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ASSOCIATED VESSELS SERVS. v. VERITY

May 9, 1988

Associated Vessels Services, Inc., and Stonavar Trading, Inc., Plaintiffs
v.
C. William Verity, Secretary of Commerce and J. Curtis Mack, II, Administrator and Under Secretary, National Oceanic and Atmospheric Administration, Defendants



The opinion of the court was delivered by: SPORKIN

 STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE

 This is a lawsuit brought by two corporations representing foreign interests who seek judicial relief from actions taken by the Secretary of Commerce and the Administrator of the National Oceanic and Atmospheric Administration ("NOAA") in regulating and managing Atlantic Loligo squid fisheries. Plaintiffs seek declaratory and injunctive relief from defendants' promulgation of final annual specifications for Loligo squid for 1986. Plaintiffs contend that defendants are not managing the Atlantic squid fishery in a manner consistent with the Magnuson Fishery Conservation and Management Act of 1976, as amended, 16 U.S.C. § 1801 et seq. ("Magnuson Act") and the applicable regulations, 50 C.F.R. Part 655.

 Plaintiffs are two corporations which provide vessel support services, including fishing and management of boats, to Spanish vessels fishing for Atlantic Loligo squid. The core of plaintiffs' complaint is that the defendants unlawfully reduced foreign nations' rights to harvest Loligo squid. As a result of that reduction, plaintiffs claim that the Spanish lost their right to fish for Atlantic Loligo squid and that they, in turn, lost an important part of their demand for vessel support services.

 Plaintiffs challenge defendants' 1986 final specifications for Loligo squid on two principal grounds. *fn1" First, they claim that the final 1986 regulations unlawfully over-estimate the amount of squid that will be caught by domestic fisherpeople -- and thereby almost completely cut the foreign fishing interests out of the domestic squid harvest. Second, plaintiffs urge that defendants' final 1986 specifications force the Secretary of State to violate certain agreements he made to permit foreign nations to harvest Loligo squid pursuant to certain "purchase ratios." Plaintiffs claim that these purchase ratios function to create rights to fish for foreigners based on their purchases of domestically harvested and/or processed squid. *fn2" They have moved for summary judgment and a variety of remedies -- including measures that would involve this court in the allocation of fishing rights to foreign interests, a function Congress delegated exclusively to the Secretary of State.

 Defendants oppose plaintiffs' motion for summary judgment and ask me to dismiss this case. In addition to defending the regulations challenged on the merits, defendants raise a number of jurisdictional barriers to plaintiffs' right to obtain the relief they seek from this court.

 I have decided to deny plaintiffs' claim and will dismiss this case. My decision is based largely on the fact that Congress did not intend to create a cause of action on behalf of foreign fishing interests to challenge allocations of TALFF made by the Secretary of State in cooperation with the Secretary of Commerce.

 The Fishery Conservation and Management Act, enacted by Congress in 1976, declares, in part, that:

 
A national program for the conservation and management of the fishery resources of the United States is necessary to prevent overfishing, to rebuild overfished stocks, to insure conservation, and to realize the full potential of the Nation's fishery resources.
 
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 ("findings") (6) and (7). Congress also made explicit its concern that:

 
Many coastal areas are dependent upon fishing and related activities, and their economies have been badly damaged by the overfishing of fishery resources at an ever-increasing rate over the past decade. The activities of massive foreign fishing fleets in waters adjacent to such coastal areas have contributed to such damage, interfered with domestic fishing efforts, and caused destruction of the fishing gear of United States fishermen.

 16 U.S.C. § 1801 ("findings") (3). Congress, in short, enacted the Magnuson Act to protect American fishery resources and to help promote the American fishing industry.

 In order to achieve these goals, Congress established a two hundred mile fishery conservation zone around the United States within which fishing by foreign vessels is prohibited, except as authorized by the Act. See 16 U.S.C. §§ 1811 and 1812. The Act also established Regional Fishery Management Councils, comprised of federal and state appointees, which are responsible, with the participation of the domestic fishing industry and other interested groups, for preparing, monitoring and revising fishery management plans for the species within its geographical area. 16 U.S.C. § 1801(b)(5); 16 U.S.C. § 1852. *fn3" The Mid-Atlantic Regional Council has prime responsibility for preparing and monitoring the management plan for Loligo squid. *fn4" The Councils submit these fishery management plans to the Secretary of Commerce, who is charged under the Magnuson Act with reviewing the plans to make sure they are consistent with the national standards, *fn5" other provisions of the Magnuson Act and other applicable law. 16 U.S.C. § 1854(a)(1)(A). The Secretary is also required to publish proposed plans or amendments in the Federal Register and to consider public comment. 16 U.S.C. §§ 1854(a)(1)(B); (a)(2)(A). The Act makes no provision for judicial review of either the fishery management plans or amendments. *fn6"

 Once the Secretary of Commerce has approved a plan or an amendment, 16 U.S.C. § 1854(b)(1), he is responsible for its implementation. Regional Councils submit proposed implementing regulations to the Secretary, together with their proposed fishery management plan or amendment. The Secretary of Commerce is then required to review the proposed regulations, make any changes he believes may be necessary, and publish the proposed regulations in the Federal Register for public comment. 16 U.S.C. § 1854(a)(1)(C). Following the comment period, and after considering any relevant concerns, the Secretary may promulgate regulations. 16 U.S.C. § 1855 (a)-(c).

