22-1189 State of New York v. Raimondo
In the United States Court of Appeals For the Second Circuit _________________
August Term 2022 Argued: May 24, 2023 Decided: October 13, 2023
Docket No. 22-1189
STATE OF NEW YORK, BASIL SEGGOS, as Commissioner of the New York State Department of Environmental Conservation, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION,
Plaintiffs-Appellants,
v.
GINA RAIMONDO, in her official capacity as Secretary of the United States Department of Commerce, UNITED STATES DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, NATIONAL MARINE FISHERIES SERVICE, a/k/a NOAA FISHERIES,
Defendants-Appellees. _________________
Before: WESLEY and PARK, Circuit Judges. ∗ _________________
∗ Circuit Judge Rosemary S. Pooler, who was a member of the panel, passed away on August 10, 2023. Judge Pooler participated in the consideration and decision of this case and had initial responsibility for the opinion of the Court. The two remaining members of the panel have determined to issue this opinion. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b). The federal government uses a fishery management plan to conserve and
manage summer flounder, also known as fluke, off the Eastern Seaboard. Under
the Magnuson-Stevens Fishery Conservation and Management Act, that fishery
management plan must account for ten “national standards.” Each national
standard prioritizes a different objective: from preventing overfishing, to using
accurate data, to promoting fairness and efficiency, to protecting existing fishing
communities, and more.
Eleven states participate in the summer flounder fishery. The fishery
management plan includes annual commercial quotas for each state, which
determine how much summer flounder that state’s fishermen can catch. One of
those states, New York, brought this action against the National Marine Fisheries
Service—the federal agency responsible for the summer flounder fishery—and
several related federal entities. New York argues the current quotas fail to account
for the long-term movement of summer flounder northward, closer to New York’s
shores. New York claims the quotas violate the Magnuson-Stevens Act as well as
the Administrative Procedure Act. The district court rejected that argument; it
granted summary judgment to the Fisheries Service.
2 We conclude that in setting each state’s summer flounder quotas, the
Fisheries Service properly weighed the relevant statutory considerations. We
therefore AFFIRM the judgment of the district court.
_________________
STEPHEN J. YANNI, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Judith N. Vale, Deputy Solicitor General, on the brief) for Letitia James, Attorney General of the State of New York, New York, NY for Plaintiffs-Appellants.
LUCAS ISSACHAROFF, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief) for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Defendants-Appellees.
HOPE SENZER GABOR, Assistant County Attorney, for Dennis M. Cohen, Suffolk County Attorney, Suffolk, NY, for Amicus Curiae Suffolk County.
WESLEY, Circuit Judge:
The federal government uses a fishery management plan to conserve and
manage summer flounder, also known as fluke, off the Eastern Seaboard. Under
the Magnuson-Stevens Fishery Conservation and Management Act (the “MSA”),
16 U.S.C. §§ 1801 et seq., that fishery management plan must account for ten
“national standards.” Each national standard prioritizes a different objective:
3 from preventing overfishing, to using accurate scientific data, to promoting
efficiency, to protecting existing fishing communities, and more.
Eleven states participate in the summer flounder fishery. The fishery
management plan includes annual commercial quotas for each state, which
determine how much summer flounder that state’s fishermen can catch. One of
those states, New York, brought this action against the National Marine Fisheries
Service (the “NMFS”)—the federal agency responsible for the summer flounder
fishery—and several related federal entities. New York argues that in setting the
current quotas, the NMFS failed to account for the long-term movement of
summer flounder northward, closer to New York’s shores. New York claims the
quotas violate several of the MSA’s national standards as well as the
Administrative Procedure Act (the “APA”), 5 U.S.C. §§ 701 et seq. The district
court rejected that argument; it granted summary judgment to the NMFS.
We conclude that in setting each state’s summer flounder quotas, the NMFS
properly weighed the relevant statutory considerations. We therefore affirm the
judgment of the district court.
4 BACKGROUND
Summer flounder are a sought-after commercial fish. Their habitat spans
the Eastern Seaboard, but during winter months they concentrate in offshore
waters managed by the federal government through the NMFS. 1 Commercial
fishermen in eleven coastal states, from Maine to North Carolina, fish these waters.
The NMFS regulates the commercial summer flounder catch through a
fishery management plan. Congress, through the MSA, requires the fishery
management plan to account for ten national standards. Those national standards
are set forth in full below, but at a high level, they seek to conserve and manage
the fishery for future generations. See 16 U.S.C. § 1802(5) (defining “conservation
and management”); id. § 1851(a) (requiring “conservation and management”
measures to comport with the ten national standards).
