United States Court of Appeals
For the First Circuit
No. 01-2282
CAMPANALE & SONS, INC.; C.E.H., INC.; AND
NARRAGANSETT SEAHAWK, INC.,
Plaintiffs, Appellants,
v.
DONALD L. EVANS,
SECRETARY OF COMMERCE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald L. Lagueux, U.S. District Judge]
Before
Torruella, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
Mark A. McSally, with whom Kelly, Kelleher, Reilly & Simpson
was on brief, for appellants.
David J. Lazerwitz, Attorney, Appellate Section, Environment
& Natural Resources Division, with whom Thomas L. Sansonetti,
Assistant Attorney General, John T. Stahr, Attorney, Appellate
Section, and Charles Lynch, Office of Regional Counsel, were on
brief, for appellee.
November 22, 2002
TORRUELLA, Circuit Judge. This case involves regulation
of one of New England's most famed resources: the American lobster.
Despite the lobster's somewhat other-worldly appearance with its
protruding eyes, spindly legs, and oversized claws, its meat is
highly valued by epicures across the country, making the lobster
fishery one of the most competitive and valuable fisheries in North
America. As a result of this competition, however, American
lobsters along the Atlantic Coast are overfished, jeopardizing the
sustenance of the fishery. In an effort to conserve the lobster
population, and pursuant to statutory authority, the Secretary of
Commerce promulgated regulations that, inter alia, limited the
number of lobster traps permitted per fishing vessel. Lobster
fishermen who reside in and whose vessels are based in Rhode Island
brought suit challenging the Secretary's regulations on various
grounds. Both parties moved for summary judgment. Adopting the
magistrate judge's report and recommendation, the district court
granted summary judgment for the Secretary of Commerce. The
lobster fishermen instituted this appeal. Because we find that the
district court erred in granting summary judgment for the
Secretary, we reverse.
I.
Before delving into the merits, we first address the
relevant regulatory history and the factual and procedural
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background of this case, so as to provide a context for the
fishermen's claims advanced on appeal.
A. Statutory Background
1. The Magnuson-Stevens Fishery Conservation and Management Act
Congress enacted the Magnuson-Stevens Fishery
Conservation and Management Act ("Magnuson-Stevens Act"), 16 U.S.C.
§§ 1801 et seq., in 1976 to, inter alia, "take immediate action to
conserve and manage the fishery resources found off the coasts of
the United States." 16 U.S.C. § 1801(b)(1). Pursuant to this
goal, the Magnuson-Stevens Act established an exclusive economic
zone ("EEZ"), covering the waters 3 to 200 miles offshore of the
United States,1 over which the federal government claims "sovereign
rights and exclusive fishery management authority over all fish,
and all Continental Shelf fishery resources" located therein. Id.
§ 1811. To implement conservation measures within the EEZ, the
Magnuson-Stevens Act directs the establishment of regional fishery
management councils to prepare, monitor, and revise fishery
management plans, "which will achieve and maintain, on a continuing
basis, the optimum yield from each fisher." Id. § 1801(b)(4). The
regional fishery management councils are designed to "enable the
States, the fishing industry, consumer and environmental
organizations, and other interested persons to participate in, and
1
The area within three miles of shore is regulated by the
individual states bordering that territory.
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advise on, the establishment and administration of such [fishery
management] plans" and to "take into account the social and
economic needs of the States." Id. § 1801(b)(5).
Under this authority, Congress created eight regional
fishery management councils (collectively "Regional Councils"),
composed of state fishery officials, the National Marine Fisheries
Service ("NMFS") regional director, and qualified individuals who
are "knowledgeable regarding the conservation and management, or
the commercial or recreational harvest, of the fishery resources of
the geographical area concerned." Id. § 1852. A Regional
Council's primary function is, for each fishery under its authority
that requires conservation measures, to prepare a fishery
management plan ("FMP") that establishes guidelines over the
fishery and meets the conservation goals set forth in the Act. Id.
§ 1852(h)(1). These FMPs are prepared in response to the Secretary
finding that a fishery is overfished, see id. § 1854(e)(1), and
requesting conservation measures, see id. § 1854(e)(2). The
Regional Council then submits the FMP to the Secretary of Commerce
("Secretary") for review. Id. § 1852(h)(1). If the FMP is
approved, the Secretary is then responsible for enacting
implementing regulations. 16 U.S.C. § 1854.
In sum, "[t]he Magnuson-Stevens Act's main thrust is to
conserve the fisheries as a continuing resource through a mixed
federal-state regime; the FMPs are proposed by state Councils but
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the final regulations are promulgated by the Secretary through the
Fisheries Service." Mass. v. Daley, 170 F.3d 23, 27-28 (1st Cir.
1999).
2. The Atlantic Coastal Fisheries Cooperative Management Act
The Atlantic Coastal Fisheries Cooperative Management Act
("ACFCMA" or "Atlantic Coastal Act"), 16 U.S.C. §§ 5101 et seq.,
was enacted in 1993 in response to Congress' concern over
"disparate, inconsistent, and intermittent State and Federal
regulation that has been detrimental to the conservation" of
Atlantic Coastal fishery resources. Id. § 5101(a)(3). The
Atlantic Coastal Act was passed "to support and encourage the
development, implementation, and enforcement of effective
interstate conservation and management" of the fisheries along the
Atlantic Coast. Id. § 5101(b).
Pursuant to this purpose, the ACFCMA created a new
management regime, wherein:
The responsibility for managing Atlantic
coastal fisheries rests with the States, which
carry out a cooperative program of fishery
oversight and management through the Atlantic
States Marine Fisheries Commission. It is the
responsibility of the Federal Government to
support such cooperative interstate management
of coastal fishery resources.
Id. § 5101(a)(4). The Atlantic States Marine Fisheries Commission
("Atlantic States Commission" or "ASMFC") is composed of
representatives from the states along the Atlantic Coast from Maine
to Florida, as well as from the District of Columbia. Id. § 5102
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(3), (13); Pub. L. No. 77-539, 56 Stat. 267 (1942); Pub. L. No. 81-
721, 64 Stat. 467 (1950).
Under the Atlantic Coastal Act, the Atlantic States
Commission is responsible for preparing and adopting a coastal
fishery management plan ("CMP"), 16 U.S.C. § 5104(a)(1), the
equivalent of the Magnuson-Stevens Act's FMP, for coastal fishery
resources, which are defined as any fisheries that move among
jurisdictional waters of two or more states or one state and the
EEZ, id. § 5102(2). The ASMFC, in preparing CMPs, "shall consult
with appropriate [Regional] Councils to determine areas where such
coastal fishery management plan may complement Council fishery
management plans." Id. § 5104(a)(1).
While the focus of the Atlantic Coastal Act is on state
waters and coordinating plans among the coastal states and Regional
Councils, the Act addresses federal and state cooperation in
coastal fisheries management by providing for the development of
federal regulations to support the ASMFC's coastal fisheries
management efforts. See id. § 5103. Accordingly, the Act provides
that, "[i]n the absence of an approved and implemented" FMP under
the Magnuson-Stevens Act, and "after consultation with the
appropriate [Regional] Councils, the Secretary may implement
regulations to govern fishing" in the EEZ, provided that such
regulations are compatible with the CMP and are consistent with the
national standards of the Magnuson-Stevens Act. Id. § 5103(b)(1).
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B. Factual Background
1. The American Lobster Fishery and Initial Conservation Efforts
American lobsters are found in coastal waters ranging
from Maine to North Carolina. Although NMFS has estimated that
about eighty percent of the American lobster population is located
in the nearshore area (i.e., within three miles of the coast, and
therefore subject to state management), the remaining twenty
percent are found in the EEZ. The vast majority of lobsters are
fished using lobster traps; only a few percent of those fished are
caught using trawls, gillnets, dredges, or by divers.
Federal management of the American lobster began in 1978
when NMFS and the states of Maine, New Hampshire, Rhode Island,
Massachusetts, Connecticut, New York, Pennsylvania, Delaware,
Maryland, Virginia, and North Carolina developed a FMP pursuant to
the Magnuson-Stevens Act. This effort resulted in the adoption and
implementation of an Interstate Fishery Management Plan ("ISFMP")
for state and federal waters. In 1983, the New England Fishery
Management Council ("NEFMC"), one of the eight Regional Councils
established by the Magnuson-Stevens Act, produced, and NMFS
implemented, a FMP for the American lobster fishery based on the
ISFMP. Despite these conservation measures, the 1993 annual report
of the Northeast Stock Assessment Workshop revealed that the
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American lobster stock was overfished.2 The increase in fishing
mortality rates was attributed to increased lobster trap fishing.
