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NATIONAL FISHERIES INST. v. MOSBACHER

March 12, 1990

NATIONAL FISHERIES INSTITUTE, INC., et al., Plaintiffs,
v.
ROBERT A. MOSBACHER, Secretary of Commerce, Defendant, and COASTAL CONSERVATION ASSOCIATION, Defendant-Intervenor



The opinion of the court was delivered by: RICHEY

 This is an Administrative Procedure Act ("APA"), 5 U.S.C. § 706, dispute over how the government should regulate the commercial and recreational harvest of certain billfish in the Atlantic Ocean. Representing commercial fishing interests, the plaintiffs challenge regulations issued by the Secretary of Commerce ("Secretary") pursuant to the Magnuson Fishery Conservation and Management Act ("Magnuson Act" or "Act"), 16 U.S.C. §§ 1801-82. These regulations have the effect of significantly reducing the domestic commercial harvest of Atlantic Ocean billfish while also limiting the recreational harvest to a lesser degree. The Court will uphold the challenged regulations because they do not exceed the scope of the Secretary's authority under the Magnuson Act and are adequately supported by the administrative record.

 I. Background

 Under the Magnuson Act the federal government has "exclusive fishery management authority" to regulate fishing by foreign and domestic fishermen *fn1" within an area now called the "exclusive economic zone" ("EEZ"), which extends 200 miles out to sea from the seaward boundary of the coastal States. See 16 U.S.C. §§ 1811, 1802(6) (West Supp. 1989). With one limited exception, *fn2" this authority extends to all fish, including billfish. For the purposes of this dispute, the term "billfish" comprises the blue marlin, white marlin, sailfish, and longbill spearfish species.

 The parties agree that these billfish migrate over such great distances and are so widely distributed -- both inside and outside the EEZ -- throughout the Atlantic Ocean, the Gulf of Mexico, and the Caribbean Sea that commercial and recreational fishermen rarely encounter billfish. Consequently, specific biological and quantitative data regarding the billfish resource are relatively scarce compared with information available for most other species of fish regulated under the Magnuson Act.

 More importantly, it is undisputed that within the EEZ the only directed fishing for billfish is by recreational fishermen using rod and reel gear. By contrast, commercial fishermen target other species, such as tuna or swordfish, and occasionally catch billfish as an incidental "bycatch" of their directed fishing activities. *fn3" Recreational fishing for billfish is apparently considered great sport, so much so that as early as 1982 "expenditures by participants in the fishery were estimated to be between $ 89 and $ 100 million." AR App. Vol. I, FMP Source Doc. at 3-3, 3-4; *fn4" see also AR App. Vol. I, Atlantic Billfish Fishery Management Plan ("FMP") at 33 (expenditures by participants in recreational billfish fishery estimated at $ 100 million in 1977-78). On the other hand, the estimated total ex-vessel value of billfish caught by longline fishermen in 1986 was $ 134,716, or far less than one percent of the catch by value for longline fishermen. AR App. Vol. I, FMP at 33-34; AR App. Vol. I, FMP Source Doc. at 8-15 & Table 8-4.

 The Magnuson Act established eight Regional Fishery Management Councils ("Councils") composed largely of members representing the regions' coastal states. See 16 U.S.C. § 1852. In the normal course of events, each Council prepares a fishery management plan ("FMP") for each fishery within its jurisdiction that requires conservation and management, § 1853, and then submits the FMP to the Secretary for approval, § 1854. The Secretary must evaluate the FMP for consistency with the Magnuson Act's seven national guidelines, § 1851(a)(1)-(7), and with any other applicable law, see § 1854(a)(1)(A). Once the Secretary approves the FMP, he or she implements it by promulgating regulations, § 1855(c), (g), which are subject to judicial review under the APA, § 1855(d).

 However, the instant case was somewhat unusual due to the migratory nature of billfish. Since the Atlantic Ocean billfish fishery extends beyond the geographical authority of any one Council, the Secretary directed the five Atlantic Councils to jointly prepare an FMP for the Atlantic Ocean billfish resource, with the South Atlantic Council in the role of lead council. *fn5"

 Without going into too much detail about the development of the billfish FMP at issue here, the Court can safely state -- and the parties all agree -- that this FMP has an exceedingly long history. In the beginning of 1978, the South Atlantic Council released a draft of the billfish FMP for public comment and review by the other Atlantic Councils. Concerned that commercial fishing in the EEZ was depleting billfish stocks and responding to the public's comments, the Atlantic Councils continued to work on developing ways for managing the billfish resource. In 1982, they requested an advance review by the National Marine Fisheries Service ("NMFS"), the sub-agency to whom the Secretary has delegated principal responsibility for developing and implementing regulations under the Magnuson Act. The Atlantic Councils made further changes to the FMP in response to NMFS' comments and in 1985 received further reports of low levels of abundance in the billfish stock. See AR App. Vol. III, 1985.2 at 1. In 1987, extensive public hearings were held throughout the United States, and the Atlantic Councils again received numerous written comments. Finally, after the Atlantic Councils and then the Secretary approved the FMP, the final rule implementing the FMP, along with responses to comments, were published in September 1988.

