FISHERMEN'S DOCK CO-OP. v. Brown, 867 F. Supp. 385 (E.D. Va. 1994)

*386 Waverley Lee Berkley, III, McGuire, Woods, Battle & Boothe, Norfolk, VA, Stanley M. Brand, David E. Frulla, Brand & Lowell, Washington, DC, for plaintiffs Fishermen's Dock Co-op., of Point Pleasant Beach, NJ, Belford Seafood Co-op. of Belford, NJ, Wanchese Fish Co. of Virginia, North Carolina and Massachusetts, and Seafarers Intern. Union.

George M. Kelley, III, U.S. Attys. Office, Norfolk, VA, Charles W. Brooks, U.S. Dept. of Justice, Environment and Natural Resources Div., Washington, DC, Joel G. MacDonald, U.S. Dept. of Commerce, National Oceanic and Atmospheric Admin., Office of Gen. Counsel, Gloucester, MA, for defendant Ronald H. Brown, Secretary of Commerce.

DOUMAR, District Judge.

Plaintiffs bring this action challenging the 1994 commercial catch quotas for summer flounder set by the Secretary of Commerce, Ronald H. Brown, and his designees, and asking that the quota be set aside. For the reasons discussed below, this Court finds that the plaintiffs' request should be GRANTED; accordingly, the 1994 commercial catch quota is invalidated to the extent that it deviates downward from the figure reached using the best scientific information available, which was 19.05 million pounds for 1994.

Plaintiffs are a coalition of owners and operators of fishing vessels from up and down the Eastern Seaboard and organizations representing them.^[1] Plaintiffs brought *387 this action against the Honorable Ronald H. Brown, Secretary of the Department of Commerce (the "Secretary"), in his official capacity, pursuant to the Magnuson Fishery Conservation and Management Act, 16 U.S.C. § 1801 et seq. (the "Magnuson Act") seeking review of the 1994 commercial catch quota for the summer flounder fish species (the "1994 quota").

Congress passed the Magnuson Act in 1976 to regulate fishery resources in federal waters off the coasts of the United States. 16 U.S.C. § 1801(b). Under the Magnuson Act, Regional Fishery Management Councils promulgate fishery management plans ("FMPs") which regulate fishing within their respective regions. 16 U.S.C. § 1852(h). The fishery management plans must be consistent with the seven national standards for fishery conservation and management set forth at 16 U.S.C. § 1851.^[2] Fisheries off the Atlantic Coast are managed by three different councils: the New England, Mid-Atlantic, and South Atlantic Fishery Management Councils. 16 U.S.C. § 1852(a) (1)-(3). These three councils, in conjunction with the Atlantic States Marine Fisheries Commission ("ASMFC"), prepared what the parties refer to as "Amendment 2," a body of regulations under which the summer flounder quotas were set. 50 C.F.R. § 625.20.

Amendment 2 requires that the Summer Flounder Monitoring Committee ("SFMC") review a number of factors^[3] "to determine the allowable levels of fishing and other restrictions necessary to result in a fishing mortality rate of 0.53 for the year 1994, and using that information, recommend a commercial quota to the Demersal Species Committee of the Mid-Atlantic Fishery Management Council ("MAFMC" or "Council") and to the ASMFC. 50 C.F.R. § 625.20(b) (1). Final approval of the FMP is reserved for the Secretary of Commerce; he must examine the plan to determine whether it is consistent with the National Standards, the Magnuson Act, and other applicable law. 16 *388 U.S.C. § 1854(a). If the Secretary (or the Regional Director of the National Marine Fisheries Service ("NMFS"), on behalf of the Secretary) does not notify the Council that he disapproves of the FMP, the plan takes effect after publication in the Federal Register and after 95 days have elapsed from the time of receipt. 16 U.S.C. § 1854(b) (1) (A). Alternatively, the FMP takes effect if the Secretary (or Regional Director of NMFS) notifies the Council in writing that he does not intend to disapprove of the plan between 60 and 95 days after receipt. 16 U.S.C. § 1854(b) (1) (B).

After accumulating and analyzing scientific information about the factors set forth at 50 C.F.R. § 625.20, the SFMC provided the Council with three potential quota figures for meeting a fishing mortality rate of 0.53 in 1994: the geometric mean (19.05 million pounds)^[4], one standard deviation above the mean, and one standard deviation below the mean (16.005 million pounds). The Council set the 1994 summer flounder commercial catch quota at 16.005 million pounds, one standard deviation below the geometric mean. 59 Fed.Reg. 10587 (1994).

