer only indirect clues
as to congressional intent. Three provisions in section 1853a
directly acknowledge or address the status of "sector allocations."
Defendants argue that nothing in the language of section 1853a
itself compels the conclusion that A16's sector program is a LAPP
or an IFQ, and that sectors are plainly exempt from section 1853a's
referendum requirement. We agree.
Of central importance to one portion of this appeal is
section 1853a's "sector allocation" exemption from the referendum
requirement, which provides that "[i]n this subparagraph, the term
'individual fishing quota' does not include a sector allocation."
16 U.S.C. § 1853a(c)(6)(D)(vi) (emphasis added). There is no
dispute that Congress had A13's sector allocation program in mind
when it adopted this language.
Plaintiffs argue that while the exemption may apply to
A13's sectors, it does not apply to A16's sectors. They argue that
A16's sectors are too qualitatively different from their
22
Two provisions of section 1853a merely provide safe harbors
for sector allocations -- one for sector allocations in effect
before the Reauthorization Act's effective date, 16 U.S.C.
§ 1853a(h), and the other for sector allocations authorized up to
six months thereafter (with certain exceptions), id. § 1853a(i).
-42-
predecessors to fall within the exemption. New Bedford,23 Lovgren,24
and FWW25 each advance different bases for this alleged difference.
Collectively, these arguments do not assist their case. The
23
New Bedford argues that Congress only intended for the
"sector allocation" exception to apply to sectors that shared
common traits (e.g., gear, target stock, or region), like those
under A13. Defendants point out that A13 explicitly did not
require any commonality among sector members or vessels. A13
defined a sector as "a group of limited access NE multispecies
vessels," without additional requirements, 69 Fed. Reg. at 22,981,
and the EIS prepared for A13 denied that common traits were
necessary. AR 000167 ("Such self-selected sectors might be based
on common fishing practices, vessel characteristics, community
organization, or marketing arrangements, but this would not be
required." (emphasis added)). Indeed, the absence of a commonality
requirement was closely related to the sector program's purpose of
increasing flexibility. Id. ("Since self-selection of sector
membership would not necessarily be based on any common vessel or
gear characteristics this alternative offers a great deal of
flexibility in the formation of sectors.").
24
Lovgren plaintiffs emphasize that A16 did away with input-
based DAS allocations, which they characterize as "the core of the
sector organization [under A13]." This characterization is
incorrect both in principle and as a matter of practice. First,
A13 sectors could request allocations of either DAS or TAC (an
"output" control), 69 Fed. Reg. at 22,981, and even A13's DAS
allocations were established on the basis of "target TACs specified
for the sector," id. at 22,914. Second, both of the sectors
adopted prior to A16 -- to wit, those with which Congress had
experience -- opted for a TAC allocation. See Section I.B.2,
above.
25
FWW argues that the introduction of PSCs under A16 is too
significant a departure from A13 for the exemption to apply. But
PSCs altered only the timing of allocations under the two programs,
not the fundamental process. See Section I.C.3, above. Both A13
and A16 made allocations based on the average catch of a sector's
members over a defined interval and assigned that allocation to
sectors to be caught in accordance with their own binding
management plans. PSCs expedited the allocation process by
establishing, in advance, the contributions each member would make
to a sector's ACE.
-43-
exclusion of sectors from the referendum requirement in section
1853a does not contain the language "identical sector allocation,"
"existing sector allocation," or any of the restrictions plaintiffs
would read into it. There is no textual basis for the argument.
Further, the core principle, in both A13 and A16, that a
sector is a voluntary "allocation proposal for a group of limited
access NE multispecies vessels," 50 C.F.R. § 648.87(a)(1), remains
the same. The changes made to sectors from A13 to A16 served only
to enhance that core concept, not to render A16's sectors non-
sectors.26 For this reason, Lovgren's argument as to the referendum
requirement is inconsistent with the text of the Reauthorization
Act.
Plaintiffs' second line of argument, again not based on
the statutory text, is that A16's sector program comes so close to
meeting the statutory definition of a LAPP that Congress must have
26
We also reject FWW's attempt to characterize the exclusion
of sectors from the referendum requirement as a mere
grandfathering. Congress knows how to write grandfathering
clauses, see, e.g., 16 U.S.C. § 1853a(h) ("Nothing in this chapter
. . . shall be construed to require a reallocation or a
reevaluation of [existing programs] . . . ."), and did not use such
language here.
-44-
meant for the protective measures of section 1853a to apply.27 The
federal defendants justifiably rejected this view.
Sectors were one of several organization-based management
systems in use when Congress passed the Reauthorization Act. The
text of the Reauthorization Act shows that Congress was well aware
of sectors and other collective fishing programs and it chose to
treat some differently than others. Section 1853a specifically
identifies two collective entities, "fishing communities" and
"regional fishery associations" ("RFAs"), as eligible to
participate in a LAPP, and it sets out criteria governing both.
