Black v. Pritzker , 121 F. Supp. 3d 63 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANTHONY BLACK, et al,
Plaintiffs,
v.
PENNY SUE PRITZKER, Secretary, Civil Action No. 14-782 (CKK)
U.S. Department of Commerce, et al,
Defendants.
MEMORANDUM OPINION
(August 10, 2015)
Plaintiffs, Anthony Black, American Triumph LLC, Matthew James Freitas, Sea Quest
LLC, Benjamin Maughan, Jr., Ocean Conquest LLC, Keith Bass, Jr., Ocean Encounter LLC, Paul
Magellan, Sea Honor LLC, John Zolezzi, and Pacific Ranger LLC, bring this action against
Defendants, Penny Sue Pritzker, in her official capacity as Secretary of the U.S. Department of
Commerce (“Secretary”), and Kathryn D. Sullivan, in her official capacity as Administrator of the
National Oceanic and Atmospheric Administration (“NOAA Administrator”), to review the final
decisions of the NOAA Administrator imposing civil penalties on Plaintiffs for violations of the
Western and Central Pacific Fisheries Convention Implementation Act (“WCPFCIA”), 16 U.S.C.
§ 6901, et seq., and/or the Marine Mammal Protection Act (“MMPA”), 16 U.S.C. § 1361, et seq.
Specifically, Plaintiffs, owners and operators of six U.S. flag tuna purse seine fishing vessels, seek
an order setting aside each of the civil penalty determinations, totaling approximately $1,500,000.
Presently before the Court are the parties’ cross-motions for summary judgment. Upon
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consideration of the pleadings, 1 the relevant legal authorities, and the record as a whole, the Court
GRANTS Defendants’ [18] Motion for Summary Judgment and DENIES Plaintiffs’ [16] Motion
for Summary Judgment. Accordingly, judgment shall be entered for Defendants.
I. BACKGROUND
A. Statutory and Regulatory Framework
1. Western and Central Pacific Fisheries Convention Implementation Act
In 2007, the United States ratified the Convention on the Conservation and Management
of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (“Convention”).
III.G.58 at 003539. 2 One function of the Convention is to adopt Conservation and Management
Measures (“CMMs”) for members and participants of the Convention to implement through their
national laws and procedures. Id. at 003541. The Western and Central Pacific Fisheries
Convention Implementation Act (“WCPFCIA”), 16 U.S.C. § 6901, et seq., provides the authority
for the Secretary of Commerce (“Secretary”), in consultation with the Secretary of State and the
Secretary of the Department in which the Coast Guard is operating, to develop regulations to carry
out the obligations of the United States under the Convention, including the implementation of
1
While the Court bases its decision on the record as a whole, its consideration has focused
on the following documents: Pls.’ Mot. for Summ. J. (“Pls.’ Mot.”), ECF No. [16]; Pls.’ Mem. of
P. & A. in Supp. of Pls.’ Mot. for Summ. J. (“Pls.’ Mem.”), ECF No. [16-1]; Defs.’ Combined
Opp’n to Pls.’ Mot. for Summ. J. and Mem. in Supp. of Cross-Mot. for Summ. J. (“Defs.’ Opp’n
& Cross-Mot.”), ECF No. [19]; Pls.’ Combined Reply in Supp. of Mot. for Summ. J. and Opp’n
to Defs.’s Cross-Mot. for Summ. J. (“Pls.’ Reply & Opp’n to Cross-Mot.”), ECF No. [20]; and
Defs.’ Reply in Supp. of Cross-Mot. for Summ. J. (“Defs.’ Reply”), ECF No. [22]. The motion is
fully briefed and ripe for adjudication. In an exercise of its discretion, the Court finds that holding
oral argument would not be of assistance in rendering its decision. See LCvR 7(f).
2
To maintain consistency, the Court shall cite the Administrative Record in the same
manner that the parties use in their briefing. Accordingly, citations are by section (I, II, or III),
subsection (A, B, C, etc.), document number within subsection (1, 2, 3, etc.), and Bates or
document page number. See Pls.’ Mem. at 4 n.1; Defs.’ Opp’n & Cross-Mot. at 2 n.1.
2
CMMs. 16 U.S.C. § 6904(a). The Secretary has delegated this authority to the National Marine
Fisheries Services (“NMFS”), a component of the National Oceanic and Atmospheric
Administration (“NOAA”) within the Department of Commerce. III.G.58 at 003541. Further, the
enforcement of violations of the WCPFCIA are governed by the penalty provisions of the
Magnuson-Stevens Fishery Conservation and Management Act (“Magnuson Act”). 16 U.S.C. §
6905(c).
At issue in the instant action is CMM 2008-01, the Conservation and Management Measure
for Bigeye and Yellowfin Tuna in the Western and Central Pacific Ocean, which was adopted by
the Commission in December 2008. Pursuant to CMM 2008-01, specific provisions target
reducing fishing mortality on bigeye tuna and controlling fishing mortality on yellowfin tuna by
reducing the risk of overfishing during certain periods of time in 2009, 2010, and 2011. III.G.58
at 003541. Specifically, CMM 2008-01 prohibited purse seine fishing 3 on Fish Aggregation
Devices (“FADs”) between: August 1, 2009, and September 30, 2009; July 1, 2010, and September
30, 2010; and July 1, 2011, and September 30, 2011. III.I.1 at 003723-25. FADs were defined in
CM 2008-01 as “any man-made device, or natural floating object, whether anchored or not, that is
capable of aggregating fish.” Id. at 003721 n.1. In addition to the prohibition on the use of FADs,
CMM 2008-01 also required that during the specified periods of time, all purse seine vessels
engaged in fishing were to carry on board an observer from the Regional Observer Program to
monitor that the vessel did not deploy or service any FAD or associated electronic devices or fish
on schools in association with FADs. Id. at 003723.
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A purse seine is a “floated and weighted encircling net that is closed by means of a
drawstring threaded through rings attached to the bottom of the net.” III.F.10 at 002691.
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The NMFS proposed a regulation (“FAD Regulation”) to implement the requirements of
CMM 2008-01. The proposed rule and request for comments was published on June 1, 2009, and
the final regulation was published by the National Oceanic and Atmospheric Administration
(“NOAA”) on August 4, 2009. III.H.1 at 003702. The final regulation indicated that the FAD
prohibition period for 2009 would run from August 3, 2009, to September 30, 2009, despite the
fact the regulation was not published in its final form until August 4, 2009. Id. As part of the
published final regulation, the NMFS also addressed comments that it had received in response to
the publication of the proposed rule. The following comment and response is relevant to the instant
action:
Comment 5: During a FAD prohibition period, the following activities should not
be prohibited: (1) in situations in which there are no FADs in the area of the fishing
vessel, capturing a school of tuna that has aggregated under the fishing vessel; [and]
(2) capturing fish that are in the vicinity of a floating object but not associated with
the object . . . .
Response: Regarding activity (1), the commenter’s view is consistent with the
intent of the proposed rule; however, NMFS will revise the final rule to clarify that
the meaning of a FAD does not include the purse seine vessel itself. Having said
that, it is important to note that under the proposed rule it would be prohibited
during a FAD prohibition period to set a purse seine in an area into which fish were
drawn by a vessel from the vicinity of a FAD. Regarding activity (2), NMFS does
not agree. Although fish may indeed be found in the vicinity of a FAD but not
necessarily associated with it, NMFS finds that in order to ensure that fishing on
schools in association with FADs does not occur, it is necessary to also prohibit
fishing on schools that are merely in the vicinity of FADs. Under the proposed rule,
this would be accomplished by prohibiting setting a purse seine within one nautical
mile of a FAD.
Id. at 003704.
In relevant part, the final regulation provided that the owners, operators, and crew of fishing
vessels of the United States during the specified period shall not:
(1) Set a purse seine around a FAD or within one nautical mile of a FAD.
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(2) Set a purse seine in a manner intended to capture fish that have aggregated in
association with a FAD, such as by setting the purse seine in an area from which
a FAD has been moved or removed within the previous eight hours, or setting
the purse seine in an area in which a FAD has been inspected or handled within
the previous eight hours, or setting the purse seine in an area into which fish
were drawn by a vessel from the vicinity of a FAD.
(3) Deploy a FAD into water.
(4) Repair, clean, maintain, or otherwise service a FAD, including any electronic
equipment used in association with a FAD, in the water or on a vessel while at
sea except that:
(i) A FAD may be inspected and handled as needed to identify the
owner of the FAD, identify and release incidentally captured
animals, un-foul fishing gear, or prevent damage to property or risk
to human safety; and
(ii) A FAD may be removed from the water and if removed may be
cleaned, provided that it is not returned to the water.
Id. at 003714. Based on the comments to the proposed regulation, the NMFS revised the definition
of a FAD “to clarify that it does not include a fishing vessel, provided that the fishing vessel is not
used for the purpose of aggregating fish.” Id. at 003710. As such, a FAD was defined in the final
version of the regulation as “any artificial or natural floating object, whether anchored or not and
whether situated at the water surface or not, that is capable of aggregating fish, as well as any
objects used for that purpose that are situated on board a vessel or otherwise out of the water. The
meaning of FAD does not include a fishing vessel, provided that the fishing vessel is not used for
the purpose of aggregating fish.” Id. at 003712-13 (emphasis added). The final FAD Regulation
also implemented the requirement that an observer be on board any vessel that was engaging in
fishing during the specified time periods. Id. at 003713.
2. Marine Mammal Protection Act
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The Marine Mammal Protection Act (“MMPA”), 16 U.S.C. § 1361, et seq., makes it
unlawful “for any person subject to the jurisdiction of the United States or any vessel or other
conveyance subject to the jurisdiction of the United States to take any marine mammal on the high
sea.” 16 U.S.C. § 1372(a)(1). “Take” means “to harass, hunt, capture, or kill, or attempt to harass,
hunt, capture, or kill any marine mammal.” Id. at § 1362(13). Further, the MMPA defines
“harassment” as “any act of pursuit, torment, or annoyance which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild; or (ii) has the potential to disturb a marine
mammal or marine mammal stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.” Id.
at § 1362(18)(A).
Relevant to the instant action is the exception under the MMPA for the incidental taking
of marine mammals during commercial fishing operations. Pursuant to 16 U.S.C. § 1387(a)(2),
marine mammals may be taken incidentally in the course of commercial fishing operations and the
Secretary of Commerce may issue annual permits to United States purse seine fishing vessels for
the incidental taking of marine mammals. See 16 U.S.C. § 1374(a) & (h). The Secretary is
required to issue regulations to address the use of the annual permits. Id. at § 1374(h).
Pursuant to 16 U.S.C. § 1387, the Secretary was required to classify fisheries into one of
three categories for the purposes of the incidental take authorizations. The Secretary found the
western and central Pacific Ocean was a fishery with “occasional incidental mortality and serious
injury of marine mammals.” 16 U.S.C. § 1387(c)(1)(A)(ii). As such, the owner or authorized
representative of a fishing vessel was required to possess a valid Certificate of Authorization in
order to lawfully incidentally take marine mammals in the course of commercial fishing operation.
50 C.F.R. § 229.4(a)(1). The Certificate of Authorization provides authorization for “the
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incidental, but not intentional, taking of marine mammals.” 50 C.F.R. § 229.2 (emphasis added).
The regulations promulgated by the Secretary defined “incidental” as “a non-intentional or
accidental act that results from, but is not the purpose of, carrying out an otherwise lawful action.”
50 C.F.R. § 229.2.
B. Factual and Procedural Background
Plaintiffs are captains and owners of six vessels who were issued Notices of Violation
(“NOVAs”) by NOAA in 2010, based on alleged violations of the FAD Regulation and the MMPA
during fishing trips taken between August and September of 2009. Specifically, the NOVAs were
issued to: (1) Anthony Black, American Triumph LLC, and Yen Ming Yuan of the F/V American
Triumph (“AT Plaintiffs”); (2) Matthew James Freitas, Sea Quest LLC, and Ching Wen Wu of the
F/V Sea Quest (“Sea Quest Plaintiffs”); (3) Benjamin Maughan, Jr., Ocean Conquest LLC, and
Wu Chia Pin of the F/V Ocean Conquest (“Ocean Conquest Plaintiffs”); (4) Keith Bass, Jr., Ocean
Encounter LLC, Ho-Ching Chang of the F/V Ocean Encounter (“Ocean Encounter Plaintiffs”); (5)
Paul Magellan, Sea Honor LLC, and Yen Hsing Tasai of the F/V Sea Honor (“Sea Honor
Plaintiffs”); and (6) John Zolezzi, Pacific Ranger LLC, and Su Tien Shih of the F/V Pacific Ranger
(“Pacific Ranger Plaintiffs”).
On September 29, 2010, NOAA issued NOVAs against each of the six sets of Plaintiffs
finding: (1) eight violations of the FAD Regulation on the part of the AT Plaintiffs and assessing
total penalties for these violations at $872,500, I.A.1 at 0000004-10; (2) two violations of the FAD
Regulation on the part of the Sea Quest Plaintiffs and assessing total penalties at $253,750, II.A.1
at 0003979-82; (3) one violation of the MMPA and two violations of the FAD Regulation on the
part of the Ocean Conquest Plaintiffs and assessing total penalties at $267,750, id. at 0003989-93;
(4) four violations of the MMPA and five violations of the FAD Regulation on the part of the
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Ocean Encounter Plaintiffs and assessing total penalties at $657,750, id. at 0004000-06; (5) two
violations of the FAD Regulation on the part of the Sea Honor Plaintiffs and assessing total
penalties at $160,000, id. at 0004013-16; and (6) one violation of the FAD Regulation on the part
of the Pacific Ranger Plaintiffs and assessing total penalties at $117,500, id. at 0004023-26.
Each of the Plaintiffs requested a hearing before an Administrative Law Judge (“ALJ”) for
an independent determination as to whether the violations occurred and, if so, an independent
assessment of the penalties. NOAA proceeded with two cases against Plaintiffs. The AT Plaintiffs
comprised one case and the Sea Quest Plaintiffs, Ocean Conquest Plaintiffs, Ocean Encounter
Plaintiffs, Sea Honor Plaintiffs, and Pacific Ranger Plaintiffs (collectively, the “Consolidated
Plaintiffs”) comprised the other case.
