State of Me. v. Kreps

• Decision Date: 16 August 1977
• Docket Number: No. 77-1337,77-1337
• Parties: 7 Envtl. L. Rep. 20,762 STATE OF MAINE et al., Plaintiffs, Appellants, v. Juanita M. KREPS et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1043

563 F.2d 1043

7 Envtl. L. Rep. 20,762

STATE OF MAINE et al., Plaintiffs, Appellants, v. Juanita M. KREPS et al., Defendants, Appellees.

No. 77-1337.

United States Court of Appeals First Circuit.

Aug. 16, 1977.

Edward F. Bradley, Jr., Asst. Atty. Gen., Augusta, Maine, for plaintiffs, appellants.

William Brian Morrison, Atty., Dept. of Justice, with whom James W. Moorman, Acting Asst. Atty. Gen., Bruce C. Rashkow, and Michael W. Reed, Attys., Dept. of Justice, Washington, D. C., were on brief, for defendants, appellees.

Before COFFIN, Chief Judge, and CAMPBELL, Circuit Judge.

LEVIN H. CAMPBELL, Circuit Judge.

This is an action brought by the State of Maine ¹ seeking a declaration that the quotas set by the United States Secretary of Commerce for foreign fishing of herring stock in certain offshore waters of Maine is in violation of the Fishery Conservation and Management Act, 16 U.S.C. § 1801 et seq., (the "Act"). The area, so called 5Z-SA6, includes the Georges Bank fishing grounds. The Secretary published regulations under the Act governing herring fishing on February 11, 1977, and the plaintiffs brought this challenge on February 28. At the plaintiffs' request, the Department of Commerce reexamined its quotas, and the district court postponed taking action until the review could be completed. The administrative record was reopened and hearings were held on April 19 and 20. On May 13, the Department announced it would not change the limits set on the herring catch, although it did make one minor modification in the rules for tabulating the catch. On July 18, the district court held a hearing and then granted defendant's motion for summary judgment and dismissed the complaint. Plaintiffs appealed, seeking expedited review of the dismissal in this court.

The Fishery Conservation and Management Act, enacted on April 13, 1976, established a two hundred mile fishery conservation zone around the United States within which fishing by foreign vessels is prohibited, except to the extent authorized by the Act. To coordinate the various economic, ecological, and other interests in fish stock, § 1852 of the Act established eight Regional Fishery Management Councils, each with authority to prepare and submit to the Secretary of Commerce a fishery management plan for the species within its geographical area. Section 1821(g) provides that in the event the Secretary is notified that eligible foreign vessels have applied for permission to fish in protected waters and she determines that a management plan for the species sought to be fished will not be prepared by the appropriate regional council before March 1, 1977, she shall prepare a preliminary fishery management plan for those species. To the extent practicable, the Secretary is required to adhere to the same procedures of notice and hearing and same substantive standards that the regional council would have used had it promulgated a plan. 16 U.S.C. §§ 1821(g); 1851-61.

Before enactment of the Fishery Conservation and Management Act, the Georges Bank fishery had been managed by the International Commission for the Northwest Atlantic Fisheries (ICNAF), an international organization from which the United States withdrew at the end of 1976. ICNAF had a spotty record as a conservator of fishing resources, and in particular had permitted the Georges Bank herring stock to sink below acceptable levels. ² In recent years, however, the member nations had begun to recognize the long term dangers of a depleted fishing stock and gradually reduced their catches. At a meeting of ICNAF delegates in June, 1976, the scientific advisory committee reported that 50,000 metric tons (M.T.) could be taken from the Georges Bank herring stock in 1977 without further decreasing the school population. The Commission agreed to reduce this quota to 33,000 m.t. to permit some replenishment. The allocation of the agreed maximum catch among the member nations took place at a meeting in December, 1976, shortly before the American withdrawal. ³ The United States originally had sought a quota of 18,000 m.t. for its own fishermen but agreed to a reduction to 12,000 m.t. in return for economic concessions from the Federal Republic of Germany and acceptance by all the members of a limited fishing season for foreign fishermen.

