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Kramer v. Mosbacher

Citation: 19 ELR 21327
No. No. 88-2995, 878 F.2d 134/(4th Cir., 06/20/1989)

The court holds that the district court lacked jurisdiction over a challenge to the closure of the South Atlantic King Mackerel fisheries. The South Atlantic Regional Council, pursuant to the Magnuson Fishery Conservation and Management Act, closed both the recreational and commercial fishing seasons after concluding that the mackerel had been overfished for the 1988-89 season. Although the 1988-89 fishing year has ended and the catch limits have expired, the case is not moot because the issue falls within the "capable of repetition, yet evading review" exception. The court holds that the district court lacked jurisdiction under the Magnuson Act. The district court lacked jurisdiction under § 311(d), under which review has generally been restricted to direct enforcement actions, usually involving the seizure and condemnation of vessels. This case cannot be considered a response to an enforcement action, since no affirmative action has been taken against plaintiffs. The district court also lacked jurisdiction under § 305(d), which provides for review of regulations, since plaintiffs did not file their complaint within the requisite 30 days after the regulations establishing the catch limits were issued. The court rejects plaintiffs' argument that the 30-day period began to run when the Secretary of Commerce issued a notice of his intent to close the commercial fishery, not when the regulations were issued. This distinction is not warranted, since the Secretary is required by the regulations to close a fishery when its quota is reached. Even if the complaint was timely, the court holds that injunctive relief is unavailable under § 305(d).

Counsel for Appellants
Charles Ray Shockey
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-3426

William J. Nielander, Susan K. Auer
National Oceanic and Atmospheric Administration
Department of Commerce, 14th St. & Constitution Ave. NW, Washington DC 20230
(202) 377-2000

Counsel for Appellees
Daniel F. McLawhorn, Special Deputy Att'y General
Strawberry Sq., 16th Fl., Harrisburg PA 17120
(717) 787-3391

Stevenson Lee Weeks
Wheatly, Wheatly, Nobles, Weeks & Wainwright
Baufort NC 28516
(919) 728-3158

Before HALL, SPROUSE, and CHAPMAN, Circuit Judges.