Frontier Fishing Corp. v. Locke
| Decision Date | 13 May 2013 |
| Docket Number | CIVIL ACTION NO. 10-10162-DPW |
| Parties | FRONTIER FISHING CORP., Plaintiff, v. GARY LOCKE, Secretary of the United States Department of Commerce; and JANE LUBCHENCO, Under Secretary for Oceans and Atmosphere/Administrator and Deputy Under Secretary, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Plaintiff Frontier Fishing Corp. brought this action against the Secretary of the Department of Commerce and the Under Secretary for the Oceans and Atmosphere (collectively, the "Defendants"), challenging the imposition of penalties by the National Oceanic and Atmospheric Administration ("NOAA" or "Agency") for allegedly fishing in a restricted gear area in violation of the Magnuson-Stevens Fishery Conservation Management Act (the "Magnuson-Stevens Act"), 16 U.S.C. §§ 1801, and its underlying regulation, 50 C.F.R. § 648.81(j)(1).
The matter was previously appealed before me and remanded for further review. See Frontier Fishing Fishing Corp. v. Evans, 429 F. Supp. 2d 316 (D. Mass. 2006) ("Frontier I"). After extensive proceedings upon remand, the NOAA Administratoraffirmed on the merits. Having fully reviewed and considered the administrative record, I find the NOAA Administrator's Order to be supported by substantial evidence. Despite a troubling evidentiary anomaly, I have affirmed the NOAA's decision and deny Frontier Fishing's motion for summary judgment. This Memorandum sets forth the promised extended explanation for these rulings and I will direct the Clerk to enter judgment on this basis.
The alleged fishing violation occurred in an area located southeast of Nantucket, Massachusetts known as Restricted Gear Area One ("RGA1").2 (Administrative Record ("AR04")3 III, Tr. at 30.) RGA1 was closed to fishing vessels with mobile gear, such as trawls,4 from October 1 to June 15, unless the fishing vessel was transiting with its fishing gear retained on the deck and notavailable for immediate use pursuant to 50 C.F.R. § 648.14(a)(98). (Id. at 340.) During that time period, RGA1 was only open to fixed fishing gear, such as lobster pots that are marked by "high-flyers."5 (Id. at 144.) On the evening of October 16, 1997, Manuel Valente6 served as Captain and Operator of the fishing vessel Settler ("F/V SETTLER"), a vessel owned by Frontier Fishing. (Joint Stipulations of Fact ("JSF"), AR04 II, Tab 89, ¶ 2.) The F/V SETTLER left New Bedford, Massachusetts that evening on a fishing trip for monkfish. (Id. ¶ 11; AR04 IV, Tr. at 499.) Prior to departure, Captain Valente plotted7 the coordinates of RGA1 and manually entered a waypoint located outside RGA1, identified as Point D. (AR04 IV, Tr. 539; AR04 V, Respondents Ex. 6.) Captain Valente testified that the F/V SETTLER was in RGA1 that evening but only began trawling at Point D. (AR04 IV, Tr. at 530-32.) He also stated that the F/V SETTLER was on autopilot while he was working on the deck. (Id. at 537, 568.) The F/V SETTLER was engaged in fishing, as defined by the Magnuson-Stevens Act, from 21:30 through 22:08.8 (JSF, AR04 II, Tab 89, ¶ 10.) There is no dispute that the F/V SETTLER's LORAN navigational system functioned properly at all relevant times. (JSF, AR04 II, Tab 89, ¶ 13; AR04 IV, Tr. 518-19.)
On that evening, the United States Coast Guard Cutter Spencer ("USCGC SPENCER"), a 270-foot medium endurance cutter, conducted a routine patrol in international waters approximately seventy miles southeast of Nantucket. (JSF, AR04 II, Tab 89, ¶ 3; AR04 III, Tr. at 28, 30-31, 42, 83.) The USCGC SPENCER was equipped with a Digital Global Positioning System ("DGPS"), a LORAN navigational system, a gyro, and an SPS-64 radar, all of which were functioning properly at all relevant times. (AR10 V, Tab. 57, p. 8 ¶ 8; AR04 V, Agency Ex. 17, 21, 30; AR III, Tr. at 206-12, 278-79, 381.) The radar was set to a 12-mile range. (AR04 III, Tr. at 37.) Lieutenant Commander Charley Diaz was the Executive Officer and Underway Officer on Deck ("OOD"). EnsignToomey was the break-in OOD and Conning Officer. Matthew Coppola was the Quartermaster for the 20:00 to 24:00 watch on the USCGC SPENCER that night. (JSF, AR04 II, Tab 89, ¶¶ 4-6.) During the relevant time period, visibility was clear up to 8 miles. (AR04 V, Agency Ex. 12; AR04 IV, Tr. at 35.)
