March 30, 1993 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-2029
CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., ET AL.,
Plaintiffs, Appellees,
v.
BARBARA H. FRANKLIN, ETC., ET AL.,
Defendants, Appellees.
ASSOCIATED FISHERIES OF MAINE, ET AL.,
Intervenors, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Cyr, Circuit Judge.
Ralph J. Gillis, with whom Gillis & Campbell, was on brief
for appellants. Peter A. Appel, Attorney, Department of Justice, with whom
Vicki A. O'Meara, Acting Assistant Attorney General, A. John
Pappalardo, United States Attorney, Suzanne E. Durrell, Assistant
United States Attorney, J. Carol Williams and Jean W. Williams,
Attorneys, Department of Justice, Margaret F. Hayes and Gene S.
Martin, Office of General Counsel, National Oceanic & Atmospheric
Administration, were on brief for Federal appellees.
Peter Shelley, with whom Maura J. Sheehan, was on brief for
appellees Conservation Law Foundation, Inc., and Massachusetts Audubon Society.
March 30, 1993
TORRUELLA, Circuit Judge. In this appeal, several
fishing associations,1 appellants here, request that we vacate a
consent decree approved and entered by the district court between
the Conservation Law Foundation of New England, Inc. and
Massachusetts Audubon Society (collectively, "Conservation"), and
the Secretary of Commerce ("Secretary"). For the reasons that
follow, we reject this request.
PRIOR PROCEEDINGS
Conservation sued the Secretary alleging that the
Secretary failed to prevent overfishing off the coast of New
England, as required by the Fishery Management and Conservation
Act of 1976, as amended, 16 U.S.C. 1801-1882 (1985 & Supp.
1992) ("Magnuson Act"). Appellants sought to intervene. The
district court denied the request, but we granted it in
Conservation Law Foundation, Inc. v. Mosbacher, 966 F.2d 39 (1st
Cir. 1992). While the appeal seeking intervention was pending,
the district court entered a consent decree between Conservation
and the Secretary. Appellants now seek to vacate the consent
decree on various grounds. To fully understand the present
appeal, we must briefly describe the statutory context to this
suit.
STATUTORY BACKGROUND
Congress enacted the Magnuson Act to establish a
1 These associations include: Associated Fisheries of Maine, N.E.; Atlantic Swordfish Net Ass'n, Inc.; Massachusetts Inshore Draggermen's Ass'n, Inc.; and Point Judith Fishermen's Cooperative Ass'n, Inc.
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comprehensive system of fisheries management for waters within
the jurisdiction of the United States. 16 U.S.C. 1801(b)(1).
In particular, Congress found that certain stocks of fish had
been so overfished that their survival was threatened, id. at
1801(a)(2), and mandated that overfishing be prevented, id. at
1851(a)(1).
To attain these goals, the Act creates eight regional
fishery management councils. Id. at 1852(a). The regional
councils are comprised of state and federal government officials,
as well as individuals nominated by state executives and
appointed by the Secretary. Id. at 1852(b), (c). The Magnuson
Act charges the Secretary and the Councils with developing
fishery management plans ("FMPs") for stocks of fish within their
jurisdictions that require conservation and management. The Act
specifies the procedures by which FMPs are developed and creates
a number of standards to which the plans must conform. National
Standard One requires that "[c]onservation and management
measures shall prevent overfishing while achieving, on a
continuing basis, the optimum yield from each fishery for the
United States fishing industry." Id. at 1851(a)(1). The
Secretary has issued guidelines to assist the development of
plans by the regional councils. See 50 C.F.R. pt. 602.
The Act provides that either the councils or the
Secretary can develop FMPs. If a council generates a plan, the
Secretary must follow a detailed procedure for review, as
specified in 1854(a), (b). The Secretary first reviews the
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plan for compliance with statutory mandates and publishes notice
of the plan in the Federal Register, soliciting comments from
interested persons. After review, the Secretary may approve,
partially approve, or disapprove the plan. If the Secretary
disapproves or partially disapproves of a plan she must inform
the council of her reasons. 16 U.S.C. 1854(b)(2). The council
may then submit a revised plan, id. at 1854(b)(3), which the
Secretary will review.
