When Economics and Conservation Clash: Challenges to Economic Analysis in Fisheries Management

Kristen M. Fletcher

The author is Director, Mississippi-Alabama Sea Grant Legal Program. She received her LL.M., Environmental and Natural Resources Law, Northwestern School of Law, Lewis and Clark College (1998); J.D., University of Notre Dame Law School (1996); B.A., Auburn University (1993). This Article is a result of research sponsored in part by the National Oceanic and Atmospheric Administration, the U.S. Department of Commerce under Grant Number NA86RG0039-4, the Mississippi-Alabama Sea Grant Consortium, and the Mississippi Law Research Institute at The University of Mississippi Law Center. The views expressed herein are the author's own.

[31 ELR 11168]

In recent years, the National Marine Fisheries Service (NMFS) and Secretary of Commerce have accumulated hundreds of lawsuits challenging fisheries management rules made by the agency. Litigation is not new to these parties; controversy has pervaded fisheries management since the 1976 passage of the primary U.S. fisheries statute—the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act).¹ However, the magnitude of litigation has reached historic levels in the years since its 1996 Amendments.

One contributing factor for the increase is the requirement to conduct economic analyses of fisheries rules and minimize the economic effects that the rules have on fishing communities. In 1996, the Magnuson Act was amended to require the Secretary of Commerce to conduct economic analyses that balance the obligation to manage fishery resources with the potential adverse effects on fishing communities and (to the extent practicable) minimize those adverse effects. Along with the Magnuson Act, the Regulatory Flexibility Act (RFA)² was amended the same year, expanding the analysis that federal agencies must complete to determine the effect of proposed regulations on small businesses. While some petitioners choose to challenge regulations under only one of these statutes, the determination of economic effects under each law is intricately linked. Recent lawsuits reveal the tightrope that the Secretary of Commerce and the NMFS walk between science, economics, and conservation. Although the resulting judicial decisions are contradictory and leave certain questions of economic survival of a fishery or a fishing community ripe for high court review, they can also provide a necessary roadmap for the Secretary and the agency in performing effective assessments of economic impacts.

Economic Analysis in Fisheries Management

Reacting to heavy fishing of foreign vessels off the U.S. coasts, Congress passed the Magnuson Act to eliminate foreign fishing in the U.S. Exclusive Economic Zone. The Act successfully lowered the foreign vessel effort³ but did little to address the continued domestic overfishing. The Act established eight regional fisheries management councils (Councils), which were directed by the statute to create fisheries management plans (FMPs) for each federally managed fish species in order to manage the stocks.⁴ The Councils were instructed to meet the larger goal of preventing overfishing while still achieving optimum yields from each fishery.⁵ This was done through varying techniques including seasonal closures, catch allocations, size limits, and gear restrictions.⁶

The Magnuson Act contains guidelines for the Councils and the NMFS in the form of National Standards, often requiring decisions to maintain fishing quotas in the face of declining stocks. One critic noted that although "the Magnuson Act, as envisioned by its sponsors, was primarily a conservation-oriented statute, focused upon the biological aspects of managing fish stocks, … the focus of managers has been on the social and economic interests of the users."⁷ The 1996 Amendments codified this notion with the addition of National Standard 8, which states:

Conservation and management measures shall, consistent with the conservation requirements of this Act (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities.⁸

It is important to note that the implementation of National Standard 8 "requires that an FMP take into account the importance [31 ELR 11169] of fishery resources to fishing communities" but must occur within the context of the conservation requirements of the Magnuson Act. Therefore, the regulations adopted in accordance with National Standard 8 explains that "deliberations regarding the importance of fishery resources to affected fishing communities, therefore, must not compromise the achievement of conservation requirements and goals of the FMP."⁹ In addition, "where two alternatives achieve similar conservation goals, the alternative which provides the greater potential for sustained participation of communities and minimizes the adverse economic impacts is preferred."¹⁰ The cases discussed below show the prominent tension between minimizing economic impacts and carrying out the conservation mandate of the Magnuson Act.

