Opinion
CIVIL ACTION NO. 00-1722, SECTION "N"
January 31, 2002
MEMORANDUM OPINION AND ORDER
Plaintiffs, Steven H. Loga and Tuna Fresh, Inc. (Loga), filed this suit appealing the final order of the National Oceanic and Atmospheric Administration (NOAA) dated April 26, 2000 assessing civil penalties for violating the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act), 16 U.S.C. § 1857(1)(A) and implementing 50 C.F.R. § 678.7 (24), for attempting to purchase shark in violation of its regulations. The matter is before this Court on cross-motions for summary judgment filed by Loga and the NOAA. After careful review of the parties' submissions, the undisputed material facts, the administrative record, and the applicable law, the Court DENIES Loga's Motion for Summary Judgment, GRANTS the United States' Motion for Summary Judgment and AFFIRMS the NOAA's administrative enforcement decision.
I. UNDISPUTED FACTS AND PROCEDURAL BACKGROUND
The undisputed facts recapitulated below are adopted from the Government's `Statement of Uncontested Facts' filed pursuant to 56.1 and the Rules of the Eastern District of Louisiana. These matters are deemed admitted since the plaintiff has failed to controvert same as required by Local Rule 2.10, which provides: "Each copy of the papers opposing a motion for summary judgment shall include a separate, short, concise statement of the material facts as to which there exists a genuine issued to be tried. All material facts set forth in the statement required to be served by the moving party will be deemed admitted, for the purposes of the motion, unless controverted as required by law." Id. The plaintiff filed a "Statement of Material Fact as to Which There Exists a Genuine Issue" addressing only the Government's Statement of Undisputed Facts at paragraph 2. Admittedly, however, this does not concern a statement of fact at all. Indeed, plaintiffs Statement of Disputed Material Facts provides: "First of all, it is not a statement of fact but counsel's erroneous conclusion on a matter of law." Id. In its reply the Government noted its error and provided the Court with copies of the applicable law which is included above for the sake of clarity. With the exception of paragraph 2 of the Government's Statement of Uncontested Facts, all other paragraphs ( i.e., paragraphs 1, 3-5) are deemed admitted for purposes of these cross-motions.
The National Oceanic and Atmospheric Administration (NOAA) issued a Notice of Violation and Assessment to the plaintiffs assessing a civil penalty of $6,000.00 for violating the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act), 16 U.S.C. § 1857(1)(A) and implementing regulation 50 C.F.R. § 678.7 (24), for attempting to purchase shark in violation of its regulations. The regulations in effect at the time of the subject violation (December 8, 1997), prohibit the purchase or sale or attempted purchase or sale of large coastal shark during a closure. 50 C.F.R. § 678.24. Applicable regulations further clarify that this prohibition applies to purchases or sales or attempts to purchase or sell during closures, and limits its application to transactions involving federal permit holders. Subsection (b) of § 678.25 makes it clear that the prohibition applies to dealers as well as fishermen holding federal permits. It provides:
The prohibition of paragraph (a)(1)(ii) of this section regarding sale, purchase, trade, barter, or attempted sale, purchase, trade, or barter, by a dealer does not apply to trade in shark carcasses or fins that were harvested, off-loaded, and sold, traded or bartered, prior to the notice [of a closure] and were held in storage by a dealer or processor.See 50 C.F.R. § 678.25(b) (emphasis added).
On April 28, 1999, the Department of Commerce convened an administrative hearing pursuant to 16 U.S.C. § 1858(a). The NOAA presented seven witnesses and Agency Exhibits Al through A15 were admitted in its case-in-chief. At the close of the NOAA's case, counsel for Loga moved to dismiss, contending that the NOAA exceeded its authority pursuant to the Magnuson Act. Counsel for Loga argued that taking large coastal sharks in state waters during a federal closure by a federal permittee is not a violation of the statute. According to Loga, it is instead merely a permit violation. Essentially. Loga argued that NOAA's interpretation of the statute was erroneous and its actions were ultra vires. Counsel for NOAA responded that a violation of any regulation promulgated pursuant to the Magnuson Act constitutes a violation of the Act. Counsel for the agency highlighted the fact that the violation in this case involved the purchase or attempted purchase of large coastal sharks from a federally regulated fisherman during a closure (citing 50 C.F.R. § 678.7(24)). See Transcript of the April 28-29, 1999 Administrative (NOAA) Hearing conducted before Administrative Law Judge (AU) Archie Boggs (hereinafter "Transcript"), at pp. 256-265 [Admin.Rec., Vol. II].
ALJ Boggs denied the motion, requiring Loga and Tuna Fresh to put on a defense to the NOAA's civil action against them. Counsel for Loga called four witnesses, including the Logas, and submitted two documents into evidence, to wit: a Venice Seafood Exchange Invoice dated December 3, 1997 (R1); and the U.S. Dept. of Commerce/NOAA Technical Memorandum NMFS-SEFSC-338 entitled "A Field Guide to Sharks Commonly Caught in Commercial Fisheries of the Southeastern United States" (R3).
Thereafter, having presided over the entirety of the two-day administrative hearing and reviewed the parties post-trial submissions, ALJ Boggs issued a written "Initial Decision," concluding that the NOAA demonstrated by a preponderance of the evidence that the plaintiffs did in fact attempt to purchase shark of a species group subject to closure from a federally permitted shark fisherman, which constituted a violation of the regulation. The ALJ ordered the plaintiffs to pay a $6,000.00 civil penalty.
