United States Court of Appeals
For the First Circuit
No. 02-2664
CONSERVATION LAW FOUNDATION and OCEANA,
Plaintiffs, Appellants,
v.
DONALD L. EVANS, et al.,
Defendants, Appellees,
and
FISHERIES SURVIVAL FUND,
Intervenor, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Lipez, Circuit Judge,
Campbell, Senior Circuit Judge, and
Howard, Circuit Judge.
Eric A. Bilsky with whom Sylvia F. Liu and Roger M. Fleming
were on brief for appellants.
Anna T. Katselas, Attorney, U.S. Department of Justice,
Environment & Natural Resources Division with whom Thomas L.
Sansonetti, Assistant Attorney General, Environment & Natural
Resources Division, Jeffrey Bossert Clark, Deputy Assistant
Attorney General, Environment & Natural Resources Division,
Mauricia Baca, John Almeida, Todd S. Kim, Attorneys, Environment &
Natural Resources Division and Gene S. Martin, Office of Regional
Counsel, National Oceanic and Atmospheric Administration (Of
Counsel), were on brief, for appellees Donald L. Evans, et al.
David E. Frulla with whom Shaun M. Gehan, Brand & Frulla,
P.C., H. Reed Witherby and Smith & Duggan, LLP, were on brief, for
intervenor, appellee Fisheries Survival Fund.
February 26, 2004
HOWARD, Circuit Judge. Two conservation groups challenge
adverse summary judgment rulings in an action alleging violations
of the Magnuson-Stevens Fishery Conservation and Management Act
(the Magnuson-Stevens Act), 16 U.S.C. §§ 1851, 1853, 1854, and the
Administrative Procedure Act (the “APA”), 5 U.S.C. §§ 553, 706.
Conservation Law Foundation (“CLF”) and Oceana (f/k/a American
Oceans Campaign) allege that in implementing Framework Adjustment
14 to the Atlantic Sea Scallop Fishery Management Plan (“Framework
14"), the National Marine Fisheries Service (“NMFS”) and other
federal defendants1 failed to meet their procedural and substantive
obligations under governing law. The district court found that
Framework 14 was lawful. We affirm.
I. Factual and Procedural Background
On May 31, 2001, the plaintiffs initiated an action
challenging Framework 14, a rule that adjusted certain restrictions
on sea scallop fishing in the Atlantic coastal waters.2 The
1
The plaintiffs also sued Donald Evans, in his official
capacity as Secretary of the United States Department of Commerce,
and the National Oceanic and Atmospheric Administration (“NOAA”).
The Secretary of Commerce is the chief officer charged with
managing the marine fisheries of the United States. NOAA is an
agency within the Department of Commerce, and NMFS is a part of
NOAA. Except where otherwise indicated, the federal defendants are
referred to collectively as “NMFS.”
2
In 1976, in effort to prevent overfishing, the Magnuson-
Stevens Act created eight regional councils charged with developing
fishery management plans to regulate commercial fishing of local
fish stocks. See Associated Fisheries of Maine v. Daley, 127 F.3d
104, 106 (1st Cir. 1997) (citing 16 U.S.C. § 1852). The New
England Fishery Management Council (the “Council”) manages the
-3-
plaintiffs challenged Framework 14 on both substantive and
procedural grounds. First, they alleged that NMFS failed to meet
its substantive management obligations under the Magnuson-Stevens
Act, 16 U.S.C. §§ 1851(a)(9), 1853(a)(7) & (a)(11), and the APA.3
Second, they claimed that NMFS’s failure to provide a 15-day public
comment period violated the Magnuson-Stevens Act, 16 U.S.C. §
1854(b), and the APA, 5 U.S.C. §§ 553, 706(2)(D). The plaintiffs
asked the district court to declare Framework 14 in violation of
the governing statutes and to “remand” it with the requirement that
NMFS remedy the alleged deficiencies. They also sought their fees,
costs, and expenses.
