1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

NATURAL RESOURCES DEFENSE 

COUNCIL, INC.,

Plaintiff,

v.

GINA M. RAIMONDO, in her official 

capacity as Secretary of the Department of 

Commerce et al.,

Defendants,

and

AMERICAN SPORTFISHING 

ASSOCIATION,

Defendant-Intervenor.

Civil Action No. 23-982 (BAH)

Judge Beryl A. Howell

MEMORANDUM OPINION

The Magnuson-Stevens Fishery Conservation and Management Act (“MSA”), 16 U.S.C. 

§ 1801 et seq., establishes “[a] national program for the conservation and management of the 

fishery resources of the United States,” id. § 1801(a)(6), and is administered by the National 

Marine Fisheries Service (“NMFS”), with help from eight regional fishery management councils. 

To regulate American fisheries, NMFS and councils prepare and implement fishery management 

plans (“FMPs”) that will “achieve and maintain, on a continuing basis, the optimum yield from

each fishery.” Id. § 1801(b)(4). FMPs must conform to the “national standards for fishery 

conservation and management” (“National Standards”), id. § 1851(a), and must contain certain 

provisions, including, as relevant here, “a mechanism for specifying annual catch limits in the 

plan (including a multiyear plan), implementing regulations, or annual specifications, at a level 
2

such that overfishing does not occur in the fishery, including measures to ensure accountability,” 

id. § 1853(a)(15).

This case concerns Framework 17, which, in relevant part, modified the process of 

determining whether recreational management measures, such as season length, minimum fish 

size, and bag limits, need to be adjusted for a given year, by adopting the recreational harvest 

control rule (“HCR”) for the Mid-Atlantic Fishery Management Council’s (the “Mid-Atlantic 

Council”) Summer Flounder, Scup, and Black Sea Bass FMP. See Magnuson-Stevens Fishery 

Conservation and Management Act Provisions; Fisheries of the Northeastern United States; 

Framework Adjustment 17 to the Summer Flounder, Scup, and Black Sea Bass Fishery 

Management Plan, and Framework Adjustment 6 to the Bluefish Fishery Management Plan 

(“Framework 17 Final Rule”), 88 Fed. Reg. 14,499, 14,499 (Mar. 9, 2023).1 Plaintiff Natural 

Resources Defense Council, Inc. brought this action against defendant Gina M. Raimondo, in her 

official capacity as Secretary of the Department of Commerce; Janet Coit, in her official capacity 

as Assistant Administrator for NOAA Fisheries; the National Oceanic and Atmospheric 

Administration; and NMFS, arguing that Framework 17 violates the MSA and Administrative 

Procedure Act (“APA”), 5 U.S.C. § 551 et seq. See generally Compl., ECF No. 1. The 

American Sportfishing Association, which represents recreational anglers, was granted 

permission to intervene. See Min. Order (July 27, 2023).

During the pendency of this action, the 2023, 2024, and 2025 recreational management 

measures were finalized. See Fisheries of the Northeastern United States; Recreational 

Management Measures for the Summer Flounder, Scup, and Black Sea Bass Fisheries; Fishing 

1 The final rule is comprised of Framework Adjustment 17 to the Summer Flounder, Scup, and Black Sea 

Bass FMP, as well as Framework Adjustment 6 to the Bluefish FMP, but the latter component is not at issue in this 

action.
3

Year 2023 (“2023 Recreational Management Measures Final Rule”), 88 Fed. Reg. 55,411 (Aug. 

15, 2023); Fisheries of the Northeastern United States; 2024 and 2025 Summer Flounder and 

Scup, and 2024 Black Sea Bass Recreational Management Measures (“2024–2025 Recreational 

Management Measures Final Rule”), 89 Fed. Reg. 32,374 (Apr. 26, 2024). Promulgation of 

these management measures prompted plaintiff twice to amend the complaint to add claims that 

use of Framework 17’s HCR to generate the 2023, 2024, and 2025 recreational management 

measures violated the MSA and APA. See Am. Compl., ECF No. 22; 2d Am. Compl., ECF No. 

38. Plaintiff seeks vacatur of Framework 17, and the 2023, 2024, and 2025 recreational 

management measures.

Now pending before the Court are two sets of cross-motions for summary judgment.2 

The first set concerns claims that Framework 17 and its use to set the 2023 recreational 

management measures violate the MSA and APA. See Pl.’s Mot. for Summ. J., ECF No. 25; 

Pl.’s Mem. Supp. Mot. for Summ. J. (“Pl.’s Mem.”), ECF No. 25-1; Int.’s Opp’n Pl.’s Mot. 

Summ. J. & Cross-Mot. Summ. J., ECF No. 27; Int.’s Mem. Supp. Opp’n Pl.’s Mot. Summ. J. & 

Cross-Mot. Summ. J. (“Int.’s Opp’n”), ECF No. 27-1; Defs.’ Opp’n Pl.’s Mot. Summ. J. & 

Cross-Mot. Summ. J., ECF No. 30; Defs.’ Mem. Supp. Opp’n Pl.’s Mot. Summ. J. & Cross-Mot. 

Summ. J. (“Defs.’ Opp’n”), ECF No. 30-1; Pl.’s Reply Supp. Mot. Summ. J. & Opp’n Defs.’ & 

Int.’s Cross-Mots. Summ. J. (“Pl.’s Reply”), ECF No. 31; Int.’s Reply Supp. Cross-Mot. Summ. 

J. (“Int.’s Reply”), ECF No. 33; Defs.’ Reply Supp. Cross-Mot. Summ. J. (“Defs.’ Reply”), ECF 

No. 34. The second set considers whether claims regarding the 2023 recreational management 

measures are moot now that the 2023 fishing season is over, as well as the claims that use of the 

HCR to set the 2024 and 2025 recreational management measures violate the MSA and APA. 

2 Since most of the briefing is docketed twice, only one of the duplicate memoranda is referenced to simplify 

citation.
4

See Pl.’s Suppl. Mot. for Summ. J., ECF No. 42; Pl.’s Mem. Supp. Suppl. Mot. for Summ. J. 

(“Pl.’s Suppl. Mem.”), ECF No. 42-1; Int.’s Opp’n Pl.’s Suppl. Mot. Summ. J. & Suppl. CrossMot. Summ. J., ECF No. 43; Int.’s Mem. Supp. Opp’n Pl.’s Suppl. Mot. Summ. J. & Suppl. 

Cross-Mot. Summ. J. (“Int.’s Suppl. Opp’n”), ECF No. 43-1; Defs.’ Opp’n Pl.’s Suppl. Mot. 

Summ. J. & Suppl. Cross-Mot. Summ. J., ECF No. 46; Defs.’ Mem. Supp. Opp’n Pl.’s Suppl. 

Mot. Summ. J. & Suppl. Cross-Mot. Summ. J. (“Defs.’ Suppl. Opp’n”), ECF No. 46-1; Pl.’s 

Reply Supp. Suppl. Mot. Summ. J. & Opp’n Defs.’ & Int.’s Suppl. Cross-Mots. Summ. J. (“Pl.’s 

Suppl. Reply”), ECF No. 48; Defs.’ Reply Supp. Suppl. Cross-Mot. Summ. J. (“Defs.’ Suppl. 

Reply”), ECF No. 49.

For the reasons set forth below, defendants’ cross-motions for summary judgment are 

GRANTED, plaintiff’s motions for summary judgment are DENIED, and intervenor’s crossmotions for summary judgment are DENIED AS MOOT.

I. BACKGROUND

The relevant statutory and regulatory framework, as well as the facts from which this 

litigation arises, are presented below. At the outset, the alphabet soup of acronyms used in this 

litigation facilitates expeditious description but also may be confusing, and thus reminders of 

what the acronyms mean are repeated in different sections to help the reader.

A. The Magnuson-Stevens Fishery Conservation and Management Act

Enacted in 1976, the MSA establishes “[a] national program for the conservation and 

management of the fishery resources of the United States,” 16 U.S.C. § 1801(a)(6), granting the 

federal government “exclusive fishery management authority over all fish” within the “exclusive 

economic zone,” id. § 1811(a), “an area extending 200 nautical miles seaward from each state’s 

coastline,” Anglers Conservation Network v. Pritzker, 809 F.3d 664, 667 (D.C. Cir. 2016); see 
5

also 16 U.S.C. § 1802(11); Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2254 (2024).3 

The purposes of the MSA include “to conserve and manage the fishery resources . . . of the 

United States” and “to promote domestic commercial and recreational fishing under sound 

conservation and management principles.” 16 U.S.C. § 1801(b)(1), (b)(3).

NMFS, acting under authority delegated from the Secretary of Commerce, administers 

the MSA, with help from regional fishery management councils. See Loper Bright Enters., 144 

S. Ct. at 2254; A.P. Bell Fish Co. v. Raimondo, 94 F.4th 60, 62 (D.C. Cir. 2024); see also 16 

U.S.C. § 1801(b)(5) (declaring that a purpose of the MSA is “to establish Regional Fishery 

Management Councils to exercise sound judgment in the stewardship of fishery resources”); id.

§ 1852(a) (establishing the eight regional fishery management councils). Each council has 

authority over a specific geographic region within the exclusive economic zone and is comprised 

of “members who represent the interests of the states included in that region,” C & W Fish Co. v. 

Fox, 931 F.2d 1556, 1557–58 (D.C. Cir. 1991), such as representatives from the coastal states, 

the commercial, recreational, and charter fishing sectors, and NMFS, see 16 U.S.C. § 1852(b); 

see also N.C. Fisheries Ass’n v. Gutierrez, 550 F.3d 16, 17 (D.C. Cir. 2008). To assist in “the 

development, collection, evaluation, and peer review” of any “scientific information” relevant to 

its activity, and to provide “ongoing scientific advice for fishery management decisions,” each 

council is required to establish a scientific and statistical committee (“SSC”), comprised of 

members with “strong scientific or technical credentials and expertise.” 16 U.S.C. § 1852(g)(1).

3

“Within each coastal State’s territorial sea, which generally extends three geographic miles from its 

coastline, the State has jurisdiction to regulate fishing.” Oceana, Inc. v. Raimondo, 35 F.4th 904, 906 (D.C. Cir. 

2022).
6

1. Fishery Management Plans

The primary tool for the regulation of fisheries is the creation and implementation of 

fishery management plans, or FMPs. Each council is tasked with preparing and submitting, for 

fisheries under their authority, FMPs that will “achieve and maintain, on a continuing basis, the 

optimum yield [(“OY”)] from each fishery.” Id. § 1801(b)(4); see also id. § 1852(h)(1)

(providing that councils “shall” submit FMPs); id. § 1801(b)(5) (declaring that a purpose of the 

MSA is to establish councils who “steward[] . . . fishery resources through the preparation, 

monitoring, and revision” of FMPs). Under the MSA, FMPs must include certain provisions, 

such as “the conservation and management measures” “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”; an 

assessment of “the present and probable future condition of, and the maximum sustainable yield 

and optimum yield from, the fishery”; and “objective and measurable criteria for identifying 

when the fishery to which the plan applies is overfished.” Id. § 1853(a).

4

FMPs must also conform to the National Standards. See id. § 1853(a)(1)(C); see also id.

§ 1851(a) (listing the National Standards); id. § 1801(b)(4) (describing one of the MSA’s 

purposes as “to provide for the preparation and implementation, in accordance with national 

standards, of fishery management plans”). Relevant to this dispute, National Standard 1 (“NS1”) 

provides that “[c]onservation and management measures shall prevent overfishing while 

achieving, on a continuing basis, the optimum yield from each fishery for the United States 

4 Optimum yield is defined as “the amount of fish which—(A) will provide the greatest overall benefit to the 

Nation, particularly with respect to food production and recreational opportunities, and taking into account the 

protection of marine ecosystems; (B) is prescribed on the basis of the maximum sustainable yield from the fishery, 

as reduced by any relevant social, economic, or ecological factor; and (C) in the case of an overfished fishery, 

provides for rebuilding to a level consistent with producing the maximum sustainable yield in such fishery.” 16 

U.S.C. § 1802(33).
7

fishing industry.” Id. § 1851(a)(1).

5

 National Standard 2 (“NS2”) requires that any conservation 

and management measures be “based upon the best scientific information available.” Id.

§ 1851(a)(2). Advisory guidelines for the National Standards are set forth at 50 C.F.R. 

§§ 600.305–600.355, which guidelines do “not have the force and effect of law” but may be used 

“to assist in the development of fishery management plans.” 16 U.S.C. § 1851(b).

Emblematic of NMFS and councils’ shared responsibility for administering the MSA is 

that councils are tasked with preparing, submitting, and eventually implementing FMPs, while

NMFS has approval authority over FMPs. See id. § 1854(a) (setting out the Secretary of 

Commerce’s authority over FMPs); see also A.P. Bell Fish Co., 94 F.4th at 62 (“The [MSA] 

authorizes the Secretary of Commerce to delegate to [NMFS] the authority to implement 

proposed fishery management plans and their amendments.”). Specifically, upon receipt of an 

FMP, NMFS “immediately commence[s] a review of the [FMP] . . . to determine whether it is 

consistent with the national standards, the [MSA], and any other applicable law,” and publishes, 

in the Federal Register, notice of the FMP for 60 days of public comment. 16 U.S.C. 

§ 1854(a)(1). Within 30 days of the close of the comment period and after “tak[ing] into 

account,” inter alia, “the information, views, and comments received from interested persons,” 

id. § 1854(a)(2)(A), NMFS is required to decide whether to “approve, disapprove, or partially 

approve” the FMP, id. § 1854(a)(3). If the FMP is not approved or only partially approved, 

NMFS must specify “the applicable law with which the [FMP] is inconsistent,” “the nature of 

5 Overfishing is defined as “a rate or level of fishing mortality that jeopardizes the capacity of a fishery to 

produce the maximum sustainable yield on a continuing basis.” 16 U.S.C. § 1802(34). Preventing overfishing is so 

critical that this goal is expressly reiterated in Section 1853(a), which lists an FMP’s required provisions to include 

“the conservation and management measures . . . 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,” see id. § 1853(a)(1)(A), even though Section 1853(a) already incorporates, by 

reference, the National Standards, see id. § 1853(a)(1)(C) (“Any fishery management plan . . . shall . . . contain the 

conservation and management measures . . . , which are . . . consistent with the national standards.”).
8

such inconsistencies,” and “recommendations concerning the actions that could be taken by the 

[c]ouncil to conform such plan . . . to the requirements of applicable law.” Id. § 1854(a)(3). If, 

however, an FMP is approved, NMFS publishes a final rule and one or more implementing 

regulations in the Federal Register. See id. § 1854(a)(3), (b)(1), (b)(3); see also N.C. Fisheries 

Ass’n, 550 F.3d at 17 (explaining that implementing regulations are necessary because FMPs “do 

not themselves have any regulatory effect”). Approved FMPs are subject to judicial review for 

30 days under the MSA. See 16 U.S.C. § 1855(f)(1).

Recognizing that FMPs may sometimes require modification to keep up to date, NMFS 

and councils are also tasked with enacting amendments and framework adjustments. 