See Initial Decision signed April 26, 2000 by ALJ Archie Boggs, and filed In the Matter of Tuna Fresh Inc. and Steven H. Loga, Docket No. SE980030MM [Admin. Rec.Vol. I. Exh. 19].
Regarding the alleged violation of regulations issued by the agency pursuant to the Magnuson Act ( i.e., 50 C.F.R. § 678.7 (24)), ALJ Archie Boggs entered the following findings of fact, replete with citations to the transcript of the April 28-29, 1999 administrative hearing transcript and documents received and admitted into evidence, to wit:
The November 12, 1998 Notice of Violation and Assessment of Administrative Penalty (NOVA) issued by NOAA charged Tuna Fresh, Inc. and Steven Loga, with the following:
On or about 8 December 1997, within the exclusive economic zone of the United States (as described in 16 U.S.C. § 1802(6)), Respondents Tuna Fresh, Inc. and Steven H. Loga, or an individual under their control, did, during closure for a shark species group, sell, purchase, trade, or barter or attempt to sell, purchase, trade or barter shark of that species group, as specified in 50 C.F.R. § 678.24, in violation of the Magnuson-Stevens Fishery Conservation and Management Act, as amended, at 16 U.S C. § 1857(1)(a), and 50 C.F.R. § 678.7 (24). Respondents Tuna Fresh, Inc. and Steven H. Loga are persons subject to the jurisdiction of the United States.
[Admin.Rec., Vol. I, Exh. 1]. Section 678.7(24) provides that it is unlawful for any person "[d]uring a closure for a shark species group on board a vessel that has been issued a permit under § 678.4, except as provided in 678.24(a), to sell, purchase, trade, or barter or attempt to sell, purchase, trade or barter shark of that species group, as specified in 678.24." 50 C.F.R. § 678.7(24).
"1. Tuna Fresh, Inc. and Steven H. Loga are subject to the jurisdiction of the United States. Respondents are charged with violating the Magnuson-Stevens Act, 16 U.S.C. § 1857(1)(A) and 50 C.F.R. § 678.7(24).
2. Shark is a regulated species, divided into three categories: large coastal, small coastal, and pelagic. Each category has a set quota. Fishermen are allowed to land a certain number of pounds of shark until the quota is reached. Once quotas for the season are met, the season is closed. Transcript 107, 108. There are two shark seasons, one opening in January 1 and a second opening on July 1 of each year. A fisherman with a federal shark permit for his vessel must abide by the closures. He or she may not land large coastal shark caught in either state or federal waters during a closure. Transcript 56, 109.
3. A federal shark closure was in effect on December 8, 1997 for the large coastal species.
4. In order to ensure compliance with the regulations, a burden is imposed upon a dealer to independently verify the federal permit status of a fisherman landing large coastal shark during a closure. Transcript 143. This may be accomplished by calling any of the National Marine Fisheries Service permit offices. Transcript 114.
5. Respondent Tuna Fresh, Inc. held a federal dealer permit for reef fish, shark, and swordfish on December 8, 1997. Transcript 318. One of its fish receiving facilities is P L Seafood in Dulac, Louisiana. Agency Exhibit 15.
6. Respondent Steven Loga is the sales manager for Tuna Fresh, Inc. Transcript 314.
7. Finley Williford, who owned the F/V Blue Ocean, had a federal shark permit on December 8, 1997. Agency Exhibit 14.
8. Williford had been fishing for several days on the Blue Ocean with Michael Ponti and Benjamin Broadbeck prior to docking at P L Seafood in Dulac at about midnight on December 8, 1997. Transcript 270-272. Ponti left immediately after the docking. He was paid less than he anticipated. Williford testified that Ponti performed little or no work on the vessel and he was virtually nothing more than a passenger.
9. After he left the vessel Ponti filed a complaint — obviously motivated by revenge with the Louisiana Department of Wildlife and Fisheries alleging that Williford possessed illegal red snapper on his vessel.
10. The following morning Steven Loga arrived and found Williford on the Blue Angel at the P L dock. Williford assured Steven Loga that he had his federal permit cancelled and they then unloaded several thousands pounds of shark with assistance from P L dockworkers, employees of Tuna Fresh, Inc. Transcript 52, 273, 296, Agency Exhibits 3, 11. Williford had previously offloaded some shark prior to Steven Loga's arrival. Steven Loga testified that he could not remember whether the shark was large blacktip, spinners, oceanic, whitetips, dusties, or porbeagles. Transcript 319.
11. The shark was gutted and they were three to four feet long. Transcript 25-26.
12. No other vessels were offloading at the time. Transcript 48.
13. In a later statement Ponti informed the Agency that a large portion of the shark was large coastal, including blackfin and bull shark. Agency Exhibit 9. A supplemental investigation report. prepared on September 29, 1998, noted that Williford caught some Atlantic Sharpnose, on mako, and sixty to eighty pounds of mostly blacktip, a few bull shark, and one large tiger. Transcript 139; Agency Exhibit 10.
14. Special Agent Emerson testified that, as a rule, offloading fish is evidence of intent to purchase. Transcript 117. Emerson also testified that he has never seen situations where dealers offloaded fish with their own personnel and did not buy the product.