As a federal agency, the NMFS must also evaluate the effect that new regulations will have on small business entities in order to comply with the RFA. When promulgating a proposed regulation in the Federal Register, agencies must perform an initial regulatory flexibility analysis discussing the new rule's impact on small entities. Likewise, when an agency promulgates a final rule, it must perform a final regulatory flexibility analysis which must contain: (1) a statement of the need for, and objectives of, the rule; (2) a summary of the significant issues raised by public comments, the agency's assessment of such issues, and a statement of any changes made in the proposed rule as a result of the comments; (3) a description and estimate of the number of small entities to which the rule will apply; (4) a description of the projected reporting, recordkeeping, and other compliance requirements of the rule; and (5) a description of the steps the agency has taken to minimize the significant economic impact on small entities.¹¹ In the alternative, the Secretary may grant a certification that the final rule will not have a significant impact on small entities, after providing the factual basis for the certification.¹²

Challenges to Economic Analysis

The call for minimizing economic impacts under both the Magnuson Act and the RFA has driven representatives of fishing communities to challenge fisheries regulations, including the setting of total allowable catch¹³ and fishing seasons, claiming that the Secretary's evaluation was inadequate or incorrect. A review of the key cases addressing the requirements under the Magnuson Act and the RFA follows.

North Carolina Fisheries Ass'n v. Daley¹⁴

One of the earliest cases reviewing the Secretary's compliance with each statute resulted from a successful challenge by North Carolina commercial fishermen to the Secretary's 1997 summer flounder fishery quota. Since the adoption of the FMP for commercial summer flounder in 1988, numerous amendments were passed creating rebuilding schedules and season quotas. When an assessment of the 1995 fishing season revealed that North Carolina fishermen had overfished by close to 600,000 pounds, the 1997 quota was reduced to take into account the overage. The result was a low 1997 quota, which the fishermen successfully challenged for not considering effects on the coastal communities.

In the first case, the U.S. District Court for the Eastern District of Virginia found that the then-Secretary of Commerce William M. Daley, had not fulfilled his responsibility under either statute. Rather than undergo full economic analysis under the RFA, he certified that there would be no significant economic impact because the 1997 quota was at the same level as the 1996 quota. The Secretary used this rationale to claim compliance with the Magnuson Act, as well. The court rebuked the rationale as flawed, ordering an economic analysis due to the "devastating" effect the quota had on the North Carolina fishermen. Upon producing the economic analysis, the North Carolina Fisheries Association again challenged it as insufficient under both the Magnuson Act and the RFA.

The Secretary claimed that the economic analysis completed for the 1997 summer flounder quota fulfilled the responsibility under National Standard 8 because it found that the quota regulations posed no threat to the sustained participation of North Carolina's fishing communities. The court, however, issued a strong condemnation finding that the Secretary "completely abdicated his responsibilities under the Magnuson Act."¹⁵ First, it faulted the narrow methodology of the Secretary's analysis, noting that the lack of detail foreclosed any meaningful examination of economic impacts. Specifically, the analysis failed to consider the population size of communities, the significance of the fishing industry on local economies, or what constitutes a North Carolina fishing community. The court dismissed the Secretary's argument that such detail would place an undue burden on agency resources by citing the Internet as a method to collect data in an efficient manner.¹⁶

Second, the court noted that the Secretary departed from the empirical findings and "then justified that departure with remarks that are an affront to one's native intelligence."¹⁷ It found that the Secretary had ignored the mounting statistical evidence that over one-half of North Carolina-based vessels would be impacted by 5% or more, that 43% of the vessels would suffer revenue reductions of more than 25%, and that at least one-third were projected to suffer a loss of revenue of 50% or more.¹⁸ Finally, the court faulted the Secretary for claiming that his own regulations which conform to the goal of the Magnuson Act to rebuild overfished fisheries override his statutory duty under National Standard 8 to minimize adverse economic impacts on communities because "the purposes of National Standard 8 do not concern fishery conservation in isolation."¹⁹

