Roche v. Evans
| Decision Date | 10 March 2003 |
| Docket Number | No. CIV.A. 02-10018-GAO.,CIV.A. 02-10018-GAO. |
| Citation | 249 F.Supp.2d 47 |
| Parties | Brian M. ROCHE, Plaintiff v. Donald EVANS, Secretary of the United States Department of Commerce; and Scott B. Gudes, Acting Under Secretary for Oceans and Atmosphere/Administrator and Deputy Under-Secretary, Defendants |
| Court | U.S. District Court — District of Massachusetts |
O'TOOLE, District Judge.
The plaintiff, Brian M. Roche, an inshore fisherman and the owner and master of the F/V HIGH FLYER, a fixed-gear fishing vessel, was fined by the National Oceanic and Atmospheric Administration ("NOAA"), an agency within the United States Department of Commerce, for entering an area closed to fishing under pertinent regulations. By this action, authorized by 16 U.S.C. § 1858(b),1 Roche seeks review of the imposition of the civil penalty. He advances several reasons: (1) the regulations he was found to have violated were not properly adopted, (2) there was not substantial evidence in the record to establish the violations, (3) the regulations were enforced in a manner that amounted to an abuse of discretion, and (4) the fine imposed, even if lawfully assessed, was excessive. Both the plaintiff and the defendants have moved the Court for summary judgment. For the reasons stated below, the plaintiffs motion is denied and the defendants' motion is granted.
By the Magnuson-Stevens Fishery Conservation and Management Act (), 16 U.S.C. § 1801 et seq., the Secretary of Commerce is directed to approve, implement, and enforce fishery management plans "to prevent overfishing, and to protect, restore, and promote the long-term health and stability" of American fisheries. Id. § 1853(a)(1)(A). The Act established eight regional fishery management councils with the responsibility, and with broad discretion, to develop and recommend fishery management plans for their respective regions. §§ 1852, 1801(b)(5). One of these, the New England Fishery Management Council (the "Council"), has authority over fisheries in the Atlantic Ocean seaward of the States of Maine, New Hampshire, Massachusetts, Rhode Island, and Connecticut, including the area pertinent to this case, referred to as the Western Gulf of Maine. § 1852(a)(1).
The Council developed, and the Secretary adopted, an initial Northeast Multispecies Fisheries Management Plan (the "FMP") in 1985. Since then, the FMP has been amended several times. In 1996, with the population of cod in the Gulf of Maine on the verge of collapse, the Council adopted Amendment 7 to the FMP, which placed controls on fishing vessel trips, implemented closures of certain fishing areas, and—of significance for this case— established a procedure, more abbreviated than formal rule-making procedures otherwise applicable, for making changes, adjustments or additions to the FMP as necessary to achieve the FMP's goals and objectives. See 61 Fed.Reg. 27710 (May 31,1996).
The adjustment procedures added by Amendment 7, referred to as "framework specifications," are codified at 50 C.F.R. § 648.90. Two methods are provided. First, there are provisions for an annual review of "[c]atch and landings, [Days-at-Sea], and other measures of fishing effort, survey results, stock status, current estimates of fishing mortality, and any other relevant information," id. § 648.90(a)(1), for the purpose of "recommend[ing] target [Total Allowable Catches or TACs'] and developing] options necessary to achieve the FMP goals and objectives." § 648.90(a)(2).
The regulation sets out a timetable for the annual review. The regional Multispecies Monitoring Committee is to meet by November 15 each year and, after conducting the required review, make recommendations for consideration by the Council. The Council may then make recommendations to the Secretary, through its Regional Administrator, for changes or adjustments—called "framework adjustments"— to the existing FMP. There are two alternative timetables for this to be done. If the Council submits a recommendation to the Regional Administrator by the next January 7, and the Regional Administrator concurs in the recommendation, it will be published as a proposed rule in the Federal Register, with a 30-day period for public comment following publication. Alternately, the Council may instead submit its recommendation to the Regional Administrator by February 1 and request that the Regional Administrator publish the recommendation as a final rule. § 648.90(a)(5). This alternative is available if the Council follows the framework process outlined in § 648.90(b).
