UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

David Goethel, et al.

v. Civil No. 15-cv-497-JL Opinion No.

Penny Pritzker, et al.

MEMORANDUM ORDER

This case involves legal challenges to the Magnuson-Stevens

Fishery Conservation and Management Act,

et

seq. (“MSA” or “the Act”), and actions taken thereunder by the

National Marine Fisheries Service (“NMFS”). The plaintiffs are

Hampton, New Hampshire-based commercial fisherman David Goethel,

and XIII Northeast Fishery Sector, Inc. (“Sector 13").1 Of

particular relevance is a requirement that commercial fishermen

must, on occasion, be accompanied by at-sea monitors (“ASMs”) who

collect certain fishing-related data. As promulgated by NMFS,

the ASM provision called for the industry to pay the costs of the

monitors. Nevertheless, the government paid the cost of the

monitors (estimated at $700-$800 per trip) from the inception of

1 A “sector” is a self-selected “group of vessels that have voluntarily signed a contract and agree[d] to certain fishing restrictions” regarding, inter alia, catch limits. Lovgren v. Locke,

(1st Cir. 2012) (citing

, 22,945). the ASM regime in fishing year (“FY”) 20122 until March 2016, and

recently notified the court that it would be “reimbursing some of

the industry’s [at-sea monitoring] costs” as of July 1. Doc. no.

69.

Plaintiffs advance several legal arguments in support of

their claim that the industry funding requirement is illegal.

Generally speaking, however, plaintiffs contend that the

defendants lack the legal authority to require fishermen to pay

the monitors’ costs. Presently before the court are the parties’

cross-motions for summary judgment.3 Following a thorough review

of the parties’ submissions, including the administrative record,

the court finds that much of plaintiffs’ case is barred by the

applicable statute of limitations, and even if timely filed,

their claims fail on the merits. Accordingly, the defendant’s

motion for summary judgment is granted and the plaintiffs’ motion

is denied.

2 A “fishing year” (FY) runs from May 1 to April 30 of the following year. 3 Finding that the governing statutory scheme prohibited preliminary injunctive relief, the court previously denied plaintiffs' request for an injunction to prevent the industry funding requirement from taking effect. Goethel v. Pritzker, No. 15-cv-497 (D.N.H. Jan. 27, 2016) (doc. no. 44).

2 I. Background

Congress enacted and codified The Fishery Conservation and

Management Act, Congress enacted MSA in 1976. The Court of

Appeals noted that it was enacted in “[r]espon[se] to depletion

of the nation’s fish stocks due to overfishing . . . .”

Associated Fisheries of Maine, Inc. v. Daley,

(1st Cir. 1997). The MSA’s codified goals were, inter alia, “to

conserve and manage the fishery resources found off the coasts of

the United States” and “to promote domestic commercial and

recreational fishing under sound conservation and management

principles.”

(b)(1), (3). Pursuant to the Act,

eight regional Fishery Management Councils (“FMCs”) were

established “to exercise sound judgment in the stewardship of

fishery resources. . . .”

§§ 1801(b)(5), 1852(a)(1)(A). The

FMCs are charged with preparing -- and subsequently amending, if

necessary -- Fishery Management Plans (“FMPs”), which regulate

conservation and management of the fishery. Id. § 1853(a)(1)(A).

Central to this case is such an amendment: Amendment 16

(“A16”) to the Northeast Multispecies FMP. This FMP was

developed jointly by the New England and Mid-Atlantic Councils in

1985, and addresses groundfish4 -- those that live on, in, or

4 Species of groundfish within the Northeast Multispecies FMP include different types of cod, haddock, halibut and flounder. See Northeast Multispecies (Groundfish) Fishery Management Plan Overview, available at

3 near the bottom of the body of water they inhabit -- which

migrate between the waters within the purview of those two FMCs.

Amendment 16 had its genesis in the MSA Reauthorization Act,

which took effect in January 2007 and established new

conservation mandates for all FMPs. Lovgren v. Locke,

(1st Cir. 2012).5 In response, the New England Council

included in A16 the at-sea monitoring program pursuant to the

Reauthorization Act’s requirement that FMPs include “measures to

ensure accountability” with respect to catch limits. See

(a)(15); see also Oceana, Inc. v. Pritzker,

(D.D.C. 2014). Accordingly, commercial fishermen

within the purview of the Northeast Multispecies FMP must, on

occasion, be accompanied by ASMs who collect certain data related

to the particular fishing trip and the fishing vessels’ catch.

(April 9, 2010).

