Opinion
ID No. 06A-12-005-RFS.
Submitted: May 30, 2007.
Decided: June 8, 2007.
Timothy G. Willard, Esquire, Fuqua and Yori, P.A., 28 the Circle, P.O. Box 250, Georgetown, Delaware 19947; counsel for Plaintiffs.
David E. Frulla, Esquire, Kelley Drye Collier Shannon LLP, 3050 K Street, N.W. — Suite 400, Washington, D.C. 20007; pro hac vice counsel for Plaintiffs.
David L. Ormond, Jr., Esquire, Department of Justice, Carvel State Office Building, Sixth Floor, 820 North French Street, Wilmington, Delaware 19801; counsel for Defendants.
MEMORANDUM OPINION
On Plaintiffs' Motion for Declaratory Relief
The Plaintiffs, Bernie's Conchs, L.L.C. and Charles Auman (hereinafter "Bernie's," "Auman" or collectively "Plaintiffs") have been engaged in the harvesting of horseshoe crabs from the Delaware Bay. In order to pursue their livelihood, various licenses are required from the Department of Natural Resources and Environmental Control (hereinafter "Department"). Beginning in 1999, the taking of horseshoe crabs has been subject to conservation measures, primarily by limiting the amount which can be caught and through reporting and other monitoring techniques. As later explained, the Regional Commission, through its conservation efforts, establishes minimum levels of regulation required for horseshoe crab harvesting. Delaware can, however, enact more stringent conditions should it choose to do so.
In 2006, a regulatory process was initiated which considered the implementation of a limited harvest versus a two-year moratorium. Plaintiffs filed suit under the Delaware Administrative Procedures Act (hereinafter "APA"), 29 Del. C. § 10141, after a moratorium was adopted by the Department. The suit seeks a declaration by the Court that the moratorium is invalid. Although an appeal was filed with the Environmental Appeals Board (hereinafter "EAB"), the parties stipulated that this action would be considered on the administrative record on an expedited basis. This Court has jurisdiction. See 7 Del. C. § 6008(g); 29 Del. C. § 10141.
Oral argument was held on Wednesday, May 30, 2007. It was desired that a decision be issued close in time to June 7, 2007, about the time for a limited horseshoe crab season, should the Department's action be found invalid. For the reasons stated herein, upon review of the Court, the moratorium does not have a rational basis on the present record, and it is not valid.
STATEMENT OF FACTS
On September 28, 2006, a public hearing (hereinafter "Hearing") was held on proposed changes to Delaware's horseshoe crab regulations (hereinafter "Regulations"). Roy Miller (hereinafter "Miller" or "Hearing Officer"), fisheries administrator with the Delaware Division of Fish and Wildlife, was the hearing officer. The specific Regulations at issue were: Regulation 3203, Season and Area Closed to Taking Horseshoe Crabs; Regulation 3207, Horseshoe Crab Dredging Restrictions; Regulation 3210, Horseshoe Crab Reporting Requirements; Regulation 3211, Horseshoe Crab Commercial Collecting P ermit Eligibility and Renewal Requirements; and Regulation 3214, Horseshoe Crab Annual Harvest Limit.The Hearing was conducted as a result of an addendum (hereinafter "Addendum" or "Addendum IV") to the Interstate Fishery Management Plan for Horseshoe Crab. Addendum IV, issued by the Atlantic States Marine Fisheries Commission (hereinafter "ASMFC"), required minimum measures of compliance with regard to regulations governing horseshoe crab harvesting. Delaware, by virtue of a Compact mandated by Title 7, Chapter 15 of the Delaware Code, is required to comply with the terms set forth by the ASMFC. The pertinent portion of the ASMFC Addendum states:
Bait Harvest Level Threshold/Closed Season Combinations
Addendum IV prohibits directed harvest and landing of all horseshoe crabs in New Jersey and Delaware from January 1 through June 7, and female horseshoe crabs in New Jersey and Delaware from June 8 through December 31. It also limits New Jersey and Delaware's harvest to 100,000 horseshoe crabs per state per year. These provisions are in place for two years, from October 1, 2006 to September 30, 2008.
*** Biomedical Harvest Restrictions
Adult horseshoe crabs are also harvested for use by the biomedical industry. Their blood contains a clotting agent called Limulus Amoebocyte Lysate (LAL), which detects human pathogens in patients, drugs, and all intravenous devices. The LAL test is currently the worldwide standard for screening medical equipment and drugs for bacterial contamination.
***
Addendum IV maintains an earlier provision in the FMP that harvest and landing of horseshoe crabs for biomedical use are not subject to the restrictions placed on harvest and landing of crabs for bait use (ASMFC 1998). This exemption is contingent upon relatively low mortality from the biomedical process including transport and bleeding. Any horseshoe crabs harvested for biomedical use that could not be returned alive to the general area of capture shall be made available to the bait industry and counted against the state's quota.
Hearing Officer's Record, Ex. 2 at 4-5.
