NC Fisheries Association v. Gutierrez (Commerce Dept.)

Dec 16: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5389. Appellants are the North Carolina Fisheries Association, Inc., two commercial fishermen, and a fish-packing plant (collectively, the Association). They filed a complaint (petition for review) in district court against the Department of Commerce, claiming that Amendment 13C to the Fishery Management Plan for South Atlantic Snapper Grouper violated the Magnuson-Stevens Fishery Conservation and Management Act (Act).

The district court granted in part and denied in part the Association’s motion for summary judgment. The court held that the Department had not complied with its statutory obligation to promulgate a rebuilding plan for certain fish species following a determination that such species were “overfished,” which failure the Government had conceded. The court then ordered that the parties confer on an appropriate remedy and submit a joint proposal or, should disagreement persist, separate proposals. Because the parties were unable to reach agreement, the district court adopted the Government’s proposal with slight adjustments to the suggested timetable. The appeal was filed and the Appeals Court concluded that it lacked jurisdiction and therefore, dismissed the appeal.

The Appeals Court said, "It does seem rather peculiar -- perhaps even a bit fishy -- that the Service promulgated Amendment 15A without accompanying regulations, indeed, without any “regulatory effect.” Recall that the Service acknowledged that it had violated the Act (which was rather obvious) by omitting a rebuilding plan; thus, it could be thought that the Service is continuing to evade its statutory obligations by failing to put teeth into the rebuilding plan. But if the Association thought that the Service had not complied in substance with the district court’s mandate, it should have sought direct relief in the district court. In any event, we lack jurisdiction at this stage in the proceedings. The case is dismissed."

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Fishing Co AK vs. Gutierrez, Carlos

Dec 18: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5153. In April 2006, the Secretary of Commerce, Carlos Gutierrez (Secretary), via his delegee the National Marine Fisheries Service (Service), issued a final rule establishing a minimum “groundfish retention standard” for the Bering Sea and Aleutian Islands fishing region [71 FR 17,362 4/6/06]. In issuing the rule, the Service exercised authority under the Magnuson-Stevens Fishery Conservation and Management Act (MSA).

The Fishing Company of Alaska (FCA), an operator of commercial fishing vessels in the region, sued the Secretary in district court, claiming that the rule was unlawful because of its inclusion of three monitoring and enforcement (M&E) requirements. FCA argued that the Service had adopted the rule without statutorily required predicate action by the North Pacific Fishery Management Council (Council), a regional body created by the MSA to represent state governments, certain agencies of the federal government, and other interested constituencies. FCA also claimed that the M&E requirements were substantively inconsistent with the MSA’s “National Standards” for conservation.

Both sides sought summary judgment, which the district court granted in favor of the defendants. FCA appealed, and the Appeals Court reversed the district court ruling, finding that the inadequacy of the Council’s action fatally tainted the Final Rule’s three challenged M&E requirements. The case was remanded with instructions to vacate the three disputed M&E requirements of the Final Rule.

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