Slash Creek Waterworks, Inc. v. Raimondo

• Court: District Court, District of Columbia
• Decided: January 31, 2025
• Docket: Civil Action No. 2023-1755
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SLASH CREEK WATERWORKS, : INC., et al., : : Plaintiffs, : Civil Action No.: 23-1755 (RC) : v. : Re Document Nos.: 11, 13, 32, 35 : GINA M. RAIMONDO, : Secretary of Commerce, et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANTS’

MOTION FOR PARTIAL SUMMARY JUDGMENT; DENYING PLAINTIFFS’ MOTION FOR SUMMARY

JUDGMENT; DENYING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiffs are commercial fishermen and seafood buyers who sued Defendants alleging

that portions of Amendment 43 to the Fishery Management Plan for the Snapper-Grouper

Fishery of the South Atlantic Region violated provisions of the Magnuson-Stevens Fishery

Conservation and Management Act. Plaintiffs contend that Defendants acted unlawfully by

failing to include so-called “dead discards” in the annual catch limit for South Atlantic red

snapper. The parties cross-moved for summary judgment. While those motions were pending,

Defendants promulgated a new temporary regulation. Plaintiffs filed a supplemental complaint,

and the parties briefed cross-motions for partial summary judgment. The Court concludes that

the case is justiciable but determines that Plaintiffs fail to show that Defendants violated the Act. As such, the Court grants summary judgment to Defendants and denies Plaintiffs’ motions for

summary judgment.

II. BACKGROUND

A. The Magnuson-Stevens Act

In 1976, in balancing the environmental interests in preventing overfishing and the loss of

marine habitat against the often competing economic interests of the United States’ fishing

industry, Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act

(“MSA”), Pub. L. No. 94-265, 90 Stat. 331 (1976) (codified as amended at 16 U.S.C. §§ 1801 et

seq.). The MSA established eight regional councils, which are charged with drafting fishery

management plans (“FMPs”) for each fishery under their control. See 16 U.S.C. § 1852(a)(1),

(h)(1). When a Council proposes an FMP or an amendment to an FMP, the proposal is

submitted to the Secretary of Commerce, who must approve, disapprove, or partially approve the

proposal. See id. § 1854(a)(3). 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.” Id. § 1854(b)(3). In practice, the

Secretary exercises her authority through the National Marine Fisheries Service (“NMFS”), a

division of the National Oceanic and Atmospheric Administration within the Department of

Commerce. See Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2254 (2024).

Section 1853(a) of the MSA sets forth the required components of FMPs. See 16 U.S.C.

§ 1853(a). FMPs proposed by the Councils, and any regulations promulgated to implement

FMPs, must also be consistent with the MSA’s ten “National Standards” for fishery conservation

and management. See id. § 1851(a). The MSA requires the Secretary to establish advisory

guidelines (the “Guidelines”) to assist in the development of FMPs based on the National

2 Standards, but the Act provides that the Guidelines do not have the force of law. See id.

§ 1851(b). NMFS promulgated a set of Guidelines interpreting the ten National Standards and

has amended the Guidelines over time to keep pace with various changes to the MSA itself. See

50 C.F.R. §§ 600.305–.355.

In 2007, Congress amended the MSA through the Magnuson-Stevens Fishery

Conservation and Management Reauthorization Act of 2006, Pub. L. No. 109-479, 120 Stat.

3575 (2007). The amendment included a new required provision for all FMPs, mandating that

FMPs “establish a mechanism for specifying annual catch limits . . . at such a level that

overfishing does not occur in the fishery, including measures to ensure accountability.” See id.

sec. 303(a), § 104(a)(10), 120 Stat. at 3584 (codified at 16 U.S.C. § 1853(a)(15)). The MSA

defines “overfishing” as “a rate or level of fishing mortality that jeopardizes the capacity of a

fishery to produce the maximum sustainable yield on a continuing basis.” 16 U.S.C. § 1802(34).

Agency regulations find a stock to be “overfished,” however, when its “biomass has declined

below” the minimum stock size threshold, which is in turn defined as “the level of biomass

below which the capacity of the stock or stock complex to produce [maximum sustainable yield]

on a continuing basis has been jeopardized.” 50 C.F.R. § 600.310(e)(2)(i)(E)–(F); see also

Lovgren v. Locke, 701 F.3d 5, 18 n.11 (1st Cir. 2012) (“[A]s used by the NMFS, these terms are

distinct.”); Guindon v. Pritzker, 31 F. Supp. 3d 169, 179 n.3 (D.D.C. 2014) (“Because it takes

time for biomass levels to recover, a stock may be designated as ‘overfished’ even when

‘overfishing’ is not currently taking place.”); Defs.’ Mem. in Supp. of Mot. Summ. J. at 4 n.2

(“Defs.’ Mot. Summ. J.”), ECF No. 13-1. Maximum sustainable yield (“MSY”) is “the largest

long-term average catch or yield that can be taken from a stock or stock complex under

prevailing ecological, environmental conditions.” 50 C.F.R. § 600.310(e)(1)(i)(A). When NMFS

3 says that a stock is “overfished,” therefore, it means that the stock is too small—not necessarily

that the rate or level of fishing mortality is too high.

Before bringing the FMPs themselves into compliance with the MSA’s new

requirements, NMFS first updated the Guidelines to set forth the Secretary’s interpretation of the

new requirements in light of the National Standards. Many of the regulations relevant to the

instant dispute relate to National Standard 1 (“NS1”), which provides that “[c]onservation and

management measures shall prevent overfishing while achieving, on a continuing basis, optimum

yield from each fishery for the United States fishing industry.” 16 U.S.C. § 1851(a)(1).

Optimum yield (“OY”) is defined as the amount of fish that “will provide the greatest overall

benefit to the Nation, particularly with respect to food production and recreational opportunities,

and taking into account the protection of marine ecosystems.” Id. § 1802(33)(A). OY is less

than or equal to the MSY. See 50 C.F.R. § 600.310(b)(2)(i).

The NS1 Guidelines set forth an overview of the components the Councils should apply

in complying with the MSA’s mandate. According to the NS1 Guidelines, the overfishing limit

(“OFL”) for a given stock is “the annual amount of catch that corresponds to the estimate of [the

Maximum Fishing Mortality Threshold (‘MFMT’)] applied to a stock or stock complex’s

abundance and is expressed in terms of numbers or weight of fish.” Id. § 600.310(e)(2)(i)(D). It

is set by first determining the MFMT, which is the annual rate of fishing mortality above which

overfishing will occur for a particular stock, see id. § 600.310(e)(2)(i)(C), and then applying the

MFMT to the stock’s total size, see id. § 600.310(e)(2)(i)(D). To serve the goal of preventing

the OFL from being exceeded, the Guidelines provide for the computation of acceptable

biological catch (“ABC”), which is a reduced version of the OFL that accounts for scientific

uncertainty in the estimation of the OFL. See id. § 600.310(f)(2)(ii).

4 At the center of this regime is the annual catch limit (“ACL”), which is a level of annual

catch at or below the stock’s ABC. See id. § 600.310(f)(4). The ACL is enforced by

accountability measures (“AMs”), which are in-season and post-season measures to prevent the

ACL from being exceeded, or to initiate corrective measures in the event that the ACL is

exceeded in a given fishing year. See id. § 600.310(g). FMPs must contain ACLs and AMs for

all managed stocks of fish in the fishery. See id. § 600.310(h).

National Standard 4 is also particularly relevant to this case, as it governs allocation and

assignment of fishing privileges “among various United States fishermen.” 16 U.S.C.

§ 1851(a)(4). When an FMP allocates fishing privileges among fishermen, the allocation must

not discriminate among citizens of different states and must 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.” Id. NMFS defines an “allocation” or “assignment” as “a direct and deliberate

distribution of the opportunity to participate in a fishery among identifiable, discrete user groups

or individuals.” 50 C.F.R. 600.325(c)(1).

B. Red Snapper and the Snapper-Grouper FMP

NMFS implemented the Snapper-Grouper FMP in 1983, AR 006866, 1 and the plan

currently manages 55 species of fish, including 10 snapper species. See 50 C.F.R. Part 622,

Appendix A, Table 2. Management decisions concerning South Atlantic red snapper are

informed by Southeast Data, Assessment and Review (“SEDAR”), a cooperative process to

assess fishery stocks in the South Atlantic, Gulf of Mexico, and Caribbean. AR 006882.

1 The Court refers to the administrative record, found in ECF No. 18, as “AR.” The Court additionally refers to the supplemental administrative record, found in ECF No. 39, as “SAR.”

5 Unfortunately, SEDAR assessments have demonstrated that red snapper stocks are chronically

overfished. In 2008, for instance, the SEDAR 15 stock assessment showed that red snapper was

overfished and subject to overfishing, AR 006883, prompting the South Atlantic Council to

develop Amendment 17A to the FMP in hopes of ending overfishing and rebuilding the stock,

AR 006867. That rule, which NMFS published in the Federal Register on December 9, 2010,

established a 35-year rebuilding plan and prohibited the harvest of red snapper—implementing

an ACL of zero—within the South Atlantic exclusive economic zone. See 75 Fed. Reg. 76874,

76874. On March 16, 2012, NMFS published Amendment 25, which included a rule

establishing a 28.07%-71.93% ACL split between the commercial and recreational sectors,

which continues to govern. See AR 010060; 77 Fed. Reg. 15916, 15924.

