Jensen v. US
| Citation | 743 F. Supp. 1091 |
| Decision Date | 20 July 1990 |
| Docket Number | 87-0063(SSB),86-5120(SSB),86-5122(SSB) and 87-1205(SSB).,86-5119(SSB),86-4788(SSB),87-0084(SSB),87-3606(SSB),Civ. A. No. 86-4176(SSB) |
| Parties | Arne JENSEN; James P. Harris; John W. Vona; Arthur A. Ochse, Jr., Plaintiffs, v. UNITED STATES of America; and John A. Knauss, Administrator, National Oceanic and Atmospheric Administration, Defendants. UNITED STATES of America, Plaintiff, v. The PROCEEDS OF the SALE OF 10,324 POUNDS OF ATLANTIC SEA SCALLOPS TO WIT: $39,747.40. |
| Court | U.S. District Court — District of New Jersey |
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Edward V. Cattell, Jr., Clark, Ladner, Fortenbaugh & Young, Haddonfield, N.J., for Jensen, et al.
Michael Chertoff, U.S. Atty. by Bette Uhrmacher, Asst. U.S. Atty., Trenton, N.J., Richard B. Stewart, Asst. Atty. Gen., James C. Kilbourne, Larry Bradfish, U.S. Dept. of Justice, Washington, D.C., for U.S.
These nine suits arise from the government's seizure of Atlantic sea scallops for violations of regulations promulgated under the Magnuson Fishery Conservation and Management Act ("Act"), 16 U.S.C. §§ 1801-1882. Plaintiff fishermen brought five of the nine suits, consolidated under docket number 86-4176, challenging the constitutionality of the procedures used by the National Oceanic and Atmospheric Administration ("NOAA") for seizing scallops that allegedly violate regulations promulgated under the Act. The court will refer to these five actions as the "constitutional actions."
The government also brought four forfeiture proceedings in this court. These "forfeiture actions" are consolidated under docket number 86-5119. Each of the claimant-defendants in the forfeiture cases is a plaintiff in a constitutional action.2
An assortment of dispositive motions are pending before the court.3 For the reasons stated herein, this court will deny the four motions for summary judgment filed by the plaintiffs in the constitutional actions consolidated under Civil No. 86-4176. The court also will deny the government's motions to dismiss the constitutional action of Leon Vona, Civil No. 86-4788, as moot, but will dismiss the action on the basis of res judicata. The court will deny the motion to dismiss the constitutional action of Jensen in Civil No. 86-4176, as moot. The court, however, will grant the government's cross-motion for summary judgment in the constitutional actions because plaintiffs have failed to meet their burden to come forward with evidence which, when considered in light of their burden of proof at trial, could be the basis for a jury finding in their favor. See J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir.1987) (Becker, J., concurring) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The court will dismiss the constitutional actions with prejudice.
Additionally, the court will deny the four motions for summary judgment of the claimant-defendants in the forfeiture actions and grant the government's cross-motion for summary judgment.
The facts in each case are substantially undisputed.
On August 18, 1986, Jensen was captain of the fishing vessel COURAGEOUS, which tied up at the Parascondolo fishing docks in Newport, Rhode Island. The vessel contained one hundred bags of scallops weighing 3,888 pounds. Agents of the National Marine Fisheries Service ("NMFS") boarded the vessel to inspect the scallops for compliance with regulations. The agents took no more than ten one-pound samples. Although during the six day voyage, the crew had shucked only those scallops whose shells were over 3½ inches high and had checked the scallop meat size by counting the number of meats in a sixteen ounce volumetric sample ("volumetric method"), the NMFS agents found that the scallops were below the prescribed weight. The individual scallop samples ranged from 35.89 scallop meats per pound ("MPP") to 50 MPP, with an average of 45.67 MPP. Regulations published by NMFS at 50 C.F.R. § 650.7(a) and (e) and 51 Fed.Reg. 24841 (July 9, 1986), which governed at the time, set the allowable average at 30 MPP. Because the scallops were too small, NMFS agents seized the entire catch.
Neither Jensen nor his crew knew that they could request custody of the scallops in exchange for posting a bond or other security. The NMFS agents did not advise Jensen of this right. The NMFS agents sold the scallops to Parascondolo Fish Dealership in Newport, Rhode Island, yielding proceeds of $16,135.20. NOAA initiated civil penalty proceedings when it issued a Notice of Violation and Assessment ("NOVA") to Jensen on November 11, 1986. In a hearing before an Administrative Law Judge ("ALJ") on June 17, 1987, the ALJ ordered Jensen to pay a civil fine of $2,500.00. The government also initiated a forfeiture action against Jensen in the United States District Court for the District of Rhode Island on December 31, 1986 to perfect title to the proceeds from sale of the scallops.
