“(1) Regulations promulgated by the Secretary [of
Commerce] under this Act and actions described in paragraph (2) shall be subject
to judicial review to the extent authorized by, and in accordance with, [the
federal Administrative Procedures Act], if a petition for such review is filed
within 30 days after the date on which the regulations are promulgated or the
action is published in the Federal Register, as applicable; except that—
(A) section
705 [which applies to temporary relief] of such [statute] is not applicable,
and
(B) the appropriate
court shall only set aside any such regulation or action [because such regulation
or action was arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law; was unconstitutional; was in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right; or was adopted without
observance of procedure required by law].”
Magnuson-Stevens also contains
ten so-called “National Standards for Fisheries Conservation and Management,”
which address such things as achieving optimum yield, preventing overfishing,
following the best available science, allocating fishing privileges,
maintaining fishing communities, and minimizing bycatch; the same law includes
a provision that requires all overfished stocks to be rebuilt within a time
certain which, if reasonably practicable, may not exceed 10 years.
If a fishery management plan or
related regulation isn’t based on facts developed in the public hearing
process, violates a National Standard, or does not provide for rebuilding an
overfished stock within an acceptable time period, an affected citizen and/or
organization may take the responsible federal agencies to court in order to
hold them accountable for their failures.
While the Atlantic Coastal
Fisheries Act does include provisions to hold a state accountable for noncompliance
with an ASMFC fishery management action—should any state fail to adopt a
required management measure, the ASMFC may find it out of compliance with any
provision of a management plan and forward that finding to the Secretary of
Commerce who, provided that they agree with the finding of noncompliance and
believe that the relevant provision is necessary for the conservation of the affected
species, must shut down the fishery for such species in the noncompliant state’s
waters until compliance is achieved—it contains nothing that might hold the
ASMFC accountable for its own actions and omissions in the management process.
The closest it comes is a
provision which states that.
“Within 1 year after December 20, 1993,
the Commission shall establish standards and procedures to govern the
preparation of coastal fishery management plans under this chapter, including
standards and procedures to ensure that such plans promote the conservation of
fish stocks throughout their ranges and are based on the best scientific
information available; and the Commission provides adequate opportunity for
public participation in the plan preparation process, including at least four
public hearings and procedures for the submission of written comments to the
Commission. [formatting omitted]”
However, what recourse an
aggrieved party might have, should the ASMFC fail to live up to the standards
that it itself has established, is completely unclear.
A big part of the problem is that
the ASMFC is an
interstate compact, a unique legal entity formed by a voluntary agreement of its
member states, approved by Congress, and ultimately governed by Article I,
Section 10, Clause 3 of the United States Constitution, which reads,
“No State shall, without Consent of
Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in times of
Peace, enter into any Agreement or Compact with another State, or with a
foreign Power, or engage in War, unless actually invaded, or in such imminent
Danger as will not admit of delay.”
“to promote the better utilization of the
fisheries, marine, shell and anadromous, of the Atlantic seaboard by the
development of a joint program for the promotion and protection of such
fisheries, and by the prevention of the physical waste of such fisheries from
any cause. It is not the purpose of this
compact to authorize the states joining herein to limit the production of fish
or fish products for the purpose of establishing or fixing the price thereof,
or creating or perpetuating monopoly.”
To further emphasize that
participation in the interstate compact is voluntary, its final article provides,
among other things, that
“This compact shall continue in force and
remain binding upon each compacting state until renounced by it. Renunciation of this compact must be preceded
by sending six months notice in writing of intention to withdraw from the
compact to the other states party hereto.”
As an interstate compact duly
approved by Congress, rather than a federal agency, the ASMFC has no regulatory
authority over anyone. It may only, pursuant
to the Atlantic Coastal Fisheries Act, develop fishery management plans and
related management actions, which the individual member jurisdictions must then
adopt in regulations promulgated not by the ASMFC, but by the member jurisdictions
themselves.
All of that makes it very
difficult to hold the ASMFC accountable for any action or omission related to a
fishery management plan.
In that matter, three parties
which intervened in the action as plaintiffs, the United Boatmen of New York,
the New York Fishing Tackle Trades Association, and the Fishermen’s Conservation
Association, attempted to use the provisions of the federal Administrative
Procedures Act to make the ASMFC a defendant in the action, which was
originally brought by the State of New York against the National Marine
Fisheries Service and its parent agencies.
The purpose of the lawsuit was to challenge the allocation of summer
flounder made to New York’s recreational fishermen.