15. Stephen Loga did not contact the National Marine Fisheries Service (NMFS) permit office to verify the Blue Oceans permit status. He contended that he did not do so because his father deals with that aspect of the business. Transcript 378-9.
16. Six or seven P L dockworkers then processed the seafood by taking the shark out of the large cardboard vats and placing the fish into smaller breakdown boxes, icing it down, and storing it. Transcript 74. Tuna Fresh, Inc. owned the breakdown boxes and the ice vats were marked P L Seafood. Transcript 48-50; Agency Exhibit 11.
17. Steven Loga contended that ice was provided gratis in order to keep the shark merchantable and to comply with the Food and Drug Administrations Hazard Analysis Critical Control Point (HACCP) regulations, which prohibit dealers from buying product which are over forty degree core temperature. Transcript 324, 328-9, 340, 346-7. Icing, according to Steven Loga, was not evidence of his intent to buy shark. Transcript 346.
18. There was "quite a bit" of ice in the Blue Ocean's fishhold. Transcript 23-4.
19. About that time Officer Richard Purvis and his supervisor Officer Sammy Martin for the State of Louisiana's Department of Wildlife and Fisheries arrived to investigate the complaint that Williford illegally had red snapper onboard.
20. Purvis could not identify the shark but Martin indicated that it was large coastal. Transcript 24, 56, 59, 171.
21. No red snapper violation was found. Transcript 22. The officers performed a license check on Williford, whereupon Williford produced a commercial fishing license, a vessel license, a gear license, and a state shark permit. Transcript 22. He did not produce a federal shark permit at that time. Transcript 57-8.
22. Steven Loga was concerned about the purchase of the shark and he asked Martin whether it was alright to purchase the product. Martin advised him that it was alright to purchase the product because at that time he did not know that Williford had a federal shark permit.
23. Finding no red snapper violation, Purvis and Martin reported to Lieutenant Mayne of their Baton Rouge office of what they saw on the dock and left. Approximately ten minutes later, Mayne advised them that the Blue Ocean had a federal shark permit, that there was a federal shark closure, and that the shark should be seized because the permit restriction was violated. Transcript 27, 111.
24. Purvis and Martin returned to the dock and they informed Williford that they knew he possessed a federal shark permit (at which point Williford produced his federal shark permit). They issued Williford a citation and seized his shark. Transcript 27, 31, 60-2; Agency Exhibit 1. They also issued citations to Tuna Fresh, Inc., and to Steven Loga for attempting to buy shark.
25. Williford did not object to the citation, or the seizure, on the grounds that the shark was not large coastal, and consequently not subject to the federal shark closure. Nor did Williford contend that the shark seized was not his. Transcript 28-9, 48.
26. Williford intended to sell the shark to Tuna Fresh, Inc. Transcript 289-90. Steven Loga believed that the shark was for him to purchase. Transcript 90-1.
27. Officer Martin took picture of the shark which are Agency Exhibits 5 and 6. Transcript 43.
28. Three dealers placed bids on the shark. The highest bid came from Tuna Fresh, Inc. Transcript 34; Agency Exhibit 3. Tuna Fresh, Inc. then purchased the product from the U.S. Department of Commerce. Transcript 361; Agency Exhibit 11.
29. As a commercial fish company and experienced dealers, Tuna Fresh is responsible for checking the legal status of fish they desire to purchase. Assurances from a seller that the fish are legally caught do not excuse the Respondent from liability. In the matter of Town Dock Fish, Inc., 6 O.R.W. 580 (NOAA App. 1991).
30. Steven Loga told the officers he understood that Williford did not possess a federal shark permit and he could legally fish in state waters. Agency Exhibit 11; Transcript 76.
31. After the violations were issued, Steven Loga and Larry Loga called Emerson separately. Transcript 115, 175. Well versed in shark species and regulations, neither contended that the shark at issue was not large coastal subject to the closure. Transcript 146.
32. Steven Loga told Emerson that he and his father were trying to determine whether the Blue Ocean had a federal permit when they were in the process of offloading and boxing up the shark. Agency Exhibit 7. Emerson testified that Steven Loga agreed that he would have bought the shark if the Wildlife and Fisheries agents had not appeared. Transcript 114. He noted in his Offense Investigation Report, dated 22 April 1998, that Loga agreed that "if the game wardens had not shown up he would have bought the shark." Transcript 118, Agency Exhibit 7."
[Admin.Rec., Vol. I, Exh.19 at pp. 5-9].
ALJ Boggs concluded that the Agency proved the following elements of the alleged violation by a preponderance of the evidence, to wit: "(1) that a closure was in effect for large coastal shark species; (2) the shark harvested was of the species subject to the closure; (3) the fisherman who harvested the shark had a federal permit for shark under section 678.4; and (4) there was an attempt to purchase the shark." Id. at p. 9.
Plaintiffs did not petition for administrative review of the ALJ's Initial Decision within the time allowed, and thus the ALJ's initial decision became the final agency action by operation of law. Plaintiffs timely filed the present action in the district court seeking review under 16 U.S.C. § 1858(b) and 16 U.S.C. § 1861(d).
