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Maine v. Kreps

Citation: 7 ELR 20762
No. No. 77-1337, 563 F.2d 1043/(1st Cir., 08/16/1977) Remanded

The court remands the case with directions that the Secretary of Commerce provide reasons in accordance with the Fishery Conservation and Management Act, 16 U.S.C. § 1801 et seq., why an "optimum yield" of 33,000 metric tons (m.t.) of Georges Bank herring stock may be taken in the 1977 fishing season.

Prior to the Act, the Georges Bank fishery had been managed by the International Commission for the Northwest Atlantic Fisheries (ICNAF). Member nations began to recognize the dangers of depleted fishing stock, and although the scientific advisory board reported that 50,000 m.t. could be taken from the Georges Bank herring stock in 1977 without further decreasing the population, the ICNAF agreed to reduce the quota to 33,000 m.t. to allow some replenishment. Shortly after this quota was set, the United States withdrew from the ICNAF.

At present, fishing in the Georges Bank is regulated pursuant to the Act, which establishes a 200-mile fishery conservation zone around the United States within which fishing by foreign vessels is permitted only under the Act. Regional Fishery Management Councils are authorized to prepare fishery management plans for species within their geographical areas, but the Department of Commerce may prepare preliminary plans if the regional councils were not able to prepare their plans by March 1, 1977.

In anticipation of application by foreign herring fishermen to operate in the Georges Bank and because the New England Regional Council would not meet the March 1 deadline, the Department of Commerce drafted a preliminary plan, held hearings, responded to comments, and published a final plan in February 1977. The Department's plan determined the optimum yield for herring to be 33,000 m.t., with United States fishermen allowed to take 12,000 m.t. and the remainder shared by foreign fishermen pursuant to the ICNAF plan. Under the Act, the allowable level of foreign fishing is that portion of the optimum yield not harvested by United States vessels. 16 U.S.C. § 1821(d).

Plaintiffs challenged the regulations, and the Department of Commerce agreed to reexamine its quotas. The Department decided not to change its quotas, and, after a hearing, the district court granted defendants' motion for summary judgment and dismissed the complaint.

Plaintiffs argue that since the herring stock has declined to well below the norm for healthy stock and even below the danger level at which recruitment failure is feared, the Act must be construed to ban foreign fishing altogether. If an area's stock is so depressed as to be unable to maintain fishing at the level of maximum sustainable yield, priority must be given to cultivating a surplus to quickly rebuild the stock, with only United States fishing allowed. Plaintiffs claim that the Department's 33,000 m.t. optimum yield figure is too high and that the 12,000 m.t. allocation for United States vessels is too low.

Regarding the United States allocation, the court concludes that the district court properly sustained that portion of the preliminary management plan. The Department's assessment of domestic fishing potential was supported by substantial evidence in the record concerning the historic take and the economic infeasibility of greatly expanded domestic fishing operations at this time. Likewise, the record supports the optimum yield figure of 33,000 m.t. as allowing a certain increase in stock and would help promote the purposes of the Act. Furthermore, there is nothing in the Act that would preclude foreign fishing for the reasons urged by plaintiffs, even though United States fishermen have priority under the optimum yield figure.

Where the Department of Commerce erred, however, was in the adequacy of the record to show that it fully considered the Act's definition of optimum yield in promulgating the 33,000 m.t. figure. The Act states that optimum yield must "provide the greatest overall benefit to the Nation, with particular reference to food production and recreational opportunities" and must be selected "on the basis of" the maximum sustainable yield as modified by "any relevant economic, social or ecological factor." 16 U.S.C. § 1802(18). There is no indication in the record to reflect that the Secretary considered the harms or benefits to the United States of prohibiting foreign fishing vessels. While there may be trade and international relations benefits to allow foreign fishing, the touchstone is the overall benefit to this nation. The record, however, does not indicate what factors the Secretary considered in this case.

Thus, while the Secretary's decision may not be arbitrary, capricious, or an abuse of discretion, the court cannot rely on its presumptive correctness without some additional explanation of the reasons for the agency decision.

On the other hand, interference at this point with implementation of the Secretary's decision would come close to reversing its because of lateness of the fishing season. Since it is unlikely that domestic fishermen will suffer irreversible harm from the plan and it is not clear that the Secretary would not be able to show a reasonable basis for the decision, there is no justification for an injunction against the plan's implementation. The Secretary must, however, specify within ten days the reasons that led to the conclusion that an optimum yield figure of 33,000 m.t. would provide the greatest overall benefit to the United States in accordance with the Act's standards.

The full text of this opinion is available from ELR (15 pp. $2.00, ELR Order No. C-1136).

Counsel for Appellants
Edward F. Bradley, Jr., Ass't Attorney General
Department of Attorney General
State House, Augusta ME 04330
(207) 289-3661

Counselfor Appellees
William B. Morrison (with James W. Moorman, Ass't Attorney General; Bruce C. Rashkow, Michael W. Reed)
Department of Justice, Washington DC 20530
(202) 739-2779

Campbell, J., with Coffin, C.J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]