Organized Fisherman of Florida v. Andrus, 80-789-Civ-SMA.

• Decision Date: 29 April 1980
• Docket Number: No. 80-789-Civ-SMA.,80-789-Civ-SMA.
• Citation: 488 F. Supp. 1351
• Parties: ORGANIZED FISHERMEN OF FLORIDA, Herbert Z. Marvin, Victor H. Markley and Clyde R. Raffield, Plaintiffs, v. Cecil D. ANDRUS, Secretary of the United States Department of the Interior, William J. Whalen, Director of the National Park Service, Joseph Brown, Regional Director of the Southeast Regional Office of the National Park Service and Claude McClain, Acting Superintendent of Everglades National Park, United States Department of the Interior, the National Park Service, and Everglades National Park, Defendants.
• Court: U.S. District Court — Southern District of Florida

488 F. Supp. 1351

ORGANIZED FISHERMEN OF FLORIDA, Herbert Z. Marvin, Victor H. Markley and Clyde R. Raffield, Plaintiffs, v. Cecil D. ANDRUS, Secretary of the United States Department of the Interior, William J. Whalen, Director of the National Park Service, Joseph Brown, Regional Director of the Southeast Regional Office of the National Park Service and Claude McClain, Acting Superintendent of Everglades National Park, United States Department of the Interior, the National Park Service, and Everglades National Park, Defendants.

No. 80-789-Civ-SMA.

United States District Court, S. D. Florida, Miami Division.

April 29, 1980.

Atlee W. Wampler, III, U. S. Atty., Miami, Fla., for plaintiffs.

Paul & Thomson, Miami, Fla., for defendants.

ARONOVITZ, District Judge.

ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

This matter was heard by the Court at an evidentiary hearing upon Plaintiffs' Motion for Preliminary Injunction. The Court has received testimony, affidavits, exhibits and has heard oral agument of counsel for the parties. The Court having reviewed the entire record, including the memoranda and supplemental affidavits submitted by the parties, Plaintiffs' Motion for Preliminary Injunction is DENIED for the reasons which follow.

FACTUAL BACKGROUND

Plaintiffs¹ are seeking to enjoin enforcement of 36 C.F.R. § 7.45(e)-(h), as amended at 45 Fed.Reg. 10350 (1980), promulgated by the National Park Service of the Department of the Interior. These regulations, which became effective on March 17, 1980, restrict certain fishing practices in Everglades National Park by: (1) imposing bag limits of ten (10) fish of one species and not more than a total of twenty (20) fish of all species; and (2) prohibiting all commercial fishing in Park waters as of December 31, 1985.² In addition, Plaintiffs move the Court for an Order requiring Defendants to remove pilings and other obstructions placed at the entries of Little Madeira Bay and Joe Bay, which are among several areas of Florida Bay designated as critical habitat for endangered species, and now closed to all public entry for purposes of establishing crocodile sanctuaries.³ 36 C.F.R. § 7.45(g)(4), as amended at 45 Fed.Reg. 10350 (1980).

ISSUES RAISED BY PLAINTIFFS

The issues Plaintiffs raise in support of their Motion are manifold, but can be summarized as follows. First, Plaintiffs assert that the instant regulations are invalid as having been promulgated in contravention of the procedural requirements of the Department of the Interior, the National Environmental Policy Act of 1969, and the Administrative Procedure Act. Secondly, Plaintiffs argue that the instant regulations are constitutionally infirm as violative of the Privileges and Immunities Clause of the Constitution, and the Fifth Amendment guarantees of due process and equal protection. Finally, Plaintiffs maintain that Defendants are estopped to enforce the regulations herein, said regulations being contrary to representations allegedly made by federal officials regarding continued commercial fishing rights in the Park. Enforcement of the instant regulations, Plaintiffs insist, will immediately and effectively preclude commercial fishing in the Park, and the right of Plaintiffs to earn a livelihood therefrom.

REQUIREMENTS FOR PRELIMINARY INJUNCTION

The Court is governed herein by the four prerequisites for preliminary injunctive relief, as set forth in Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974): (1) a substantial likelihood that Plaintiffs will prevail on the merits; (2) a substantial threat that Plaintiffs will suffer irreparable injury if the injunction is not granted; (3) the threatened injury to Plaintiffs outweighs the threatened harm the injunction may do to Defendants; and (4) granting the preliminary injunction will not disserve the public interest.

