ANDREW S. HANEN, District Judge.
At issue is whether an Emergency Rule promulgated by the Secretary of Commerce shortening the red snapper fishing season in federal waters off the coasts of certain Gulf states was unlawful under the Magnuson-Stevens Act. The Secretary promulgated the Rule following the recommendation of the Gulf Council of the National Marine Fisheries Service ("NMFS"), a special council created by the Magnuson-Stevens
In 1976, Congress passed the Magnuson-Stevens Act for the purpose, among others, of helping "conserve and manage the fishery resources" of the nation. 16 U.S.C. § 1801(b)(1). The statute was most recently amended as the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, codified at 16 U.S.C. §§ 1801-1884 (Pub. L. No. 109479, 120 Stat. 3575). The Act established eight Regional Fishery Management Councils, tasked with preparing Fishery Management Plans, or FMP, to address conservation and management of the fisheries under their control. 16 U.S.C. 1852(h)(1). One such Council, the Gulf Council, consists of the States of Texas, Louisiana, Mississippi, Alabama, and Florida. It, through the Secretary of Commerce, has authority over the fisheries in the Gulf of Mexico. Id. at (a)(1)(E). The Statute requires Regional Fishery Management Councils to reach their fishery management plans through a process known as notice-and-comment rulemaking, a well-established cooperative framework through which the public and those affected by changes in a fishery management plan have an opportunity to be apprised of new rulemaking, and give their comments. Id. at § 1854(b). Those Fishery Management Plans, if adopted by the Department of Commerce, are then promulgated by the Secretary of Commerce.
The Magnuson-Stevens Act § 305(c) provides for a special shortcut to this normally required notice-and-comment framework if "an emergency or overfishing" exists. Id. at 1855(c). The law provides that:
Id. at (2), (2)(B). The statute does not specifically define, however, what kind of situation constitutes an "emergency."
(Id., emphasis added.) The directives then go on to state that:
Id. The conjunction "and," which joins each criterion, makes it clear that each of the three criteria must be met in order for an emergency to exist. Action taken when any one of the above criteria is not met is unjustifiable.
According to the Magnuson-Stevens Act, regulations promulgated by the Secretary of Commerce under the Act "shall be subject to judicial review to the extent authorized by, and in accordance with, chapter 7 of title 5 ... except that the appropriate court shall only set aside any such regulation or action on a ground specified in section 706(2)(A), (B), (C), or (D) of such title." 16 U.S.C. § 1855(f)(1). That chapter, part of the Administrative Procedure Act, states in relevant part:
5 U.S.C. § 706. The Fifth Circuit has formulated a test in much the same language, holding courts should only overturn agency rulings under the APA "if it is arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence on the record taken as a whole." Buffalo Marine Services, Inc. v. U.S., 663 F.3d 750, 753 (5th Cir.2011), quoting Texas Clinical Labs, Inc. v. Sebelius, 612 F.3d 771, 775 (5th Cir.2010).
With this standard in mind, this Court is also mindful that courts should conduct the process of judicial review according to a two-step inquiry laid out in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under the first step of the Chevron inquiry, a court must determine "whether Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. 2778. If Congress's intent is clear, then the court must give effect to the expressed intent of Congress, and the inquiry is over. Id. at 842-43, 104 S.Ct. 2778. If the court determines that Congress has not directly addressed the precise question at issue, however, the second step comes into play. In that circumstance,
Id. at 843, 104 S.Ct. 2778 (citations omitted). The Chevron Court goes on to say that, "[t]he power of an administrative agency to administer a congressionally created... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress." Id., citing Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974). "If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Id. at 843-844, 104 S.Ct. 2778.
The NMFS emergency criteria are therefore given controlling weight, since the term "emergency" is not defined under the Magnuson-Stevens Act, but is defined under the NMFS directives. The Emergency Rule itself also acknowledges that it must meet the emergency criteria, despite its ultimate failure to do so on each of the three required counts. 78 Fed.Reg. at 17883.
Red snapper is a reef fish found in the Gulf of Mexico, and is one of the species regulated and managed by the Gulf Council in accordance with the Magnuson-Stevens
Before the year 1997, the recreational fishing season was open yearround in the EEZ.