The Hearing was focused specifically on two compliance options proposed by the Department. Those options, detailed in the Start Action Notice, are as follows:
Option 1. . . . Although Delaware may be more restrictive in the harvest of horseshoe crabs than as called for in the [Interstate Fishery Management] plan, Delaware may not be less restrictive. Delaware, as [sic] a minimum, must prohibit the harvest and landing of horseshoe crabs in Delaware waters from January 1 through June 7 for two years, and prohibit the harvest and landing of female horseshoe crabs from June 8 through December 31 for two years. Delaware's annual harvest quota must be reduced from 150,000 horseshoe crabs of either sex to 100,000 male horseshoe crabs. Commercial collectors of horseshoe crabs will have to report their landings daily during the open season instead of weekly during the open season in order to facilitate quota monitoring. This action also would clarify the permit renewal requirements so that they are in line with other shellfish licenses. Specifically, horseshoe crab commercial collecting permits must be renewed annually by December 31 of each calendar year or the person holding the horseshoe crab commercial collecting permit forfeits their eligibility to obtain a horseshoe crab commercial collecting permit in the future.
Option 2 would make all harvest and landing of horseshoe crabs prohibited in Delaware waters for two years, beginning in calendar year 2007. This option would be more restrictive than called for in Addendum IV to the Interstate Fishery Management Plan for Horseshoe Crab.Hearing Officer's Record, Ex. 3.
Speaking at the Hearing was Stewart Michels (hereinafter "Michels"), a fisheries scientist with the Delaware Division of Fish and Wildlife. Michels discussed various studies which showed a decline in the Delaware Bay horseshoe crab population. Michels stated, however, that it appeared the population had stabilized in recent years. See Transcript of September 28, 2006 Public Hearing on Horseshoe Crabs, SAN #2006-17 (hereinafter "Transcript") at 14, ll. 7-8. Furthermore, it was noted that there has been an abundance of juvenile horseshoe crabs in the past few years, showing positive signs for the future. Transcript at 15, ll. 8-11.
Using the best population estimates available, Michels concluded that "the Addendum IV harvest threshold or harvest rate will be less than one percent of the Delaware Bay male spawning population." Transcript at 18, ll. 15-18. Michels added, however, that given the finite two-year timeframe at issue, the impact of either one of the management plans on the Delaware Bay horseshoe crab population would most likely be undetectable by available survey methods. Transcript at 20, ll. 15-22. Further, Michels opined that the harvesting of 100,000 male horseshoe crabs, along with being relatively undetectable, would probably have "a very minimal affect [sic]" on the overall population. Transcript at 30, ll. 17-20.
This statement was made on the assumption that New Jersey would continue to have a full moratorium on the harvest of horseshoe crabs.
Also speaking at the Hearing was Kevin Kalasz (hereinafter "Kalasz"). Kalasz is with the Delaware Division of Fish and Wildlife where his work includes the study of migratory shorebirds in Delaware. Kalasz's discussion at the Hearing was focused on the status of shorebirds coming into the Delaware Bay, specifically highlighting the status of the Red Knot bird. Using figures from counts made in Tierra Del Fuego, the southern-most wintering area for Delaware Red Knots, Kalasz called attention to the fact that the Red Knot population was in decline. More specifically, there has been a dramatic decrease in the Red Knot population over time, followed by a leveling of the population in the past few years. Transcript at 44-45
The Ruddy Turnstone was another species of concern although not the subject of the current controversy.
Additionally, a large volume of public comment was received on the matter and admitted into the record. Various members of the public, representing those in favor of both options, asked questions regarding the material presented. There was also a period of public comment.
On October 20, 2006, Hearing Officer Miller issued the Hearing Officer[']s Report to the Secretary of the Department of Natural Resources and Environmental Control (hereinafter "Report"). Miller's recommendation was for the "adoption of Option 1, the delayed harvest scenario of 100,000 male horseshoe crabs." Report at 11. In reaching his conclusion, Miller noted that "[a] total closure of Delaware's horseshoe crab fishery would affect not only the 34 individuals who presently possess a horseshoe crab collecting permit, but potentially the 67 holders of commercial eel licenses and the 73 holders of commercial conch pot licenses." Report at 9.
On November 20, 2006, John A. Hughes (hereinafter "Hughes" or "Secretary"), Secretary of the Department, issued Secretary's Order No. 2006-F-0047 (hereinafter "Order"), imposing a two-year moratorium on the harvesting of horseshoe crabs. Hughes' Order adopted the review of the record in the Report but rejected Miller's recommendation. Hughes found that option 2, the two-year moratorium, was an "appropriate and reasonable regulatory step to protect the environment consistent with the Department's statutory purpose." Order at 2.
The Order specifically notes that "the moratorium will protect 300,000 male horseshoe crabs and provide more food for the red knot. . . ." Order at 5. The Order also makes brief mention of the economic impact that will result from the Regulations. The position adopted by the Department is that the balancing falls in favor of stricter regulation to ensure the long-term survival of the horseshoe crab and red knot species. It is also stated that "this temporary action is appropriate to preserve the future e con omi c vi abi lit y of t he D elaware fishin g ind ust ry most impacted by [the] Order." Order at 4.
STANDARD OF REVIEW
The Department, through the power granted by the State of Delaware, has the jurisdiction and authority to regulate Delaware's horseshoe crab fishery. See 7 Del. C. § 103 (permitting the regulation of harvest seasons for protected wildlife where such "action is necessary to assure the conservation . . ., and the maintenance of an adequate supply thereof . . ."); 7 Del. C. § 1902 (granting the power to regulate the shellfish industry, including the horseshoe crab); 7 Del. C. § 2701 (requiring DNREC to "establish and administer a program for the conservation and management of horseshoe crabs"). The Department acted within its authority when it enacted the Regulations.
