Ace Lobster Co., Inc. v. Evans, CIV. A. 00-004L.
| Decision Date | 12 September 2001 |
| Docket Number | No. CIV. A. 00-004L.,No. CIV. A. 00-006L.<SMALL><SUP>2</SUP></SMALL>,No. CIV. A. 00-005L.,CIV. A. 00-004L.,CIV. A. 00-005L.,CIV. A. 00-006L.<SMALL><SUP>2</SUP></SMALL> |
| Citation | 165 F.Supp.2d 148 |
| Court | U.S. District Court — District of Rhode Island |
| Parties | ACE LOBSTER CO., INC. and Alan Eagles, v. Donald L. EVANS, in his official capacity as Secretary of the U.S. Department of Commerce. Campanale & Sons, Inc., C.E.H., Inc. and Narragansettt Seahawk, Inc., v. The Honorable Donald L. Evans, in his official capacity as Secretary of Commerce.<SMALL><SUP>1</SUP></SMALL> Jenny Mae, Inc., Violet Fish & Trap Company, Inc., Red Devil Fish & Lobster Company, Inc., Palombo Fishing Corp., Palombo Fisheries, Ltd., Palombo-Nippert Fishing Corp. and Garry Mataronas, v. The Honorable Donald L. Evans, in his official capacity as Secretary of Commerce. |
This Court cannot improve on the Report and Recommendation of United States Magistrate Judge Robert W. Lovegreen dated May 4, 2001. Therefore, the Report and Recommendation hereby is adopted and accepted pursuant to 28 U.S.C. § 636(b)(1)(B).
The bottom line in this case is that the overall trap limit imposed by the Secretary on the deep-sea lobstermen is a reasonable interim conservation measure until such time as the Secretary can secure enough information to develop a fair, individualized, historical trap limit for those lobstermen.
Therefore, the Clerk shall enter judgment for the defendant in these three consolidated cases forthwith.
It is so ordered.
REPORT AND RECOMMENDATION
All plaintiffs are American lobster fishermen and lobster business owners or shareholders, who reside and whose vessels are berthed in Rhode Island. The three complaints (the first two filed on January 4, 2000, and Jenny Mae, Inc.'s filed on January 5, 2000) allege that certain regulations implemented by the Secretary of Commerce regarding lobster fishing violate the Administrative Procedures Act ("APA"), various provisions of the Magnuson-Stevens Act, and the Regulatory Flexibility Act ("RFA"). The parties stipulated to consolidate the three cases, and the court ordered the cases consolidated on March 16, 2000. Defendant filed his answer on April 11, 2000. On June 7, 2000, defendant filed with the court the certified Administrative Record ("Record") relating to the disputed regulations. Plaintiffs then filed their consolidated motion for summary judgment ("Plaintiffs' Motion") on October 20, 2000, and defendant submitted its objection and cross-motion for summary judgment ("Defendant's Motion") on December 1, 2000. Contemporaneously submitted was defendant's statement of undisputed facts ("Defendant's Facts"). Subject matter jurisdiction is alleged pursuant to 5 U.S.C. § 611 (), 28 U.S.C. § 201 of the Declaratory Judgment Act, and 5 U.S.C. §§ 701-706 ().
This matter has been referred to me for preliminary review, findings, and recommended disposition. 28 U.S.C. § 636(b)(1)(B); Local Rule of Court 32(c). A hearing was held on April 11, 2001. After examining the memoranda submitted, listening to the arguments of counsel, and researching the issues involved, I recommend that defendant's motion for summary judgment be granted and that plaintiffs' motion for summary judgment be denied.
The American lobster, Homarus americanus, is a bottom-dwelling, marine crustacean that has a shrimp-like body and ten legs, two of which are enlarged to serve as crushing and gripping appendages. Record, 5447. The meat of the lobster is so highly prized that it supports one of the most intense and valuable fisheries in North America. Id. The lobster fishery is predominantly sustained by landings from lobster traps: from 1964 through 1994, the average percentage of landings from the non-trap sector totaled 5.74%, and from 1984 to 1994 it was 2.33%. Id. at 5448.
The lobster trap regulations that have spawned the instant lawsuit are located at 50 C.F.R. §§ 697.19 and 697.4(a)(7)(v), and provide as follows:
§ 697.19 Trap limits and trap tag requirements for vessels fishing with traps.
(1) Beginning January 5, 2000, through April 30, 2000, vessels fishing in any EEZ3 management area except EEZ Offshore Management Area 3, shall not fish with, deploy in, possess in, or haul back from such area more than 1,000 traps.
