C & W Fish Co., Inc. v. Fox, Jr.

Decision Date07 May 1991
Docket NumberNo. 90-5309,90-5309
Citation931 F.2d 1556
Parties, 21 Envtl. L. Rep. 21,372 C & W FISH COMPANY, INC., et al., Appellants, v. William W. FOX, Jr., Assistant Administrator for Fisheries, National Oceanic and Atmospheric Administration, et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia.

Eldon V.C. Greenberg, with whom Dina R. Lassow, Washington, D.C., was on the brief, for appellants.

Elizabeth Ann Peterson, Atty., Dept. of Justice, with whom John A. Bryson, Washington, D.C., Atty., Dept. of Justice, was on the brief, for federal appellees.

Robert G. Hayes, Washington, D.C., for appellee Costal Conservation Ass'n.

Jonathan A. Glogau, Hollywood, Fla., for appellee Florida Marine Fisheries Com'n.

Before MIKVA, Chief Judge, SENTELLE and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

HENDERSON, Circuit Judge:

On April 13, 1990, the Department of Commerce (Department), National Oceanic and Atmospheric Administration (NOAA), issued a final rule which, in part, bans the use of drift gillnets in the Atlantic King Mackerel Fishery. See 55 Fed.Reg. 14,833 (April 19, 1990). Various individuals involved in the fishing industry challenged the final rule on several grounds, including its allegedly ultra vires promulgation. The district court rejected all of the plaintiffs' challenges, granting summary judgment to the defendants. We affirm.

I.

The Magnuson Fishery Conservation and Management Act (Magnuson Act or Act), 16 U.S.C. Secs. 1801-82, grants the Department the authority to create national programs for the conservation and management of fishery resources while at the same time it preserves the states' ability to play a key role in the development of those programs. To promote these dual aims--the creation of a cohesive national policy and the protection of state interests--the Magnuson Act provides for the creation of eight Regional Fishery Management Councils (Councils). Each Council is granted authority over a specific geographic region and is composed of members who represent the interests of the states included in that region. 16 U.S.C. Sec. 1852. Under the Act, a Council can propose a Fishery Management Plan (FMP) that is subject to the final approval of the Department Secretary. 16 U.S.C. Secs. 1852(h), 1854(a). In the event the Secretary himself proposes an FMP, the Councils must be given an opportunity to submit comments and recommendations on that FMP. 16 U.S.C. Sec. 1854(c)(1), (c)(2). The Magnuson Act thus balances the states' interest in participating in the formulation and administration of fishery plans and the federal interest in the development of a coordinated national fishery program. See 16 U.S.C. Sec. 1801 (listing the Magnuson Act's policy objectives).

To further promote state interests as well as to foster the development of departmental expertise, the Secretary's authority to approve Council proposals has been delegated to various Department officials. It begins with the Secretary's delegation of his approval authority to the Under Secretary for Oceans and Atmosphere (Under Secretary) pursuant to Department Organization Order (DOO) 10-15, Sec. 3.01. The Under Secretary, in turn, has delegated his authority to the Assistant Administrator for Fisheries (Assistant Administrator). 1 NOAA Circular 78-21. Finally, the Assistant Administrator has delegated his authority to the NMFS Regional Directors (Regional Directors). NOAA Circular 83-37. Although each of the internal orders requires lower-echelon officials to approve Council proposals, none of them totally surrenders the delegator's authority to approve proposals. In other words, the orders require Councils initially to submit their proposed FMPs to the Regional Directors; the proposals then move up the ranks of the Department and are subject to approval by the individual officials in the chain of delegation. 2

This appeal represents the latest chapter in a long attempt by the South Atlantic Regional Council and the Gulf Regional Council to ban drift gillnet fishing for the coastal migratory pelagics fishery. 3 As the name implies, drift gillnet fishing involves the use of a large, drifting net that snags fish by the gills as they attempt to swim through it. See 50 C.F.R. Sec. 642.2. Beginning in 1987, the two Councils sought an emergency ban on the use of drift gillnets pursuant to section 305(e) of the Magnuson Act, 16 U.S.C. Sec. 1855(e). The Southeast Regional Director (Regional Director), who is responsible for both the South Atlantic and Gulf Regions, refused to issue a ban because no "emergency" was deemed to exist. Joint Appendix (JA) 195. The South Atlantic Council then sought to effect the ban by proposing a regulatory amendment to the FMP regulating the Mackerel Fishery, 50 C.F.R. Part 642. That FMP allows the Regional Director to act as the Secretary's designee in authorizing amendments to the plan on his own in the event a "user" or a "gear" conflict arises. 4 See Amendment 1 to the FMP for Coastal Migratory Pelagic resources, section 12.6.9.1, 50 Fed.Reg. 34,840 (Aug. 28, 1985). The method of amendment the South Atlantic Council attempted is intended to allow user and gear conflicts to be resolved quickly and is to be used only in limited circumstances. See JA 247-48 (Regional Director's explanation of denial). Once again, the Regional Director declined to issue the ban, concluding that there was no evidence of a user or a gear conflict. JA 247.