In 1996, a panel of independent stock assessment experts echoed the
1993 findings that the American lobster was overfished and made
recommendations to curb the problem.
As a result of these studies, NMFS was concerned that the
current federal conservation measures under the Magnuson-Stevens
Act were insufficient to protect the lobster fishery. Thus, on
March 27, 1996, NMFS proposed withdrawing the lobster FMP as
inconsistent with the national standards of the Magnuson-Stevens
Act and issuing new regulations under the Atlantic Coastal Act.
This suggestion prompted the development of Amendment 3 to the
ISFMP and the rulemaking that is challenged in this appeal.
2. Amendment 3 to the ISFMP
Pursuant to its authority under the Atlantic Coastal Act,
the Atlantic States Commission developed and adopted Amendment 3 to
the ISFMP in December 1997. Among other measures, Amendment 3
included the following provision, limiting the number of traps per
vessel allowed in the offshore region of "Area 3":
2
"Overfishing" or "overfished" is defined as "a rate or level of
fishing mortality that jeopardizes the capacity of a fishery to
produce the maximum sustainable yield on a continuing basis." 16
U.S.C. § 1802(29). In the lobster fishing context, overfishing
occurs when the mortality rate results in an estimated egg
production per lobster that is less than 10 percent of what it
would be in a non-fished population.
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3.3.3.1 Limits on the number of traps per
vessel
In Area 3, the Lobster Conservation Management
Team, constituted under Section 3.4, shall
develop a program to cap and then reduce
effort, based upon historical participation,
vessel size or other relevant criteria, for
the purpose of achieving the egg production
rebuilding schedule of Section 2.5. The
program may recommend alternative measures,
besides effort control, that would achieve
stock rebuilding targets. The program shall
be presented to the ASMFC Lobster Management
Board prior to July 1, 1998; and be designed
for implementation effective January 1, 1999.
If a program is not forthcoming, a limit of
2,000 traps shall be implemented on January 1,
1999.
Thus, although Amendment 3 contained a trap limit, this limit was
only to take effect if the Area 3 Lobster Conservation Management
Team ("LCMT")3 failed to recommend alternative conservation
measures by July 1, 1998.
Meanwhile, on March 17, 1998, NMFS issued a Draft
Environmental Impact Statement ("DEIS") pursuant to the National
Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., to
evaluate alternative conservation measures for federal waters that
would be compatible with those under Amendment 3. The DEIS
considered a number of alternatives, including implementing
3
The Area 3 Lobster Conservation Management Team was created by
Amendment 3 to make recommendations on conservation measures for
Area 3 to the Atlantic States Commission. Any recommendations
would then be reviewed by the Commission's Lobster Management
Board, and then by the Commission's Lobster Technical Committee,
provided that such recommendations were submitted prior to the
July 1, 1998 deadline specified in Section 3.3.3.1 of Amendment 3.
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Amendment 3's trap limit and regulating offshore fishing based on
historic participation. As required under NEPA, NMFS requested
public comments on the alternatives in the DEIS.
On July 29, 1998, almost one month after the deadline
announced by Amendment 3, the Area 3 LCMT submitted its plan to the
Atlantic States Commission's Lobster Management Board. The LCMT's
plan provided for trap limits based on historical participation in
the lobster fishery. The Lobster Technical Committee approved the
plan and forwarded it to the Lobster Management Board. The
Atlantic States Commission then began consideration of the LCMT
plan in April and May 1999, with plans to finish its assessment by
December 1999.
3. NMFS' Continued Rulemaking Under the Atlantic Coastal Act
While the LCMT was developing its recommendation to the
Atlantic States Commission, NMFS continued its efforts to develop
regulations governing the EEZ that would be compatible with the
measures applicable to state waters and recommended for federal
waters under Amendment 3. On January 15, 1999, after consideration
of the public comments received on its DEIS, NMFS published its
proposed rule in the Federal Register.
The proposed rule recommended setting trap limits of
2,000 in 1999 and 1,800 in 2000 for the offshore area. As the Area
3 LCMT plan had not yet been approved by the Atlantic States
Commission at this time, NMFS did not include the historic
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participation plan in its proposed rule. The public comment period
for the proposed rule ran from January 11, 1999 to February 26,
1999.
On May 10, 1999, NMFS published the Final Environmental
Impact Statement ("FEIS"). At this time, the Atlantic States
Commission had just completed public hearings on the LCMT plan, but
had still not yet approved the plan.
4. Adoption of the LCMT Plan and NMFS' Second Rulemaking
On August 3, 1999, more than one year after the deadline
set out in Amendment 3, the Atlantic States Commission finally
approved the LCMT plan for trap limits based on historic
participation and recommended that NMFS implement the substance of
the LCMT plan.
Based on this recommendation, NMFS promulgated a notice
of new proposed rulemaking on September 1, 1999, which included the
possibility that future conservation measures could be based in
part on historical participation in the lobster fishery. While
NMFS began this new separate rulemaking process based on historic
participation it simultaneously continued the rulemaking process
establishing flat trap limits pursuant to the Atlantic States
Commission's recommendations in Amendment 3.4
4
NMFS opted not to include the LCMT plan in the rulemaking
process that it had already begun because it would have had to
start the rulemaking process afresh, meaning that no plan would be
able to go into effect until this new process was completed. The
course of the rulemaking for this process was estimated by the
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5. NMFS' Final Rule and On-going Rulemaking on the LCMT Plan
On December 6, 1999, NMFS published the final rule
withdrawing the FMP for the American lobster and establishing
federal regulations under the Atlantic Coastal Act, which included
the flat trap limit set forth in the proposed rule. These
regulations were scheduled to take effect on May 1, 2000. The
relevant part of the promulgated regulations concerning offshore
Area 3 provide:
§ 697.19 Trap limits and trap tag requirements
for vessels fishing with traps.
.........
(b) Trap limits for vessels fishing or
authorized to fish in the EEZ Offshore
Management Area.
(1) Beginning January 5, 2000, through
April 30, 2000, vessels fishing only EEZ
Offshore Management Area 3, or, fishing only
EEZ Offshore Management Area 3 and the Area
2/3 Overlap, shall not fish with, deploy in,
possess in, or haul back from such area more
than 2,000 traps.
(2) Beginning May 1, 2000, vessels
fishing only in or issued a management area
designation certificate or valid limited
access American lobster permit specifying only
EEZ Offshore Management Area 3, or, specifying
only EEZ Offshore Management Area 3 and the
Area 2/3 Overlap, shall not fish with, deploy
in, possess in, or haul back from such area
more than 1,800 traps.
50 C.F.R. § 697.19.
defendant-appellee to last one to two years. NMFS stated that
"continued delay for full consideration of the LCMT plans until a
date yet to be determined by the Atlantic States Commission
jeopardizes needed management measures to protect the lobster
resource."
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Despite this final rule, NMFS indicated that it was still
pursuing the LCMT plan under a separate on-going rulemaking
process. Accordingly, on December 10, 1999, NMFS published a
Notice of Intent to Prepare an Environmental Impact Statement for
the LCMT plan and requested written comments. NMFS also published
a supplemental DEIS and held public hearings in four states. As a
result of the comment process, on January 3, 2002, NMFS issued a
proposed rule based on the LCMT's historic participation plan. If
this proposed rule were adopted, it would replace the trap limit
set forth in the final rule that is challenged in this appeal.5
C. Procedural Background
Plaintiffs-appellants in the three underlying
consolidated cases are American lobster fishermen and lobster
business owners or shareholders, who all reside in or whose vessels
are berthed in Rhode Island. On January 4 and 5, 2000, the three
sets of plaintiffs filed complaints in the United States District
Court for the District of Rhode Island, challenging the Secretary
of Commerce's promulgation of the December 6, 1999 final rule
imposing the trap limits. Plaintiffs asserted that the final rule
violates the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701
5
The fact that the Secretary is currently promulgating a rule
that follows the recommendation of the Council does not mean that
he followed the proper procedure for the rule that is subject to
litigation. It actually might show prejudice, because if the
Secretary had consulted with the councils regarding the litigated
rule, perhaps he never would have passed it, but instead would have
adopted a historic participation model as he is doing now.