The summer flounder fishery incorporates a quota system designed to
prevent overfishing. Each state is allocated a quota percentage of the total summer
flounder catch for the year. Any summer flounder that are “landed” (brought
1 “The federal government is responsible for regulation of the ‘exclusive economic zone’—waters from three to 200 miles from shore.” New York v. Atl. States Marine Fisheries Comm’n, 609 F.3d 524, 527 (2d Cir. 2010). By contrast, states “retain primary authority over the conservation and management of fisheries within the ‘territorial sea’—waters within three miles of shore, as well as in rivers and estuaries.” Id. 5 ashore) in a state count towards that state’s annual quota—regardless of where
those fish were caught. For example, fishermen from Virginia catch summer
flounder near Long Island, New York, “land” those fish back in Virginia, and those
fish count towards Virginia’s quota.
The NMFS first incorporated quotas into the fishery management plan in
1992, with a slight adjustment in 1993 (the “1993 Allocation Rule”). At that time,
each state’s quota was based on how much summer flounder that state had landed
from 1980 through 1989. From 1993 onward, New York received authorization for
approximately 7% of each year’s total catch. States with higher historical landings
received higher quotas: for example, Virginia received approximately 21% of each
year’s total catch. 2
Since 1993, however, summer flounder populations have shifted steadily
northward, closer to the coast of New York. In response, NMFS undertook a
rulemaking process to reassess and potentially revise the quota system. It
completed that process in 2020, when it promulgated a new rule (the “2020
2 The exact baseline quotas are as follows: Maine 0.04756%; New Hampshire 0.00046%; Massachusetts 6.82046%; Rhode Island 15.68298%; Connecticut 2.25708%; New York 7.64699%; New Jersey 16.72499%; Delaware 0.01779%; Maryland 2.03910%; Virginia 21.31676%; North Carolina 27.44584%. See 58 Fed. Reg. 49,937, 49,940 (Sept. 24, 1993) (codified at 50 C.F.R. § 625.20). 6 Allocation Rule”) that New York now challenges. See 85 Fed. Reg. 80,661 (Dec. 14,
2020) (codified at 50 C.F.R. § 648.102(c)(1)).
The 2020 Allocation Rule retains each state’s original quota from the 1993
Allocation Rule—but only up to the first 9.55 million pounds of summer flounder
caught. See 50 C.F.R. § 648.102(c)(1)(i). Past that point, the 2020 Allocation Rule
subjects any additional catch to a new, evenly divided, “surplus” quota—by which
every state receives approximately 12% of any additional catch during a good
fishing year. 3 See id. § 648.102(c)(1)(ii). Consequently, under the 2020 Allocation
Rule, New York is entitled to its historical 7% of the first 9.55 million pounds of
coastwide catch, and 12% of any surplus beyond that.
New York filed comments regarding the 2020 Allocation Rule; it protested
that it should receive a higher quota percentage because summer flounder
populations had relocated closer to its own shores. New York claimed that the
NMFS had ignored scientific evidence showing the summer flounder movement.
3 The exceptions are Maine, New Hampshire, and Delaware, who receive only a de minimis amount of the surplus quota. These three states do not participate substantially in the summer flounder catch. 7 The NMFS rejected New York’s comments and explained why the quotas crafted
in the 2020 Allocation Rule were preferrable.
After the NMFS finalized the 2020 Allocation Rule, New York filed this
action against the NMFS and related federal entities. New York maintained its
argument that the 2020 Allocation Rule, as well as annual implementation rules
promulgated thereunder, 4 fail to account for the summer flounder’s long-term
relocation. New York claimed that by doing so, the NMFS disregarded four of the
MSA’s ten national standards—which required the agency to use the “best
scientific data available” and to promote efficiency and fairness among fishermen.
The United States District Court for the Southern District of New York
(Vyskocil, J.) denied New York’s motion for summary judgment and granted the
defendants’ cross-motion. The district court concluded it was “clear from the
administrative record that NMFS appropriately considered all the ten national
standards and, in exercising its discretion to formulate the 2020 Allocation Rule,
4Each year, NMFS adopts a “Specifications Rule,” which announces that year’s coastwide quota and then, based on the 2020 Allocation Rule, calculates the distribution of that quota among the states. See 50 C.F.R. § 648.102(c). New York has also challenged the most recent Specifications Rule, but the parties agree that the validity of the 2020 Allocation Rule will determine the validity of any derivative Specifications Rule. See New York v. Raimondo, 594 F. Supp. 3d 588, 597 (S.D.N.Y. 2022). 8 did not violate the MSA.” New York v. Raimondo, 594 F. Supp. 3d 588, 599 (S.D.N.Y.
