United States Court of Appeals
For the First Circuit
No. 02-1864
LITTLE BAY LOBSTER COMPANY, INC., ET AL.,
Plaintiffs, Appellants,
v.
DONALD L. EVANS, SECRETARY OF COMMERCE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Siler,* Senior Circuit Judge.
Mark A. McSally with whom Kelly, Kelleher, Reilly & Simpson
was on brief for appellants.
John A. Bryson with whom Kristen L. Gustafson, Department of
Justice, Kelly Johnson, Acting Assistant Attorney General,
Environment and Natural Resources Division, and Charles N. Lynch,
Jr., Department of Commerce, National Oceanic and Atmospheric
Administration, were on brief for appellee.
December 19, 2003
*
Of the Sixth Circuit, sitting by designation.
BOUDIN, Chief Judge. This is an appeal by a lobster
dealer (Little Bay Lobster Company) and several lobster boat
operators based in New Hampshire from a decision of the district
court sustaining new federal regulations affecting the plaintiffs.
For convenience, we refer to the appellants collectively as "Little
Bay" in describing the claims presented on appeal and assume
familiarity with earlier decisions cited below setting forth the
legal and factual background in great detail.
The federal regulations in question govern lobster
catches in the so-called exclusive economic zone ("the EEZ")--an
area of federal jurisdiction extending from 3 to 200 nautical miles
seaward of the U.S. coastline. Ace Lobster Co., Inc. v. Evans, 165
F. Supp. 2d. 148, 152 n.3 (D.R.I. 2001). State governments
regulate the first three miles seaward of their coastline and the
federal government regulates beyond that limit to the outer
boundary of the zone. Id. The legal framework and regulatory
history are peculiarly complicated, but only a nutshell description
is needed to set the scene.
In 1976, the Magnuson-Stevens Fishery Conservation Act
("the Magnuson-Stevens Act"), 16 U.S.C. §§ 1801-1883 (2000), was
adopted to conserve and manage fishery resources. 16 U.S.C. §
1801(b)(1) (2000); Campanale & Sons, Inc. v. Evans, 311 F.3d 120
(1st Cir. 2002). Regional fishery management councils, including
federal and state officials and others, were authorized to adopt
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for each fishery requiring conservation a fishery management plan,
16 U.S.C. § 1801(b)(4),(5) (2000); Campanale, 311 F.3d at 111; and
the statute provided for the Secretary of Commerce ("the
Secretary") to adopt implementing regulations based on notice and
comment rule-making if the plan was consistent with a set of
"national standards" set forth in the statute. 16 U.S.C. §§
1851(a), 1854(a)(1)(A) (2000).
East coast lobsters are such an endangered fishery, and
in 1978 a group of east coast states proposed a plan for both state
and federal waters. In 1983, the pertinent regional council under
the Magnuson-Stevens Act--the New England Fishery Management
Council ("the Council")--adopted a fishery management plan for
lobsters that was later implemented by the federal National Marine
Fisheries Service. Nevertheless, 10 years later a study revealed
that Northeast lobsters were dangerously overfished. In December
1993 the Council circulated a draft amendment proposing that four
areas be designated in the EEZ and subjecting each to different
restrictions (e.g., trap limits) aimed at rebuilding stocks.
Counterpart regulations were adopted by the Secretary in
the spring of 1994. 59 Fed. Reg. 26,454 (May 20, 1994) (codified
at 50 C.F.R. § 649.20 (1995), subsequently repealed effective Jan.
5, 2000); 59 Fed. Reg. 31,938 (June 21, 1994) (codified at 50
C.F.R. § 649.42(b) (1995), subsequently repealed effective Jan. 5,
2000). The four new management areas included two areas in the
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federal waters of the gulf of Maine: area 1 starting three miles
offshore and area 3 adjacent to area 1 but lying seaward of it. 59
Fed. Reg. at 31,950-51. The line separating the two areas,
sometimes called the Dick Allen line, lay about 30 miles off the
coast. The restrictions on lobster traps in area 1 have been more
stringent than those applying in area 3.