Amendments alter FMPs in broad strokes and are subject to the same requirements as FMPs, 

with the additional requirement that any amendment must be consistent with the underlying 

FMP, as well as the same notice and comment process as FMPs. Framework adjustments, in 

contrast, modify or update FMPs in more modest ways, through an abbreviated administrative 

procedure rather than the full amendment process, thereby allowing NMFS and councils to 

respond more quickly and efficiently to new developments. See id. §§ 1853(c), 1854(b); see also

50 C.F.R. § 648.110(a)(1) (“Issues that require significant departures from previously 

contemplated measures or that are otherwise introducing new concepts may require an 

amendment of the FMP instead of a framework adjustment.”).6

6 For the Summer Flounder, Scup, and Black Sea Bass FMP, framework adjustments, which are promulgated 

if “necessary to meet or be consistent with the goals and objections of the FMP,” can be made with respect to only 

specifically delineated categories of information. 50 C.F.R. § 648.110(a). The public must be given notice of the 

adjustments, which are then considered over the span of at least two council meetings. Id. § 648.110(a)(1). 

Framework adjustments are presented as recommendations to NMFS and, if NMFS concurs, a final rule is issued in 

the Federal Register. Id. § 648.110(a)(2)–(3). 
9

2. Annual Catch Limits and Accountability Measures

Enacted in 2007, the Magnuson-Stevens Fishery Conservation and Management 

Reauthorization Act of 2006, Pub. L. No. 109-479, 120 Stat. 3575 (2007), reauthorized and 

amended the MSA, and, as relevant here, “fundamentally altered American fishing regulation,” 

by requiring regional fishing council to establish, for each fishery within its jurisdiction, annual 

catch limits (“ACLs”), Conservation L. Found. v. Pritzker, 37 F. Supp. 3d 254, 266 (D.D.C. 

2014). As amended, the MSA requires FMPs to “establish a mechanism for specifying annual 

catch limits in the plan (including a multiyear plan), implementing regulations, or annual 

specifications, at a level such that overfishing does not occur in the fishery,” as well as

accountability measures (“AMs”) to ensure compliance with ACLs. 16 U.S.C. § 1853(a)(15). 

Each council establishes ACLs, subject to NMFS approval. To do so, a council must consult 

with its SSC, which issues “recommendations for acceptable biological catch, preventing 

overfishing, maximum sustainable yield [(“MSY”)], and achieving rebuilding targets” for each 

fishery within a council’s jurisdiction, id. § 1852(g)(1)(B), based on the best available science, 

id. § 1851(a)(2). Any ACL established by a council “may not exceed the fishing level 

recommendations” of its SSC. Id. § 1852(h)(6). Notably, the MSA did not define ACL or AM. 

See generally id. § 1802. 

In response to these amendments, NMFS revised its advisory guidelines for NS1—which, 

recall, provides that “[c]onservation 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)—“to provide guidance on how to comply with” the new ACL 

and AM requirements, and to “clarif[y] the relationship between ACLs, acceptable biological 

catch (ABC), maximum sustainable yield (MSY), optimum yield (OY), and other applicable 

reference points,” Magnuson-Stevens Act Provisions; Annual Catch Limits; National Standard 
10

Guidelines, 74 Fed. Reg. 3178, 3178 (Jan. 16, 2009); see also 50 C.F.R. § 600.310(b)(1). As 

amended, the NS1 Guidelines set forth a multi-step process intended to generate various limits 

on catch, including ACLs. Only a simplified overview of this complicated process is necessary 

for purposes of the instant action.

First, the council establishes, for a particular stock, an “overfishing limit” (“OFL”), i.e., 

an estimate of the largest amount of catch, by number or weight of fish, in a year, above which 

overfishing would occur. See 50 C.F.R. § 600.310(e)(2)(i)(C)–(D) (explaining that the OFL is 

set by applying the maximum fishing mortality threshold, i.e., the annual rate of fishing mortality 

above which overfishing will occur, to the stock’s total size). 

Second, the council determines an “acceptable biological catch” (“ABC”), i.e., a reduced 

OFL, having accounted for any “scientific uncertainty” and “the [c]ouncil’s risk policy.” Id.

§ 600.310(f)(1)(ii). The purpose of the buffer between the OFL and ABC is to reduce the risk 

that the OFL will be exceeded. See id. § 600.310(f)(4).

Third and finally, the council sets the ACL, i.e., “a limit on the total annual catch of a 

stock . . . that serves as the basis for invoking AMs.” Id. § 600.310(f)(1)(iii). The ACL “cannot 

exceed the ABC,” id., and should account for “management uncertainty,” i.e., “the uncertainty in 

quantifying the true catch amounts,” such as late reporting, misreporting, and underreporting, id.

§ 600.310(f)(1)(v), (f)(4)(i).

In sum, based on the recommendations of its SSC, the council must establish, for a 

particular stock, the OFL, ABC, and ACL. The ACL must be less than or equal to the ABC to 

account for management uncertainty, and the ABC must be less than or equal to the OFL to 

account for scientific uncertainty.
11

The NS1 Guidelines provide the only definition of ACLs: “a limit on the total annual 

catch of a stock or stock complex . . . that serves as the basis for invoking AMs.” Id.

§ 600.310(f)(1)(iii). AMs are, in turn, defined as “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. They fall into two categories: (1) inseason AMs, such as closure of a fishery, and 

changes to trip size or bag limits; and (2) AMs for when the ACL is exceeded, such as overage 

adjustments or modifications of inseason AMs or ACTs. Id. § 600.310(g)(1)–(3). “If catch 

exceeds the ACL for a given stock or stock complex more than once in the last four years, the 

system of ACLs and AMs should be reevaluated, and modified if necessary, to improve its 

performance and effectiveness.” Id. § 600.310(g)(7).

B. The Summer Flounder, Scup, and Black Sea Bass FMP

This action concerns summer flounder, scup, and black sea bass, three fish species that 

have previously been overfished, and, as a result, their stock has had to be rebuilt. See AR 2501 

(describing scup and black sea bass as “rebuilt stocks”); AR 2618 (same for summer flounder). 

Today, fortunately, both scup and black sea bass have very high stock, with their stock doubling 

their target, and are at little risk of overfishing. See Framework 17 Final Rule, 88 Fed. Reg. at 

14,503. When this action was initiated, summer flounder, too, was not overfished, though its 

stock was low and decreasing. Although both the commercial and recreational summer flounder 

harvests were below their respective ACLs for the 2021 and 2022 seasons, see AR 3941–42, on 

November 6, 2023, while this action was pending, summer flounder was designated overfished,

based on data from the 2022 season, see Determination of Overfishing or an Overfished 

Condition, 88 Fed. Reg. 76,188, 76,188 (Nov. 6, 2023).
12

The Mid-Atlantic Council, which has jurisdiction over fisheries in federal waters off the 

coasts of New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, and North 

Carolina, see 16 U.S.C. § 1852(a)(1)(B), manages, with NMFS, summer flounder, scup, and 

black sea bass under a single FMP due to the similarities between these fisheries.7 All three 

types of fish are targeted for both commercial fishing, i.e., “fishing in which the fish harvested, 

either in whole or in part, are intended to enter commerce or enter commerce through sale, barter 

or trade,” id. § 1802(4), and recreational fishing, i.e., “fishing for sport or pleasure,” id.

§ 1802(37). “While both provide significant cultural and economic benefits to the Nation, 

recreational fishing and commercial fishing are different activities.” Id. § 1801(a)(13). The 

MSA thus counsels that “science-based conservation and management approaches should be 

adapted to the characteristics of each sector.” Id.8

Heeding this instruction, NMFS has developed different methods for monitoring and 

gathering information about the harvest activities of the recreational and commercial sectors. 

For the commercial sector, dealers are required to submit mandatory weekly reports detailing “all 

fish purchased or received for a commercial purpose,” 50 C.F.R. § 648.7(a)(1), (f)(1), and vessel 

owners and operators are required to submit, “within 48 hours at the conclusion of a trip,”

mandatory trip reports providing “an accurate fishing log report for each fishing trip,” id.

§ 648.7(b)(1), (f)(2). With these regular reports, NMFS can accurately track and assess 

7 Since summer flounder, scup, and sea bass are present in and move between federal and state waters, 

NMFS and Mid-Atlantic Council also coordinate with the Atlantic States Marine Fisheries Commission, an 

interstate compact of the fifteen Atlantic coastal states that manage marine fish stock within state waters. See 16 

U.S.C. §§ 5101(a)(1), 5102(3). The role of the Atlantic State Marine Fisheries Commission is not at issue here.

8

Indeed, the 2018 Modernizing Recreational Fisheries Management Act, Pub. L. No. 115-405, 132 Stat. 

5355 (2018), enacted in recognition of the management challenges that recreational fisheries were facing, expressly 

granted councils the “authority to use fishery management measures in recreational fishery . . . in developing a 

fishery management plan, plan amendment, or proposed regulations, such as extraction rates, fishing mortality 

targets, harvest control rules, or traditional or cultural practices of native communities,” 16 U.S.C. § 1852(h)(8), in 

addition to their existing duty to “develop annual catch limits for each of its managed fisheries,” id. § 1852(h)(6).
13

commercial harvest with few, if any, additional tools. If the total reported commercial catch 

reaches the commercial ACL before the season is over, the solution is simple: NMFS can, with 

notice, close the commercial fishery.

Tracking recreational fishing, in contrast, is significantly more difficult, given the large 

number of participants and access points and lack of mandatory catch reporting. See AR 3617. 

Rather than attempting to account for every fish caught in real time or even weekly, NMFS 

conducts angler surveys through the Marine Recreational Information Program (“MRIP”). See

16 U.S.C. § 1881(g). The MRIP survey intercepts a random small subset of recreational anglers, 

determines the number of fish they have caught and the amount of fishing effort, then uses this 

limited data to extrapolate to annual estimates of total recreational catch. Unsurprisingly, this 

survey-based system has limitations. Survey sampling, for example, “covers only a small 

proportion of anglers and relies on recall as well as direct observation of catches after the actual 

catch has occurred, which tends to result in catch data that are more uncertain, more sensitive to 

details of survey design, and less timely relative to the data collected for commercial fisheries.” 

AR 3617. 

C. The Omnibus Amendment

In 2011, the Mid-Atlantic Council developed, in consultation with NMFS, the Omnibus 

Amendment, which amended all six of its FMPs, including the Summer Flounder, Scup, and 

Black Sea Bass FMP, to address the new requirements set out by the 2007 MSA amendments 

and the accompanying revised NS1 Guidelines. See generally Magnuson-Stevens Fishery 

Conservation and Management Act Provisions; Fisheries of the Northeastern United States; 

Annual Catch Limits and Accountability Measures (“Omnibus Amendment”), 76 Fed. Reg. 

60,606 (Sept. 29, 2011); see also supra Section I.A.2 (describing the relevant amendments to the 
14

MSA and NS1 Guidelines).

9

 In relevant part, the Omnibus Amendment “establishe[d] the 

framework that the Council and SSC will utilize to establish catch limits” and “the system for 

maintaining accountability when ACLs are exceeded.” Omnibus Amendment, 76 Fed. Reg. at 

60,606.

The Omnibus Amendment contemplates the setting of commercial and recreational catch 

and landing limits annually, through a process referred to as “specifications.” The most relevant 

aspects of the specifications process (“Specifications Framework”) are summarized below.

The Omnibus Amendment instructs that the “overfishing limit” (or OFL), should first be 

established, then reduced to account for scientific uncertainty to arrive at the “acceptable 

biological catch” (or ABC).

10

 See id. at 60,607. The “annual catch limit” (or ACL) is then set 

equal to the ABC. See id. For some stock, such as summer flounder, scup, and black sea bass, 

the ACL is further apportioned to sector-ACLs, i.e., separate catch limits for the commercial and 

recreational sectors, with the proviso that “[t]he sum of these sector ACLs will equal the ABC.” 

Id.

Each sector’s ACL is further divided into dead discards, i.e., fish that are caught and 

thrown overboard, and landings, i.e., fish that are caught and brought to land.11 See id. The limit 

9 The Omnibus Amendment acted as Amendment 15 to the Summer Flounder, Scup, and Black Sea Bass 

FMP. See Omnibus Amendment, 76 Fed. Reg. at 60,606.

10 The Omnibus Amendment sets out the specific method for computing the necessary reduction, which 

method is not at issue in this dispute.

11 Sector ACLs are sometimes reduced to account for management uncertainty, resulting in a value called the 

annual catch target (“ACT”). Omnibus Amendment, 76 Fed. Reg. at 60,607; see also id. at 60,610 (“The purpose of 

utilizing an ACT is so that, given uncertainty in the amount of catch that will result from the conservation and 

management measures, the ACL will not be exceeded.”). For the 2023, 2024, and 2025 fishing seasons, the ACT 

has been set at the ACL for summer flounder, scup, and black sea bass. See Fisheries of the Northern United States; 

Final 2023 Summer Flounder, Scup, and Black Sea Bass Specifications, 88 Fed. Reg. 11, 12 (Jan. 3, 2023); 

Fisheries of the Northeastern United States; 2024 and Projected 2025 Specifications for the Summer Flounder and 

Scup Fisheries, and 2024 Specifications for the Black Sea Bass Fishery, 88 Fed. Reg. 88,266, 88,266–67 (Dec. 21, 

2023).
15

on commercial landings is called the “commercial quota,” and the limit on recreational landings 

is called the “recreational harvest limit” (“RHL”), with each representing the total amount of fish 

that the commercial and recreational sectors are permitted to bring ashore. In sum, under the 

Omnibus Amendment, the formulaic structure for all of the Mid-Atlantic Council’s FMPs was as 

follows: OFL ≥ ABC = ACL(s), with scientific uncertainty addressed by reducing the OFL to 

obtain the ABC. Id.

Every year, the Mid-Atlantic Council uses the Specifications Framework to establish, for 

NMFS approval, recommendations for a specific stock’s OFL, ABC, and ACLs. It then 

develops, again subject to NMFS approval, season-specific management measures to govern 

specific aspects of a fishery’s operation.

D. Recreational Management Measures

The MSA requires FMPs to establish not only a mechanism for specifying the ACL, but 

also a suite of accountability measures (or AMs). See 16 U.S.C. § 1853(a)(15). For the summer 

flounder, scup, and black sea bass fisheries, the Mid-Atlantic Council develops AMs that are 

responsive to exceeding the ACL, but not inseason AMs due to the lag time in the collection and 

analysis of recreational survey data. See 50 C.F.R. §§ 648.103, 648.123, 648.143 (summer 

flounder, scup, black sea bass AMs). The AM relevant to this dispute is the adjustment of 

season-specific recreational management measures. Examples of recreational management 

measures include season length, minimum fish size, and bag limits on the maximum number of 

fish an angler is permitted to keep.

Prior to Framework 17, at issue here, these recreational management measures were 

calibrated to target an estimated recreational harvest at or below the RHL (the “status quo 

approach” to setting management measures). Although the development of the RHL includes

some consideration of scientific uncertainty (when the OFL is reduced to the ABC) and stock 
16

size (when calculating the OFL), such consideration, which treated the recreational and 

commercial sectors identically, was deemed untenable for the recreational sector.