The standard of review for a civil action under the APA which questions a regulation, like the two-year moratorium at issue here, is as follows:
The complaining party shall have the burden of proving either that the action was taken in a substantially unlawful manner . . . or that the regulation, where required, was adopted without a reasonable basis in the record or is otherwise unlawful.
29 Del. C. § 10141(e). Further, the regulation is presumed to be valid, and a complaining party must point to evidence to demonstrate the absence of a reasonable basis on the record. Hochstetler v. Del. Harness Racing Comm'n, 2003 Del. Super. LEXIS 68, at *9 (Del.Super. Feb. 26, 2003).
The parties disagree over the appropriate measure of scrutiny. The Department urges that review should be minimally restricted to whether there is any reason to support the moratorium. The Plaintiffs contend the standard is the familiar one of whether or not the agency decision is supported by substantial evidence and is free of legal error. See, e.g., Tulou v. Raytheon Serv. Co., 659 A.2d 796, 802 (Del.Super. 1995).
The Superior Court has determined that the appropriate scope of review is the substantial evidence test, as discussed in National Paint Coatings Assoc. v. Delaware Department of Natural Resources Environmental Control, 2004 Del. Super. LEXIS 61, at *18-20 (Del.Super. Feb. 26, 2004). The case reviewed the Department's decision to enact an industry-wide regulation concerning ozone-causing agents. The decision found that 29 Del. C. § 10141(e) applied to the case, and this statute employed the substantial evidence test. If facts were supported by substantial evidence and if the legal conclusions were reasonable, then a regulation would be upheld as having a "reasonable basis." While the review in that case involved an appeal from the EAB, the statutory base (29 Del. C. § 10141(e)) is the same as here. There is no principled reason to depart from this standard. Moreover, the National Paint Coatings Assoc. case was affirmed by the Supreme Court "on the basis of and for the reasons assigned by the Superior Court. . . ." Nat'l Paint Coatings Assoc. v. Del. Dep't of Natural Res. Env't Control, 2005 Del. LEXIS 29 (Del. Jan. 12, 2005).
The Department's position in National Paint Coatings Assoc., 2004 Del. Super. LEXIS 61, was that the substantial evidence test should apply. At that time, the Court accepted the Department's argument over the arbitrary and capricious standard urged by the appellants. Id. The Department has switched positions. Now, the Department has argued that the traditional substantial evidence test should not apply. Somewhat puzzling is the fact that the Department also seems to argue that an arbitrary and capricious standard of review would be inappropriate. Consequently, the Department has now advocated a position outside of the alternatives suggested in National Paint Coatings Assoc..
Here, the parties stipulated to stay EAB proceedings. The EAB could have heard the case on the same administrative record without more evidence (although the taking of additional evidence is authorized in certain circumstances). See 7 Del. C. § 6008 ("The Board may hear new evidence if it is relevant to or clarifies those issues in the record before the Secretary. The Board may exclude any new evidence which is plainly irrelevant, immaterial, insubstantial, cumulative or unduly repetitive."). A decision on the record without further evidence could then be appealed from the EAB to this Court. Different standards of Superior Court review should not apply depending upon the vagaries of such choices.
The terms "reasonable basis" and "substantial evidence" are functionally equivalent. A well known treatise has found that the substantial evidence test means a "reasonableness review." 33 Fed. Prac. Proc. Judicial Review § 8333. And, it is not uncommon for legislative regulations to be reviewed under the substantial evidence test. See, e.g., Nat'l Paint Coatings Assoc., 2004 Del. Super. LEXIS 61; Collazuol v. Tulou, 1996 Del. Super. LEXIS 453 (Del.Super. Oct. 31, 1996). The following language is helpful in defining reasonableness review:
The reasonableness instruction tells the court that it is not to decide whether the agency found one right answer — the answer the judge would have given — or even to determine how close the agency came to the one right answer; it requires only that the court decide whether the agency has found an answer which has a reasonable likelihood of being correct. After that, the court's function ends and it is the agency's judgment, not the court's, which is controlling.
33 Fed. Prac. Proc. Judicial Review § 8333. (emphasis added).
Regarding the arbitrary and capricious standard, "the agency must examine the relevant data and articulate a satisfactory explanation for its action including a `rational connection between the facts found and the choice made.'" Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (U.S. 1983). An agency action is arbitrary and capricious where it "entirely failed to consider an important aspect of the problem, offered an [inconsistent] explanation . . ., or is so implausible that it cannot be ascribed to a difference in view. . . ." See Nat'l Paint Coatings Assoc., 2004 Del. Super. LEXIS 61, at *12 n. 25 (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983)). Even applying this standard of review, the Order is invalid for the same reasons stated in this opinion.
Further, the Superior Court recognized the substantial evidence test in Delmarva Power Light Co. v. Tulou, 729 A.2d 868, 873-74 (Del.Super. 1998). Like the present case, suit was filed under the APA without EAB review. The Court ruled that an administrative decision must have a reasonable basis for the Secretary's conclusion. An agency air quality rule was overturned because there was no explanation "as to why the counterarguments of the industry are rejected." Id. Reliance on speculative information by the Department, through one of its committees, was "insufficient to withstand appellate scrutiny." Id. "Reversal is warranted if the administrative agency . . . made findings of fact unsupported by substantial evidence." Olney v. Cooch, 425 A.2d 610, 613 (1981) (citation omitted).
