to the extent that it challenges the optimum yield set in 1984, is time-barred.
Plaintiff presents three reasons why it is entitled to challenge the optimum yield cap more than thirty days after the Secretary implemented it by regulation. Plaintiff first argues that the 1989 regulations specifying total allowable catch limits incorporate a challengeable decision to maintain the optimum yield. Plaintiff relies on the settled doctrine that statute of limitations time periods are reopened when an agency publishes an existing rule in the Federal Register and solicits comments on the rule even if the agency ultimately decides not to alter the rule. See Montana v. Clark, 242 U.S. App. D.C. 62, 749 F.2d 740, 743-44 (D.C.Cir. 1984), cert. denied, 474 U.S. 919, 106 S. Ct. 246, 88 L. Ed. 2d 255 (1985). This exception to statutory time periods, however, applies only when the existing regulation is specifically reopened for public comment. In this case, the Secretary's 1989 request for public comment was limited to the "preliminary determinations of the initial specifications of [total allowable catch] and apportionments of groundfish that may be harvested in the [Bering Sea/Aleutian Islands] area in 1989." 53 Fed.Reg. 47998. The Secretary did not request comments on the 1984 regulation setting the optimum yield or the 1984 regulation that required the sum of the total allowable catch specifications to fall within the optimum yield range. Moreover, the Secretary could not have requested public comment on the optimum yield because that issue was not properly before him as the council had not proposed an amendment and no party had formally requested rulemaking. In approving the total allowable catch specifications recommended by the council, the Secretary specifically did not evaluate the optimum yield: "The Secretary finds . . . that the recommended [total allowable catch specifications], to the extent possible under the maximum [optimum yield] limit, are consistent with socioeconomic goals and objectives of the [fishery management plan]." 54 Fed.Reg. 3605. The Secretary did not open the optimum yield to public comment, nor did he consider amending it. As a consequence, the Montana v. Clark exception to the statute of limitations does not apply, and plaintiff cannot challenge the 1984 optimum yield by challenging the 1989 total allowable catch specifications.
In its second argument, plaintiff challenges the optimum yield more directly, arguing that the thirty-day limitations period on the 1984 optimum yield regulation began to run only after plaintiff's members were injured by the 1989 total allowable catch regulations. In making this argument, plaintiff relies heavily on Islamorada Charter Boat Association v. Verity, 676 F. Supp. 244 (S.D.Fla. 1988), which held that the statute of limitations begins to run when a party is aggrieved by a regulation rather then when the regulation is adopted. The only circuit court to address the issue, however, held that the thirty-day limit begins to run "on the date of the regulation's publication, and not at some later time." Kramer v. Mosbacher, 878 F.2d 134, 137 (4th Cir. 1989). The Kramer court specifically rejected the district court's holding in Islamorada and noted that "district courts which have considered the issue have almost universally agreed that the thirty day limit commences at the time the regulations are published and that this limit is to be strictly construed." Id. (citing Readenour v. Mosbacher, Civil Action No. 89-0432, 1989 U.S. Dist. LEXIS 5459 (E.D.La. May 17, 1989); National Food Processors Ass'n v. Klutznick, 507 F. Supp. 76, 78 (D.D.C. 1981)). The Kramer court noted that "'to hold otherwise would undermine the time limits as set by Congress.'" Id. (quoting National Food Processors Ass'n, 507 F. Supp. at 78). These persuasive precedents establish that the statute of limitations begins to run when the regulation is promulgated. The relevant regulation here, i.e. the one that set the optimum yield, was published on January 4, 1984, over five years before plaintiff's complaint was filed.
Plaintiff's third argument in response to the limitations period is that, because its members were not injured by the optimum yield in 1984 and therefore could not present a justiciable case or controversy, the statute of limitations unjustly precludes review of the optimum yield cap. Plaintiff is correct that it cannot now directly challenge the optimum yield, but an avenue of administrative appeal nevertheless remains open. Although the Secretary ordinarily will not consider amending a plan unless the council so recommends, the Secretary is authorized to prepare an amendment to the plan and to promulgate corresponding regulations if the council has failed to submit a necessary amendment. See 16 U.S.C. § 1854(c)(1). However, the Secretary will consider amending the plan only in response to a formal petition for rulemaking pursuant to § 4(e) of the Administrative Procedure Act, 5 U.S.C. § 553(e). Although plaintiff has repeatedly requested that the council recommend amending the optimum yield, plaintiff has yet to petition the Secretary formally for such an amendment.
If the Secretary rejected such a formal petition, that action would be reviewable. Thus, review of the optimum yield is not precluded.
Accordingly, because the Secretary has not reopened the optimum yield cap issue, because plaintiff's challenge to the 1984 optimum yield cap was not presented within thirty days of the publication of the regulation setting the optimum yield, and because other avenues for seeking judicial review remain open, plaintiff's claim is time-barred by the thirty-day statute of limitations set forth in 16 U.S.C. § 155(d).
Plaintiff's failure to petition the Secretary for a formal amendment presents an additional and related bar to judicial review of the optimum yield. Although the Secretary promulgates regulations annually, he does not address the fishery management plan unless the council recommends an amendment or a party formally requests an amendment. Because the Secretary has not received such a council recommendation or formal request, he has not considered amending the plan to change the optimum yield. Consequently, the Secretary has not made any findings or conclusions that can be judicially reviewed.
Plaintiff contends that the Secretary has already ruled on a formal petition for rulemaking by another party. Plaintiff finds this ruling in the Secretary's response to a comment directed at the 1989 total allowable catch specifications, which suggested that the Secretary promulgate emergency regulations to raise the optimum yield. The Secretary's response indicated that he did not feel that emergency regulations were necessary. The Secretary's response, however, was not a ruling on a formal petition for an amendment -- it was merely a response to an informal comment, and plaintiff's reliance on it is therefore misplaced.
Plaintiff also argues that a formal petition would be futile as the Secretary has already indicated his views on changing the optimum yield. In making this argument, plaintiff relies on a statement made by the Secretary in response to a comment about the 1988 total allowable catch specifications. The Secretary had stated that "the Council process is the appropriate forum to adjust the [optimum yield] range as [a fishery management plan] amendment is required." See 53 Fed.Reg. 896 (Jan. 14, 1988). Plaintiff's argument, however, is both simplistic and irrelevant. For one, the Secretary's statement simply conveys his view that the proper forum for plan amendments is the council; the statement does not indicate that the Secretary would reject a formal petition if he found that the council had failed to make a necessary amendment. Moreover, even if the Secretary did reject such a formal petition, that rejection should generate findings and conclusions conducive to judicial review.
Accordingly, plaintiff's challenge to the optimum yield cap is barred by plaintiff's failure to exhaust its administrative remedies.
Because plaintiff is barred from challenging the optimum yield regulations and because plaintiff has not challenged any other aspect of the 1989 total allowable catch regulations, an accompanying Order will grant defendant's motion to dismiss and dismiss plaintiff's cause of action.
Date: December 1, 1989
ORDER - December 1, 1989, Filed
For the reasons stated in the accompanying Memorandum, it is this 1st day of December, 1989, hereby
ORDERED: that defendant's motion to dismiss is GRANTED; and it is further
ORDERED: that plaintiff's cause of action is DISMISSED.