BLUEFIN REGULATIONS CHALLENGED IN COURT

About a month ago, I wrote a piece questioning the wisdom of, and the lack of justification for, new bluefin tuna regulations issued by the National Marine Fisheries Service.  Such regulations allowed pelagic longliners to again enter areas where longlining had previously been prohibited in order to prevent high levels of bluefin tuna bycatch.

There seemed to be little scientific support for opening such areas; instead, the opening appeared to be based on the current administration’s dogmatic efforts to reduce regulatory “burdens” and make it easier for industry to profitably exploit the natural resources of this nation.

It appears that I wasn’t the only one who had doubts about the NMFS action, because on April 29, two conservation groups, Healthy Gulf and the Turtle Island Restoration Network, filed a complaint in the Federal District Court for the District of Maryland, alleging that the regulations failed to meet legal standards and seeking both declaratory and injunctive relief.

Of course, initiating litigation is easy; winning a lawsuit can be a much more challenging affair.  That’s particularly true in the case of lawsuits that challenge the actions of a government agency, because the so-called “Chevron Doctrine,” created by the United States Supreme Court in the case of Chevron USA Inc. v. Natural Resources Defense Council, requires courts to give substantial deference to agency decisions.  In deciding the matter, the Supreme Court said

“When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of an agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail.  In such a case, federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do.  The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones.  ‘Our Constitution vests such responsibilities in the political branches.’  [citations omitted]”

The Magnuson-Stevens Fishery Conservation and Management Act places additional restrictions on challenges to NMFS’ actions, providing that

“Regulations promulgated by the Secretary [of Commerce] under this Act and actions [taken by the Secretary under regulations that implement a fishery management plan] shall be subject to judicial review to the extent authorized by, and in accordance with, chapter 7 of title 5, United States Code…except that section 705 of such title is not applicable; and the appropriate court shall only set aside any such regulation or action on a ground specified in section 706(2)(A), (B), (C), or (D) of such title.  [internal numbering omitted]”

Without drifting too far into the legal weeds, that means that NMFS’ regulations may only be set aside if they are

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [or] without observance of procedure required by law.  [internal numbering omitted]”

It also means that a plaintiff can’t seek a temporary restraining order to halt implementation of the regulations pending the court’s decision on the challenged NMFS regulations.

Those restrictions create a steep uphill climb for anyone challenging NMFS regulations, including those challenged in the current bluefin tuna lawsuit.  However, the plaintiffs in that action are also seeking relief based on laws other than Magnuson-Stevens, including the Atlantic Tunas Convention Act and the National Environmental Policy Act, which might arguably provide additional avenues to challenge the bluefin regulations.

The plaintiffs in the current bluefin lawsuit have challenged NMFS’ regulations on six separate grounds, alleging that

“NMFS Failed to Address Relevant Factors and Articulate a Rational Basis for the Bluefin Bycatch Rule, in Violation of the Administrative Procedure Act,”

“NMFS Failed to Base the Bluefin Bycatch Rule on the Best Scientific Information Available, in Violation of the Magnuson-Stevens Act and APA,”

“NMFS Failed to Demonstrate How Its Rule Would Prevent Overfishing and Rebuild the Atlantic Bluefin Tuna Population, in Violation of the Magnuson-Stevens Act and the APA,”

“NMFS’ Bluefin Bycatch Rule Is Contrary to the Purposes and Objectives of ICCAT and ICCAT Recommendations to Protect Spawning Bluefin Tuna and Rebuild the Population, in Violation of the Atlantic Tunas Convention Act,”

“NMFS Failed to Take a Hard Look at the Impacts of Removing Restrictions on the Use of Pelagic Longline Gear on Atlantic Bluefin Tuna and Other Non-Target Species, in Violation of NEPA,”

and that

“NMFS Unlawfully Invoked ‘Good Cause’ Exception to Make the Bluefin Bycatch Rule Effective Immediately Upon Publication, in Violation of the Magnuson-Stevens Act and APA.”

While I’m sympathetic to all of those claims, and wholeheartedly believe that pelagic longliners should not have been allowed into the formerly closed areas, I suspect that the plaintiffs may have a problem convincing a judge that the regulations need to be overturned.

That problem can largely be attributed to the Chevron Doctrine described above.

Many of the plaintiffs’ arguments against allowing pelagic longliners to fish in two formerly closed areas in the Gulf of Mexico, where most bluefin spawning takes place, revolve around the fact that opening the areas will allow longliners to catch spawning bluefin tuna, with the implication that catching the fish while they’re spawning, and not at other times of the year, causes greater harm to the stock.  But it’s not that cut and dried.

