Campanale & Sons v. Evans, 311 F.3d 109 (1st Cir. 2002).

Sara E. Allgood

In November 2002, the First Circuit was asked to consider if the National Marine Fisheries Service (NMFS) met the procedural requirement of “consultation” as defined by the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act). Several lobster fishermen based in Rhode Island challenged the NMFS’s proposed conservation program that imposed stricter limits on lobster fishermen than the plan designed by the Atlantic States Commission.

Background
One of the biggest economic and environmental problems facing conservation efforts in the United States is overfishing. Congress responded to this crisis in 1976 by enacting the Magnuson-Stevens Fishery Conservation Act. The legislation provides for both federal and state control over ocean fisheries, with the states having jurisdiction over waters within three miles of their coastlines. The Federal government regulates the exclusive economic zone (EEZ), consisting of the waters between three and two hundred miles offshore. “To conserve and manage the fishery resources found off the coasts of the United States,” the Act calls for the establishment of eight regional management councils to prepare, monitor, and revise fishery management plans in order to “achieve and maintain, on a continuing basis, the optimum yield from each fishery.”1 These fishery management plans (FMP) are prepared when the Secretary of Commerce finds that a fishery is being overfished.

The present case involved the New England Fishery Management Council and the Mid-Atlantic Fishery Management Council, two of the eight regional councils. These two councils have jurisdiction over the waters of the Atlantic Ocean. However, due to the inconsistent responses of the Atlantic states and the federal government to the management of the fishery resources of the Atlantic Coast, the Atlantic States Commission (the Commission) was formed in 1993 by the Atlantic Coastal Act. The Commission contains representatives from all the states bordering the Atlantic Ocean and has duties similar to the regional councils’. The Commission’s primary focus is coordinating interstate fishery management plans. If there is no regional FMP, the Atlantic Coastal Act authorizes the Secretary of Commerce to implement regulations governing fishing in the EEZ “after consultation with the appropriate regional councils.”2

Lobster Management
In 1978, the NMFS and several Atlantic States3 adopted the Interstate Fishery Management Plan (ISFMP) for the lobster fishery. When the enacted ISFMP conservation measures proved to be ineffective because of increased usage of lobster traps, both the NMFS and the Atlantic States Commission began working on separate proposals to address the overfishing problem. The NMFS proposed withdrawing the current management plan and began to explore alternative conservation measures. The Atlantic States Commission adopted an amendment to the ISFMP that limited the number of traps per vessel in a certain area, “Area 3.” This amendment, however, would only take effect if the Area 3 Lobster Conservation Management Team (LCMT) failed to present an alternative program to the Commission.

While the LCMT was developing an alternative to the proposed limits, the NMFS issued a Draft Environmental Impact Statement pursuant to the National Environmental Policy Act (NEPA) that considered alternatives to end the overfishing.4 These alternatives included the limits proposed by the Atlantic States Commission as well as a stricter plan limiting the number of lobster traps in Area 3 to 2,000 until April 30, 2000. On May 1, 2000, this number would be reduced to 1,800. The LCMT, on the other hand, proposed to limit the number of traps based in part on historical participation. Before LCMT’s rule could be adopted by the Atlantic States Commission, the NMFS announced a final rule based on the stricter limits that were to take effect on May 1, 2000.

The Lawsuit
The Rhode Island lobstermen filed suit claiming that the NMFS failed to follow the proper procedures established by the Atlantic Coastal Act by failing to properly consult with the appropriate regional councils prior to implementing regulations concerning the EEZ. They filed suit in district court seeking a declaratory judgment that the rule published by the NMFS violated the “arbitrary and capricious” standard under the Administrative Procedure Act. The district court granted summary judgment in favor of the defendants, stating that “the underlying statutory ideology of the [Atlantic Coastal Act] . . . is not offended by the perhaps less than exhaustive ‘consultation.’”5 The plaintiffs appealed this judgment.

Consultation Requirement
Agency actions may only be set aside if “arbitrary or capricious” or undertaken “without observance of procedure required by law.”6 The First Circuit reviewed the actions of the NMFS to determine whether the agency followed the statutory requirement of the Atlantic Coastal Act to consult with the appropriate councils.

When faced with a question of statutory interpretation, a court is generally limited to the plain meaning of the statute. Pursuant to that doctrine, the First Circuit stated that consultation should be given its ordinary meaning, “the act of asking the advice or opinion of someone.”7

The NMFS claimed the consultation requirement had been met through the obligation imposed by NEPA. After publishing its proposed rule, the NMFS received comments from a variety of sources, including the New England Fishery Management Council and the Mid-Atlantic Council, both part of the Atlantic States Commission. The NMFS argued that this correspondence between itself and the councils was sufficient to satisfy the “consultation” requirement, because the Atlantic States Commission had been made aware of the proposed changes and were able to submit comments.

Although the Atlantic States Commission did comment on the proposed regulation, the court found that this commentary was no different than comments made by the general public pursuant to NEPA. The Atlantic States Commission received no tailored notice from the NMFS to initiate consultation nor did the agency solicit advice from either the New England Fishery Management Council or the Mid-Atlantic Council. The court determined that Congress placed the consultation requirement in the Atlantic Coastal Act to force the agency to undertaken something more than general correspondence with the councils. Because the Atlantic States were expecting to be consulted specifically concerning the new regulation, their comments in response to the NEPA regulation may not have been as adequate or as tailored as they might have been during a formal consultation. Furthermore, the court stated that if such general awareness and correspondence under NEPA was sufficient, inserting the consultation requirement into the Atlantic Coastal Act would have been “superfluous.” Because the NMFS failed to properly consult with the management councils, the court reversed the summary judgment in favor of the defendants and remanded the case for further proceedings.

Conclusion
The power of the court to determine whether an agency has abused its discretion in this situation is confined to reviewing whether the procedures outlined by Congress were properly followed by the agency. The NMFS abused its discretion by failing to consult with the proper counsels regarding the “soundness of the regulations for conserving Atlantic Coastal fishery resources.”8

ENDNOTES
1. 16 U.S.C. § 1081(b) (2002).
2. Campanale & Sons v. Evans, 311 F.3d 109, 112 (1st Cir. 2002).
3. These states included: Maine, New Hampshire, Rhode Island, Massachusetts, Connecticut, New York, Pennsylvania, Delaware, Maryland, Virginia, and North Carolina, all members of the Atlantic States Commission.
4. The National Environmental Policy Act (NEPA) requires that agencies prepare environmental reports for any major federal actions that adversely affects the environment. The statute also requires that the acting agency must publish their proposed action and receive comments from the public. 42 U.S.C. § 4332 (2003).
5. Campanale, 311 F.3d at 117.
6. 5 U.S.C. § 706 (2002).
7. Campanale, 311 F.3d at 117.
8. Id. at 119.