1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

KEITH GUINDON, et al.,

Plaintiffs,

v.

PENNY SUE PRITZKER, in her official 

capacity as Secretary of the United States 

Department of Commerce; NATIONAL 

OCEANIC AND ATMOSPHERIC 

ADMINISTRATION; and NATIONAL 

MARINE FISHERIES SERVICE,

Defendants, and

COASTAL CONSERVATION 

ASSOCIATION, 

DefendantIntervenor.

Civil Action No. 13-00988 (BJR)

MEMORANDUM OPINION

GRANTING PLAINTIFFS’ MOTION 

FOR SUMMARY JUDGMENT

This case concerns management of the red snapper fishery in the Gulf of Mexico. 

The responsibility of managing the fishery lies with the Secretary of Commerce 

(“Secretary), through the National Marine Fisheries Service (NMFS), a sub-agency of the 

National Oceanic and Atmospheric Administration (NOAA). Plaintiffs are commercial 

fishermen challenging three NMFS regulations that set quotas and fishing season lengths 

for the recreational sector of the fishery. Plaintiffs bring claims under the MagnusonStevens Fishery Conservation and Management Act (“MSA”), 16 U.S.C. §§ 1801-1884, 

the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701-06, and the National 

Environmental Policy Act (“NEPA”), 42. U.S.C. §§ 4321 et seq. Plaintiffs, Defendants, 

and Defendant-Intervenor have moved for Summary Judgment. Having reviewed the 
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parties’ briefs and the administrative record, and having heard oral argument from all 

sides, the Court grants Plaintiffs’ Motion for Summary Judgment and denies Defendants’ 

and Defendant-Intervenor’s cross-motions.

I. BACKGROUND

A. Statutory and Regulatory Framework

Congress enacted the MSA “to conserve and manage the fishery resources found off 

the coasts of the United States,” “to promote domestic commercial and recreational 

fishing under sound conservation and management principles,” and “to provide for the 

preparation and implementation, in accordance with national standards, of fishery 

management plans which will achieve and maintain, on a continuing basis, the optimum 

yield from each fishery.” 16 U.S.C. § 1801(b). As a matter of declared policy, Congress 

sought “to assure that the national fishery conservation and management program 

utilizes, and is based upon, the best scientific information available.” Id. § 1801(c)(3). 

The MSA divides the country into eight regions, and establishes a council in each 

region to manage the region’s marine fisheries. See id. § 1852. Each regional council 

must prepare a fishery management plan (hereinafter “FMP”) for each fishery that falls 

under its authority, along with any amendments to the FMP that are necessary from time 

to time. Id. § 1852(h)(1). The councils submit FMPs, FMP amendments, and proposed 

regulations to the Secretary, who reviews the submissions for consistency with the 

MSA and other applicable laws. Id. § 1854(a). The Secretary, acting through 

NMFS, must approve, disapprove, or partially approve the submission within 30 days. 

Id. Proposals submitted by the Council to the Secretary are also called “framework 
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actions,” in that they provide a framework from which the Secretary may issue one or 

more implementing regulations.

1. National Standards

The legal framework Congress established to direct the management of fish stocks is 

of necessity multifaceted, specific, and complex. To accomplish the overall goals of the 

MSA, Congress set forth ten “national standards for fishery conservation and 

management” at the beginning of the statute. Id. § 1851. Three are relevant to this 

action:

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. Id. § 1851(a)(1) (“National Standard 

1”).

Conservation and management measures shall be based upon the best 

scientific information available. Id. § 1851(a)(2) (“National Standard 2”).

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. Id. § 1851(a)(4) (“National Standard 4”)

FMPs and FMP amendments must conform to the National Standards. See id. § 

1851(a). Any proposed regulations must conform to the National Standards and to the 

FMP. Id. §§ 1851(a), 1854(b)(1). 

2. Other Relevant MSA Provisions

In addition to the National Standards, the MSA contains two other requirements 

relevant to this action. Section 303(a)(15) of the MSA requires that every FMP

“establish a mechanism for specifying annual catch limits in the plan...implementing 

regulations, or annual specifications, at a level such that overfishing does not occur in the 
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fishery, including measures to ensure accountability.” Id. § 1853(a)(15). Congress added 

this requirement in 2007. See Pub. L. No. 109-479, § 104(a)(10), 120 Stat 3575, 3584

(2007).

Section 407(d), an MSA provision specific to the Gulf of Mexico red snapper fishery,

requires that any FMP, FMP amendment, or implementing regulation must contain 

conservation and management measures that “establish separate quotas for recreational

fishing...and commercial fishing that, when reached, result in a prohibition on the 

retention of fish caught during recreational fishing and commercial fishing, respectively, 

for the remainder of the fishing year.” 16 U.S.C. § 1883(d)(1). Congress added this 

provision as part of the Sustainable Fisheries Act of 1996. See Pub. L. 104-297, § 

207(b), 110 Stat. 3559, 3614 (1996).

It also bears noting that states manage their own waters, and do not always conform 

to federal rules concerning season length, size limits, or bag limits (the number of fish a 

fisherman can catch and keep per day). State regulations thus may affect the federal 

management scheme.

3. The Secretary’s Advisory Guidelines

The Secretary has promulgated various “advisory guidelines” that do not have the 

force and effect of law but are intended to assist regional councils in developing FMPs. 

See id. §1851(b); 50 C.F.R. §§ 600.305–600.355. These guidelines flesh out and 

explicate the National Standards set forth in the MSA. For purposes of this case, the 

most relevant guidelines are the ones that explain the statutory objective, expressed in 

National Standard 1, of “prevent[ing] overfishing while achieving, on a continuing basis, 

the optimum yield.” 16 U.S.C. § 1851(a)(1); 50 C.F.R. § 600.310. 
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4. Catch Limit Terminology

The Secretary balances the twin goals of National Standard 1 – preventing 

overfishing and achieving optimum yield – through a system of catch limits. The 

guidelines establish a set of “reference points” for catch limits, starting with the absolute 

maximum that should be harvested and working down from there. 50 C.F.R. § 

600.310(b)(2)(iv). Each reference point uses specific terms and phrases that, for clarity, 

the Court sets out as follows: 

Maximum Sustainable Yield (MSY): MSY is the guiding reference point 

and the “basis for fishery management.” Id. § 600.310(b)(2)(i). MSY is 

the largest catch that can be taken under prevailing environmental 

conditions, id. § 600.310(e)(1)(i)(A), and it relates directly to the concept 

of “overfishing.” 

Overfishing: “Overfishing” occurs when a stock of fish has a level of 

fishing mortality or annual total catch that jeopardizes the capacity of the 

stock to produce the MSY on a continuing basis. Id. § 

600.310(e)(2)(i)(B). 

Overfishing Limit (OFL): The OFL is the catch level above which 

overfishing occurs. Id. § 600.310(e)(2)(i)(D). A regional council’s 

Scientific and Statistical Committee (SSC) sets the OFL each year. The 

OFL represents the upper boundary in any consideration of catch limits.

However, catch limits are not automatically set at the OFL. NMFS also 

takes into account “scientific uncertainty” and “management uncertainty.”

Scientific Uncertainty: “Scientific uncertainty” refers to the possibility of 

error in estimating biomass, mortality rates, and other factors separate 

from the government’s role in fishery management. See id. § 

600.310(f)(1). 

Management Uncertainty: “Management uncertainty” refers to 

uncertainty in the government’s management of the fishery, including the 

accuracy of reported catch data and the ability of the government to 

constrain the catch. See id.

Acceptable Biological Catch (ABC): ABC is an annual catch figure, set 

at or below the OFL, with the difference between the OFL and the ABC 

designed to account for scientific uncertainty in the SSC’s calculation of 

the OFL. Id. §§ 600.310(b)(2)(v)(D), 600.310(f)(2)(ii). The SSC sets both 
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the OFL and the ABC. ABC is an expression of the amount of fish that 

fishermen could harvest during a particular year without overfishing the 

stock, with accommodation for scientific uncertainty. 

Annual Catch Limit (ACL): ACL differs from the ABC in that the ABC 

estimates the amount of fishing the NMFS could permit without 

overfishing, whereas the ACL represents the amount that the agency 

actually permits each year. NMFS may set the ACL at or below the ABC.

Accountability Measures (AMs): AMs are “management controls to 

prevent ACLs, including sector–ACLs, from being exceeded, and to 

correct or mitigate overages of the ACL if they occur.” Id. § 

600.310(g)(1). “AMs should address and minimize both the frequency 

and magnitude of overages and correct the problems that caused the 

overage in as short a time as possible.” Id. The guidelines describe two 

kinds of AMs: “inseason” AMs, and “AMs for when the ACL is 

exceeded,” referred to by the parties as “postseason AMs.” Id. 

Inseason AMs: Inseason AMs are AMs that the agency implements 

during the fishing season to constrain catch. One inseason AM, often 

referred to as a “buffer,” involves setting the amount of permitted catch 

below the ACL to guard against management uncertainty. Id. § 

600.310(g)(2). Other inseason AMs include closing the fishery when the 

ACL has been exceeded or is projected to be reached, and lowering the 

bag limit. Id.

Postseason AMs: The guidelines instruct regional councils to determine 

as soon as possible after the end of the season whether the ACL has been 

exceeded. Id. 600.310(g)(3). If so, one postseason AM would be to revise 

the inseason AMs applicable to the next season, in order to prevent 

another overage. Id. Another postseason AM is an “overage adjustment,” 

also known as a “payback” provision, where the NMFS reduces the next 

season’s ACL to account for the overage. See id. If catch exceeds the 

ACL more than once in four years, the regulations provide that “the 

system of ACLs and AMs should be re-evaluated, and modified if 

necessary, to improve its performance and effectiveness.” Id.

Rebuilding Plan: A rebuilding plan is a multiyear management plan that 

aims to return a fishing stock to productive capacity in a certain 

timeframe. If a stock is subject to a rebuilding plan, postseason AMs 

“should include overage adjustments that reduce the ACLs in the next 

fishing year by the full amount of the overages, unless the best scientific 

information available shows that a reduced overage adjustment, or no 

adjustment, is needed to mitigate the effects of the overages.” Id.
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Sector-ACLs and Sector AMs: ACL may be divided into sectors (e.g. 

recreational or commercial). Id. § 600.310(f)(2)(iv). The guidelines 

specify that “if the management measures for different sectors differ in the 

degree of management uncertainty, then sector ACLs may be necessary so 

that appropriate AMs can be developed for each sector.” Id. § 

600.310(f)(5)(ii).

B. Management of the Gulf of Mexico Red Snapper Fishery

1. How NMFS Establishes Quotas and Sets Season Length

The Gulf of Mexico Fishery Management Council (“Council”) is the regional 

council charged with managing red snapper and other reef fish species in the Gulf of 

Mexico. See 16 U.S.C. § 1852(E). The Council’s area includes Texas, Louisiana, 

Mississippi, Alabama, and Florida. Id. 