II. Contentions
Loga argues that: (1) the decision seeks to enforce a regulation that was adopted without statutory authority from Congress or was based on an improper interpretation of that regulation; (2) the agency's decision is not supported by substantial evidence; (3) admission of the written statement of Michael Ponti in lieu of his live testimony at the hearing constitutes a violation of plaintiffs' Right to Confrontation;
For its part, the Government submits that: (1) a clear reading of the regulations in effect at the time clearly prohibits the conduct of the plaintiffs; (2) in the case of large coastal shark, the government regulates only federal permittees' activities in federal waters, state waters, and on land and such is permissible under the Magnuson Act; and (3) ALJ Boggs applied the appropriate standard (preponderance of the evidence) and his decision is based upon substantial credible evidence.
III. The Magnuson Act
Congress enacted the Magnuson Act (later renamed Magnuson-Stevens Act) in 1976 "intend[ing] to respond to overfishing and inadequate conservation measures which were threatening future commercial and recreational fishing, as well as the very survival of the species." To render the management process more efficient, Congress "created eight regional fishery management councils composed of state fishery managers, the regional NMFS (National Marine Fisheries Service) fisheries administrator, and qualified fishing industry, academic, and environmental representatives." Each council controls the fisheries seaward of the states comprising it, and the primary responsibility of the councils is the development of fishery management plans that establish the rules for each fishery and meet national conservation and management standards established in the Magnuson-Stevens Act.
"The terms `overfishing' and `overfished,' under the Magnuson-Stevens Act, mean a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis." 16 U.S.C. § 1802(29). Maximum Sustainable Yield is defined as the "largest long term average catch or yield that can be taken from a stock under prevailing ecological and environmental conditions." 50 C.F.R. § 6000.310(c)(1)(i).
Parravano v. Babbitt, 837 F. Supp. 1034, 1040 (N.D. Cal. 1993), aff'd, 70 F.3d 539 (9th Cir. 1995), cert. denied, 518 U.S. 1016, 116 S.Ct. 2546, 135 L.Ed.2d 1066 (1996) (citing 16 U.S.C. § 1801(a)).
In A.M.L. International, Inc. v. Daley, 107 F. Supp.2d 90, 93 (D. Mass. 2000), the court summarized the rationale for the changes to the Magnuson-Stevens Act as follows:
In 1996, Congress ushered in a new era in fisheries management by making significant revision to the Magnuson-Stevens Act through the Sustainable Fisheries Act. See Pub.L. No. 104-297, 110 Stat. 3559 (1996). The Magnuson-Stevens Act was revised because, "it was very clear that major changes were needed. Despite numerous efforts to improve the law over the past two decades, the sad reality [was] that the act did not prevent the current crisis in . . . groundfish stocks, a crisis for the conservation of both fish stocks and fishing families." Indeed, Congress recognized that revisions to the Magnuson-Stevens act were critical in order to "put our fisheries back onto a sustainable path and literally avert an environmental catastrophe on a national level. . . . We are precariously close to fisheries failures in many of our most commercially important fish stocks, and it is imperative that we take immediate action if we are to avert disasters."Id. (citations to the Congressional Record omitted). Under the modified Magnuson-Stevens Act, if the Secretary of Commerce determines that a fishery is overfished, the Secretary must notify the appropriate fishery council, and request that action be taken to end overfishing in the fishery and to implement conservation and management measures to rebuild affected stocks of fish. Once the council has been notified, it has one year to prepare a fishery management plan (EMP) that ends overfishing and rebuilds stocks.
See 16 U.S.C. § 1854(e)(2); 50 C.F.R. § 600310(e)(2).
When the council submits its FMP to the Secretary of Commerce, the Secretary (often acting through NMFA) must review the plan immediately to ensure its compliance with ten "National Standards" and any other relevant provisions of the Magnuson-Stevens Act, as well as any other pertinent laws. Furthermore, the Secretary must also accept public comment on the plan for sixty days. Lastly, the Secretary must approve, disapprove, or partially approve the plan within thirty days of the end of the public comment period. "The Magnuson-Stevens Act's main thrust is to conserve the fisheries as a continuing resource through a mixed federal-state regime; the FMP's are proposed by state Councils but the final regulations are promulgated by the Secretary through the Fisheries Service."
See 16 U.S.C. § 1851(a)(1-10), 1854(a)(1); 50 C.F.R. § 600.310-600.355.
Massachusetts v. Daley, 170 F.3d 23, 27-28 (1st Cir. 1999).
IV. Standard of Judicial Review
The challenged regulations were promulgated by NMFS and the Secretary of Commerce pursuant to their authority under the Magnuson Act. The parties are in agreement that the regulations as promulgated under that Act, are governed by the provisions for judicial review of the Administrative Procedures Act (APA), 5 U.S.C. § 701-706. Section 1855(f) of the Magnuson-Stevens Act specifically calls for such review.
Title 5 U.S.C. § 706(2) provides that a reviewing court shall hold unlawful and set aside agency action, finding, and conclusions found to be either:
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.5 U.S.C. § 706(2)(A-F).
An important distinction must be drawn between the two categories of claims before this Court. Plaintiffs claims that defendant exceeded its authority under the Magnuson Act, issuing the challenged regulations and that the agency's findings are contrary to a constitutional right or without the observance of procedure required by law warrant de novo review.