Harris was the captain of the fishing vessel ABRACADABRA on August 7, 1986. On that date, the crew was unloading its catch of 141 bags, or 5,500 pounds, of scallops at Cape May, New Jersey. Despite the crew's attempt to measure the scallops during the trip by the volumetric method, NMFS agents, taking fifteen one-pound samples, found that the samples ranged from 27.94 MPP to 56.18 MPP, with an average of 42.154 MPP. The scallops were seized and sold by NMFS agents, yielding proceeds of $19,005.00. Neither Harris nor his crew knew that they could request custody of the scallops in exchange for posting a bond or other security. The NMFS agents did not advise them of this right. NOAA initiated a civil penalty proceeding against Harris by issuing a NOVA to Harris on December 3, 1986. Harris settled the civil penalty action for $1500.00 by agreement dated June 17, 1987. The government previously had brought a forfeiture action in the United States District Court for the District of New Jersey on December 31, 1986 to perfect title to the proceeds from the sale of the scallops.
The same fate befell John Vona, the owner of the fishing vessel CRYSTAL ANN, when Captain Walter Hill brought the vessel to Cape May, New Jersey on July 15, 1986 and unloaded 258 bags of scallops weighing 10,324 pounds. Despite the crew's efforts to check compliance, twelve one-pound samples revealed meat counts ranging from 37.975 to 49.163 MPP, with an average of 43.8 MPP. NMFS agents seized and sold the entire catch of scallops for $39,747.40. NOAA issued a NOVA to Vona on November 20, 1986 to initiate civil penalty proceedings. The government also brought a forfeiture action in the United States District Court for the District of New Jersey on December 31, 1986 to perfect title to the proceeds from the sale of the scallops. Vona and Hill paid a combined civil penalty of $1,500.00 in settlement of the civil penalty proceedings on June 17, 1987.
Ochse, the owner and captain of the trawler DIANNE & MAUREEN, moored the vessel at Point Pleasant Beach, New Jersey on September 16, 1986. NMFS agents contacted Ochse to announce their intention to inspect the 188 bags of scallops, weighing 6,204 pounds, on board the vessel. NMFS agents carried several bags to the nearby Coast Guard station where they inspected ten one-pound samples for compliance with the regulations. Additionally, Ochse tested two one-pound samples. The individual samples ranged from 30.8 to 47.5 MPP, with an average of 37.04 MPP. The agents seized and sold seventy percent of the catch yielding proceeds of $29,455.12. NOAA issued a NOVA to Ochse on December 3, 1986 to initiate civil penalty proceedings. The government thereafter brought a forfeiture action in the United States District Court for the District of New Jersey on December 31, 1986. Arthur Ochse and Arthur Ochse, Jr. paid a combined fine of $3,900.00 in settlement of the civil penalty action on June 17, 1987.
On October 29, 1986, NMFS agents sampled scallops that had been unloaded in Chester, Pennsylvania from the fishing vessel BARBARA ANNE, owned by Leon Vona, Inc. The meat counts of the ten one-pound samples ranged from 47.08 to 61.38 and averaged 55.53 MPP. The agents seized and sold the scallops, yielding proceeds of $62,338.56. NOAA issued a NOVA to Vona on January 12, 1987 to initiate civil penalty proceedings. The government also brought a forfeiture action in the United States District Court for the Eastern District of Pennsylvania on March 27, 1987. Leon Vona and the vessel's captain, Patrick Flanigan, entered settlement agreements to resolve the administrative civil proceedings on June 17, 1987.
On December 2, 1986, in Greenport, New York, NMFS agents followed and stopped a trailer truck that had been loaded with bags of scallops from the fishing vessel WILMA ILENE. An inspection revealed samples ranging from 49.88 to 59.08 MPP with an average of 53.94 MPP. The agents seized and sold the scallops. The proceeds of the sale were $51,665.28. NOAA initiated a civil penalty proceeding against William F. Peabody, William Vernon Peabody, and Michael Checklick by issuing a NOVA on March 11, 1987. Additionally, the government brought a forfeiture action to perfect title to the proceeds from sale of the scallops in the United States District Court for the Eastern District of New York on March 30, 1987. The fishermen agreed to pay a penalty to settle the civil penalty proceeding by agreement dated June 16, 1987.
In Cape May, New Jersey, on December 19, 1986, NMFS agents followed a truck filled with scallops that had been loaded from the fishing vessel VAUD J., owned by Keith Laudeman. The ten one-pound samples ranged from 48.15 to 62.85 MPP with an average of 56.453 MPP. The NMFS agents seized and sold the catch, yielding proceeds...
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