Under that second process,
the Council shall develop and analyze appropriate management actions over the span of at least two Council meetings. The Council shall provide the public with advance notice of the availability of both the proposals and the analyses and opportunity to comment on them prior to and at the second Council meeting.
§ 648.90(b)(1)(i). After "developing management actions and receiving public testimony," the Council may make a recommendation to the Regional Administrator for the issuance of a final rule. If the Regional Administrator concurs, the recommendation will be published as a final rule in the Federal Register. § 648.90(b)(4)(i). Alternately, the Regional Administrator may cause the recommendation to be published as a proposed rule with an additional period for public comment, § 648.90(b)(4)(ii), or he may reject the Council's recommendation, § 648.90(b)(4)(iii).
In late 1997 and early 1998, following this "framework adjustment" procedure set out in § 648.90(b), the Council adopted an adjustment to the existing FMP identified as "Framework 25." Among other things, Framework 25 mandated that certain fishing areas would be closed to fishing for varying lengths of time. See 63 Fed.Reg. 15326 (March 31, 1998). In particular, a certain part of the Western Gulf of Maine was closed to fishing for the period May 1, 1998 through April 30, 1999. 50 C.F.R. § 648.81(n)(1) (1998). It is unlawful for a person to "[e]nter, be on a fishing vessel in, or fail to remove gear from" such a closed area. § 648.14(a)(52). Violation of the regulation subjects the violator to a civil penalty. 16 U.S.C. §§ 1857(1)(A), 1858(a).
On February 1, 1999, Coast Guard officers of the U.S.C.G. Cutter WRANGELL came upon and boarded the F/V HIGH FLYER approximately two and one-half miles inside the closed area of the Western Gulf of Maine. Roche was the master of the vessel at the time. On May 10, 2000, the National Marine Fisheries Service ("NMFS"), a division of NOAA and thus of the Department of Commerce, issued a "Notice of Violation and Assessment of Administrative Penalty" to Roche for violation of 50 C.F.R. §§ 648.14(a)(52) and 648.81(i), assessing a penalty in the amount of $35,000. At Roche's request, an evidentiary hearing was held before an Administrative Law Judge ("ALJ"). The ALJ found that Roche had entered the closed area, though he also noted that the government's assertion that Roche had been fishing within the area had not been proven. After considering Roche's financial status and the particular circumstances of his violation, the ALJ reduced Roche's fine from $35,000 to $20,000. Thereafter, Roche requested a discretionary review of the ALJ's decision by the Administrator of NOAA, but his request was denied. He then brought this action to review the assessment of the penalty.
As noted above, Roche makes several arguments in support of his plea that the penalty assessment be set aside or reduced. They are addressed in turn.
Roche contends that Framework 25 was not validly adopted because the defendants failed to comply with certain statutory requirements.2 His principal argument in this respect is that the defendants failed to comply with mandated public notice requirements concerning the Council's consideration of a framework adjustment.
The Council was authorized by the regulations implemented by the adoption of Amendment 7 to
develop and analyze appropriate management actions over the span of at least two Council meetings. The Council shall provide the public with advance notice of the availability of both the proposals and the analyses and opportunity to comment on them prior to and at the second Council meeting.
50 C.F.R. § 648.90(b)(1)(i)(1997).
Consistently with this provision, the Council considered the adoption of Framework 25 "over the span" of two meetings, held December 9-11, 1997, and January 13-15, 1998. There is no genuine dispute between the parties, and the administrative record3 supports the conclusion, that there was ample notice and opportunity for public comment on the proposed Framework 25 "prior to and at" the second meeting. The plaintiffs argument concerns the adequacy of notice of the agenda of the December Council meeting.
Specifically, he asserts that the Council failed to give notice of its December meeting that conformed to the following provision of the Magnuson-Stevens Act:
Timely public notice of each regular meeting and each emergency meeting, including the time, place, and agenda of the meeting, shall be published in local newspapers in the major fishing ports of the region ... and such notice may be given by such other means as will result in wide publicity. Timely notice of each regular meeting shall also be published...
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