Plaintiffs filed Motions to Dismiss in both cases, arguing that the NMFS improperly made
the FAD Regulation effective immediately upon publication in the Federal Register, and its
reasons for waiving the requirement that an agency observe a 30-day delay between the publication
of the final regulation and the effective date of the regulation as proscribed under the
Administrative Procedure Act (“APA”) were arbitrary and capricious. As such, Plaintiffs argued
that the FAD Regulation was not enforceable until September 5, 2009, 30 days after August 4,
2009, the date of publication in the Federal Register, and that all counts related to alleged FAD
Regulation violations prior to September 5, 2009, should be dismissed. I.A.29 at 0000348-58;
II.A.38 at 0004458-67.
The ALJ denied the Motions to Dismiss on the basis that the issue was within the authority
of the NOAA Administrator (“Administrator”), and not the ALJ, to decide. II.A.46 at 0004576.
The ALJ granted Plaintiffs’ Application for Interlocutory Review of the issue by the
Administrator. II.A.51 at 0004656. The Administrator found that the NMFS had good cause to
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make the regulation effective immediately and, accordingly, that the waiver of the 30-day delay
was done in compliance with the APA. As such, the Administrator held that NOAA may prosecute
alleged violations that occurred within 30 days of the publication of the final version of the FAD
Regulation. II.A.87 at 0005165-70. The two matters then proceeded to hearings before the ALJ.
The Court shall discuss the proceedings for each set of Plaintiffs in turn.
1. The AT Plaintiffs
The hearing related to the AT Plaintiffs took place before an ALJ on January 31, 2012, July
9-11, 2012, and August 27-28, 2012. The Agency presented seven witnesses and 20 exhibits, and
the AT Plaintiffs offered four witnesses and 26 exhibits. I.A.84 at 0001403. On August 22, 2013,
the ALJ issued the Initial Decision and Order, finding that seven of the eight violations of the FAD
Regulation were proven. Id. at 0001402. Specifically, the ALJ found that during the FAD closure
period, the AT Plaintiffs had violated the FAD Regulation by servicing a FAD on one occasion,
making a set within one nautical mile of a FAD on three occasions, and making a set on a FAD on
three occasions. The ALJ found in one instance that it was not proven that the AT Plaintiffs made
a set within one nautical mile of a FAD. Id. at 0001442. As a result, the ALJ found that a sanction
of $562,068.27 was appropriate for the seven violations that were proven. Id. at 0001402, 0001477.
On November 25, 2013, the ALJ entered an order denying the AT Plaintiffs’ Petition for
Reconsideration of the Initial Decision and Order. I.A.92 at 0001705-16. On April 14, 2014, the
NOAA Administrator denied the AT Plaintiffs’ Petition for Administrator Review of the Initial
Decision and Order, and modified the ALJ’s Initial Decision to vacate a portion of the order with
respect to a fishing master that is not at issue in the instant matter. I.B.101 at 0002231. The
Administrator adopted all other parts of the Initial Decision, including the order awarding
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monetary civil penalties without modification. Id. The Administrator’s decision became the final
decision of the Secretary. Id. at 0002232.
2. The Consolidated Plaintiffs
The hearings related to the violations of the Consolidated Plaintiffs took place before the
ALJ on February 1-2, 2012, July 11-12, 2012, August 23-24, 2012, and October 29, 2012. The
Agency presented 14 witnesses and 65 exhibits, and the Consolidated Plaintiffs offered eight
witnesses and 37 exhibits. II.A.100 at 0005465. On August 23, 2013, the ALJ issued the Initial
Decision and Order, finding that all alleged violations against the Consolidated Plaintiffs were
proven. Id. at 0005463. Specifically, the ALJ found that it was proven that: (1) the Sea Quest
Plaintiffs violated the FAD Regulation by making a set within one nautical mile of a FAD on two
occasions and, as a result, assessed a penalty of $147,959.68; (2) the Pacific Ranger Plaintiffs
violated the FAD Regulation by making a set within one nautical mile of a FAD on one occasion
and, as a result, assessed a penalty of $41,699.50; (3) the Ocean Conquest Plaintiffs violated the
MMPA by making a set on a whale on one occasion and violated the FAD Regulation by making
a set within one nautical mile of a FAD on two occasions and, as a result, assessed a penalty of
$215,776.77; (4) the Ocean Encounter Plaintiffs violated the MMPA by making a set on a whale
on four occasions and violated the FAD Regulation by making a set within one nautical mile of a
FAD on five occasions and, as a result, assessed a penalty of $497,617.98; and (5) the Sea Honor
Plaintiffs violated the FAD Regulation by servicing/deploying a FAD on two occasions and, as a
result, assessed a penalty of $50,000. Id. at 0005462-63.
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On December 6, 2013, the ALJ entered an order denying the Consolidated Plaintiffs’
Petition for Reconsideration of the Initial Decision and Order. 4 II.A.107 at 0005886. On April
14, 2014, the NOAA Administrator denied the Consolidated Plaintiffs’ Petition for Administrator
Review of the Initial Decision and Order, and modified the ALJ’s Initial Decision to vacate a
portion of the order with respect to a fishing master that is not at issue in the instant matter.
II.B.114 at 0006556-58. The Administrator adopted all other parts of the Initial Decision,
including the order awarding monetary civil penalties without modification. Id. at 0006558. The
Administrator’s decision became the final decision of the Secretary. Id.The owners and operators of all six vessels, the F/V American Triumph, the F/V Sea Quest,
the F/V Ocean Quest, the F/V Ocean Encounter, the F/V Sea Honor, and the F/V Pacific Ranger,
bring the instant action for judicial review of the final decisions of the Secretary pursuant to 16
U.S.C. § 1858(b). The six fishing masters who were parties in the administrative proceedings have
not sought judicial review.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment
if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” However, “when a party seeks review of agency action
under the [Administrative Procedure Act before a district court], the district judge sits as an
appellate tribunal. The ‘entire case’ on review is a question of law.” Am. Bioscience, Inc. v.
Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001). Accordingly, “the standard set forth in Rule
56(c) does not apply because of the limited role of a court in reviewing the administrative record .
4
The ALJ altered two references in the Initial Decision to the “F/V Ocean Conquest” to
reflect that the references are actually to the “F/V Ocean Encounter.” II.A.107 at 0005886.
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. . Summary judgment is [ ] the mechanism for deciding whether as a matter of law the agency
action is supported by the administrative record and is otherwise consistent with the
[Administrative Procedure Act] standard of review.” Se. Conference v. Vilsack, 684 F. Supp. 2d
135, 142 (D.D.C. 2010).
This case involves the review of agency decisions under both the Magnuson-Stevens Act
and the Administrative Procedures Act (“APA”). The standard of review for agency decisions
under the Magnuson-Stevens Act is borrowed from the APA. See 16 U.S.C. § 1858(b) (“The
findings and order of the Secretary shall be aside by such court if they are not found to be supported
by substantial evidence, as provided in section 706(2) of [the APA].”). The APA provides in
pertinent part that a reviewing court shall “hold unlawful and set aside agency action, findings,
and conclusions found to be . . . unsupported by substantial evidence.” 5 U.S.C. § 706(2). The
APA also provides that courts should set aside decisions that are “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” Id. The “substantial evidence” standard
and the “arbitrary and capricious” standard “require equivalent levels of scrutiny.” Mem’l
Hosp./Adair Cnty. Health Ctr., Inc. v. Bowen, 829 F.2d 111, 117 (D.C. Cir. 1987). The Supreme
Court has explained that “substantial evidence” means “more than a mere scintilla.” Richardson
v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). “It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. The D.C. Circuit has recognized that, in applying the substantial
evidence test, an agency decision “may be supported by substantial evidence even though a
plausible alternative interpretation of the evidence would support a contrary view.” Morall v. Drug
Enforcement Admin., 412 F.3d 165, 176 (D.C. Cir. 2005). Normally, a decision will be reversed
for lack of substantial evidence “only when the record is so compelling that no reasonable
12
factfinder could fail to find to the contrary.” Orion Reserves Ltd. P’ship v. Salazar, 553 F.3d 697,
704 (D.C. Cir. 2009), cert. denied, 558 U.S. 822 (2009) (citation and quotation marks omitted).
“[J]udicial review under the substantial evidence test is ultimately deferential.” Indus. Union
Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 705 (1980). The agency’s decision is
presumptively valid, and the court is not authorized to substitute its own judgment for that of the
agency. Id. The Court’s review is limited to the administrative record. Bloch v. Powell, 227 F.
Supp. 2d 25, 30 (D.D.C. 2002).
A reviewing court can also set aside agency action if it is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law” or “in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right,” or “without observance of procedure required
by law.” 5 U.S.C. §§ 706(2)(A), (C), (D). An agency’s decision may be arbitrary or capricious if
any of the following apply: (i) its explanation runs counter to the evidence before the agency or is
so implausible that it could not be ascribed to a difference of view or the product of agency
expertise; (ii) the agency entirely failed to consider an important aspect of the problem or issue;
(iii) the agency relied on factors which Congress did not intend the agency to consider; or (iv) the
decision otherwise constitutes a clear error of judgment. Motor Vehicle Mfrs. Ass’n of U.S., Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); accord Jicarilla Apache Nation v. U.S.
Dep’t of Interior, 613 F.3d 1112, 1118 (D.C. Cir. 2010).
In reviewing agency decisions, the court “must give substantial deference to an agency’s
interpretation of its own regulations.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512
(1994). The court’s “task is not to decide which among several competing interpretations best
serves the regulatory purpose.” Id. Rather, the agency’s interpretation is controlling “unless it is
plainly erroneous or inconsistent with the regulation.” Id. (citations omitted).
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III. DISCUSSION
Plaintiffs raise several challenges to the Secretary’s final decisions in both the proceedings.
Specifically, Plaintiffs argue that: (1) the Administrator erred in finding that NOAA properly
waived the 30-day delay between the publication of the FAD Regulation and its effective date; (2)
the definition of a FAD in the regulation was vague and ambiguous; (3) NOAA’s interpretation of
the MMPA was contrary to the plain meaning of the statute; (4) the ALJ’s findings were
unsupported by substantial evidence because the ALJ made improper credibility determinations
and failed to properly weigh the evidence before him, and, relatedly, the Administrator’s adoption
of the findings as final was arbitrary and capricious for the same reasons; and (5) the penalties
assessed against each of the Plaintiffs were excessive under the circumstances. The Court shall
address the each of Plaintiffs’ first three arguments and then the Court shall address the ALJ’s
credibility determinations and analysis, and the Administrator’s adoption of the ALJ’s findings for
each of the six sets of Plaintiffs. Finally, the Court shall address the penalties assessments for each
of the Plaintiffs and the Administrator’s adoption of the same as the final decision of the Secretary.
A. Waiver of the 30-Day Notice Period Pursuant to the APA
Plaintiffs first allege that NOAA failed to demonstrate good cause to waive the 30-day
delay between the publication of the FAD Regulation in the Federal Register and the effective date
of the Regulation. Plaintiffs argue that the FAD Regulation should not have been effective until
September 5, 2009, 30 days after the date of publication, and, as such, all counts based on alleged
violations that occurred prior to that time should be dismissed. 5 Pls.’ Mem. at 17. Pursuant to 5
5
Specifically, all but one count against the AT Plaintiffs was based on conduct that
occurred prior to September 5, 2009. Further, one count against the Sea Quest Plaintiffs was based
on a FAD violation occurring prior to that date.
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U.S.C. § 553(d), “[t]he required publication or service of a substantive rule shall be made not less
than 30 days before its effective date, except . . . as otherwise provided by the agency for good
cause found and published with the rule.” Id. at § 553(d)(3).
On August 4, 2009, the final version of the FAD Regulation was published in the Federal
Register and made effective as of August 3, 2009. The following notice of the waiver of the 30-
day period was published with the Regulation:
There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective
date for all of this final rule except §§ 300.222(aa) and 300.223(f) (the sea turtle
migration requirements and associated prohibitions). Compliance with the 30-day
delay requirement would be impracticable and contrary to the public interest the
FAD prohibition period and associated observer requirement would be in effect for
only about half of the specified period in 2009, meaning that NMFS would be
frustrated in promulgating the regulations needed to satisfy the international
obligations of the United States under the Convention. Also, NMFS had limited
notice of the need to implement CMM 2008-01, which was adoption in the
December 2008 regular annual session of the WCPFC.
III.H.1 at 003710. Plaintiffs raise two objections to the notice. First, Plaintiffs argue that the
reasons set forth in the notice do not meet the “good cause” requirement under the APA for waiving
the 30-day notice period. Pls.’ Mem. at 17-21. Second, Plaintiffs argue that during the
interlocutory review of this issue, the Administrator erroneously relied on different reasons than
those set forth in the published notice to justify waiver of the 30-day period. Id. at 21-22. The
Court shall address each argument in turn.
Turning to Plaintiffs’ first argument, Plaintiffs assert that NOAA’s contention that
compliance with the 30-day delay requirement was “impracticable” lacks merit, and that in reality
NOAA was unable to meet the 30-day delay requirement because of its own “foot-dragging”
during the process. Pls.’ Mem. at 19-20. Further, Plaintiffs assert that recognizing the 30-day
delay would not have been “contrary to public interest” and, instead, the failure to recognize the
15
delay ignored the public interest of the fishermen who were subject to the Regulation by failing to
give them an opportunity to take reasonable measures to comply. Id. at 20. As such, Plaintiffs
argue that NOAA has failed to demonstrate good cause to waive the 30-day notice requirement
under the APA.
In contrast, Defendants argue that the lengthy administrative record in this matter
demonstrates that NOAA did not drag its feet in enacting the Regulation and that Plaintiffs had
notice of the effective date of the Regulation when NOAA published the proposed version of the
Regulation on June 1, 2009. Defs.’ Opp’n & Cross-Mot. at 23-25. Accordingly, Defendants assert
that NOAA properly demonstrated good cause to waive the 30-day notice period and otherwise
complied with its obligations under the APA in order to do so. For the reasons described herein,
the Court finds that the reasons for waiving the 30-day period as published with the FAD
Regulation satisfy the requirements of 5 U.S.C. § 553(d)(3).
As an initial matter, Plaintiffs, relying on the United States Court of Appeals for the District
of Columbia Circuit’s opinion in American Federation of Government Employees v. Block, argue
that the proscribed period can be waived under the APA only if observing the delay would be
“impracticable, unnecessary, or contrary to the public interest.” See Pls.’ Mem. at 17 (quoting Am.