As written, A16 requires that the industry pay the costs of

such monitors. Id. at 18277-78, 18291. Despite this language,

however, the government had paid the ASM costs (estimated at

$700-$800 per trip) throughout the program’s existence. In 2015,

http://s3.amazonaws.com/nefmc.org/GroundfishFMPOverview.pdf (last visited July 23, 2016). 5 Amendment 16 had actually been proposed prior to the Reauthorization Act, but the Act’s mandates caused the New England Council to delay its implementation. Lovgren v. Locke,

(1st Cir. 2012).

4 a court ruling required NMFS to fund a particular reporting

requirement. See Oceana v. Locke,

(D.C. Cir.

2011);

(a)(11). This requirement depleted NMFS

coffers, and in mid-2015, NMFS informed fishery sectors that the

industry would have to pay the monitoring costs going forward. A

rule proposed in March and finalized in May of that year made

NMFS’s position official.

(March 9, 2015);

(May 1, 2015). NMFS subsequently updated sectors

on the anticipated date of federal funds exhaustion, first

projecting October 31 and then, in November, projecting a

December 31, 2015 exhaustion. The projection was extended to

March 1, but NMFS announced that funding was exhausted in mid-

February 2016. Nevertheless, NMFS delayed the industry funding

requirement until March 1, before recently indicating its

reimbursement plan, supra, p. 2. It is the November 10, 2015,

update to which this lawsuit was initially directed. See

Complaint (doc. no. 1).

II. Applicable legal standards

A. Summary judgment

Summary judgment is appropriate when the moving party “shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). “A genuine dispute is one that a reasonable

5 fact-finder could resolve in favor of either party and a material

fact is one that could affect the outcome of the case.” Flood v.

Bank of Am. Corp.,

(1st Cir. 2015). Reasonable

inferences are taken in the light most favorable to the nonmoving

party, but unsupported speculation and evidence that “is less

than significantly probative” are not sufficient to avoid summary

judgment. Planadeball v. Wyndham Vacation Resorts, Inc.,

(1st Cir. 2015) (internal quotation marks omitted).

On cross motions for summary judgment, the standard of

review is applied to each motion separately. Mandel v. Bos.

Phoenix, Inc.,

, 205 (1st Cir. 2006) (“The presence

of cross-motions for summary judgment neither dilutes nor

distorts this standard of review.”). Accordingly, the court must

determine “whether either of the parties deserves judgment as a

matter of law on facts that are not disputed.” Adria Int'l

Group, Inc. v. Ferré Dev., Inc.,

(1st Cir.

2001).

B. Administrative Procedure Act

With some exceptions not pertinent here, Congress authorized

judicial review of agency actions taken under the MSA to follow

the dictates of the Administrative Procedure Act (“APA”),

et seq. See

(f). The court’s

review is limited to the administrative record. Lovegren, 701

6 F.3d at 20. As relevant here, the court can set aside agency

action only if such action is found to be: A) arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law; B) contrary to constitutional right, power,

privilege or immunity; C) in excess of statutory jurisdiction,

authority, or limitations, or short of statutory right; or D)

without observance of procedure required by law.

(2). “Because the APA standard affords great deference to

agency decisionmaking and because the Secretary’s action is

presumed valid, judicial review, even at the summary judgment

stage, is narrow.” Associated Fisheries of Me., Inc. v. Daley,

(1st Cir. 1997). Finally, the MSA contains a

30-day statute of limitations.

(f).

III. Legal analysis

Plaintiffs claim that the industry funding requirement runs

afoul of the MSA in three different ways: 1) there is no

statutory authority for the requirement; 2) the government failed

to follow required procedural steps in implementing the funding

requirement; and 3) at-sea monitoring is unconstitutional and the

relevant FMPs are invalid. The defendants dispute the legal

bases for those arguments, but also assert that they are barred

by MSA’s 30-day limitations period. The court turns to that

issue first.

7 A. Statute of limitations

The MSA requires that suits seeking judicial review of

regulations and “actions” taken by the Secretary of Commerce (or

her designee) be filed within 30 days after the date on which the

regulations are promulgated or the action is published in the

Federal Register.

(f). An “action” is further

defined as “actions that are taken by the Secretary under

regulations which implement a fishery management plan, including

but not limited to actions that establish the date of closure of

a fishery to commercial or recreational fishing.”

at §

1855(f)(2).

The Secretary argues that the 30-day limitations period

began to run when the regulations implementing A16 (which

explicitly called for industry funding) went into effect in FY

2012 or, at the latest, in May 2015, when the Rule announcing

that industry funding would begin during FY 2015 was published.