MERITS OF PLAINTIFFS' MOTION

Plaintiffs have failed to carry their initial burden of demonstrating a substantial likelihood of prevailing on the merits. To begin with, Plaintiffs have not clearly shown that the decision of the National Park Service not to prepare "a regulatory analysis of the economic consequences of a rule" in connection with promulgation of the instant regulations violated Department of Interior rulemaking procedures.⁴ A regulatory analysis is required only if (1) a proposed rule is deemed "significant" as defined in 43 C.F.R. § 14.3(c)(5); and (2) the rule will have an annual economic effect of $100 million or more, or (3) the potential economic effect is considered sufficiently major even though less than $100 million. 43 C.F.R. § 14.3(d) (1979). Rules are "significant" within the meaning of 43 C.F.R. § 14.3(c)(5) (1979), if they are "likely to have a substantial economic effect on the entire economy or on an individual region, industry or level of government." A "region" is a geographic area ordinarily covering more than one state. 43 C.F.R. § 14.3(d)(3)(ii) (1979). "Economic effects" means changes in the use of resources which, in principle, would affect national income and which can be valued in dollar terms.⁵ 43 C.F.R. § 14.3(d)(3)(i) (1979). In light of these guidelines, the Court is not convinced that the regulations herein are "significant", and that preparation of a regulatory analysis was thereby required. On the contrary, the Court cannot conceive that the procedures for the development of "significant" rules were ever intended to apply in the circumstances of the instant case. The impact of the regulations herein is clearly not "regional" in scope, their applicability confined to the Park, and even then involving the closure of only limited portions thereof. See note 3 supra. With respect to the impact of the regulations on the commercial fishing industry, the annual economic loss is estimated at $1.21 million, representing 0.5% of the total worth of Florida's commercial fishing industry and 1.8% of the value of landings in Collier and Monroe counties alone.

Plaintiffs have further not persuaded the Court that Defendants have violated the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332. At issue is the National Park Service's determination that the instant regulations do not amount to "major federal action significantly affecting the quality of the human environment." On the evidence presented, the Court cannot say that Defendants' threshold determination not to file an Environmental Impact Statement was unreasonable. Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 (5th Cir. 1973). In this regard, the Court notes that the "Assessment" and subsequent "Review" of fishery management options in Everglades National Park, prepared at the direction of the National Park Service, indicate that considerable attention was given to alternative courses of action and the economic and environmental consequences of each, with a view towards minimizing the impact on the environment.⁶ The Court further notes that Plaintiffs' claim of a lack of an interdisciplinary approach in the promulgation of the regulations is at least called into question by testimony concerning consultation between Defendants and the U.S. Fish and Wildlife Service. Among the other agencies on record as having contributed comments on the instant regulations are the National Marine Fisheries Service, the Florida Department of Natural Resources, and the Florida Game and Fresh Water Commission. 45 Fed.Reg. 10351 (1980). Moreover, even if the Court were to find a violation of NEPA, this finding alone would not obviate Plaintiffs' burden of showing that the general requirements for preliminary injunctive relief have been satisfied. Canal Authority of State of Florida v. Callaway, 489 F.2d at 577-78.

The Court is not inclined to agree with Plaintiffs that the procedures by which the regulations herein were adopted amount to a denial of due process. Assuming without deciding that Plaintiffs have a legitimate claim of entitlement to their commercial fishing permits, the Court finds that Plaintiffs were afforded sufficient notice and opportunity to be heard to satisfy the constitutional requirements of due process.⁷ Specifically, the procedural safeguards employed in the instant case included: (1) four public workshops throughout South Florida preceding promulgation of the proposed regulations; (2) four public hearings throughout South Florida following publication of the proposed regulations at 44 Fed.Reg. 53541 (1979); (3) periods of comment on the regulations as proposed and as published in final form at 45 Fed. Reg. 10350 (1980). By their own allegations in the complaint, Plaintiffs admit having participated in these public forums and having contributed comments in connection therewith. Significantly, Defendants solicited this public input in the rulemaking process although not required to do so by the rulemaking provisions of the Administrative Procedure Act, under which matters relating to public property are exempted. 5 U.S.C. § 553(a)(2); see Wilderness Public Rights Fund v. Kleppe, 608 F.2d 1250, 1253 (9th Cir. 1979).

Plaintiffs' claims that the regulations violate the Privileges and Immunities Clause of the Constitution and deny substantive due process and equal protection under the Fifth Amendment are similarly unconvincing.⁸ Whereas the Privileges and Immunities Clause, (Article IV, § 2, cl. 1), places a limitation on the power of the States, there is no question that the complete power Congress has over public lands under the Property Clause of the Constitution, (Article IV, § 3, cl. 2), necessarily includes the power to regulate and protect the wildlife living there. Kleppe v. New Mexico, 426 U.S. 529, 540-41, 96 S.Ct. 2285, 2292-93, 49 L.Ed.2d 34 (1976). Accordingly, Defendants are authorized, under 16 U.S.C. § 3, to make rules and regulations for the Park deemed necessary or proper to provide greater resource protection through regulated use, and increased recreational use...