States Court of Appeals
For the First
OF MAINE FISHERMEN'S ALLIANCE,
C. DALEY, ET AL.,
FROM THE UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
A. O'Toole, Jr., U.S. District
and Lipez, Circuit Judges,
M. Ouellette, with whom David
S. Smith and
& Ouellette were on brief, for appellant.
C. Curden, Acting Assistant Attorney General, with whomLyn
Jacobs, James C. Kilbourne, Andrew
Mergen, and M. AliceThurston,
Environment and Natural Resource Division, United States Department of
Justice, were on brief, for appellee.
*of the District of Massachusetts, sitting
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.
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.
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 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.
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.
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.
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
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
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.
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
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)."
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)).
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 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
alsoNatural 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
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.
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 expired
(1) and has not been
modified by 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.
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.
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 that the same complaining
party would be subjected to the same action again." Id; see
130 F.3d at 479-480 (applying the Weinstein
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.
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 later. Thus,
in only seven months, Framework 33 underwent a fully litigated substantive
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.
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.
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 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.
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.
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 25 will not recur in the later ones.
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.
the District Court's dismissal of the appellant's claims as moot.
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 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