Conservation Law Foundation of New England, Inc. v. Franklin, 92-2029

• Decision Date: 07 December 1992
• Docket Number: No. 92-2029,92-2029
• Citation: 989 F.2d 54
• Parties: 23 Envtl. L. Rep. 20,873 CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., et al., Plaintiffs, Appellees, v. Barbara H. FRANKLIN, ETC., et al., Defendants, Appellees. Appeal of ASSOCIATED FISHERIES OF MAINE, et al., Intervenors, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 54

989 F.2d 54

23 Envtl. L. Rep. 20,873

CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., et al., Plaintiffs, Appellees, v. Barbara H. FRANKLIN, ETC., et al., Defendants, Appellees.

Appeal of ASSOCIATED FISHERIES OF MAINE, et al.,

Intervenors, Appellants.

No. 92-2029.

United States Court of Appeals, First Circuit.

Heard Dec. 7, 1992.

Decided March 30, 1993.

Ralph J. Gillis, argued, with whom Gillis & Campbell, was on brief for appellants.

Peter A. Appel, Attorney, Dept. of Justice, argued, with whom Vicki A. O'Meara, Acting Asst. Atty. Gen., A. John Pappalardo, U.S. Atty., Suzanne E. Durrell, Asst. U.S. Atty., J. Carol Williams and Jean W. Williams, Attorneys, Dept. of Justice, Margaret F. Hayes and Gene S. Martin, Office of Gen. Counsel, Nat. Oceanic & Atmospheric Admin., were on brief for Federal appellees.

Peter Shelley, argued, with whom Maura J. Sheehan, was on brief for appellees Conservation Law Foundation, Inc., and Massachusetts Audubon Soc.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

TORRUELLA, Circuit Judge.

In this appeal, several fishing associations, ¹ appellants here, request that we vacate a consent decree approved and entered by the district court between the Conservation Law Foundation of New England, Inc. and Massachusetts Audubon Society (collectively, "Conservation"), and the Secretary of Commerce ("Secretary"). For the reasons that follow, we reject this request.

PRIOR PROCEEDINGS

Conservation sued the Secretary alleging that the Secretary failed to prevent overfishing off the coast of New England, as required by the Magnuson Fishery Conservation

                and Management Act of 1976, as amended, 16 U.S.C. §§ 1801-1882 (1985 & Supp.1992) ("Magnuson Act").   Appellants sought to intervene.   The district court denied the request, but we granted it in Conservation Law Foundation, Inc. v. Mosbacher, 966 F.2d 39 (1st Cir.1992).   While the appeal seeking intervention was pending, the district court entered a consent decree between Conservation and the Secretary.   Appellants now seek to vacate the consent decree on various grounds.   To fully understand the present appeal, we must briefly describe the statutory context of this suit
                

STATUTORY BACKGROUND

Congress enacted the Magnuson Act to establish a comprehensive system of fisheries management for waters within the jurisdiction of the United States. 16 U.S.C. § 1801(b)(1). In particular, Congress found that certain stocks of fish had been so overfished that their survival was threatened, id. at § 1801(a)(2), and mandated that overfishing be prevented, id. at § 1851(a)(1).

To attain these goals, the Act creates eight regional fishery management councils. Id. at § 1852(a). The regional councils are comprised of state and federal government officials, as well as individuals nominated by state executives and appointed by the Secretary. Id. at § 1852(b), (c). The Magnuson Act charges the Secretary and the Councils with developing fishery management plans ("FMPs") for stocks of fish within their jurisdictions that require conservation and management. The Act specifies the procedures by which FMPs are developed and creates a number of standards to which the plans must conform. National Standard One requires that "[c]onservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry." Id. at § 1851(a)(1). The Secretary has issued guidelines to assist the development of plans by the regional councils. See 50 C.F.R. pt. 602.

The Act provides that either the councils or the Secretary can develop FMPs. If a council generates a plan, the Secretary must follow a detailed procedure for review, as specified in § 1854(a), (b). The Secretary first reviews the plan for compliance with statutory mandates and publishes notice of the plan in the Federal Register, soliciting comments from interested persons. After review, the Secretary may approve, partially approve, or disapprove the plan. If the Secretary disapproves or partially disapproves of a plan she must inform the council of her reasons. 16 U.S.C. § 1854(b)(2). The council may then submit a revised plan, id. at § 1854(b)(3), which the Secretary will review.

