17B amended complaint

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

 

 

RECREATIONAL FISHING ALLIANCE, INC.,

Plaintiff,                                                                   

 

v.

THE NATIONAL MARINE FISHERIES SERVICE,

Defendant.

_____________________________________________/

 

AMENDED COMPLAINT FOR DECLARATORY RELIEF

 

          Plaintiff, Recreational Fishing Alliance, Inc., by and through its undersigned counsel, brings this action against Defendant, National Marine Fisheries Service (“NMFS” or Defendant), and alleges:

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, 17 B 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, 17 B 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.” 17 B 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.       Recreational Fishing Alliance, Inc. is a New Jersey corporation and is a marine conservation and advocacy group with members throughout the United States, including Florida, Georgia, South Carolina and North Carolina. The Recreational Fishing Alliance, Inc.’s membership consists of recreational fishermen, conservationists, bait and tackle store owners, dive shop operators, fishing equipment manufacturers, marina owners, boat retailers, boat repairmen, and divers. Many of the Recreational Fishing Alliance, Inc.'s members live along the South Atlantic Ocean and fish its waters. Many of its members seek to catch fish within the grouper complex, and Recreational Fishing Alliance, Inc. has been actively involved in the management of various South Atlantic fisheries since its inception. It has participated in the development of many of the regulations and measures governing the Atlantic now in place and has generally supported efforts to enact recovery plans for at-risk fish in the Atlantic Ocean. Recreational Fishing Alliance, Inc.'s members are directly and adversely affected by the actions of which it complains.

3.       Defendant NMFS is an agency of the United States government with primary responsibility for 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 Snapper Grouper Fishery Management Plan which governs the grouper complex, NMFS has final management authority over Snapper and Grouper fish in the Atlantic Ocean. NMFS is the federal agency that approved the Amendment 17 B, which is the subject of this Complaint. NMFS is a sub-agency of NOAA within the United States Department of Commerce.

4.       The Deep Water Snapper/Grouper, Golden Tile and Snowy Grouper fisheries are conducted off the South Eastern coast of the United States in the EEZ. The grouper fishery is both a commercial and recreational fishery. The deep water snapper grouper complex consists of yellowedge grouper, misty grouper, warsaw grouper, snowy grouper, speckled hind, blueline tilefish, queen snapper, and silk snapper.

  

FACTUAL BACKGROUND

5.       The recreational take of Deep Water Snapper/Grouper, Golden Tile and Snowy Grouper  in the Atlantic Ocean in federal waters (beyond 3 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”). 17 B U.S.C. §1851(a). Regional councils submit FMPs to the Secretary of Commerce, who acts through NMFS. NMFS solicits public comment and reviews the FMPs to ensure they are consistent with the National Standards and other applicable laws. 17 B 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. 17 B U.S.C. §1854(a)(3).

          6.       Amendment 4 enacted in 1991 set a 12” minimum limit – red porgy, vermilion snapper (commercial only), gray, yellowtail, mutton, schoolmaster, queen, blackfin, cubera, dog, mahogany, and silk snappers, a 20” limit – red snapper, gag, and red, black, scamp, yellowfin, and yellowmouth groupers  an aggregate snapper bag limit of 10/person/day and an aggregate grouper bag limit – 5/person/day.

          7.       Amendment #6 enacted in 1993 included golden tilefish in grouper recreational aggregate bag limits and prohibited sale of warsaw grouper and speckled hind.

8.       The present controversy arises in connection with Amendment 17B to the Snapper/Grouper FMP for the South Atlantic, a document which spans 351 pages. See http://safmc.net/Portals/6/Library/FMP/SnapGroup/SnapGroupAmend17 BFINAL.pdf

S/G 17 B 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”).

9.       Amendment 17 B will prevent all bottom fishing in waters greater than 240 feet from the North Carolina/ Virginia border to Key West in the Atlantic Ocean.

