`
`Case 1:22-cv-01260 Document 1 Filed 05/06/22 Page 1 of 44
`
`J. Timothy Hobbs, Esq. (DC Bar #976470)
`Tim.Hobbs@klgates.com
`K&L GATES LLP
`925 Fourth Avenue, Suite 2900
`Seattle, WA 98104
`Telephone: (206) 370-7664
`Facsimile:
`(206) 623-7022
`
`
`Michael F. Scanlon, Esq. (DC Bar #479777)
`Michael.Scanlon@klgates.com
`K&L GATES LLP
`1601 K Street, N.W.
`Washington, DC 20006
`Telephone: (202) 778-9000
`Facsimile:
`(202) 778-9100
`
`Attorneys for Plaintiffs
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`
`A.P. BELL FISH COMPANY, INC.
`
`4600 124th Street West
`
`Cortez, FL 34215
`No. ____
`
`
`SOUTHERN OFFSHORE FISHING
`
`COMPLAINT FOR
`ASSOCIATION, INC.
`DECLARATORY AND
`13417 Gulf Lane #B
`INJUNCTIVE RELIEF
`Madeira Beach, FL 33708
`
`
`
`and
`EXPEDITED REVIEW
`
`REQUESTED PURSUANT TO
`GULF OF MEXICO REEF FISH
`16 U.S.C. § 1855(f)(4)
`SHAREHOLDERS’ ALLIANCE
`1902 Wharf Rd.
`
`Galveston, TX 77550
`
`
`
`
`
`v.
`
`
`GINA RAIMONDO, in her official capacity
`as Secretary of the United States Department
`of Commerce
`Office of the Secretary
`Room 5858
`14th St. and Constitution Ave., NW
`Washington, DC 20230
`
`
`Plaintiffs,
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE
`RELIEF - 1
`
`
`K&L GATES LLP
`925 FOURTH AVENUE, SUITE 2900
`SEATTLE, WA 98104
`TELEPHONE: (206) 623-7580
`FACSIMILE: (206) 370-6084
`
`

`

`
`
`Case 1:22-cv-01260 Document 1 Filed 05/06/22 Page 2 of 44
`
`NATIONAL OCEANIC AND
`ATMOSPHERIC ADMINISTRATION
`Department of Commerce
`Room 5128
`14th St. and Constitution Ave., NW
`Washington, DC 20230
`
`and
`
`NATIONAL MARINE FISHERIES
`SERVICE
`Department of Commerce
`Room 14636
`1315 East-West Highway
`Silver Spring, MD 20910
`
`
`
`
`
`
`
`
`
`
`Defendants.
`
`
`
`1.
`
`I.
`This case is about the government’s allocation of fishing privileges for catching red
`
`INTRODUCTION
`
`grouper in the Gulf of Mexico between two user groups. The challenged agency action takes fish
`
`away from the commercial fishing sector, and gives them to the recreational fishing sector. But
`
`the recreational sector is wasteful, catching and throwing back millions of red grouper each year,
`
`of which hundreds of thousands die. Allocating more fish to the recreational sector will increase
`
`this waste, reduce the amount of fish available for consumption, and increase the risk of
`
`overfishing the stock. These outcomes are unlawful.
`
`2.
`
`This case is the latest in a series of cases challenging defendants’ unlawful
`
`favoritism of the recreational fishing sector in the Gulf of Mexico. In 2014 this Court ruled that
`
`defendants violated multiple provisions of law by repeatedly failing to hold the recreational sector
`
`to its catch limits designed to conserve the stock. Guindon v. Pritzker, 31 F. Supp. 3d 169 (D.D.C.
`
`2014). In 2017 this Court ruled that defendants unlawfully reallocated fishing privileges to the
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE
`RELIEF - 2
`
`
`K&L GATES LLP
`925 FOURTH AVENUE, SUITE 2900
`SEATTLE, WA 98104
`TELEPHONE: (206) 623-7580
`FACSIMILE: (206) 370-6084
`
`