The court also faulted the methodology used by the Secretary in determining that there would be no significant impact on small business entities under the RFA, reproaching the agency for omitting known information, for considering [31 ELR 11170] the entire state of North Carolina as a single fishing community, and for claiming that present economic losses are alleviated by past revenues earned by overfishing. Finally, the court admonished the Secretary that there would be "no economic effect when every commercial fisherman in the state is in bankruptcy."²⁰ Ultimately, the court set aside the 1997 summer flounder quota by over 399,000 pounds and prohibited the Secretary from considering these as overfishing in setting a quota for subsequent years.

Southern Offshore Fishing Ass'n v. Daley²¹

The U.S. District Court for the Middle District of Florida conducted a similar review of commercial harvest quotas established for Atlantic sharks. The NMFS certified that the 1997 Atlantic shark quota reduction would not affect small entities because "shark fishermen are nimble and adaptive in their fishing operations [and] the shark fishing season was historically too brief to permit a prudent fisherman to rely exclusively on annual revenue from shark fishing."²² Finding that the NMFS "inconsistently characterizes the universe of shark fishermen in the record" and that the analysis failed to contain adequate explanation of gross revenue figures, the court found the analysis inadequate, stating "one can no more readily change a bass boat to a flats boat than change directed shark fishing paraphernalia to equipment for profitable tuna fishing."²³ With little analysis, the court determined that the analysis was inadequate under the Magnuson Act, as well. The court directed the agency to undertake a rational consideration of the economic effects and potential alternatives to the 1997 quotas.

Like the North Carolina Fisheries cases, the parties in Southern Offshore found themselves in court again. Even though the NMFS conceded that the quota reductions caused significant economic hardship, its analysis of economic effects again failed to correctly define the universe of affected parties. As in the prior analysis, the NMFS relied on the pool of more than 2,000 individuals who held shark fishing permits to constitute the class of those potentially affected by the quotas. The court noted that the agency "adheres to this view despite the undeniable fact that the clear majority (approximately three-fourths) of the permittees are not expected to land even one shark" and in contrast to a 1998 NMFS document which acknowledged that only a modest number of fishers historically depend on shark stocks.²⁴ In a display of condescension similar to that employed by Judge Robert Doumar in North Carolina Fisheries, Judge Steven D. Merryday criticized the agency's inconsistent decisions. For example, he expounded that "I cannot allow the [NMFS] to casually nullify either Congress' express command or the court's studied efforts by means of either imprudent carelessness or willful evasion."²⁵ The court, however, ultimately maintained the 1997 quota levels and remanded proceedings to a special master.

A.M.L. International, Inc. v. Daley²⁶

Interestingly, the two cases discussed above centered around the impacts on fishing communities rather than impacts on the fisheries, and left little room for discussion of agency discretion. In A.M.L. International, the New England and Mid-Atlantic companies that harvested, processed, and exported spiny dogfish challenged the implementation of the spiny dogfish FMP. From the late 1980s, commercial landings of spiny dogfish increased tenfold, with landings averaging 40 million pounds each year since 1990. The spiny dogfish was designated as overfished on April 8, 1998. In order to rebuild the stock, the FMP recommended a one-year "exit fishery" with a quota of 22 million pounds. That year was to be followed by four years of reduced quotas, with a projected quota to begin at 2.9 million pounds. The NMFS' analysis acknowledged that the quota restrictions contained in the plan would "likely have the effect of shutting down the spiny dogfish industry for at least the next five years."²⁷

The plaintiffs claimed that the NMFS failed to comply with National Standard 8 because there was no attempt to minimize economic impacts and the analysis' demographics and descriptions of impacts were inadequate. In addition, the plaintiffs charged that the consideration of alternatives was insufficient and that the plan would have the effect of shutting down an entire industry. However, the court found evidence of adequate analysis in the administrative record, which included consideration of 12 alternative schemes. In addition, the court dismissed the plaintiffs' final contention, explaining that a rule which effectively shuts down an industry is not, in itself, a violation of National Standard 8.