 The purposes of the final rule are to: (1) "reduce fishing mortality on billfish"; (2) "maintain the highest availability of billfish to the U.S. recreational fishery"; (3) "optimize the social and economic benefits to the Nation by reserving the billfish resource for the U.S. recreational fishery"; and (4) "increase understanding of the condition of the billfish stock and the billfish fishery." 53 Fed.Reg. 37,765 (1988). Moreover, recognizing the highly migratory nature of billfish, the FMP establishes "management units" for each of the four species of billfish which extend far beyond the EEZ to include much of the Atlantic Ocean. Although the Secretary's regulations implement several other management measures contained in the FMP, the plaintiffs on behalf of commercial fishermen challenge only the following measures: (1) "The possession or retention [within the Atlantic Ocean EEZ] of a billfish by a vessel with a pelagic longline or drift net aboard is prohibited," 50 C.F.R. § 644.22(b) (1988) (hereinafter "no possession provision"); (2) "A billfish harvested from its management unit may not be purchased, bartered, traded, or sold in any State," § 644.24(a) (hereinafter "no sale provision"); and (3) in most instances, seafood dealers and processors must have certain documentation for any billfish in their possession to show that it was not harvested from its management unit, § 644.24(b) (hereinafter "paper trail provision"). *fn6"

 Attacking the billfish FMP on two broad fronts, the plaintiffs argue first that the Secretary exceeded his authority under the Magnuson Act and second that, even if he had the authority to promulgate these regulations, they are not adequately supported by the record. The Court will consider and reject both of these challenges in turn.

 (A) Scope of Secretary's Authority

 An important threshold question is what standard of review the Court should apply in evaluating the scope of the Secretary's authority under the Magnuson Act. The plaintiffs contend that whether an agency has acted within its lawfully delegated power is a question of statutory construction subject to de novo judicial review. The Court disagrees.

 It is true, as the plaintiffs argue, that "the judiciary is the final arbiter on issues of statutory construction." INS v. Cardoza-Fonseca, 480 U.S. 421, 447, 107 S. Ct. 1207, 94 L. Ed. 2d 434 (1987) (quoting Chevron, USA, v. Natural Resources Defense Council, 467 U.S. 837, 843 n. 9, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984)). However, the plaintiffs emphasize only the tip of iceberg. In the very same paragraph, the Cardoza-Fonseca Court stated that the judiciary "must reject administrative constructions which are contrary to clear congressional intent. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is law and must be given effect." Id. at 447-48 (emphasis added) (quoting Chevron, 467 U.S. at 843 n. 9). On the other hand, when congressional intent is not clear, the judiciary's review of an administrative construction is much more deferential. "Where the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." NLRB v. United Food & Commercial Workers Union, 484 U.S. 112, 123, 108 S. Ct. 413, 98 L. Ed. 2d 429 (1987) (emphasis added) (quoting Chevron, 467 U.S. at 843). Thus, the Court must determine the standard of review on an issue-by-issue basis, deciding whether the Magnuson Act is clear or whether it is silent or ambiguous as to each of the plaintiffs' challenges.

 According to the plaintiffs, the Secretary overstepped the bounds of his authority under the Magnuson Act in three significant respects. First, they contend that the no possession provision is invalid because it applies to billfish caught beyond the EEZ whereas the Magnuson Act only authorizes regulation within the EEZ. The plaintiffs' second argument is that the Act does not authorize the type of marketplace regulation imposed by the no sale provision. Finally, the plaintiffs claim that the Magnuson Act does not authorize the five Councils, whose jurisdiction is limited to part of the Atlantic Ocean, to apply documentation requirements like the paper trail provision to billfish caught in the Pacific Ocean.

