MID-ALTANTIC HARVEST CONTROL RULE FACES COURT CHALLENGE

 

On Monday, the Natural Resources Defense Council filed a lawsuit in the Federal District Court for the District of Columbia, seeking judicial review of the so-called “Harvest Control Rule” adopted by the Mid-Atlantic Fishery Management Council last June, and approved in a final rule issued by the National Marine Fisheries Service early last month.

Regular readers of this blog will recall that I have frequently questioned whether the management action, which was neither endorsed by members of the Council’s Scientific and Statistical Committee nor supported by Council staff, complies with the Magnuson-Stevens Fishery Conservation and Management Act’s minimum standards for fishery management measures.  A federal district court will now answer those questions.

As is customary in actions of this type, the complaint names the Secretary of Commerce, Gina M.  Raimondo, NOAA Fisheries head Janet Coit, the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service as defendants.  It

“challenges the unlawful decision of the National Marine Fisheries Service (“NMFS”) to approve the Mid-Atlantic Fishery Management Council’s (“the Council”) Framework Adjustment 17 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (“Framework 17”), because it fails to comply with the annual catch limit requirement as mandated by the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. [sections] 1801-1891d (“Magnuson-Stevens Act” or “the Act”), and violates the Administrative Procedures Act, 5 U.S.C. [sections] 701-706 (“APA”).”

The thrust of the complaint is that Framework 17, which embodies the Harvest Control Rule, violates sections of the Magnuson-Stevens Fishery Conservation and Management Act which require NMFS and the regional fishery management councils to

“develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee”

or a peer review process described elsewhere in the Act, and also to

“establish a mechanism for setting annual catch limits in the plan (including a multiyear plan), implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.”

Traditionally, NMFS has set recreational harvest limits by first establishing an overall Annual Catch Limit, breaking that limit down into separate sector ACLs, one for the commercial and one for the recreational sector, then deducting predicted dead discards to arrive at the commercial landings quota and recreational harvest limit.  

Under such procedure, recreational catch—a combination of landings and dead discards—should theoretically never exceed the annual recreational catch limit.  However, because of the uncertainties inherent in fisheries management (and because the Council never adopted an Annual Catch Target to buffer against such uncertainties), recreational catch often rose too high, exceeding the recreational ACL.  When that occurred, management measures were modified in an effort to constrain landings to the recreational harvest limit.

Under the Harvest Control Rule, the Council will set a new “harvest target” that is calculated with some reference to both the Annual Catch Limit and Recreational Harvest Limit, but is constrained by neither.  

Instead, depending upon whether the predicted landings over the next two years (including the “confidence interval” that denotes the uncertainty inherent in such predictions, regardless of how large that confidence interval might be) are likely to be above, roughly equal to, or below the recreational harvest limit, and also depending upon the state of the managed stock (over 150% of the biomass target, between 100% and 150% of such target, or between target and threshold), the harvest target will either be increased by a predetermined amount, decreased by a predetermined amount, or remain unchanged.

Pursuant to the Harvest Control Rule, the harvest target for a very abundant species may, under some circumstances, be increased by as much as 40%, even if landings were already well in excess of the annual recreational catch limit.

NMFS will undoubtedly defend Framework 17 by arguing that, pursuant to such framework, the Council will still set an annual catch limit for each managed stock, in the same manner that it used to set such catch limits before Framework 17 was adopted.  We can also expect NMFS to argue, as Michael Pentony, the Regional Director of NMFS’ Greater Atlantic Region Fisheries Office argued in a June 3, 2022 letter to the Chairman of the Mid-Atlantic Council, that

“neither a recreational harvest limit nor a recreational sector-specific ACL are requirements of the Magnuson-Stevens Fishery Conservation and Management Act.  While an overall ACL as well as accountability measures are required, these are designated to prevent overfishing at the stock level.”

Both of those arguments seem to fail rational analysis.

With respect to the second point, while Mr. Pentony was correct in stating that Magnuson-Stevens doesn’t require a recreational harvest limit or a sector-specific ACL, such comments ignore the bigger picture—that the commercial and recreational ACLs together constitute the overall ACL, and that allowing either sector to exceed its annual catch limit increases the likelihood that the overall ACL will be exceeded.

