Conservation Law Foundation v. Evans

• Decision Date: 26 February 2004
• Docket Number: No. 02-2664.,02-2664.
• Citation: 360 F.3d 21
• Parties: CONSERVATION LAW FOUNDATION and Oceana, Plaintiffs, Appellants, v. Donald L. EVANS, et al., Defendants, Appellees, and Fisheries Survival Fund, Intervenor, Appellee.
• Court: U.S. Court of Appeals — First Circuit

360 F.3d 21

CONSERVATION LAW FOUNDATION and Oceana, Plaintiffs, Appellants, v. Donald L. EVANS, et al., Defendants, Appellees, and Fisheries Survival Fund, Intervenor, Appellee.

No. 02-2664.

United States Court of Appeals, First Circuit.

Heard October 8, 2003.

Decided February 26, 2004.

Eric A. Bilsky with whom Sylvia F. Liu and Roger M. Fleming were on brief for appellants.

Anna T. Katselas, Attorney, U.S. Department of Justice, Environment & Natural Resources Division with whom Thomas L. Sansonetti, Assistant Attorney General, Environment & Natural Resources Division, Jeffrey Bossert Clark, Deputy Assistant Attorney General, Environment & Natural Resources Division, Mauricia Baca, John Almeida, Todd S. Kim, Attorneys, Environment & Natural Resources Division and Gene S. Martin, Office of Regional Counsel, National Oceanic and Atmospheric Administration (Of Counsel), were on brief, for appellees Donald L. Evans, et al.

David E. Frulla with whom Shaun M. Gehan, Brand & Frulla, P.C., H. Reed Witherby and Smith & Duggan, LLP, were on brief, for intervenor, appellee Fisheries Survival Fund.

Before LIPEZ, Circuit Judge, CAMPBELL, Senior Circuit Judge, and HOWARD, Circuit Judge.

HOWARD, Circuit Judge.

Two conservation groups challenge adverse summary judgment rulings in an action alleging violations of the Magnuson-Stevens Fishery Conservation and Management Act (the Magnuson-Stevens Act), 16 U.S.C. §§ 1851, 1853, 1854, and the Administrative Procedure Act (the "APA"), 5 U.S.C. §§ 553, 706. Conservation Law Foundation ("CLF") and Oceana (f/k/a American Oceans Campaign) allege that in implementing Framework Adjustment 14 to the Atlantic Sea Scallop Fishery Management Plan ("Framework 14"), the National Marine Fisheries Service ("NMFS") and other federal defendants¹ failed to meet their procedural and substantive obligations under governing law. The district court found that Framework 14 was lawful. We affirm.

I. Factual and Procedural Background

On May 31, 2001, the plaintiffs initiated an action challenging Framework 14, a rule that adjusted certain restrictions on sea scallop fishing in the Atlantic coastal waters.² The plaintiffs challenged Framework 14 on both substantive and procedural grounds. First, they alleged that NMFS failed to meet its substantive management obligations under the Magnuson-Stevens Act, 16 U.S.C. §§ 1851(a)(9), 1853(a)(7) & (a)(11), and the APA.³ Second, they claimed that NMFS's failure to provide a 15-day public comment period violated the Magnuson-Stevens Act, 16 U.S.C. § 1854(b), and the APA, 5 U.S.C. §§ 553, 706(2)(D). The plaintiffs asked the district court to declare Framework 14 in violation of the governing statutes and to "remand" it with the requirement that NMFS remedy the alleged deficiencies. They also sought their fees, costs, and expenses.

In September 2001, the parties submitted to the district court a joint proposal for briefing and discovery. See Local Rule 16.1. In the proposal, the plaintiffs requested that the court expedite the case pursuant to 16 U.S.C. § 1855(f)(4).⁴ Over the next few months, the parties filed cross motions for summary judgment.⁵ The district court heard argument on the motions in May 2002. By September 2002, no decision had issued, and the plaintiffs renewed their request to expedite the case, alerting the court to the fact that Framework 14 would expire by its own terms in March 2003.