Plaintiffs contend that the 1994 commercial quota recommendation made by defendant's designees as required by Amendment 2, and accepted by the defendant, violated National Standard 2 of the Magnuson Act, 16 U.S.C. § 1851(a) (2). Specifically, plaintiffs claim that defendant's designees failed to use the best scientific information available to them in a number of areas when setting the 1994 quotas, and instead substituted their own arbitrary and overly conservative estimates of recruitment, stock size, and discard mortality, then arbitrarily deviated from the figure reached using these estimates. Moreover, plaintiffs contend that defendant's designees completely disregarded other available scientific information, including commercial catch indices and sea surface temperature. As a result, plaintiffs claim that the 1994 quota is arbitrary and capricious. See 16 U.S.C. § 1855(d). Defendant counters that the information used in setting the quota was the best scientific information available at the time the quota was set. Further, defendant claims that the estimates utilized in creating the quota were derived directly from the data and based on the opinions and analyses of the scientists involved in the 16th Summer Assessment Workshop, the meeting at which the summer flounder data is presented and subjected to peer review. Therefore, defendant contends, the 1994 commercial catch quota was not arbitrary and capricious.

Plaintiffs also argue that the meetings at which these decisions were made were not open to the public, as required by 16 U.S.C. § 1852(j).^[5] Plaintiffs contend that the process systematically excluded the opinions and input of commercial fishermen, and discouraged them from attending the meetings at which the quotas were set. Defendant counters that his designees complied with the guidelines for conducting business at council and committee meetings.

Plaintiffs brought what appears to have been a similar suit during the summer of 1993 in the United States District Court for *389 the District of Columbia challenging the 1993 flounder quota (the "1993 suit"). The District Court was unable to hear the parties' cross motions for summary judgment in the 1993 suit until December 14, 1993, and at that time found the matter moot because the effective period of the 1993 quota was to expire on December 31, 1993. The court dismissed the suit without prejudice and instructed plaintiffs that if they brought any challenges to later summer flounder quotas in the District of Columbia, the court would consider those challenges related to the 1993 suit so that the judge familiar with the facts and law could hear them. Plaintiffs have appealed the court's ruling that the 1993 suit was moot.

Plaintiffs filed the present suit in this court on April 5, 1994. On June 3, 1994, defendant filed an Answer and a Motion and Memorandum in Support to Transfer Venue to the United States District Court for the District of Columbia. On June 14, 1994, plaintiffs filed a Memorandum in Opposition to defendant's Motion and a Motion to Expedite Consideration of this Case pursuant to 16 U.S.C. § 1855(b) (4),^[6] on the grounds that the effective period of the quota expires on December 31, 1994. On July 12, 1994, the Court denied defendant's Motion to Transfer Venue and granted plaintiffs' Motion to Expedite Consideration of the case.

Counsel for both sides entered a Joint Motion to Submit Case on Cross Motions for Summary Judgment on July 26, 1994. Both parties filed their Motions for Summary Judgment on August 15, 1994. On September 12, 1994, the Court heard oral argument on the motions, and on September 19, 1994, the Court denied both Motions for Summary Judgment and ordered the parties to prepare to try the issue of whether defendant's designees used the best scientific information available in setting the 1994 summer flounder quota. Trial commenced on October 17, 1994.

1. Quota setting is an imperfect process. It appears to the Court that despite the enormous number of tables generated and the amount of scientific information presented, the scientists are still far from certain about such things as stock size, recruitment and the like. The problem with attempting to make these determinations is that scientific data as to certain environmental factors is simply not available; therefore, scientists can only guess as to the impact environmental factors will have on the fishery in any given year. To the extent that good scientific information on many of these factors exists, the scientists have that information; however, the monitoring of environmental factors could be much better. In many instances, the best scientific information available appears to be whatever information the scientists have collected.

2. Generally, the Court finds that the information utilized by the scientists was deficient in several areas. However, the Court also finds that plaintiffs have been unable to show how other information would affect any of the results or the quota setting process.

3. It appears to the Court that the geometric or arithmetic mean used in any particular situation was chosen so as to generate the most conservative result in the quota setting process. Defendant's designees failed to consistently utilize geometric versus arithmetic means, and in each instance chose the one which would cause the most conservative result, thus reducing the amount of harvestable fish.

4. Defendant's designees failed to show the specific areas where the New England Fisheries Science Center (NEFSC) survey, the main survey relied upon by the defendant's designees in compiling various data on the fishery, was taken; i.e., what quadrants of the fishery were covered by the survey. This problem is relevant because defendant's designees rejected commercial surveys in favor of the information garnered from the NEFSC survey. However, both the fishermen and the scientists testified that to obtain an understanding of the entire fishery, it would be necessary to examine the offshore *390 areas, which are incorporated in the commercial surveys and would provide a more comprehensive assessment of the fish in the offshore area. Moreover, the Court finds the NEFSC survey underinclusive because, as testimony showed, it covered the northern areas of the fishery, near the Woods Hole, Massachusetts, starting point, very comprehensively, but did not adequately survey the southern parts of the fishery, which stretches as far south as the southern border of North Carolina.

5. Defendant's designees failed to incorporate measures of sea surface temperature available from the NEFSC survey into the abundance indices derived from the survey. Incorporating this information would have improved the precision of the indices and, accordingly, the precision of the stock size estimates. Moreover, fishermen testified that they utilize sea surface temperature to find summer flounder; although the fishermen are not scientists, it is certainly in their interests to know where the fish are. However, plaintiffs failed to show how considering sea surface temperature would actually impact upon the quota or the information obtained from the NEFSC survey.

