Conservation Law v. U.S. Dept of Commer

United States Court of Appeals
For the First Circuit

No. 02-2664

CONSERVATION LAW FOUNDATION and OCEANA,

Plaintiffs, Appellants,

v.

DONALD L. EVANS, et al.,

Defendants, Appellees,

and

FISHERIES SURVIVAL FUND,

Intervenor, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Lipez, Circuit Judge,

Campbell, Senior Circuit Judge, and

Howard, Circuit Judge.

Eric A. Bilsky with whom Sylvia F. Liu and Roger M. Fleming
were on brief for appellants.
Anna T. Katselas, Attorney, U.S. Department of Justice,
Environment & Natural Resources Division with whom Thomas L.
Sansonetti, Assistant Attorney General, Environment & Natural
Resources Division, Jeffrey Bossert Clark, Deputy Assistant
Attorney General, Environment & Natural Resources Division,
Mauricia Baca, John Almeida, Todd S. Kim, Attorneys, Environment &
Natural Resources Division and Gene S. Martin, Office of Regional
Counsel, National Oceanic and Atmospheric Administration (Of
Counsel), were on brief, for appellees Donald L. Evans, et al.
David E. Frulla with whom Shaun M. Gehan, Brand & Frulla,
P.C., H. Reed Witherby and Smith & Duggan, LLP, were on brief, for
intervenor, appellee Fisheries Survival Fund.

February 26, 2004
 HOWARD, Circuit Judge. Two conservation groups challenge

adverse summary judgment rulings in an action alleging violations

of the Magnuson-Stevens Fishery Conservation and Management Act

(the Magnuson-Stevens Act), 16 U.S.C. §§ 1851, 1853, 1854, and the

Administrative Procedure Act (the “APA”), 5 U.S.C. §§ 553, 706.

Conservation Law Foundation (“CLF”) and Oceana (f/k/a American

Oceans Campaign) allege that in implementing Framework Adjustment

14 to the Atlantic Sea Scallop Fishery Management Plan (“Framework

14"), the National Marine Fisheries Service (“NMFS”) and other

federal defendants1 failed to meet their procedural and substantive

obligations under governing law. The district court found that

Framework 14 was lawful. We affirm.

I. Factual and Procedural Background

On May 31, 2001, the plaintiffs initiated an action

challenging Framework 14, a rule that adjusted certain restrictions

on sea scallop fishing in the Atlantic coastal waters.2 The

1
The plaintiffs also sued Donald Evans, in his official
capacity as Secretary of the United States Department of Commerce,
and the National Oceanic and Atmospheric Administration (“NOAA”).
The Secretary of Commerce is the chief officer charged with
managing the marine fisheries of the United States. NOAA is an
agency within the Department of Commerce, and NMFS is a part of
NOAA. Except where otherwise indicated, the federal defendants are
referred to collectively as “NMFS.”
2
In 1976, in effort to prevent overfishing, the Magnuson-
Stevens Act created eight regional councils charged with developing
fishery management plans to regulate commercial fishing of local
fish stocks. See Associated Fisheries of Maine v. Daley, 127 F.3d
104, 106 (1st Cir. 1997) (citing 16 U.S.C. § 1852). The New
England Fishery Management Council (the “Council”) manages the

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plaintiffs challenged Framework 14 on both substantive and

procedural grounds. First, they alleged that NMFS failed to meet

its substantive management obligations under the Magnuson-Stevens

Act, 16 U.S.C. §§ 1851(a)(9), 1853(a)(7) & (a)(11), and the APA.3

Second, they claimed that NMFS’s failure to provide a 15-day public

comment period violated the Magnuson-Stevens Act, 16 U.S.C. §

1854(b), and the APA, 5 U.S.C. §§ 553, 706(2)(D). The plaintiffs

asked the district court to declare Framework 14 in violation of

the governing statutes and to “remand” it with the requirement that

NMFS remedy the alleged deficiencies. They also sought their fees,

costs, and expenses.

In September 2001, the parties submitted to the district

court a joint proposal for briefing and discovery. See Local Rule

16.1. In the proposal, the plaintiffs requested that the court

Atlantic sea scallop fishery, which extends from Maine to North
Carolina. The Atlantic Sea Scallop Fishery Management Plan was
created in 1982, and since has been amended several times. In
1993, Amendment 4 to the scallop FMP established a procedure
whereby management measures could be altered through so-called
“framework adjustments” to respond to the changing needs of the
fishery. This procedure allowed the Council to develop, over the
course of two public Council meetings, a framework adjustment that
is submitted to the Regional Administrator of NMFS for review.
Upon approval of the Regional Administrator, the framework
adjustment becomes a final rule. See 50 C.F.R. § 648.55 (setting
forth framework adjustment procedures).
3
The plaintiffs also alleged violations of the National
Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321-4347.
The district court rejected these claims, and the plaintiffs have
not pursued them on appeal.