Similarly, in the court's analysis of the RFA, it found that the NMFS properly assessed significant alternatives to the quota reductions and gave explicit consideration to less onerous options. However, because "Congress has emphasized that the RFA should not be construed to undermine other legislatively mandated goals," the NMFS was responsible for rebuilding the fishery within a certain period of time, as mandated by the Magnuson Act.²⁸ Judge Edward F. Harrington concluded that while temporary restrictive measures could be economically harmful, "a collapsed fishery will not be viable for decades, creating drastically worse economic consequences than the temporary measures contained in the [spiny dogfish] FMP."²⁹

Blue Water Fisheries Ass'n v. Mineta³⁰

A few months after the A.M.L. International decision, Judge Richard W. Roberts of the U.S. District Court for the District of Columbia upheld a variety of NMFS actions implementing the 1999 highly migratory species FMP for Atlantic tunas, swordfish, and sharks. Highly migratory species include tuna species, marlin, oceanic sharks, sailfishes, and [31 ELR 11171] swordfish,³¹ and are generally sought using longlines—long fishing lines with a series of leaders that connect to individual hooks at specific depths. The plaintiffs, individuals, and associations involved in the longline industry, challenged four NMFS actions as arbitrary and capricious—including limits on Atlantic bluefin tuna per fishing trip, an area ban on fishing during June, annual quotas for specific types of sharks, and a requirement that all pelagic longline fisheries install a vessel monitoring system (VMS) on their vessels. The court found that the NMFS was in compliance with National Standard 8 for each claim except the VMS requirement.

The NMFS successfully relied upon the administrative record to show that its actions were necessary to comply with conservation and management mandates under the Magnuson Act and were aimed at prevention with the least economic impacts possible. Regarding the proposed closure during the month of June, the court recognized the NMFS' "discretionary authority to minimize the June closure's impact 'to the extent practicable.'"³² However, because the record did not show that the NMFS had given adequate considerations to alternatives to the VMS regulations, the court invalidated that portion of the rule.

The plaintiffs claimed that the NMFS violated the RFA by failing to define the relevant universe of fishers who depend on revenue from sharks or Atlantic bluefin tuna, and therefore, could not have performed adequate economic analyses. Unlike in Southern Offshore Fishing, the NMFS identified several possible universes that could be affected by the actions, and narrowed the group into permit holders who caught at least one shark in 1997 and holders who depend upon particular shark fisheries for their livelihoods. Furthermore, the court found that the NMFS complied with the RFA by responding to relevant public comments. The agency, according to the court, recognizes the increase in costs for users while following the conservation mandate of the Magnuson Act.

Associated Fisheries of Maine, Inc. v. Daley³³

It is worth noting that one of the few federal courts of appeal decisions appraising the NMFS economic analyses is the 1997 Associated Fisheries case. In this case, the First Circuit Court of Appeals addressed an economic analysis conducted prior to the 1996 Amendments of the Magnuson Act and the enactment of the RFA (the amendments were interpreted in both A.M.L. International and Blue Water). In Associated Fisheries, the court noted that the intent of the RFA was not to limit regulations having adverse economic impacts, but instead to have the agency focus special attention on possible impacts. The court was confronted with challenges to amendments that sought to eliminate overfishing of cod, haddock, and yellowtail flounder stocks by reducing permissible fishing over a five- to seven-year period. At the time of the amendments, haddock and yellowtail stocks had collapsed and cod stocks were near collapse.³⁴ In finding that the Secretary had fulfilled his obligation under the RFA, the court pointed to the consideration of other alternatives and their impacts on small entities, the Secretary's response to comments submitted by affected fishermen, and the elimination of a provision in order to ease concerns of small vessel owners.³⁵ The court upheld the balance struck by the Secretary and noted that "it is evident that rapidly deteriorating conditions required the Secretary to fish in troubled waters."³⁶ While this decision did not analyze the current requirements of the Magnuson Act or the RFA, its rationale is still relied upon in similar challenges.

