Frontier Fishing Crop. v. Evans

• Decision Date: 31 March 2006
• Docket Number: No. Civ.A. 04-11171-DPW.,Civ.A. 04-11171-DPW.
• Parties: FRONTIER FISHING CORP., Plaintiff, v. Donald EVANS, Secretary of the United States Department of Commerce; and Conrad C. Lautenbacher Jr., Under Secretary for Oceans and Atmosphere/Administrator and Deputy Under Secretary, Defendants.
• Court: U.S. District Court — District of Massachusetts

429 F.Supp.2d 316

FRONTIER FISHING CORP., Plaintiff, v. Donald EVANS, Secretary of the United States Department of Commerce; and Conrad C. Lautenbacher Jr., Under Secretary for Oceans and Atmosphere/Administrator and Deputy Under Secretary, Defendants.

No. Civ.A. 04-11171-DPW.

United States District Court, D. Massachusetts.

March 31, 2006.

COPYRIGHT MATERIAL OMITTED

David S. Smith, Stephen M. Ouellette, Cianciulli & Ouellette, Beverly, MA, for Plaintiff.

Anita Johnson, United States Attorney's Office, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

WOODLOCK, District Judge.

Plaintiff Frontier Fishing Corp. ("Frontier Fishing") brings this action against the Secretary of the Department of Commerce and the Under Secretary for Oceans and Atmosphere ("the Defendants") to appeal penalties imposed by the National Oceanic and Atmospheric Administration Fisheries Service ("NOAA"), a division of the Department of Commerce. Frontier Fishing challenges NOAA's assessment of a fine and permit sanction for allegedly fishing in a Restricted Gear Area contrary to regulations promulgated under the Magnuson-Stevens Fisheries Conservation and Management Act ("Magnuson-Stevens Act", 18 U.S.C. §§ 1801 et seq.). On cross motions by the parties, after denying an effort by Frontier Fishing to supplement the record before me, I find that the Secretary's Findings and Order, which rest upon a factual premise that is not tenable, must be set aside because they cannot be said to be supported by substantial evidence.

I. BACKGROUND

A. Factual History

On the evening of October 16, 1997, Manuel Valente, who is not a party to this appeal, served as Captain and Operator aboard the fishing vessel SETTLER ("F/V SETTLER"), which was owned by Frontier Fishing. The fishing vessel departed New Bedford, Massachusetts on a fishing trip targeting monkfish south of Nantucket, Massachusetts. [Administrative Record ("A.R.") II, Tab 106, p. 3 at ¶¶ 3-5; Joint Stipulations of Fact (JSF), A.R. II, Tab 89, ¶¶ 1-2; A.R. IV, Tr. at p. 499.] Captain Valente testified that he intended to fish in the Atlantis Canyon and navigated the F/V SETTLER to a manually-inputted waypoint, identified as Point D on A.R. V, Respondents Ex. 6, using his plotter. [A.R. IV, Tr. at p. 539.] The F/V SETTLER's LORAN navigational system was functioning properly at all relevant times that evening. [A.R. II, Tab 106, p. 3 at ¶ 4; JSF, A.R. II, Tab 89, ¶ 13.] Captain Valente was engaged in fishing, as defined by the Magnuson-Stevens Act throughout the time period 21:30 to 22:08, [JSF, A.R. II, Tab 89, p. 2 at ¶ 10], but he claimed that the F/V SETTLER put its gear in the water at Point D and continued southerly along the Restricted Gear Area 1 (RGA1) border. [A.R. IV, Tr. at p. 531.] Captain Valente had plotted the coordinates of RGA1 in the F/V SETTLER's plotter prior to commencing the trip.[A.R. II, Tab 105, p. 4 at ¶ 13.]

That same evening, the United States Coast Guard Cutter SPENCER ("USCGC SPENCER"), conducted a routine patrol of the waters southeast of Nantucket. [A.R. II, Tab 106, p. 3.] The visibility was clear up to eight miles. [A.R. V, Agency Ex. 12; A.R. II, Tr. at p. 35.] During the 20:00 to 24:00 watch aboard the USCGC SPENCER that night, Lieutenant Commander Charley Diaz was the Executive Officer and Underway Officer on Deck, Ensign Craig Toomey was the break-in Officer and Conning Officer, and Quartermaster First Class Matthew Coppola was the Quartermaster of the Watch. [JSF, A.R. II, Tab 89, p. 1.] At approximately 21:05, the USCGC SPENCER was traveling north, northeast when one of the officers notified Commander Diaz of a radar contact off the ship's port bow. [A.R. V, Agency Ex. 19, A.R. III, Tr. at 36.] Shortly thereafter, the lookout reported a white light on the horizon. [A.R. V, Agency Ex. 20, A.R. III, Tr. at 171.] As the USCGC SPENCER drew closer to the light, crew members were able visually to observe green over white lights indicating a vessel trawling at night. [A.R. III, Tr. at 39-42, 171; A.R. V, Agency Ex. 13.]

When the radar target was initially identified, it was assigned the contact number 8174. The evidence in the Administrative Record conflicts as to what instrument made this initial designation. At the hearing, Commander Diaz testified that the number came off the Command Display and Control (COMDAC) navigation system, but in his Offense Investigation Report he reported that the ship's Combat Information Center (CIC), which is located separately from the bridge, commenced a track on this contact and assigned the tracking number.¹ [Cf. A.R. III, Tr. at 46 and A.R. V, Agency Ex. 19, p. 1.] The ALJ accepted the latter scenario as a fact. [A.R. II, Tab 106, p. 4 at ¶ 19.]