The Act authorizes the Secretary to develop an FMP with
respect to any fishery if (1) "the appropriate council fails to
develop and submit to the Secretary, after a reasonable period of
time, a fishery management plan for such fishery, or any
necessary amendment to such a plan, if such fishery requires
conservation and management . . . ," id. at 1854(c)(1)(A)
(emphasis added); or (2) "the Secretary disapproves or partially
disapproves any such plan or amendment, or disapproves a revised
plan or amendment, and the Council involved fails to submit a
revised or further revised plan or amendment, as the case may
be." Id. at 1854(c)(1)(B). Under either statutory authority,
the Secretary must submit the FMP to the appropriate council for
comments, and publish notice of the plan and regulations to
implement the plan in the Federal Register. Id. at
1854(c)(2)(A). Before the Secretary implements the plan, she
must consider the comments of the council and the public, and
ensure compliance with the national standards. Id. at
1854(c)(2)(B), 1851, 1853.
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Approved FMPs are implemented by regulations
promulgated by the Secretary, which are subject to judicial
review in accordance with select provisions of the Administrative
Procedures Act, 5 U.S.C. 701 et seq. See 16 U.S.C. 1855(b).
HISTORY OF THE NORTHEAST MULTISPECIES FISHERIES PLAN
This case involves the conservation and management of
groundfish off the coast of New England.2 In its effort to
manage New England fisheries, the New England Fishery Management
Council ("New England Council") first eliminated foreign fishing
within its jurisdiction, 42 Fed. Reg. 13,998 (1977). In 1985, it
developed the Northeast Multispecies Fisheries Plan, Proposed
Rule, 50 Fed. Reg. 49,582 (1985), because overfishing remained a
problem. The Secretary approved the plan as an interim rule in
1986, indicating that the rule improved matters, but was
unsatisfactory for long term conservation and management.
Interim Rule, 51 Fed. Reg. 29,642, 29,643 (1986). In 1987, the
rule became final and three amendments followed. See Final Rule,
52 Fed. Reg. 35,093 (1987) (amendment one); Final Rule, 54 Fed.
Reg. 4,798 (1989) (amendment two); Final Rule, 54 Fed. Reg.
52,803 (1989) (amendment three).
The Rule and its amendments did not eliminate
overfishing as required by National Standard One. Pursuant to
the Secretary's guidelines on what constitutes overfishing, 50
C.F.R. 602.11 (1991), the Council determined that cod, haddock,
2 Groundfish tend to live near the ocean floor and include cod, haddock, and flounder.
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and yellowtail flounder in certain fisheries off the coast of New
England were overfished and drafted amendment four to redress
that problem. The Secretary partially approved amendment four,
56 Fed. Reg. 24,724 (1991), but found the amendment deficient,
stating that it did "not constitute a complete rebuilding
strategy . . . ." Id. at 24,725.
In response to amendment four, Conservation sued the
Secretary, complaining that she had arbitrarily and capriciously
approved the amendment and that the overall FMP failed to comply
with National Standard One. Thereafter, Conservation and the
Secretary began negotiations to enter a consent decree settling
the suit. Appellants sought to intervene but the district court
denied the request. While the appeal was pending, the district
court entered a consent decree on August 28, 1991. In the
appeal, we granted appellants intervenor status.
THE CONSENT DECREE
The consent decree established a timetable for a FMP or
an amendment to the plan applicable to New England waters that
would "eliminate the overfished condition of cod and yellowtail
flounder stocks in five years after implementation and . . .
eliminate the overfished condition of haddock stocks in ten years
after implementation." Conservation Law Foundation, Inc. v.
Mosbacher, C.A. No. 91-11759-MA, slip op. at 2 (D. Mass.,
August 28, 1991) (consent decree). The decree expressly stated
that it "shall meet all requirements established by applicable
statutes and regulations . . . ." Id. at 2. It directed that
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the New England Council would have the first opportunity to
develop the groundfish rebuilding plan, but also established a
timetable for the Secretary to create and implement her own plan
if the council failed to act. Appellants unsuccessfully moved to
vacate the consent decree. This appeal followed.
