Atlantic Fish Spotters Ass'n. v. Evans
| Citation | 206 F.Supp.2d 81 |
| Decision Date | 22 May 2002 |
| Docket Number | No. CIV. 01-10968-WGY.,CIV. 01-10968-WGY. |
| Parties | ATLANTIC FISH SPOTTERS ASSOCIATION, Jonathan A. Mayhew, Robert Sampson, William C. Chaprales, and Ralph E. Pratt, Plaintiffs, v. The Honorable Donald L. EVANS, as he is Secretary of the United States Department of Commerce, Defendant, and General Category Tuna Association and Northshore Community Tuna Association, Defendant-Intervenors. |
| Court | U.S. District Court — District of Massachusetts |
H. Reed Witherby, Smith & Duggan, Boston, MA, Andrew D. Herman, Brand, Lowell & Ryan, P.C., David E. Frulla, Brand & Frulla, P.C., Jay Sewell Johnson, Washington, DC, for Plaintiffs.
Anton P. Giedt, U.S. Attorney's Office, Boston, MA, for Defendants.
The plaintiffs, Atlantic Fish Spotters Association and others (collectively referred to hereinafter as the "Association"), bring this civil action against the defendant, Secretary of the United States Department of Commerce Donald L. Evans (the "Secretary"). The Association challenges the inclusion of a condition (the "Permit Condition") to granting General and Harpoon category fishing permits for harvesting Atlantic Bluefin Tuna ("Bluefin"). The Permit Condition requires the permit holder to agree not to use spotter planes when fishing for Bluefin. The Permit Condition is mandated by the 2001 appropriations bill for the Department of Commerce, Justice and State in Section 634 of House Bill 5548 ("Section 634"), passed by Congress on December 21, 2000, for the fiscal year 2001, which ended on September 30, 2001.
The Association argues that the ban on fishing with spotter planes in Section 634 was intended to apply only during fiscal year 2001; it therefore seeks declaratory and injunctive relief preventing the Secretary from enforcing the ban beyond fiscal year 2001, including during the new Bluefin fishing season that begins June 1, 2002.
In contrast, the Secretary views the ban as permanent and applicable to the Department of Commerce in fiscal years 2001, 2002, and thereafter. Although the Secretary had not issued any permits in the General and Harpoon Categories for 2002 as of April 11, 2002, he intends to include a Permit Condition banning the use of spotter planes in 2002 General and Harpoon category permits unless Congress changes the law in the interim.
Both the Association and the Secretary, as well as defendant-intervenors General Category Tuna Association ("General") and the Northshore Community Tuna Association ("Northshore"), have moved for summary judgment. For the reasons that follow, the Court DENIES the Association's motion for summary judgment and ALLOWS the Defendant's and the Intervenors' motions for summary judgment.
Bluefin tuna is among the most valuable fish species harvested in the Western Atlantic Ocean. A single Bluefin may sell for more than $50,000.
Fishing permits, which are required in order legally to fish for Bluefin, come in several categories, two of which are relevant here. The General Category is the largest and covers the methods most fishermen use, including harpoons and rods and reels. The Harpoon Category applies to fishermen using only harpoons.1 For all of these methods, the use of spotter planes to identify schools of fish from the air and alert fishermen to their precise location is very effective when harvesting Bluefins, and results in a greater catch. In fact, intervenors General and Northshore oppose spotter planes precisely because they are too effective: they contend that the use of spotter planes shortens the Bluefin fishing season because boats utilizing them quickly catch the lion's share of the permissible amount of Bluefin to be harvested for each fishing season.
Section 634 of House Bill 5548—an appropriations bill for the Departments of Commerce, Justice, and State—places a ban on the use of spotter planes while fishing for Bluefin. Section 634 reads:
None of the funds provided in this or any previous Act, or hereinafter made available to the Department of Commerce shall be available to issue or renew, for any fishing vessel, any general or harpoon category fishing permit for Atlantic bluefin tuna that would allow the vessel—
(1) to use an aircraft to locate, or otherwise assist in fishing for, catching, or possessing Atlantic bluefin tuna; or
(2) to fish for, catch, or possessing [sic] Atlantic bluefin tuna located by the use of an aircraft.