In 2012, however, Louisiana discussed extending its state season to be longer than the federal season. The Louisiana Wildlife and Fisheries Commission, tasked with setting the red snapper fishing season in state waters, decided to publish an official notice of intent to that effect at its May 3, 2012, meeting.
Several later meetings show that the Gulf Council had repeated notice of Louisiana's intentions. Just a month later, the Gulf Council's Reef Fish Committee was already discussing Louisiana's notice of intent at its meeting.
From time to time, the FMP is amended. One such change, called Amendment 30(b) in minutes of various Gulf Council meetings, was originally proposed as an emergency rule at the April 2008 Gulf Council meeting. The rule was not adopted under the emergency framework, but did become promulgated thereafter through normal rulemaking procedures. 50 C.F.R. § 622.4(a)(l)(iv) (1996). According to the Amendment, charter vessels and headboats with federal for-hire reef fish permits must comply with the more restrictive federal regulations, regardless of whether the fish are caught in state controlled waters or the federally controlled EEZ. 50 C.F.R. § 622.4(a)(l)(iv) (1996). This has a very real practical effect for anglers fishing for red snapper. Since according to the parties most red snapper is found in federal waters, these fishermen are federally licensed. Since they are federally licensed, under Rule 30(b), they can only fish on the federally sanctioned fishing days, even if they are fishing in state waters. Thus, the number of federally approved fishing days is of critical importance.
As a practical matter, therefore, the FMP completely controls when such anglers may fish in any water. The minutes of the Gulf Council's January 2013 meeting reveal that Respondent Crabtree, Regional Administrator of the NMFS and point person of the Gulf Council, stated that Rule 30(b) was instituted to account for state fishing seasons that were longer than the season in the EEZ. Rule 30(b), unlike the rule in question here, applies across the board to all Gulf fishermen. In Council meetings, Crabtree routinely describes states with longer fishing seasons as "noncompliant," despite the fact that the Magnuson-Stevens Act provides for a cooperative framework in which states retain the authority to regulate the fishing seasons off their individual coasts, while the NMFS regulates the season farther out to sea.
At the Gulf Council's February 2013 meeting, an emergency rule was proposed to address the issue of "noncompliant" state seasons-that is, seasons which were longer or otherwise more permissive than the federal season in the EEZ. The proposal to act under the Magnuson-Stevens Act's emergency provisions was narrowly voted down, but then after a break, the matter was taken up again.
The Emergency Rule states that it was instituted "to constrain recreational red snapper harvest within the quota while ensuring a fair and equitable distribution
The NMFS directives state emergency action must be limited to extremely urgent and special circumstances, where substantial harm and disruption would be occasioned on a fishery in the time it would take to follow normal rule-making procedures. 62 Fed.Reg. 44421. The directives are clear that acting under the Magnuson-Stevens Act's emergency provisions cannot be pursued lightly, and certainly may not result from a Council's inaction in the face of foreseen problems. Id. Thus, this Court is asked to review the Emergency Rule using the NMFS directives. At the same time, this Court may not overturn the Emergency Rule unless it finds that the rule meets one of the requirements laid out in 5 U.S.C. § 706(1)(2)(AD). Carefully balancing these competing interests, the Court now considers whether each emergency criterion was met in turn.
To establish the first criterion, the federal defendants relied upon the fact that Louisiana and Florida joined Texas in exercising the right to set their own fishing season in their respective state waters. The record contains very little information about Florida so this Court will accept Respondent's representations concerning Florida as being accurate.
Nevertheless, this evidence does not support NMFS's conclusion about an unforeseen or recently discovered circumstance. The fact that states might set their own rules is a circumstance that is well known. First of all, it is provided for in the very act that set up the entire regulatory scheme. Secondly, it is not contested that Texas has set its own season since 1997. Third, in 2008, Texas, Alabama and Florida all set their own seasons — the latter two being by far the most productive states for catching red snapper.
Finally, it was known to the federal defendants for months that Louisiana was going to a different schedule. On May 3, 2012, the Louisiana Wildlife and Fisheries Commission, which sets the fishing season in state waters, voted to publish a notice of intent to extend the red snapper fishing season length and bag limit.
