Gulf of Maine Trawlers v. US

• Decision Date: 30 November 1987
• Docket Number: 86-0266P and 87-0125P.,Civ. No. 86-0264P
• Citation: 674 F. Supp. 927
• Parties: GULF OF MAINE TRAWLERS and Zenon Gogola, Plaintiffs, v. UNITED STATES of America, Defendant. TERESA MARIE, INC., and James A. Odlin, Plaintiffs, v. UNITED STATES of America, Defendant. UNITED STATES of America, Plaintiff, v. The PROCEEDS FROM the SALE OF 30,840 POUNDS OF FISH, TO WIT: $11,089.15, Defendant.
• Court: U.S. District Court — District of Maine

674 F. Supp. 927

GULF OF MAINE TRAWLERS and Zenon Gogola, Plaintiffs, v. UNITED STATES of America, Defendant.

TERESA MARIE, INC., and James A. Odlin, Plaintiffs, v. UNITED STATES of America, Defendant.

UNITED STATES of America, Plaintiff, v. The PROCEEDS FROM the SALE OF 30,840 POUNDS OF FISH, TO WIT: $11,089.15, Defendant.

Civ. Nos. 86-0264P, 86-0266P and 87-0125P.

United States District Court, D. Maine.

November 30, 1987.

COPYRIGHT MATERIAL OMITTED

Martin R. Johnson, Donna M. Katsiaficas, Portland, Me., for plaintiffs.

Richard S. Cohen, David R. Collins, Portland, Me., Charles R. Julliand, Gloucester, Mass., for defendant.

GENE CARTER, District Judge.

MEMORANDUM OF DECISION AND ORDER

These related actions arise from the seizure of the catch of two fishing vessels for violations of the Magnuson Fishery Conservation and Management Act, 16 U.S.C. § 1801 et seq. (Magnuson Act). Gulf of Maine Trawlers, Inc., and Zenon Gogola, plaintiffs, are the owners of the F/V Jessica & Lisa. Teresa Marie, Inc., and James Odlin, plaintiffs, are the owners of the F/V Teresa Marie. On August 27, 1986, Plaintiffs filed separate, though substantially similar, complaints against the United States alleging that the Government's seizure and subsequent sale of their cargo constituted an unreasonable search and seizure, violated the Magnuson Act, and did not afford them adequate due process.¹ The United States subsequently filed a forfeiture action in this Court on April 29, 1987, seeking the proceeds from the sale of the fish in the hold of the F/V Jessica and Lisa. A separate forfeiture action has been filed in the District Court of Massachusetts for the proceeds from the sale of fish from the hold of the F/V Teresa Marie. In the forfeiture action before this Court, the owners of the F/V Jessica & Lisa have opposed the Government and alleged various affirmative defenses relating back to their constitutional claims filed earlier in this Court. They have also challenged the jurisdiction of this Court to hear the in rem forfeiture proceeding, arguing that the sale of the fish eliminated the res on which jurisdiction is based.

I.

The Magnuson Act established a Fishery Conservation Zone (FCZ)² in the waters off the United States coastline. The FCZ runs from the outer limits of state waters to 200 nautical miles. 16 U.S.C. § 1811. All fish except highly migratory species are subject to the exclusive fishery management authority of the United States, which authority is administered by the Secretary of Commerce. 16 U.S.C. §§ 1812, 1813. The Secretary promulgates regulations necessary to carry out management plans for each of the FCZ's eight regions. 16 U.S.C. § 1855(c).

The F/V Jessica & Lisa was boarded by agents of the National Marine Fisheries Service on July 1, 1986. The vessel was within FCZ waters and was found to be using a net mesh size that did not conform to regulations prescribed for the portion of the Gulf of Maine and George's Bank known as the large-mesh area, 50 C.F.R. § 651.20(a).³ The vessel also contained undersized Atlantic Cod and Haddock, in violation of 50 C.F.R. §§ 651.7(d), 651.23(a)(1).⁴

The F/V Teresa Marie was boarded on July 22, 1986, by Coast Guard personnel. The vessel was within the large-mesh area of FCZ waters. Although its trawl net at the cod end had a legal mesh size of 5.79 inches, the vessel was found to be using a cod net liner that diminished the mesh size to 4.75 inches in the cod end, thereby violating 50 C.F.R. § 651.20(d)(2).

After these violations were found, the catches were seized and the vessels unloaded at respective ports in Maine and Massachusetts.⁵ The fish were sold and the proceeds deposited in a suspense account with the National Oceanic and Atmospheric Administration (NOAA), pending administrative or judicial proceeding. 15 C.F.R. § 904.505(a), (d).⁶

Plaintiffs filed Standard Form 95's (Claim for Damage, Injury, or Death) with the National Marine Fisheries Service, Enforcement Division in Portland, on August 27, 1986, and filed complaints against the United States on August 29. NOAA sent notices of violation and penalty to Plaintiffs on October 9, 1986.⁷ Plaintiffs requested an administrative hearing on November 5, 1986, and consented to a delay of the Government's filing of forfeiture proceedings pending conclusion of the related administrative civil penalty proceedings. A hearing was scheduled for April 6, 1987, but both Plaintiffs reached a settlement agreement in April that obviated the need for such a hearing. By that agreement, Plaintiffs stipulated to the facts constituting the FCMA violations and agreed to pay civil penalties.⁸ The United States filed a forfeiture action against the owners of the F/V Jessica & Lisa on April 28, 1987. By order dated April 30, the Court approved the sale of the fish, the terms of the sale, and ordered the proceeds deposited with the Court pending disposition of the action. The proceeds from the catch were so deposited on May 6, 1987.