In September 2001, the parties submitted to the district
court a joint proposal for briefing and discovery. See Local Rule
16.1. In the proposal, the plaintiffs requested that the court
Atlantic sea scallop fishery, which extends from Maine to North
Carolina. The Atlantic Sea Scallop Fishery Management Plan was
created in 1982, and since has been amended several times. In
1993, Amendment 4 to the scallop FMP established a procedure
whereby management measures could be altered through so-called
“framework adjustments” to respond to the changing needs of the
fishery. This procedure allowed the Council to develop, over the
course of two public Council meetings, a framework adjustment that
is submitted to the Regional Administrator of NMFS for review.
Upon approval of the Regional Administrator, the framework
adjustment becomes a final rule. See 50 C.F.R. § 648.55 (setting
forth framework adjustment procedures).
3
The plaintiffs also alleged violations of the National
Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321-4347.
The district court rejected these claims, and the plaintiffs have
not pursued them on appeal.
-4-
expedite the case pursuant to 16 U.S.C. § 1855(f)(4).4 Over the
next few months, the parties filed cross motions for summary
judgment.5 The district court heard argument on the motions in May
2002. By September 2002, no decision had issued, and the
plaintiffs renewed their request to expedite the case, alerting the
court to the fact that Framework 14 would expire by its own terms
in March 2003.
On October 31, 2002, the district court denied the
plaintiffs’ motion for summary judgment and granted the defendants’
motions. See Conservation Law Found. v. United States Dep’t of
Commerce, 229 F. Supp. 2d 29 (D. Mass. 2002). The court found that
the Magnuson-Stevens Act did not mandate public comment for a rule
such as Framework 14 and that the public comment period required
under the APA had been waived for good cause. See id. at 34 n.10.
The court also concluded that NMFS had considered the substantive
issues raised by the plaintiffs and did not act arbitrarily and
capriciously in implementing Framework 14. See id. at 34. The
4
Section 1855(f)(4) provides: “Upon a motion by the person who
files a petition under this subsection, the appropriate court shall
assign the matter for hearing at the earliest possible date and
shall expedite the matter in every possible way.”
5
Appellant Fisheries Survival Fund (“FSF”) intervened as a
defendant in the underlying action on September 10, 2001. FSF is
an organization of Atlantic sea scallop fishermen.
-5-
plaintiffs appealed. On March 1, 2003, while this appeal was
pending, Framework 14 was superseded by Framework 15.6
II. Analysis
A. Mootness
We turn first to the question of mootness. See Roe v.
Wade, 410 U.S. 113, 125 (1973) (“The usual rule in federal cases is
that an actual controversy must exist at stages of appellate or
certiorari review, and not simply at the date the action is
initiated.”). The defendants contend that the expiration of
Framework 14 rendered this case moot. See Gulf of Maine
Fishermen’s Alliance v. Daley, 292 F.3d 84, 88 (1st Cir. 2002). As
the parties invoking the mootness doctrine, the defendants bear a
“heavy” burden in attempting to establish its applicability.
Mangual v. Rotger-Sabat, 317 F.3d 45, 61 (1st Cir. 2003). And
should they merely cease voluntarily the conduct originally
challenged, they must demonstrate that it is “absolutely clear that
the allegedly wrongful behavior could not reasonably be expected to
recur.” Id. (citing United States v. Concentrated Phosphate Export
Ass’n, Inc., 393 U.S. 199, 203 (1968)).
The defendants attempt to carry this burden with respect
to both of the plaintiffs’ claims by citing to Gulf of Maine, a
case in which we affirmed the district court’s finding of mootness
6
Framework 15 expires on March 1, 2004. See 68 Fed. Reg.
9580, 9581 (Feb. 28, 2003).
