Kramer v. Mosbacher

• Decision Date: 20 June 1989
• Docket Number: No. 88-2995,88-2995
• Parties: 19 Envtl. L. Rep. 21,327 Kenneth W. KRAMER, et al., Plaintiffs-Appellees, v. Robert A. MOSBACHER, in his official capacity as Secretary of Commerce; National Oceanic and Atmospheric Administration; William E. Evans, in his official capacity as Assistant Administrator for Fisheries of the U.S. Department of Commerce; Joseph Angelovic, in his official capacity as Regional Director; National Marine Fisheries Services, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 134

878 F.2d 134

19 Envtl. L. Rep. 21,327

Kenneth W. KRAMER, et al., Plaintiffs-Appellees, v. Robert A. MOSBACHER, in his official capacity as Secretary

of Commerce; National Oceanic and Atmospheric

Administration; William E. Evans, in his official capacity

as Assistant Administrator for Fisheries of the U.S.

Department of Commerce; Joseph Angelovic, in his official

capacity as Regional Director; National Marine Fisheries

Services, Defendants-Appellants.

No. 88-2995.

United States Court of Appeals, Fourth Circuit.

Argued April 14, 1989.

Decided June 20, 1989.

Charles Ray Shockey (Donald A. Carr, Acting Asst. Atty. Gen., Anne S. Almy, James C. Kilbourne, Dept. of Justice, William J. Nielander, Susan K. Auer, Nat. Oceanic and Atmospheric Admin., Dept. of Commerce, Washington, D.C., on brief) for defendants-appellants.

Daniel F. McLawhorn, Sp. Deputy Atty. Gen., Raleigh, N.C., Stevenson Lee Weeks (Wheatly, Wheatly, Nobles, Weeks & Wainwright, P.A., Beaufort, N.C., on brief) for plaintiffs-appellees.

Before HALL, SPROUSE, and CHAPMAN, Circuit Judges.

CHAPMAN, Circuit Judge:

This dispute involves a challenge to the closure of the South Atlantic King Mackerel fisheries. Following plaintiffs' petition to the district court requesting relief, the court, on November 25, 1988, enjoined enforcement of the closure. Because we believe the district court neither had jurisdiction to entertain the complaint against the Secretary nor had authority to grant injunctive relief, we reverse.

I

Pursuant to the Magnuson Fishery Conservation and Management Act of 1976, 16 U.S.C. Secs. 1801-1882, Congress has delegated to the Commerce Department broad authority to manage and conserve coastal fisheries. The Act creates independent bodies, Regional Fishery Management Councils, which help the Department carry out specific management and conservation duties. This case arises out of actions taken by the South Atlantic Regional Council, which consists of representatives from North Carolina, South Carolina, Georgia, and Florida. 16 U.S.C. Sec. 1852. The Council's principal task is to prepare fishery management plans for its area, which must "assess and specify the present and probable future condition of, and the maximum sustainable yield" of a fishery. 16 U.S.C. Secs. 1852, 1853. Council plans are adopted or rejected by the Secretary. 16 U.S.C. Sec. 1854. If adopted, a plan is put into effect by regulations issued by the Secretary. 16 U.S.C. Sec. 1855.

Such a plan for Atlantic king mackerel was implemented through regulations adopted in 1982, and was subsequently amended in 1985 and 1987. 50 C.F.R. pt. 642 (1987). Together, the regulations require that the Council assess the stock of king mackerel and recommend a "total allowable catch," in pounds, which reflects a "level specified to realize a particular management strategy" for the upcoming fishing year. Briefly stated, this "total allowable catch" forms the basis for the Council's determination of commercial and recreational limits. In fashioning a quota, the Council is obligated to consider a wide range of evidence. 50 C.F.R. Sec. 642.27 (1987). Finally, the regulations require the Secretary to close a fishery if a quota is reached. 50 C.F.R. Sec. 642.22 (1987).

In April, 1988, the South Atlantic and Gulf Councils met jointly to determine the 1988-1989 king mackerel limits. Following recommendations of scientists and the advice of an intercouncil mackerel committee, the Councils set the annual "total allowable catch" for king mackerel at seven million pounds, a significant reduction from the figure used in the preceding year. In June, 1988, the Secretary issued proposed regulations to implement the new limit; he published the final regulations on July 8, 1988. The regulations established a commercial quota of 2.6 million pounds and a recreational limit of 4.4 million pounds.