At oral argument, the Department suggested for the first time that there was conflicting Superior Court precedent on the appropriate standard of review and that the National Paint Coatings Assoc. case was not understandable. To support this assertion, Counsel referenced the Court's decision in City of Rehoboth v. McKenzie, 2000 Del. Super. LEXIS 73 (Del.Super. Feb. 29, 2000). A review of that case does not reveal any conflict of Superior Court jurisprudence. McKenzie simply found that 7 Del. C. § 6008 and 29 Del. C. § 10141 could be harmonized, and, therefore, the latter enactment of the APA rule in Title 29 was immaterial. Under McKenzie, a party could seek EAB review of a regulation, as well as file for relief with the Court under the APA.
There was nothing in City of Rehoboth v. McKenzie, 2000 Del. Super. LEXIS 73, about the appropriate standard of review.
Con seq uen tly, under the principle of stare decisis, the Secretary's decision must be reviewed to see whether there was a reasonable basis on the record necessary to support the conclusion for a moratorium. Factual findings must be supported by substantial evidence, and the conclusions must be reasonable. "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Nat'l Paint Coatings Assoc., 2004 Del. Super. LEXIS 61, at *20. Given the Department's expertise, the Court recognizes that reasoned judgment calls on technical issues should receive deference when applying the standard. The Department is not due deference, however, where it "has stopped shy of carefully considering the disputed facts." Carlisle Neola v. Federal Energy Regulatory Com., 741 F.2d 429, 433 (D.C. Cir. 1984). As will be seen, however, the Department's own scientists cannot provide a reasonable basis for the horseshoe crab moratorium.
DISCUSSION
The imposition of a two-year moratorium depends on two essential premises, namely: (1) no horseshoe crabs can be harvested in 2007 and 2008 because the population had been over harvested through the 1990's until conservation measures began in 1999, and, despite them, the horseshoe crab population is now endangered; and (2) there is an appreciable difference in horseshoe crab egg availability for the red knots through a two-year moratorium rather than through the limited harvest of 100,000 male-only horseshoe crabs after the migration of the red knots around June 7 of every spring.
Without doubt, the horseshoe crab stock was depleted by almost eighty percent due to over harvesting through 1998. Beginning in 1999, however, the Regional Commission developed a set of conservation measures which were applied in Delaware. Before the moratorium, 150,000 male and female horseshoe crabs could be taken. Further, there were also weekly reporting requirements and other monitoring techniques employed by the Department.
As a result of these steps, the horseshoe crab population has stabilized. Horseshoe crabs in the Delaware Bay number in the many millions (anywhere from 13 million to 28 million). Report at 8. Males outnumber females by about a three to one ratio during spawning, with documented estimates of male horseshoe crabs alone at 13 million. Report at 8; Transcript at 19. "The survey which rendered these numbers was conducted by David Smith of the United States Geological Survey Biological Division (Smith et al.), was peer reviewed, and indicates an adjusted spawning male abundance of 13.7 million." Transcript at 18. "Using the population estimates from the Smith et al. study, a proposed harvest of 100,000 male horseshoe crabs would represent 0.7 % of the Delaware Bay population of adult males." Report at 9.
Furthermore, since the 1998 adoption of the Fisheries Management Plan Delaware has seen significant harvest reductions. The harvest has been reduced by about seventy-five percent of what it once was. Transcript at 12. This was accomplished through "gear restrictions, seasonal area restrictions, bait bag use, both voluntary and mandatory, voluntary bait bag use by commercial harvesters of conk and eel." Id. Additionally, the limits imposed on entry into the horseshoe crab fishery and the State-created sanctuary played a role in the reduction of harvest numbers and preservation of the horseshoe crab species. Id. Studies recognized by the Department indicate that
the number of young and juvenile horseshoe crabs show promise for the future. See Transcript at 15. Also of significance is the fact that the horseshoe crab population in the Delaware Bay is relatively homogeneous.
As to the effective difference between the two options, Michels was asked critical questions and gave significant answers to Auman. The exchange occurred as follows:
Mr. Auman: . . . Stu, as you showed on your chart back there where it says down to the one, if we go to the 100,000 male-only harvest, just for the record so it's there, that's indicating that if we harvest 100,000, that it will be less than one percent of the crabs in the entire bay; correct[?]
Mr. Michels: Okay, that is correct, it would be less than one percent. Relative to our estimates of the spawning population, it would be less than one percent of the males.
***
Mr. Auman: So in all matters is what you are saying is less than one percent mathematically, it's not going to make a difference if the commercial fishermen harvest 100,000 crabs, mathematically, scientifically, any way you look at it?
Mr. Michels: Relative to a moratorium with horseshoe crabs, as far as the horseshoe crab population is concerned, it probably will have a very minimal affect [sic].
Transcript at 28-30 (emphasis added).
Michels' expert opinion is not rebutted by the administrative record. Indeed, a world-respected horseshoe crab scientist, Dr Carl Shuster Jr., formerly director of the University of Delaware Marine Laboratories and for whom a nature sanctuary has been named in the Delaware Bay, provided the Department with peer-reviewed data to support the idea that the horseshoe crab population is on the rebound and not in danger. Dr. Schuster also provided the Department, at its own request, with information to show that a limited male-only harvest would not impact the spawning processes of the horseshoe crab. Ex. B of Appellant's Br. in Reply to DNREC'S Answering Br. in Opp'n to Pls. Mot. for Declaratory Relief.