-6-
where a challenged framework affecting groundfish was superseded
while cross motions for summary judgment were pending. See 292
F.3d at 87. In that case, an organization of commercial fishermen
alleged that a framework was both procedurally deficient for lack
of adequate notice and comment and substantively unlawful because
of its closure of inshore fishing areas. See id. The appellant
urged us to find that the alleged harms continued, despite the
promulgation of subsequent frameworks, and that the issues
therefore were not moot. See id. at 88. We rejected that
argument, concluding that the promulgation of a new framework in
compliance with procedural guidelines and based on new data
rendered the challenges to the superseded framework moot. See id.
CLF and Oceana respond with arguments similar to those
made by the appellant in Gulf of Maine. As to their substantive
challenge to Framework 14, they contend that the harms caused by
NMFS’s failure to close the four fishing areas were perpetuated
through Framework 15. This, they say, means that their substantive
claim remains live, and for support they rely heavily on
Northeastern Florida Chapter of the Associated General Contractors
of America v. City of Jacksonville, 508 U.S. 656 (1993). There, a
challenged ordinance that accorded preferential treatment to
minority businesses for city contracts was repealed and replaced
with a modified version weeks after the Supreme Court had granted
certiorari. See id. at 660-61 (noting three alterations in
-7-
ordinance, including adoption of five- to sixteen-percent
“participation goals” in place of ten percent “set-aside” of city
contracts earmarked for minority businesses). These modifications
were not enough to render the controversy moot. The Supreme Court
concluded that “[t]here is no mere risk that [the city] will repeat
its allegedly wrongful conduct; it has already done so.” Id. at
662. The analogy to Northeastern Florida is useful here.
On its face, Framework 15 is largely an extension of
Framework 14. See Fed. Reg. 9580, 9581 (Feb. 28, 2003) (noting
that Framework 15's only modification of the management measures
that previously had been in effect was an increase in certain
limits on the amount of scallops that could be held on board a
fishing vessel). And as a practical matter, it appears that
Framework 15 was designed merely to maintain the status quo until
NMFS could complete a more comprehensive overhaul of its management
measures through an amendment to the scallop FMP.7 NMFS states
that Framework 15 is based on entirely new data about the condition
7
Framework 15's scope was described in the Federal Register:
Framework 15 was developed during the later
stages of development of Amendment 10 to the
FMP . . . because it was clear that Amendment
10 would not be implemented by the start of
the 2003 fishing year and, therefore,
Framework 15 is considered to be an action of
limited scope, which is intended to be a stop-
gap measure until Amendment 10 is implemented.
68 Fed. Reg. 9580, 9581 (Feb. 28, 2003).
-8-
of the scallop resource, NMFS Br. at 23, 27-28; cf. Gulf of Maine,
292 F.3d at 88, but it identifies no portion of the record to
support this assertion. See Mulvihill v. Top-Flite Golf Co., 335
F.3d 15, 28 (1st Cir. 2003) (declining to consider argument where
litigant “ma[de] no attempt either to marshal the pertinent facts
or to engage in reasoned analysis”); see also United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.”). In any event, we have studied
the record with care and cannot tell whether and to what extent
Framework 15 was developed with new underlying data. Consequently,
we cannot say that the challenged conduct will not recur or has not
already recurred. See Northeastern Florida, 508 U.S. at 662.
Whether we characterize the expiration of Framework 14 as
a “voluntary cessation” of conduct by NMFS subject to the same
standards as in Northeastern Florida, the core question Article III
compels us to ask is whether our adjudication of the issue can
grant meaningful relief. Cf. Gulf of Maine, 292 F.3d at 88. Here,
it appears that the same allegedly harmful scheme continues. No
matter how the issue is framed, we have no difficulty concluding
that, where a challenged regulation continues to the extent that it
is only superficially altered by a subsequent regulation, we are
capable of meaningful review. See Schall v. Martin, 467 U.S. 253,
257 n.2 (1984) (concluding that changes in general statutory scheme
-9-
did not moot challenge where contested provision remained the
same); Brockington v. Rhodes, 396 U.S. 41, 43 (1969) (per curiam)
(finding that suit attacking requirement that nominating petitions
be signed by seven percent of voters on ground that no more than
one percent could be required was not mooted by new statute
reducing signature requirement to four percent); Keyishian v. Board
of Regents of the University of the State of New York, 385 U.S.
