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J.H. Miles & Co. v. Brown

ELR Citation: 26 ELR 20883
Nos. No. 2:95cv595, 910 F. Supp. 1138/(E.D. Va., 12/04/1995)

The court holds that the Secretary of Commerce did not violate the Magnuson Fishery Conservation and Management Act (the Magnuson Act) or the Administrative Procedure Act (APA) in setting the 1995 commercial catch quotas for surf clams and ocean quahogs. The quotas were based on a Mid-Atlantic Fishery Management Council (the Council) recommendation that was based on a formula consisting of recent quota or catch data, the number of "supply years" remaining in the fisheries, and a "supply year policy." The court first holds that the three-day evidentiary hearing it held to clarify the administrative record in laymen's terms did not constitute a de novo review. The hearing was necessary in view of the massive amounts of data, much of which could not be interpreted without explanation. Moreover, because the Magnuson Act required the court to expedite the matter in every way possible when plaintiff commercial fishers requested it to, this is one of the rare circumstances in which it is not proper to remand to the agency for additional investigation or explanation. The court thus denies the Secretary's motion to limit review to the administrative record. The court next holds that the quotas did not violate the Magnuson Act's requirement that conservation and management plans prevent overfishing while achieving the optimum yield from the fishery on a continuing basis. The Secretary weighed the competing interests and acted in what he believed to be the long-term health of the fishery. The court nextholds that it was not arbitrary and capricious for the Secretary to set aside, pending further investigation, 1994 survey data that suggested a large increase in the clam and quahog populations that was at odds with 19 previous surveys. Although the question whether the Secretary should have rejected the data is close, the Secretary offered sufficient grounds for doing so, and the court may not substitute its judgment for the Secretary's.

The court next holds that it cannot find that the Council failed to use the best scientific information available by using nine as the number of supply years remaining in the surf clam fishery when calculating the quota. Its determination that nine to 12 years remained in the fishery was arbitrary and capricious, because it assumed that no new clams entered the fishery to replace those harvested. But plaintiffs cannot show that this error prejudiced them. If that range were discounted, the Secretary would have relied on a second stock assessment that included the assumptions about recruitment that plaintiffs urge, and resulted in a range of five to nine years. Using that assessment, the best result, from plaintiffs' perspective, would have been use of nine years in the formula, which was precisely what occurred. Similarly, the assumption of zero recruitment in determining that 30 supply years remained in the quahog fishery was arbitrary, but did not prejudice plaintiffs. The Council might have chosen a much lower number and still remained within the supply year range. The court also holds that plaintiffs have not met their burden of demonstrating how the quotas would have changed if the Secretary had used a different estimate of surf clam mortality.

The court next holds that the quotas did not violate the Magnuson Act's requirement that conservation and management measures promote efficiency in the use of fishery resources. The Magnuson Act does not require absolute efficiency, and the administrative record contains evidence that the Secretary and Council were cognizant of the efficiency question. The court also holds that the quotas did not violate the Magnuson Act's requirement that conservation and management measures take into account and allow for variations among, and contingencies in, fisheries, fishery resources, and catches. The court rejects plaintiffs' argument that the Secretary violated this requirement by disregarding the 1994 survey data and not leaving the 1994 quotas in place. The Magnuson Act requires flexibility, and does not require the Secretary to use the 1994 data. The court further holds that the quotas did not violate the Magnuson Act's requirement that the Secretary consider several factors, including the current stock assessment, in establishing the quotas. The Council and the Secretary considered both the 1993 and the 1995 stock assessments and considered or examined all the factors set forth in the regulation. The court next holds that the Council's adoption of the supply year policy without notice and comment did not violate the APA, because the Council is not an agency within the APA's meaning. The court finally holds that the quotas were not promulgated in violation of the Magnuson Act's requirement that the Secretary take into account particular factors when establishing a system limiting access to the fishery. The regulations promulgating the fishery management plan established such a system, and an action alleging failure to comply with that requirement was in order at that time. The annual quotas are merely the means of implementing thatsystem. Moreover, there is sufficient evidence in the record that the Secretary did consider the various factors in establishing the 1995 quotas.

Counsel for Plaintiffs
Waverley Lee Berkley III
McGuire, Woods, Battle & Boothe
9000 World Trade Ctr.
101 W. Main St., Norfolk VA 23510
(804) 640-3700

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