127 F.3d 104 (1st Cir. 1997), 97-1327, Associated Fisheries of Maine, Inc. v. Daley

Docket Nº:97-1327.
Citation:127 F.3d 104
Party Name:ASSOCIATED FISHERIES OF MAINE, INC., Plaintiff, Appellant, v. William M. DALEY, Secretary of the United States Department Of Commerce, Defendant, Appellee.
Case Date:September 16, 1997
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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127 F.3d 104 (1st Cir. 1997)



William M. DALEY, Secretary of the United States Department

Of Commerce, Defendant, Appellee.

No. 97-1327.

United States Court of Appeals, First Circuit

September 16, 1997

Heard June 2, 1997.

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[Copyrighted Material Omitted]

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Gene R. Libby, with whom Michael W. MacLeod-Ball, Kennebunk, ME, Robert C. Brooks, and Verrill & Dana, Portland, ME, were on brief, for appellant.

David E. Frulla, Stanley M. Brand, and Brand, Lowell & Ryan, Washington, DC, on brief for Seafarers International Union of North America, amicus curiae.

Andrew C. Mergen, Attorney, Environment & Natural Resources Division, United States Department of Justice, with whom Lois J. Schiffer, Assistant Attorney General,

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David C. Shilton and Lyn Jacobs, Attorneys, and Gene Martin, Office of Regional Counsel, National Oceanic and Atmospheric Administration, Washington, DC, were on brief, for appellee.

Before SELYA, Circuit Judge, HILL, [*] Senior Circuit Judge, and BOUDIN, Circuit Judge.

SELYA, Circuit Judge.

Associated Fisheries of Maine (AFM) and its amicus, the Seafarers International Union, warn that the final version of a fishery management plan promulgated by the Secretary of Commerce (the Secretary) could have significant adverse effects on the fishing industry in the Northeast and that fishermen caught in the regulatory net will not be able to survive financially. They unsuccessfully asked the district court to invalidate the Secretary's final rulemaking and thereby avert this potential calamity. They now ask us for the same relief, urging that the Secretary failed to comply with both the Magnuson Act, 16 U.S.C. §§ 1801-1882 (1994), and the Regulatory Flexibility Act (RFA), 5 U.S.C.A. §§ 601-612 (1994 & Supp.1997). Although we have considerable empathy for the fishermens' concerns, we conclude, after wading through an administrative record which comprises roughly 30,000 pages, that the Secretary acted within his lawful purview.


Responding to depletion of the nation's fish stocks due to overfishing, Congress enacted the Magnuson Act in 1976 to protect fishery resources. See 16 U.S.C. § 1801(a). 1 The Act created eight regional fishery management councils, each of which has responsibility for fashioning a fishery management plan (FMP) to regulate commercial fishing within a particular geographic region. See id. §§ 1852(a)(1)-(8), 1852(h)(1). When a proposed FMP (or a plan amendment) is developed, the council must submit it to the Secretary for review. See id. § 1853(c). The Secretary then determines whether the proposed FMP is consistent not only with the Magnuson Act's seven national standards for fishery conservation and management, see id. § 1851(a)(1)-(7), but also with other applicable law, including the RFA, see id. §§ 1854(a)(1)(B), 1855(e). In making this determination, the Secretary must publish an appropriate notice, see id. § 1854(a)(1)(C), consider the comments engendered in response thereto, see id. § 1854(a)(2)(A), and consult with the Coast Guard anent enforcement, see id. § 1854(a)(2)(C). If the Secretary approves the amendment, he then promulgates final implementing regulations, which are subject to judicial review. See id. § 1855(b).


The New England Fishery Management Council (the Council) has authority over commercial fishing in the Atlantic Ocean off the New England coast. See id. § 1852(a)(1). Under its aegis, the management and conservation of the New England Groundfish Fishery has had a tangled history. See generally Peter Shelley et al., The New England Fisheries Crisis: What Have We Learned?, 9 Tul.Envtl.L.J. 221, 223-33 (1996). 2 When less intrusive efforts did not prevent overfishing, the Council developed the Northeast Multispecies Fishery Management Plan in 1985. The Secretary approved it only as a stopgap. Four amendments to the interim rule followed, none of which proved adequate. See Conservation Law Found. of New Eng., Inc. v. Franklin, 989 F.2d 54, 58 (1st Cir.1993). Litigation over the last of these amendments resulted in a consent decree. The decree established a timetable for adopting an FMP that would reverse the continuing depletion of cod, flounder, and haddock stocks within specified periods. See id.