DISCUSSION
District courts must review a consent decree to ensure
that it is "fair, adequate, and reasonable; that the proposed
decree will not violate the Constitution, a statute or other
authority; [and] that it is consistent with the objectives of
Congress . . . ." Durrett v. Housing Authority of Providence,
896 F.2d 600, 604 (1st Cir. 1990). Where an administrative
agency has committed itself to a consent decree, the district
court must exercise some deference to the agency's determination
that settlement is appropriate, F.T.C. v. Standard Financial
Management Corp., 830 F.2d 404, 408 (1st Cir. 1987), and "refrain
from second-guessing the Executive Branch." United States v.
Cannons Engineering Corp., 899 F.2d 79, 84 (1st Cir. 1990).
Moreover, "the court is not barred from entering a consent decree
merely because it might lack authority under [the governing
statute] to do so after a trial." Local No. 93, Int'l Ass'n of
Firefighters v. Cleveland, 478 U.S. 501, 525-26 (1986).
The Supreme Court has stated that district courts may
properly approve a consent decree where (1) it "spring[s] from
and serve[s] to resolve a dispute within the courts' subject-
matter jurisdiction"; (2) it "come[s] within the general scope of
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the case made by the pleadings"; and (3) furthers the objectives
upon which the complaint was based. Id. Therefore, the parties
enjoy wide latitude in terms of what they may agree to by consent
decree and have sanctioned by a court. Furthermore, we recognize
a strong and "clear policy in favor of encouraging settlements,"
especially in complicated regulatory settings. Durrett, 896 F.2d
at 604 (citation omitted); Cannon Engineering, 899 F.2d at 84.
We review the district court's denial of a motion to
vacate a consent decree for abuse of discretion. Cannon
Engineering, 899 F.2d at 84. Additionally, "[t]he doubly
required deference - district court to agency and appellate court
to district court - places a heavy burden on those who propose to
upset the trial judge's approval of a consent decree." Id. We
turn now to appellants' challenge to the decree.
Appellants contend that the consent decree constitutes
improper rulemaking under the statute which deprives the public
of an opportunity to comment. They assert that the consent
decree (1) creates a new standard requiring that the FMP
"eliminate" overfishing, whereas National Standard One mandates
"prevention" of overfishing while maintaining maximum sustainable
yield from fisheries; (2) requires a rebuilding program and a
timetable for compliance not present in the Magnuson Act; (3)
establishes a "good faith" performance standard for Council
action; and (4) constrains the Secretary's discretion under the
Act.
Appellants essentially maintain that the Secretary's
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action with respect to Council-generated FMPs, or amendments
thereto, must follow the statutorily prescribed course of review,
as set forth in 16 U.S.C. 1854(b), which requires that the
Secretary notify the council of its reasons for disapproving any
portion of the plan and provide an opportunity for the council to
revise the plan. Appellants also argue that the consent decree
essentially is improper under 1854(c), which authorizes the
Secretary to generate her own plans under certain circumstances.
Appellants maintain that the Secretary may not act unless the
Council has failed to issue a plan after a reasonable period, or
the Secretary disapproves of some aspect of a plan and the
Council fails to revise it. Because neither 1854(c) condition
has occurred, appellants contend that the consent decree
constitutes unlawful rulemaking. They allege that the Secretary
is not free to by-pass the dictates of 1854 through a consent
decree, but rather must wait for a revised amendment before
developing her own plan.
Appellants' challenge fails for three reasons. First,
in instances in which the rights of third parties are the basis
for blocking the entry of, or vacating, a consent decree, there
must be a demonstrable injury or adverse effect upon the group
not party to the decree. See Durrett, 896 F.2d at 604. This
threshold showing is analogous to the standing requirement. A
right to intervene does not necessarily suffice to meet the test
for vacating a consent decree. In this case, appellants have
failed to allege any specific injury to themselves, or any other
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party. The district court denied appellants' motion to vacate
without prejudice to renewal for precisely this reason.
