Gulf of Maine Fishermen's Alliance v. Daley

United States Court of Appeals
For the First Circuit

No. 00-1160

THE GULF OF MAINE FISHERMEN'S ALLIANCE,
Plaintiffs, Appellants,

v.

WILLIAM C. DALEY, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,

and Zobel,* District Judge.

Stephen M. Ouellette, with whom David S. Smith and
Cianciulli & Ouellette were on brief, for appellant.
James C. Curden, Acting Assistant Attorney General, with whom
Lyn Jacobs, James C. Kilbourne, Andrew Mergen, and M. Alice
Thurston, Environment and Natural Resource Division, United States
Department of Justice, were on brief, for appellee.

June 11, 2002

*of the District of Massachusetts, sitting by designation.
 ZOBEL, District Judge. Under the authority of the

Magnuson-Stevens Act, 16 U.S.C. 1801, the Department of Commerce

formulated a series of plans and regulations to protect the

dwindling stock of groundfish in the Gulf of Maine. These included

closing certain areas to fishing. Appellant, The Gulf of Maine

Fishermen's Alliance ("GMFA"), is an association of commercial

fishermen who have been severely impacted by the regulations and

closures. They challenged in the district court one such set of

rules and plans known as "Framework 25"; they challenge in this

court the district judge's dismissal of the case on mootness

grounds. We affirm.

Congress passed the Magnuson-Stevens Act in 1976 for the
purpose of "promot[ing] domestic, commercial, and recreational
fishing" while conserving precious fishing resources. 16 U.S.C.

1801(b)(1) and (3). The Act established eight Regional Fishery
Management Councils responsible for developing fishery management
plans ("FMPs") in their regions.

The New England Fisheries Management Council (the
"NEFMC") promulgated the first Northeast Multispecies Fisheries
Management Plan in 1985 in an effort to curb the decline of

groundfish stock in the Gulf of Maine. Between 1985 and 1996, the
Plan underwent a series of amendments as the groundfish population
in that region continued to suffer. Finally, in 1996, with the

population of cod and other groundfish on the verge of collapse,
the Commerce Department instituted a new "Framework" rulemaking
procedure which allowed the regional regulatory authorities to

amend inshore fishing regulations "at any time," thereby responding

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more quickly to fluctuations in the groundfish population. Under

this new, abbreviated procedure, the regional councils are able to

adjust their fishing restrictions over the span of two regular
monthly meetings, but they must provide timely public notice of any

proposed change in regulations and invite public comment prior to

and at the second meeting.
Framework 25, the first of the "Framework" regulations

promulgated by the NEFMC, was developed in late 1997. Among other

things, the regulation instituted a year-round closure of an

inshore fishing area known as Jeffrey's Ledge, as well as a series

of "rolling closures" along the Gulf of Maine which were intended

to spread the impact of the fishing restrictions across several

ports. These closures were to expire after three years.
On November 19, 1997, NEFMC mailed a notice to 1650

interested parties alerting them that Framework 25 would be

discussed at the regular council meeting on December 9, 1997. The
NEFMC also filed a meeting notice with the Office of the Federal

Register on November 24, 1997, but it was not published until

November 29, 1997, less than 14 days before the meeting date.

Finally, on December 2, 1997, the NEFMC issued a press release

about the declining groundfish stock, the proposed regulation, and

the upcoming council meeting.

Several individual GMFA members did not receive notice of

the meeting; however, most did, and representatives from GMFA

attended the December 9, 1997 meeting. They objected to the

proposed regulation on behalf of the GMFA members and presented a

counterproposal which they claimed would achieve the same

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conservation goals at a lower cost to inshore fishing fleets. The

NEFMC considered their proposal, but chose to adopt its own version

of Framework 25 at the next council meeting on January 14-15, 1998.
Soon thereafter, GMFA filed this suit to enjoin the

enforcement of Framework 25. The group challenged the regulation

on both procedural and substantive grounds, arguing that it should
be set aside because (1) the NEFMC failed to comply with statutory

notice and comment requirements, and (2) Framework 25 was not the

best course of action available to achieve the stated conservation

goals while minimizing the impact on small inshore fleets. Both

parties moved for summary judgment and while these motions were

pending, the NEFMC adopted Framework 27, a new FMP which expanded

upon Framework 25 by increasing the size and duration of the
rolling closures. On motion of defendant, the district court then

dismissed the action challenging Framework 25 as moot. It ruled

that the procedural failures that had occurred in the adoption of
Framework 25 were not likely to be repeated, and that the

substantive challenges, to the extent that they were still relevant

after the adoption of Framework 27, could be reviewed in a case

challenging that FMP

Framework 27 was adopted on May 5, 1999, after a notice

and comment period which included two public hearings and timely

publication in the Federal Register. GMFA filed a separate lawsuit

challenging Framework 27 on substantive grounds, but did not

contest the new regulation on procedural grounds because the notice

and comment process had been sufficient.