6. Defendant's designees estimated discard mortality at 100%, despite a recommendation in the Summer Flounder Advisory Report that the discard mortality rate be set at 80% (AR at 169), despite other surveys indicating mortality rates as low as 6%, and despite the testimony of fishermen that the assumptions used in setting the rate were not based on the actual experiences of fishermen. The scientists appeared unfamiliar with the customs of the fishermen, and in this case, the Court finds that the fishermen are a more reliable source of information than the scientists. This Court finds that a 100% discard mortality rate does not reflect the best scientific information available. Again, however, the plaintiffs cannot show what impact a lower discard mortality rate would have had on the quota. The Court accepts the testimony of plaintiffs' expert, Dr. Hester, and rejects the testimony of defendant's designee Dr. Gabriel, and finds that using a 100% mortality rate lowered the quota for 1994, although it is not clear by how much, or whether that figure would substantially change the quota.

7. Defendant's designees used 0.20 as the estimate for natural mortality rates. Plaintiffs argue that defendant's designees could have used 0.27 or 0.28 as the rate of natural mortality. Plaintiffs' expert testified, however, that the use of 0.20 was common in these analyses, although he felt that it was preferable to use 0.27 or 0.28. It is unclear to the Court how and by how much the substitution of 0.27 or 0.28 for 0.20 would have changed the quota ultimately set by defendant's designees. Accordingly, the Court finds that the use of 0.20 is commonly accepted as the best scientific information.

8. Defendant's designees used an estimate of recruitment (the measure of how many fish are added to the stock in a given year) for both age 0 and age 1 fish that was one standard deviation below the geometric mean. As a result of using these estimates, the quota was set sixteen percent below the level which would have resulted from the use of the geometric mean estimates. AR at 83. Contrary to the action taken in 1994, in setting both the 1993 and 1995 quotas, the Council used the geometric mean for estimating recruitment of age-0 fish. In the 1995 quota process, however, staff recommended use of the figure one standard deviation below the mean. That recommendation was rejected by the Demersal Species Committee of the MAFMC, which used the geometric mean figure of recruitment. The Court finds that the geometric mean gave a sufficiently conservative result, as it was more probable than not (59% probable) that the target fishing mortality of 0.53 would be reached and not exceeded using the geometric mean.

9. The SFMC presented the Council with three possible quota levels for 1994: the geometric mean, one standard deviation above and one standard deviation below. The Council chose to implement the figure one standard deviation below the mean, 16.005 million pounds, rather than the geometric mean figure of 19.05 million pounds. Using this figure gave the Council an 81% chance of meeting the target fishing mortality of 0.53 for 1994. Using the geometric mean would have given the Council a 59% *391 chance of meeting the 0.53 requirement. Obviously, choosing one standard deviation above the mean was never considered, as using that figure would have decreased the probability of meeting 0.53 to beneath 50%. The Council chose to use one standard deviation below the mean despite its awareness at the time the quota was set that use of the geometric mean in 1993 had produced a projected target fish mortality of 0.48 for that year, 0.05 below the mandated target fish mortality.

10. Throughout the quota setting process, public input was not encouraged but rather discouraged. Defendant's designees did not desire to consider the opinions and experiences of commercial fishermen relevant in analyzing factors for the quota setting process.

Judicial review under the Magnuson Act is governed by 16 U.S.C. § 1855(b), which authorizes judicial review to the extent permitted by 5 U.S.C. § 701 et seq., the Administrative Procedure Act. Specifically, regulations promulgated by the Secretary may be overturned only if the court finds them to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or without observance of procedure required by law. 16 U.S.C. § 1855(b) (1) (B) (adopting the standards of 5 U.S.C. § 706(2) (A) (D)); see also Kramer v. Mosbacher, 878 F.2d 134, 136 (4th Cir. 1989).

Given these parameters, agency decisions are entitled to an almost insurmountable degree of deference. "In short, the Secretary has broad discretion in promulgating regulations to implement the [FMP] and the Court may only consider `whether this discretion was exercised rationally and consistently with the standards set by Congress....'" Southeastern Fisheries Ass'n v. Mosbacher, 773 F. Supp. 435, 439 (D.D.C. 1991), citing Louisiana v. Baldridge, 538 F. Supp. 625, 628 (E.D.La.1982) and Maine v. Kreps, 563 F.2d 1052, 1055 (1st Cir.1977); C & W Fish Co. v. Fox, 931 F.2d 1556, 1562 (D.C.Cir.1991); Parravano v. Babbitt, 837 F. Supp. 1034, 1042 (N.D.Cal.1993). The Secretary's actions are presumed valid; accordingly, the Court cannot simply substitute its judgment for the Secretary's. Washington Crab Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1441 (9th Cir.1991); National Fisheries Institute, Inc. v. Mosbacher, 732 F. Supp. 210, 219 (D.D.C.1990). Instead, the court must find that the administrative record is so devoid of justification for the Secretary's decision that the decision is necessarily arbitrary and capricious. Organized Fishermen of Florida, Inc. v. Franklin, 846 F. Supp. 1569, 1573 (S.D.Fla.1994); Southeastern Fisheries Ass'n v. Mosbacher, 773 F. Supp. at 439; National Fisheries Institute, Inc. v. Mosbacher, 732 F. Supp. at 219.

