Campanale & Sons, Inc. v. Evans

• Decision Date: 22 November 2002
• Docket Number: No. 01-2282.,01-2282.
• Citation: Campanale & Sons, Inc. v. Evans, 311 F.3d 109 (1st Cir. 2002)
• Parties: CAMPANALE & SONS, INC.; C.E.H., Inc.; and Narragansett Seahawk, Inc., Plaintiffs, Appellants, v. Donald L. EVANS, Secretary of Commerce, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

311 F.3d 109

CAMPANALE & SONS, INC.; C.E.H., Inc.; and Narragansett Seahawk, Inc., Plaintiffs, Appellants, v. Donald L. EVANS, Secretary of Commerce, Defendant, Appellee.

No. 01-2282.

United States Court of Appeals, First Circuit.

Heard April 5, 2002.

Decided November 22, 2002.

Mark A. McSally, with whom Kelly, Kelleher, Reilly & Simpson was on brief, for appellants.

David J. Lazerwitz, Attorney, Appellate Section, Environment & Natural Resources Division, with whom Thomas L. Sansonetti, Assistant Attorney General, John T. Stahr, Attorney, Appellate Section, and Charles Lynch, Office of Regional Counsel, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.

TORRUELLA, Circuit Judge.

This case involves regulation of one of New England's most famed resources: the American lobster. Despite the lobster's somewhat other-worldly appearance with its protruding eyes, spindly legs, and oversized claws, its meat is highly valued by epicures across the country, making the lobster fishery one of the most competitive and valuable fisheries in North America. As a result of this competition, however, American lobsters along the Atlantic Coast are overfished, jeopardizing the sustenance of the fishery. In an effort to conserve the lobster population, and pursuant to statutory authority, the Secretary of Commerce promulgated regulations that, inter alia, limited the number of lobster traps permitted per fishing vessel. Lobster fishermen who reside in and whose vessels are based in Rhode Island brought suit challenging the Secretary's regulations on various grounds. Both parties moved for summary judgment. Adopting the magistrate judge's report and recommendation, the district court granted summary judgment for the Secretary of Commerce. The lobster fishermen instituted this appeal. Because we find that the district court erred in granting summary judgment for the Secretary, we reverse.

I.

Before delving into the merits, we first address the relevant regulatory history and the factual and procedural background of this case, so as to provide a context for the fishermen's claims advanced on appeal.

A. Statutory Background

1. The Magnuson-Stevens Fishery Conservation and Management Act

Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson-Stevens Act"), 16 U.S.C. §§ 1801 et seq., in 1976 to, inter alia, "take immediate action to conserve and manage the fishery resources found off the coasts of the United States." 16 U.S.C. § 1801(b)(1). Pursuant to this goal, the Magnuson-Stevens Act established an exclusive economic zone ("EEZ"), covering the waters 3 to 200 miles offshore of the United States,¹ over which the federal government claims "sovereign rights and exclusive fishery management authority over all fish, and all Continental Shelf fishery resources" located therein. Id. § 1811. To implement conservation measures within the EEZ, the Magnuson-Stevens Act directs the establishment of regional fishery management councils to prepare, monitor, and revise fishery management plans, "which will achieve and maintain, on a continuing basis, the optimum yield from each fisher." Id. § 1801(b)(4). The regional fishery management councils are designed to "enable the States, the fishing industry, consumer and environmental organizations, and other interested persons to participate in, and advise on, the establishment and administration of such [fishery management] plans" and to "take into account the social and economic needs of the States." Id. § 1801(b)(5).

Under this authority, Congress created eight regional fishery management councils (collectively "Regional Councils"), composed of state fishery officials, the National Marine Fisheries Service ("NMFS") regional director, and qualified individuals who are "knowledgeable regarding the conservation and management, or the commercial or recreational harvest, of the fishery resources of the geographical area concerned." Id. § 1852. A Regional Council's primary function is, for each fishery under its authority that requires conservation measures, to prepare a fishery management plan ("FMP") that establishes guidelines over the fishery and meets the conservation goals set forth in the Act. Id. § 1852(h)(1). These FMPs are prepared in response to the Secretary finding that a fishery is overfished, see id. § 1854(e)(1), and requesting conservation measures, see id. § 1854(e)(2). The Regional Council then submits the FMP to the Secretary of Commerce ("Secretary") for review. Id. § 1852(h)(1). If the FMP is approved, the Secretary is then responsible for enacting implementing regulations. 16 U.S.C. § 1854.

In sum, "[t]he Magnuson-Stevens Act's main thrust is to conserve the fisheries as a continuing resource through a mixed federal-state regime; the FMPs are proposed by state Councils but the final regulations are promulgated by the Secretary through the Fisheries Service." Mass. v. Daley, 170 F.3d 23, 27-28 (1st Cir.1999).