Commander Diaz ordered his crew to start plotting the radar target. For each interval, the Quartermaster would record the following data on the contact log: the ship's own position at sea using both its Differential Global Positioning System (DGPS), which specifies the ship's location in longitude and latitude values every minute in a header log, and its LORAN navigational system; the radar range and bearing (the angle relative to true North) to the contact target;² and the course and speed of the contact target determined by the COMDAC system. [A.R. V, Agency Ex. 14; A.R. III, Tr. at p. 43-47, 203; Plaintiff's Facts, ¶¶ 18-10.] The Quartermaster used this data to plot the positions of the USCGC SPENCER and the target at discrete intervals on a chart that the crew was using to navigate from the bridge.³ [A.R. V, Agency Ex. 15; A.R III, Tr. at pp. 48-9, 204.] At the same time, other crew members were using binoculars and big eyes (oversized binoculars that allow one to see well at a fairly long distance) to visualize the lights initially observed on the horizon. [A.R. III, Tr. at pp. 39, 42.] As the Quartermaster recorded the information, other crew members correlated the visual on the lights with the location of the radar target by determining the bearing of the lights using an instrument called an alidade. [Id. at p. 42; A.R. II, Tab 106, p. 5 at ¶ 22.]

After the first radar fix of the target numbered 8174 at 21:40 (point Al on the Exhibits), which the Quartermaster determined to be inside RGA1, the USCGC SPENCER altered its course to intercept the target vessel at a high rate of speed. [A.R. II, Tab 106, p. 5 at ¶ 25.] As the USCGC SPENCER approached, the Quartermaster again plotted the vessel inside RGA1 at 21:47, 21:52, and 21:58 (points A2, A3, and A4 on the Exhibits). [Id. at ¶ 26] Commander Diaz verified each position visually and on the radar screen. [Id.; A.R. III, Tr. at 67.] The USCGC SPENCER took three other radar fixes of its target at 22:08, 22:19 and 22:24. The location of the contact at each of these times was outside the RGA1. Frontier Fishing admits that the radar fixes for the last three times were the F/V SETTLER. [A.R. V, Agency Ex. 41, p. 1.]

At approximately 22:00, Commander Diaz observed the target vessel fishing less than 1,000 yards off USCGC SPENCER's starboard side. [A.R. III, Tr. at 70; A.R. V, Agency Ex. 19.] Around 22:01, the USCGC SPENCER activated its law enforcement light and began a turn to come around the target vessel. [A.R. V, Agency Ex. 37; A.R. III, Tr. at 75, 595, 643.] Around 22:05, Commander Diaz used a radio to hail the target vessel. [A.R. V, Agency Ex. 19.] A crew member on the F/V SETTLER identified the vessel in response to the call. [Id.] The USCGC SPENCER began filming the F/V SETLER around 22:05 and intercepted⁴ the fishing vessel at 22:08 just outside RGA1. [A.R. II, Tab 106, p. 6 at ¶ 30.] USCGC SPENCER crew eventually boarded the F/V SETTLER, whose gear was still in the water. [Id., at ¶ 34.] The Boarding Officer, Gunner's Mate First Class Richard Chicoine interviewed Captain Valente and his crew and looked at the F/V SETLER'S plotter. [Id. at ¶¶ 35-36.] He issued Frontier Fishing and Captain Valente citations for fishing with mobile gear in RGA1 contrary to the regulations adopted pursuant to the Magnuson-Stevens Act.

B. Procedural History

On October 16, 1997, the USCGC SPENCER issued F/V SETTLER and its Captain a joint and several written citation for fishing with mobile gear (trawl nets) in the RGA1 defined in 50 C.F.R. § 648.81(j)(1) between October 1 and June 15 contrary to 50 C.F.R. § 648.14(a)(98). On February 28, 2000, NOAA issued a Notice of Violation and Assessment (NOVA) and Notice of Permit Sanction (NOPS) assessing a joint and several civil fine of $10,000, a 60-day permit sanction imposed on Captain Valente's Commercial Operator Permit, and a 30-day permit sanction imposed on Frontier Fishing's Northeast Multispecies Days-at-Sea Permit. [A.R. I, Tab 1.] NOAA's motion to amend the NOVA/NOPS so that the 30-day permit sanction would be imposed on Frontier Fishing's Northeast Scallop Days—at—Sea Permit instead of its Multispecies Permit, which had been revoked for reasons unrelated to this case, was granted on March 20, 2001 over Frontier Fishing's objections. [A.R. I, Tabs 17, 24.]

A hearing on the alleged violation was held on August 14 and 15, 2001 and November 19 and 20, 2002 before United States Coast Guard Administrative Law Judge Parlen McKenna (the "ALP). [A.R. II, Tab 106, p. 1.] On August 5, 2003, the ALJ affirmed NOAA's finding of a violation concluding that:

The Agency has established by a preponderance of reliable and credible evidence that Respondents Valente and Frontier violated the Magnuson-Stevens Act and its underlying regulation codified at 50 C.F.R. § 648.14(a)(98) by unlawfully fishing in Restricted Gear Area I with trawl gear between the hours of 2140 through 2158 on the evening of October 16, 1997 when the area was closed to mobile gear. [A.R. II, Tab 106, p. 8 at ¶ 10.]

The ALJ ordered 30-day permit suspensions for both Captain Valente and Frontier Fishing and increased the joint and several civil fine to $35,000. [Id., p. 22.]

Frontier Fishing brought a petition for...