IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-30137

COASTAL CONSERVATION ASSOCIATION; CHARLES A. CAPLINGER, 

IV; ADAM GUILLORY; GEORGE A. HUYE, 

 Plaintiffs - Appellants 

v. 

UNITED STATES DEPARTMENT OF COMMERCE, Penny S. Pritzker, 

Secretary; NATIONAL OCEANIC AND ATMOSPHERIC 

ADMINISTRATION, Eileen Sobeck, Assistant Administrator; NATIONAL 

MARINE FISHERIES SERVICE, Eileen Sobeck, Assistant Administrator, 

 Defendants - Appellees 

v. 

CHARTER FISHERMAN'S ASSOCIATION, 

 Intervenor - Appellee 

Appeal from the United States District Court 

for the Eastern District of Louisiana 

Before STEWART, Chief Judge, SMITH and DENNIS, Circuit Judges. 

DENNIS, Circuit Judge:

Several private anglers and the Coastal Conservation Association, a 

group representing private anglers (collectively, CCA), appeal the district 

court’s summary judgment dismissal of their lawsuit, which challenged

United States Court of Appeals

Fifth Circuit

FILED

January 17, 2017

Lyle W. Cayce

Clerk

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2 

Amendment 40 to the Reef Fish Fishery Management Plan and the Final Rule

implementing that amendment. Because we find that Amendment 40 is 

consistent with its organic statute and was properly devised and implemented, 

we AFFIRM the judgment of the district court. 

I 

This dispute centers on the management of the red snapper fishery in 

the Gulf of Mexico. This fishery is regulated pursuant to the MagnusonStevens Act, 16 U.S.C. § 1801 et seq. (the MSA or the Act). The MSA was 

passed by Congress in 1976 in order to “take immediate action to conserve and 

manage the fishery resources found off the coasts of the United States” and 

“promote domestic commercial and recreational fishing under sound 

conservation and management principles.” Id. at § 1801(b)(1), (3). To 

accomplish these goals, the MSA established eight Regional Fishery

Management Councils, each tasked with preparing fishery management plans 

(FMPs) to address conservation and management of fisheries under their 

control. The Councils are empowered to draft FMPs that are “necessary and 

appropriate for the conservation and management of the fishery, to prevent 

overfishing and rebuild overfished stocks, and to protect, restore, and promote 

the long-term health and stability of the fishery.” Id. at § 1853(a)(1)(A). 

The Gulf Council is one such regional council, with authority to manage 

fisheries in the federal waters of the Gulf of Mexico off the coasts of Texas, 

Louisiana, Mississippi, Alabama, and Florida. The Act requires the Councils 

to form their fishery management plans through a process of notice-andcomment rulemaking. FMPs are proposed by the Regional Councils, with final 

regulations promulgated by the Secretary of Commerce through the National 

Marine Fishery Service (NMFS). Once the Secretary, through the NMFS, 

reviews the plans and publishes the final regulations in the Federal Register, 

they have the full force of law. Id. at § 1854. 

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Every FMP must be consistent with ten National Standards, codified at 

16 U.S.C. § 1851(a). Two of these standards are relevant to the instant 

litigation: 

(2) Conservation and management measures shall be based

upon the best scientific information available. 

(8) Conservation and management measures shall, consistent 

with the conservation requirements of this chapter (including 

the prevention of overfishing and rebuilding of overfished 

stocks), take into account the importance of fishery resources to 

fishing communities by utilizing economic and social data that 

meet the requirements of paragraph (2), in order to (A) provide 

for the sustained participation of such communities, and (B) to 

the extent practicable, minimize adverse economic impacts on 

such communities. 

Id. at § 1851(a). 

In addition to the National Standards, the management of Gulf of Mexico 

red snapper is addressed specifically in Section 407 of the Act. Section 407, 

which was added to the Act in 1996, requires that any FMP for the red snapper 

fishery adopted by the Gulf Council must “establish separate quotas for 

recreational fishing (which, for the purposes of this subsection shall include 

charter fishing [i.e., fishing from chartered vessels]) 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.” Id. at § 1883(d)(1).