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expedite the case pursuant to 16 U.S.C. § 1855(f)(4).4 Over the

next few months, the parties filed cross motions for summary

judgment.5 The district court heard argument on the motions in May

2002. By September 2002, no decision had issued, and the

plaintiffs renewed their request to expedite the case, alerting the

court to the fact that Framework 14 would expire by its own terms

in March 2003.

On October 31, 2002, the district court denied the

plaintiffs’ motion for summary judgment and granted the defendants’

motions. See Conservation Law Found. v. United States Dep’t of

Commerce, 229 F. Supp. 2d 29 (D. Mass. 2002). The court found that

the Magnuson-Stevens Act did not mandate public comment for a rule

such as Framework 14 and that the public comment period required

under the APA had been waived for good cause. See id. at 34 n.10.

The court also concluded that NMFS had considered the substantive

issues raised by the plaintiffs and did not act arbitrarily and

capriciously in implementing Framework 14. See id. at 34. The

4
Section 1855(f)(4) provides: “Upon a motion by the person who
files a petition under this subsection, the appropriate court shall
assign the matter for hearing at the earliest possible date and
shall expedite the matter in every possible way.”
5
Appellant Fisheries Survival Fund (“FSF”) intervened as a
defendant in the underlying action on September 10, 2001. FSF is
an organization of Atlantic sea scallop fishermen.

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plaintiffs appealed. On March 1, 2003, while this appeal was

pending, Framework 14 was superseded by Framework 15.6

II. Analysis

A. Mootness

We turn first to the question of mootness. See Roe v.

Wade, 410 U.S. 113, 125 (1973) (“The usual rule in federal cases is

that an actual controversy must exist at stages of appellate or

certiorari review, and not simply at the date the action is

initiated.”). The defendants contend that the expiration of

Framework 14 rendered this case moot. See Gulf of Maine

Fishermen’s Alliance v. Daley, 292 F.3d 84, 88 (1st Cir. 2002). As

the parties invoking the mootness doctrine, the defendants bear a

“heavy” burden in attempting to establish its applicability.

Mangual v. Rotger-Sabat, 317 F.3d 45, 61 (1st Cir. 2003). And

should they merely cease voluntarily the conduct originally

challenged, they must demonstrate that it is “absolutely clear that

the allegedly wrongful behavior could not reasonably be expected to

recur.” Id. (citing United States v. Concentrated Phosphate Export

Ass’n, Inc., 393 U.S. 199, 203 (1968)).

The defendants attempt to carry this burden with respect

to both of the plaintiffs’ claims by citing to Gulf of Maine, a

case in which we affirmed the district court’s finding of mootness

6
Framework 15 expires on March 1, 2004. See 68 Fed. Reg.
9580, 9581 (Feb. 28, 2003).

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where a challenged framework affecting groundfish was superseded

while cross motions for summary judgment were pending. See 292

F.3d at 87. In that case, an organization of commercial fishermen

alleged that a framework was both procedurally deficient for lack

of adequate notice and comment and substantively unlawful because

of its closure of inshore fishing areas. See id. The appellant

urged us to find that the alleged harms continued, despite the

promulgation of subsequent frameworks, and that the issues

therefore were not moot. See id. at 88. We rejected that

argument, concluding that the promulgation of a new framework in

compliance with procedural guidelines and based on new data

rendered the challenges to the superseded framework moot. See id.

CLF and Oceana respond with arguments similar to those

made by the appellant in Gulf of Maine. As to their substantive

challenge to Framework 14, they contend that the harms caused by

NMFS’s failure to close the four fishing areas were perpetuated

through Framework 15. This, they say, means that their substantive

claim remains live, and for support they rely heavily on

Northeastern Florida Chapter of the Associated General Contractors

of America v. City of Jacksonville, 508 U.S. 656 (1993). There, a

challenged ordinance that accorded preferential treatment to

minority businesses for city contracts was repealed and replaced

with a modified version weeks after the Supreme Court had granted

certiorari. See id. at 660-61 (noting three alterations in

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ordinance, including adoption of five- to sixteen-percent

