Little Bay Lobster Co., Inc. v. Evans

• Decision Date: 19 December 2003
• Docket Number: No. 02-1864.,02-1864.
• Citation: 352 F.3d 462
• Parties: LITTLE BAY LOBSTER COMPANY, INC., et al., Plaintiffs, Appellants, v. Donald L. EVANS, Secretary of Commerce, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

352 F.3d 462

LITTLE BAY LOBSTER COMPANY, INC., et al., Plaintiffs, Appellants, v. Donald L. EVANS, Secretary of Commerce, Defendant, Appellee.

No. 02-1864.

United States Court of Appeals, First Circuit.

Heard September 5, 2003.

Decided December 19, 2003.

COPYRIGHT MATERIAL OMITTED

Mark A. McSally with whom Kelly, Kelleher, Reilly & Simpson was on brief for appellants.

John A. Bryson with whom Kristen L. Gustafson, Department of Justice, Kelly Johnson, Acting Assistant Attorney General, Environment and Natural Resources Division, and Charles N. Lynch, Jr., Department of Commerce, National Oceanic and Atmospheric Administration, were on brief for appellee.

Before BOUDIN, Chief Judge, SELYA, Circuit Judge, and SILER,^* Senior Circuit Judge.

BOUDIN, Chief Judge.

This is an appeal by a lobster dealer (Little Bay Lobster Company) and several lobster boat operators based in New Hampshire from a decision of the district court sustaining new federal regulations affecting the plaintiffs. For convenience, we refer to the appellants collectively as "Little Bay" in describing the claims presented on appeal and assume familiarity with earlier decisions cited below setting forth the legal and factual background in great detail.

The federal regulations in question govern lobster catches in the so-called exclusive economic zone ("the EEZ") — an area of federal jurisdiction extending from 3 to 200 nautical miles seaward of the U.S. coastline. Ace Lobster Co., Inc. v. Evans, 165 F.Supp.2d. 148, 152 n. 3 (D.R.I.2001). State governments regulate the first three miles seaward of their coastline and the federal government regulates beyond that limit to the outer boundary of the zone. Id. The legal framework and regulatory history are peculiarly complicated, but only a nutshell description is needed to set the scene.

In 1976, the Magnuson-Stevens Fishery Conservation Act ("the Magnuson-Stevens Act"), 16 U.S.C. §§ 1801-1883 (2000), was

adopted to conserve and manage fishery resources. 16 U.S.C. § 1801(b)(1) (2000); Campanale & Sons, Inc. v. Evans, 311 F.3d 109, 110 (1st Cir.2002). Regional fishery management councils, including federal and state officials and others, were authorized to adopt for each fishery requiring conservation a fishery management plan, 16 U.S.C. § 1801(b)(4),(5) (2000); Campanale, 311 F.3d at 111; and the statute provided for the Secretary of Commerce ("the Secretary") to adopt implementing regulations based on notice and comment rule-making if the plan was consistent with a set of "national standards" set forth in the statute. 16 U.S.C. §§ 1851(a), 1854(a)(1)(A) (2000).

East coast lobsters are such an endangered fishery, and in 1978 a group of east coast states proposed a plan for both state and federal waters. In 1983, the pertinent regional council under the Magnuson-Stevens Act — the New England Fishery Management Council ("the Council") — adopted a fishery management plan for lobsters that was later implemented by the federal National Marine Fisheries Service. Nevertheless, 10 years later a study revealed that Northeast lobsters were dangerously overfished. In December 1993 the Council circulated a draft amendment proposing that four areas be designated in the EEZ and subjecting each to different restrictions (e.g., trap limits) aimed at rebuilding stocks.

Counterpart regulations were adopted by the Secretary in the spring of 1994. 59 Fed.Reg. 26,454 (May 20, 1994) (codified at 50 C.F.R. § 649.20 (1995), subsequently repealed effective Jan. 5, 2000); 59 Fed. Reg. 31,938 (June 21, 1994) (codified at 50 C.F.R. § 649.42(b) (1995), subsequently repealed effective Jan. 5, 2000). The four new management areas included two areas in the federal waters of the gulf of Maine: area 1 starting three miles offshore and area 3 adjacent to area 1 but lying seaward of it. 59 Fed.Reg. at 31,950-51. The line separating the two areas, sometimes called the Dick Allen line, lay about 30 miles off the coast. The restrictions on lobster traps in area 1 have been more stringent than those applying in area 3.

In the meantime, Congress in 1993 had adopted the Atlantic Coastal Fisheries Cooperative Management Act ("Atlantic Coastal Act"). 16 U.S.C. §§ 5101-5108 (2000). This statute chartered an Atlantic States Marine Fisheries Commission ("the Commission") comprising representatives of states from Maine to Florida. 16 U.S.C. § 5102(3), (13) (2000). The Commission's direct concern is with mobile Atlantic coast fisheries within state waters, but in the absence of regulations under the Magnuson-Stevens Act, the Secretary can adopt for EEZ waters a plan compatible with one adopted by the Commission for state waters. 16 U.S.C. § 5103(b)(1) (2000).