Fed’n of Gov’t Emps. v. Block, 655 F.2d 1153, 1158 (D.C. Cir. 1981)). However, as Defendants
properly point out, that standard is applicable to an agency’s waiver of the notice requirement for
proposed rulemaking pursuant to 5 U.S.C. § 553(b) and not to the provision of the statute at issue
in the instant action. Here, the Agency waived the requirement that the final rule be published not
less than 30 days prior to its effective date pursuant to 5 U.S.C. § 553(d).
Indeed, the D.C. Circuit in American Federation of Government Employees, indicated that
while both provisions of the statute require the agency to show “good cause” to waive the
16
prescribed time periods, “different standards govern the applicability of the good cause exceptions
to these requirements.” 655 F.2d at 1156. Specifically, the D.C. Circuit contrasted the purposes
of the rules:
Both the requirement of 553(b) that notice of proposed rulemaking be published in
the Federal Register and the requirement of 553(d) that publication of a rule be
made at least thirty days prior to its effective date serve the laudable purpose of
informing affected parties and affording them a reasonable time to adjust to the new
regulation. Section 553(b) serves, however, the even more significant purpose of
allowing interested parties the opportunity of responding to proposed rules and thus
allowing them to participate in the formulation of the rules by which they are to be
regulated.
Id. As such, the D.C. Circuit concluded that “the more detailed language of section 553(b)(B)
which provides that an agency may forego notice-and-comment procedures in this context only
upon a finding that such procedures are ‘impracticable, unnecessary, or contrary to the public
interest,’” and noted that it did not “break new ground [by holding], based upon the language of
the APA and the underlying purposes of the subsections at issue, that what may constitute good
cause to forego one notice requirement may not satisfy the other.” Id. (citation omitted). While
Plaintiffs argue that the cited portions of the opinion discussing the requirement for waiving the
notice-and-comments period are instructive because NOAA cited “impracticality” and “public
interest” as its justification for waiving the 30-day delay between publication and the effective date
of the Regulation, such a reading is not supported by the plain language of the opinion. Instead,
the D.C. Circuit has made clear that the requirements for showing good cause under § 553(b), not
at issue in this case, and under § 553(d), which is at issue in this case, are different. As such, the
Court will analyze Plaintiffs’ claim by applying the standard set forth for determining whether
good cause has been shown pursuant to § 553(d).
17
“[T]he exceptions to the provisions of section 553 ‘will be narrowly construed and only
reluctantly countenanced.’” Am. Fed’n of Gov’t Emps., 655 F.2d at 1156. “[T]he purpose of the
thirty-day waiting period [pursuant to § 553(d)] is to give affected parties a reasonable time to
adjust their behavior before the final rule takes effect.” Omnipoint Corp. v. FCC, 78 F.3d 620, 630
(D.C. Cir. 1996). Accordingly, “[i]n determining whether good cause exists, an agency should
‘balance the necessity for immediate implementation against principles of fundamental fairness
which require that all affected persons be afforded a reasonable amount of time to prepare for the
effective date of its ruling.’” Id. (quoting United States v. Gavrilovic, 551 F.2d 1099, 1105 (8th
Cir. 1977)).
In the Federal Register, NOAA provided that observing the 30-day delay period would be
both impracticable and contrary to public interest because it would put the agency in a position to
fail to meet its international obligations under the Convention, namely its obligation to impose the
FAD Regulation effective as of August 1, 2009. As previously discussed, CMM 2008-01 required
member countries to implement regulations prohibiting purse seine fishing on FADs from August
1, 2009, to September 30, 2009. As described in the published explanation, if the 30-day notice
period was not waived, the Regulation would have been effective as of September 5, 2009, more
than halfway through the period prescribed by the Convention. Here, the Agency’s need to
immediately implement the regulations in order for the United States to comply with its
international treaty obligations outweighs the need to provide the affected persons with a
reasonable amount of time to prepare to comply with the regulation.
While the Court finds that compliance with the United States’ treaty obligations is
sufficient to support a “good cause” showing, the Court shall address two other issues raised by
the parties in their briefing that support this conclusion. As Defendants note, Plaintiffs did have
18
notice prior to the publication of the final version of the regulation that NOAA planned to enact
the FAD Regulation effective August 1, 2009. See Defs.’ Opp’n & Cross-Mot. at 24-25. Indeed,
when NOAA published the proposed rule on June 1, 2009, it sent a copy to U.S. purse seine vessel
owners, including Plaintiffs. The proposed rule as published in the Federal Register was
accompanied by a cover letter dated June 1, 2009, that provided:
In order for the United States to satisfy its obligations under the Convention, the
proposed FAD prohibition period and associated observer requirement must be
made effective by August 1, 2009. Depending upon when the final rule is issued,
NMFS may need to consider shortening or waiving the 30-day delayed
effectiveness provision of the Administrative Procedures Act (APA) so that the
FAD prohibition period and associated observer requirement are implemented on
schedule. APA Section 553(d) provides that “The required publication or service
of a substantive rule shall be made not less than 30 days before its effective date,”
with certain exceptions. One exception to the normal 30-day waiting period is “for
good cause found and published with the rule.” If NMFS finds good cause to shorten
or waive the 30-day delayed effectiveness period for the 2009 prohibition period
and associated observer requirement in order to comply with the international
obligations of the United States under the Convention, those elements of the
proposed rule could become effective as early as the date of publication of the final
rule, which would follow NMFS’ consideration of public comments on the proposed
rule. We anticipate all other elements of the proposed rule would be subject to the
normal 30-day waiting period before coming into effect.
In this regard, please be prepared to implement the proposed 2009 FAD prohibition
period and associated observer coverage requirements by August 1, 2009.
III.F.1 at 002502-03 (emphasis added); see also III.F.2-F.8 at 002504-17. Plaintiffs do not contest
that these letters were sent along with a copy of the proposed rule and an invitation to provide
comments. See Pls.’ Reply & Opp’n to Cross-Mot. at 4. Plaintiffs argue that the letter simply
advised them that if good cause was found, then the rule could become effective upon publication.
Id. This argument is contradicted by the clear directive set forth in the letter, advising Plaintiffs to
“please be prepared to implement the proposed 2009 FAD prohibition period and associated
observer coverage requirements by August 1, 2009.” III.F.1-F.8 at 002502-17.
19
Further, while Plaintiffs are correct that the fact that they were on notice of the forthcoming
regulation “does not absolve NOAA of its statutory obligations under the APA,” Pls.’ Reply &
Opp’n to Cross-Mot. at 4, it is relevant in determining whether Plaintiffs were provided a
reasonable amount of time to prepare for the implementation of the regulation when the 30-day
notice period was waived pursuant to § 553(d). See Omnipoint Corp., 78 F.3d at 630. Here, the
letter sent to Plaintiffs two months prior to the effective date of the final regulation gave them
notice that a final version of the rule might be effective on August 1, 2009. 6 Further, as the
Administrator noted in her Order, “[i]n all respects relevant to the violations at issue, the
requirements in the final rule were the same as those contained in the proposed rule.” 7 II.A.87 at
0005169.
Plaintiffs argue that the administrative record demonstrates that NOAA dragged its feet in
enacting the regulation, while Defendants contend that the administrative record shows that this
claim is without merit. Compare Pls.’ Mem. at 18-20 with Defs.’ Opp’n & Cross-Mot. at 23. For
the reasons described herein, the Court finds that NOAA’s need to waive the 30-day notice period
was not based on its own dilatory efforts. As NOAA noted in its description of its reasons for
waiving the 30-day notice requirement, it only became aware of the requirement to enact the
regulation in December 2008, when CMM 2008-01 was adopted by the Convention. The
administrative record reflects that in January 2009, NOAA was in the rulemaking process. III.A.3
6
Both the captain of the F/V Triumph and the F/V Sea Quest testified during the
administrative proceedings that they were aware of the FAD Regulation. I.C.108 at 0002818
(testimony of Plaintiff Black, Captain of F/V American Triumph); II.C.121 at 0007300 (testimony
of Plaintiff Freitas, Captain of the F/V Sea Quest).
7
As the Administrator noted in her Order, and the parties noted in their briefing, the final
version of the rule differed from the proposed version of the rule in that the definition of a FAD
was modified to be less restrictive in response to a public comment received during the June 2009,
notice-and-comment period.
20
at 000917-23. At that time, NOAA identified May 1, 2009, as the target date for the proposed
rule, and set forth a plan to publish the proposed rule in May 2009 and the final rule in June 2009.
III.A.7 at 000934; III.A.11 at 000942. Indeed, a preliminary outline of the NOAA’s National
Environmental Policy Act compliance documents, purpose and need statement, and alternatives
for its environmental assessment were circulated in February 2009, III.B.13 at 001052-54, and a
first draft of the proposed rule was circulated internally in March 2009, III.C.21 at 001171-89.
Prior to the publication of the proposed regulation NOAA also: issued its federal
consistency determinations required under the Coastal Zone Management Act, III.C.31-34 at
001206-28; provided notice to the Western Pacific Fisheries Management Council of its planned
FAD Regulation, III.D.20 at 001515-16; documented compliance with the MMPA and the
Endangered Species Act, III.D.61-62 at 001882-86; prepared a Regulatory Impact Review under
the Regulatory Flexibility Act, III.E.1-E.2 at 001970-96; and completed the Essential Fish Habitat
consultation required under the Magnuson Act, III.E.4-5 at 002037-40.
The NOAA General Counsel provided clearance of the proposed rule on May 12, 2009,
and the Department of Commerce General Counsel cleared the proposed rule on May 26, 2009.
III.E.26 at 002303; III.E.27 at 002305. On June 1, 2009, the proposed regulation and request for
comments was published in the Federal Register, III.F.10 at 002684-94, and the Draft
Environmental Assessment were made publicly available, III.F.9 at 002518-683. The proposed
rule was open to comment from June 1, 2009, to June 22, 2009. III.F.10 at 002684. At the
conclusion of the comment period, NOAA drafted responses to 28 public comments that it received
and revised the proposed regulation based on the comments. The final FAD Regulation was
published in the Federal Register on August 4, 2009. III.H.1 at 003702-16.
21
As Defendants contend, a review of the extensive administrative record demonstrates that
NOAA was not dilatory in its actions with respect to the FAD Regulation. Instead, as described
above, the record reflects that NOAA started working on the FAD Regulation shortly after CMM
2008-01 was adopted by the Convention in December 2008. However, NOAA was still not able
to meet its timetable for publishing the proposed rule in time to receive public comment and
publish the final regulation 30 days prior to the August 1, 2009, enactment date. After reviewing
the record, NOAA then made the determination that there was good cause to waive the 30-day
notice period in light of the United States’ treaty obligations. Accordingly, the Court finds that for
the reasons published in the Federal Register, there was good cause to waive the 30-day delay
pursuant to § 553(d). Further, the Court finds that contrary to Plaintiffs’ assertion, NOAA’s need
to waive the 30-day period was not the result of the Agency’s dilatory efforts to implement the
regulation.
Next, the Court turns to Plaintiffs’ argument that the Administrator improperly relied on
reasons outside of the notice published with the FAD Regulation to find that there was good cause
to waive the 30-day delay. When the issue of NOAA’s waiver of the 30-day notice requirement
was submitted to the Administrator for interlocutory review, the Administrator found that NOAA
waived the period for good cause consistent with the requirements of the APA. Specifically, the
Administrator explained:
I conclude the NMFS acted appropriately by invoking the good cause exemption
and making the final rule effective immediately. NMFS was required to have
regulations in force by August 1, 2009, in order to give effect to CMM 2008-01.
Failure to meet this firm deadline would have resulted in serious harm. It would
have compromised necessary conservation efforts intended to reduce fishing
pressure on Bigeye and Yellowfin tuna. Moreover, the United States would have
failed in its obligation under the Treaty to timely implement a conservation and
management measure of the Commission.
22
II.A.87 at 0005168 (emphasis added). The Administrator reiterated: “I find that NMFS had good
cause to make the final rule effective immediately. NMFS was confronted with a firm deadline
for having regulations in place. Failure to meet this deadline would have caused real harm by
failing to timely impose an important conservation measure and meet international treaty
obligations.” Id. at 0005169 (emphasis added).
Plaintiffs contend that Administrator improperly relied on conservation concerns to support
a finding of good cause when such concerns were not in the explanation published with the FAD
Regulation pursuant to 5 U.S.C. § 553(d). 8 Pls.’ Mem. at 21-22; Pls.’ Reply & Opp’n to Cross-
Mot. at 6. The Court finds this argument is without merit as NOAA in its published explanation
of the waiver, the Administrator in her Order, and, as discussed above, this Court all found that
NOAA had a good cause basis pursuant to § 553(d) to waive the 30-day notice period in order to
meet the United States’ treaty obligations. To the extent that the Administrator may have also
relied on the overall purpose of the FAD Regulation, i.e., the conservation efforts, to support
NOAA’s waiver of the 30-day period, the Court finds that this is not a basis to set aside the
Administrator’s decision, particularly in light of this Court’s own analysis of the issue. 9
Accordingly, the Court finds that NOAA complied with the notice requirement of the APA
pursuant to 5 U.S.C. § 553(d) when it waived the 30-day notice period for good cause.
B. Definition of FAD
8
To the extent that Plaintiffs in their briefing hone in on NOAA’s use of the words
“impracticable” and “public interest” in the explanation published in the Federal Register, the
Court considers the entirety of the explanation as published including the reference to the need to
satisfy the international obligations of the United States under the Convention. See Pls.’ Mem. at
18-21; Pls.’ Reply & Opp’n to Cross-Mot. at 3-4.
9
Further, as Defendants note in their Reply, “Plaintiffs [do not] cite any authority that
prohibited the Administrator from considering whether additional considerations justified the
agency’s invocation of the good cause exception.” Defs.’ Reply at 13.
23
Next, Plaintiffs bring a due process claim, arguing that the FAD Regulation is
unconstitutionally vague because it failed to give fair notice to Plaintiffs of the prohibited conduct.
Specifically, Plaintiffs argue that “NOAA’s definition [of a FAD] created ambiguity as to what
activities NOAA prohibited with respect to ‘fish-under-the-boat’ or other sets involving the use of
lights as part of the vessel’s routine safety and fishing operations.” Pls.’ Mem. at 23. As such,
Plaintiffs argue that the 13 counts brought against the Consolidated Plaintiffs for “fish-under-the-
boat” sets should be dismissed. Id. at 24. For the reasons described herein, the Court finds that
the definition of a FAD is not unconstitutionally vague and that the conduct found by the ALJ,
namely the purposeful use of lights under the vessel or workboat to aggregate fish, falls within the
definition of a FAD.