2022). New York appealed.
DISCUSSION
Standard of Review
“On appeal from a grant of summary judgment involving a claim brought
under the [APA], we review the administrative record de novo without according
deference to the decision of the district court.” Town of Southold v. Wheeler, 48 F.4th
67, 77 (2d Cir. 2022) (quoting Karpova v. Snow, 497 F.3d 262, 267 (2d Cir. 2007)).
Nevertheless, our review in this case is narrow, and deferential to the NMFS’s
expertise as an agency. See id. That is because MSA provides that courts review
NMFS rulemakings under the APA’s arbitrary and capricious standard. See 16
U.S.C. § 1855(f). Under that standard, an agency need only “examine the relevant
data and articulate a satisfactory explanation for its action including a rational
connection between the facts found and the choice made.” Motor Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983) (citation and internal
quotation marks omitted); see 5 U.S.C. § 706(2)(A).
9 Validity of the 2020 Allocation Rule
Fishery management plans “shall be consistent with” the MSA’s ten
national standards. 16 U.S.C. § 1851(a). Those standards are:
(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.
(2) Conservation and management measures shall be based upon the best scientific information available.
(3) To the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination.
(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.
(5) Conservation and management measures shall, where practicable, consider efficiency in the utilization of fishery resources; except that no such measure shall have economic allocation as its sole purpose.
(6) Conservation and management measures shall take into account and allow for variations among, and contingencies in, fisheries, fishery resources, and catches.
(7) Conservation and management measures shall, where practicable, minimize costs and avoid unnecessary duplication.
10 (8) Conservation and management measures shall, consistent with the conservation requirements of this chapter (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities by utilizing economic and social data that meet the requirements of paragraph (2), 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.
(9) Conservation and management measures shall, to the extent practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch.
(10) Conservation and management measures shall, to the extent practicable, promote the safety of human life at sea.
Id.
The ten national standards encompass disparate concerns. There is,
consequently, a “necessary tension” among them. All. Against IFQs v. Brown, 84
F.3d 343, 349–50 (9th Cir. 1996). The national standards’ expansive text and
structure reflect that Congress intended for the NMFS to use “discretion and
judgment” to reconcile this tension when managing the fishery. Id. The MSA
gives the NMFS rulemaking flexibility to react to dynamic natural conditions and
account for multiple stakeholders. One national standard does not trump the
others; incremental adjustments to a fishery management plan are acceptable.
See Massachusetts v. E.P.A., 549 U.S. 497, 524 (2007).
11 Validity of the 2020 Allocation Rule
New York contends that by failing to allocate a higher quota to New York,
the 2020 Allocation Rule ignores the northward movement of the summer
flounder population and is therefore inconsistent with National Standards 2, 4, 5,
and 7.
i. National Standard 2: Best Scientific Information Available
National Standard 2 provides that “[c]onservation and management
measures shall be based upon the best scientific information available.” 16 U.S.C.
§ 1851(a)(2). New York ties its appeal to National Standard 2 and notes that the
NMFS acknowledged that the “best scientific information available” showed
summer flounder populations had shifted northward toward New York. In New
York’s view, its quota must therefore reflect its increased proximity to the summer
flounder populations. New York argues that by keeping each state’s baseline
quota unchanged from the 1993 Allocation Rule, and by evenly splitting each
state’s surplus quota during good fishing years, the 2020 Allocation Rule is not
“based upon” the recent concentration of summer flounder near New York and
other northern states.
12 We disagree. New York is correct that the phrase “based upon” implies the
agency must use (and not merely consider) the location of summer flounder
populations when crafting the fishery management plan. “In its plain meaning,
‘based on’ means ‘having as the foundation’ or ‘arising from.’” Env’t Def. v. E.P.A.,
369 F.3d 193, 203 (2d Cir. 2004). However, the agency did use these fish location
data. The new surplus quotas in the 2020 Allocation Rule are based, to some
degree, on the northward movement of summer flounder. As the NMFS
explained, the surplus quotas are meant to “generally” shift fishing rights during
good fishing years. 85 Fed. Reg. at 80,663. They “reduce the proportion of quota
for states at the southern end of summer flounder distribution (North Carolina,
Virginia, and New Jersey) and increase allocation for many northern states,
including New York.” Id. New York’s quota increases from 7% to 12% during
surplus periods, while states now farther away from the summer flounder see
corresponding decreases in their quotas. The agency explained that it introduced
the surplus quotas to “reflect[] the shift of the center of summer flounder biomass.”
