RELENTLESS INC., et al., Plaintiffs, v. U.S. DEPARTMENT OF COMMERCE, et al., Defendant.
C.A. No. 20-108 WES
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
September 20, 2021
WILLIAM E. SMITH, District Judge.
Case 1:20-cv-00108-WES-PAS Document 47 Filed 09/20/21 Page 1 of 32 PageID #: 18879
WILLIAM E. SMITH, District Judge.
A recently promulgated regulation requires commercial herring fishing vessels in New England to pay the daily salaries of at-sea monitors. Plaintiffs argue, inter alia, that the Magnuson-Stevens Act does not permit industry-funded monitoring; the regulation‘s outsized impact on certain classes of fishing vessels violates the National Standards set forth in the Magnuson-Stevens Act; the process by which the agency adopted the regulation violated the Regulatory Flexibility Act; and the regulation violates the Commerce Clause by forcing fishing vessels to pay for third-party monitors. For the reasons that follow, Plaintiffs’ Motion for Summary Judgment, ECF No. 37, is DENIED, and Defendants’ Cross-Motion for Summary Judgment, ECF No. 38, is GRANTED.1
I. BACKGROUND
A. Magnuson-Stevens Act
In “[r]espon[se] to depletion of the nation‘s fish stocks due to overfishing[,]” Congress passed the 1976 Magnuson-Stevens Fishery Conservation and Management Act (“MSA” or “Act“),
The MSA‘s primary mechanism is the promulgation and enforcement of “fishery management plans,” each of which regulates a fishery (defined as “one or more stocks of fish which can be treated as a unit for purposes of conservation and management“) in a given region.
The Secretary is tasked with reviewing the plan for consistency with applicable
B. Industry-Funded Monitoring Omnibus Amendment
The current herring fishery management plan was implemented by the New England Fishery Management Council (“Council“) in 2000. AR17104.2 Among other provisions, the plan includes an annual catch limit and various restrictions on when and where herring may be caught. See
In 2017, the Council adopted the Industry-Funded Monitoring Omnibus Amendment (“Omnibus Amendment“), later approved by the National Marine Fisheries Service (“NMFS“), which provided for on-board human monitoring to be funded by the herring industry. See Final Rule, 85 Fed. Reg. at 7414-19 (AR17731-36). NMFS pays for administrative costs - such as training and certification of monitors, data processing, and liaison activities with various partners - while the herring industry is required to fund the travel expenses and daily salaries of the monitors.
For each trip in which a vessel declares that it will catch herring, NMFS informs the vessel operator whether an at-sea monitor is required. However, the monitoring requirement will be waived if (1) an at-sea monitor is not available, (2) the vessel has midwater trawl gear and intends to operate as a wing vessel (meaning that it will not carry any fish), or (3) the vessel intends to land less than fifty metric tons of herring during the trip.
NMFS published the proposed amendment on September 19, 2018, and the sixty-day comment period ended on November 19, 2018.
C. Plaintiffs’ Regulatory Challenge
Plaintiffs are the operators of two fishing vessels that catch herring and other species. See Letter from Seafreeze to Herring/Observer Committee, June 30, 2015, AR17801. Unlike other fishing vessels, Plaintiffs freeze their catch on-board.
II. LEGAL STANDARD
Challenges to fishery management plans are reviewed pursuant to the Administrative Procedure Act (“APA“). See
III. DISCUSSION
According to Plaintiffs, the Secretary3 has, “without Congressional authorization, ‘erected’ a ‘new office[] and sent hither swarms of officers to harass’ Plaintiffs ‘and eat out their
substance.‘” Mem. Supp. Pls.’ Mot. Summ. J. (“Pls.’ Mot.“) 1, ECF No. 37-1 (quoting The Declaration of Independence para. 12 (U.S. 1776)). More specifically, Plaintiffs claim that the Omnibus Amendment and the Final Rule violate the MSA, the APA, the Regulatory Flexibility Act, and the Commerce Clause.
Plaintiffs first argue that the MSA does not allow industry-funded monitoring in these circumstances. The First Circuit has framed judicial review of an agency‘s statutory interpretation as a three-step process:
First, we assess the statutory text to determine whether Congress has directly spoken to the precise question at issue. If so, courts, as well as the agency, must give effect to the unambiguously expressed intent of Congress. Second, if Congress‘s intent is uncertain, we decide whether and to what extent the agency‘s interpretation is entitled to deference. Finally, we evaluate the agency‘s interpretation under the governing standard to determine whether it exceeds the bounds of the permissible.