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In 1994, the Council recommended, and the Secretary, acting through the National Marine Fisheries Service (NMFS) and the National Oceanic and Atmospheric Administration, approved Amendment 5. This amendment sought to eliminate overfishing of cod, haddock, and yellowtail flounder stocks by sharply reducing permissible fishing over a five to seven year period. See 59 Fed.Reg. 9872 (1994) (final rule). To achieve this goal, the amendment proposed a gradual reduction in the annual number of working days at sea (DAS) for certain fishing vessels and created three classes of permits. See 50 C.F.R. §§ 651.22, 651.4 (1995). The class that is relevant here comprises limited access multispecies permits (which, in turn, are subdivided into fleet and individual permits). Amendment 5 sets up a DAS notification program that requires vessels covered by fleet permits to notify the NMFS of departure and arrival times. See id. § 651.29. In addition, the amendment establishes a vessel tracking system (VTS) that is intended to function by means of electronic devices installed on board vessels with individual permits. See id. § 651.28. Because the VTS is not yet operational, both classes of permit holders must satisfy the call-in requirements of the DAS notification program for the time being. See id. § 651.29(a)(2).

Dismayed by the Secretary's handiwork, AFM challenged Amendment 5 in Maine's federal district court. By that time, however, haddock and yellowtail stocks had collapsed, and cod stocks were near collapse. See NMFS, Report of the 18th Northeast Regional Stock Assessment Workshop (18th SAW): The Plenary 53-54 (1994). In light of this troubling new information, Amendment 5 seemed inadequate either to protect or rebuild these stocks, and NMFS's Stock Assessment Review Committee recommended that the Council reduce ichthyic mortality to as low a level as possible. See id. at 53. In response, the Council adopted Amendment 6 (an emergency measure designed to protect haddock, see 59 Fed.Reg. 32,134 (1994)) and thereafter developed Amendment 7.

The Secretary promulgated Amendment 7 as a final rule after notice and comment. See 61 Fed.Reg. 8540 (proposed rule) & 27,710 (1996) (final rule) (to be codified at 50 C.F.R. pt. 651). Among other things, Amendment 7 seeks to reduce ichthyic mortality rates and rebuild multispecies stocks by (1) setting annual "allowable catch" targets for regulated species, (2) orchestrating new area closures, and (3) implementing further DAS cutbacks (including acceleration of the reduction schedule originally established in Amendment 5). 3 Although the Secretary acknowledged the significant negative economic impacts (especially on trawl vessels) which Amendment 7 would invite, he concluded that conservation of the fishery would yield greater long-term benefits. See 61 Fed.Reg. at 27,731.

Unmollified, AFM amended its pending judicial complaint to challenge Amendment 7 as well as Amendment 5. It alleged, inter alia, that both amendments violated the Magnuson Act and the RFA. The parties filed cross-motions for summary judgment. The district court then held a one-day informational hearing, during which the parties' experts explained their respective positions on scientific, economic, and ecological principles.

In the end, the court granted summary judgment in the Secretary's favor. See Associated Fisheries of Me., Inc. v. Daley, 954 F.Supp. 383 (D.Me.1997). As to issues that are relevant in this appeal, the court held that the newly enacted judicial review provisions of the RFA did not apply retroactively, and that, in all events, the Secretary had complied with the RFA. See id. at 386-87. The court also held that the Secretary's rulemaking did not run afoul of the Magnuson Act. See id. at 388-90. AFM now appeals. 4

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We review a district court's grant of summary judgment de novo. See Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir.1995); Massachusetts, Dept. of Pub. Welfare v. Secretary of Agric., 984 F.2d 514, 520 (1st Cir.1993). This rubric has a special twist in the administrative law context. The Magnuson Act incorporates the familiar standard of review associated with the Administrative Procedure Act (APA). See 16 U.S.C. § 1855(b). Where the APA standard obtains, a court may set aside an administrative action only if that action is arbitrary, capricious, or otherwise contrary to law. See 5 U.S.C. § 706(2)(A)-(D). Because the APA standard affords great deference to agency decisionmaking and because the Secretary's action is presumed valid, judicial review, even at the summary judgment stage, is narrow. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971); Sierra Club v. Marsh, 976 F.2d 763, 769 (1st Cir.1992). Consequently, our brief--like that of the district court--is only to determine whether the Secretary's decision to promulgate the fishery regulation was consonant with his statutory powers, reasoned, and supported by substantial evidence in the record. See Alliance Against IFQs v. Brown, 84 F.3d 343, 345 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1467, 137 L.Ed.2d 681 (1997); C & W Fish Co. v. Fox, 931 F.2d 1556, 1562 (D.C.Cir.1991); Maine v. Kreps, 563 F.2d 1052, 1055 (1st Cir.1977).

An agency rule is arbitrary and capricious if the agency lacks a rational basis for adopting it--for example...

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