In 2013, NMFS published Amendment 28, which contained a mechanism under which at

least some red snapper harvest could take place. See 78 Fed. Reg. 44461. Under that scheme, if

the number of fish removed was less than the previous year’s ABC, then fishing for red snapper

would be allowed the following year. See id.; AR 006869. Using this process, harvest of red

snapper was permitted in 2012, 2013, and 2014, but prohibited in 2015 and 2016. See AR

010022.

In 2016, SEDAR 41 indicated that red snapper remained overfished and subject to

overfishing. See AR 002432; AR 002440. That report nonetheless showed an uptick in red

snapper biomass “to levels not seen since the 1970’s,” AR 010023, and NMFS determined that

permitting limited harvest of red snapper was “not likely to result in overfishing.” AR 010259.

NMFS thus allowed a harvest of 42,510 fish in 2017, setting a commercial ACL of 124,815

6 pounds of red snapper and a recreational ACL of 29,656 fish. 2 AR 010260. The agency based

this ACL on the number of landings observed during the 2014 fishing season, concluding that

“allowing that same amount of harvest in this temporary rule in 2017 is unlikely to result in

overfishing or change the red snapper rebuilding time period.” Id. NMFS provided for a

recreational season spanning six days in November 2017, as well as a commercial season

running from November 2, 2017, to December 31, 2017, or until the commercial ACL was

reached. Id.

So-called “dead discards” represent a major cause of overfishing within the red snapper

population. Fishermen generally hook red snapper at depths ranging from 141 to 234 feet, see

AR 006987, and fish released at the surface often die from the effects of barotrauma, hooking, or

predation, see AR 006852. The number of dead discards has grown in recent years due to an

increase in the minimum landing size, increases in the number of young fish, fishing moratoria,

and small catch limits beginning in 2012. See AR 009956. From 2010 to 2017, “estimates of

dead discards . . . accounted for most of the total removals (92%), likely a result of incidental

catch of red snapper while fishermen targeted co-occurring species.” AR 006981. Estimates for

“release mortality” rates range anywhere from 22 to 64 percent of fish released at the surface.

See AR 010168; SAR 012458. For instance, an estimated 406,249 fish were killed as “dead

discards” in 2016 even though NMFS set the ACL at zero. AR 006861. In addition, “the largest

component of fishing mortality for Red Snapper” during this time period “came from the dead

discards in the recreational fishery.” AR 005053. Dead discards are a subset of “bycatch,” which

2 “The commercial sector’s ACL is set in pounds of fish because the commercial sector reports landings in weight.” AR 010023.

7 the MSA defines as “fish which are harvested in a fishery, but which are not sold or kept for

personal use, and includes economic discards and regulatory discards.” 16 U.S.C. § 1802(2).

On July 16, 2018, NMFS published Amendment 43 to the FMP, which abandoned

Amendment 28’s year-to-year comparison and adopted an ongoing ACL of 42,510 fish divided

between the commercial and recreational sectors, again based on the number of landings

observed in 2014. See AR 010022. In May 2016, the South Atlantic Council’s Scientific and

Statistical Committee (“SSC”) recommended an OFL of 56,000 fish for 2018, consisting of

19,000 landed fish and 37,000 discarded fish, as well as a slightly lower ABC of 18,000 landed

fish and 35,000 discarded fish. See AR 009956; AR 005053; see also 16 U.S.C. § 1852(g)(1)(A)

(providing that each Council must establish “a scientific and statistical committee” to collect and

evaluate scientific information for the development and amendment of FMPs). The SSC asserted

at the time that these limits were based on the best scientific information available, although the

committee expressed that its “assessment findings were highly uncertain regarding to what extent

overfishing was occurring.” AR 009956; see also AR 007173 (explaining that “the number of

discards is dependent upon fisher recalls, and these estimates are expanded based on small

sample size”). This uncertainty prompted the South Atlantic Council to request further

information from the SSC and the NMFS Southeast Fisheries Science Center (“SEFSC”) over

the ensuing year. Id.

The Council asked the SEFSC, for instance, to provide red snapper projections under the

assumption that all fish caught are subsequently discarded, and zero landings are permitted. AR

009957. The SEFSC responded that dead discard assessments were too uncertain to set an ABC

that could be effectively monitored. Id. Given this uncertainty, the Council determined in

March 2017 that it “did not have a useful ABC for red snapper.” AR 009957. The SSC

8 concluded the following month that it was “unable to provide an ABC recommendation for Red

Snapper,” and that the projections from SEDAR 41—while still the best scientific information

available—were not useful for management and monitoring because of uncertainty in the catch

data. AR 009957. 3 The SEFSC and SSC planned to develop methods to conduct future red

snapper stock assessments to establish an ABC that could be effectively monitored. AR 009958.

While facing this uncertainty, the Council received information indicating that the red

snapper stock was recovering. In March 2017, the SEFSC informed the Council that the “red

snapper stock was still overfished but was rebuilding . . . , and that sufficient steps had been

taken to address overfishing of red snapper.” AR 009957. A June 2017 survey program

indicated “a steep upward trend in the relative abundance of red snapper.” AR 009958. While

red snapper was previously “rare” in those samples, it became “the eighth most abundant

species” in the survey. AR 009959. An additional study presented to the Council in September

2017 demonstrated further evidence of rebuilding progress in the red snapper stock. AR 009958.

Given this information and the lack of an operational ABC for management, the South Atlantic

Council concluded that permitting harvest of the same number of fish as occurred in 2014—

42,510 fish—would not result in overfishing or prevent continued rebuilding of the stock. Id.

NMFS adopted this catch limit in Amendment 43. The agency recognized that the

Council’s recommendation arose in the context of “not having an ABC that was usable for

management purposes.” AR 009959. NMFS noted that 16 U.S.C. § 1852(h)(6) requires

councils to develop catch limits “that may not exceed the fishing level recommendation of its

SSC.” Id. The National Standard 1 guidelines also prohibit the ACL from exceeding the ABC.

3 The SSC did not, however, retract or change its May 2017 ABC recommendation. AR 009957.

9 Id. (citing 50 C.F.R. § 600.310(f)(4)(i)). NMFS nonetheless concluded that the SSC’s most

recent ABC recommendation comprised 53,000 fish (18,000 landed fish and 35,000 discarded

fish) and that the 2014 catch limit of 42,510 fish did not exceed this ABC. 4 Id. Based on the

more recent surveys, NMFS concluded that allowing this level of harvest was “based on the best

scientific information available.” 5 AR 009960. NMFS again set a six-day recreational fishing

season and opened the commercial fishing season in late July. See AR 010024.

In March 2021, SEDAR 73 demonstrated once again that the red snapper “stock is not yet

rebuilt and is experiencing overfishing.” SAR 012002. The report nonetheless indicated that

stock had increased “rapid[ly]” since 2010. Id.; see also SAR 012092 (showing recovery in the

number of fish); but see SAR 012095 (showing slower recovery in terms of fish biomass and

age). Recreational dead discards remained high. According to data from SEDAR 73 and the

agency’s scientific committee, private recreational fishers accounted for an average of 590,000

dead discards per year from 2018 to 2022. See SAR 012458 (listing 23 percent estimated

mortality rate); SAR 012455 (listing 12,819,769 total discards by private boats from 2018-2022).

This represented more than 93 percent of total dead discards over the same period, which

averaged approximately 633,000 fish per year, with roughly 1.2 percent arising from the

commercial sector. 6 See id.; see also SAR 012354 (“Red snapper overfishing is being largely

4 Plaintiffs do not challenge the NMFS’s reasoning setting the ABC by totaling the SSC’s recommendations for landings and dead discards. See generally Pls.’ Corrected Memorandum in Support of Mot. Summ. J., ECF No. 12-1. 5 Plaintiffs do not contend that NMFS failed to rely on the best scientific evidence available. See Pls.’ Reply in Supp. Mot. Summ. J. and Opp. to Defs.’ Mot. Summ. J. (“Pls.’ Reply”) at 25–26, ECF No. 16 (discussing the requirements of National Standard 2, codified at 16 U.S.C. § 1851(a)(2)). Plaintiffs reaffirmed this position at the motions hearing. 6 Plaintiffs perform these calculations in their motion for partial summary judgment based on NMFS’s reported numbers, see Mem. in Support of Pls.’ Mot. Partial Summ. J. at 30, ECF No. 32-1, and Defendants do not contest the figures. The Court has verified these calculations.

10 driven by dead discards in the recreational sector, both during the directed red snapper fishing

season and during the closed red snapper season while fishers are targeting snapper-grouper

species that co-occur with red snapper.”). NMFS “notified the [South Atlantic] Council via letter

dated July 23, 2021,” that “[t]he results of SEDAR 73 indicated that the South Atlantic red

snapper stock remains overfished and is experiencing overfishing.” SAR 012495.

On May 25, 2023, NMFS published a temporary rule establishing the 2023 red snapper

fishing season, imposing the combined ACL established in Amendment 43. See AR 000001.

This included a commercial limit of 75 pounds of fish per day and a two-day recreational fishing

season with a bag limit of one fish per person per day. See AR 000001–02.

