General Category Scallop Fishermen v. Secretary, United States Department of Commerce
635 F.3d 106
3rd Cir.2011Background
- This appeal concerns access to the Atlantic Sea Scallop Fishery and NMFS's Amendment 11 with a control date affecting general category permitters.
- NEFMC proposed a control date (Nov 1, 2004) as part of limiting general category access; NMFS published an ANPR recognizing the date as a prospective trigger.
- Amendment 11 replaced general category with limited-access formats (IFQ, NGOM, incidental) and set eligibility criteria based on prior landings.
- Many appellants obtained general category permits after the control date, leaving them largely excluded from LAGC permits under Amendment 11.
- NMFS relied on its dealer data to determine eligibility and allocated catch between LAGC and limited-access fleets; an appeals process was created for data challenges.
- The district court granted summary judgment for defendants on all claims; the Third Circuit reviews under the APA and Magnuson-Stevens Act standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Control date treated as rulemaking under APA | Gen. Category fishermen argue NEFMC/NOAA violated APA by adopting a control date. | ANPR control date was not a final rule; it was a proposal subject to subsequent rulemaking. | Control date was not a rule; district court's ruling affirmed. |
| Public hearings in appropriate areas | NMFS/NEFMC failed to hold hearings in all affected areas per Magnuson-Stevens §1852(h)(3). | 35 meetings across relevant regions satisfied timing and location requirements. | Sufficient geographic outreach; not required to hold hearings in every state. |
| National Standard 2—best scientific information available | NMFS data used to determine 1,000 lb threshold were flawed and should be cross-checked. | Best available science supports using dealer data; data flaws acknowledged but not fatal. | Use of NMFS dealer data for eligibility rational and supported by record. |
| National Standard 5—non-economic objectives | Amendment 11 is primarily economic allocation with little non-economic consideration. | Amendment 11 addressed biological/ecological/social objectives and mortality control. | NS5 satisfied; non-economic objectives adequately considered. |
Key Cases Cited
- North Carolina Fisheries Ass'n, Inc. v. Gutierrez, 518 F.Supp.2d 62 (D.D.C. 2007) (court approved use of imperfect science when appropriate)
- Ace Lobster Co., Inc. v. Evans, 165 F.Supp.2d 148 (D.R.I. 2001) (agency may rely on imperfect data where necessary)
- Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (U.S. 1989) (judicial deference to agency expert determinations)
- C & W Fish Co., Inc. v. Fox, 931 F.2d 1556 (D.C. Cir. 1991) (reasonableness review of data-based decisions)
- Alaska Factory Trawler Ass'n v. Baldridge, 831 F.2d 1456 (9th Cir. 1987) (National Standard 5 considerations and non-economic factors)