Tempest Fisheries v. Locke
701 F.3d 5
1st Cir.2012Background
- This case challenges Amendment 16 to the Northeast Multispecies Groundfish FMP, adopted by NMFS/NOAA to end overfishing and rebuild stock via ACLs and sector-based allocations; the NE Council moved from DAS to a stock-by-stock ACL/ACE framework with voluntary sector participation; a PSC/ACE mechanism was created to allocate catches to sectors, with non-sector vessels remaining under a common-pool DAS regime.
- Amendment 16 was developed after the 2007 Reauthorization Act mandated ACLs and AMs and required implementation by 2010 for overfished fisheries; it also amended sector rules and included a Sector Operations Rule and Framework Adjustment 44, taking effect May 1, 2010.
- Plaintiffs allege Amendment 16 violates the MSA’s ten national standards and NEPA, arguing the sector program is a LAPP/IFQ or otherwise unlawful, and that the EIS/FEIS failed to consider reasonable alternatives and the best available data.
- The district court granted summary judgment for defendants; the First Circuit affirmatively reviews under APA standards, deferring to agency interpretations where reasonable.
- The decision affirming the district court rests on three major statutory/regulatory axes: (i) whether A16’s sector program constitutes a LAPP or IFQ; (ii) compliance with the MSA’s national standards; (iii) NEPA/EIS adequacy and the reasonableness of the agency’s decisionmaking.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether A16 sectors are LAPPs or IFQs under §1853a. | New Bedford/American Alliance say sectors are LAPPs/IFQs, lacking §1853a protections. | NMFS/NE Council reasonably concluded sectors are not LAPPs/IFQs and exempt from referendum. | Yes; sector program not a LAPP/IFQ; Chevron deference applied; statutory text allows agency reading. |
| Whether the sector program triggers the referendum requirement for IFQs under §1853a(c)(6)(D). | Lovgren argues referendum required for IFQs and sectors should be included. | Exemption for sector allocations applies; referendum not required for A16 sectors. | Yes; referendum exemption applies; Lovgren's reframing rejected. |
| Whether A16 complies with National Standards 1 and 4 by stock-by-stock ACLs and allocations. | American Alliance contends stock-by-stock ACLs undermine NS1/OY. | Stock-by-stock rebuilding aligns with NS1 and NS4 balancing conservation and benefits. | Yes; NS1/4 balanced with rebuilding goals and fair allocations. |
| Whether A16’s NEPA analysis and FEIS provided a hard look at alternatives and environmental impacts. | New Bedford/FWW say FEIS failed to consider feasible alternatives (e.g., points system). | NEPA's rule of reason satisfied; alternatives deemed infeasible or unlikely to end overfishing; hard look given. | Yes; NEPA analyzed reasonable alternatives; no requirement to exhaust all options. |
| Whether the agency’s Chevron-based interpretation of the statute was reasonable and properly adopted via notice-and-comment. | Plaintiffs challenge deference level and reliance on internal 2007 memo. | Final rule and multiple rulemakings support Chevron deference; analyses were public and reasoned. | Yes; agency’s interpretation reasonable and entitled Chevron deference. |
Key Cases Cited
- Little Bay Lobster Co. v. Evans, 352 F.3d 462 (1st Cir. 2003) (MSA deference and standards framework applied in fisheries)
- Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104 (1st Cir. 1997) (MSA/NEPA review standards; agency deference)
- Massachusetts ex rel. Div. of Marine Fisheries v. Daley, 170 F.3d 23 (1st Cir. 1999) (APA/NEPA review; administrative record focus)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (U.S. 1984) ( ako deference when statute ambiguous)
- Mayo Foundation for Med. Educ. & Research v. United States, 131 S. Ct. 704 (Supreme Court 2011) (defines framework for agency deference; Mead v. United States)
- Oceana, Inc. v. Locke, 2005 WL 555416 (D.D.C. 2011) (stock/ACL considerations; guidance on LAPP/IFQ discussion)
- Associated Fisheries, 127 F.3d 104, 127 F.3d 104 (1st Cir. 1997) (MSA standards and agency discretion)