Parties dispute whether the ALJ properly found that the fishing vessel or an auxiliary
workboat was a FAD within the meaning of the definition when the ALJ found that lights were
used to aggregate fish under the boats. Plaintiffs argue that the Agency improperly found that they
violated the FAD Regulation on 13 occasions based on sets made on fish that had aggregated under
the fishing vessel itself and/or under auxiliary workboats. Specifically, Plaintiffs contend that the
definition of a FAD does not include the fishing vessel or a workboat even if lights were used.
Further, Plaintiffs assert that the lights were used for safety purposes, not for the purpose of
aggregating fish. However, Defendants argue that while the FAD Regulation did not prohibit
setting on tuna that “accumulated naturally” under the vessel, the Plaintiffs’ violations were based
on sets where the main vessel used onboard lights for the purpose of drawing fish toward the vessel
and/or the main vessel deployed auxiliary workboats with submerged lights to draw fish away
from the main vessel and hold them in place while the main vessel made a set. Defs.’ Opp’n &
24
Cross-Mot. at 37. Defendants contend that the use of lights to attract fish transformed the vessel
or workboats into a FAD under the definition set forth in the regulation. Id.Indeed, in addressing Plaintiffs’ argument, the ALJ found that while the regulations at the
time did not specifically discuss the use of lights, “under the definition of a FAD, the regulations
included ‘any objects’ used for the purpose of aggregating fish that are situated on board a vessel
or otherwise out of the water. Objects like lights used by the main vessel to aggregate fish overnight
and/or lights used by the vessel’s auxiliary workboats to hold the fish in place fall into this broad
definition.” II.A.87 at 0005512 (internal citation omitted). As such, the ALJ concluded under the
regulations that “[u]sing objects, like lights, to aggregate the fish or hold them in place while a set
was made transforms the vessel into a FAD under the 2009 regulations.” Id. at 0005513. After
finding that using lights to aggregate fish under the fishing vessel or a workboat and then making
a set on those fish was prohibited by the FAD Regulation, the ALJ found all counts related to “fish-
under-the-boat” were proven. In addressing Plaintiffs’ motion for reconsideration, the ALJ
explained that he “rejected the contention that these sets involved fish naturally aggregating under
the vessels with no efforts made by Respondents to draw fish under the boat.” II.A.107 at 0005880.
The Administrator did not further discuss this issue in denying Plaintiffs’ Petition for
Administrative Review. See II.B.114 at 0006556-59.
In the proposed version of the FAD Regulation, published in the Federal Register on June
1, 2009, NOAA explained: “FADs would be defined to include both artificial and natural floating
objects that are capable of aggregating fish.” III.F.10 at 002686. However, the definition was
altered in the final version of the rule in response to a public comment that was received during
the notes-and-comments period under the APA. Specifically, the comment that was published
with the final rule read in relevant part: “During a FAD prohibition period, the following activit[y]
25
should not be prohibited: . . . in situations in which there are no FADs in the area of the fishing
vessel, capturing a school of tuna that has aggregated under the fishing vessel.” II.H.1 at 003704.
In response to the comment, NOAA explained: “[T]he commenter’s view is consistent with the
intent of the proposed rule; however, NMFS will revise the final rule to clarify that the meaning of
a FAD does not include the purse seine itself. Having said that, it is important to note that it would
be prohibited during a FAD prohibition period to set a purse seine in an area into which fish were
drawn by a vessel from the vicinity of a FAD.” Id. (emphasis added). Accordingly, the definition
was revised and the final version follows:
Fish aggregating device, or FAD, means any artificial or natural floating object,
whether anchored or not and whether situated at the water surface or not, that is
capable of aggregating fish, as well as any objects used for that purpose that are
situated on board a vessel or otherwise out of the water. The meaning of FAD does
not include a fishing vessel, provided that the fishing vessel is not used for the
purpose of aggregating fish.
III.H.1 at 003712-13.
The issue before this Court is whether the definition of a FAD is unconstitutionally vague
such that it violates the requirements of due process. “A vague rule ‘denies due process by
imposing standards of conduct so indeterminate that it is impossible to ascertain just what will
result in sanctions.’” Timpinaro v. SEC, 2 F.3d 453, 460 (D.C. Cir. 1993) (quoting Hastings v.
Judicial Conference of the U.S., 829 F.2d 91, 105 (D.C. Cir. 1987)). “In reviewing regulations for
vagueness, [the court] must decide only ‘whether the regulation ‘delineated its reach in words of
common understanding.’” Throckmorton v. Nat’l Transp. Safety Bd., 963 F.2d 441, 444 (D.C. Cir.
1992) (citation omitted). “Further, when considering a vagueness challenge to a ‘regulation
promulgated pursuant to remedial civil legislation . . . we must do so ‘in the light of the conduct
to which it is applied,’ allowing ‘greater leeway’ for regulations and statutes governing business
26
activities than those implicating the first amendment.” Id. at 444-45 (citation omitted). Indeed,
“[i]n order to satisfy constitutional due process requirements, regulations must be sufficiently
specific to give regulated parties adequate notice of the conduct they require or prohibit.” Freeman
United Coal Mining Co. v. Fed. Mine Safety & Health Review Comm’n, 108 F.3d 358, 362 (D.C.
Cir. 1997). “Accordingly, regulations will be found to satisfy due process so long as they are
sufficiently specific that a reasonably prudent person, familiar with the conditions the regulations
are meant to address and the objectives the regulations are meant to achieve, would have fair
warning of what the regulations require.” Id.Here, in the notes-and-comments section published with the final rule, NOAA indicated
that the definition of a FAD was revised to clarify that the meaning of a FAD does not include the
purse seine itself. However, the actual definition of a FAD set forth that “[t]he meaning of FAD
does not include a fishing vessel, provided that the fishing vessel is not used for the purpose of
aggregating fish.” III.H.1 at 003713. From the plain language of the regulation, it is clear that a
fishing vessel could fall within the definition of a FAD if it is used for the purpose of aggregating
fish. As such, Plaintiffs cannot reasonably argue that they were not on notice that some conduct
on their part may render the fishing vessel itself to be a FAD within the meaning of the regulation.
While the regulation does not provide any specific examples of conduct that would constitute a
use for the purpose of aggregating fish, the agency is not required to do so as long as the regulation
provides fair warning of its requirements. See Freeman, 108 F.3d at 362 (“The courts have
recognized, however, that ‘specific regulations cannot begin to cover all of the infinite variety of
. . . conditions which employees must face,’ and that ‘by requiring regulations to be too specific
[courts] would be opening up large loopholes allowing conduct which should be regulated to
escape regulation.’”) (citation omitted); DiCola v. FDA, 77 F.3d 504, 509 (D.C. Cir. 1996) (“[I]t
27
is often sufficient, so far as due process is concerned, ‘that the proscription mark out the rough
area of prohibited conduct, allowing law-abiding individuals to conform their conduct by steering
clear of the prohibition.’”) (citation omitted).
As explained in the proposed version of the regulation, “the objectives of CMM 2008-01
include achieving, over the 2009-2011 period, a reduction in the fishing mortality on bigeye tuna
in the WCPO of at least 30 percent and no increase in fishing mortality on yellowfin tuna in the
WCPO, relative to a specified historical baseline.” III.F.1 at 002685. Further, it is clear that in
order to achieve this goal, the FAD Regulation prohibited all scenarios where a purse seine is set
in a manner that intends to capture fish that have aggregated in association with a FAD. See III.H.1
at 003702. Here, the Court must decide whether Plaintiffs had fair warning that using lights to
attract fish to the fishing vessel itself and/or to an auxiliary workboat would render the vessel or
boat a FAD under the regulation. 10 In light of the purpose of the regulation and the regulation’s
clear complete ban on the use of FADs, the Court finds that a reasonably prudent person would
have been on fair notice that use of lights for the purpose of aggregating fish was conduct
prohibited under the regulation.
10
Plaintiffs note in a more recent version of the FAD Regulation, NOAA expressly
prohibited setting on fish that naturally accumulated under the vessel overnight and described
prohibited use of lights. Pls.’ Reply & Opp’n to Cross-Mot. at 8-9 (citing 78 Fed. Reg. 30773 (May
23, 2013)). Defendants point out that NOAA described that the changes made to the 2009 rule
included a new prohibition on making a set on fish that naturally accumulated under the vessel,
conduct that was permitted under the 2009 rule. As the ALJ explained, the revisions also
“‘amplif[ied] the prohibitions established in the 2009 rule by explicitly prohibiting use of lights in
specific manners that are known to be used to aggregate fish.’” Defs.’ Reply at 10 (quoting
II.A.100 at 005513). The fact that the 2009 version of the regulation was revised to specifically
address the use of lights does not necessarily render the 2009 rule unconstitutionally vague.
Instead, it simply demonstrates that NOAA sought to provide some specific examples with respect
to the use of lights.
28
As Plaintiffs concede, “‘[f]ish-under-the-boat’ sometimes (but not always) occurs when a
vessel has been floating overnight and the crew wakes up in the early morning to discover that fish
have naturally accumulated under the vessel.” Pls.’ Mem. at 23. Neither party argues that under
the 2009 version of the regulation it was prohibited to make a set on a tuna that had naturally
accumulated under the boat. See id. at 22; Defs.’ Opp’n & Cross-Mot. at 37. However, at least
some testimony in the record reflects that it was practice in the industry to use lights on the
workboat to attract fish from the vessel in order to make a set on the fish. See II.C.121 at 0007305
(testimony of Robert Virissimo, Vice President of Vessel Operations of the South Pacific Tuna)
(describing the practice and noting that everyone in the industry has a “little different system” with
respect to the use of lights to make a set on fish that are found under the vessel). Indeed, while not
determinative, the record reflects that the Agency on at least one occasion prior to the enactment
of the regulation advised another party that it understood that the use of lights by a workboat would
meet the definition of a FAD. See, e.g., II.E.128-70 at 0009526K (email from NOAA employee
to Mr. Virissimo dated July 27, 2009, indicating “Also, you say no FAD involved however I think
if they used a light boat to draw the fish away from the boat, it is still considered a FAD set as you
are aggregating fish away from the vessel, to the light boat, and using it as a FAD”). While this
evidence is not determinative, it is illustrative of the fact that a reasonably prudent person would
have fair warning that using lights for the purpose of aggregating fish either around the fishing
vessel or a workboat would be prohibited under the regulation based on the definition of a FAD.
As such, the Court shall deny Plaintiffs’ request for summary judgment because the Court does
not find the regulation’s definition of a FAD unconstitutionally vague.
The Court bears in mind that there is a dispute among the parties with respect to whether
the lights were actually used to aggregate fish or whether they were used for safety or some other
29
purpose. In this section, the Court has only addressed whether the purposeful use of lights to
aggregate fish would render a fishing vessel or auxiliary workboat as a FAD under the definition.
The Court shall address whether or not Plaintiffs actually purposefully used the lights to aggregate
fish in its discussion infra of the ALJ’s findings with respect to each of the counts.
C. Interpretation of the MMPA
Plaintiffs contend that the NOAA regulation defining the term “incidental” in the
commercial fishing provisions of the MMPA is inconsistent with other regulations and with the
text of the statute. Specifically, Plaintiffs argue that the term “incidental take” in the MMPA
“clearly contemplates that, where the sole purpose of commercial fishing is to harvest fish and not
marine mammals, NOAA may authorize the incidental taking of marine mammals even where the
taking is a virtual certainty, and even intentional.” Pls.’ Mem. at 55. In support of this argument,
Plaintiffs assert that when Congress intended to prohibit a taking that is “incidental, but not
intentional,” it included that language in the statute. Id. Plaintiffs argue that because the language
regarding “intentional” takes was not included in this portion of the statute addressing commercial
fishing, Congress intended the term “incidental” to include “intentional” takes in this context. Id.As such, Plaintiffs argue that the regulation defining “incidental” to mean “a non-intentional or
accidental act,” 50 C.F.R. § 229.2, is inconsistent with other regulations and the text of the statute.
Pls.’ Mem. at 56. Further, Plaintiffs argue that the Agency’s definition is inconsistent with its
definition of an “incidental catch” which includes “the taking of a marine mammal . . . as a
consequence of the steps used to secure the fish in connection with commercial fishing operations.”
Id. (quoting 50 C.F.R. § 216.3). Accordingly, Plaintiffs argue that even if the ALJ’s findings with
respect to the MMPA violations are upheld, the counts should be dismissed nonetheless because
at most, the takings were “incidental” and, thus, not prohibited.
30
The Court agrees with Defendants that NOAA’s interpretation of the MMPA to exempt
only the unintentional, incidental take of marine mammals by commercial fishers in the course of
commercial fishing is reasonable. See Defs.’ Opp’n & Cross-Mot. at 49. The Court notes that
“[a]s a general matter, an agency’s interpretation of the statute which that agency administers is
entitled to Chevron deference.” Fox v. Clinton, 684 F.3d 67, 75 (D.C. Cir. 2012) (citing Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984)). In the first step of the Chevron
analysis, the Court reviews the statute de novo to determine whether or not the statute is
ambiguous. Chevron, 467 U.S. at 842-43. If the statute is ambiguous, the Court then must defer to
the agency’s interpretation of the statute unless it is “manifestly contrary to the statute.” Id. at 844.
Thus, the inquiry for the Court under the second step of Chevron is whether the agency’s
interpretation of Congress’ instructions is reasonable. The Court’s inquiry under the second step
of Chevron “overlaps with [the Court’s] inquiry under the arbitrary and capricious standard.” Am.
Fed’n of Gov’t Employees, AFL–CIO, Local 446 v. Nicholson, 475 F.3d 341, 345-46 (D.C. Cir.
2007). “Whether a statute is unreasonably interpreted is close analytically to the issue whether
[sic] an agency’s actions under a statute are unreasonable.” Gen. Instrument Corp. v. FCC, 213
F.3d 724, 732 (D.C. Cir. 2000).
Plaintiff, the party challenging the agency action, bears the burden of proof. Abington
Crest Nursing & Rehab. Ctr. v. Sebelius, 575 F.3d 717, 722 (D.C. Cir. 2009) (citing City of
Olmsted Falls v. Fed. Aviation Admin., 292 F.3d 261, 271 (D.C. Cir. 2002)). In assessing the merits
of Plaintiffs’ challenge, the Court begins with the presumption that the agency’s actions were valid.