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 Since 1999, the NEFMC has adopted several more FMPs. Two

of these, Framework 31 and Framework 33, addressed and either

modified or maintained the closures and groundfish trip limits in
the Gulf of Maine and Jeffrey's Ledge, issues previously governed

by Framework 25. GMFA does not contend that the NEFMC violated

procedural rules in the adoption of these or any other FMP since
Framework 25.

The questions before us are first, whether appellants'

claims of invalidity are moot since Framework 25 is no longer in

effect; and second, whether they fall within the narrow exception

for claims that are "capable of repetition, yet evading review."

S.Pac. Terminal Co. v. ICC. 219 U.S. 498, 515 (1911)."

We have consistently held that "a case becomes moot 'when
the issues presented are no longer "live" or the parties lack a

legally cognizable interest in the outcome of the controversy.'"

Thomas R.W. v. Mass. Dept. of Educ., 130 F.3d 477, 479 (1st Cir.

1997) (quoting Boston and Me. Corp. v. Bhd. of Maintenance of Way

Employees, 94 F.3d 15, 20 (1st Cir. 1996)).

A party can have no legally cognizable interest in the

outcome of a case if the court is not capable of providing any

relief which will redress the alleged injury. Thus, "if an event

occurs while a case is pending ... that makes it impossible for the

court to grant any effectual relief whatever to a prevailing party,

the [action] must be dismissed." Church of Scientology v. United

States, 506 U.S. 9, 12 (1992) (internal citations omitted). The

promulgation of new regulations and amendment of old regulations

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are among such intervening events as can moot a challenge to the

regulation in its original form. Save Our Cumberland Mountains,

Inc. v. Clark, 725 F.2d 1422, 1432 n.27 (D.C. Cir. 1984). ("There
is no question that a case can be mooted by promulgation of new

regulations or by amendment or revocation of old regulations.");

see also Natural Res. Def. Council v. United States Nuclear

Regulatory Comm'n, 680 F.2d 810, 813-815 (D.C. Cir.

1982)(procedural challenge to a regulation promulgated in violation

of notice and comment requirements rendered moot by repromulgation

of rule in accordance with procedural requirements).

Here, the appellant asks us to invalidate Framework 25,

a regulation which is no longer in effect because it has been

replaced by a series of subsequent Frameworks. This court has no
means of redressing either procedural failures or substantive

deficiencies associated with a regulation that is now defunct. In

effect, those deficiencies have been eliminated by the promulgation
of new Frameworks in compliance with the applicable procedural

guidelines and based on new circumstances and data concerning the

groundfish stock.

GMFA argues that the provision of Framework 25 which

established a year-round closure at Jeffrey's Ledge is still in

effect because it has not yet expired1 and has not been modified by

1
The Jeffrey's Ledge closure was originally scheduled to
expire on May 1, 2001, three years after it was enacted as part
of Framework 25, effective May 1, 1998. Our decision post-dates
that expiration date. Given our conclusion that the provisions
of Framework 25 at issue here were superceded by subsequent
Frameworks, we need not consider whether the recent expiration of
Framework 25 would provide an independent basis for our finding
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subsequent Frameworks. To the extent that this provision of

Framework 25 is still operative, GMFA insists that we can declare

it invalid. Yet, the record is clear that the Jeffrey's Ledge
closure, although unmodified since enacted in Framework 25, was

expressly reconsidered and re-adopted in later Frameworks. See,

e.g., 64 Fed. Reg. 14846 (proposed Framework 27 fishing
regulations); 64 Fed. Reg. 24066 (Framework 27 as enacted).

Therefore, the section of Framework 25 governing that closure is no

longer in effect because fishing in Jeffrey's Ledge is now

regulated by later Frameworks which, in turn, are based on later

and totally different data.

Since every measure introduced in Framework 25, including

the Jeffrey's Ledge closure, is now governed by a later Framework,
no justiciable controversy exists regarding Framework 25, and the

appellant's claims are moot.

There remains the second question, whether appellant's
claims, although moot, may still be actionable because defendant's

actions are, by their nature, "capable of repetition, yet evading

review." Weinstein v. Bradford, 423 U.S. 147, 149 (1975). In

order to qualify for this narrow exception to the mootness

doctrine, a plaintiff must show that "(1) the challenged action was

in its duration too short to be fully litigated prior to its

cessation or expiration, and (2) there was a reasonable expectation

of mootness. See, e.g., Roe v. Wade, 410 U.S. 113, 125 (1973)
(explaining that "an actual controversy must exist at all stages
of appellate . . . review, and not simply at the date the action
is initiated")."
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that the same complaining party would be subjected to the same

