New Lobster Regulations Do Not Violate Atlantic Coastal Act

Little Bay Lobster Co. v. Evans, 352 F.3d 462 (1st Cir. 2003).

T.B. Boardman, Jr., 3L1

Recently, the First Circuit Court of Appeals denied an appeal by the New Hampshire-based Little Bay Lobster Company (Little Bay) claiming: first, that the expansion of a stringently regulated fishing area was in conflict with certain national standards set forth in the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and; second, that the agency’s rule-making process denied Little Bay certain procedural safeguards afforded to it by the Regulatory Flexibility Act (RFA). The First Circuit denied both contentions reasoning that Little Bay had improperly argued its claims and that the rule-making agency met its requirements of reasonability.

Background
This case concerns Northeast lobster fishing and the enlargement of a stringently regulated area in the Gulf of Maine. In 1983, pursuant to its authorization under the MSA, the National Marine Fisheries Service (NMFS) implemented a fishery management plan (FMP), recommended by the New England Fishery Management Council (Council), to remedy the population decline of the Northeast lobster.

A decade after its implementation, a study revealed that the population was still in danger. As a result, a new FMP was developed delineating the Gulf of Maine into four distinct areas, each subject to different restrictions. Specifically pertinent to Little Bay was the boundary between the stringently regulated Area 1 and the less stringently regulated Area 3. Area 1 begins three miles offshore and extends seaward to the beginning of Area 3 thirty miles from the coast.

During the implementation of the 1983 FMP, Congress had adopted the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act). Congress charged the Atlantic States Marine Fisheries Commission (Commission) with the development, implementation and enforcement of coastal fishery plans. Although primarily concerned with regulating fisheries within state waters, when regulations do not exist for federal waters under the MSA, the Secretary of Commerce can adopt plans, under the Atlantic Coastal Act, for those federal waters so long as several requirements are met. For example, the Secretary must consult with the regional Councils and the plans must be consistent with the National Standards of the MSA.

In 1999, the NMFS proposed Amendment 3, which would withdraw the existing MSA regulations and adopt new regulations under the authority of the Atlantic Coastal Act. Specifically, not only would the new plan bestow more stringent regulations in both Areas 1 and 3 but would move the thirty mile boundary between the areas an additional twenty miles offshore. The consequences were significant for lobster fishermen, especially those accustomed to fishing in the area lying between the old boundary and the new. Following a public comment period, the Secretary adopted Amendment 3.

A number of Portsmouth, New Hampshire lobster boat operators, including Little Bay, brought suit in federal district court challenging Amendment 3. The district court granted summary judgment in favor of the Secretary, and this appeal ensued.

Failure to Consult
Little Bay claims that the Secretary’s failure to adequately consult the Council, a requirement of the Atlantic Coastal Act, unduly prejudiced Little Bay by not affording it an opportunity to appear before the Council and argue against the amendment. However, the First Circuit determined that “this is a standard harmless error argument” and looked to whether the decision would have been altered with more formal consultation. The court undertook this inquiry and held that “there is no reason to think that consultation would have produced a different result.”2 Therefore, Little Bay was not unduly prejudiced by the agency’s failure to formally consult.

National Standards
Little Bay then focused on a second condition mandated by the Atlantic Coastal Act; essentially, that the regulations must conform to the National Standards set forth in the MSA. Specifically, Little Bay contends that the new regulations are in conflict with National Standards 2, 4, and 8.

Standard 2: National Standard 2 provides that a FMP must be “based upon the best scientific information available.”3 Little Bay claims that the Secretary failed to present any scientific analysis or reasoning to support the shift in boundary line. Specifically, Little Bay refers to the unique restrictions of Area 3 which require a showing of historic participation to fish in that area. In this regard, it contends, a net increase in lobster catches will result since Area 3, prior to the amendment, was restricted only to those that could prove historic participation. With the change in boundary line, Area 3 can now be accessed by all. The court conceived the logic of the argument yet deemed it fatal since Little Bay failed to further develop the contention.

Standard 4: National Standard 4 provides that any action that “allocates or assigns fishing privileges . . . [be] . . . fair and equitable to all such fishermen.”4 Little Bay contends that the boundary shift was a form of allocation but the court quickly disposed of this argument by noting that the line shift does not in any way prevent fishermen from operating in any areas. That argument, the court remarked, would be once again focusing on the “historic participation” limitations which were not at issue in the case.

Standard 8: When adopting restrictions National Standard 8 requires the Secretary, “to the extent practicable,” to minimize the negative effects on local fishing communities.5 Little Bay argued that the EIS had not assessed the boundary line shift’s influence on local communities. The court agreed, but nonetheless found that the EIS analysis was not “clearly unreasonable” and therefore, satisfied the requirements of Standard 8. Its decision was based on a “rule of reason” that does not require every element of a plan to be addressed. Therefore, since the impacts of the boundary line shift were the subject of a full scale study and Little Bay failed to show why the impact was unreasonable, the Secretary did not act unreasonably.

Regulatory Flexibility Act
Little Bay’s final challenge was based on the RFA. This procedural safeguard, similar to that of National Standard 8, is intended to ensure that during the agency’s rule-making process attention is given to the concerns of small entities affected. Little Bay contended that separate attention was not given to comments regarding the change in the boundary line and therefore, it was deprived of its privileges afforded by the RFA. The court recognized that the agency’s final statement did little more than acknowledge that several commentators had objected to the boundary line and admitted that the agency did not separately analyze the impacts of new regimes with and without the boundary shift. Nonetheless, the court found that the agency’s obligation is simply to make a reasonable good faith effort to address comments and alternatives and there is no obligation to treat every element of a plan as a separate alternative.

Conclusion
An agency’s obligation, pursuant to National Standard 8 and the RFA, is merely to make a reasonable good faith effort to address comments and alternatives provided by affected parties. It is not required to assess every element of a plan separately. Additionally, the consultation requirement of the Atlantic Coastal Act was seemingly qualified by “unless there is no reason to think that consultation would have produced a different result.”6

Endnotes
1. Terrell is a student at Roger Williams School of Law in Bristol, Rhode Island, and is pursuing a Masters in Marine Affairs at the University of Rhode Island.
2. Little Bay Lobster Co. v. Evans, 352 F.3d 462, 468 (1st Cir. 2003).
3. 16 U.S.C. § 1851(a)(2) (2000).
4. Id. at § 1851(a)(4).
5. Id. at § 1851(a)(8).
6. Little Bay, 352 F.3d at 468.