Maine v. Kreps

No. 77-1402 (1st Cir. September 23, 1977)

ELR Digest

The court affirms the lower court's order dismissing the State of Maine's challenge to the 1977 herring fishing quota set by the Department of Commerce which allows foreign fleets to fish on the Georges Bank. The lower court dimissed the complaint because the Secretary of Commerce provided affidavits which showed a reasoned and legally adequate basis for her determination of 33,000 metric tons (m.t.) as the 1977 optimum yield figure for the Georges Bank, pursuant to the Fishery Conservation and Management Act, 16 U.S.C. § 1801 et seq.

In a prior decision, 7 LER 20762, the First Circuit upheld the 33,000 m.t. optimum yield figure as allowing an increase in herring stock and promoting the fishery conservation goals of the Act. Plaintiffs had sought to ban foreign fishing altogether because of the threat to the herring stock, but the First Circuit found nothing in the Act to preclude foreign fishing, even though United States fishermen have priority under the optimum yield figure. The court remanded the case, however, because the record did not show that the Secretary had fully considered the Act's definition of optimum yield, which is based on considering the overall welfare of the United States, particularly with reference to food supply, in setting the 33,000 m.t. figure.

Affidavits were submitted by the Department of Commerce to the lower court on remand stating that, in setting the optimum yield figure, the Secretary considered the traditional activities of foreign fleets on the Georges Bank herring fishery, the substantial benefits to the United States from continued scientific research by foreign fleets, and the commitments and positions of the United States with regard to cooperative international fisheries conservation. The district court found the affidavits sufficient to support the designation of 33,000 m.t. for optimum yield and dismissed the complaint. Because the optimum yield figure exceeds estimated domestic fishing needs, this would allow foreign fleets to fish on the Georges Bank during the present season.

The First Circuit recognizes the Secretary's discretion in selecting the appropriate quota for a fishery, but it notes that the record must indicate that the Secretary has exercised her discretion rationally and in a manner consistent with the statutory standards. The affidavits show that Department of Commerce officials felt that repudiating prior guidelines of the International Commission for the Northwest Atlantic Fisheries (ICNAF), of which the United States was a member until it began to assert the 200-mile jurisdiction under the Act, would harm United States interests while adhering to the ICNAF guidelines would benefit the nation. The ICNAF guidelines were negotiated before the Act took effect; adherence to them reflects only a special consideration in a transitional year and not a loophole for circumventing the fishery management goals of the Act. It may be appropriate to use considerations such as historical fishing patterns and past scientific cooperation in setting optimum yield as well as surplus allocations. The court determines that nothing in the Act requires notice and comment procedures for the development of preliminary management plans. The affidavits submitted to the district court on remand set forth the Secretary's reasoning in setting the optimum yield with sufficient clarity to show that her determination was consistent with the congressionally declared standards and objectives. The district court's order is affirmed.

The full text of this opinion is available from ELR (7 pp. $1.00, ELR Order No. C-1139).

Counsel are listed at 7 ELR 20762.

Campbell, J., with Coffin, C.J., and Wollenberg, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]