INTRODUCTION AND JURISDICTION
1. This Court has
subject-matter jurisdiction over this action and the parties
under the Administrative Procedures Act, 5 U.S.C. §§ 701-706
(“APA”); and the Magnuson-Stevens Fishery Conservation and
Management Reauthorization Act of 2006, 16 U.S.C. § 1801 et
seq. (hereafter referred to as the “MSA”). District Courts
of the United States have exclusive jurisdiction over any case
or controversy arising under the MSA, 16 U.S.C. §1861(d). The
MSA provides that regulations promulgated under the statute
shall be subject to judicial review “if a petition for such
review is filed within thirty
[30] days of the
date on which the regulations are promulgated or action is
published in the Federal Register, as applicable.” 16 U.S.C. §
1855(f)(1). The APA provides that: “persons suffering legal
wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant
statute, is entitled to judicial review thereof.” 5 U.S.C. §702.
“Agency action made reviewable by statute and final agency
action for which there is no other adequate remedy in 1 court
are subject to judicial review.” 5
U.S.C. §704. In an
APA suit, the reviewing court shall “hold unlawful and set aside
agency actions, findings, and conclusions to be found (A)
arbitrary, capricious, and abuse of discretion, or otherwise not
in accordance with law . . . (C) in excess of statutory
jurisdiction, authority, or limitations or short of statutory
right; [or] (D) without observance of procedure required by law.
. . .” 5 U.S.C. § 706(2).
2. FRA is a Florida corporation with its headquarters in St.
Petersburg, Florida. FRA is a marine conservation group with
members throughout Florida, Georgia, Louisiana, Alabama and
Mississippi. The FRA’s membership consists of recreational and
commercial fishermen, conservationists, bait and tackle store
owners, dive shop operators, fishing equipment manufacturers,
marina owners, boat retailers, boat repairmen, and divers. The
vast majority of FRA's members live near the Gulf of Mexico and
fish within its waters. Many of its members seek to catch fish
within the grouper complex, and FRA has been actively involved
in the management of various Gulf of Mexico fisheries since its
inception. It has participated in the development of many of the
regulations and measures governing the Gulf of Mexico now in
place and has generally supported efforts to enact recovery
plans for at-risk fish in the Gulf of Mexico. FRA's members are
directly and
adversely affected by the actions of which it complains.
2
Defendant NMFS is an agency of the United States
government with primary responsibility management of marine
fisheries. NMFS manages those fisheries by administering the
Magnuson-Stevens Act and performing NEPA compliance on its
Magnuson-Stevens Act actions. NMFS, under the Magnuson-Stevens
Act has been delegated the responsibility to manage the United
States marine fisheries through Fishery Management Plans
(“FMP”), FMP amendments and regulations implementing those FMPs
and FMP amendments. Since NMFS is responsibility for the Reef
Fish Fishery Management Plan which governs the grouper complex,
NMFS has final management authority over reef fish in the Gulf
of Mexico. NMFS is the federal agency that approved the
Amendment 30B, which is the subject of this Complaint. NMFS is a
sub-agency of NOAA within the United States Department of
Commerce.
3
The grouper fishery is conducted primarily off the west
coast of Florida. Groupers are fished for extensively in state
waters. The grouper fishery is both a commercial and
recreational fishery. The grouper complex includes 17 species of
groupers, including, among others, Goliath, dwarf sand perch,
sand perch, misty, snowy, yellow edge, Nassau, Warsaw, speckled
hind, black, gag, red, yellow fin, scamp, yellow mouth, rock
hind, speckled hind, and red hind groupers. See 50 C.F.R.
Part 622, Table 3, Annex
A.
FACTUAL BACKGROUND
5. The recreational take of reef fish in the Gulf of Mexico
(“GOM”) in federal waters (beyond 9 nautical miles) is governed
by a Fishery Management Plan (“FMP”), which is amended from time
to time based in part on stock assessments. FMPs must
balance the needs of fishery users against conservation
principles by reference to ten national standards (“National
Standards”). 16 U.S.C. §1851(a). Regional councils submit FMPs
to the Secretary of Commerce, who acts through NMFS. Defendant
solicits public comment and reviews the FMPs to ensure they are
consistent with the National Standards and other applicable
laws. 16 U.S.C. §§1852(h)(1), 1854(a)(1)-(2). The National
Standard guidelines promulgated to assist in development of FMPs
and amendments to FMPs state that “[t]he national standards are
statutory principles that must be followed in any [fishery
management plan].” 50 C.F.R. §600.305. If a FMP plan is
consistent with applicable law, NMFS must approve it. 16 U.S.C.