Grid Radio v. FCC, 278 F.3d 1314, 1322 (D.C. Cir. 2002). So long as the agency decision has
some rational basis, the Court is bound to uphold it. Hosp. of Univ. of Penn. v. Sebelius, 634 F.
31Supp. 2d 9, 13 (D.D.C. 2009) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 416 (1971)).
Here, the Court first addresses the issue of whether the statute is ambiguous. “[T]he
incidental taking of marine mammals in the course of commercial fishing operations by persons
using vessels of the United States or vessels which have valid fishing permits issued by the
Secretary [of Commerce]” is regulated under the provisions of 16 U.S.C. § 1387(a)(2). The term
incidental is not defined by statute. However, the regulations promulgated by the Secretary
defined “incidental” as “a non-intentional or accidental act that results from, but is not the purpose
of, carrying out an otherwise lawful action.” 50 C.F.R. § 229.2 (emphasis added).
First, the Court notes that the statute itself supports a definition of “incidental” that
excludes intentional conduct. Indeed, while the statute expressly prohibits the “intentional lethal
take of any marine mammal in the course of commercial fishing operations,” 16 U.S.C. §
1387(a)(5), the Secretary was permitted to allow “incidental taking,” id. at § 1387(c)(2)(C).
However, the owner or operator of a commercial fishing vessel was required to report “all
incidental mortality and injury of marine mammals in the course of commercial fishing
operations.” Id. at § 1387(e). As such, it is clear that Congress, by banning all “intentional”
instances of mortality but requiring the reporting of all “incidental” incidents of mortality
understood the terms to cover different conduct.
Further, as Defendants point out, a common meaning of “incidental” is “occurring merely
by chance or without intention or calculation.” See Defs.’ Opp’n & Cross-Mot. at 50 n.9 (citing
Merriam Webster Dictionary, http://www.merriam-webster.com/dictionary/incidental (last visited
Oct. 31, 2014)); see also FTC v. Tarriff, 584 F.3d 1088, 1090 (D.C. Cir. 2009) (“It is fixed law
that words of statutes or regulations must be given their ‘ordinary, contemporary, common
32
meaning.’”) (citation omitted). As such, the regulatory definition as limited to non-intentional or
accidental acts conforms with the common meaning of the term. Nonetheless, the Court notes that
another definition of “incidental” included in the same source cited by Defendants, defines the
term as “happening as a minor part or result of something else.” Merriam Webster Dictionary,
http://www.merriam-webster.com/dictionary/incidental (last visited Aug. 10, 2015). This
definition supports Plaintiffs’ argument that the common meaning of the term includes
“intentional” acts. As such, the Court shall at least consider the second step of the Chevron
analysis in the interest of completeness.
In the second step, the Court must defer to the agency’s interpretation of the statute unless
it is manifestly contrary to the statute. As such, the Court must determine whether the agency’s
interpretation of Congress’ instructions is reasonable. Congress explained the purpose of enacting
the MMPA in the statute: “[I]t is the sense of the Congress that [marine mammals] should be
protected and encouraged to develop to the greatest extent feasible commensurate with sound
policies of resource management and that the primary objective of their management should be to
maintain the health and stability of the marine ecosystem.” 16 U.S.C. § 1361(6). The NOAA’s
regulations interpreting the statute as permitting the incidental, but not intentional, take of
mammals are both reasonable and consistent with the language, structure, and purpose of the
MMPA. 11
The Court bears in mind that there is a dispute among the parties with respect to whether
the takings at issue in the instant action meet the definition of incidental as set forth in the
11
Plaintiffs contend that they have authorization to incidentally take whales under the
MMPA and, accordingly, cannot be punished for the conduct at issue. Pls.’ Reply & Opp’n to
Cross-Mot. at 18-19. As discussed further infra, the ALJ here found that Plaintiffs’ conduct was
not incidental.
33
regulation. In this section, the Court has only addressed whether the Agency’s definition of the
term “incidental” is valid. The Court shall address whether or not Plaintiffs actually saw the
whales prior to making the set in its discussion infra of the ALJ’s findings with respect to each of
the counts.
D. ALJ’s Findings of FAD Regulation and MMPA Violations
Plaintiffs raise specific objections to the ALJ’s findings with respect to each of the
violations at issue. The Court shall address each argument in turn, first discussing the violations
found proven for the AT Plaintiffs and then discussing the violations found proven for the
Consolidated Plaintiffs. However, the Court first notes with respect to all of the credibility
determinations, the Court recognizes that the ALJ had the opportunity to observe the demeanor of
the witnesses who testified before him.
1. American Triumph Plaintiffs
Plaintiffs argue that there are overarching issues with the credibility determinations of the
ALJ with respect to the violations of the F/V American Triumph as adopted as the final agency
decision in this matter. Plaintiffs also raise specific objections to the ALJ’s findings with respect
to each count, which Plaintiffs argue are not supported by substantial evidence. The Court shall
first address the ALJ’s credibility determination and then shall turn to Plaintiffs’ arguments
regarding each count found proven against the AT Plaintiffs.
a. ALJ’s Credibility Determinations
Specifically, the crux of Plaintiffs’ argument with relation to the ALJ’s credibility
determinations is that the ALJ improperly credited the testimony of Jason Morikawa, who was the
observer on board the vessel under the Regional Observer Program, over the conflicting testimony
of Plaintiff Black, the vessel’s captain, and Indra “Cucu” Cahyana, the interpreter on board the
34
vessel. See Pls.’ Mem. at 26-41. Plaintiffs argue that the ALJ should not have credited the
testimony of Morikawa because evidence reflected that Morikawa believed that he might get an
award for reporting violations and that Morikawa used betel nut, a substance prohibited on board
the vessel. Plaintiffs also argue that the ALJ improperly credited testimony that Morikawa was
bribed by the fishing master on board the vessel so that he would not report the sets made on FADs.
Instead, Plaintiffs assert that the ALJ should have credited what they argue is the more reliable
testimony of Cahyana and of Plaintiff Black, who Plaintiffs argue has an incentive to be honest
because he is subject to federal licensing, was cooperative during the investigation, and has no
prior violations. Contrary to Plaintiffs’ assertions, the Court finds no reason to set aside the
findings because the ALJ fully considered the information that Plaintiffs present in their motion in
reaching his decision to credit the accounts of the incidents provided by Morikawa. The ALJ’s
findings, ultimately adopted by the Agency, include clear and comprehensive credibility
determinations based on consideration of the conflicting evidence in the record.
“[A]bsent clear error, ‘an agency’s credibility decision normally enjoys almost
overwhelming deference.’” Bean Dredging, LLC v. United States, 773 F. Supp. 2d 63, 81 (D.D.C.
2011) (quoting Sasol N. Am. Inc. v. Nat’l Labor Relations Bd., 275 F.3d 1106, 1112 (D.C. Cir.
2002)). Indeed, as the D.C. Circuit has noted, the court is “loathe to overturn the credibility
determinations of an ALJ unless they are ‘hopelessly incredible, self-contradictory, or patently
insupportable.’” Noel Canning v. NLRB, 705 F.3d 490, 495 (D.C. Cir. 2013) (citation omitted).
Further, “[t]he reviewing court may not substitute its own judgment for the agency’s ‘choice
between two fairly conflicting views,’ even if that court ‘would justifiably have made a different
choice had the matter been before it de novo.’” Siegel v. SEC, 592 F.3d 147, 155 (D.C. Cir. 2010)
(citation omitted)
35
Here, the ALJ set forth specific explanations of his credibility determinations with respect
to Morikawa, Black, and Cahyana. I.A.84 at 0001425-31. As the ALJ noted, the testimony of the
witnesses was contradictory and irreconcilable. Id. at 0001425. The ALJ explained:
To make credibility determinations at issue, I considered the totality of the
circumstances, including: 1) my observations of each witness’ demeanor, candor,
and responsiveness; 2) the plausibility of a particular witness’ account; 3) the
consistency between any of the witness’ written accounts (and the timing of such
accounts) and oral statements; 4) the internal consistency of each such statement;
5) the consistency of such statements with any other record evidence; and 6) any
demonstrated inaccuracies in such statements.
Id.
In his credibility determination of Morikawa, the ALJ discussed both the allegations with
relation to the bribe and the use of betel nut. Id. at 0001414-17. In his credibility determination,
the ALJ found that the fishing master attempted to bribe Morikawa to not to report his observations
of unlawful activity, and that Morikawa accepted the money with the express intent of keeping it
as evidence to support his documentation of the events in his trip diary. The ALJ noted that
Morikawa turned over the money ($440) following the trip and received a $2,000 award after the
fact for reporting the bribe. 12 Id. at 0001426.
In the instant motion, Plaintiffs argue that the ALJ improperly found that Morikawa was
bribed and instead should have relied on deposition testimony demonstrating that the incident was
actually a simple miscommunication between the fishing master and Morikawa who
misunderstood a word in Chinese to be “raft,” which he took to mean a FAD. The ALJ addressed
12
Morikawa turned over the money he received from the fishing master to his observer
coordinator. The Marshall Islands Government subsequently charged the American Triumph LLC
and the fishing master with interfering with an observer. The American Triumph LLC and the
fishing master settled the charges by paying a $200,000 to the Marshall Islands Government, and
Morikawa received a $2,000 reward as a result of the settlement. See I.A.84 at 001415-16.
36
this argument in his motion for reconsideration, noting “[Plaintiffs] raise for the first time the
deposition transcript of Mr. Morikawa (which was not admitted into evidence during the hearing
– nor used as impeaching material) and cite to extra-record definitions of the word ‘raft’ in
Chinese.” I.A.92 at 0001711. Plaintiffs argue that the testimony from Cahyana and Black supports
a finding that the money was not a bribe but rather was “happy money” that the fishing master
regularly gave to crew members for good luck. See Pls.’ Mem. at 30. Further, Black testified that
he had a conversation with Morikawa about another boat that had gotten in trouble for an alleged
bribe and that rewards were given as a result. 13 I.C.108 at 00002819. Notably, the testimony cited
in support of Plaintiffs’ argument discusses the fishing master’s general practice of giving out
money but both Cahyana and Black specifically testified that they never saw the fishing master
give money to Morikawa. I.C.108 at 0002807, 0002826-27. Black testified he “assumed” the
fishing master gave Morikawa the money for good luck. Id. at 0002826. Further, the fishing
master did not testify before the ALJ. The Court cannot conclude that the ALJ improperly credited
Morikawa’s account of the alleged bribe and related notes taken by Morikawa over the accounts
of two persons who admittedly did not witness the exchange of the money. Further, the Court
cannot conclude that the ALJ improperly factored this information into the credibility
determination.
Plaintiffs next argue that the ALJ’s ruling with respect to Morikawa’s alleged use of betel
nut in violation of the Code of Conduct for Observers while on board the vessel was arbitrary and
13
Plaintiffs appear to cite to this testimony in support of their argument that Morikawa had
an economic incentive to report the FAD violation, not the bribe. See Pls.’ Mem. at 28. However,
a reading of the transcript makes clear that the discussion was about a bribe “before the FAD
closure.” I.C.108 at 00002819. As such, the Court shall address this testimony in this section of
the opinion and not in the discussion of whether the ALJ should not have credited Morikawa’s
testimony because he had an economic incentive to report the FAD violations.
37
capricious. Pls.’ Mem. at 30-31. Contrary to Plaintiffs’ assertion, the ALJ did consider conflicting
testimony from Cahyana that Morikawa used betel nut during the trip at issue, and Morikawa’s
denial of same. I.A.84 at 0001428. Ultimately, the ALJ credited Morikawa over Cahyana given
his determination of Morikawa’s credibility and noted that even if the assertion regarding the betel
nut was true, “[P]laintiffs failed to demonstrate that such use more likely than not leads to the
conclusion that all of his documentary exhibits and testimony are not credible.” Id. While
Plaintiffs argue that Morikawa’s alleged use of betel nut and denial of the use are relevant to his
character and truthfulness, the ALJ clearly set forth the evidence that he considered and determined
that Morikawa should be credited over Cahyana. As such, the ALJ rejected this attack on
Morikawa’s credibility. The Court does not find this ruling arbitrary and capricious. Rather, the
ALJ was required to resolve conflicting testimony and did so with a reasonable explanation that
he found Morikawa more credible for the reasons described in his findings.
Turning to Morikawa’s alleged monetary incentive for reporting FAD violations, the ALJ
noted that Morikawa received $2,000 for reporting the bribe but did not receive any award for
reporting the FAD violations. Id. at 001426-27. However, Plaintiffs appear to argue that
Morikawa thought that he would receive rewards for reporting FAD violations even though the
record reflects that he did not receive any such award. See Pls.’ Mem. at 28-29. Plaintiffs point
out that Cahyana testified that both Morikawa and one of Morikawa’s friends told him that they
received “big money” for reporting violations. I.C.108 at 0002813. Further, Plaintiffs also rely on
two statements from Morikawa himself that Plaintiffs contend are inconsistent. First, Morikawa
provided the following written responses to the questions sent to him by Special Agent Painter as
part of the NOAA investigation of the FAD violations:
38
1. Prior to making your trip on the American Triumph, were you ever instructed
to try and note as many violations as you can, because you would receive a
percentage of the fines or penalties imposed?
- Yes Kevin, everything I said was true but too bad I didn’t bring any camera
to get more solid evidences.
2. If so, who gave you the instruction?
- No one. As a trained observer I learned that we observers should collect
everything data including/especially the ones that are ILLEGAL.
I.E.112-JJ at 0003903. Further, a second set of written responses to these same questions that
constituted Morikawa’s final answers is included in the record. In response to question 1,
Morikawa answered: “I didn’t know about receiving any reward money for reporting violations,
until after I returned from my trip on the American Triumph. After reporting the violations I was
made aware of the possibility of an award.” Id. at 0003908. In response to question 2, Morikawa
answered: “No one gave me any instructions. I just did what I was trained to do.” Id.
Plaintiffs point to Morikawa’s first response to question 1 in the affirmative as inconsistent
with the response given in the other set of questions. The ALJ found that the allegedly inconsistent
statement was reasonable as “Morikawa apparently misunderstood the question and was answering
about his then-present knowledge (i.e., after the trip where the bribery occurred)” and then
corrected it in the final version. I.A.84 at 0001427. Further, the ALJ found that the complete
answer to questions 1 and 2 supported Morikawa’s credibility, citing to the portion of the answer
where Morikawa indicated that “no one” gave him instructions to document violations in order to
receive an award. Id. The Court does not find answering the question in the affirmative in the
first instance necessarily contradictory because Morikawa goes on to indicate that he was truthful
in his report. Further, the testimony of Cahyana that Morikawa told him he would receive money
39
for reporting violations does not provide a basis for the Court to set aside the ALJ’s finding. The
ALJ credited Morikawa’s account that he was not aware that he might receive an award for
reporting FAD violations, a conclusion that is supported by the record and fully explained by the
ALJ.