`

`
`
`Case 1:22-cv-01260 Document 1 Filed 05/06/22 Page 3 of 44
`
`recreational sector and unfairly harmed the commercial sector. Guindon v. Pritzker, 240 F. Supp.
`
`3d 181 (D.D.C. 2017). A third case involved defendants’ egregious re-opening of a recreational
`
`fishing season that defendants admitted in the Federal Register would cause the recreational sector
`
`to “substantially exceed its annual catch limit,” 82 Fed. Reg. 27777, 27779 (June 19, 2017). That
`
`case was not adjudicated on the merits, but defendants nevertheless pledged to this Court that the
`
`season re-opening was a “one-time action” they would not repeat. See Joint Motion to Hold Case
`
`in Abeyance, Ocean Conservancy v. Ross, No. 1:17-cv-1408, Dkt. # 38 (D.D.C. Dec. 19, 2017) at
`
`¶¶ 1(a), 1(c).
`
`3.
`
`The Court is called upon once again to review defendants’ actions that unlawfully
`
`benefit the recreational fishing sector, harm the commercial fishing sector and seafood consumers,
`
`and jeopardize conservation. The action at issue is Amendment 53 to the Fishery Management
`
`Plan for the Reef Fish Resources of the Gulf of Mexico (“Amendment 53”). Amendment 53
`
`increases the recreational sector’s percentage allocation of the Gulf of Mexico red grouper catch
`
`limit from 24 percent to 40.7 percent, and correspondingly decreases the commercial sector’s
`
`allocation from 76 percent to 59.3 percent. But because the recreational sector catches, kills, and
`
`discards so many fish, Amendment 53 also reduces the total catch limit governing both sectors’
`
`fishing to account for the increased waste that will occur in the recreational sector. Reallocation
`
`thus reduces the total amount of fish available for consumption by all users, and unfairly forces
`
`the commercial sector to subsidize the waste in the recreational sector. And because recreational
`
`anglers are not required to report to defendants how many red grouper they keep or discard,
`
`increasing their allocation increases management uncertainty and the risk that too many fish will
`
`be caught to sustain the stock, as NMFS itself concluded in Amendment 53. These outcomes are
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE
`RELIEF - 3
`
`
`K&L GATES LLP
`925 FOURTH AVENUE, SUITE 2900
`SEATTLE, WA 98104
`TELEPHONE: (206) 623-7580
`FACSIMILE: (206) 370-6084
`
`

`

`
`
`Case 1:22-cv-01260 Document 1 Filed 05/06/22 Page 4 of 44
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`the opposite of what Congress intended when it adopted the Magnuson-Stevens Fishery
`
`Conservation and Management Act.
`
`4.
`
`Amendment 53 is both substantively deficient and procedurally improper.
`
`Amendment 53 nominally takes effect on June 1, 2022; however, defendants effectuated this
`
`reallocation over two years ago, prior to undertaking any public rulemaking process. Since 2020
`
`defendants have allocated to the recreational sector 40 percent of the total red grouper harvest, the
`
`allocation amount set by Amendment 53, even though the approved recreational sector allocation
`
`in 2020 and 2021 was only 24 percent. Amendment 53 is a results-based, post-hoc rulemaking to
`
`adopt actions defendants already implemented.
`
`5.
`
`Amendment 53 is unlawful and the Court should strike it down.
`
`II.
`This action arises under the Magnuson-Stevens Fishery Conservation and
`
`JURISDICTION AND VENUE
`
`6.
`
`Management Act (“MSA”), 16 U.S.C. §§ 1801-1884; the Administrative Procedure Act (“APA”),
`
`5 U.S.C. §§ 701-706, and the National Environmental Policy Act of 1969 as amended (“NEPA”),
`
`43 U.S.C. §§ 4321 et seq.
`
`7.
`
`This Court has jurisdiction over this action pursuant to the MSA, which provides
`
`that “[t]he district courts of the United States shall have exclusive jurisdiction over any case or
`
`controversy arising under” the MSA. 16 U.S.C. § 1861(d). The MSA also provides that
`
`regulations promulgated by NMFS, and actions taken by NMFS under regulations implementing
`
`a fishery management plan (“FMP”), shall be subject to judicial review “if a petition for such
`
`review is filed within 30 days after the date on which the regulations are promulgated or the action
`
`is published in the Federal Register, as applicable.” 16 U.S.C. § 1855(f). The Plaintiffs are
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE
`RELIEF - 4
`
`
`K&L GATES LLP
`925 FOURTH AVENUE, SUITE 2900
`SEATTLE, WA 98104
`TELEPHONE: (206) 623-7580
`FACSIMILE: (206) 370-6084
`
`

