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SOUTHEASTERN FISHERIES ASSN., INC. v. MOSBACHER

July 30, 1990

SOUTHEASTERN FISHERIES ASSOCIATION, INC. and National Fisheries Institute, Inc., Plaintiffs,
v.
ROBERT A. MOSBACHER, Secretary, United States Department of Interior, J. Curtis Mack, Acting Admimistrator, National Oceanic and Atmospheric Administration, United States of Department of Commerce, and William E. Evans, Assistant Administrator for Fisheries, National Oceanic and Atmospheric Administration, Defendants and Coastal Conservation Association and State of Florida, Defendant-Intervenors



The opinion of the court was delivered by: HARRIS

 In September 1987, plaintiffs filed an amended complaint challenging certain provisions of the Secretarial Fishery Management Plan for the Red Drum Fishery of the Gulf of Mexico, and its implementing regulations. Plaintiffs allege that defendants' regulations of these federal waters known as the Exclusive Economic Zone (EEZ) violate the Magnuson Fishery Conservation and Management Act, 16 U.S.C. § 1801 et seq. (1988) (Magnuson Act), and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (1988) (APA). *fn1" Defendants have moved to dismiss Count I of plaintiffs' amended complaint for lack of ripeness. *fn2" Count I alleges that defendants' regulations allow states, in violation of the Magnuson Act, the APA, and the Supremacy Clause, to regulate the landing, possession, and sale of redfish taken in (1) the indirect finfish fishery in the EEZ, and (2) the directed redfish fishery in the EEZ. *fn3" Upon consideration of defendants' motion, plaintiffs' opposition thereto, and the entire record herein, defendants' motion is granted as to the directed redfish fishery and denied as to the indirect finfish industry.

 BACKGROUND

 This lawsuit commenced in July 1986 as a challenge to defendants' emergency regulations of the EEZ. *fn4" Defendants promulgated these emergency regulations in response to a crisis in the red drum fishery in federal waters in the Gulf of Mexico, caused in part by the surge in popularity of blackened redfish. Defendants issued permanent regulations in the form of a Fishery Management Plan (FMP) in December 1986, *fn5" and then further amended the FMP in May 1987 (Amended FMP). *fn6" The Amended FMP prohibits a directed commercial red drum fishery in the EEZ and limits the red drum harvest in the indirect finfish fishery to 100,000 pounds. *fn7" However, unlike the FMP, the Amended FMP did not expressly supersede state landing, possession, and sale laws, and plaintiffs challenge this failure to supersede state laws in Count I of their amended complaint. They argue that such failure results in eliminating all redfish catch in the EEZ since plaintiffs operate boats with purse seine nets, and four of five Gulf Coast States ban the landing, possession, or sale of redfish caught with purse seine gear in the EEZ. Thus, according to plaintiffs, any harvest permitted in the EEZ cannot be landed, sold, or possessed throughout much of the Gulf of Mexico. Plaintiffs allege that these state laws are inconsistent with the Amended FMP, and that the Magnuson Act requires defendants to preclude conflicting state law when they regulate fishing in the EEZ. *fn8"

 DISCUSSION

 In their motion to partially dismiss, defendants argue that Count I is not ripe for review because (1) there is no directed commercial red drum fishing in the EEZ, and (2) there is not yet a federal regulation controlling the landing, sale, and possession of red drum taken from the EEZ. Thus, defendants argue they have not made a final decision as to whether to supersede state law. Plaintiffs argue that Count I is ripe for review because (1) the legal question of supersession is fit for review, and (2) plaintiffs suffer hardships from the denial of judicial review.

 A. The Indirect Finfish Fishery

 In their motion to dismiss Count I, defendants do not address the ripeness issue with regard to supersession of state laws directed at the indirect finfish fishery. Plaintiffs argue that the portion of Count I dealing with the indirect finfish fishery is ripe, because such fishing is currently affected by the Amended FMP. Plaintiffs need not make further argument, because defendants concede in their reply that the supersession issue is ripe with respect to regulations in the incidental fishery. Defendants admit that there is currently a federal regulation applying state landing and possession laws in the incidental fishery, and that such final agency action renders that portion of plaintiffs' claim ripe for review. *fn9" Accordingly, the Court denies defendants' motion to dismiss any portion of Count I that addresses the indirect finfish fishery.

 B. The Directed Redfish Fishery

 In this portion of Count I, plaintiffs allege that defendants violated the Magnuson Act, the APA, and the Supremacy Clause by failing to supersede state landing, selling, and possession laws for redfish caught in the directed redfish fishery in the EEZ. This claim, however, is not ripe for review.

 Defendants challenge Count I's ripeness on three grounds: first, defendants argue that there is no final agency action on the issue of state supersession with regard to the directed redfish fishery; second, they argue that the supersession issue is bound up with the factual matter of whether the directed redfish fishery will eventually reopen; and third, they argue that plaintiffs do not suffer hardship from denial of review because the directed redfish fishery is currently closed, and plaintiffs may file a complaint if and when defendants decide to reopen the directed redfish fishery.

 Plaintiffs raise two arguments in opposition to defendants' position: first, they argue that the issue of supersession is a purely legal question fit for review; and second, they argue that the hardships they suffer favor early review.

 The resolution of a ripeness question requires the application of the two-prong test set forth in Abbott Laboratories v. Gardner, 387 U.S. 136, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967). The Court must consider both the fitness of the issues for judicial determination and the hardship to the parties in withholding review. Id. at 149. This inquiry prevents premature adjudication and judicial entanglement in administrative ...


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