10      ACLs and AMs are required by the MSA for any species 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.

11.     The fundamental flaw in Amendment 17B is that NMFS closes 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 premise that NMFS would be basing decisions on vastly-improved sources of data that it mandated be in place 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.  This a la carte usage of the MSA is another clear example of the arbitrary and capricious methods used by NMFS in the management of the fisheries.

12.     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 NMFS collect statistics for measuring effort and total catch. NMFS commenced the Marine Recreational Fishing Statistical Survey (“MRFSS”) program in 1979, which relies on dock intercepts and random telephone surveys.

13.     The MRFSS was not designed to provide real-time data to determine whether a quota is exceeded or an ACL is reached. NMFS acknowledges that the MRFSS

system is not designed or intended for this use. NMFS also acknowledges that MRFSS does not provide the required data required for this use..

14.     South Atlantic Fisheries Management Council Chairman Duane Harris testified before the Subcommittee on Insular Affairs, Oceans and Wildlife House Committee on Resources on October 27, 2009 on the flaws in MRFSS:

 

Concerns with recreational statistics provided through the Marine Recreational Fisheries Statistics Program (MRFSS) are well documented by many sources and need not be repeated here. What does bear additional comment is that statistics for many of the species managed by the South Atlantic Council are measured with considerable imprecision by the MRFSS, even by the program’s own standards. It is extremely difficult to develop effective accountability measures that can function adequately when those accountability measures must be applied to estimates that have confidence intervals that range from one-half to twice the estimated value and when even preliminary estimates are not available for as much as four months following the activities.

          15.     In 2006, Congress found that MRFSS was flawed and required NMFS to take very specific actions to correct it by January 1, 2009. See 17 B U.S.C. § 1881(g) (“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) The NRC concluded that:

          The designs, sampling strategies, and collection methods of recreational fishing surveys do not provide adequate data for management and policy decisions. Unknown biases in the estimators from these surveys arise from reliance on unverified assumptions. Unless these assumptions are tested and the degree and direction of bias reasonably estimated, the extent to which the biases affect final estimates will remain unknown. The statistical properties associated with data collected through different  survey techniques differ and are often unknown. The current estimators of error associated with various surveys products are likely to be biased and too low. It is necessary at a minimum to determine how those differences affect survey results that use differing methods.

(National Research Council, Review of Recreational Fisheries Survey Methods (2006))

 (C) NRC report recommendations. The program shall take into 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

                    17 B U.S.C. 1881(g)(3)

16.     This requirement to fix the broken MRFSS system has not been accomplished as required. A proposed system called the marine Recreational Information Program (MRIP) is the NMFS response to this and was released by NMFS on December 23, 2008. The implementation will not be effective until an unspecified date in the future and data from the system will not be available for a considerable time after that date.   

17.      The requirement of a system that provides reliable data is central to the time requirements of the MSA for the implementation of new regulations and the deadlines imposed. In ignoring the deadlines imposed by Congress, NMFS has shown its contempt for the requirements of the MSA and has acted arbitrarily and capriciously in continuing to implement regulations based upon what has been proven to be incomplete and incorrect data. These regulations will force businesses to close and cost thousands of Americans  who rely on those businesses for their livelihood their jobs and cripple communities.  

18.     NMFS is not in compliance with section 1881(g) and should be forbidden from implementing an accountability measure devised in Amendment 17 B unless the data on which it is based meets the standards set forth under the MSA.

19. 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.

17 B U.S.C. § 1881.

 

19.     Even without the mandate of the MSA to improve the quality of the data on which FMPs are based, Amendment 17 B and the underlying Deep Water Snapper/Grouper complex stock assessment are not based on the best available science.

20.     The existing National Standards in the MSA required that that “conservation and management measures . . . be based upon the best scientific information available.”

17 B U.S.C. §1851(a)(2).

21.     During public hearings, the Council received testimony that a portion of the large percent of 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.