As noted by the United States
Court of Appeals for the 2nd Circuit, which decided the matter,
“ASMFC brought a motion to dismiss United
Boatmen’s complaint in intervention for failure to state a claim. In support of its motion to dismiss, ASMFC
pointed out that neither its governing Compact nor any federal statute provide
a private right of action to seek judicial review of its regulatory
decisions. More importantly for purposes
of this litigation, the Commission mentioned that the provisions of the
[Administrative Procedures Act], which provide a right of action against federal
agencies, do not apply to action by an interstate compact agency. [citations omitted]”
“The high level of federal participation
in ASMFC does not, however, automatically transform ASMFC from an association
of state representatives into a quasi-federal agency. By its own terms, the ASMFC Compact expressly
states that ‘[n]othing in this compact shall be construed to limit the powers
of any signatory state.’ At the same
time, the Fisheries Act renders [fishery management plans] prepared by the
Commission binding on ASMFC member states.
The Fisheries Act expressly requires each state identified in [a fishery
management plan] developed by the Commission to implement and enforce the
[fishery management plan], usually through state-enacted laws or
regulations. Thus, ASMFC member states
are bound by Commission decisions, which are controlled in part by federal
standards. In addition, the Fisheries
Act confers authority on the Commission to monitor a state’s implementation and
enforcement of Commission [fishery management plans]. If the Commission determines that a state is
not in compliance with its [fishery management plan], the Commission is
required to provide notice to the United States Secretary of Commerce. While it is true that the Secretary must make
an independent decision that the [fishery management plan’s] measures are
necessary for fishery conservation before taking action to enforce the
Commission’s [fishery management plan] (namely, by imposing a fishing
moratorium), this separation of the ASMFC’s and the Secretary’s powers appears more
formal than substantive. It does not
alter the fact that the Commission’s [fishery management plans] are binding on
the states, that the Commission monitors state compliance with the [fishery
management plans], and that the Commission’s determination regarding a state’s
non-compliance is critical as to whether a moratorium on fishing will be
imposed on that state. Considered
together, these congressionally authorized activities rise to the level of de
facto regulatory power exercised by ASMFC on behalf of the federal government…the
Commission’s de facto regulatory power is sufficient to transform the
Commission into a quasi-federal agency for the purpose of [Administrative
Procedures Act] review. {citations
omitted]”
While that might seem a
reasonable argument, it wasn’t reasonable enough to persuade the 2nd
Circuit, which ultimately found that the ASMFC was neither a federal agency no quasi-agency,
writing,
“The fact that the ASMFC was created by an
interstate compact and approved by Congress does not alter [the] analysis. We find that the [Administrative Procedures
Act’s] definition of definition of a federal agency does not fit the
Commission. The ASMFC Compact states
that the ‘Commission shall be a body corporate, with the powers and duties set
forth’ in the Compact. Although the
Commission acts in parallel with the federal government in managing the stock
of summer flounder off of the Atlantic coast,
it exists outside the federal administrative law framework. And, it would upset the ‘federal-state
balance’ to subject its actions to accountability measures designed to restrain
the actions of federal authorities. [citations
omitted]”
The 2nd Circuit’s
decision seemed fairly decisive, but was only binding on federal district courts
in New York, Vermont, and Connecticut.
Other circuit courts, with jurisdiction over matters arising elsewhere,
could decide otherwise, although New York v. Atlantic States Marine
Fisheries Commission nevertheless constituted persuasive, rather than
binding, authority.
A recent 4th Circuit
decision originating in Maryland (the 4th Circuit also has appellate
jurisdiction over matters arising in Virginia, West Virginia, North Carolina,
and South Carolina) again illustrated just how difficult it is to hold the
ASMFC accountable for its actions.
The matter is one that I’ve written
about before, Delmarva Fisheries Association v. Atlantic States Marine
Fisheries Commission, in which a group of commercial fishermen and for-hire
vessel owners challenged Addendum
II to Amendment 7 to the Interstate Fishery Management Plan for Atlantic
Striped Bass, which reduced the commercial striped bass quota by 7% while
cutting the bag limit for charter and party boats in the Chesapeake Bay from
two fish to one—the same bag limit that had already been in effect for
shorebound and private boat anglers.
I
wrote about the suit when it was first brought, challenging the ASMFC’s
authority. I
wrote about it a month later, when plaintiffs’ motion for a preliminary
injunctionwas denied, and the trial court noted that it was unlikely that plaintiffs
would succeed on the merits. Now,
the trial court’s decision has been vacated by the 4th Circuit, and
replaced with an order to dismiss the entire action, because the 4th
Circuit found that the plaintiffs never had standing to bring suit in the first
place, because it wasn’t the ASMFC that caused their alleged injuries, but
rather the State of Maryland, which actually promulgated the regulations that
imposed Addendum II’s management measures on that state’s fishermen.
