Hall v. Evans
| Decision Date | 14 August 2001 |
| Docket Number | No. CIV. A. 99-549L.,No. CIV. A. 00-338L.,No. CIV. A. 99-550L.,No. CIV. A. 00-436L.,CIV. A. 99-549L.,CIV. A. 99-550L.,CIV. A. 00-338L.,CIV. A. 00-436L. |
| Citation | 165 F.Supp.2d 114 |
| Court | U.S. District Court — District of Rhode Island |
| Parties | Gary HALL, Block Island Lobster Co. Inc. and Canyon Industries, Inc., v. The Honorable Donald EVANS, as he is Secretary of Commerce.<SMALL><SUP>1</SUP></SMALL> F/V Reaper, Inc. and Gregory N. Duckworth, v. Donald Evans, in his official capacity as Secretary of Commerce; and Penny Dalton, in her official capacity as Director of the National Marine Fisheries Service. Lund's Fisheries, Inc., Export, Inc., Frances Ann, Inc. and F/V Monica, Inc., v. The Honorable Donald Evans, as he is the Secretary of Commerce. William P. McCann and Captain W.P. McCann, Inc., v. The Honorable Donald Evans, as he is the Secretary of Commerce. |
Timothy J. Dodd, Providence, RI, Stephen M. Ouellette, Cianciulli & Ouellette, Beverly, MA, Mark A. McSally, Kelly, Kelleher, Reilly & Simpson, Providence, RI, for plaintiffs.
Brian Clifford Newberry, Hinckley, Allen & Snyder, Providence, RI, Steven E. Snow, Partridge, Snow & Hahn, Providence, RI, for defendants.
This Court agrees with most of the conclusions and opinions contained in Magistrate Judge Robert W. Lovegreen's Report and Recommendation dated April 13, 2001. The Court agrees with the Magistrate Judge's conclusion that the gear differential violates National Standards Two and Five. Under the regulations adopted, vessels that use trawl gear can land up to 1500 lbs. tail-weight per day at sea, while vessels that do not use trawl gear (including gillnetters) may only land and possess up to 300 lbs. tail-weight of monkfish per day at sea. The Court agrees with the Magistrate Judge that National Standard Two has been violated because the Secretary has not utilized the best scientific information available in establishing the 300 lb. limit for non-trawlers. The Court also agrees that National Standard Five has been violated because there is no documentation that the gear differential results in an equitable proportional reduction for each category.
In addition, this Court concludes (as opposed to the Magistrate Judge) that National Standard Four has also been violated because there is no evidence in this record that this allocation is fair and equitable as to all monk fishermen.
While some form of gear differential may be supportable, there is no scientific evidence in this record and, in fact, no evidence at all that supports this grossly disparate gear differential. Therefore, the imposition of the 300 lb. limit on nontrawlers is arbitrary and capricious. It is hereby vacated and all monk fishermen will be governed by the 1500 lb. limit until such time as the Secretary establishes a fair and equitable gear differential or otherwise revises the catch limit for all monk fishermen.
Judgment shall be entered for all the plaintiffs in these four consolidated cases to that effect forthwith.
It is so ordered.
Dim moon-eyed fishes near
Gaze at the gilded gear
And query: `What does this vaingloriousness
down
here?'
Thomas Hardy, The Convergence of
the Twain
On November 5, 1999, plaintiffs F/V Reaper, Inc. and Duckworth2 ("Reaper plaintiffs") filed a three-count complaint and plaintiffs Hall, Block Island Lobster Company, Inc., and Canyon Industries, Inc.3 ("Hall plaintiffs") filed a six-count complaint in this court seeking judicial review4 of rules promulgated by defendants regarding the "Monkfish Fishery Management Plan" ("MFMP").5 On November 8, plaintiffs Lund's Fisheries, Inc., Export, Inc., Frances Ann, Inc. and F/V Monica, Inc. ("Lund's Fisheries plaintiffs") filed a six-count action in the United States District Court for the District of New Jersey, which was subsequently transferred to this court on July 10, 2000. Plaintiffs McCann and Captain W.P. McCann, Inc. ("McCann plaintiffs") filed their original six-count complaint on November 5, 1999, and an amended six-count complaint on November 18, 1999, both in the United States District Court for the District of Massachusetts. Venue in that case was transferred to the District of Rhode Island on August 29, 2000, and on October 13, 2000, all four cases were consolidated by Consent Order. The consolidated plaintiffs moved for summary judgment on October 20, 2000 ("Plaintiffs' Motion") (the Reaper plaintiffs joined in the Memorandum submitted by the other plaintiffs on November 9, 2000), and filed a motion to further supplement (sic) the record contemporaneously. Defendants cross-moved for summary judgment on December 1, 2000 ("Defendants' Motion"). Plaintiffs then filed a reply brief on December 21, 2000 ("Plaintiffs' Reply"), and at the request of the court, the parties filed a document entitled "Stipulated to Excerpts from Administrative Record" ("Record") on January 3, 2000. After prompting by this court, defendants filed a summary judgment memorandum errata on February 7, 2000. In essence, plaintiffs in all four cases contend that certain MFMP regulations regarding landing limits violate various provisions of the United States Code.
