Filed: Jun. 13, 2008
Latest Update: Feb. 21, 2020
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 07-12903 ELEVENTH CIRCUIT June 13, 2008 _ THOMAS K. KAHN CLERK D.C. Docket No. 06-02313- CV-T-26-TBM GULF FISHERMEN’S ASSOCIATION, Plaintiff-Appellant, versus CARLOS M. GUTIERREZ, in his official capacity as Secretary of the United States Department of Commerce, NATIONAL OCEANIC AND ATMOSPHERE ADMINISTRATION, NATIONAL MARINE FISHERIES SERVICE, Defendants-Appellees. _ Appeal from the United
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 07-12903 ELEVENTH CIRCUIT June 13, 2008 _ THOMAS K. KAHN CLERK D.C. Docket No. 06-02313- CV-T-26-TBM GULF FISHERMEN’S ASSOCIATION, Plaintiff-Appellant, versus CARLOS M. GUTIERREZ, in his official capacity as Secretary of the United States Department of Commerce, NATIONAL OCEANIC AND ATMOSPHERE ADMINISTRATION, NATIONAL MARINE FISHERIES SERVICE, Defendants-Appellees. _ Appeal from the United S..
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-12903 ELEVENTH CIRCUIT
June 13, 2008
________________________
THOMAS K. KAHN
CLERK
D.C. Docket No. 06-02313- CV-T-26-TBM
GULF FISHERMEN’S ASSOCIATION,
Plaintiff-Appellant,
versus
CARLOS M. GUTIERREZ,
in his official capacity as Secretary of the
United States Department of Commerce,
NATIONAL OCEANIC AND ATMOSPHERE ADMINISTRATION,
NATIONAL MARINE FISHERIES SERVICE,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 13, 2008)
Before BARKETT, FAY and STAPLETON*, Circuit Judges.
___________
* Honorable Walter K. Stapleton, Senior Circuit Judge for the United States Court of
Appeals for the Third Circuit, sitting by designation.
PER CURIAM:
Appellant, the Gulf Fishermen’s Association (“GFA”), appeals the district
court’s order granting the Appellees’ motion for summary judgment for lack of
jurisdiction. The district court held that the GFA’s complaint was time-barred
under the limitations provision of the Magnuson-Stevens Fishery Conservation
and Management Act, 16 U.S.C. §§ 1801 et seq. (the “Act”). On appeal, the GFA
argues that its suit challenging Amendment 18A to the Fishery Management Plan
for the Reef Fish Resources of the Gulf of Mexico (“Amendment 18A”) was
timely under the judicial review provisions of the Act, 16 U.S.C. § 1855(f),
because it was filed within thirty days after an action by the Secretary of
Commerce (the “Secretary”). By its own terms, the Act permits a challenge to a
regulation implementing a fishery management plan so long as it is filed within
thirty days after the publication of the regulation or an action by the Secretary
under that regulation. Because the GFA filed its challenge to Amendment 18A
nine days after the Federal Register published a Secretarial action implementing
that regulation, we find the suit was timely and reverse the district court’s grant of
summary judgment for lack of jurisdiction.
BACKGROUND
The Act vests in the Secretary the authority to make final rules and
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amendments to fishery management plans. The Secretary has delegated that
authority to the National Marine Fisheries Service (“NMFS”), a division of the
Department of Commerce. On August 9, 2006, the NMFS published in the
Federal Register a final rule implementing Amendment 18A. See 71 Fed. Reg.
45428. Amendment 18A requires, inter alia, that owners and operators shall
install and maintain a NMFS-approved Vessel Monitoring System (“VMS”) on
any vessel possessing a federal commercial permit to harvest and sell reef fish in
the Gulf of Mexico. The initial effective date for Amendment 18A’s VMS
requirement was December 7, 2006.
On December 6, 2006, the Secretary, through the NMFS, delayed the
effective date for implementation of the VMS requirement until March 7, 2007.
See 71 Fed. Reg. 70680. The purpose of the delay was to provide affected owners
and operators with additional time to comply with the VMS requirement. Id. On
December 15, 2006, nine days after publication of the new implementation date,
the GFA filed suit, pursuant to § 1855(f), challenging the legality of Amendment
18A’s VMS requirement.
The Appellees moved to dismiss the complaint for lack of jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1), claiming it was barred by the
thirty-day limitations period in § 1855(f)(1). The district court denied the motion.
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The parties then filed cross motions for summary judgment, and the Appellees
reasserted their claim that the district court lacked jurisdiction under § 1855(f)(1).
This time the district court agreed with Appellees’ argument, granting summary
judgment for Appellees. The court concluded that because the GFA’s suit
challenges the VMS requirement itself, rather than the delay of the effective date,
it should have been filed within thirty days of Amendment 18A’s publication on
August 9, 2006.
DISCUSSION
Section 1855(f) of the Act provides for judicial review of regulations and
Secretarial actions that implement a fishery management plan. In outlining the
scope of judicial review, the statute includes a limitations provision that states, in
relevant part, that:
Regulations promulgated by the Secretary under this
chapter and actions described in paragraph (2) shall be
subject to judicial review . . . 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 . . . .
16 U.S.C. § 1855(f)(1). The statute defines “actions” as “actions that are taken by
the Secretary under regulations which implement a fishery management plan.” Id.