In the meantime, Congress in 1993 had adopted the
Atlantic Coastal Fisheries Cooperative Management Act ("Atlantic
Coastal Act"). 16 U.S.C. §§ 5101-5108 (2000). This statute
chartered an Atlantic States Marine Fisheries Commission ("the
Commission") comprising representatives of states from Maine to
Florida. 16 U.S.C. § 5102(3), (13) (2000). The Commission's
direct concern is with mobile Atlantic coast fisheries within state
waters, but in the absence of regulations under the Magnuson-
Stevens Act, the Secretary can adopt for EEZ waters a plan
compatible with one adopted by the Commission for state waters. 16
U.S.C. § 5103(b)(1) (2000).
This case involves such a plan under the new statute.
The new plan began life as a proposed amendment to the existing
plan; but, along the way, prompted by further pessimistic studies
in 1996, the federal National Marine Fisheries Service proposed
that the Magnuson-Stevens Act regulations be withdrawn and that new
regulations be adopted under the authority of the new statute if
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and when a suitable state-waters plan was adopted by the
Commission. Ace Lobster, 165 F. Supp. 2d. at 157.
During the summer of 1997, the Commission sought comments
on its so-called amendment 3. This plan included among other
things more stringent limits on the number of lobster traps in
areas 1 and 3. In September 1997, after further public hearings,
the Commission's lobster management board voted to alter amendment
3 to move the boundary line between area 1 and area 3 from 30 to 50
miles offshore. The alteration enlarged area 1, the area subject
to most stringent limits, thereby disadvantaging anyone who had
sought lobsters within the area lying between the old line and the
one now proposed.
The Commission approved amendment 3 with the revised
boundary line between areas 1 and 3 in December 1997. In March
1998, National Marine Fisheries Service issued a draft
environmental impact statement ("EIS"), pursuant to the National
Environmental Policy Act, 42 U.S.C. §§ 4321-4370d (2000),
evaluating new alternatives for lobster regulation in federal
waters; one of the alternatives was amendment 3. A number of
hearings on the draft EIS were held including one in Portsmouth,
New Hampshire, in May 1998, and written comments were received
including one from Little Bay itself attacking the shift from the
Dick Allen line.
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In January 1999, a proposed federal rule was published
implementing amendment 3 for federal waters, 64 Fed. Reg. 2,708
(proposed January 15, 1999), and public comments were received
including several pertaining to the new line. A final EIS was
issued in May 1999, noting that amendment 3 had the most support of
all the alternatives under consideration. The final EIS included
a final regulatory flexibility analysis, as required by the
Regulatory Flexibility Act, 5 U.S.C. §§ 601-612 (2000), concluding
that those using lobster traps would be impacted in the short-run
but that the benefits of rebuilding stocks outweighed the harm.
In December 1999, the National Marine Fisheries Service
issued final regulations, 64 Fed. Reg. 68,228 (Dec. 6, 1999)
(codified at 50 C.F.R. Part 697) which were adopted by the
Secretary pursuant to the Atlantic Coastal Act, 16 U.S.C. § 5103(b)
(2000). These regulations implemented amendment 3 for federal
waters including the new stricter trap limits and the shift of the
Dick Allen line. In early January 2000, Little Bay and a number of
Portsmouth, New Hampshire, lobster boat operators brought suit in
the federal district court against the Secretary to challenge the
new regulations.
An action of this kind, framed as a declaratory judgment
proceeding, is in effect a suit for review of agency action
ordinarily based on the administrative record. See Campanale, 311
F.3d at 115; Massachusetts ex rel. Div. of Marine Fisheries v.
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Daley, 170 F.3d 23, 28 (1st Cir. 1999). After extensive
proceedings, the district court on May 16, 2002, granted summary
judgment in favor of the Secretary, and this appeal followed. Our
review of the district court decision is de novo, Massachusetts ex
rel. Div. of Marine Fisheries, 170 F.3d at 28. What standard we
and the district court both apply to the agency's own decisions
varies with the issue. Id.