See 16 U.S.C. § 1853a(c)(3)-(4) (fishing communities and RFAs,
respectively). In contrast, there is no comparable provision
addressing the eligibility of sectors to participate in a LAPP.
Absent such an instruction, and in light of the considerable
support for the NMFS's interpretation, we cannot conclude that the
Act mandates the conclusion that A16's sector program is a LAPP or
an IFQ.28
27
New Bedford and American Alliance argue that, under section
1853a, "sectors are [LAPPs] de facto, if not de jure," and that
"functionally, federal permits are in fact issued both to sectors
and to sector members." Lovgren makes a similar argument that
"[t]he issue of a federal permit is a red-herring" because all PSCs
are attached to permits and sectors are "the summation of all
PSCs."
28
Plaintiffs also argue that the Reauthorization Act's
legislative history confirms that the elements of A16's sector
program are functionally if not formally equivalent to a LAPP. It
does not. Neither the Senate nor the House Report speaks to the
status of sectors or sector allocations. Even in addressing the
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B. Administrative Deference
Having found that the Reauthorization Act does not
foreclose the agency's interpretation, we turn to the issue of
administrative deference. At this stage, the parties agree that
some deference is in order, but differ as to its appropriate level.
Plaintiffs argue that, at most, the NMFS is entitled to Skidmore
and not Chevron deference.29 We disagree and spell out why.
"The fair measure of deference to an agency administering
its own statute has been understood to vary with circumstances
. . . ." Mead, 533 U.S. at 228. Where it appears "that Congress
delegated authority to the agency generally to make rules carrying
the force of law, and that the agency interpretation claiming
deference was promulgated in the exercise of that authority," the
referendum requirement, no mention is given to the "sector
allocation" exemption. See S. Rep. No. 109-229, at 29-30 (2006);
H.R. Rep. No. 109-567, at 88-89 (2006). The more general remarks
in the Senate Report do confirm that Congress was concerned about
the "consolidation" of fishery resources that results from LAPPs,
see S. Rep. No. 109-229, at 25-30, but this says little about
whether A16's sector program is a LAPP or raises similar concerns
to one. "Such general remarks, when read fairly and in light of
their true context, were obviously not made with this narrow issue
in mind . . . ." Jewell Ridge Coal Corp. v. Local No. 6167, United
Mine Workers of Am., 325 U.S. 161, 168-69 (1945).
29
New Bedford argues that, despite the statements that A16's
sectors are not LAPPs in the final regulations, defendants made an
earlier admission that sectors are LAPPs. That is not so. First,
our focus is on A16, not on the 2007 NOAA technical memorandum from
which New Bedford draws an inference that sectors are LAPPs.
Second, a technical memorandum not addressed to the legal issues in
this case, not subject to notice-and-comment rulemaking, and which
states that it provides only "non-binding technical advice" is not
an admission nor relevant to the issues before us.
-46-
agency is entitled to deference under Chevron. Id. at 226-27.
Statutes often contain gaps, and "[f]illing these gaps . . .
involves difficult policy choices that agencies are better equipped
to make than courts." Nat'l Cable & Telecomms. v. Brand X Internet
Servs., 545 U.S. 967, 980 (2005). Accordingly, Chevron requires
courts to accept an agency's gap-filling interpretation so long as
it is reasonable. Mead, 533 U.S. at 229.
However, where an agency's interpretation is announced in
a manner that lacks the force of law, Chevron deference may be
inappropriate. See, e.g., Christensen v. Harris County, 529 U.S.
576, 587 (2000) ("Interpretations such as those in opinion letters
. . . policy statements, agency manuals, and enforcement
guidelines, all of which lack the force of law, do not warrant
Chevron-style deference."). Such interpretations are generally
subject to review under Skidmore v. Swift & Co., 323 U.S. 134
(1944), and are accorded deference in proportion to their "power to
persuade." Id. at 140.
Congress has expressly delegated responsibility to NMFS
to implement FMPs through binding regulations. See 16 U.S.C.
§§ 1854(a)-(c), 1855(b). The trio of regulations implementing A16
were issued pursuant to this authority and they were subject to
extensive notice-and-comment rulemaking. This creates a strong
presumption in favor of applying Chevron deference to the
challenged interpretation. See Doe v. Leavitt, 552 F.3d 75, 79
-47-
(1st Cir. 2009) (noting that the Supreme Court "contemplated the
application of Chevron deference to most statutory interpretations
that are the fruit of notice-and-comment rulemaking").
