Frontier Fishing Corp. v. Pritzker
| Decision Date | 24 October 2014 |
| Docket Number | No. 13–1776.,13–1776. |
| Citation | 770 F.3d 58 |
| Parties | FRONTIER FISHING CORP., Plaintiff, Appellant, v. Penny PRITZKER; Kathryn D. Sullivan, Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Stephen M. Ouellette, for appellant.
Christine J. Wichers, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellees.
Before THOMPSON, KAYATTA, and BARRON, Circuit Judges.
The National Oceanic and Atmospheric Administration (“NOAA”) determined Frontier Fishing liable for trawling in a restricted gear area in violation of regulations promulgated under the Magnuson–Stevens Fishing Conservation and Management Act, 16 U.S.C. §§ 1801 –1891d. NOAA fined Frontier Fishing $10,000 and suspended one-quarter of Frontier Fishing's seasonal fishing days under its Northeast Scallop Days–at–Sea Permit. Frontier Fishing appeals, arguing that the record lacks substantial evidence for a rational finding that its vessel trawled in the restricted area, and challenging other aspects of the agency proceedings. Largely for reasons given by the district court, we affirm.
The lengthy background out of which this appeal arises covers nearly seventeen years and is impressively reviewed in the most recent district court opinion. See Frontier Fishing Corp. v. Locke, No. 10–10162, 2013 WL 2090551 . We repeat only as much as is necessary to explain our ruling.
On the evening of October 16, 1997, the crew of the Coast Guard cutter Spencer detected a radar contact up to one mile inside Restricted Gear Area 1, southeast of Nantucket. From October 1 to June 15, Restricted Gear Area 1 was open only to fixed fishing gear, like lobster traps marked with “high flyers.”1 The applicable regulations prohibited the use of mobile fishing gear, like trawl nets. See 50 C.F.R. § 648.14(a)(98) (1997).
Following the crew's initial report of a contact in the restricted area, Spencer's commander, Charley Diaz, verified the contact on bridge radar, and assigned identification number 8174 to the object indicated by the radar. At 21:30, a Coast Guard lookout observed a white light on the horizon. Crew members thereafter maintained visual contact with the lit object using oversized binoculars known as “big eyes.” As the Coast Guard cutter got closer, crew members observed green over white lights, indicating a fishing vessel trawling at night. Commander Diaz then directed his crew to plot the radar contact's location. At 21:40, the Coast Guard proceeded to record the following data: Spencer's own position using its navigational system and DGPS, which determines and records location in longitude and latitude; the radar range and bearing of target 8174; and the course and speed of target 8174 as determined by the Command Display and Control system. Using this data, the Coast Guard plotted the location of radar contact 8174 at 21:40 approximately seven-tenths of a mile inside the restricted area.
In addition to recording data on electronic equipment, other members of Spencer's crew simultaneously used an alidade2 to determine by sight the bearing of the observed lights. Commander Diaz himself checked the approximate position of the contact both visually and through radar equipment. The Coast Guard crew did not detect by sight or radar any other vessels in the area at that time. Shortly after determining that the 21:40 radar contact was within the restricted gear area, the Coast Guard altered course to intercept the target at a high rate of speed. The Coast Guard ultimately recorded range and bearing data for radar contact 8174 three additional times showing it within the restricted area, at 21:47, 21:52, and 21:58. We note that the various readings estimate location at the time of the reading without implying that contact 8174 moved in a straight line from one location to the other.
At 22:00, Spencer closed on a fishing vessel that all parties agree was Settler, a 90–foot trawler owned by Frontier Fishing, which had departed New Bedford, Massachusetts earlier that day on a monkfish trawling expedition. Commander Diaz estimated that Settler was 1,000 yards off Spencer's starboard side at 22:00. Commander Diaz visually confirmed that Settler had mobile fishing gear deployed off its stern. Spencer then quickly turned around Settler and ended up on its port quarter, where Spencer remained parallel to Settler for several minutes. It is undisputed that this interception occurred just outside the restricted gear area, at approximately 22:08. The Coast Guard maintained continuous visual contact with the lit object it had observed throughout its approach that night.
