United States District Court, D. New Hampshire
David Goethel, et al.
Penny Pritzker, et al. Opinion No. 2016 DNH 127
R. Bolinder, Esq.
L. Marshall, Esq.
P. Mulvey, Esq.
Stephen S. Schwartz, Esq.
A. Chabot, Esq.
C. Wheat, Esq.
Allison C. Finnegan, Esq.
N. Laplante United States District Judge
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"). 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 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.
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. 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
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.
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 -- 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). 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).
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).
Applicable legal standards
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).
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).
Administrative Procedure Act
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).
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.
Statute of limitations
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).
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).
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
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 ...