§1854(a)(3).
2
The present controversy arises in connection with
Amendment 30B to the Reef Fish FMP (“RFA 30B” or “30B”) for the
Gulf of Mexico, a document which spans 462 pages. See
http://sero.nmfs.noaa.gov/sf/pdfs/Final%20Amendment%2030B.pdf.
RFA 30B purports to implement some of the 2006 amendments to the
MSA which were enacted January 12, 2007. Some of the MSA
requirements at issue in this action are Annual Catch Limits
(“ACLs”) and Accountability Measures (“AMs”).
7. RFA 30B has
attempted to prematurely institute ACLs and AMs before 2010
when they are
mandatory, stating:
The
Magnuson-Stevens Reauthorization Act of 2006 requires that
Councils develop Annual Catch Limits (ACLs) and Accountability
Measures (AMs) for all stocks, with stocks that are overfished
or undergoing overfishing requiring such measures by 2010. While
the final NMFS guidelines for ACLs and AMs have not yet been
published, implementing interim ACLs and AMs allows the Council
to have greater flexibility in proposing short term management
measures by providing a means to assure that overfishing will
not occur, and that corrective action will be taken if it does
occur.
RFA 30B, p. 16).
1
30B, if effective, will replace an interim rule which
went into effect January 1, 2009, which implemented limited
portions of 30B that pertain to gag grouper. Under the interim
rule, the recreational gag grouper bag and possession limit is 2
per person, per day. The interim rule extended the recreational
closed season for gag grouper from February 1 through March 31.
30B establishes a recreational grouper aggregate bag limit of
four (4) fish per day. Within the aggregate bag limit, no more
than two (2) gag grouper may be caught. Similarly, no more than
two (2) red grouper may be caught. 30B also includes a
recreational closed season for all shallow-water grouper from
February 1, through March 31 of each year.
2
ACLs and AMs are required by the MSA for any specie
undergoing overfishing as of 2010. ACLs are catch levels
intended to reduce the likelihood of overfishing. If ACLs are
met or exceeded, AMs are triggered. AMs are intended to prevent
ACLs from being exceeded, and correct or mitigate overages in
landings if they occur.
10. For
example, in the recreational fishery, AMs are potentially
catastrophic:
If either gag or red grouper recreational landings exceed the
ACL, then the target catch level in the following year will be
maintained at the prior year’s target catch level.
The length of the Shallow Water Grouper fishing season will be
reduced in the following year by the amount necessary to ensure
the gag or red grouper target catch level are not exceeded.
11. The fundamental flaw in 30B is that Defendant wants the
power and flexibility to close fisheries when an ACL is reached
without meeting the preconditions Congress has imposed on such
an expansive power. In the MSA, Congress delayed the
requirements
for ACLs and AMs until 2010 based on the notion that NMFS would
be basing decisions on vastly-improved sources of data by
January 1, 2009. NMFS is attempting to cherry-pick those
portions of the MSA it likes while ignoring the burdens it has
failed to implement.
2
The MSA was signed into law and went into effect on
January 12, 2007. See Public Law 100–479, 120 Stat. 3575.
The MSA, in the form as originally enacted in 1976, required
that Defendant collect statistics for measuring effort and total
catch. Defendant commenced the Marine Recreational Fishing
Statistical Survey (“MRFSS”) program in 1979, which relies on
dock intercepts and random telephone surveys.
3
The MRFSS was not designed to provide real-time data to
determine whether a quota is exceeded or an ACL is reached.
Defendant acknowledges that the MRFSS system is fatally flawed.
14. In 2006, Congress found that MRFSS was flawed and required
Defendant to take very specific actions to correct it by January
1, 2009. See 16 U.S.C. § 1881(D) (“The Secretary shall
complete the program under this paragraph and
implement
the improved
Marine Recreational Fishery Statistics Survey not later than
January 1, 2009") (bolding added). The MSA requires in pertinent
part:
(A) Improvement of the Marine Recreational Fishery Statistics
Survey. Within 24 months after the date of enactment of the
Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act of 2006 [enacted Jan. 12, 2007], the
Secretary, in consultation with representatives of the
recreational fishing industry and experts in statistics,
technology, and other appropriate fields, shall establish a
program to improve the quality and accuracy of information
generated by the Marine Recreational Fishery Statistics Survey,
with a goal of achieving acceptable accuracy and utility for
each individual fishery.