By October the Secretary had concluded that the recreational quota for the year had been reached and that the stock was "overfished." Generally, "overfishing" means "an excessive mortality rate on a stock of fish." 50 C.F.R. Sec. 642.2. Pursuant to 50 C.F.R. Sec. 642.22, the Secretary, in the October 14, 1988 Federal Register, published notice that he was closing the recreational season, effective October 17. On November 18, 1988, effective November 23, the Secretary announced a closure of the commercial season. The order required both fisheries to remain closed through March 31, 1989.

The closure order prompted this appeal. On November 10, 1988, 85 fishermen, 28 businesses, and the State of North Carolina filed a complaint asking, alternately, for a temporary restraining order, a preliminary or permanent injunction against enforcement of the order, or an order increasing the total allowable catch by 2.6 million pounds. On November 22 the district court issued a preliminary injunction against enforcement of the commercial and recreational closures. The court concluded, without elaboration, that it had jurisdiction to hear the complaint under 16 U.S.C. Secs. 1855(d) and 1861(d), the portions of the Magnuson Act that provide for judicial review of Department regulations and enforcement actions. On February 23, 1989 this court granted the Secretary's motion for an expedited appeal and stayed the injunction pending such appeal.

II

Plaintiffs-appellees first contend that this case became moot on March 31, 1989, when the fishing year ended and the catch limits for the 1988-1989 fishing year expired. Their position, in essence, is that the factual basis of the injunction, is, as a result, no longer in controversy. However, we find this case is not moot and falls squarely within the "capable of repetition, yet evading review" doctrine. That is, both the yearly reevaluation of catch limits and closure orders present circumstances which are "too short to be fully litigated prior to [their] cessation or expiration." Moreover, there is "a reasonable expectation that the same complaining party," here North Carolina fishermen and fishing businesses, "would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975); Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911).

III

The second, and principal, question on appeal is whether the district court had jurisdiction over the complaint. Both parties agree that only two provisions within the Magnuson Act arguably pertain to the judicial review of Department regulations: 16 U.S.C. Secs. 1855(d) and 1861(d). As part of the larger scheme of Sec. 1855, which addresses the implementation of fishery management plans, 1855(d) provides that:

Regulations promulgated by the Secretary under this chapter shall be subject to judicial review to the extent authorized by, and in accordance with, chapter 7 of Title 5, if a petition for such review is filed within 30 days after the date on which the regulations are promulgated; except that (1) section 705 of such title is not applicable, and (2) the appropriate court shall only set aside any such regulation on a ground specified in section 706(2)(A), (B), (C), or (D) of such title.

Section 1861(d), within Sec. 1861, which concerns "Enforcement" of the Act, allows that:

The district courts of the United States shall have exclusive jurisdiction over any case or controversy arising under the provisions of this chapter. In the case of Guam, and any Commonwealth, territory, or possession of the United States in the Pacific Ocean, the appropriate court is the United States District Court for the District of Guam, except that in the case of American Samoa, the appropriate court is the United States District Court for the District of Hawaii. Any such court may, at any time-

(1) enter restraining orders or prohibitions

(2) issue warrants, process in rem, or other process;

(3) Prescribe and accept satisfactory bonds or other security; and

(4) take such other actions as are in the interests of justice.

Undoubtedly the sweep of Sec. 1861(d) is broad, as it includes "any case or controversy arising under" the Magnuson Act. Courts, however, in reading the statute as a whole, have recognized that review under the terms of Sec. 1861(d) has been generally restricted to direct enforcement actions, usually involving the seizure and condemnation of vessels. See, e.g., United States v. Marunaka Maru No. 88, 559 F.Supp. 1365 (D.Alaska 1983) (seizure); United States v. MYS Prokofyeva, 536 F.Supp. 793 (D.Alaska 1982) (seizure). More pertinent to this appeal, it has been held that a review of regulations, normally considered only under Sec. 1855(d), can be brought under the wider domain of Sec. 1861(d), if, as part of an enforcement proceeding defense, a collateral attack is made on the regulations which form the basis of the enforcement action. Gulf of Maine Trawlers v. United States, 674 F.Supp. 927, 933 (D.Me.1987); United States v. Seafoam II, 528 F.Supp. 1133, 1138-39 (D.Alaska 1982).

This case cannot, however, be considered a response to an enforcement action. The Secretary has not taken any affirmative action against plaintiffs. Instead, plaintiffs themselves have made a direct challenge to the substance of a regulation. As such, this case is ultimately subject to review under the terms of Sec. 1855(d), not Sec. 1861(d). Alaska Factory Trawler...