          22.     Amendment 17 B also prohibits landings of 21. In 2005 in another action against the NMFS for acting once again exceeding its powers, Judge Steele in the case of Coastal Conservation Assn. v Gutierrez 2005 WL 2850325 (M.D Fla. 2005) ruled that NMFS could not close the entire grouper fishery to protect one species. Although this ruling is not directly applicable to the instant matter as it construed the limited power of NMFS relative to regulations, 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. many other Snapper and grouper fish that are not included in the Deep Water Grouper/Snapper complex.

COUNT I - Available Data does not Support Large Area Closures and

Violates the Mixed Stock Exception

23.     There is no data to support a wide area closure of the South Atlantic Ocean from 240’ seaward. The closure further violates National Standard 1 which states:

          (1) Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.

24.     The closure of a large number of fish to harvest in order to prevent bycatch from 1 or 2 does not allow for the optimum yield from those fisheries.

25.     In 2005 in another action against the NMFS for acting once again exceeding its powers, Judge Steele in the case of Coastal Conservation Assn. v Gutierrez 2005 WL 2850325 (M.D Fla. 2005) ruled that NMFS could not close the entire grouper fishery to protect one species. Although this ruling is not directly applicable to the instant matter as it construed the limited power of NMFS relative to regulations, 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.

26.     Only Snowy Grouper within the complex is listed as “overfished” all other are listed as unknown.

27.     The Deep Water Snapper Grouper complex for the purposes of Amendment 17B includes snowy grouper, blueline tilefish, yellowedge grouper, warsaw grouper, speckled hind, misty grouper, queen snapper, and silk snapper.

28.     Snowy Grouper is listed as experiencing overfishing and being overfished of these fish species targeted for regulation. (Source: NOAA Office of Sustainable Fisheries Third Quarter 2010 update)

29.     The data for Snowy Grouper is only available through 2002 (Table 1.1 Amendment 17B briefing book)

30.     Blueline Tilefish status is unknown in regard to being overfished, being overfished of approaching and overfished condition. (Source: NOAA Office of Sustainable Fisheries Third Quarter 2010)

31.     Yellowedge Grouper is listed as not undergoing overfishing and unknown as to whether it is being overfished or approaching an overfished condition. (Source: NOAA Office of Sustainable Fisheries Third Quarter 2010)

32.     Warsaw Grouper is listed as undergoing overfishing and unknown as to whether it is being overfished or approaching an overfished condition. (Source: NOAA Office of Sustainable Fisheries Third Quarter 2010)

33.     The data for Warsaw Grouper is only available through 1990 and the data has never been approved by the SSC. (Table 1.1 Amendment 17B briefing book)

34.     Speckled Hind is listed as undergoing overfishing and unknown as to whether it is being overfished or approaching an overfished condition. (Source: NOAA Office of Sustainable Fisheries Third Quarter 2010)

35.     The data for Speckled Hind is only available through 1999 and the data has never been approved by the SSC. (Table 1.1 Amendment 17B briefing book)

36.     Misty Grouper status is unknown in regard to being overfished, being overfished of approaching and overfished condition. (Source: NOAA Office of Sustainable Fisheries Third Quarter 2010)

37.     Queen status is unknown in regard to being overfished, being overfished of approaching and overfished condition. (Source: NOAA Office of Sustainable Fisheries Third Quarter 2010)

38.     Silk Snapper status is unknown in regard to being overfished, being overfished of approaching and overfished condition. (Source: NOAA Office of Sustainable Fisheries Third Quarter 2010)

39.     A number of shallow water fish in the Snapper/ Grouper complex also inhabit the area involved in this closure. Many of these fish are also not listed as undergoing overfishing or being overfished.

40.     The Deep water Snapper Grouper stock assessment is erroneous in part because it overestimates dead discards and release mortality by the recreational sector. The NMFS has arbitrarily set a 40% recreational release mortality figure without any scientific basis , this method has was criticized by the NRC when it stated “Unknown biases in the estimators from these surveys arise from reliance on unverified assumptions”

41.     There is no valid basis to close such a massive area of the Atlantic Ocean based upon the status of fish that the status NOAA admits is unknown.

