Organized Fishermen of Florida v. Hodel

• Decision Date: 15 November 1985
• Docket Number: No. 84-5722,84-5722
• Citation: 775 F.2d 1544
• Parties: 16 Envtl. L. Rep. 20,053 ORGANIZED FISHERMEN OF FLORIDA, Herbert Z. Marvin, Victor H. Markley, and Clyde R. Raffield, Plaintiffs-Appellants, v. Donald P. HODEL, Secretary, U.S. Department of the Interior, Russell Dickensen, Director of the National Park Service, Bob Baker, Regional Director of the Southeast Regional Office of the National Park Service, and John Morehead, Superintendent of Everglades National Park, U.S. Department of the Interior, the National Park Service, and Everglades National Park, Defendants-Appellees, Everglades Protection Association, Inc., & World Wide Sportsmen, Inc., Intervenors.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1544

775 F.2d 1544

16 Envtl. L. Rep. 20,053

ORGANIZED FISHERMEN OF FLORIDA, Herbert Z. Marvin, Victor H Markley, and Clyde R. Raffield, Plaintiffs-Appellants, v. Donald P. HODEL, Secretary, U.S. Department of the Interior Russell Dickensen, Director of the National Park Service Bob Baker, Regional Director of the Southeast Regional Office of the National Park Service, and John Morehead Superintendent of Everglades National Park, U.S. Department of the Interior, the National Park Service, and Everglades National Park, Defendants-Appellees, Everglades Protection Association, Inc., & World Wide Sportsmen, Inc., Intervenors.

No. 84-5722.

United States Court of Appeals, Eleventh Circuit.

Nov. 15, 1985.

Parker D. Thomson, Thomson, Zeder, Bohrer, Werth, Adorno & Razook, Douglas M. Halsey, Miami, Fla., for plaintiffs-appellants.

Michael J. Mitchell, Asst. U.S. Atty., Miami, Fla., J. Carol Williams, U.S. Dept. of Justice, Jacques B. Gelin, Washington, D.C., for defendants-appellees.

Leanne J. Frank, Michael B. Buckley, Gerald E. Rosser, Miami, Fla., for intervenors.

Appeal from the United States District Court for the Southern District of Florida.

Before HILL, ANDERSON and GARZA, ^* Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

Organized Fishermen of Florida and three individuals (collectively referred to as "OFF") filed a complaint in the United States District Court for the Southern District of Florida against the Secretary of the Interior and others ("the Secretary" or "the National Park Service" or "NPS") seeking declaratory and injunctive relief from regulations issued by the Department of the Interior in final form on February 15, 1980 (the "Rules"). 36 C.F.R. Sec. 7.45(e)-(h) (1985). The Rules imposed bag limits on fish caught in the Everglades National Park (the "Park"), established sanctuaries in the Park for endangered species and prohibited all commercial fishing in the Park as of December 31, 1985. OFF's motion for a preliminary injunction to prohibit the enforcement of the Rules was denied. OFF v. Andrus, 488 F.Supp. 1351 (S.D.Fla.1980). OFF and NPS then filed cross-motions for summary judgment. NPS' motion for summary judgment was granted. OFF v. Watt, 590 F.Supp. 805 (S.D.Fla.1984). OFF appeals from this decision. We affirm.

I. BACKGROUND

The background of this case is as follows: In 1934, Congress enacted the law which authorized establishment of the Everglades National Park at such time that title to sufficient lands in the region of the Everglades had been vested in the United States. 16 U.S.C. Sec. 410 (1982). That statute mandated that the proposed park be administered as a wilderness, and that the unique flora and fauna and essential primitive natural conditions then prevailing in the area be preserved intact. 16 U.S.C. Sec. 410c (1982). The legislation made no reference to commercial fishing.

During the time the Florida legislature considered donating state lands and funds for the park, several state officials sought clarification of the views and policies of the NPS regarding commercial fishing. The gist of the communications from NPS officials to representatives of the State of Florida was that commercial fishing would be subject to reasonable regulations necessary to perpetuate fish resources but that the NPS did not contemplate prohibiting commercial fishing in the proposed park. See Section II.A., infra, for a full discussion of NPS' representations regarding commercial fishing in the Park.

In 1944, Florida conveyed the land for the Park to the United States. The deed contained no reservation of commercial fishing rights. Following the formal establishment of the Park in 1947, Congress added a section to the authorizing statute. The new section of the Act reserved oil, gas and mineral rights but made no mention of commercial fishing in the Park. 16 U.S.C. Sec. 410e (1982). Also, following the Park's establishment, the NPS promulgated rules regulating commercial fishing in the Park. Administrative Record part 10, at 27-29.