Red snapper stock is managed under the Reef Fish FMP, first 

implemented by the Secretary in 1984. In 1990, in response to observed 

declines in the adult population of red snapper, the Council implemented 

Amendment 1 to the Reef Fish FMP with the goal of rebuilding the adult red 

snapper population by 2000.1 The Gulf Council manages the recreational 

 

1 This target date was ultimately extended to 2032. Coastal Conservation Ass’n v. 

Gutierrez, 512 F. Supp. 2d 896, 899 (S.D. Tex. 2007). 

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sector using several imprecise measures, including length of season. Guindon 

v. Pritzker, 31 F. Supp. 3d 169, 178 (D.D.C. 2014). The recreational sector

exceeded its quota in every year from 1991-2005, from 2007-2009, and from 

2011-2013.2 The Gulf Council has largely responded to these violations by 

shortening the fishing season. 79 Fed. Reg. 27,768, 27,768-69 (May 15, 2014)

(Emergency Rule To Revise the Recreational Accountability Measures and 

Revise the 2014 Recreational Fishing Season for Red Snapper in the Gulf of 

Mexico). The season in 2014 was only nine days long. Id. at 27,770.

NMFS is responsible for ensuring that the entire recreational Gulf 

harvest does not exceed the recreational quota, taking into account harvest in

both federal and state waters. See 50 C.F.R. § 622.8(a). While the Gulf Council 

has shortened the fishing season in federal waters, the Gulf states have 

responded by loosening restrictions in state waters: in 2014, while the season 

in federal waters was nine days long, Mississippi and Alabama waters were 

open for 21 days, Florida for 52 days, Louisiana for 286 days, and Texas for 365 

days. Only private anglers with boats can take advantage of the state seasons; 

federal regulations require federally permitted charter boats to comply with 

the federal regulations, which “are more restrictive than state regulations . . .

regardless of where the fish are harvested.” 50 C.F.R. § 622.20(a)(1). And 

while there has been a moratorium on the issuance of new charter vessel 

permits for Gulf reef fish since 2003, “there is no limit to the number of anglers 

fishing from private recreational vessels that target reef fish species.” 80 Fed. 

Reg. 3541, 3,542 (January 23, 2015) (Notice of Proposed Amendment 40). 

In 2013, the Gulf Council and NMFS proposed Amendment 40 as a 

means to address problems that had arisen with the red snapper fishery. In 

 

2 The Charter Fisherman’s Association notes in its brief that “2006 and 2010 were 

unusual years, because 2006 followed Hurricanes Katrina and Rita and 2010 was the year of 

the Deepwater Horizon oil spill.” 

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the notice of proposed rulemaking, the Secretary explained, “Establishing 

separate components [for charter and private anglers] is . . . intended to 

provide a basis for flexible management that can be tailored to the needs of 

each component, thereby reducing the likelihood for recreational quota 

overruns which could negatively impact the rebuilding of the red snapper 

stock.” Id. The Secretary also described how the privileged position of private 

anglers—in particular, the access to state waters during state seasons and the 

lack of a limit on private vessels targeting red snapper—had adversely affected 

the charter industry, explaining that “[b]y establishing separate sectors, 

NMFS intends to stabilize the Federal for-hire component’s participation in 

the sector.” Id. 

The Final Rule, issued in 2015, contains measures to establish two 

components within the recreational sector for Gulf of Mexico red snapper: a 

federal charter component and a private angling component. 80 Fed. Reg. 

22,422 (April 22, 2015) (Final Rule Implementing Amendment 40). The Final 

Rule allocates the red snapper recreational quota between these two 

components and establishes separate red snapper season closure provisions for 

the two components. Id. Each component’s season will begin on June 1 and 

the season length will be projected from each component’s annual catch target. 

Id. at 22,423. The separate component quotas and associated management 

measures are only effective for the 2015, 2016, and 2017 fishing years, after 

which they sunset unless the Gulf Council takes further action. Id. The Final 

Rule reiterated NMFS’s finding that Amendment 40 will provide a basis for 

increased flexibility in future management of the recreational sector, and 

reduce the likelihood of recreational quota overruns, which could negatively 

impact the rebuilding of the red snapper stock. Id. at 22,422.