The most prominent issue on appeal concerns one of the
requirements the Secretary had to meet before adopting the
regulations. The Atlantic Coastal Act requires inter alia that
federal regulations adapting the Commission plan for use in the
federal EEZ (1) follow "consultation with the appropriate
[Regional] Councils," and (2) be consistent with the national
standards of the Magnuson-Stevens Act. 16 U.S.C. §5103(b)(1)
(2000). Here, Little Bay claims, the failure to consult is
established by our intervening decision in Campanale & Sons, Inc.
v. Evans.
That case, like this one, involved amendment 3 and the
December 1999 regulations implementing the plan for the EEZ, but
the plaintiffs were Rhode Island fishermen concerned with the
numerical limits on traps. Campanale, 311 F.3d at 115. The
district court rebuffed the attacks but a divided panel of this
court held that the Secretary had violated his obligation to
consult with the Council. Id. at 121. The court declined to say
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that the error had been harmless, ruling that this inquiry was "a
factual one . . . best undertaken initially by the district court."
Id. at 120 n. 13.
Campanale was decided after the district court in our own
case had sustained summary judgment for the Secretary. In
Campanale, the court acknowledged that the Secretary had advised
the Council of the proposed trap limits through the draft EIS's
alternatives and had gotten comments back from the council. The
Campanale panel held this to be inadequate at least where the
Secretary did not tell the Council that this was its statutory
consultation opportunity. Campanale, 311 F.3d at 117-21.
Conceivably, the Secretary might have "consulted" with
the Council on one issue (the line) but not another (the trap
limits); but in our case, the Secretary has not sought to
distinguish Campanale by arguing that consultation met the letter
of the statute. Rather, he argues that the Council knew what was
being proposed and that--at least as to the line shift--the
surrounding circumstances show that a more formal process of
consultation would not have altered the result. This is a standard
harmless error argument, fully available in administrative matters.
Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 61-62 (1st Cir. 2001);
accord Campanale, 311 F.3d at 120 n. 13.
In Campanale the court chose to leave this harmless error
issue to the district court on remand but there is no need for us
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to do so. Although the harmless error inquiry is in one sense a
"factual" one, it is ordinarily resolved not with new evidence but
by reasoned conjecture as to what would have happened "if" a
particular error had not occurred. Here, forewarned by Campanale,
Little Bay and the government have briefed the prejudice issue
relying upon materials in the administrative record before us.
The principal question is whether the Secretary's
decision to shift the boundary line would have been altered if he
had engaged in the more formal consultation with the Council called
for by Campanale. Little Bay argues that the Council had devised
the line and had expert knowledge; that such consultation would
have provided Little Bay with an opportunity to appear before the
Council and argue against the shift; and that the shift prejudices
it by imposing more stringent regulation on a large area in which
Little Bay operates.
The Secretary says that there is no proof that Little Bay
will be disadvantaged by the new line, but we will assume arguendo
the contrary. There is apparently no dispute that the appellant
fishermen have operated in the EEZ in areas 1 and 3 and that the
shift in the area 1 boundary line seaward by a substantial amount
will restrict more severely operations in the very large area
transferred from area 3 to area 1. That this will adversely impact
the appellants appears a natural inference.
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But this, of course, does not show prejudice of the kind
that concerns us. The Secretary knew full well that the new
restrictions would cause short-term harm to fishermen--harm that
would be counterbalanced in the Secretary's view by the long-term
benefits to everyone of rebuilding lobster fisheries for the
future. 64 Fed. Reg. 2,708, 2,712 (proposed January 15, 1999).
The question is whether anything that formal consultation with the
Council would have brought about would have been likely to change
the Secretary's position. And on this issue, based on the
arguments presented, everything points the Secretary's way.
The overall reason for the shift of the line, needless to
say, was to protect more lobsters; but this was underpinned by a
fairly technical judgment by the Commission and its Lobster
Management Board. The record indicates that the new line was
deemed to have a series of advantages:
!to make the boundary lines compatible
with stock assessment boundaries and produce
more accurate stock assessments and evaluation
of each area's management measures;
!to extend the existing area 1 size
limits aimed at protecting the larger, more
fruitful lobsters from area 1 to area 1
lobsters that tended to breed in the nearby
reaches of area 3;
!to simplify compliance by fishermen
because the boundary lines would now be more
consistent with the boundary lines in other
fisheries.
