10 F. Supp. 3d 208
D. Mass.2014Background
- Massachusetts and New Hampshire sued the Secretary of Commerce/NMFS to vacate Frameworks 48 and 50, which set FY2013–2015 specifications (OFLs, ABCs, ACLs) for the New England Multispecies (Groundfish) Fishery under the Magnuson–Stevens Act (MSA).
- FW50 imposed historically large reductions in catch limits (notably Gulf of Maine and Georges Bank cod) based on stock assessments showing many stocks overfished and subject to overfishing; FW48 updated stock status and some management measures.
- The challenged specifications applied the ACL/ABC/OFL mechanism and ABC control rule adopted in Amendment 16 (to implement the 2006 MSA Reauthorization requirements for ACLs and accountability measures).
- Massachusetts alleged violations of National Standards 2 and 8 (best science and consideration of fishing-community impacts); New Hampshire intervened asserting a National Standard 1 claim (prevent overfishing while achieving optimum yield).
- The district court reviewed agency action under the APA (arbitrary and capricious standard), gave deference to NMFS’ technical judgments, and held oral argument before granting defendants’ summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| National Standard 1 — stock-by-stock ACLs and OY | NH: NMFS used a mechanistic formula prioritizing conservation, ignored social/economic OY factors and inter-stock impacts. | NMFS: FW50 merely applied Amendment 16's stock-by-stock ACL/ABC/OFL mechanism; approach upheld by First Circuit in Lovgren. | Court: Rejected NH's claim; Lovgren forecloses challenge and NMFS reasonably considered economic mitigations. |
| National Standard 2 — use of F40% proxy for MSY reference points | Mass.: Proxy (F40%) makes stocks appear overfished and is scientifically unreliable. | NMFS: Proxy was identical to prior assessments, peer-reviewed (SAW/SARC) found no compelling reason to change; thus it was best available science. | Court: Held use of F40% proxy did not violate Nat. Std. 2. |
| National Standard 2 — adequacy of Bigelow survey data (side-by-side trawl issue) | Mass.: NMFS should have run side-by-side industry/commercial to check whether Bigelow under-sampled, so data might be flawed. | NMFS: Conducted calibration and comparative studies; not required to collect additional data or pursue every methodology; no superior data ignored. | Court: Denied challenge — NMFS relied on best available science and was not required to obtain perfect data. |
| National Standard 8 — consideration of fishing-community economic impacts and alternatives | Mass.: EA compared preferred alternative only to a no-action alternative that itself would violate MSA; NMFS failed to consider less-restrictive ACLs or alternatives to reduce economic harm. | NMFS: ACLs cannot exceed SSC recommendations; Council limited management-uncertainty buffers consistent with science; NMFS considered and implemented mitigation (higher SSC ABC option, limited carryover, other measures). | Court: Held NMFS satisfied Nat. Std. 8 — must subordinate socioeconomic considerations to conservation and NMFS reasonably evaluated/mitigated economic impacts. |
Key Cases Cited
- Lovgren v. Locke, 701 F.3d 5 (1st Cir. 2012) (upholding stock-by-stock ACL approach and deference to agency balancing under National Standards)
- Gulf of Maine Fisherman’s Alliance v. Daley, 292 F.3d 84 (1st Cir. 2002) (discussing framework adjustments and emergency management)
- Conservation Law Found. v. Evans, 360 F.3d 21 (1st Cir. 2004) (MSA review under APA and agency obligations)
- Little Bay Lobster Co., Inc. v. Evans, 352 F.3d 462 (1st Cir. 2003) (National Standard 8 is subject to a rule of reason; distinction from NEPA/RFA procedures)
- Flaherty v. Bryson, 850 F. Supp. 2d 38 (D.D.C. 2012) (review of NMFS alternatives and NEPA-related challenges)
- N. Carolina Fisheries Ass’n v. Gutierrez, 518 F. Supp. 2d 62 (D.D.C. 2007) (deference to technical agency judgments; standard for scientific adequacy)
- Blue Water Fishermen’s Assn. v. Nat’l Marine Fisheries Serv., 226 F. Supp. 2d 330 (D. Mass. 2002) (National Standard 2 requires best available, not perfect, science)
- Ctr. for Biological Diversity v. Blank, 933 F. Supp. 2d 125 (D.D.C. 2013) (agency may choose between conflicting scientific views absent ignored superior data)