First, as discussed above, recreational fishing data, collected via MRIP surveys, proved to 

be highly variable and uncertain in any given year. As a result, accurate stock measures were 

difficult to obtain. In fact, “[w]hen a stock assessment is rerun and updated, it is often the case 

that [the] perception of the stock size has changed.” See Framework 17 Final Rule, 88 Fed. Reg. 

at 14,502. Black sea bass, for example, “recently experienced a retrospective pattern that . . . 

revealed that stock assessments have routinely underestimated stock size and overestimated 

fishing mortality, resulting in the stock size subsequently being higher than originally estimated, 

and fishing mortality lower, when a new/updated assessment is conducted.” Id. Such “pattern”

leads to “catch limits that are set lower than what is actually available to the fishery and years 

where even restrictive management measures result in higher than anticipated harvest, often with 

increasing levels of discards, even without overfishing occurring.” Id.

Correct and consistent estimations of recreational harvest were also difficult to obtain. 

From 2018 to 2021, the recreational harvest for summer flounder, scup, and black sea bass, as 

estimated using MRIP surveys, varied by as much as 45 percent from year to year, despite no 

change in recreational management measures. See id. at 14,501. The estimated black sea bass 

recreational harvest alone ranged from 10.20 million pounds to 16.17 million pounds, during this 

three-year period. Id.

By setting management measures to produce an estimated harvest that was equal to or 

below the RHL, the status quo approach “chased” the RHL. Since the RHL can fluctuate 

significantly from year-to-year due to methodological problems unrelated to the availability of

stock and is based on stock size estimates that are uncertain, management measures, “[r]eacting 
17

to these large, uncertain swings, in estimated harvest,” could also fluctuate significantly from 

year-to-year, with no guarantee that the actual recreational harvest would be close to the RHL. 

Id. (explaining that the status quo approach “has been unsuccessful by all standards”). In 

developing a new approach, NMFS sought to reduce this uncertainty and smooth out this 

instability.

Second, the status quo approach did not factor in biomass, i.e., “[t]he size of a stock of 

fish measured in weight,” id. at 14,500, in its determination of the degree by which management 

measures can change from year-to-year. In other words, management measures were changed 

with no regard to whether a stock was low or in abundance. For very high stock, the status quo 

approach could result in needlessly restrictive management measures. See id. at 14,502 (“[W]hat 

appear to be overages often have no negative impact on abundant stocks as we continue to see 

increases in biomass through a subsequent stock assessment.”); id. at 14,503 (explaining that 

when a stock’s biomass is higher than the biomass target, it is “larger than is ideal for 

maximizing long-term benefits”). Black sea bass, for example, has more than double its target 

stock, despite repeated findings that the expected recreational harvest for this species exceeds the 

RHL, resulting in fairly restrictive management measures. See id. at 14,503. Under the status 

quo approach, management measures would continue to be restricted in an effort, every year, to 

close the entire gap between the expected recreational harvest and the RHL, despite black sea 

bass’s high abundance. This approach has led to much frustration among recreational anglers 

and related businesses, difficulties in managing recreational fisheries with an eye towards 

balancing the need to avoid overfishing and to achieve OY, as required by the MSA, and the 

unintended consequence of increased recreational dead discards, given that, due to their 
18

abundance, black sea bass would be difficult to avoid despite restrictive bag and size limits. See

id. at 14,501–02, 14,504.

In contrast, for very low stock, the status quo approach offers no guardrails to limit 

liberalization of management measures. Summer flounder, for example, is at low and decreasing 

stock size. See id. at 14,502. Imagine a situation where the RHL is calculated based on an 

overestimation of the availability of summer flounder, or the recreational catch appears to fall 

due to poor data. Under the status quo approach, management measures could be liberalized, 

with no restriction and without regard of summer flounder’s decreasing stock, to “chase” the 

RHL. See id. at 14,503.

E. Framework 17

Frustrated with the status quo approach, the Mid-Atlantic Council initiated, in 2021, a 

framework adjustment to modify the process of setting recreational management measures. Its 

goal was “to establish a process for setting recreational measures that: [p]revent overfishing; are 

reflective of stock status; appropriately account for uncertainty in the recreational data; take into 

consideration angler preferences; and provide an appropriate level of stability and predictability 

in changes from year to year.” Magnuson-Stevens Fishery Conservation and Management Act 

Provisions; Fisheries of the Northeastern United States; Framework Adjustment 17 to the 

Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, and Framework 

Adjustment 6 to the Bluefish Fishery Management Plan (“Framework 17 Proposed Rule”), 87 

Fed. Reg. 76,600, 76,601 (Dec. 15, 2022).

In 2023, NMFS published a final rule implementing the recreational harvest control rule

(or HCR), which adopted a process called the “percent change approach.” See Framework 17 
19

Final Rule, 88 Fed. Reg. at 14,499.

12

 The HCR was expected to be “an improvement over the 

status quo process because it allows for management measures to be set for 2 years,” rather than 

one, “includes the explicit consideration of the best estimate of the current biomass of the stock 

compared to the target level, and requires the consideration of the variability of harvest 

estimates.” Id. at 14,500. The approach, however, was enacted as “an interim process” that 

“will sunset no later than December 31, 2025,” with “additional improvements to recreational 

fisheries management,” developed through separate actions, expected “by fishing year 2026.” 

Id. If no such action is taken by the sunset date, “the process for establishing recreational 

measures will revert to the methodology previously used by the Council.” Id.

The HCR does not deviate considerably from the status quo approach. Indeed, 

Framework 17 made no changes to the Specifications Framework that establishes the OFL, 

ABC, and ACLs. The HCR simply adds consideration of a new value, calculated independently 

of the Specifications Framework, called the “recreational harvest target” (“RHT”). Whereas, 

under the status quo approach, recreational management measures were calibrated to result in an 

estimated recreational harvest at or below the “recreational harvest limit” (or RHL), the HCR 

sets management measures to target an estimated recreational harvest at or below the 

“recreational harvest target” (or RHT).

1. The Harvest Control Rule 

The HCR uses three steps to determine whether recreational management measures for an 

upcoming season should remain the same, be liberalized, or be restricted. See Framework 17 

Proposed Rule, 87 Fed. Reg. at 76,601; see also Framework 17 Final Rule, 88 Fed. Reg. at 

14,506 (“There are no changes to the measures in this final rule from the proposed rule.”).

12 Critically, stocks in a rebuilding plan are expressly excluded from the HCR. See Framework 17 Final Rule, 

88 Fed. Reg. at 14,499.
20

First, the expected recreational harvest with current management measures is estimated, 

either using newly developed statistic models, if available, or based on the two most recent years 

of recreational fishing survey data. See Framework 17 Proposed Rule, 87 Fed. Reg. at 76,601. 

In recognition of the uncertainty laden in recreational fishing data, the 80-percent confidence 

interval is also calculated, which interval reflects the range of values within which the true value 

of the recreational harvest will be 80 percent of the time. Id.; see also id. at 76,602 (defining 

confidence interval as “the upper and lower bound around a point estimate to indicate the range 

of possible values given the uncertainties around the estimate”). The RHL for the next two years 

is then compared to the confidence interval. If the future RHL is greater than the upper bound of 

the confidence interval, harvest is expected to be lower than the RHL. Id. at 76,602. If the 

future RHL is within the confidence interval, harvest is expected to be close to the RHL. Id. If 

the future RHL is less than the lower bound of the confidence interval, harvest is expected to 

exceed the RHL. Id. 

Second, the stock’s biomass, based on the most recent stock assessment, will be 

compared to the biomass target, i.e., the stock size associated with maximum sustainable yield. 

Id. at 76,601–02. The stock will be given one of three ratings: (1) very high, if the stock is at 

least 150 percent of the target; (2) high, if the stock is between 100 and 150 percent of the target; 

or (3) low, if the stock is below the target. Id. at 76,601.

Third and finally, the percentage change is determined using the Management Response 

Table, see id. at 76,602 (Table 1), a matrix that recommends a percentage change in harvest 

based on the information gathered in steps one and two. The recommendations encourage a 

more aggressive approach for fish with higher stock, by creating more opportunities to liberalize 

management measures and allowing for less reduction, and a more conservative and cautionary 
21

approach for fish with lower stock. Where, for example, the future RHL is less than the lower 

bound of the harvest estimate confidence interval―meaning that harvest is expected to exceed 

the RHL―but the fish has “very high” biomass, a 10-percent fixed reduction in harvest is

recommended, regardless of the difference between the RHL and expected harvest. Under the 

HCR, a percentage reduction based on the difference between the harvest estimate and future 

RHL, not to exceed 20 percent is recommended for a fish with “high” biomass; and the same but 

capped at 40 percent is recommended for fish with “low” biomass. Id. In contrast, where the 

future RHL is greater than the upper bound of the harvest estimate confidence interval, meaning 

that the harvest is expected to be lower than the RHL, a percentage liberalization based on the 

difference between the harvest estimate and future RHL, not to exceed 40 percent is 

recommended for fish with “very high” biomass; the same but with a 20-percent cap is 

recommended for fish with “high” biomass; and a fixed 10-percent liberalization in harvest is 

recommended for fish with “low” biomass. Id. Applying the percentage change to the estimated 

expected recreational harvest results in the RHT. Pursuant to the HCR, recreational management 

measures, such as season length, minimum fish size, and bag limits, are then set to target the 

RHT.

The HCR remains the same as the status quo approach in three critical respects: the HCR 

(1) does not change the Specifications Framework; (2) compares the RHL and expected harvest 

to determine whether management measures should stay the same, be reduced, or be liberalized; 

and (3) has, as its end goal, achieving an actual harvest that is close to, but does not exceed, the 

RHL. The HCR differs from the status quo approach in the means and timing of achieving its 

goals, privileging a more methodical and iterative process over the status quo approach, which 

chased the full gap between the expected harvest and RHL every single year.
22

Take an example where the estimated recreational harvest is expected to be lower than 

the RHL. Both the HCR and status quo approach recommend liberalization, so that the 

estimated recreational harvest comes closer to the RHL. Under the status quo approach, the aim 

would be to achieve the RHL immediately, meaning management measures would be liberalized 

to make up the full difference between the expected harvest and the RHL, no matter how 

significant the difference is, and with little regard to whether a species’ stock is low or in 

abundance, or whether the gap to the RHL is due to recreational catch or imprecise data. 

Although the status quo approach would attempt to reach the RHL every year, it almost never 

has, given the problems with uncertain data, as outlined above. The HCR, in contrast, seeks to 

achieve the RHL more cautiously and incrementally, by relying on two-years’ worth of data and 

capping the percent change. Newly built into the HCR is also recognition of the uncertainty of 

MRIP data, by employing the 80-percent confidence interval, and consideration of a stock’s 

biomass, by requiring a more conservative approach for species with low biomass. Again, what 

the HCR does not change is the goal of achieving the RHL. Indeed, the percent change, and thus 

RHT, is calculated in reference to whether the RHL is greater or less than the relevant bound of 

the 80-percent confidence interval. The HCR merely refines how this goal is achieved. See

Framework 17 Final Rule, 88 Fed. Reg. at 14,501 (“The overall goal of the Percent Change 

Approach is to iteratively adjust management measures to achieve the RHL, while minimizing 

potential overreaction (overcorrection) to annual variability in the harvest estimates.”).

2. Accountability Measures

To align recreational accountability measures (or AMs), with the adoption of the harvest 

control rule (or HCR), Framework 17 modified AMs to include explicit consideration of whether 

a recreational overage actually contributed to overfishing, as opposed to a situation like with 

black sea bass, where recreational harvest has exceeded the RHL for years with no biological 
23

impact on stock.13 Specifically, Framework 17 recommends that, when a reactive AM is 

triggered because of a recreational ACL overage, “the most recent estimate of fishing 

mortality . . . relative to the fishing mortality associated with MSY [or maximum sustainable 

yield],” i.e., the rate of fishing mortality estimated to result in overfishing, also be considered. 

Id. at 14,500. If the most recent fishing mortality is greater than the fishing mortality associated 

with MSY, meaning that the rate of fishing mortality is estimated to result in overfishing, the 

AM response should be stricter. See id. (offering, as an example of a more restrictive response, 

imposing a mandatory payback). If the most recent fishing mortality is less than the fishing 

mortality associated with MSY, meaning that the rate of fishing is not expected to result in 

overfishing, the AM response can be less strict. See id. (offering, as an example of a less strict 

response, revising management measures without imposing a mandatory payback). “When the 

relevant fishing mortality estimates are not available, this comparison would default to a 

comparison of total catch relative to the ABC.” Id.

3. 2023 Recreational Management Measures

The HCR was used for the first time to develop the 2023 recreational management 

measures. See 2023 Recreational Management Measures Final Rule, 88 Fed. Reg. at 55,411. As 

a reminder, the HCR affects the development of only management measures—not the

overfishing limit, acceptable biological catch, annual catch limits, or recreational harvest limit

(or, by acronym, OFL, ABC, ACLs, or RHL). In a separate rulemaking, finalized in early 2023, 

NMFS had already set the 2023 specifications for all three species. See Fisheries of the Northern 

United States; Final 2023 Summer Flounder, Scup, and Black Sea Bass Specifications, 88 Fed. 

Reg. 11, 12 (Jan. 3, 2023). The 2023 RHLs for summer flounder, scup, and black sea bass were

13 In contrast to the percent change approach, the modified recreational accountability measures will not

sunset in 2025. See Framework 17 Final Rule, 88 Fed. Reg. at 14,500.
24

set at 10.62 million pounds, 9.27 million pounds, and 6.57 million pounds, respectively. Id. The 

RHTs generated for all three species pursuant to the HCR were higher than these RHLs, as 

detailed next.

a) Scup

For scup, under existing management measures, the harvest was estimated to be 14.31 

million pounds, and the 80-percent confidence interval was estimated as 11.55 to 16.26 million 

pounds. See 2023 Recreational Management Measures Final Rule, 88 Fed. Reg. at 55,412. 

Since the RHL (9.27 million pounds) was less than the lower bound of the confidence interval, 

reduction was necessary (step one). See id. Based on the scup’s “very high” rating (step two), 

the Management Response Table recommended a 10-percent fixed reduction, even though the 

difference between the estimated harvest under existing management measures and the RHL was 

more than 10 percent. See id. The RHT was thus 12.88 million pounds, a 10-percent reduction 

of 14.31 million pounds (step three). See id. The corresponding management measures were set 

as: (1) a 10-inch minimum fish size; (2) a 40-fish per person possession limit; and (2) an open 

season of May 1 through December 31. Id.

b) Summer Founder and Black Sea Bass

For summer flounder and black sea bass, NMFS implemented conservation equivalency, 

under which “[f]ederal recreational measures are waived and federally permitted party/charter 

vessels and all recreational vessels fishing in [f]ederal waters are subject to the recreational 

fishing measures implemented by the state in which they land.” Id. at 55,411. NMFS reasoned 

that “[t]his approach allows for more customized measures at a state or regional level that are 

likely to meet the needs of anglers in each area, as opposed to coastwide measures that may be 

advantageous to anglers in some areas and unnecessarily restrictive in others.” Id. The 

implementation of conservation equivalency, however, does not render the HCR irrelevant 
25

because “[t]he combination of state or regional measures must be ‘equivalent’ in terms of 

conservation to a set of ‘non-preferred coastwide measures,’ which are recommended by the 

Council and the Board each year” and are generated using the HCR. Id. In addition, state or 

regional measures are “designed to constrain landings to” the RHTs. Id. Accordingly, using the 

HCR, the RHT is still calculated, and default federal management measures are still developed. 

If conservation equivalency is not approved, the federal management measures come into effect. 