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et seq., various provisions of the Atlantic Coastal Act, the
Magnuson-Stevens Act, and the Regulatory Flexibility Act ("RFA"),
5 U.S.C. §§ 601 et seq. Plaintiffs sought a declaratory judgment
that the final rule was arbitrary and capricious and specific
relief ordering the Secretary to implement a trap limit regulation
based on historic participation.
After the defendant, the Secretary of Commerce, filed his
answer on April 11, 2000, the plaintiffs filed a consolidated
motion for summary judgment on October 20, 2000. The Secretary
filed an opposition motion and a cross-motion for summary judgment.
The district court then referred the case to a magistrate judge for
preliminary review, findings, and recommended disposition. On
May 4, 2001, after a hearing on the cross-motions for summary
judgment, the magistrate judge issued a Report and Recommendation
to the district court recommending that the court grant the
Secretary's motion for summary judgment and deny the plaintiffs'
motion. Plaintiffs filed timely objections to the magistrate
judge's report.
On August 7, 2001, the district court accepted the
magistrate judge's report and recommendation and granted summary
judgment in favor of the Secretary in the three consolidated cases.
On September 6, 2001, plaintiffs in one of the three underlying
suits, Campanale & Sons, Inc., C.E.H., Inc., and Narrangansett
Seahawk, Inc. (collectively "appellants"), filed a notice of appeal
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from the district court's final judgment. Appellants seek review
of only four of the claims that were presented to the district
court: (1) the Atlantic Coastal Act's "consultation" requirement;
(2) compliance with the Magnuson-Stevens Act's national standard 2;
(3) compliance with national standard 8; and (4) alleged violation
of the RFA.
II.
This Court reviews de novo a district court's grant of
summary judgment. See Associated Fisheries of Me., Inc. v. Daley,
127 F.3d 104, 109 (1st Cir. 1997). In this case, since appellants
allege violations of the Atlantic Coastal Act, the precise standard
of review is provided by the APA, 5 U.S.C. §§ 701 et seq. See
Dubois v. United States Dep't of Agric., 102 F.3d 1273, 1284 (1st
Cir. 1996) (applying APA standard of review to agency action under
federal statute which does not itself specify a standard of
review); see also 16 U.S.C. §§ 5101 et seq. (not discussing
judicial review for ACFCMA).
Under the APA's standard of review, this Court can set
aside agency action only if we determine such action to be
"arbitrary, capricious, an abuse of discretion," or "without
observance of procedure required by law," or otherwise contrary to
law. See 5 U.S.C. § 706(2)(A)-(D); see also Associated Fisheries,
127 F.3d at 109. When the issue is whether the agency followed the
requisite legal procedure, our review is limited, but exacting.
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See Natural Res. Def. Council, Inc. v. Sec. & Exch. Comm'n, 606
F.2d 1031, 1045, 1048-49 (D.C. Cir. 1979). We review only to
determine whether "statutorily prescribed procedures have been
followed." Id. at 1045. Thus, despite applying a de novo
standard, our review is narrow. See id.; see also Mass. v. Daley,
170 F.3d 23, 28 (1st Cir. 1999) ("[N]ominally reviewing the
decision de novo but effectively reviewing the Secretary's action
under the APA").
In exercising our review of the district court's grant of
summary judgment for defendant, we determine whether the summary
judgment record shows that there is no genuine issue as to any
material fact and whether the moving party is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(c). In so doing, we
must view the record evidence in the light most favorable to the
non-moving party. See Feliciano de la Cruz v. El Conquistador
Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000).
III.
Appellants assert that the district court erred in
concluding that the Secretary satisfied the "consultation"
requirement of the Atlantic Coastal Act. The Atlantic Coastal Act,
in relevant part, provides, "[i]n the absence of an approved and
implemented fishery management plan under the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.),
and after consultation with the appropriate Councils, the Secretary
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may implement regulations to govern fishing in the exclusive
economic zone," as long as such regulations are "compatible with
the effective implementation of a coastal fishery management plan"
and "consistent with the national standards" of the Magnuson-
Stevens Act. 16 U.S.C. § 5103(b)(1) (emphasis added).6 The ACFCMA
does not define "consultation."7
Appellants contend that the "after consultation with the
appropriate Councils" language requires the Secretary (or NMFS, as
his designee) to consult with the relevant Regional Councils, the
New England Fishery Management Council ("NEFMC") and the Mid-
Atlantic Fishery Management Council ("MAFMC"), before he is
permitted to implement regulations affecting the EEZ under the
Atlantic Coastal Act. As a result, appellants assert that issuing
regulations without first consulting these councils constitutes an
agency action "without observance of procedure required by law," 5
U.S.C. § 706(2)(D), warranting the regulations to be set aside.
Although appellants concede that the administrative record contains
6
We note that the Atlantic Coastal Act, a specific law, overrides
a more general law such as the APA.
7
The dissent analogizes to other cases in which we have held that
the National Historic Preservation Act and NEPA require only that
the agency be informed of and consider various alternative
positions. Those statutes, however, lack the specific consultation
language found in the Atlantic Coastal Act. The Atlantic Coastal
Act requires the Secretary to consult with the Regional Councils
because they are presumed to have expertise that the Secretary does
not. It therefore makes sense to impose a greater duty of
consultation in these cases because the Secretary may not otherwise
be fully informed.
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some correspondence between these councils and NMFS, appellants
argue that these letters were merely part of the public comment
process for agency rulemaking and did not constitute "consultation"
within the meaning of the Atlantic Coastal Act. Moreover,
appellants assert that any correspondence that did occur between
the councils and the Secretary was insufficient for consultation
because it occurred after the Secretary had already made decisions
and recommendations regarding the regulations.
The district court, rejecting the appellants' argument
that the Secretary implemented regulations without "consultation,"
granted summary judgment in favor of the defendant. The court
found that there was "sufficient evidence in the Record that NEFMC
and MAFMC gave their opinions or at least were afforded the
opportunity by NMFS to give their opinions on the proposed
regulations." Ace Lobster Co., Inc. v. Evans, 165 F. Supp. 2d 148,
172 (D.R.I. 2001). The evidence relied upon by the court was the
following: the FEIS was sent to the Executive Directors of NEFMC
and MAFMC; NMFS received public comments on the DEIS, some of which
were from NEFMC and MAFMC; and five comments on the DEIS were
authored in part by the NEFMC, to which NMFS responded directly.
Id. at 171. The court bolstered its conclusion that this
correspondence satisfied the consultation requirement by reasoning
that "the underlying statutory ideology of the ACFCMA--that of
state-influenced management of the lobster resource supported by
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the Federal government--is not offended by the perhaps less than
exhaustive 'consultation' with NEFMC and MAFMC (neither of which
are state-managed bodies)." Id. at 172. We disagree with the
court's conclusion that the evidence, viewed in the light most
favorable to appellants, sufficiently demonstrated consultation so
as to warrant summary judgment.
Our general rules of statutory interpretation dictate a
narrow course for us on review: unless the statutory language is
ambiguous, we generally are limited by its plain meaning. See
Herman v. Héctor I. Nieves Transp., Inc., 244 F.3d 32, 34 (1st Cir.
2001); see also Boivin v. Black, 225 F.3d 36, 40 (1st Cir. 2000)
("We assume that the words that Congress chose to implement its
wishes, if not specifically defined, carry their ordinary meaning
and accurately express Congress' intent."). In this case, there is
no ambiguity: "consultation" means what consultation ordinarily
means. See Black's Law Dictionary 311 (7th ed. 1999) (defining
consultation as "[t]he act of asking the advice or opinion of
someone").
The gravamen of the district court's error in finding
sufficient evidence of "consultation" is that it relied solely upon
correspondence that was part of a general public comment process
statutorily required by NEPA, rather than by the ACFCMA. See 42
U.S.C. § 4332 (requiring environmental impact statements to
accompany "every recommendation or report on proposals for
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legislation and other major Federal actions significantly affecting
the quality of the human environment" and to be made available to
the public). Thus, the cited correspondence between NMFS and NEFMC
or MAFMC did not differ from NMFS' correspondence with the general
public. Under NEPA, the FEIS was required to be made available to
the public at large, so the fact that NEFMC and MAFMC were provided
with a copy was simply part of this obligation. Moreover, when
NEFMC and MAFMC proffered public comments to the DEIS, they were
acting no differently than other members of the public who are
given an opportunity to respond to environmental impact statements
under NEPA. Consultation, within the parameters of the Atlantic
Coastal Act, must mean something more than general participation in
the public comment process on environmental impact statements,
otherwise the consultation requirement would be rendered nugatory.8
See Héctor I. Nieves Transp., 244 F.3d at 36 ("A primary canon of
statutory construction is that a statute should be construed so as
not to render any of its phrases superfluous.").