COUNT II -NMFS Failed to Comply with Congressional Mandate to Replace MRFSS

          42.     There is not a scheduled stock reassessment for Deep Water Snapper Grouper. 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 permitted to pass regulations until such time as it has complied with the MSA requirements.

          43.     The NMFS and the SAFMC failed to conduct any economic studies or assessment to determine the economic impact in the South Atlantic area on communities from the possible alternatives to the enacted regulations as required by the Magnusson Stevens Act. 

National Standard (8) Conservation and management measures shall, consistent with the conservation requirements of this Act (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities.

          44.     The NMFS has ignored National Standard (8) in selecting the alternative that maximizes the adverse economic impact on the communities that rely upon fishing for their livelihoods, instead of selecting an alternative that would minimize the economic impact.   

          45.     The NMFS has failed to consider the “Mixed-Stock Exception” as required by 50 C.F.R. 600.310(d)(6)(i-iii). The stocks of a large number of the other fish within the grouper complex included in Amendment 17 B are healthy stocks and not declared to be undergoing overfishing, the angler’s ability to fish for these fish would be prohibited by this amendment. 

 

COUNT III - GOLDEN TILEFISH

          46.     The Golden Tilefish bag limits are set using an allocation that has been set using a 97% commercial 3% recreational allocation. This is in direct violation of National Standard 4:

(4) Conservation and management measures shall not discriminate between residents of different States. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges.

          47.     The 97% commercial/3% recreational allocation of Golden Tilefish violates 4(a) in that it is not either “fair or equitable” and 4(c) allows the commercial fishermen to acquire an excessive share of the fishery.

COUNT IV - SNOWY GROUPER

         

48.     The Snowy Grouper bag limit of 1 fish per boat is set using an allocation that has been set using a 97% commercial 3% recreational allocation. This is in direct violation of National Standard 4:

(4) Conservation and management measures shall not discriminate between residents of different States. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges.

          49.     The 97%commercial /3% recreational allocation of Snowy Grouper violates 4(a) in that it is not either “fair or equitable” and 4(c) allows the commercial fishermen to acquire an excessive share of the fishery.

COUNT V – BLACK SEA BASS

          50.     On January 28, 2011 National Marine Fisheries Service announced the closure of the recreational Black Sea Bass fishery from February 12, 2011 through June 1, 2011 in FB11-005.

          51.     NMFS had set the Annual Catch Limits at 409,000 pounds gutted weight for recreational landings of Black Sea Bass.

          52.     NMFS claims that the Annual Catch Limit has been reached the 409,000 pound limit and that has triggered the Accountability Measures contained in Amendment 17B initiating the closure.

          53.     NMFS has no reliable data on the Black Sea Bass recreational landings on which to base this closure.

          54.     All data that has been collected by NMFS to base this closure of the recreational fishery used the “fatally flawed” MRFSS system which has been mandated to be replaced by January 1, 2009 and which NMFS has failed to comply with the Congressional mandate. The closure fails to use the best available science to base the closure.

          55.     Due to the fact that NMFS has no basis for the determination that the annual catch limit has been reached, any closure is in direct violation of the Magnusson Stevens Act and Amendment 17B.

          56.     The Black Sea Bass closure is of a limited nature in 2011, but the closure is one that is expected to recur annually and is therefore subject to review by this court due to the fact that this will be an annual closure of Black Sea Bass.

 

COUNT VI - VIOLATION OF THE APPROVAL PROCEDURE OF SECTION 304 AND

ILLEGAL DELEGATION OF DUTIES

          57.     MSRA requires the Secretary of Commerce to take specific actions when a proposed rule is promulgated by the SAFMC as set forth below.