Ultimately, the ALJ found “Morikawa’s testimony to be credible and supported by
contemporaneous documents he generated that are consistent with his testimony.” 14 Id. at
0001429. Based on a review of the cited evidence, the Court does not find that the ALJ’s
credibility determination with respect to Morikawa was hopelessly incredible, self-contradictory,
or patently insupportable. See Noel Canning, 705 F.3d at 495. Instead, the determination appears
to be supported by substantial evidence and a review of the evidence cited by Plaintiffs does not
demonstrate that the ALJ’s finding should be disturbed.
Plaintiffs’ arguments regarding the ALJ’s credibility determinations with respect to Black
and Cahyana similarly fail. Plaintiffs assert that the ALJ should have credited the testimony of
Black over the testimony of Morikawa because Black “had the greatest reasons to testify honestly
in this proceeding.” Pls.’ Mem. at 31. Plaintiffs argue that Black’s testimony should have been
14
Plaintiffs assert that under the memorandum of understanding governing the observer
program, the vessels’ captains were to be afforded an opportunity to review and comment on the
observers’ reports. Plaintiffs argue that they were prejudiced by NOAA’s failure to provide an
opportunity to comment particularly in light of the fact that the ALJ relied in part on the observers’
reports because they were made contemporaneously to the events at issue. See Pls.’ Reply &
Opp’n to Cross-Mot. at 12-13. However, as Defendants noted, the memorandum of understanding
at issue was between the Pacific Islands Forum Fisheries Agency (FFA) and the American Tuna
Owners Association (ATA), and NOAA was not a party to the memorandum. See I.E.112O at
0003683. As such, the Court cannot conclude that there was any error on Defendants’ part in not
soliciting contemporaneous responses to the observers’ notes, but rather contacting the vessels’
captains after the fact as part of the investigation. Further, while the ALJ did rely on the observers’
notes, he also set forth additional bases for accepting the observers’ accounts of the incidents over
conflicting reports of the captains.
40
given greater credit because he would risk losing his license if he lied, he had no history of
violations, and he fully cooperated with the investigation. Id. at 31-32. While Plaintiffs assert that
the ALJ “discredited the Captain’s testimony based on pure speculation or no reason at all,” Pls.’
Mem. at 32, a review of the ALJ’s decision demonstrates that this characterization is not accurate.
Rather, the ALJ explained that because Black and the fishing master had different duties, they
were often stationed on different places on the vessel. I.A.84 at 0001429. As the ALJ noted,
Morikawa’s accounts “indicated several instance that the Captain was not always on the bridge
during the first part of the sets, particularly in the early morning.” Id. Further, the ALJ noted that
because the fishing master was responsible for deploying the nets when fish were located, sleep
variances between the fishing master and Black could occur. Id. at 0001429-30. As such, the ALJ
concluded “it is clear Captain Black might not have observed some/most of the illegal actions of
the fishing master.” Id. at 0001430.
This conclusion was supported by Morikawa’s accounts that indicated several instances
when Black was not on the bridge during the first part of the sets, particularly in the early morning.
Id. Black denied in his testimony that he was asleep during the early morning sets. I.C.108 at
0002823. Further, when asked if he got up for every set, Black responded: “Every – yeah, I wrote
every set in, every single set in the morning. It was my time, it was my position. If you want to
take and check the position, you might see a very slight difference in the position itself. There
shouldn’t be a difference in time because at that time when he let go, we start right in the position.”
Id. The ALJ noted that Black in his denial indicated that he wrote every set in the log sheet, which
the ALJ credited. I.A.84 at 0001430. However, he concluded “the source of such information
more likely than not came from other members of the crew.” Id. Ultimately, in addressing the
conflicting testimony between Morikawa and Black regarding Black’s presence during some of
41
the sets, the ALJ accepted Morikawa’s accounts that Black was not present over Black’s accounts
that he was always present, noting that Black as a named party had “an ongoing incentive to
minimize and/or fail to recall those instances where the vessel did engage in such activities.” Id.
Finally, the ALJ noted that he found Black’s testimony to be “generally forthright, but clearly
slanted in his employer’s favor.” Id. The ALJ adequately explained his conclusion that
Morikawa’s account should be credited over Black’s account, a conclusion which was supported
by the evidence before him. Accordingly, the Court finds no reason to set aside the ALJ’s
acceptance of Morikawa’s testimony over that of Black with respect to Black’s presence during
some of the sets and, relatedly, Morikawa’s descriptions of the sets at issue.
Finally, Plaintiffs argue that the ALJ “improperly flatly rejected all accounts by the
translator based on an assumed bias because of the translator’s employment status.” Pls.’ Mem. at
35. Further, Plaintiffs assert “the ALJ failed to plausibly explain his conclusion that Mr. Cahyana’s
testimony was not credible in some circumstances but acceptable in others absent any
impeachment efforts by NOAA or contradictory evidence.” Id. at 33. A review of the ALJ’s
findings demonstrates that the ALJ properly considered the relevant information provided by
Cahyana and credited Morikawa’s accounts of the violations over the conflicting accounts given
by Cahyana. Indeed, the ALJ noted, “Mr. Cahyana was able to provide detailed accounts of each
of the violations and the particulars surrounding those violations, but could not do so for any other
days or sets made by the vessel.” I.A.84 at 0001431. The ALJ contrasted Cahyana’s testimony
with that of Morikawa, who kept contemporaneous notes of the each of the sets, and found
Cahyana’s “selective ability to recall detailed specifics of the alleged violations is dubious at best.”
Id. Further, the ALJ noted that Cahyana’s function was to be the interpreter on the vessel, whereas
Morikawa’s role was dedicated to observing the fishing activities. Id. Finally, the ALJ noted that
42
Cahyana was a current employee of the American Triumph and just entered into a new contract to
serve as interpreter of the vessel. Id. Finally, the ALJ noted that Morikawa’s contemporaneous
notes indicated that on one occasion during the trip, Morikawa pointed out a raft to Cahyana and
Cahyana told Morikawa not to tell Black about the raft. Id.
After considering all this evidence, the ALJ determined that the information about the
violations provided by Morikawa in his contemporaneous notes and in his testimony should be
credited over that of Cahyana. Plaintiffs provide no basis for the Court to overturn that
determination based on the ALJ’s reasoned explanation set forth in his decision. Accordingly, for
the reasons described, the Court finds that the ALJ’s credibility determinations are not hopelessly
incredible, self-contradictory, or patently insupportable, but rather are supported by substantial
evidence in the record. See Noel Canning, 705 F.3d at 495. Further, the Court finds that the ALJ’s
decision to credit information provided by Morikawa of the violations over the conflicting
accounts given by Black and Morikawa was supported by the record and was properly explained
by the ALJ. As such, the Court finds no reason to disturb this portion of the ALJ’s decision nor
does the Court find that the Administrator erred in accepting the credibility determinations as part
of the Secretary’s final decision in this matter.
b. ALJ’s Determination as to Proven Counts
Plaintiffs also raise specific objections to the ALJ’s findings with respect to each of the
counts that the ALJ found proven. The ALJ found that during the FAD closure period, the AT
Plaintiffs had violated the FAD Regulation by servicing a FAD on one occasion, making a set
within one nautical mile of a FAD on three occasions, and making a set on a FAD on three
43
occasions. 15 The ALJ found in one instance that it was not proven that the AT Plaintiffs made a
set within one nautical mile of a FAD. I.A.84 at 0001442. As described below, Plaintiffs
essentially reiterate arguments soundly rejected by the ALJ. This Court will not re-weigh the
evidence and substitute its own judgment for that of the ALJ. Further, the Court notes that it has
reviewed the evidence relied upon by the ALJ which in each instance primarily includes
Morikawa’s testimony and his contemporaneous notes taken during the trip. See generally I.A.84
at 0001432-50. In each instance, this evidence provides substantial support for the ALJ’s
conclusion. The crux of Plaintiffs’ argument is that the ALJ should have discounted Morikawa’s
accounts of the incidents and instead accepted other evidence in the record. As such, the Court
shall focus on Plaintiffs’ objections to the ALJ’s findings in its discussion.
With respect to Count 1, the ALJ found that it was proven that on August 28, 2009, AT
Plaintiffs violated the FAD Regulation by servicing a FAD. See id. at 0001432-36. Specifically,
the ALJ found that the fishing master swapped out a radio beacon from another vessel on a FAD
for a radio beacon belonging to the American Triumph and then re-deployed the FAD. Id. While
Plaintiffs contend that the ALJ improperly discounted testimony from Black and Cahyana that
contradicted Morikawa’s testimony that the vessel actually swapped the radio buoy on the FAD,
the ALJ provided a detailed explanation to support this finding. Pls.’ Mem. at 36. The ALJ
provided a detailed account of the evidence presented by both sides as to this issue, noting “[t]he
central question is whether [Plaintiffs] in fact exchanged the buoy or merely returned the FAD to
the water at Captain Black’s explicit direction.” I.A.84 at 0001434. The ALJ recounted both
15
The ALJ also found in one instance (Count 3) that it was not proven that the AT Plaintiffs
made a set within one nautical mile of a FAD. I.A.84 at 0001442. The parties do not contest this
finding in their cross-motions so the Court shall not further address it.
44
Black’s and Cahyana’s accounts of the incident, including the fact that both testified that the radio
beacon was not changed because Black instructed the crew not to do so. Id. at 0001433.
Ultimately, however, the ALJ credited Morikawa’s account of the events, finding his testimony
was detailed and supported by contemporaneously generated documents. Id. Further, the ALJ
noted that Morikawa’s diary included a “highly detailed depiction of this event, containing
specificity and more details than were elicited by either party during the hearing.” Id. After
balancing all the evidence, the ALJ expressly accepted Morikawa’s account that the radio beacon
was in fact replaced and provided an adequate explanation for reaching this conclusion. See id. at
0001432-36. As such, the Court concludes that the ALJ’s finding with respect to Count 1 against
the AT Plaintiffs was not arbitrary or capricious and that it was supported by substantial evidence.
Turning to Count 2, the ALJ found that Plaintiffs made a set within 100 meters of a FAD
on August 18, 2009, in violation of the FAD Regulation. Plaintiffs contend that the ALJ
erroneously weighed the evidence because there were inconsistencies in Morikawa’s account of
the events. Pls.’ Mem. at 36. First, Plaintiffs point to the differing accounts given by Morikawa
and Cahyana with respect to whether there actually was a raft. Id. at 36-37. The ALJ fully
discussed these accounts, including Cahyana’s statement that he could not see the FAD even after
he went to the mast and used bigger binoculars. I.A.84 at 0001437-38 (“Even if one accepted Mr.
Cahyana’s testimony as credible (which for the reasons given above, I do not), at best it only
indicates he did not personally see the raft and that he did not hear from anyone else on the boat
that they saw a raft.”). The ALJ noted that Morikawa testified that Cahyana certainly saw the FAD
and “tried to talk Mr. Morikawa into not telling Captain Black.” Id. at 0001436. Further, Plaintiffs
point to an alleged discrepancy in Morikawa’s daily log with respect to this event, an argument
that the ALJ weighed in reaching his determination. Id. at 0001437. After expressly considering
45
this evidence, the ALJ found that “[t]he balance of the evidence favors the Agency’s position.” Id.
The Court notes that while Plaintiffs do cite to testimony from Black in support of the notion that
there was no FAD in the vicinity, that testimony is not expressly cited in the ALJ’s decision. See
I.C.108 at 002823 (testimony of Black that no FAD was observed by him or by anyone when the
set was made). However, in the credibility determination with respect to Count 2, the ALJ
expressly found “Mr. Morikawa’s account is more credible than Mr. Cahyana’s and Captain
Black’s.” I.A.84 at 0001437. As such, the Court finds that the ALJ properly considered the
evidence before him with respect to Count 2 and the Court finds that the ALJ’s determination that
the violation was proven is supported by substantial evidence.
Turning next to Count 4, the ALJ found that Plaintiffs set a net within one nautical mile of
a FAD on August 24, 2009, in violation of the FAD Regulation. Plaintiffs again raise an issue
with the coding of the incident in Morikawa’s logbook. Specifically, Plaintiffs argue that
Morikawa “said that the FAD was near a ‘free school’ of tuna and his logbook showed an entry
for Set #22 as a ‘2’ the code for ‘feeding on baitfish’ but not the code for FAD association.” Pls.’
Mem. at 37. The ALJ fully addressed the coding issue in his decision and found Plaintiffs’ reliance
on it “not persuasive.” I.A.84 at 0001443. Plaintiffs take issue with the fact that the ALJ accepted
that the set was one for feeding on baitfish but nevertheless found it was unlawful. See id. at
0001443-44. However, as explained in the decision, the ALJ rejected the argument based solely
on Cahyana’s testimony of “the alleged impossibility of tuna feeding on bait fish in association
with a raft/FAD.” Id. at 0001444. Instead, the ALJ found that Cahyana’s and Morikawa’s
testimony was not inconsistent. Rather, the ALJ found that a set could be made on tuna “feeding
on baitfish” within one nautical mile of a FAD, as in this instance. Id. at 0001443-44. The ALJ
also noted that the Agency had not alleged that the set was made on the FAD itself. Id. at 0001443.
46
As such, the Court finds that the ALJ properly considered the evidence before him with respect to
Count 4 and the Court finds that his determination that the violation was proven is not arbitrary,
capricious, or an abuse of discretion. Rather, the finding is supported by substantial evidence in
the record.