Plaintiffs argue that the November 10, 2015, notice from the

Northeast Fisheries Science Center that federal funds would be

exhausted by the end of 2015 triggered the 30-day deadline.

Therefore, plaintiffs assert, their December 9, 2015, complaint

was timely filed. The court rejects plaintiffs’ argument. The

court need not decide whether the original publication of A16 in

2012 started the 30-day limitations clock because it finds that

8 the May 15, 2015 Rule explicitly announcing that industry funding

would begin during the 2015-16 fishing year is the “action”

referred to in

(f).

Plaintiffs argue that the November 10 letter is a separately

reviewable “action,” i.e., implementation of the ASM funding

regulation. They rely on two cases, Gulf Fishermen’s Ass’n v.

Gutierrez,

(11th Cir. 2008) and Oregon Trollers

Ass'n v. Gutierrez,

(9th Cir. 2006). Neither case,

however, can support the weight that plaintiffs assign to them.

Gulf Fishermen’s Ass’n involved a rule requiring fishing vessels

to use a particular vessel monitoring system. Shortly before

scheduled implementation of that rule, NMFS published another

rule delaying the effective date by four months.

. Suit was filed within thirty days of publication of the

second rule, challenging the legality of the monitoring system

requirement. The court rejected the Secretary’s statute of

limitations defense, observing that “the plain text of § 1855(f)

does not preclude judicial review of a regulation beyond thirty

days after its publication where there has been subsequent

Secretarial action under the regulation.” Id. at 1323 (citing

Oregon Trollers,

).

While plaintiffs go to great lengths to convince the court

that the November 10 email notice is an “action” within the

meaning of section 1855(f), they ignore additional discussion in

9 Gulf Fishermen’s Ass’n and that case’s explication of Oregon

Trollers which is fatal to their claim. Specifically, Gulf

Fishermen’s Ass’n agreed with Oregon Trollers that it is not just

agency action," in general, that is separately reviewable, but

“actions,” in particular, that are “published in the Federal

Register,” as set forth in section 1855(f). Id. at 1323-24;

(quoting Oregon Trollers,

). Indeed, Gulf

Fishermen’s Ass’n held that “a petition filed within thirty days

of the publication of a Secretarial action, as defined in §

1852(f)(2)” is timely. (Emphasis added); see also Green v. Locke,

No. 10-707 (MLC),

, (D.N.J. Sept. 8, 2010)

(rejecting, in the context of analyzing the MSA’s statute of

limitations, plaintiffs’ claims that permit denials were

“actions” within the meaning of § 1855(f)(2) because they were

neither “promulgated” nor “published in the Federal Register”).

Here, plaintiffs do not claim that the November 10 email notice

was a promulgated regulation or that it was published.

The court finds that plaintiffs 30-day window to challenge

the industry funding component of ASM closed, at the latest, in

June 2015, well before this suit was filed.6 As explained below,

6 Plaintiffs also argue that they could not have brought suit any earlier because such a suit would have been dismissed as unripe. While necessarily speculative, it seems inconceivable that a suit filed within 30 days of the Rule’s publication in May 2016 would have been found unripe. In addition, as plaintiffs point out, pre-enforcement review is available to aggrieved

10 however, even if plaintiffs’ claims were timely filed, defendant

is nevertheless entitled to summary judgment.

B. Plaintiffs’ substantive claims

1. Industry funding is contrary to law

Plaintiffs assert several arguments in support of their

allegation that the industry funding component of ASM is contrary

to law.

(2). None prevail. The court addresses

them seriatim.

a. Lack of MSA authorization

Plaintiffs first argue that industry funding is unlawful

because it is not authorized by the MSA. While it is true that

the MSA does not explicitly authorize industry funding (with one

exception to be addressed), the court’s inquiry does not end

there, as “[t]he power of an administrative agency to administer

a congressionally created . . . program necessarily requires the

formulation of policy and the making of rules to fill any gap

left, implicitly or explicitly, by Congress.” Chevron, U.S.A,

Inc. v. Nat’l Res. Def. Council, Inc.,

(1984)

(quoting Morton v. Ruiz,

(1974)).

parties and plaintiffs cite no authority which permits the court to waive the statute of limitations applicable to pre-enforcement review.

11 To start with, the MSA explicitly authorizes at-sea

monitors.

(b)(8), 1881(b). Next, the MSA also

contains the broad mandate that FMPs shall “contain 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[.]”