II.

Plaintiffs moved for summary judgment on their complaint against the Government on February 18, 1987. The Government answered that motion with its own summary judgment motion on May 27, 1987. This Court's jurisdiction over those motions is conferred by 28 U.S.C. §§ 1331, 2201, and 2202, and also by the exclusive jurisdiction provision in the Magnuson Act, 16 U.S.C. § 1861(d).⁹ Exclusive jurisdiction over the Government's forfeiture action is also conferred by the FCMA, 16 U.S.C. §§ 1860(b), 1861(d).¹⁰

The parties have since stipulated to a trial record and have agreed to the matter being resolved on the merits by the Court, rather than leaving it in the posture of proceeding on cross-motions for summary judgment. See Boston Five Cents Savings Bank v. Secretary of Department of Housing and Urban Development, 768 F.2d 5, 11-12 (1st Cir.1985). Oral argument was heard on November 26, 1987.

Plaintiffs challenge the jurisdiction of this Court to hear the forfeiture action, arguing that the sale of the fish without court order constituted a release of the res and thereby precludes this Court's taking in rem jurisdiction. Under the Secretary's regulations, a court has in rem jurisdiction over the proceeds of the sale in the same manner as it would over the original catch itself. 15 C.F.R. § 904.505(d).¹¹ The proceeds from the initial sale are to be deposited in a NOAA suspense account or submitted to the appropriate court once forfeiture proceedings are initiated. Id. This was the procedure followed in the present case.

To support their position that the regulations deprive the Court of in rem jurisdiction, Plaintiffs cite dictum from a passage in United States v. Marunaka Maru No. 88, 559 F.Supp. 1365 (D.Alaska 1983), in which the court stated that "release of the res would divest the court of jurisdiction to proceed." Id. at 1369. That court was discussing whether or not a court would be deprived of in rem jurisdiction when a vessel was released on bond to its owner prior to its having been formally arrested by judicial process. In that case, no warrant of arrest had been issued at the time the vessel was released on bond, and the defendants had argued that its release constituted a release of the res and precluded that court's taking in rem jurisdiction in the later forfeiture action for the vessel. See Fed.R.Civ.P. Rule C(3) (Supplemental Rules for Certain Admiralty and Maritime Claims); accord, United States v. Kaiyo Maru No. 53, 699 F.2d 989, 998-999 (9th Cir.1983). The court in Marunaka Maru held that a claimant expressly consents to a court's continuing in rem jurisdiction when he requests the court to exercise jurisdiction under the act to order the vessel released on bond, and that consent is unaffected by whether the vessel is formerly arrested by judicial process at the time the bond is issued.¹²

In the present case, the issue of consent has not been raised. Since there had been no arrest by judicial process at the time of sale, and no court order for the sale itself, Plaintiffs argue that the Court did not have proper jurisdiction over the res at the time of its release and, therefore, the sale of the fish was an unconditional release of the res preventing this Court from later taking in rem jurisdiction over the fish in the Government's forfeiture action. Essentially, Plaintiffs' position would require court approval prior to the sale of the fish, a requirement they also argue is implicit in the Magnuson Act itself.¹³

Plaintiffs' argument does not give adequate weight to the explicit wording of the Magnuson Act itself. The Act specifically provides for district court jurisdiction over the "fish (or fair market value thereof)" in civil forfeiture actions. 16 U.S.C. § 1860(a), (b). The phrase "or the fair market value thereof" was added by amendment in 1983,¹⁴ and was intended to allow the Secretary, through implemented regulations, to

seize the fair market value of fish on board a fishing vessel which has been found to have violated the provisions of section 307 of the Act. This change has been made due to the fact that the current provision allowing only the seizure of the fish itself is often impossible to accomplish in timely fashion; thus the fish have no real value.

H.R.Rep. No. 97-549, 97th Cong., 2d Sess. 32, reprinted in 1982 U.S.Code Cong. & Admin.News 4320, 4345.

Unlike the case in Marunaka Maru, no implied consent need be found for this Court's in rem jurisdiction in the present forfeiture action. The amended language in section 1860(a) provides for in rem jurisdiction over both the fish and their fair market value. It follows that both the fish and the proceeds of their sale are adequate res over which the Court may exercise jurisdiction, and that — for jurisdictional purposes—a warrant or other judicial process need not have been issued by this Court prior to the seizure of the proceeds by authorized officials under the act. See 16 U.S.C. § 1861(b)(1)(A)(iv). On April...