In managing the fishery, the Council and NMFS rely on the Southeast Data, 

Assessment, and Review (or “SEDAR”) stock assessment, which is a periodic evaluation 

of the red snapper stock that encompasses the amount and weight of fish, spawning data, 

mortality rates, and other indicators related to the size and health of the fishery. See AR 

1097. As SEDAR stock assessments become available, the Council uses them to set 

future management plans or adjust existing plans.

Each year, before the red snapper season begins, the Council receives a 

recommendation as to that year’s Acceptable Biological Catch (ABC) from the Council’s 

Scientific and Statistical Committee (SSC). The Council then proposes to NMFS a red 

snapper “quota” for the year. The recommended quota is intended to serve as the total 

ACL for red snapper in the Gulf of Mexico fishery.1 Because the quotas include fish 

harvested in adjoining state waters, NMFS must take those state harvests into account in 

 1 “Quota” is used to refer to red snapper catch limits because the 2007 MSA amendment referred not to 

“annual catch limits” but to “quotas for recreational fishing...and commercial fishing.” See 16 U.S.C. § 

1883(d)(1). NMFS has determined that quotas and ACLs are functionally equivalent, and that the sum of 

the recreational and commercial quotas is equivalent to a stock ACL. AR 4784.
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managing the Gulf of Mexico red snapper fishery. See 50 C.F.R. § 622.8(a). Pursuant to 

Section 407(d) of the MSA, the fishery is subdivided into recreational and commercial 

sectors, with separate quotas for each. Thus, the Council will also specify the allocation 

of the total quota between the commercial and recreational sectors. Currently, the FMP 

specifies that the commercial sector receives 51 percent of the quota and the recreational 

sector receives 49 percent. AR 5074. 

NMFS manages the commercial and recreational sectors differently. In the 

commercial sector, each participant receives an Individual Fishing Quota (“IFQ”), which 

entitles that participant to a fixed, specific portion of the annual commercial catch. See 

50 C.F.R. § 622.21. Commercial vessels must install geographical monitoring systems 

and may only sell their catch to authorized dealers. See id. §§ 622.28 (“Vessel 

Monitoring Systems”), 622.40 (“Restrictions on Sale/Purchase”). Since 2007, these 

management measures have assured that the commercial sector does not exceed its quota. 

AR 4782. In fact, as the 2010 Amendment to the Reef Fish FMP observed, “there is no 

possibility of a quota overrun for the commercial sector.” AR 369.

By contrast, NMFS manages the recreational sector using only size limits, bag 

limits, and length of season. The only AM currently in place for the recreational sector is 

in-season closure of the fishery. See 78 FR 17882, 17883 (Mar. 25, 2013) (“The inseason closures are the accountability measures for the recreational red snapper sector.”). 

NMFS estimates in advance how long it will take for the recreational sector to harvest its 

quota, based on historical data, then sets the season length according to that projection. 

AR 4262.
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The primary data source for estimating recreational “landings” (total weight of 

red snapper caught) is the Marine Recreational Information Program (MRIP).2

 NMFS 

implemented MRIP several years ago in an effort to improve the quality of the agency’s 

landings estimates. AR 4665. MRIP data are collected in two-month “waves,” with data 

available 45 days after the wave ends. AR 761. MRIP produces an estimate of red 

snapper landings through a combination of “dockside intercepts” (referred to as “landings 

data”) and phone surveys (referred to as “effort data”). AR 4714. 

The dockside intercept program, known as the Access Point Angler Intercept 

Survey (APAIS), involves communicating with recreational fishermen when they return 

from fishing trips. AR 5073. Of particular relevance to this case is an alteration to the 

APAIS sampling design that NMFS made in March 2013. See AR 4999. The change 

allowed NMFS to capture data from fishing trips at time intervals during the day that the 

agency had not previously sampled. AR 5000.

2. Recent History of Recreational Sector Management

Red snapper stock is managed under the Reef Fish Fishery Management Plan 

(“Reef Fish FMP”), first implemented by the Secretary in 1984. AR 6. At that time the 

agency had already observed declines in the adult population of red snapper. Id. The 

Council first amended the Reef Fish FMP in 1990 (“Amendment 1”), with the goal of 

stabilizing long-term population levels by 2000. AR 371. Red snapper is currently 

designated as “overfished,” and is subject to a rebuilding plan.3

 Over time NMFS has 

 2 NMFS also uses a “headboat” survey performed by the Southeast Fisheries Science Center, and a Texas 

Parks and Wildlife Department survey of charter and private fishers. AR 4714. Those surveys are not at 

issue in this case.

3 A stock is considered “overfished” when its biomass has declined below a level that jeopardizes the 

capacity of the stock to produce MSY on a continuing basis. 50 C.F.R. § 600.310(e)(2)(i)(E). Because it 

takes time for biomass levels to recover, a stock may be designated as “overfished” even when 

“overfishing” is not currently taking place. The Gulf of Mexico red snapper stock fits that description.
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extended the target date to complete rebuilding of the stock. AR 368. Currently the 

target is 2032. Id.

Amendment 1 to the Reef Fish FMP required that the annual catch be allocated 

between recreational and commercial sectors based on historical percentages. AR 12. 

The regulations implementing Amendment 1 set the allocation at 51 percent commercial 

and 49 recreational, an allocation that survives to the present. See AR 5074.

Prior to 1997, the Secretary permitted recreational red snapper fishing year-round, 

with catch levels constrained only by bag and size limits. AR 4346. From 1997 to 1999, 

NMFS used in-season monitoring, along with data from prior seasons, to project when 

the quota would be reached and when to close the season. AR 4346. “In-season 

monitoring” meant that, during the fishing season, an NMFS “quota monitoring team” 

tracked available landings data and combined that data with past patterns to project when 

recreational sector would reach its quota. Id. The agency would announce the closure 

date several weeks in advance. Id. 

For the 2000 season NMFS abandoned its in-season quota monitoring operation 

and began setting fixed season lengths in advance, based only on projections of when the 

quota would be reached. Id.4

 In 2000, NMFS set the recreational quota at 4.47 million 

pounds, with a 2-fish bag limit and a season lasting from April 21 to October 31. AR 

4347. The quota, bag limit, and season length established in 2000 remained in effect 

through 2007. Id. During that period, recreational landings exceeded the quota in some 

years and fell below in others. AR 3524.

 4 This did not mean that NMFS stopped gathering landings data. It only meant that, during the season, 

NMFS no longer monitored the sector’s progress in harvesting toward the quota.
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In 2008, the Council amended the Reef Fish FMP with the goals of ending red 

snapper overfishing by 2009 or 2010 and rebuilding the stock by 2032. AR 368. To that 

end, the Council prohibited fishing from January 1 to May 31 and from October 1 to 

December 31. AR 4347. This meant that NMFS could not open the season until June 1, 

and could not keep it open past September 30. 

The recreational quota for the 2008 season was reduced to 2.45 million pounds. 

AR 3524. NMFS set a 66-day season for 2008, closing August 5 rather than September 

30, in light of decisions by Florida and Texas not to conform to federal rules. AR 4347. 

Even so, recreational landings exceeded the 2008 quota by 1.26 million pounds, or about 

51 percent. AR 3524. 

For 2009, with the same recreational quota of 2.45 million pounds, NMFS set the

season at 75 days. AR 4347. The recreational landings exceeded the quota by 2.175 

million pounds, or about 88 percent. AR 3524.

For 2010 NMFS raised the recreational quota to 3.403 million pounds, and set the 

season at 53 days. AR 4347. The Deep Water Horizon spill cut the season short. AR 

4347.

NMFS set the 2011 recreational quota at 3.521 million pounds, and projected a 

48-day season on the basis of that quota. AR 4348. After the season ended, but before 

NMFS had received preliminary landings estimates, the Council authorized raising the 

recreational quota by 0.345 million pounds and suggested reopening the season in the 

fall. Id. NMFS adopted the Council’s recommended quota increase. Id. However, 

preliminary June and July landings estimates indicated that recreational landings had 

exceeded not only the original quota but also the newly increased quota. Id. For that 
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reason, NMFS did not reopen the 2011 season. Id. The final estimates revealed that 

recreational landings exceeded the 2011 quota by 734,000 pounds. AR 3524. 

In 2012, NMFS removed the restriction on fall fishing, such that the recreational 

season would not automatically close on October 1. This change allowed NMFS more 

flexibility to reopen the season in the fall, if it determined that additional quota was

available. See 77 FR 31734, 31737 (May 30, 2012).

The 2012 recreational quota was set at 3.959 million pounds. AR 3524. The 

agency initially set a 40-day season, but extended six more days in light of extreme 

weather conditions. AR 4347. The 2012 recreational landings exceeded the quota by 

1.187 million pounds, or about 30 percent. AR 3524.

C. The Challenged Agency Actions

1. The May Final Rule and June Temporary Rule

A 2012 regulatory amendment to the Reef Fish FMP set total quotas for both 

2012 and 2013. AR 1086. The total quota for 2013, including commercial and 

recreational, was set at 8.69 million pounds, an increase over 2012. AR 1086. The 2012 

FMP amendment specifically stated that the 2013 quota increase was contingent on the 

acceptable biological catch not being exceeded in 2012, and provided that “[i]f NMFS 

determines the 2012 ABC is exceeded, NMFS will maintain the 2012 commercial and 

recreational quotas in the 2013 fishing year.” Id.

As discussed above, the recreational sector did exceed its quota in 2012, by 1.187 

million pounds. AR 3524. The Council’s SSC nevertheless set the 2013 ABC at 8.46 

million pounds, rather than at the 2012 quota level (8.08 million). AR 2294. The SSC 
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declined to offer any guidance beyond 2013, because it expected a new stock assessment 

in 2013. Id.

The Council met in February 2013 to consider the SSC’s recommendations. AR 

2926; AR 4335. It published its recommendation in the form of a Framework Action, 

issued on March 26, 2013 (“March Framework Action”).

5 The Council cited preliminary 

data indicating that the recreational sector had exceeded the 2012 quota of 3.959 million 

pounds by over a million. AR 4344. Three quota alternatives for 2013 were considered: 

(1) no action (i.e., leaving the 2013 quota at 2012 levels), (2) setting the quota at the level 

of the 2013 ABC (8.46 million pounds), and (3) implementing a 20 percent buffer for the 

recreational sector. AR 4349. The Council chose the second alternative, recommending 

a quota of 8.46 million pounds, equal to the ABC, with no buffer. Id. Though, as the 

Council recognized, this was “not as biologically conservative” as the buffer alternative, 

the Council observed that it “ha[d] managed the recreational red snapper sector based on 

the ABC for several years.” Id.