C. Procedural History and Post-Complaint Events

Plaintiffs filed this lawsuit on June 16, 2023, challenging Amendment 43 and the 2023

Temporary Rule on three bases. See Compl., ECF No. 1. Plaintiffs first contend that by

excluding dead discards from the ACL, the rules fail to establish a limit on the annual catch of

red snapper as the MSA requires. See id. ¶¶ 75–87 (citing 16 U.S.C. § 1853(a)(15)). Second,

Plaintiffs assert that this method of calculating the ACL is incapable of establishing catch limits

that prevent overfishing. See id. ¶¶ 88–100. Third, Plaintiffs allege that by failing to limit

recreational dead discards, Defendants have unlawfully conducted a de facto reallocation of

fishing privileges from the commercial sector to the recreational sector. See id. ¶¶ 101–14. The

parties then cross-moved for summary judgment, with Defendants arguing in part that Plaintiffs

lack standing to challenge the rules and that Plaintiffs’ claims concerning Amendment 43 are

time-barred. See generally Pls.’ Corrected Memorandum in Support of Mot. Summ. J. (“Pls.’

Mot. Summ. J.”), ECF No. 12-1; Defs.’ Mot. Summ. J.

11 On June 14, 2024, NMFS published a new temporary rule governing the 2024 red

snapper fishing season, which remained in effect until December 11, 2024. See SAR 012494.

The agency explained that it was “implementing interim measures to reduce overfishing of South

Atlantic red snapper in 2024 by reducing the commercial and recreational ACLs for 2024.” SAR

012495. “NMFS notified the [South Atlantic] Council in July 2021 that overfishing of red

snapper was occurring, but the Council ha[d] failed to take action to end overfishing as required

by the Magnuson-Stevens Act.” Id. The temporary rule reduced the ACL from 42,510 fish to

31,000 fish, which aligned with the recommendation made by the South Atlantic Council’s

scientific committee. SAR 012495. The length of the recreational fishing season was thus set at

one day, with the commercial fishing season expected to last 35 days. See SAR 012496 (noting

that “[t]he length of the red snapper recreational season ha[d] ranged from 2–9 days since

2017”). NMFS issued the rule under 16 U.S.C. § 1855(c)(1), which allows the Secretary to

“promulgate emergency regulations or interim measures necessary to address the emergency or

overfishing” if she “finds that an emergency exists or that interim measures are needed to reduce

overfishing for any fishery.” See SAR 012498.

In response to the new rule, Plaintiffs filed a Supplemented Complaint, raising the same

claims against the 2024 Temporary Rule, as well. See Suppl. Compl., ECF No. 26-3. The

parties then cross-moved for partial summary judgment related to the 2024 Temporary Rule,

with Defendants arguing that claims targeting Amendment 43 and the 2023 Temporary Rule

were moot. See generally Pls.’ Mem. in Supp. of Mot. Partial Summ. J. (“Pls.’ Mot. Partial

Summ. J.”), ECF No. 32-1; Defs.’ Mem. in Supp. of Mot. Partial Summ. J. (“Defs.’ Mot. Partial

Summ. J.”), ECF No. 35-1.

12 On May 15, 2024, two plaintiffs in this lawsuit filed a separate complaint against

Defendants, claiming that Defendants had failed to promulgate regulations to stop overfishing

and rebuild affected stocks of fish after the South Atlantic Council failed to submit proposed

regulations addressing the issue. See Compl. ¶¶ 79–91, Gray v. Raimondo, No. 24-cv-1431

(May 15, 2024) (citing 16 U.S.C § 1854(e)(5)). The plaintiffs in that case alleged that NMFS

had notified the South Atlantic Council of overfishing on July 23, 2021, and that the agency was

therefore required to prepare regulations by July 23, 2023. See id. ¶¶ 80–81. On August 20,

2024, the parties entered into a stipulated settlement agreement. See Stipulation of Settlement,

Gray v. Raimondo, No. 24-cv-1431 (Aug. 20, 2024). In that settlement agreement, NMFS

committed to “complet[ing] and submit[ting] to the Office of the Federal Register for publication

by June 6, 2025, a final rule implementing a Secretarial Amendment to stop overfishing on the

South Atlantic red snapper stock under 16 U.S.C. § 1854(c) & (e).” Id. ¶ 1.

On January 8, 2025, the parties appeared for a motions hearing before the Court pursuant

to 16 U.S.C. § 1855(f)(4). See Min. Entry dated Jan. 8, 2025.

III. LEGAL STANDARDS

In a typical case, a court may grant summary judgment to a movant who “shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). But when assessing administrative action, at the summary

judgment stage “the district judge sits as an appellate tribunal,” Am. Bioscience, Inc. v.

Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001), limited to determining whether, as a matter of

law, the evidence in the administrative record supports the agency’s decision, Citizens for Resp.

& Ethics in Wash. v. SEC, 916 F. Supp. 2d 141, 145 (D.D.C. 2013). “In the APA context,

summary judgment is the mechanism for deciding whether, as a matter of law, an agency action

13 is supported by the administrative record and is otherwise consistent with the APA standard of

review.” Gulf Restoration Network v. Bernhardt, 456 F. Supp. 3d 81, 93 (D.D.C. 2020).

The MSA provides for judicial review of “[r]egulations promulgated by the Secretary

under this chapter and actions” “taken by the Secretary under regulations which implement a

fishery management plan” “if a petition for such review is filed within 30 days after the date on

which the regulations are promulgated or the action is published in the Federal Register.” 16

U.S.C. § 1855(f). A district court may not enter injunctive relief, see id. § 1855(f)(1)(A), but it

may set aside agency action on any ground specified in 5 U.S.C. 706(2)(A)–(D), see id.

§ 1855(f)(1)(B).

Under Section 706(2)(A) of the APA, a reviewing court may set aside agency action if it

is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2)(A). Agency action is “arbitrary and capricious if the agency has relied on

factors which Congress has not intended it to consider, entirely failed to consider an important

aspect of the problem, offered an explanation for its decision that runs counter to the evidence

before the agency, or is so implausible that it could not be ascribed to a difference in view or the

product of agency expertise.” Motor Vehicle Ass’n v. State Farm Mutual Auto. Ins., 463 U.S. 29,

43 (1983). “Although this inquiry into the facts is to be searching and careful, the ultimate

standard of review is a narrow one. The court is not empowered to substitute its judgment for

that of the agency.” Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S. 402, 416 (1971).

Moreover, a change in policy or decision is arbitrary and capricious if the agency fails to

“provide a reasoned explanation for the change.” Encino Motorcars, LLC v. Navarro, 579 U.S.

211, 221 (2016).

14 When considering questions of law, however, courts must “apply[] their own judgment.”

Loper Bright, 144 S. Ct. at 2261. The APA “specifies that courts, not agencies, will decide ‘all

relevant questions of law’ arising on review of agency action—even those involving ambiguous

laws—and set aside any such action inconsistent with the law as they interpret it.” Id. (citation

omitted). The APA thus “prescribes no deferential standard for courts to employ in answering

those legal questions.” Id.

IV. ANALYSIS

The Court first considers whether this controversy is justiciable before proceeding to the

merits. The Court concludes that Plaintiffs have standing to challenge rules that regulate their

industry, that the controversy is not moot, and that it need not decide whether Plaintiffs’

challenge is timely. The Court then proceeds to the merits and determines that Plaintiffs have

failed to establish that the agency has violated the MSA.

A. Justiciability and Timeliness

1. Standing

Defendants contend that Plaintiffs have not demonstrated the necessary Article III

standing to bring this lawsuit. See Defs.’ Mot. Summ. J. at 18–24. Defendants argue that

Plaintiffs do not show how their injuries are fairly traceable to Defendants’ conduct because the

high level of dead discards occurs independently from NMFS rules regulating red snapper. Id. at

20. Defendants additionally argue that “Plaintiffs have not established that their hoped-for

economic benefits are likely to accrue if they prevail in this suit.” Id. According to Defendants,

an order requiring the agency to include dead discards in the ACL would not necessarily end

overfishing, help the red snapper stock rebuild sooner, or increase commercial trip limits. Id. at

21. Plaintiffs respond that they have standing because they are harmed by short seasons and low

15 trip limits, which negatively impact their livelihoods and cause economic injuries. Pls.’ Opp’n.

Mot. Summ. J. at 4–5, ECF No. 15; see also Oden Decl., ECF No. 11-3; Cox Decl., ECF No. 11-

4; Gray Decl., ECF No. 11-5; Giambanco Decl., ECF No. 11-6; Speckman Decl., ECF No. 11-7.

Their injuries are traceable to NMFS regulations because Defendants’ alleged failure to cabin

dead discards “has led to recent years of overfishing on the red snapper stock and corresponding

harm to stock health and future yield.” Id. at 6 (citations omitted). A favorable decision from

this Court would additionally prompt NMFS to promulgate regulations that address overfishing

and adhere to the governing allocation ratio between the commercial and recreational sectors,

Plaintiffs claim. See id. at 8–9. The Court concludes that Plaintiffs have standing to bring each

of their claims.

To demonstrate Article III standing, “a plaintiff must show (i) that he suffered an injury

in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely

caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief.”

TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (citing Lujan v. Defenders of Wildlife,

504 U.S. 555, 560–61 (1992)). “To establish injury in fact, a plaintiff must show that he or she

suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and

‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 578 U.S. 330, 339

(2016) (quoting Lujan, 504 U.S. at 560). “In sum, under Article III, a federal court may resolve

only ‘a real controversy with real impact on real persons.’” Transunion, 594 U.S. at 424

(quoting American Legion v. American Humanist Assn., 139 S.Ct. 2067, 2103 (2019).

