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Goethel v. U.S. Department of Commerce

United States Court of Appeals, First Circuit

April 14, 2017

DAVID GOETHEL, XIII NORTHEAST FISHERY SECTOR, INC., Plaintiffs, Appellants,
v.
U.S. DEPARTMENT OF COMMERCE; WILBUR ROSS, in his official capacity as Secretary, U.S. Department of Commerce; BENJAMIN FRIEDMAN, in his official capacity as Acting Administrator, National Oceanic and Atmospheric Administration; NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION; SAMUEL D. RAUCH III, in his official capacity as Assistant Administrator for Fisheries (Acting) for the National Marine Fisheries Service; NATIONAL MARINE FISHERIES SERVICE, [*] Defendants, Appellees.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Joseph Laplante, Chief U.S. District Judge]

          Julie A. Smith, with whom Eric R. Bolinder, Ryan P. Mulvey, Cause of Action Institute, and James C. Wheat, Pierre A. Chabot, and Wadleigh, Starr & Peters, P.L.L.C., were on brief for appellants.

          Thekla Hansen-Young, with whom John C. Cruden, Assistant Attorney General, Andrew C. Mergen, Robert Lundman, Alison C. Finnegan, Andrea Gelatt, Environment & Natural Resources Division, U.S. Department of Justice, and Mitch MacDonald, Gene Martin, National Oceanic and Atmospheric Administration, Office of General Counsel, Northeast Section, were on brief for appellees.

          Before Kayatta, Circuit Judge, Souter, Associate Justice, [**] and Stahl, Circuit Judge.

          STAHL, Circuit Judge.

         This case arrives on the court's deck from regulations promulgated by the National Marine Fisheries Service (NMFS), which require that on certain commercial fishing trips, fishermen must be accompanied on their vessels by at-sea monitors to ensure compliance with catch quotas, and that the industry must foot the bill for these unwelcome guests. David Goethel, a New Hampshire fisherman joined in these proceedings by a group of commercial fishermen subject to this "industry funding" requirement, brought suit in federal district court in New Hampshire, claiming that the industry funding requirement violates several pertinent statutes and is also unconstitutional.

         The district court granted summary judgment in favor of the government, reasoning that Goethel's suit was not filed within the applicable statute of limitations and that Goethel's statutory and constitutional challenges would have failed even if timely. On appeal, Goethel renews the bulk of his constitutional and statutory arguments, and urges this court to find that his suit was not time-barred. Because we agree with the district court that Goethel's suit was not timely, we AFFIRM the grant of summary judgment in favor of the government, and do not reach the question of whether the industry funding requirement contravenes the edicts of the relevant statutes or the Constitution.

         I. Facts & Background

         A. The Regulations

         The Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. §§ 1801-1884, was passed by Congress in 1976 in "[r]espon[se] to depletion of the nation's fish stocks due to overfishing." Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 107 (1st Cir. 1997). The stated goals of the MSA were, inter alia, to "conserve and manage the fishery resources found off the coasts of the United States" and "to promote domestic commercial and recreational fishing under sound conservation and management principles." 16 U.S.C. § 1801(b)(1), (3). The MSA tasked the Department of Commerce[1] with regulating commercial fishing throughout the Exclusive Economic Zone of the United States, which extends 200 nautical miles from the seaward boundary of each coastal state. Id. § 1802(11); see also Pres. Proc. No. 5030, Exclusive Economic Zone of the United States, 48 Fed. Reg. 10, 605 (Mar. 10, 1983) (defining the geographic scope of the Exclusive Economic Zone of the United States and the sovereign rights exercised therein under international law).

         Pursuant to the MSA, eight regional Fishery Management Councils (FMCs) were established and charged with preparing, and, if circumstances warranted, amending, regional Fishery Management Plans (FMPs), which set certain standards for the fishing industry within the given FMC's regional purview. The MSA was amended in 2007 to include a requirement that each FMP include "measures to ensure accountability" with respect to catch limits. See 16 U.S.C. § 1853(a)(15). In an effort to effectuate this requirement, the regional FMP at issue in this case, the Northeast Multispecies FMP, was amended by the New England Council (the relevant FMC) to include a requirement that commercial fishermen within the purview of the Northeast Multispecies FMP must, on occasion, be accompanied by at-sea monitors (ASMs) who would collect certain data related to the particular fishing trip and the vessel's catch. See generally Northeast (NE) Multispecies Fishery, Amendment 16, 75 Fed. Reg. 18, 262 (Apr. 9, 2010). The amendment that added this monitoring requirement was known as "Amendment 16, " and was published on April 9, 2010, following a period of public comment. Goethel was a council member at the time of the enactment of Amendment 16 and voted against the proposal.