In light of plans by the Gulf states to implement season lengths and bag limits 

inconsistent with the proposed federal regulations, NMFS published an emergency rule 

on March 25, 2013, authorizing state-specific closure dates for the recreational sector. 78 

FR 17883. A final rule published on May 29, 2013 (the “May Final Rule”) approved the 

Council’s recommended quota of 8.46 million pounds. AR 4680. This created a 

commercial quota of 4.315 million pounds and a recreational quota of 4.145 million 

pounds. Id. The May Final Rule also established individual closure dates for each Gulf 

state. Id.

 5 Plaintiffs refer to this document as the “February Framework Action,” due to the meeting date, but in the 

interests of clarity the Court will refer to it by its publication date.
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However, the District Court for the Southern District of Texas vacated the 

emergency rule on May 31, 2013, finding that the rule “was not enacted in compliance 

with the required criteria for emergency measures,” and also that the state-specific 

closure dates “impermissibly discriminate[d] against citizens of different states in 

violation of 16 U.S.C. § 1851(a)(4).” Texas v. Crabtree, 948 F. Supp. 2d 676, 690 (S.D. 

Tex. 2013). 

NMFS responded to the court’s decision by publishing a temporary rule (the 

“June Temporary Rule”), which eliminated the state-specific closure dates and set a Gulfwide recreational sector closure date of June 29, 2013. 78 FR 34586, 34587. The 8.46 

million pound quota remained in effect. NMFS set the season length at 28 days to reflect

the agency’s projections as to when the recreational quota would be reached. Id. at 

34586.

2. The September Final Rule

A new stock assessment arrived in May of 2013, as anticipated. AR 4778. The 

SSC reviewed the stock assessment and determined that the ABC for 2013 could be 

increased to 13.5 million pounds total, as long as it fell to 11.9 and 10.6 million pounds in 

2014 and 2015, respectively. Id. Because the ABC was set very close to the overfishing 

limit (OFL), with only a small affordance for scientific uncertainty, the SSC also 

recommended a 20 percent buffer to account for management uncertainty. Id.

The full Council did not meet until July 2013, after the 28-day June fishing season 

had closed. The Council published another framework action (the “July Framework 

Action”) recommending that NMFS set the 2013 quota below the ABC, at 11 million 

pounds rather than 13.5 million pounds, in order to achieve a “constant catch” in 2014 
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and 2015. Id. The Council determined that setting the 2013 quota at 11 million pounds 

would reduce the likelihood that NMFS would have to decrease quotas in 2014 and 2015. 

Id.

The Council also suggested reopening the season in the fall to allow for 

harvesting of the additional quota amount, but only “contingent upon there being unused 

quota available.” AR 4786. Every alternative considered by the Council specified that 

there must be unused quota available for NMFS to reopen the season. Id. The Council 

noted that “[b]ecause of the potential for a quota overage during the June season, the full 

amount of a quota increase may not be available.” Id. Thus, the length of the reopened 

season “would be based on the landings from the June season subtracted from the total 

recreational quota (original quota plus increase).” Id. The Council also opined that a 

split season “would allow NMFS to better determine how much quota is available before 

setting the closing date for the supplemental season, which should result in more accurate 

projections for 2013.” AR 4785. 

Though the Council considered the SSC’s suggestion of a 20 percent buffer, it did 

not adopt the proposed buffer. The Council explained that the distance between the ABC 

(13.5 million) and the 2013 quota (11 million), which the Council recommended in order 

to achieve a constant catch through 2013, 2014, and 2015, would also function as a “de 

facto buffer” against overages in the recreational sector. AR 4785. According to the 

Council, “an additional buffer [was] not necessary to prevent risking the rebuilding plan 

or overfishing.” Id. The Council acknowledged that “management uncertainty was high 

for the recreational sector,” based on “quota overages in recent years,” but maintained 

that “reductions in overages are likely for upcoming years because the recent benchmark 
16

stock assessment provides data that is more updated than what has recently been used for 

projections and is based on better models, and because the system for collecting 

recreational data has improved.” Id.

Also in July 2013, before NMFS knew how much red snapper had been caught 

during the June 2013 season, the agency evaluated how long a fall season might last. AR 

5006. Based on historical landings data, NMFS estimated that the fall catch rate would 

be roughly 50 percent of the summer catch rate. Id. At that rate, the proposed quota 

increase would allow NMFS to reopen the fishing season for 21 days in the fall. Id. This

21-day estimate assumed that recreational landings in the June 2013 season had met, 

without exceeding, the quota then in effect (4.145 million pounds). AR 5011. 

On August 14, 2013, NMFS published a Notice of Proposed Rulemaking, 

describing the proposal to increase the 2013 quota to 11 million pounds total. 78 FR 

49440, 49441. An 11 million pound total quota would allow 5.61 million pounds for the 

commercial sector and 5.39 million for the recreational sector. NMFS explained in the 

notice that “[i]f this rule is implemented and the recreational quota for red snapper were 

to increase, NMFS may be able to reopen the recreational season for red snapper during 

2013, if additional quota is available after the June landings are known.” Id.

In late August, NMFS received the June 2013 landings estimates. As it turned 

out, MRIP landings estimates indicated that recreational fishermen actually caught 6.13 

million pounds of red snapper during the June 2013 season. AR 5073. This exceeded 

NMFS’s estimate of what would be caught during the 28-day June season by 1.985 

million pounds. It also exceeded the proposed new quota by 740,000 pounds. 
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A question emerged as to the cause of the large overage. Ned Cyr, the Director of 

the NMFS Office of Science and Technology (OST), analyzed the MRIP landings 

estimates to determine why they were “higher than anticipated.” AR 4999. Cyr noted as 

a possible cause that NMFS had recently implemented several improvements to the 

MRIP sampling methodology, specifically the change to APAIS sampling design. Id.; 

see Part I(B)(1), supra.

OST analyzed whether any of the 2 million pound overage “could be attributable 

to any changes in the sampling design.” AR 4999. The analysis indicated that “sampling 

under the new design was capturing charter and private boat angler fishing trips in time 

intervals that had no sampled trips in the previous years.” Id. In other words, the staff 

conducting dockside interviews had reached fishermen at new times of day. This “raised 

concern that the improved temporal coverage may have been partly responsible for the 

big increase in red snapper catch, especially if trips returning in these previously 

uncovered time intervals tended to be more directed to offshore fishing and red snapper.” 

AR 5000. 

To assess how much of the overage was due to improved sampling, OST 

attempted to simulate what the 2013 recreational landings would have been under the old 

APAIS sampling design. AR 5000-5001. By removing the variable of sampling design 

from the equation, OST hoped to determine how much, if any, of the 2 million pound 

overage could be attributed to the design change. The simulations “did not provide 

strong evidence that effects related to the change to the new, improved...sampling design 

could easily explain much of the increase in the red snapper catch estimates from 2012 to 

2013.” AR 5001. Cyr characterized the analyses performed by OST as “inconclusive.” 
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Id. He admitted that OST “[had] not been able to demonstrate that the change to the new 

APA1S sampling design had a significant effect,” though he also cautioned that OST 

could not “safely conclude at this time that the change in design had no effect.” Id.

On September 9, 2013, Bonnie Ponwith, Director of the Southeast Fisheries 

Science Center, recommended that instead of using the MRIP landings estimate, which 

was 6.13 million pounds, NMFS should assume that the recreational sector caught 

exactly as much as the agency projected would be caught during the June 2013 season –

i.e., 4.145 million pounds. AR 5003. Ponwith acknowledged that reopening the fishing 

season in October 2013 was “premised on landings from the June season falling at or 

below the recreational quota currently in place.” Id. Assuming a catch of 4.145 million 

pounds would allow NMFS to reopen the season. Id. 

According to Ponwith, the “new dockside intercept protocols” made using the 

actual 2013 MRIP estimates “complicated.” Id. The 2013 quota was set based on 

landings estimates that used old sampling protocols, whereas the 2013 MRIP estimates 

used newer protocols, so Ponwith deemed the figures “non-comparable.” Id. She noted 

that OST’s evaluation was inconclusive, and further analysis would not be complete 

before NMFS decided whether to reopen the fishing season in October. Id. For that 

reason, she concluded that “currently the best scientific information available for 

determining the landings during the June season is the projection that was used to set the 

season length.” Id. Ponwith acknowledged that “[t]here is uncertainty in the projection, 

because it is based on assumptions about effort levels, catch-per-unit effort and average 

weights for landed fish.” Id. Accordingly, she recommended that “this uncertainty should be 

factored into decisions about season length for the fall season.” Id.
19

In preparation for issuing a final rule, NMFS drafted an addendum to its previous 

assessment of possible fall season length, which had projected a 21-day fall season. See

AR 5011. The agency recognized that its prior estimate was “contingent on the previous 

quota of 4.145 [million pounds] being met, but not exceeded during the June 2013 

[season].” AR 5011. NMFS noted that the MRIP estimates indicated a 1.98 million pound 

overage. Id. NMFS also explained that MRIP catch estimates for June 2013 were “more 

accurate and less biased than those produced in past years because MRIP redesigned the 

Access Point Angler Intercept Survey in March 2013 to provide much better coverage of the 

variety of fishing trips ending at different times of day.” Id. The addendum echoed

Ponwith’s conclusion that the 2013 quota and the 2013 MRIP landings estimates were “not 

directly comparable.” Id. Because NMFS could not form “a sufficient understanding of how 

to use the new MRIP landing estimates without better understanding how they fit into the 

broader scientific basis for red snapper management,” the agency “determined the best course 

of action is to base a decision on whether to proceed with a fall season using previous 

projections developed for estimating the supplemental season length.” Id.

As discussed above, NMFS had previously projected that catch rates in the fall would 

be 50 percent of summer catch rates. However, public testimony indicated that fall fishing 

effort might prove higher than NMFS had expected. Id. NMFS deemed it unrealistic to 

assume that fall catch rates would exactly equal summer catch rates, due to “children being in

school, inclement weather, and other activities, such as hunting and football.” AR 5013. To 

account for possible increased effort in the fall, as well as “questions about the new data,” 

NMFS chose to split the difference and assume fall catch rates would be 75 percent of 

summer catch rates. AR 5012. This meant a 14-day season rather than a 21-day season. Id.
20

On September 18, 2013, NMFS published a final rule (the “September Final 

Rule”) increasing the 2013 quota to 11 million pounds and setting a 14-day fall fishing 

season. 78 FR 57313, 57315. The final rule describes the June 2013 landings estimates 

as “unexpectedly high relative to previous years.” Id. at 57314. NMFS stated that “[i]t is 

misleading to make a direct comparison between these numbers, however, because if the 

new MRIP methodology had been available to use in the 2013 stock assessment on which 

the current ABCs and quotas are based, then the original quotas may have been set much

higher.” Id. The September Final Rule includes NMFS’s conclusion that “the best 

scientific information available to determine landings during the June season is the 

projection used to set the season length.” Id.

