Tutein v. Daley, CIV.A. 98-11034-MLW.

Decision Date17 March 1999
Docket NumberNo. CIV.A. 98-11034-MLW.,CIV.A. 98-11034-MLW.
PartiesJeffrey TUTEIN et al., Plaintiffs, v. William M. DALEY, United States Secretary of Commerce, Defendant.
CourtU.S. District Court — District of Massachusetts
43 F.Supp.2d 113
Jeffrey TUTEIN et al., Plaintiffs,
William M. DALEY, United States Secretary of Commerce, Defendant.
No. CIV.A. 98-11034-MLW.
United States District Court, D. Massachusetts.
March 17, 1999.

Page 114

David E. Frulla, Brand, Lowell & Ryan, P.C., Washington, DC, H. Reed Witherby, Smith and Duggan LLP, Boston, MA, for Jeffrey Tutein, Dorwin Allen, Raymond Kane, Ronald Marsh, Eric Hesse, Plaintiffs.

Mark A. Brown, U.S. Department of Justice, Wildlife & Marine Resources, Washington, DC, for William M. Daley, United States Secretary of Commerce, Defendant.

Bruce E. Falby, Hill & Barlow, Boston, MA, Stephen E. Roady, Earth Justice Legal Defense Fund, Washington, DC, National Audobon Society, interested party.



BOWLER, United States Magistrate Judge.

Plaintiffs, five New England commercial fishermen of Atlantic Bluefin Tuna ("ABT"), seek declaratory and injunctive relief against defendant William M. Daley, Secretary of the Department of Commerce ("the Secretary"). Plaintiffs complain that the Secretary acted in an arbitrary and capricious manner as well as outside his statutory authority by issuing a May 1, 1998 guideline and by declaring ABT "overfished" based on stock size as opposed to fishing mortality rates. Plaintiffs assert claims under the Magnuson Fishery Conservation and Management Act ("the Magnuson Act"), as amended by the Sustainable Fisheries Act of 1996 ("the SFA"), 16 U.S.C. §§ 1801 et seq. (collectively: "the Magnuson-Stevens Act"), and the Administrative Procedure Act ("the APA"), 5 U.S.C. §§ 702 & 706. In a three count

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complaint, plaintiffs additionally claim that the Secretary violated the Regulatory Flexibility Act ("the RFA"), 5 U.S.C. §§ 601-612.

The Secretary moves to dismiss all counts for lack of subject matter jurisdiction. With respect to Count I under the Magnuson-Stevens Act and the APA, the Secretary contends that the Magnuson-Stevens Act precludes, by implication, judicial review of the May 1, 1998 advisory guideline notwithstanding the APA's general provisions for judicial review of agency actions. The Secretary also asserts that all three counts are not ripe for review because the Secretary has yet to promulgate final regulations implementing a fishery management plan ("an FMP") with respect to ABT. (Docket Entry 10 & 15). Plaintiffs take issue with both arguments. (Docket Entry # 13).

After hearing arguments on the motion to dismiss (Docket Entry # 9) and a motion to intervene filed by the National Audubon Society ("NAS") (Docket Entry # 16) at the December 2, 1998 hearing, this court took the motions under advisement.



Count I seeks to invalidate an advisory guideline published as a "Final Rule" in the Federal Register, 50 C.F.R. § 600.310(d), on May 1, 1998. The guideline1 further defined the terms "overfishing" and "overfished" set forth in the SFA, 16 U.S.C. § 1802(29). Unlike the prior legislation, the SFA, signed into law in October 1996, contains an express definition of the terms "overfishing" and "overfished." It reads as follows:

The terms "overfishing" and "overfished" mean a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis.

16 U.S.C. § 1802(29).

On May 1, 1998, the Secretary, acting through the National Marine Fisheries Service ("the NMFS") and the National Oceanic and Atmospheric Administration ("NOAA"), issued revised as well as new guidelines for eight of the ten national standards for fishery management and conservation set forth in the Magnuson-Stevens Act. In order to assist in the development of FMPs and regulations as well as to implement the October 1996 amendments to the Magnuson Act, which resulted in the SFA, the NMFS and NOAA extensively amended 50 C.F.R. part 600 on May 1, 1998. 63 Fed.Reg. 24212 (1998). With respect to national standard one,2 the NMFS and NOAA amended the existing guideline by issuing a twofold definition of "overfished" based: (1) on the rate or level of fishing mortality; and (2) on the small size of a stock or stock complex. As promulgated, the definition,

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which plaintiffs contend is ultra vires, reads as follows:

(D) Overfishing —

(1) Definitions.

(i) "To overfish" means to fish at a rate or level that jeopardizes the capacity of a stock or stock complex to produce MSY on a continuing basis ....

(iii) In the Magnuson-Stevens Act, the term "overfished" is used in two senses: First, to describe any stock or stock complex that is subjected to a rate or level of fishing mortality meeting the criterion in paragraph (d)(1)(i) of this section, and second, to describe any stock or stock complex whose size is sufficiently small that a change in management practices is required in order to achieve an appropriate level and rate of rebuilding.