Before beginning this analysis, it is important to recall the twin goals of the Magnuson Act: conservation of fishery resources and promotion of commercial and recreational fishing. According to Congress, one of its purposes in passing the Magnuson Act was "to promote domestic commercial and recreational fishing under sound conservation and management principles." 16 U.S.C. § 1801(b) (3); see also 16 U.S.C. § 1851(a) (1) ("Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery."). Any analysis of the process that culminated in the 1994 commercial fishing quota must be undertaken with these dual objectives in mind.

Although the Federal Advisory Committee Act, 5 U.S.C. app. § 5 et seq., does not apply to the meetings of the Committees or Councils authorized by the Magnuson Act, the Act itself contains public notice requirements. 16 U.S.C. § 1852(j) states in relevant part:

(2) The following guidelines apply with respect to the conduct of business at meetings of a Council, and of the scientific and statistical committee or advisory panels of a Council:

*392 (A) Unless closed [due to national security concerns], each regular meeting and each emergency meeting shall be open to the public....

(C) Timely public notice of each regular meeting and each emergency meeting, including the time, place, and agenda of the meeting, shall be published in local newspapers in the major fishing ports of the Council's region (and in other major fishing ports having a direct interest in the affected fishery) and such notice may be given by such other means as will result in wide publicity. Timely notice of each regular meeting shall also be published in the Federal Register.

(D) Interested persons shall be permitted to present oral or written statements regarding the matters on the agenda at meetings.

This requirement has gone largely unexamined by courts. But see Washington Crab Producers, Inc. v. Mosbacher, 924 F.2d at 1448 (rejecting a challenge to the public comment process based on plaintiffs' failure to raise a concrete objection to the process).

However, the public notice requirements of the Magnuson Act are analogous to those found in the Federal Advisory Committee Act ("FACA"), 5 U.S.C. app. § 5 et seq. Although the Magnuson Act specifically exempts the FMP creation process from FACA's requirements, the Act itself imposes substantially similar requirements.^[7] For that reason, the cases on remedies for violations of FACA are instructive. In Alabama-Tombigbee Rivers v. Department of Interior, the United States Court of Appeals for the Eleventh Circuit upheld a permanent injunction against the use of an advisory committee report in determining whether the Alabama sturgeon was an endangered species because the committee had not complied with FACA's requirements. 26 F.3d 1103, 1107 (11th Cir. 1994). The Court noted that "[p]ublic observation and comment must be contemporaneous to the advisory committee process itself.... If public commentary is limited to retrospective scrutiny, the Act is rendered meaningless." Id. at 1106. Similarly, the court in Association of American Physicians & Surgeons v. Clinton, 813 F. Supp. 82, 94 (D.D.C.1993), rev'd on other grounds, 997 F.2d 898 (D.C.Cir.1993), stated,

While it may be true that plaintiffs will have other opportunities to affect the course of the legislation, FACA's purpose is also to open contemporaneously to the light of public scrutiny the workings of advisory committees subject to FACA.

Therefore, there is precedent supporting the idea that the failure to comply with public notice requirements is sufficient to restrain and indeed, overturn, executive agency action.

Defendant's designees have submitted sufficient proof of compliance with 16 U.S.C. § 1852(j)'s requirements on publication of meeting times and places to satisfy the Court. There was never a question that the SFMC, Demersal Species Committee and MAFMC meetings were advertised in the Federal Register. However, defendant's designees have also submitted affidavits of publication of the September 1, 1993, SFMC meeting and the September 28-30, 1993, Demersal Species Committee and MAFMC meetings for papers in major port cities along the Atlantic Coast, including Asbury Park, New Jersey; Salisbury, Maryland, Newport News, Virginia; various locations in New York; Atlantic City, New Jersey; Providence, Rhode Island (September 1 meeting only); and Norfolk, Virginia. Additionally, defendant's designees have submitted the mailing lists for the Council newsletter, which contains members of the press and private citizens, and the mailing list for SAW meetings, which includes members of the press and private citizens. Also, defendant's designees have provided the Court with copies of the NEFSC newsletter, "Research *393 Highlights," and its mailing list, which again contains members of the press, private persons, and fisheries. These publications discuss the outcome of the SAWs, but apparently do not announce the meetings.