The commercial fishermen certainly have standing to challenge regulations limiting their

catch of red snapper. “The Supreme Court has stated that ‘there is ordinarily little question’ that

a regulated individual or entity has standing to challenge an allegedly illegal statute or rule under

16 which it is regulated.” State Nat. Bank of Big Spring v. Lew, 795 F.3d 48, 53 (D.C. Cir. 2015)

(quoting Lujan, 504 U.S. at 561–62); see also Sierra Club v. E.P.A., 292 F.3d 895, 899–900

(D.C. Cir. 2002) (A “petitioner’s standing to seek review of administrative action is self-evident”

where “the complainant is ‘an object of the action (or forgone action) at issue.’” (quoting Lujan,

504 U.S. at 561–62)). As “directly regulated part[ies],” the commercial fishermen “plainly

ha[ve] standing to pursue [their] claims in this case.” Corbett v. Transportation Sec. Admin., 19

F.4th 478, 483 (D.C. Cir. 2021).

For this reason, courts generally conclude that fishermen have standing to challenge rules

that regulate the amount of catch in their fishery. In Guindon v. Pritzker, for instance, the court

determined that the plaintiffs had standing because they were “commercial red snapper

fishermen” who “allege that the challenged agency actions led to an overharvesting of red

snapper that threatens their livelihood.” 31 F. Supp. 3d 169, 187 (D.D.C. 2014). “It is self-

evident that overharvesting of red snapper” could impact their “interests in the fishery’s health,”

the court explained. Id. That reasoning is correct and directly applicable here. In addition,

shorter fishing seasons and low trip limits flow directly from the NMFS regulations at issue here.

See Pls.’ Opp’n. Mot. Summ. J. at 4–5. An order from this Court requiring NMFS to include

dead discards in ACL calculations would also likely alleviate Plaintiffs’ economic injuries, at

least to some degree. Counting dead discards against recreational fishers’ red snapper ACL

would invariably reduce those fishers’ share of landings, presumably leading to a larger share of

landings for commercial fishermen. Courts have repeatedly held that plaintiffs have standing in

analogous circumstances. See, e.g., N. Carolina Fisheries Ass’n, Inc. v. Gutierrez, 518 F. Supp.

2d 62, 81–83 (D.D.C. 2007) (finding standing where commercial fishermen challenged

management restrictions on commercial snapper-grouper fishery); Flaherty v. Bryson, 850 F.

17 Supp. 2d 38, 48 (D.D.C. 2012) (finding standing where plaintiffs claimed that their ability to

harvest striped bass was harmed by NMFS’s failure to adopt adequate conservation measure to

protect the Atlantic herring upon which striped bass feed); Am. Oceans Campaign v. Daley, 183

F. Supp. 2d 1, 10 (D.D.C. 2000) (finding standing where recreational fishermen alleged that

NMFS management measures failed to prevent commercial fishers from damaging fish habitats).

The commercial fishermen therefore have standing to pursue their claims in this action. 7

2. Mootness

Defendants additionally argue that the Court lacks jurisdiction over Plaintiffs’ claims

concerning the 2023 Temporary Rule because those claims are now moot. See Defs.’ Mot.

Partial Summ. J. at 7–12. The 2023 Temporary Rule has expired and was replaced by the 2024

Interim Rule, meaning that any litigation over the 2023 Temporary Rule “would improperly

invite the Court to render an advisory opinion without practical consequences.” Id. at 8.

Defendants also point to the settlement agreement in which NMFS committed to a Secretarial

Amendment that will be based on a different stock assessment than the one underlying

Amendment 43. See Defs.’ Reply in Supp. Mot. Partial Summ. J. at 2, ECF No. 38. Plaintiffs

respond that their claims based on the 2023 Temporary Rule and underlying Amendment 43

regulations are not moot because Amendment 43 remains governing law, and the 2024 Interim

Rule is only a temporary measure that must expire after 180 days. See Pls.’ Mot. Partial Summ.

J. at 8. In addition, Plaintiffs posit that the issue should be subject to the mootness exception for

actions capable of repetition yet evading review. Id. at 9. The Court agrees that the mootness

7 Because the Court determines that the fishermen have standing to pursue their claims, it need not address whether the seafood buyers have standing to pursue the same claims. See J.D. v. Azar, 925 F.3d 1291, 1323 (D.C. Cir. 2019) (“It is settled that in a case involving joined, individual plaintiffs bringing a shared claim seeking a single remedy, Article III’s case-or- controversy requirement is satisfied if one plaintiff can establish injury and standing.”).

18 exception applies even if expiration of the 2023 Temporary Rule would otherwise moot the

controversy.

“A case becomes moot . . . when the issues presented are no longer ‘live’ or the parties

lack a legally cognizable interest in the outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91

(2013) (internal quotation omitted). “[T]he mootness doctrine prohibits [a court] from deciding a

case if ‘events have so transpired that the decision will neither presently affect the parties’ rights

nor have a more-than-speculative chance of affecting them in the future.’” J. T. v. Dist. of

Columbia, 983 F.3d 516, 522 (D.C. Cir. 2020) (quoting Clarke v. United States, 915 F.2d 699,

701 (D.C. Cir. 1990) (en banc)). Unless and until “it becomes impossible for the court to grant

any effectual relief whatever to the prevailing party,” however, the case is not moot. United

States v. Philip Morris USA Inc., 566 F.3d 1095, 1135 (D.C. Cir. 2009).

There is an exception to mootness for actions that are “capable of repetition yet evading

review.” J. T., 983 F.3d at 523. This exception applies where “(1) the challenged action was in

its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a

reasonable expectation that the same complaining party would be subjected to the same action

again.” Id. (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). “To evade review, the

challenged action must be incapable of surviving long enough to undergo Supreme Court

review.” United Bhd. of Carpenters & Joiners of Am., AFL-CIO v. Operative Plasterers’ &

Cement Masons’ Int’l Ass’n of U.S. & Canada, AFL-CIO, 721 F.3d 678, 688 (D.C. Cir. 2013).

The Circuit applies a “rule-of-thumb” that “orders of less than two years’ duration ordinarily

evade review.” LaRouche v. Fowler, 152 F.3d 974, 978 (D.C. Cir. 1998); see also J.T., 983 F.3d

at 524 (observing that an order lasting one year is too short in duration to be fully litigated before

its expiration). An action is “capable of repetition” where there is “a reasonable degree of

19 likelihood that th[e] issue will be the basis of a continuing controversy between the[] two

parties.” Pharmachemie B.V. v. Barr Lab’ys, Inc., 276 F.3d 627, 633 (D.C. Cir. 2002) (quoting

Cent. Soya Co. v. Consol. Rail Corp., 614 F.2d 684, 689 (7th Cir. 1980)). Courts focus not on

“whether the precise historical facts that spawned the plaintiff’s claims are likely to recur,” but

rather on “whether the legal wrong complained of by the plaintiffs is reasonably likely to recur.”

Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 324 (D.C. Cir. 2009). “In

estimating the likelihood of an event’s occurring in the future, a natural starting point is how

often it has occurred in the past.” United Bhd. of Carpenters, 721 F.3d at 688 (quoting Clarke,

915 F.2d at 704).

The challenged actions here satisfy both prongs of this test. First, it is indisputable that

the 2023 Temporary Rule was “in its duration too short to be fully litigated prior to its cessation

or expiration.” J. T., 983 F.3d at 523. NMFS published the rule in the Federal Register on May

25, 2023, and it was effective from July 1 until November 30 of that year. AR 000001. The

agency then published the 2024 Interim Rule on June 14, 2024. AR 012494. This falls within

the one-to-two-year duration the Circuit has found to evade review. See LaRouche, 152 F.3d at

978; see also J.T., 983 F.3d at 524. The pace of briefing in this case further demonstrates that

the rule’s duration was too short for its legality to be litigated by the time it expired. Plaintiffs

filed their Complaint on June 16, 2023, just weeks after NMFS published the 2023 Temporary

Rule in the federal register. Yet the parties were only partway through summary judgment

briefing when the rule expired.

So too is there “a reasonable degree of likelihood that th[e] issue will be the basis of a

continuing controversy between the[] two parties.” Pharmachemie B.V., 276 F.3d at 633. The

parties do not dispute that Amendment 43, and its omission of dead discards from the ACL,

20 remains in effect. See AR 010022. Although NMFS has committed to a new rule

“implementing a Secretarial Amendment to stop overfishing on the South Atlantic red snapper

stock under 16 U.S.C. § 1854(c) & (e),” Stipulation of Settlement, Gray v. Raimondo, No. 24-cv-

1431 (Aug. 20, 2024), as Plaintiffs point out, NMFS has multiple options to address red snapper

overfishing, meaning that there is no reason to believe that the promised FMP amendment would

require inclusion of dead discards in the ACL. See Pls.’ Reply Supp. Mot. Partial Summ. J. at 3,

ECF No. 37. NMFS, for its part, does not commit to making this change in its proposed

amendment. See Defs.’ Reply Supp. Mot. Partial Summ. J. at 2–4. 8

Further evidence of the likelihood to recur can be found in the frequency with which

NMFS has deployed Amendment 43 in the past. See United Bhd. of Carpenters, 721 F.3d at

688. NMFS implemented Amendment 43 through temporary regulations every year from 2019

through 2023. See 84 Fed. Reg. 7827 (Mar. 5, 2019); 85 Fed. Reg. 36165 (June 15, 2020); 86

Fed. Reg. 30393 (June 8, 2021); 87 Fed. Reg. 31190 (May 23, 2022); AR000001–02. It is

therefore likely that NMFS will continue to use the same methodology in future years and

continue to omit dead discards from the ACL.