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Little Bay's brief says virtually nothing about what it
might have said to the Council to counter this reasoning. Nor does
it suggest anything that the Council would have been likely to say
to the Secretary that would likely have led the Secretary to alter
his reliance on the Commission's judgment that the line should be
moved. Absent such specifics, there is no reason to think that
consultation would have produced a different result.
This conclusion is reinforced by the fact that the
Council was informally involved in the new plan and commented on it
to the Secretary.1 Further, the Secretary held public hearings,
including one in Portsmouth, New Hampshire, on the draft EIS
containing the boundary shift as one option. Little Bay itself
submitted comments to the Secretary on the issue. And there is no
reason why Little Bay could not have sought to enlist the support
of the Council if it thought it could gain such support.
Although the burden of proof as to prejudice lies with
Little Bay, First Am. Disc. Corp. v. CFTC, 222 F.3d 1008, 1015
(D.C. Cir. 2000), the substantive standard for harmless error tends
to favor the objecting party. See, e.g., Moulton v. Rival Co., 116
1
In addition to interchange of written communications, there
was also a significant number of opportunities for Council members
to express their views in person. National Marine Fisheries
Service representatives attend all New England Council meetings and
a member of the National Marine Fisheries Service sits on the
Council as a voting member. 16 § U.S.C. 1852(b)(1)(B) (2000). New
England Council members have also commonly held seats on the
Atlantic Commission.
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F.3d 22, 26 (1st Cir. 1997) ("highly probable that the error did
not affect the outcome of the case"). Here, however, nothing
suggests that the result was affected.
Little Bay's next set of arguments are directed to its
claim that the Secretary failed to meet a second condition for
adopting regulations under the Atlantic Coastal Act, namely, that
the regulations conform to the national standards set forth in the
Magnuson-Stevens Act. 16 U.S.C. § 5103(b)(1)(B) (2000). Little
Bay says that the adoption of the new boundary line violates
national standards 2, 4, and 8.
National standard 2 provides that a fishery management
plan and regulations to implement it must, in respect of
conservation and management measures, be "based upon the best
scientific information available." 16 U.S.C. § 1851(a)(2) (2000).
A regulation broadly defines the phrase "scientific information" to
include scientific, economic and social information. 50 C.F.R. §
600.315(b)(1) (2002). Little Bay says that the Secretary failed to
present "any scientific analysis or reasoning" to support the shift
in the boundary line.
Little Bay concedes that there is ample support for the
conclusion that lobster stocks off the Atlantic coast are in peril
and that new measures are urgently needed. And it does not
directly dispute that moving the line seaward will restrict lobster
catches by imposing the more restrictive area 1 regime over a wider
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area (indeed, its claim of prejudice rests on the inference that
catches will be restricted). Nor does it say, or at least argue in
any detail, that the inference is not "scientific" enough.
Rather, Little Bay argues tersely that it is the net
effect that matters and the Secretary failed to consider that the
expansion of area 1 would mean more lobsters caught in area 1. At
first this appears to be a specious objection: expanding area 1
seaward means that trapping in what was previously part of area 3
is now occurring with more severe restrictions in the same
territory now renamed area 1. But Little Bay then refers summarily
to "requirements recently adopted which require a showing of
historic participation in order to fish in area 3." Little Bay is
referring, we take it, to 68 Fed. Reg. 14,902 (Mar. 27, 2003),
limiting fishing in areas 3, 4, and 5 to those permit holders that
can establish historical participation.
Conceivably the interaction of two changes could produce
a net negative effect on conservation, but Little Bay offers no
developed argument of such a threat here. If the implication is
that the recent regulation may force some fishermen from area 3 to
the richer (albeit more restricted) area 1, this sounds like an
attack simply upon the "recently adopted" historical participation
requirements. At best, it is an undeveloped claim that a new step-
-taken after the challenged regulation was adopted--undermines its
rationale.