The Coast Guard subsequently issued Settler a citation for violating regulations promulgated under the Magnuson–Stevens Act. See 50 C.F.R. § 648.14(a)(98) (1997). Two years later, NOAA issued Frontier Fishing a Notice of Violation and Assessment and a Notice of Permit Sanction.
During the seventeen years since the Coast Guard cited Settler, Frontier Fishing has consistently denied that Settler was actually in the restricted area. Central to Frontier Fishing's position is the radar contact recorded at 21:58 just inside the restricted area. That location is simply too far from the location that Spencer's captain estimated observing Settler two minutes later, at 22:00 (approximately 1,000 yards from Spencer ). Frontier Fishing built two arguments based on this discrepancy: it must have been another vessel that the Coast Guard was tracking by radar (the phantom vessel theory); or, in any event, any unreliability of the 21:58 readings rendered unreliable the other range and bearing readings, most crucially those used to plot the 21:40 contact upon which the citation rests.
The adjudication of Frontier Fishing's challenge based on these arguments worked its way through an administrative law judge, to the NOAA administrator, to the district court (which remanded for de novo review), Frontier Fishing Corp. v. Evans, 429 F.Supp.2d 316, 335 (D.Mass.2006), back through the same administrative law judge, to the administrator again, back for a de novo review by a different administrative law judge, to the administrator for a third time, and finally to the district court again, which this time affirmed NOAA's ultimate finding of liability.
In finding Frontier Fishing liable, NOAA rested largely on the fact that the evidence was clear that a vessel was in the restricted area at 21:40, and Settler, viewed in the direction of the radar sightings and eventually intercepted just outside the restricted area, was the only vessel that could have been the contact identified at 21:40. In reaching that finding, NOAA agreed with Frontier Fishing that the 21:58 contact could not have represented an accurate depiction of where Settler was located at that time. NOAA nevertheless rejected the hypothetical explanation for the 21:58 contact proffered by Frontier Fishing: that there was a second phantom vessel visible to radar but not by sight, and that Settler itself was invisible to radar although visible by sight. Instead, NOAA opted for the explanation that the 21:58 contact was Settler, albeit erroneously located. In so reasoning, NOAA noted that the 21:40 plot placed a vessel well inside the area, that the parties agreed that “something” spotted by the radar was in the area at the time, that the Coast Guard crew visually observed a lighted vessel in the direction of the 21:40 contact, and that any suggestion that the Coast Guard somehow missed a second vessel throughout the entire sequence of events was simply not credible given Spencer's radar capabilities and the observations of both the Settler and Spencer crews.
The Magnuson–Stevens Act incorporates the standard of review from the Administrative Procedure Act (APA), and thus we look for substantial evidence to support the agency's final decision. See 16 U.S.C. § 1858(b) ; 5 U.S.C. § 706(2) ; N. Wind, Inc. v. Daley, 200 F.3d 13, 17 (1st Cir.1999). Under the substantial evidence test, “the agency's decision is presumed valid.” N. Wind, 200 F.3d at 17. “ ‘[I]t requires not the degree of evidence which satisfies the court that the requisite fact exists, but merely the degree that could satisfy a reasonable factfinder.’ ” Penobscot Air Servs., Ltd. v. Fed. Aviation Admin., 164 F.3d 713, 718 (1st Cir.1999) (quoting Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522 U.S. 359, 377, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998) ). The agency's findings must be set aside when the record before the court “ ‘clearly precludes the [agency's] decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence.’ ” Penobscot, 164 F.3d at 718 (quoting Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 490, 71 S.Ct. 456, 95 L.Ed. 456 (1951) ).
Our review of the district court's decision is de novo, because the district court reviewed only the administrative record and thus was “in no better position to review the agency than the court of appeals.” Puerto Rico v. United States, 490 F.3d 50, 61 (1st Cir.2007) (internal quotations and citations omitted).
Before addressing the substance of Frontier Fishing's arguments on the matter of Settler's location, we address two procedural arguments preserved by Frontier Fishing and pressed on appeal.
During discovery prior to the very first hearing, NOAA produced to Frontier Fishing a one-page document that consisted of a single handwritten entry on a form like the Coast Guard's radar tracking log form. Dated October 16, 1997, with a time entry of “10:19”, the document listed a “track” of “8174”, “remarks” of “Settler Pts” and navigation data that Frontier Fishing's expert...
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