The second category of plaintiffs' claims, involving allegations that the defendant acted arbitrarily and capriciously within its statutory authority and that its findings are not supported by substantial evidence, affords the agency a distinct degree of deference. In other words, those allegations decrying an arrogation of statutory authority require the Court to employ de novo review.
By contrast, the Court must defer to the interpretation of a statute by the agency charged with administering it. The standard under 5 U.S.C. § 706(2)(A) presumes the agency action to be valid. Although the Courts inquiry is to be searching and careful as to the second category, the ultimate standard of review is quite narrow. The role of the reviewing court is to "`consider whether the decision was based on a consideration of the relevant factors and whether there has been clear error in that judgment.'" A reviewing court may decide only whether the Secretary's discretion was exercised rationally and consistently with the standards set by Congress and may not substitute its own judgment as to the values and priorities for that of the Secretary. Because an agency is expected to have expertise in its area, a certain degree of deference is due, particularly on issues about which experts disagree.
See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).
Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (citing Overton Park, 401 U.S. at 416).
Marsh, 490 U.S. at 378.
With respect to a court's review of a specific regulation adopted by an agency pursuant to its delegated authority, the United States Supreme Court has held that:
Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Motor Vehicle Manufacturers Association v. State Farm Mutual Insurance Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).
In reviewing the agency rule, the district court must review the explanation to determine whether the agency examined the relevant data and articulated a rational connection between the facts found and the choice made. Nevertheless, the district court should "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned."
Motor Vehicle Manufacturers Association v. State Farm, 463 U.S. at 43; 103 S.Ct. 2856.
Finally, where an agency action is taken upon an administrative record, it must be reviewed based on that record, subject to limited exceptions. To set aside an assessment that implicates substantial agency expertise ( i.e., whether the contraband shark at issue was of the large coastal species), a reviewing court "must find that the administrative record is so devoid of justification for the Secretary's decision that the decision is necessarily arbitrary and capricious." "When a regulation is not adequately supported, the normal practice is to set it aside pending further proceedings," however, a court may alternatively order remand for further explanation while leaving the regulation in effect. When the breach of an agency's duty to provide a reasoned explanation is used defensively, such as in an enforcement action, a court will merely hold the rule invalid and dismiss the complaint.
See Massachusetts v. Daley, 170 F.3d at 27, n. 4 (citing Sierra Club v. Marsh, 976 F.2d 763, 772-73 (1st Cir. 1992)).
See Connecticut v. Daley, 53 F. Supp.2d at 158.
See Hall v. Evans, 2001 WL 474187 (D.R.I.)( Massachusetts v. Daley, 170 F.3d at 32 (citing Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973)).
See United States v. Garner, 767 F.2d 104, 118 n. 20 (5th Cir. 1985) (citing United States v. Nova Scotia Food Products Corp., 568 F.2d 240 253 (2nd Cir. 1977)).
Summary judgment is appropriate where "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment must provide the district court with a factual record sufficient to demonstrate the absence of a genuine issue of material fact. This case involves the parties' cross motions for summary judgment as to whether certain regulations are ultra vires, whether an agency properly interpreted a statute, and whether an administrative decision is arbitrary and capricious or not supported by substantial evidence of record. The entirety of the administrative record has been filed into the above captioned federal record. The matters addressed are peculiarly amenable to summary process in light of the complete administrative record, and the scope of this Court's review, inter alia.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d265 (1986).
V. Analysis
1. Agency Regulations.
Atlantic sharks (large coastals) are the particular fishery at issue in this case. They are regulated pursuant to an Fishery Management Plan (FMP) promulgated by National Marine Fisheries Service (NMFS) in 1993. 58 Fed. Reg.21931 (April 26, 1993). Under Atlantic Shark FMP, sharks are managed under a semi-annual quota; FMP requires annual permits for commercial fishing vessels catching sharks in EEZ. A condition of the federal permit is that the recipient agrees to abide by' federal regulations for all sharks regardless of whether the fishing occurs in state, federal or international waters; unless the permitted vessel only fishes state waters on a given fishing trip, which a state may apply its more restrictive requirements for that trip. The Agency (NMFS) considers the federal permit condition "essential for effective implementation of the FMP, including enforcement of any fishery closure in the EEZ."
The Magnuson Act establishes an exclusive economic zone ("EEZ") in the waters off the United States coastline, spanning from the outer limits of state waters to 200 nautical miles, in which most fish and shell fish are subject to the exclusive fishery management authority of the United States as administered by the Secretary of Commerce. 16 U.S.C. § 1812, 1813. The waters inside of three miles are considered "state waters," those outside of the two hundred miles are "international waters."
See 58 Fed. Reg. at 21931, 21939;1993 WL 128383 (F.R.).
Id.
The Government notes that the plaintiffs' argument that the NOAA exceeded its authority interpreting the subject regulations proceeds from an erroneous assumption ( i.e., that it is a per se violation of the regulations for a federally permitted dealer to purchase or attempt to purchase large coastal shark caught in state waters during a federal closure). The Government points out that under the regulation it is only a violation if the dealer purchased or attempted to purchase the shark from a federally permitted fisherman.
The agency rules only regulate fishermen and dealers who have federal permits. It is clear that, in the case of large coastal shark, the government regulates a federal permittee's activities in federal waters, state waters, and on the dock. It is beyond cavil that the regulation is conditioned upon possession of a federal permit. Moreover, under section 678.25(b), it is pellucid that the regulations apply to federally permitted dealers, since that section exempts only transactions made by dealers after a closure involving large coastal shark harvested before a closure.