The Act authorizes the Secretary to develop an FMP with respect to any fishery if (1) "the appropriate council fails to develop and submit to the Secretary, after a reasonable period of time, a fishery management plan for such fishery, or any necessary amendment to such a plan, if such fishery requires conservation and management ...," id. at § 1854(c)(1)(A) (emphasis added); or (2) "the Secretary disapproves or partially disapproves any such plan or amendment, or disapproves a revised plan or amendment, and the Council involved fails to submit a revised or further revised plan or amendment, as the case may be." Id. at § 1854(c)(1)(B). Under either statutory authority, the Secretary must submit the FMP to the appropriate council for comments, and publish notice of the plan and regulations to implement the plan in the Federal Register. Id. at § 1854(c)(2)(A). Before the Secretary implements the plan, she must consider the comments of the council and the public, and ensure compliance with the national standards. Id. at §§ 1854(c)(2)(B), 1851, 1853.

Approved FMPs are implemented by regulations promulgated by the Secretary, which are subject to judicial review in accordance with select provisions of the Administrative Procedures Act, 5 U.S.C. § 701 et seq. See 16 U.S.C. § 1855(b).

HISTORY OF THE NORTHEAST MULTISPECIES FISHERIES PLAN

This case involves the conservation and management of groundfish off the coast of New England. ² In its effort to manage New England fisheries, the New England Fishery Management Council ("New England Council") first eliminated foreign fishing within its jurisdiction, 42 Fed.Reg. 13,998 (1977). In 1985, it developed the Northeast Multispecies Fisheries Plan, Proposed Rule, 50 Fed.Reg. 49,582 (1985), because overfishing remained a problem. The Secretary approved the plan as an interim rule in 1986, indicating that the rule improved matters, but was unsatisfactory for long term conservation and management. Interim Rule, 51 Fed.Reg. 29,642, 29,643 (1986). In 1987, the rule became final and three amendments followed. See Final Rule, 52 Fed.Reg. 35,093 (1987) (amendment one); Final Rule, 54 Fed.Reg. 4,798 (1989) (amendment two); Final Rule, 54 Fed.Reg. 52,803 (1989) (amendment three).

The Rule and its amendments did not prevent overfishing as required by National Standard One. Pursuant to the Secretary's guidelines on what constitutes overfishing, 50 C.F.R. 602.11 (1991), the Council determined that cod, haddock, and yellowtail flounder in certain fisheries off the coast of New England were overfished and drafted amendment four to redress that problem. The Secretary partially approved amendment four, 56 Fed.Reg. 24,724 (1991), but found the amendment deficient, stating that it did "not constitute a complete rebuilding strategy...." Id. at 24,725.

In response to amendment four, Conservation sued the Secretary, complaining that she had arbitrarily and capriciously approved the amendment and that the overall FMP failed to comply with National Standard One. Thereafter, Conservation and the Secretary began negotiations to enter a consent decree settling the suit. Appellants sought to intervene but the district court denied the request. While the appeal was pending, the district court entered a consent decree on August 28, 1991. In the appeal, we granted appellants intervenor status.

THE CONSENT DECREE

The consent decree established a timetable for a FMP or an amendment to the plan applicable to New England waters that would "eliminate the overfished condition of cod and yellowtail flounder stocks in five years after implementation and ... eliminate the overfished condition of haddock stocks in ten years after implementation." Conservation Law Foundation, Inc. v. Mosbacher, No. 91-11759-MA, slip op. at 2 (D.Mass., Aug. 28, 1991) (consent decree). The decree expressly stated that it "shall meet all requirements established by applicable statutes and regulations...." Id. at 2. It directed that the New England Council would have the first opportunity to develop the groundfish rebuilding plan, but also established a timetable for the Secretary to create and implement her own plan if the council failed to act. Appellants unsuccessfully moved to vacate the consent decree. This appeal followed.

DISCUSSION

District courts must review a consent decree to ensure that it is "fair, adequate, and reasonable; that the proposed decree will not violate the Constitution, a statute or other authority; [and] that it is consistent with the objectives of Congress...." Durrett v. Housing Authority of Providence, 896 F.2d 600, 604 (1st Cir.1990). Where an administrative agency has committed itself to a consent decree, the district court must exercise some deference to the agency's determination that settlement is appropriate, F.T.C. v. Standard Financial Management Corp., 830 F.2d 404, 408 (1st Cir.1987), and "refrain from second-guessing the Executive Branch." United States v. Cannons Engineering Corp., 899 F.2d 79, 84 (1st Cir.1990). Moreover, "the court is not barred from entering a consent decree merely because it might lack authority under [the governing statute] to do so after a trial." Local No. 93, Int'l Ass'n of Firefighters v. Cleveland, 478 U.S. 501, 525-26, 106 S.Ct. 3063, 3077, 92 L.Ed.2d 405 (1986).

The Supreme Court has stated that district courts may properly approve a consent decree where (1) it "spring[s] from and serve[s] to resolve a dispute within the courts' subject-matter jurisdiction"; (2) it "come[s] within the general scope of the case made by the pleadings"; and (3) furthers the objectives upon which the complaint was based. Id. Therefore, the parties enjoy...