Because the New England Regional Council would not be able to prepare a management plan for Georges Bank by the March 1 deadline, and in anticipation of applications to fish the area by foreign vessels, the Secretary prepared a draft preliminary management plan in September, 1976. Hearings were held, comments were received and responded to, and the final plan was published in February, 1977. The Secretary then determined the "optimum yield" of herring for the duration of the plan, a key factor which the Act requires to be ascertained. ⁴ She also estimated that a portion of this quota would be harvested by United States fishermen and remitted the balance to be apportioned among foreign fishermen. ⁵ Following the ICNAF guidelines, the Secretary determined that the optimum yield for Georges Bank herring in 1977 would be 33,000 m.t. and the United States share would be 12,000 m.t. ⁶ The remainder was allocated according to the ICNAF quotas negotiated in December.

The evidence before the Secretary indicated that present stocks in Georges Bank approximate 218,000 m.t., 7,000 m.t. below the level at which recruitment failure of herring is feared (225,000 m.t.). It was projected that an allowed yield of 33,000 m.t. in 1977 will permit the herring stocks to increase by some ten to thirteen percent by 1978, bringing the stock to a level of 247,000 m.t. ⁷ Even so, that level will be substantially below the 350,000-500,000 m.t. level which experts regard as an appropriate, healthy stock for the area. Until the stock can be rebuilt to that level, it would obviously be imprudent to allow fishermen to catch herring at the rate of 100,000 to 150,000 m.t. per annum, the figures said by the Government's expert to be the area's "maximum sustainable yield". ⁸

Maine argues that since the stock has declined to well below the norm for a healthy stock, and is indeed below the 225,000 m.t. "danger" level, the Act must be construed to ban foreign fishing altogether. The allowable level of foreign fishing under the statute "shall be that portion of the optimum yield . . . which will not be harvested by vessels of the United States". § 1821(d). Maine attacks the Secretary's 33,000 m. t. optimum yield figure as too high, and the Secretary's allocation of 12,000 m.t. to U.S. vessels as too low.

Maine's second point is readily disposed of. The Secretary's assessment of domestic fishing potential was supported by substantial evidence in the record. American fishermen have taken an average of 2,000 m.t. annually from Georges Bank since 1960 and have never exceeded an annual catch of 4,600 m.t. during that period. In 1976 domestic fishermen took 735 m.t. from the stock. Although evidence was presented to the agency indicating a growing desire on the part of American fishermen to increase their herring take from Georges Bank, the Secretary heard and credited evidence as to the economic infeasibility of greatly expanded fishing operations at this time. Contrary to Maine's contention, the plaintiffs had sufficient notice that economic considerations would be a factor in weighing the potential domestic catch. The district court properly sustained the portion of the preliminary management plan that estimated the potential American catch for 1977. This figure, of course, is subject to further consideration for future years.

Turning to Maine's attack on the optimum yield estimate, it is to be noted that Maine does not quarrel with the basic data testified to by Dr. Anthony, the Government's expert. Maine accepts his thesis that a yield of 33,000 m.t. will allow for at least a ten percent recoupment of the stock in 1977, although it points out that the stock is now dangerously depressed.

The state's chief contention is that where an area's stock is so depressed as to be unable to maintain fishing at the level of the maximum sustainable yield, priority has to be given to cultivating a surplus so as to rebuild the stock as rapidly as possible, with only U.S. fishing to be allowed.

So stated, we have to agree with the district court that the argument is without support in the Act. We find nothing in the Act which declares that all foreign fishing is to be disallowed whenever stocks are incapable of sustaining the MSY. The statute does, it is true, give first crack at the " optimum yield" to U.S. fishermen. Only such portion thereof "as will not be harvested by vessels of the United States" is available to foreign vessels. But we find nothing in the Act which prescribes a particular annual rate at which a below-par stock need be rebuilt. To be sure, the strong conservation and management aims of the Act clearly preclude the setting of an optimum yield which permits overfishing, see 16 U.S.C. § 1801; but the Secretary's present allotment is based on credible evidence that 33,000 m.t. will allow a ten percent increase in the stock. We cannot say this rate of increase is too slight to promote the purposes of the Act.

Maine is on firmer ground, however, insofar as it questions the adequacy of the present record to show that the Secretary considered fully the Act's definition of optimum yield in promulgating the 33,000 m.t. figure. The "optimum" yield, as defined in the Act, must be selected "on the basis of" the maximum sustainable yield as modified by "any relevant economic, social or ecological factor". In addition, the optimum yield must be such as "will provide the greatest overall benefit to the Nation, with particular reference to food production and recreational opportunities". Arguably the Nation would be better benefitted by leaving in the sea the 21,000 m.t. allotted to foreign vessels,...