Some years later, the Park Superintendent began to receive complaints about the "diminishing sport fish population." The NPS also received requests that it establish bag limits on red fish and trout in the Park. The number of complaints peaked in 1978. In response to these complaints and a petition bearing the names of almost 5,000 people, the NPS undertook a study of the matter. The study utilized computerized data acquired during the preceding years from commercial and sport fishermen. A private consulting firm was hired which assembled socioeconomic data. Fish populations were studied, catch rates were projected, and socioeconomic effects were reviewed. Public workshops and public hearings were held at which the views of the public, especially those of park users, were aired. Particularly, the opinions of commercial fishermen, sport and recreational fishermen, professional guides, environmentalists and conservationists were heard. Reports on endangered species were also received.

While there seemed to be general agreement that the fish resource needed protection, there was substantial disagreement on the extent of the problem and its cause. Blame for the problem was variously attributed to commercial fishermen, the quality of the water, the development of southern Florida and past NPS management decisions. Some groups advocated an immediate ban on commercial fishing and stricter limits on the recreational catch while some perceived no problem at all and believed, therefore, that restrictions on fishing would be meaningless, if not counterproductive.

All of the aforementioned information was available to the Secretary of the Interior for consideration. On September 14, 1979, the proposed rules were published in the Federal Register. 44 Fed.Reg. 53541 (1979). The Rules regulated fishing in the Park by (1) imposing bag limits of ten fish per species and not more than a total of twenty fish of all species, (2) establishing sanctuaries for endangered species and (3) prohibiting all commercial fishing in the Park, effective December 31, 1985 (over six years after the original proposal). Following an analysis of public comments and an internal review by the NPS, the final regulations were approved and published in the Federal Register on February 15, 1980. 45 Fed.Reg. 10350 (1980).

II. DISCUSSION

On appeal, OFF presents three major arguments. First, OFF argues that it is a third-party beneficiary to a contract between Florida and the United States. The Rules, OFF asserts, abridge OFF's vested property right in commercial fishing that OFF holds by virtue of its alleged third-party beneficiary status, and by virtue of a Florida law that allegedly guarantees OFF the right to fish in the Park. Second, OFF claims that even if no enforceable contract exists, the NPS should be estopped from enforcing the Rules because it promised never to prohibit commercial fishing in the Park. Finally, OFF argues that the Rules are arbitrary and capricious and, therefore, invalid under the Administrative Procedure Act.

A. Third-Party Beneficiary Status

OFF argues that it has a vested property right in commercial fishing in the Park as a third-party beneficiary of an alleged contract between the state of Florida and the United States government. Enforcement of the Rules, OFF claims, abridges its property right in violation of Fifth Amendment substantive due process. ¹ OFF asserts that the United States agreed never to prohibit commercial fishing in the Park in exchange for the conveyance of Florida land for the Park. This agreement is allegedly evidenced by and based upon NPS' representations concerning commercial fishing in the Park. One such representation was a 1936 letter from the then director of the NPS, Arno Cammerer, to Florida Congressman J. Hardin Peterson. That letter stated in part:

Whenever the question has been asked, these fishermen [in national parks] have been informed that the National Park Service does not contemplate any injustice to them, nor any curtailment of their legal operations. With [this] as a background, commercial fishermen using the waters surrounding the Everglades may expect equally fair treatment. As a conservation bureau, the National Park Service would naturally have to keep an eye on commercial fishery operations and see to it that the supply is conserved. Usually the same laws that are in force outside a national park apply also within, and it would be reasonable to expect that in the administration of this park care would be taken to provide restrictions similar to those in nearby waters unless the destruction of some variety of fish is definitely threatened. In other words, since the Everglades park area and especially its coastal water area is so great, I have seen no reason why off-coast commercial fishing may not be continued in the future as it has in the past without injury to park values.

OFF also quoted in its appellate brief a letter of A.E. Demaray, acting director of the NPS in 1939, as stating, "The National Park Service has stated from time to time that commercial fishing will not be prohibited in the proposed park.... Please assure the members of the Chamber of Commerce that the National Park Service will not make rules and regulations that will jeopardize the fishing industry of the Florida Keys." Brief of Appellant at 9 n. 12. OFF neglected to point out, however, that the letter also includes a sentence stating: "Just how much [commercial fishing] can be permitted and under what conditions is a question that should be ironed out this winter, at least in its broader aspects."

As can be readily seen from these examples, the NPS never purported to abdicate its right and duty to exercise its conservation function. ² Although OFF's contract and estoppel claims must necessarily rest on NPS representations made prior to Florida's alleged act of reliance (the 1944 conveyance of land for the Park), subsequent...