State of La. v. Baldridge, Civ. A. No. 81-2028.

• Decision Date: 13 April 1982
• Docket Number: Civ. A. No. 81-2028.
• Citation: 538 F. Supp. 625
• Parties: STATE OF LOUISIANA and the Louisiana Department of Wildlife and Fisheries v. Malcolm BALDRIDGE, Secretary of the United States Department of Commerce.
• Court: U.S. District Court — Eastern District of Louisiana

538 F. Supp. 625

STATE OF LOUISIANA and the Louisiana Department of Wildlife and Fisheries v. Malcolm BALDRIDGE, Secretary of the United States Department of Commerce.

Civ. A. No. 81-2028.

United States District Court, E. D. Louisiana.

April 13, 1982.

Kendall L. Vick and Eavelyn T. Brooks, New Orleans, La., for plaintiffs, State of La. and The Louisiana Dept. of Wildlife and Fisheries.

Wells D. Burgess, Washington, D. C., for defendant, Malcolm Baldridge, Secretary of the U. S. Dept. of Commerce.

Leslie M. Macrae and R. Lambeth Townsend, Austin, Tex., for intervenor, State of Tex.

OPINION

ROBERT F. COLLINS, District Judge.

This case was tried to the Court, sitting without a jury, on June 10, 1981. After careful consideration of the evidence introduced during the trial, the arguments of counsel, the submitted memoranda and materials, the relevant facts, and the applicable law, the Court hereby renders its Opinion.

Introduction

The Fishery Conservation and Management Act (hereinafter the Act), 16 U.S.C. § 1801 et seq., declares that "a national program for the development of fisheries which are underutilized or not utilized by the United States fishing industry ... is necessary to assure that our citizens benefit from the employment, food supply, and revenue which could be generated thereby." 16 U.S.C. § 1801(a)(7). To this end, the Act authorizes the United States to assume management authority over fishery resources within a fishery conservation zone (hereinafter the FCZ), extending from the seaward boundary of the territorial sea to a point 200 miles from shore. 16 U.S.C. § 1811. The state continues to regulate fishing, except under circumstances not present in this case, out to the seaward limit of the state's territorial waters. 16 U.S.C. § 1856. The Act establishes Regional Fishery Management Councils composed of state and federal appointees to prepare, monitor and revise fishery management plans with the participation of the fishing industry and other interested groups. 16 U.S.C. §§ 1801(b)(4), 1801(b)(5), 1851, 1852. Plans and amendments to plans are submitted to the Secretary of the United States Department of Commerce (hereinafter the Secretary) for review and approval and, if approved, the plan becomes implemented through regulations promulgated by the Secretary. 16 U.S.C. §§ 1854, 1855.

Responsibility for developing fishery management plans for the Gulf of Mexico fisheries is vested in the Gulf of Mexico Fishery Management Council (hereinafter the Gulf Council), which consists of members from the States of Texas, Louisiana, Mississippi, Alabama, and Florida. One of the first fisheries addressed by the Gulf Council was the shrimp fishery. Shrimp is the most valuable of all domestic fisheries, averaging 23 percent of the value of all fish landed in the United States for the period 1964 through 1977, and commercial shrimp fishing in the Gulf of Mexico accounted for over 80 percent of the dockside value of the United States shrimp landings. 45 Fed. Reg. 74218. There are essentially three types of shrimp processors: 1) "green" (fresh) or frozen shrimp; 2) "breaders"; and 3) canners. 45 Fed.Reg. 74194. Canners are located primarily in South Louisiana and Mississippi, with the largest concentration found in the New Orleans area. Canners generally use small to medium shrimp. Processors of green, frozen, and breaded shrimp, many of whom are located in Texas, tend to use larger shrimp for their product. Id.

Having identified the problems associated with the shrimp fishery, the Gulf Council drafted a comprehensive management plan, including Management Measure No. 2, which is the subject of this lawsuit. Management Measure No. 2 establishes "a cooperative closure of the territorial sea of Texas and the adjacent U. S. FCZ ...." 45 Fed.Reg. 74192. The Act specifically authorizes Regional Fishery Management Councils to designate zones where, and periods when, fishing shall not be permitted. 16 U.S.C. § 1853(b)(2). The purpose of Management Measure No. 2 is to protect shrimp until they reach a more valuable size and thereby eliminate the wasteful practice of discarding undersized brown shrimp. 45 Fed.Reg. 74297. A seasonal closure of the entire FCZ in the Gulf was not considered because of the potentially adverse impact on the Louisiana canning industry which relies upon a year round supply of smaller shrimp. 45 Fed.Reg. 74179.