589, 596 (1967) (noting that abandonment of requirement that
employees disclaim membership in Communist party did not render
challenge to constitutionality of procedure moot where underlying
statutes and regulations remained). The plaintiffs’ challenge to
the substance of Framework 14 is not moot.
As to their procedural challenge to Framework 14, CLF and
Oceana begin their response to NMFS’s mootness arguments by
acknowledging that Framework 15 was promulgated in a procedurally
proper manner. Yet, the plaintiffs argue, their challenge remains
live because NMFS’s conduct is “capable of repetition, yet evading
review.” See Gulf of Maine, 292 F.3d at 88-89 (quoting Weinstein
v. Bradford, 423 U.S. 147, 149 (1975)). The defendants again point
to Gulf of Maine, in which we rejected the application of this
exception and found the issue moot. See id. at 89.
Although the parties present compelling arguments on both
sides of the debate, we find that a more straightforward resolution
of the issue is readily available on the facts of this case. NMFS
-10-
has not shown, as it must, that the alleged procedural deficiency
will not recur. See Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., 528 U.S. 167, 189 (2000) (requiring, in cases involving
voluntary cessation of challenged conduct, that party claiming
mootness satisfy heavy burden of demonstrating that allegedly
wrongful behavior could not reasonably be expected to recur). To
the contrary, NMFS maintains that the Magnuson-Stevens Act does not
require notice and comment for framework adjustments. Likewise,
NMFS argues that its routine waivers of notice and comment under
the APA have been wholly proper.8 The fact that NMFS voluntarily
provided a public notice period in promulgating Framework 15
therefore does not suggest a change of heart as to whether the
process was legally required. Rather, as NMFS’s counsel
acknowledged at oral argument, the public notice period preceding
8
NMFS has waived notice and comment for “good cause” in
promulgating all but two of the first fourteen framework
adjustments. See 66 Fed. Reg. 24,052, 24,055 (May 11, 2001)
(Framework 14); 65 Fed. Reg. 37,903, 37,909-10 (June 19, 2000)
(Framework 13); 65 Fed. Reg. 11,478, 11,479 (Mar. 3, 2000)
(Framework 12); 64 Fed. Reg. 31,144, 31,148 (June 10, 1999)
(Framework 11); 63 Fed. Reg. 45,939, 45,940 (Aug. 28, 1998)
(Framework 10); 62 Fed. Reg. 43,469, 43,470 (Aug. 14, 1997)
(Framework 9); 61 Fed. Reg. 38,404, 38,405 (July 24, 1996)
(Framework 8); 61 Fed. Reg. 8490, 8491-92 (Mar. 5, 1996) (Framework
7); 60 Fed. Reg. 35,513, 35,514 (July 10, 1995) (Framework 6); 60
Fed. Reg. 33,757, 33,758 (June 29, 1995) (Framework 5); 59 Fed.
Reg. 59,967, 59,968 (Nov. 21, 1994) (Framework 2); 59 Fed. Reg.
36,720, 36,722 (July 19, 1994) (Framework 1). The framework
adjustment procedure, as set forth in Amendment 4 to the scallop
FMP, contemplates that the Secretary of Commerce will “waive for
good cause the requirement for a proposed rule and opportunity for
public comment in the Federal Register” because “the Council
process will adequately satisfy that requirement.”
-11-
the enactment of Framework 15 was provided “out of an abundance of
caution” in light of this appeal. Under these circumstances,
NMFS’s voluntary cessation of the challenged conduct does not
render the challenge moot. See Adams v. Bowater, Inc., 313 F.3d
611, 613-15 (1st Cir. 2002) (issue not moot where a recurrence of
the challenged conduct is highly likely).