D. Procedural History

Plaintiffs filed suit challenging the May Final Rule and the June Temporary Rule on 

June 28, 2013. See Dkt. #1. The parties then moved to stay the case, anticipating NMFS 

would publish another final rule for the fall 2013 season and that Plaintiffs would seek to 

amend their complaint to include a challenge to that rule. The Court granted the stay, and 

also granted the Coastal Conservation Association’s motion to intervene on behalf of 

Defendants. See Dkt. #33. After NMFS published the September Final Rule, Plaintiffs 

amended their Complaint to include a challenge to that rule as well. See Dkt. #31.

Plaintiffs claim that NMFS violated the following MSA provisions: Section 407(d) 

(16 U.S.C. § 1883(d)(1)), National Standard 2 (16 U.S.C. § 1851(a)(2)), Section 

303(a)(15) (16 U.S.C. § 1853(a)(15)), Section 304(b) (16 U.S.C. § 1854(b)(1)), National 

Standard 4 (16 U.S.C. § 1851(a)(4)), National Standard 1 (16 U.S.C. § 1851(a)(1)), and 

Section 303(a)(1)(A) (16 U.S.C. § 1853(a)(1)(A)). See Pls’ First Amended Complaint 
21

(“Compl.”), Dkt. #31, ¶¶ 86-119.6 Plaintiffs also bring claims under the APA and NEPA. 

See id. ¶¶ 121-31.

The Court granted the parties’ request for expedited proceedings. Plaintiffs, NMFS, 

and CCA have all filed motions for summary judgment. The Court heard oral argument 

on February 11, 2014.

II. LEGAL STANDARD

Under the MSA, the Court reviews the regulatory actions at issue in this case under 

the standard set forth in the APA, except that a court “shall only set aside any such 

regulation or action on a ground specified in section 706(2)(A), (B), (C), or (D) of [the 

APA].” 16 U.S.C. § 1855(f)(1). Under Section 706 of the APA, a reviewing court shall

“hold unlawful and set aside agency action, findings, and conclusions found to 

be...arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 

law.” 5 U.S.C. § 706(2)(A).7

Under the APA’s “narrow” standard of review, “a court is not to substitute its 

judgment for that of the agency,” Motor Vehicle Manufacturers Ass'n of U.S., Inc. v. 

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), and “will defer to the [agency’s] 

interpretation of what [a statute] requires so long as it is ‘rational and supported by the 

record.’” Oceana, Inc. v. Locke, 670 F.3d 1238, 1240 (D.C. Cir. July 19, 2011) (quoting 

C & W Fish Co. v. Fox, 931 F.2d 1556, 1562 (D.C. Cir. 1991)).

Nevertheless, to meet the APA standard an agency must “examine the relevant 

data and articulate a satisfactory explanation for its action including a rational connection 

 6 Plaintiffs’ Amended Complaint also includes an alleged violation of National Standard 5, 16 U.S.C. § 

1851(a)(5). However, Plaintiffs have relinquished that claim. See Pls’ Reply in Support of Plaintiffs’ 

Motion for Summary Judgment, Dkt. #49, at 13 n.22.

7 Review of agency actions under NEPA is also performed according to the APA standard. See Balt. Gas 

& Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97–98 (1983).
22

between the facts found and the choice made.” Id. (internal quotation omitted). An 

agency acts arbitrarily and capriciously “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 difference in view 

or the product of agency expertise.” Advocates for Highway & Auto Safety v. Fed. Motor 

Carrier Safety Admin., 429 F.3d 1136, 1144-45 (D.C. Cir. 2005) (quoting State Farm, 

463 U.S. at 48). “This deferential standard cannot permit courts to ‘merely to rubber 

stamp agency actions,’ nor be used to shield the agency's decision from undergoing a 

‘thorough, probing, in-depth review.’” Flaherty v. Bryson, 850 F. Supp. 2d 38, 47 

(D.D.C. 2012) (internal citations omitted). The court should evaluate “whether the 

decision was based on a consideration of the relevant factors and whether there has been 

a clear error of judgment.” Id.

III. DISCUSSION

A. CCA’s Procedural Challenges

Defendant-Intervenor Coastal Conservation Association (CCA) raises a host of 

procedural challenges. CCA contends that Plaintiffs lack Article III standing on all 

claims, and that all claims are moot in light of the 2013 season closure. DefendantIntervenor’s Cross-Motion for Summary Judgment (“Defendant-Intervenors Mot.”), Dkt. 

#43, at 20, 36. CCA also argues that Plaintiffs abandoned certain claims, and waived 

others by not raising them before the agency. Id. at 12, 14. Finally, CCA insists that 

some of Plaintiffs’ claims are challenges to agency inaction, and thus fall outside the 

scope of judicial review authorized by the MSA. Id. at 21; Defendant-Intervenor’s Reply 
23

in Support of Cross-Motion for Summary Judgment (“Defendant-Intervenor’s Reply”), 

Dkt. #50, at 8.

For the reasons given below, the Court concludes that: (1) Plaintiffs have standing to 

sue; (2) the case is not moot; (3) Plaintiffs preserved all but one claim, which they 

acknowledge abandoning; (4) Plaintiffs properly raised their objections before the agency

in administrative proceedings; and (5) the challenged actions fall within the judicial 

review provisions of the MSA.

1. Plaintiffs Have Article III Standing

“To satisfy Article III's standing requirements, a plaintiff must show that (1) he or 

she has suffered an injury in fact that is (a) concrete and particularized and (b) actual or 

imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the 

challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, 

that the injury will be redressed by a favorable decision.” Gilardi v. U.S. Dept. of Health and 

Human Serv., 733 F.3d 1208, 1228 (D.C. Cir. 2013). “[I]n reviewing the standing

question, the court must be careful not to decide the questions on the merits for or against 

the plaintiff, and must therefore assume that on the merits the plaintiffs would be 

successful in their claims.” City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir.

2003).

CCA claims that Plaintiffs have no “injury in fact” because jeopardy to long-term 

stock conservation is neither actual nor imminent. Defendant-Intervenor’s Mot. at 27. 

CCA also contends that the challenged actions have not reduced or affected the 

commercial fishing quota. Id. at 29. Even if Plaintiffs could prove an injury, CCA 

argues, the alleged injury is not fairly traceable, or likely to be redressed, because 
24

Plaintiffs have not shown a connection between management of the recreational sector 

and injuries to the commercial sector. Id. at 30-31.8

The Court need not address this matter in great depth, as the Plaintiffs’ standing to 

bring this suit is self-evident. See Sierra Club v. E.P.A., 292 F.3d 895, 899-900 (D.C. 

Cir. 2002) (“In many if not most cases the petitioner’s standing to seek review of 

administrative action is self-evident; no evidence outside the administrative record is 

necessary for the court to be sure of it.”). Plaintiffs are commercial red snapper 

fishermen. Compl. ¶ 2. They allege that the challenged agency actions led to an 

overharvesting of red snapper that threatens their livelihood. Id. It is self-evident that 

overharvesting of red snapper in either sector could negatively impact both sectors’ 

interests in the fishery’s health. Plaintiffs have also explained how overages in the 

recreational sector could affect the plan for a “constant catch” in 2014 and 2015. See Pls’ 

Motion for Summary Judgment (“Pls’ Mot.”), Dkt. #42, at 34; Pls’ Reply at 4; see also

AR 4860, 5074 (explaining that a higher 2013 catch would require lower quotas in 2014 

and 2015, for both recreational and commercial sectors).

CCA cites no case in which a group of fishermen were denied standing to 

challenge a rule that regulated the amount of catch in their fishery. Courts in this Circuit 

have granted standing to similar plaintiffs in the same (or even more attenuated)

circumstances. See, e.g., Ctr. for Biological Diversity v. Blank, 933 F. Supp. 2d 125, 

136-38 (D.D.C. 2013) (granting environmental group standing to challenge bluefin tuna 

management measures, even where quota was not reduced); Flaherty v. Bryson, 850 F. 

Supp. 2d 38, 48 (D.D.C. 2012) (granting standing where the plaintiffs claimed that their 

 8 The Court notes that the federal defendants do not challenge Plaintiffs’ standing on the MSA and APA 

claims.
25

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) (granting standing to 

recreational fishermen who alleged that NMFS management measures failed to prevent 

commercial fishers from damaging fish habitats); N. Carolina Fisheries Ass'n, Inc. v. 

Gutierrez, 518 F. Supp. 2d 62, 81-83 (D.D.C. 2007) (granting standing to commercial 

fishermen who challenged management restrictions on commercial snapper-grouper 

fishery). 

The Court sees no reason to deny standing to Plaintiffs simply because Plaintiffs 

are commercial fishermen challenging management of the recreational sector. Red 

snapper fishermen, commercial or recreational, harvest the same stock from the same 

waters. Overharvesting of red snapper is as likely to injure commercial as recreational 

fishing interests, and overharvesting is directly traceable, indeed dependent upon,

NMFS’s management actions or lack thereof. Furthermore, the Court’s decision in this 

case is likely to redress Plaintiffs’ injury. Accordingly, Plaintiffs have Article III 

standing.

2. Plaintiffs’ Claims are Not Moot

“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., 133 

S. Ct. 721, 726 (2013) (internal quotation omitted). Unless and until “it becomes 

impossible for the court to grant any effectual relief whatever to the prevailing party,” the 

case is not moot. United States v. Philip Morris USA Inc., 566 F.3d 1095, 1135 (D.C. 

Cir. 2009).
26

The mootness doctrine does not apply 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.” United Bhd. of Carpenters & Joiners of Am., AFL-CIO v. Operative 

Plasterers’ & Cement Masons’ Int’l Ass’n of U.S. & Canada, AFL-CIO (“Carpenters”), 

721 F.3d 678, 687 (D.C. Cir. 2013) (internal quotation omitted). This is known as the 

“capable of repetition yet evading review” exception. Id.

An action is “capable of repetition” if there is “a reasonable degree of likelihood 

that the issue will be the basis of a continuing controversy between the two parties.” Id.

at 688 (quotation omitted). 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.” Carpenters, 721 F.3d at 688 (quoting Clarke v. United States, 915 F.2d 699, 

704 (D.C. Cir. 1990) (en banc)). An action “evades review” where “the challenged 

activity is by its very nature short in duration, so that it could not, or probably would not, 

be able to be adjudicated while fully live.” Conyers v. Reagan, 765 F.2d 1124, 1128 

(D.C. Cir. 1985) (internal quotations and emphasis omitted).

The NMFS actions Plaintiffs challenge are precisely the sort of agency actions for 

which the “capable of repetition yet evading review” exception exists. The “legal 

wrongs” at issue are alleged failures by NMFS to comply with MSA requirements, 

leading to overages in the recreational sector. In future agency decisions, the 
27

administrative records will by necessity differ at least somewhat from the record before 

the Court, but the same “legal wrongs” may well recur. Overages in the recreational 

sector have occurred in six of the last seven years. This frequency suggests that future 

overages are at a minimum “capable of repetition.” See Carpenters, 721 F.3d at 688.