The Secretary, anticipating this argument, counters that
commentary by NEFMC or MAFMC, made as part of the NEPA process, can
8
There is no evidence to support the dissent’s view that the
consultation language is simply meant as a "fail-safe." Where the
statutory language is clear, it is not the role of the judiciary to
substitute its judgment for that of Congress. Here, Congress
specifically inserted a requirement to consult with the Agencies.
If Congress so intended, it could have easily explained that this
consultation was only necessary if the Secretary was not required
to release an EIS under NEPA.
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still constitute consultation under the Atlantic Coastal Act. The
Secretary contends that the ACFCMA "does not require that []
consultation occur through a distinct process or provide that it
cannot be combined with other statutory or regulatory processes."
Although the Secretary offers no legal support for this
proposition, we agree with the Secretary's position as a
theoretical matter; in some circumstances, consultation that occurs
pursuant to NEPA's requirements may also fulfill the Atlantic
Coastal Act's requirement of consultation.9 However, this is not
such a case.
Here, the comments made pursuant to NEPA and upon which
the district court relied are insufficient to satisfy the ACFCMA's
consultation requirement. NEPA was created, in part, "to promote
efforts which will prevent or eliminate damage to the environment
and biosphere and stimulate the health and welfare of man." 42
U.S.C. § 4321 (establishing congressional purpose of NEPA). In
view of this goal, NEPA requires that the public be given an
opportunity for public comment, see 42 U.S.C. § 4332, to help
ensure that the government is aware of and has considered all
significant environmental effects in formulating its proposed
action. Cf. Conservation Law Found., Inc. v. Busey, 79 F.3d 1250,
9
Contrary to the dissent’s assertion, we do not claim that the
requirements under NEPA and the Atlantic Coastal Act are redundant.
We agree that in some situations the two can be handled together.
Here, however, additional consultation was required by the Atlantic
Coastal Act, the paramount applicable statute.
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1271 (1st Cir. 1996) (commenting that NEPA is designed to force
government decision makers to consider environmental impact); Warm
Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1021 (9th Cir.
1980) (noting purpose of input under NEPA is "to further the
statutory purpose of encouraging widespread discussion and
consideration of the environmental risks and remedies associated
with the pending project.").
The ACFCMA, however, is more specifically designed "to
support and encourage the development, implementation, and
enforcement of effective interstate conservation and management of
Atlantic coastal fishery resources." 16 U.S.C. § 5101(b).
Although in some circumstances the goals of preventing
environmental damage under NEPA and conserving Atlantic coastal
fishery resources under the ACFCMA may coalesce, they are not
always synonymous. As a result, public comments made by one of the
Regional Councils in response to an environmental impact statement
under NEPA may not raise the same issues that the same council
would raise when consulting with the Secretary under the ACFCMA
about proposed regulations governing fishing in the EEZ. Thus,
without notice to the NEFMC or MAFMC that the Secretary was
intending to use their comments to the DEIS or FEIS to fulfill the
consultation requirement of the ACFCMA, the councils may not have
appropriately tailored their environmental comments to correspond
with advice they would have offered the Secretary under the
-22-
ACFCMA.10 In this case, the Secretary did not provide any such
notice to the Regional Councils. Thus, it was inappropriate for
the district court to rely on the DEIS/FEIS public comments as
showing that NEFMC and MAFMC "were afforded the opportunity by NMFS
to give their opinions on the proposed regulations." Although the
councils were given the opportunity to offer their environmental
assessments of the proposed regulations, the documents relied upon
by the district court do not demonstrate that NMFS solicited the
councils' advice regarding the soundness of the regulations for
conserving Atlantic Coastal fishery resources.11
However, even if the district court erred in relying on
the environmental impact statement commentary as sufficient
evidence of consultation, we can still affirm the district court's
judgment if there are other grounds evident in the record to
support the court's finding of consultation. See Houlton Citizens'
Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999).
The Secretary points to a number of documents as supporting his
10
We are not engrafting a notice requirement onto the ACFCMA.
Rather, we are suggesting that the Secretary might satisfy both
NEPA and the Atlantic Coastal Act by providing notice that the DEIS
is meant to elicit all comments from the councils.
11
Furthermore, while the Secretary may have been aware that the
councils preferred trap limits based on historic participation,
there is no evidence that NMFS understood the reasons for this
preference.
-23-
claim that NMFS properly consulted NEFMC and MAFMC.12 While some
of these documents do show correspondence between NMFS and NEFMC
and/or MAFMC, many involve general discussions about management of
the lobster fishery rather than specific views about the proposed
conservation measures for the EEZ. Moreover, although the
administrative record arguably does indicate that NMFS kept NEFMC
informed of its intent to withdraw the lobster FMP and instead
regulate under the Atlantic Coastal Act, NMFS never requested
12
The dissent finds that nine documents between NMFS and the New
England Council demonstrate sufficient consultation for purposes of
the Atlantic Coastal Act. We find this evidence insufficient.
Items 1-4, 5 and 7 concern a discussions of the FMP that was
in place until March 1996. The Council was fighting to maintain
the existing FMP, while NMFS proposed to amend or withdraw it.
Item 8 simply alerted the Council that NMFS would withdraw the FMP
and proceed under the Atlantic Coastal Act.
Item 6 references a meeting regarding a "stock assessment" and
the biology and productivity of American lobster. There is nothing
to suggest this meeting discussed the FMP or any new regulations.
Thus, until March 1996, all relevant discussion had concerned
whether to amend the FMP or withdraw it. No alternative
regulations had been proposed. These general correspondence are
not applicable to whether or not NMFS consulted with the Council
before implementing the challenged rule. It was not until NMFS
announced that the FMP would be withdrawn and regulations would be
imposed under the Atlantic Coastal Act that the Act, and its
consultation requirement, even came into play.
The first time NMFS announced its proposed alternatives was in
the DEIS, released March 17, 1998. Item 9 is the Council's
response to the publicly released DEIS, and the first time the
Council expressed its preference for a historic participation
model. This public commentary is the only possible "consultation"
because it is the only time the Council was responding to specific
proposed regulations.
-24-
NEFMC's or MAFMC's opinion or advice regarding this intent, but
merely stated that NMFS "will keep [NEFMC] informed." The
Secretary does not proffer any evidence in the administrative
record where NMFS affirmatively solicits advice or an opinion from
the Regional Councils regarding its proposed regulations.13
Even after our independent review of the lengthy
administrative record in this case, we are unable to find any
evidence that NMFS "ask[ed] the advice or opinion" of NEFMC or
MAFMC, or afforded them a proper opportunity to express their
opinions, regarding the proposed rule. Although we agree with the
district court that ACFCMA "is not offended by . . . perhaps less
than exhaustive 'consultation' with NEFMC and MAFMC," there must be
some effort by NMFS to receive the councils' views regarding
proposed regulations over Atlantic Coastal fishery resources and
then consider such advice. Consultation with the relevant councils
is key in the Secretary's development of effective regulations
because the councils have valuable expertise and insight. See 16
U.S.C. §§ 1852(h)(3) (requiring the councils to conduct public
hearings "to allow all interested persons an opportunity to be
heard in the development of fishery management plans"), 1852(h)(5)
13
This court has the discretion to consider the issue of
harmlessness sua sponte and to overlook the parties' failure to
argue it. See United States v. Shea, 159 F.3d 37, 40 (1st Cir.
1998). However, we do not believe that this case is an appropriate
one in which to exercise that discretion. The harmlessness inquiry
here is a factual one, and one we think best undertaken initially
by the district court.
-25-
(requiring councils to review and revise assessments of the optimum
yield from each fishery), 1852(b)(2)(A) (requiring that council
members be qualified by expertise regarding conservation and
management of fishery resources). Without some communication
between NMFS and the councils to elicit such expertise, the
consultation requirement is meaningless.14
We rule that there is insufficient evidence in the record
to show that the Secretary complied with Congress' explicit
procedural requirement to consult with the appropriate councils
before implementing regulations governing fishing in the EEZ.
