Natural Resources DefenseCouncil, Inc. v. Daley

No. 99-5308 (209 F.3d 747) (D.C. Cir. April 25, 2000)

ELR Digest

The court holds that the National Marine Fisheries Service (NMFS) did not comply with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) or its regulations when it promulgated the 1999 summer flounder fishing quota. The court first holds that the summer flounder fishing quota is unreasonable and, thus, violates step two of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 14 ELR 20507 (1984). The NMFS' quota for the 1999 summer flounder harvest so completely diverges from any realistic meaning of the Magnuson-Stevens Act that it cannot survive scrutiny under Chevron step two. To meet its statutory and regulatory mandate the NMFS must have a fairly high level of confidence that the quota it recommends will not result in a fishing mortality rate greater than the target mortality rate. At the very least, this means that to assure the achievement of a target mortality rate to prevent overfishing and to be consistent with the fishery management plan, the total allowable landings (TAL) for the year must have at least a 50 percent chance of attaining a fishing mortality rate of 0.24. The disputed 1999 TAL had at most an 18 percent likelihood of achieving the target mortality rate. Viewed differently, the TAL had at least an 82 percent chance in resulting in a mortality rate greater than the target mortality rate. Moreover, there is nothing in the record to indicate that the NMFS' additional measures of increased fishnet mesh size and voluntary state allocation of the directed commercial fishery to incidental catch would improve the level of confidence so as to assure a reasonable likelihood of achieving the target mortality rate. There is no meaningful data to support the assertion that a large mesh size would reduce the number of undersized fish caught, and the NMFS conducted no analysis whatsoever to determine the likely effect of this measure on the probability of meeting the target mortality rate. In addition, at least some of the incidental catch proposal's assumed positive effects were already accounted for in the 18 percent starting probability. Also, the NMFS' incidental catch proposal is merely a recommendation to the states, not a mandatory requirement. Therefore, the quota is reversed and remanded to the NMFS to set a new quota.

The full text of this decision is available from ELR (9 pp., ELR Order No. L-211).

Counsel for Appellants
Monica B. Goldberg
Earth Justice Legal Defense Fund
1625 Massachusetts Ave. NW, Ste. 702, Washington DC 20036
(202) 667-4500

Counsel for Appellees
James Eichner
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[30 ELR 20533]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]