(a)(1)(A). Finally, and as

explained below, significantly, section 1853(b)(14) allows FMPs

to “prescribe such other measures, requirements, or conditions

and restrictions as are determined to be necessary and

appropriate for the conservation and management of the fishery.”

Although it examines a different statutory scheme, this

court finds instructive the First Circuit Court of Appeals’s

treatment of the Federal Power Act’s “necessary and appropriate”

provision, 16 U.S.C. § 825h, in Boston Edison Co. v. FERC,

(1st Cir. 1988). There, the Court of Appeals

concluded that the provision “augments whatever existing powers

have been conferred on [the Federal Energy Regulatory Commission]

by Congress,” although it does not comprise an independent source

of authority to act. See also, Coastal Conservation Ass’n v.

United States Dep’t of Commerce, Civ. No. 15-1300,

at *4 (E.D. La. Jan. 5, 2016) (describing “necessary and

appropriate” language in

(a)(1)(A) as “empowering

12 language represent[ing] a delegation of authority to the

agency.”). NMFS and the Council permissibly found A16’s industry

funding provision “necessary and appropriate for the conservation

and management of the fishery” and there is no dispute that the

provision is a “measure, requirement or condition” as

contemplated by

(b)(14). Accordingly, the court

finds that the MSA does authorize industry funding of monitors.

Apart from the above statutory language, another provision

of the MSA, added in 1996, demonstrates beyond peradventure that

the MSA contemplates -- and most certainly does not prohibit --

the use of industry funded monitors.

(g)(1)(D)

allows the Secretary to issue sanctions against any vessel owner

or operator who has not made “any payment required for observer

services provided to or contracted by an owner or operator . . .”

(emphasis added). This provision would be unnecessary if the MSA

prohibited the very type of industry funding at issue in this

case. See generally, Richards v. United States,

(1962) (“in fulfilling our responsibility in interpreting

legislation, we must not be guided by a single sentence or member

of a sentence, but (should) look to the provisions of the whole

law . . . .”) (citation and internal quotation omitted).

In addition to arguing that the MSA does not authorize

industry funding, plaintiffs also assert that the MSA prohibits

industry funding. Although not expressly cited by the

13 plaintiffs, this contention is based on the statutory

interpretation canon expresio unius est exclusion alterius, which

instructs that “where Congress includes particular language in

one section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or

exclusion.” Duncan v. Walker,

, 173 (2001); see also

United States v. Councilman,

(1st Cir. 2005).

Here, plaintiffs point to

(a)(2), which expressly

authorizes the imposition of fees to cover the costs of, inter

alia, observer coverage in North Pacific fisheries. From this,

they argue that the canon requires a conclusion that the lack of

similar express authorization elsewhere in the statute dooms

A16’s industry funding requirement.7

The court disagrees. The Court of Appeals has cautioned

that the canon “is an aid to construction and not an inflexible

rule,” Hewlett-Packard Co., Inc. v. Berg,

(1st

Cir. 1995), and the Pacific Northwest fee mechanism is a

substantively different animal than A16’s industry funding

requirement for at-sea monitoring. While plaintiffs correctly

7 Relatedly, the plaintiffs argue that if industry funding is implicitly authorized by the MSA, the Pacific Council fee provision would be surplusage, and thus run afoul of the court’s obligation “to attempt to give meaning to each word and phrase.” United States v. Flores,

(1st Cir. 1992)

14 observe that § 1862 allows Councils to establish a fee schedule,

details the requirements of such a schedule and directs how funds

received are handled, see id. §§ 1854(d)(2)(A)-(c) and

1862(b),(d), A16’s industry-funding provision does not establish,

provide for, or in any way implicate fees.8 Instead, A16

requires industry contracts with ASM providers, with whom they

are free to negotiate contract terms. See Cumberland Farms, Inc.

v. Tax Assessor, State of Me.,

(1st Cir. 1997)

(“The classic ‘regulatory fee’ is imposed by an agency upon those

subject to its regulation.”). Finally, the court also agrees

with the Secretary’s analogizing ASM costs to those of mandatory

vessel monitoring systems, the cost of which is the

responsibility of the vessel owner, although that funding

responsibility is not expressly authorized by statute. See Nat’l

Fed’n of Indep. Bus. V. Sebelius,

(2012)

(“Government regulation typically imposes costs on the regulated

industry.”). The Secretary also cites to provisions of the Clean

Air Act and Clean Water Act which do not specify a particular

funding mechanism but pursuant to which the industry funds

monitoring equipment. Doc. no. 72 at 15. Plaintiffs primarily

attempt to diminish the import of these examples through

8 Similarly, plaintiffs list several other fee-based provisions of the MSA in their supplemental memorandum, doc. no. 76 at 2, 4. For the reasons stated above, these are inapposite.