NMFS may publish quotas and season lengths right up to the moment the fishing 

seasons begins, and even after it has begun. The season may last less than a month. In 

this case, NMFS published the May Final Rule on May 29, 2013, two days before the 

beginning of the 2013 fishing season. AR 4680. The June Temporary Rule, which set a 

Gulf-wide closing date, was published ten days into the season. See 78 FR 34586, 34587. 

NMFS published the September Final Rule less than two weeks before reopening the 

fishing season on October 1, 2013. See 78 FR 57313, 57315. Such actions “could not, or 

probably would not, be able to be adjudicated while fully live.” Conyers, 765 F.2d at

1128. For these reasons, Plaintiffs’ case satisfies the “capable of repetition yet evading 

review” exception to the mootness doctrine.

9

3. Plaintiffs Preserved All But One Claim

Claims not briefed may be deemed abandoned. See Terry v. Reno, 101 F.3d 1412, 

1415 (D.C. Cir. 1996). CCA argues that Plaintiffs have abandoned their claims under 

National Standard 5 (16 U.S.C. § 1851(a)(5)), National Standard 1 (16 U.S.C. § 

1851(a)(1)), 16 U.S.C. § 1853(a)(1)(A), and a portion of their APA claim concerning 

NMFS’s determination of the projected catch rate in the fall 2013 fishing season. See 

Defendant-Intervenor’s Mot. at 12. CCA also contends that Plaintiffs have abandoned all 

 9 As with standing, the federal defendants do not join CCA in arguing mootness. It is instructive that the 

agency apparently accepts that Plaintiffs have standing, and that this Court can grant relief. 
28

claims related to the June Temporary Rule. Id. Plaintiffs concede that they have 

abandoned their claim under National Standard 5. See Pls’ Reply at 13, n. 22. 

Plaintiffs’ briefs demonstrate that they preserved all other claims. National 

Standard 1, 16 U.S.C. § 1853(a)(1)(A), is mentioned explicitly, and by implication, 

throughout Plaintiffs’ briefs. See Pls’ Mot. at 29-30, n. 24. Plaintiffs also explain in their 

opening and reply briefs why NMFS erred in adjusting the catch rate for the fall 2013 

season, which preserves that portion of their APA claim. See id. at 19; Pls’ Reply at 18. 

Finally, in challenging the 28-day June 2013 season, Plaintiffs thereby directly 

challenged the portion of the June Temporary Rule that set the Gulf-wide fishing season 

length. See id. at 14 (noting that “NMFS set the recreational fishing season for June 2013 

in the May Final Rule and June Temporary Rule,” and arguing that “NMFS violated 

Section 407(d) by authorizing a 28-day recreational fishing in June that resulted in a 48%

overage”). This preserved Plaintiffs’ challenge to the June Temporary Rule.

4. Plaintiffs Properly Raised Their Concerns with NMFS

“[A] party will normally forfeit an opportunity to challenge an agency rulemaking 

on a ground that was not first presented to the agency for its initial consideration.” 

Flaherty, 850 F. Supp. 2d at 57 (quoting Advocates for Highway & Auto Safety, 429 F.3d 

at 1150). Plaintiffs must “alert the agency to their position and contentions, in order to 

allow the agency to give the issue meaningful consideration.” Id. However, courts have 

found this requirement satisfied where a third party raised the issue during administrative 

proceedings, or where an agency’s decision “indicates that the agency had the 

opportunity to consider the very argument pressed by the petitioner on judicial review.” 
29

Natural Res. Def. Council, Inc. v. E.P.A., 824 F.2d 1146, 1151 (D.C. Cir. 1987) (internal 

quotations omitted).

CCA contends that Plaintiffs failed to raise their issues before the agency in 

advance of the May and September Final Rules.

10 CCA also emphasizes that three of the 

plaintiffs submitted a comment supporting the proposal that became the September Final 

Rule, and that Plaintiffs never “proposed a specific accountability measure that NMFS 

should adopt.” Defendant-Intervenor’s Mot. at 15, 19. 

Upon review of the comments submitted on the May and September Final Rules, 

it is evident that NMFS was presented with the objections underlying this action and had 

a fair opportunity to consider them. 

a. Comments on the May Final Rule

Plaintiff Wayne Werner’s comments on the May Final Rule complained that 

“[t]he existing plan contains no accountability measures as required by the law.” AR 

4620. Specifically, Werner noted that “[t]he overage from the previous year is not 

deducted from the following year's quota; the enforcement and monitoring does not 

increase; the number of anglers is not capped.” Id. Werner cited MSA Section 407(d)’s 

requirement that NMFS prohibit the retention of fish above the quota, explaining that 

“the agency has established a pattern of failing to prohibit the retention of fish far after 

the recreational quota has been reached,” a “violation of the provision.” Id. Werner

asserted that the recreational overages actually operate to “reallocate quota from the

commercial to the recreational sectors.” Id. Citing National Standard 4, Werner wrote 

 10 CCA also argues that all claims against the May Final Rule were “merged” into claims against the 

September Final Rule. See Defendant-Intervenor’s Mot. at 18. CCA does not explain why such a merger 

should make irrelevant any comments Plaintiffs submitted to NMFS in connection with the May Final 

Rule. Accordingly, the Court considers separately the Plaintiffs participation in each rulemaking. 
30

that “continued effective reallocation by allowing the recreational sector to exceed its 

catch is unfair and does not promote conservation.” AR 4621.

Plaintiff Fish for America’s comments on the May Final Rule echoed all of 

Werner’s objections. Fish for America suggested that NMFS sets the recreational fishing 

season length “with full knowledge that the lack of monitoring and other factors will 

result in continued overages the following year with no payback provisions in place.” 

AR 4623. Fish for America also elaborated on the reallocation complaint: “Although the 

recreational quota is technically limited to 49 percent of the total, the understanding that 

it will be exceeded in practice makes that technicality meaningless and results in an 

effective violation of 407(d).” AR 4624.

A third party, the Environmental Defense Fund (EDF), raised similar concerns in 

its comments. EDF referenced “the history of consistent overages in the recreational red 

snapper fishery under measures like those in the proposed rule,” which made it “only 

remotely possible that the measures succeed as required by the Magnuson-Stevens Act.” 

AR 4617. According to EDF, “the current recreational management plan” made it 

“almost certain” that quota overages would continue, “potentially jeopardizing recent 

rebuilding of the red snapper stock.” Id. EDF cited the same sections of the MSA as did 

Werner and Fish for America, along with 16 U.S.C. § 1853(a)(1)(A). Id. 

Though the agency need not have received notice of precisely which causes of 

action Plaintiffs would eventually bring, the comments reveal that in fact NMFS did have

explicit notice of Plaintiffs’ claims under MSA Section 407(d), Section 303(a)(15), and 

National Standard 4. See 16 U.S.C. §§ 1883(d)(1) (requiring prohibition on the retention 

of fish), 1853(a)(15) (requiring accountability measures), 1851(a)(4) (requiring fair and 
31

equitable allocation reasonably calculated to promote conservation). The concern around

de facto reallocation, expressed by all three commenters, also covers Plaintiffs’ cause of 

action under MSA Section 304(b). See id. § 1854(b)(1) (requiring consistency between 

FMP and management measures).11

b. Comments on the September Final Rule

Plaintiffs Guindon, Werner, and Waters (hereinafter “Guindon”) submitted 

lengthy written comments on the September Final Rule. Guindon’s comment supported

increasing the 2013 quota to 11 million pounds. See AR 4989. However, at the time 

Guindon submitted the comment, NMFS had not yet published its decision to reopen the 

recreational fishing season in fall 2013. The comment made crystal clear that Guindon

supported only “that portion of the proposed rule that would increase the 2013 total 

allowable catch to 11 million pounds.” Id. Guindon remained concerned that the 

proposed rule “fail[ed] to include meaningful accountability measures for the recreational 

sector.” Id. Guindon also reiterated that “[t]he lack of meaningful accountability 

measures for the recreational sector violates several provisions of the Magnuson-Stevens 

Act,” and explained that further recreational overages would accomplish a “de facto 

reallocation from the commercial to the recreational sector that is inconsistent with the

apportionment between those sectors as established by the Reef Fish FMP.” AR 4989-

90. Guindon insisted that “if the preliminary results [estimating June 2013 landings] 

prove accurate, the recreational sector should be required to pay back in 2014 any 

overage from 2013.” AR 4991. In addition, though Guindon supported increasing the 

quota to 11 million pounds, the comment attacked the logic underpinning the Council’s 

recommendation. Id. at 4990-91. Guindon explained that the gap between the ABC and 

 11 Fish for America also explicitly cited this section in its comments. See AR 4624.
32

the quota could not achieve “constant catch” while also serving as a “de facto buffer” 

against recreational overages, and asserted that such a “de facto buffer” would penalize 

the commercial sector, which has no overages. Id. 

EDF also submitted comments on the September Final Rule, suggesting sectorspecific buffers (which would mean a buffer on the recreational sector). AR 4984.

EDF’s comment again expressed skepticism that existing management measures would 

succeed, given the history of overages, and EDF again identified the MSA provisions that 

would be violated. AR 4985 (citing 16 U.S.C. §§ 1883(d), 1853(a)(15), 1853 (a)(1)(A), 

1854(b)).

These comments gave NMFS sufficient notice of the issues underlying the present 

action.

12 Guindon’s comments on the “constant catch” plan became the basis of 

Plaintiffs’ claim that setting the quota at 11 million was arbitrary and capricious, in 

violation of the APA. See Compl. §§ 121-26. Guindon also revisited the issues raised in 

Werner’s and Fish for America’s comments on the May Final Rule. EDF echoed its 

earlier comments. Whether or not Plaintiffs (or a third party) were actually required to 

identify specific accountability measures that NMFS should adopt, the record reveals that 

commenters did so. See AR 4620 (“[t]he overage from the previous year is not deducted 

from the following year's quota; the enforcement and monitoring does not increase; the 

number of anglers is not capped”); AR 4623 (discussing payback provisions); AR 4984 

(suggesting sector-specific buffers); AR 4991 (suggesting a payback provision for 2014). 

 12 Without deciding whether a lawsuit on its own would provide sufficient notice to the agency, the Court 

observes that Plaintiffs filed this suit on June 26, 2013, and that the parties jointly moved for a stay on July 

29, 2013, in recognition that Plaintiffs would likely amend their complaint to include the final rule NMFS 

planned to publish in September. See Dkt. #1, 21. 
33

The only causes of action that are not directly addressed, with citations to the 

MSA, are Plaintiffs’ causes of action under National Standards 1 and 2. However, 

National Standard 1 is a general obligation to “prevent overfishing while achieving, on a 

continuing basis, the optimum yield from each fishery.” 16 U.S.C. § 1851(a)(1). To the 

extent that NMFS requires any notice at all with respect to its general responsibilities 

under National Standard 1, many of the commenters’ objections could be fairly read as 

implying a violation of this standard. See, e.g., AR 4617 (explaining that recreational 

overages “potentially jeopardiz[e] recent rebuilding of the red snapper stock”).