The CCA filed this action against the Secretary of Commerce, the 

Director of NOAA, and the Director of NMFS (collectively, the Secretary) 

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challenging Amendment 40 and the Final Rule in late April, 2015. The Charter 

Fisherman’s Association (the CFA), which represents charter fishing 

businesses, intervened as a defendant. The parties filed cross-motions for 

summary judgment; on January 5, 2016, the district court granted the 

defendants’ and intervenor-defendants’ motions. This appeal followed. 

II 

We review a grant of summary judgment de novo, applying the same 

standard as the district court. Louisiana Crawfish Producers Ass’n-W. v. 

Rowan, 463 F.3d 352, 355 (5th Cir. 2006). On appeal, the CCA argues that: (1) 

the MSA prohibits the Gulf Council from regulating charter fishing separately

from other recreational fishermen; (2) the Gulf Council and the NMFS failed 

to adequately “assess, specify, and analyze” the likely economic and social 

effects of Amendment 40; and (3) the selection of data ranges used to calculate 

quota allocations was arbitrary and capricious. We address each argument in 

turn. 

A. Subquotas within the Recreational Sector 

In reviewing an agency’s construction of a statute that it is tasked with 

administering, this court follows the two-step framework set out by the 

Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 

Inc., 467 U.S. 837 (1984). “First, always, is the question whether Congress has 

directly spoken to the precise question at issue. If the intent of Congress is 

clear, that is the end of the matter; for the court, as well as the agency, must 

give effect to the unambiguously expressed intent of Congress.” Id. at 842-43. 

However, “if the statute is silent or ambiguous with respect to the specific

issue, the question for the court is whether the agency’s answer is based on a 

permissible construction of the statute.” Id. at 843. The agency’s view “governs 

if it is a reasonable interpretation of the statute—not necessarily the only 

possible interpretation, nor even the interpretation deemed most reasonable 

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by the courts.” Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 (2009) 

(emphasis in original). 

The CCA argues that Amendment 40’s establishment of two components 

within the recreational sector for Gulf of Mexico red snapper—a federal charter 

component and private angling component—conflicts with the unambiguously 

expressed intent of Congress in adopting Section 407. Specifically, the CCA 

argues that “[t]he words of 16 U.S.C. § 1883(d) on their face prohibit a separate 

charter fishing quota,” and that “[t]he plain meaning of 16 U.S.C. § 1883(d) is 

also shown by two canons of statutory interpretation.” We find neither of these 

arguments persuasive. 

As to the former, the CCA begins from a false premise: Amendment 40 

does not in fact create a “separate” charter fishing quota. Rather, it creates a 

sub-quota for charter fishing within the recreational sector. See 80 Fed. Reg. 

22,422, 22,422 (“This final rule contains measures to establish two components 

within the recreational sector for Gulf of Mexico . . . red snapper (a Federal 

charter vessel/headboat (for-hire) component and private angling component).” 

(emphasis added)). This is not a mere semantic distinction: Amendment 40 

requires that all recreational landing—whether by private or charter anglers—

cease when the total sector quota of 5.390 million pounds is reached. See 80 

Fed. Reg. 22,422, 22,430. There is no language within Section 407 that 

prohibits the subdivision of the recreational or commercial fishing quotas. See

16 U.S.C. § 1883(d)(1). 

The CCA’s argument that two canons of statutory interpretation 

demonstrate that Section 407 prohibits the establishment of sub-quotas is 

equally unconvincing. First, the CCA argues that the canon of expressio unius 

est exclusio alterius militates in favor of its position. This canon holds that 

“expressing one item of a commonly associated group or series excludes 

another left unmentioned.” United States v. Vonn, 535 U.S. 55, 65 (2002). The 

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CCA argues that this canon supports its argument because “Congress’ 

mandate in 16 U.S.C. § 1883(d) for two quotas prohibits NMFS from creating 

a third quota,” and “Congress’ mandate that the recreational fishing quota 

‘shall include charter fishing’ implies exclusion of authority to create a 

separate charter fishing quota.” However, as previously discussed, 

Amendment 40 does not create a separate quota for charter fishing; the subquotas for private and charter anglers are included within the recreational 

fishing quota. 80 Fed. Reg. 22,422, 22,430. And the exclusio unius canon 

cannot be used to read Section 407 as prohibiting the creation of sub-quotas. 