A paper titled “Efforts of fishing during the spawning period: implications for sustainable management,” which appeared in Reviews in Fish Biology and Fisheries’ March 2014 issue, found that

“empirical support for the contribution of spawning closures to sustainable fisheries management is mainly restricted to fish species forming large spawning aggregations and also provides insight about the conditions under which spawning closures may be of benefit to other species.  The analysis of the processes by which fishing affects the biology of a population suggests that spawning closures may be beneficial if they: (1) reduce fishing mortality on the older and larger individuals that are most valuable for the reproductive output of the population; (2) avoid negative effects of fishing on spawning habitats; (3) reduce the risk of over-exploitation in species which form large spawning aggregations; (4) reduce the evolutionary effects on maturation and reproductive investment; (5) reduce the risk of over-exploitation of specific spawning components.”

Since the peak of bluefin spawning in the Gulf of Mexico is spread out over a two-month period, and spawning occurs outside of that peak period as well, longliners would not be fishing on a true spawning aggregation.  Add to that the facts that NMFS regulations, which include a 73-inch minimum size, already concentrate commercial fishing effort on older and larger bluefin, that longlines do little if any harm to the open-ocean habitat where bluefin spawn, and that existing quotas are already designed to prevent over-exploitation, and it would seem very much within NMFS’ discretion to determine that the openings

“are consistent with balancing the objectives of this rulemaking…to ‘optimize the ability of the fleet to harvest target species quota’ and to ‘continue to minimize bycatch and bycatch mortality of bluefin.’”

Yes, longliners are likely to kill far more spawning bluefin in the Gulf of Mexico than they had when the closed areas were in force, but given the individual bluefin quota program, which prevents a vessel from fishing once it has caught its annual bluefin quota, higher bluefin catch in the Gulf will be offset by lower catches of non-spawning bluefin elsewhere. 

Whether it was wise to open the previously closed areas, and allow more spawning bluefin to be killed, or whether a different set of decisionmakers would reach the same conclusions after reviewing the same information, are not relevant questions.  The court may only decide whether NMFS abused its discretion, or acted arbitrarily or capriciously, in adopting the new regulations.  Given that standard of review, it seems likely that NMFS will prevail on that point.

The plaintiffs claim that no regulation promulgated under the Atlantic Tunas Convention Act

“’may have the effect of increasing or decreasing any allocation or quota of fish or fishing mortality level to the United States agreed to pursuant to a recommendation of [the International Commission for the Conservation of Atlantic Tunas]’.  Given that ICCAT has mandated a ban on fishing for spawning bluefin tuna in the Gulf since 1982, the amount of spawning tuna mortality permissible under ICCAT authority is effectively zero.”

Such claim is not likely to persuade a judge.  While ICCAT prohibits any directed fishery for bluefin in the Gulf of Mexico, it does not place any restriction on the amount of fish that may be taken as bycatch in the Gulf.  Nor does it make any allocation of potentially spawning bluefin tuna.  Thus, while the argument may be a good example of creative lawyering, and is not absolutely doomed to fail, the odds of it succeeding are prohibitively long.

It is true that individual longliners may intentionally target bluefin in the formerly closed areas now that they’ve been opened.  But there is nothing in the language of the regulation that would legitimize such behavior.  The directed fishery remains closed, consistent with the ICCAT directive.  When the court reviews the language of the regulation, it will base its decision on what the rule says, and not what some unscrupulous longliners might do.  That, in the end, is strictly an enforcement issue.

On the other hand, when the plaintiffs argue that the Environmental Impact Statement associated with the new regulations was insufficient under the National Environmental Policy Act, they might have a better chance to prevail.  

As the plaintiffs argue, to pass NEPA muster, an agency must take “a hard look” at the environmental impacts of its proposed action, and consider alternative measures that might have lesser impact than the proposed action.  Whether the court will ultimately agree with the plaintiffs’ contention that NMFS failed to adequately analyze the regulations’ impacts on spawning bluefin and on non-target species is an open question.  But the argument could prevail.

So could the argument that NMFS “unlawfully invoked the ‘good cause’ exception” to the general rule that a regulation becomes effective 30 days after it is published, but it’s hard to see what the plaintiffs gain if they win on that point.  By the time the matter is argued, the April-May closure in the Gulf, and the June closure in the northeast, would have already expired, meaning that longliners could go into those areas anyway.  And the issue would likely be deemed to be moot in April 2021, when a year would have passed before the Gulf closures might have been imposed again.

I have to admit that I was a little excited when I saw that the new bluefin regulations would be challenged in court.  I’ve been fishing for bluefin since the late 1970s, and watched their abundance decline since that time.  Although that abundance has increased again, people who fished in the ‘70s know that what’s considered “good fishing” today, at least along most of the coast, is still not as good as it was forty or fifty years ago. 

Remembering the way that it was, and hoping that it could get better again, made me question the wisdom of regulations that could increase bluefin bycatch, and lead to more prime spawning females being killed in the Gulf.  I was happy to see those rules challenged.

But NMFS doesn’t need to be wise; it need only comply with the law.  And after taking a look at the plaintiffs’ complaint, and thinking about what they will need to prove before a court sets those regulations aside, I think that NMFS did enough to prevail.

Although having said that, I still hope that the plaintiffs, and the bluefin, eke out a win.