The Court is still skeptical as to the willingness of staff to include the public in the quota setting process, however. At best, staff paid lip service to the requirements of the Magnuson Act. In the instances that information about meetings was disseminated, it was not widely published; staff response to public inquiries as to the advertisements was discouraging. When members of the public contacted Director John Bryson about attending the Summer Flounder Monitoring Committee Meeting, at which the calculations for setting the quota were discussed and quota recommendations were developed, they were told that public input was inappropriate at that level, despite the willingness of those persons to attend. AR at 102; see also AR at 173 (Bryson told the public that the SFMC meeting wasn't participatory, and that they should attend the Demersal Species Committee meeting). Although the Court is suspicious as to how "open" these meetings actually are, and believes that input from non-scientists is rarely considered, the Court finds that defendant's designees have complied with the notice and advertising requirements of 16 U.S.C. § 1852(j).

16 U.S.C. § 1851(a) (2) states, "Conservation and management measures shall be based on the best scientific information available." Scientific information, as defined by 50 C.F.R. § 602.12(b) (1), includes biological, ecological, economic and social data. That information need not be absolutely comprehensive. 50 C.F.R. § 602.12(b) explains that "[t]he fact that scientific information concerning a fishery is incomplete does not prevent the preparation and implementation of an FMP." Further, the regulations provide for differences in the information. "If there are conflicting facts or opinions relevant to a particular point, a Council may choose among them, but should justify the choice." 10 C.F.R. § 602.12(b) (1). Information obtained after the FMP is created should be incorporated wherever possible, but the FMP need not be reformulated based on new information unless the information points to changes in the fishery that are so drastic as to warrant revising the management objectives or measures. 50 C.F.R. § 602.12(b) (2).

Reviewing courts have been reluctant to find that the best scientific information available was not utilized. See Northwest Environmental Defense Center v. Brennen, 958 F.2d 930, 936 (9th Cir.1992); Washington Crab Producers, 924 F.2d at 1448-49; Southeastern Fisheries Ass'n, 773 F. Supp. at 442; National Fisheries Institute, 732 F. Supp. at 220. In the one case in which a court found that the Secretary failed to use the best scientific information available, the court held that although the Secretary was entitled to reject the Pacific Fishery Management Council's recommendation, "the particular manner by which the Secretary chooses to address the problem must have some support in the Administrative Record...." Parravano v. Babbitt, 837 F. Supp. at 1046. The court noted the absence of justifications for the Secretary's choice in the administrative record. Id. The Magnuson Act, according to the court, "ensure[s] that such ... decisions are adequately explained and based on the best scientific evidence available and not simply a matter of political compromise." Id. at 1047.

This Court is not a scientist. It will not substitute its own opinions about scientific methods for those of the scientists comprising the Summer Flounder Monitoring Committee. See, e.g., Washington Crab Producers, 924 F.2d at 1441. What this Court will do, however, is determine whether the decisions made by the MAFMC on behalf of defendant are so devoid of support in the administrative record as to be arbitrary and capricious. Plaintiffs bear a heavy burden in this regard. They cannot only show that defendant's designees could have used other methods or considered other factors. They must also show how and by how much using the "better" scientific information would have changed the 1994 commercial catch quota, if the Court is to find the quota arbitrary and *394 capricious.^[8] Each disputed figure or process will be discussed in turn.

Defendant's designees alternated in their use of geometric and arithmetic means, depending on the figure being calculated. Geometric means, according to defendant's designees, are used when the arithmetic mean will not give the most common value because of the presence of outliers, very high or low values which distort the end result. The geometric mean applies a transformation to the data which brings the mean closer to the most frequently observed value in the data than the arithmetic mean would. Plaintiffs' expert agreed that the geometric mean is used to reduce uncertainty in data, and used the geometric mean figure to analyze discard rates based on the data in the administrative record.

While the Court accepts this rationale for the use of geometric versus arithmetic means, it is clear to the Court that the decision to use a particular type of mean was based on achieving the most conservative and conservationist results. However, plaintiffs have failed to show why using the arithmetic mean in assessing recruitment and quota values would have constituted the best scientific information available. Moreover, plaintiffs have offered no evidence of the impact that substituting the arithmetic for the geometric mean in either of these calculations would have had on the 1994 commercial catch quota. Accordingly, the Court finds that defendant's designees were not arbitrary and capricious in using the geometric rather than the arithmetic mean to make the recruitment and quota size calculations.

Plaintiffs contend that defendant's designees completely excluded commercial catch indices from their quota setting analyses. In creating the virtual population analysis ("VPA"), the set of calculations from which stock size is estimated, defendant's designees did not include commercial catch indices, and instead used only the state surveys, which were not shown to be offshore surveys, and two NEFSC trawl surveys. The failure to include commercial catch indices in the VPA, plaintiffs argue, meant that defendant's designees lacked information as to fish in the offshore areas. Defendant's designees admit that they excluded commercial indices from the VPA, but contend that because commercial catch data was incorporated in the catch-at-age matrix, which also went into quota calculations, including the commercial indices would have given the commercial catch information double weight.

