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Associated Fisheries of Me. v. Daley

ELR Citation: 27 ELR 21023
Nos. 94-89-P-H, 954 F. Supp. 383/(D. Me., 02/03/1997)

The court holds that the Secretary of Commerce acted within the scope of his broad discretion in adopting an amendment to the Northeast Multispecies Fishery Management Plan that reduces groundfish mortality due to fishing to almost zero. The court first holds that plaintiff commercial fishing organization meets all the requirements of standing because neither the claim asserted nor the relief requested by the organization requires the personal participation of individual members in this lawsuit. Further, one or more of the organization's members would satisfy the individual requirements for standing in his or her own right. The court next holds that the Secretary fulfilled the requirement under the Regulatory Flexibility Act (RFA) of examining significant alternatives to the amendment that would reduce the burden on small businesses, particularly trawlers and other small fishing boats. Moreover, the court concludes that judicial review is not available on the organization's RFA claim. The amendment was promulgated on May 31, 1996, but the Small Business Regulatory Enforcement Fairness Act amendments to the RFA, which would allow judicial review, did not become effective until June 27, 1996. The court then rejects the organization's claim that the Secretary engaged in arbitrary and capricious rulemaking under the Administrative Procedure Act by not considering public comments on the amendment. The administrative record shows fair consideration and treatment of public comment. The court also holds that under the Magnuson Act, the record does not show that the Secretary abused his discretion by failing to use the best science available or good-faith judgment as to what measures will preserve the fishery to obtain its optimum yield. It is appropriate for the Secretary to be conservative and take more strenuous measures to protect fish populations even though the measures may have a short-term drastic negative effect on the fishing industry. The court next holds that the Magnuson Act does not provide judicial review of the organization's claim that the amendment violates Executive Order No. 12291. The act refers to the executive order only to eliminate the ability of an agency to argue that the need to comply with laws like the executive order allows it to delay compliance with the act's requirements. The court finally holds that the Omnibus Consolidated Appropriations Act of 1997 does not ban the Secretary from implementing the amendment, because the amendment is not an individual fishing quota program under the Appropriations Act, and even if it was, funding has been authorized under the Magnuson Act.

Counsel for Plaintiff
Robert C. Brooks
Verrill & Dana
One Portland Sq., P.O. Box 586, Portland ME 04112
(207) 774-4000

Counsel for Defendants
David R. Collins, Ass't U.S. Attorney
U.S. Attorney's Office
100 Middle St. Plaza
E. Tower, 6th Fl., Portland ME 04101
(207) 780-3257