If conservation equivalency is approved, the recreational fishing measures required to be 

implemented in state waters must be the conservation equivalent of the season, fish size, and 

possession limits corresponding to the default federal management measures. The default 

federal measures for summer flounder and black sea bass were set as follows: 

For summer flounder, application of the percent change approach generated conflicting 

results depending on the initial assumptions used in the model configuration. See id. at 55,415. 

When the 2021 MRIP data was used, the estimated harvest was 8.38 million pounds, below the 

RHL, and a 10-percent liberalization was recommended as a result. See id. In contrast, when an 

average of the 2018–2022 MRIP data was used, the estimated harvest was 10.92 million pounds, 

above the RHL, and a 10-percent reduction was recommended as a result. See id. Although the 

RHT was formally designated as 10.92 million pounds, this designation was found to be 

immaterial, given that 10.92 million pounds is “not statistically different” from the RHL of 10.62

million pounds. Id. In any case, “[g]iven the conflicting results, and uncertainty about which 

model run was more likely to reflect 2023 harvest, the [Mid-Atlantic] Council . . . decided to 

maintain status quo measures at the state and regional levels”: (1) an 18-inch minimum fish size; 

(2) a 3-fish per person possession limit; and (3) an open season from May 15 through September 

22. See id. at 55,415–16.
26

For black sea bass, the expected harvest under 2022 measures was estimated to be 7.93 

million pounds, with a corresponding 80-percent confidence interval of 7.17 to 8.63 million 

pounds. See id. at 55,413. Since the bottom end of this range was greater than the 2023 RHL of 

6.57 million pounds, a reduction was necessary (step one). See id. Based on black sea bass’s 

“very high” stock status (step two), the matrix recommended a 10-percent fixed reduction, 

resulting in a RHT of 7.14 million pounds (step three), and corresponding management measures 

of: (1) a 15-inch minimum fish size; (2) a 5-fish per person possession limit; and (3) an open 

season of May 15 through September 8. See id. at 55,413, 55,416.

4. 2024 and 2025 Recreational Management Measures

The percent change approach was again used for the 2024 and 2025 season. See 2024–

2025 Recreational Management Measures Final Rule, 89 Fed. Reg. at 32,374. In late 2023, 

NMFS set 2024 and projected 2025 specifications for summer flounder and scup, and 2024 

specifications for black sea bass. See Fisheries of the Northeastern United States; 2024 and 

Projected 2025 Specifications for the Summer Flounder and Scup Fisheries, and 2024 

Specifications for the Black Sea Bass Fishery (“2024–2025 Specifications Final Rule”), 88 Fed. 

Reg. 88,266, 88,266 (Dec. 21, 2023).14 Based on these specifications, the Mid-Atlantic Council 

then developed, through a separate rulemaking, 2024 and 2025 management measures for 

summer flounder and scup, as well as 2024 management measures for black sea bass, using the 

HCR. See Fisheries of the Northeastern United States; 2024 and 2025 Summer Flounder and 

Scup, and 2024 Black Sea Bass Recreational Management Measures (“2024–2025 Recreational 

Management Measures Proposed Rule”), 89 Fed. Reg. 13,674, 13,674 (Feb. 23, 2024); see also

14 No new stock assessment was available for black sea bass, and thus NMFS deferred consideration of the 

2025 specifications and management measures for this fish species. See 2024–2025 Specifications Final Rule, 88 

Fed. Reg. at 88,267.
27

2024–2025 Recreational Management Measures Final Rule, 89 Fed. Reg. at 32,374 (“There are 

no changes from the proposed rule.”). 

a) Scup

For scup, based on an estimated harvest of 15.29 million pounds, an 80-percent 

confidence interval of 14.07 to 16.29 million pounds, an average 2024 and 2025 RHL of 12.51 

million pounds, and a “very high” stock category, the matrix recommended a 10-percent 

reduction, resulting in a RHT of 13.76 million pounds. See 2024–2025 Recreational 

Management Measures Proposed Rule, 88 Fed. Reg. at 13,675. This RHT exceeded both the 

2024 and 2025 RHLs of 13.18 million pounds and 11.84 million pounds, respectively. See

2024–2025 Specifications Final Rule, 88 Fed. Reg. at 88,267. Although a 10-percent reduction 

was recommended, no changes to the federal recreational management measures for scup were 

implemented because the states had developed recreational management measures expected to 

result in a 10-percent decrease in harvest, and state waters account for over 90 percent of the 

recreational scup harvest. See 2024–2025 Recreational Management Measures Final Rule, 89 

Fed. Reg. at 32,374; 2024–2025 Recreational Management Measures Proposed Rule, 88 Fed. 

Reg. at 13,675. The 2024 and 2025 recreational scup management measures were thus 

substantially similar to the 2023 management measures: (1) a 10-inch minimum fish size; (2) a 

40-fish per person possession limit; and (3) a year-round open season. Magnuson-Stevens 

Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United 

States; 2024 and 2025 Summer Flounder and Scup, and 2024 Black Sea Bass Recreational 

Management Measures; Correction, 89 Fed. Reg. 49,817, 49,818 (June 12, 2024).

b) Summer Founder and Black Sea Bass 

For summer flounder and black sea bass, NMFS again implemented conservation 

equivalency. Their default federal measures are as follows:
28

For summer flounder, based on an estimated harvest of 8.88 million pounds, an 80-

percent confidence interval of 8.10 to 9.48 million pounds, an average 2024 and 2025 RHL of 

6.35 million pounds, and a “low” stock size category, a 28-percent reduction was recommended. 

“The resulting 2024–2025 [RHT] is equal to the RHL at 6.35 million [pounds].” See 2024–2025 

Recreational Management Measures Proposed Rule, 89 Fed. Reg. at 13,676. The default 

management measures were set as: (1) an 18.5-inch minimum fish size; (2) a 3-fish per person 

possession limit; and (3) an open season from May 8 to September 30. See 2024–2025 

Recreational Management Measures Final Rule, 89 Fed. Reg. at 32,374.

For black sea bass, since no new stock assessment was available, NMFS was unable to 

calculate the percent change and thus did not develop a new RHT. See 2024–2025 Recreational 

Management Measures Proposed Rule, 89 Fed. Reg. at 13,677. The 2023 management measures 

were used as the 2024 default federal management measures: (1) a 15-inch minimum fish size; 

(2) a 5-fish per person possession limit; and (3) an open season from May 15 to September 8. 

See id. Based on these management measures, the 2024 recreational harvest was estimated to be 

8.40 million pounds, which is greater than the 2024 RHL of 6.27 million pounds. See 2024–

2025 Specifications Final Rule, 88 Fed. Reg. at 88,267.

F. Procedural History

On April 10, 2023, within thirty days of the publication of the Framework 17 Final Rule, 

see 16 U.S.C. § 1855(f)(1), plaintiff brought this action, alleging that Framework 17 violated the 

MSA (Count One) and the APA (Count Two), see Compl. ¶¶ 61–83, and seeking vacatur of the 

framework adjustment, see Compl. (Prayer for Relief). The American Sportfishing Association, 

representing recreational anglers, moved to intervene, and its motion was granted. See Min. 

Order (July 27, 2023).
29

On August 28, 2023, over four months after the action was initiated but within thirty days 

of the publication of the final rule adopting the 2023 recreational management measures, plaintiff 

moved to amend its complaint, with consent by defendants and the intervenor. See Pl.’s 

Unopposed Mot. to Amend Compl., ECF No. 21. Plaintiff’s motion was granted, see Min. Order 

(Aug. 29, 2023), adding to Counts One and Two, claims that the 2023 recreational management 

measures violated the MSA (Count Three) and APA (Count Four), see Am. Compl. ¶¶ 86–111, 

and seeking vacatur of the measures, see id. (Prayer for Relief). In late 2023, the parties crossmoved for summary judgment on these four counts.

After briefing on the parties’ cross-motions was completed, the 2024 and 2025 

recreational management measures were finalized. Within thirty days, plaintiff filed, unopposed 

by defendants, and with the Court’s leave, see Min. Order (May 17, 2024), a second amended 

complaint, adding to the four existing counts, claims that the 2024–2025 management measures 

violated the MSA (Count Five) and APA (Count Six), see 2d Am. Compl. ¶¶ 114–39, and 

seeking vacatur of the measures, see id. (Prayer for Relief). In June 2024, the parties 

supplemented their cross-motions on Counts Three and Four to address whether the 2023 

recreational management measures are moot, now that the 2023 fishing season is over, and crossmoved for summary judgment on Counts Five and Six.

Briefing on the parties’ cross-motions, addressing all six counts in the Second Amended 

Complaint, was completed on July 15, 2024, and these motions are now ripe for consideration.

II. LEGAL STANDARD

The MSA incorporates the APA’s “arbitrary and capricious” standard of review. See 16 

U.S.C. § 1855(f)(1) (authorizing judicial review of regulations promulgated under the MSA “to 

the extent authorized by, and in accordance with” the APA); see also Oceana, Inc. v. Ross, 920 
30

F.3d 855, 864 (D.C. Cir. 2019). Under the APA, a court “shall” “hold unlawful and set aside 

agency action, findings, and conclusions found to be,” inter alia, “arbitrary, capricious, an abuse 

of discretion, or otherwise not in accordance with law,” or “in excess of statutory . . . authority.” 

5 U.S.C. § 706(2)(A), (C).

Agency action is arbitrary and capricious “if (1) the agency ‘has relied on factors which 

Congress has not intended it to consider’; (2) the agency ‘entirely failed to consider an important 

aspect of the problem’; (3) the agency’s explanation ‘runs counter to the evidence before the 

agency’; or (4) the explanation ‘is so implausible that it could not be ascribed to a difference in 

view or the product of agency expertise.” Am. Bankers Ass’n v. Nat’l Credit Union Admin., 934 

F.3d 649, 663 (D.C. Cir. 2019) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. 

Co. (“State Farm”), 463 U.S. 29, 43 (1983)). A court engaged in arbitrary and capricious review 

“must ‘not substitute its own judgment for that of the agency,’” and “ordinarily uphold[s] an 

agency’s decision so long as the agency ‘examined the relevant data and articulated a satisfactory 

explanation for its action, including a rational connection between the facts found and the choice 

made.’” Animal Legal Def. Fund, Inc. v. Perdue, 872 F.3d 602, 611 (D.C. Cir. 2017) (alterations 

in original accepted) (quoting State Farm, 463 U.S. at 43).15 Judicial review under the arbitrary 

and capricious standard is “narrow,” State Farm, 463 U.S. at 43, but is “not a rubber stamp,

and . . . must ensure that the agency considered all of the relevant factors,” Oceana, Inc., 920 

F.3d at 863 (citation omitted).

In MSA and APA actions involving cross-motions for summary judgment, such as this 

one, “the district judge sits as an appellate tribunal,” since “[t]he entire case on review is a 

question of law, and the complaint, properly read, actually presents no factual allegations, but 

15 Intervenor’s arguments, focusing on the HCR being the “better approach,” are thus unhelpful. See Int.’s 

Opp’n at 9–12.
31

rather only arguments about the legal conclusion to be drawn about the agency action.” Rempfer 

v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009) (citations omitted). 

III. DISCUSSION

The Second Amended Complaint alleges, in six counts, that Framework 17’s harvest 

control rule (or HCR) used by the Mid-Atlantic Council to regulate recreational fishing for 

summer flounder, scup, and black sea bass (Counts One and Two), and its application to generate 

the 2023 recreational harvest targets (or RHTs) (Counts Three and Four) and the 2024 and 2025 

RHTs (Counts Five and Six) for these three fish species, violate the MSA and APA. The parties 

have cross-moved for summary judgment on all six counts but have briefed, together, the MSA 

and APA claims associated with each rule. Since the MSA incorporates the APA’s “arbitrary 

and capricious” standard, the same approach will be taken here. For the reasons set forth below, 

plaintiff’s challenges to the HCR and the 2023, 2024, and 2025 RHTs fail.

A. Standing

“[N]o principle is more fundamental to the judiciary’s proper role in our system of 

government than the constitutional limitation of federal-court jurisdiction to actual cases or 

controversies.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (citation omitted). 

“The doctrine of standing gives meaning to these constitutional limits by identifying those 

disputes which are appropriately resolved through the judicial process.” Susan B. Anthony List v. 

Driehaus, 573 U.S. 149, 157 (2014) (alteration in original accepted and citation omitted). 

Constitutional standing has three elements: (1) injury-in-fact, i.e., “an invasion of a legally 

protected interest which is (a) concrete and particularized, and (b) actual or imminent, not 

conjectural or hypothetical”; (2) causation, i.e., “a causal connection between the injury and the 

conduct complained of”; and (3) redressability, i.e., “it must be likely, as opposed to merely 

speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 
32

504 U.S. 555, 560–61 (1992) (citations omitted). “In addition, when a representational 

organization like NRDC sues on behalf of its members, it must also show that (1) ‘its members 

would otherwise have standing to sue in their own right’; (2) ‘the interests it seeks to protect are 

germane to the organization’s purpose’; and (3) ‘neither the claim asserted nor the relief 

requested requires the participation of individual members.’” Nat. Res. Def. Council v. Wheeler, 

955 F.3d 68, 76–77 (D.C. Cir. 2020) (quoting Nat. Res. Def. Council v. Env’t Prot. Agency, 755 

F.3d 1010, 1016 (D.C. Cir. 2014)).

Here, plaintiff has satisfied its burden to show an injury caused by the HCR and the 2023, 

2024, and 2025 RHTs likely to be redressed by a favorable decision. Indeed, neither defendants 

nor intervenor challenges plaintiff’s standing to bring this action. Nonetheless, “it is well 

established that [a] court has an independent obligation to assure that standing exists, regardless 

of whether it is challenged by any of the parties.” Summer v. Earth Island Inst., 555 U.S. 488, 

499 (2009). In short, plaintiff alleges that Framework 17 removes ACLs “as a constraint on the 

recreational fishery,” thereby inviting ACL exceedances, encouraging overfishing, and risking 

the health of summer flounder, scup, and black sea bass. Pl.’s Mem. at 36; see Defs. of Wildlife 

v. Gutierrez, 532 F.3d 913, 924 (D.C. Cir. 2008) (explaining that, for purposes of standing, a 

court must presume that petitioners will prevail on the merits). Vacating the HCR and the 2023, 

2024, and 2025 RHTs, as plaintiff requests, would clearly redress these harms.

With respect to associational standing, first, plaintiff has submitted declarations by two 

NRDC members with “deep aesthetic and recreational interests in fishing for scup, black sea 

bass, and summer flounder in federal waters in the Mid-Atlantic.” Pl.’s Mem. at 36; see also 

Lujan, 504 U.S. at 562–63 (“[T]he desire to use or observe an animal species, even for purely 

esthetic purposes, is undeniably a cognizable interest for purpose of standing.”); Ctr. for 
33

Biological Diversity v. Blank, 933 F. Supp. 2d 125, 136–37 (D.D.C. 2013) (finding that 

environmental organization had standing to sue based on individual member’s asserted 

“recreational, aesthetic, and professional interests in the bluefin tuna,” which interests “will be 

jeopardized by the Final Rule” (citation omitted)). Second, “[t]he protection of the marine 

environment and the promotion of sustainable fishery management practices are central to 

NRDC’s organizational purpose.” Pl.’s Mem. at 36; see also Nat. Res. Def. Council v. Wheeler, 

955 F.3d at 78 (permitting “NRDC to proceed in a representational capacity in an environmental 

lawsuit”); Nat. Res. Def. Council v. Env’t Prot. Agency, 755 F.3d at 1016 (same). Third and 

finally, the participation of individual members is not necessary for the claims asserted, i.e., that 

the HCR and the 2023, 2024, and 2025 RHTs violate the MSA and APA, or the relief requested, 

i.e., vacatur of the regulations. Accordingly, plaintiff has standing to bring this action.