There is no doubt that the commercial catch indices are a good source of information about offshore abundance of summer flounder. Fishermen follow the fish; the commercial catch indices encompass the areas where fishermen have discovered the richest sources of summer flounder. Intuitively, it seems that the inclusion of this information could only have given the scientists a more complete picture of the fishery.

Nonetheless, plaintiffs have again been unable to show the actual effect that the inclusion of the commercial catch indices would have had on the quota levels. Accordingly, the Court cannot find that the failure to include this information in the VPA was arbitrary and capricious.

The Court heard testimony, both from experts and from fishermen, that sea surface temperature is relevant to assessing stock abundance levels of summer flounder. The fishermen testified that sea surface temperature definitely has an effect on where summer flounder are found, and stated that summer flounder seem to be most abundant at the 50 to 60 degree range of sea surface temperature. Plaintiffs' expert testified *395 further that it is standard practice in taking sea surveys to include environmental factors such as sea surface temperature, and that the NEFSC surveys routinely measure this variable. Defendant's designees countered that because the NEFSC trawl surveys cover the entire summer flounder fishery on the Atlantic Coast, the surveys control for the range of temperatures in which the summer flounder can be found. Temperature does not have to be considered as an independent variable because it is already incorporated in the surveys' other measures.

Ultimately, the Court is again presented with the same question: how would incorporating sea surface temperature affect the summer flounder 1994 commercial catch quota? Plaintiffs allege that including this variable would have improved the precision of the abundance estimates derived from the VPA, in which the NEFSC data was used. Plaintiffs do not explain, however, how or by how much the quota would have been changed if sea surface temperature had been considered. Therefore, the Court cannot find that the excluded sea surface temperature was the best scientific information available; thus, defendant's failure to include that information was not arbitrary and capricious.

Defendant's designees used a 100% estimate of discard mortality in calculating the quota; in other words, defendant's designees assumed that all fish caught and discarded by fishermen would die. However, evidence in the record rebuts this assumption. The Summer Flounder Advisory Report, which was reviewed by the SFMC, recommended using an 80% estimate of discard mortality.^[9] AR at 169. Moreover, the SFMC considered a study suggesting that discard mortality might be as low as 6%, although the proponent of that study recognized that the study was far from conclusive and that "more research is warranted." AR at 107. Defendant's designees also based their discard mortality rate on assumptions about how fishermen were discarding fish. Defendant's designees testified that fishermen used a board with a nail driven through it (known as a "pick") to pick up fish and throw them overboard, nailing the fish in the head so as not to damage the meat. However, the fishermen testified that often they use a device like a pushbroom, with a board in the place of the brush, to push fish overboard, which poses less trauma to the fish. Additionally, the fishermen indicated that the pick used in picking fish is the size of a hypodermic needle rather than a nail, and that fish are usually picked through the tail rather than in an area that would do great damage to the fish. It is clear from the testimony of the fishermen, which the Court accepts, that the scientists have based the 100% discard mortality on erroneous assumptions.

There was conflicting trial testimony as to how a lower estimate of discard mortality would have affected the quota. Predictably, defendant's designees asserted that lowering the discard mortality would ultimately have lowered the quota, and plaintiffs' expert testified that lowering discard mortality estimates would have increased the quota. The Court accepts the testimony of the plaintiffs' expert in this regard. Once again, however, plaintiffs failed to give the Court a concrete answer as to the effect that incorporating a lower estimate of discard mortality would have on the quota. Consequently, the Court finds that the use of a 100% discard mortality rate was arbitrary and capricious, but did not substantially affect the quota.

Defendant's designees hold the rate of natural mortality constant at 0.20 for the purposes of the quota setting equations. Even plaintiffs' expert acknowledged in his testimony that the use of 0.20 as the natural mortality rate is a common approach in VPAs. However, plaintiffs' expert contended that the better approach would be to use 0.27 or 0.28 as the natural mortality rate because it took into account sex and age differentiations *396 among summer flounder. Defendant's designees explained that they rejected the use of 0.27 or 0.28 because although the method used for arriving at those numbers may be sound, the data used to reach those results was either unavailable or unreliable. Again, the parties differed as to what effect the use of the slightly higher natural mortality rate would have on the quota.

Plaintiffs cannot simply substitute their judgment for that of defendant's designees as to what is the better procedure for estimating natural mortality is. Plaintiffs have the affirmative burden of showing both why the figure used by defendant's designees is not the best scientific information available, and why either of the figures propounded by plaintiffs is the best scientific information available. Because plaintiffs have failed to carry that burden, the use of 0.20 as the rate of natural mortality is not arbitrary and capricious.