The following excerpt, taken from an online article, better describes the horseshoe crab sanctuary:
On March 7, 2001 the National Marine Fisheries Service (NMFS) established the Dr. Carl N. Shuster, Jr. Horseshoe Crab sanctuary in Federal waters off the mouth of the Del awar e Bay e stu ary. The sanctuary was created to protect the large spawning population of horseshoe crabs in the Delaware Bay and maintain the superabundance of crab eggs available to migratory shorebirds. The rectangular shaped sanctuary is positioned in the Exclusive Economic Zone (EEZ) bounded by State regulated waters to the west and extending 30 miles east. The reserve's southern bounda ry lies just north o f Oce an City, MD and the northern boundary is just south of Atlantic City, NJ. No commercial harvesting of horseshoe crabs is allowed within sanctuary waters.Horseshoe Crabs Conservation, available at the following website: http://www.dnr.state.md.us/education/horseshoecrab/cnss.html (last updated July 29,2005).
Dr. Shuster is recognized by the Department as an expert concerning the horseshoe crab. The Department solicited his views after the closing of time for the submission of comments. Dr Shuster developed the concept for a male-only harvest to alleviate concerns about the source of food for the red knots. Dr. Shuster has published numerous works on the horseshoe crab. His opinions and data were sought and relied upon by ASMFC in its recommendation of the male-only harvest.
By restricting the catching of females, the egg laying capabilities of the species are protected. It appears that the spawning involves attached and unattached satellite males; however, there is no rational basis in the record to conclude that one male horseshoe crab cannot fertilize a female crab without the assistance of other males. The male horseshoe crabs wait in numbers at the edge of the beach and then congregate. As the Delaware Bay population is homogenous, there is no rational basis to conclude that the absence of some males would have an adverse genetic effect.
The spawning season lasts from May through the first two weeks of June. There is no rational basis in the record to conclude that the harvesting of males after the spawning season ends would create an appreciable difference between the impacts of a full moratorium or a limited harvest.
This information was developed at the Regional Commission hearing and known to the Hearing Officer. The points were mentioned through the testimony of Mr. Robbins at the public hearing and through a memorandum from Dr. Shuster which is part of the Department's submitted record. Other materials from Dr. Shuster were submitted to the Department through Robbins and provided by Dr. Shuster directly at the Department's request in November of 2006.
The provided information reflected testimony of Robbins at the public hearing as well as in the ASMFC proceedings which were well-known to the Hearing Officer who relied upon Dr. Shuster's scientific expertise. In the Hearing Officer's words Dr. Shuster is a "world renowned expert on horseshoe crabs." Report at 10. An agency may request additional material to supplement matters even after the end of the public comment period. "The rulemaking record is, in a sense, never closed." 32 Fed. Prac. Proc. Judicial Review § 8183. "Rulemaking is an on-going project because a rule is always open to reconsideration and modification." Id. "Even during the rulemaking, however, the record grows throughout the duration of the rulemaking, which may be several years." Id. "And, information which cannot be ignored may come to an agency even after the comment period ends." Id. An agency can rely on a consultant's report received between the published notice and the adoption of the final rule. Stoughton v. U.S. EPA, 858 F.2d 747, 752-53 (D.C. Cir. 1988). "Agencies are consistently upheld in their use of post-comment information." 32 Fed. Prac. Proc. Judicial Review § 8183 (citing National Ass'n of Farmworkers v. Marshall, 628 F.2d 604, 621 (D.C. Cir. 1980)). "Indeed to some extent agencies are encouraged to be sensitive to developing knowledge." Id. "This ongoing sensitiv ity to develop ing knowled ge is to be encouraged; it is a normal requirement of competent administration." National Ass'n of Farmworkers v. Marshall, 628 F.2d 604, 621 (D.C. Cir. 1980).
Although the Department seeks to exclude Dr. Shuster's information, I reject the effort. Several materials were submitted before the end of the public comment period. The material afterward was requested by the Department to supplement the record.
Of concern, also, is the failure of the Department, through the Order, to justify the rejection of facially reliable information presented through the Shuster materials. See 32 Fed. Prac. Proc. Judicial Review § 8180 ("The statement [Order], therefore, must justify the rejection of facially reliable information"). The Order did make reference to well presented and supported information on a "vast administrative record," however; it did not explain or provide a rational basis to prefer the moratorium over a limited harvest.
The decision to impose a moratorium also appears to have been made by the Secretary well in advance of the September, 2006 public hearing. This circumstance calls into question how a fair evaluation of relevant factors found in the record could have been made. In proceedings leading to the adoption of Addendum IV, Mr. Miller was asked if Delaware would impose a full moratorium on the harvest of horseshoe crabs. In answering the question, Mr. Miller pointed out that he was in the proceedings "representing the express wishes of our Department Secretary, John Hughes" and that "we would go for a full harvest moratorium." Hearing Officer's Record, Letters from Organizations at 29. The moratorium had "the highest level of support within the government of the State of Delaware." Id. The record also suggests the Department made a commitment to New Jersey to enact the moratorium before the Secretary's Order was issued. See Hearing Officer's Record, Letters from Organizations at 6 (Nicholas A. Dispasquale: "We believe the State of Delaware made a commitment to New Jersey officials and to the Delaware conservation community to enact a two-year moratorium on horseshoe crab harvesting. . . .").