15 semantics, referring to them as “true compliance costs” relating

to “primary conduct.” Doc. no. 76 at 4. But plaintiffs do not

support this purported distinction with any examples of a court

invalidating a payment regime such as the one at issue here.

The fact that fees are addressed in § 1862 but not § 1853

does not “support[] a sensible inference” that the MSA forbids an

FMP under which industry must bear the cost of certain

regulations. The court therefore declines to rule that the MSA

prohibits industry funding of at-sea monitors.

b. Industry funding as a tax

Alternatively, the plaintiffs suggest9 that industry funding

is a tax, which can only be levied by Congress. Doc. no. 53-1 at

10 (citing Nat’l Cable Television Ass’n, Inc. V. United States,

(1974) (“Taxation is a legislative function,

and Congress . . . is the sole organ for levying taxes[.]”)).

Again, the court disagrees. A payment made to a third party

vendor (in this case, an at-sea monitor) is not a tax simply

because the law requires it.

9 Plaintiffs’ argument on this point consists of one sentence and two cited cases. It is only for the sake of completeness that the court did not decline to address this argument as insufficiently developed. See United States v. Zannino,

(1st Cir. 1990) (“issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”).

16 As the Court of Appeals has observed, a “‘tax’ is imposed by

a legislature upon many, or all, citizens. It raises money,

contributed to a general fund, and spent for the benefit of the

entire community.” Cumberland Farms, Inc. v. Tax Assessor, State

of Me.,

(1st Cir. 1997) (quoting San Juan

Cellular Tel. Co. v. Pub. Serv. Comm’n,

(1st

Cir. 1992)). Here, payments for ASMs are made directly to the

vendors and not to NMFS.10 Funds paid by industry sources to

third party at-sea monitors are not collected by the government,

received by the government, or otherwise available to the

government to be expended for any public purpose. The rates or

terms of monitor payments are not set by government officials, or

even known to them. The industry funding of at-sea monitoring

does not involve taxation, and thus constitute an unlawful tax.

c. Anti-Deficiency Act

Plaintiffs further suggest that the industry funding

requirement violates the Anti-Deficiency Act,

(a)(1)(A)-(B), which prohibits federal officers from

“mak[ing] or authoriz[ing] an expenditure or obligation exceeding

an amount available in an appropriation or fund for the

expenditure or obligation” and from “involv[ing] [the United

10 Further, the court is aware of no record evidence or argument that the vendors supplying ASM services remit any of the monies paid by fisherman to any government agency.

17 States] in a contract or obligation for the payment of money

before an appropriation is made unless authorized by law[.]”

This argument fails because the Anti-Deficiency Act simply has no

bearing on or application to A16’s industry funding requirement.

The entire point of industry funding -- in fact, the very reason

the plaintiffs object to it -- is that it requires private

expenditures, not public ones. There is nothing in the record to

suggest that industry funding of at-sea monitors involves the

government or any government official spending public money,

unappropriated or otherwise, or entering into a contract. See

Mack Bros. v. Me. State Hous. Auth., No. 2:10-cv-00087-GZS,

, at *12 (D. Me. June 24, 2011) quoting Hercules v.

United States,

(1996) (noting that Act “bars a

federal employee or agency from entering into a contract for

future payment of money in advance of, or in excess of, an

existing appropriation.”). Indeed, the effect of industry

funding is a cessation of government spending. The Anti-

Deficiency Act is simply not implicated here.

d. Miscellaneous Receipts Act

The plaintiffs’ argument based on the Miscellaneous Receipts

Act fails for reasons similar to its taxation and ADA-based

arguments: industry funding doesn’t involve the receipt of money

by any government entity. Under

(b), “an

18 official or agent of the Government receiving money for the

Government from any source must deposit the money in the Treasury

as soon as practicable without deduction for any charge or

claim.” As A16 calls for contracting directly with ASM

providers, it involves no “official or agent of the Government”

receiving money.

Plaintiffs nevertheless argue that the required payments to

the ASM providers contracting with the various fishing sectors is

“money for the government” because monitoring is a “government

program.” Doc. no. 53-1 at 11. But this semantic argument also

fails. Even if the payments to contractors were somehow

considered “money for the government” and used to fund the ASM

program,

“[t]he Miscellaneous Receipts Act cannot in any way be construed to prohibit the deposit of receipts of [a] self-financing program in a special fund or account distinct from that of the general Treasury fund. All the Act literally requires is that miscellaneous money received by government officials be deposited in the general Treasury.”