For age 0 fish, three numbers were generated to estimate recruitment for setting the 1994 quota: the geometric mean (33.8 million), one standard deviation above the mean (50.4 million) and one standard deviation below the mean (22.7 million). Similarly, for age 1 fish, three numbers were generated: the geometric mean (32.9 million), one standard deviation above the mean (41.3 million), and one standard deviation below the mean (24.4 million). The defendant's designees opted to use the figure one standard deviation below the mean in estimating recruitment for the 1994 quota. It is interesting to note that in setting both the 1993 and 1995 quotas, the Council chose to use the geometric mean figure of recruitment (although in the 1995 quota setting process, staff recommended that the Council use the figure one standard deviation below the mean and the Council rejected that recommendation). Defendant's designees defend this choice as reflecting both the assessment information and the SFMC, Demersal Species Committee and Council's concerns about not being able to meet the target fish mortality rate of 0.53.

Both parties agree that the use of recruitment estimates one standard deviation below the mean caused the quota to be set sixteen percent below the level where it would have been set had the geometric means for age 0 and age 1 fish recruitment been used (16.005 million pounds v. 19.05 million pounds). The Court finds that the use of figures one standard deviation below the mean was arbitrary and capricious. The use of a figure one standard deviation below the mean was chosen not because it was the best scientific information available, but solely because it increased the percentages of reaching not a balanced result but a result which protected the summer flounder stock to the detriment of the fishermen.

The Court is not critical of the Committee and the Council's desire to conserve the summer flounder resource; conservation is a laudable goal. But Congress, in the Magnuson Act, expressed a desire to balance conservation against the rights of commercial and recreational fishermen. It is clear that the "standard deviation," whether one, one and one-half or whatever figure was substituted, was picked to place a scientific name on what was plainly an unbalanced decision. By arbitrarily choosing levels of recruitment just to conserve the stock, the Council neglected to balance the goals of the Act. This is an arbitrary choice which is not supported by the best scientific evidence available and therefore, cannot stand.

The Court has found for the most part that defendant's designees used the best scientific information available in arriving at quota figures presented to the Council, despite the reservations expressed by the Court as to some of those figures. Using that information, the SFMC presented three potential quota levels to the Council: the geometric mean, and one standard deviation both above and below the mean. The Council chose to implement a quota one standard deviation below the geometric mean, resulting in a quota of 16.005 million pounds rather than a quota of 19.05 million pounds, a sixteen percent difference. Defendant's designees explained *397 that using the lower figure increased the probability of reaching 0.53, the target fishing mortality for 1994, from 59% at the geometric mean to 81% with the lower figure.

This Court finds that the Council's decision to implement a quota one standard deviation below the geometric mean failed to utilize the best scientific information available, and therefore was arbitrary and capricious. The geometric mean figure resulted from analyzing all of the best scientific information available, the information upon which the Council must rely by law. At the time of setting the 1994 quota, it was then projected that the 1993 quota, which was set at the geometric mean with no "deviation," would result in a fishing mortality of 0.48. This was 5% more conservative than the goal of the Act for 1993. Deviating from the geometric mean in setting the 1994 quota was not using the best scientific information available; by using the standard deviation the Council rejected the figure obtained by the best scientific information, the geometric mean, and opted for a lower figure. If this theory were followed, the Council could have chosen any standard deviation below the mean one-half, one, two, or ten, as long as the Council increased its chances of achieving the goal. The choice itself is arbitrary and capricious because it rejects the figure derived from the best scientific information in favor of another figure altogether. It was not a balanced decision. It was a decision based not on science but on the sole goal of lowering the amount of fish taken from the stock.

Fishery management plans must balance the importance of conservation against support for commercial and recreational fishermen. Weighing the balance grossly in favor of conservation necessarily means harming fishermen, which was not Congress' expressed purpose when implementing the Magnuson Act.

The Court's decision that choosing one standard deviation below the mean is arbitrary and capricious is supported by the 1993 and the 1995 quotas, both of which were set using the geometric mean figure. In setting the quotas for 1993 and 1995, the Council seems to have recognized that basing its choice on the best scientific information available means balancing the goals of the Act and setting the quota at the figure arrived at by utilizing the best scientific information available.

In setting the 1994 quota, the quota in question, the defendant's designees have used a statistical term to justify an arbitrary and capricious choice. Clothing the arbitrary choice to deviate downward from the figure generated by the best scientific information available by using the term "standard deviation" is merely semantics and is in no way scientific. This they cannot do within the parameters of the Magnuson Act. Moreover, this arbitrary and capricious deviation clearly abandons Congress' goal of balancing conservation and fishing interests. Accordingly, this Court finds that pursuant to 16 U.S.C. §§ 1851(a) (2) and 1855(b) the 1994 summer flounder quota is invalid to the extent of the deviation from the geometric mean of the commercial catch quota. The commercial catch quota which was contested herein should be reset using the figure derived from the best scientific information available 19.05 million pounds, the geometric mean, replacing the quota set at one standard deviation below the mean, or 16.005 million pounds.

The defendant and his designees rejected the best scientific information available at the time the quota was set in establishing the 1994 summer flounder quota. To the extent that the commercial fishing quota was less than the geometric mean figure of 19.05 million pounds, the defendant and his designees acted arbitrarily and capriciously and the quota must be invalidated. Accordingly, this Court finds in favor of plaintiffs and ORDERS that the 1994 summer flounder commercial catch quota be invalidated to the extent that it is less than 19.05 million pounds. This action is remanded to the Department of Commerce for resetting of the quota in a manner consistent with this opinion.