Natural Resources Defense Council, Inc. v. Daley³⁷

The final case for discussion provides an interesting twist in the analysis of National Standard 8. The Natural Resources Defense Council filed suit claiming (among other violations) that the NMFS failed to meet obligations of National Standard 1 under the Magnuson Act, which requires that "conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry."³⁸ The court responded to the challenge by noting an inconsistency between National Standard 1 and National Standard 8. Recognizing that the NMFS must "reconcile" the two provisions without congressional direction on the issue, the court gave broad deference to the agency, "whose task it is to resolve competing interests 'which Congress itself inadvertently did not resolve, or intentionally left to the [sic] resolved by the agency charged with the administration of the statute in light of everyday realities.'"³⁹

Upon appeal, the D.C. Circuit rejected the district court's contention that National Standard 1 and National Standard 8 leave the NMFS in a dilemma of balancing inconsistent goals: "As an initial matter, we reject the District Court's suggestion that there is a conflict between the [Magnuson] Act's expressed commitments to conservation and to mitigating adverse economic impacts."⁴⁰ Instead, the court cited the statute's "plain language and the regulations issued pursuant to the statute" to conclude that "it is only when two different plans achieve similar conservation measures that the Service take into consideration adverse economic consequences."⁴¹ Finding that the first priority of the Magnuson Act is conservation, the court reviewed the proposed quota in light of its effect on fishery conservation and concluded the "1999 quota is unreasonable, plain and simple."⁴²

A Roadmap for Analysis

The primary cases analyzing the NMFS' compliance with the economic analysis provisions of the Magnuson Act and the RFA provide a roadmap, even if drawn somewhat [31 ELR 11172] sketchy, for economic analyses and the balancing of conservation and economic hardship under the statutes.

Defining the Universe

The NMFS Office of Sustainable Fisheries developed a set of guidelines for economic analysis of fisheries management regulations, explaining that "the first step in the development of a fishery management plan or a regulatory action for a federally managed fishery … is a description of the biological, economic, social, and cultural characteristics of the fishery."⁴³ In order to begin an analysis of the effects on fishing communities, as directed by the Magnuson Act, and effects on small business entities, as directed by the RFA, the appropriate "universe" of parties must be determined. The guidelines note that "at a minimum, the analyst is advised to distinguish between small entities that, while subject to regulation, may or may not be affected because they may not be an active fishery participant."⁴⁴

From the cases, it is clear that the agency cannot merely accept all permit holders or an entire geographic area as the universe for analysis purposes. As noted in the decisions, to accept every individual who pays a $ 10 fee to acquire a permit as an essential member of the group to be affected is an oversimplification of the necessary process and will result in an improper analysis. In addition, while the statutory language of the Magnuson Act gives little guidance on what constitutes a fishing community, the regulations explain that a "fishing community is a social or economic group whose members reside in a specific location and share a common dependency on commercial, recreational, or subsistence fishing or on directly related fisheries-dependent services and industries."⁴⁵ Consistent with this definition, courts have concluded that the acceptance of an entire state to represent one fishing community would contradict the goal of economic analysis under National Standard 8. Rather, evaluation of the actual effort of permit holders is necessary to adequately convey the number of fishers that will be affected by a restrictive rule. This may include, as shown in Blue Water Fisheries Association, that a number of populations must be considered, including both more and less aggressive members engaged in a fishery. Determining the class is necessary under both the RFA and the Magnuson Act, but the result must be more than a simple calculation of permit holders.