`

`
`
`Case 1:22-cv-01260 Document 1 Filed 05/06/22 Page 5 of 44
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`challenging a final rule published in the Federal Register on May 2, 2022, that implements
`
`Amendment 53 and modifies the catch limits for the commercial and recreational sectors to reflect
`
`their new allocations. 87 Fed. Reg. 25573 (May 2, 2022) (“Amendment 53 Final Rule”). Plaintiffs
`
`filed this Complaint within thirty days after the date of the Amendment 53 Final Rule in accordance
`
`with 16 U.S.C. § 1855(f).
`
`8.
`
`This Court further has jurisdiction over this action pursuant to the APA, which
`
`provides that final agency action for which there is no other adequate remedy in a court is subject
`
`to judicial review. 5 U.S.C. §§ 701-706.
`
`9.
`
`This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331
`
`(federal question jurisdiction), which grants the district courts “original jurisdiction of all civil
`
`actions arising under the . . . laws . . . of the United States,” and 28 U.S.C. § 1361, which grants
`
`the district courts “original jurisdiction of any action in the nature of mandamus to compel an
`
`officer or employee of the United States or any agency thereof to perform a duty owed to the
`
`plaintiff.”
`
`10.
`
`This Court has the authority to grant declaratory relief pursuant to the Declaratory
`
`Judgment Act, 28 U.S.C. §§ 2201-2202, and may grant relief pursuant to the MSA, 16 U.S.C. §§
`
`1861(d) and 1855(f), as well as the APA, 5 U.S.C. § 706.
`
`11.
`
`Venue is properly vested in this judicial district under 28 U.S.C. § 1391(b) and (e),
`
`because the defendants are officers or employees of the United States and are located in this district
`
`and because a substantial part of the events and omissions which gave rise to this action occurred
`
`in this district.
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE
`RELIEF - 5
`
`
`K&L GATES LLP
`925 FOURTH AVENUE, SUITE 2900
`SEATTLE, WA 98104
`TELEPHONE: (206) 623-7580
`FACSIMILE: (206) 370-6084
`
`

`

`
`
`Case 1:22-cv-01260 Document 1 Filed 05/06/22 Page 6 of 44
`
`III.
`Plaintiff A.P. Bell Fish Company, Inc. (“A.P. Bell”) is a commercial fishing, fish
`
`PARTIES
`
`12.
`
`processing, and wholesale and retail fish distribution business located in Cortez, Florida. A.P. Bell
`
`has been in business for over 80 years. Through its various subsidiaries, A.P. Bell owns individual
`
`fishing quota (“IFQ”) shares issued by NMFS that authorize it to harvest a fixed portion of the
`
`commercial sector’s annual catch limit (“ACL”) for red grouper in the Gulf of Mexico. In
`
`accordance with its IFQ shares, A.P. Bell receives from NMFS and holds annual IFQ allocation
`
`for red grouper authorizing it to harvest a fixed number of pounds of red grouper in specific years
`
`including in 2022. A.P. Bell owns eighteen commercial fishing vessels, of which thirteen are used
`
`primarily to harvest red grouper from the Gulf of Mexico using the IFQ allocation issued to A.P.
`
`Bell. A.P. Bell is harmed by Amendment 53 because it reduces the allocation of red grouper for
`
`the commercial sector, and thus reduces the amount of red grouper A.P. Bell is authorized to catch
`
`and sell each year as a participant in the commercial sector. A.P. Bell is also harmed by
`
`Amendment 53 because it will increase recreational sector bycatch of red grouper, increase
`
`uncertainty for managing red grouper, and increase the risk that the red grouper stock will be
`
`overfished or subject to overfishing, each of which carries the potential to negatively affect the red
`
`grouper stock and reduce the amount of fish the stock can sustainably yield for harvest each year.
`
`A.P. Bell is a member of the Southern Offshore Fishing Association.
`
`13.
`
`Plaintiff Southern Offshore Fishing Association, Inc. (“SOFA”) is a non-profit
`
`corporation organized under the laws of Florida and located in Madeira Beach, Florida. SOFA is
`
`a trade association formed over 30 years ago to promote fresh, high quality, domestic seafood, and
`
`works to keep the Gulf of Mexico clean and environmentally secure. SOFA represents commercial
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE
`RELIEF - 6
`
`
`K&L GATES LLP
`925 FOURTH AVENUE, SUITE 2900
`SEATTLE, WA 98104
`TELEPHONE: (206) 623-7580
`FACSIMILE: (206) 370-6084
`
`