At approximately 21:05, Conning Officer Toomey informed Commander Diaz of a radar contact up to one nautical mile inside RGA1. (AR04 V, Agency Ex. 19; AR04 III, Tr. at 36.) Commander Diaz personally verified the radar contact using the USCGC SPENCER's bridge radar, and began tracking it. The Combat Information Center9 ("CIC") assigned contact number 817410 to the radar contact. (AR04 V, Agency Ex. 19; AR04 III, Tr. at 37.) At 21:30, the lookout reported a white light out on the horizon. (AR04 III, Tr. 170-71.) The USCGC SPENCER did not, however, take a position fix of the contact at that time. (JSF, AR04 II, Tab 89, ¶ 14.) As the USCGC SPENCER approached the light, other crew members were using binoculars and "big eyes,"11 and visuallyobserved green over white lights, which indicate a vessel traveling at night.12 (Id. at 38-39, 171.) Meanwhile, Commander Diaz directed Conning Officer Toomey to have Quartermaster Coppola plot on a chart the exact location of the radar contact. (AR04 V, Agency Ex. 19; AR04 III, Tr. at 43.) For each interval, Quartermaster Coppola was required to record the following data on the contact log: the USCGC SPENCER's own position at sea using both its LORAN navigational system and its DGPS, which specifies the vessel's location in longitude and latitude values; the radar range and bearing to the radar target; and the course and speed of the target determined by the Command Display and Control ("COMDAC") system. (AR04 V, Agency Ex. 14; AR04 III, Tr. at 43-47.) Quartermaster Coppola13 used these data to plot the positions of radar contact 8174 and concluded that, at approximately 21:40, it was inside RGA1. (AR04 V, Agency Ex. 14;AR04 III, Tr. at 43, 62, 203.) According to Commander Diaz, the radar target was positioned at that time approximately seven-tenths of one mile, or 1,400 yards, inside RGA1. (AR04 V, Agency Ex. 16; AR04 III, Tr. at 61.) While Quartermaster Coppola recorded the radar data, other crew members used an alidade14 to correlate the visual lights with the location of the radar target by determining the bearing of the lights. (AR04 III, Tr. at 42, 193-94; AR10 IV, Tab 57, p. 10 ¶ 26.) The crew of the USCGC SPENCER testified that they did not observe any other radar contacts or vessels in the area during this time period. (AR04 III, Tr. at 42, 68, 173, 184, 205.)
Shortly thereafter, but still before 21:49, Conning Officer Toomey notified the Captain of the contact inside RGA1 and the USCGC SPENCER altered its course to intercept radar contact 8174 at a high rate of speed. (AR04 V, Agency Ex. 16, 19, 37; AR04 V, Respondents Ex. 1; AR04 III, Tr. at 62-63.) As the USCGC SPENCER approached the F/V SETTLER on its starboard side, the crew of the USCGC SPENCER continued to record the range and bearings to verify that the target vessel was radar contact 8174. (AR04 III, Tr. at 64-65.) In total, radar contact 8174 was tracked fourtimes, at 21:40, 15 21:47, 16 21:52, 17 and 21:58,18 inside RGA1 traveling southwest at a speed estimated between approximately two and five knots.19 (AR04 V, Agency Ex. 14, 16, 29; AR04 III, Tr. at 113, 268.) For each plot, Commander Diaz verified the approximate position of the contact visually and on the radar screen. (AR04 IV, Tr. at 864.) Frontier Fishing disputes that these four plots indicate the position of the F/V SETTLER. The USCGC SPENCER took three other radar plots of the target vessel at 22:08,20 22:19 and 22:24, all of which were outside RGA1. (AR04 V, Agency Ex. 14.) Frontier Fishing admits that these lastthree plots were the F/V SETTLER. (AR04, Report of Pr. Gerard Ouellette, Agency Ex. 41, p. 1.)
At approximately 22:00, Commander Diaz observed that the target vessel was within approximately 1,000 yards on the starboard side of the USCGS SPENCER. (AR04 V, Agency Ex. 19; AR04 III, Tr. at 70-73, 150.) At that time, Commander Diaz and the lookout visually observed that the vessel was a stern trawler with its gear placed in the water. (AR04 III, Tr. 70-73.) The USCGC SPENCER activated its law enforcement lights, and initiated a 149-degree turn "around" the target vessel at 22:01. (AR04 V, Agency Ex. 37; AR04 III-IV, Tr. at 76, 595, 642; AR10 VII, Tab 67, Tr. at 41.) During the turn, the F/V SETTLER remained on the starboard side of the USCGC SPENCER. (AR10 VII, Tab 67, Tr. at 45-46, 56.) Commander Diaz stated that, after having completed its turn, the USCGC SPENCER ended on the port quarter of the F/V SETTLER and then paralleled it for several minutes. (AR04 IV, Tr. at 592; AR10 VII, Tab 67, Tr. at 60.)
Commander Diaz used a VHF-FM radio to hail the fishing vessel, which identified itself as the F/V SETTLER at approximately 22:05. (AR04 V, Agency Ex. 19, 20, 22; AR04 III-IV, Tr. at 82-83, 592.) The USCGC SPENCER intercepted the F/V SETTLER just outside of RGA1 at 22:08.21 (AR04 V, Agency Ex. 16;AR04 III, Tr. at 73.) From the first visual contact, at 21:40, through interception of the F/V SETTLER, the USCGC SPENCER maintained continuous visual and radar contact with radar contact 8174. (AR04 IV, Tr. at 864.) The crew of the USCGC SPENCER eventually boarded the F/V SETTLER, whose gear was still in the water. (AR04 V, Agency Ex. 26, 27; AR04 III, Tr. at 231-33.) Boarding Officer Richard Chicoine interviewed Captain Valente and his crew. (AR04 V, Agency Ex. 26.) During this interview, Captain Valente stated that the F/V SETTLER started its trawl at 21:30. (Id.; AR04 III, Tr. at 236-37.) In addition, Boarding Officer Chicoine looked at the F/V SETTLER's plotter, which he observed contained a waypoint outside of RGA1. (AR04 V, Agency Ex. 26; AR04 III, Tr. at 251-52.)
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