14
The dissent argues that "at least some deference is owed the
agency's view that it has engaged in consultation [because]
Congress has left it to the Secretary to reasonably construe
'consultation' [and] deference is also owed agencies due to their
'specialized experience.'" These statements, although correct as
generalities, hardly fit the circumstances of this appeal. We are
unaware of any line of cases that allows an agency to make a
binding determination that it has complied with specific
requirements of the law. Although the agency can in the first
instance conclude that it has engaged in consultation, this self-
serving conclusion cannot be the end of judicial inquiry if a party
properly makes a challenge, as has happened in this case. See 5
U.S.C. § 706 (providing for judicial review of agency actions). As
to the so-called "specialized experience" of the agency, it would
appear that it is the courts that qualify for such a title on an
issue of legislative interpretation. Interpretation of the word
"consult" is purely a legal question for the courts. See 5 U.S.C.
§ 706 ("the reviewing court shall decide all relevant questions of
law [and] interpret . . . statutory provisions"). Using
traditional methods of statutory construction, we hold that the
agency did not adequately consult with the Councils, as required by
statute. Such a legal determination does not require deference to
the agency. See INS v.Cardoza-Fonseca, 480 U.S. 421, 446 (1987);
accord Grinspoon v. Drug Enforcement Admin., 828 F.2d 881, 885 (1st
Cir. 1987) (interpreting a statute without deference to the
agency's interpretation).
-26-
Thus, we reverse the district court's grant of summary judgment for
defendant and remand for further proceedings consistent with this
opinion.15
IV.
Because we find that the summary judgment record on the
consultation issue, viewed in the light most favorable to
appellants, does not support judgment as a matter of law for
defendant, we reverse and remand the case for further proceedings
consistent with this opinion.
"Dissent follows"
15
Because we reverse summary judgment on the consultation issue,
which may be determinative of whether the regulations will be set
aside under 5 U.S.C. § 706(2)(D), we need not address the
appellants' remaining claims.
-27-
LYNCH, Circuit Judge (Dissenting). Despite my respect
for my colleagues, I dissent. By any definition the Secretary has
engaged in "consultation": he sought comments from the Council on
the very point at issue (a possible rule based on historic
participation), received them in writing, and responded in writing.
The majority says this exchange does not count because the
Secretary did so in the course of receiving public comments on a
draft Environmental Impact Statement (DEIS) under the National
Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370 (2000).
The majority argues that if this did count as consultation, that
would make the separate consultation requirement of 16 U.S.C.
§ 5103(b)(1) (2000) redundant, and Congress does not enact
superfluous provisions. With respect, the majority is, in my view,
quite wrong in its ruling on statutory interpretation.
The majority also argues that even if there were no
redundancy, further consultation is required, but does not say why.
In fact, the two statutes cover similar concerns -- including both
economic and environmental considerations -- and there is no need
for further consultation.
Moreover, even if the majority's statutory interpretation
is correct, there is still the question of whether the plaintiffs
have demonstrated prejudicial error under 5 U.S.C. § 706 (2000) or
are entitled to any relief. The district court should address
these issues on remand.
-28-
I.
The majority holds that the Secretary cannot meet his
obligation to consult with the New England Council under
§ 5103(b)(1) by giving notice of proposed alternative approaches to
the lobster overfishing problem to the Council, receiving
commentary from the Council, and responding to those comments
because he did so in the course of meeting NEPA requirements. The
majority reaches this holding because it believes that the
consultation requirement would otherwise be rendered redundant.
That is not so.
The majority's reasoning necessarily rests on the premise
that in all situations the consultation requirement of § 5103(b)(1)
would be rendered redundant if an agency could be said to have
consulted under ACFCMA by complying with the notice and comment
requirements under NEPA for a DEIS. That premise -- that the
universe of regulation under ACFCMA and NEPA are perfectly
congruent, like circles atop each other -- is fallacious, as shown
below. In many circumstances there is no overlap and no possible
redundancy.
ACFCMA, 16 U.S.C. §§ 5101-5108 (2000), authorizes the
Atlantic States Marine Fisheries Commission to develop coastal
management plans. Id. § 5104(a). Plans adopted by the Commission
may not be implemented by the Secretary until "after consultation
with the appropriate Councils." Id. § 5103(b)(1). The strictures
-29-
of NEPA require that a federal agency issue an environmental impact
statement (EIS) only for "major Federal actions significantly
affecting the quality of the human environment." 42 U.S.C.
§ 4332(C) (2000). If the proposed action would not have a
significant effect on the environment, the agency need not produce
an EIS. See 40 C.F.R. §§ 1501.4(e), 1508.9(a)(1) (2001).
Given that there was a separate requirement of notice and
opportunity to comment under NEPA, it is fair to ask why Congress
imposed a consultation requirement in ACFCMA. The most plausible
reading is that Congress wished to assure that if consultation did
not occur in the process of meeting other regulatory requirements,
there would be consultation with the councils in any event. The
consultation requirement is a fail-safe.
There may well be situations in which that fail-safe is
needed. The majority itself notes one such situation: when the
DEIS does not cover the subject matter of the proposed regulation
on which there should be consultation with the council. The
majority thus refutes its own logic, which rests on a claim of
redundancy. Another example is when the Secretary's proposed
regulation does not require issuance of a DEIS, because the
regulation would not have a significant effect on the environment.
A third is when the Secretary does not, in the course of the DEIS,
give specific notice to the councils and they, ignorant of the
opportunity, do not comment. The circles of regulatory scope of
-30-
ACFCMA and NEPA do not sit atop each other, but instead constitute
a Venn diagram, with only partial overlap. The lack of contiguity
between the regulatory schemes eliminates the redundancy argument
upon which the entire logic of the majority opinion rests.
Furthermore, that portions of the NEPA and ACFCMA
regulatory regimes may overlap does not create an objectionable
redundancy. A great many systems have redundancy built in, just to
provide an additional fail-safe. No one considers those redundant
systems to be superfluous; they are there for a purpose.
Rather, it is the majority's opinion which will create a
duplication of effort which is contrary to congressional intent.
Congress surely prefers agencies to be efficient and avoid
unnecessary procedural steps. That is the thrust of the Regulatory
Flexibility Act, 5 U.S.C. §§ 601-612 (2000), among many other laws.
See, e.g., Paperwork Reduction Act of 1995, 44 U.S.C. §§ 3501-3521
(2000). Congress also prefers, as NEPA itself says, that the
agencies try to coordinate and administer in a coherent fashion
their various environmental responsibilities. See 42 U.S.C.
§ 4332. Yet the majority opinion holds that the Secretary must
meet his obligation to consult with the New England Council about
the best way to protect lobsters and the lobster fishery in a
separate procedure totally apart from the public procedure of DEIS
comments on the possible alternative solutions to the very same
problem of lobster overfishing. On these facts, the majority's
-31-
requirement that there be a separate procedure of consultation
creates redundancy, inefficiency, and delay. See Coalition for
Lower Beaufort County v. Alexander, 434 F. Supp. 293, 295 (D.D.C.
1977) (NEPA "was not intended to create a bureaucratic nightmare in
which form rather than substance governs").
That is a bad outcome in any situation. It is a
particularly bad outcome where Congress has specifically retooled
regulation in the area of fisheries through ACFCMA, taking power
away from the councils in order to make the regulatory system
speedier and more efficient. Further detail on this regulatory
background is set forth as Appendix A. And even worse, the
majority's outcome introduces delay into the very process Congress
tried to place on a fast track: the protection of the lobster
fishery.16
The statute does not, contrary to the majority, prohibit
the Secretary from complying with the consultation requirement of
ACFCMA and the notice and hearing requirements of NEPA at the same
time. Congress would applaud such initiative. The agency here did
not engage in empty formalisms. It specifically sent the various
16
In September 1996, Congress passed fisheries legislation that
established new general procedures for the revocation of an FMP,
but which recognized the urgency of the lobster overfishing
problem. The new provision exempted only the lobster FMP, by name,
from the new requirements. See Sustainable Fisheries Act of 1996,
Pub. L. No. 104-297, § 109(i), 110 Stat. 3587, 3587 (1996). This
congressional action advanced the Secretary's goal of transferring
authority over lobster management from the Council to the
Commission.