`

`
`
`Case 1:22-cv-01260 Document 1 Filed 05/06/22 Page 7 of 44
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`fish harvesters in the Gulf of Mexico, including those who fish commercially for and sell red
`
`grouper from the Gulf of Mexico. Members of SOFA own IFQ shares and/or IFQ allocation
`
`authorizing them to harvest certain amounts of red grouper from the Gulf of Mexico each year.
`
`Amendment 53 harms SOFA’s members because it reduces the commercial sector’s allocation for
`
`red grouper and thus decreases the number of pounds of fish SOFA’s members are authorized to
`
`catch and sell from the Gulf of Mexico each year. Amendment 53 also harms SOFA’s members
`
`because it increases red grouper bycatch in the recreational sector, and sets a lower red grouper
`
`catch limit for both the commercial and recreational sectors to account for mortality associated
`
`with increased recreational sector bycatch. Amendment 53 further harms SOFA’s members
`
`because their livelihoods depend upon the health of the red grouper stock, but Amendment 53 will
`
`increase management uncertainty and the risk of overfishing and depletion of the red grouper
`
`stock. SOFA and its members advocated against Amendment 53 because it will harm their
`
`livelihoods and the health of the red grouper population.
`
`14.
`
`Plaintiff Gulf of Mexico Reef Fish Shareholders’ Alliance (“Shareholders’
`
`Alliance”) is a non-profit corporation organized under the laws of the State of Texas and located
`
`in Galveston, Texas. The Shareholders’ Alliance is a trade organization representing commercial
`
`fish harvesters in the Gulf of Mexico, including those who fish commercially for and sell red
`
`grouper from the Gulf of Mexico. Members of the Shareholders’ Alliance own IFQ shares and
`
`IFQ allocation issued by NMFS authorizing them to harvest certain amounts of red grouper from
`
`the Gulf of Mexico each year. Amendment 53 harms Shareholders’ Alliance members because it
`
`reduces the commercial sector’s allocation for red grouper and thus decreases the number of
`
`pounds of fish Shareholders’ Alliance members are authorized to catch and sell from the Gulf of
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE
`RELIEF - 7
`
`
`K&L GATES LLP
`925 FOURTH AVENUE, SUITE 2900
`SEATTLE, WA 98104
`TELEPHONE: (206) 623-7580
`FACSIMILE: (206) 370-6084
`
`

`

`
`
`Case 1:22-cv-01260 Document 1 Filed 05/06/22 Page 8 of 44
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`Mexico each year. Amendment 53 also harms Shareholders’ Alliance members because it
`
`increases red grouper bycatch in the recreational sector, and sets a lower red grouper catch limit
`
`for both the commercial and recreational sectors to account for mortality associated with increased
`
`recreational sector bycatch. Amendment 53 further harms Shareholders’ Alliance members
`
`because their livelihoods depend upon the health of the red grouper stock, but Amendment 53 will
`
`increase management uncertainty and the risk of overfishing and depletion of the red grouper
`
`stock. The Shareholders’ Alliance and its members advocated against Amendment 53 because it
`
`will harm their livelihoods and the health of the red grouper population. Members of the
`
`Shareholders’ Alliance also enjoy recreational fishing and boating in the Gulf of Mexico and thus
`
`have recreational and aesthetic interests in the conservation of the red grouper stock that the
`
`Shareholders’ Alliance’s advocacy efforts help protect. The Shareholders’ Alliance also operates
`
`the Gulf of Mexico Reef Fish Quota Bank (“Quota Bank”), which owns red grouper IFQ shares
`
`and IFQ allocation. The Shareholders’ Alliance leases out IFQ allocation from the Quota Bank
`
`for various purposes including to assist new entrants into the commercial reef fish fishery in the
`
`Gulf of Mexico. Thus, the Shareholders’ Alliance itself is directly affected by Amendment 53 for
`
`the same reasons its members’ interests are affected. The Shareholders’ Alliance was an
`
`intervenor-defendant in prior litigation filed by plaintiffs seeking to vacate the IFQ program under
`
`which Shareholders’ Alliance members catch and sell red grouper. See Coastal Conservation
`
`Association v. Blank, No. 2:09-cv-641, 2011 WL 4530544 (M.D. Fla. Sept. 29, 2011) (rejecting
`
`plaintiffs’ claims and upholding the IFQ program).
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE
`RELIEF - 8
`
`
`K&L GATES LLP
`925 FOURTH AVENUE, SUITE 2900
`SEATTLE, WA 98104
`TELEPHONE: (206) 623-7580
`FACSIMILE: (206) 370-6084
`
`

