Goethel v. Pritzker

          Eric R. Bolinder, Esq.

          Erica L. Marshall, Esq.

          Ryan P. Mulvey, Esq.

          Stephen S. Schwartz, Esq.

          Pierre A. Chabot, Esq.

          James C. Wheat, Esq.

          Allison C. Finnegan, Esq.

          Andrea Gelatt, Esq.

          MEMORANDUM ORDER

          Joseph N. Laplante United States District Judge

         This case involves legal challenges to the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801 et seq. (“MSA” or “the Act”), and actions taken thereunder by the National Marine Fisheries Service (“NMFS”). The plaintiffs are Hampton, New Hampshire-based commercial fisherman David Goethel, and XIII Northeast Fishery Sector, Inc. (“Sector 13").^[1] Of particular relevance is a requirement that commercial fishermen must, on occasion, be accompanied by at-sea monitors (“ASMs”) who collect certain fishing-related data. As promulgated by NMFS, the ASM provision called for the industry to pay the costs of the monitors. Nevertheless, the government paid the cost of the monitors (estimated at $700-$800 per trip) from the inception of the ASM regime in fishing year (“FY”) 2012^[2] until March 2016, and recently notified the court that it would be “reimbursing some of the industry’s [at-sea monitoring] costs” as of July 1. Doc. no. 69.

         Plaintiffs advance several legal arguments in support of their claim that the industry funding requirement is illegal. Generally speaking, however, plaintiffs contend that the defendants lack the legal authority to require fishermen to pay the monitors’ costs. Presently before the court are the parties’ cross-motions for summary judgment.^[3] Following a thorough review of the parties’ submissions, including the administrative record, the court finds that much of plaintiffs’ case is barred by the applicable statute of limitations, and even if timely filed, their claims fail on the merits. Accordingly, the defendant’s motion for summary judgment is granted and the plaintiffs’ motion is denied.

         I. Background

         Congress enacted and codified The Fishery Conservation and Management Act, Congress enacted MSA in 1976. The Court of Appeals noted that it was enacted in “[r]espon[se] to depletion of the nation’s fish stocks due to overfishing . . . .” Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 107 (1st Cir. 1997). The MSA’s codified goals were, inter alia, “to conserve and manage the fishery resources found off the coasts of the United States” and “to promote domestic commercial and recreational fishing under sound conservation and management principles.” 16 U.S.C. § 1801(b)(1), (3). Pursuant to the Act, eight regional Fishery Management Councils (“FMCs”) were established “to exercise sound judgment in the stewardship of fishery resources. . . .” Id. §§ 1801(b)(5), 1852(a)(1)(A). The FMCs are charged with preparing -- and subsequently amending, if necessary -- Fishery Management Plans (“FMPs”), which regulate conservation and management of the fishery. Id. § 1853(a)(1)(A).

         Central to this case is such an amendment: Amendment 16 (“A16”) to the Northeast Multispecies FMP. This FMP was developed jointly by the New England and Mid-Atlantic Councils in 1985, and addresses groundfish^[4] -- those that live on, in, or near the bottom of the body of water they inhabit -- which migrate between the waters within the purview of those two FMCs. Amendment 16 had its genesis in the MSA Reauthorization Act, which took effect in January 2007 and established new conservation mandates for all FMPs. Lovgren v. Locke, 701 F.3d 5, 17 (1st Cir. 2012).^[5] In response, the New England Council included in A16 the at-sea monitoring program pursuant to the Reauthorization Act’s requirement that FMPs include “measures to ensure accountability” with respect to catch limits. See 16 U.S.C. § 1853(a)(15); see also Oceana, Inc. v. Pritzker, 26 F.Supp.3d 33, 39 (D.D.C. 2014). Accordingly, commercial fishermen within the purview of the Northeast Multispecies FMP must, on occasion, be accompanied by ASMs who collect certain data related to the particular fishing trip and the fishing vessels’ catch. 75 Fed. Reg. 18262 (April 9, 2010).

         As written, A16 requires that the industry pay the costs of such monitors. Id. at 18277-78, 18291. Despite this language, however, the government had paid the ASM costs (estimated at $700-$800 per trip) throughout the program’s existence. In 2015, a court ruling required NMFS to fund a particular reporting requirement. See Oceana v. Locke, 670 F.3d 1238 (D.C. Cir. 2011); 16 U.S.C. § 1853(a)(11). This requirement depleted NMFS coffers, and in mid-2015, NMFS informed fishery sectors that the industry would have to pay the monitoring costs going forward. A rule proposed in March and finalized in May of that year made NMFS’s position official. 80 Fed. Reg. 12385 (March 9, 2015); 80 Fed. Reg. 25155 (May 1, 2015). NMFS subsequently updated sectors on the anticipated date of federal funds exhaustion, first projecting October 31 and then, in November, projecting a December 31, 2015 exhaustion. The projection was extended to March 1, but NMFS announced that funding was exhausted in mid-February 2016. Nevertheless, NMFS delayed the industry funding requirement until March 1, before recently indicating its reimbursement plan, supra, p. 2. It is the November 10, 2015, update to which this lawsuit was initially directed. See Complaint (doc. no. 1).

