Little Bay Lobster, et a l . v . Daley CV-00-007-M 01/12/01 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Little Bay Lobster Co., Amy Philbrick, L.L.C., Carol Coles, L.L.C., Eulah McGrath, L.L.C., Jennifer Anne, L.L.C., Jacqueline Robin, L.L.C., Michele Jeanne, L.L.C., and Amy Michele, L.L.C., Plaintiffs
v. Civil N o . 00-007-M Opinion N o . 2001 DNH 012 Honorable William M . Daley, as the Secretary of Commerce, Defendant
O R D E R
Plaintiffs, all New Hampshire residents engaged in
lobstering, bring this action to challenge the newly established
boundary line between inshore and offshore waters along the
coasts of New Hampshire, Maine, and Massachusetts. See 50 C.F.R.
§ 697.18 (2000). The Defendant Secretary of Commerce has moved
to transfer the case to the District of Rhode Island, pursuant to
28 U.S.C. § 1404(a) (document n o . 5 ) . Plaintiffs object. Factual Background
Plaintiffs are all New Hampshire companies engaged in the
lobstering business. Each plaintiff that operates a vessel holds
a permit to fish in the Economic Exclusive Zone (EEZ) (3 to 200
nautical miles from shore). Plaintiff Little Bay Lobster, Co.,
does not operate a vessel, but purchases lobsters from the other
plaintiffs and sells them to retail and wholesale outlets.
Studies indicate that plaintiffs are responsible for
approximately 80% of lobsters landed in New Hampshire and for
roughly 50% of the total economic impact on the New Hampshire
commercial fishing industry.
The Magnuson-Stevens Fishery Conservation and Management Act
(Magnuson-Stevens A c t ) , 16 U.S.C. §§ 1801 et seq. (2000),
empowers the Secretary of Commerce (Secretary), acting through
the National Marine Fisheries Service (NMFS), to regulate the
lobster fishery in the EEZ and creates regional fishery
management councils, which develop Fishery Management Plans
(FMP). See 16 U.S.C. §§ 1852-1853. The regional councils submit
proposed FMPs to NMFS, which in turn evaluates the proposed
management plans and takes action by approving, disapproving, or
2 modifying the submitted plans. If NMFS approves a plan, it
promulgates regulations necessary to implement i t .
Sometime prior to 1993, the New England Fishery Management
Council (NEFMC) developed and submitted the American Lobster FMP.
NMFS approved that management plan and implemented it via
regulations set out in 50 C.F.R. Part 649. NEFMC also
established Effort Management Teams (EMT), which first developed
the concept of dividing the lobster fishery into regulatory or
management areas. Through an industry-wide consensus, the EMTs
created five fishery zones in an effort to equally divide fishing
grounds based on customary practices. As part of this management
effort, the offshore fishing fleet, including plaintiffs, agreed
to a boundary line that had the effect of limiting the offshore
fishery in the Gulf of Maine to an area beyond thirty miles from
the coast. That limitation required the offshore fleet to give
up fishing in the federal waters of the EEZ between three and
thirty miles offshore. The concession was made in an effort to
conserve natural resources. The zones, including the accepted
boundary line, were never adopted by NMSF, but have served as the
basis for management discussions since 1993.
3 Also in 1993, management measures provided for under the
Magnuson-Stevens Act were supplemented by the Atlantic Coastal
Fisheries Cooperative Management Act (ACFCMA), 16 U.S.C. §§ 5101
et seq. Like the Magnuson-Stevens Act, the ACFCMA authorized the
Secretary to promulgate regulations governing fishing in the EEZ.
That power can be exercised, however, only in the absence of an
approved and implemented FMP under the Magnuson-Stevens Act, and
then only after consultation with the appropriate fishery
management council.