`

`
`
`Case 1:22-cv-01260 Document 1 Filed 05/06/22 Page 9 of 44
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`15.
`
`Defendant Gina Raimondo is the Secretary of the U.S. Department of Commerce.
`
`She is sued in her official capacity as the Secretary of Commerce and as the chief officer of the
`
`National Oceanic and Atmospheric Administration.
`
`16.
`
`Defendant National Oceanic and Atmospheric Administration (“NOAA”) is an
`
`agency of the U.S. Department of Commerce with supervisory responsibility for the National
`
`Marine Fisheries Service. The Secretary of Commerce has delegated responsibility for managing
`
`U.S. marine fisheries to NOAA, which in turn has further delegated that responsibility to the
`
`National Marine Fisheries Service (collectively, “NMFS”).
`
`17.
`
`Defendant National Marine Fisheries Service is an agency of the U.S. Department
`
`of Commerce that has been delegated the primary responsibility to manage United States marine
`
`fisheries through its approval of fishery plans, plan amendments, and regulations implementing
`
`those plans and plan amendments. This lawsuit concerns actions of the National Marine Fisheries
`
`Service’s Southeast Regional Office.
`
`IV.
`
`FACTUAL BACKGROUND
`
`A. Statutory Framework
`
`18.
`
`The MSA governs the management of marine fisheries in the U.S. Exclusive
`
`Economic Zone. Under the MSA, the country is divided into eight regions, with each region
`
`having a regional fishery management council that is charged with managing the marine fisheries
`
`in its respective jurisdiction. See 16 U.S.C. § 1852.
`
`19.
`
`The regional fishery management councils develop measures to manage stocks of
`
`fish under their respective jurisdictions and propose those management measures to the Secretary.
`
`Id. § 1852(h). The Secretary, acting through NOAA and its subagency, National Marine Fisheries
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE
`RELIEF - 9
`
`
`K&L GATES LLP
`925 FOURTH AVENUE, SUITE 2900
`SEATTLE, WA 98104
`TELEPHONE: (206) 623-7580
`FACSIMILE: (206) 370-6084
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`

`

`
`
`Case 1:22-cv-01260 Document 1 Filed 05/06/22 Page 10 of 44
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`Service, must approve the proposed measures if consistent with the MSA and other laws and,
`
`where appropriate, promulgate the necessary federal regulations. Id. § 1854.
`
`20.
`
`The numerous species of reef fish in the Gulf of Mexico are managed as a complex
`
`by the Gulf of Mexico Fishery Management Council (“Gulf Council”). 16 U.S.C. § 1802(a)(1)(E);
`
`see also 50 C.F.R. § 622, Appendix A, Table 3 (listing Gulf of Mexico reef fish species). The
`
`Gulf Council originally implemented a fishery management plan for reef fish (the “Reef Fish
`
`FMP”) in 1981. The Reef Fish FMP has been amended several times. The Reef Fish FMP as
`
`amended and all implementing regulations were developed and approved under the authority of
`
`the MSA and must comply with the MSA’s provisions.
`
`B. Management of Red Grouper in the Gulf of Mexico
`
`21.
`
`Red grouper (image below) are found in the Gulf of Mexico and western Atlantic
`
`Ocean. Red grouper are bottom dwelling fish that prefer offshore rocky flat bottom habitats or
`
`rocky ledges at depths up to 1,000 feet. They grow up to 50 inches long and can reach 50 pounds,
`
`and are top predators in reef community food webs. Red grouper are targeted by both commercial
`
`fish harvesters and recreational anglers.
`
`
` Drawing of a Red Grouper (NMFS)1
`
`
`1 NMFS, Species Directory, Red Grouper, available at
`https://www.fisheries.noaa.gov/species/red-grouper
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE
`RELIEF - 10
`
`
`K&L GATES LLP
`925 FOURTH AVENUE, SUITE 2900
`SEATTLE, WA 98104
`TELEPHONE: (206) 623-7580
`FACSIMILE: (206) 370-6084
`
`

