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Gulf of Me. Fishermen's Alliance v. Daley

Citation: 32 ELR 20763
No. No. 00-1160, 292 F.3d 84/(1st Cir., 06/03/2002)

The court affirms a district court dismissal of a commercial fisherman association's challenge to a fishery management plan (FMP) regulation, known as Framework 25, that instituted year-round closure of a fishing area and required rolling closures of inshore ports along the Gulf of Maine. The New England Fisheries Management Council (NEFMC), which promulgated and regulates the FMP for New England, provided less than 14 days' notice of the proposal to implement Framework 25. The NEFMC subsequently adopted Framework 25, and the association filed suit challenging the regulation on procedural and substantive grounds. Before the district court could rule on the association's suit, NEFMC adopted another regulation, Framework 27, which expanded on and superseded Framework 25. Consequently, the district court dismissed the association's challenge to Framework 25 as moot. The association appealed this dismissal, and since then the NEFMC has adopted several more regulations, including two that modify or maintain the closure of the fishing grounds contemplated by Framework 25. Nevertheless, the association continued to seek invalidation of Framework 25. The court first holds that no justiciable controversy exists and the association's claims are moot. The court has no means of redressing either the procedural or substantive deficiencies associated with a regulation that is now defunct. In effect, those deficiencies have been eliminated by the promulgation of the new frameworks. Even the closure of the fishing grounds originally contemplated in Framework 25 cannot be challenged because other frameworks expressly reconsidered and readopted the closure, thereby rendering the Framework 25 closure no longer in effect. In addition, the association's claims do not fall within the exception to mootness for those claims capable of repetition, yet evading review. Although the NEFMC does frequently adopt regulations, the actual interval between most frameworks is not too short in duration to be fully litigated, and the procedural and substantive deficiencies alleged by the association are not likely to recur.

The full text of this decision is available from ELR (11 pp., ELR Order No. L-529).

Counsel for Plaintiffs
Stephen M. Ouellette
Cianciulli & Ouellette
163 Cabot St., Beverly MA 01915
(978) 922-9933

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

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]