          58.     NMFS violated the MSRA section 304 by preempting the Secretarial review requirements prior to the adoption of Amendment 17B. Secretary Locke’s “delegating” his authority to the Regional Director for NOAA for final approval of Amendment 17B and the fact that Amendment 17B was ultimately approved not by Secretary Locke but by Samuel D. Rauch III,. the Deputy Assistant Administrator for Regulatory Programs with the NMFS.

          59.     Secretary Locke’s failure to sign off on Amendment 17B and the approval by Mr. Rauch is in clear violation of the provisions of the MSRA as set forth below.

          60.     The procedure for the review of an amendment is set forth in Section 304 of the MSRA:

                    Magnuson Stevens Reauthorization Act

          Section 304. ACTION BY THE SECRETARY 16 U.S.C. 1854

          (a) REVIEW OF PLANS.—

          (1) Upon transmittal by the Council to the Secretary of a fishery management plan or plan amendment, the Secretary shall—

          (A) immediately commence a review of the plan or amendment to determine whether it is consistent with the national standards, the other provisions of this Act, and any other applicable law; and

          (B) immediately publish in the Federal Register a notice stating that the plan or  amendment is available and that written information, views, or comments of interested persons on the plan or amendment may be submitted to the Secretary during the 60-day period beginning on the date the notice is published.

          (2) In undertaking the review required under paragraph (1), the Secretary shall—

          (A) take into account the information, views, and comments received from           interested persons;

          (B) consult with the Secretary of State with respect to foreign fishing; and

          (C) consult with the Secretary of the department in which the Coast Guard is operating with respect to enforcement at sea and to fishery access adjustments referred to in section 303(a)(6).

          (3) The Secretary shall approve, disapprove, or partially approve a plan or amendment within 30 days of the end of the comment period under paragraph (1)by written notice to the Council. A notice of disapproval or partial approval shall specify—

          (A) the applicable law with which the plan or amendment is inconsistent;

          (B) the nature of such inconsistencies; and

          (C) recommendations concerning the actions that could be taken by the Council to conform such plan or amendment to the requirements of applicable law.

          If the Secretary does not notify a Council within 30 days of the end of the comment period of the approval, disapproval, or partial approval of a plan or amendment, then such plan or amendment shall take effect as if approved.

          (4) If the Secretary disapproves or partially approves a plan or amendment, the Council may submit a revised plan or amendment to the Secretary for review under this subsection.

          (5) For purposes of this subsection and subsection (b), the term “immediately”  means on or before the 5th day after the day on which a Council transmits to the Secretary a fishery management plan, plan amendment, or proposed regulation  that the Council characterizes as final.

          (b) REVIEW OF REGULATIONS.—

          (1) Upon transmittal by the Council to the Secretary of proposed regulations prepared under section 303(c), the Secretary shall immediately initiate an evaluation of the proposed regulations to determine whether they are consistent with the fishery management plan, plan amendment, this Act and other applicable law. Within 15 days of initiating such evaluation the Secretary shall make a determination and—

          (A) if that determination is affirmative, the Secretary shall publish such regulations in the Federal Register, with such technical changes as may be necessary for clarity and an explanation of those changes, for a public comment period of 15 to 60 days; or

          (B) if that determination is negative, the Secretary shall notify the Council in writing of the inconsistencies and provide recommendations on revisions that would make the proposed regulations consistent with the fishery management plan, plan    amendment, this Act, and other applicable law.

          (2) Upon receiving a notification under paragraph (1)(B), the Council may revise the proposed regulations and submit them to the Secretary for reevaluation under   paragraph (1).

          (3) The Secretary shall promulgate final regulations within 30 days after the end of the comment period under paragraph (1)(A). The Secretary shall consult with the Council before making any revisions to the proposed regulations, and must publish in the Federal Register an explanation of any differences between the proposed and final regulations.

