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Southern Offshore Fishing Ass'n v. Daley

Citation: 28 ELR 21183
(02/24/1998)

The court holds that the Secretary of Commerce complied with the Magnuson-Stevens Fishery Conservation and Management Act in setting commercial harvest quotas for Atlantic sharks in its fishery management plan (FMP) for 1997, but violated the Regulatory Flexibility Act (RFA) in determining that the quotas would not have a significant economic impact on small businesses.

The court first holds that the plaintiff shark fishermen's 16 U.S.C. §§ 1854(g)(1)(C) and 1854(g)(1)(G)(ii) claims are justiciable. The sections neither prescribe an agenda or formula for foreign policy nor otherwise intrude on any government function that the U.S. Constitution assigns exclusively to the executive branch. Rather, the sections require the Secretary to pursue only domestic action on a subject of domestic concern. The court, however, then holds that two of the fishermen's § 1854(g)(1) claims are nonjusticiable political questions. Section 1854(g)(1)(F) requires the Secretary to diligently pursue, through international entities, comparable international fishery management measures with respect to fishing for highly migratory species, and § 1854(f)(1)(G)(i) requires the Secretary to promote the international conservation of sharks.

The court next holds that the Secretary complied with § 1854(g)(1)(C). In issuing the shark quotas, the Secretary evaluated the effects of conservation and management measures on participants in the affected fisheries and sought to minimize any disadvantage to U.S. fishermen in relation to foreign competitors. The Secretary specifically considered and rejected the alternative of closing altogether the U.S. shark fishery. Further, the Secretary is required to minimize any disadvantage to U.S. fishermen only to the extent practicable, and the Secretary must balance this obligation with his mandate to conserve and rebuild overfished stocks.

The court next holds that in light of scientific uncertainty, the Secretary's process of setting the 1997 quotas was not arbitrary or capricious under the Administrative Procedure Act. Likewise, the court holds that the Secretary fulfilled his Magnuson Act duty to set a quota that prevents overfishing while achieving optimum yield on a continuing basis. Moreover, the court holds that the Secretary adopted the quotas based on the best scientific information available to him. The administrative record elaborates strenuous disagreement among scientists, but describes no abuse of discretion or caprice emanating from the Secretary.

Last, the court holds that the Secretary violated the RFA in certifying that the FMP did not have a significant economic impact on a substantial number of small entities. The record demonstrates that the 1997 quotas will significantly injure the prospects of shark fishermen. In addition, the record does not support the Secretary's attempt to justify its re-certification on the basis that shark fishermen can effortlessly transfer their fishing efforts to other fishing stocks. Thus, the Secretary's RFA determinations are remanded.

Counsel for Plaintiffs
Charles P. Schropp
Schropp, Buell & Elligett
401 E. Jackson St., Ste. 2600, Tampa FL 33602
(813) 221-2600

Counsel for Defendant
Mark A. Brown
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000