Plaintiffs argue, however, that this presumption based on
notice-and-comment rulemaking is inappropriate in this case. New
Bedford, American Alliance, and FWW argue that the NMFS reached its
interpretation internally, i.e., before and without the benefit of
public comment. Specifically, plaintiffs rely on a September 2007
letter, identified in a single reference in A16's final rule, in
which the NMFS advised the N.E. Council that section 1853a's
provisions did not apply to the sector program. 75 Fed. Reg. at
18,292 (response to comment 49). Plaintiffs contend, inaccurately,
that this letter, which was not subject to notice-and-comment
rulemaking, was defendants' only reasoned discussion of the status
of sectors and the basis for the NMFS's interpretation. We reject
the argument.
As recounted earlier, the NMFS twice addressed the status
of sectors in A16's final rule.30 See Section III.A, above. The
first discussion appears in the NMFS's direct overview of A16's
sector program, and it does not refer to the September 2007 letter
at all. 75 Fed. Reg. at 18,275. That discussion articulates the
30
The NMFS also addressed the status of sectors indirectly in
other areas of A16's final regulations. See Note 18, above.
-48-
same permit-based argument presently at issue for distinguishing
the ACE allocation issued to sectors from a LAPP.
It is only in the second discussion that the NMFS refers
to the September 2007 letter. Even there, the agency did not rely
on the letter. Instead, the NMFS clarified that it "has
determined, as explained in a September 1, 2007, letter to the
[N.E.] Council, that the sector program, as currently implemented
in the FMP, is neither an IFQ program, nor a LAPP program." Id. at
18,292 (response to comment 49) (emphasis added). The NMFS goes on
to note that "none of the revisions to the current sector program
in this final rule change the conclusions reached in that letter."
Id.
New Bedford next argues that even if the NMFS addressed
its interpretation in A16's final rule, that was not enough: the
agency should have included the discussions in A16's proposed rule,
which defendants concede they did not. This argument is without
basis. To the extent New Bedford is suggesting there was a lack of
notice, the record is to the contrary. The issue arose several
times during A16's three-year development, and public comments
throughout this process indicate that the Fishery's participants,
including several parties to this appeal, were aware of the
Agency's position. AR 051603-04 (New Hampshire Commercial
Fishermen's Association); AR 032203-05 (Lovgren); AR 050496 (FWW).
Further, the N.E. Council formally announced its interpretation in
-49-
the version of A16 submitted to the NMFS for approval, which was
also subject to notice and comment. See 74 Fed. Reg. 54,773 (Oct.
23, 2009). The fact that the NMFS listened to the public comments,
realized some confusion remained, and stated the reasons for its
views hardly shows non-compliance with the MSA, see 16 U.S.C.
§§ 1854(b), 1855(d), or with notice-and-comment rulemaking. There
is no basis to reject Chevron deference. Other circuits have also
rejected similar arguments. See, e.g., Trout Unlimited v. Lohn,
559 F.3d 946, 954 (9th Cir. 2009) (applying Chevron deference to
NMFS policy subject to "formal notice-and-comment process"
(emphasis added)); Sierra Club v. U.S. Fish & Wildlife Serv., 245
F.3d 434, 440-41 (5th Cir. 2001) (same).
C. Reasonableness of the Interpretation
Chevron directs us to defer to the agency's
interpretation unless that interpretation is unreasonable. Mayo
Found. for Med. Educ. & Research, 131 S. Ct. at 715. We have
already explained why the record demonstrates that the NMFS engaged
in reasoned decisionmaking and reached rational outcomes to hard
choices. The agency has articulated a statutorily permissible
basis for distinguishing A16's sector program from a LAPP, and so
from compliance with section 1853a. This interpretation was
reached through notice-and-comment rulemaking and conforms to over
two decades of regulations governing federal fisheries.
-50-
Plaintiffs and their amici argue that regardless, A16 is
unreasonable because the requirements of section 1853a should be
read to protect fishermen and fishing communities from any and all
management systems that might encourage consolidation or drive
smaller fishing businesses out of the industry. Two points are
worth making. First, whether A16's sector program in fact
encourages consolidation or exerts particular pressure on small
fishermen is itself disputed, and some contend that it provides
greater protection against both than the alternatives. Second,
defendants have opened the door to consider the concerns plaintiffs
raise in their development of future FMPs. See Section V, below.
In any event, "[w]hen a challenge to an agency construction of a
statutory provision, fairly conceptualized, really centers on the
wisdom of the agency's policy . . . the challenge must fail."
Chevron, 467 U.S. at 866. Where, as here, "the regulatory scheme
is technical and complex, the agency considered the matter in a
detailed and reasoned fashion, and the decision involves
reconciling conflicting policies," we must defer to the agency's
conclusions. Id. at 865 (footnotes omitted). We reject the
challenges.
IV.