In March of 1996, NMFS proposed withdrawing its approval of
the American Lobster FMP, but not until the Atlantic States
Marine Fisheries Commission (ASMFC) developed an Interstate
Fishery Management Plan (ISFMP). An American Lobster ISFMP was
later adopted and ASFMC approved Amendment 3 to that plan in
December of 1997. Accepting Amendment 3 as a “comprehensive plan
for managing the lobster fishery in state and federal waters,”
NMFS rescinded approval of the American Lobster FMP, along with
its implementing regulations. On December 6, 1999, NMFS reissued
pertinent regulations, effective January 5 , 2000. See 50 C.F.R.
Part 697.
4 This litigation challenges those regulations to the extent
they set “the boundary line between EEZ Nearshore Management Area
1 and EEZ Offshore management Area 3," see 50 C.F.R. § 697.18
(2000), and shift the boundary line in the Gulf of Maine
approximately 20 miles farther offshore, causing plaintiffs to
lose approximately 2000 square miles of previously available
fishing ground (the source of approximately 30% of plaintiffs’
landings from Northern Waters). Plaintiffs also challenge the
propriety of the Secretary’s (acting through NMFS) rescinding
approval of the American Lobster FMP.
Discussion
The Secretary moves, pursuant to 28 U.S.C. 1404(a), to
transfer this case to the United States District Court for the
District of Rhode Island. Section 1404(a) provides:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any district where it might have been brought.
Authority to transfer a case pursuant to 28 U.S.C. 1404(a) is
committed to the court's broad discretion. United States ex rel.
LaValley v . First Nat'l. Bank, 625 F.Supp. 5 9 1 , 594 (D.N.H.
5 1985). Although no single factor is dispositive, a court should
consider:
(1) the convenience of the parties, (2) the convenience of the witnesses, (3) the relative ease of access to sources of proof, (4) the availability of process to compel attendance of unwilling witnesses, (5) [the] cost of obtaining willing witnesses, and (6) any practical problems associated with trying the case most expeditiously and inexpensively.
F.A.I. Electronics Corp. v . Chambers, 944 F.Supp. 7 7 , 80-81
(D.Mass. 1996) (citation omitted); see also Buckley v . McGraw-
Hill, Inc., 762 F.Supp. 4 3 0 , 439 (D.N.H. 1991) (when ruling upon
a motion to transfer under Section 1404(a), the court will
consider such factors as the "convenience of the parties and
witnesses and the availability of documents needed for
evidence."). Here, the Secretary bears the burden of
demonstrating that those factors weigh in favor of transfer.
Buckley, 762 F.Supp. at 439.
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Little Bay Lobster, et a l . v . Daley CV-00-007-M 01/12/01 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Little Bay Lobster Co., Amy Philbrick, L.L.C., Carol Coles, L.L.C., Eulah McGrath, L.L.C., Jennifer Anne, L.L.C., Jacqueline Robin, L.L.C., Michele Jeanne, L.L.C., and Amy Michele, L.L.C., Plaintiffs
v. Civil N o . 00-007-M Opinion N o . 2001 DNH 012 Honorable William M . Daley, as the Secretary of Commerce, Defendant
O R D E R
Plaintiffs, all New Hampshire residents engaged in
lobstering, bring this action to challenge the newly established
boundary line between inshore and offshore waters along the
coasts of New Hampshire, Maine, and Massachusetts. See 50 C.F.R.
§ 697.18 (2000). The Defendant Secretary of Commerce has moved
to transfer the case to the District of Rhode Island, pursuant to
28 U.S.C. § 1404(a) (document n o . 5 ) . Plaintiffs object. Factual Background
Plaintiffs are all New Hampshire companies engaged in the
lobstering business. Each plaintiff that operates a vessel holds
a permit to fish in the Economic Exclusive Zone (EEZ) (3 to 200
nautical miles from shore). Plaintiff Little Bay Lobster, Co.,
does not operate a vessel, but purchases lobsters from the other
plaintiffs and sells them to retail and wholesale outlets.
Studies indicate that plaintiffs are responsible for
approximately 80% of lobsters landed in New Hampshire and for
roughly 50% of the total economic impact on the New Hampshire
commercial fishing industry.