Courts in this Circuit have held similarly, and the cases Defendants cite do not counsel to

the contrary. The court in Guindon observed that “[t]he NMFS actions [p]laintiffs challenge are

precisely the sort of agency actions for which the ‘capable of repetition yet evading review’

exception exists” because they tend to recur annually, and fishing seasons can be rather short-

lived. 31 F. Supp. 3d at 188. Defendants nonetheless assert that other courts have found

8 The parties filed a notice indicating that NMFS has proposed Amendment 59 to the FMP, which would significantly revise the ACL. See Joint Notice of Filing Proposed Rule, ECF No. 41; Suppl. Joint Notice Regarding Proposed Rule for Secretarial Amendment 59, ECF No. 42. As that amendment has not been finalized, however, the relevant provisions of Amendment 43 remain in effect.

21 mootness where the challenged rules expired or were revised, see Defs.’ Mot. Partial Summ. J. at

8–9, but this case is dissimilar because the underlying regulation—Amendment 43—remains in

legal effect. In New York v. Raimondo, for instance, the plaintiffs challenged commercial fishing

quotas, but NMFS later revised its longstanding rule governing allocation. No. 1:19-CV-09380-

MKV, 2021 WL 1339397, at *1 (S.D.N.Y. Apr. 9, 2021). While the temporary rules setting

quotas for the 2020 and 2021 fishing season had also expired, see id., there is no indication that

the case would have been moot if—like here—the perennial allocation rule remained in effect.

So too in Gulf of Maine Fisherman’s Alliance v. Daley did NMFS adopt permanent FMP

amendments that overrode the challenged regulation. 292 F.3d 84, 87 (1st Cir. 2002); see also

Oceana, Inc. v. Locke, 831 F. Supp. 2d 95, 124 (D.D.C. 2011) (observing that courts often find

challenges to FMP amendments moot after “NMFS subsequently took the requested action

through a new amendment or framework adjustment while the case was pending” (emphasis

added)). Here, NMFS has not promulgated an amendment to the Snapper-Grouper FMP that

includes dead discards within the ACL, and so these cases are inapplicable.

The Court makes one limited caveat, however. To the extent that Plaintiffs continue to

challenge the NMFS regulations because the rules empirically have not prevented overfishing,

those claims are now moot. See Pls.’ Mot. Summ. J. at 31–34. NMFS has agreed, in a lawsuit

involving two of the Plaintiffs here, to publish “a Secretarial Amendment to stop overfishing on

the South Atlantic red snapper stock.” Stipulation of Settlement, Gray v. Raimondo, No. 24-cv-

1431 (Aug. 20, 2024). In that respect, there is no longer a real controversy between the parties

for the Court to resolve, as by granting relief to Plaintiffs, the Court would simply order

Defendants to take action they are already legally obligated to take. The Court thus cabins

Plaintiffs’ arguments regarding 16 U.S.C. § 1853(a)(15) to the assertion that Defendants’

22 practices are conceptually incapable of preventing overfishing in a manner that violates the

statute. See Pls.’ Mot. Summ. J. at 35–36; Pls.’ Mot. Partial Summ. J. at 26–27. Plaintiffs

appear to recognize this limitation in their supplemental briefing. See Pls.’ Opp’n Mot. Partial

Summ. J. at 13, ECF No. 36 (noting that the outcome of Claims 2 and 5 “does not turn on

whether overfishing occurs as a result of using NMFS’s annual catch limit for South Atlantic red

snapper”).

In sum, the Court finds that even assuming Plaintiffs’ challenge to the Temporary 2023

Rule and Amendment 43 is moot, the exception to mootness nonetheless applies. The Court may

therefore exercise jurisdiction over the case.

3. Timeliness

Defendants next argue that Plaintiffs’ challenge to the reasoning in Amendment 43 is

time-barred because they did not challenge that rule within the 30-day window imposed by 16

U.S.C. § 1855(f). See Defs.’ Mot. Summ. J. at 24–28. Plaintiffs respond that “Congress

amended the [MSA] in 1990 explicitly to allow cases such as this one to proceed,” Pls.’ Opp’n

Mot. Summ. J. at 13, and that they may challenge Amendment 43 by filing a lawsuit based on

the 2023 Temporary Rule because the latter is an action taken under the amendment, see id. at

19–24. The Court ultimately need not decide whether Plaintiffs’ lawsuit is timely.

While Courts consider challenges under the MSA using many of the same standards as

those brought under the APA, see 16 U.S.C. § 1855(f)(1)(A)–(B), the MSA contains a distinct

statutory scheme for the timing of those challenges. The MSA provides that “[r]egulations

promulgated by the Secretary under this chapter and actions described in paragraph (2) shall be

subject to judicial review . . . if a petition for such review is filed within 30 days after the date on

which the regulations are promulgated or the action is published in the Federal Register, as

23 applicable.” Id. § 1855(f)(1). That provision defines the relevant “actions” as those “taken by

the Secretary under regulations which implement a fishery management plan, including but not

limited to actions that establish the date of closure of a fishery to commercial or recreational

fishing.” Id. § 1855(f)(2).

The relevant question here is whether a plaintiff can challenge a regulation that

implements an FMP whenever the Secretary takes an “action” under that regulation. Defendants

naturally argue that a plaintiff may not do so. See Defs.’ Reply Supp. Mot. Summ. J. at 5–11,

ECF No. 17. One natural reading of the statute’s text is that a regulation is subject to review

within 30 days, and that an action is subject to review within 30 days as well. The provision’s

framing of the time limit as within 30 days of “the regulation” or “the action” implies this

parallel structure, and Plaintiffs’ reading may rewrite the text to render a regulation reviewable

“within 30 days after the date on which the regulations are promulgated or any subsequent action

taken under those regulations is published in the Federal Register.” 16 U.S.C. § 1855(f). In

addition, reopening the limitations period whenever NMFS takes action pursuant to a regulation

may “render the 30-day limitations period for regulations under 16 U.S.C. § 1855(f)(1) virtually

irrelevant.” Defs.’ Reply Supp. Mot. Summ. J. at 9; see also Oceana, Inc. v. Locke, 670 F.3d

1238, 1243 n.* (D.C. Cir. 2011) (noting that “the 30-day deadline in § 1855(f) for seeking

judicial review impl[ies] a congressional preference for immediate resolution.”).

Yet the opinions of two courts of appeals, on which Plaintiffs rely, provide a basis to

believe that Congress did intend to re-open underlying regulations to review whenever NMFS

takes subsequent action under the regulation. See Pls.’ Opp’n Mot. Summ. J. at 22. In Oregon

Trollers Association v. Gutierrez, the Ninth Circuit examined the statute’s legislative and

amendment history to determine whether the plaintiffs there could challenge a regulation sixteen

24 years after NMFS published it. 452 F.3d 1104, 1112 (9th Cir. 2006). The court first observed

that in 1989, the Fourth Circuit held—under a previous version of the statute—that fishermen

could not attack a regulation establishing an annual catch limit by challenging the Secretary’s

order closing the fishing season. See id. at 1113 (discussing Kramer v. Mosbacher, 878 F.2d 134

(4th Cir. 1989)). The court explained that “Congress amended § 1855(f)(1) in 1990 specifically

in order to change the result in Kramer,” id., and emphasized Senate and House reports to that

effect, see id. at 1114. The Ninth Circuit further reasoned that the statute allows for a lawsuit to

be filed within 30 days of “the date on which the regulations are promulgated or the action is

published in the Federal Register,” inferring that the disjunctive “or” “indicates that a petition is

timely if it is filed within thirty days of either promulgation of the regulation or publication of

the action.” Id. at 1113. The Eleventh Circuit has held similarly. See Gulf Fishermen’s Ass’n v.

Gutierrez, 529 F.3d 1321, 1323 (11th Cir. 2008).

Because the Court determines that Plaintiffs’ claims fail on the merits, it ultimately need

not determine whether the lawsuit was timely. The Supreme Court has made clear that a timing

rule becomes jurisdictional only when Congress makes a “clear statement” that it is so. Wilkins

v. United States, 598 U.S. 152, 158 (2023); see also Boechler, P.C. v. Comm’r of Internal

Revenue, 596 U.S. 199, 203 (2022) (providing that a court will “treat a procedural requirement as

jurisdictional only if Congress ‘clearly states’ that it is.”). As a result, “most time bars are

nonjurisdictional.” Wilkins, 598 U.S. at 158 (quoting United States v. Kwai Fun Wong, 575 U.S.

402, 410 (2015)). The text of § 1855(f) “does not clearly mandate the jurisdictional reading,”

25 Boechler, 596 U.S. at 204, and as such does not deprive the Court of jurisdiction even if

Plaintiffs’ lawsuit were untimely. 9

B. Merits

With preliminary issues resolved, the Court proceeds to evaluate the merits of Plaintiffs’

claims. The Court first considers whether exclusion of dead discards from the ACL violates the

MSA’s definition of “catch.” It next examines whether the practice categorically prevents

NMFS from complying with its statutory obligations to prevent overfishing. Finally, the Court

considers whether exclusion of dead discards from the ACL results in a de facto reallocation of

fishing privileges in violation of the MSA. As “Plaintiffs’ claim remains a statutory one,” Pls.’