-32-
regulatory options to the Council, received pertinent comments, and
responded to them. The historic participation model for trap
limits, the very plan plaintiffs now claim was not the subject of
consultation, was among the alternatives included in the DEIS.
This communication satisfied the policy concerns behind both
ACFCMA's consultation requirement and NEPA's EIS requirement.
The majority, in footnote nine, attempts to avoid the
weakness of its redundancy logic by saying that it does not really
rely on redundancy, but that the requirements of ACFCMA and NEPA
could not be handled together because "some additional consultation
was required." The majority does not explain why. It certainly
cannot be that there was no opportunity for the Council to comment
on material issues during the course of its NEPA response. First,
§ 5103(b)(1) does not require that the Secretary consult with the
councils on particular specific matters. In fact, under § 5103(b),
the only requirement for valid consultation is that it occur before
the regulation in question is implemented. Second, the majority
may mistakenly assume in footnote nine, without any analysis, that
there was no consultation on the economic impact of the purported
regulation. This, in turn, rests on the erroneous assumptions
that: (a) NEPA commentary does not address economic impact, and (b)
NEPA commentators are precluded from discussing economic impact.
Both assumptions are wrong as a matter of law. Both assumptions
are factually untrue.
-33-
The purpose of the EIS under NEPA is very similar to the
purpose of the ACFCMA consultation requirement: "[T]he EIS helps
. . . to ensure that the agency takes a 'hard look' at the
environmental consequences of its proposed action and to make
information on the environmental consequences available to the
public, which may then offer its insight to assist the agency's
decision-making through the comment process." DuBois v. United
States Dept. of Agric., 102 F.3d 1273, 1285-86 (1st Cir. 1996).
Where the policies promoted by the requirements under ACFCMA and
NEPA -- "consultation" and "notice and comment" -- are so similar,
it makes sense for the agency to handle them together. Moreover,
the path the agency took had the added benefit that the public
could see the Council's comments and the Secretary's response.
There was no "consultation" behind closed doors or at an obscure
meeting.
While one purpose of NEPA and its EIS requirements is
environmental protection, another is to strike a balance between
that protection and economic productivity. See 42 U.S.C. § 4321
(describing the purposes of NEPA as including "encourag[ing]
productive and enjoyable harmony between man and his environment").
Similarly, environmental impact statements must address "the
relationship between local short-term uses of man's environment and
the maintenance and enhancement of long-term productivity."
-34-
§ 4332(C)(iv). In short, the nature of NEPA's provisions addresses
economic as well as environmental factors.
Here, as a matter of fact, the Council was on notice that
the lobster fishery DEIS and request for comments put economic
considerations on the table. The DEIS issued by the agency, in its
opening paragraphs, made this clear: "The DEIS considers the
biological and economic effects of several alternative actions for
waters under federal jurisdiction" (emphasis added).
Even had the DEIS not made the breadth of issues open for
comment so explicit, there is no restriction on the subject matter
or content of comments made to an agency issuing an EIS. The
Council was free to respond to the DEIS however it wished. Further
economic concerns were relevant in the response.
The majority attempts to justify its result by saying
that it is required by the plain meaning of the statute. That is
a red herring. The majority's reasoning rests not on plain meaning
but on a supposed redundancy between two statutes (a redundancy
that does not exist) or a supposed preclusion of economic
commentary (a preclusion that does not exist).
Even if plain meaning were somehow at issue, the
disagreement really is not about a dictionary definition of
"consultation." The dispute is about which of the very many ways
there are of eliciting the views of others amounts to the sort of
-35-
"consultation" Congress intended. On this point, there is
ambiguity and the statute does not tell us the answer.
The statutory text containing the "consultation"
requirement is clear in certain respects. It is clear that the
"consultation" need take place only before "implementation" of the
regulation; section 5103(b)(1) imposes no other constraints on when
consultation can take place. Any consultation between the agency
and the councils on the subject addressed by the proposed
regulations would meet the strictures of § 5103(b)(1), then, even
if that consultation took place before formal notice of the
proposed rule. The long-running communication between the
Secretary and the Council, summarized in Appendix B, demonstrates
just this sort of pre-implementation consultation.
The statute is also clear that there is no separate
notice provision requiring that the Secretary announce that he is
"consulting" with the councils or that the councils be informed of
exactly how the Secretary plans to meet the consultation
requirement. Courts are not free to engraft additional procedural
requirements onto § 5103(b)(1) when Congress has not done so. Cf.
Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council,
Inc., 435 U.S. 519, 545 (1978) (prohibiting judicial additions to
the procedural requirements of the Administrative Procedure Act
(APA), 5 U.S.C. §§ 551-559, 701-706 (2000)). By creating a
requirement that the agency give separate notice to the councils
-36-
that the DEIS comment period is meant to meet the parallel ACFCMA
consultation requirement as well, the majority makes precisely this
error.
When analyzing similar, though not identical, language in
other statutes that are designed to produce informed
decisionmaking, this court has required only that the agency be
informed of and consider various alternatives or positions. In our
NEPA decisions this court has said that the court's substantive
role is "only to assure itself that the agency has given good faith
consideration to the environmental consequences of its actions and
should not pass judgment on the balance struck by the agency among
competing concerns." Roosevelt Campobello Int'l Park Comm'n v.
United States Envtl. Prot. Agency, 684 F.2d 1041, 1045 (1st Cir.
1982); see Baltimore Gas & Elec. Co. v. Natural Res. Def. Council,
Inc., 462 U.S. 87, 105 (1983); see also Save Our Heritage, Inc. v.
Fed. Aviation Admin., 269 F.3d 49, 58 (1st Cir. 2001) (the National
Historic Preservation Act (NHPA) "imposes both a substantive
obligation to weigh effects . . . and a procedural obligation to
consult"); DuBois, 102 F.3d at 1284 ("'NEPA does not mandate
particular results'; it 'simply prescribes the necessary
process.'") (quoting Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 350 (1989); Robertson, 490 U.S. at 350 ("If the
adverse environmental effects . . . are adequately identified and
evaluated, the agency is not constrained by NEPA from deciding that
-37-
other values outweigh the environmental costs."); Vermont Yankee,
435 U.S. at 558 (Congress, in enacting NEPA, meant only "to insure
a fully informed and well-considered decision"). The analogous
additional procedural requirements of ACFCMA, then, are designed
only to ensure that an agency takes particular factors into
consideration when making decisions. That has surely been done
here.
Finally, for two different reasons, at least some
deference is owed to the agency's view that it has engaged in
consultation. First, Congress has left it to the Secretary to
reasonably construe "consultation." ACFCMA on this point is in
contrast with NHPA, 16 U.S.C. § 407f. Under NHPA, Congress
empowered the Advisory Council on Historic Preservation to
promulgate rigorous procedural rules governing the consultation
process. Id. § 470s. The actual consultation process under NHPA
has not been left up to the individual agencies but has been
codified by regulation. 36 C.F.R. Part 800 (2001). Here, by
contrast, the regional councils have not been given any formal
power to determine the structure or content of the consultation
process. Given the counter-example of NHPA and Congress's choice
not to pursue a similar path under ACFCMA in § 5103(b)(1), Congress
apparently intended that the Secretary here be permitted to
determine the appropriate consultation procedures (subject to the
-38-
underlying APA constraint that the interpretation not be arbitrary
and capricious).
Deference is also owed agencies due to their "specialized
experience." Skidmore v. Swift & Co., 323 U.S. 134, 139 (1944);
see United States v. Mead Corp., 533 U.S. 218, 234-39 (2001)
(applying Skidmore deference). The consultation requirement of
§ 5103(b)(1) is not a generalized procedural hurdle; it requires
that the Secretary consult with a particular set of organizations
with which the agency is intimately familiar. The Secretary was
presumably aware of how best to consult with the regional councils
regarding fishery regulation. He consulted with the New England
Council over a period of many years, as described in Appendix B,
and we should accept his entirely reasonable determination that
this consultation was adequate under ACFCMA.
The Secretary's regulation of the lobster fishery is
taking place on two tracks, one slightly in advance of the other.
In addition to the rule now being challenged, the Secretary has
proposed, received comments on, but not yet adopted a new
replacement rule which follows the historic participation model for
setting trap limits. See American Lobster Fishery, 67 Fed. Reg.