In
its decision, the 4th Circuit wrote,
“Plaintiffs sued the Commission, not Maryland. But they are regulated by Maryland, not the
Commission. So, to have standing to
enjoin the Commission’s actions, Plaintiffs must show how doing so will change
how Maryland regulates them. Where
choices by an ‘independent actor’ are involved—here, the sovereign state of Maryland—Plaintiffs
face the ‘difficult’ burden of showing how Maryland would respond if the
Commission’s Addendum II were enjoined.
In other words, Plaintiffs must plausibly allege that Maryland would
likely rescind the one-fish limit on charter boats if the district court
enjoined Addendum II. They have not done
so.
“First, Plaintiffs’ allegation that the Commission
coerced Maryland to enact the regulations that are allegedly causing them harm
is unpersuasive. Maryland voluntarily
entered thto e Commission and may withdraw for any reason. As the Commission has authority to recommend
plans only its ‘member states,’ only member states are subject to Bass Act
penalties for noncompliance with Commission plans. And taking a step back, Maryland has
collaborated with the other states in the Commission for over eighty years to
preserve critical fisheries in the Chesapeake Bay and the Atlantic Ocean. As with any collaboration, sometimes Maryland
takes and sometimes it gives. But it
would probably surprise Maryland to hear that it had been coerced.
“Second, even if Plaintiffs could
establish that the Commission did ‘coerce’ Maryland to adopt the regulations,
they would still need to plausibly allege that Maryland would opt to rescind
its duly enacted regulations if Addendum II were enjoined. When Plaintiffs’ ‘asserted injury arises from’
the Commission’s alleged coercion ‘of someone else,’ it becomes the ‘burden
of the plaintiff to adduce facts showing that those choices have been or will
be made in such a manner as to permit redressability of injury.’ But Plaintiffs fail to even allege that
Maryland would likely repeal its regulations if Addendum II were enjoined. And even if they had made that bare
allegation, they would have needed to provide an explanation given that
Maryland chose to adopt regulations more stringent than Addendum II’s recommendations.
“In sum, Plaintiffs have not plausibly
alleged that Maryland is likely to repeal its striped-bass regulations if
Addendum II were to be enjoined. So
Plaintiffs lack standing as they have failed to plead facts showing that an
injunction of Addendum II would likely redress their injuries. Accordingly, we must instruct the district
court to dismiss this case. [citations
omitted]”
The decision in Delmarva
Fisheries didn’t completely slam the door on judicial review of the ASMFC’s
management actions, but it came pretty close.
It left open the mere possibility that an artfully drafted complaint,
which included allegations that, if it were not for the ASMFC’s continued
monitoring of state compliance, a state would repeal the regulations that the
Plaintiffs sought to enjoin, might survive a challenge to the plaintiffs’
standing to sue. However, making allegations
are one thing, and proving those allegations another, so it is very possible
that, even if a future lawsuit survived the ASMFC’s motion to dismiss, the
final judgment would still favor the ASMFC.
Proving a regulator’s unspoken desire to repeal existing regulations is
not an easy thing to do.
What the Delmarva Fisheries
decision didn’t—and had no need to—address was just how the plaintiffs in that
action might have successfully sued Maryland over its Addendum II striped bass
regulations, had it not chosen to sue the ASMFC. Had they tried, such effort probably wouldn’t
have led to any greater success.
That’s because, while the details
may vary a little from state to state, most states have passed laws similar to
the federal Administrative Procedures Act, which specify how administrative
agencies may go about their work and how a party, aggrieved by an agency
decision, may seek judicial review. One
of the near-constants in state statutes and state case law (and federal law as
well) dealing with judicial review of agency actions is whether there is “substantial
evidence” in the administrative record to support the agency action; if such
substantial evidence is present, the action will normally be upheld.
Cornell University
Law School’s Legal Information Institute informs us that
“Substantial evidence is a standard of
review used at the appellate level, usually to review an administrative agency’s
actions…Substantial evidence is a deferential standard lower than preponderance
of the evidence.
“In the context of federal agencies, for
example, courts reviewing under the substantial evidence standard look to the
entire existing administrative record and ask whether it contains evidence
sufficient to support the agency’s factual determinations. The standard ‘means—and means only—such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Thus if, in adopting regulations
implementing Addendum II, Maryland’s administrative record included the
findings of ASMFC scientists which supported passage of Addendum II, or the similar
findings of its own scientific staff, along with the testimony of witnesses
during the state’s own public hearing process, and such evidence was sufficient
to support the regulations, a judicial challenge would fail, regardless
of whether there was also evidence to the contrary; it is up to the
agency to decide what evidence to believe.