Louisiana's extended 2013 season was raised again at the Gulf Council's Reef Fish Committee Meeting, held on June 19, 2012. The minutes from that meeting reflect Louisiana's decision from May 3, stating, "Randy and the Secretary and, of course, Roy [Crabtree] came down and made a presentation and they moved the regulations over into 2013 and so the season in Louisiana territorial waters right now is set for the Saturday before Palm Sunday and it runs through September...." Minutes, Gulf Council Reef Management Committee Meeting, 5 (June 19, 2012) (emphasis added). This evidence shows that Louisiana's decision to extend its season was anything but a recently discovered circumstance. A full nine months before voting to act under the Magnuson-Stevens Act's emergency provision, the Council had notice that Louisiana intended to extend its season in state waters. The fact that this possibility was described as already in motion is further proof of the same.
Similar statements were made in subsequent Gulf Council meetings. For example, at the Council's August meeting, Respondent Crabtree is quoted as saying "it seems to me that right now Louisiana is not compliant. They have a rule that has set a season to fish weekends with a three fish bag limit. Now, they may change that, but that's the rule on the books." Minutes, Gulf Council Meeting, 149 (August 22, 2012). Such a statement is further proof that the Council already viewed Louisiana's extension of its season as more likely than not. It was discussed further at the Council's October meeting, where Crabtree again stated, "Louisiana has a season on the books now that is not consistent with the federal season for next year."
In response to this evidence presented by Petitioners, Respondents argue that "Florida and Louisiana announced their decisions to implement inconsistent regulations on February 13 and 20, 2013, respectively. This constitutes a `recently discovered circumstance' under NMFS' Policy Guidance." (Resp'ts' Mot. Summ. J., 20). Respondents implicitly acknowledge that they had advance notice of those intentions, yet argue that the actual implementation of those intentions was recently discovered.
In support of this argument, Respondents cite one case, Trawler Diane Marie, Inc. v. Brown. In Trawler, the Plaintiff fishing vessel operator sued after the emergency closure of the scallop fishery off the coast of Alaska. The plaintiff had already harvested more scallops than the entire quota allotted for that season, and was able to continue taking in more than that amount every week. Furthermore, the vessel was completely unregulated. At that time, Alaska was able to regulate all fishing in both state waters and the EEZ off its coast because all fishing vessels were registered with the state. The Plaintiff's vessel was not registered with the state, and therefore fell outside the jurisdiction of the state regulations, and was able to fish freely. The emergency rule was instituted to prevent runaway fishing from a vessel that the state's existing fishery plan has not contemplated.
In contrast to Trawler, there is no new player or game-changing factor in the
The federal defendants do not make the claim nor could they that this Emergency Rule was passed because of a serious conservation emergency. The reasons are discussed in detail in the latter part of this opinion and need not be repeated here. The claimed need was that inconsistent regulations resulted in an equitable allocation of fishery opportunities and economic benefits.
Even if this Court accepts that this is a management problem at all, this was certainly not an emergent discovery. Texas had, in the words of the defendants, not been "in compliance" since 1997. Thus, if the existence of different state rules constituted an emergency, this should have been addressed over a decade ago. Bureaucratic inertia or recalcitrance is not a reason that some item becomes an emergency — just because the bureaucratic body finally finds itself "in motion" instead of "at rest." Further, in 2008 all sides concede that Alabama, Texas, and Florida were all "not in compliance" yet the NFMS did not act. Certainly those same inequities existed then, only more so since Alabama and Florida provided for the vast majority of the red snapper caught.
Finally, the inconsistent rules apply only to state waters and those fish caught by anglers who are not federally licensed (being that federally licensed fishermen must comply with the federal time periods). Dr. Crabtree has admitted that only 1-2% of the snapper caught in Louisiana come from state water. The same was conceded to be true as to Mississippi and Alabama by the intervenor at oral argument. All concede that regardless of the state, the better fishing exists in the EEZ. That being the case, the suggestion that a larger state fishing season is an emergency in 2013 when it never has been before is somewhat ludicrous.
In support of its argument that the reasons underlying the Emergency Rule fulfill this requirement, Respondents cite Starbound, LLC v. Gutierrez, 2008 WL 1752219 (W.D.Wash., Apr. 15, 2008). In that case, the Pacific Fishery Management Council adopted an emergency rule as a "stop-gag measure" to prevent a derby-style race for fish during the 2007 season. Id. at *2. Before the emergency measure, all the participants of a certain sector of the fishery were members of a private business arrangement known as the Pacific Whiting Conservation Cooperative, or PWCC. Id. By coordinating their efforts and voluntarily agreeing how to divide the sector allocation, the organization had been able to achieve stability in their sector of the fishery. Id.