          (c) PREPARATION AND REVIEW OF SECRETARIAL PLANS.—

          (1) The Secretary may prepare a fishery management plan, with respect to any fishery, or any amendment to any such plan, in accordance with the national standards, the other provisions of this Act, and any other applicable law, if—

          (A) the appropriate Council fails to develop and submit to the Secretary, after a reasonable period of time, a fishery management plan for such fishery, or any necessary amendment to such a plan, if such fishery requires conservation and management;

          (B) the Secretary disapproves or partially disapproves any such plan or amendment, or disapproves a revised plan or amendment, and the Council involved fails to submit a revised or further revised plan or amendment; or

          (C) the Secretary is given authority to prepare such plan or amendment under this section.

          In preparing any such plan or amendment, the Secretary shall consult with the Secretary of State with respect to foreign fishing and with the Secretary of the department in which the Coast Guard is operating with respect to enforcement at sea. The Secretary shall also prepare such proposed regulations as he deems necessary or appropriate to carry out each plan or amendment prepared by him under this paragraph.

          (2) In preparing any plan or amendment under this subsection, the Secretary shall—

          (A) conduct public hearings, at appropriate times and locations in the geographical areas concerned, so as to allow interested persons an opportunity to be heard in the preparation and amendment of the plan and any regulations implementing the plan; and

          (B) consult with the Secretary of State with respect to foreign fishing and with the Secretary of the department in which the Coast Guard is operating with respect to enforcement at sea.

          (3) Notwithstanding paragraph (1) for a fishery under the authority of a Council, the Secretary may not include in any fishery management plan, or any amendment to any such plan, prepared by him, a provision establishing a limited access system, including any limited access privilege program unless such system is first approved by a majority of the voting members, present and voting, of each appropriate Council.

          (4) Whenever the Secretary prepares a fishery management plan or plan amendment under this section, the Secretary shall immediately—

          (A) for a plan or amendment for a fishery under the authority of a Council, submit such plan or amendment to the appropriate Council for consideration and comment; and

          (B) publish in the Federal Register a notice stating that the plan or amendment is available and that written information, views, or comments of interested persons on the plan or amendment may be submitted to the Secretary during the 60-day period beginning on the date the notice is published.

          (5) Whenever a plan or amendment is submitted under paragraph (4)(A), the appropriate Council must submit its comments and recommendations, if any, regarding the plan or amendment to the Secretary before the close of the 60-day period referred to in paragraph (4)(B). After the close of such 60-day period, the Secretary, after taking into account any such comments and recommendations, as well as any views, information, or comments submitted under paragraph (4)(B), may adopt such plan or amendment.

          (6) The Secretary may propose regulations in the Federal Register to implement any plan or amendment prepared by the Secretary. In the case of a plan or amendment to which paragraph (4)(A) applies, such regulations shall be submitted to the Council with such plan or amendment. The comment period on proposed regulations shall be 60 days, except that the Secretary may shorten the comment period on minor revisions to existing regulations.

          (7) The Secretary shall promulgate final regulations within 30 days after the end of the comment period under paragraph (6). The Secretary must publish in the Federal Register an explanation of any substantive differences between the proposed and final rules. All final regulations must be consistent with the fishery management plan, with the national standards and other provisions of this Act, and with any other applicable law.

          54.     The Secretary of Commerce failed as required by the MSRA to:

          a.       immediately commence a review of the plan or amendment to   determine whether it is consistent with the national standards, the other           provisions of this Act, and any other applicable law.

          b.       consult with the Secretary of State with respect to foreign fishing

          c.       consult with the Secretary of the department in which the Coast Guard is operating with respect to enforcement at sea and to fishery access  adjustments referred to in section 303(a)(6).