B. Merits
Concluding as we do that the issues before the district
court continue to present a live controversy on appeal, we turn to
the merits of the case. The district court’s entry of summary
judgment is subject to de novo review. See Associated Fisheries,
127 F.3d at 109. In the administrative law context, however, this
review is limited, even at the summary judgment stage. See id.
This is because the Magnuson-Stevens Act adopts the APA standard of
review, which permits a court to upset an agency action only if it
is arbitrary, capricious, or otherwise contrary to law. See id.
(citing 5 U.S.C. § 706(2)(A)-(D)). Therefore, our task is to
determine whether the action “was consonant with [the agency’s]
statutory powers, reasoned, and supported by substantial evidence
in the record.” Id.
1. Substantive challenge
CLF and Oceana contend that Framework 14 is arbitrary and
capricious in failing to mandate the closure of scallop-harvesting
in four areas. To succeed on this claim, they must demonstrate
-12-
that NMFS lacked a rational basis for adopting the framework. See
Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 109
(1st Cir. 1997). That showing may be made where “the agency relied
on improper factors, failed to consider pertinent aspects of the
problem, offered a rationale contradicting the evidence before it,
or reached a conclusion so implausible that it cannot be attributed
to a difference of opinion or the application of agency expertise.”
Id.
Under the Magnuson-Stevens Act, NMFS has a duty to
minimize to the extent practicable (1) adverse effects on essential
fish habitat (“EFH”),9 16 U.S.C. § 1853(a)(7); and (2) bycatch
(fish that are caught but not sold or kept for personal use) and
bycatch mortality, 16 U.S.C. §§ 1851(a)(9), 1853(a)(11). The
plaintiffs argue that NMFS violated these statutory obligations in
rejecting the closure of the four fishing areas. As they see it,
NMFS’s decision was irreconcilable with record evidence that the
closures would be beneficial with respect to EFH and bycatch. The
plaintiffs also fault NMFS’s analysis, claiming that the agency
ignored relevant factors they should have considered and failed to
articulate a rational basis for declining to implement the
closures.
9
EFH refers to “those waters and substrate necessary to fish
for spawning, breeding, feeding or growth to maturity.” 16 U.S.C.
§ 1802(10).
-13-
These arguments are flawed to the extent that they
consider the closure alternative in isolation, discounting numerous
other restrictions on scallop fishing imposed by Framework 14. See
CLF, 229 F. Supp. 2d at 34 (noting that Framework 14 maintained
closures of three large scallop fishing areas, as well as
“restrictions on days at sea, catch and mesh sizes, and seasonal
access to sensitive areas”). Moreover, the plaintiffs essentially
call for an interpretation of the statute that equates
“practicability” with “possibility,” requiring NMFS to implement
virtually any measure that addresses EFH and bycatch concerns so
long as it is feasible. Although the distinction between the two
may sometimes be fine, there is indeed a distinction. The closer
one gets to the plaintiffs' interpretation, the less weighing and
balancing is permitted. We think by using the term "practicable"
Congress intended rather to allow for the application of agency
expertise and discretion in determining how best to manage fishery
resources.
We also note that CLF's and Oceana's characterization of
the record is somewhat faulty. NMFS in fact considered the closure
alternative and other potential management measures in a Final
Supplemental Environmental Impact Statement (“FSEIS”) that analyzed
the probable effects of Framework 14. The FSEIS concluded, inter
alia, that the closures would provide only limited, short-term
benefits to habitat. These benefits would be “mitigated to some
-14-
degree” because other (non-scallop) fishing would continue in the
closed areas. The FSEIS also found that (1) implementing no new
closures would have a greater economic benefit for the fishing
seasons Framework 14 was intended to address than would the closure
alternative, and (2) any long-term benefits that might accrue as a
result of closures were uncertain and might not outweigh the
benefits of forgoing new closures. It is not our role to second
guess these determinations. See Associated Fisheries, 127 F.3d at
109 (“Even if a reviewing court disagrees with the agency’s
conclusions, it cannot substitute its judgment for that of the
agency.”). On this record, the plaintiffs have not shown that NMFS
acted irrationally in implementing Framework 14 without imposing
additional closures.