Alternative Actions

The objective of economic analysis is to describe the economic effects of the various alternatives. Neither the RFA nor the Magnuson Act demands a particular result. The NMFS guidelines explain that the

RFA does not contain any decision criteria; instead, the purpose of the RFA is to inform the agency, as well as the public, of the expected economic impacts of the various alternatives contained in the FMP or amendment … and to ensure that the agency considers alternatives that minimize the expected impacts while meeting the goals and objectives of the FMP and applicable statutes.⁴⁶

The agency must review a sufficient number of viable alternatives to ascertain whether or not the chosen alternative offers the least economic hardship. While there is no magic number offered, the decisions reveal that certifying the decision without considering any other alternatives other than the proffered one and the status quo is inadequate. On the other hand, the examination of 12 different options is more than adequate. It can also be easily deduced from the decisions that a proper level of detail regarding each option considered will be necessary, along with an explanation of why an alternative is not acceptable, especially if it has less economic impact.

Effects on the Parties

Arguably the most difficult component in the economic analysis is determining the effects on the parties and how to minimize them. In assessing the effects on fishing communities or small businesses, the analysis must include a number of characteristics, such as potential changes in prices or quantities produced; the change in revenues and operating costs in response to changes in market, biological conditions and regulations; fleet size and composition change; and the response of the stock or stocks of living marine resources to the proposed regulation.⁴⁷

The Magnuson Act requires that the effects discussed above be minimized to the extent practicable. In several cases, the conservation mandate was shown to take priority over minimization of economic impacts under the Magnuson Act and the RFA. It appears that when the economic analyses took priority over conservation in a judicial decision, the challenged analyses lacked sufficient detail to determine economic impacts of the measures or evaluate how effective the measures would be in terms of restoring fish stocks. Clearly, analyses must take into account all known information regarding conservation techniques as well as economic information about the fishers and processors.

Gathering and determining the best available information, however, remains a challenge in fisheries management. As the opinions show, fisheries managers may be faced with the options of either temporarily closing a fishery in order to (hopefully) rebuild stocks or maintaining a fishery at current harvest levels while risking the total collapse of the industry just a few years later. Often, regulations and the science they are based on are condemned. Critics explain that "we've got a problem with relying on statistical uncertainties that will damage an industry that contributes several hundred million dollars to the Texas economy. We're supposed to be running these fisheries like a business and you don't run a business by going out of business."⁴⁸ There are, of course, no guarantees that the regulation, whether restrictive or not, will enhance the condition of the stock. The decidedly inexact science of fisheries management becomes especially important at these junctures.

[31 ELR 11173]

The Future of Economic Analysis

As a result of these rulings, the bar for economic analyses has risen. The tension present in the attempt to strike a balance between competing conservation and economic concerns has been made transparent. Courts will continue to struggle in determining when the Secretary's and the NMFS' actions taken in furtherance of fisheries management deserve deference, and when they are merely actions that, in the words of Judge Doumar, are "a buzzsaw to mow down whole fishing communities in order to save some fish."⁴⁹ Nevertheless, the decisions offer a useful roadmap for thorough analyses that can provide constructive evaluation of impacts on small entities and fishing communities while also withstanding judicial challenges.

1. 16 U.S.C. §§ 1801-1882. The statute was originally called the Fishery Conservation and Management Act, renamed the Magnuson Fishery Conservation and Management Act in 1980, and renamed the Magnuson-Stevens Fishery Conservation and Management Act in 1996.

2. 5 U.S.C. §§ 601-612.

3. Foreign catches in the U.S. Exclusive Economic Zone in 1989 were on the order of 1% to what they had been in 1976 and commercial domestic landings doubled. JOHN P. WISE, FEDERAL CONSERVATION & MANAGEMENT OF MARINE FISHERIES IN THE UNITED STATES vii (1991).

4. 16 U.S.C. §§ 302-303.