The Harvest Control Rule only sets annual specifications for the recreational sector; in doing so, it operates completely independent from the commercial specifications or the performance of the commercial fishery.  As Council staff noted in a memo to Dr. Chris Moore, the Council’s executive director,

“the Council cannot recommend measures that are expected to result in recreational ACL overages unless it is also determined that the commercial sector will not achieve their full ACL.  None of the options in this framework/addenda are meant to impact the ability of the commercial sector to achieve their full ACL.  As such, recreational management measures must aim to prevent recreational ACL overages in order to proactively prevent overfishing and comply with the Magnuson-Stevens Fishery Conservation and Management Act.”

That opinion of Council staff was rejected in Mr. Pentony’s June 3, 2022 letter; however, it is consistent with the arguments made by the Natural Resources Defense Council in the complaint it filed last Monday.

Such argument is also consistent with the views expressed in the Senate Commerce, Science, and Transportation Committee’s report on the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, which created the annual catch limit requirement.  Such report states that

“The Committee expects that if a sector is likely to exceed its annual catch limit, the Council will restrict that sector’s harvest to ensure the sector stays within its annual catch limit.  [emphasis added]”

Thus, while Mr. Pentony was correct in stating that Magnuson-Stevens does not explicitly require the establishment of sector-specific annual catch limits, the legislative record clearly shows that Congress intended such sector-specific ACLs to be both established and honored. 

Such legislative intent also undercuts NMFS argument that, even with the Harvest Control Rule in place, the Council and NMFS will be in compliance with Magnuson-Stevens if it merely establishes an annual catch limit, even if it later sets a recreational harvest target that might cause such ACL to be exceeded, for it is clear that Congress intended the annual catch limit to not only be established, but observed.  As noted by the late Senator Ted Stevens (R-AK), the primary Senate sponsor of the 2006 Reauthorization Act,

“[T]his bill mandates the use of annual catch limits, which shall not be exceeded.  [emphasis added]”

Yet it is very clear that if the recreational sector is allowed to exceed its annual catch limit, as the Harvest Control Limit will often do, and the commercial sector lands its full quota and produces its predicted level of dead discards, the overall annual catch limit will be exceeded, something that Magnuson-Stevens does not allow.  Even the Environmental Assessment addressingthe final regulation adopting Harvest Control Rule admits and acknowledges thatsuch Control Rule

“cannot be demonstrated to proactively prevent overfishing every year in all circumstances.  The [Recreational Harvest Limit] accounts for the best available scientific information on stock status.  Therefore, even at high biomass levels, [Recreational Harvest Limit] overages can result in overfishing.”

NMFS tries to get around such facts by relying on recent fishery performance, which saw the commercial sector fail to land its entire quota of black sea bass and scup, and on the fact that the Harvest Control Rule will “sunset” no later than December 31, 2025, unless extended by the Council and NMFS.  However, the fact that a regulation might not yield an impermissible result in the short term does not mean that such regulation is valid; circumstances change, and if the Harvest Control Rule could, as written, result in the Council approving commercial and recreational landings levels that exceed the overall annual catch limit, and perhaps even the overfishing limit, in any year, then such Harvest Control Rule does not comply with existing federal fisheries law.

Because the Harvest Control Rule could easily result in a combined recreational harvest target and commercial quota that exceed the ACL, the Natural Resources Defense Council has asked a federal court to determine whether such rule meets the minimum standards of Magnuson-Stevens.

NMFS has 45 days to reply to the NRDC’s complaint.  In the meantime, the parties will agree on the sections of the administrative record that are relevant to the court's review, and might perhaps serve interrogatories or conduct depositions to determine whether other evidence is relevant to plaintiff’s or defendants’ arguments.  

Sometime late this summer or in the fall, the matter will probably be decided after both sides file motions for summary judgment, which argue that the facts of the matter are not in dispute, and request the court to apply the law to those facts and then render its decision. 

It's never a good idea to predict what a court will decide, but the plaintiffs seem to have made good arguments for why the final rule ought to be vacated.

That doesn’t mean that the Council and NMFS shouldn’t continue to look for new and innovative ways to manage robust recreational fisheries, like the current fisheries for scup and black sea bass.  It does mean that any such measures must comply with the law and the spirit of Magnuson-Stevens, be based on good science, and not be adopted simply to avoid taking inconvenient, and perhaps unpopular, management actions.

Personally, I hope that the NRDC will prevail.