2. Procedural challenge
a. The Magnuson-Stevens Act
The plaintiffs argue that NMFS’s failure to provide a
public comment period in developing Framework 14 violated the
Magnuson-Stevens Act, 16 U.S.C. § 1854(b)(1)(A). Section 1854(b)
requires notice and comment for regulations prepared under 16
U.S.C. § 1853(c), namely regulations that are deemed necessary to
“implementing a fishery management plan or fishery management plan
amendment,” or to modifying such regulations. See 16 U.S.C. §
1853(c). The district court distinguished § 1853(c) “regulations”
from framework adjustments, looking to neighboring § 1855(f) for
-15-
interpretive guidance. See CLF, 229 F. Supp. 2d at 33. There,
Congress drew a distinction between “regulations promulgated by the
Secretary” and “actions that are taken by the Secretary under
regulations which implement a fishery management plan.” See 16
U.S.C. § 1855(f)(2).
Recognizing that a framework adjustment such as Framework
14 was implemented through an action of the Secretary of Commerce
(by his designee) after a finding by the Council that a formal
regulation was “neither necessary [n]or appropriate,” the district
court concluded that framework adjustments are properly
characterized as “actions,” not regulations. CLF, 229 F. Supp. 2d
at 33. The court found, therefore, that framework adjustments are
not subject to the public comment requirements of § 1854(b). See
id. at 33-34. The plaintiffs have not presented us with any basis
for doubting the correctness of the court’s analysis, so we affirm
its ruling on the basis of its sound reasoning.10
b. The APA
In the alternative, the plaintiffs allege procedural harm
under the APA because NMFS failed to demonstrate “good cause” for
10
Because we find that the statute distinguishes between
regulations and actions, and the framework adjustment process
easily fits into the latter category, we look no further. We are
not persuaded that, as the plaintiffs contend, the legislative
history of § 1853(c) suggests an intent that framework adjustments
undergo public comment. See CLF/Oceana Br. at 38-39 (citing S.
Rep. No. 194-276, at 18-19 (1996), reprinted in 1996 U.S.C.C.A.N.
4073, 4091).
-16-
waiving notice and comment. See 5 U.S.C. § 553(b)(3)(B). They
characterize Framework 14's statement of the grounds for waiver as
mere “boilerplate.”11 See n.8, above; Natural Res. Def. Council,
Inc. v. Evans, 316 F.3d 904, 912 (9th Cir. 2003). Even if we were
to agree with the plaintiffs on this point, however, any error on
NMFS’s part was harmless. See Riverbend Farms, Inc. v. Madigan,
958 F.2d 1479, 1487 (9th Cir. 1992) (“The APA requires that we take
‘due account’ of the harmless error rule.”); see also Save Our
Heritage, Inc. v. FAA, 269 F.3d 49, 61 (1st Cir. 2001)(“The
doctrine of harmless error is as much a part of judicial review of
administrative action as of appellate review of trial court
judgments”). We reach such a conclusion because, based on this
record, the omission of a formal public comment period “clearly had
no bearing on the procedure used or the substance of [the] decision
reached.” Riverbend Farms, 958 F.2d at 1487 (quoting Sagebrush
11
Framework 14's waiver of notice and comment stated:
[B]ecause public meetings held by the Council
to discuss the management measures implemented
by this final rule provided adequate prior
notice and opportunity for public comment,
further notice and opportunity to comment on
this final rule is unnecessary. Therefore,
the [Assistant Administrator for Fisheries],
under 5 U.S.C. 553(b)[3](B) finds good cause
exists to waive prior notice and additional
opportunity for public comment.