Furthermore, appellants' suggestion that they have been excluded
from the development of the plan is simply untrue. Appellants
will have ample opportunity to comment on the plan contemplated
by the consent decree through their influence in the New England
Council,3 and through the notice and comment process required
before final rules and regulations are promulgated by the
Secretary.
Second, the statutory argument based on 1854(c)(1)(B)
is without merit. Section 1854(c)(1)(B) grants the Secretary
authority to generate her own plan, after disapproving or
partially disapproving a council-generated plan, only after the
council fails to submit a revision. Appellants read
1854(c)(1)(B) as circumscribing the Secretary's authority in this
case, because Conservation sued alleging the illegality of
amendment four. According to appellants, the consent decree
represents an improper exercise by the Secretary because the
Council has not been given a chance to revise amendment four.
Thus, until the New England Council fails to propose revisions,
the Secretary may not act. If we were to follow appellants'
suggestion, the Secretary would not be able to exercise her
statutory discretion to develop her own plan once the Council
submits a plan. The practical effect would permit the Council to
3 Apparently some members of the intervenor associations are on the Council.
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determine the timetable for developing and enforcing FMPs.
The language of the statute, however, does not support
appellants' interpretation. The statute authorizes the Secretary
to develop her own plan if the council fails to submit a plan, or
amendment thereto, "within a reasonable time." 16 U.S.C.
1854(c)(1)(A). Section 1854(c)(1)(B) provides that the
Secretary may act if "[he] disapproves or partially disapproves
any such plan or amendment, or disapproves a revised plan or
amendment, and the Council involved fails to submit a revised or
further revised plan or amendment, as the case may be." Id. at
1854(c)(1)(B). Thus, while the provision does not expressly
include the phrase "after a reasonable time," as in
1854(c)(1)(A), such a condition is implicit. Without it, the
statute fails to indicate who decides when a Council has failed
to act or how much time must pass before that decision maker can
conclude that the council has failed to act. Since these two
subsections are part of the same statutory grant of authority,
and a contrary reading would create an incomprehensible gap in
the statute and hold the Secretary hostage to the Councils, we
hold that the Secretary may generate her own revisions to
Council-generated plans, if the council fails to revise after a
reasonable time.
Our reading gives proper deference to the Secretary,
who, under the Magnuson Act, is ultimately charged with
preventing overfishing as mandated by National Standard One. The
councils serve the Secretary by presenting FMPs. The Magnuson
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Act also unequivocally vests the Secretary with the discretion to
determine whether a Council's progress on conservation and
management is reasonable.
Furthermore, contrary to appellants' assertions,
section 1854(c)(1)(B) simply is not implicated in this case. The
purpose of the consent decree was to avoid a legal determination
whether amendment four complied with National Standard One, or
whether the Secretary had discharged her statutory duty under the
Magnuson Act. The decree sought to save limited agency resources
that would have been wasted on discovery, compiling an
administrative record, and protracted litigation. The decree
purposefully did not admit wrong-doing on the part of the
Secretary or the improper approval of amendment four. It merely
mandates the creation of a new amendment, rather than the
revision of an old one - amendment four. As the provisions in
1854(c)(1)(B) related to revisions do not apply here, that
section cannot be used as a shield to prevent the Secretary from
exercising her statutory discretion.
The third, and final, reason the appeal fails relates
to the permissible scope of consent decrees. Appellants argue
that because the suit challenged amendment four, the consent
decree cannot resolve matters beyond the terms of the amendment.
They misstate the factual scope of Conservation's complaint.
While it is true that Conservation's original complaint attacked
the Secretary's approval of amendment four, it also sought
broader relief - more vigorous conservation and management of New
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England fisheries. In any event, the law governing consent
decrees clearly holds that parties are not restricted to the
terms of the complaint, and may enter a consent decree on other
matters, provided they have the legal authority to do so. Local
No. 93, 478 U.S. at 525-26.
In the present case, the Secretary simply has exercised
her discretion to set a timetable for the development of a FMP
for New England fisheries. Specifically, the Secretary has
stated in advance that she will exercise her authority to create
a plan pursuant to 1854(c)(1)(A), unless the Council develops a
FMP within the "reasonable time" set by the consent decree.