2. The Atlantic Coastal Fisheries Cooperative Management Act

The Atlantic Coastal Fisheries Cooperative Management Act ("ACFCMA" or "Atlantic Coastal Act"), 16 U.S.C. §§ 5101 et seq., was enacted in 1993 in response to Congress' concern over "disparate, inconsistent, and intermittent State and Federal regulation that has been detrimental to the conservation" of Atlantic Coastal fishery resources. Id. § 5101(a)(3). The Atlantic Coastal Act was passed "to support and encourage the development, implementation, and enforcement of effective interstate conservation and management" of the fisheries along the Atlantic Coast. Id. § 5101(b).

Pursuant to this purpose, the ACFCMA created a new management regime, wherein:

The responsibility for managing Atlantic coastal fisheries rests with the States, which carry out a cooperative program of fishery oversight and management through the Atlantic States Marine Fisheries Commission. It is the responsibility of the Federal Government to support such cooperative interstate management of coastal fishery resources.

Id. § 5101(a)(4). The Atlantic States Marine Fisheries Commission ("Atlantic States Commission" or "ASMFC") is composed of representatives from the states along the Atlantic Coast from Maine to Florida, as well as from the District of Columbia. Id. § 5102(3), (13); Pub.L. No. 77-539, 56 Stat. 267 (1942); Pub.L. No. 81-721, 64 Stat. 467 (1950).

Under the Atlantic Coastal Act, the Atlantic States Commission is responsible for preparing and adopting a coastal fishery management plan ("CMP"), 16 U.S.C. § 5104(a)(1), the equivalent of the Magnuson-Stevens Act's FMP, for coastal fishery resources, which are defined as any fisheries that move among jurisdictional waters of two or more states or one state and the EEZ, id. § 5102(2). The ASMFC, in preparing CMPs, "shall consult with appropriate [Regional] Councils to determine areas where such coastal fishery management plan may complement Council fishery management plans." Id. § 5104(a)(1).

While the focus of the Atlantic Coastal Act is on state waters and coordinating plans among the coastal states and Regional Councils, the Act addresses federal and state cooperation in coastal fisheries management by providing for the development of federal regulations to support the ASMFC's coastal fisheries management efforts. See id. § 5103. Accordingly, the Act provides that, "[i]n the absence of an approved and implemented" FMP under the Magnuson-Stevens Act, and "after consultation with the appropriate [Regional] Councils, the Secretary may implement regulations to govern fishing" in the EEZ, provided that such regulations are compatible with the CMP and are consistent with the national standards of the Magnuson-Stevens Act. Id. § 5103(b)(1).

B. Factual Background

1. The American Lobster Fishery and Initial Conservation Efforts

American lobsters are found in coastal waters ranging from Maine to North Carolina. Although NMFS has estimated that about eighty percent of the American lobster population is located in the nearshore area (i.e., within three miles of the coast, and therefore subject to state management), the remaining twenty percent are found in the EEZ. The vast majority of lobsters are fished using lobster traps; only a few percent of those fished are caught using trawls, gillnets, dredges, or by divers.

Federal management of the American lobster began in 1978 when NMFS and the states of Maine, New Hampshire, Rhode Island, Massachusetts, Connecticut, New York, Pennsylvania, Delaware, Maryland, Virginia, and North Carolina developed a FMP pursuant to the Magnuson-Stevens Act. This effort resulted in the adoption and implementation of an Interstate Fishery Management Plan ("ISFMP") for state and federal waters. In 1983, the New England Fishery Management Council ("NEFMC"), one of the eight Regional Councils established by the Magnuson-Stevens Act, produced, and NMFS implemented, a FMP for the American lobster fishery based on the ISFMP. Despite these conservation measures, the 1993 annual report of the Northeast Stock Assessment Workshop revealed that the American lobster stock was overfished.² The increase in fishing mortality rates was attributed to increased lobster trap fishing. In 1996, a panel of independent stock assessment experts echoed the 1993 findings that the American lobster was overfished and made recommendations to curb the problem.

As a result of these studies, NMFS was concerned that the current federal conservation measures under the Magnuson-Stevens Act were insufficient to protect the lobster fishery. Thus, on March 27, 1996 NMFS proposed withdrawing the lobster FMP as inconsistent with the national standards of the Magnuson-Stevens Act and issuing new regulations under the Atlantic Coastal Act. This suggestion prompted the development of Amendment 3 to the ISFMP and the rulemaking that is challenged in this appeal.

2. Amendment 3 to the...