Plaintiffs make a separate argument that A16 is not
consistent with the MSA's ten national standards, as announced at
16 U.S.C. § 1851(a)(1)-(10), particularly Standards 1, 4 and 8.
-51-
These standards are broadly worded statements of the
MSA's objectives for all fishery conservation and management
measures. The purposes of the national standards are many, and can
be in tension with one another. See Div. of Marine Fisheries, 170
F.3d at 30 (recognizing that "some [of the national standards] are
potentially in tension with others"). Compliance with the national
standards requires balancing by the agency and the exercise of
discretion and judgment. See Alliance Against IFQs, 84 F.3d at
350. That being so, "we will uphold a regulation against a claim
of inconsistency with a 'national standard' under § 1851 if the
Secretary had a 'rational basis' for it." Or. Trollers Ass'n, 452
F.3d at 1119. "What matters is that the administrative judgment,
right or wrong, derives from the record, possesses a rational
basis, and evinces no mistake of law." Associated Fisheries, 127
F.3d at 111. The Secretary's judgments here were derived from the
record, rational, and not based on any error of law.
A. National Standard 1: "Overfishing" and "Optimum Yield"
The Fishery is made up of different stocks of fish, some
eleven of which are badly overfished. AR 018987 (GARM III
results). Under the Reauthorization Act, the N.E. Council had a
two-year window to adopt an FMP that would "end overfishing
immediately," 16 U.S.C. § 1854(e)(3)(A), and rebuild affected
stocks in "as short [a time] as possible," id. § 1854(e)(4)(A)(i).
-52-
To meet these mandates, A16 established new ACLs, or
catch limits, for each of the Fishery's stocks, at levels that the
Council reasoned would rebuild most overfished stocks within four
to six years. To ensure that these limits were not exceeded, A16
also provided that once an ACL was reached for a particular stock,
all fishing activity in that stock had to cease. Further, any
fishing overages would be subtracted from a stock's ACL in the
following fishing year. See 75 Fed. Reg. at 18,267-68.
This strategy necessarily had consequences. Most fishing
gear is not selective as to what it brings up and will catch a wide
range of stocks. So, when the ACL for a particular stock is
reached, if some incidental catch of that stock cannot be avoided
in the catching of other stock, it can mean that fishing in other,
healthier stocks with that gear ends too, in order to avoid
depletion of the endangered stock. Defendants were candid that
A16's rebuilding strategy would have these effects but concluded
that such rebuilding was needed and required. See 75 Fed. Reg. at
18,365-66 (response to comment 2).
American Alliance argues that this "stock-by-stock"
approach to rebuilding is inconsistent with the plain language of
the MSA and is otherwise unreasonable. They rely primarily on
National Standard 1 ("NS 1"), which requires that FMPs "prevent
overfishing while achieving, on a continuing basis, the optimum
-53-
yield ["OY"] from each fishery." 16 U.S.C. § 1851(a)(1) (emphasis
added).31
The potential for tension between these objectives is
clear. Challenges to the adequacy of FMPs in both respects are
common; and commonly rejected. See, e.g., San Joaquin River Grp.
Auth. v. Nat'l Marine Fisheries Serv., 819 F. Supp. 2d 1077, 1102
(E.D. Cal. 2011); W. Sea Fishing Co. v. Locke, 722 F. Supp. 2d 126,
136 (D. Mass. 2010). Plaintiffs argue that A16 improperly
sacrifices optimum yield to prevent overfishing within the
Fishery's weakest stocks.
American Alliance incorrectly argues that stock-by-stock
management is flatly inconsistent with the plain language of the
MSA. It is true that, before 2007, the MSA had been interpreted to
permit overfishing, even in depleted stocks of fish, for a limited
period of time.32 That changed with the Reauthorization Act. Both
31
"Overfishing" is a "rate or level of fishing mortality that
jeopardizes the capacity of a fishery to produce the maximum
sustainable yield." 16 U.S.C. § 1802(34). By regulation, "maximum
sustainable yield" is defined as the "largest long-term average
catch or yield that can be taken from a stock or stock complex
under prevailing ecological, environmental conditions and fishery
technological characteristics (e.g., gear selectivity)." 50 C.F.R.
§ 600.310(e)(1)(i)(A). "Optimum yield," in turn, is defined as the
amount of fish that "will provide the greatest overall benefit
. . . particularly with respect to food production and recreational
opportunities, and taking into account the protection of marine
ecosystems." 16 U.S.C. § 1802(33)(A).
32
See, e.g, Oceana, Inc. v. Evans, No. Civ. A. 04-0811 (ESH),
2005 WL 555416, at *12 (D.D.C. Mar. 9, 2005) ("Congress provided
that overfishing could continue for a time [in depleted stocks]
. . . ." (emphasis added)); Amendment 13, 69 Fed. Reg. at 22,920
-54-
the House and the Senate considered drafts of the Reauthorization
Act that would have allowed this practice to continue. See H.R.
