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United Boatmen, et al v. Gary Locke

February 25, 2010

UNITED BOATMEN, ET AL., PLAINTIFFS,
v.
GARY LOCKE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Pisano, District Judge:

Not for publication

OPINION

Presently before the Court is a Motion for Judgment on the Pleadings filed pursuant to Fed. R. Civ. P. 12(c) by Gary Locke, in his capacity as Secretary of the United States Department of Commerce; the National Oceanic and Atmospheric Administration; and the National Marine Fisheries Service (collectively, "Defendants"). Plaintiffs United Boatmen, et al. ("Plaintiffs"), oppose Defendants‟ motion. For the reasons that follow, the Court finds that the issues presented are moot and, therefore, Defendants‟ motion is granted.

I. Background

The Magnuson-Stevens Fishery Conservation and Management Act ("MSA" was enacted by Congress in 1976 to "conserve and manage the fishery resources found off the coasts of the United States." 16 U.S.C. § 1801(b)(1). To achieve this purpose, the MSA established eight regional fishery management councils composed of fishery management officials, commercial and recreational fishery participants, and other individuals with scientific expertise or other training or experience in fishery conservation and management. 16 U.S.C. § 1852. The councils must submit fishery management plans ("FMPs") to the Secretary of Commerce, acting through the National Marine Fisheries Service ("NMFS"), that adhere to ten statutory, national standards for fishery conservation and management. 16 U.S.C. § 1851. NMFS then reviews the FMP for consistency with the national standards and solicits public comment, after which it approves, disapproves, or partially approves the FMP. 16 U.S.C. § 1854(a). If the FMP is not completely approved, NMFS must explain why and make corrective recommendations; if the FMP is approved, then NMFS reviews the implementing regulations proposed by the councils for consistency with the FMP and solicits further public comment. 16 U.S.C. § 1854(a)-(b). Final implementing regulations, once promulgated by NMFS, have the force and effect of law.

The Mid-Atlantic Fishery Management Council (the "Council") developed the Black Sea Bass FMP in cooperation with the Atlantic States Marine Fisheries Commission (the "Commission") as an amendment to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan. Fisheries of the Northeastern United States, "Amendment 9 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan," 61 Fed. Reg. 43,217 (Aug. 21, 1996). The Council submitted the amendment to NMFS, which implemented it in May 1996.

Id. The amendment revised the FMP to provide management measures for the Black Sea Bass fishery, including commercial quotas, recreational harvest limits, size limits, gear restrictions, permits, and reporting requirements. Id. On January 2, 2009, NMFS issued its final rule to establish that the recreational harvest limit ("RHL") for Black Sea Bass in 2009 was 1.14 million pounds. Fisheries of the Northeastern United States; Summer Flounder, Scup, and Black Sea Bass Fisheries; 2009 Summer Flounder, Scup, and Black Sea Bass Specifications; Preliminary 2009 Quota Adjustments; 2009 Summer Flounder Quota for Delaware, 74 Fed. Reg. 29 (Jan. 2, 2009).

NMFS estimates annual landings in the Black Sea Bass recreational fishery based largely on the results of the Marine Recreational Fishery Statistics Survey ("MRFSS"). See, e.g., Fisheries of the Northeastern United States; Black Sea Bass Recreational Fishery; Emergency Rule, 74 Fed. Reg. 51,092, 51,092-93 (Oct. 5, 2009) (estimating 2009 landings based on MRFSS data). Historically, MRFSS has used random telephone and intercept surveys to estimate fishing effort, catch, and participation. See, e.g., New York v. Locke, 2009 WL 1194085, *4 (E.D.N.Y. 2009) ("MRFSS data is collected by two independent surveys: (1) a telephone survey of households in coastal counties, and (2) an "intercept,‟ or interview survey of anglers by trained interviewers stationed at fishing access sites."). On January 1, 2010, however, NMFS introduced a new registry program designed to improve NMFS‟s ability to collect data on fisheries such as the Black Sea Bass recreational fishery. Marine Recreational Fisheries of the United States; National Saltwater Angler Registry Program, 73 Fed. Reg. 79,705 (Dec. 30, 2008). The new program, called the National Saltwater Angler Registry Program ("NSARP"), requires recreational anglers and for-hire fishing vessels that engage in angling and spearfishing for marine and anadromous fish to register annually with NMFS. Id. at 79,706. The intention of NSARP is to use subsequent sampling from the registry, as it grows, to replace the telephone survey data from MRFSS. Id.

On September 29, 2009, NMFS concluded, along with the Council and the Commission, that the "best available information" from the MRFSS indicated that the 2009 RHL for Black Sea Bass had been "greatly exceeded." 74 Fed. Reg. at 51,092-93 (Oct. 5, 2009). Accordingly, NMFS established a temporary, emergency rule to close the Black Sea Bass recreational fishery in the exclusive economic zone (i.e., from 3 to 200 nautical miles offshore) from Cape Hatteras to Maine for a period of 180 days (the "Emergency Rule"). Id. The Emergency Rule was implemented swiftly and without public comment to mitigate the magnitude of overage and avoid potential closure of the recreational fishery in the exclusive economic zone for all of 2010. Id. In April 2010, NMFS extended the closure to the end of May 21, 2010. Fisheries of the Northeastern United States; Black Sea Bass Recreational Fishery; Emergency Rule Correction and Extension, 75 Fed. Reg. 17,618 (Apr. 7, 2010). On May 22, 2010, participants in the Black Sea Bass recreational fishery were allowed to resume fishing pursuant to the Summer Flounder, Scup, and Black Sea Bass FMP. Id.

On November 4, 2009, Plaintiffs filed this action challenging the Emergency Rule. (Docket Entry no. 1). On January 21, 2010, Defendants filed their answer and administrative record supporting the Emergency Rule. (Docket Entry no. 8). On June 16, 2010, Defendants filed their motion for judgment on the pleadings to address the matter of subject matter jurisdiction before reaching the merits of the ase. (Docket Entry no. 23). The administrative record was finally settled on July 22, 2010, when Magistrate Judge Lois Goodman denied Plaintiffs‟ motion to supplement the record. (Docket Entry no. 33).

II. Standard of Review

Rule 12(c) of the Federal Rules of Civil Procedure allows a party to move for judgment on the pleadings "after the pleadings are closed but within such time as not to delay trial . . ." Fed. R. Civ. P. 12(c). The applicable standard on a motion for judgment on the pleadings is materially the same standard applied on a motion to dismiss pursuant to Rule 12(b)(6). Spruill v. Gillis, 372 F.3d 218, 223 n.2 (3d Cir. 2004). In reviewing a motion made pursuant to Rule 12(c), a court must take all allegations in the complaint as true, viewed in the light most favorable to the plaintiff. Gomez v. Toledo, 446 U.S. 635, 636 n.3 (1980); Robb v. City of Philadelphia, 733 F.2d 286, 287 (3d Cir. 1984). Under Rule 12(c), "judgment will not be granted unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law." Jablonski v. Pan American World Airways, Inc., 863 F.2d 289, 290 (3d Cir. 1988) (citation omitted).

III. Discussion

The Constitution grants federal courts the authority to exercise jurisdiction only where there is a "case or controversy." U.S. Const. art. III, § 2. Accordingly, "federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them." DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S. Ct. 1704, 1705 (1974) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)). When the questions presented before a court are no longer "live," a case becomes moot. Thomas v. Att'y Gen. of U.S., 625 F.3d 134, 140 (3d Cir. 2010) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). This may result from a ...


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