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So viewed, the claim still fails. Presumptively an
agency decision is reviewed on the record, Fla. Power & Light Co.
v. Lorion, 470 U.S. 729, 743 (1985); Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971); and while rare
circumstances might encourage a reviewing court to look at later
developments (e.g., if both proposals were developed in tandem),
nothing of the kind is alleged in this case. Further, even if the
"historic participation" requirement were part of the very
regulations at issue, Little Bay says nothing beyond one
speculative sentence to suggest a likelihood of its undermining the
benefits of the new line, and that alone is fatal.
Little Bay next invokes national standard 4 which
requires that any action that "allocate[s] or assign[s] fishing
privileges among the various U.S. fishermen" shall meet various
tests, including a requirement that it be "fair and equitable to
all such fishermen." 16 U.S.C. § 1851(a)(4) (2000). The
regulations say that an allocation means a "direct and deliberate
distribution" of fishing privileges and not management measures
that have "incidental allocative effects." 50 C.F.R. §
600.325(c)(1) (2002).
We agree with the Secretary, and the district court, that
the boundary line shift is not such a direct allocation. Nothing
in the shift, or the other concurrent changes, prevents fisherman
from operating in areas 1 or 3 or both. To the extent that Little
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Bay thinks that the "historic participation" limitations later
adopted for area 3 do effect such an allocation--a matter on which
we express no view--it is challenging the wrong regulation.
Little Bay's last attack is based on national standard 8
which, so far as pertinent, requires the Secretary in adopting
restrictions to take account of the interests of local fishing
communities and, "to the extent practicable" and consistent with
conservation goals, to minimize the adverse economic impact. 16
U.S.C. § 1851(a)(8) (2000). Little Bay does not deny the draft EIS
discussed various alternative conservation measures and the impacts
on local communities; but it says that there was no separate
assessment of the effects on its local community of moving the
boundary line. This appears to be true.
Nevertheless, the required analysis of alternatives and
impacts is subject to a rule of reason, for study could go on
forever. See Associated Fisheries of Me., Inc. v. Daley, 127 F.3d
104, 110-111 (1st Cir. 1997); cf. Roosevelt Campobello Int'l Park
Com'n v. EPA, 684 F.2d 1041, 1047 (1st Cir. 1982). This is
especially so where, as here, a plan comprises a set of new or
changed restrictions designed to work as a whole; a rule that every
element in such a plan be assessed separately to determine its own
individual impact would be unworkable for most complex plans could
be subdivided almost without end.
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In this instance, the shifting of the boundary--although
quite likely to have some economic impact on some fishermen--was
peculiarly hard to quantify: the impact depends both on the
interaction of the boundary shift with other regulatory measures
(e.g., changes in trap limits) and on the differing fishing
strategies (choice of area, number of traps) that different
fishermen may choose to adopt in response to the new changes--
strategies that may alter over time and are not within the
Secretary's control. See 64 Fed. Reg. 68,228, 68,235-36 (Dec. 6,
1999).
There is no mechanical way to say when enough is enough.
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, taking account of the
usual considerations (e.g., whether information is available and
whether the further analysis is likely to be determinative). In
this gray area, some burden lies on the contestant to show why a
particular gap or omission is unreasonable.
Here the basic obligation to assess the impacts of, and
alternatives to, the adopted plan as a whole was achieved. The
feasibility of fruitfully analyzing the boundary shift in isolation
is unclear; and given the independent technical reasons for the
shift, it appears to follow naturally from the decision to adopt
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the new management area scheme--a choice that was the subject of
full scale study. Accordingly, there was no failure to meet
national standard 8.
This discussion of national standard 8 also disposes, in
substance, of the final objection offered by Little Bay based on a
quite different statute: the Regulatory Flexibility Act, 5 U.S.C.