It is also possible that the very fact that the ASMFC might find
Maryland out of compliance with Addendum II, and that the Secretary of Commerce
might impose a moratorium on Maryland’s striped bass fishery, causing
substantial social and economic harm, if Maryland didn’t adopt conforming
regulations would be sufficient for such regulations to survive legal
challenge.
So how may someone who believes
themselves injured by the ASMFC’s actions—or, just as likely, but the ASMFC’s
inaction—successfully seek judicial review?
At this point, it’s safe to say
that no one really knows.
We know that the federal
Administrative Procedures Act probably can’t be used as a vehicle to challenge
the ASMFC, that the Delmarva Fisheries decision will make it very difficult
for a plaintiff to establish standing when suing the ASMFC itself, and that
state administrative law principles will probably also make it difficult to
argue that state regulations, adopted to comply with ASMFC management measures,
are arbitrary, capricious, or without support on the administrative record,.
That closes a lot of doors.
As far as opening a door to a
lawsuit goes, I have always wondered whether, in certain circumstances when a
management plan requires the ACMFC to take a particular action—an
example is language
in Amendment 7 to the Interstate Fishery Management Plan for Atlantic
Striped Bass, which states that
“If female [spawning stock biomass] falls
below the target for two consecutive years and the [fishing mortality] rate
exceeds the target in either of those years, the striped bass management
program must be adjusted to rebuild the biomass to a level that
is at or above the target within an established timeframe (not to exceed 10
years), [emphasis added]”
--and the ASMFC fails to follow
the mandatory language in such plan, a litigant might be able to seek a writ of
mandamus to compel the ASMFC to act in accordance with the management document.
“A writ of mandamus…is a judicial remedy…consisting
of a court order that commands a government official or entity to perform an
act it is legally required to perform as part of its official duties…Writs of
mandamus are usually used in situations where a government official has failed
to act as legally required…Decisions that fall within the discretionary power
of public officials cannot be controlled by the writ…
“The purpose of mandamus is to remedy
defects of justice. It lies in the cases
where there is a specific right but no specific legal remedy for enforcing that
right…”
That all sounds encouraging, but
it would still require a plaintiff to establish that the ASMFC is a “government
entity,” that the ASMFC is “legally required” to follow the mandates of its own
management plans, and that the ASMFC is not entitled to exercise at least a
small degree of discretion as to whether it must—in the current example—initiate
a rebuilding plan for striped bass if the relevant management trigger is
tripped.
To make things even a little
more complicated, Cornell University Law School tells us that
“For comity purposes, state courts cannot
direct a federal officer through a mandamus and federal courts likewise cannot
issue a mandamus to a state officer.”
So, anyone hoping to use a writ
of mandamus to compel the ASMFC to act would have to first determine whether
the interstate compact represents a state or federal entity, and defend that
determination after filing a petition in the appropriate court.
And even after all that was done,
a mandamus petition filed against the ASMFC would represent a case of first
impression without guiding legal precedent, that the plaintiff could easily—perhaps
probably would—lose.
Of course, there is still one
other, intriguing possibility. Counsel
for the plaintiffs in Delmarva Fisheries has announced his intent to
appeal the 4th Circuit’s decision to the United States Supreme Court. It is a longshot that such appeal would ever be
heard. Appellants
don’t typically get to the Supreme Court “as of right.” Instead, they must petition the court for a
writ of certiorari allowing them to take the appeal, and as the website of the
United States’ court system makes clear,
“The Court typically will agree to hear a
case only when it involves an unusually important legal principle, or when two
or more federal appellate courts have interpreted a law differently.”
The Plaintiffs in Delmarva
Fisheries make a lot of dubious claims that seem completely without legal merit. The trial court found that they were unlikely
to prevail if the case went to trial, while the 4th Circuit decided
that they have no standing to sue. The
odds are very good that the 4th Circuit will have the final word.
But we can only wonder whether
there is the slightest chance that the Supreme Court might look at an
interstate compact that has the ability and the duty to preserve and sustainably
manage the inshore marine resources of the entire Atlantic coastline or, if it
shirked in its task, might well oversee those resources’ demise, and in its
success or failure affect the recreational, commercial, and economic well-being
of many millions of stakeholders, and note that such compact’s management
actions are subject to no judicial oversight at all.
And if the Supreme Court paid
that kind of attention, it might decide that there is an “important legal
principle” involved after all, deciding that when any entity, including an
interstate compact, is given that much power, citizens ought be given a way to
keep that power in check.
It is highly, highly unlikely
that the Supreme Court will come to that decision. It is a near-certainty that the petition for
certiorari will be denied.
But only a near-certainty. No one can ever be completely certain about
what the Court will do.
So it’s still tempting to
speculate about what might occur if the Supreme Court surprised us all, and decided
to take up the case.
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