Thursday, June 19, 2008

Gulf Fishermen's Association v. Carlos M. Gutierrez (Commerce Secy)

Jun 13: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 07-12903. Appellant, the Gulf Fishermen’s Association (GFA), appealed the district court’s order granting the Appellees’ (Department of Commerce, NOAA National Marine Fisheries Service) motion for summary judgment for lack of jurisdiction. The district court held that the GFA’s complaint was time-barred under the limitations provision of the Magnuson-Stevens Fishery Conservation and Management Act (the Act). On appeal, the GFA argued that its suit challenging Amendment 18A to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (Amendment 18A) was timely under the judicial review provisions of the Act, 16 U.S.C. § 1855(f), because it was filed within thirty days after an action by the Secretary of Commerce (the Secretary).

The Appeals Court indicated that, "By its own terms, the Act permits a challenge to a regulation implementing a fishery management plan so long as it is filed within thirty days after the publication of the regulation or an action by the Secretary
under that regulation. Because the GFA filed its challenge to Amendment 18A nine days after the Federal Register published a Secretarial action implementing that regulation, we find the suit was timely and reverse the district court’s grant of summary judgment for lack of jurisdiction."

Explaining further, the Appeals Court said, "After reviewing both the text and the legislative history of § 1855(f), we hold that a petition filed within thirty days of the publication of a Secretarial action, as defined in § 1855(f)(2), may challenge both the action and the regulation under which the Secretarial action is taken. In this case, the Secretarial action to delay the effective date of the VMS [Vessel Monitoring System] requirement was an 'action' taken under Amendment 18A. Because this action was published in the Federal Register on December 6, 2006, and the GFA filed its complaint on December 15, 2006, we conclude that the complaint was timely-filed under the limitations period of 16 U.S.C. § 1855(f). The district court thus erred in granting the Appellees’ motion for summary judgment for lack of jurisdiction."

Access the complete opinion (
click here).