50 C.F.R. § 600.310(d) (emphasis added). In Count I, plaintiffs contend that the emphasized definition of "overfished" in terms of stock size, as opposed to fishing mortality rate, is arbitrary and capricious and exceeds the Secretary's statutory authority.

In Count II, plaintiffs object to the Secretary listing ABT3 as overfished in a September 1997 report to Congress. Asserting that the listing was arbitrary and capricious as well as outside the Secretary's statutory authority, plaintiffs seek judicial review under the APA, 5 U.S.C. §§ 702, 706(2)(A) & 706(2)(C).

The SFA requires the Secretary to "report annually to Congress ... and identify those fisheries that are overfished or are approaching a condition of being overfished." 16 U.S.C. § 1854(e)(1). The Secretary, acting through NMFS, issued its first report under the SFA to Congress in September 1997. The report extensively catalogues 86 species as overfished, 193 species as not overfished, ten species as approaching an overfished condition and the remaining 448 species as unknown. Therein, the Secretary classified ABT as overfished based on its stock size using criteria from the 1995 edition of Our Living Oceans ("OLO"), a report issued by the United States Department of Commerce, NOAA and NMFS.4

In Count III, plaintiffs maintain that the RFA required the Secretary to prepare an initial and a final regulatory flexibility analysis vis-a-vis the May 1, 1998 guideline. See 5 U.S.C. §§ 603 & 604. The Assistant General Counsel for Legislation and Regulation of the Department of Commerce, however, certified that the May 1, 1998 guideline would not have a significant impact upon a substantial number of small entities. 63 Fed.Reg. 24228-24229 (1998). Hence, no regulatory analyses were prepared. See 5 U.S.C. § 605(b). Plaintiffs disagree with this determination. Under the RFA's judicial review provision, 5 U.S.C. §§ 611(a)(1) & 611(a)(4), plaintiffs seek to defer any further implementation of the May 1, 1998 guideline until the Secretary performs the required regulatory analyses and thereby complies with the RFA.


Beginning at the international level, in 1969 the United States joined other signatory nations to the International Convention for Conservation of Atlantic Tunas ("ICCAT"). Massachusetts Audubon Society,

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Inc. v. Daley, 31 F.Supp.2d 189, 192 (D.Mass.1998). ABT migrates over broad oceanic areas thereby generating a need for international conservation efforts. (Docket Entry # 11, Ex. 306, p. 53). To carry out the Convention, the ICCAT established an International Commission for the Conservation of Atlantic Tunas ("the Commission"). Massachusetts Audubon Society, Inc. v. Daley, 31 F.Supp.2d at 192. Since 1982, the Commission has set and established ABT quotas by country. (Docket Entry # 11, Ex. 306, p. 53; Docket Entry # 1, ¶ 5).

In 1998 the total allowable catch for ABT allocated to the United States was 1,344 metric tons. (Docket Entry # 1, ¶ 62). The United States implements the ICCAT and the Commission's harvesting recommendations through the Atlantic Tunas Convention Act ("ATCA"), 16 U.S.C. §§ 971-971i. Under Article VIII of the ICCAT, the Commission's suggested harvesting recommendations become binding upon signatory nations such as the United States within six months, absent an objection accepted by the ICCAT.5 Center for Marine Conservation v. Brown, 1993 WL 108944 at * 1 (D.D.C. March 29, 1993). "Section 971d of ATCA makes the quotas proposed by the Commission binding on the United States." Center for Marine Conservation v. Brown, 1993 WL 108944 at * 1 (D.D.C. March 29, 1993).

Under ATCA, the Secretary has the authority to promulgate "such regulations as may be necessary and appropriate to carry out" the recommendations of the Commission. 16 U.S.C. § 971d(c)(1)(A). Such regulations may "limit the size of the fish and quantity of the catch" taken from a particular area. 16 U.S.C. § 971d(c)(3)(D). ATCA regulations, codified at 50 C.F.R. §§ 285.1 et seq., cannot "have the effect of increasing or decreasing any allocation or quota of fish or fishing mortality level" recommended by the Commission and agreed to by the United States. 16 U.S.C. § 971d(c)(3); Massachusetts Audubon Society, Inc. v. Daley, 31 F.Supp.2d at 193. Such regulations must also be consistent with FMPs implemented under the Magnuson-Stevens Act. 16 U.S.C. § 971d(c)(1)(C).

In addition to ATCA, the Secretary has authority to manage ABT under the Magnuson-Stevens Act. Massachusetts Audubon Society, Inc. v. Daley, 31 F.Supp.2d at 192. In particular, the SFA amended the Magnuson Act to expressly give the Secretary "authority over any highly migratory species fishery."6 16 U.S.C. § 1852(a)(3). The SFA defines "highly migratory species" as tuna, i.e., ABT. 16 U.S.C. § 1802(20).

In general, the Magnuson-Stevens Act established "eight regional fishery...

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