The conclusion that the moratorium is more effective to preserve the horseshoe crab population rather than the limited harvest of 100,000 male horseshoe crabs is not supported by substantial evidence. The Department's justification for its decision is lacking the rational basis needed to validate such an exercise of discretion. As the Hearing Officer found "no scientific studies were offered as evidence that such a harvest level [i.e. 100,000 male horseshoe crabs] would be excessive for the continued recovery of the horseshoe crab population." Report at 10. There is not a reasonable basis in the record to show otherwise.
Nor is there a reasonable basis in the record to support the factual premise that an appreciable difference in egg availability would occur through a moratorium rather than through a 100,000 male-only harvest. Obviously the population would be reduced by 100,000 males through the limited harvest option. But, that is not the crux of what is at issue here. The point is whether egg availability would be impacted, creating a difference between the two options. The answer to that is unknown.
Clearly, the red knot population has declined, and some fear the species may be extinct in 2010. A variety of causes may contribute to this circumstance; weather, predators, and the arrival of the red knot later than usual (preventing the birds in a shortened season from gaining adequate weight for their trip northward) may all play a role. For sure, the red knots depend "heavily" on horseshoe crab eggs to fuel their migration. Report at 9. However, despite previous conservation efforts and positive signs in horseshoe crab population growth, the red knot population continues to decline.
The number of landings of horseshoe crabs has dropped significantly and the amount of young and juveniles have increased substantially, thus indicating actual experience of more egg availability through previously enacted conservation measures. If the limited harvest would have a "very minimal affect [sic]" on the population, the Order does not explain or provide a basis beyond conjecture on how there would be a material change in egg availability with 200,000 fewer males taken over two years. This point was raised during the Hearing and the Department's failure to address the issue directly is fatal. See National Min. Assn. v. MSHA, C.A.D.C., 116 F.3d 520, 549 (D.C. Cir. 1997) ("The agency is, however, required to respond to comments that are `relevant to the agency's decision and which, if adopted, would require a change in an agency's proposed rule [because they] cast doubt on the reasonableness of a position taken by the agency.'" (citation omitted)). Furthermore, the Order fails to explain how the limited male-only harvest would affect the red knot species if conducted after most of the birds have migrated away from the area.
Indeed the Order uses the incorrect figure of 300,000 as a conservation reference point. The Court recognizes that 150,000 male and female horseshoe crabs a year was the limit during the prior restriction. That figure, however, was not available as an option for the Department in enacting the new Regulations. The maximum protection that could have been provided under either of the options the Department had to choose from was 100,000 male horseshoe crabs a year. Thus, the Order should have used a figure of 200,000 male horseshoe crabs over the two year period as a conservation reference. The failure to consider such a relevant factor is in and of itself unreasonable. Furthermore, the ASMFC's Horseshoe Crab Technical Committee found a partial moratorium [i.e. a 100,000 male-only harvest] would also generate a small increase in egg availability for shorebirds. Hearing Officer's Record, Ex. 2 at 3.
At the public hearing, Kalasz provided further information on this subject:
[I]n 1985 there were 67,000 Knots recorded off Tierra Del Fuego. Between 1986 and 2000 there were no surveys conducted. In 2000 we had 51,000, and that has decreased since then, for the most part, until just this past winter in 2006, when there were 17,211 reported in Tierra Del Fuego. . . .
In 2005 we initiated a horseshoe crab egg survey, and the survey was intended to provide an estimate of the numbers of eggs available to shorebirds, to detect changes in the egg availability to shorebirds through time, and detect changes in the distribution of these eggs spatially.
In 2006 the peak in egg availability coincided very well with the peak in Red Knots and Ruddy Turnstone numbers in the Delaware Bay. And, in fact, even early in the season there was [sic] numbers of eggs in the range of 20,000 eggs per meter squared early on and just as birds are [sic] arriving. This is what brings the birds to the bay. This is hopefully what they expect.
Now, whether or not this number of, this density of eggs is sufficient for this population of birds that we currently have or any increase in the numbers of birds that we hope to see in the future is unknown.
***
The portion of birds meeting their target departure weight, particularly in Knots, has declined, and late horseshoe crab spawning due to weather conditions reduces the number of eggs available to shorebirds, and it's really that variable that's most concerning to us.
Transcript at 42-49 (emphasis added).
Without modeling, which has not been done in Delaware, it cannot be reliably known how a full moratorium would effectively make a difference in horseshoe crab egg availability over a limited harvest. This point was developed in answers to Auman's questions as follows:
Mr. Auman: [I]f we are able to harvest 100,000 males, if the bird gets there early or late, tell me the difference that it's going to make if we let them males on the beach or take them off, in your scientific opinion, about the birds? What egg factor count am I going to be hurting by harvesting these less than one percent of these males?
Mr. Kalasz: Um, I can't really say what that will impact in the future. We haven't modeled what this number of crabs will have, what impact they will have on the number of eggs.
Certainly, from the shorebird perspective, we want as robust a horseshoe crab population as possible so that birds have the number of eggs they need.
Mr. Auman: My question is to you, if we harvest 100,000 males off of this beach next year and those birds get there late or early, is it going to make a difference? How are you now saying the males are putting the eggs on the beach, or what is that male doing to make more or less eggs on that beach?
Mr. Kalasz: I can't say that that's going to have a detectable impact. What I can say is that because we haven't modeled that, we don't even know how many eggs the population of shorebirds coming through Delaware Bay require[s]. . . .
