United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 12, 2008 Decided December 16, 2008
No. 07-5389
NORTH CAROLINA FISHERIES ASSOCIATION, INC., ET AL.,
APPELLANTS
v.
CARLOS GUTIERREZ, HONORABLE, IN HIS OFFICIAL CAPACITY
AS SECRETARY OF COMMERCE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 06cv01815)
Shaun M. Gehan argued the cause for appellants. With him
on the briefs was David E. Frulla.
Sambhav N. Sankar, Attorney, U.S. Department of Justice,
argued the cause and filed the brief for appellee. R. Craig
Lawrence and Aaron P. Avila, Assistant U.S. Attorneys, entered
appearances.
Before: TATEL and KAVANAUGH, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
2
Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.
SILBERMAN, Senior Circuit Judge: Appellants are the North
Carolina Fisheries Association, Inc., two commercial fishermen,
and a fish-packing plant (collectively, the “Association”). They
filed a complaint (petition for review) in district court against
the Department of Commerce, claiming that Amendment 13C to
the Fishery Management Plan for South Atlantic Snapper
Grouper violated the Magnuson-Stevens Fishery Conservation
and Management Act (the “Act”).1 The district court granted in
part and denied in part the Association’s motion for summary
judgment. The court held that the Department had not complied
with its statutory obligation to promulgate a rebuilding plan for
certain fish species following a determination that such species
were “overfished,” which failure the Government had conceded.
The court then ordered that the parties confer on an appropriate
remedy and submit a joint proposal or, should disagreement
persist, separate proposals. Because the parties were unable to
reach agreement, the district court adopted the Government’s
proposal with slight adjustments to the suggested timetable.
This appeal resulted. We conclude that we lack jurisdiction and,
therefore, dismiss the appeal.
I
America’s fisheries are regulated by the Department of
Commerce via the National Marine Fisheries Service. Pursuant
to the Act, the Service appoints regional fishery management
councils composed of representatives of both commercial and
recreational fishermen. These councils are empowered to submit
to the Service “fishery management plans” (and any necessary
amendments thereto) for fisheries under their authority requiring
1
16 U.S.C. §§ 1801-1883.
3
conservation and management.2 Under the Act, any plan
prepared by a Council must contain measures “necessary and
appropriate . . . to prevent overfishing and rebuild overfished
stocks” and must take into account, inter alia, the technical and
biological characteristics of the affected fishery as well as the
distributive effects of the plan on fishing communities and other
parties interested in the fishery. Plans, however, do not
themselves have any regulatory effect–implementing regulations
must also be enacted in order to effectuate them. Plans and
implementing regulations are both subject to public notice and
comment rulemaking prior to approval by the Service. The Act
provides for judicial review, implicitly in federal district court
and only to the extent authorized by the Administrative
Procedure Act, of regulations promulgated by the Service or
actions taken thereunder for the implementation of a fishery
management plan.
Amendment 13C,3 an amendment to the Fishery
Management Plan for South Atlantic Snapper Grouper, was
prepared by the South Atlantic Fishery Management Council in
order to end overfishing of black sea bass, snowy grouper,
vermilion snapper, and golden tilefish and to permit limited
increases in the commercial and recreational harvest of red
porgy, off the coast of the Carolinas, Georgia, and Florida. The
Council, however, neglected to include a rebuilding plan for
black sea bass and snowy grouper, despite the Service’s prior
conclusion that these species were not only subject to overfishing
2
The Service can also initiate the regulatory process. In the event
that the Service first identifies a particular fishery as “overfished” and
notifies the relevant regional council of this determination, within two
years of such notification, the appropriate council must prepare and
submit a management plan, plan amendment, or proposed regulations.
3
71 Fed. Reg. 55,096 (Sept. 21, 2006).
4
but also already overfished. Notwithstanding, the Service
approved Amendment 13C and implementing regulations
thereunder on August 14, 2006, imposing a variety of
commercial quotas, trip limits, gear restrictions, and recreational
bag limits.
The Association, whose members depend upon grouper and
bass for their livelihood, along with the State of North Carolina
as amicus curiae, challenged Amendment 13C and its
implementing regulations on the ground that the Service had
violated the Act by failing to comply with the national standards
for fishery conservation and management set forth by Congress
in the Act. Specifically, the Association charged that the Service
had not made use of “the best scientific information available”
in developing Amendment 13C and that it had neither made a
fair distribution of economic burdens nor minimized the negative
economic effects of the plan, in violation of §§ 1851(a)(2), (4),
(5), (6), and (8) of the Act. It was alleged, moreover, that
because the Service had previously made a determination that
populations of snowy grouper and black sea bass were
“overfished,” the Act required that Amendment 13C also include
a rebuilding plan for these fisheries. Finally, the Association
claimed that the Service had violated the Regulatory Flexibility
Act4 in promulgating the plan amendment without adequate
consideration of its effect on small businessmen. The
Association sought vacation of Amendment 13C and its
implementing regulations.