B. Framework 17’s Harvest Control Rule (Counts One and Two)

Plaintiff challenges the substance of the HCR as set out in Framework 17, as well as two 

justifications for the rule that defendants purportedly offered, as not in accordance with the MSA 

and arbitrary and capricious. Significant overlap exists between plaintiff’s substantive and 

procedural arguments, which nonetheless are addressed seriatim.

1. Substantive Challenge to the Harvest Control Rule

The contours of the parties’ dispute over the HCR are somewhat elusive since they talk 

past each other in their briefing, with plaintiff focusing on the use of the phrase “annual catch 

limit” in 16 U.S.C. § 1853(a)(15), and defendants focusing primarily on National Standard 1, see

16 U.S.C. § 1851(a)(1). Nonetheless, the parties appear to agree on two critical facts: (1) the 

HCR did not alter the Specifications Framework, the mechanism for specifying ACLs; and 

(2) the annual catch limit is an upper bound on a year’s catch. In broad strokes, then, the parties’ 
34

disputed question is: what does the MSA require that NMFS and the Mid-Atlantic Council do to 

stay below the established ACL?

In a bit of a moving target, plaintiff initially argues that management measures need only 

“manage” to the ACL, Pl.’s Mem. at 27, which is an uncontroversial position. Plaintiff, 

however, then criticizes the HCR for “severing” the development of recreational management 

measures from and “ignor[ing]” the ACL, in violation of the MSA. Id. at 24–25. The HCR, 

however, does no such thing.16 Accountability measures, or AMs, are still triggered only when 

the ACL is exceeded, and the lynchpin in the decision whether to liberalize or restrict 

management measures remains the recreational harvest limit, or RHL. See Framework 17 Final 

Rule, 88 Fed. Reg. at 14,501 (“[T]he Percent Change Approach does not eliminate the 

recreational ACL or RHL, and continues to use both in the process of setting measures, and 

evaluating accountability measures.”). If the RHL is greater than the upper bound of the 80-

percent confidence interval for expected harvest, liberalization is recommended to increase 

expected harvest. In contrast, if the RHL is less than the lower bound of the confidence interval, 

a reduction is recommended to decrease expected harvest. These are the same outcomes as the 

status quo approach. The HCR merely introduces the RHT, an additional reference point that 

has newly accounted for data uncertainty and a stock’s biomass, in an effort to temper the degree 

of change in management measures from year-to-year—not to prevent a change in expected 

harvest in the direction of the RHL.

16 Intervenor’s argument on this point is unhelpful. First, intervenor mischaracterizes plaintiff’s argument by 

framing it as “stating [that] Framework 17 ‘severs’ the ACL from its sole purpose of preventing overfishing.” Int.’s 

Reply at 2 (citing Pl.’s Reply at 3). Plaintiff, instead, argues that Framework 17 “severs recreational management 

measures from the Recreational ACL.” Pl.’s Reply at 3. Second, intervenor argues that “the ACL budgeting 

process for [the Summer Flounder, Scup, and Black Sea Bass FMP] has been nonsensical,” and that “ACLs, ABC 

and OFLs for these fisheries are not functioning properly nor aligned with best available science.” Int.’s Reply at 3–

4. This argument is irrelevant because the Specifications Framework, which is the process of establishing the ACL, 

is not in dispute in the instant action.
35

Plaintiff posits a highly prescriptive role for the ACL, such that the ACL must be the sole 

controlling value for setting management measures; that is, management measures must be set to 

produce an estimated harvest at, or below, the RHL. See Pl.’s Mem. at 25 (criticizing 

Framework 17 for “creat[ing] a wholly different level of recreational landings called the [RHT],” 

and authorizing the setting of “management measures to achieve, but not exceed, this new target” 

(citation omitted)); Pl.’s Suppl. Reply at 10 (“Framework 17 is fundamentally flawed because it 

demotes the Recreational ACL to a mere input in the decision matrix.”). For the reasons set 

forth below, plaintiff fails to persuade.

a) Management Measures Need Not Exclusively Target the ACL

Plaintiff’s principal argument is that the MSA’s Section 1853 means what it says: 

providing for “annual catch limits” means setting “caps not to be exceeded.” Pl.’s Mem. at 23. 

By focusing primarily on the definition of “annual catch limit,” plaintiff ignores that the question 

in dispute concerns not the ACL itself, but the means that NMFS and the Mid-Atlantic Council 

must adopt to achieve the ACL; specifically, whether recreational management measures must 

be calibrated exclusively to the ACL. The three words “annual catch limits” do not answer this 

question.

Section 1853(a)(15) requires fishery management plans, or FMPs, to “establish a 

mechanism for specifying annual catch limits . . . at a level such that overfishing does not occur 

in the fishery, including measures to ensure accountability.” 16 U.S.C. § 1853(a)(15). This text

is unambiguous. Section 1853(a)(15) mandates a mechanism for specifying ACLs at a level 

such that overfishing does not occur. That the Summer Flounder, Scup, and Black Sea Bass 

FMP has satisfied this requirement is undisputed. Indeed, plaintiff does not challenge the 

mechanism by which defendants developed specifications, “including” the ACL, which 
36

mechanism Framework 17 did not alter. See Pl.’s Suppl. Mem. at 2 (conceding that plaintiff 

does not challenge defendants’ development of specifications, “including” ACLs).

Section 1853(a)(15) also mandates that “measures” be enacted “to ensure accountability.” 

No further specificity is provided on how “accountability” must be “ensure[d].” See Oceana, 

Inc. v. Pritzker, 24 F. Supp. 3d 49, 69 (D.D.C. 2014) (“The MSA does not specify what AMs are 

sufficient to satisfy this statutory requirement.”). The plain meaning of “accountability” is “the 

quality or state of being accountable,” “especially,” “an obligation or willingness to accept 

responsibility or to account for one’s actions.” Accountability, Merriam-Webster, 

https://www.merriam-webster.com/dictionary/accountability; see Accountable, MerriamWebster, https://www.merriam-webster.com/dictionary/accountable (“subject to giving an 

account”; “answerable”); see also Accountability, Oxford Eng. Dictionary, 

https://www.oed.com/dictionary/accountability_n (“The quality of being accountable; liability to 

account for and answer for one’s conduct, performance of duties, etc.”). Accordingly, to “ensure 

accountability” to the ACL, a measure needs to impose obligations when the ACL is exceeded to 

prevent future exceedances. The summer flounder, scup, and sea bass AMs do just that, 

triggering “[i]f the recreational ACL is exceeded.” 50 C.F.R. §§ 648.103(d), 

648.123(d), 648.143(d); see also id. §§ 648.103(d)(2)(i), 648.123(d)(2)(i), 648.143(d)(2)(i)

(instructing that adjustments are made to recreational management measures “[i]f the 

Recreational ACL has been exceeded”). Again, plaintiff does not challenge the summer 

flounder, scup, and sea bass AMs, or Framework 17’s modifications to the AMs. Cf. Pl.’s Mem. 

at 34–35.

Given the text of statute, having concluded that defendants have established a mechanism 

for specifying ACLs and have enacted measures to ensure accountability, the analysis of whether 
37

defendants have satisfied Section 1853(a)(15) should end here. Plaintiff, however, tries to take 

Section 1853(a)(15) a step further, seizing on the three words, “annual catch limit,” as the 

lynchpin to argue, based purportedly on the phrase’s plain meaning and legislative history, that 

every regulation must use the ACL as its “north star,” id. at 1, such that every fishery 

management tool must set the ACL as its one and only goal, see id. at 23. The phrase “annual 

catch limit” is not defined, and plaintiff is certainly correct that when a term is not defined, the 

plain meaning controls. See id.; see also United States v. Barnes, 295 F.3d 1354, 1359 (D.C. Cir. 

2002); King v. Burwell, 576 U.S. 473, 486 (2015). Discerning the plain meaning of “annual 

catch limit,” however, does not end this instant dispute, where the question is not how to define 

ACL, but what relationship, if any, the MSA requires between the ACL and season-specific 

recreational management measures. On this question, Section 1853(a)(15) is silent.

National Standard 1 is the only MSA provision cited by the parties that addresses 

management measures and provides that “[c]onservation and management measures shall 

prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery 

for the United States fishing industry.” 16 U.S.C. § 1851(a)(1). By its terms, rather than 

mandate that management measures exclusively target the ACL, NS1 sets different targets for 

management measures: (1) to prevent overfishing, and (2) to achieve optimum yield (or OY), on 

a continuing basis. See infra Part III.B.1.b. While the ACL serves as a proxy for preventing 

overfishing, NS1 requires more than simply achieving that goal and, thus, the ACL is not the 

exclusive guidepost in assessing the adequacy of management measures.

The NS1 Guidelines confirm that management measures do not have to be set to 

immediately restore catch to below the ACL.17 ACL is defined as “a limit on the total annual 

17 The parties appear implicitly to agree that the NS Guidelines are entitled some deference, see Pl.’s Reply at 

13; Defs.’ Opp’n at 25 n.12; see also Guindon v. Pritzker, 31 F. Supp. 3d 169, 198 (D.D.C. 2014) (concluding that 
38

catch of a stock or stock complex, which cannot exceed the ABC, that serves as the basis for 

invoking AMs.” 50 C.F.R. § 600.310(f)(1)(iii). This definition encompasses not only the plain 

meaning of ACL (“a limit on the total catch of a stock”), but also the consequence of exceeding 

the ACL (“invoking AMs”), though no specificity is provided on what AMs must do, once 

invoked.

The NS1 Guidelines then define AMs, which fall into “two categories”: (1) inseason 

AMs, i.e., “management controls to prevent ACLs, including sector-ACLs, from being 

exceeded”; and (2) “AMs for when the ACL is exceeded,” i.e., “management controls . . . to 

correct or mitigate overages of the ACL if they occur.” Id. § 600.310(g)(1). For AMs in the 

latter category that are responsive to overages, the NS1 Guidelines requires councils, “[o]n an 

annual basis,” to “determine as soon as possible . . . if an ACL was exceeded.” Id.

§ 600.310(g)(3).18 If so, “AMs must be implemented as soon as possible to correct the 

operational issue that caused the ACL overage.” Id. The guidelines acknowledge that “[t]he 

type of AM chosen by a Council will likely vary depending on the sector of the fishery, status of 

the stock, the degree of the overage, recruitment patterns of the stock, or other pertinent 

information,” and offer a nonexclusive list of examples of AMs, including “modifications of 

inseason AMs, the use or modification of ACTs, or overage adjustments.” Id.; see also id.

§ 600.310(g)(1) (listing “annual catch compared to the ACL” as only one of several examples of 

data that can “be used to implement AMs”). In sum, while the NS1 Guidelines reinforce that the 

goal of AMs is to reach the ACL, this guidance does not impose a specific period of time (“as 

the NS Guidelines are entitled to “considerable deference” under United States v. Mead Corp., 533 U.S. 218 (2001), 

“in light of their thoroughness, the agency’s expertise, and the administrative formalities involved in their 

promulgation”), but they are cited here only as persuasive authority rather than as being entitled to deference.

18 The summer flounder, scup, and black sea bass fisheries do not have recreational inseason AMs. See 50 

C.F.R. §§ 648.103, 648.123, 648.143.
39

soon as possible”), type of AM, dataset, or method to do so. Cf. Defs.’ Opp’n at 23 (arguing, as 

well, that the use of the word “mechanism” in Section 1853(a)(15) “seems to imply a more 

dynamic process that allows for adjustment of management measures as a fishery is carried out”

(citation omitted)). The NS1 Guidelines certainly do not mandate that each AM, or even the 

suite of AMs, be calibrated to only the ACL. Rather, councils are left with significant discretion 

to craft AMs to respond to ACL overages, instructing that “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.” 50 C.F.R. § 600.310(g)(1).19 

Plaintiff relies on Conservation Law Foundation v. Pritzker, see Pl.’s Mem. at 26, which

addressed a challenge to Framework 50 of New England’s Mutispecies FMP, see 37 F. Supp. 3d 

at 258, limiting commercial fishers’ catch in 2013 to not only their allocated ACL, but also a 10-

percent carryover of their prior year’s catch “[i]n an effort to soften the blow of the lowered” 

ACLs suggested by the SSC, id. at 265–66.

20

 The sum of the ACL and carryover was called 

“total potential catch,” which was, by definition, always greater than the ACL and had exceeded, 

for the 2013 year, the SSC’s recommended ACL for 13 stocks of fish. Conservation L. Found., 

37 F. Supp. 3d at 266. Reasoning that “[t]he ‘total potential catch’ plainly is an ACL, and ACLs 

may not exceed the Committee’s recommended levels,” id. at 267, the Court vacated Framework 

50 and its implementing rule, concluding that the “total potential catch” was a workaround that 

19 Indeed, the final sentence of this provision reads: “For stocks and stock complexes in rebuilding plans, the 

AMs should include overage adjustments that reduce the ACLs in the next fishing year by the full amount of the 

overage, unless the best scientific information available shows that a reduced overage adjustment, or no adjustment, 

is needed to mitigate the effects of the overage.” 50 C.F.R. § 600.310(g)(3) (emphasis added). By specifically 

mandating the reduction of ACLs “by the full amount of the overage” for stocks in rebuilding plans—to which the 

HCR does not apply—the NS1 Guidelines indicate that had NMFS wanted to impose a similar requirement on the 

setting of management measures for all stock, it could have.

20 “Carryover is, in essence, catch that was allocated to fishers but remained uncaught in the prior fishing 

year.” Conservation L. Found., 37 F. Supp. 3d at 260.
40

“circumvented” the ACL, id. at 266. “Common sense would indicate that this procedure—which 

resulted in catch limits above the statutorily permissible levels—contravenes the plain language 

of the Act.” Id. at 266; see also 16 U.S.C. § 1852(h)(6) (providing that ACLs “may not exceed 

the fishing level recommendations” of the SSC).

The instant action is distinguishable. Most fundamentally, Framework 50 replaced the 

ACL with a new value called the “total potential catch,” which, being the sum of the ACL and 

carryover from last year, was, by definition, greater than the ACL. Commercial fishers were 

permitted to catch up to the ACL, plus an additional 10-percent carryover of their prior year’s 

catch. The HCR, in contrast, neither affects the process of establishing the ACL, nor replaces the 

ACL with any other value. Instead, the HCR merely prescribes a method to determine to what 

degree recreational management measures should be adjusted from year-to-year. Certainly,

management measures bear on harvest, and an adjustment of management measures, using the 

HCR, can affect the likelihood that a year’s harvest will remain under the ACL—but these facts 

do not make the RHT an ACL. Under the HCR, the ACL is still calculated via the Specifications 

Process, exceeding the ACL still triggers AMs, the implementation of the recreational ACL is 

still the goal, and the determination of whether recreational catch needs to increase or decrease 

still turns on whether expected harvest is greater or less than the RHL. See Defs.’ Opp’n at 35

(“[T]he instant case involves the process for developing recreational management measures that 

attempt to implement recreational ACLs by predicting how the recreational fisheries will respond 

to particular management measures.” (emphasis omitted)).21

21 In addition, whereas the 10-percent carryover was permitted specifically to allow commercial fishers to 

overshoot the ACL “[i]n an effort to soften the blow of the lowered” ACLs suggested by the SSC, Conservation L. 

