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Boatmen v. Locke

July 22, 2010

UNITED BOATMEN, ET AL., PLAINTIFF(S),
v.
GARY LOCKE, ET AL. DEFENDANT(S).



The opinion of the court was delivered by: Lois H. Goodman United States Magistrate Judge

ORDER ON MOTION TO SUPPLEMENT THE RECORD

Presently before the Court is Plaintiffs United Boatmen, Recreational Fishing Alliance, Inc.; Captain Victor M. Bunting, Jr.; JJC Boats, Inc.; Rudee Operations, LLC; Captain Michael Abbaticchio; Ocean Power, Inc.; Captain H.D. Parsons, II; Spring Lake Freezer Company; Captain John Sportfishing LLC; Old Inlet Bait and Tackle; and RJ Fishing Corp.'s (collectively, "Plaintiffs") Motion to Supplement the Administrative Record [Docket Entry Nos. 14, 25] designated in this action by Defendants Gary Locke, in his official capacity as Secretary of the United States Department of Commerce; the National Oceanic and Atmospheric Administration; and the National Marine Fisheries Service ("NMFS") (collectively, "Defendants"). In the alternative, Plaintiffs seek to complete the record. [Docket Entry No. 14-1 at 19]. Defendants oppose the motion. [Docket Entry No. 15].*fn1 After considering the arguments of the parties in their submissions [Docket Entry Nos. 14, 15, 25], pursuant to Rule 78, for the reasons set forth below, Plaintiffs' motion is denied.

I. Background

The Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801, et seq. (the "MSA") established eight regional fishery councils, responsible for preparing fishery management plans ("FMPs"). Plaintiffs contend that the Mid-Atlantic Fishery Management Council (the "Council"), which is charged with preparing FMPs for the Atlantic coastal area from Cape Hatteras, North Carolina to Maine, developed an FMP that addressed black sea bass management. The FMP was adopted at the Council's December 2008 meeting, with participation of representatives of various entities, including the Council, the Commission, NMFS and the public. [Docket Entry No. 14-1 at 10]. According to Plaintiffs, that FMP would govern the fishery until new measures were adopted at the December 2009 meeting. [Docket Entry No. 14-1 at 10].

This case arises out of the October 5, 2009 implementation by Defendants of an emergency rule (the "Emergency Rule") with regard to the temporary closure of recreational fishing for black sea bass along the east coast of the United States. According to Plaintiffs, the Emergency Rule pre-empted the FMP adopted at the December 2008 meeting. [Docket Entry No. 14-1 at 5].

Plaintiffs filed suit on November 4, 2009, challenging the Emergency Rule as violative of the MSA, as well as other procedural and regulatory statutes and guidelines. [Docket Entry No. 1]. On January 22, 2010, Defendants filed a Notice of Filing Administrative Record [Docket Entry No. 8], setting forth that the record had been certified and was being served on the parties on a CD-ROM disk.

At the initial conference conducted in this matter on March 23, 2010, counsel for Plaintiffs indicated an intention to supplement the record, and a schedule was included in the initial Pretrial Scheduling Order [Docket Entry No. 13], pursuant to which Plaintiffs were directed to provide the proposed supplemental documents to Defendants by April 2, 2010, and to file a motion by April 23, 2010 if Defendants did not consent to supplementation of the record. Defendants did not consent, and this motion followed.

At issue are the minutes from the December 2008 meeting (the "December 2008 Minutes"), at which the FMP regarding limitations on fishing for black sea bass was adopted. Plaintiffs contend that the December 2008 Minutes, which presumably reflect the discussion at that meeting, should be part of the record on appeal of the Emergency Rule. They also contend that correspondence between Plaintiff Recreational Fishing Alliance ("RFA") and Defendant Locke, dated October 2, 2009 and November 2, 2009 (the "RFA/Locke Correspondence"), should be included to supplement the record. In the alternative, they argue that the December 2008 Minutes should be allowed to "complete" the record.

II. Discussion

Judicial review under the Administrative Procedures Act ("APA"), the statutory scheme that governs this Court's review of the agency action at issue in this case, is limited. APA section 706(2)(A) states in pertinent part:

The reviewing court shall-

(2) hold unlawful and set aside agency action, findings, and conclusions found to be--

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in ...


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