As the Supreme Court has explained, the canon does not apply “unless it is fair 

to suppose that Congress considered the unnamed possibility and meant to say 

no to it.” Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1175 (2013) (quoting 

Barnhart v. Peabody Coal Co., 537 U.S. 149, 169 (2003)). Nothing in the text 

or the legislative history of Section 407 suggests that it would be fair to suppose 

that Congress considered the possibility that the Gulf Council would opt to 

subdivide the recreational sector and meant to prohibit it from doing so. See 

16 U.S.C. § 1883(d)(1); S. Rep. No. 104-276, 104th Cong., 2nd Sess. (May 23, 

1996).

The CCA next argues that the canon that a specific statute prevails over 

an inconsistent general statute supports its position. “The general/specific 

canon is perhaps most frequently applied to statutes in which a general 

permission or prohibition is contradicted by a specific prohibition or 

permission. To eliminate the contradiction, the specific provision is construed 

as an exception to the general one.” RadLAX Gateway Hotel, LLC v. 

Amalgamated Bank, 132 S. Ct. 2065, 2071 (2012). The CCA argues that, 

because the specific language of Section 407 “conflicts” with the general 

authorization in 16 U.S.C. § 1853(b)(3)(A) for NMFS to establish regulatory 

quotas for fishery sectors, the later-enacted, specific language should apply. 

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However, we perceive no conflict between the two provisions. In promulgating 

Amendment 40, the Secretary heeded Section 407’s instruction and 

“establish[ed] separate quotas for recreational fishing (which, for the purposes 

of this subsection shall include charter fishing) and commercial fishing.” 16 

U.S.C. § 1883(d)(1). The fact that charter fishing is included within the 

recreational fishing sector as one of two distinct components is immaterial. 

The CCA does not challenge the district court’s finding that, viewing 

Section 407 as ambiguous on the issue of sub-quotas, the interpretation of 

Section 407(d) to allow sub-quotas is permissible under step two of Chevron. 

Nor does the CCA challenge the district court’s finding that the Secretary had 

a “rational basis for [its] decision to subdivide the recreational quota.” Those 

challenges are therefore forfeited. See Cinel v. Connick, 15 F.3d 1338, 1345 

(5th Cir. 1994) (“An appellant abandons all issues not raised and argued in its

initial brief on appeal.”). 

Amendment 40 does not create a separate quota for charter fishing; it 

subdivides the recreational sector into private and charter components. The 

directive to “establish separate quotas for recreational fishing (which, for the

purposes of this subsection shall include charter fishing) and commercial 

fishing” does not unambiguously prohibit the Secretary from creating subquotas within the recreational sector. Even assuming, arguendo, that a 

prohibition on sub-quotas is a reasonable interpretation of the section, it could 

not be said that “Congress has directly spoken to the precise question at issue.” 

Chevron, 467 U.S. at 842. Because Section 407 does not clearly prohibit the 

creation of sub-quotas, we affirm the district court’s grant of summary 

judgment to the Secretary on this issue. 

B. Economic and Social Impact Analysis 

In reviewing an FMP or an amendment to an FMP, this court’s task “is 

not to review de novo whether the amendment complies with [the ten National 

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Standards] but to determine whether the Secretary’s conclusion that the 

standards have been satisfied is rational and supported by the record.” C & W 

Fish Co. v. Fox, 931 F.2d 1556, 1562 (D.C. Cir. 1991); see also Alaska Factory 

Trawler Ass’n v. Baldridge, 831 F.2d 1456, 1460 (9th Cir. 1987); Maine v. 

Kreps, 563 F.2d 1043, 1050-51 (1st Cir. 1977). However, when a challenge to 

an FMP is based on the Secretary’s interpretation of the MSA, we apply the 

Chevron analysis. 467 U.S. at 843. The CCA argues that the Secretary failed

to perform her duties under National Standards 8 and 2 to use the best 

available economic and social data to minimize adverse economic impacts of 

Amendment 40 and under 16 U.S.C. § 1853(a)(9) to assess, specify, and analyze 

the economic and social impacts of Amendment 40 and to include these 

findings in a Fishery Impact Statement (FIS). 

No federal appellate court has yet interpreted the requirements of 

§ 1853(a)(9). However, the two district courts that have considered challenges 

brought under § 1853(a)(9) agree that “[t]he FIS requirement is . . . procedural, 

not substantive,” and that it is satisfied where NMFS produces the required 

assessments, without respect to their conclusions. City of New Bedford v. 