Leading up to the 2007 season, that stability was threatened by changing circumstances, which the Court recognized as "a confluence of market and regulatory factors" which "provided added incentives to participate in the fishery." Id. at *5. The Court did not discuss these factors at length, except to say that the cooperative framework of the PWCC was threatened by new players entering the fishery. This breakdown threatened to change the formerly
Respondents argue this case provides support for the Gulf Council's Emergency Rule because in that case, just as in this one, NMFS responded to a "serious threat to conservation interests" (Resp'ts' Mot. Summ. J., 26, citing id., 8). The two cases are not analogous, however. In Starbound, the Pacific Council was faced with a sudden influx of new fishing vessels which threatened to dismantle the privately established cooperative, stable framework into a tragedy of the commons race for fish. Starbound, at *6.
Here, Respondents do not even suggest that differing state fishing seasons would result in a similar situation in which the different Gulf states race for fish. They, in fact, have said that the amount of fish caught will be the same. Instead, Respondents argue in their Motion that "inconsistent state regulations result in an inequitable allocation of fishing opportunities and economic benefits...." The alleged emergency which would result would be "a transfer of benefits from angers who fish in the EEZ to anglers who fish in state waters under less restrictive regulations" (Resp'ts' Mot. Summ. J., 23). This policy argument does not qualify as a "serious conservation or management problem," as required by NMFS directives. Furthermore, the Rule merely effectuates its own inequitable transfer in the opposite direction, and consequently would require another Emergency Rule to cure the effects of the Emergency Rule.
The third and last criterion that must be met for an emergency to exist under NMFS directives is that the immediate benefits of emergency regulations must "outweigh the value of advance notice, public comment, and deliberative consideration of the impacts on participants to the same extent as would be expected under the normal rulemaking process." 62 Fed.Reg. 44421. Respondents argue this condition is met because "delaying the announcement of this emergency rule to accommodate prior public notice and comment would result in significantly less advance notice of the EEZ closure dates off each Gulf state." (Resp'ts' Mot. Summ. J., 26). Stated differently, their argument is: the Emergency Rule is needed so that people know about the Emergency Rule. The flaw in this reasoning is two-fold. First, it could apply in literally any situation where the Council wanted to take some action quickly and dispense with the normal procedural safeguards of the opportunity for notice and comment. Notice of some agency action is always more preferable the earlier it comes, but such an interpretation of the third emergency criteria would render the rule useless or, at best, a tautology.
Second, the argument is circular, because it assumes that the closure would have happened just as outlined in the Emergency Rule even if the usual notice-and-comment procedures had been followed. In other words, Respondents argue that the benefits of emergency action are greater because it gives more notice of emergency action.
This is totally unacceptable. It makes a mockery of the third criteria. Every rule no matter how mundane would qualify as an emergency as long as the criteria were to get notice out as soon as possible. There is no value in that. If the federal defendants had really cared about the fishermen they were about to discriminate against, they would have gone through the normal rule making procedure.
The record does not support the existence of an emergency under any of the three criteria. At best, it suggests bureaucratic inaction. Perhaps NFMS should have done something earlier, perhaps not. Regardless, a failure to act sooner than later does not qualify as an emergency, especially when one is enacting a policy which it knows will directly harm a segment of the population.
Title 16 U.S.C. § 1851(a)(4)(A) directs (in pertinent part):
(Emphasis added.) This Congressional mandate has been implemented in Sec. 600.325 also known as "National Standard 4 — Allocation." 50 C.F.R. 600.325. In pertinent part, that regulation requires that:
Sec. 600.325 National Standard 4 — Allocations (in pertinent part; emphasis added).
Respondents do not argue that their action by taking away fishing days from Texas, Louisiana, and Florida and giving them to fishermen in Mississippi and Alabama is not an allocation. Neither can they argue that it was done for conservation reasons, because the total catch remains
(Finding Of No Significant Impact ("FONSI") — Response 1)
(FONSI No. 7.)
(FONSI No. 16.)
Thus, the Emergency Rule does not change the total catch allowed. It does not enhance the conservation of red snapper in any way.