Rep. No. 109-567, at 69; S. Rep. No. 109-229, at 113. But Congress
chose instead to require all FMPs developed in overfished fisheries
"to end overfishing immediately," Pub. L. No. 109-479, Tit. 1,
§ 104, 120 Stat. at 3584 (emphasis added) (altering 16 U.S.C.
§ 1854(e) "by inserting 'immediately' after 'overfishing' in
paragraph (3)(A)"), and it prescribed a process for identifying
these fisheries and rebuilding their stocks, see 16 U.S.C.
§ 1854(e)(2)-(4).
The statutory definition of "optimum yield" itself
defeats Alliance's argument. See id. § 1802(33). That language
notes that OY incorporates reductions based on "any relevant
social, economic, or ecological factor," and "in the case of an
overfished fishery, provides for rebuilding to a level consistent
with producing the maximum sustainable yield in such fishery."33
Id. § 1802(33)(B)-(C). And for each of the statutory provisions
("[N]othing in the Act . . . require[s] that overfishing be ended
immediately upon implementation of [an FMP] . . . ." (emphasis
added)).
33
Moreover, Congress directed the NMFS to develop advisory
guidelines clarifying the requirements of NS 1, 16 U.S.C.
§ 1851(b), which the Agency has done, see 50 C.F.R. § 600.310.
A16's stock-by-stock approach conforms to the instruction of those
guidelines that "[t]he most important limitation on the
specification of OY is that the choice of OY and the conservation
and management measures proposed to achieve it must prevent
overfishing." Id. § 600.310(b)(2)(ii) (emphasis added).
-55-
highlighted by the plaintiffs, which allegedly foreclose stock-by-
stock management, there is another statutory provision which
encourages or requires such management.34 Striking the appropriate
balance between NS 1's objectives is a judgment Congress both
authorized and entrusted to the N.E. Council and the NMFS.35 The
only question, then, is whether the balance struck in A16 is
"within the bounds of reasoned decisionmaking required by the APA."
Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S.
87, 104 (1983). It is.
34
American Alliance points to National Standard 3 to undermine
the agency's decision, but National Standard 3 does not preclude
stock-by-stock management. See 16 U.S.C. § 1851(a)(3) ("To the
extent practicable, an individual stock of fish shall be managed as
a unit throughout its range, and interrelated stocks of fish shall
be managed as a unit or in close coordination." (emphasis added)).
There are also additional provisions in the MSA requiring councils
and the NMFS to rebuild affected stocks. See, e.g., id.
§ 1851(a)(8) ("Conservation and management measures shall,
consistent with the conservation requirements of this chapter
(including the prevention of overfishing and rebuilding of
overfished stocks), take into account . . . ." (emphasis added));
id. § 1853(a)(1)(A) (requiring FMPs to contain measures necessary
to "to prevent overfishing and rebuild overfished stocks" (emphasis
added)).
35
The statement of general views by a single Congressman, 152
Cong. Rec. H9233 (daily ed. Dec. 8, 2006) (statement of Rep. Young
(R-AK)), does not undermine the Reauthorization Act's explicit
instruction that FMPs end overfishing immediately. See Chrysler
Corp. v. Brown, 441 U.S. 281, 311 (1979) ("The remarks of a single
legislator . . . must be considered with the Reports of both Houses
and the statements of other Congressmen . . . ."); see also Garcia
v. United States, 469 U.S. 70, 76 (1984) ("Committee reports are
'more authoritative' than comments from the floor . . . ." (quoting
United States v. O'Brien, 391 U.S. 367, 385 (1968))). Furthermore,
Congressman Young's comments stressed the need for balance and
flexibility in meeting NS 1's requirements; they do not state that
stock-by-stock management is impermissible.
-56-
Defendants were well aware that earlier measures,
including effort controls, trip limits, and other restrictions, had
proven ineffective, and they concluded that A16 would better
address the needs of depleted stocks while conforming to NS 1's
requirements. See 75 Fed. Reg. at 18,266, 18,270, 18,284 (response
to comment 17). Defendants also acknowledged the problems that
A16's rebuilding strategy would create for healthier stocks and
took several other measures to achieve optimum yield for different
stocks. For example, A16 increased access to haddock, a healthy
stock, by reducing the minimum size of the allowable catch. 75
Fed. Reg. at 18,274. It also introduced new "special access
programs," which relied on gear, area, and seasonal restrictions to
direct fishing efforts toward healthier fish populations. Id. at
18,307. In conjunction with the expanded sector program, these
efforts were meant to mitigate the short-term impact of A16's low
ACLs until overfished stocks were rebuilt. See 75 Fed. Reg. at
18,365-66. Even so, some constraints were "inevitable and
unavoidable due to Magnuson-Stevens Act mandates and national
standards." Id. at 18,365.
B. National Standard 4: "Fair and Equitable" Allocations
For most stocks, A16 allocated TAC to segments of the
Fishery according to their historical landings from 1996 to 2006.