 The Magnuson Act provides for very limited judicial review of the Secretary's promulgation of these implementing regulations:

 
Regulations promulgated by the Secretary under this chapter [the Magnuson Act] shall be subject to judicial review to the extent authorized by, and in accordance with, Chapter 7 of Title 5 [of the United States Code], if a petition for review is filed within 30 days after the date on which the regulations are promulgated; except that (1) section 705 of such title is not applicable, and (2) the appropriate court shall only set aside any such regulation on a ground specified in Section 706 (2)(A), (B), (C) or (D) of such title.

 16 U.S.C. § 1854(b)(1). In so providing, Congress explicitly barred the use of the more stringent "substantial evidence" standard of review. See generally 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). Thus, Congress vested the Secretary with broad discretion in promulgating regulations to implement the fishery management plan, and permitted courts to only consider "whether this discretion was exercised rationally and consistently with the standards set by Congress." Maine v. Kreps, 563 F.2d 1052, 1055 (1st Cir. 1977); Louisiana v. Baldridge, 538 F. Supp. 625, 628 (E.D. La. 1982).

 This case involves a challenge to the final regulations promulgated for Loligo squid in 1986. *fn7" Although plaintiffs do not challenge the lawfulness of the fishery and management plan which forms the framework for the challenged final specifications for Loligo squid, it is to that plan and the national standards which we now must turn.

 B. The Regulatory Framework for Loligo Squid

 The Act requires that any fishery management plan or amendment prepared by either the Regional Fishery Management Councils or the Secretary of Commerce, and any regulations issued to implement a fishery plan or amendment, must be consistent with seven national standards. 16 U.S.C. § 1801; See also 50 C.F.R. Part 602.

 1. The Fishery Management Plan -- An Overview

 a. Optimum Yield ("OY") and Maximum Sustainable Yield ("MSY")

 One of the principal purposes of the Magnuson Act is "to provide for the preparation and implementation, in accordance with national standards, of fishery management plans which will achieve and maintain, on a continuing basis, the optimum yield from each fishery . . ." 16 U.S.C. § 1801(b)(4) (emphasis added). In accordance with that purpose, each fishery management plan is required to "assess and specify the present and probable future condition of, and the maximum sustainable yield and optimum yield from, the fishery . . ." 16 U.S.C. § 1853(a)(3) (emphasis added).

 According to the regulations, the maximum sustainable yield ("MSY") is "the largest average annual catch or yield that can be taken over a period of time from each stock under prevailing ecological and environmental conditions." *fn8" 50 C.F.R. § 602.11(c)(1).

 
(A) which will provide the greatest overall benefit to the Nation, with particular reference to food production and recreational opportunities; and
 
(B) which is prescribed as such on the basis of the maximum sustainable yield from such fishery, as modified by any relevant economic, social, or ecological factor.

 16 U.S.C. § 1802(18) (emphasis added). The regulations mandate that the process of determining the OY must include the consideration of the following nine factors:

 
(1) total world export potential by squid-producing countries;
 
(2) total world import demand by squid-consuming countries;
 
(3) U.S. export potential based on expected U.S. harvests, expected U.S. consumption, relative prices, exchange rates, and foreign trade barriers;
 
(4) increased or decreased revenues to the U.S. from foreign fees;
 
(5) increased or decreased revenues to U.S. harvesters (with or without joint ventures);
 
(6) increased or decreased revenues to U.S. processors and exporters;
 
(7) increases or decreases in U.S. harvesting productivity due to decrease or increase in foreign harvest;
 
(8) increases or decreases in U.S. processing productivity; and
 
(9) potential impact of increased or decreased TALFF [total allowable level of foreign fishing] on foreign purchases of U.S. products and services and U.S. caught fish, changes in trade barriers, technology transfer and other considerations.

 50 C.F.R. § 655.21(b)(1)(ii)(A)-(I). Whereas the determination of the MSY is essentially a scientific process, the process of determining the OY is designed to provide the Secretary of Commerce with a great deal of discretion. He is explicitly required to consider the economic needs of the domestic fishing industry and is directed to ...


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