The Magnuson-Stevens Fishery Conservation and Management Act
(Magnuson-Stevens A c t ) , 16 U.S.C. §§ 1801 et seq. (2000),
empowers the Secretary of Commerce (Secretary), acting through
the National Marine Fisheries Service (NMFS), to regulate the
lobster fishery in the EEZ and creates regional fishery
management councils, which develop Fishery Management Plans
(FMP). See 16 U.S.C. §§ 1852-1853. The regional councils submit
proposed FMPs to NMFS, which in turn evaluates the proposed
management plans and takes action by approving, disapproving, or
2 modifying the submitted plans. If NMFS approves a plan, it
promulgates regulations necessary to implement i t .
Sometime prior to 1993, the New England Fishery Management
Council (NEFMC) developed and submitted the American Lobster FMP.
NMFS approved that management plan and implemented it via
regulations set out in 50 C.F.R. Part 649. NEFMC also
established Effort Management Teams (EMT), which first developed
the concept of dividing the lobster fishery into regulatory or
management areas. Through an industry-wide consensus, the EMTs
created five fishery zones in an effort to equally divide fishing
grounds based on customary practices. As part of this management
effort, the offshore fishing fleet, including plaintiffs, agreed
to a boundary line that had the effect of limiting the offshore
fishery in the Gulf of Maine to an area beyond thirty miles from
the coast. That limitation required the offshore fleet to give
up fishing in the federal waters of the EEZ between three and
thirty miles offshore. The concession was made in an effort to
conserve natural resources. The zones, including the accepted
boundary line, were never adopted by NMSF, but have served as the
basis for management discussions since 1993.
3 Also in 1993, management measures provided for under the
Magnuson-Stevens Act were supplemented by the Atlantic Coastal
Fisheries Cooperative Management Act (ACFCMA), 16 U.S.C. §§ 5101
et seq. Like the Magnuson-Stevens Act, the ACFCMA authorized the
Secretary to promulgate regulations governing fishing in the EEZ.
That power can be exercised, however, only in the absence of an
approved and implemented FMP under the Magnuson-Stevens Act, and
then only after consultation with the appropriate fishery
management council.
In March of 1996, NMFS proposed withdrawing its approval of
the American Lobster FMP, but not until the Atlantic States
Marine Fisheries Commission (ASMFC) developed an Interstate
Fishery Management Plan (ISFMP). An American Lobster ISFMP was
later adopted and ASFMC approved Amendment 3 to that plan in
December of 1997. Accepting Amendment 3 as a “comprehensive plan
for managing the lobster fishery in state and federal waters,”
NMFS rescinded approval of the American Lobster FMP, along with
its implementing regulations. On December 6, 1999, NMFS reissued
pertinent regulations, effective January 5 , 2000. See 50 C.F.R.
Part 697.
4 This litigation challenges those regulations to the extent
they set “the boundary line between EEZ Nearshore Management Area
1 and EEZ Offshore management Area 3," see 50 C.F.R. § 697.18
(2000), and shift the boundary line in the Gulf of Maine
approximately 20 miles farther offshore, causing plaintiffs to
lose approximately 2000 square miles of previously available
fishing ground (the source of approximately 30% of plaintiffs’
landings from Northern Waters). Plaintiffs also challenge the
propriety of the Secretary’s (acting through NMFS) rescinding
approval of the American Lobster FMP.
Discussion
The Secretary moves, pursuant to 28 U.S.C. 1404(a), to
transfer this case to the United States District Court for the
District of Rhode Island. Section 1404(a) provides:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any district where it might have been brought.
Authority to transfer a case pursuant to 28 U.S.C. 1404(a) is
committed to the court's broad discretion. United States ex rel.
LaValley v . First Nat'l. Bank, 625 F.Supp. 5 9 1 , 594 (D.N.H.