(2) Beginning May 1, 2000, vessels fishing in or issued a management area designation certificate or valid limited access American lobster permit specifying the EEZ Nearshore Management Area(s) and the Area 2/3 Overlap, or, only the Area 2/3 Overlap, shall not fish with, deploy in, possess in, or haul back from such area more than 800 traps.
(1) Beginning January 5, 2000, through April 30, 2000, vessels fishing only EEZ Offshore Management Area 3, or, fishing only EEZ Offshore Management Area 3 and the Area 2/3 Overlap, shall not fish with, deploy in, possess in, or haul back from such area more than 2,000 traps.
(2) Beginning May 1, 2000, vessels fishing only in or issued a management area designation certificate or valid limited access American lobster permit specifying only EEZ Offshore Management Area 3, or, specifying only EEZ Offshore Management Area 3 and the Area 2/3 Overlap, shall not fish with, deploy in, possess in, or haul back from such area more than 1,800 traps.
(c) Trap tag requirements for vessels fishing with traps. Beginning May 1, 2000, any lobster trap fished in Federal waters must have a valid Federal lobster trap tag permanently attached to the trap bridge or central cross-member.
(d) In any fishing year, the maximum number of tags authorized for direct purchase by each permit holder is the applicable trap limit specified in paragraphs (a) and (b) of this section plus an additional 10 percent to cover trap loss.
§ 697.4 Vessel permits and trap tags.
(a) Limited access American lobster permit. Any vessel of the United States that fishes for, possesses, or lands American lobster in or harvested from the EEZ must have been issued and carry on board a valid Federal limited access lobster permit. This requirement does not apply to: charter, head, and commercial dive vessels that possess six or fewer American lobsters per person aboard the vessel if such lobsters are not intended for, nor used, in trade, barter or sale; recreational fishing vessels; and vessels that fish exclusively in state waters for American lobster.
. . . . .
(7) Management area designations for vessels fishing with traps.
. . . . .
(v) A vessel issued a lobster management area designation certificate or limited access American lobster permit specifying more than one EEZ management area must abide by the most restrictive management measures in effect for any one of the specified areas, regardless of the area being fished, for the entire fishing year.
Plaintiffs object in particular to § 697.19(b)(2), which limits all vessels licensed to fish in the offshore zone of Area 3 to 1800 lobster traps ("uniform trap cap"), and to the requirement in § 697.4(a)(7)(v) that vessels fishing in more than one EEZ management area must abide by the most restrictive management measures in place in any one of the EEZ areas. Plaintiffs' complaint4 comprises six principal claims: first, that the defendant's decision to adopt the regulations is arbitrary and capricious because it does not contemplate the historic participation of fishing vessels in the lobster fishery. Plaintiffs also argue that a regulation reflecting historic participation would more effectively serve lobster conservation and management goals. Second, plaintiffs assert that defendant did not consult with the appropriate councils before issuing the regulations, and that the regulations are not compatible with "effective implementation of a coastal fishery management plan," in violation of the Atlantic Coast Fisheries Cooperative Management Act ("ACFCMA").5 Third plaintiffs claim that the regulations violate National Standards 1, 2, 4, 6, and 8 of the Magnuson-Stevens Act, pursuant to 16 U.S.C. § 1851(a) (1994), as incorporated by the ACFCMA. Fourth, plaintiffs claim that the regulations do not comport with the requirements of the Regulatory Flexibility Act, pursuant to 5 U.S.C. §§ 603, 604 (1996). Fifth, plaintiffs claim that defendant did not have authority under the ACFCMA to withdraw the previous lobster management plan and promulgate the new regulations. Finally, plaintiffs state that defendant abused his discretion and violated his statutory authority by promulgating § 697.4(a)(7)(v).
The procedures for implementing regulations affecting the lobster fishery encompass two federal statutes, the Magnuson-Stevens Act and the ACFCMA, both of which are implicated in this case.
Congress enacted the Magnuson Act (later renamed the Magnuson-Stevens Act) in 1976 "intend[ing] to respond to overfishing6 and inadequate conservation measures which were threatening future commercial and recreational fishing, as well as the very survival of species." Parravano v. Babbitt, 837 F.Supp. 1034, 1040 (N.D.Cal.1993), aff'd, 70 F.3d 539 (9th Cir. 1995), cert. denied, 518 U.S. 1016, 116 S.Ct. 2546, 135 L.Ed.2d 1066 (1996) (citing 16 U.S.C. § 1801(a)); Lovgren v. Byrne, 787 F.2d 857, 861 (3d Cir.1986) (). In order to render more efficient the management process provided for in the Magnuson-Stevens Act, Congress also "created eight regional fishery management councils composed of state fishery managers, the regional NMFS [National Marine...
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