`

`
`
`Case 1:22-cv-01260 Document 1 Filed 05/06/22 Page 11 of 44
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`22.
`
`Red grouper in the Gulf of Mexico are managed under the Gulf Council’s Reef Fish
`
`FMP. The Reef Fish FMP and its implementing regulations establish measures to regulate
`
`commercial and recreational fishing for red grouper.
`
`23.
`
`The stock of red grouper in the Gulf of Mexico was subject to overfishing and
`
`declared overfished in October 2000. See 69 Fed. Reg. 1278 (Jan. 8, 2004). A stock of fish is
`
`considered overfished when its biomass has declined below a level that jeopardizes the capacity
`
`of the stock to produce the maximum sustainable yield (“MSY”) on a continuing basis. See 16
`
`U.S.C. § 1802(34); 50 C.F.R. § 600.310(e)(2)(i)(E).
`
`24.
`
`Under Secretarial Amendment 1 to the Reef Fish FMP, NMFS implemented a
`
`rebuilding plan that was intended to rebuild the stock by 2014. See 69 Fed. Reg. 1278 (Jan. 8,
`
`2004). Despite the rebuilding plan, the stock has not rebuilt to the target level. A stock assessment
`
`in 2019 concluded that the stock is no longer considered overfished or subject to overfishing, but
`
`is below the Spawning Stock Biomass target of 30 percent of the Spawning Potential Ratio, or the
`
`spawning potential of a stock not subject to any fishing. The stock is not presently considered
`
`overfished because NMFS recently lowered the benchmark at which the stock would be considered
`
`overfished. Based on the previous benchmark, the stock would still be considered overfished. In
`
`real terms, based on data through 2017 used for the latest stock assessment completed in 2019,
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`stock abundance is the lowest on record.
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE
`RELIEF - 11
`
`
`K&L GATES LLP
`925 FOURTH AVENUE, SUITE 2900
`SEATTLE, WA 98104
`TELEPHONE: (206) 623-7580
`FACSIMILE: (206) 370-6084
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`

`

`
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`Case 1:22-cv-01260 Document 1 Filed 05/06/22 Page 12 of 44
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`Fig. 1: Trends in Red Grouper Stock Abundance2
`
`
`
`25.
`
`In order to prevent overfishing and rebuild the stock as required by the MSA, the
`
`Gulf Council’s Scientific and Statistical Committee (“SSC”) first establishes the Overfishing Limit
`
`(“OFL”). The OFL is a scientific estimate of the catch above which overfishing is occurring. See
`
`50 C.F.R. § 600.310(e)(2)(i)(D). The SSC then recommends where the Gulf Council should set
`
`the Acceptable Biological Catch (“ABC”), which is the level of annual catch that accounts for
`
`scientific uncertainty in the estimate of OFL. See id. § 600.310(f)(2)(ii). The ABC must not
`
`exceed the OFL, but can be reduced from OFL to create a buffer to account for scientific
`
`uncertainty. Id. § 600.310(f)(3). Once the Gulf Council establishes the ABC, the Gulf Council
`
`must then set the ACL. “ACL cannot exceed the ABC but may be divided into sector-ACLs.” Id.
`
`
`
`
`2 NMFS, Stock SMART (Status, Management, Assessments & Resource Trends) for Red
`Grouper in the Gulf of Mexico, available at
`https://www.st.nmfs.noaa.gov/stocksmart?stockname=Red%20grouper%20-
`%20Gulf%20of%20Mexico&stockid=10331.
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE
`RELIEF - 12
`
`
`K&L GATES LLP
`925 FOURTH AVENUE, SUITE 2900
`SEATTLE, WA 98104
`TELEPHONE: (206) 623-7580
`FACSIMILE: (206) 370-6084
`
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`

