State of Me. v. Kreps, 77-1402

• Decision Date: 20 October 1977
• Docket Number: No. 77-1402,77-1402
• Citation: 563 F.2d 1052
• Parties: 7 Envtl. L. Rep. 20,790 STATE OF MAINE et al., Plaintiffs, Appellants, v. Juanita M. KREPS et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1052

563 F.2d 1052

7 Envtl. L. Rep. 20,790

STATE OF MAINE et al., Plaintiffs, Appellants, v. Juanita M. KREPS et al., Defendants, Appellees.

No. 77-1402.

United States Court of Appeals, First Circuit.

Argued Sept. 14, 1977.

Decided Sept. 23, 1977.

Rehearing Denied Oct. 20, 1977.

Edward F. Bradley, Jr., Asst. Atty. Gen., Augusta, Maine, for plaintiffs, appellants.

William Brian Morrison, Atty., Dept. of Justice, Washington, D. C., with whom James W. Moorman, Acting Asst. Atty. Gen., and Bruce C. Rashkow, Atty., Dept. of Justice, Washington, D. C., were on brief, for defendants, appellees.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, WOLLENBERG, District Judge. ^*

LEVIN H. CAMPBELL, Circuit Judge.

This appeal by the State of Maine follows proceedings in the district court on remand from this court's decision in Maine v. Kreps, 563 F.2d 1043 (August 16, 1977). Maine continues her challenge to the 1977 herring quotas set by the Secretary of Commerce on the Georges Bank under the newly enacted Fishery Conservation and Management Act 16 U.S.C. §§ 1801 et seq. (the Act); and the question now before us is the adequacy of affidavits filed by the Secretary pursuant to this court's directions in the first Kreps decision. We required her to supplement the administrative record so as to reveal the basis for her determination of 33,000 metric tons (m.t.) as the 1977 optimum yield figure for the Georges Bank herring stock. The district court found the material in the affidavits sufficient to demonstrate a reasoned and legally adequate basis for the 33,000 m.t. figure which, as it exceeds estimated domestic fishing needs, has the effect of allowing foreign fishing fleets to fish on the Georges Bank during the present fishing season.

We held in our earlier Kreps opinion that the conservation and management aims of the Act do not necessarily preclude the selection of an optimum yield figure large enough to allow some foreign fishing where, as here, the figure is still conservative enough to allow rebuilding of a depleted stock at a reasonable if not optimum rate. But we emphasized that especially where the stock is below healthy levels, as is the case in the Georges Bank area, selection of a figure which allows leeway for any foreign fishing must reflect the Secretary's rational judgment that there is benefit to the Nation, with particular reference to its food supply. We said,

"Congress plainly did not intend the cardinal aim of the Act the development of a United States' controlled fishing conservation and management program designed to prevent over-fishing and to rebuild depleted stocks to be subordinated to the interests of foreign nations. But within a framework of progress towards this goal, the Secretary is directed and empowered within specified limits to accommodate foreign fishing, §§ 1801(c)(4); 1821. We find no congressional purpose that she disregard the benefits to be derived from cooperating with other nations. American consumers depend not only on United States producers; they benefit from our trade with the rest of the world. United States fishermen as well as consumers benefit from international cooperation. Indeed, the continued existence of fish stocks throughout the oceans of the world may well be dependent on actions by foreign nations as well as ourselves. Management of the oceans' fish resources cannot be accomplished solely within our own coastal areas. We think Congress did not require the Secretary to set optimum yield figures entirely without regard to the effects upon this country of allowing or denying foreign fishing.

"On the other hand, Congress has expressly directed the Secretary to consider the overall welfare of the United States in setting the optimum yield figure. Our nation's welfare may be considered in terms of its foreign relations as well as its purely domestic needs, but the touchstone is the benefit of this nation, not that of some other. Moreover, by "particular reference to the food supply", Congress underscored that priority was to be given to food requirements: the nation's fisheries were not, for example, to be swapped for a world banking agreement. The international considerations that are given weight must ordinarily relate to fishing, fish and other activities and products pertaining to the food supply (apart from any recreational benefits)." 563 F.2d at 1049-1050.

Because the record did not reveal whether the Secretary had balanced these considerations in setting the optimum yield figure, further explanation was required.

Of the three affidavits subsequently submitted by the Government, most important was that of David H. Wallace, Associate Administrator for Marine Resources of the National Oceanic and Atmospheric Administration and the official responsible for final action by the Department of Commerce on the Georges Bank herring preliminary management plan. Wallace stated that, in considering at what level to set the optimum yield figure for this stock, he took into account the traditional fishing activities of foreign fleets in the Georges Bank herring fishery; substantial benefits to be derived by the United States from continued scientific research conducted by the foreign fleets; the need for the United States to retain a credible negotiating stance with regard to the ongoing Law of the Sea deliberations; past policy statements by the Government that the transition to United States management of the fishery resources within the 200 mile limit would be gradual; and the difficult position the United States would be in with regard to cooperative international fishery conservation efforts, its own distant-water fishing fleets, and foreign fishery trade, if it were to renounce commitments previously undertaken through the International Commission for the Northwest Atlantic Fisheries (ICNAF), from which the United States withdrew at the end of 1976. He observed:

"It is my opinion...