(B) NRC report recommendations. The program shall take into 6
consideration and,
to the extent feasible, implement the recommendations of the
National Research Council in its report Review of Recreational
Fisheries Survey Methods (2006), including–
(i) redesigning the Survey to improve the effectiveness and
appropriateness of sampling and estimation procedures, its
applicability to various kinds of management decisions, and its
usefulness for social and economic analyses; and
(ii) providing for ongoing technical evaluation and modification
as needed to meet emerging management needs.
16 U.S.C. §
1881(g)(3).
15. Defendant is
not in compliance with section 1881(D) and should be foreclosed
from implementing
an accountability measure devised in Amendment 30B unless the
data
on which it is
based meets the standards set forth under the MSA.
16. The data
improvements mandated by the MSA are clear:
Unless the
Secretary determines that alternate methods will achieve this
goal more efficiently and effectively, the program shall, to the
extent possible, include—
(i) an adequate number of intercepts to accurately estimate
recreational catch and effort;
(ii) use of surveys that target anglers registered or licensed
at the State or Federal level to collect participation and
effort data;
(iii) collection
and analysis of vessel trip report data from charter fishing
vessels;
(iv) development of a weather corrective factor that can be
applied to recreational catch and effort estimates; and
(v) an independent committee composed of recreational fishermen,
academics, persons with
expertise in stock
assessments and survey design, and appropriate personnel from
the National Marine Fisheries Service to review the collection
estimates, geographic, and other variables related to dockside
intercepts and to identify deficiencies in recreational data
collection, and possible correction measures.
16 U.S.C. § 1881.
1
Even without the mandate of the MSA to improve the
quality of the data on which FMPs are based, 30B and the
underlying gag grouper stock assessment are not based on the
best available science (“BAS”).
2
The existing National Standards in the MSA required that
that “conservation and management measures . . . be based upon
the best scientific information available.” 16 U.S.C.
§1851(a)(2).
3
In 2003, NMFS determined that one species in the grouper
fishery, red grouper, was overfished and decided to implement a
secretarial plan amendment (Secretarial Plan Amendment 1 to the
Reef Fish FMP adopted by the Secretary in May 2004 (“Amendment
1”)). Amendment 1 included bag limits for recreational fishermen
(2 per day for red grouper and 5 total grouper per day total per
angler), a specific quota for the commercial sector, and a
10-year rebuilding plan for red grouper. Amendment 1 identified
a target catch of 1.25 million pounds of red grouper for the
recreational sector and a quota for the commercial sector of
5.31 million pounds.1
Amendment 1 and
The plan specifically allocated 81% of a total allowable catch
(“TAC”) of 6.5 million pounds to the commercial sector of the
fishery. The remaining 19% of the total TAC is left for t h e
recreational sector. Of note, the study recognized that the
historic division between the commercial and recreational sector
was 75% commercial and 25% recreational (1986-1989) and 76%
commercial and 24% recreational for years 1990 through 2000. The
study noted a spike in the data for the data for 1999-2001
implementing
regulations included provisions to close the commercial sector
as it approaches its annual quota but had no such provisions for
the recreational sector. In addition, there was no provision in
the plan or regulations for actions in the event the
recreational target catch is exceeded.
1
In July 2004, NMFS issued regulations establishing the
bag limit for red grouper of two fish per person per day. All of
Amendment 1, and its implementing regulation, where done through
a normal MSA notice, comment and hearings process. FRA members
participated in that public process at both the Gulf Council
level and NMFS. In January 2005, the State of Florida
established the same restrictions for State waters.
2
From 2004 on, the Gulf Council, the State of Florida and
NMFS worked to establish limits for the recreational red grouper
catches in line with the target catch through the use of
traditional methods of size and bag limits. In 2003, the
recreational catch of red grouper was approximately 1.35 million
pounds. In 2004, government asserted that the recreational
fishery landed 3.1 million pounds.
22. This government estimate of 2004 red grouper landings was
erroneous and based on flawed data acquired through the MRFSS.
The Gulf Council’s own study group had concluded that the MNFSS
routinely overestimate recreational red snapper catches. The
same study group found that the standard of error for the MRFSS
system in 2004 may have exceeded the entire estimated
recreational landings in the Gulf of Mexico.
in which the commercial percentage of take rose to 81% and the
recreational take dropped to 19%. While the study anticipated
that the was a temporary aberration and that a return to the
historic percentages was anticipated, the Gulf Council
nonetheless adopted the 81%/ 19% allocation between the
commercial and recreational sector to minimize the impact of the
reductions on the commercial sector.