Act of December 21, 2000, Pub.L. No. 106-553, app. B § 634, 114 Stat. 2762, 2762A-114 (enacting H.R. 5548, 106th Cong. (2000)) (emphasis added). This appropriations "rider" prohibits the Secretary's designees at the National Marine Fisheries Service (the "Service") from using Department of Commerce funds to grant fishing permits in the General and Harpoon Categories to any fisherman who utilizes spotter planes. Given this limitation, the Service subsequently affixed the following uniform general condition to all Federal Fisheries Permits for the Bluefin General and Harpoon Categories for the 2001 fishing year:
The owner, operator, and/or any person on board the vessel to which this permit is issued agree as a condition to the issuance of this permit that the fishing activities of the vessel will not involve the use of an aircraft in any manner to: (1) locate, or otherwise assist in fishing for, catching, or possessing Atlantic bluefin tuna; or (2) fish for, catch, or possess Atlantic bluefin tuna.
Compl. Ex. 1 (). The Secretary has made it clear that the ban on spotter planes in the General and Harpoon Categories will be included in all 2002 permits issued in these categories. Def.'s Mem. at 4 [Docket No. 39].
The Association argues the appropriations act at issue here cannot be read to extend the ban on spotter planes for Bluefin fishing beyond fiscal year 2001, which ended on September 30, 2001. According to the Association, conditions contained in appropriations bills presumptively apply only to the fiscal year in which they are passed, absent language indicating futurity or other explicit indicia of Congressional intent that the legislation be permanent. It further contends that no such language or intent can be found in the act at issue here. The word "hereinafter," used in Section 634, commonly limits the terms appearing before it to the same document or writing. Accordingly, so the Association argues, it ought be read, as used in Section 634, to limit this provision to the 2001 fiscal year.
One consequence of this fact, in the Association's view, is that the Secretary's decision to extend the ban beyond the 2001 fiscal year amounts to agency rulemaking that did not satisfy the notice and public comment requirements of the Administrative Procedure Act (the "APA"), 5 U.S.C. § 551 et seq. Another consequence is that the Secretary was required to conduct a regulatory flexibility analysis to analyze the impact of this putative rulemaking on the small businesses affected, and discuss ameliorative measures and alternatives as required under the Regulatory Flexibility Act (the "RFA"), 5 U.S.C. §§ 601-12. Because the Secretary failed to satisfy either of these requirements of agency rulemaking, the Association posits that the extension of the ban on plane spotters beyond fiscal year 2001 is invalid.
According to the Secretary, Section 634 applies beyond fiscal year 2001 because: (1) the term "hereinafter" indicates futurity on its own; and (2) "hereinafter" is used in a sentence that reads "None of the funds provided in this or any previous Act, or hereinafter made available to the Department of Commerce . . . ." (emphasis added). The inclusion of the language "this . . . Act" in the clause preceding "hereinafter" shows that "hereinafter" in this sentence applies to the future. To construe the term otherwise, says the Secretary, would render the words "this or any previous Act" superfluous. Therefore, the Secretary's argument goes, accepted rules of statutory interpretation require the term "hereinafter" to be defined to indicate futurity, precisely what is required to denote permanency in a yearly appropriations act.
Accordingly, the Secretary contends that he made the issuance of permits in these categories contingent on an agreement not to use spotter planes in order to comply with the Congressional mandate in Section 634. Simply put, the Secretary claims he did not interpret that law, he implemented it. Thus, there was no obligation to comply with either the APA or the RFA.
As the foregoing discussion makes clear, the principal issue for this Court to decide is whether the ban on the use of spotter planes to fish for Bluefin was meant to be limited to the 2001 fiscal year, or was meant to extend through 2002 and beyond. The resolution of this issue turns on how the Court defines the word "hereinafter." If "hereinafter," as used in Section 634, clearly indicates futurity, then the bill on its face applies beyond fiscal year 2001 and the Secretary cannot be said to have engaged in rulemaking. He simply followed the law. If, however, the permanence of Section 634 is not obvious, then the Secretary effectively engaged in rulemaking by interpreting the provision on his own to apply beyond the end of fiscal year 2001, and in so doing promulgated a rule that did not comply with the notice and comment provisions of the APA and did not examine the effect of the proposed rule on small businesses as is required under the RFA.
Time is of the essence in deciding these motions, as the new Bluefin fishing season commences on June 1, 2002.2 Before the Court reaches the principal issue raised by this litigation, however, it addresses the threshold questions whether it has jurisdiction over the subject matter of the action, and whether the dispute is ripe for resolution at this time.
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Atlantic Fish Spotters Ass'n v. Evans
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