66 Fed. Reg. 24,052, 24,055 (May 11, 2001). Waivers in eleven
prior frameworks used similar, though not identical, language. See
n.8, above.
-17-
Rebellion, Inc. v. Hodel, 790 F.2d 760, 764-65 (9th Cir. 1986));
see also Little Bay Lobster Co, Inc. v. Evans, 352 F.3d 462, 468
(1st Cir. 2003).
Here, the development of Framework 14 generated fourteen
public meetings. See 66 Fed. Reg. 24,052, 24,054 (May 11, 2001).
NMFS followed its procedures for framework adjustments as set forth
at 50 C.F.R. § 648.55, a process with which the plaintiffs were
familiar. See Riverbend Farms, 958 F.2d at 1487-88 (finding
technical noncompliance with notice requirements under Federal Land
Policy Management Act constituted harmless error where “all parties
before [the court] knew the ground rules” of the agency’s weekly
procedures). The preparation of a supplemental environmental
impact statement afforded additional opportunities for public
participation usually unavailable during the framework adjustment
process.12 The plaintiffs took advantage of these opportunities,
submitting written and oral comments prior to and during Council
meetings.13 The plaintiffs contend that their comments were
12
See Notice of Availability of Draft EIS for Framework 14, 65
Fed. Reg. 77,025, 77,026 (Dec. 8, 2000) (accepting comments until
Jan. 24, 2001); Notice of Intent to prepare a Supplemental
Environmental Impact Statement; request for comments, 65 Fed. Reg.
60,396, 60397 (Oct. 11, 2000) (accepting comments until November
13, 2000).
13
See J.A. at 178-186 (Nov. 13, 2000 letter from Oceana
representative); 189-192 (participation of CLF and Oceana
representatives at November 14, 2000 Council meeting); 217-222
(Jan. 22, 2001 letter from Oceana representative); 443-49 (Jan. 23,
2001 letter from CLF and Oceana representatives); 268
(participation of Oceana representative at Jan. 25, 2001 Council
-18-
ignored, and that, had formal notice and comment occurred, NMFS
might have decided to explore their suggested alternatives
further.14 CLF/Oceana Br. at 44 (“Had NMFS taken public comment,
NMFS might have overruled the council and adopted more protective
measures.”). The administrative record does not bear this out,
however. For example, two March 2001 decision memoranda from
NMFS’s Regional Administrator to NOAA’s Acting Assistant
Administrator for Fisheries analyze the concerns raised by the
plaintiffs. These analyses occurred before Framework 14 was
finalized. The plaintiffs disregard the significance of this
agency-level consideration of their concerns, choosing to emphasize
the ways that the Council may have slighted them procedurally.15
Further, the plaintiffs fail to identify any comment that they were
prevented from making because of this alleged procedural defect
that would have made a difference in the result. See Little Bay
Lobster, 352 F.3d at 468. The plaintiffs have demonstrated that
meeting).
14
The plaintiffs also rely heavily on Natural Resources Defense
Council, Inc., 316 F.3d at 912, in which the Ninth Circuit found
that NMFS made an insufficient showing of good cause to waive the
APA public comment period. In that case, however, neither party
briefed the issue of harmless error. See id. at 912 n.10. The
court interpreted this silence as an admission by NMFS that some
prejudice resulted. See id. NMFS has not made a comparable
admission here.
15
The plaintiffs alleged that, because public comment periods
closed the day before Council meetings, the Council was not giving
due consideration to their concerns.
-19-
some of their suggestions were rejected, but not that they were
ignored. In this context, the difference is important. We find no
prejudice.
III. Conclusion
For the foregoing reasons the judgment of the district
court is AFFIRMED.
-20-