“participation goals” in place of ten percent “set-aside” of city

contracts earmarked for minority businesses). These modifications

were not enough to render the controversy moot. The Supreme Court

concluded that “[t]here is no mere risk that [the city] will repeat

its allegedly wrongful conduct; it has already done so.” Id. at

662. The analogy to Northeastern Florida is useful here.

On its face, Framework 15 is largely an extension of

Framework 14. See Fed. Reg. 9580, 9581 (Feb. 28, 2003) (noting

that Framework 15's only modification of the management measures

that previously had been in effect was an increase in certain

limits on the amount of scallops that could be held on board a

fishing vessel). And as a practical matter, it appears that

Framework 15 was designed merely to maintain the status quo until

NMFS could complete a more comprehensive overhaul of its management

measures through an amendment to the scallop FMP.7 NMFS states

that Framework 15 is based on entirely new data about the condition

7
Framework 15's scope was described in the Federal Register:

Framework 15 was developed during the later
stages of development of Amendment 10 to the
FMP . . . because it was clear that Amendment
10 would not be implemented by the start of
the 2003 fishing year and, therefore,
Framework 15 is considered to be an action of
limited scope, which is intended to be a stop-
gap measure until Amendment 10 is implemented.

68 Fed. Reg. 9580, 9581 (Feb. 28, 2003).

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of the scallop resource, NMFS Br. at 23, 27-28; cf. Gulf of Maine,

292 F.3d at 88, but it identifies no portion of the record to

support this assertion. See Mulvihill v. Top-Flite Golf Co., 335

F.3d 15, 28 (1st Cir. 2003) (declining to consider argument where

litigant “ma[de] no attempt either to marshal the pertinent facts

or to engage in reasoned analysis”); see also United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to in

a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.”). In any event, we have studied

the record with care and cannot tell whether and to what extent

Framework 15 was developed with new underlying data. Consequently,

we cannot say that the challenged conduct will not recur or has not

already recurred. See Northeastern Florida, 508 U.S. at 662.

Whether we characterize the expiration of Framework 14 as

a “voluntary cessation” of conduct by NMFS subject to the same

standards as in Northeastern Florida, the core question Article III

compels us to ask is whether our adjudication of the issue can

grant meaningful relief. Cf. Gulf of Maine, 292 F.3d at 88. Here,

it appears that the same allegedly harmful scheme continues. No

matter how the issue is framed, we have no difficulty concluding

that, where a challenged regulation continues to the extent that it

is only superficially altered by a subsequent regulation, we are

capable of meaningful review. See Schall v. Martin, 467 U.S. 253,

257 n.2 (1984) (concluding that changes in general statutory scheme

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did not moot challenge where contested provision remained the

same); Brockington v. Rhodes, 396 U.S. 41, 43 (1969) (per curiam)

(finding that suit attacking requirement that nominating petitions

be signed by seven percent of voters on ground that no more than

one percent could be required was not mooted by new statute

reducing signature requirement to four percent); Keyishian v. Board

of Regents of the University of the State of New York, 385 U.S.

589, 596 (1967) (noting that abandonment of requirement that

employees disclaim membership in Communist party did not render

challenge to constitutionality of procedure moot where underlying

statutes and regulations remained). The plaintiffs’ challenge to

the substance of Framework 14 is not moot.

As to their procedural challenge to Framework 14, CLF and

Oceana begin their response to NMFS’s mootness arguments by

acknowledging that Framework 15 was promulgated in a procedurally

proper manner. Yet, the plaintiffs argue, their challenge remains

live because NMFS’s conduct is “capable of repetition, yet evading

review.” See Gulf of Maine, 292 F.3d at 88-89 (quoting Weinstein

v. Bradford, 423 U.S. 147, 149 (1975)). The defendants again point

to Gulf of Maine, in which we rejected the application of this

exception and found the issue moot. See id. at 89.

Although the parties present compelling arguments on both

sides of the debate, we find that a more straightforward resolution

of the issue is readily available on the facts of this case. NMFS

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has not shown, as it must, that the alleged procedural deficiency

will not recur. See Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs., 528 U.S. 167, 189 (2000) (requiring, in cases involving