Opp’n Mot. Summ. J. at 25, the Court’s primary task is to determine whether NMFS’s exclusion

of dead discards from the ACL contravenes Congress’s instructions in the MSA. 10

The parties additionally debate whether the 2024 Interim Rule is subject to the same

statutory requirements as Amendment 43 and the 2023 Temporary Rule. The Secretary is

empowered to “promulgate emergency regulations or interim measures necessary to address the

emergency or overfishing.” 16 U.S.C. § 1855(c)(1). Any regulation or measure is “treated as an

amendment to such plan for the period in which such regulation is in effect.” Id. § 1855(c)(3).

Defendants assert that “[b]ecause NMFS promulgated the 2024 Interim Rule under a different

9 Even if § 1855(f) were jurisdictional in nature, the Court may nonetheless “assume hypothetical statutory jurisdiction” to consider the merits here. Am. Hosp. Ass’n v. Azar, 964 F.3d 1230, 1246 (D.C. Cir. 2020) (citing Kramer v. Gates, 481 F.3d 788, 791 (D.C. Cir. 2007)) (emphasis removed). 10 Plaintiffs do not claim that NMFS failed to base conservation and management measures on the best scientific evidence available. See Pls.’ Reply at 25–26 (disclaiming any claims under National Standard 2). Plaintiffs also do not argue that the agency acted unlawfully by combining the SSC’s recommended landings and dead discards when determining that the ACL of 42,510 fish fell within the SSC’s fishing level recommendations. See generally Pls.’ Mot. Summ. J.; Pls.’ Reply.

26 statutory authority than those used for issuing an FMP and its implementing regulations, it is not

subject to the same requirements as an FMP.” Defs.’ Mot. Partial Summ. J. at 14. Plaintiffs

respond that the 2024 Interim Rule is subject to the general requirements of the MSA, in part

because another provision states that interim measures requested by a regional council should be

“otherwise in compliance with the provisions of this chapter.” 16 U.S.C. § 1854(e)(6); see also

Pls.’ Opp’n Mot. Partial Summ. J. at 12. According to Plaintiffs, the 2024 Interim Rule suffers

from the same infirmities as Amendment 43 and the 2023 Rule because it does not account for

dead discards within the catch limit. See id. at 14.; see also Pls.’ Mot. Partial Summ. J. at 9

(“[O]n a practical level, the merits analysis is the same across all the challenged actions in this

case—the 2024 Temporary Rule, the 2023 Temporary Rule, and the Amendment 43

regulations.”). Because the merits analysis is the same across each of these three rules, the Court

will assume, without deciding, that NMFS must adhere to the statutory requirements of 16

U.S.C. § 1853 governing fishery management plans when it publishes rules on an emergency or

interim basis under 16 U.S.C. § 1855(c).

1. Definition of “Catch”

Plaintiffs claim that NMFS has failed to implement an annual catch limit by excluding

dead discards from Amendment 43’s annual catch limit, and that this violates Congress’s

instruction that FMPs shall “establish a mechanism for specifying annual catch limits . . . at a

level such that overfishing does not occur in the fishery.” Pls.’ Mot. Summ. J. at 20 (quoting 16

U.S.C. § 1853(a)(15)). According to Plaintiffs, the word “catch” includes both landings and

dead discards, id. at 22, and the word “limit” means a value not to be exceeded, id. at 23.

Defendants assert that the MSA does not define “annual catch limit” and that Amendment 43 and

the 2023 Temporary Rule comply with the MSA’s requirements on their face. See Defs.’ Mot.

27 Summ. J. at 29. The Court agrees with Defendants that Congress did not define “annual catch

limit” to include dead discards, and that Plaintiffs thus cannot show that the agency failed to act

“in accordance with law.” 5 U.S.C. § 706(2)(A).

A recent D.C. Circuit decision largely resolves this issue. In A.P. Bell Fish Co., Inc. v.

Raimondo, commercial fishers challenged an FMP amendment, arguing in part that the

amendment “lack[ed] the required catch limits and accountability measures.” 94 F.4th 60, 63

(D.C. Cir. 2024). The plaintiffs there asserted that the amendment unlawfully “set the

overfishing limit in terms of landings, not catch.” Id. at 65. The D.C. Circuit observed that the

MSA “does not define ‘catch’” and that “[t]he overfishing limit recommended by the Council

accounts for all sources of mortality, including bycatch, because the stock assessment factors in

that mortality.” Id. (quotations omitted). “Because the annual catch limits are based on that

overfishing limit, the annual catch limits account for bycatch in the same fashion.” Id. The court

continued to conclude that “Section 1853(a)(15) requires only the establishment of [annual catch

limits and accountability measures] such that overfishing does not occur, and does not require

the further step of setting an overfishing limit . . . that more directly accounts for bycatch.” Id.

(quotations omitted).

This reasoning is controlling here. Plaintiffs seek to distinguish A.P. Bell because the

court there “was examining whether a non-statutory value, the overfishing limit (a precursor

value to the annual catch limit), must be set in terms of total catch.” Pls.’ Opp’n Mot. Partial

Summ. J. at 10. Yet because “the annual catch limits are based on th[e] overfishing limit,” see

28 Pls.’ Mot. Partial Summ. J. at 22, it would make little sense for the Circuit to permit NMFS to

omit dead discards from the OFL but require the agency to include dead discards in the ACL. 11

Plaintiffs’ remaining arguments are unavailing. Congress’s use of the term “landings”

elsewhere in the statute does not imply that it intended “catch” to comprise landings and bycatch.

See Pls.’ Mot. Summ. J. at 22-23. To the contrary, Congress was plainly aware of the concept of

bycatch, see 16 U.S.C. § 1802(2), but declined to specify that an annual catch limit must account

for it, see 16 U.S.C. § 1853(a)(15). Instead, Congress merely instructed that the ACL must be

set “at a level such that overfishing does not occur.” Id. In addition, although NMFS guidelines

do include dead discards within the definition of “catch,” see 50 C.F.R. § 600.310(f)(1)(i), those

guidelines do not have force and effect of law, see 16 U.S.C. § 1851(b). Plaintiffs provide no

other indicia of what Congress meant by “annual catch limit” and therefore cannot show that

NMFS violated Congress’s instructions by omitting dead discards from the calculation.

The Court also observes that NMFS’s approach is not entirely unreasonable. The South

Atlantic Council, the agency, and the entities’ scientific committees repeatedly found a high

level of uncertainty in dead discard estimates. See AR 007174; AR 010022; AR 002432. As

such, “discard estimates . . . carr[ied] too high a degree of uncertainty to allow their use for

management action.” AR 009958. This uncertainty in the number of dead discards also

prompted the Council’s SSC to conclude that it was unable to provide an ABC recommendation

for red snapper. AR 009957. It was thus reasonable for NMFS to set fishing limits using landed

fish only, as it concluded that counting dead discards was impractical.

11 Plaintiffs also argue that the Circuit’s decision in A.P. Bell is “was conceptually incoherent and appears premised on a factual misunderstanding.” Pls.’ Opp’n Defs.’ Mot. Partial Summ. J. at 10. As this Court must follow D.C. Circuit precedent, this is the incorrect forum to raise this critique.

29 Because Defendants have not violated the MSA by excluding bycatch and dead discards

from the annual catch limit, but rather accounting for those figures elsewhere in their

considerations, they are entitled to summary judgment on Counts One and Four of the

Supplemental Complaint.

2. Prevention of Overfishing

Plaintiffs claim that the methodology employed in Amendment 43 not only fails to limit

the catch, but that it is categorically incapable of preventing overfishing of South Atlantic red

snapper as the MSA requires. See Pls.’ Mot. Summ. J. at 35–36. According to Plaintiffs, setting

the ACL using landings alone will inevitably result in overfishing. See Pls.’ Opp’n Mot. Partial

Summ. J. at 14. Defendants argue that NMFS reasonably concluded that setting the ACLs in the

temporary rules pursuant to Amendment 43 would prevent overfishing, see Defs.’ Mot. Summ. J.

at 41–43, and that this level is consistent with the SEDAR 73 stock assessment, id. at 43–46.

The Court does not agree that excluding dead discards from the ACL categorically prevents

NMFS from preventing overfishing.

The most coherent form of Plaintiffs’ argument appears in their briefing on the cross-

motions for partial summary judgment. See Pls.’ Mot. Partial Summ. J. at 26–27. According to

Plaintiffs, South Atlantic red snapper would experience overfishing even if the agency set the

ACL at zero. Id. at 26. It is thus “not a credible interpretation of the [MSA] to say that a

landings-only annual catch limit for South Atlantic red snapper, which excludes the most

important source of fishing mortality, is what Congress intended when it required catch limits to

be set ‘at a level such that overfishing does not occur.’” Id. at 27 (quoting 16 U.S.C.

§ 1853(a)(15)). “This is true as a conceptual matter, and does not depend on the specifics of

exactly how many dead discards occur in a given year.” Id. at 27; see also Pls.’ Reply at 38

30 (arguing that Amendment 43 “established a mechanism for annual catch limits that simply is

incapable of preventing overfishing”). Plaintiffs thus challenge the formula the SSC, Council,

and NMFS use rather than its application to the specific data here.

Plaintiffs’ argument boils down to the assertion that by excluding dead discards from the

ACL, the OFL will always be exceeded, and that this method violates § 1853(a)(15) in all cases.

