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Trawler Diane Marie, Inc. v. Brown

ELR Citation: 26 ELR 21240
Nos. 95-15-CIV-2-D, 918 F. Supp. 921/(E.D.N.C., 08/02/1995)

The court holds that the U.S. Department of Commerce's (DOC's) temporary closure of the Weathervane Scallop fishery along the Alaskan coast did not violate the Magnuson Fishery Conservation and Management Act. The court first grants the government's motion to strike affidavits Washington State-based plaintiff fishing-vessel owner submitted. Plaintiff has not offered sufficient evidence of bad faith or improper motive by the Secretary of Commerce to justify consideration of extra-record evidence, and the administrative record is complete enough for the court to review the Secretary's actions. The court next holds that although federal authorities knew that a regulatory loophole existed for the Alaskan coast scallop fishery, DOC's emergency fishing ban is not an improper attempt to solve a long-recognized but ignored problem with an emergency regulation. The Secretary reasonably found that an emergency existed after learning that plaintiff had harvested over 52,000 pounds of scallops, when the catch limit for the entire Prince William Sound scallop fishing fleet is only 50,000 pounds. The Secretary also reasonably concluded that the plaintiff's continued dredging with a boat capable of harvesting 65,000 pounds of scallops per week could lead to localized depletion of scallop stocks. The court also holds that the North Pacific Fishery Management Council's (FMC's) failure to follow regular notice-and-comment procedures for the emergency meeting at which it recommended the fishery closure was justified due to the extraordinary nature of the scallop stock's possible depletion. Also, any procedural irregularities that occurred at the FMC level did not materially affect the Secretary's decision. The court next holds that the Secretary's assembly of the administrative record after promulgating the emergency rule does not invalidate the rule, because all of the documents in the record existed and were considered before any agency action. The court further holds that the Secretary's decision to temporarily close the U.S. exclusive economic zone to scallop fishing was not arbitrary and capricious. It also complied with the Magnuson Act's national standards, because the Secretary could have rationally concluded that the scallop fishery's interim closure would not hinder the fishery's long-term optimum yield and that the closure was consistent with the requirement to base conservation and management measures on the best scientific information available. Further, the national standard requiring uniform management is inapplicable to this case, because no evidence suggests that the scallop fishery needs uniform management. The court next holds that the vessel owner lacks standing to challenge the Secretary's action under the National Environmental Policy Act (NEPA), because the owner's alleged economic losses are not within the zone of interests that NEPA protects. Finally, the court holds that the Secretary's actions are not subject to an Executive Order requiring that the Office of Management and Budget review all proposed significant agency actions. The Executive Order is intended to improve the government's internal management and does not create any enforceable right against the United States.

Counsel for Plaintiff
William S. Daniels
Kellogg & Evans
201 Ananias Dare St., Manteo NC 27954
(919) 473-2171

Counsel for Defendant
Rudy A. Renfer Jr., Ass't U.S. Attorney
U.S. Attorney's Office
800 Federal Bldg.
310 New Bern Ave., Raleigh NC 27611
(919) 856-4530