voluntary cessation of challenged conduct, that party claiming

mootness satisfy heavy burden of demonstrating that allegedly

wrongful behavior could not reasonably be expected to recur). To

the contrary, NMFS maintains that the Magnuson-Stevens Act does not

require notice and comment for framework adjustments. Likewise,

NMFS argues that its routine waivers of notice and comment under

the APA have been wholly proper.8 The fact that NMFS voluntarily

provided a public notice period in promulgating Framework 15

therefore does not suggest a change of heart as to whether the

process was legally required. Rather, as NMFS’s counsel

acknowledged at oral argument, the public notice period preceding

8
NMFS has waived notice and comment for “good cause” in
promulgating all but two of the first fourteen framework
adjustments. See 66 Fed. Reg. 24,052, 24,055 (May 11, 2001)
(Framework 14); 65 Fed. Reg. 37,903, 37,909-10 (June 19, 2000)
(Framework 13); 65 Fed. Reg. 11,478, 11,479 (Mar. 3, 2000)
(Framework 12); 64 Fed. Reg. 31,144, 31,148 (June 10, 1999)
(Framework 11); 63 Fed. Reg. 45,939, 45,940 (Aug. 28, 1998)
(Framework 10); 62 Fed. Reg. 43,469, 43,470 (Aug. 14, 1997)
(Framework 9); 61 Fed. Reg. 38,404, 38,405 (July 24, 1996)
(Framework 8); 61 Fed. Reg. 8490, 8491-92 (Mar. 5, 1996) (Framework
7); 60 Fed. Reg. 35,513, 35,514 (July 10, 1995) (Framework 6); 60
Fed. Reg. 33,757, 33,758 (June 29, 1995) (Framework 5); 59 Fed.
Reg. 59,967, 59,968 (Nov. 21, 1994) (Framework 2); 59 Fed. Reg.
36,720, 36,722 (July 19, 1994) (Framework 1). The framework
adjustment procedure, as set forth in Amendment 4 to the scallop
FMP, contemplates that the Secretary of Commerce will “waive for
good cause the requirement for a proposed rule and opportunity for
public comment in the Federal Register” because “the Council
process will adequately satisfy that requirement.”

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the enactment of Framework 15 was provided “out of an abundance of

caution” in light of this appeal. Under these circumstances,

NMFS’s voluntary cessation of the challenged conduct does not

render the challenge moot. See Adams v. Bowater, Inc., 313 F.3d

611, 613-15 (1st Cir. 2002) (issue not moot where a recurrence of

the challenged conduct is highly likely).

B. Merits

Concluding as we do that the issues before the district

court continue to present a live controversy on appeal, we turn to

the merits of the case. The district court’s entry of summary

judgment is subject to de novo review. See Associated Fisheries,

127 F.3d at 109. In the administrative law context, however, this

review is limited, even at the summary judgment stage. See id.

This is because the Magnuson-Stevens Act adopts the APA standard of

review, which permits a court to upset an agency action only if it

is arbitrary, capricious, or otherwise contrary to law. See id.

(citing 5 U.S.C. § 706(2)(A)-(D)). Therefore, our task is to

determine whether the action “was consonant with [the agency’s]

statutory powers, reasoned, and supported by substantial evidence

in the record.” Id.

1. Substantive challenge

CLF and Oceana contend that Framework 14 is arbitrary and

capricious in failing to mandate the closure of scallop-harvesting

in four areas. To succeed on this claim, they must demonstrate

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that NMFS lacked a rational basis for adopting the framework. See

Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 109

(1st Cir. 1997). That showing may be made where “the agency relied

on improper factors, failed to consider pertinent aspects of the

problem, offered a rationale contradicting the evidence before it,

or reached a conclusion so implausible that it cannot be attributed

to a difference of opinion or the application of agency expertise.”

Id.

Under the Magnuson-Stevens Act, NMFS has a duty to

minimize to the extent practicable (1) adverse effects on essential

fish habitat (“EFH”),9 16 U.S.C. § 1853(a)(7); and (2) bycatch

(fish that are caught but not sold or kept for personal use) and

bycatch mortality, 16 U.S.C. §§ 1851(a)(9), 1853(a)(11). The

plaintiffs argue that NMFS violated these statutory obligations in

rejecting the closure of the four fishing areas. As they see it,

NMFS’s decision was irreconcilable with record evidence that the

closures would be beneficial with respect to EFH and bycatch. The

plaintiffs also fault NMFS’s analysis, claiming that the agency

ignored relevant factors they should have considered and failed to

articulate a rational basis for declining to implement the

closures.

9
EFH refers to “those waters and substrate necessary to fish
for spawning, breeding, feeding or growth to maturity.” 16 U.S.C.
§ 1802(10).