The district court rejected most of the Association’s
grievances in a thorough memorandum opinion, concluding that
the Service had acted reasonably in its discretionary balancing of
the various interests implicated. N.C. Fisheries Ass’n v.
Gutierrez, 518 F. Supp. 2d 62, 95 (D.D.C. 2007) (“N.C.
4
5 U.S.C. §§ 601-612.
5
Fisheries I”). The Service conceded the validity of the
Association’s remaining claim that, consistent with the Act,
Amendment 13C must include rebuilding plans for the
replenishment of the overfished snowy grouper and black sea
bass stocks and not merely restrictions designed to end the
overfishing of these species. Accordingly, the court held that
Amendment 13C was unlawful. Id. at 101.
The district court, relying on our precedent, see, e.g., Sugar
Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 98 (D.C.
Cir. 2002), declined to vacate Amendment 13C, as the
Association had requested, because it would be “highly
disruptive.” N.C. Fisheries I, 518 F. Supp. 2d at 104. But the
judge, apparently concerned about the delay inherent in the
Service’s rulemaking process–despite there having been no
allegation of unreasonable delay–did not merely remand to the
Service. Instead, he ordered the parties to confer on an
appropriate remedy or else to submit separate remedial
proposals. Id. at 104-05.
Discussions between the parties did not yield agreement, and
separate proposals were proffered. By the time of the remedial
negotiations between the parties, the Service had already drafted
Amendment 15, an omnibus amendment to the fishery
management plan containing, inter alia, rebuilding plans for the
snowy grouper and black sea bass fisheries, and the existence of
the amendment was apparently made known to the district court.
The court approved the Service’s remedial proposal, which
called for the removal of the rebuilding provisions for snowy
grouper and black sea bass from Amendment 15 and their
placement into a separate Amendment 15A, where the provisions
could proceed through the administrative process in a more
expeditious manner. N.C. Fisheries Ass’n v. Gutierrez, 518 F.
Supp. 2d 105, 106 (D.D.C. 2007) (“N.C. Fisheries II”). After
insisting on a shortening of the proposed administrative calendar,
6
the court deemed this proposal to be an appropriate remedy and
remanded to the Service. Id.
The Association, objecting to the Service’s proposal, had
urged the court to require the inclusion of certain management
measures and requested interim reinstatement of quota levels in
effect for the first year of Amendment 13C. The court
recognized, however, that the Association’s preferred remedy
would essentially require relitigation of the very same issues
decided by the district court in its first opinion. Id. at 107. The
court noted, moreover, that the Association would “have an
opportunity to air [its] displeasure during the public comment
period” for Amendment 15A. Id.
The Service ultimately approved Amendment 15A on March
14, 2008 after an administrative process that, we are told,
included consideration of written comments and public hearings.
Yet, for reasons that were not explained by the Service,
implementing regulations were not promulgated. (Paradoxically,
due to the fact that this appeal was taken from the district court’s
remand order prior to issuance of the relevant amendments, the
record before us includes neither Amendment 15A nor for that
matter Amendment 15.) It is undisputed that the Association and
its constituent members participated in this process, but they did
not seek judicial review of Amendment 15A in the district court.
Instead, the Association filed this appeal.
II
The Association claims that the district court remand order
was not an adequate remedy for the violations that the court
found. Yet its brief reiterates many of the same merits
arguments the district court rejected, i.e., that the remedial order
did not correct the Service’s alleged failure to consider
distributive impacts on commercial and recreational fishermen,
7
as well as fishery-dependent communities. The Service responds
that we lack jurisdiction to hear the appeal because the case is
moot. It explains that since its sole legal error–the failure to
include a rebuilding plan in Amendment 13C–has been
corrected, the controversy has terminated. We do not agree: the
controversy is not moot, because there remains a live dispute as
to the Association’s contention that Amendment 15A is
inadequate, but we agree that we lack jurisdiction for somewhat
different, if related, reasons.
It is black letter law that a district court’s remand order is
not normally “final” for purposes of appeal under 28 U.S.C.
§ 1291. NAACP v. U.S. Sugar Corp., 84 F.3d 1432, 1436 (D.C.
Cir. 1996); Occidental Petroleum Corp. v. SEC, 873 F.2d 325,
329 (D.C. Cir. 1989). Granted, there is a limited exception
permitting a government agency to appeal immediately rather
than bear significant expenses that cannot be recovered or take
action pursuant to the remand that cannot be reversed if it is later
determined that the order was improper, U.S. Sugar Corp., 84
F.3d at 1436 (citing Occidental Petroleum, 873 F.2d at 330), but
that path is not normally available to a private party. See Lake
Pilots Ass’n v. U.S. Coast Guard, 359 F.3d 624, 625 (D.C. Cir.