75 Fed. Reg. at 18,276. There were two departures from this
general rule: (1) sectors established before A16 continued to
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receive allocations of Georges Bank cod under A13's five-year
baseline, see id.; 69 Fed. Reg. at 22,981; and (2) the recreational
and commercial divisions of the Fishery received allocations of
Gulf of Maine cod and haddock based on their reported landings from
2001 to 2006, 75 Fed. Reg. at 18,276. American Alliance argues
that these two allocations were not "fair and equitable," and so
were in violation of National Standard 4 ("NS 4").36
"The National Standards do not require any particular
outcome with respect to allocations; rather, they provide a
framework for the Council's analysis." Fishermen's Finest Inc. v.
Locke, 593 F.3d 886, 896 (9th Cir. 2010). Within this framework,
the mandate that allocations be "fair and equitable" does not
predominate over other considerations announced in NS 4 and in the
remaining national standards. See Alliance Against IFQs, 84 F.3d
at 348 ("[T]he Secretary's duty was not solely limited to
allocating [catch] . . . fairly and equitably among the
fishermen."). NS 4's advisory guidelines provide that an
allocation is "fair and equitable" where it is "justified in terms
of the objectives of the FMP" and serves to "maximize overall
benefits." 50 C.F.R. § 600.325(c)(3)(i)(A)-(B). An allocation
36
National Standard 4 provides: "If it becomes necessary to
allocate or assign fishing privileges among various United States
fishermen, such allocation shall be (A) fair and equitable to all
such fishermen; (B) reasonably calculated to promote conservation;
and (C) carried out in such manner that no particular individual,
corporation, or other entity acquires an excessive share of such
privileges." 16 U.S.C. § 1851(a)(4).
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that meets these requirements is rarely deemed invalid. See Ace
Lobster Co. v. Evans, 165 F. Supp. 2d 148, 179-81 (D.R.I. 2001)
(collecting cases). So too, here.
The NMFS explained that maintaining the TAC baseline
under A13 for preexisting sectors was necessary to promote
stability and to encourage continued sector participation. 75 Fed.
Reg. at 18,294 (response to comment 56) (explaining that continued
use of A13's allocation time frame "was adopted to preserve the
business plans developed by participants in those existing sectors
and to maintain the value of investments in permits made by such
participants"); AR 045955 (noting that A16 balanced the need for a
fair and equitable allocation amongst all sectors against the
Council's "stated interest in promoting stability in the fishery
and fostering an environment where sectors can create efficient and
effective business plans"). That American Alliance disagrees with
this rationale does not make it an unreasoned judgment.
The second challenge, to the recreational allocation, was
also addressed in A16's final regulations: "[t]he use of the more
recent time period . . . reflects the Council's consideration of
the potential inaccuracy of recreational catch data in earlier
years and the current conditions in the fishery." 75 Fed. Reg. at
18,290 (response to comment 43). The district court noted that the
inaccuracy of the data from 1996 to 2001 is "not in dispute, and it
provides a rational justification for the Agency's decision" to use
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more recent data instead. City of New Bedford, 2011 WL 2636863, at
*7. We agree.
C. National Standard 8: Economic and Social Harms
All parties acknowledge that the Reauthorization Act's
requirements and A16 will result in some economic and social harm.
The final EIS for A16 ("FEIS") explicitly addressed the economic
and social harms that would flow from A16 and the relationship
between these harms and the proposed management measures. New
Bedford alleges that this analysis, which is set forth in roughly
300 pages in the FEIS, was inadequate under National Standard 8
("NS 8"). Not so.
NS 8 requires that FMPs "take into account the importance
of fishery resources to fishing communities by utilizing economic
and social data . . . in order to (A) provide for the sustained
participation of such communities, and (B) to the extent
practicable, minimize adverse economic impacts on such
communities." 16 U.S.C. § 1851(a)(8). The plain language of NS 8
and its advisory guidelines make clear that these obligations are
subordinate to the MSA's overarching conservation goals. See N.C.
Fisheries Ass'n, Inc. v. Gutierrez, 518 F. Supp. 2d 62, 91-92
(D.D.C. 2007); Natural Res. Def. Council, Inc. v. Daley, 209 F.3d
747, 753 (D.C. Cir. 2000); see also 50 C.F.R. § 600.345(b)(1)
("Deliberations regarding the importance of fishery resources to
affected fishing communities . . . must not compromise the
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achievement of conservation requirements and goals of the FMP.").