282 (proposed Jan. 3, 2002) (to be codified at 50 C.F.R. Part 697);
see also Extension of Comment Period, 67 Fed. Reg. 4697 (Jan. 31,
2002) (extending comment period on proposed historic participation
rule until Feb. 28, 2002). This is the model that plaintiffs in
-39-
the present case prefer. The proposed rule should be made final
soon, the comment period having closed over seven months ago. The
Secretary's version of a historic participation model works out
many technical details that were incomplete when the rule
challenged in this litigation was proposed. The consideration of
this proposed rule again shows that consultation took place and the
Council's concerns were heard. Presumably implementation of a
historic participation rule will moot this appeal.
II.
This court has discretion to determine the harmlessness
of the error, although neither side has briefed the issue to us.
United States v. Shea, 159 F.3d 37, 40 (1st Cir. 1998)
(harmlessness can be raised sua sponte); United States v. Rose, 104
F.3d 1408, 1414 (1st Cir. 1997) (same); see Save Our Heritage, 269
F.3d at 61 (applying harmless error sua sponte in an administrative
review context); Moulton v. Rival Co., 116 F.3d 22, 26 (1st Cir.
1997) (applying harmless error analysis in a civil context). The
majority opinion chooses not to exercise that discretion,
preferring to remand the issue to the district court.
Some reference to the common standards in the area may be
of assistance on remand. Judicial review of agency rulemaking is
not directly analogous to judicial review of an agency
adjudication:
A judicial determination that an agency erred
in the process of adopting a new policy does
-40-
not necessarily mean that the status quo ante
-- the agency's old policy -- is superior to
the agency's new policy. Frequently, the
basis for setting aside the new policy is
remote from the central purpose and basis of
the new policy. Yet, judicial review of the
agency rulemaking process is so demanding that
the process of policymaking on remand from a
court decision reversing an agency decision
usually requires many years. If the new
policy is superior to the old policy, the
public can suffer significant harm
attributable to the years of delay.
1 R.J. Pierce Jr., Administrative Law Treatise, § 7.13 (4th ed.
2002).
This is one reason that the APA instructs a reviewing
court to consider whether the alleged error caused actual
prejudice. See 5 U.S.C. § 706 (mandating that when a court reviews
an agency action, "due account shall be taken of the rule of
prejudicial error"). The burden is on the plaintiffs to show such
prejudice. See Air Canada v. Dep't of Transp., 148 F.3d 1142, 1156
(D.C. Cir. 1998); see also Nieves-Villanueva v. Soto-Rivera, 133
F.3d 92, 102 (1st Cir. 1997) ("In a civil case, the party asserting
error bears the burden of demonstrating that the error was harmful
. . . .").
Our court and others have interpreted this APA
requirement as a harmless error rule, and have refused to grant
relief when a procedural error in the regulatory process (or an
alleged one) did not produce a different result for the plaintiff.
See, e.g., Save Our Heritage, 269 F.3d at 61-63 (finding agency's
-41-
alleged failure to consult under NHPA was harmless error where
impact on historic site was de minimis); First Am. Discount Corp.
v. Commodity Futures Trading Comm'n, 222 F.3d 1008, 1015-16 (D.C.
Cir. 2000) (holding failure to provide notice and seek comments on
alternative compliance mechanism was harmless error where plaintiff
had invoked that mechanism); Sierra Club v. Slater, 120 F.3d 623,
637 (6th Cir. 1997) (finding error in notice harmless because a
"notice requirement was functionally satisfied" through other
means).
Further, even if the Secretary had erred by failing to
consult and even if the error were prejudicial to plaintiffs, that
still would not lead to vacating the regulation. It is in the
reviewing court's sound discretion to remand a rule to an agency to
mend procedural defects without overturning it in its entirety.
See Cent. Me. Power Co. v. Fed. Energy Regulatory Comm'n, 252 F.3d
34, 48 (1st Cir. 2001) (declining to enjoin regulation while case
remanded to agency for further explanation); Sugar Cane Growers
Coop. of Fla. v. Veneman, 289 F.3d 89, 98 (D.C. Cir. 2002)
(remanding rule that violated notice and comment requirements
without vacating it because of chaotic practical consequences of
vacating); United Mine Workers v. Fed. Mine Safety & Health Admin.,
920 F.2d 960, 967 (D.C. Cir. 1990) ("Relevant to the choice are the
seriousness of the order's deficiencies . . . and the disruptive
consequences of an interim change that may itself be changed.").
-42-
The district court should also consider this issue on
remand.
III.
Because I differ with the majority's holding, I
respectfully dissent.
-43-
Appendix A: Background
A. Statutory Context
The Secretary's regulation of federal waters is meant to
be done in coordination with the states' regulation of their own
coastal waters. The original model was one established by the
Magnuson-Stevens Act. 16 U.S.C. §§ 1801-1883 (2000). That
statute, first enacted in 1976, see Fishery Management and
Conservation Act, Pub. L. No. 94-265, 90 Stat. 331 (1976),
established eight regional councils, including the New England
Council, composed of representatives of various stakeholders, such
as state regulators, industry, environmentalists, and academics.
Id. § 1852(a)(1). The Magnuson-Stevens regime established a
complex relationship between the Secretary and the regional
councils which afforded the latter considerable power. For
example, while it was the Secretary who determined that a
particular aquatic species needed conservation measures to stop
overfishing, it was the council that then developed the fishery
management plan (FMP) in response, which the Secretary, through his
designee the National Marine Fisheries Service (NMFS), either
approved or disapproved. Id. § 1852(h). Not surprisingly, this
process was cumbersome and diffused authority too much.
In response, Congress enacted the Atlantic Coastal
Fisheries Cooperative Management Act (ACFCMA) in 1993. Pub. L. No.
103-206, Title VIII, §§ 801-811, 107 Stat. 2419, 2447 (1993). It
is that statute which we interpret. The ACFCMA relied on the
Atlantic States Marine Fisheries Commission ("Atlantic States
Commission" or "Commission"), an organization more closely
controlled by state governments, to play a more active role in the
process of developing regulation over fisheries in federal waters.17
See 16 U.S.C. § 5101(a)(4). According to the Secretary, some
members of the New England Council also sit on the Atlantic States
Commission.
17
The Atlantic States Commission was formed originally by a
congressionally-approved interstate compact in 1942. See Pub. L.
No. 77-539, 56 Stat. 267 (1942). It is composed of three
representatives from each state on the eastern seaboard (as well as
the District of Columbia): a state legislator, the head of the
state agency responsible for fishery management, and a
gubernatorial nominee with "knowledge of and interest in the marine
fisheries problem." See id. at Art. III.
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Under the ACFCMA, the Atlantic States Commission now
develops its own management plans for Atlantic waters, called
coastal management plans (CMPs), which are distinct from the FMPs
developed by regional councils. See 16 U.S.C. § 5104(a)(1)
(authorizing Atlantic States Commission to "prepare and adopt
coastal fisheries management plans to provide for the conservation
of coastal fisheries resources"). In preparing a CMP, the Atlantic
States Commission in turn consults with the appropriate regional
councils. Id. The statute did not disband the regional councils
on the east coast, but it did reduce their power over regulation in
the EEZ. The Secretary now has the authority to work principally
through the Commission when developing new regulations for the EEZ.
See 16 U.S.C. § 5103. The regulations promulgated under that
authority are subject to the conditions that give rise to the
disputes in this case.
B. Regulatory Process Leading to the Challenged Rule
The regulatory process which resulted in the challenged
regulations took a period of years; we view it as starting before
1995. The need for more aggressive action to preserve the Atlantic
lobster fishery has been evident since at least 1993, when a report
revealed that the American lobster stock was overfished.18 That
finding was reinforced by a lobster stock assessment in 1996. On
September 30, 1997, the NMFS placed the American lobster on a list
of overfished fisheries.
Prior to that, in July of 1995, the New England Council
had corresponded with the NMFS and various states, attempting to
get all to agree in concept, before there were any public hearings
about it, to the lobster management strategy developed by the
Council's Effort Management Teams (EMTs). The NMFS responded that
the staff of the two groups had already been involved together in
the development of lobster management plans by EMTs, that many of
the states had declined to participate in the Council's proposed
process, and that the agency would therefore consider using its
power under ACFCMA and withdrawing the New England Council's
lobster FMP.
The Secretary then published an advance notice of
proposed rulemaking (ANPR), indicating that NMFS was considering
such a process under the ACFCMA and asking for comments. See
18
Attempting to address the same lobster overfishing problem, the
New England Council had also amended its FMP for the American
lobster seven times from 1986 to 1999. The Secretary corresponded
with the Council about the adequacy of these amendments.