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 These arguments are flawed to the extent that they

consider the closure alternative in isolation, discounting numerous

other restrictions on scallop fishing imposed by Framework 14. See

CLF, 229 F. Supp. 2d at 34 (noting that Framework 14 maintained

closures of three large scallop fishing areas, as well as

“restrictions on days at sea, catch and mesh sizes, and seasonal

access to sensitive areas”). Moreover, the plaintiffs essentially

call for an interpretation of the statute that equates

“practicability” with “possibility,” requiring NMFS to implement

virtually any measure that addresses EFH and bycatch concerns so

long as it is feasible. Although the distinction between the two

may sometimes be fine, there is indeed a distinction. The closer

one gets to the plaintiffs' interpretation, the less weighing and

balancing is permitted. We think by using the term "practicable"

Congress intended rather to allow for the application of agency

expertise and discretion in determining how best to manage fishery

resources.

We also note that CLF's and Oceana's characterization of

the record is somewhat faulty. NMFS in fact considered the closure

alternative and other potential management measures in a Final

Supplemental Environmental Impact Statement (“FSEIS”) that analyzed

the probable effects of Framework 14. The FSEIS concluded, inter

alia, that the closures would provide only limited, short-term

benefits to habitat. These benefits would be “mitigated to some

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degree” because other (non-scallop) fishing would continue in the

closed areas. The FSEIS also found that (1) implementing no new

closures would have a greater economic benefit for the fishing

seasons Framework 14 was intended to address than would the closure

alternative, and (2) any long-term benefits that might accrue as a

result of closures were uncertain and might not outweigh the

benefits of forgoing new closures. It is not our role to second

guess these determinations. See Associated Fisheries, 127 F.3d at

109 (“Even if a reviewing court disagrees with the agency’s

conclusions, it cannot substitute its judgment for that of the

agency.”). On this record, the plaintiffs have not shown that NMFS

acted irrationally in implementing Framework 14 without imposing

additional closures.

2. Procedural challenge

a. The Magnuson-Stevens Act

The plaintiffs argue that NMFS’s failure to provide a

public comment period in developing Framework 14 violated the

Magnuson-Stevens Act, 16 U.S.C. § 1854(b)(1)(A). Section 1854(b)

requires notice and comment for regulations prepared under 16

U.S.C. § 1853(c), namely regulations that are deemed necessary to

“implementing a fishery management plan or fishery management plan

amendment,” or to modifying such regulations. See 16 U.S.C. §

1853(c). The district court distinguished § 1853(c) “regulations”

from framework adjustments, looking to neighboring § 1855(f) for

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interpretive guidance. See CLF, 229 F. Supp. 2d at 33. There,

Congress drew a distinction between “regulations promulgated by the

Secretary” and “actions that are taken by the Secretary under

regulations which implement a fishery management plan.” See 16

U.S.C. § 1855(f)(2).

Recognizing that a framework adjustment such as Framework

14 was implemented through an action of the Secretary of Commerce

(by his designee) after a finding by the Council that a formal

regulation was “neither necessary [n]or appropriate,” the district

court concluded that framework adjustments are properly

characterized as “actions,” not regulations. CLF, 229 F. Supp. 2d

at 33. The court found, therefore, that framework adjustments are

not subject to the public comment requirements of § 1854(b). See

id. at 33-34. The plaintiffs have not presented us with any basis

for doubting the correctness of the court’s analysis, so we affirm

its ruling on the basis of its sound reasoning.10

b. The APA

In the alternative, the plaintiffs allege procedural harm

under the APA because NMFS failed to demonstrate “good cause” for

10
Because we find that the statute distinguishes between
regulations and actions, and the framework adjustment process
easily fits into the latter category, we look no further. We are
not persuaded that, as the plaintiffs contend, the legislative
history of § 1853(c) suggests an intent that framework adjustments
undergo public comment. See CLF/Oceana Br. at 38-39 (citing S.
Rep. No. 194-276, at 18-19 (1996), reprinted in 1996 U.S.C.C.A.N.
4073, 4091).