AINS, Inc. v. United States,

(2003). A16

does not provide for -- and is not alleged to provide for -- the

receipt of money by government officials. Accordingly, the

industry funding requirement does not run afoul of the

Miscellaneous Receipts Act.

19 e. Commerce Clause

Plaintiffs next allege that the industry-funding requirement

for ASMs violates the Commerce Clause of the United States

Constitution11 because it compels sectors to enter contracts with

private companies, in contravention of the Supreme Court’s

mandate in Nat’l Fed’n of Indep. Bus., in which the Court held

that the Commerce Clause did not permit the government to “compel

individuals to become active in commerce by purchas[ing]” health

insurance.

(emphasis in original). Here,

plaintiffs argue, A16 unconstitutionally compels them to enter

the market for at-sea monitors.

The Commerce Clause is not a barrier to the enforcement of

A16, at least for the reasons advanced by the plaintiff. The

underlying factual premise of this argument is flawed because

nothing in the Magnuson-Stevens Act compels at-sea monitoring to

begin with. Fisherman who do not participate in the sector

system would not be required to have monitors, regardless of who

is paying for them. See A16 at 861 (“sector vessels will be

afforded greater flexibility [, but] will have to bear the

administrative costs associated with preparing an environmental

assessment as well as the monitoring costs associated with a

11 Pursuant to art. I, § 8, cl. 3, Congress has the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

20 sector manager, dockside monitoring and at-sea monitoring.”).

Fisherman who do not participate in the sector system fish in the

“common pool,” which does not require ASM. A16 at 149.

But even if, as plaintiffs assert, the sector system is only

theoretically voluntary,12 the Secretary here, unlike in Nat’l

Fed’n of Indep. Bus., is not “regulat[ing] individuals because

they are doing nothing.” Id. at 2587. As pointed out repeatedly

supra at pp. 16-18, nothing in Magnuson-Stevens or A16 taxes,

assesses fees, or otherwise penalizes [fishermen] for choosing a

course of action (like the sector system) that does not require

at-sea monitoring. Instead, the costs of monitors are part of

the permissible regulation of plaintiffs’ commercial fishing

activities. The court finds no Commerce Clause violation based

on the arguments advanced by the plaintiffs.

2. Procedural requirements

Plaintiffs next claim that even if the industry funding

requirement for ASMs is permissible, NMFS failed to satisfy two

procedural requirements imposed by the MSA -- those imposed by

the Regulatory Flexibility Act (“RFA”),

and

the National Environmental Policy Act (“NEPA”),

(C). The court addresses these claims in turn.

12 At A16’s inception, 55 percent of permit holders joined a sector; these vessels accounted for 98% of the previous decade’s catch. Lovgren,

.

21 a. Regulatory Flexibility Act

The MSA requires that the Secretary comply with the

Regulatory Flexibility Act. See

(e). The RFA

requires agencies to conduct a “regulatory flexibility analysis”

whenever they propose rules that will have "a significant

economic impact on a substantial number of small entities."

. The agency must prepare an initial analysis

when a proposed rule is published and a final analysis when it

publishes a final rule.

§§ 603(a), 604(a).

There is no dispute that NMFS complied with the letter of

RFA by preparing both the initial analysis and the final

analysis. Plaintiffs argue, however, that in doing so, the NMFS

insufficiently analyzed the economic impacts on the relevant

fisheries. But as the Court Appeals has observed, there is no

requirement under the RFA as to the “specific amount of detail”

with which an agency must discuss various alternatives presented

to it. Little Bay Lobster Co. v. Evans,

(1st

Cir. 2003); see also, City of New Bedford v. Locke, No. 10-10789-

RWZ,

at *9 (D. Mass. June 30, 2011), aff’d,

Lovgren, supra ("Arguments about the substantive merits of a new

rule . . . are beyond the scope of [the] procedural requirements"

of the RFA). The court accordingly rejects plaintiffs' RFA-based

argument.

22 b. National Environmental Policy Act (“NEPA”)

The MSA also requires NMFS to comply with NEPA,

(c), which, in turn, requires agencies to prepare

environmental impact statements prior to implementing

“significant acts.” Plaintiffs’ argument appears limited to the

claim that NMFS failed to adequately assess the economic impact

of industry funding, as their briefing makes no mention of

environmental concerns. Doc. no. 53-1 at 15. This posture is

fatal to the argument as a party “must assert an environmental

harm in order to come within [NEPA's] zone of interests.”

