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Kramer v. Mosbacher

decided: June 20, 1989.

KENNETH W. KRAMER, ET AL., PLAINTIFF-APPELLEE,
v.
ROBERT A. MOSBACHER, IN HIS OFFICIAL CAPACITY AS SECRETARY OF COMMERCE; NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION; WILLIAM E. EVANS, IN HIS OFFICIAL CAPACITY AS ASSISTANT ADMINISTRATOR FOR FISHERIES OF THE U. S. DEPARTMENT OF COMMERCE; JOSEPH ANGELOVIC, IN HIS OFFICIAL CAPACITY AS REGIONAL DIRECTOR; NATIONAL MARINE FISHERIES SERVICES, DEFENDANTS-APPELLANTS



Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Malcom J. Howard, District Judge, 88-121-CIV-4.

Hall, Sprouse, and Chapman, Circuit Judges.

Author: Chapman

CHAPMAN, Circuit Judge

This dispute involves a challenge to the closure of the South Atlantic King Mackerel fisheries. Following plaintiffs' petition to the district court requesting relief, the court, on November 25, 1988, enjoined enforcement of the closure. Because we believe the district court neither had jurisdiction to entertain the complaint against the Secretary nor had authority to grant injunctive relief, we reverse.

I

Pursuant to the Magnuson Fishery Conversation and Management Act of 1976, 16 U.S.C. §§ 1081-82, Congress has delegated to the Commerce Department board authority to manage and conserve coastal fisheries. The Act creates independent bodies, Regional Fishery Management Councils, which help the Department carry out specific management and conservation duties. This case arises out of actions taken by the South Atlantic Regional Council, which consists of representatives from North Carolina, South Carolina, Georgia, and Florida. 16 U.S.C. § 1852. The Council's principal task is to prepare fishery management plans for its area, which must "assess and specify the present and probable future condition of, and the maximum sustainable yield" of a fishery. 16 U.S.C. §§ 1852, 1853. Council plans are adopted or rejected by the Secretary. 16 U.S.C. § 1854. If adopted, a plan is put into effect by regulations issued by the Secretary. 16 U.S.C. § 1855.

Such a plan for Atlantic king mackerel was implemented through regulations adopted in 1982, and was subsequently amended in 1985 and 1987. 50 C.F.R. pt. 642 (1987). Together, the regulations require that the Council assess the stock of king mackerel and recommend a "total allowable catch," in pounds, which reflects a "level specified to realize a particular management strategy" for the upcoming fishing year. Briefly stated, this "total allowable catch" forms the basis for the Council's determination of commercial and recreational limits. In fashioning a quota, the Council is obligated to consider a wide range of evidence. 50 C.F.R. § 642.27 (1987). Finally, the regulations require the Secretary to close a fishery if a quota is reached. 50 C.F.R. § 642.22 (1987).

In April, 1988, the South Atlantic and Gulf Councils met jointly to determine the 1988-1989 king mackerel limits. Following recommendations of scientists and the advice of an intercouncil mackerel committee, the Councils set the annual "total allowable catch" for king mackerel at seven million pounds, a significant reduction from the figure used in the preceding year. In June, 1988, the Secretary issued proposed regulations to implement the new limit; he published the final regulations on July 8, 1988. The regulations established a commercial quota of 2.6 million pounds and a recreational limit of 4.4 million pounds.

By October the Secretary had concluded that the recreational quota for the year had been reached and that the stock was overfished." Generally, "overfishing" means "an excessive mortality rate on a stock of fish." 50 C.F.R. § 642.2. Pursuant to 50 C.F.R. § 642.22, the Secretary, in the October 14, 1988 Federal Register, published notice that he was closing the recreational season, effective October 17. On November 18, 1988, effective November 23, the Secretary announced a closure of the commercial season. The order required both fisheries to remain closed through March 31, 1989.

The closure order prompted this appeal. On November 10, 1988, 85 fishermen, 28 businesses, and the State of North Carolina filed a complaint asking, alternately, for a temporary restraining order, a preliminary or permanent injunction against enforcement of the order, or an order increasing the total allowable catch by 2.6 million pounds. On November 22 the district court issued a preliminary injunction against enforcement of the commercial and recreational closures. The court concluded, without elaboration, that it had jurisdiction to hear the complaint under 16 U.S.C. §§ 1855(d) and 1861(d), the portions of the Magnuson Act that provide for judicial review of Department regulations and enforcement actions. On February 23, 1989, this court granted the Secretary's motion for an expedited appeal and stayed the injunction pending such appeal.

II

Plaintiffs-appellees first contend that this case became moot on March 31, 1989, when the fishing year ended and the catch limits for the 1988-1989 fishing year expired. Their position, in essence, is that the factual basis of the injunction, is, as a result, no longer in controversy. However, we find this case is not moot and falls squarely within the "capable of repetition, yet evading review" doctrine. That is, both the yearly reevaluation of catch limits and closure orders present circumstances which are "too short to be fully litigated prior to [their] cessation or expiration." Moreover, there is "a reasonable expectation that the same complaining party," here North Carolina fishermen and fishing businesses, "would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 46 L. Ed. 2d 350, 96 S. Ct. 347 (1975); Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 55 L. Ed. 310, 31 S. Ct. 279 (1911).

III

The second, and principal, question on appeal is whether the district court had jurisdiction over the complaint. Both parties agree that only two provisions within the Magnuson Act arguably pertain to the judicial review of Department regulations: 16 U.S.C. §§ 1855(d) and 1861(d). As part of the larger scheme of § 1855, ...


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