Lovgren v. Locke, 701 F.3d 5, 21 (1st Cir. 2012) (citations and quotations omitted). As explained below, the Court concludes that Congress has not spoken unambiguously on the subject, and that the Secretary‘s interpretation satisfies Chevron‘s deferential review. See Chevron, U.S.A., Inc. v. Nat. Resources Def. Council, Inc., 467 U.S. 837, 842-43 (1984).
i. Whether Congress Has Directly Spoken
The Secretary argues that the following statutory provisions of the MSA, when construed in a harmonious fashion, demonstrate that Congress has unambiguously provided for industry-funded monitoring under these circumstances. See Mem. of Law in Supp. of Defs.’ Cross-Motion for Summ. J. and in Opp‘n to Pls.’ Mot. For Summ. J. 11-12, ECF No. 38-1.
First,
The Secretary‘s next interpretive hook is
Finally,
Conversely, Plaintiffs contend that Congress has spoken directly in their favor. As they point out, there are statutes that expressly authorize the Secretary to collect fees to fund observer programs, and none of them apply here. Plaintiffs therefore contend that approbation of this regulation would render the three statutes superfluous because, whether or not Congress provided for the collection of observer costs, the Secretary could charge such costs to fishing vessels. See Pls.’ Mot. 23-29.
Three such statutes exist. First, the agency must “collect a fee to recover the actual costs directly related to the management, data collection, and enforcement of any limited access privilege program.”5
fees, which “shall not exceed 3 percent” of the value of the catch, are deposited into a fund earmarked for the administration and implementation of the program.
But, because those statutes involve “fee-based program[s,]” they are distinguishable “from the industry-funded observer measures at issue here, in which the fishing vessels contract with and make payments directly to third-party monitoring service providers.” Loper, 2021 WL 2440511, at *12. This distinction matters. Absent a statutory mandate to the contrary, the Miscellaneous Receipts Statute requires that fees be deposited in the Treasury without being earmarked for NMFS activities. See
Accordingly, there is a meaningful difference between the monitoring program created by the Omnibus Amendment and the statutory observer programs. The Secretary‘s interpretation of the MSA does not render the other three statutory provisions superfluous. See Loper, 2021 WL 2440511, at *12 (holding the same). With statutory currents flowing in all directions, the Court concludes that Congress‘s intent regarding industry-funded monitoring is ambiguous, and the inquiry cannot end at step one.6
ii. Level of Deference
The next question is “whether and to what extent the agency‘s interpretation is entitled to deference.” Lovgren, 701 F.3d at 21. An agency‘s statutory interpretation warrants Chevron deference “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” United States v. Mead Corp., 533 U.S. 218, 226-27 (2001); see also Chevron, 467 U.S. at 842-43. In other words, Chevron applies where Congress gave the agency the “power to engage in adjudication or notice-and-comment rulemaking.” Mead, 533 U.S. at 227. Conversely, where an agency‘s interpretation does not have the force of law - such as in an opinion letter - the weaker Skidmore deference usually governs. See Christensen v. Harris County, 529 U.S. 576, 587 (2000) (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
Here, Congress delegated authority to make rules implementing the MSA to the Secretary, who in turn assigned that power to the National Oceanic and Atmospheric Administration and NMFS. See Goethel, 854 F.3d at 109 n.1. These rules “have the full force and effect of law.” Hadaja, Inc. v. Evans, 263 F. Supp. 2d 346, 349 (D.R.I. 2003) (citing
iii. Reasonableness under Chevron
Under Chevron, the Court must “accept an agency‘s reasonable resolution of an ambiguity in a statute that the agency administers.” Michigan v. EPA, 576 U.S. 743, 751 (2015) (citing Chevron, 467 U.S. at 842-43Chevron, 467 U.S. at 845.7
Plaintiffs argue that the Secretary‘s interpretation is unreasonable because it confers on the agency a power not provided by Congress. See Pls.’ Mot. 26-27. Specifically, Plaintiffs point to the casus omissus doctrine, which states that “nothing is to be added to what the text states or reasonably implies.” Gorss Motels, Inc. v. Safemark Systems, LP, 931 F.3d 1094, 1102 (11th Cir. 2019) (quoting Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts § 8, at 93 (2012)). As Plaintiffs emphasize,
To start, Congress has tasked the Secretary with ensuring that the maximum number of fish can be caught, while simultaneously preventing overfishing.
The legislative history reinforces this conclusion. Prior to the passage of
Thus, in keeping with the statutory text, the only two on-point decisions (Loper and Goethel), and the legislative history, the Court concludes that the Secretary reasonably interpreted the MSA to authorize the Omnibus Amendment.