Gunpowder Riverkeeper v. F.E.R.C.,

(D.C. Cir.

2015) (citing Realty Income Tr. v. Eckerd,

, 452 &

n.10 (D.C. Cir. 1977); see also, Lexmark Int’l, Inc. v. Static

Control Components, Inc.,

(2014)

(“presum[ing] that a statutory cause of action extends only to

plaintiffs whose interests fall within the zone of interests

protected by the law invoked.”) (internal quotation and citation

omitted)).

Plaintiffs’ argument fails substantively as well. The

environmental impact statement issued in conjunction with A16

acknowledged the potential negative consequences of industry

funding. As explained in detail, supra, at pp. 7-10, the time

for challenging A16 itself has long passed. Plaintiffs further

argue that the environmental assessment accompanying approval for

23 2015 sector operations plans did not address the transition to

industry funding. This argument fails because supplementation is

only required “if the new information is sufficient to show that

the remaining action will ‘affec[t] the quality of the human

environment’ in a significant manner or to a significant extent

not already considered.” Marsh v. Or. Nat. Res. Council,

(quoting

(2)(c) (emphasis

added). Here, the impact of industry funding was already

considered, and plaintiffs have failed to identify any new

circumstances that would require a supplemental statement.

Accordingly, the court rejects plaintiffs’ argument premised on

NEPA.

3. Constitutional claims

Plaintiffs’ final arguments rest on the United States

Constitution. The court notes at the outset that none of the

plaintiffs’ constitutional arguments challenge industry funding;

rather, they challenge at-sea monitoring, a provision which has

long been in place, for which the time to challenge has long

expired. Nevertheless, plaintiffs specifically argue that the

ASM requirement itself violates the 4th and 10th Amendments, as

well as the Appointments Clause, U.S. Const., art. II, § 2, cl.

24 2 .13 As explained below, the court finds each argument

meritless.

a. Fourth Amendment

Plaintiffs first argue that the presence of at-sea monitors

amounts to an unconstitutional warrantless search. The court

disagrees. Even assuming that ASM presence constitutes a search

-- an assumption the Secretary accepts only for purposes of

argument -- warrantless administrative searches of closely

regulated industries are valid. See New York v. Burger,

(1987). The test for determining if an industry is “closely

regulated” is whether the regulatory presence is “so pervasive

that business owners cannot help but know that their commercial

properties may be periodically inspected for specific purposes.”

Rivera-Corraliza v. Morales,

(1st Cir. 2015)

(citing Burger,

n. 16)). So it is here. See

Lovgren v. Byrne,

, 865 n.8 (3rd Cir. 1986) (noting

“pervasive regulation” of the fishing industry “since the

founding of the Republic.”); see also Balelo v. Balridge,

, 765 (9th Cir. 1984) (applying “closely regulated”

doctrine in holding that presence of monitors to support

13 Earlier in this litigation, plaintiffs also argued that industry funding of ASM also violated the Third Amendment’s prohibition against quartering of soldiers. They no longer advance that claim.

25 compliance with Marine Mammal Protection Act does not violate

Fourth Amendment, given long national history of commercial

fishing regulation).

Given the closely regulated nature of commercial fishing,

the ASM “searches” are reasonable within the meaning of the

Fourth Amendment if the government has a substantial interest in

regulating the business, the monitors’ presence furthers this

interest, and the regulations offer notice to the regulated.

Rivera-Corraliza,

. Here, all three criteria

are met. Plaintiffs do not seriously dispute the government’s

interest -- as expressed by the MSA -- in protecting fishery

resources. See

. Nor do they dispute that ASMs

further that interest. And finally, the explicit provisions of

the MSA give fishermen notice “that the government will conduct

periodic inspections for specific purposes.” Balelo, 724 F.2d at

765 (citing Donovan v. Dewey,

(1981));

(b)(8), 1881b. On this record, there is no basis

for this court to find or rule that the ASM program does not

violate the Fourth Amendment.14

14 Plaintiffs urge the court to rely on City of Los Angeles v. Patel,

(2015), in which the Court found that a municipal code requiring motel operators to provide guest information to police violated the Fourth Amendment. In so doing the Court observed that it had identified only four industries as “closely regulated.”

. Commercial fishing was not one of the four. The Court, however, did not hold that no other industry could be considered “closely regulated.” See, Patel,

26 b. Appointments Clause

The Appointments Clause “makes nomination and confirmation

the requisite appointment protocol for what have come to be known

as ‘principal officers’ of the United States but allows Congress

to permit a limited class of officials to appoint ‘inferior

officers’ without the need for confirmation.” United States v.

