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Massachusetts v. Daley

Citation: 29 ELR 20554
No. 98-1917, 170 F.3d 23/(1st Cir., 02/24/1999)

The court holds unlawful a U.S. Department of Commerce fishing quota that allocates the summer catch of scup on a state-by-state basis for Massachusetts, New York, and Rhode Island. Massachusetts argued that the quota was based on incomplete historical data that reflected only scup landings from large trawlers fishing offshore. Because Massachusetts landed 80 percent or more of its summer scup catch from smaller vessels inshore, the commonwealth claimed that the summer quota discriminated against it. The court first holds that the commonwealth forfeited any claim that the Department of Commerce failed to use the best scientific information available. Apart from an abortive suggestion to add certain figures to the data, the commonwealth never pressed on the regional fishery council or the Secretary of Commerce an alternative set of figures for a state-by-state quota or claimed that any method currently available could correct the existing distortion.

The court next sets aside the state-by-state quotas because the Department of Commerce failed to explain why such quotas are necessary. The rationale that the quota is needed to prevent discrimination between the states is scarcely hinted at in the administrative record. Further, the argument that the quotas allow states to structure in-state regulation that allocates diminished catch is not supported by the record or the Secretary's findings. Moreover, the record does not support the argument that the state-by-state quotas are integral to enforcement of the overall summer quota. And even if the state-by-state quotas were conducive to enforcement, the present quotas still appear to discriminate. Nevertheless, the court notes that the Secretary retains the power of reinstituting some state-by-state quotas on an emergency basis, and a thorough explanation in the record would go a long way to support such a regulation on judicial review.

Counsel for Plaintiff
Daniel J. Hammond, Ass't Attorney General
Attorney General's Office
One Ashburton Pl., Boston MA 02108
(617) 727-9173

Counsel for Defendants
Robert L. Klarquist
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Campbell and Lipez, JJ.