It is not disputed that the instant case involves a federally permitted fisherman (Finley Williford), and that Tuna Fresh, Inc., was the subject of federal permit at all pertinent times. Federal regulations applicable to closure with respect to large coastal species are thus applicable to both Finley and Loga/Tuna Fresh.
The Government aptly summarizes the authority/legality of federal regulation of shark fishing via federal permit condition and requisite nexis (federal permit), the salutary purpose of which is to permit some regulation of shark fishing in state waters, albeit regulation of federal permittees only, pursuant to the Magnuson Act, to wit:
In an effort to achieve the purposes and goals of the Magnuson Act, NMFS chose to implement a permit and quota based management scheme for Atlantic sharks. Fishers who want to fish commercially in federal waters are required to obtain a shark permit each year. Dealers who want to buy and sell shark caught in the EEZ are required to obtain a permit each year. All permit holders are required to abide by federal shark regulations. In general, the federal management plan does not apply to shark fishing in state waters. However, in order to best manage shark throughout their range as mandated by the Magnuson Act, in order to enhance the success of rebuilding overfished shark stocks, and in order to facilitate enforcement, NMFS adopted a permit condition that allowed for the accomplishment of compliance with federal regulations (closures) in state waters. The permit condition requires all federally permitted shark fishers to abide by federal regulations even when fishing in state or international waters. Participation in the federal scheme is not mandatory however. Fishers that fish for sharks exclusively in state waters are not required to hold federal permits, and therefore are not subject to federal management.
Thus, the regulations which prohibited plaintiffs from purchasing shark from a fisherman with a federal shark permit when a closure was in effect are not unauthorized regulation of state waters. Rather, they are a legitimate management tool, justified by the conservation mandates of the Magnuson Act.
Government's Original Memorandum in Support of Motion to Dismiss and/or Summary Judgment, at pp. 12-13.
Indeed, the regulations pertain only to federal permittees, whether the permittee is a fishermen or a dealer, purchasing or attempting to purchase shark (large coastals) during a closure. The federal permit condition dispenses altogether with any need to determine where the shark was caught. Federally permitted shark fishers cannot harvest and federally permitted dealers cannot purchase or attempt to purchase large coastals during a closure regardless of the location, if harvested by federally permitted fisherman occurred. The federal permit provision eliminates any inquiry into whether the shark was harvested inside or outside the Atlantic EEZ. This permit condition is necessary to avoid a huge enforcement loophole ( i.e., the "ultra-EEZ defense"). More to the point, without the regulation (condition), any federally permitted dealer attempting to purchase large coastals during a closure, or for that matter a federally permitted fisherman attempting to sell large coastals during a closure, could simply claim that the catch was harvested outside of the Atlantic EEZ.
The agency responded to public comment along the lines of Loga's argument in the case at bar. The comment was to the effect that the permit requirement preempts the states' authority to manage resources and fishermen within state waters. The agency responded as follows:
NMFS reviewed the provisions of the FMP and regulations, and has made a change in section 678.4(a)(4) regarding the permit condition wherein the recipient of a Federal permit must agree that the vessel's fishing, catch, and gear are subject to Federal shark fishing regulations regardless of where the fishing occurs (e.g., in state, Federal, or international waters). To ensure that the FMP's management measures can be effectively implemented and enforced as well as to avoid diminishing any state's management authority within its waters, § 678.4(a)(4) has been revised to require as a permit condition that the recipient agree that the vessels fishing, catch, and gear are subject to the Federal shark fishing regulations regardless of where the fishing occurs. . . .
58 Fed. Reg. 21931, 21940.
Courts reviewing the Secretary of Commerce's actions in the context of the Magnuson Act have acknowledged that "the secretary has broad discretion in promulgating regulations to implement the [FMP]." The Magnuson Act is a resource conservation statute. The precise question addressed to this Court is whether the Secretary's interpretation of the statute and regulation permissible. In view of the Secretary's broad rulemaking authority under the Magnuson Act and in the absence of any clear congressional announcement to the contrary, the Court cannot conclude that the Secretary's construction of the Act was impermissible or that he exceeded his authority by promulgating the subject regulations. Plaintiffs have failed to demonstrate that the Secretary impermissibly misconstrued the Magnuson Act or overstepped the bounds of its broad rulemaking authority.
See Hall v. Evans, 2001 WL 474187 (D. R.I.); Southeastern Fisheries Association, Inc. v. Mosbacher, 773 F. Supp. 435, 439 (D.D.C. 1991); National Fisheries Institute, Inc. v. Mosbacher, 732 F. Supp. 210, 216 (D.D.C. 1990) (holding that the Secretary did not exceed his authority under the Magnuson Act by promulgating regualtions which prohibited purchase, barter, trade or sale in any state of Atlantic Ocean bill fish harvested from its management unit and determining that the billfish resource must be conserved and one way to achieve that objective was to prevent the development of a commercial billfish market).
2. Substantial Evidence in the Administrative Record
Having determined that the challenged regulations implementing the large coastal species FMP do not exceed the Secretary's authority pursuant to the Magnuson Act, the Court turns to the ALJ's decision enforcing the regulations in light of the administrative record. The Court has reviewed the record in its entirety, including the entire transcript of the April 28-29, 1999 administrative hearing conducted by ALJ Boggs.