IT IS SO ORDERED.

[1] Plaintiff Wanchese Fish Company of Virginia, North Carolina, and Massachusetts owns or operates forty boats in North Carolina, thirty boats in Virginia, and thirty boats in Massachusetts and employs more than 400 fisherman and approximately 500 shore workers. Plaintiff Fishermen's Dock Cooperative, Inc. of New Jersey represents twenty fishing vessel owners and operators having between them seventeen vessels and employing more than fifty fishermen and fifteen shore-side employees. Plaintiff Belford Seafood Co-operative of New Jersey has sixty vessels and eighty fishermen. Plaintiff Seafarers International Union of North America, which is headquartered in Maryland, represents fishermen in Massachusetts and New Jersey. Compl. at ¶¶ 6-9.

[2] 16 U.S.C. § 1851(a) sets forth the National Standards. It reads in relevant part:

(a) In general. Any fishery management plan prepared, and any regulation promulgated to implement any such plan ... shall be consistent with the following national standards for fishery conservation and management.

(1) Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery.

(2) Conservation and management measures shall be based upon the best scientific information available.

(3) To the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination.

(4) Conservation and management measures shall not discriminate between residents of different States. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges.

(5) Conservation and management measures shall, where practicable, promote efficiency in the utilization of fishery resources; except that no such measure shall have economic allocation as its sole purpose.

(6) Conservation and management measures shall take into account and allow for variations among, and contingencies in, fisheries, fishery resources, and catches.

(7) Conservation and management measures shall, where practicable, minimize costs and avoid unnecessary duplication.

16 U.S.C. § 1851(a). The statute also calls for the Secretary of Commerce to establish advisory guidelines based on these standards to assist in the development of fishery management plans. 16 U.S.C. § 1851(b).

[3] The factors that the Summer Flounder Monitoring Committee must review before making a quota recommendation to the Demersal Species Committee of the ASMFC include:

(1) commercial and recreational catch data;

(2) current estimates of fishing mortality;

(3) stock status;

(4) recent estimates of recruitment;

(5) virtual population analysis results;

(6) levels of noncompliance by fishermen or individual states;

(7) impact of size/mesh regulations;

(8) sea sampling and winter trawl survey data, or, if sea sampling data are unavailable, length frequency information from the winter trawl survey and mesh selectivity analyses;

(9) impact of gear other than otter trawls on the mortality of summer flounder

(10) any other relevant information.

50 C.F.R. § 625.20(a).

[4] Plaintiffs contend that the geometric mean quota would have been approximately 19 million pounds. The figure 19.05 million pounds was derived by taking the total quota at the geometric mean, 31.75 million pounds, and multiplying that number by 60%, the amount of the quota allotted to commercial fishermen. See Administrative Record ("AR") at 83.

[5] 16 U.S.C. § 1852(j) reads in relevant part:

(2) The following guidelines apply with respect to the conduct of business at meetings of a Council, and of the scientific and statistical committee and advisory panels of a Council:

(A) Unless closed in accordance with paragraph (3), each regular meeting and each emergency meeting shall be open to the public....

(C) Timely public notice of each regular meeting and each emergency meeting, including the time, place, and agenda of the meeting, shall be published in local newspapers in the major fishing ports of the Council's region (and in other major fishing ports having a direct interest in the affected fishery) and such notice may be given by such other means as will result in wide publicity. Timely notice of each regular meeting shall also be published in the Federal Register.

(D) Interested persons shall be permitted to present oral or written statements regarding the matters on the agenda at meetings....

[6] "Upon a motion by the person who files a petition under this subsection, the appropriate court shall assign the matter for hearing at the earliest possible date and shall expedite the matter in every possible way." 16 U.S.C. § 1855(b) (4).

[7] 5 U.S.C. app. § 10 states in relevant part,

(a) (1) Each advisory committee meeting shall be open to the public....

(3) Interested persons shall be permitted to attend, appear before, or file statements with any advisory committee, subject to such reasonable rules or regulations as the Director [Administrator] may prescribe.

5 U.S.C. app. § 10(d) further states that meetings within the purview of any of the ten exemptions of 5 U.S.C. § 552b(c) may be closed to the public.

[8] The Court is aware that plaintiffs are hampered in this effort by their inability to re-run defendant's designees' equations incorporating their own proposed figures. This Court does not expect an exact numerical accounting of what the impact of using other, better scientific information would be. Nonetheless, plaintiffs shoulder the substantial burden of giving the court some concrete indication of how and by how much the quotas would change if different information were used.

[9] There was testimony at trial from defendant's designees that lowering discard mortality to 80% would have had a negligible affect on the quota. The Court has not considered any information outside of that offered at trial in determining whether the discard mortality figure was the best scientific information available.