New Bedford argues, incorrectly, that NS 8 requires
defendants to separately address A16's social impact (i.e., apart
from its economic impact) on each of the individual fishing
communities affected by A16. The argument misapprehends both the
law and the facts about what was considered. Economic and social
impacts are necessarily intertwined in an FMP's consideration of a
proposed action's harms. See Associated Fisheries, 127 F.3d at 116
(assessing social and economic harm collectively under Regulatory
Flexibility Act); see also Fishermen's Finest, 593 F.3d at 895
(same under NS 4); Or. Trollers, 452 F.3d at 1122 (same under NS
8). The relatedness of these considerations bears out in NS 8's
advisory guidelines, which do not identify any independent
requirements regarding an FMP's "social" or "economic" analyses,
but rather treat the two collectively. See 50 C.F.R.
§ 600.345(c)(1) ("FMPs must examine the social and economic
importance of fisheries to communities potentially affected by
management measures."); id. § 600.345(c)(4) ("The analysis should
assess the likely positive and negative social and economic impacts
of the alternative management measures . . . .").
The FEIS addressed the economic effects of A16 along a
number of dimensions (including vessel size and gear type, home
state and home port, and within sectors and the common pool), AR
048450-52, as well as the costs associated with sector formation
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and the potential for vessels to remain profitable under A16's dual
management systems, AR 048453-57. The FEIS concluded that "[t]he
economic impacts . . . [on] communities are expected to be severe
and in some cases may threaten the existence of fishing businesses
in some communities." AR 047771.
The FEIS also independently considered the social impact
of A16's proposed management measures. AR 048502-34; see also AR
051243-50. It permissibly built on prior knowledge from A1337 and
contained updated analysis on specific changes under A16 (e.g.,
the creation of new sectors, the relationship between sectors and
the common pool, and the effects of ACLs and AMs). AR 048526-32.
New Bedford alleges that more was required, but it was
not. The analysis required under NS 8 "is subject to a rule of
reason, for study could go on forever." Little Bay Lobster, 352
F.3d at 470. "This is especially so where, as here, a plan
comprises a set of new or changed restrictions designed to work as
a whole . . . ." Id. "About the best a court can do is to ask
whether the Secretary has examined the impacts of, and alternatives
to, the plan he ultimately adopts and whether a challenged failure
to carry the analysis further is clearly unreasonable . . . ." Id.
37
"So long as the agency appropriately updates its analysis
under National Standard No. 8, there is no reason why it must start
from scratch every year." Or. Trollers, 452 F.3d at 1122.
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V.
The final set of challenges alleges that the preparation
of A16's EIS violated the NEPA, 42 U.S.C. § 4321 et seq., which
requires that an EIS address "the environmental impact of" and
"alternatives to" the action proposed, id. § 4332(C)(i), (iii),
and contain "information sufficient to permit a reasoned choice"
among alternatives as to their environmental consequences. Dubois
v. U.S. Dep't. of Agric., 102 F.3d 1273, 1287 (1st Cir. 1996)
(quoting All Indian Pueblo Council v. United States, 975 F.2d 1437,
1444 (10th Cir. 1992)).
"Though significant," this requirement is "procedural in
nature," United States v. Coal. for Buzzards Bay, 644 F.3d 26, 31
(1st Cir. 2011); it "does not mandate particular results,"
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350
(1989). "So long as the environmental effects of a proposed action
have been adequately identified and studied, the agency is free to
weigh those effects and decide -- within the limits fixed by the
APA -- that other values overbalance environmental costs."
Buzzards Bay, 644 F.3d at 31.
Plaintiffs raise two challenges to the adequacy of the
EIS prepared for A16, which are reviewed under a rule of reason.
Associated Fisheries, 127 F.3d at 114 ("[C]ourts do not review
challenges to the adequacy of an EIS under a standard of
mathematical exactitude but under a . . . rule of reason . . . .");
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Dubois, 102 F.3d at 1287. If "the agency has taken a 'hard look'
at environmental consequences," the EIS will stand. Kleppe v.
Sierra Club, 427 U.S. 390, 410 n.21 (1976); Buzzards Bay, 644 F.3d
at 31.
New Bedford and FWW argue that federal defendants did not
"adequately analyze a full spectrum of alternative management
measures" in A16's EIS. Specifically, they assert that the N.E.
Council and NMFS failed to consider a number of alternatives,
including a "points system" proposed by the public, to the revised
sector program. For several reasons, this argument fails.
As the Supreme Court said in Vermont Yankee Nuclear Power
Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519
(1978), "the concept of alternatives must be bounded by some notion
of feasibility." Id. at 551. Based on practical considerations
and the "purpose and need" for the proposed action, the agency must
first decide which alternatives are "reasonable," 43 C.F.R.
§ 46.420(b), and only "reasonable alternatives" are subject to
rigorous and objective review, id. § 46.420(c). See Theodore
Roosevelt Conservation P'ship v. Salazar, 661 F.3d 66, 72 (D.C.
Cir. 2011). For all others, the agency need only "brief[ly]
discuss[] . . . the reasons for eliminating them." 43 C.F.R.
§ 46.420(c).