Id. Accordingly, the 2020 Allocation Rule is “based upon” the shifted location of
the summer flounder—and New York can catch a higher percentage of fish under
13 the current rule than the previous rule—just not to a degree that New York would
prefer.
Moreover, the NMFS can base its rule upon multiple sets of “scientific
information.” The MSA does not restrict National Standard 2 to encompass fish
location data alone; other types of scientific information may merit greater
consideration. 5 Here, the primary data that the NMFS employed were landings
data: statistics showing which fishing communities landed summer flounder in
previous years. New York does not dispute that landings data have remained the
same since the 1993 Allocation Rule, or that landings data remain the “best”
information available to determine which fishing communities depend on the
summer flounder today. NMFS has prioritized landings data over fish location
data when allocating state quotas. That is a choice rooted in the agency’s technical
expertise—for which it enjoys substantial deference. See Env’t Def., 369 F.3d at 204.
5 The MSA requires the Secretary of Commerce to establish advisory guidelines based on the national standards. These guidelines lack the force of law but “assist in the development” of fishery management plans. 16 U.S.C. § 1851(b). For National Standard 2, the guidelines state that scientific data should include “biological, ecological, environmental, economic, and sociological scientific information.” 50 C.F.R. § 600.315(a). Historical data, such as landings data, may be useful so long as they are “evaluated for [their] relevance to inform the current situation.” Id. § 600.315(a)(6)(v)(B). 14 ii. National Standards 4, 5, and 7: Fairness and Efficiency
New York also contends the 2020 Allocation Rule violates National
Standards 4, 5, and 7. National Standard 4 provides that “[c]onservation and
management measures shall not discriminate between residents of different
States” and that allocation of fishing privileges shall be “fair and equitable to all
such fishermen.” 16 U.S.C. § 1851(a)(4). National Standards 5 and 7 call for such
measures, “where practicable,” to “consider efficiency in the utilization of fishery
resources” and to “minimize costs and avoid unnecessary duplication.” Id.
§§ 1851(a)(5), (7). Similar to its previous argument, New York says it is unfair and
inefficient to allocate higher quotas to states that are farther away from summer
flounder populations.
We disagree with this argument as well. The NMFS articulated why it
balanced the national standards the way it did, and why it rejected the location-
based rule that New York seeks. Regarding the fairness and equity concerns in
National Standard 4, the NMFS explained why it found it would be unfair to
reduce baseline quotas for communities in states who have become economically
dependent, over time, on fishing for summer flounder. In doing so, the NMFS
explicitly balanced National Standard 4 against National Standard 8, which
15 requires management measures to “take into account the importance of fishery
resources to fishing communities” and “minimize adverse economic impacts on
such communities” where practicable. 16 U.S.C. § 1851(a)(8). By including ten
standards, the MSA contemplates that other fishery management considerations—
here, the inertia of fishing industries established over decades—can outweigh
equitability concerns that flow from the transitory movement of the summer
flounder. “The [NMFS] is allowed, under this authority, to sacrifice the interests
of some groups of fishermen, for the benefit as the [NMFS] sees it of the fishery as
a whole.” All. Against IFQs, 84 F.3d at 350.
As for the efficiency and cost concerns in National Standards 5 and 7, the
NMFS reasoned that southern states’ operations involve longer trips and larger
vessels built in reliance on their higher quotas. A location-based rule, the agency
explained, would ignore the “substantial variability in the mobility of each state’s
fleet” and the “traditional areas of operation for each state’s fleet.” 85 Fed. Reg. at
80,663. Put differently, it would not necessarily be efficient for a southern state to
scrap its existing (longer-range) fleet just for a northern state to expand its (shorter-
range) fleet. That is a policy judgment the agency was entitled to draw based on
16 the landings data it reviewed. See F.C.C. v. Prometheus Radio Project, 141 S. Ct. 1150,
1158 (2021).
* * *
The NMFS adopted a rule that sought to “balance preservation of historical
state access and infrastructure at recent quota levels, with the intent to provide
equitability among states when the stock and quota are at higher levels.” 85 Fed.
Reg. at 80,663. We cannot say that this adjustment to the previous rule—the result
of balancing ten different national standards—lacked a rational basis articulated
in the administrative record. See State Farm, 463 U.S. at 43. We therefore conclude
the NMFS did not violate the MSA or the APA when it set summer flounder quotas
through the 2020 Allocation Rule.
CONCLUSION
We have considered New York’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.