2013 Red Snapper Rule Chapter 3, p. 8.
Id. at 13.
None of Petitioners suggests, especially based upon this record, that NMFS is not interested in the overall goal of restoring the red snapper population. Certainly, the ultimate goal of controlling overfishing may contribute to that restoration. Nevertheless, as can be seen, this Emergency Rule does not contribute to that goal. All it does is shift the fishing rights from the anglers of Texas, Louisiana, and Florida to Mississippi and Alabama. Every reported case that has allowed the disparate treatment between citizens of states has done so because the rule or regulation in question was calculated to conserve the species in question. This rule does not.
Both in their briefing and in oral argument before this Court, Respondents concede that under this Emergency Rule it was treating the fishermen in Texas, Louisiana, and Florida unequally. NFMS argued,
The only rationale, regardless as how one characterizes the underlying motive, behind the Emergency Rule is that NMFS is going to penalize the anglers living in states that enact fishing seasons that do not match the federal season and reward those that do. The NMFS (and the Secretary of Commerce) should not be in the business of penalizing states, and their citizens, merely because they exercised the very rights bestowed upon them by Congress. 16 U.S.C. § 1856. Mississippi and Alabama are not without remedies to protect their own citizens if they feel their rights are jeopardized. They can change their own fishing season to allow more days just as Texas, Louisiana, and Florida have. (In fact, in 2008, Alabama had a season that did not match the federal one.) Intervenor Alabama suggested in oral argument that, given the fact that they have limited offshore jurisdiction (three (3) miles as opposed to twelve (12) miles for Texas, nine (9) miles for Louisiana, nine (9) miles for Florida), expanding their season will not effectively cure this perceived inequity.
Any, all, or none of these alternatives may be pursued as the parties see fit. What is not an alternative, and what is not sanctioned by any rule or regulation, is for NMFS out of its own sense of equity (and one that is certainly not universally held) to discriminate against the residents of different states. Robin Hood may have robbed the rich to give to the poor, but he, regardless of his motives, nevertheless broke the law when he did it. Furthermore, if one looks at the actual poundage of red snapper caught (using the 2012 figures Respondents displayed at oral argument), and if one takes this admittedly weak literary reference one step further, when comparing at least Louisiana and Texas with Alabama, the NMFS is doing just the opposite — it is robbing from the poor to give to the rich.
As described above, this Court finds that the defendants did not observe the procedure required by law for implementing an emergency regulation. Further, the Court finds that the Emergency Rule to be contrary to established law. Not only does it violate the very wording of the Magnuson-Stevens Act, it also violates the spirit of federalism which is embodied in the act. The discriminatory actions taken by the Secretary of Commerce and the NMFS against the anglers of Texas, Louisiana, and Florida are contrary to the dictates of the act. Further, the act envisions distinct areas of governance. States are permitted by law to govern their own water; the federal government is to control the EEZ. Both Petitioners and Respondents concede the only reason the Secretary adopted this rule was because these states insisted upon setting different dates in their own waters. Thus, the actions of the NMFS, regardless of motivation, is the equivalent of telling states "if you do something we don't like, we will punish your citizens."
The fact that three states decided to go their own way may ultimately prove troublesome to the Department of Commerce. Certainly, a one-size fits all rule is easier to promulgate and regulate. Nevertheless, the passage of an Emergency Rule, without proper notice and comment, which discriminates against a dissenting state's citizens is not the appropriate or legal method to remedy the situation. The record has references to at least two different alternative means which if legally enacted might very well achieve NMFS's stated goals. There may be additional methods to accomplish these goals as well. Certainly, any time an agency is faced with the task of conservation, while an industry exists to capture the species being conserved, a certain amount of tension is bound to exist. In this instance, however, the record contains proof that the reclamation of the red snapper population is not only on target, but that with cooperation from states, industry, and the federal government, it is an achievable goal. That cooperation will certainly require some compromise on all sides and what form that precarious balance takes will be best achieved when the proper notice and comment procedure is followed. This will also insure that everyone gets a fair chance for input and hopefully will prevent a situation where certain groups of anglers are deprived of their rights.
Having decided then that the Emergency Rule was not enacted in compliance with the required criteria for emergency measures, and having found that the Rule also impermissibly discriminates against citizens of different states in violation of 16 U.S.C. § 1851(a)(4), this Court hereby
