Gulf of Maine Fishermen's Alliance v. Daley, 00-1160.

• Decision Date: 11 June 2002
• Docket Number: No. 00-1160.,00-1160.
• Citation: 292 F.3d 84
• Parties: THE GULF OF MAINE FISHERMEN'S ALLIANCE, Plaintiffs, Appellants, v. William C. DALEY, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

292 F.3d 84

THE GULF OF MAINE FISHERMEN'S ALLIANCE, Plaintiffs, Appellants, v. William C. DALEY, et al., Defendants, Appellees.

No. 00-1160.

United States Court of Appeals, First Circuit.

Heard October 5, 2001.

Decided June 11, 2002.

COPYRIGHT MATERIAL OMITTED

Stephen M. Ouellette, with whom David S. Smith and Cianciulli & Ouellette were on brief, for appellant.

James C. Curden, Acting Assistant Attorney General, with whom Lyn Jacobs, James C. Kilbourne, Andrew Mergen, and M. Alice Thurston, Environment and Natural Resource Division, United States Department of Justice, were on brief, for appellee.

Before TORRUELLA and LIPEZ, Circuit Judges, and ZOBEL,^* District Judge.

ZOBEL, District Judge.

Under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801, the Department of Commerce formulated a series of plans and regulations to protect the dwindling stock of groundfish in the Gulf of Maine. These included closing certain areas to fishing. Appellant, The Gulf of Maine Fishermen's Alliance ("GMFA"), is an association of commercial fishermen who have been severely impacted by the regulations and closures. They challenged in the district court one such set of rules and plans known as "Framework 25"; they challenge in this court the district judge's dismissal of the case on mootness grounds. We affirm.

Congress passed the Magnuson-Stevens Act in 1976 for the purpose of "promot[ing] domestic, commercial, and recreational fishing" while conserving precious fishing resources. 16 U.S.C. 1801(b)(1) and (3). The Act established eight Regional Fishery Management Councils responsible for developing fishery management plans ("FMPs") in their regions.

The New England Fisheries Management Council (the "NEFMC") promulgated the first Northeast Multispecies Fisheries Management Plan in 1985 in an effort to curb the decline of groundfish stock in the Gulf of Maine. Between 1985 and 1996, the Plan underwent a series of amendments as the groundfish population in that region continued to suffer. Finally, in 1996, with the population of cod and other groundfish on the verge of collapse, the Commerce Department instituted a new "Framework" rulemaking procedure which allowed the regional regulatory authorities to amend inshore fishing regulations "at any time," thereby responding more quickly to fluctuations in the groundfish population. Under this new, abbreviated procedure, the regional councils are able to adjust their fishing restrictions over the span of two regular monthly meetings, but they must provide timely public notice of any proposed change in regulations and invite public comment prior to and at the second meeting.

Framework 25, the first of the "Framework" regulations promulgated by the NEFMC, was developed in late 1997. Among other things, the regulation instituted a year-round closure of an inshore fishing area known as Jeffrey's Ledge, as well as a series of "rolling closures" along the Gulf of Maine which were intended to spread the impact of the fishing restrictions across several ports. These closures were to expire after three years.

On November 19, 1997, NEFMC mailed a notice to 1650 interested parties alerting them that Framework 25 would be discussed at the regular council meeting on December 9, 1997. The NEFMC also filed a meeting notice with the Office of the Federal Register on November 24, 1997, but it was not published until November 29, 1997, less than 14 days before the meeting date. Finally, on December 2, 1997, the NEFMC issued a press release about the declining groundfish stock, the proposed regulation, and the upcoming council meeting.

Several individual GMFA members did not receive notice of the meeting; however, most did, and representatives from GMFA attended the December 9, 1997 meeting. They objected to the proposed regulation on behalf of the GMFA members and presented a counterproposal which they claimed would achieve the same conservation goals at a lower cost to inshore fishing fleets. The NEFMC considered their proposal, but chose to adopt its own version of Framework 25 at the next council meeting on January 14-15, 1998.

Soon thereafter, GMFA filed this suit to enjoin the enforcement of Framework 25. The group challenged the regulation on both procedural and substantive grounds, arguing that it should be set aside because (1) the NEFMC failed to comply with statutory notice and comment requirements, and (2) Framework 25 was not the best course of action available to achieve the stated conservation goals while minimizing the impact on small inshore fleets. Both parties moved for summary judgment and while these motions were pending, the NEFMC adopted Framework 27, a new FMP which expanded upon Framework 25 by increasing the size and duration of the rolling closures. On motion of defendant, the district court then dismissed the action challenging Framework 25 as moot. It ruled that the procedural failures that had occurred in the adoption of Framework 25 were not likely to be repeated, and that the substantive challenges, to the extent that they were still relevant after the adoption of Framework 27, could be reviewed in a case challenging that FMP.

Framework 27 was adopted on May 5, 1999, after a notice and comment period which included two public hearings and timely publication in the Federal Register. GMFA filed a separate lawsuit challenging Framework 27 on substantive grounds, but did not contest the new regulation on procedural grounds because the notice and comment process had been sufficient.

Since 1999, the NEFMC has adopted several more FMPs. Two of these, Framework 31 and Framework 33, addressed and either modified or maintained the closures and groundfish trip limits in the Gulf of Maine and Jeffrey's Ledge, issues previously governed by Framework 25. GMFA does not contend that the NEFMC violated procedural rules in the adoption of these or any other FMP since Framework 25.

The questions before us are first, whether appellants' claims of invalidity are moot since Framework 25 is no longer in effect; and second, whether they fall within the narrow exception for claims that are "capable of repetition, yet evading review." S.Pac. Terminal Co. v. ICC. 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911).

We have consistently held that "a case becomes moot `when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome of the controversy.'" Thomas R.W. v. Mass. Dept. of Educ., 130 F.3d 477, 479 (1st Cir.1997) (quoting Boston and Me. Corp. v. Bhd. of Maintenance of Way Employees, 94 F.3d 15, 20 (1st Cir.1996)).

A party can have no legally cognizable interest in the outcome of a case if the court is not capable of providing any relief which will redress the alleged injury. Thus, "if an event occurs while a case is pending ... that makes it impossible for the court to grant any effectual relief whatever to a prevailing party, the [action] must be dismissed." Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (Internal citations omitted). The promulgation of new regulations and amendment of old regulations are among such intervening events as can moot a challenge to the regulation in its original form. Save Our Cumberland Mountains, Inc. v. Clark, 725 F.2d 1422, 1432 n. 27 (D.C.Cir.1984). ("There is no question that a case can be mooted by promulgation of new regulations or by amendment or revocation of old regulations."); see also Natural Res. Def. Council v. United States Nuclear Regulatory Comm'n, 680 F.2d 810, 813-815 (D.C.Cir.1982)(procedural challenge to a regulation promulgated in violation of notice and comment requirements rendered moot by repromulgation of rule in accordance with procedural requirements).

Here, the appellant asks us to invalidate Framework 25, a regulation which is no longer in effect because it has been replaced by a series of subsequent Frameworks. This court has no means of redressing either procedural failures or substantive deficiencies associated with a regulation that is now defunct. In effect, those deficiencies have been eliminated by the promulgation of new Frameworks in compliance with the applicable procedural guidelines and based on new circumstances and data concerning the groundfish stock.

GMFA argues that the provision of Framework 25 which established a year-round closure at Jeffrey's Ledge is...