5 1985). Although no single factor is dispositive, a court should
consider:
(1) the convenience of the parties, (2) the convenience of the witnesses, (3) the relative ease of access to sources of proof, (4) the availability of process to compel attendance of unwilling witnesses, (5) [the] cost of obtaining willing witnesses, and (6) any practical problems associated with trying the case most expeditiously and inexpensively.
F.A.I. Electronics Corp. v . Chambers, 944 F.Supp. 7 7 , 80-81
(D.Mass. 1996) (citation omitted); see also Buckley v . McGraw-
Hill, Inc., 762 F.Supp. 4 3 0 , 439 (D.N.H. 1991) (when ruling upon
a motion to transfer under Section 1404(a), the court will
consider such factors as the "convenience of the parties and
witnesses and the availability of documents needed for
evidence."). Here, the Secretary bears the burden of
demonstrating that those factors weigh in favor of transfer.
Buckley, 762 F.Supp. at 439. "[T]he Supreme Court has held that
'[u]nless the balance is strongly in favor of the defendant, the
plaintiff's choice of forum should rarely be disturbed.'" Id.
(quoting Gulf Oil Corp. v . Gilbert, 330 U.S. 5 0 1 , 508 (1947)).
Because plaintiffs are challenging the action of an
administrative agency under the Administrative Procedures Act, 5
6 U.S.C. §§ 701 et seq., the scope of judicial review is limited to
the administrative record. Accordingly, both parties concede
that it is unlikely any witnesses will be called. So the
convenience of witnesses, the availability of process, and the
cost of obtaining witnesses are not serious factors. The
Secretary argues that transfer is nonetheless appropriate because
three cases challenging the same regulations are currently
pending in the District of Rhode Island, and because the cost of
duplicating the administrative record here would be a waste of
taxpayers’ money.
Even assuming plaintiffs could have originally brought this
suit in the District of Rhode Island, the Secretary has not met
his substantial burden of justifying transfer. While it is true
that this case is facially similar to cases pending in Rhode
Island, it is also sufficiently different to counsel against
transfer. This case and the Rhode Island cases all challenge the
propriety of the Secretary’ recission of the American Lobster
FMP, and all the cases question whether the Secretary properly
considered alternatives, and the economic impact on the states
and the lobstermen, before doing s o . However, except for the
propriety of rescinding approval, the facts and analysis
7 necessary to resolve the questions presented in the Rhode Island
cases differ markedly from those pertinent to resolving this
case.
The Rhode Island cases challenge restrictions found in
portions of 50 C.F.R. Part 697 related to equipment, and dispute
whether the Secretary adequately considered the economic impact
on Rhode Island and its lobstermen. In contrast, this case
focuses on the New Hampshire inshore waters boundary and the
economic impact on New Hampshire and its lobstermen. The
potential effect on Rhode Island of equipment limitations is
substantially distinct from the effect changing the boundary line
might have on New Hampshire’s industry.
Additionally, contrary to the Secretary’s view, given the
sizeable role plaintiffs play in the New Hampshire commercial
fishing industry, the potential harm associated with changing the
inshore/offshore boundary line in the Gulf of Maine certainly
implicates significant local interests. Thus, notwithstanding
the Secretary’s concern about costs associated with producing the
administrative record, different operative facts, deference to
plaintiffs’ choice of forum, and distinct legal issues, all
8 militate against transfer. The Secretary’s contrary arguments
are insufficient to shift the balance in his favor; plaintiffs’
choice of venue will be respected.
Conclusion
Because the Secretary has not met his substantial burden to
shift the balance in his favor, the motion for transfer of venue
(document n o . 5 ) is denied. In accordance with this court’s
order of March 3 0 , 2000 (document n o . 6 ) , the Secretary’s answer
to the Complaint is due thirty days from the date of this order.
SO ORDERED.
Steven J. McAuliffe United States District Judge
January 1 2 , 2001
cc: Charles R. Powell, I I I , Esq. Mark A . McSally, Esq.