Locke, No. CIV.A. 10-10789-RWZ, 2011 WL 2636863, at *6 (D. Mass. June 30, 

2011), aff’d sub nom. Lovgren v. Locke, 701 F.3d 5 (1st Cir. 2012); accord

Coastal Conservation Ass’n v. Blank, No. 2:09-CV-641-FTM-29, 2011 WL 

4530544, at *7 (M.D. Fla. Sept. 29, 2011) (“The issue before the Court in the 

Section 1853(a)(9) challenge . . . is not whether the conclusions on how [the 

proposed FMP amendment] will likely affect the recreational fishing sector are 

correct. Rather, the issue is whether the [NMFS] arrived at the answer only 

after complying with the obligation to assess, specificy, and analyze how [the 

amendment] would likely affect the recreational fishing sector.”). We agree 

with this interpretation of § 1853(a)(9). 

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National Standard 8 requires the NMFS to “take into account the 

importance of fishery resources to fishing communities by utilizing economic 

and social data.” 16 U.S.C. § 1851(a)(8). The First Circuit has noted that “the 

required analysis of alternatives and impacts is subject to a rule of reason, for 

study could go on forever.” Little Bay Lobster Co. v. Evans, 352 F.3d 462, 470 

(1st Cir. 2003). “About the best a court can do is to ask whether the Secretary 

has examined the impacts of, and alternatives to, the plan [s]he ultimately 

adopts and whether a challenged failure to carry the analysis further is clearly 

unreasonable, taking account of the usual considerations (e.g., whether 

information is available and whether the further analysis is likely to be 

determinative).” Id. In addition, the First Circuit has observed that “[t]he 

plain language of [National Standard] 8 and its advisory guidelines make clear 

that these obligations are subordinate to the MSA’s overarching conservation 

goals.” Lovgren, 701 F.3d at 35. Indeed, the guidelines specifically state, 

“Deliberations regarding the importance of fishery resources to affected fishing 

communities . . . must not compromise the achievement of conservation 

requirements and goals of the FMP.” 50 C.F.R. § 600.345(b)(1).

National Standard 2 states that “conservation and management 

measures shall be based upon the best scientific information available.” 16 

U.S.C. § 1851(a)(2). According to the advisory guidelines, “best scientific 

information” under National Standard 2 “includes, but is not limited to, 

information of a biological, ecological, economic, or social nature.” 50 C.F.R. 

§ 600.315(b)(1). However, “[t]he fact that scientific information concerning a 

fishery is incomplete does not prevent the preparation and implementation of 

an FMP.” Id. at § 600.315(e)(2). Our sister circuits have given great latitude 

to the Secretary in determining what is the best information available. See 

Gen. Category Scallop Fishermen v. Sec’y, U.S. Dep’t of Commerce, 635 F.3d 

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106, 115 (3d Cir. 2011); Washington Crab Producers, Inc. v. Mosbacher, 924 

F.2d 1438, 1448-1449 (9th Cir. 1990). 

The CCA first asserts that 16 U.S.C. § 1853(a)(9) and National Standard 

8 impose an affirmative duty to collect and generate only quantitative, rather 

than qualitative, predictions of economic and social effects. In support it points 

to Merriam-Webster’s definition of data as “factual information (as 

measurements or statistics)” and argues that “it is clear that Amendment 40 

and the documents supporting it did not contain a single piece of economic or 

social ‘data’” so defined. 

The CCA cites no law that supports its interpretation of § 1853(a)(9) and 

National Standard 8. It is not at all clear that Congress intended to limit the 

analysis of economic and social impacts to quantitative data, and it is evident 

that the Secretary has long interpreted “data” in National Standard 8 to mean 

both qualitative and quantitative data. The advisory guidelines are 

unambiguous on this point: “Qualitative and quantitative data may be used, 

including information provided by fishermen, dealers, processors, and fisheries 

organizations and associations.” 50 C.F.R. § 600.345(c)(2). The Secretary’s 

interpretation of “data” is reasonable. See Chevron, 467 U.S. at 843. Indeed, 

in ConocoPhillips Co. v. United States Environmental Protection Agency, 612 

F.3d 822, 841 (5th Cir. 2010), we upheld the EPA’s reliance on qualitative data 

against a similar challenge. 