The primary purpose of A16 was "to meet all the
requirements of the Magnuson-Stevens Act," AR 047816, including
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its mandate to end overfishing by the 2010 fishing year. From the
outset of A16's development, the Council and NMFS assessed the
viability of several alternatives in relation to this objective,
including: (1) the "points system"38 and other catch-share programs
(i.e., ITQs and IFQs), AR 047822; (2) various effort-based
strategies, AR 047977; and (3) the "no-action" alternative, AR
047773. The Council concluded that some of these alternatives
could not be implemented before the statutory deadline, while
others were unlikely to end overfishing altogether. Because these
alternatives were "infeasible, ineffective, or inconsistent with
the basic policy objectives" of A16, N. Alaska Envtl. Ctr. v.
Kempthorne, 457 F.3d 969, 978 (9th Cir. 2006) (quoting Headwaters,
Inc. v. Bureau of Land Mgmt., 914 F.2d 1174, 1180 (9th Cir. 1990))
(internal quotation marks omitted), further explanation was not
required.
New Bedford and FWW respond that the Council and NMFS
should have delayed any major revisions until adequate alternatives
could be evaluated, despite the statutory deadline. The Council
and NMFS complied with the statute and acknowledged in A16's EIS
that additional alternatives would be considered in future
38
Defendants' consideration of the "points system" was
particularly expansive. Discussions of the "points system" began
in December of 2006 and continued until at least January of 2009.
All told, the Council addressed the "points system" in some
capacity on upwards of forty occasions during this period. See,
e.g., Note 17, above.
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amendments. AR 047822 (delaying further consideration of the
"points system" until Amendment 17). The NEPA did not require
more.39
American Alliance argues that defendants failed to take
a "hard look" at the potential effects its adoption of sectors
would have on consolidation in the Fishery. The argument relies on
a document outside the administrative record, but in defendants'
possession at the time A16 was being developed, that discussed the
effects of permit-stacking and leasing programs on fleet
consolidation.40 Alliance argues that defendants ignored
information contained in this document suggesting that sectors
would increase consolidation, and that they failed to adequately
address public concerns on the matter.
39
FWW makes a second and incorrect argument that the remainder
of the alternatives analysis in A16's EIS is inadequate. The N.E.
Council and NMFS considered several alternatives to the proposed
measures outside the sector framework, AR 047951-52 (DAS System),
AR 047969-70 (recreational sector), AR 047972-75 (AMs), and many
more within it, AR 047941-51. The information contained in these
discussions was "sufficient to permit a reasoned choice," Dubois,
102 F.3d at 1287 (quoting All Indian Pueblo Council, 975 F.2d at
1444), and satisfied defendants' obligations.
40
The document in question is a literature review prepared
by an NOAA social scientist for Amendment 15 to the Scallop
Fishery's FMP. Its findings are incorporated in the Scallop
Committee's Discussion Documents, #9a: Environmental Impacts,
§ 1.5.2, at 93-103, available at http://www.nefmc.org/scallops/
council_mtg_docs/Sept%202009/scallop_council_docs_sept09.htm.
Alliance acknowledges that the review was not contained in the
administrative record but submits it satisfies the criteria for
inclusion. See Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660,
665 (9th Cir. 1998). Whether the document is included or excluded,
our outcome would be the same.
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Defendants, however, did take a hard look at
consolidation in A16's EIS and addressed its interaction with the
revised sector program. The information available on the degree
and causes of consolidation was, by all accounts, imperfect;
existing data on consolidation came from A13's sector program,
which was more limited in scope, and accurate projections of future
consolidation were difficult because the rosters for sectors were
not finalized. AR 048464; see also Section I.C.2, above.
Nonetheless, the Council conducted a cost-benefit analysis and
concluded that the efficiency gains offered by sector participation
outweighed the costs associated with sector formation. AR 048645.
And so, while some consolidation was unavoidable due to the
restrictions mandated by Congress, sectors remedied rather than
contributed to this problem. AR 048618-19.
That Alliance disagrees with this conclusion is not a
basis for deeming it invalid. The NEPA ensures that an informed
decision is made, not that the decision is satisfactory to all
those affected by it. See Buzzards Bay, 644 F.3d at 31.
Defendants add that the Council is currently developing Amendment
18 to the Groundfish FMP, which addresses over-consolidation
concerns directly. See Notice of Intent to Prepare an EIS and
Notice of Public Scoping Meetings, 76 Fed. Reg. 79,153-02 (Dec. 21,
2011) ("This action is necessary to provide analytical support for
an amendment . . . examining potential rules to reduce the
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likelihood that groundfish permit holders will acquire or control
excessive shares of fishing privileges in the fishery and that
over-consolidation will occur within the fleet.").
VI.
We reject all of the challenges to A16 and affirm entry
of judgment for defendants. So ordered.
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