3
In March 2005, at the specific request of NMFS, the Gulf
Council reviewed the MRFSS catch information and gave NMFS
authority by emergency or interim rule to bring recreational red
grouper within the target catches previously determined for red
grouper. The MRFSS data did not adequately take into account
differences in fishing habits and effort shifting due to
Florida’s unprecedented 2004 hurricane season. Nonetheless, NMFS
still promulgated the Interim Rule, which further reduced the
red grouper bag limit to 1 fish per day and, most importantly,
shut down the recreational grouper fishery from November through
December 2005.
4
After NMFS prevailed on the red grouper dispute in 2005
before Judge Steele in which it imposed a closure and further
reduction in the bag limits, nearly a year later NMFS conceded
that red grouper were healthy and did not undergo any
overfishing as NMFS had steadfastly claimed the prior year. In
fact, NMFS admits that its 2004-05 management measures played no
part in the 2007 red grouper assessment, stating:
In 2007, a new
stock assessment utilizing data through 2004 (SEDAR 12 2007)
found that the stock had recovered, in large part due to strong
recruitment year classes in the late 1990s and 2000.
(RFA 30B, p. 16).
A subsequent table in 30B misleadingly claims that overfishing
for red grouper ended in 2005 when the bag-limit was reduced to
1 fish per day (RFA 30B, pp. 331-32). It is interesting that
with respect to red grouper, reductions in catch were perceived
by Defendant as the end of overfishing (RFA 30B, pp. 331-32).
However, with regard to gag grouper, significant declines in
“recreational landings” in 2005 were perceived as proof that
“overfishing [was] occurring” (RFA 30B, p. 331). On page 325 of
30B, NMFS states: “Declines in effort may be a signal of stress
within the fishery.” NMFS cannot have it both ways to suit its
agenda.
25. 30B describes
the red grouper fiasco NMFS engineered as follows, conceding
that the
management measures instituted by NMFS were improper and
unnecessary:
Red grouper were
placed under a rebuilding plan in 2004. The stock had been found
to be overfished and undergoing overfishing in both a 1999 stock
assessment and a subsequent 2002 assessment. However, the 2002
assessment indicated that the stock was recovering faster than
previously estimated, most likely due to a strong recruitment
year class in 1997. Management measures implemented in 2004 as
part of the rebuilding plan included a reduced aggregate
commercial shallow-water grouper quota, a red grouper quota
within the aggregate quota, and a recreational bag limit of two
red grouper within the five fish aggregate grouper bag limit.
The red grouper quota was reached, and the commercial
shallow-water grouper fishery closed, on November 15, 2004. In
order to extend the 2005 season, stepped commercial grouper trip
limits (10,000, 7,500, and 5,500 pounds) were adopted. For 2006
and later, a fixed 6,000 pound grouper trip limit was adopted.
For the
recreational sector, landings data indicated that the
recreational red grouper allocation was being exceeded despite
the red grouper bag limit. Consequently, in 2005 an
interim rule intended to reduce the red grouper bag limit from
two to one fish per person per day, reduce the aggregate grouper
bag limit from five to three grouper per day,
and implement a one-time closure of the recreational fishery,
from November -December 2005, for all grouper species.
The rule was
challenged by organizations representing recreational fishing
interests, and on October 31, 2005, a U.S. District Court judge
ruled that an interim rule to end overfishing can only be
applied to the species that is undergoing overfishing.
Consequently, the reduction in the aggregate grouper bag limit
and the application of the closed season to grouper other than
red grouper were overturned. The reduction in the red
grouper bag limit to one per person and the November-December
2005 recreational closed season on red grouper were allowed to
proceed.
The one red
grouper bag limit was made permanent in a 2006 regulatory
amendment, which also prohibited for-hire vessel captains and
crews from retaining bag limits of any grouper while under
charter, and established a recreational closed season for red
grouper, gag and black grouper from February 15 to March 15 each
year (matching a previously established commercial closed
season) beginning with the 2007 season.
The most recent
SEDAR 12 stock assessment for red grouper was completed in early
February 2007. Although this assessment confirmed the findings
of the previous two assessments that the red grouper stock was
overfished in the 1990s, it estimated that the red
grouper estimated spawning stock exceeded SSMSY starting in 1999,
and that the current (2005) stock status was close to its OY
biomass level. Consequently, the red grouper rebuilding plan
could be replaced with a management policy to maintain the stock
at its OY level.
This is merely one
example of how flawed MRFSS data was misused by NMFS as a real-
time quota
monitoring device to achieve a desired outcome. The consequences
were
drastic yet
completely avoidable.
1
Judge Steele found that NMFS clearly exceeded its
authority in 2005 when it proposed “an interim rule intended to
reduce the red grouper bag limit from two to one fish per person
per day, reduce the aggregate grouper bag limit from five to
three grouper per day.” The attempt to reduce the aggregate bag
limit was completely improper because gag grouper were not
undergoing overfishing in 2005.