With respect to Count 5, the ALJ found that Plaintiffs set a net within one nautical mile of
a FAD on September 4, 2009, in violation of the FAD Regulation. Plaintiffs first contend that the
ALJ did not cite to testimony from Cahyana, consistent with Morikawa’s testimony, that a “track
finder” cannot be used to find a buoy because it does not give distance. However, the ALJ did
reference the cited testimony from Cahyana. See I.A.84 at 0001445. Cahyana explained in the
cited testimony: “We press the button, then on that beacon give you a signal. If you had a signal
and sound like beep, beep, beep, beep, beep, beep, like that, and if you have a big signal, that mean
the buoy’s close. Big power on the signal mean it’s close. If you have small signal, that mean it
more than ten mile.” I.C.108 at 0002811. Cahyana went on to explain that from the track finder
you can find the direction, but not the distance of the buoy. Id. This information is not inconsistent
with the ALJ’s finding: “1) the vessel (and Mr. Morikawa) could determine the direction of the
specific buoy by its frequency using the track finder and 2) the strength of the signal received gave
a relative indication of the distance (i.e., the closer the buoy-the stronger the signal).” I.A.84 at
0001445 (emphasis added). Further, Plaintiffs assert that the ALJ rejected Black’s explanation of
the set without an explanation and further indicated that the evidence supported a finding that this
was a set made on “fish-under-the-boat.” Pls.’ Mem. at 39-40. However, the ALJ clearly set forth
his reasons for crediting Morikawa’s account over Black’s account. Namely, the ALJ found that
Black woke up as the set was underway. I.A.84 at 0001445-46, 0001446 n.29. As such, the Court
47
concludes that there is no basis to set aside the ALJ’s determination with respect to Count 5
because the finding was supported by substantial evidence.
Turning to Count 6, the ALJ found that the Plaintiffs set a net on a raft in order to catch
fish that had aggregated in association with the raft on August 15, 2009, in violation of the FAD
Regulation. Plaintiffs argue that the ALJ should have discredited Morikawa’s testimony that he
saw the FAD in question because Morikawa also testified that it was dark at the time of the set.
Plaintiffs also point to Morikawa’s testimony that he did not know where the buoy was and his
concession that it could have been 10 miles away. Rather, Plaintiffs argue that the ALJ should
have accepted Black’s testimony that this was a set made on “fish-under-the-boat.” Pls.’ Mem. at
39-41.
The ALJ properly considered each of Plaintiffs’ arguments in his decision and rejected
each with explanation. First, the ALJ did not discredit Morikawa’s account that he saw the FAD
in the dark because the record reflects that the vessel could find its rafts by using the track finder
to find the beacon on the raft, that Morikawa indicated that there was a 29 minute lapse between
when Morikawa was aware that the vessel was searching for one of its buoys and when it actually
located the same, and that Morikawa explained that he could see the buoy because of the lights
coming off of the vessel’s tower and working lights. I.A.84 at 0001447-48. The ALJ found that
with respect to Morikawa’s testimony regarding the location of the buoy, Morikawa “was not
speaking about that particular buoy but was stating that the range finder to track the buoy does not
give discrete distance but picks up signals from up to 10 miles away,” id. at 0001533, which is
not inconsistent with a reading of the testimony in response to the question about the display on
the track finder, I.C.102 at 0002346-47. While Plaintiffs’ argue that the ALJ should have accepted
Black’s and Cahyana’s testimony that the FAD set did not occur, and that this set was consistent
48
with a fish-under-the-boat set, the ALJ accepted Morikawa’s account of the events at issue in light
of conflicting testimony. See I.A.84 at 0001446-48. The Court finds that the ALJ’s decision was
supported by substantial evidence because the ALJ relied on the account provided by Morikawa,
which the ALJ deemed more credible.
Turning to Count 7, the ALJ found that Plaintiffs set a net on a raft on August 17, 2009, in
violation of the FAD Regulation. Plaintiffs contend that the evidence supports the conclusion that
this was a set on “fish-under-the-boat” that did not violate the FAD Regulation. Pls.’ Mem. 40-
41. However, Morikawa provided a conflicting account of the events, indicating that he spotted a
buoy and raft at 04:58, and that the vessel deployed fish aggregating lights and deployed a
workboat with its own aggregating lights. The vessel made a set at approximately 05:33. I.A.84
at 0001448-49. In light of the conflicting accounts regarding whether a raft was involved, the ALJ
credited Morikawa’s account of the events. Id. at 0001449. The Court finds that the conclusion
of the ALJ was supported by substantial evidence given Morikawa’s testimony and records despite
the fact that Plaintiffs presented a conflicting account.
Finally, with respect to Count 8, the ALJ found that Plaintiffs set a net on or near a raft to
capture fish that had aggregated in association with the raft on September 4, 2009, in violation of
the FAD Regulation. Plaintiffs contend that the ALJ should not have credited Morikawa’s account
of the events at issue over the conflicting accounts presented by Black and Cahyana. First,
Plaintiffs point to the fact that Morikawa coded the set as one made on “schoolfish feeding on
baitfish” as a reason for discrediting Morikawa’s account. Pls.’ Mem. at 38. The ALJ addressed
this issue and supported his finding by pointing to Morikawa’s testimony that the set was made on
“a free school of tuna that was feeding on bait fish near a raft.” I.A.84 at 0001449. Further, the
ALJ noted that Morikawa indicated that the vessel maneuvered near the raft to separate the tuna
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from the raft before making the set. Id. Finally, the ALJ indicated that while both Cahyana and
Black specified that they did not see the raft, the ALJ concluded that Morikawa’s account was
more credible. Id. at 0001450. The Court finds that the ALJ’s determination was supported by
substantial evidence in the record given that he relied on Morikawa’s account of the events at issue
and described his reasons for doing so.
For the reasons set forth above, the Court concludes that the ALJ’s findings, ultimately
accepted by the Administrator as the Secretary’s final decision, were supported by substantial
evidence and were not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law. Indeed, in each instance, the ALJ was presented with conflicting evidence and chose to
credit certain evidence over other evidence, and provided his reasons for doing so. As such, the
Court shall deny Plaintiffs’ request to set aside these findings and shall enter judgment in favor of
Defendants with respect to Counts 1-2 and 4-8 against AT Plaintiffs.
2. Consolidated Plaintiffs
Plaintiffs also raise specific objections to the ALJ’s findings with respect to each count
alleged against the Consolidated Plaintiffs, which Plaintiffs argue are not supported by substantial
evidence. The Court shall address each of Plaintiffs’ arguments with respect to each of the
Consolidated Plaintiffs. The Court shall first address the violations related to the FAD Regulation
and then the Court shall address the MMPA violations. As an initial matter, the Court notes that
the ALJ had the opportunity to observe the demeanor of the witnesses at the hearing and was able
to consider this factor in making his findings.
a. FAD Regulation Violations
i. Sea Quest Plaintiffs (Counts 1-2)
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The ALJ found that the Sea Quest Plaintiffs violated the FAD Regulation on August 14,
2009 (Count 1), and on September 17, 2009 (Count 2), based on the vessel’s use of lights to make
a set on fish that had aggregated overnight under the vessel. In both instances, the observer on
board reported that he observed auxiliary workboats with lights in the water near the vessel before
the set was made. II.A.100 at 0005515, 0005517. With respect to these two counts, Plaintiffs
argue that the ALJ should have credited testimony from the vessel’s captain, Plaintiff Freitas, that
the lights were used for safety reasons and not for the purpose of aggregating fish. Further,
Plaintiffs argue that there was conflicting testimony regarding which lights were used. Pls.’ Mem.
at 42-43. Ultimately, Plaintiffs contend that both sets were permissible sets on “fish-under-the-
boat.”
In both instances the ALJ credited the testimony and contemporaneous records of the
observer, Kun Iohp, in reaching his conclusions. With respect to Count 1, the ALJ concluded that
“the vessel used lights overnight in an effort to aggregate fish while it drifted and then deployed
auxiliary boats the next morning with submerged lights to capture the aggregated fish.” II.A.100
at 0005516. With respect to Count 2, the ALJ found that the vessel “used lights in an effort to
hold the fish which had aggregated overnight under the vessel on its auxiliary boats to capture
those fish in the set.” Id. at 0005517.
Plaintiffs point to Plaintiff Freitas’ testimony and a memorandum from an interview
indicating that Freitas maintained that the vessel never used submerged lights during the trip and
rather, the only lights used at that time were above-water lights on the vessel and the workboats.
See II.C.121 at 0007298; II.E.129-V at 0009806. However, the ALJ cited to Freitas’ testimony
that they used lights on the workboat that were submerged about 2 feet, but not the aggregating
lights that are usually dropped about 20 feet below the surface of the water. The ALJ’s analysis
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focused on the use of the lights submerged 2 feet under the water. While Freitas contended that
the primary purpose for using those lights was for safety purposes and not for fish aggregating
purposes, the ALJ noted that “Freitas acknowledged that [those] ‘drop lights’ [on the auxiliary
boats] were used at least partly in the hopes of keeping fish in place while the main vessel
performed a set around the work boats.” II.A.100 at 0005516. Ultimately, the ALJ found Freitas’
general denial that the vessel did not use lights for the purpose of aggregating fish not credible,
particularly in light of Freitas’ concession on the point. Id. at 0005516. As such, the Court finds
each conclusion was supported by substantial evidence in the record, including the testimony of
Iohp and his contemporaneous records.
ii. Pacific Ranger Plaintiffs (Count 1)
The ALJ found that the Pacific Ranger Plaintiffs violated the FAD Regulation by making
a set on tuna that had aggregated under the vessel overnight on September 30, 2009. Specifically,
the ALJ found that the use of lights on an auxiliary boat during the set to hold the fish in place
converted the vessel into a FAD. Plaintiffs argue that the ALJ incorrectly rejected the testimony
of Plaintiff Zolezzi, the vessel’s captain, that the workboat’s underwater lights were only turned
on for a brief period of time, one to two minutes, until Zolezzi instructed the fishing master to turn
them off. Pls.’ Mem. at 44.
The ALJ relied on the testimony and records of Auto’o Siliomea, the observer, to support
his finding that the violation occurred. Specifically, the log kept by Siliomea indicated with respect
to the set at issue: “They used fish aggregatting [sic] light, and after the rings up. I saw a drifted
log near the skiff. I saw auxiliary boat #6 was drifted with fish aggregatting [sic] light and the
vessel made a set around it.” II.E.128-5 at 0008296. Siliomea also testified that the light deployed
by the auxiliary boat was deep in the sea. II.C.115 at 0006616.
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The ALJ rejected Zolezzi’s contention that the lights were on for a short period of time
based on Siliomea’s account of the events at issue. Ultimately, the ALJ found, “Credible evidence
. . . indicates the F/V Pacific Ranger used lights in an effort to hold the fish which had aggregated
overnight under the vessel. Moreover, the F/V Pacific Ranger used its auxiliary boat lights to hold
those fish so a set could be made.” II.A.100 at 0005518. While Plaintiffs correctly contend that
the ALJ does not discuss whether lights were used to aggregate the fish under the vessel overnight,
the ALJ found a violation of FAD Regulation based on the use of submerged lights under the
workboat as described by Siliomea. Siliomea’s specific account that the boat made a set after
using aggregating lights on the workboat to hold the fish in place provides substantial support for
the ALJ’s conclusion that the Pacific Ranger Plaintiffs violated the FAD Regulation. As such, the
Court concludes that ALJ’s finding was supported by substantial evidence in the record.
iii. Ocean Conquest Plaintiffs (Counts 2-3)
The ALJ found that the Ocean Conquest Plaintiffs violated the FAD Regulation on
September 24, and September 25, 2009, by using lights during the night in one instance and lights
on its auxiliary boats to hold the fish in place in order to make a set on the fish in both instances.
Plaintiffs argue, “[w]hile the evidence supports the finding that lights of some sort were used
because of the fishing master’s belief that they would hold the fish in place, NOAA presented no
evidence that they did in fact achieve that purpose.” Pls.’ Mem. at 45. As Defendants properly
note, NOAA is not required to prove that the use of the lights was effective, only that Plaintiffs
made a set around an artificial or natural floating object, that is capable of aggregating fish, or any
objects used for that purpose. Defs.’ Opp’n & Cross-Mot. at 43. Plaintiffs contend that the
evidence proves only that sets were made on fish that naturally aggregated under vessels overnight
and that the FAD Regulation “raises the question of whether ‘holding’ fish by a workboat is
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considered purposeful aggregation or not.” Pls.’ Mem. at 45. The ALJ relied on testimony by
Plaintiff Maughan, the vessel’s captain, who claimed that lights in the water do not attract fish
under the boat, but acknowledged that the Taiwanese fishing masters believe that if they put the
lights in the water the fish will stay by the boats. II.A.100 at 0005487. Further, the ALJ, pointing
to the captain’s testimony, indicated: “Captain Maughan stated that the fishing master in these
instances used lights in the water because of that belief.” Id. at 0005519. As such, Plaintiffs’
argument that their conduct did not fall within the range of purposeful conduct prohibited by the
FAD Regulation is without merit. The ALJ, relying on the testimony of Plaintiff Maughan, found
that Plaintiffs “used lights in an effort to keep the aggregated fish under the workboats while the
main vessel made a set.” Id. Further, relying on evidence deemed credible from the on-board
observer, Anthony Lioliomola, the ALJ set forth a substantial basis for making his findings on
both counts. Accordingly, the Court finds each conclusion was supported by substantial evidence
in the record.
iv. Ocean Encounter Plaintiffs (Counts 5-9)
The ALJ found proven that Plaintiffs violated the FAD Regulation on September 18,
September 20, September 21, September 22, and September 23, 2009, by making sets on tuna that
had aggregated under the main vessel overnight. The ALJ found in each instance that the use of
lights during the night and/or the use of lights on the auxiliary boats to hold the fish in place turned
the vessel into a FAD. Plaintiffs argue that in each instance the ALJ erroneously relied on the
testimony of the inexperienced observer over the account provided by the experienced captain of
the vessel. Pls.’ Mem. at 46-47. In each instance, the ALJ relied on the testimony of Chris Nare,
the on-board observer, to support his finding that Plaintiffs used submerged lights on the auxiliary
boats prior to making the sets. See II.A.100 at 0005522-26. Plaintiffs contend that the ALJ should
54
have credited the account of Plaintiff Bass, the vessel’s captain, over that of Nare. As the ALJ
noted, Bass did not testify at the hearing. However, his interview with Special Agent Charles
Raterman and follow-up responses to questions via e-mail were considered. Indeed, Bass denied
that the vessel set on any FADs or used any underwater lights during the period of the alleged
violations.