Mr. Auman: Okay, if you can't predict it, going back through all the years of your stu dy, could you tell me the difference if you added 100,000 males to the beach every year from here on back to `95, how much, how many more birds would there be? And you already have those numbers.
Mr. Kalasz: That's part of the modeling process.
Transcript at 68-69 (emphasis added).
Because of the unknown, the Order chose a mora torium. W ithout mo deling, the Regulations in favor of the moratorium are merely speculative. As the Hearing Officer found, "exactly how many horseshoe crab eggs are needed to provide the surplus needed to affect this weight gain is still a matter for [sic] conjecture." Report at 9. There is no reasonable basis in the record to show otherwise. Late spawning due to weather conditions is a variable which exits independently of either option and is not a reasonable basis for any regulation.
On the other hand, the Order recognizes that fishermen will suffer economically through either option but decided the harm to them was outweighed by dangers to the horseshoe crabs and red knots. The Court finds that this finding of the Department is not supported by a reasonable basis in the record. The harm to the fishermen has a reasonable basis as evidenced by the following excerpt taken from the Hearing Officer's Report:
A total closure of Delaware's horseshoe crab fishery would affect not only the 34 individuals who presently possess a horseshoe crab collecting permit, but potentially the 67 holders of commercial eel licenses and the 73 holders of commercial conch pot licenses. Some of these individuals hold more than one license, so the numbers of individuals are not additive. The dockside value of the 2005 horseshoe crab landings by collectors and the five licensed horseshoe crab dredgers was $111,970. The dockside value of Delaware's eel landings in 2005 was $99,014 and for conch pot was $105,161. Delaware eelers and conch potters assert that horseshoe crabs are by far the preferred bait to support their fisheries and that without access to horseshoe crabs, their business will suffer or perhaps fail. Clearly their costs for bait will rise if it is not available locally, and they will have to either purchase bait taken out of state or use much less effective locally available types of bait.
Report at 9.
CONCLUSION
Considering the foregoing, the moratorium Regulations do not have a rational basis in fact and are consequently invalid. The Order reflects a prejudgment for a particular policy that was made before the public hearing in September of 2006. This cannot be an adequate substitute for the thoughtful development of regulations based upon a reasonable basis. Therefore, the Regulations are vacated, and this matter is remanded to the Department. IT IS SO ORDERED
In light of this Court's decision, it is unnecessary to address any further objections raised by the Plaintiffs.
1 This statement was made on the assumption that New Jersey would continue to have a full moratorium on the harvest of horseshoe crabs.
2 The Ruddy Turnstone was another species of concern although not the subject of the current controversy.
3 The Department's position in National Paint Coatings Assoc., 2004 Del. Super. LEXIS 61, was that the substantial evidence test should apply. At that time, the Court accepted the Department's argument over the arbitrary and capricious standard urged by the appellants. Id. The Department has switched positions. Now, the Department has argued that the traditional substantial evidence test should not apply. Somewhat puzzling is the fact that the Department also seems to argue that an arbitrary and capricious standard of review would be inappropriate. Consequently, the Department has now advocated a position outside of the alternatives suggested in National Paint Coatings Assoc.
Here, the parties stipulated to stay EAB proceedings. The EAB could have heard the case on the same administrative record without more evidence (although the taking of additional evidence is authorized in certain circumstances). See 7 Del. C. § 6008 ("The Board may hear new evidence if it is relevant to or clarifies those issues in the record before the Secretary. The Board may exclude any new evidence which is plainly irrelevant, immaterial, insubstantial, cumulative or unduly repetitive."). A decision on the record without further evidence could then be appealed from the EAB to this Court. Different standards of Superior Court review should not apply depending upon the vagaries of such choices.
The terms "reasonable basis" and "substantial evidence" are functionally equivalent. A well known treatise has found that the substantial evidence test means a "reasonableness review." 33 Fed. Prac. Proc. Judicial Review § 8333. And, it is not uncommon for legislative regulations to be reviewed under the substantial evidence test. See, e.g., Nat'l Paint Coatings Assoc., 2004 Del. Super. LEXIS 61; Collazuol v. Tulou, 1996 Del. Super. LEXIS 453 (Del.Super. Oct. 31, 1996). The following language is helpful in defining reasonableness review:
The reasonableness instruction tells the court that it is not to decide whether the agency found one right answer — the answer the judge would have given — or even to determine how close the agency came to the one right answer; it requires only that the court decide whether the agency has found an answer which has a reasonable likelihood of being correct. After that, the court's function ends and it is the agency's judgment, not the court's, which is controlling.
33 Fed. Prac. Proc. Judicial Review § 8333. (emphasis added).
Regarding the arbitrary and capricious standard, "the agency must examine the relevant data and articulate a satisfactory explanation for its action including a `rational connection between the facts found and the choice made.'" Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (U.S. 1983). An agency action is arbitrary and capricious where it "entirely failed to consider an important aspect of the problem, offered an [inconsistent] explanation . . ., or is so implausible that it cannot be ascribed to a difference in view. . . ." See Nat'l Paint Coatings Assoc., 2004 Del. Super. LEXIS 61, at *12 n. 25 (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983)). Even applying this standard of review, the Order is invalid for the same reasons stated in this opinion.
4 There was nothing in City of Rehoboth v. McKenzie, 2000 Del. Super. LEXIS 73, about the appropriate standard of review.