Found., 37 F. Supp. 3d at 265, the HCR was adopted to prevent overfishing, by minimizing the effects of the 

uncertainty and imprecision inherent in recreational fishing data, accounting for a stock’s biomass, and adding 

stability to and limiting aggressive swings in recreational management measures.
41

In a last-ditch attempt to tether its argument to the text of the MSA, plaintiff argues that 

Framework 17 violates Section 1854(b)(1), which requires framework adjustments to be 

“consistent with the fishery management plan.” 16 U.S.C. § 1854(b)(1). Specifically, plaintiff 

asserts that when the RHT is substituted for the RHL and the cascading Specifications 

Framework is applied bottom-up to generate, from the RHT, the recreational ACL, ACL, ABC, 

and OFL, these resultant values can be greater than the specifications set for the year. See Pl.’s 

Suppl. Mem. at 17–19, 29–30; see also Pl.’s Reply at 29. This argument falls flat since it is 

based on two flawed assumptions. First, as explained, recreational management measures do not 

have to be calibrated exclusively to the ACL or the corollary RHL. Second, the RHT is used to 

determine management measures—not as a substitute for the RHL, which is a limit on the year’s 

catch. The HCR still looks to the RHL to determine whether and to what extent management 

measures need to be liberalized or restricted; the HCR merely imposes limits to cap the percent 

change from year-to-year, resulting in the RHT, which reflects an effort to make more 

methodological and iterative the process of reaching the RHL. Importantly, when the RHT is 

exceeded, nothing happens, given that RHT is simply an estimated harvest, used to develop 

management measures. In contrast, when the RHL is exceeded, the HCR imposes consequences, 

and when a year’s recreational harvest is greater than the recreational ACL, recreational AMs are 

triggered.

b) Management Measures Must Prevent Overfishing and Achieve 

Optimum Yield on a Continuing Basis

Having established that the MSA does not require the ACL to be the exclusive target of 

management measures, review of what the MSA requires of management measures is helpful to 

avoid any implication that management measures may be set willy-nilly. As indicated above, 

National Standard 1, the only provision cited by the parties that addresses management 
42

measures, sets out the twin aims: (1) to prevent overfishing, and (2) to achieve OY, on a 

continuing basis. 16 U.S.C. § 1851(a)(1); see id. § 1853(a)(1)(C) (providing that FMPs must 

conform with National Standards); 50 C.F.R. § 600.310(f)(4)(iv) (“The dual goals of NS1 are to 

prevent overfishing and achieve OY on a continuing basis.”); see also 16 U.S.C. § 1801(b)(4) 

(listing, as a purpose of the MSA, the need “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”); id. § 1853(a)(1)(A) 

(providing that FMPs must contain measures “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”).

22 In simple terms, 

overfishing is the rate of “fishing mortality that jeopardizes the capacity of a fishery to produce 

the maximum sustainable yield [(or MSY)] on a continuing basis,” 16 U.S.C. § 1802(34), and 

OY is “the amount of fish” that “will provide the greatest overall benefit to the Nation,” id.

§ 1802(33).

In defendants’ view, the changes reflected in the harvest control rule (or HCR) are 

justified to align better with NS1’s instruction that management measures aim to prevent 

overfishing and to achieve OY on a continuing basis. See Defs.’ Opp’n at 27–31. Both OY and 

overfishing are values measured with reference to quantity of fish, indicating that the setting of 

management measures requires consideration of a fish’s stock, for which the HCR uses biomass 

as a proxy. In addition, OY must be achieved “on a continuing basis,” 16 U.S.C. § 1801(b)(4), 

and a stock is not deemed overfished unless its fishing mortality risks the species’ capacity “to 

produce the [MSY] on a continuing basis,” id. § 1802(34). Read together, these provisions 

22 Defendants’ arguments that the HCR complies with NS2 need not be addressed, see Defs.’ Opp’n at 25–27, 

because plaintiff does not contend that the HCR violates this National Standard, see Pl.’s Reply at 28.
43

indicate that the setting of management measures should consider sustainability and longevity, as 

well as results. The HCR attempts to strike this balance, by eliminating extreme fluctuations in 

management measures and adopting an incremental approach to conforming harvest to the RHL, 

which remains the goal of the HCR.

Consider a stock with low biomass. The HCR requires a more conservative approach for 

such stock, which aligns with goal of overfishing. “This is because the conservation risk 

associated with overages is greater for stocks that are less abundant, whereas stocks that are well 

above their target biomass are more robust to higher levels of fishing mortality.” Framework 17 

Final Rule, 88 Fed. Reg. at 14,501. When the RHL is greater than the harvest estimate, the HCR 

recommends a 10-percent liberalization, even if the difference between the RHL and harvest 

estimate is greater than 10 percent, to protect this vulnerable stock. See id. at 14,499. Under the 

status quo approach, management measures would have been liberalized, without restraint, to 

reach the RHL and, in doing so, could place significant pressure on the declining stock, 

especially when the difference between the RHL and harvest estimate is large. See id. at 14,501; 

see Pl.’s Reply at 19 (conceding that if Framework 17 only “temper[ed] sharp liberalizations in 

management measures for low-biomass stocks . . . , there would be no dispute among the parties 

about its legality”). When the RHL is equal to the harvest estimate, whereas the status quo 

requires no change to management measures, the HCR requires a 10-percent reduction to be safe, 

in light of the uncertainty of recreational fishing data. See Framework 17 Final Rule, 88 Fed. 

Reg. at 14,500. When the RHL is less than the harvest estimate, the HCR recommends 

restriction of management measures to reduce catch towards the RHL, capped at a 40-percent 

reduction. See id. Under the status quo approach, management measures would have been 

restricted to make up the full distance between the estimated harvest and the RHL, with no 
44

restrictions. In this particular circumstance, the HCR could set management measures that result 

in a harvest that is greater than the RHL, but given the discretion the MSA gives NMFS, and the 

significant year-to-year swing in data with no guarantee that the swings are due to actual fishing 

trends rather than poor datasets, defendants rationally concluded that a slightly more 

conservative reduction—albeit one that can still be as high as a 40-percent reduction—is prudent 

to ensure that any changes are in the right direction.23

Now compare a stock with very high biomass. When the RHL is greater than the 

estimated harvest, the HCR recommends liberalization of management measures to increase 

catch towards the RHL, capped at a 40-percent increase. See id. at 14,499. The HCR’s approach 

to increasing catch is thus more conservative than the status quo approach for both stock with 

low and stock with very high biomass, reflecting that preventing overfishing, while accounting 

for scientific uncertainty, remains a priority. When the RHL is equal to the estimated harvest, 

the HCR recommends a 10-percent liberalization, and when the RHL is less than the estimated 

harvest, the RHL recommends a 10-percent reduction. See id. at 14,500. In these two 

circumstances, the HCR could set management measures that, alone, result in a harvest that is 

greater than the RHL. In permitting such outcome, however, the HCR heeds NS1’s guidance 

that preventing overfishing must be balanced with achieving OY on a continuing basis and 

decides that, for species in more abundance, the balance is best struck as such. See id. at 14,504 

(“These types of allowances and flexibilities, when the stock size is very high, help to balance 

the needs of the fisheries in an effort to achieve optimal yield, without causing unnecessarily 

severe social and economic disruptions that do not address a corresponding biological need.”); 

see also Nat. Res. Def. Council v. Nat’l Marine Fisheries Serv., 71 F. Supp. 3d 35, 65 (D.D.C. 

23 To further minimize the possibility that RHL overages will have negative biological impacts, the HCR does 

not apply to fish in rebuilding plans. See Framework 17 Final Rule, 88 Fed. Reg. at 14,499.
45

2014) (Brown Jackson, J.) (noting that “[i]t is clear beyond cavil that the Magnuson-Stevens Act 

does not direct the NMFS to consider minimizing overfishing exclusively, nor does it require the 

agency to prioritize that factor to the exclusion of all other considerations,” and that, “had 

Congress charged the Secretary with merely preventing overfishing, the Secretary likely would 

have responded with eliminating fishing together” (alteration in original accepted and citation 

omitted)).24

NMFS struck a difference balance under the status quo approach—one that tilted more in 

favor of preventing overfishing, but with less regard for achieving OY on a continuing basis, 

even for fish with very high biomass. Take, for example, black sea bass. Under the old 

approach, management measures were set yearly in an effort to reduce estimated catch to the 

RHL. Despite these efforts, “the black sea bass RHL was exceeded every year from 2012 

through 2021, except 2017,” with “estimated recreational harvest ranging from 97 to 241 percent 

of the RHL.” Framework 17 Final Rule, 88 Fed. Reg. at 14,504.25 As a result, the black sea bass 

management measures were “the most restrictive they have ever been.” Id. Although this record 

might suggest that black sea bass was at risk of overfishing, black sea bass stock for the 2023 

season had “a very high biomass (150 percent or more above the biomass target).” Id. at 14,502. 

Since the estimated harvest was still “projected to be greater than the upcoming RHL,” id., the 

status quo approach would have required further restrictive management measures, which would 

arguably be inconsistent with attaining OY, as NS1 requires, see 16 U.S.C. § 1802(33) 

24 To be clear, the Court does not suggest that fish with high biomass cannot be overfished, only that NMFS’s 

decision to balance the need to prevent overfishing and the need to achieve OY on a continuing basis, as reflected in 

the HCR, is consistent with the MSA.

25 To the extent plaintiff argues that the adoption of the HCR was arbitrary and capricious because the status 

quo approach is more aligned with the requirement that AMs correct ACL overages “as soon as possible,” Pl.’s 

Reply at 33 (quoting 50 C.F.R. § 600.310(g)(3)), this argument fails, since plaintiff points to nothing in the record to 

support this position, and the record shows that the status quo approach led to repeated ACL overages.
46

(explaining that OY should be evaluated “particularly with respect to food production and 

recreational opportunities”).26

The HCR changed the recommended response in such circumstance, setting management 

measures to achieve a 10-percent reduction in harvest, even if the difference between the 

estimated harvest and RHL is greater than 10 percent. NMFS found that “[t]he conservation risk 

of this temporary approach, which reduces the magnitude of a needed reduction compared to 

what would occur with the current approach, on a stock that is over 150 percent of its biomass 

target is negligible.” Framework 17 Final Rule, 88 Fed. Reg. at 14,502. If, in the next year, 

estimated catch remains higher than the RHL, reductions would occur again, until the stock’s 

biomass is deemed “high” rather than “very high,” and again, until the estimated catch is equal to 

the RHL.27 This gradual approach provides more regulatory stability to the recreational fishing 

industry by allowing NMFS to confirm, through this iterative process, that a given year’s fishing 

data reflects the accurate relationship between the RHL and estimated harvest, before making 

significant changes to the management measures, with little risk of overfishing. See id. (“This 

scenario, where a stock continues to maintain a biomass significantly above the target, does not 

constitute overfishing.”). The HCR also reduces the risk of overreacting and overcorrecting to 

variability in yearly harvest estimates, while keeping as its goal to reach the RHL, albeit 

iteratively. 

26 Under the status quo approach, a similar phenomenon was happening with scup stock. In 2022, despite 

scup biomass being “two times larger than the biomass target,” NMFS proposed “a closure of the Federal scup 

fishery despite the high stock levels,” which “drastic action” was “required” “not because the stock was at risk, but 

because the measures proposed by the [Mid-Atlantic] Council would not fully constrain harvest to the RHL.” 

Framework 17 Final Rule, 88 Fed. Reg. at 14,504. “Ultimately, given the biological, social, and economic 

considerations, [NMFS] did not implement the closure,” but “[t]he fact that the previous process and regulations 

often resulted in a required restrictive action that was not based on an actual risk of overfishing highlights the 

necessity for change.” Id.

27 If a stock’s biomass falls below its biomass target, the more conservative provisions that apply to lower 

stock species will kick in.
47

In this way, the HCR sets management measures that not only help achieve OY, but also 

do so sustainably. See 16 U.S.C. § 1851(a)(1) (explaining that OY should be achieved “on a 

continuing basis”); id. § 1802(34) (defining overfishing as the rate of fishing mortality that risks 

the ability a fish to produce the MSY “on a continuing basis”). By repeatedly ensuring that any 

difference between recreational harvest and the recreational ACL is due to fishing, rather than 

data uncertainty or other non-fishing-related factors, the HCR may also “address and minimize 

both the frequency and magnitude of overages and correct the problems that caused the overage” 

in a shorter time than under the status quo approach. 50 C.F.R. § 600.310(g)(1). Under both the 

HCR and the status quo approach, the adjustment of management measures continues to “ensure 

accountability,” 16 U.S.C. § 1853(a)(15), because they are triggered whenever the RHL is 

exceeded, and because they recommend the adoption of management measures that bring the 

expected harvest closer to the RHL. The primary difference between the two approaches is the 

extent to which these measures are adjusted yearly to bring the expected harvest to the RHL.

Plaintiff lodges various critiques of the HCR, contending, for example, that management 

measures are not the proper vehicle to address defendants’ concerns about poor data and the 

failure to consider biomass, and noting that these concerns “can and should be addressed earlier 

in the catch limit setting process.” Pl.’s Reply at 26. Relatedly, plaintiff criticizes Framework 

17, for “seek[ing] to double count factors already considered by the [SSC] when setting the 

upper limits on catch, thereby improperly yielding higher catch levels for the recreational fishing 

sector.” Id. Since scientific uncertainty (when the OFL is reduced to the ABC) and stock size 

(when calculating the OFL) are already considered during development of the RHL, plaintiff 

suggests that these factors cannot again be considered for recreational fisheries, without also 

being considered for commercial fisheries. See id.
48

Plaintiff’s position, however, is contradicted by the MSA, which expressly acknowledges 

that “recreational fishing and commercial fishing are different activities,” and provides that 

“science-based conservation and management approaches should be adapted to the 

characteristics of each sector.” 16 U.S.C. § 1801(a)(13). Indeed, in other parts of fishery 

management, the Mid-Atlantic Council has drawn distinctions between the recreational and 

commercial sectors, in light of the difficulties of predicting recreational catch. See supra Part I.B

(describing difficulties with regulating the recreational sector). For example, the summer 

flounder, scup, and sea bass AMs, which plaintiff does not challenge, attempt to counteract the 

uncertainty and variability in recreational fishing data, while recognizing that the same need not 

be done for the commercial sector. The AMs evaluate the recreational ACL “based on a 3-year 

moving average comparison of total catch,” 50 C.F.R. §§ 648.103(c), 648.123(c), 648.143(c), 

whereas “[t]he commercial sector ACL [is] evaluated based on a single-year examination of total 

catch,” id. §§ 648.103(a)(1), 648.123(a)(1), 648.143(a)(1). Compare, e.g., id. § 648.103(d)(1) 

(explaining that if “the recreational ACL has been exceeded, then the exact amount, in pounds, 

by which the most recent 3-year average recreational catch estimate exceeded the most recent 3-

year average recreational ACL will be deducted, in the following fishing year, or as soon as 

possible), with id. § 648.103(b)(3)(i) (same for the commercial ACL, but using “the most recent 

year’s commercial catch estimate” and “the most recent year’s commercial ACL”); compare, 

e.g., id. § 648.103(d)(2)(ii)(A) (explaining that a reduction in the recreational ACT will be in 

“the exact amount, in pounds, of the product of the overage, defined as the difference between 

the most recent 3-year average recreational catch and the most recent 3-year recreational ACL, 

and the payback coefficient”), with id. § 648.103(b)(3)(ii)(B) (same for the commercial ACT, but 
49

using only one year’s data).28 The summer flounder, scup, and sea bass AMs also include 

measures to guarantee stability from year-to-year, such as permitting paybacks to “be evenly 

spread over 2 years if doing so allows for the use of identical recreational management measures 

across the upcoming 2 years,” id. §§ 648.103(d)(1), 648.123(d)(1), 648.143(d)(1), without 

offering the same 2-year period for the commercial sector, see id. §§ 648.103(b)(2)(ii), 

648.123(b)(2)(ii), 648.143(b)(2)(ii). In sum, NMFS’s attempt to minimize the effects of 

uncertain and unreliable recreational catch data and to promote regulatory stability for 

recreational fishing by adopting the HCR does not constitute impermissible “double 

count[ing].”29

2. Justification for the Harvest Control Rule

In addition to challenging the substance of Framework 17, plaintiff takes issue with two 

of NMFS’s responses to comments on the Framework 17 Proposed Rule, interpreting these 

responses as justifying the HCR by suggesting that (1) the recreational sector can borrow quota 

from the commercial sector, and (2) reactive AMs save Framework 17 from illegality. See Pl.’s 

Mem. at 28–35. As discussed in more detail below, however, when read in context, neither 

NMFS response actually suffers from the flaws plaintiff identifies, and thus do not support the 

finding plaintiff urges that NMFS “entirely failed to consider an important aspect of the 

problem.” Id. at 32 (quoting State Farm, 463 U.S. at 43); see also Judulang v. Holder, 565 U.S. 