 (1) No Possession Provision

 The Magnuson Act delineates the federal government's jurisdiction over billfish as follows: "The United States claims, and will exercise . . ., sovereign rights and exclusive fishery management authority over all fish . . . within the [EEZ]." 16 U.S.C. § 1811(a) (West Supp. 1989). However, neither this nor any other section of the Act reveals whether the phrase "all fish within the EEZ" means that the Secretary's authority applies only to fish harvested within the EEZ (as the plaintiffs argue) or to fish located within the EEZ no matter where they were harvested (as the Secretary contends). Both of these interpretations are plausible. Thus, since the Act is at best ambiguous as to whether the no possession provision is an invalid "extraterritorial" expansion of the Secretary's power under the Act, the Court will defer to the Secretary's interpretation if it is a "permissible" construction of the Act. See United Food & Commercial Workers Union, 484 U.S. at 123.

 Notwithstanding the plaintiffs' protestations to the contrary, the no possession provision is not an "extraterritorial" application of a United States statute. *fn7" The United States Court of Appeals for this Circuit stated, "It has long been settled law that a country can regulate conduct occurring outside its territory which causes harmful results within its territory," Laker Airways v. Sabena, Belgian World Airlines, 731 F.2d 909, 922 (D.C.Cir. 1984), and emphasized that "the territorial effects doctrine is not an extraterritorial assertion of jurisdiction," id. at 923 (emphasis in original). Applying only to United States vessels located within United States territory, the no possession provision does not assert extraterritorial jurisdiction. Therefore, the cases that the plaintiffs cite for the presumption against applying a federal statute beyond the United States' jurisdiction are inapposite.

 There are several activities beyond the Atlantic Ocean EEZ which the no possession provision does not prohibit. As long as a commercial fishing vessel is not within the Atlantic Ocean EEZ, its fishermen may retain any billfish they catch and: (1) keep them on board; (2) cook and consume them; (3) off-load them to another boat, either foreign or domestic; or (4) sail to a foreign port (without entering the Atlantic Ocean EEZ) and sell the billfish abroad. Merely because the no possession provision forecloses the one activity that the plaintiffs regard as most desirable -- returning to domestic ports with the billfish they have caught -- does not mean that the regulation is invalid as an extraterritorial application of United States law. The FMP forbids a certain class of fishing vessels, whenever they are located within the Atlantic Ocean EEZ, from possessing billfish. In the absence of any clear indication by Congress to the contrary, the Court holds that this construction of the Secretary's authority under the Magnuson Act is permissible.

 (2) No Sale Provision

 Similarly, the Court is not persuaded by the plaintiffs' argument that the FMP's no sale provision is "marketplace regulation" not authorized under the Magnuson Act. Once again, the parties disagree on how to interpret part of the Act about which congressional intent is unclear. Therefore, the Court must determine whether the Secretary's construction is permissible. NLRB v. United Food & Commercial Workers Union, 484 U.S. 112, 123 (1987).

 In essence, the plaintiffs argue that nowhere in the Magnuson Act or in its legislative history did Congress indicate that the Secretary may regulate the sale of legally-caught fish. The plaintiffs argue that the structure of 16 U.S.C. § 1857, which contains the only sale prohibition reference in the Magnuson Act, specifically supports their position. In addition to a general prohibition against violations of "any provision of [the Act] or any regulation . . . issued pursuant to [the Act]," § 1857(1)(A), this section contains a more specific provision making it unlawful for any person "to ship, transport, offer for sale, sell, purchase, import, export, or have custody, control, or possession of, any fish taken or retained in violation of [the Act] or any regulation . . . [issued pursuant to the Act]," § 1857(1)(G). The plaintiffs contend that the more specific (1)(G) prohibition limits the Secretary's general authority under (1)(A) and that the no sale provision would "swallow up" the specific prohibition.

 The Court disagrees with this cramped interpretation of § 1857. The Magnuson Act vests broad authority in the Secretary to promulgate such regulations as are necessary to carry out the conservation and management measures of an approved FMP. See 16 U.S.C. §§ 1855(c), (g), 1827(g), 1853(a)(1)(A); see also Kramer v. Mosbacher, 878 F.2d 134, 135 (4th Cir. 1989); Lovgren v. Byrne, 787 F.2d 857, 864 (3d Cir. 1986). Moreover, § 1857(1)(A) makes it unlawful for any person to violate any regulation issued pursuant to the Magnuson Act. Merely because Congress chose to also specify certain actions as unlawful per se in § 1857(1)(B)-(I) does not mean that it intended those prohibitions to be the boundaries of the Secretary's broad rulemaking authority.

 
Indeed, to conclude otherwise would be contrary to the Supreme Court's longstanding view that it is not "a reasonable canon of interpretation [to assume] that the draftsmen of acts delegating agency powers, as a practical and realistic matter, can or do ...

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