There is no reason, however, to believe that NMFS cannot address overfishing when excluding

dead discards from the ACL. This is so because NMFS regulations allow the agency to prevent

overfishing “‘as long as estimates of bycatch and any other fishing mortality not accounted for in

the landings are incorporated into the determination of’ the annual catch limit.” A.P. Bell Fish

Co., Inc. v. Raimondo, No. 22-cv-1260, 2023 WL 6159985, at *17, n.10 (D.D.C. Sept. 21, 2023),

rev’d on other grounds, 94 F.4th 60 (D.C. Cir. 2024) (quoting 50 C.F.R. § 600.310(f)(3)(i)). The

agency’s approach to the perennial ACL found in Amendment 43 demonstrates this mechanism.

The SSC’s initial OFL incorporated both landed fish and discarded fish, and the committee

similarly based its recommended ABC on these numbers. See AR 009956; AR 005053. The

initial figures therefore accounted for dead discards when the scientific committee provided its

recommendation to the South Atlantic Council and eventually NMFS. The South Atlantic

Council and NMFS then formulated an ACL based on the landings portion of the ABC but

declined to count discards in the same figure because it found discards difficult to track and

implement as part of a management action. See AR 009958; AR 007173. Yet because the ACL

is based on the ABC and OFL, which both account for dead discards, inputting a higher number

for expected bycatch at the beginning of this process would naturally lead to a lower landings-

only ACL at the end of the process. Where a scientific committee places the OFL at 56,000 fish,

and expects 37,000 dead discards, it stands to reason that an ACL of 19,000 landed fish would

31 not exceed the OFL. See AR 005053. Plaintiffs are thus incorrect that this “mechanism . . .

simply is incapable of preventing overfishing.” Pls.’ Reply at 38. 12

It is true that the numbers in this case greatly skew these metrics. In May 2016, when the

SSC recommended an OFL of 53,000 fish for 2017 and 56,000 fish for 2018, see AR 003975,

the prior year saw approximately 274,000 dead discards even though NMFS set the catch limit at

zero, AR 006861. Recall that the OFL is set at a level necessary to prevent overfishing, see 50

C.F.R. § 600.310(e)(2)(i)(D), and that the ABC is set accounting for “scientific uncertainty in the

OFL,” id. § 600.310(f)(2)(ii). Given the high number of dead discards in this specific instance, it

may well be that any landings-only ACL above zero would fail to address overfishing, given that

the number of dead discards would exceed the OFL and ABC many times over.

Yet, again, this is not what Plaintiffs argue. Plaintiffs assert that “[t]he nature of Claims

2 and 5 is such that the outcome does not turn on whether overfishing occurs as a result of using

NMFS’s annual catch limit for South Atlantic red snapper.” Pls.’ Opp’n Mot. Partial Summ. J.

at 13. Plaintiffs do not argue, for instance, that “NMFS set the wrong numerical value for the

12 Plaintiffs suggest in passing—while discussing their argument regarding reallocation of fishing privileges—that NMFS could require recreational fishers to “stop fishing for other snapper-grouper species once they hit their red snapper catch limit.” Pls.’ Opp’n Mot. Summ. J. at 43. Given that dead discards often result from fishermen targeting species that co-occur with red snapper, see AR 006981, it is conceivable that this policy could ameliorate overfishing of red snapper. Yet Plaintiffs do not explore this issue in any depth, do not make their suggestion in relation to the overfishing claim, and do not explore any legal basis for it. Plaintiffs target the South Atlantic red snapper ACL specifically and make no argument as to the ACLs set for other fish in the Snapper-Grouper FMP.

Plaintiffs additionally suggest that the agency’s approach is unlawful because the inclusion of dead discards in upstream values does not create a firm limit on the number of dead discards. See Pls.’ Mot. Partial Summ. J. at 19–23. Plaintiffs suggest, for instance, that projected dead discards have “no regulatory effect on the water.” Id. at 19. This argument presupposes that the MSA requires the ACL to include dead discards, a notion that the D.C. Circuit has rejected. See A.P. Bell, 94 F.4th at 65.

32 catch limit in the 2024 Temporary Rule . . . because the value used fails to prevent overfishing.”

Id. at 14 n.8; see also Pl.’s Reply at 35 (rejecting the agency’s “framing” of the issue “as

reasonableness review of an agency management action”). “Rather,” Plaintiffs explain, “the

claim is that NMFS’s annual catch limit is conceptually incapable of being set ‘at a level such

that overfishing does not occur.’” Pls.’ Opp’n Mot. Partial Summ. J. at 13 (quoting 16 U.S.C.

§ 1853(a)(15)). The mechanism, in other words, is flawed.” 13 Id. at 13. But as the Court has

explained, the mechanism employed to calculate the ACL is not inherently faulty, as it can

effectively account for dead discards when the OFL and ABC are calculated, shrinking the ACL

for landed fish accordingly. To the extent that the Council and NMFS may have incorrectly or

unreasonably applied that formula here, however, Plaintiffs rather clearly disavow that form of

challenge to the agency’s rules. 14

Plaintiffs may also prove too much by arguing that NMFS’s actions are unlawful because

red snapper would experience overfishing even if the agency set the ACL at zero. See Pls.’ Mot.

Summ. J. at 35–36; Pls.’Mot. Partial Summ. J. at 26. By this logic, the agency would act

unlawfully no matter what approach it took to the ACL in Amendment 43 and the subsequent

temporary rules. Assume for the moment an OFL of 56,000 fish, where the SSC expects dead

discards totaling 100,000 fish. Under the methodology employed in the process of formulating

Amendment 43, the landings portion of the OFL and ABC would be set at zero, and the

landings-only ACL would similarly be zero. It is not apparent how NMFS could neglect its

13 Plaintiffs reaffirmed at the motions hearing that they do not challenge the specific numbers NMFS used here, but rather the structure and mechanism NMFS uses to set them. 14 Furthermore, to the extent Plaintiffs assert that NMFS has empirically failed to prevent overfishing, those claims are now moot because NMFS is already obligated to remedy that harm. See supra in Section IV.A.2.

33 obligation to “specify[] annual catch limits . . . such that overfishing does not occur” by

prohibiting the catch in its entirety. 16 U.S.C. § 1853(a)(15).

Because NMFS can prevent overfishing even when it excludes dead discards from the

ACL, Defendants are entitled to summary judgment on Counts Two and Five of the

3. De Facto Reallocation

Plaintiffs also claim that by failing to count the recreational sector’s dead discards, the

NMFS regulations at issue amount to a de facto reallocation of fishing privileges away from

commercial fishermen in violation of the MSA. See Pls.’ Mot. Summ. J. at 36–40. Plaintiffs

additionally argue that NMFS has failed to demonstrate that this reallocation is “‘fair and

equitable’ and ‘reasonably calculated to promote conservation,’ as required under National

Standard 4.” Id. at 39. Defendants claim that the regulations do not amount to an allocation and

that recreational fishermen do not benefit from any reallocation because they may not retain red

snapper outside the fishing season. See Defs.’ Mot. Summ. J. at 46–48. Defendants also assert

that even if the regulations resulted in reallocation, the allocation would remain fair and

equitable, as well as reasonably calculated to promote conservation. Id. at 48–54. The Court

concludes that Amendment 43, the 2023 Temporary Rule, and the 2024 Interim Rule do not

allocate fishing privileges or harvest restrictions. To the extent that these regulations do allocate

fishing privileges or harvest restrictions, however, they do so in a manner that is fair and

equitable and reasonably calculated to promote conservation.

National Standard 4 provides that

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

34 in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges.

16 U.S.C. § 1851(a)(4). In addition, where “rebuilding plans or other conservation and

management measures which reduce the overall harvest in a fishery are necessary,” an FMP

must “allocate, taking into consideration the economic impact of the harvest restrictions or

recovery benefits on the fishery participants in each sector, any harvest restrictions or recovery

benefits fairly and equitably among the commercial, recreational, and charter fishing sectors in

the fishery.” Id. § 1853(a)(14). The MSA does not define the term “allocation,” but NMFS

defines it as “a direct and deliberate distribution of the opportunity to participate in a fishery

among identifiable, discrete user groups or individuals” and excludes “incidental allocative

effects” of management measures. 50 C.F.R. § 600.325(c)(1). The MSA also does not define

“fishing privileges,” but it does define “fishing” in part as “the catching, taking, or harvesting of

fish,” any attempt to do so, or “any other activity which can reasonably be expected to result in

the catching, taking, or harvesting of fish.” 16 U.S.C. § 1802(16).

As Plaintiffs recognize, the MSA’s definition of the word “fishing” “does not on its own

answer whether dead discards are included.” Pls.’ Reply Supp. Mot. Summ. J. at 42. As such,

the MSA does not say whether dead discards must be included in the notion of “fishing

privileges” under National Standard 4 either. See 16 U.S.C. § 1802(16); 50 C.F.R. § 600.325.

Plaintiffs argue, however, that Congress’s intention for the word “harvest” to include dead

discards can be found within the definition of “bycatch.” Pls.’ Reply Supp. Mot. Summ. J. at 42.