         II. Applicable legal standards

         A. Summary judgment

         Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A genuine dispute is one that a reasonable fact-finder could resolve in favor of either party and a material fact is one that could affect the outcome of the case.” Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015). Reasonable inferences are taken in the light most favorable to the nonmoving party, but unsupported speculation and evidence that “is less than significantly probative” are not sufficient to avoid summary judgment. Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 174 (1st Cir. 2015) (internal quotation marks omitted).

         On cross motions for summary judgment, the standard of review is applied to each motion separately. Mandel v. Bos. Phoenix, Inc., 456 F.3d 198, 205 (1st Cir. 2006) (“The presence of cross-motions for summary judgment neither dilutes nor distorts this standard of review.”). Accordingly, the court must determine “whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Adria Int'l Group, Inc. v. Ferré Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001).

         B. Administrative Procedure Act

         With some exceptions not pertinent here, Congress authorized judicial review of agency actions taken under the MSA to follow the dictates of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. See 16 U.S.C. § 1855(f). The court’s review is limited to the administrative record. Lovegren, 701 F.3d at 20. As relevant here, the court can set aside agency action only if such action is found to be: A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; B) contrary to constitutional right, power, privilege or immunity; C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or D) without observance of procedure required by law. 5 U.S.C. § 706(2). “Because the APA standard affords great deference to agency decisionmaking and because the Secretary’s action is presumed valid, judicial review, even at the summary judgment stage, is narrow.” Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 107 (1st Cir. 1997). Finally, the MSA contains a 30-day statute of limitations. 16 U.S.C. § 1855(f).

         III. Legal analysis

         Plaintiffs claim that the industry funding requirement runs afoul of the MSA in three different ways: 1) there is no statutory authority for the requirement; 2) the government failed to follow required procedural steps in implementing the funding requirement; and 3) at-sea monitoring is unconstitutional and the relevant FMPs are invalid. The defendants dispute the legal bases for those arguments, but also assert that they are barred by MSA’s 30-day limitations period. The court turns to that issue first.

         A. Statute of limitations

         The MSA requires that suits seeking judicial review of regulations and “actions” taken by the Secretary of Commerce (or her designee) be filed within 30 days after the date on which the regulations are promulgated or the action is published in the Federal Register. 16 U.S.C. § 1855(f). An “action” is further defined as “actions that are taken by the Secretary under regulations which implement a fishery management plan, including but not limited to actions that establish the date of closure of a fishery to commercial or recreational fishing.” Id. at § 1855(f)(2).

         The Secretary argues that the 30-day limitations period began to run when the regulations implementing A16 (which explicitly called for industry funding) went into effect in FY 2012 or, at the latest, in May 2015, when the Rule announcing that industry funding would begin during FY 2015 was published. Plaintiffs argue that the November 10, 2015, notice from the Northeast Fisheries Science Center that federal funds would be exhausted by the end of 2015 triggered the 30-day deadline. Therefore, plaintiffs assert, their December 9, 2015, complaint was timely filed. The court rejects plaintiffs’ argument. The court need not decide whether the original publication of A16 in 2012 started the 30-day limitations clock because it finds that the May 15, 2015 Rule explicitly announcing that industry funding would begin during the 2015-16 fishing year is the “action” referred to in 16 U.S.C. § 1855(f).

         Plaintiffs argue that the November 10 letter is a separately reviewable “action, ” i.e., implementation of the ASM funding regulation. They rely on two cases, Gulf Fishermen’s Ass’n v. Gutierrez, 529 F.3d 1321 (11th Cir. 2008) and Oregon Trollers Ass'n v. Gutierrez, 452 F.3d 1104 (9th Cir. 2006). Neither case, however, can support the weight that plaintiffs assign to them. Gulf Fishermen’s Ass’n involved a rule requiring fishing vessels to use a particular vessel monitoring system. Shortly before scheduled implementation of that rule, NMFS published another rule delaying the effective date by four months. 529 F.3d at 1322. Suit was filed within thirty days of publication of the second rule, challenging the legality of the monitoring system requirement. The court rejected the Secretary’s statute of limitations defense, observing that “the plain text of § 1855(f) does not preclude judicial review of a regulation beyond thirty days after its publication where there has been subsequent Secretarial action under the regulation.” Id. at 1323 (citing Oregon Trollers, 452 F.3d at 1113).

         While plaintiffs go to great lengths to convince the court that the November 10 email notice is an “action” within the meaning of section 1855(f), they ignore additional discussion in Gulf Fishermen’s Ass’n and that case’s explication of Oregon Trollers which is fatal to their claim. Specifically, Gulf Fishermen’s Ass’n agreed with Oregon Trollers that it is not just agency action, " in general, that is separately reviewable, but “actions, ” in particular, that are “published in the Federal Register, ” as set forth in section 1855(f). Id. at 1323-24; (quoting Oregon Trollers, 452 F.3d at 1113). Indeed, Gulf Fishermen’s Ass’n held that “a petition filed within thirty days of the publication of a Secretarial action, as defined in § 1852(f)(2)” is timely. (Emphasis added); see also Green v. Locke, No. 10-707 (MLC), 2010 WL 3614216, (D.N.J. Sept. 8, 2010) (rejecting, in the context of analyzing the MSA’s statute of limitations, plaintiffs’ claims that permit denials were ...