As for National Standard 2, which requires NMFS to use “the best scientific 

information available,” the commenters submitted their comments before NMFS decided

to substitute the projected 2013 landings for the actual 2013 MRIP landings estimates. 

See AR 4989 (comments submitted August 29, 2013); AR 5014 (NMFS decision 

memorandum recommending approval of fall fishing season, dated September 10, 2013); 

78 FR 57313 (September Final Rule, dated September 18, 2013). Plaintiffs were never 

given an opportunity to comment on NMFS’s decision to designate the 2013 projections 

as the “best scientific information available,” see 78 FR 57313, 57314, and thus cannot 

be retroactively required to have exhausted that issue during administrative proceedings.

5. Plaintiffs’ Claims Fall Within the Scope of the MSA’s Judicial 

Review Provision

The MSA provides that courts shall only set aside agency regulations “on a 

ground specified in section 706(2)(A), (B), (C), or (D) of [the APA].” 16 U.S.C. § 

1855(f)(1)(B). CCA argues that insofar as Plaintiffs claim that NMFS should have 

adopted additional accountability measures, the judicial review provisions of the MSA 

preclude the Court from granting relief. See Defendant-Intervenor’s Reply at 9. CCA 
34

observes that Congress conspicuously omitted Section 706(1), which authorizes courts to 

“compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 

706(1). According to CCA, Congress intended this omission to foreclose plaintiffs from 

challenging “agency inaction.” See Defendant-Intervenor’s Reply at 9. 

This novel argument finds no support in the case law. CCA has not identified any 

decision distinguishing between agency action and agency inaction in the MSA context.13 

In any event, the Court need not decide precisely what Congress intended to leave out of 

the MSA judicial review provision because Plaintiffs have alleged that three specific 

agency actions – the May Final Rule, June Temporary Rule, and September Final Rule –

violated the MSA. If the Court finds any of those agency actions to be “arbitrary and 

capricious, an abuse of discretion, or otherwise not in accordance with law,” see 5 U.S.C. 

§ 706(2)(A), the MSA authorizes setting that action aside. See 16 U.S.C. §1855(f)(1)(B).

B. Plaintiffs’ MSA Challenges

1. NMFS Failed to Prohibit the Retention of Fish After the 

Recreational Quota Had Been Reached, in violation of Section 

407(d)

Section 407(d) requires NMFS to “establish...quotas for recreational 

fishing...that, when reached, result in a prohibition on the retention of fish...for the 

remainder of the fishing year.” 16 U.S.C. § 1883(d)(1). The Court has identified no 

cases applying this provision, nor do the parties put forth any particular interpretation of 

the phrase “result in a prohibition on the retention of fish,” except as implied by their 

 13 In several MSA cases, courts have actually included Section 706(1) when setting forth the APA standard 

of review, notwithstanding the excision of that section from 16 U.S.C. § 1855(f)(1)(B). See, e.g., Texas v. 

Crabtree, 948 F. Supp. 2d 676, 680 (S.D. Tex. 2013); Connecticut v. Daley, 53 F. Supp. 2d 147, 156 (D. 

Conn. 1999) aff'd sub nom. Connecticut v. U.S. Dep't of Commerce, 204 F.3d 413 (2d Cir. 2000).
35

arguments. The statute does not explain what methods of “prohibition” will satisfy the 

requirement, and the legislative history gives no indication. 

The provision’s first clause imposes on NMFS an obligation to “establish a 

quota,” and the second clause essentially explains how the quota must function – i.e., to 

“result in a prohibition on the retention of fish.” Id. Thus, the Court concludes that under 

Section 407(d), NMFS must close the season, and may not reopen it, whenever the 

agency determines that the quota has been reached. The Court will also presume that 

NMFS has complied with the statute if it implements some effective mechanism to 

prohibit the retention of fish above the quota. This might include setting a season length 

in advance based on a projection of when the quota will be met, but such a projection 

must be accurate and conservative enough to effectively accomplish the statutory 

mandate.

Plaintiffs claim that NMFS violated Section 407(d) by approving a 28-day season 

based on a “flawed projection model,” without adequate accountability measures, and by 

reopening the season in the fall when the recreational quota had already been reached and 

exceeded. Pls’ Mot. at 14-15. NMFS contends that its method of complying with 

Section 407(d) was, and has been, to project when the quota will be met and set the 

length of the fishing season accordingly. Defs’ Mot. at 28. 

NMFS also argues that its decision to reopen the season in fall 2013 complied 

with Section 407(d) because the agency had concluded that there was additional quota 

available. Id. at 31. Despite the preliminary MRIP landings data from the June 2013 

season, which indicated an overage of almost 2 million pounds, NMFS determined that 

the “best scientific information available” was the original projection used to set the 
36

season length. Id. Under that projection, by definition, the amount of catch harvested in 

June 2013 exactly met the recreational quota of 4.145 million pounds. According to 

NMFS, this justified reopening the season so that the recreational sector could capture its 

share of the quota increase. 

The Court agrees with Plaintiffs that NMFS violated Section 407(d) in setting the 

June 2013 season, and in reopening the recreational fishing season in the fall. If NMFS’s 

estimates in previous years had come at all close to accurately predicting recreational 

landings, or if NMFS had some credible reason to believe that 2013 would be different, 

the Court might have been limited to sympathizing with Plaintiffs’ frustrations at 

watching an agency fail to accomplish a statutory mandate. But by 2013 at least, if not 

sooner, the agency had experienced many years of recreational overage, and possessed

several remedial tools to effectuate its statutory responsibility. At a certain point NMFS

was obligated to acknowledge that its strategy of incrementally shortening the season was 

not working. Administrative discretion is not a license to engage in Einstein's definition 

of folly – doing the same thing over and over again and expecting a different result.14 

Section 407(d) required NMFS to implement management measures with a fighting 

chance of “result[ing] in a prohibition on the retention of fish” – be that a buffer, a 

dramatically shortened season, or some other strategy. Failing to do so was arbitrary and 

capricious. 

 14 The Court need not specify the precise moment at which an agency’s past failures to accomplish a 

statutory mandate make continuing with the status quo arbitrary and capricious. The sufficiency of an 

agency’s rationale depends on the “nature and context of the challenged action.” Cleary, Gottlieb, Steen & 

Hamilton v. Dep't of Health & Human Servs., 844 F. Supp. 770, 783 (D.D.C. 1993). In this case, NMFS 

had experienced at least four years of extreme overages under its existing management scheme, and also

had at its disposal several means to address those overages.

 
37

The agency’s conduct in reopening the fishing season in fall 2013 was yet more 

egregious. To summarize the sequence of events: (1) in July 2013, the Council proposed 

increasing the 2013 quota and suggested reopening the season in the fall, contingent on 

there being unused quota available; (2) in early August, NMFS published a proposal 

discussing the possibility of reopening the season, contingent on available quota; (3) in 

late August, NMFS received MRIP landings estimates indicating an overage that 

exceeded both the current and proposed quota; (4) NMFS reopened the fall season 

anyway. 

In July 2013, when the Council authorized reopening the season in the fall, it did 

so “contingent upon there being unused quota available,” and observed that “[b]ecause of 

the potential for a quota overage during the June season, the full amount of a quota 

increase may not be available.” AR 4786. The Council intended the length of the 

reopened season to be “based on the landings from the June season subtracted from the 

total recreational quota (original quota plus increase).” Id. In fact, the Council expected 

the break in time caused by the split season to “result in more accurate projections for 

2013,” because NMFS could “better determine how much quota is available before 

setting the closing date for the supplemental season.” AR 4785. The Council also 

specifically noted in the July Framework Action that “the system for collecting 

recreational data has improved.” AR 4785. All this suggests that the Council expected 

NMFS to use the June 2013 MRIP landings estimate, or at least some estimate based on 

recreational data from the 2013 season, when deciding whether to reopen.

In August 2013, NMFS proposed increasing the recreational quota from 4.145 to 

5.39 million pounds, with a possible supplemental season contingent on the availability 
38

of additional quota “after the June landings are known.” 78 FR 49440, 49441. Then 

NMFS received the June landings estimate of 6.13 million pounds, which exceeded the 

quota then in effect by 2 million pounds, or about 48 percent. AR 5073. It also exceeded 

the proposed 5.39 million quota by over 700,000 pounds. 

At that point the agency changed course. NMFS characterized the 48 percent 

overage as “unexpectedly high relative to previous years,” AR 5073, though in the 

previous five years the average overage was 42 percent. See AR 3524.15 OST was asked 

to explore the effect of sampling design on the MRIP landings estimates, but found no 

indication that the massive overage occurred as a result of those design changes. AR 

5001. Despite OST’s “inconclusive” finding, NMFS declared the 2013 MRIP landings 

estimates “non-comparable” to the 2013 quota. The agency then determined that, 

according to the “best scientific information available,” the recreational sector caught 

exactly what the agency expected it would catch during the 28-day June season, i.e. 4.145 

million pounds. AR 5003. This allowed NMFS to reopen the fishing season in the fall.

The agency’s decision makes very little sense. NMFS decided to reopen the 

season without accounting in any way for the possibility that some, if not most or all, of 

the estimated overage was due to fishing effort. Assuming that the recreational sector 

caught exactly what the agency predicted it would, despite “more accurate” evidence of a 

massive overage – was a glaring dismissal of the “relevant factors,” and a “clear error of 

 15 This figure excludes the 2010 season, cut short by the Deep Water Horizon oil spill. Here the Court 

follows NMFS’s lead. NMFS generally excludes data from the 2010 season when reviewing recreational 

sector landings, or otherwise treats that season as an aberration. See AR 2553 (“2010 data we did drop 

because of the oil spill and unusual fishing behavior that occurred in that particular year”); AR 4016 (“2010 

was the only year without an overage as a result of decreased fishing because of the Deepwater Horizon 

MC252 oil spill”); AR 4364 (excluding 2010 data from red snapper landings summary). 
39

judgment.” Flaherty, 850 F. Supp. 2d at 47. Under the APA standard articulated in 

Flaherty and other MSA cases, reopening the season was arbitrary and capricious.16

 NMFS attempted to justify its action by explaining that “if the new MRIP 

methodology had been available to use in the 2013 stock assessment on which the current

ABCs and quotas are based, then the original quotas may have been set much higher.” 78 

FR 57313, 57314. In other words, NMFS disregarded the 2013 MRIP landings estimates 

not because they were inaccurate but because they raised the possibility that NMFS had 

set the prior quotas unnecessarily and unfairly low. It is not clear to the Court why the 

possibility of unfairness in prior quotas, or even in a current quota, would justify 

disregarding accurate and reliable information. NMFS never revised or disavowed those 

earlier quotas. Instead it chose to adopt a landings estimate that it knew to be inaccurate, 

apparently to avoid punishing fishermen who might have been permitted to catch more 

under a hypothetical prior quota.