action again." Id; see also Thomas R.W., 130 F.3d at 479-480

(applying the Weinstein test).
GMFA argues that, under the Framework system, FMPs are

developed and adopted in such rapid succession that it is

impossible to challenge the validity of one Framework before the
next one is put into effect. The difficulty with the argument is

that it is not supported by the facts. GMFA has simply not shown

that "the challenged action was in its duration too short to be

fully litigated prior to its cessation or expiration." Weinstein,

423 U.S. at 149. New fishing regulations are not promulgated so

quickly under the Framework system that all timely legal challenges

are inevitably precluded. The system does permit the NEFMC to
adopt new fishing regulations within a matter of months; but, in

practice, most Frameworks governing the Western Gulf of Maine

closures (including Jeffrey's Ledge) are in place for as much as a
year before being superceded by a new Framework.

At least one Framework regulation has already been fully

litigated within that time frame. Framework 33, published as a

final rule on April 24, 2000, has governed the closure of Jeffrey's

Ledge for almost two years. One month after that Framework was

enacted, a municipality affected by the closures filed a

substantive legal challenge in which the appellant, GMFA, filed an

amicus curae brief. City of Gloucester v. Mineta, No. 00-11019REK

(D. Mass. Nov. 15, 2000). The judge in that case recommended

expedited review, and the litigation concluded less than six months

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later. Thus, in only seven months, Framework 33 underwent a fully

litigated substantive legal challenge.

Framework 25, the regulation at issue before us, was
promulgated as a final rule on March 31, 1998, effective May 1,

1998, and was in force for more than a year before it was replaced

by Framework 27 on May 5, 1999, affording appellant considerable
time to pursue its claims. Furthermore, appellant never requested

expedited review during this litigation. On the contrary, both

parties sought numerous extensions of time for filing the

administrative record, motions, and briefs. As a result of these

delays, we cannot know whether GMFA might have obtained a judgment

on its challenges to Framework 25 before the adoption of a

subsequent Framework rendered those challenges moot. Given the
actual, as opposed to theoretical, interval between most Frameworks

and the historical fact that review is indeed possible, we decline

to hold that Framework 25 was "too short in duration" to be fully
litigated before its expiration.

Appellant fails as well to satisfy the second requirement

of the Weinstein test. Neither the procedural nor the substantive

deficiencies raised by appellant are likely to recur.

GMFA's procedural challenge to Framework 25 grew out of

an admittedly insufficient notice and comment process during the

promulgation of that regulation. Appellant urges that, absent some

declaration by this court, the NEFMC's failure to adequately notify

certain interested parties of the proposed rule, and the consequent

inability of those parties to comment on the rule prior to its

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adoption, could easily be repeated in the adoption of future

Frameworks. Yet, GMFA concedes that the NEFMC has complied with

the relevant notice and comment guidelines in adopting all
subsequent Frameworks, and it has pointed to no evidence in the

record which suggests that the procedural failures which occurred

with respect to Framework 25 will be repeated. We thus affirm the
District Court's determination that GMFA's objections to procedural

deficiencies in the creation of Framework 25 are moot.

GMFA also challenges Framework 25 on substantive grounds;

namely, that the closures it mandated disproportionately impact

small inshore fleets. This defect in Framework 25, it contends,

will be repeated in subsequent frameworks because each builds upon

the closures and fishing limits established in prior ones. Thus is
GMFA subjected to the same action by the NEFMC over and over. We

disagree.

First, the later Frameworks do not depend on the
provisions incorporated in Framework 25. They direct closures of

different size, location and duration. These modified closures and

limitations do not, therefore, constitute the "same action" with

respect to appellants. The very purpose of the Framework system is

to adjust the fishing regulations frequently so that no fleet or

area bears the entire burden of the fishing limitations. GMFA

represents several fleets, and those fleets have been impacted

differently by each subsequent Framework. Because most of the

limitations imposed by Framework 25 are not identical to the

limitations imposed by later Frameworks, any mistakes in Framework

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25 will not recur in the later ones.

Second, even the provisions of Framework 25 which remain

unchanged in later Frameworks, such as the year-round closure at
Jeffrey's Ledge, were re-adopted based on new, updated data

concerning the groundfish stock. Thus, the later Frameworks do not

subject the appellant to the same action because they involve an

entirely new analysis. Assuming, arguendo, that the Jeffrey's

Ledge closure in Framework 25 was found to be invalid as arbitrary

and capricious under the strict standard set forth by the

Administrative Procedure Act, 5 U.S.C. § 706 (1996), that does not
mean that the same closure, as adopted in Framework 27 or any other

Framework, was arbitrary and capricious based on the new data
available to the NEFMC at the later time. Any substantive
deficiencies in Framework 25 are thus not likely to be repeated.

We AFFIRM the District Court's dismissal of the

appellant's claims as moot.

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