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SEA WATCH INTL. v. MOSBACHER

April 8, 1991

SEA WATCH INTERNATIONAL, et al., Plaintiffs,
v.
ROBERT A. MOSBACHER, Defendant; JAMES PEARSON, et al., Plaintiffs, v. ROBERT A. MOSBACHER, et al., Defendants



The opinion of the court was delivered by: BOUDIN

 MICHAEL BOUDIN, UNITED STATES DISTRICT JUDGE

 Plaintiffs filed these actions on July 13, 1990, seeking judicial review of administrative actions taken by defendant Bryson in his capacity as Executive Director of the Mid-Atlantic Regional Fishery Management Council and approved by defendant Mosbacher, the Secretary of Commerce ("the Secretary"), under the Magnuson Fishery Conservation and Management Act of 1976, 16 U.S.C. §§ 1802-1882 ("the Magnuson Act" or "the Act"). The cases were consolidated on October 17, 1990, and the parties filed cross-motions for summary judgment. In addition, defendants have moved to dismiss both cases on timeliness grounds. Oral argument was heard on March 11, 1991. For the reasons stated below, the Court denies defendants' motion to dismiss, but grants summary judgment for the defendants.

 I. THE FACTS

 In 1976, Congress passed the Magnuson Act, which created eight Regional Fishery Management Councils and gave them authority to regulate fishery resources found in federal waters off the coasts of the United States. 16 U.S.C. §§ 1852(a)(1)-(8). The Councils develop, administer, and revise fishery management plans ("FMPs") that regulate fishing for the species in the Councils' respective geographical areas. 16 U.S.C. § 1852(h)(1). When adopting FMPs or FMP amendments, the Councils must follow certain procedures set forth by the Act, 16 U.S.C. § 1852(j), and also must comply with express provisions governing the content of FMPs, 16 U.S.C. § 1853. Additionally, they must ensure that the FMPs are consistent with seven National Standards ("the Standards") enumerated by the Act. 16 U.S.C. § 1851. Once a Council adopts an FMP or amendment, it is submitted along with proposed implementing regulations to the Secretary of Commerce for review. 16 U.S.C. § 1853(c). The Secretary reviews the FMP or amendment for consistency with the Standards, the Act, and other applicable law. 16 U.S.C. § 1854. If the Secretary approves the FMP or amendment, the Secretary then promulgates the regulations. 16 U.S.C. § 1855(c).

 In 1977, the Mid-Atlantic Regional Fishery Management Council ("the Council") began to regulate the surf clam and ocean quahog fisheries. The original FMP for these fisheries has been amended several times. In 1979, the surf clam fishery was divided into the Mid-Atlantic and New England surf clam fisheries. The Mid-Atlantic Council retained primary authority over both fisheries, as well as over the ocean quahog fishery. In each of the three fisheries, the Council established an aggregate annual catch quota, attainment of which would result in closure of that fishery for the year.

 The New England surf clam fishery was less restricted, with no permit system, and effort restrictions imposed only if a certain percentage of the annual aggregate catch quota was harvested. This fishery was further divided into two sub-areas, and separate quotas and quarterly sub-quotas were established for each. Finally, the quahog fishery essentially went unrestricted, except for the annual aggregate quota. Access to the fishery was unlimited, and effort restrictions were imposed only briefly in 1984. While the FMP authorized quarterly quotas, these quotas were never established. The annual aggregate quotas were set at levels above those actually reached, and the fishery thus was never closed.

 In 1988, the Council proposed Amendment 8 to the Fishery Management Plan for Surf Clams and Ocean Quahogs ("Amendment 8"). This Amendment was the culmination of several years of work by the Council, and reflected numerous concerns about the viability of existing regulations, the migration of vessels from the surf clam fishery to the less-regulated quahog fishery, and the resultant increase in the quahog harvest. Amendment 8 was approved by the Secretary and implemented by regulations published in the Federal Register on June 14, 1990. The regulations became effective on September 30, 1990. Amendment 8 brought the three fisheries under a single limited access scheme built around individual transferable quotas ("ITQs"), which are transferable permits to fish for a fixed percentage of the annual aggregate catch quota for the species and area. Thus, although the annual quota for all fishermen may vary from year to year depending on the Council's determination of an optimum yield, the holder of, e.g., a 5% ITQ would be entitled to catch up to 5% of that quota.

 For each of the fisheries, ITQs were allocated on the basis of vessel fishing history, although the data used to calculate that history and the weight assigned to it varied between the fisheries. For example, in the Mid-Atlantic surf clam fishery, eighty percent of the ITQ was derived by averaging vessel catch history from 1979 to 1988, with the last four years counted twice, and the lowest two years deleted. The other twenty percent was based upon the vessel's dimensions, as a proxy for the owner's capital investment. The results were divided by the total for all vessels in the fleet, producing an ITQ expressed as a percentage of the annual quota. *fn1"

 After Amendment 8 went into effect, two groups of fishermen and seafood processing companies brought these actions, alleging serious economic harm from the ITQ assignments. Their most salient arguments are, first, that the ITQ system exceeded the defendants' statutory authority and, second, that the decision to limit access to the quahog fishery was unsupported by the administrative record. In each case, there are additional arguments that the challenged action also violated the National Standards or the other applicable provisions of the Magnuson Act.

 A. TIMELINESS

 The first issue to be resolved is the defendants' motion to dismiss on the ground that these suits were untimely. The Court concludes that the complaints were filed within the limitations period provided by the Magnuson Act.

 The Magnuson Act states that regulations promulgated by the Secretary under the Act are subject to judicial review "if a petition for such review is filed within 30 days after the date on which the regulations are promulgated." 16 U.S.C. § 1855(d). The present dispute turns on the meaning of the word "promulgated" for purposes of determining whether the plaintiffs' petitions are time-barred by this section of the Act. Defendants assert that the regulations were promulgated on June 8, 1990, the date they were filed with the Office of the Federal Register. Plaintiffs claim promulgation occurred on June 14, 1990, when the regulations were actually published in the Federal Register. It is undisputed that the petitions for review were filed on July 13, 1990, thirty-five days after the regulations were filed, but twenty-nine days after their publication.

 Courts construing this section "have almost universally agreed that the thirty day limit commences at the time the regulations are published." Kramer v. Mosbacher, 878 F.2d 134, 137 (4th Cir. 1989); Midwater Trawlers Coop. v. Mosbacher, 727 F. Supp. 12, 15 (D.D.C. 1989). It is true that none of these courts squarely addressed the fine distinction between publication and filing urged by defendants in this case. Rather, they have held that various attempts to equate "promulgation" with much later dates, such as implementation or amendment of the regulations, were barred by the statute. *fn2" Nevertheless, it appears to be the case that wherever a court has calculated the limitations period under the Act, it has used the publication date as its starting point. *fn3" This usage is in accord with the accepted meaning of "promulgate" as "to publish; to announce officially; to make public as important or obligatory." *fn4"

 Even if this common usage had not previously been adopted by courts considering the issue under the Magnuson Act, sound policy reasons would dictate choosing the publication date, not the filing date, as the relevant date for calculating the limitations period under Section 1855(d). Publication in the Federal Register is the occurrence by which the world at large is given notice of the Secretary's decision. Such a visible formal event is highly desirable in the context of limitation of actions, in order to have a single recognizable date from which to calculate the running of the statute of limitations. The filing of the regulations at ...


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