`
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`
`Case 1:22-cv-01260 Document 1 Filed 05/06/22 Page 13 of 44
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`Fig. 2 – Relationship Between OFL, ABC, ACL, and ACT3
`
`26.
`
`For red grouper, the ACL is divided into two “sector ACLs”—a commercial sector
`
`
`
`ACL and a recreational sector ACL that together equal the total ACL. NMFS has also approved
`
`Annual Catch Targets (“ACTs”) for the commercial and recreational sectors. An ACT is a catch
`
`limit set below the ACL to account for management uncertainty and ensure the ACL is not
`
`exceeded. See 50 C.F.R. § 600.310(g)(4). In regulation and common parlance, these ACLs and
`
`ACTs are sometimes referred to as “quotas.” See 50 C.F.R. § 622.39(a)(1)(iii)(C) (commercial
`
`sector quota for red grouper); 622.41(e)(1) (“The commercial sector ACT for red grouper is equal
`
`to the applicable quota specified in § 622.39(a)(1)(iii)(C)”); § 622.41(e)(2)(iv) (specifying the
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`recreational sector ACL and ACT for red grouper).
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`C. Management Measures for the Commercial Sector
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`27.
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`The commercial sector of the red grouper fishery is limited access, meaning that
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`there are a fixed number of commercial fishing permits available. There are currently less than
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`850 permits in total; less than 400 permits are used each year for harvesting red grouper. The
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`3 74 Fed. Reg. 3178, 3180 (Jan. 16, 2009).
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`Case 1:22-cv-01260 Document 1 Filed 05/06/22 Page 14 of 44
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`commercial red grouper fishery operates under an individual fishing quota program (the “IFQ
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`Program”) implemented in 2010 by Amendment 29 to the Reef Fish FMP. See 74 Fed. Reg. 44732
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`(Aug. 31, 2009). Under the IFQ Program, IFQ shares were issued to commercial permit holders
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`based on their historical landings of red grouper. IFQ shares are long-term harvesting privileges
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`that authorize the holder to catch a fixed percentage of the commercial sector’s ACL each year.
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`On or about January 1 of each year, IFQ shareholders receive from NMFS a distribution of IFQ
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`allocation corresponding to their IFQ share percentage, which authorizes the holder to harvest a
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`specific number of pounds of red grouper in that calendar year. For example, if a person holds
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`one percent of the red grouper IFQ shares, and the commercial quota/ACT for a given calendar
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`yet is set at one million pounds, then that IFQ shareholder would receive 10,000 pounds of red
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`grouper IFQ allocation to harvest in that calendar year. IFQ shares and annual IFQ allocations are
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`held in electronic online accounts maintained by NMFS. Both IFQ shares and annual IFQ
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`allocation are transferable.
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`28.
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`The commercial sector is subject to strict accountability measures to ensure that the
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`commercial sector ACL is not exceeded. See 50 C.F.R. § 622.22. Commercial vessels must have
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`vessel monitoring systems that report their location to NMFS, they must have sufficient IFQ
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`allocation in their online vessel accounts to cover their landings, they must inform NMFS where
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`and when they will offload their catch each time they return from a fishing trip, and they must sell
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`their landings to a licensed fish dealer. Each pound of fish landed is tracked and accounted for in
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`real time. Commercial vessels must also maintain logbooks in which they record landings and
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`other information from their fishing trips. Approximately 20 percent of vessels must also fill out
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`mandatory supplemental logbook reports to report the number and species of any fish discarded at
`
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`925 FOURTH AVENUE, SUITE 2900
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`Case 1:22-cv-01260 Document 1 Filed 05/06/22 Page 15 of 44
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`sea. Commercial vessels must also carry human observers when required by NMFS that record
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`what is caught, kept and discarded at sea. Some commercial fishing vessels, including some
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`operated by members of SOFA and the Shareholders’ Alliance, have also voluntarily installed
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`video cameras onboard to test the efficacy of these systems in collecting high resolution bycatch
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`and other fishery data.
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`D. Management Measures for the Recreational Sector
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`29.
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`The recreational sector of the red grouper fishery is split into two components: (1)
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`the charter/for-hire component, which consists of federally-permitted vessels that take anglers
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`fishing for a fee; and (2) the private angler component, which consists of anglers fishing on
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`privately owned vessels. The charter/for-hire component and the private angler component do not
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`have separate catch limits for red grouper; instead they both fish under the recreational sector
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`ACL/ACT. The charter/for-hire component is limited access and has mandatory reporting