2. NMFS Failed to Use the Best Scientific Information Available, 

in violation of National Standard 2

NMFS’s dismissal of the 2013 MRIP landings estimates also violated National 

Standard 2, which requires NMFS to base all conservation and management measures on 

the “best scientific information available.” 16 U.S.C. § 1851(a)(2). National Standard 2 

obligates NMFS to make “a thorough review of all the relevant information available at 

the time.” Ctr. for Biological Diversity, 933 F. Supp. 2d at 148 (quoting N.C. Fisheries 

Ass’n, 518 F. Supp. 2d at 85). NMFS may not “disregard superior data in reaching its 

conclusion.” Id. Challenges brought under National Standard 2 will normally fail, unless 

 16 The Court notes that in 2011, when faced with a similar situation, the agency acted more rationally. 

Additional quota had become available after the June 2011 season closed, but when preliminary estimates 

indicated that recreational landings in June had already exceeded the additional quota, NMFS declined to 

reopen the season in the fall. See AR 4348.
40

there is “some indication that superior or contrary data was available and that the agency 

ignored such information.” N.C. Fisheries Ass’n, 518 F. Supp. 2d at 85.

“Superior or contrary data” is precisely what NMFS ignored in promulgating the 

September Final Rule. NMFS conceded in the Rule itself that the June 2013 landings 

estimates were “more accurate and less biased than those produced in past years.” AR 

5073. Though NMFS insists that it never ignored that data, merely tabled it for further 

evaluation, the record demonstrates that the agency disregarded the estimate entirely in 

formulating the September Final Rule. Faced with reliable data as to how many fish were 

landed in the recreational sector, NMFS did not even factor the possibility of a massive 

overage into its decision to reopen the fall season. 

NMFS scientists made clear that they could not attribute the “unexpectedly 

high”17 landings to differences in sampling methodology. See AR 5001. Even the 

Director of NMFS’s Southeast Fisheries Science Center, who originally deemed the 2013 

MRIP estimates “non-comparable,” still recognized the uncertainty concerning what was 

actually caught in June 2013 and recommended that such uncertainty “should be factored 

into decisions about season length for the fall season.” AR 5003. NMFS nevertheless 

reopened the season, as if there remained any possibility that the recreational sector had 

actually landed only 4.145 million pounds of red snapper. This is a quintessential 

example of ignoring “superior or contrary data.” N.C. Fisheries Ass’n, 518 F. Supp. 2d at 

85.

18

 17 The Court questions whether landings representing a 48 percent overage can fairly be characterized as 

“unexpectedly high” in light of the similar overages in recent years.

18 NMFS did revise its estimate of fall catch rates upward from 50 percent to 75 percent of summer catch 

rates, but as the agency acknowledged, this was primarily in response to public comment from fishermen 

evincing enthusiastic plans to fish again in the fall. See AR 5011-12. The agency’s cryptic reference to 

“questions about the new data,” AR 5012, hardly constitutes a “thorough review” of the available 

information. See Ctr. for Biological Diversity, 933 F. Supp. 2d at 148. National Standard 2 would 
41

Center for Biological Diversity offers an illustrative counterpoint to NMFS’s 

actions in this case. In Center for Biological Diversity, the plaintiff claimed that NMFS 

violated National Standard 2 by failing to consider an alternative model for estimating 

fish population. 933 F. Supp. 2d at 148. Noting that the alternative model “was not even 

finalized at the time,” the court described the plaintiff’s argument as “border[ing] on the 

frivolous,” but the court also asserted that “even if the full results of the...model had been 

available at the time, it is well established that NMFS ‘may choose’ between ‘conflicting 

facts and opinions,’ so long as it ‘justif[ies] the choice.’” Id. at 149 (quoting Fishermen's 

Finest, Inc. v. Locke, 593 F.3d 886, 890 (9th Cir. 2010). The court cautioned that “the 

Secretary can act when the available science is incomplete or imperfect, even where 

concerns have been raised about the accuracy of the methods or models employed.” Id. at 

150 (internal quotation omitted). For these reasons, the Court upheld NFMS’s actions as 

within the bounds of the agency’s discretion, and not violative of National Standard 2. 

Id.

In this case, the landings estimate was complete, i.e. “available” to NMFS before 

the agency decided to designate something else as the “best scientific information 

available.” See AR 5011. This was not a matter of selecting between competitive 

statistical models. NMFS disregarded the actual landings estimate in favor of a 

projection that the agency knew (with near certainty) was inaccurate. That is a far cry 

from the agency’s actions in Center for Biological Diversity, or other cases in which 

NMFS rules withstood challenges under National Standard 2. See, e.g., Flaherty, 850 F. 

 

logically require the agency to consider (1) the conflict between the estimate the agency proposed to adopt, 

4.145 million pounds, and the actual estimated landings of 6.13 million pounds, and (2) the possibility that, 

in light of the 2 million pound overage, the model used to calculate the summer catch rate (from which the 

agency proposed to derive the fall catch rate) might itself contain flawed assumptions about fishing effort.
42

Supp. 2d at 61-62 (upholding selection of a three-year annual average figure to estimate 

recent catch, where plaintiffs identified no “superior or contrary data” and the regional 

council gave four rationales, including fishing industry custom, an anomaly in the most 

recent single year, and creation of a buffer); The Ocean Conservancy v. Gutierrez, 394 F. 

Supp. 2d 147, 158 (D.D.C. 2005) aff'd sub nom. Oceana, Inc. v. Gutierrez, 488 F.3d 1020 

(D.C. Cir. 2007) (upholding NMFS’s decision to consider “not only its own data, but also 

other studies, expert opinions, and considerations raised by the public at large”); Van 

Valin v. Locke, 671 F. Supp. 2d 1, 13 (D.D.C. 2009) (upholding NMFS’s decision to 

disregard recent participation data in setting a bag limit, where incorporating the data 

would allow certain fishermen to profit from the overfishing that the regulation was 

intended to combat).

Of course NMFS may decline to use information it deems inconclusive or 

irrelevant.19 NMFS may also designate its own projections as the best available scientific 

information, where circumstances warrant.20 This case, the Court trusts, is a rare instance 

of an agency disregarding accurate and reliable data to avoid penalizing recreational 

fishermen. National Standard 2 requires at minimum that reliable data be treated as such. 

3. NMFS Failed to Require Adequate Accountability Measures, 

in violation of Section 303(a)(15)

Section 303(a)(15) provides that every FMP must “establish a mechanism for 

specifying annual catch limits in...implementing regulations...at a level such that 

 19 As the cases establish, NMFS may also choose to rely on incomplete or imperfect information. See N.C. 

Fisheries Ass’n, 518 F. Supp. 2d at 85 (“It is well settled—and both applicable regulations and consistent 

case law confirm—that the Secretary can act when the available science is incomplete or imperfect, even 

where concerns have been raised about the accuracy of the methods or models employed.”); Center for 

Biological Diversity, 993 F. Supp. 2d at 150 (same). 20 For example, if some factor corrupted landings estimates in such a way that they became useless, or if an 

unusual event (such as the oil spill) skewed the data irretrievably, the agency’s projections – adjusted as 

necessary – might offer the best estimate of landings during that time. 
43

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

16 U.S.C. § 1853(a)(15). Plaintiffs argue that NMFS’s failure to require any 

accountability measures violated Section 303(a)(15). Pls’ Mot. at 22. NMFS insists that 

the agency already uses the accountability measure of in-season closure, and only the 

Council can approve post-season accountability measures. Defs’ Mot. at 34.21

At the outset, the Court recognizes that Section 303(a)(15) is phrased in terms of 

what an FMP must contain, namely, “measures to ensure accountability,” not in terms of 

what every regulation or proposed regulation must contain. See 16 U.S.C. § 1853(a)(15). 

This gives NMFS’s argument some surface appeal, in that the responsibility to revise the 

FMP lies primarily with the Council. However, if the FMP does not contain adequate 

AMs, either because of an error in judgment at the outset or because changing 

circumstances require additional AMs, NMFS is not left helpless, with hands tied, hoping 

that the Council will eventually correct the omission. The statute and the agency’s own 

guidelines make abundantly clear that AMs can and should be used to address 

management uncertainty. NMFS must disapprove and return for revision any Council 

proposal that does not contain adequate AMs. The agency cannot excuse its obligation 

by arguing that only the Council can authorize an AM. If the Council fails to propose a 

necessary AM, or, as in this case, explicitly rejects an AM over the recommendation of 

its SSC, NMFS must fulfill its statutory responsibility as a backstop. 

 21 NMFS also argues that Plaintiffs’ challenge under Section 303(a)(15) is time-barred, Defs’ Mot. at 26, 

because the most recent FMP amendment occurred in 2010 and plaintiffs must bring suit within 30 days. 

See 16 U.S.C. § 1855(f)(1). Plaintiffs respond, correctly, that they timely filed a challenge to three NMFS 

rules published in 2013, and that their Section 303(a)(15) claim alleges that NMFS failed to perform its 

statutory duty when it approved those three rules without requiring adequate AMs. Pls’ Mot. at 9. Whether 

NMFS has such a statutory duty is a separate question, but Plaintiffs’ challenge is directed at the agency’s 

2013 rules, not at the 2010 FMP Amendment. As such, Plaintiffs’ claim is timely.
44

The question then becomes whether some additional AM was necessary in this 

case. As the court recognized in Oceana, Inc. v. Locke, “[t]he MSA does not elaborate 

on what constitutes ‘measures to ensure accountability’ with ACLs under § [303(a)(15)].” 

831 F. Supp. 2d 95, 116 (D.D.C. 2011). However, the guidelines issued by the Secretary, 

codified at 50 C.F.R. § 600.310, help flesh out the concept of accountability measures. 

Those guidelines are entitled to deference. See Oceana, Inc. v. Locke, 831 F. Supp. 2d at

116 (citing Natural Resources Def. Council, Inc. v. Daley, 209 F.3d 747, 752–53 (D.C.

Cir. 2000) (“Courts must defer to an agency's reasonable interpretation of ambiguous 

provisions in a statute it administers...in accordance with the analytical framework 

established by the Supreme Court in Chevron”).

The Court in Oceana v. Locke correctly concluded that NMFS guidelines 

interpreting the MSA are not entitled to automatic Chevron deference, because “they do 

not carry the force of law.” Id.; see also 16 U.S.C. § 1851 (“The Secretary shall establish 

advisory guidelines (which shall not have the force and effect of law)”). However, the 

guidelines are entitled to “considerable deference” in light of their thoroughness, the 

agency’s expertise, and the administrative formalities involved in their promulgation. 

