Gulf Fishermen's Ass'n v. Gutierrez, 07-12903.
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
| Citation | 529 F.3d 1321 |
| Docket Number | No. 07-12903.,07-12903. |
| Parties | GULF FISHERMEN'S ASSOCIATION, Plaintiff-Appellant, v. Carlos M. GUTIERREZ, in his official capacity as Secretary of the United States Department of Commerce, National Oceanic and Atmosphere Administration, National Marine Fisheries Service, Defendants-Appellees. |
| Decision Date | 13 June 2008 |
v.
Carlos M. GUTIERREZ, in his official capacity as Secretary of the United States Department of Commerce, National Oceanic and Atmosphere Administration, National Marine Fisheries Service, Defendants-Appellees.
Gary Michael Mastry, II, Mike Mastry, Attorney & Counselor, P.A., St. Petersburg, FL, for Plaintiff-Appellant.
[529 F.3d 1322]
Stacey W. Person, U.S. Dept. of Justice, Washington, D.C., for Defendants-Appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before BARKETT, FAY and STAPLETON*, Circuit Judges.
PER CURIAM:
Appellant, the Gulf Fishermen's Association ("GFA"), appeals the district court's order granting the Appellees' motion for summary judgment for lack of jurisdiction. The district court held that the GFA's complaint was time-barred under the limitations provision of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801 et seq. (the "Act"). On appeal, the GFA argues that its suit challenging Amendment 18A to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico ("Amendment 18A") was timely under the judicial review provisions of the Act, 16 U.S.C. § 1855(f), because it was filed within thirty days after an action by the Secretary of Commerce (the "Secretary"). By its own terms, the Act permits a challenge to a regulation implementing a fishery management plan so long as it is filed within thirty days after the publication of the regulation or an action by the Secretary under that regulation. Because the GFA filed its challenge to Amendment 18A nine days after the Federal Register published a Secretarial action implementing that regulation, we find the suit was timely and reverse the district court's grant of summary judgment for lack of jurisdiction.
The Act vests in the Secretary the authority to make final rules and amendments to fishery management plans. The Secretary has delegated that authority to the National Marine Fisheries Service ("NMFS"), a division of the Department of Commerce. On August 9, 2006, the NMFS published in the Federal Register a final rule implementing Amendment 18A. See 71 Fed.Reg. 45428. Amendment 18A requires, inter alia, that owners and operators shall install and maintain a NMFS-approved Vessel Monitoring System ("VMS") on any vessel possessing a federal commercial permit to harvest and sell reef fish in the Gulf of Mexico. The initial effective date for Amendment 18A's VMS requirement was December 7, 2006.
On December 6, 2006, the Secretary, through the NMFS, delayed the effective date for implementation of the VMS requirement until March 7, 2007. See 71 Fed.Reg. 70680. The purpose of the delay was to provide affected owners and operators with additional time to comply with the VMS requirement. Id. On December 15, 2006, nine days after publication of the new implementation date, the GFA filed suit, pursuant to § 1855(f), challenging the legality of Amendment 18A's VMS requirement.
The Appellees moved to dismiss the complaint for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), claiming it was barred by the thirty-day limitations period in § 1855(f)(1). The district court denied the motion. The parties then filed cross motions for summary judgment, and the Appellees reasserted their claim that the district court lacked jurisdiction under § 1855(f)(1). This time the district court
agreed with Appellees' argument, granting summary judgment for Appellees. The court concluded that because the GFA's suit challenges the VMS requirement itself, rather than the delay of the effective date, it should have been filed within thirty days of Amendment 18A's publication on August 9, 2006.
Section 1855(f) of the Act provides for judicial review of regulations and Secretarial...
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