Management Measure No. 2 was adopted after three years of planning evolution. The measure was developed by the Gulf Council's Shrimp Management Committee, which then adopted the measure after analysis of its expected effects by Louisiana State University, the contractor for the Plan. A draft of the plan containing Management Measure No. 2 and a draft environmental impact statement were released to the public in October, 1979. Public hearings were held at various sites throughout the Gulf States. Based upon public comments, a final draft of the plan was prepared and approved by the Gulf Council in January, 1980 and transmitted to the Secretary for his approval. In response to minority reports by council members who were concerned that Management Measure No. 2 would not be effective unless the State of Texas eliminated its size restrictions, the so-called count restriction, and who were also concerned about the possible adverse impact of Management Measure No. 2 on Louisiana shrimp fishermen, the Gulf Council designated Management Measure No. 2 as a trial measure. It was also recommended that the State of Texas rescind its count restriction law.

After a thorough review of the matter, including consideration of minority reports, the Secretary approved the plan, including Management Measure No. 2, on May 28, 1980. The plan was published together with proposed regulations to implement the plan on November 7, 1980, and public comment on the plan and proposed regulations were invited. 45 Fed.Reg. 74178. The State of Louisiana and the Louisiana Department of Wildlife and Fisheries submitted comments on the proposed regulations, contending that Management Measure No. 2 is based on inadequate scientific and economic data, fails to take into account recent trends and market variations, and is not consistent with the mandates set forth in the Act. The Secretary considered the comments and promulgated his response. 46 Fed.Reg. 27491-92. Management Measure No. 2 was implemented by regulation on May 20, 1981. 46 Fed.Reg. 27496-97 (50 C.F.R. 658.24). The 30-day period of delayed effectiveness was suspended so that the closure of the FCZ off the State of Texas would begin concurrently with the closure of Texas state waters on May 22, 1981. 46 Fed.Reg. 27493. The full effectiveness of Management Measure No. 2 was finally realized on May 25, 1981, when the State of Texas rescinded its count restriction law.

On May 18, 1981, the State of Louisiana and the Louisiana Department of Wildlife and Fisheries brought this action for declaratory judgment and for preliminary and permanent injunction of the implementation of Management Measure No. 2. In essence, the plaintiffs complain that Management Measure No. 2 does not comport with the national standards set forth in the Act and was implemented in violation of the plaintiffs' rights to procedural due process. The Court denied plaintiffs' motion for a temporary restraining order and for preliminary injunction. The Court then ordered that the case be heard on its merits under an expedited schedule. Trial on the merits was held on June 10, 1981, and the matter was taken under advisement.

Discussion

Scope of Review

Congress has specifically provided that regulations promulgated by the Secretary under the Act may only be set aside by a court of the appropriate jurisdiction if the said regulations are found to be:

A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; B) contrary to constitutional right, power, privilege, or immunity; C) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right; or D) without observance of procedure required by law.

16 U.S.C. § 1855(d) (citing 5 U.S.C. §§ 706(2)(A), (B), (C), and (D)). Only the regulations implementing the shrimp plan, and not the plan itself, are subject to judicial review. Nevertheless, the Secretary is obligated to determine that the plan conforms with the national standards set forth in the Act before regulations implementing the plan are promulgated, 16 U.S.C. §§ 1854, 1855, and hence, in reviewing the regulations, the Court must consider the plan to determine whether the Secretary has abused his discretion in issuing regulations implementing the plan. Washington Trollers Association v. Kreps, 466 F.Supp. 309, 312 (W.D.Wash.1979) rev'd on other grounds, 645 F.2d 684 (9th Cir. 1981). "The Secretary's finding that the plan complies with the statute is binding on the Court unless it is arbitrary, capricious or an abuse of discretion." Id. In short, the Secretary has broad discretion in promulgating regulations to implement the shrimp plan and the Court may only consider "whether this discretion was exercised rationally and consistently with the standards set by Congress ...." State of Maine v. Kreps, 563 F.2d 1052, 1055 (1st Cir. 1977); see also Pacific Coast Federation of Fishermen's Association v. Secretary of Commerce, 494 F.Supp. 626 (N.D.Cal.1980).

Standing to Sue

The Secretary has urged before this Court that the State of Louisiana and the Louisiana Department of Wildlife and Fisheries lack standing to bring this lawsuit. Relying upon Oklahoma v. Atchison, Topeke & Santa Fe R. Co., 220 U.S. 277, 31 S.Ct. 434, 55 L.Ed. 465 (1911), the Secretary contends that the state has no standing to maintain suit for injuries sustained by its citizens. The Secretary, however, ignores the state's historical role in managing its coastal waters. As stated by Judge Gignoux in State of Maine v. M/V Tamano, 357 F.Supp. 1097, 1100 (D.Me.1973)...