5. See id. § 1851(a)(1). Optimum yield is that which provides the "greatest overall benefit to the Nation with particular reference to food production and recreational opportunities," and is based on the maximum sustainable yield (MSY) of a fishery. Id. § 1802(18). MSY is the largest average catch that can be captured from a stock under existing environmental conditions. See NATIONAL RESEARCH COUNCIL, IMPROVING FISH STOCK ASSESSMENTS (1998).

6. For a review of these techniques and how they fit into fisheries management, see Shi-Ling Hsu & James E. Wilen, Ecosystem Management and the 1996 Sustainable Fisheries Act, 24 ECOLOGY L. Q. 799 (1997).

7. Eldon V.C. Greenberg, The Magnuson Act After Fifteen Years: Is It Working? at B-9 (paper presented at the 1992 National Fishery Law Symposium, Washington, D.C., Oct. 15-16, 1992).

8. 16 U.S.C. § 1851(a)(8) (emphasis added).

9. 50 C.F.R. § 600.345(b).

10. Id.

11. Id. §§ 603, 604 (2001).

12. Id. § 605(b).

13. This is also referred to as "total allowable landings."

14. 16 F. Supp. 2d 647 (E.D. Va. 1997); 27 F. Supp. 2d 650 (E.D. Va. 1998).

15. 27 F. Supp. 2d at 662.

16. Id. at 664.

17. Id. at 662.

18. Id. at 665.

19. Id. at 666.

20. Id. at 661.

21. 995 F. Supp. 1411, 28 ELR 21183 (M.D. Fla. 1998); 55 F. Supp. 2d 1335 (M.D. Fla. 1999).

22. 995 F. Supp. at 1434, 28 ELR at 21192.

23. Id. at 1436, 28 ELR at 21193. The court went on to declare that "to suggest otherwise is to transgress the knowledge and common sense that are insinuated into reality; it is a contrivance that imports arrogance." Id.

24. 55 F. Supp. 2d at 1340.

25. Id. at 1347.

26. 107 F. Supp. 2d 90 (D. Mass. 2000).

27. Id. at 93.

28. Id. at 105.

29. Id. at 103.

30. 122 F. Supp. 2d 150 (D. Me. 2000).

31. 16 U.S.C. § 1802(20).

32. 122 F. Supp. 2d at 164.

33. 127 F.3d 104, 28 ELR 20042 (1st Cir. 1997).

34. Id. at 108.

35. Id. at 116. It is important to note that the court analyzed the Secretary's compliance with the RFA as it existed prior to the passage of the 1996 Amendments. The amendments altered some of the requirements found in § 604(a).

36. Id. at 118.

37. 62 F. Supp. 2d 102 (D.C. Dist. 1999), rev'd, 209 F.3d 747, 30 ELR Digest 20532 (D.C. Cir. 2000).

38. 16 U.S.C. § 1851(a)(1).

39. 62 F. Supp. 2d at 107-08.

40. 209 F.3d at 753, 30 ELR Digest at 20532.

41. Id.

42. Id. at 754, 30 ELR Digest at 20532.

43. NMFS, OFFICE OF SUSTAINABLE FISHERIES, GUIDELINES FOR ECONOMIC ANALYSIS OF FISHERY MANAGEMENT ACTIONS 3 (2000) [hereinafter NMFS GUIDELINES].

44. Id. at 26.

45. 50 C.F.R. § 600.345(b)(3).

46. NMFS GUIDELINES, supra note 43, at 23-24.

47. Id. at 5.

48. Texas Parks & Wildlife Dep't, Texas to Reopen Red Snapper Fishing in State Waters, 31 TEXAS SHORES 24 (1999) (quoting Andrew Sansom, the Executive Director of the Texas Parks and Wildlife Department).

49. North Carolina Fisheries Ass'n v. Daley, 27 F. Supp. 2d 650, 667 (E.D. Va. 1998).