This matter has been referred to me for preliminary review, findings, and recommended disposition. 28 U.S.C. § 636(b)(1)(B); Local Rule of Court 32(c). A hearing was held on February 21, 2001. After examining the memoranda submitted, listening to the arguments of counsel and conducting my own independent research, I recommend that plaintiffs' motion for summary judgment be granted as to Counts One, Three and Four of the Hall Complaint; Counts One, Three and Four of the Lund's Fisheries Complaint; and Counts One, Three and Four of the McCann Complaint. I conversely recommend that the court deny plaintiffs' motion for summary judgment as to all other Counts in all four Complaints.6 I also recommend that defendants' motion for summary judgment be granted as to all Counts of the Reaper complaint; Counts Two, Five and Six of the Hall Complaint; Counts Two, Five and Six of the Lund's Fisheries Complaint; and Counts Two, Five and Six of the McCann Complaint. Finally, I recommend that the regulations 50 C.F.R. § 648.94(b)(2)(iii) and 50 C.F.R. § 648.94(b)(2)(v) be set aside pending further proceedings based on the regulations' failure to comport with National Standard Two of the Magnuson Stevens Act. Alternatively, I recommend that the court remand the regulations to the Secretary of Commerce and require that the Secretary or his designees provide evidence that the regulations comport with National Standard Five of the Magnuson-Stevens Act.
The monkfish, or Lophius americanus (also called goosefish or anglerfish, and sometimes culinarily derided as "the poor man's lobster"), is the essential subject of this action. See Record, 2365. The monkfish is ubiquitous in the Northwest Atlantic Ocean and is also found from the Gulf of St. Lawrence south to Cape Hatteras, North Carolina. It is known to inhabit waters ranging from the tide-line to depths of 840 meters and is comfortable in a wide range of water temperatures. The adult animal tends to reside on the ocean floor, hovering over a range of substrate types including hard sand, gravel, broken shell and soft mud. See Record, 7316. In years past, monkfish were landed as incidental "bycatch by trawlers in the groundfish and scallop industry." Defendants' Motion, P. 3. More recently, however, as the market for monkfish has increased, monkfish have been targeted directly by fishing vessels, and the stocks as well as the average size and weight of the monkfish have diminished substantially. Record, 7318. On September 30, 1997, the monkfish fishery was determined to be overfished7 on the basis of inadequate stock level, prompting a number of remedial measures, including the ones at issue in this case, undertaken pursuant to the Magnuson-Stevens Fishery Conservation and Management Act of 1976. Record, 7251; see 16 U.S.C. §§ 1801 et seq.
The Reaper plaintiffs are fishers who use sink gillnets, fixed gear nets that lie on the ocean bottom for a time before they are hauled aboard a ship. They possess limited access permits to engage in multispecies and monkfish fishing in the Atlantic Ocean. The MFMP governs the distribution of these permits and any vessel applying to engage in monkfish fishing must meet the criteria set forth in the MFMP. Plaintiffs contend that they qualify for a Category A permit as defined by 50 C.F.R. § 648.4 (1999).8
The MFMP, as set forth in 50 C.F.R. § 648.94(b)(2)(iii) (1999), authorizes Category A vessels that use trawl gear to land up to 1,500 pounds tail weight per day at sea. Category A vessels that do not use trawl gear, however, may only land and possess up to 300 pounds of tail weight of monkfish per day at sea. See 50 C.F.R. § 648.94(b)(2)(v) (1999). Because plaintiffs do not use trawl gear, the MFMP restricts them from landing or possessing more than 300 pounds of tail weight of monkfish per day at sea.
In Count One of their complaint, the Reaper plaintiffs allege that 50 C.F.R. § 648.94 violates 16 U.S.C. § 1851(a)(4), which provides:
Conservation and management measures shall not discriminate between residents of different states. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fisherman; (B) reasonably calculated to promote conservation; and (C) carried out in such a manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges.
Plaintiffs assert that defendants have violated this section by distinguishing between Category A permit holders who employ trawling gear and those that use other types of gear. In addition, plaintiffs opine that 50 C.F.R. § 648.94 violates 5 U.S.C. § 706(2)(A) and (C).9
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