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`requirements, like the commercial sector. The private angler component, however, is open access.
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`No federal permit is required to fish for red grouper as a private angler, and private anglers are not
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`required to report to NMFS what they catch or discard. Private anglers land over 80 percent of the
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`recreational sector ACL/ACT each year.
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`E. Initial Allocation Between the Commercial and Recreational Fishing Sectors
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`30.
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`Under Amendment 30B to the Reef Fish FMP effective in 2009, the Gulf Council
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`recommended and NMFS approved an allocation of red grouper catch between the commercial
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`and recreational sectors. See 73 Fed. Reg. 68390 (Nov. 18, 2008) (proposed rule); 74 Fed. Reg.
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`17604 (Apr. 16, 2009) (final rule). Based on the sectors’ respective average landings (pounds of
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`fish caught and brought to shore) from 1986-2005, Amendment 30B allocated 76 percent of the
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`Case 1:22-cv-01260 Document 1 Filed 05/06/22 Page 16 of 44
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`ACL to the commercial sector and 24 percent of the ACL to the recreational sector. In Amendment
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`30B, the Gulf Council noted that the “proportion of dead discards to landings for red grouper is
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`similar between the two sectors and the proposed shifts in allocation are small, so the difference
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`in red grouper discards among [reallocation] alternatives would be minimal.”
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`31.
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`For the commercial sector, landings estimates used for the allocation decision in
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`Amendment 30B were generated by the Accumulated Landings System (“ALS”) maintained by
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`NMFS’s Southeast Fisheries Science Center (“SEFSC”). ALS was generally comprised of
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`information from “trip tickets,” or mandatory reporting about fish landed for sale by commercial
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`fish harvesters at NMFS-permitted fish dealers.
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`32.
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`For the recreational sector, landings estimates used for the allocation decision in
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`Amendment 30B were generated by the Marine Recreational Fishing Statistics Survey
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`(“MRFSS”). Unlike commercial fish harvesters, recreational anglers were not required to report
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`their landings under MRFSS. Instead, MRFSS used a combination of two data inputs to estimate
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`by extrapolation the landings by recreational anglers: 1) dockside interviews of a small percentage
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`of recreational anglers (known as the Access Point Angler Intercept Survey or “APAIS”); and 2)
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`random telephone surveys of households located within 25 to 50 miles of the coast to inquire about
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`marine recreational fishing activities (known as the Coastal Household Telephone Survey or
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`“CHTS”).
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`F. Changes to Methods for Estimating Recreational Sector Catches
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`33.
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`In 2006 the National Research Council (“NRC”) of the National Academy of
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`Sciences published a report on MRFSS. The report found “that marine recreational fishing is a
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`significant source of fishing mortality for many marine species,” that “[b]oth the telephone and
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`K&L GATES LLP
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`Case 1:22-cv-01260 Document 1 Filed 05/06/22 Page 17 of 44
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`access components of the current [MRFSS] approach have serious flaws in design or
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`implementation and use inadequate analysis methods that need to be addressed immediately,” and
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`that MRFSS “should be completely redesigned to improve its effectiveness and appropriateness of
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`sampling and estimation procedures, its applicability to various kinds of management decisions,
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`and its usefulness for social and economic analysis.”
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`34.
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`NMFS responded to the 2006 NRC report by replacing MRFSS with a new survey
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`to estimate recreational catches called the Marine Recreational Information Program (“MRIP”).
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`35.
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`Initially, MRIP retained the two basic inputs from MRFSS to estimate recreational
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`catches: dockside intercepts (APAIS) and telephone surveys (CHTS), but with improvements. In
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`2015, however, NMFS implemented a new survey distributed by U.S. mail to replace CHTS called
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`the Fishing Effort Survey (“FES”). NMFS conducted both surveys—CHTS and FES—for three
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`years, 2015 through 2017. NMFS then discontinued CHTS. The MRIP survey now relies
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`primarily on the dockside intercepts of recreational anglers (APAIS) and mail-in surveys (FES) to
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`estimate recreational landings. Recreational anglers still are not required to r