2
That NMFS proposed lower bag limits for gag grouper in
2005 without a finding of overfishing for this grouper specie
indicates that it follows a philosophy that the ends justify the
means. NMFS rountines engages in sophistry to restrict
recreational fishing.
28. In 30B, NMFS imposes a two-fish bag limit on red grouper and
a two-month annual closure even though red grouper fishing have
not been overfished since 1999 and
the red grouper stock is healthy and producing optimum yield
according to the red grouper stock assessment completed in 2007.
Even after the stock assessment was completed in 2007, NMFS
waited another 2 years to give back one red grouper to
recreational anglers whom were adversely affected by using MRFSS
data as a real-time quota monitoring device. The two month
closure for red grouper is bogus and serves as a prophylactic
measure so that recreational anglers will not fish for grouper
at all in February and March of each year.
3
In 2005, Judge Steele ruled that NMFS could not close the
entire grouper fishery to protect one specie. Although this
ruling is not directly applicable to the instant matter as it
construed the limited power of NMFS relative to interim rules,
it recognized that the entire grouper complex should not be
closed just because one or more species are undergoing
overfishing. Judge Steele recognized that avoiding by-catch is
not sufficient to close the entire fishery.
4
RFA 30B is based on a flawed gag grouper stock assessment
according to Dr. Trevor Kenchington’s opinions and testimony.
There is a significant probability that the ultimate conclusions
contained within 30B were foreordained years in advance to
achieve what NMFS sought to do without any evidence of
overfishing of gag grouper by interim rule in 2005 which Judge
Steele prevented. Initially, the gag assessment employed
shifting rationales which evolved over time as NMFS had to
acknowledge serious flaws in its methods, e.g., dead discard
mortality. Each flaw was patched by a new concept so that NMFS
could attempt to claim neither flaw alone altered the overall
results of the assessment. This was exemplified where a renowned
outside fishing expert proved that NMFS’ own numbers showed that
the reduction in effort since 2004 made further
reductions in take
unnecessary. NMFS discounted this science as inconclusive. NMFS
also
used incorrect
assumptions regarding natural mortality of gag grouper based on
the opinion
of Dr. Kenchington.
31. This is how
NMFS described the gag grouper stock assessment:
Gag were declared
to be undergoing overfishing in October 2006 based on the
results of a stock assessment prepared under the Southeast Data,
Assessment and Review (SEDAR) process.Following a re-analysis in
2007 using corrected data inputs,
overfishing was still found to be occurring in 2004
under the
maximum fishing mortality threshold of F30% SPR as well as
underany likely redefinition of MFMT
See
RFA 30B, p. 15.
Gag grouper biomass increased from the mid-1990s through 2004
due to high
reproduction rates over a 15 year period. Biomass is still near
record highs.
32. Recreational
fishing effort has declined since 2004. The gag stock
assessment
completed in 2006 was based on MRFSS’ estimate of fishing effort
from 2004.
33. Defendant
ignored evidence that the reduction in take for gag grouper had
already been
achieved before 30B was finalized in October 2008:
During public
hearings, the Council received testimony that a portion of the
41 percent reduction has already been achieved through
reductions in recreational effort due to high fuel prices or
other factors, but a reliable value to assign to this
reduction could not be determined.
Preferred Alternative 7 is intended to achieve an estimated 26
percent reduction in recreational gag harvest, which is greater
than the minimum reduction needed to end overfishing. Additional
reductions from reduced effort will further reduce fishing
mortality and will help to achieve the ultimate target of FOY.
Preferred Alternative 7 proposes a gag bag limit of 2 fish per
person per day within the aggregate bag limit, a red grouper bag
limit of 2 fish per person per day within the aggregate bag
limit, an aggregate bag limit of 4 grouper total per person per
day,and a recreational shallow-water grouper closed season of
February 1-March 31 (306 day season, reduces gag 26 percent,
increases red grouper 17 percent).
1
The gag grouper stock assessment is erroneous in part
because it overestimates dead discards and release mortality by
the recreational sector. Release mortality for red grouper is
10% but for gag grouper it is deemed much higher, on average 20%
and ranging as high as 42%.
2
The next scheduled stock assessment for gag grouper is
2011. Yet, NMFS has failed to comply with the MSA’s requirements
to generate and utilize better data that do not produce fatally
flawed results. NMFS should not be allowed to bootstrap past
errors into a flawed gag assessment in 2011.