          61.     A prior Secretary of Commerce has attempted to delegate to NOAA such duties via Department Organization Order 10-15 effective May 28, 2004, which reads:

                    aa. The functions prescribed in the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1801 et seq. and other miscellaneous provisions), except that the Under Secretary/ Administrator shall advise the Secretary before any final action is taken with respect to the following functions:

                    1. Establishing guidelines to assist in the development of fishery management plans under subsection 301(b) of the Act;

                    2. Appointing or removing members of the Regional Fishery Management Councils under subsection 302(b)(2) or (5) of the Act;

                    3. Issuing preliminary fishery management plans and implementing regulations under subsection 201(h) of the Act, if the Under       Secretary/Administrator considers the action to be controversial; and

                    4. Approving, disapproving, partially disapproving, or issuing a fishery management plan or amendment, or issuing implementing or emergency regulations, under Sections 304 and 305 of the Act, if the Under    Secretary/Administrator considers the action to be controversial.

          62.     On July 28, 1995 NOAA had delegated authority to the Regional Director of NOAA.

                    DELEGATIONS OF AUTHORITY TO THE REGIONAL DIRECTOR,                                                             SOUTHEAST REGION

                    1.       Authority under the Magnuson Fishery Management and Conservation Act 16 U.S.C. 1801 et seq with the concurrence of the      Assistant Administrator for Fisheries, to approve, disapprove, or  partially     disapprove fishery management plans (FMPs) and amendments, except for  FMPs covering highly migratory species. This authority may be redelegated  only to the Deputy Regional Director.

          63.     This places the total and absolute authority in the hands of one individual, the Regional Director of the Southeast Region, to form and approve any Fishery Management Plan or regulation without approval, oversight or other restrictions.

          64.     NOAA Southeast Regional has used this power to draft and enact Amendment 17B without approval of the Secretary of Commerce as required by the MSRA.         

          65.     This delegation of absolute power to one individual is clearly in violation of Section 304 of the MSRA.    

 

CLAIMS FOR RELIEF

          66.     The accountability measures permitted in Amendment 17 B should be prohibited from implementation until and unless The National Marine Fisheries Service complies with its duties under the MSA to collect relevant data to manage the grouper fishery as required by Congress.

          67.     Amendment 17 B should be rejected as the NMFS has failed to comply with the consideration and application of the “Mixed-Stock Exception” to Amendment 17 B and has violated it by closing a large area of the Atlantic and a large number of fish to avoid bycatch.

          68.     SEDAR 4 – South Atlantic Deep Water Snapper/Grouper stock assessment completed in 2004 should be rejected as the product of the fatally flawed MRFSS program and agency predisposition and bias. The 2004 assessment did not employ the best available science and improperly rejected better and available information that the desired reduction in gag take was achieved without any action by the NMFS.

          69.     The allocation of 97% commercial 3% recreational for Golden tilefish must be reset to 50% commercial and 50% recreational as required by National Standard 4 of the MSA and the recreational bag limits set accordingly..

          70.     The allocation of 97% commercial 3% recreational for Snowy Grouper must be reset to 50% commercial and 50% recreational as required by National Standard 4 of the MSA and the recreational bag limits set accordingly.

          71.     The recreational Black Sea Bass closure should be adjudged to be in violation of the Magnusson Stevens Act and Amendment 17B.

           72.    Plaintiff should be permitted to engage in discovery regarding the claim that NMFS was predisposed to reduce the recreational take of gag grouper regardless of the state of the fishery in 2005 and permitted this bias to infect the 2006 stock assessment and the content of Amendment 17 B.

          73.     Award the Plaintiff attorney fees pursuant to 28 U.S.C. § 2412(d)(EAJA) and 5 U.S.C. § 704 (APA)

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Court enter an Order granting such relief as the Court deems equitable, just and proper under the circumstances as required by the APA and the MSA.

 

Respectfully submitted,

/s/ David R. Heil

David R. Heil, Esquire

David R. Heil, P.A.

2324 Lee Road

Winter Park, Florida 32789

(407)599-2100 (p)

(407)599-7733 (f)

Florida Bar # 453422

david@heil-law.com

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