Indeed, it specifically provides that the New England Council
attempt to create a FMP before the Secretary acts.
The Secretary could have established the same schedule
without explicitly notifying the New England Council, or without
entering a consent decree, since what constitutes a "reasonable
time" under the statute is solely within the Secretary's
discretion. Instead, the Secretary chose to settle
Conservation's law suit with a fair, adequate, and reasonable
consent decree that agrees to flexible dates for the development
of a much needed FMP for New England.4 See Durrett, 896 F.2d at
604.
In addition, the district court properly entered the
4 The parties to the consent decree already have indicated that the specific dates in the decree will be changed because the Council has failed to meet the deadline and both agree more time is necessary.
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consent decree under the other factors of Local No. 93. First,
the decree resolved a dispute within the subject matter
jurisdiction of the court since the suit challenged the
Secretary's approval of amendment four, which was reviewable
pursuant to 1855(b). Second, the parties agreed to develop a
fishery rebuilding program to prevent overfishing which remedy is
within the general scope of the pleadings. Indeed, this is
exactly the relief requested. Third, it satisfies the objectives
of the complaint. Local No. 93, 478 U.S. at 525-26.
We find no merit to appellants' other arguments.
Appellants rely heavily on the fact that the consent decree
commits the Secretary to develop a plan to "eliminate"
overfishing, rather than "prevent" overfishing as stated in the
Magnuson Act, 16 U.S.C. 1851(a). This change, they assert,
amounts to rulemaking establishing a new standard. On the
contrary, the decree uses the word "eliminate" because the New
England Council already has determined that overfishing of cod,
haddock, and yellowtail flounder presently occurs. One cannot
prevent what has already occurred. Thus, the consent decree
establishes that a plan to rebuild will be developed in order to
"eliminate" present overfishing, and "prevent" future
overfishing.
Similarly, we are unmoved by appellants' contention
that the consent decree imposes a new "good faith" requirement
with respect to Council action, which is not present in the
Magnuson Act. The "good faith" language of the consent decree is
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superfluous and does not change the relationship between the New
England Council and the Secretary in any respect. As the consent
decree states, the Secretary maintains sole discretion to
determine whether the Council's failure to act requires that she
begin developing her own conservation program. Substantively,
the provisions of the consent decree mirror those of 1854.
"The fact that certain provisions in the Decree track the
language of the Act more closely than others is irrelevant, so
long as all are consistent with it." Citizens for a Better
Environment v. Gorsuch, 718 F.2d 1117, 1125 (D.C. Cir. 1983)
(holding consent decree that established similar timetable
judicially enforceable).
With respect to the five and ten year rebuilding goals,
the Secretary has discretion to establish such target periods.
Section 1853(b)(10) provides that the Secretary may include "such
other measures, requirements, or conditions and restrictions as
are determined to be necessary and appropriate for the
conservation and management of the fishery." The Secretary,
thus, has broad discretion concerning the contents of a FMP. Of
course, the rebuilding targets in the consent decree are not
rules, but rather periods that may be incorporated into a final
rebuilding program contemplated by the consent decree.
The decree expressly provides that the provisions for
notice and comment by the New England Council and the public will
be followed. Once the Secretary approves a plan, she will
promulgate regulations to enforce the plan. The consent decree,
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therefore, does not violate the notice and comment requirements
of the statute because it creates no rule for which notice and
comment is required. Appellants will have an opportunity to
voice their opinions on the plan.
Appellants' last argument contends that the district
court could not enter the decree because it lacked jurisdiction
under 16 U.S.C. 1855(b) of the Magnuson Act, which provides for
judicial review only of regulations and certain secretarial
actions. The claim is without merit. The benchmark for
determining whether the court properly exercised jurisdiction is
the original complaint filed by Conservation. The complaint
challenged amendment four, among other things. Because the
district court had jurisdiction under 1855(b) to review
amendment four, the district court could enter the consent decree
because it resolved the dispute within the standards established
by Local No. 93, 478 U.S. at 525-26.
The district court's denial of the motion to vacate the
consent decree is affirmed.
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