§ 1855(f)(2).
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As a threshold issue, Appellees contend that the Secretary’s notice delaying
the effective date for implementation of the VMS requirement was not an “action”
within the meaning of § 1855(f). Appellees argue that we should interpret the
Secretary’s notice as a separate regulation that operated to amend the VMS
requirement. The Secretary’s notice operated to postpone the effective date of the
VMS requirement. The effective date is an indispensable part of the substance of
the regulation because it determines when the regulation will be implemented. To
the extent that the VMS requirement has no legal effect prior to its effective date,
it is only logical that delaying that effective date must be considered an action
taken under the regulation, not a separate regulation.
Accepting that the Secretary’s notice was an action under § 1855(f), the
Appellees further argue that § 1855(f) does not allow the GFA to challenge the
underlying regulation when the petition’s timeliness is dependent on a Secretarial
action. However, the text of the statute states that regulations and actions are
subject to review if a petition for review “is filed within 30 days after the date the
regulation is promulgated or the action is published.” 16 U.S.C. § 1855(f)(1)
(emphasis added). Thus, if a petition for review of a regulation that implements a
fishery management plan is filed within thirty days of a Secretarial action under
that regulation, it is timely.
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The plain text of § 1855(f) does not preclude judicial review of a regulation
beyond the thirty days after its publication where there has been a subsequent
Secretarial action under that regulation. Our reading of § 1855(f) is consistent
with the Ninth Circuit’s recent interpretation in Oregon Trollers Ass’n v.
Gutierrez, 452 F.3d 1104 (9th Cir. 2006), cert. denied, __ U.S. __,
127 S. Ct.
2028,
167 L. Ed. 2d. 762 (2007). In Oregon Trollers, the Ninth Circuit held that
publication of a Secretarial action in the Federal Register triggers a new thirty-day
limitations period in § 1855(f)(1) for challenges to both the action and the
regulation under which the action is taken.
Id. at 1113. The Ninth Circuit
reasoned, and we agree, that “[t]he conjunctive ‘and’–italicized above–indicates
that both regulations and actions are reviewable in a timely filed petition. The
disjunctive ‘or’–also italicized above–indicates that a petition is timely if it is filed
within thirty days of either the promulgation of the regulation or publication of the
action.”
Id. (citations omitted).1
Although we need not rely on legislative history because we find the
1
Assuming that the reasoning of Oregon Trollers requires a petitioner to challenge both
the regulation and the action, rather than providing the petitioner the option to challenge only the
regulation, we believe the GFA has satisfied that burden given the nature of the action in this
case. In challenging the VMS requirement, the GFA is in essence challenging both the
underlying regulation and the action delaying the VMS requirement’s effective date because a
successful challenge to the underlying regulation would have the effect of rendering the action
delaying the effective date a nullity.
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language of § 1855(f) to be plain and unambiguous, see Shotz v. City of
Plantation, Fla., 344 F.3d 1161, 1167 (11th Cir. 2003), we note that the
congressional committee reports demonstrate that “Congress said what it meant
and meant what it said.” United States v. Steele,
147 F.3d 1316, 1318 (11th Cir.
1998) (en banc). The Senate Committee Report explains that the 1990
Amendments to the Act addressing judicial review of a fishery management plan
regulation contemplated that Secretarial action under that regulation would trigger
the limitations period for review of the regulation and the action taken thereunder.
The Committee found:
Under current law, a management plan or regulation only
can be challenged in court within 30 days after
publication in the Federal Register. However, a
substantial period may lapse between the time a
regulation to implement a fishery management plan is
published and the time action is taken by the Secretary
pursuant to the regulation. In many instances, it is only
when such an action is taken that participants in the
fishery can assess whether a petition for judicial review
is necessary. The time lapse between publication o[f] a
regulation and Secretarial action may deny individuals
the opportunity to challenge regulations at the point in
time when they can determine that such a challenge is
necessary. The amendments made by this subsection
would allow a challenge within 30 days of the time that a
Secretarial action is published.
S. Rep. No. 101-414 (1990), as reprinted in 1990 U.S.C.C.A.N. 6276, 6298
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(emphasis added). As the Ninth Circuit noted, the House Committee Report
indicates the same intent to “allow a challenge within 30 days of the time that a
regulation is implemented,” not merely published. Oregon Trollers, 452 F.3d at
1114 (quoting H.R. Rep. 101-393, at 28 (1990)) (emphasis added).
After reviewing both the text and the legislative history of § 1855(f), we
hold that a petition filed within thirty days of the publication of a Secretarial
action, as defined in § 1855(f)(2), may challenge both the action and the regulation
under which the Secretarial action is taken. In this case, the Secretarial action to
delay the effective date of the VMS requirement was an “action” taken under
Amendment 18A. Because this action was published in the Federal Register on
December 6, 2006, and the GFA filed its complaint on December 15, 2006, we
conclude that the complaint was timely-filed under the limitations period of 16
U.S.C. § 1855(f). The district court thus erred in granting the Appellees’ motion
for summary judgment for lack of jurisdiction.
CONCLUSION
For the forgoing reasons, we REVERSE and REMAND to the district court
for proceedings consistent with this opinion.
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