42, 52 n.7 (2011) (noting that “arbitrary or capricious review under the APA” is the “apt 

28 Although only the summer flounder AM is cited, the scup and sea bass AMs include identical provisions.

29 In addition, while the NS1 Guidelines instruct that the ACL may be set below the ABC to account for 

“management uncertainty,” 50 C.F.R. § 600.310(f)(4)(i), and the Omnibus Amendment provides that sector ACLs 

may be reduced to the ACT also to account for management uncertainty, see Omnibus Amendment, 76 Fed. Reg. at 

60,607, the ACL is set equal to the ABC and the sector ACLs are set equal to the sector ACTs for summer flounder, 

scup, and black sea bass.
50

analytical framework” when the agency’s decision “is not an interpretation of any statutory 

language” (alteration in original accepted)).30

a) Borrowing from the Commercial Sector

According to plaintiff, NMFS minimized the possibility that, under the HCR, recreational 

harvest would exceed the recreational ACL, by reasoning that “the recreational sector could 

essentially borrow from the commercial sector’s side of the ledger,” which “was unlikely to use 

its full allocations,” thereby “sav[ing] the fishery from exceeding the overall [ACL].” Pl.’s 

Mem. at 28 (citing Framework 17 Final Rule, 88 Fed. Reg. at 14,502). This reasoning, plaintiff 

argues, is arbitrary and capricious and not in accordance with the law. See id. at 28, 32.31

Plaintiff mischaracterizes the record. One comment letter, submitted in response to the 

Framework 17 Proposed Rule, stated: “[W]hile recreational harvest may be projected to exceed 

an RHL, this does not always, and often has not, resulted in overfishing. Given that the OFL is 

fully allocated, one of the few ways this statement can be true is if commercial under harvest 

exists and is relied upon to offset recreational exceedances.” Framework 17 Final Rule, 88 Fed. 

Reg. at 14,502. In response, NMFS stated: 

It is true that the impact from recreational overages may be “balanced” by a 

commercial underage or vice versa in the evaluation of overfishing. This is not a 

new feature of this approach, nor is it unique to these fisheries. This approach does 

not take away quota from the commercial fishery or prevent commercial vessels 

from harvesting their entire allocated quota, and thus does not represent a de facto

reallocation of quota. It is simply the reality of overfishing and overfished statuses 

30 Even if plaintiff’s characterization of NMFS’s responses were correct, the critiques are largely duplicative 

of arguments made in support of plaintiff’s challenge to the substance of Framework 17, see, e.g., Pl.’s Mem. at 28 

(arguing, again and “[f]or the reasons explained above,” that the ACL “must be treated as actual limits, and fishery 

managers must manage to those limits”); id. at 29 (arguing again that “NMFS may not approve framework 

adjustments or other measures that are inconsistent” with the FMP); Pl.’s Reply at 29 (arguing again that the HCR 

replaces the RHL with the RHT), and are thus unpersuasive, for the reasons explained. See supra Part III.B.1.

31 To the extent plaintiff’s arbitrary-and-capricious argument rests on concerns raised by the Mid-Atlantic 

Council’s own staff and SSC, see Pl.’s Mem. at 15–16, 30–31, these preliminary statements are not the proper focus 

of such review, see Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658–59 (2007) (“[F]ederal 

courts ordinarily are empowered to review only an agency’s final action,” and not the “various statements made by 

the involved agencies’ regional offices during the early stages of consideration”).
51

being determined based on all mortality and not sector-specific considerations. To 

the extent that there is overfishing as a result of a recreational overage, AMs would 

be applied to the recreational fishery, not the commercial fishery.

Id. (emphasis added).

Read in context, NMFS does not justify the possibility of a recreational harvest greater 

than the RHL by pointing to commercial underage. NMFS simply explains that recreational 

harvest overage does not always result in a finding of overfishing. Overfishing, defined as “a 

rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the 

maximum sustainable yield on a continuing basis,” 16 U.S.C. § 1802(34), does not distinguish 

between recreation and commercial harvest. Accordingly, when evaluating whether a species is 

overfished—a separate question from whether the ACL has been exceeded—commercial 

underage might offset recreational overage in the calculation of fishing mortality.

On the flip side, a finding that a species is not overfished does not mean that the 

recreational ACL has not been exceeded. In fact, NMFS confirms several times, in response to 

different comments, that when the recreational harvest exceeds the recreational ACL, 

recreational AMs will still be triggered to reduce recreational fishing and the RHT will be 

reduced. See Framework 17 Final Rule, 88 Fed. Reg. at 14,502–04; see also Defs.’ Opp’n at 41 

(acknowledging, again, that under the HCR, “where recreational harvests are expected to exceed 

the RHL, the recreational harvest target may be reduced in successive years until recreational 

harvests become aligned with the RHL” (citing Framework 17 Final Rule, 88 Fed. Reg. at 

14,500; 2023 Recreational Management Measures Final Rule, 88 Fed. Reg. at 55,417)). 

Reference to any balancing between commercial fishery overage and recreational fishery 

underage is relevant to only the question whether a conservation issue exists; “a sector-specific 

(recreational or commercial) ACL overage may not be a conservation issue, if overall fishing 
52

mortality [across the sectors] does not exceed the target.” Framework 17 Final Rule, 88 Fed. 

Reg. at 14,504.

Plaintiff relies on Guindon v. Pritzker, see Pl.’s Mem. at 39, which concerned the Gulf of 

Mexico Fishery Management Council’s FMP for managing red snapper, 31 F. Supp. 3d 169, 178 

(D.D.C. 2014), to which the Omnibus Amendment does not apply. Under the FMP at issue in 

that case, a red snapper “quota” is set, then divided such that “the commercial sector receives 51 

percent of the quota and the recreational sector receives 49 percent.” Guindon, 31 F. Supp. 3d. at 

178. During the 2013 fishing season, despite reliable evidence that the recreational quota had 

been exceeded, NMFS reopened the fall season, a decision that was determined to create a “de 

facto allocation of quota from the commercial to the recreational sector” and to violate the 

MSA’s requirement of consistency between the FMP and implanting regulations. Id. at 200.

Guindon is plainly distinguishable because the HCR does not affect commercial quota. See

Framework 17 Final Rule, 88 Fed. Reg. at 14,505 (“This action will not constrain . . . the 

commercial fishery.”). If the HCR results in management measures that, in turn, produce an 

actual harvest greater than the recreational ACL, recreational AMs will be triggered, regardless 

of whether the commercial ACL has been exceeded.32

b) Using AMs to Cure Recreational Overages

Plaintiff further argues that NMFS justifies the HCR’s “departure from the [ACL] 

mechanism” based on the availability of AMs “to remedy recreational overages when they 

occur,” which justification is arbitrary and capricious and not in accordance with the law. Pl.’s 

32 For the same reasons, even assuming that National Standard 4 applies to allocations between anglers in 

general and not just “residents of different states,” 16 U.S.C. § 1851(a)(4), plaintiff’s invocation of this standard is a 

nonstarter, given that the HCR does not reallocate between the commercial and recreational sectors. Put differently, 

an overage of the recreational ACL is not excused when the commercial ACL is not also exceeded; rather, 

recreational AMs are triggered whenever the recreational ACL is exceeded.
53

Mem. at 33. To support this argument, plaintiff cites NMFS’s response to three commenters, see

id. (citing Framework 17 Final Rule, 88 Fed. Reg. at 14,505), concerned that the HCR 

“constitutes an illegal de facto reallocation between sectors,” in violation of National Standards, 

Framework 17 Final Rule, 88 Fed. Reg. at 14,505. In response to these comments, NMFS stated, 

in relevant part, that: “This action will not constrain or otherwise penalize or hold the

commercial fishery accountable for the recreational sector’s catch. If recreational overages 

occur, as they have under the previous process, the recreational fishery would be held 

accountable as prescribed by the AMs.” Framework 17 Final Rule, 88 Fed. Reg. at 14,505.

At the outset, when read in context, NMFS does not justify the HCR’s “departure from 

the [ACL] mechanism” based on the availability of AMs. Pl.’s Mem. at 33. NMFS seeks only 

to explain that recreational AMs will still be triggered by overages in recreational harvest. In 

any case, plaintiff’s argument relies on two assumptions: first, that the HCR “decoupl[es] 

recreational management measures from the [RHL] and corresponding [ACL]”; and second, that 

AMs must “remedy recreational overages” by restoring catch to the ACL every year. Id. at 33–

34. These assumptions are not grounded in the MSA, for the reasons already explained. See 

supra Part III.B.1.a.

* * *

For the reasons set forth above, the MSA does not require that annual catch limits (or 

ACLs), serve as the sole target and basis by which recreational management measures are 

developed. Framework 17’s harvest control rule (or HCR), which sets out a new approach to 

determine whether recreational management measures for an upcoming season should remain the 

same, be liberalized, or be restricted, does not violate the MSA by virtue of considering the 
54

recreational harvest target (or RHT), in addition to the recreational harvest limit (or RHL). 

Accordingly, summary judgment is granted in favor of defendants on Counts 1 and 2.

C. 2023, 2024, and 2025 Recreational Harvest Targets (Counts Three, Four, 

Five, and Six)

Plaintiff claims that the 2023 (Counts Three and Four), 2024, and 2025 RHTs (Counts 

Five and Six), which were generated using the HCR, violate the MSA and APA. In its briefing, 

plaintiff appears to narrow all four claims. For the 2023 season, plaintiff challenges the RHTs 

for only scup and black sea bass, and not summer flounder because, when the HCR yielded 

conflicting results for summer flounder, NMFS abandoned the HCR and simply maintained 

status quo management measures. See Pl.’s Reply at 19 n.10. For the 2024 season, plaintiff 

again challenges the RHTs for only scup and black sea bass, and not summer flounder because 

the 2024 RHT and RHL for summer flounder align. See Pl.’s Suppl. Mem. at 5–6; Defs.’ Suppl. 

Opp’n at 23.33

Before turning to the merits of plaintiff’s claims, defendants’ arguments that Counts 

Three and Four are moot now that the 2023 fishing season is over will first be addressed, since 

mootness affects this Court’s subject matter jurisdiction.

1. Mootness

“A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes 

of Article III—when the issues presented are no longer live or the parties lack a legally 

cognizable interest in the outcome.” Sandpiper Residents Ass’n v. Dep’t of Hous. & Urban Dev., 

106 F.4th 1134, 1141 (D.C. Cir. 2024) (citation omitted). “[I]f an event occurs while a case is 

pending . . . that makes it impossible for the court to grant any effectual relief whatever to a 

33 Indicative of the shortcomings of the current model, which uses the ACL as the only metric, summer 

flounder is currently subject to overfishing, see Determination of Overfishing or an Overfished Condition, 88 Fed. 

Reg. at 76,188, whereas scup and black sea bass remain in abundance.
55

prevailing party, the [action] must be dismissed.” Church of Scientology of Cal. v. United States, 

506 U.S. 9, 12 (1992) (citation omitted); see also McBryde v. Comm. to Rev. Cir. Council 

Conduct & Disability Orders of Jud. Conf. of U.S., 264 F.3d 52, 55 (D.C. Cir. 2001) (“If events 

outrun the controversy such that the court can grant no meaningful relief, the case must be 

dismissed as moot.”). When determining mootness, a court presumes that “plaintiff will 

‘prevail’ unless her argument that the relief sought is legally available and that she is entitled to 

it is ‘so implausible that it is insufficient to preserve jurisdiction.’” Almaqrami v. Pompeo, 933 

F.3d 774, 779 (D.C. Cir. 2019) (quoting Chafin v. Chafin, 568 U.S. 165, 174 (2013)). As long as 

“there is ‘any chance’ that relief will be effective in securing what she seeks, she has an interest 

in obtaining it.” Id. (quoting Mission Prod. Holdings, Inc. v. Tempnology, LLC, 587 U.S. 370, 

377 (2019)).

This “demanding standard” to find mootness is not met here. Tempnology, 587 U.S. at 

377. Although the 2023 fishing season ended on December 31, 2023, and the 2023 RHTs are no 

longer in effect, the 2023 RHTs were used to generate the 2024 RHTs, which were, in turn, used 

to set the 2024 management measures that are currently binding. As a reminder, to develop the 

2024 RHTs, the expected 2024 recreational harvest had to be estimated, using the 2023 

management measures, then compared to the 2024 RHL to determine whether liberalization or 

restriction of the 2023 management measures was necessary for the 2024 fishing season. In 

other words, the 2023 RHTs and corresponding management measures form the basis of the 

2024 RHTs and corresponding management measures, and thus vacatur of the 2023 RHTs, 

plaintiff’s requested relief, would still have consequences.

34

34 To the extent plaintiff argues that the 2023 recreational management measures could become operative 

again based on the outcome of this litigation, see Pl.’s Suppl. Reply at 3, this argument is unpersuasive, see Citizens 

for Responsible Gov’t State Pol. Action Comm. v. Davidson, 236 F.3d 1174, 1184 (10th Cir. 2000) (rejecting the 

idea that “the mere filing of a lawsuit is sufficient to resurrect Article III jurisdiction over the repealed statutes”); 
56

Defendants’ principal argument in response is that “NMFS promulgated the 2024 and 

2025 Recreational Management Measures for each species based on a new application of the 

Harvest Control Rule.” Defs.’ Suppl. Opp’n at 9; see also Defs.’ Suppl. Reply at 2 (“[E]ach 

application of the Harvest Control Rule yields different results depending on the facts as they 

exist each year.”). At the outset, this argument is belied by the record as to black sea bass. 