This case involves such a plan under the new statute. The new plan began life as a proposed amendment to the existing plan; but, along the way, prompted by further pessimistic studies in 1996, the federal National Marine Fisheries Service proposed that the Magnuson-Stevens Act regulations be withdrawn and that new regulations be adopted under the authority of the new statute if and when a suitable state-waters plan was adopted by the Commission. Ace Lobster, 165 F.Supp.2d. at 157.

During the summer of 1997, the Commission sought comments on its so-called amendment 3. This plan included among other things more stringent limits on the number of lobster traps in areas 1 and 3. In September 1997, after further public hearings, the Commission's lobster management board voted to alter amendment 3 to move the boundary line between area 1 and area 3 from 30 to 50 miles offshore. The alteration enlarged area 1, the area subject to most stringent limits, thereby disadvantaging anyone who had sought lobsters within the area lying between the old line and the one now proposed.

The Commission approved amendment 3 with the revised boundary line between areas 1 and 3 in December 1997. In March 1998, National Marine Fisheries Service issued a draft environmental impact statement ("EIS"), pursuant to the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370d (2000), evaluating new alternatives for lobster regulation in federal waters; one of the alternatives was amendment 3. A number of hearings on the draft EIS were held including one in Portsmouth, New Hampshire, in May 1998, and written comments were received including one from Little Bay itself attacking the shift from the Dick Allen line.

In January 1999, a proposed federal rule was published implementing amendment 3 for federal waters, 64 Fed.Reg. 2,708 (proposed January 15, 1999), and public comments were received including several pertaining to the new line. A final EIS was issued in May 1999, noting that amendment 3 had the most support of all the alternatives under consideration. The final EIS included a final regulatory flexibility analysis, as required by the Regulatory Flexibility Act, 5 U.S.C. §§ 601-612 (2000), concluding that those using lobster traps would be impacted in the short-run but that the benefits of rebuilding stocks outweighed the harm.

In December 1999, the National Marine Fisheries Service issued final regulations, 64 Fed.Reg. 68,228 (Dec. 6, 1999) (codified at 50 C.F.R. Part 697) which were adopted by the Secretary pursuant to the Atlantic Coastal Act, 16 U.S.C. § 5103(b) (2000). These regulations implemented amendment 3 for federal waters including the new stricter trap limits and the shift of the Dick Allen line. In early January 2000, Little Bay and a number of Portsmouth, New Hampshire, lobster boat operators brought suit in the federal district court against the Secretary to challenge the new regulations.

An action of this kind, framed as a declaratory judgment proceeding, is in effect a suit for review of agency action ordinarily based on the administrative record. See Campanale, 311 F.3d at 115; Massachusetts ex rel. Div. of Marine Fisheries v. Daley, 170 F.3d 23, 28 (1st Cir.1999). After extensive proceedings, the district court on May 16, 2002, granted summary judgment in favor of the Secretary, and this appeal followed. Our review of the district court decision is de novo, Massachusetts ex rel. Div. of Marine Fisheries, 170 F.3d at 28. What standard we and the district court both apply to the agency's own decisions varies with the issue. Id.

The most prominent issue on appeal concerns one of the requirements the Secretary had to meet before adopting the regulations. The Atlantic Coastal Act requires inter alia that federal regulations adapting the Commission plan for use in the federal EEZ (1) follow "consultation with the appropriate [Regional] Councils," and (2) be consistent with the national standards of the Magnuson-Stevens Act. 16 U.S.C. § 5103(b)(1) (2000). Here, Little Bay claims, the failure to consult is established by our intervening decision in Campanale & Sons, Inc. v. Evans.

That case, like this one, involved amendment 3 and the December 1999 regulations implementing the plan for the EEZ, but the plaintiffs were Rhode Island fishermen concerned with the numerical limits on traps. Campanale, 311 F.3d at 115. The district court rebuffed the attacks but a divided panel of this court held that the Secretary had violated his obligation to consult with the Council. Id. at 121. The court declined to say that the error had been harmless, ruling that this inquiry was "a factual one ... best undertaken initially by the district court." Id. at 120 n. 13.

Campanale was decided after the district court in our own case had sustained summary judgment for the Secretary. In Campanale, the court acknowledged that the Secretary had advised the Council of the proposed trap limits through the draft EIS's alternatives and had gotten comments back from the council. The Campanale panel held this to be inadequate at least where the Secretary did not tell the Council that this was its statutory consultation opportunity. Campanale, 311 F.3d at 117-21.

Conceivably, the Secretary might have "consulted" with...