See Oceana v. Locke, 831 F. Supp. 2d at 117; United States v. Mead Corp., 533 U.S. 218, 

228 (2001) (assessing “the degree of the agency's care, its consistency, formality, and 

relative expertness, and...the persuasiveness of the agency's position”).

According to the NMFS guidelines, accountability measures “should address and 

minimize both the frequency and magnitude of overages and correct the problems that 

caused the overage in as short a time as possible.” 50 C.F.R. § 600.310(g)(1). Where 

overages occur, “AMs must be triggered and implemented as soon as possible to correct 
45

the operational issue that caused the ACL overage, as well as any biological 

consequences to the stock or stock complex resulting from the overage when it is 

known.” Id. § 600.310(g)(3). Finally, “if the management measures for different sectors 

differ in the degree of management uncertainty, then sector ACLs may be necessary so 

that appropriate AMs can be developed for each sector.” Id. § 600.310(f)(5)(ii).

Oceana v. Locke offers a pertinent example of the standard that NMFS must meet

under Section 303(a)(15). The plaintiff in that case claimed that NMFS had failed to 

implement adequate accountability measures for five species in a fishery. 831 F. Supp. 

2d at 114. NMFS had allocated all the catch for those five species to so-called “commonpool” vessels, with no catch allocated to vessels that fished under a permit. Id. at 115. 

Though there were accountability measures for the common-pool segment, there were no 

accountability measures for the permitted vessels. Id. NMFS argued that because 

permitted vessels were prohibited from harvesting any of those five species, specific 

accountability measures were unnecessary. Id. The plaintiffs responded that bycatch (the 

catching of fish not targeted by the fisherman) would still occur, and could in fact cause 

an overage, thus requiring specific accountability measures for permitted vessels. Id. at 

115-16. 

The court in Oceana v. Locke concluded that the guidelines “clearly favor” 

establishment of sector-specific AMs whenever there are sector-specific ACLs. Id. at 

117. But specific AMs were not mandatory so long as NMFS implemented sufficient 

overall AMs to prevent overfishing. Id. (citing 50 C.F.R. § 600.310(f)(5)(ii)). The

overall AMs in place in that fishery were not sufficient to protect those five species. Id.

at 118. Even prohibiting the retention of the five species was not enough, because 
46

without specific AMs the permitted vessels could catch the five species as bycatch “with 

impunity, and in doing so, cause their continued overfishing.” Id. at 120. The court 

reached its conclusion while recognizing that under normal circumstances deference to 

NMFS is “especially appropriate” in highly technical decisions. Id. (quoting Nat'l 

Fisheries Inst., Inc. v. Mosbacher, 732 F. Supp. 210, 223 (D.D.C. 1990)). But in that 

case, NMFS had failed to “articulate a rational connection between the facts found and 

the choice made.” Id. (quoting Baltimore Gas and Elec. Co. v. Natural Res. Def. 

Council, Inc., 462 U.S. 87, 105 (1983). 

If anything, the instant case presents an even more striking disconnect between the 

agency’s decision and the facts before it. The administrative record is replete with 

references to the high degree of management uncertainty in the recreational sector, as 

compared to the commercial sector, which had none. See AR 4349 (“the recreational 

quota has regularly been exceeded”); AR 4384 (“A buffer for the commercial sector is 

not believed to be necessary because the commercial sector has not exceeded its quota 

since implementation of the IFQ program in 2007...the purpose of the recreational buffer 

is to address management uncertainty and reduce the likelihood that the recreational 

sector would exceed its quota”); AR 4724 (“Considerable uncertainty exists in projecting 

season estimates given variability in average weights, catch per day, and implementation 

of incompatible state regulations”).

NMFS administrator Roy Crabtree described the recreational sector’s particular 

management uncertainties to the Council’s Reef Fish Management Committee in January 

2013, and to the full Council in June 2013. See AR 2542 (“If you look at the 

performance of the fishery in the past, we have, more often than not, had overages in the 
47

range of a million pounds...We still have a lot of management uncertainty in this fishery 

in terms of our ability to close the fisheries on time in the recreational sector”); AR 3930 

(“There’s been a great deal of management uncertainty and that’s reflected in the quota 

overruns to the recreational sector...We all know there’s a great deal of uncertainty

inherent in determining when to close the recreational fishery and what they’re ultimately 

going to catch...There is a need for a buffer that reflects management uncertainty, 

because there is certainly management uncertainty in the recreational fishery”).

All this evidence of high management uncertainty explains why the SSC 

recommended a 20 percent buffer for the recreational sector. AR 4778. The Council 

well understood this. In the July Framework Action, the Council discussed the SSC’s 

buffer recommendation as one possible alternative, explaining that buffers “would be 

applied separately to the recreational and commercial sectors because there is a different 

level of management uncertainty between the sectors.” AR 4784. Specifically, the 

commercial buffer would be 0 percent “because the sector is under an IFQ program, has 

accurate landings data, and has not exceeded its quota in the last four years,” but the 

recreational buffer would be 20 percent “primarily because of the quota overages in three 

of the past four years.” Id.

Yet the Council rejected the buffer, while proposing no other accountability measures

for the recreational sector, and NMFS approved the Council’s proposal.22 The agency

did so though it evidently comprehended the degree of management uncertainty in the 

 22 The Council did explain that its decision to set the quota at 11 million, rather than 13.5 million, would act 

as a “de facto buffer” against recreational overages. AR 4785. Perhaps this could be construed as an 

accountability measure, but it was not a sector-specific accountability measure. The guidelines “clearly 

favor” sector-specific AMs, Oceana v. Locke, 831 F. Supp. 2d at 117, because as this case demonstrates,

imposing a restriction on an entire fishery to accommodate management uncertainty in one sector may 

penalize fishermen in another.
48

recreational sector, or at least recognized the “known unknowns” associated with 

managing that sector.23 As the court explained in Oceana v. Locke, NMFS’s guidelines 

“clearly favor” the establishment of sector-specific accountability measures where 

management uncertainty differs between sectors. 831 F. Supp. 2d at 117; see also 50 

C.F.R. § 600.310(f)(5)(ii) (explaining that sector-specific ACLs allow development of 

“appropriate AMs...for each sector”). The single accountability measure included in the 

FMP, in-season closure, has done very little to prevent quota overages. Given 

management uncertainties, the agency’s approval of a 28-day season, and the decision to 

reopen the season in the fall, with no additional AMs, effectively allowed the recreational 

sector to overharvest red snapper “with impunity.” Id. at 120. Such a dogged belief that

somehow 2013 would be different than previous years defies logic. The Court 

acknowledges the deference customarily owed when an agency utilizes its scientific 

expertise, but in this instance NMFS has not “articulate[d] a rational connection between 

the facts found and the choice made.” Baltimore Gas and Elec. Co., 462 U.S. at 105.

This Court will not dictate precisely which accountability measures NMFS should 

have required, or should require in the future. That decision is best left to the expertise 

and discretion of the agency tasked with carrying out the statute. NMFS need not 

implement so many accountability measures that overharvesting and overfishing become 

utterly beyond possibility. That reads too much into the MSA. However, Section 

303(a)(15) would lose all teeth and coherence if NMFS, faced with persistent overages 

and high management uncertainty, could claim compliance by simply identifying any 

control that technically qualifies as an “accountability measure.” In this case, it is 

 23 See Citizens for Responsibility & Ethics in Washington v. Dep't of Educ., 538 F. Supp. 2d 24, 30 (D.D.C. 

2008) (describing “known unknowns”); Republic of Iraq v. Beaty, 556 U.S. 848, 860 (2009).
49

apparent from the record that the existing scheme does not “ensure accountability” within 

the meaning of Section 303(a)(15).

4. NMFS Has Effectively Reallocated Catch from Commercial to 

Recreational Sector, in violation of Section 304(b) and National 

Standard 4

Section 304(b) of the MSA requires consistency between the FMP and 

implementing regulations. See 16 U.S.C. § 1854(b). Plaintiffs argue that NMFS violated 

Section 304(b) by creating a “de facto reallocation” of quota from the commercial to the 

recreational sector, such that the actual allocation of quota did not reflect the 51/49 split 

established in the FMP. See Pls’ Mot. at 30. NMFS contests Plaintiffs’ statement that the 

agency has accomplished a “de facto reallocation,” emphasizing the agency’s shortening

of the fishing season in recent years. Defs’ Mot. at 37.

NMFS seems to argue that as long as the 51/49 split remained on paper, and the 

agency did something to carry it out, there could not be a “de facto reallocation.” The 

Court views this contention with some skepticism. But even accepting NMFS’s view, the 

agency’s decision to reopen the fall season despite reliable evidence that the sector had 

already exceeded its quota overtly contravened the terms of the FMP. NMFS essentially 

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

as indeed it did. This violated Section 304(b).

Plaintiffs also claim that the “de facto reallocation” runs afoul of National 

Standard 4, which provides that allocation of fishing privileges must be fair and equitable 

to all fishermen, and reasonably calculated to promote conservation. See 16 U.S.C. § 

1851(a)(4). NMFS maintains that rules can have a disparate effect on fishing sectors 

while remaining “fair and equitable” within the meaning of the statute. Def’s Mot. at 3. 
50

The Court need not investigate NMFS’s interpretation of the “fair and equitable” 

provision, because the agency’s actions ran counter to the second prong of National 

Standard 4. When an agency blinds itself to the high likelihood that its actions will cause 

overharvesting, the Court cannot characterize those actions as “reasonably calculated to 

promote conservation.” 16 U.S.C. § 1851(a)(4). For that reason, the September Rule, at 

least, violates National Standard 4. 

C. Plaintiffs’ NEPA Claim

Plaintiffs seek no relief under NEPA that differs in any way from the relief sought 

under the MSA. See Compl. at 34. In light of the Court’s decision to vacate the May, 

June, and September Final Rules, the Court need not decide Plaintiffs’ NEPA claims at

this time. See Natural Res. Def. Council, Inc., 209 F.3d at 749 (finding “no need to reach 

appellants' NEPA claims” where court remanded a rule to NMFS).

IV. CONCLUSION

For the reasons given above, the Court finds that the May Final Rule, June Temporary

Rule, and September Final Rule were arbitrary and capricious and not in accordance with 

the MSA. Under the MSA, NMFS has a statutory duty to: prohibit the retention of fish 

after quotas are reached in the Gulf of Mexico red snapper fishery; use the best scientific 

information available when making management decisions; require whatever 

accountability measures are necessary to constrain catch to the quota; avoid decisions that 

directly conflict with the FMP’s allocation of catch; and, where sectors are managed 

separately, avoid penalizing one sector for overages that occur only in another.

March 26, 2014
51

BARBARA J. ROTHSTEIN

UNITED STATES DISTRICT JUDGE