The CCA next argues that the Secretary should have acquired or 

produced quantitative data. This argument is also unpersuasive. National 

Standard 2 states that “conservation and management measures shall be 

based upon the best scientific information available.” Id. at § 1851(a)(2) 

(emphasis added). The Secretary stated in the preamble to the Final Rule that 

the additional quantitative economic analysis that the CCA demanded was not 

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“available” within the meaning of National Standard 2. 80 Fed. Reg. 22,422, 

22,426. As the Secretary explained in the FIS and in her brief on appeal: 

[T]he economic impacts of Amendment 40 on private-vessel 

anglers depends on such difficult-to-predict factors as how the Gulf 

States will choose to regulate the red snapper harvest in their 

waters, as well as the decisions of private-vessel anglers regarding 

whether to fish in State waters for red snapper or in State or 

federal waters for other fish species once the red snapper quota for 

the private-vessel component is met. 

The National Standards do not require analysis of unpredictable, and 

thus unavailable, data. See Little Bay Lobster, 352 F.3d at 470. Significantly, 

the CCA does not identify any available information that the Secretary 

ignored. As several of our sister circuits have held, “[i]f no one proposed 

anything better, then what is available is the best.” Massachusetts ex rel. Div. 

of Marine Fisheries v. Daley, 170 F.3d 23, 30 (1st Cir. 1999); see also Nw. Envt’l 

Def. Ctr. v. Brennen, 958 F.2d 930, 936 (9th Cir. 1992) (rejecting a “best 

scientific information available” claim because the challenger “has not pointed 

to any scientific evidence inconsistent with the Secretary’s decision”); 

Midwater Trawlers Coop. v. Dep’t of Commerce, 393 F.3d 994, 1004 (9th Cir.

2004) (affirming regulation based on best scientific evidence available when 

“no new information” contradicted the agency’s data). 

Nor is the Secretary required to “acquire or produce” the CCA’s preferred 

quantitative data. As previously discussed, the advisory guidelines specify 

that “[t]he fact that scientific information concerning a fishery is incomplete 

does not prevent the preparation and implementation of an FMP.” 50 C.F.R. 

§ 600.315(e)(2). The Act does not unambiguously require the Secretary to 

produce quantitative data, and we view her interpretation of the statute’s 

requirements as reasonable. See Chevron, 467 U.S. at 843. It follows from this 

reasonable interpretation that the Secretary is not obligated to produce further 

data when she possesses some, albeit incomplete, scientific information. See, 

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e.g., Ecology Ctr., Inc. v. U.S. Forest Serv., 451 F.3d 1183, 1194 n.4 (10th Cir. 

2006) (citing Recreational Fishing Alliance v. Evans, 172 F.Supp.2d 35, 44 

(D.D.C. 2001)) (“An agency is not required to collect additional evidence under 

the Magnuson-Stevens Fishery Conservation and Management Act.”); 

Washington Crab Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1448-1449 (9th 

Cir. 1990) (“[t]here simply is no requirement that the Secretary do what the 

appellants insist” when it comes to developing and analyzing the effects of an 

FMP). 

Furthermore, the FIS prepared by the Gulf Council was based on 

significant background data, both quantitative and qualitative. The 

quantitative data includes, for example, a ranking of communities based upon 

the number of charter permits and charter permits divided by population; 

species-specific harvest data for headboats (boats renting individual seats to 

recreational anglers), linked to specific communities through the homeport 

identified for each vessel; a ranking of communities based on the number of 

federal for-hire permits; estimates of the number of red snapper target trips 

for shore, charter, and private/rental boat anglers; and estimates of the 

average red snapper target effort and the associated business activity. 

After considering this data, the Council gave its analysis of the 

conservation, economic, and social impacts of the Amendment and its 

alternatives. Discussing the social effects of the establishment of private and 

charter components within the recreational section, the Council concluded: 

Indirect social benefits for the private angling component would be 

expected to result from management measures accounting for 

their specific needs and characteristics, including regional 

preferences for access to fishing opportunities. For the federal forhire component, indirect social benefits would primarily result 

from mitigating the trend of decreasing access to red snapper by 

the federal for-hire component. For-hire operators, their angler 

passengers, and the communities where these vessels are 

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homeported would then be expected to benefit as a result of 

increased stability of access to red snapper. 