The ALJ accepted that Bass told the investigator that Nare was inexperienced, it was his
first time away from home and his first time on a ship, and that he had “no clue” how to complete
forms, make proper log entries, identify species, measure tuna, or observe or access anything. Id.
at 0005655. However, the ALJ accepted this finding as to the fact that Bass made these statements,
but rejected it to the extent that the finding implied that Nare’s documents and/or testimony lacked
credibility. Id. Instead, the ALJ concluded that Nare’s detailed account and records provided
credible evidence to support his conclusion even in light of the conflicting account of Bass who
did not testify. As such, the Court finds that the ALJ’s decisions as to each count were supported
by substantial evidence.
v. Sea Honor Plaintiffs (Counts 1-2)
The ALJ found that Plaintiffs violated the FAD Regulation by servicing/deploying a FAD
on September 28, and September 30, 2009. Plaintiffs contend that the ALJ improperly relied on
the accounts provided by the observer and failed to weigh that evidence against the contradictory
account provided by the vessel’s captain. Indeed, the ALJ pointed to the testimony of Plaintiff
Magellan, the vessel’s captain, denying that the vessel deployed a FAD as alleged. See II.A.100
at 0005527. However, the ALJ relied on the testimony and observer reports of John Charles Belei,
the trained observer, to support his conclusions with respect to each count. The fact that the ALJ
chose to credit this account over that of the vessel’s captain who was not in charge of the fishing
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operations does not provide a basis to overturn the ALJ’s determination. Id. at 0005499. As such,
the Court finds that the ALJ’s decisions as to each count were supported by substantial evidence,
including the detailed observer reports and testimony of Belei.
b. MMPA Violations
i. Ocean Quest Plaintiffs (Count 1)
The ALJ found that Plaintiffs violated the MMPA on September 18, 2009, by intentionally
making a set on a live whale in order to capture tuna associated with that whale. Plaintiffs contend
that the ALJ improperly found that Plaintiffs intentionally set on a whale because the evidence did
not support a finding that anyone but the observer saw the whale before the set was made. Pls.’
Mem. at 50-51. Indeed, the ALJ recounted that Lioliomola, the observer, saw a whale with tuna
around it about 100 to 200 meters from the vessel without the aid of binoculars. II.A.100 at
0005506. A set was made and the whale was caught in the net, at which time the fishing master
directed the auxiliary boat to chase the whale out of the net. Id. The ALJ noted that “Lioliomola
did not assert that anyone else on the vessel saw the whale before the set was made.” Id. The
fishing master (who did not testify before the ALJ) and the captain both denied seeing the whale
before the set was made. Id. at 0005506-07.
The ALJ relied on the Lioliomola’s account that the fishing master told him that a “few
minutes after the deployment of the winch, we saw the whale in the net,” which the ALJ concluded
supported the finding that “some unspecified people on the boat saw the whale in the net as the
winch was engaged. “ Id. at 0005506. Further, the ALJ found that “[i]t is simply implausible
given the credible eyewitness testimony of Mr. Lioliomola that the crew did not see the whale
before the set was made given the distance of the whale from the vessel.” Id. at 0005507. Here,
Plaintiffs contend that “NOAA presented no evidence that the fishing master in fact saw the whale
56
before the set.” Pls.’ Mem. at 52. The ALJ rejected the contention that the observer was the only
person on the vessel who saw the whale near the tuna before the set based largely on the observer’s
report that the whale was 100 to 200 meters from the vessel and viewable without binoculars. As
noted by Defendants, Plaintiff Maughan, the vessel’s captain, indicated that he had “nothing to do
with setting the nets or saying [sic] about fish,” which was the responsibility of the fishing master.
Id. at 0005487. Without testimony from the fishing master himself, the ALJ credited Lioliomola’s
account of the events and, based on the evidence presented by Lioliomola through testimony and
observer reports, found it implausible that no one on the crew saw the nearby whale with the tuna
before making the set. This conclusion is supported by substantial evidence in the record and, as
such, the Court shall not set aside the ALJ’s finding that Plaintiffs violated the MMPA by
intentionally making set on a live whale.
ii. Ocean Encounter Plaintiffs (Counts 1-4)
The ALJ found that Plaintiffs violated the MMPA on September 17, September 24, and
twice on September 25, 2009, when Plaintiffs made a set on a live whale in connection with the
vessel’s efforts to capture tuna associated with the whale. It is undisputed with respect to each
count that the whale was released and not injured. Specifically, Plaintiffs call into question the
following explanation provided by the ALJ:
Throughout all of these encounters with whales, two common threads arise from
[Plaintiffs’] arguments – (1) in no instance did the fishing master see a whale prior
to the set; and (2) apparently none of the crewmembers who saw the whale notified
the fishing master of the whale’s presence. However, it is more likely than not that
all of the crew intuitively understood that they were not to notify the fishing master
of such circumstances since that notification would likely reduce the overall tuna
catch and adversely affect their share of the proceeds.
Pls.’ Mem. at 54 (quoting II.A.100 at 0005508). The ALJ credited testimony from Nare, the on-
board observer, with respect to each of the four counts. With respect to Count 1, the ALJ relied
57
on Nare’s account that he spotted the whale with the tuna and estimated the whale was 100 to 200
meters away. Further, Nare believed other crew members saw the whale, specifically one
crewmember on the helideck. II.A.100 at 0005508. In reaching his finding on Count 1, the ALJ
noted, “Given this distance from the whale/tuna, it simply stretches credulity to conclude that the
fishing master did not see the whale with the tuna prior to the set.” Id. at 0005508. With respect
to Count 2, Nare indicated that before the set was made, he could “clearly see the whale with the
tuna, which was bigger than the tuna and it was spouting.” Id. at 005509. With respect to Count
3, Nare stated that he saw a whale approximately 100 to 300 meters from the vessel and that the
vessel made a set on the whale and the associated tuna seven minutes later. Id. at 0005510. With
respect to Count 4, Nare heard the watchman in the crow’s nest tell the fishing master that there
was a whale in the school, but the fishing master made a set anyway. Id. at 0005511. In reaching
his determinations with Counts 2, 3, and 4, the ALJ specifically found that Plaintiffs made a set
on a “clearly visible” whale. Id.
Neither the captain of the vessel nor the fishing master testified at the hearing. However,
Plaintiffs Bass indicated in his interview with Special Agent Raterman, that he did not intentionally
set on whales. Plaintiffs argue that the ALJ’s conclusion that the crew would not inform the fishing
master if they saw a whale is contradicted by the fact that the crew chased the whales out of the
net, in some instances also losing the tuna that was in the net. Further, Plaintiffs argue that the
ALJ should have credited the captain’s statements over those of Nare who was inexperienced.
Again, the ALJ accepted that Plaintiff Bass, the captain, had reported to the NOAA investigator
that Nare was inexperienced, but the ALJ rejected this finding to the extent that it states or implies
that Nare’s documents and testimony were lacking in credibility. Id. at 0005655. Instead, the
ALJ, relying on the testimony and observer reports of Nare, found that it was implausible that Nare
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was the only person on the vessel to see the whale before the sets were made, in light of the specific
facts provided by Nare with respect to each set. The ALJ’s decision to credit this testimony over
the statements of Bass, who did not testify, is reasonable. As such, the Court finds that the ALJ’s
decisions as to each MMPA account were supported by substantial evidence, namely the
statements and testimony of Nare.
In sum, the Court finds that substantial evidence supports each of the ALJ’s findings that
the specific counts were proven against each of the six sets of Plaintiffs. Indeed, the D.C. Circuit
has recognized an agency decision “may be supported by substantial evidence even though a
plausible alternative interpretation of the evidence would support a contrary view.” Morall v. Drug
Enforcement Admin., 412 F.3d 165, 176 (D.C. Cir. 2005). Here, Plaintiffs’ attempt to point to
plausible alternative interpretations of the evidence does not negate the fact that substantial
evidence supports the decision reached by the ALJ. Further, for the reasons set forth, Plaintiffs
have failed to establish that the ALJ’s decisions are arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law. Relatedly, the Court finds that the Administrator’s
adoption of the ALJ’s conclusions as the Secretary’s final decisions in this matter was not arbitrary
or capricious.
F. Civil Penalty Assessments
Finally, Plaintiffs argue that the civil penalty amounts are excessive. Specifically, Plaintiffs
argue that the civil penalties, totaling nearly $1.5 million, are improper because the FAD
Regulation was a new law, made effective immediately, and it was unclear what conduct was
prohibited. Further, Plaintiffs argue that the MMPA penalties bear no relation to the violations
because Plaintiffs were never found to violate the statute before and no whales were harmed or
killed. Pls.’ Mem. at 57-58.
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Penalties for violations of the FAD Regulation are the same as those under the Magnuson
Act. See 16 U.S.C. § 6905(c) (establishing that any person who violates the United States’
implementation of the Western and Central Pacific Fisheries Convention is subject to the same
penalties as provided in the Magnuson Act). The 1990 amendments to the Magnuson-Stevens Act
increased the civil penalties from $25,000 to $100,000 per violation. 16 U.S.C. § 1858(a).
Furthermore, the Magnuson Act’s civil penalties are subject to the Federal Civil Penalties Inflation
Adjustment Act of 1990 and have increased several times since then. See Civil Monetary Penalties;
Adjustment for Inflation, 73 Fed. Reg. 75,321, 75,322 (Dec. 11, 2008). Accordingly, the maximum
penalty per violation of the FAD Regulation at the time of Plaintiffs’ conduct was $140,000. Id.;
15 C.F.R. § 6.4(f)(14). The AT Plaintiffs were thus subject to a statutory maximum penalty of
$980,000 for their seven proven FAD violations; the Pacific Ranger Plaintiffs were subject to a
total maximum of $140,000 for their proven FAD violation; the Ocean Conquest Plaintiffs were
subject to a total maximum of $280,000 for their two proven FAD violations; the Ocean Encounter
Plaintiffs were subject to a total maximum of $700,000 for their five proven FAD violations; and
the Sea Honor Plaintiffs were subject to a total maximum of $280,000 for their two proven FAD
violations. See II.A.100 at 5533.
The MMPA provides a maximum civil penalty of $10,000 for a proven violation. 16 U.S.C.
§ 1375. The maximum penalty per violation at the time of Plaintiffs’ conduct was $11,000 under
the Federal Civil Penalties Inflation Adjustment Act of 1990. 73 Fed. Reg. at 75,321; 15 C.F.R. §
6.4(f)(10). The Ocean Conquest Plaintiffs were thus subject to a maximum penalty of $11,000 for
their proven MMPA violation and the Ocean Encounter Plaintiffs were subject to a total maximum
penalty of $44,000 for their four proven MMPA violations. See II.A.100 at 5533-34.
60
Ultimately, the ALJ imposed the following penalties for the proven counts: (1) $562,068.27
against the AT Plaintiffs for the seven violations of the FAD Regulation (the maximum penalty
for Counts 6 and 8, and below the maximum for Counts 1-2, 4-5, and 7), I.A.84 at 0001477; (2)
$147,959.68 against the Sea Quest Plaintiffs for two violations of the FAD Regulation (below the
maximum penalty and the agency’s request for both counts), II.A.100 at 0005566; (3) $50,000
against the Sea Honor Plaintiffs for two violations of the FAD Regulation (below the maximum
penalty and the agency’s request for both counts), id.; (4) $41,699.50 against the Pacific Ranger
Plaintiffs for one violation of FAD Regulation (below the maximum penalty and the agency’s
request), id.; (5) $215,776.77 against the Ocean Conquest Plaintiffs for one violation of the MMPA
and two violations of the FAD Regulation (the maximum penalty for the MMPA violation, and
below the maximum penalty and the agency’s request the two FAD Regulation violations), id. at
0005567; and (6) $497,617.98 against the Ocean Encounter Plaintiffs for four violations of the
MMPA and five violations of the FAD Regulation (the maximum penalty for each of the four
MMPA violations, and below the maximum penalty and the agency’s request the five FAD
Regulation violations), id.Plaintiffs argue that the evidence weighed by the ALJ does not support the penalties
assessed and that the penalties are “unconstitutionally excessive.” Pls.’ Mem. at 58. However, the
Supreme Court has explained that a civil penalty violates the Excessive Fines Clause only if it “is
grossly disproportional to the gravity of” the offense. United States v. Hosep Krikor Bajakajian,
524 U.S. 321, 337 (1998). Courts will not overturn a civil monetary penalty assessed by an agency
“unless it is either ‘unwarranted in law or . . . without justification in fact.’” Dodge v. Comptroller
of the Currency, 744 F.3d 148, 161 (D.C. Cir. 2014) (quoting Pharaon v. Bd. of Governors of Fed.
61
Reserve Sys., 135 F.3d 148, 155 (D.C. Cir. 1998)). Here, the ALJ’s thorough analysis demonstrates
that the penalties assessed were amply justified.
In fashioning penalties, the ALJ carefully considered the requisite factors, including: the
statutory penalty range; the fact that Plaintiffs had no history of prior violations; the need to ensure
that penalty assessments act as an effective deterrent; the harm to protected resources; the
economic value of the illegally harvested tuna; the timing of the new FAD restrictions; and the
Plaintiffs’ degree of culpability, including, with respect to the MMPA violations, the fact that
NOAA informed Plaintiffs that knowingly setting on marine mammals was unlawful but Plaintiffs
did it anyway. See I.A.84 at 0001454-77; II.A.100 at 0005532-67.
Plaintiffs fail to identify any required factor that the ALJ entirely failed to consider and fail
to demonstrate that the ALJ’s weighing of the factors was arbitrary and capricious. Furthermore,
the ALJ adjusted down the majority of the penalties sought by Defendants. Accordingly, the Court
finds no valid basis for setting aside the ALJ’s decision under “the deferential review of sanctions
imposed by an implementing agency.” Dodge, 744 F. 3d at 162.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ [18] Motion for Summary
Judgment and DENIES Plaintiffs’ [16] Motion for Summary Judgment. Specifically, the Court
finds that NOAA complied with the notice requirement of the APA pursuant to 5 U.S.C. § 553(d)
when it waived for good cause the 30-day notice period, published with the FAD Regulation.
Further, the Court finds that the definition of a FAD as found in the regulation is not
unconstitutionally vague, and that NOAA’s definition of the term “incidentally” with respect to
the MMPA is both reasonable and consistent with the language, structure, and purpose of the
statute. With respect to the specific, alleged violations, the Court finds that substantial evidence
62
supports the ALJ’s findings adopted as the final decision of the Secretary that Plaintiffs violated
the FAD Regulation on 19 occasions and the MMPA on five occasions. Further, the Court finds
that the determinations are not arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law. Finally, the Court finds that the Agency’s penalty assessments are supported
by substantial evidence and not excessive. Accordingly, judgment shall be entered for Defendants.
An appropriate Order accompanies this Memorandum Opinion.
This is a final, appealable order.
__ /s/______________________
COLLEEN KOLLAR-KOTELLY
United States District Judge
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