On October 31, 2002, the district court denied the plaintiffs' motion for summary judgment and granted the defendants' motions. See Conservation Law Found. v. United States Dep't of Commerce, 229 F.Supp.2d 29 (D.Mass.2002). The court found that the Magnuson-Stevens Act did not mandate public comment for a rule such as Framework 14 and that the public comment period required under the APA had been waived for good cause. See id. at 34 n. 10. The court also concluded that NMFS had considered the substantive issues raised by the plaintiffs and did not act arbitrarily and capriciously in implementing Framework 14. See id. at 34. The plaintiffs appealed. On March 1, 2003, while this appeal was pending, Framework 14 was superseded by Framework 15.⁶

II. Analysis

A. Mootness

We turn first to the question of mootness. See Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) ("The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated."). The defendants contend that the expiration of Framework 14 rendered this case moot. See Gulf of Maine Fishermen's Alliance v. Daley, 292 F.3d 84, 88 (1st Cir.2002). As the parties invoking the mootness doctrine, the defendants bear a "heavy" burden in attempting to establish its applicability. Mangual v. Rotger-Sabat, 317 F.3d 45, 61 (1st Cir.2003). And should they merely cease voluntarily the conduct originally challenged, they must demonstrate that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Id. (citing United States v. Concentrated Phosphate Export Ass'n, Inc., 393 U.S 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)).

The defendants attempt to carry this burden with respect to both of the plaintiffs' claims by citing to Gulf of Maine, a case in which we affirmed the district court's finding of mootness where a challenged framework affecting groundfish was superseded while cross motions for summary judgment were pending. See 292 F.3d at 87. In that case, an organization of commercial fishermen alleged that a framework was both procedurally deficient for lack of adequate notice and comment and substantively unlawful because of its closure of inshore fishing areas. See id. The appellant urged us to find that the alleged harms continued, despite the promulgation of subsequent frameworks, and that the issues therefore were not moot. See id. at 88. We rejected that argument, concluding that the promulgation of a new framework in compliance with procedural guidelines and based on new data rendered the challenges to the superseded framework moot. See id.

CLF and Oceana respond with arguments similar to those made by the appellant in Gulf of Maine. As to their substantive challenge to Framework 14, they contend that the harms caused by NMFS's failure to close the four fishing areas were perpetuated through Framework 15. This, they say, means that their substantive claim remains live, and for support they rely heavily on Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). There, a challenged ordinance that accorded preferential treatment to minority businesses for city contracts was repealed and replaced with a modified version weeks after the Supreme Court had granted certiorari. See id. at 660-61, 113 S.Ct. 2297 (noting three alterations in ordinance, including adoption of five- to sixteen-percent "participation goals" in place of ten percent "set-aside" of city contracts earmarked for minority businesses). These modifications were not enough to render the controversy moot. The Supreme Court concluded that "[t]here is no mere risk that [the city] will repeat its allegedly wrongful conduct; it has already done so." Id. at 662, 113 S.Ct. 2297. The analogy to Northeastern Florida is useful here.

On its face, Framework 15 is largely an extension of Framework 14. See Fed.Reg. 9580, 9581 (Feb. 28, 2003) (noting that Framework 15's only modification of the management measures that previously had been in effect was an increase in certain limits on the amount of scallops that could be held on board a fishing vessel). And as a practical matter, it appears that Framework 15 was designed merely to maintain the status quo until NMFS could complete a more comprehensive overhaul of its management measures through an amendment to the scallop FMP.⁷ NMFS states that Framework 15 is based on entirely new data about the condition of the scallop resource, NMFS Br. at 23, 27-28; cf. Gulf of Maine, 292 F.3d at 88, but it identifies no portion of the record to support this assertion. See Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 28 (1st Cir. 2003) (declining to consider argument where litigant "ma[de] no attempt either to marshal the pertinent facts or to engage in reasoned analysis"); see also United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."). In any event, we have studied the record with care and cannot tell whether and to what extent Framework 15 was developed with new underlying data. Consequently, we cannot say that the challenged conduct will not recur or has not already recurred. See Northeastern Florida, 508 U.S. at 662, 113 S.Ct. 2297.

Whether we characterize the expiration of Framework 14 as a "voluntary cessation" of conduct by NMFS subject to the same standards as in Northeastern Florida, the core question Article III compels us to ask is whether our adjudication of the issue can grant meaningful relief. Cf. Gulf of Maine, 292 F.3d at 88. Here, it appears that the same allegedly harmful scheme continues. No matter how the issue is framed, we have no difficulty concluding that, where a challenged regulation continues to the extent that it is only superficially altered by a subsequent regulation, we are capable of meaningful review. See Schall v. Martin, 467 U.S. 253, 257 n. 2, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) (concluding that changes in general statutory scheme did not moot challenge where contested provision remained the same); Brockington v. Rhodes, 396 U.S. 41, 43, 90 S.Ct. 206, 24 L.Ed.2d 209 (1969) (per curiam) (finding that suit attacking requirement that nominating petitions be signed by seven percent of voters on ground that no more than one percent could be required was not mooted by new statute reducing...