When NMFS was unable to apply the HCR to black sea bass for the 2024 season because no new 

stock assessment for black sea bass was available, the 2023 management measures were carried

over to the 2024 season. See 2024–2025 Recreational Management Measures Proposed Rule, 89 

Fed. Reg. at 13,677 (“In the absence of a new assessment this year, the Monitoring Committee, 

Council, and Board recommended maintaining the current 2023 measures through 2024, such 

that 2024 is treated as ‘year two’ of the management measures.”).

While the HCR was newly applied to generate the 2024 recreational management 

measures for summer flounder and scup, as described by NMFS itself, this application used the 

2023 RHT and management measures. For scup, “[t]he median coastwide projected 2024–2025 

harvest under 2023 measures is 15.29 million pounds.” Id. at 13,675 (emphasis added). Since 

this estimated harvest was higher than the 2024–2025 RHL, a reduction in the 2023 management 

measures was recommended. See id. Since the states had developed recreational management 

measures expected to result in a 10-percent decrease in harvest, no change was ultimately 

recommended to the 2024–2025 federal management measures, meaning that the 2023 

management measures were carried over for the 2024–2025 fishing seasons. See id.

The default federal measures for summer flounder were calculated with similar reliance 

on the 2023 management measures. “[T]he median projected harvest in 2024–2025” was 

Miller v. Benson, 68 F.3d 163, 164–65 (7th Cir. 1995) (rejecting argument that a claim is not moot simply because 

the statutory scheme could be restored if plaintiffs prevail in the lawsuit).
57

estimated to be 8.88 million pounds “under status quo (i.e., 2023) measures.” Id. at 13,676.

Since this estimated harvest is greater than the 2024–2025 RHL, a reduction of the 2023 

management measures for the 2024–2025 seasons was recommended and generated.35 See id. In 

sum, the 2024 recreational management measures for summer flounder, scup, and black sea bass 

were each based on the 2023 recreational management measures, such that vacatur of the 2023 

recreational management measures would still offer plaintiff’s some, albeit minimal, relief.

Citing a plethora of cases, defendants then argue that when “a regulation has been 

superseded, a challenge to the earlier rule is moot.” Defs.’ Suppl. Opp’n at 12 (quoting Oceana, 

Inc. v. Evans, No. 4-cv-811, 2005 WL 555416, at *23 (D.D.C. Mar. 9, 2005)). Indeed, it is a 

“perfectly uncontroversial and well-settled principle of law [that] when an agency has rescinded 

and replaced a challenged regulation, litigation over the legality of the original regulation 

becomes moot.” Akiachak Native Cmty. v. Dep’t of Interior, 827 F.3d 100, 113 (D.C. Cir. 2016). 

Unlike the cases cited by defendants, however, the 2023 recreational management measures were 

not rescinded and replaced by an entirely new rule that addressed some of plaintiff’s requested 

relief. See, e.g., New York v. Raimondo, No. 19-cv-9380, 2021 WL 1339397, at *1–2 (S.D.N.Y. 

Apr. 9, 2021) (finding moot plaintiff’s challenge to the 1993 Allocation Rule and its application 

to generate 2020 and 2021 summer flounder commercial quotas, where a new 2020 Allocation 

Rule was promulgated and applied to generate a new 2021 summer flounder commercial quota); 

Oceana, Inc. v. Locke, 831 F. Supp. 2d 95, 124 (D.D.C. 2011) (finding plaintiff’s action moot 

35 To the extent defendants argue that these default federal measures are irrelevant since conservation 

equivalency was approved for summer flounder and black sea bass, see Defs.’ Suppl. Opp’n at 9–10, this argument 

fails because the combination of state or regional measures must constrain landings to the RHTs, calculated using 

the HCR, see 2024–2025 Recreational Management Measures Proposed Rule, 89 Fed. Reg. at 13,675; 2024–2025 

Recreational Management Measures Final Rule, 89 Fed. Reg. at 32,374.
58

where “NMFS subsequently took the requested action through a new amendment or framework 

adjustment while the case was pending”).

This leaves defendants’ reliance on Gulf of Maine Fisherman’s Alliance v. Daley, 292 

F.3d 84 (1st Cir. 2002). There, the First Circuit found that plaintiff’s challenge to Framework 25 

of a New England Fisheries Management Council FMP was moot, given that “it ha[d] been 

replaced by a series of subsequent Frameworks,” and “every measure introduced in Framework 

25 . . . is now governed by a later Framework.” Id. at 88. Although parts of Framework 25 were 

adopted as “unmodified” in the new frameworks, the First Circuit emphasized that these 

elements were “expressly considered and re-adopted in later Frameworks.” Id. If the instant 

action involved a new framework adjustment that reconsidered and readopted the HCR, or if the 

2024 recreational management measures were calculated independent of the 2023 data, Gulf of 

Maine Fisherman’s Alliance would be more persuasive. The circumstances here, however, are

distinguishable since, unlike in Gulf of Maine Fisherman’s Alliance, the 2024 RHT, which was

calculated based on the 2023 RHT, and the 2024 management measures, which were determined 

by how much the 2023 management measures needed to be adjusted, are not “based on later and 

totally different data.” Id. 

In sum, Counts Three and Four are not moot because vacatur of the 2023 management 

measures would still grant plaintiff’s some relief.36 Under the HCR, the 2024 management 

measures are the 2023 management measures or those measures, reduced or liberalized by a 

certain percentage change, which percentage change is also calculated based on the 2023 

management measures. Accordingly, if the 2023 management measures were vacated, the 2024 

management measures, which are currently in effect, would have to be recalculated.

36 According, the parties’ arguments regarding the application of the capable-of-repetition-yet-evading-review 

exception to mootness need not be addressed.
59

2. Merits

On the merits, plaintiff’s claims, in Counts Three through Six, that the 2023, 2024, and 

2025 RHTs violate the MSA and APA, are substantially similar to the MSA and APA claims in 

Counts One and Two. Indeed, the parties offer no new arguments, merely “incorporating by 

reference” their legal arguments regarding Framework 17 generally, and using the 2023, 2024, 

and 2025 RHTs as additional “context” to support their respective positions. Pl.’s Suppl. Mem. 

at 10; see also id. at 15–16; Defs.’ Suppl. Mem. at 18. The additional “context” provided by 

plaintiff are the RHL and RHTs for summer flounder and scup for the 2023, 2024, and 2025 

seasons. See supra Part I.E.3–4 (describing application of the HCR to the 2023, 2024, and 2025 

seasons). 

Using this data, plaintiff illustrates that the HCR can result in RHTs that are greater than 

the RHL and argues that by setting management measures to result in the RHT, rather than the 

RHL, the HCR ignores the ACL’s purpose as a hard limit on catch. See, e.g., Pl.’s Mem. at 26–

28. Take scup for the 2024 fishing season as an example. The RHT was 13.76 million pounds, 

which was greater than the 2024 and 2025 RHLs of 13.18 million pounds and 11.84 million 

pounds, respectively. Pl.’s Suppl. Mem. at 13. When combined with dead discards, the sum is 

15.91 and 15.83 million pounds for 2024 and 2025, respectively, which is greater than the 

recreational ACL in each of those years. Id. When the commercial ACL is then added, the total 

is 44.39 and 41.16 million pounds for 2024 and 2025, respectively, which values exceed the 

ABC for both seasons and the OFL for the 2025 season. Id.; see also Pl.’s Reply at 17–19

(arguing the same for 2023 RHT). Plaintiff then points out that if the RHT is treated as the RHL 

and used to calculate the recreational ACL, and if this newly calculated recreational ACL is then 

compared to the commercial ACL, the recreational ACL would account for 36 percent of the 
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ACL in 2024 and 40 percent of the ACL in 2025—higher than the 35 percent allocated by the 

FMP. See Pl.’s Suppl. Mem. at 16.

Plaintiff’s concern that calibrating management measures to the RHT might result in 

catch that exceeds the recreational ACL, and thus the ACL, ABC, and OFL, is valid as a matter 

of policy, but the argument is based on the assumption that RHTs are intended to be a substitute 

for RHLs, an assumption that is flawed for the reasons already explained. See supra Part 

III.B.1.37 Whereas the RHL, having been derived from the ACL, is a limit on catch, the RHT is 

used to develop management measures by predicting catch. Put another way, if the ACL is 

exceeded, management measures are triggered, and if the RHL is greater than the expected 

recreational harvest, the HCR requires management measures that reduce expected harvest. The 

RHT, in contrast, is an estimated value generated in the process of setting management 

measures, which, if exceeded, carries no obvious consequences.

Consideration of black sea bass helps to illustrate that the RHT and RHL serve different 

purposes. In the 2016, 2017, and 2018 seasons, both the recreational and commercial sectors 

exceeded their respective ACLs for black sea bass, with catch being so high in 2016 that it 

equaled the OFL. See AR 1842–43. In none of these years, however, was black sea bass 

deemed overfished. Under the status quo approach, when the 2016 recreational ACL was 

exceeded, the 2017 management measures would have been set to target exclusively the RHL. 

When the outcome of such targeting remained a recreational harvest that exceeded the 2017 

37 For the 2023 season, the RHT was 12.88 million pounds and the RHL was 9.27 million pounds. 

Comparison of the 2023 and 2024–2025 RHTs and RHLs supports NMFS’s justification for the HCR in two 

respects: by illustrating that (1) the RHL can fluctuate wildly, such as from 9.27 to 13.18 million pounds between 

2022 and 2023, and (2) although the RHT remains higher than the RHLs, the HCR moves the RHT closer to the 

RHL from year-to-year.
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recreational ACL, AMs were triggered. Put differently, under this status quo approach, the ACL 

served two discrete purposes, as the target of management measures, and the trigger for AMs.

The HCR changed the status quo approach by replacing the RHL with the RHT as the 

target of management measures, while keeping the ACL as the trigger for AMs. As confirmed 

by the NS1 Guidelines and discussed in detail above, see supra Part III.B.1.a, this is all the MSA 

requires—that measures exist “to ensure accountability,” 16 U.S.C. § 1853(a)(15). Nothing in 

the MSA requires the RHL to serve as the exclusive target for management measures.

For the 2023 season, the first season the HCR was applied, the RHL for black sea bass 

was 6.57 million pounds and the expected harvest under 2022 management measures was 7.93 

million pounds, and thus a restriction of catch was necessary. See 2023 Recreational 

Management Measures Final Rule, 88 Fed. Reg. at 55,413. The HCR recommended a 10-

percent fixed reduction, resulting in a RHT of 7.14 million pounds. See id. Management 

measures were then calibrated to the RHT, which process involves predicting, while factoring in 

difficulties in predicting recreational harvest, how recreational fisheries will react to different 

management measures.

While the RHT is greater than the RHL, see Defs.’ Opp’n at 18 (conceding that “a 

recreational harvest target may result at a level above the RHL in a given year”), plaintiff is 

incorrect in suggesting that the RHT is used to bypass, ignore, or supersede the RHL. NMFS has 

simply chosen to accept the risk that the management measures generated using the RHT might 

result in actual harvest that exceeds the RHL, after consideration of several factors. First, the 80-

percent confidence interval of this RHT for an estimated harvest, is 6.45 to 7.77 million pounds, 

meaning that the 2023 management measures were calibrated such that the actual harvest would 

likely be within this range of values 80 percent of the time. The RHL is within this 80-percent 
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confidence interval, making it possible that actual catch will not exceed the RHT. Second, 

benefits exist to minimizing “‘the social and economic impacts of the large adjustments 

sometimes implemented under the previous system that were driven by large statistical 

fluctuations in the data used to estimate catch,’ which were subsequently learned to be inaccurate 

or unnecessary.” Defs.’ Opp’n at 18 (quoting Framework 17 Final Rule, 88 Fed. Reg. at 

14,501). Third, even if the RHL is ultimately exceeded, the risk of overfishing is low, in part, 

because black sea bass is classified as a “very high” stock, with a population size significantly 

above the management target for this species. Cf. N.C. Fisheries Ass’n v. Evans, 172 F. Supp. 2d 

792, 800 (E.D. Va. 2001) (“Based on the way optimum yield is defined under Amendment 2 to 

the summer flounder FMP, overages in a particular segment of the fishery from year to year do 

not preclude attainment of optimum yield.”).

When the 2023 season is over, the actual harvest is calculated. If actual catch exceeded 

the RHL, AMs will be triggered, and management measures will again have to be tightened until 

the RHL is reached. To be sure, in a perfect world with perfect data, setting management 

measures to target the RHL might increase the likelihood that actual harvest will be at or below 

the RHL in a given year, but nothing in the MSA prohibits NMFS from striking the balance with 

the approach adopted in the HCR, which still targets the RHL but uses a more cautious and 

iterative approach to create more predictability and stability from year-to-year and to improve 

confirmation that any distance between the RHL and actual harvest is due to recreational catch 

rather than poor data.

In sum, the additional “context” provided by plaintiff does not change the analysis above,

see supra Part III.B, and, for those reasons, summary judgment will be granted in favor of 

defendants on Counts Three through Six. 
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IV. CONCLUSION

Under the MSA, fishery management plans (or FMPs) “shall” “establish a mechanism for 

specifying annual catch limits. . . , at a level such that overfishing does not occur in the fishery, 

including measures to ensure accountability.” 16 U.S.C. § 1853(a)(15). FMPs must also 

conform to the National Standards, see id. § 1853(a)(1)(C), including National Standard 1, which 

provides that “[c]onservation 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). All framework adjustments, in addition, must be “consistent 

with the fishery management plan.” Id. § 1854(b)(1). None of these provisions require that 

annual catch limits (or ACLs), serve as the sole target and basis by which recreational 

management measures are developed, regardless of stock size and regardless of whether catch is 

expected to result in overfishing.

Framework 17’s harvest control rule (or HCR) sets out a new approach for determining 

whether the previous year’s recreational management measures should stay the same or be 

adjusted for the Mid-Atlantic Council’s Summer Flounder, Scup, and Black Sea Bass FMP. 

Under the prior status quo approach, the determination of whether, and to what extent, 

management measures needed to be made more restrictive or liberalized to reach an expected 

harvest, turned exclusively on the RHL. Under the HCR, the determination of whether 

management measures need adjustment still turns on the RHL, but the determination of the

extent these measures should be adjusted considers not only the RHL, but also the recreational 

harvest target (or RHT), a value that takes into account a stock’s biomass, the need for stability, 

and the uncertainty laden in recreational fishing data. The introduction of the RHT changes 

neither the “mechanism for specifying annual catch limits” (the Specifications Framework), nor 
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the existence or trigger of “measures to ensure accountability” (exceeding the ACL). Id.

§ 1853(a)(15). The HCR thus does not violate the MSA simply by including consideration of the 

RHT.

Accordingly, for the foregoing reasons, defendants’ Cross-Motions for Summary 

Judgment, ECF Nos. 30, 46, are GRANTED; plaintiff’s Motions for Summary Judgment, ECF 

Nos. 25, 42, are DENIED; and intervenor’s Cross-Motions for Summary Judgment, ECF Nos. 

27, 43, are DENIED AS MOOT.

An order consistent with this Memorandum Opinion will be entered contemporaneously.

Date: September 5, 2024

__________________________

BERYL A. HOWELL

United States District Judge