         The at-sea monitors are human employees of private, third-party contractors who accompany the fishermen on board their vessels during certain fishing trips, observe their activities to ensure compliance with fishing limits, and file reports upon their return to port. While catch quotas had previously been imposed, and overall catch hauls recorded upon a fisherman's return to port, at-sea monitors were intended to verify the specific geographic areas in which a boat fished, and also to monitor fish discards at sea. See 75 Fed. Reg. at 18, 342. While not every fishing journey is monitored, costs for the monitors when a particular fishing trip is selected for such monitoring are estimated at $700-$800 per trip. See Goethel v. Pritzker, No. 15-CV-497-JL, 2016 WL 4076831, at *1 (D.N.H. July 29, 2016). Application of the at-sea monitoring program depends on whether a particular fishmerman is a member of a "sector, " an association of "vessels that have voluntarily signed a contract and agree[d] to certain fishing restrictions, " most notably catch restrictions and management requirements compiled in a sector operations plan. See Lovgren v. Locke, 701 F.3d 5, 15-16 (1st Cir. 2012) (citing Northeast (NE) Multispecies Fishery, Amendment 13, 69 Fed. Reg. 22, 906, 22, 945 (Apr. 27, 2004)). The sector program is voluntary and those vessels that choose not to join a sector are still able to fish from the "common pool" allocation of fish under a separate program that tracks number of days spent at sea, rather than using catch limits, and that does not require at-sea monitoring. See generally 50 C.F.R. § 648.82 (discussing days-at-sea restrictions for members of the common pool). The relevant sectors in this case are comprised of those fishing for groundfish.[2]

         As is the case with many government regulations, Amendment 16 requires compliance without offering to pay or reimburse the regulated entity for the cost of compliance. To the contrary, Amendment 16 itself requires that the sector fishermen bear the costs of the at-sea monitors. See Northeast (NE) Multispecies Fisheries, Amendment 16, 75 Fed. Reg. 18, 262, 18, 342 (April 9, 2010) ("Beginning in fishing year 2010, a sector must develop, implement, and pay for, to the extent not funded by NMFS, an independent third-party dockside/roving and at-sea/electronic monitoring program that is satisfactory to, and approved by, NMFS . . . ."). Notwithstanding this clear requirement, the government paid the ASM costs throughout the first several years of the program's existence. See, e.g., Standardized Bycatch Reporting Methodology Omnibus Amendment, 80 Fed. Reg. 37, 182, 37, 185 (June 30, 2015) ("To date, we have been able to provide sufficient funding for the groundfish sector at-sea monitoring program such that industry did not have to pay for at-sea monitoring.").

         However, a 2011 ruling by the D.C. Circuit required NMFS to fund a separate reporting program, see Oceana v. Locke, 670 F.3d 1238 (D.C. Cir. 2011), which in turn depleted the funds that the agency had available for the at-sea monitoring program in the Northeast. Beginning in 2015, responding to funding shortfalls caused by the requirements of the D.C. Circuit ruling, NMFS took a series of steps to inform the sectors that it could no longer fund the at-sea monitoring costs, and the sectors themselves and their constituent fishermen would soon be on the hook for these costs, as envisioned by Amendment 16. Because of the importance of the various dates in 2015 for purposes of the statute of limitations, we explain the relevant communications between the agency and the regulated sectors below.

March 9, 2015: NMFS published a Proposed Rule to approve seventeen sector operations plans for fishing years 2015 and 2016. While noting that the agency had been able to pay the costs of ASM coverage during the years 2012 to 2014, the agency explained that this would change: "Due to funding changes . . . we expect that sector vessels will be responsible for paying at-sea costs associated with the ASM program before the end of the 2015 fishing year." Proposed Rule, 2015 and 2016 Sector Operations Plans for Northeast Multispecies Fishery, 80 Fed. Reg. 12, 380, 12, 385 (Mar. 9, 2015).
May 1, 2015: NMFS published a final rule that reiterated the same language from the March 9th proposed rule, namely, that the agency "expect[ed] that sector vessels will be responsible for paying the at-sea portion of costs associated with the sector ASM program before the end of the 2015 fishing year." Final Rule, 2015 and 2016 Sector Operations Plans for Northeast Multispecies Fishery, 80 Fed. Reg. 25, 143, 25, 148 (May 1, 2015). The notice also added that "funding for our portion of ASM costs is expected to expire before the end of the 2015 fishing year" but "we have begun working on an implementation plan to help ensure a seamless transition when the industry assumes responsibility for at-sea costs in 2015." Id. at 25, 149.
November 10, 2015: NOAA Northeast Fisheries Science Center announced that "federal funds in the major at-sea monitoring contracts for northeast groundfish sectors will be expended by December 31, 2015, " and that "[t]ransition of monitor sea-day costs to industry will therefore be effective January 1, 2016." This announcement was sent to the relevant sectors in an email, but was not published in the Federal Register. The email, titled "Update: Federal Funding for At-Sea Monitoring Ends December 31, 2015, " stated, in pertinent part:
Based on the data we have on actual fishing effort, we have determined that federal funds in the major at-sea monitoring contracts for northeast groundfish sectors will be expended by December 31, 2015. Transition of monitor sea-day costs to industry will therefore be effective January 1, 2016.

         Although the November 10th email notification purported to establish a date certain when industry funding would kick in (January 1, 2016), the government was ultimately able to continue paying ASM costs through mid-February 2016. Additionally, on June 23, 2016, a NOAA email notification informed the Northeast Sector that the agency would fully fund the shore-based monitoring program and would "use ...


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