B. National Standards
Fishery management plans must comply with ten “National Standards.”
i. National Standard One
The first standard provides that “[c]onservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery.”
Plaintiffs argue that the monitoring exemption for trips landing less than fifty metric tons of herring does not serve these goals. Pls’ Mot. 30. They contend that this rule unfairly burdens boats with on-board freezing capacity, which tend to take longer trips, thus leading to larger catches per trip.
However, National Standard One simply states that yield should be as high as it can be while avoiding the risk of overfishing. See
ii. National Standard Two
Under the second standard, fishery management plans must “be based upon the best scientific information available.”
First, common sense instructs that additional data collection will lead to more accurate catch estimates. Moreover, National Standard Two “‘does not mandate any affirmative obligation on [NMFS‘] part’ to collect new data.” Massachusetts v. Pritzker, 10 F. Supp. 3d 208, 220 (D. Mass. 2014) (quoting Commonwealth of Mass. by Div. of Marine Fisheries v. Daley, 10 F. Supp. 2d 74, 77 (D. Mass. 1998)). In order to successfully challenge a fishery management plan under National Standard Two, a plaintiff must point to evidence that the Council ignored available better data. See Anglers Conservation Network v. Pritzker, 139 F. Supp. 3d 102, 113 (D.D.C. 2015). And once a fishery management plan is in the works, the Secretary is explicitly tasked with preventing overfishing, not just remediating extant problems. See, e.g.,
to specific scientific data that were ignored by the agency. See Massachusetts ex rel. Div. of Marine Fisheries v. Daley, 170 F.3d 23, 30 (1st Cir. 1999) (“If no one proposed anything better, then what is available is the best.”). Because Plaintiffs do not point to any information that was ignored, National Standard Two lends no wind to their sails.9
iii. National Standard Six
The sixth standard provides that “[c]onservation and management measures shall take into account and allow for variations among, and contingencies in, fisheries, fishery resources, and catches.”
The Final Rule discussed this exact complaint, stating that “the Council explicitly considered measures to address [Plaintiffs’] concern about disproportional impacts on its vessels, including considering alternatives for coverage waivers for trips when landings would be less than 20-percent herring or less than 50 mt of herring per day.” Final Rule, 85 Fed. Reg. at 7426 (AR17743). Nonetheless, the agency decided against those measures because “the potential for a relatively high herring catches per trip aboard [Plaintiffs’] vessels warranted additional monitoring.” Id.10 However, this explanation arguably begs the question: Why should the metric for “high herring catches” be keyed to trips, not days? Especially since the primary goal of monitoring – ensuring optimum yield – is based on a year-long period, not a number of trips.
In Ace Lobster, 165 F. Supp. 2d at 153, the Secretary imposed a flat cap on the number of lobster traps that any fishing vessel could utilize. The plaintiffs pointed out that, prior to the regulation’s implementation, certain boats used as many as 5,000 traps, while others used as few as 600. Id. at 182. They thus argued that the flat cap unfairly burdened those vessels with historically larger capacities. Id. However, the plaintiffs asked too much of the standards; the agency’s failure to “finely attune its regulations to each and every fishing vessel in the offshore fishery” was insufficient to sink the rule. Id. Moreover, “NMFS included adaptive management measures in the Final Rule that w[ould] enable future consideration of state/federal collaboration efforts, including trap reductions based on historical participation[,]” thus indicating compliance with National Standard Six. Id. (internal quotation marks and citation omitted).
Same here. Plaintiffs note that “the record reveals no other vessels . . . in the Atlantic herring fleet” like theirs: boats with freezing capacity that catch multiple species during lengthy trips. Pls.’
iv. National Standards Seven and Eight
The seventh standard requires the Secretary, “where practicable, [to] minimize costs and avoid unnecessary duplication.”
This inquiry is deferential, and the Secretary’s decision to impose costs on fishing communities is protected by a “rule of reason.” Little Bay Lobster, 352 F.3d at 470 (citing Daley, 127 F.3d at 110-111). The Court must “ask whether the Secretary has examined the impacts of, and alternatives to, the plan [she] ultimately adopts and whether a challenged failure to carry the analysis further is clearly unreasonable, taking account of [considerations such as] whether information is available and whether the further analysis is likely to be determinative.” Id.