Hilario,

(1st Cir. 2000) (citing Edmond v. United

States,

(1997)); U.S. Const., art. II, § 2,

cl. 2. The clause applies only to the appointment of officers

“exercising significant authority pursuant to the laws of the

United States.” Edmond,

.

Plaintiffs claim that appointment of members to the various

Regional Councils established by the MSA runs afoul of the

Appointments Clause because of the extent to which Governors of

states within a particular council are involved in those

appointments. Because the Councils do not exercise “significant”

authority, the court rejects this argument. “Significant

authority over federal government actions comes from the ability

to promulgate, not propose, implementing regulations for a

fishery management plan or plan amendment. Under the [MSA], only

(Scalia, J., dissenting) (listing various industries held by courts of appeals to be “closely regulated”). Given that the Court of Appeals’s criteria post-dates Patel and does not restrict “closely regulated” industries to those listed in Patel, this court adheres to the Court of Appeals’s criteria as set forth in Rivera-Corraliza,

.

27 the Secretary of Commerce can promulgate implementing

regulations.” Nw. Envtl. Def. Ctr., Or., Inc. v. Evans, No. 87-

229-FR,

at *8 (D. Or. Aug. 12, 1988); Gulf

Restoration Network, Inc. v. Nat'l Marine Fisheries Serv.,

(D.D.C.) (“the FMP does not constitute final

agency action without promulgation of the corresponding

regulations: neither approval of the FMP nor failure to act on

it marks the end of the decisionmaking process; nor does the FMP

establish any rights or obligations or create any binding legal

consequences. Adoption of implementing regulations is

mandatory[.]”).

c. Tenth Amendment

Plaintiffs’ final argument is that the inclusion of state

marine fishery officials among council members “conscripts” state

officers to administer the MSA, in violation of the Tenth

Amendment. See Printz v. United States,

(1997). The argument warrants little discussion. State

officials are placed on Councils to provide advice regarding

state concerns. See

(b)(5). They can also

influence FMPs through their votes.

(b)(1)(A).

This is not a case of Congress attempting to “conscript state

[officials] into the national bureaucratic army.” Nat'l Fed. Of

Indep. Bus.,

. Unlike the Affordable Care

28 Act at issue in Nat'l Fed. of Indep. Bus., where Congress

intended to penalize states that did not participate in an

expanded Medicaid program, the MSA imposes no penalties or

coerced force where Councils are concerned. A state which does

not provide a representative will simply not have representation.

The court therefore rejects plaintiff’s Tenth Amendment

challenge.

IV. Conclusion

Ultimately, the voluminous administrative record

demonstrates that A16 -- including the industry funding

requirement -- was the end product of a lengthy period of

deliberation and public comment. See Lovgren,

(“The N.E. Council adopted . . . Amendment 16[] after 3 years’

work, which included several publications in the federal

register, eight public hearings, and receipt of numerous

comments.”). The record demonstrates that the Secretary received

considerable feedback on the ASM plan in general and the industry

funding aspect in particular. Some comments from industry

interests supported the monitor requirement and, in at least one

case, expressed the understanding that such costs, while a

potential burden, are an expected expense of doing business.

See doc. no. 58, Ex. 3 (comments by Cape Cod Commercial Hook

Fisherman’s Association & Georges Bank Fixed Gear and Hook

29 Sectors). At the same time, the Secretary received comments from

other industry interests pointing out the financial hardship that

monitoring costs would create,

at Exs. 7, 16. Against this

legal and factual backdrop, and for the reasons set forth herein,

the court finds that plaintiffs’ suit is untimely and, in the

alternative: 1) that the industry funding requirement is

authorized by the MSA and does not violate the Anti-Deficiency

Act, The Miscellaneous Receipts Act or the Commerce Clause; 2)

that the government did not violate the Regulatory Flexibility

Act or the National Environmental Policy Act in implementing the

funding requirement; and 3) that Amendment 16 does not violate

the 4th or Tenth Amendments.

Accordingly, the Secretary's motion for summary judgment15

is GRANTED. The plaintiffs' motion for summary judgment10 is

DENIED.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: July 29, 2016

15 Doc. no. 56. 10 Doc. no. 53.

30 cc: Eric R. Bolinder, Esq. Erica L. Marshall, Esq. Ryan P. Mulvey, Esq. Stephen S. Schwartz, Esq. Pierre A. Chabot, Esq. James C. Wheat, Esq. Allison C. Finnegan, sq. Andrea Gelatt, Esq.

31