2004).5 We have recently applied this principle in a similar
dispute involving the Service. In Oceana, Inc. v. Gutierrez, No.
05-5176, 2006 WL 1457713 (D.C. Cir. May 22, 2006), we said
that a district court order remanding another fishery management
plan amendment was not a final decision and, therefore,
dismissed the appeal.
The Association’s attempts to distinguish Oceana are
unpersuasive. First, it is argued that the district court’s opinion
5
Moreover, appeal under the collateral order doctrine set forth in
Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 546-
47 (1949) is similarly inappropriate.
8
definitively determined the “metes and bounds” of Amendment
15A’s substantive content; thus, it would have been futile to
litigate the matter again in district court. In other words, since
the district court had already passed judgment on the essential
legality of Amendment 15A and had predetermined that the
Service need not consider the distributive impact of its fishery
plan, a new petition challenging Amendment 15A, which would
undoubtedly be assigned to the same judge, would be redundant.
To be sure, the district court, sitting as a court in review of
agency action under the Act and APA, should have done what a
court of appeals normally does when it identifies an agency
error: remand to the agency for further proceedings. As we have
said, “[u]nder settled principles of administrative law, when a
court reviewing agency action determines that an agency made
an error of law, the court’s inquiry is at an end: the case must be
remanded to the agency for further action consistent with the
corrected legal standards.” PPG Indus. v. U.S., 52 F.3d 363, 365
(D.C. Cir. 1995) (citing SEC v. Chenery Corp., 318 U.S. 80, 94-
95 (1943)); see also South Prairie Constr. Co. v. Int’l Union of
Operating Eng’rs, 425 U.S. 800, 806 (1976); Federal Power
Comm’n v. Idaho Power Co., 344 U.S. 17, 20 (1952); Global
Van Lines, Inc. v. ICC, 804 F.2d 1293, 1305 n.95 (D.C. Cir.
1986). Only in extraordinary circumstances do we issue detailed
remedial orders, and this maxim applies equally to district courts
acting in an agency review capacity.
Although a simple remand for proceedings consistent with
the court’s opinion would have been preferable, the district court
judge’s order did not actually approve Amendment 15A; indeed,
he was never presented (as we have not been) with the
amendment’s text. He did say that “the proposed rebuilding plan
is consistent with [the Service’s] general rebuilding plan criteria
as defined in the agency’s own ‘Technical Guidance
specifications.’” N.C. Fisheries II, 518 F. Supp. 2d at 106-07.
9
The Association construes this statement as not only approving
the actual plan, but also as ignoring and thereby dismissing sub
silentio and ex ante the other statutory criteria. We think that
this contention makes a mountain out of a molehill. After all, as
we have noted, the court recognized that the Association would
have a full opportunity to express any concerns with Amendment
15A during the comment period. Implicitly, then, the district
judge recognized that Amendment 15A (and any future
implementing regulations) could be challenged when
promulgated. And he certainly did not prejudge such challenges,
which could well be based on an entirely fresh record. In short,
the district judge did not have before him–and did not explicitly
approve–Amendment 15A.
Still, the Association claims that it might not have been able
to challenge Amendment 15A because it was not a “regulation”
promulgated by the Secretary under 16 U.S.C. § 1855(f)(1) and
(2),6 since when the amendment was issued it included a
statement that it “does not contain measures with direct
regulatory effect.” 73 Fed. Reg. 14942 (Mar. 20, 2008). Rather,
the amendment was styled merely as “agency action.” Id.
However, at least one circuit court has interpreted § 1855(f)(1)
to include challenges to agency actions that are in substance
challenges to prior regulations. See Turtle Island Restoration
Network v. DOC, 438 F.3d 937 (9th Cir. 2006) (concluding that
the court lacked jurisdiction on time-bar grounds). And, in any
6
“Regulations promulgated by the Secretary . . . shall be subject
to judicial review to the extent authorized by, and in accordance with,
[the APA], 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). “Actions” are defined as “actions that are taken by the
Secretary under regulations which implement a fishery management
plan.” 16 U.S.C. § 1855(f)(2).
10
event, APA review would appear to suffice. 5 U.S.C. § 704
(“Agency action made reviewable by statute and final agency
action for which there is no other adequate remedy in a court are
subject to judicial review.”).
It does seem rather peculiar–perhaps even a bit fishy–that
the Service promulgated Amendment 15A without
accompanying regulations, indeed, without any “regulatory
effect.” Recall that the Service acknowledged that it had
violated the Act (which was rather obvious) by omitting a
rebuilding plan; thus, it could be thought that the Service is
continuing to evade its statutory obligations by failing to put
teeth into the rebuilding plan. But if the Association thought that
the Service had not complied in substance with the district
court’s mandate, it should have sought direct relief in the district
court. In any event, we lack jurisdiction at this stage in the
proceedings.
The case is dismissed.
So ordered.