The ALJ's decision turns in large part on his assessment of the credibility of the witnesses. Williford was called to testify on behalf of Loga on the second day of the proceedings. Williford, captain/owner of the F/V Blue Ocean admitted that at all pertinent time that he was a federal permittee, and that he arrived at the P L Seafood dock in Dulac, Louisiana about midnight (between December 7 and December 8, 1998), after having been out fishing for approximately nine days. See Transcript [Admin.Rec., Vol. II, at p. 270.] Williford further admitted that at the time of his nine day fishing trip, he had a federal Atlantic shark permit, inter alia. Id. at 286; Agency Exhibit 14 [Admin. Rec., Vol. III, Exh. A-14]. Williford further admitted on cross-examination that as a result of the subject violation, he entered into a settlement with the NMFS and NOAA, agreeing to give up his federal fisheries permit permanently — forever. See Transcript at 289.
Williford further testified that he had every intention of selling his shark to Tuna Fresh and he expected a check from Tuna Fresh for his shark, but Wildlife and Fisheries showed up first while he was washing his boat up, having finished unloading the catch. Id. at 290. Williford admitted that three or four P L employees helped him offload over four thousand pounds of fish onto its dock, including the employee taking the weights. Id. at 296. Williford stood by as two fisheries agents in uniform, Agent Purvis and Agent Sammy Martin, seized his catch. Id. at 298-300. Williford testified that agents snapped a roll of pictures. Id. at 301.
The ALJ found it difficult to believe that Williford would voluntarily relinquish his federal permit, and give up his right ever to commercially fish again, had he not violated the federal closure regulation relative to large coastal species. This is a credibility assessment with which the Court is not inclined to disagree.
The testimony of Williford and Steve Loga conflicted in a number of significant particulars. According to Steve Loga, Williford lied to him and/or gave him the impression that he was no longer federally-permitted. Id. at 363-364. Steve Loga further testified directly contrary with respect to unloading ( i.e., whether his crew helped unload shark from the F/V Blue Ocean onto the PL dock). Loga testified that his people did not do anything to help take the shark off of the boat and that his dock crew did not touch the fish on the boat at all. Id. at 367.
Agent Purvis testified that the shark that had been offloaded were in vats on the dock several thousand pounds. He further testified that Steven Loga's dockworkers, six or seven of them, were working with the sharks. Agent Purvis testified that some of the sharks were three and four feet long without the head and the tail. Agent Purvis actually saw the shark being unloaded from the F/V Blue Ocean, packed into boxes labeled Tuna Fresh, Inc., and iced-down with ice from ice vats marked P L. Id at 48-49.
Agent Purvis could not say what type of sharks they were, and deferred to his partner Sammy Martin, who told him they were large coastals. Agent Purvis explained that his partner was the district supervisor and he had been a Louisiana fisheries officer for approximately 17 years. Id. at 21-25. Agent Purvis testified that when he and Lieutenant Martin returned and seized the shark, that Williford was cooperative and did not object. According to Purvis, Mr. Williford simply said that he had attempted to cancel his federal permit. Id. at 27-28.
Agent Emerson testified that on the date in question (December 8, 1997) he fielded a call from Steve Loga, who informed him roughly a thousand to fifteen hundred pounds had been offloaded from the Blue Ocean and he was trying to determine whether Finley's federal permit had been cancelled or not. Id. at 111-112. Shortly thereafter, Agent Emerson received a call from Larry Loga, who informed him that all of the shark had been weighed up and Loga read him the species of shark, including blacktip and spinner shark, both of which are large coastals. Id. at 113-114. At the time Agent Emerson spoke to Steve Loga, he told Steve that: "You had time to call the permit office. You should have checked with them before the first shark was offloaded and put into one of your boxes." Id. at 114. He further advised: "Steve, you know darn good and well that if Wildlife and Fisheries had not shown up, you would have bought the shark." Id. Steve replied to Agent Emerson: "Yeah, you're probably right." Id. at 114, 118. These calls were placed to Agent Emerson by the Logas after Wildlife and Fisheries had already been on the scene, the same day as the violation. Id. at 115. When Agent Emerson received these phone calls from the Logas on the date of the violation (December 8, 1997), they told him the types of shark that were offloaded and at no time did they object being cited on the basis that the sharks were not large coastals and they in fact admitted that there were blacktip and spinners in the mix. Id. at 145. Agent Emerson explained that at the time the calls were made to him, the Logas were in the process of calling the permit office to determine whether Finley was federally permitted or not. Id.
Clearly, ALJ Boggs credited the testimony of the federal agents over that of the Logas and Williford, who voluntarily relinquished his federal permit permanently, following his citation for the instant violation. At no time close to the event did either Williford or the Logas contend that the seized sharks were either not large coastals or not offloaded from Williford's vessel.
Loga argues that the NOAA's failure to call the witness Michael Ponti live, and instead utilizing his statement in lieu of live testimony, denied the plaintiffs due process because they could not effectively confront that witness. Plaintiffs' counsel argues that the record demonstrates that "Ponti is a drifter who had lived out of his automobile so long that he had learned to cook meals on his engine block." Plaintiffs contend that Ponti "had an ax to grind with Williford," and that in any event Ponti's "statement does not accuse Williford of landing a large coastal shark at the Tuna Fresh dock." Plaintiffs' counsel note that the statement was not taken until September of 1998.