With respect to the economic effects of the subdivision, the Council noted that 

the change “could potentially result in a more predictable season length, better 

business planning, and improvements to the economic performance of for-hire 

businesses,” while admitting that “the establishment of separate components 

and allocations to each component would limit the private angling component 

to harvesting the proportion of the recreational red snapper quota allocated to 

them.” 

Although the Council’s analysis does not offer quantitative predictions of 

the effects that Amendment 40 might have on the fishing community, the 

Council used the best available data to reasonably “assess, specify, and 

analyze” the likely economic and social effects of Amendment 40. 16 U.S.C. 

§§ 1851(a)(2), 1851(a)(8), 1853(a)(9). We therefore conclude that the “basic 

obligation to assess the impacts of, and alternatives to, the adopted plan as a 

whole was achieved.” See Little Bay Lobster Co., 352 F.3d at 470.

C. Allocations 

Finally, the CCA argues that the Secretary’s decision to base allocations 

on the average of two sets of catch data, one covering 2006-2013 and one 

covering 1986-2013, was arbitrary and capricious. We may set aside an agency 

action only if it is “arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law.” 5 U.S.C. § 706(2)(A); Buffalo Marine Services, 

Inc., 663 F.3d at 753. “Under this highly deferential standard of review, a 

reviewing court has the least latitude in finding grounds for reversal.” 

Louisiana Crawfish Producers, 463 F.3d at 355 (quoting Sabine River Auth., 

951 F.2d at 678). When determining whether an agency action was arbitrary 

or capricious, our task “is to ensure that the agency ‘considered the relevant 

factors and articulated a rational connection between the facts found and the 

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choice made.’” Sierra Club v. U.S. Fish & Wildlife Serv., 245 F.3d 434, 444 

(5th Cir. 2001) (quoting Baltimore Gas & Elec. Co. v. Natural Resources 

Defense Council, Inc., 462 U.S. 87, 105 (1983)).

Amendment 40 established the allocation between the federal charter 

and private angling components. The Secretary determined that a fair and 

equitable allocation between the charter and private-vessel components would 

result from using both historic harvest information, spanning the period from 

1986 to 2013, as well as more recent harvest information. 80 Fed. Reg. 22,422,

22,429. The CCA argues that “[t]here is simply no rational basis for relying on 

1986 data to make a resource allocation decision for 2015-2017,” and that the 

use of catch history dating back to 1986 did not capture the “dramatic shift of 

recreational fishing away from charter boats and toward private angling,” 

which it deems the “most dominant” change in the fishery. 

Before coming to its decision, the Council considered eight alternative 

sets of harvest data, covering different spans of time. These alternatives were 

discussed at length in the FIS, as well as in the preamble to the proposed rule. 

See 80 Fed. Reg. 3,541, 3,543. The Secretary explained: 

The Council selected the alternative that combined the longest 

time period of available landings (1986-2013) with landings from 

a more recent range of years (2006-2013). Averages from each of 

the two time periods were then equally weighted to determine the 

allocation. The Council selected this allocation because it reflects 

both historical changes in the recreational sector as well as current 

conditions. It is also an approach used by the Council in setting 

allocations for other species (e.g., the jurisdictional apportionment 

of black grouper and yellowtail snapper resources between the 

Gulf and South Atlantic Councils). 

Id. In the FIS, the Gulf Council explained these “historical changes,” which 

include the shortening of the fishing season in federal waters, restricting the 

ability of charter anglers to fish, and the loosening of restrictions in state 

waters, increasing the ability of private anglers to fish. The Council described 

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No. 16-30137

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how the changes affected the more recent landing data. The Council justified 

the selection of the mixed data set by explaining that it would “balance the

history of the recreational sector with more current conditions.” 

The record demonstrates that the Secretary considered the relevant 

factors and provided a rational justification for her decision to include older 

data in making its allocations. As a result, we find the CCA has failed to carry 

its burden to show that this decision was arbitrary and capricious. See Sierra 

Club, 245 F.3d at 444.

III 

For the foregoing reasons, we AFFIRM the judgment of the district court. 

 Case: 16-30137 Document: 00513837458 Page: 17 Date Filed: 01/17/2017