5 The following excerpt, taken from an online article, better describes the horseshoe crab sanctuary:
On March 7, 2001 the National Marine Fisheries Service (NMFS) established the Dr. Carl N. Shuster, Jr. Horseshoe Crab sanctuary in Federal waters off the mouth of the Delaware Bay estuary. The sanctuary was created to protect the large spawning population of horseshoe crabs in the Delaware Bay and maintain the superabundance of crab eggs available to migratory shorebirds. The rectangular shaped sanctuary is positioned in the Exclusive Economic Zone (EEZ) bounded by State regulated waters to the west and extending 30 miles east. The reserve's southern boundary lies just north of Ocean City, MD and the northern boundary is just south of Atlantic City, NJ. No commercial harvesting of horseshoe crabs is allowed within sanctuary waters.Horseshoe Crabs Conservation, available at the following website: http://www.dnr.state.md.us/education/horseshoecrab/cnss.html (last updated July 29,2005).
6 Dr. Shuster is recognized by the Department as an expert concerning the horseshoe crab. The Department solicited his views after the closing of time for the submission of comments. Dr Shuster developed the concept for a male-only harvest to alleviate concerns about the source of food for the red knots. Dr. Shuster has published numerous works on the horseshoe crab. His opinions and data were sought and relied upon by ASMFC in its recommendation of the male-only harvest.
By restricting the catching of females, the egg laying capabilities of the species are protected. It appears that the spawning involves attached and unattached satellite males; however, there is no rational basis in the record to conclude that one male horseshoe crab cannot fertilize a female crab without the assistance of other males. The male horseshoe crabs wait in numbers at the edge of the beach and then congregate. As the Delaware Bay population is homogenous, there is no rational basis to conclude that the absence of some males would have an adverse genetic effect.
The spawning season lasts from May through the first two weeks of June. There is no rational basis in the record to conclude that the harvesting of males after the spawning season ends would create an appreciable difference between the impacts of a full moratorium or a limited harvest.
This information was developed at the Regional Commission hearing and known to the Hearing Officer. The points were mentioned through the testimony of Mr. Robbins at the public hearing and through a memorandum from Dr. Shuster which is part of the Department's submitted record. Other materials from Dr. Shuster were submitted to the Department through Robbins and provided by Dr. Shuster directly at the Department's request in November of 2006.
The provided information reflected testimony of Robbins at the public hearing as well as in the ASMFC proceedings which were well-known to the Hearing Officer who relied upon Dr. Shuster's scientific expertise. In the Hearing Officer's words Dr. Shuster is a "world renowned expert on horseshoe crabs." Report at 10. An agency may request additional material to supplement matters even after the end of the public comment period. "The rulemaking record is, in a sense, never closed." 32 Fed. Prac. Proc. Judicial Review § 8183. "Rulemaking is an on-going project because a rule is always open to reconsideration and modification." Id. "Even during the rulemaking, however, the record grows throughout the duration of the rulemaking, which may be several years." Id. "And, information which cannot be ignored may come to an agency even after the comment period ends." Id. An agency can rely on a consultant's report received between the published notice and the adoption of the final rule. Stoughton v. U.S. EPA, 858 F.2d 747, 752-53 (D.C. Cir. 1988). "Agencies are consistently upheld in their use of post-comment information." 32 Fed. Prac. Proc. Judicial Review § 8183 (citing National Ass'n of Farmworkers v. Marshall, 628 F.2d 604, 621 (D.C. Cir. 1980)). "Indeed to some extent agencies are encouraged to be sensitive to developing knowledge." Id. "This ongoing sensitivity to developing knowledge is to be encouraged; it is a normal requirement of competent administration." National Ass'n of Farmworkers v. Marshall, 628 F.2d 604, 621 (D.C. Cir. 1980).
Although the Department seeks to exclude Dr. Shuster's information, I reject the effort. Several materials were submitted before the end of the public comment period. The material afterward was requested by the Department to supplement the record.
Of concern, also, is the failure of the Department, through the Order, to justify the rejection of facially reliable information presented through the Shuster materials. See 32 Fed. Prac. Proc. Judicial Review § 8180 ("The statement [Order], therefore, must justify the rejection of facially reliable information"). The Order did make reference to well presented and supported information on a "vast administrative record," however; it did not explain or provide a rational basis to prefer the moratorium over a limited harvest.
The decision to impose a moratorium also appears to have been made by the Secretary well in advance of the September, 2006 public hearing. This circumstance calls into question how a fair evaluation of relevant factors found in the record could have been made. In proceedings leading to the adoption of Addendum IV, Mr. Miller was asked if Delaware would impose a full moratorium on the harvest of horseshoe crabs. In answering the question, Mr. Miller pointed out that he was in the proceedings "representing the express wishes of our Department Secretary, John Hughes" and that "we would go for a full harvest moratorium." Hearing Officer's Record, Letters from Organizations at 29. The moratorium had "the highest level of support within the government of the State of Delaware." Id. The record also suggests the Department made a commitment to New Jersey to enact the moratorium before the Secretary's Order was issued. See Hearing Officer's Record, Letters from Organizations at 6 (Nicholas A. Dispasquale: "We believe the State of Delaware made a commitment to New Jersey officials and to the Delaware conservation community to enact a two-year moratorium on horseshoe crab harvesting. . . .").
7 In light of this Court's decision, it is unnecessary to address any further objections raised by the Plaintiffs.