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Advance Notice of Proposed Rulemaking, 60 Fed. Reg. 48,086 (Sept.
18, 1995). The ANPR explained that acting under ACFCMA "would
remove management responsibility for the lobster fishery from the
[New England] Council's purview," although the resulting
regulations could incorporate ideas from the Council's EMT plans.
One affected state responded that it preferred the rulemaking to be
transferred to the Atlantic States Commission from the New England
Council. On February 23, 1996, the NMFS informed the New England
Council in a letter that it intended to shift rulemaking for the
American lobster in the EEZ to the Atlantic States Commission, and
that it would encourage the Commission to come up with a more
definite lobster fisheries plan. A month later, the NMFS announced
its initial determination that it would withdraw approval of the
New England Council's FMP for American lobster and, in order to see
that the fishery more closely complied with state administrative
programs, issue regulations formulated through the Atlantic States
Commission under ACFCMA. See American Lobster Fishery; Removal of
Regulations, 61 Fed. Reg. 13,478 (Mar. 27, 1996).
In September 1996, Congress passed fisheries legislation
that established new general procedures for the revocation of an
FMP, but which recognized the urgency of the lobster overfishing
problem by making it easier for the Secretary to withdraw approval
of the lobster FMP. The new provision exempted only the lobster
FMP, by name, from the new requirements. See Sustainable Fisheries
Act of 1996, Pub. L. No. 104-297, § 109(i), 110 Stat. 3587 (1996).
This congressional action advanced the Secretary's goal of
transferring authority over lobster management from the Council to
the Commission.
Prompted by the Secretary's actions, the Atlantic States
Commission began to develop a plan for the conservation of the
American lobster fishery. In December 1997, the Commission
approved Amendment 3 to its Interstate Fishery Management Plan.
The Amendment established an advisory group (the Lobster
Conservation Management Team or "LCMT"), including plaintiff
Campanale and Sons, Inc. ("Campanale") and other industry
representatives, to recommend a lobster management plan based on
historic participation. Amendment 3 also included a uniform limit
of 2000 traps as a default measure that would take effect unless
the LCMT came up with an alternate plan by certain deadlines.
In furtherance of Amendment 3, on March 17, 1998 NMFS
issued a draft environmental impact statement ("DEIS") pursuant to
the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-
4370 (2000). The DEIS sought to evaluate alternative management
measures for federal waters that would be compatible with the
measures developed under Amendment 3. Among the alternatives, the
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DEIS expressly considered: maintaining the status quo (Alternative
1); implementing Amendment 3's default limitation of 2000 traps
(Alternative 2); implementing a nearshore/offshore trap cap
differential, with a buffer zone, and continuing existing
management measures (Alternative 3); a two-tier nearshore and
offshore trap limit with a buffer zone (Alternative 4); nearshore
uniform trap limits and offshore limits set by historic
participation (Alternative 5); and banning fishing for and
possession of lobsters (Alternative 6). As required under NEPA,
NMFS requested public comments on the alternatives set forth in the
DEIS. See Council on Environmental Quality NEPA Regulations, 40
C.F.R. Pts. 1502, 1503 (2002) (explaining EIS and public comment
process). A number of public hearings were also held on the DEIS
in the various states that participate in the lobster fishery.
The New England Council was specifically sent the DEIS so
that it could comment. The DEIS also itself referred to prior
interactions between NMFS and the New England Council on the
matter. The DEIS noted that the New England Council, when it was
revising its FMP, had missed the deadline for adopting a plan and
had not reached a "final agreement" on specific measures to prevent
lobster overfishing. The New England Council did respond to the
DEIS and indicated its support for an alternative based on historic
participation rather than a uniform flat trap limit.
On May 10, 1999, the Secretary issued a Final
Environmental Impact Statement (FEIS), which reflected comments
that had been received, including those from the New England
Council. The Council had commented that in selected management
areas it supported a historic participation trap limit. The
Secretary responded that this approach had also been proposed
through the LCMT as part of the Commission's deliberations and was
the specific subject of hearings to be held by the Commission in
May of 1999. The response also supported an industry-wide
evaluation by the Commission "on the merits of historic
participation."
The LCMT and the Atlantic States Commission did not meet
the deadlines set in Amendment 3 for development of the historic
participation rule. That, in turn, created an obligation for the
Secretary to come up with at least an interim rule. The flat trap
limit rule that was adopted, and is the subject of this lawsuit,
was compatible with the default limit of 2000 traps set by the
Commission in Amendment 3.
The Secretary proposed the challenged rule in January
1999. At that time the Commission still had not completed a viable
historic participation rule. The Secretary delayed publication of
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a final rule, giving the Atlantic States Commission yet more time
to act. The Secretary finally promulgated the rule, implementing
a flat trap limit consistent with the Commission's default measure,
in December 1999. See American Lobster Fishery, 64 Fed. Reg.
68,228 (Dec. 6, 1999) (to be codified at 50 C.F.R. Part 697).
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Appendix B: Secretary's "Consultation" Actions
Arguing that he did consult, the Secretary points to a
number of documents (including documents which reflect staff level
communication between the Secretary and the New England Council),
to the comments submitted by the New England Council in response to
the DEIS, and finally to the involvement of the Atlantic States
Commission, on which members of the regional councils sit. Taken
together, these interactions satisfied the "consultation"
requirement of § 5103(b)(1), as the Secretary contends:
1). A 1994 letter from NMFS to the New England Council
concerning approval and disapproval of some FMP amendments that the
Council had proposed, and warning that the Secretary might withdraw
approval of the FMP and promulgate new rules through the Atlantic
States Commission "under the Atlantic Coastal Act."
2). Letters sent in July 1995 by the New England Council
to state regulators and to the NMFS regional director, Andrew
Rosenberg, seeking to get them all to agree in concept to the
Council's lobster strategy, based on the EMT plans, before public
hearings about it that fall.
3). A response letter, dated August 9, 1995, from
Rosenberg to the New England Council. Rosenberg says that NMFS
staff had already been involved in development of the EMT plans,
and had raised their "[ l]egal and enforcement concerns" in that
process. He goes on to note the "recent letters from the states
opting out of this cooperative effort" -- apparently referring to
state regulators' responses to the Council's July 1995 inquiries.
As a result, Rosenberg concludes, the NMFS "must now reevaluate its
options which include amending the plan by Secretarial action or
withdrawing the lobster FMP." That is, the NMFS would need to
consider either (1) imposing changes under the Magnuson-Stevens
Act, or (2) using the Secretary's power under ACFCMA and
withdrawing the FMP. (The second option is what the agency
ultimately pursued).
4). A September 8, 1995 e-mail message from an NMFS
official describing Rosenberg's participation in an August 1995
meeting of the New England Council where he reiterated the contents
of his letter.
5). The September 1995 ANPR announcing the proposal to
withdraw the FMP and proceed under ACFCMA, as well as an internal
NMFS memo by Rosenberg preparing for this notice.
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6). A September 27, 1995 memo from Rosenberg concerning
his participation in a September 1995 meeting of the New England
Council about the timing of the lobster stock assessment.
7). An October 24, 1995 letter from the New England
Council to Rosenberg. The letter accepts that it may be
appropriate to develop a lobster plan with the Commission as "the
lead fishery management institution" and the New England Council
playing a supporting role in a "joint planning process."
8). A letter dated February 23, 1996 from the Director
of the NMFS to the New England Council, which informs the Council
that the NMFS plans to publish a proposed rule in the Federal
Register withdrawing the lobster FMP and replacing it with
regulations developed under ACFCMA in cooperation with the
Commission.
9). The comments submitted by the New England Council in
response to the DEIS, which are described in the FEIS and set forth
in the main text of the dissent.
Some of this interaction cited by the Secretary occurred
in 1995 and 1996, a few years before the challenged rule was
proposed in January 1999. But the statute does not contain any
requirement about when the consultation take place, other than that
it must be before implementation of the rule. In fact, the earlier
dialogue was an important part of a lengthy process of coming to a
rule, a process which culminated in a proposed rule in 1999 and an
implemented rule in 2000.
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Campanale & Sons, Inc. v. Evans
Court: Court of Appeals for the First Circuit
Date filed: 2002-11-22
Citations: 311 F.3d 109
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