Because “bycatch” comprises fish “harvested in a fishery . . . and includes economic discards

and regulatory discards,” Plaintiffs argue, this means the “harvest[ing]” of fish always includes

dead discards. Id. (quoting 16 U.S.C. § 1802(2)). And because the definition of “fishing”

includes “harvesting” fish, then “fishing” must include harvesting dead discards as well. Id. But

35 when Congress defined “bycatch” to include dead discards, it did not state that the word

“harvested” includes dead discards, as well. See 16 U.S.C. § 1802(2). Nor does the MSA define

“fishing” or “fishing privileges” to include discards. See 16 U.S.C. § 1802(16). The MSA

therefore does not require NMFS to consider shifts in the ratio of dead discards between the

commercial and recreational sectors to be “allocat[ion] or assign[ment of] fishing privileges

among various United States fishermen” under National Standard 4. 16 U.S.C. § 1851(a)(4).

Nor can the rules at issue here be said to “allocate” fishing privileges or harvest

restrictions under National Standard 4 and 16 U.S.C. § 1853(a)(14). See Defs.’ Mot. Summ. J. at

46–48. Allocation is a deliberate act—in other words, one does not “allocate” by accident or

inactivity. See Allocate, Oxford English Dictionary (2d ed. 1989) (“[T]o make a distribution or

apportionment of (something) among several recipients, responsible parties, etc.”); see also 50

C.F.R. § 600.325(c)(1) (defining allocation of fishing privileges as “a direct and deliberate

distribution”); Nat’l Coal. For Marine Conservation v. Evans, 231 F. Supp. 2d 119, 131 (D.D.C.

2002) (holding that a fishing closure with “incidental allocative effects” was not allocative

because it did “not directly distribute fishing privileges, quotas or ocean areas among different

groups of fishers”). NMFS and the South Atlantic Council allocated red snapper between the

commercial and recreational sectors through FMP Amendment 25 in 2012 when they set the

commercial and recreational allocations of red snapper at 28.07 percent and 71.93 percent,

respectively. See AR 010060; 77 Fed. Reg. 15916, 15924. Neither the Council nor NMFS has

allocated fishing privileges, harvest restrictions, or recovery benefits simply because dead

discards have incidentally risen, albeit by a significant amount. No further allocation of

allowable catch has taken place in the years since Amendment 25 was published, and this

longstanding allocation has not been revisited in more than a decade.

36 In addition to this allocation ratio, the number of permitted landed fish has also remained

largely unchanged for a decade. Fishermen harvested approximately 42,510 fish in 2014, and

NMFS set the ACL at that number when fishing resumed in 2017. AR 010260; AR 010022.

NMFS again used this number as the perennial ACL in Amendment 43. AR 010022. The only

decrease in the ACL came in 2024 when NMFS reduced the allotments for both the commercial

and recreational sectors. AR 000001–02. It can hardly be said that any of these actions

constituted an allocation of catch from one sector to the other.

Plaintiffs cite Guindon for the proposition that de facto allocations are unlawful. See

Pls.’ Mot. Summ. J. at 38–39. In that case, the FMP established a “51/49 split” between the

commercial and recreational sectors. Guindon, 31 F. Supp. 3d at 200. “[D]espite reliable

evidence that the [recreational] sector had already exceeded its quota,” however, NMFS decided

“to reopen the fall season.” Id. at 201. The district court concluded that “NMFS essentially

guaranteed that the actual catch allocation would skew widely from the 51/49 allocation,” and

that this contravened 16 U.S.C. § 1854(b), which “requires consistency between the FMP and

implementing regulations.” Id. at 200. That case is inapposite here for two reasons. First, the

district court in Guindon held that NMFS violated § 1854(b) by failing to adhere to the relevant

FMP, whereas Plaintiffs here rely on different theories under National Standard 4 and

§ 1853(a)(14). Second, in Guindon, NMFS effectively increased the recreational sector’s catch

allocation by extending the recreational fishing season. Here, however, NMFS has taken no

action to increase the number of fish that recreational fishers may land in comparison to those

allocated to the commercial sector.

Even assuming that NMFS allocated fishing privileges, harvest restrictions, or recovery

benefits by failing to include dead discards in the ACLs contained in Amendment 43 and the

37 temporary regulations, the Court concludes that this allocation would be fair and equitable and

reasonably calculated to promote conservation in a manner compliant with both National

Standard 4 and § 1853(a)(14). The record demonstrates that NMFS has consistently “acted to

constrain the recreational fishery to its ACL by establishing shorter recreational fishing seasons.”

Defs.’ Mot. Summ. J. at 51. Although the 2017 season lasted six days, see AR 010260, the

agency shortened this season to just two days in 2023, see AR 000001–02. The 2024

recreational fishing season was cut to a single day, the shortest in at least seven years. See SAR

012496. Recreational fishers have also been consistently limited to one fish per person per day,

such that a recreational fisher could land only one red snapper during the 2024 season. See SAR

012496 (“[T]he recreational bag limit is 1 fish per person.”); see also AR 000002 (“[T]he

recreational bag limit is one red snapper per person, per day.”). In contrast, during the 2023

season commercial fishers were afforded a commercial trip limit of 75 pounds of red snapper,

gutted weight, amounting to roughly nine fish per trip. AR 000001; see also SAR 012496 (“The

commercial ACL is calculated using the average of the estimated annual average weights of red

snapper commercially landed from 2017 to 2019, which is 8.67 lb (3.93 kg) per fish, as derived

from SEDAR 73.”). The same commercial trip limit obtained in the 2024 rule, and NMFS

estimated that the commercial season would remain open for 35 days. SAR 012496.

The Court concludes that the strict limits on recreational catch, coupled with NMFS’s

management-based rationale for excluding dead discards from the ACL, demonstrate that any

allocation would be fair and equitable as the MSA requires. The agency’s guidelines provide

that allocation of fishing privileges must be “rationally connected to the achievement of

[optimum yield] or with the furtherance of a legitimate FMP objective.” 50 C.F.R.

§ 600.325(c)(3)(i)(A). In addition, “allocation of fishing privileges may impose a hardship on

38 one group if it is outweighed by the total benefits received by another group or groups.” Id.

§ 600.325(c)(3)(i)(B). The agency has a relatively low burden to establish that hardships will

lead to the greater good. See C & W Fish Co. v. Fox, Jr., 931 F.2d 1556, 1563 (D.C. Cir. 1991).

In addition, “courts have declined to second-guess the Secretary’s judgment simply because the

provisions of a[n] FMP or a plan allocation ‘have a greater impact upon’ one group or type of

fishermen.” N. Carolina Fisheries, 518 F. Supp. 2d at 89 (citing Nat’l Fisheries Inst., Inc. v.

Mosbacher, 732 F. Supp. 210, 225 (D.D.C. 1990)); see also Alliance Against IFQs v. Brown, 84

F.3d 343, 350 (9th Cir. 1996) (“[T]he Secretary is allowed, under [National Standard Four], to

sacrifice the interests of some groups of fishermen, for the benefit as the Secretary sees it of the

fishery as a whole.”).

The record here demonstrates that both commercial and recreational fishermen

experience hardships from low ACLs, and that adjusting the Amendment 25 allocation ratio to

account for dead discards may inequitably eliminate the recreational red snapper season.

Furthermore, the agency explained in relation to Amendment 43 that the South Atlantic Council

“established allocations for red snapper using a formula that balanced long-term catch history

with recent catch history, rather than estimates of economic value.” AR 010026. “This

approach,” NMFS explained, “was determined as the most fair and equitable way to allocate

fishery resources by the Council.” Id.; see also SAR 012316 (repeating the rationale regarding

the 2024 Interim Rule). The Court concludes based on these explanations that any de facto

reallocation because of increased recreational dead discards would remain fair and equitable.

The record also demonstrates that any allocation resulting from exclusion of dead

discards would be “reasonably calculated to promote conservation” as National Standard 4

requires. 16 U.S.C. § 1851(a)(4). As NMFS reasons, “[a]n allocation scheme may promote

39 conservation by encouraging a rational, more easily managed use of the resource.” 50 C.F.R.

§ 600.325(c)(ii); see also C & W Fish Co., 931 F.2d at 1564 (noting that “[t]his requirement

poses only a minimal hurdle for” the agency). NMFS has explained at length how the exclusion

of discarded fish from the ACL is necessary to effectively manage the red snapper stock because

of significant uncertainty in those estimates. See AR 009958; AR 007173. The agency

additionally explained its understanding at the time it published Amendment 43 that “allowing

the same amount of harvest as harvest that occurred in 2014 is unlikely to result in overfishing or

to change the red snapper rebuilding time period.” AR 010023. NMFS came to this conclusion

in the context of data showing “significant increase in stock biomass since 2010 to levels not

seen since the 1970’s.” AR 010023. The Court thus concludes that any de facto reallocation

resulting from the exclusion of dead discards from the recreational ACL was reasonably

calculated to promote conservation.

In sum, the Court concludes that Amendment 43, the 2023 Temporary Rule, and the 2024

Interim Rule did not effect an allocation of fishing privileges or harvest restrictions. Even if

those regulations did create a new allocation, the arrangement is fair and equitable and

reasonably calculated to promote conservation. NMFS is therefore entitled to summary

judgment on Counts 3 and 6 of the Supplemental Complaint.

V. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary Judgment and Motion for

Partial Summary Judgment are GRANTED, and Plaintiffs’ Motion for Summary Judgment and

Motion for Partial Summary Judgment are DENIED. An order consistent with this

Memorandum Opinion is separately and contemporaneously issued.

Dated: January 31, 2025 RUDOLPH CONTRERAS United States District Judge