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waiving notice and comment. See 5 U.S.C. § 553(b)(3)(B). They

characterize Framework 14's statement of the grounds for waiver as

mere “boilerplate.”11 See n.8, above; Natural Res. Def. Council,

Inc. v. Evans, 316 F.3d 904, 912 (9th Cir. 2003). Even if we were

to agree with the plaintiffs on this point, however, any error on

NMFS’s part was harmless. See Riverbend Farms, Inc. v. Madigan,

958 F.2d 1479, 1487 (9th Cir. 1992) (“The APA requires that we take

‘due account’ of the harmless error rule.”); see also Save Our

Heritage, Inc. v. FAA, 269 F.3d 49, 61 (1st Cir. 2001)(“The

doctrine of harmless error is as much a part of judicial review of

administrative action as of appellate review of trial court

judgments”). We reach such a conclusion because, based on this

record, the omission of a formal public comment period “clearly had

no bearing on the procedure used or the substance of [the] decision

reached.” Riverbend Farms, 958 F.2d at 1487 (quoting Sagebrush

11
Framework 14's waiver of notice and comment stated:

[B]ecause public meetings held by the Council
to discuss the management measures implemented
by this final rule provided adequate prior
notice and opportunity for public comment,
further notice and opportunity to comment on
this final rule is unnecessary. Therefore,
the [Assistant Administrator for Fisheries],
under 5 U.S.C. 553(b)[3](B) finds good cause
exists to waive prior notice and additional
opportunity for public comment.

66 Fed. Reg. 24,052, 24,055 (May 11, 2001). Waivers in eleven
prior frameworks used similar, though not identical, language. See
n.8, above.

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Rebellion, Inc. v. Hodel, 790 F.2d 760, 764-65 (9th Cir. 1986));

see also Little Bay Lobster Co, Inc. v. Evans, 352 F.3d 462, 468

(1st Cir. 2003).

Here, the development of Framework 14 generated fourteen

public meetings. See 66 Fed. Reg. 24,052, 24,054 (May 11, 2001).

NMFS followed its procedures for framework adjustments as set forth

at 50 C.F.R. § 648.55, a process with which the plaintiffs were

familiar. See Riverbend Farms, 958 F.2d at 1487-88 (finding

technical noncompliance with notice requirements under Federal Land

Policy Management Act constituted harmless error where “all parties

before [the court] knew the ground rules” of the agency’s weekly

procedures). The preparation of a supplemental environmental

impact statement afforded additional opportunities for public

participation usually unavailable during the framework adjustment

process.12 The plaintiffs took advantage of these opportunities,

submitting written and oral comments prior to and during Council

meetings.13 The plaintiffs contend that their comments were

12
See Notice of Availability of Draft EIS for Framework 14, 65
Fed. Reg. 77,025, 77,026 (Dec. 8, 2000) (accepting comments until
Jan. 24, 2001); Notice of Intent to prepare a Supplemental
Environmental Impact Statement; request for comments, 65 Fed. Reg.
60,396, 60397 (Oct. 11, 2000) (accepting comments until November
13, 2000).
13
See J.A. at 178-186 (Nov. 13, 2000 letter from Oceana
representative); 189-192 (participation of CLF and Oceana
representatives at November 14, 2000 Council meeting); 217-222
(Jan. 22, 2001 letter from Oceana representative); 443-49 (Jan. 23,
2001 letter from CLF and Oceana representatives); 268
(participation of Oceana representative at Jan. 25, 2001 Council

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ignored, and that, had formal notice and comment occurred, NMFS

might have decided to explore their suggested alternatives

further.14 CLF/Oceana Br. at 44 (“Had NMFS taken public comment,

NMFS might have overruled the council and adopted more protective

measures.”). The administrative record does not bear this out,

however. For example, two March 2001 decision memoranda from

NMFS’s Regional Administrator to NOAA’s Acting Assistant

Administrator for Fisheries analyze the concerns raised by the

plaintiffs. These analyses occurred before Framework 14 was

finalized. The plaintiffs disregard the significance of this

agency-level consideration of their concerns, choosing to emphasize

the ways that the Council may have slighted them procedurally.15

Further, the plaintiffs fail to identify any comment that they were

prevented from making because of this alleged procedural defect

that would have made a difference in the result. See Little Bay

Lobster, 352 F.3d at 468. The plaintiffs have demonstrated that

meeting).
14
The plaintiffs also rely heavily on Natural Resources Defense
Council, Inc., 316 F.3d at 912, in which the Ninth Circuit found
that NMFS made an insufficient showing of good cause to waive the
APA public comment period. In that case, however, neither party
briefed the issue of harmless error. See id. at 912 n.10. The
court interpreted this silence as an admission by NMFS that some
prejudice resulted. See id. NMFS has not made a comparable
admission here.
15
The plaintiffs alleged that, because public comment periods
closed the day before Council meetings, the Council was not giving
due consideration to their concerns.

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some of their suggestions were rejected, but not that they were

ignored. In this context, the difference is important. We find no

prejudice.

III. Conclusion

For the foregoing reasons the judgment of the district

court is AFFIRMED.

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