Here, the agency estimated the financial impact on fishing vessels and adjusted the monitoring requirements to reduce that impact. For example, it chose a 50 percent total monitoring requirement instead of a goal of 75 or 100 percent. Additionally, government-funded SBRM monitoring was included in that target, thus reducing the burden on industry. The regulation also exempts any trip that does not plan to catch more than 50 metric tons of herring. Furthermore, though not applicable to the boats owned by Plaintiffs, the
As discussed, Plaintiffs argue that a per-day metric, which would have eased their burden, should have been used to calculate the weight-based monitoring exemption. But the agency considered such options and determined that they would provide insufficient monitoring capabilities, which would jeopardize the achievement of the optimum yield lodestar. See Final Rule, 85 Fed. Reg. at 7417 (AR17734). Under the standards, that decision was the Secretary’s prerogative.
In sum, Plaintiffs have not established that the industry-funded program violates the National Standards. See Loper, 2021 WL 2440511, at *16-19 (holding that Omnibus Amendment did not violate standards seven and eight).
C. Timing of Notice and Comment
In a rather undeveloped argument, Plaintiffs contend that the agency did not follow notice-and-comment requirements. Pls.’ Mot. 28. Specifically, Plaintiffs incorrectly state that “the Secretary of Commerce approved the [Omnibus Amendment] before the comment period was over, making a mockery of the comment requirement.” Pls.’ Mot. 28. But, to be clear, the Secretary did not approve the amendment before its comment period had concluded. Rather, the Secretary approved the amendment before the separate comment period for the proposed rule had ended. Plaintiffs point to no authority, and develop no argument, indicating that the comment periods for an amendment and its implementing rule cannot overlap. Moreover, Plaintiffs suffered no prejudice based on this overlap, as the Final Rule responded to all submissions from both comment periods. Thus, this timing argument is a belly flop. See Loper, 2021 WL 2440511, at *30 (rejecting similar argument).
D. Regulatory Flexibility Act
Lastly, Plaintiffs argue that the promulgation of the industry-funded monitoring program violated the Regulatory Flexibility Act (“RFA”),
Here, the agency did issue a final regulatory flexibility analysis, explaining
Therefore, the agency satisfied the RFA’s (solely procedural) requirements. See Loper, 2021 WL 2440511, at *28 (holding that Omnibus Amendment did not violate RFA); see also Little Bay Lobster, 352 F.3d at 471 (denying RFA challenge, even though “the final statement did little more than acknowledge that ‘several commentators’ had objected to the change in the boundary line and responded by referring to the ‘current consensus’ in support of the new regime as a whole”).
E. Commerce Clause
Finally, Plaintiffs contend that the monitoring program exceeds Congress’s authority to regulate commerce. Pls.’ Mot. 34-36. Under the Commerce Clause, Congress may regulate a wide variety of public and private actions, including those activities that “have a substantial effect on interstate commerce.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 549 (2012) (quoting United States v. Darby, 312 U.S. 100, 118-119 (1941)). In Sibelius, the Supreme Court examined a provision of the Affordable Care Act that imposed a monetary penalty on any individual who failed to maintain health insurance. Id. at 538-39. Chief Justice Roberts, writing alone, noted that the provision “d[id] not regulate existing commercial activity” but “instead compel[ed] individuals to become active in commerce by purchasing a product.” Id. at 552. The Chief Justice therefore reasoned that the law could not be justified under the Commerce Clause. Id. at 558; see also id. at 650-660 (joint op. of Scalia, Kennedy, Thomas, and Alito, JJ., dissenting) (agreeing that the individual mandate exceeded the scope of Congress’s authority under the Commerce Clause). But see id. at 606-618 (Ginsburg, J., joined by Sotomayor, Breyer, and Kagan, JJ., dissenting in part) (disagreeing with the Chief Justice’s Commerce Clause analysis).
Based on this holding, Plaintiffs contend that the monitoring program unconstitutionally compels them to become active in the market for at-sea monitors. This analogy holds no water. The relevant market is not the monitoring market, but rather the commercial herring fishing market. If Plaintiffs do not want to pay for monitoring, they can decline to fish for herring, limit their herring catches to fifty metric tons per trip, leave the New England region, or purchase fishing vessels that qualify for electronic monitoring. Unlike
IV. CONCLUSION
The Secretary reasonably concluded that industry-funded monitoring was necessary and appropriate to effectuate the goals of the Atlantic herring fishery management plan and the MSA. Moreover, the process and rules through which the agency effectuated the monitoring program did not violate the National Standards, the RFA, or the APA. Lastly, the program does not exceed Congressional authority under the Commerce Clause. Plaintiffs’ Motion for Summary Judgment, ECF No. 37, is DENIED, and Defendants’ Cross-Motion for Summary Judgment, ECF No. 38, is GRANTED.
IT IS SO ORDERED.
William E. Smith
District Judge
Date: September 20, 2021