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SOUTHEASTERN FISHERIES ASSN., INC. v. MOSBACHER

August 6, 1991

SOUTHEASTERN FISHERIES ASSOCIATION, INC., and NATIONAL FISHERIES INSTITUTE, INC., Plaintiffs,
v.
ROBERT A. MOSBACHER, Secretary, United States Department of Commerce, J. CURTIS MACK, Acting Administrator, National Oceanic and Atmospheric Administration, United States 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


Stanley S. Harris, United States District Judge.


The opinion of the court was delivered by: HARRIS

STANLEY S. HARRIS, UNITED STATES DISTRICT JUDGE

 Plaintiffs filed this action challenging certain provisions of the Secretarial Fishery Management Plan for the Red Drum Fishery of the Gulf of Mexico, as amended by Amendment Number One, and its implementing regulations. On July 31, 1990, the Court dismissed that portion of Count One which addressed the directed redfish fishery. Now before the Court are plaintiffs' motion for summary judgment and the cross-motions of the defendants and defendant-intervenors. For the reasons set forth below, each party's motion is granted in part and denied in part.

 Background

 The Gulf of Mexico red drum fishery encompasses the internal waters and territorial seas of the Gulf states, and the Exclusive Economic Zone (EEZ). *fn1" Redfish spawn in the estuaries of the Gulf of Mexico, and the juvenile fish mature in the bays and territorial seas. *fn2" As they reach sexual maturity, they migrate offshore to deeper waters where they live for most of the remainder of their lives, returning annually to the estuaries to spawn before returning again to deeper waters. Redfish are a long-lived species and, thus, are particularly susceptible to increases in fishing mortality.

 Prior to 1984, most of the commercial and recreational redfish harvest occurred in state waters, and the fishery was primarily recreational. *fn3" As a result, there was no federal regulation and little state regulation of the fishery. However, in the early 1980's, cajun cuisine became popular and the demand, and, consequently, the price, for what ultimately would become "blackened redfish" increased rapidly. As a result, a commercial purse seine fishery for large redfish developed quickly in the EEZ. *fn4" Historic harvest levels of the spawning stock in the EEZ prompted a work group of state, federal, and academic fisheries scientists to conclude that recruitment overfishing was a real possibility. *fn5" While the potential for harm was recognized, the degree of the potential harm was unknown.

 Under the Magnuson Fishery and Conservation Act (MFCA), 16 U.S.C.A. 1801 et seq., the federal government has exclusive authority over fishing in the EEZ. Pursuant to the MFCA, Regional Fishery Management Councils, established through cooperative action of the states and the federal government, develop fishery management plans (FMPs) with respect to those stocks requiring conservation and management. The FMPs are then submitted to the Secretary of Commerce for approval. Once an FMP is approved, the Secretary promulgates regulations for its implementation. Alternatively, if the Regional Council fails to act, the Secretary may develop his own FMP. In addition, the MFCA authorizes emergency regulations when time does not permit implementation of the full procedure. Finally, an FMP may be amended as necessary.

 Prior to 1986, the Gulf of Mexico Fishery Management Council, the Regional Council vested with authority for developing FMPs for Gulf resources, had not developed an FMP for redfish. *fn6" Based on the growth of the fishery and scientific observations pertaining thereto, and at the request of plaintiffs and others, the Secretary decided to prepare an FMP for redfish in the Gulf. However, to provide for protection in the interim, emergency regulations were issued on June 30, 1986, for an effective period of 90 days. The regulations established a one-million-pound quota for the harvest of redfish in the EEZ and preserved the landing and possession laws of the Gulf states. *fn7" In addition, the Secretary initiated a Secretarial Plan that would permanently replace the emergency regulations. He also established a scientific research program to assess the health and future of the stock.

 On September 26, 1986, with the concurrence of the Gulf Council, the Secretary extended the emergency regulations for an additional 90 days. However, the regulations were modified to prohibit the retention of redfish taken from the EEZ by all persons.

 After a period of review and comments, on December 24, 1986, defendants announced the completion of the Secretarial FMP and issued final implementing regulations. The Secretarial FMP and regulations provided for a ban on harvesting redfish in the directed commercial fishery in the EEZ in 1987, with an annual review of commercial quota levels based on an assessment of offshore stock thereafter. The Secretarial FMP also allowed for an incidental by-catch of 100,000 pounds in the indirect redfish fishery and superseded the states' landing and possession laws for the purpose of landing the by-catch. *fn8" It established a recreational bag limit of one red drum per person per trip in the EEZ, subject to state landing and possession laws if those laws were more restrictive. Finally, the regulations established a scientific program and a licensing scheme for the by-caught fish.

 While the Secretary was preparing the Secretarial FMP, the Gulf Council began the preparation of an Amendment to the FMP. After a review and comment period, the Gulf Council adopted the Amendment in its final form on April 30, 1987, and submitted it to the Secretary for formal review on May 20, 1987. After another review and comment period, the Secretary approved the Amendment (Amendment One) in its entirety on August 28, 1987, and issued implementing regulations on September 16, 1987. The regulations (1) divided the EEZ in the Gulf into a primary area (off the coasts of Mississippi, Alabama, and Louisiana) and a secondary area (off the coasts of Florida and Texas), and permanently closed the EEZ in the secondary area, (2) closed the directed commercial red drum fishery in the primary area until a goal of 20% escapement of juvenile fish from inshore waters was achieved, (3) retained the 100,000 pound quota for the indirect redfish fishery in the primary area, (4) provided for application of state landing and possession laws to redfish harvested in the indirect fishery, and (5) restricted the recreational fishery to one fish per person. The Amendment also provided for an annual scientific assessment of the red drum stock by the National Marine Fisheries Service (NMFS), and for an adjustment of the quotas by the Gulf Council.

 Plaintiffs, associations of commercial fishermen and canning, processing, and other related interests, filed their original complaint on July 14, 1986, and their amended complaint on October 22, 1987. Defendants are the Secretary of Commerce, the Administrator of the National Oceanic and Atmospheric Administration (NOAA), the Assistant Administrator for Fisheries of NOAA, and the Director of the NMFS, all sued in their official capacities.

 Discussion

 In their amended complaint, plaintiffs challenge (1) defendants' failure to supersede state laws in the adoption of the implementing regulations for Amendment One to the FMP, (2) the establishment of the primary and secondary zones, and (3) the closure of the directed commercial red drum fishery. They seek a declaratory ...


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