§§ 601-612 (2000). This statute does not alter the substantive
mission of the agencies under their own statutes; rather, the Act
creates procedural obligations to assure that the special concerns
of small entities are given attention in the comment and analysis
process when the agency undertakes rule-makings that affect small
entities. Associated Fisheries of Me., 127 F.3d at 116.
The regime at issue in this case unquestionably affects
a substantial number of small businesses; most, if not all, of the
affected fishing is done by such entities. Therefore, as required
by the statute, 5 U.S.C. § 603(a) (2000), the Service prepared an
initial regulatory flexibility analysis as to the impact on small
entities in conjunction with the proposal for rule-making; and,
when it adopted the final regime, it included a final statement
addressed to the subject. 5 U.S.C. § 604(a) (2000). This much is
common ground.
The statute also specifies what the final statement must
cover, and in compliance with its terms the final statement in this
case described the range of small businesses affected and the
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estimated magnitude of the effects, summarized comments on the
proposed rule and the response of the agency to the comments,
addressed record-keeping burdens incident to the new regime, and
discussed the reasons for the regime adopted and the reasons for
preferring it to other alternatives. 5 U.S.C. § 604(a) (2000); see
Associated Fisheries of Me., 127 F.3d at 116.
In a short final section of its brief, Little Bay
offers several different criticisms of the agency's compliance, but
the core of the main argument is this: that the agency gave very
little separate attention to comments regarding the change in the
boundary line and, above all, "[n]o analysis was conducted to
determine whether an alternative boundary line would have minimized
the economic impact upon the [a]ppellants or others similarly
situated."
Admittedly the final statement did little more than
acknowledge that "several commentators" had objected to the change
in the boundary line and responded by referring to the "current
consensus" in support of the new regime as a whole, 64 Fed. Reg. at
68,235; and the agency certainly did not separately analyze the new
regime by comparing as two separate alternatives the new regime
with the boundary shift and without it. The question is whether
the Regulatory Flexibility Act required more and we conclude, in
the context of this case, that it did not.
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The agency's final statement adopting the new regime,
together with materials cross-referenced in it, set forth in detail
the reasons for adopting the new regime as a whole and the reasons
for preferring it to a series of alternatives. This is what the
statute requires where it applies. But, just as was true with
national standard 8, there is no requirement as to the amount of
detail with which specific comments need to be discussed and
certainly no obligation to treat every element of a plan as a
separate alternative.
Here, as with national standard 8, a rule of reason
applies. See Associated Fisheries of Me., 127 F.3d at 116.2 The
agency's obligation is simply to make a reasonable good faith
effort to address comments and alternatives. Id.; accord Alenco
Communications, Inc. v. FCC, 201 F.3d 608, 625 (5th Cir. 2000).
And, where the agency has addressed a range of comments and
considered a set of alternatives to the proposal adopted, the
burden is upon the critic to show why a brief response on one set
of comments or the failure to analyze one element as a separate
alternative condemns the effort.
In this case, we have assumed for the purpose of
standing, if nothing else, that the boundary shift probably has
2
Although our discussion in Associated Fisheries of Maine,
Inc., focused on the Regulatory Flexibility Act as it stood before
several amendments regarding judicial review under the Act, nothing
in those amendments has changed our approach here.
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some impact on the appellants; but Little Bay has not pointed to
any facts as to show a dramatic impact of the boundary line shift
or any facts that undermine the original reasons proffered for the
shift or any other reason why the response was inadequate or the
boundary line shift required consideration as a separate
alternative. Absent some discussion of such considerations, we can
hardly hold the agency acted unreasonably or in bad faith by
proceeding as it did.
In the same section of the brief, Little Bay says that
the district judge was mistaken in expressing doubts whether the
Regulatory Flexibility statute applied at all in this case. The
district court did say that because small businesses are the main
subject of the new regime, there was little chance that the agency
analysis would overlook small businesses. But as neither he nor we
have rested on such a theory to avoid application of the statute,
it is beside the point on this appeal.
Affirmed.
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Little Bay Lobster v. Secretary of Comm
Court: Court of Appeals for the First Circuit
Date filed: 2003-12-22
Citations: 352 F.3d 462
Copy Citations