Loga's Memorandum in Support of Motion for Summary Judgment, at p. 12 of 45.
Loga's Memorandum in Support of Motion for Summary Judgment, at 12.
The absence of the witness Ponti's live testimony did not violate the Constitution. Assuming without deciding that the due process clause guarantees defendants in civil proceedings an "effective opportunity" to cross-examine witnesses against them, Loga had such an opportunity. Any harm suffered as a consequence of the failure of the NOAA to locate Monti was the self-inflicted. In any event, Ponti's testimony was cumulative of all of the agents' testimony that the sharks seized included large coastals. It is highly likely that cross-examination of Ponti, a witness who undisputedly had an ax to grind with the Logas, would have done more harm than good. Trial tactics may well account for the absence of any effort on the part of counsel for Tuna Fresh/Loga to locate and subpoena him for the hearing.
The record is clear that Loga made no attempt to locate and subpoena the witness Monti. The Magnuson-Stevens Act allows defendants in civil penalty proceedings to subpoena witnesses. 15 C.F.R. § 904.245. Loga does not argue that he made any attempt to locate and subpoena Monti. The Court observes that while Loga did not have any obligation to make the Government's case, certainly Loga had every interest in making his own case as strong as possible. If Loga considered Monti such a critical defense witness, it logically follows that Loga would have made some attempt to locate Monti and subpoena him for the hearing. Loga has failed to show that the NOAA acted with any improper motives in this case or that his testimony on cross-examination would have been exculpatory in this case.
The record reflects that other than listing himself as a possible witness, Loga simply adopted generically "any and all witnesses whose names appeared on documents submitted by the Government" and "Louisiana Wildlife and Fishery officials who had contact with the respondents on December 8, 1997." [Admin.Rec. Vol. I, Exh. 5, at ¶ 4(a) (b).
In summary, it does not appear to the undersigned that the conduct of the administrative hearing violated of the respondents' due process rights. For whatever reason, trial tactics or otherwise, the respondents simply did not avail themselves of the opportunity of the process available pursuant to statute and the regulations. It is noteworthy that at the outset ALJ Parker invited the parties' attention to Civil Procedure Regulations applicable to the Administrative Hearing and specifically those found in 15 C.F.R. Part 904.
Cf. Kentucky v. Stincer, 482 U.S. 730, 739, 107 S.Ct. 2658, 2664, 96 L.Ed.2d 631 (1987) (The Confrontation Clause guarantees only the an opportunity for effective cross-examination (citing Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294-95, 88 L.Ed.2d 15 (1985)) (emphasis in original).
See Correspondence of ALJ Janice L. Parker, dated December 10, 1998 [Admin.Rec., Vol. 1, Exh. 4]
The critical factual findings made by ALJ Boggs in this case are supported by substantial evidence of record as to each and every element of proof. The decision issued mindful of and in light of the applicable burden of proof — that is, the agency's burden of proving the violation by a preponderance of the evidence.
Distilled to its essence, the thrust of Loga's argument is an assault on the credibility of the agency's witnesses. The critical issue before the ALJ was whether large coastal sharks were part of the catch offloaded from the F/V Blue Ocean and packed into Tuna Fresh, Inc.'s boxes on December 8, 1997. Substantial evidence exists in this case which supports the ALJ's decision crediting the agency's witnesses over that of the violators.
The substantial evidence standard requires a reviewing court to look at the administrative record as a whole, considering the evidence that both supports and undercuts the agency's determination. Substantial evidence is more than a scintilla, less than a preponderance. It is such relevant evidence as a reasonable mind might accept to support a conclusion. See Hanes v. Heckler, 707 F.2d 152, 164 (5th Cir. 1983).
Nothing about the agents' testimony was inherently incredible or unbelievable, and therefore the ALJ was entitled to credit their testimony/word over Loga's/Williford's protestations of innocence in connection with landing large coastal sharks. The ALJ heard all of the witnesses and observed their demeanor, and this Court should defer to the ALJ's firsthand exposure to the witnesses.
VI. CONCLUSION
The conduct of the NOAA hearing did not deny the plaintiffs' constitutional rights. The agency's regulations and conduct were not ultra vires. Moreover, substantial evidence supports the ALJ's finding of a violation in this case. Accordingly,
IT IS ORDERED that the plaintiffs' Motion for Summary Judgment is DENIED.
IT IS FURTHER ORDERED that the defendants' Motion for Summary Judgment is GRANTED and the plaintiffs claims are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the decision of Secretary in this case is AFFIRMED JUDGMENT.
Considering the Order dated January 31, 2002 granting the defendants' FRCP Rule 56 Motion for Summary Judgment dismissing the plaintiff's claims with prejudice, accordingly;
IT IS ORDERED, ADJUDGED, AND DECREED, that there be judgment in favor of the defendants, Secretary Norman Y. Mineta, the United States Department of Commerce, and the United States of America, and against the plaintiffs, Steven H. Loga and Tuna Fresh, Inc., DISMISSING their claims WITH PREJUDICE and AFFIRMING the Secretary's final decision.