Having failed in their attempts to ban drift gillnets by these two methods, the South Atlantic and Gulf Councils finally proposed a formal amendment--Amendment 3--to the Mackerel Fishery FMP. Amendment 3 proposed two changes: (i) a ban on purse seine gillnets and run-around gillnets for the Atlantic King Mackerel Fishery (Mackerel Fishery); 5 and (ii) a ban on drift gillnets for the entire coastal migratory pelagics fishery. The Regional Director approved the ban on drift gillnets only for Gulf king and Spanish mackerel and Atlantic Spanish mackerel; he refused to approve the ban on run-around gillnets and purse-seine gillnets and drift gillnets for Atlantic king mackerel. His decision was then approved by the Assistant Administrator, the Under Secretary and, finally, the Secretary. See 54 Fed.Reg. 29,561 (July 13, 1989) (final rule).

In January 1990, the Gulf Atlantic and South Councils resubmitted the rejected portions of Amendment 3 with a few minor changes. This time the proposed amendment provided for a conditional ban on purse-seine and run-around gillnets for Atlantic king mackerel: the ban was to take effect only if the species became overfished and the entire commercial allocation could be harvested by fishermen using other authorized gear. The proposed amendment, however, still called for an unconditional ban on drift gillnets. The newly appointed Regional Director approved the qualified ban on purse-seine and run-around gillnets but declined to approve the unqualified ban on the use of drift gillnets in the Mackerel Fishery. The evidence presented to support the new submission, he reasoned, had not changed since the first submission and did not warrant a change in agency policy. 6

When the Regional Director's decision reached Dr. William Fox, the newly appointed NOAA Assistant Administrator, the rejected portions of the amendment gained new life. Fox--who before his appointment had been a strong advocate of the drift gillnet ban--inexplicably reported that the Regional Director had "approved" the new Amendment 3 and then, himself, approved the full plan, explaining the appropriateness of the ban. JA 459. The Under Secretary and the Secretary subsequently approved the Councils' proposal, JA 464-65 (approvals), and NOAA implemented appropriate notice and comment rulemaking, 55 Fed.Reg. 5,242 (February 14, 1990) (proposed rule); 55 Fed.Reg. 14,833 (April 19, 1990) (final rule).

The issuance of the drift gillnet ban set the stage for this litigation. Immediately after the final rule was issued, two fish wholesalers and two individual fishermen filed suit against the Secretary of Commerce, Robert Mosbacher, and Assistant Administrator Fox in district court, seeking declaratory and injunctive relief. That court granted the plaintiffs' motion for expedited review based on their allegations that the final rule imperiled their economic survival. After hearing argument on the parties' cross-motions for summary judgment, the district court granted the defendants' motion and dismissed the case with prejudice. 745 F.Supp. 6 (D.D.C.1990). The wholesalers and fishermen now appeal, making four challenges: (i) Assistant Administrator Fox is without authority to approve, disapprove or partially disapprove an FMP; (ii) the final rule is not supported by the record; (iii) the final rule does not comply with the Magnuson Act; (iv) the appellants were denied due process because Assistant Administrator Fox had an unalterably closed mind and should have disqualified himself from participating in the rulemaking.

II.

The appellants argue that the final rule must be invalidated because the Assistant Administrator has no authority to approve a proposal that had been disapproved by a Regional Director. According to them, the Assistant Administrator delegated to the Regional Director the authority to approve, disapprove or partially disapprove a proposed FMP and failed to retain any portion of that authority. The appellees respond to this argument with three points. First, they claim that the Assistant Administrator's retention of approval authority is essential to his functions and therefore the authority should be necessarily implied. Second, they assert that agency practice allows the Assistant Administrator to pass on the proposals and this practice should control. Finally, they assert that the...

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