USCA1 Opinion

March 30, 1993

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 92-2029
CONSERVATION LAW FOUNDATION OF
NEW ENGLAND, INC., ET AL.,
Plaintiffs, Appellees,
v.
BARBARA H. FRANKLIN, ETC., ET AL.,
Defendants, Appellees.
____________________
ASSOCIATED FISHERIES OF MAINE, ET AL.,
Intervenors, Appellants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________

Coffin, Senior Circuit Judge,

____________________
and Cyr, Circuit Judge.
_____________
_____________________

Ralph J. Gillis, with whom Gillis & Campbell, was on brief

_______________
_________________
for appellants.
Peter A. Appel, Attorney, Department of Justice, with whom
_______________
Vicki A. O'Meara, Acting Assistant Attorney General, A. John
_________________
________
Pappalardo, United States Attorney, Suzanne E. Durrell, Assistant
__________
__________________
United States Attorney, J. Carol Williams and Jean W. Williams,
_________________
________________
Attorneys, Department of Justice, Margaret F. Hayes and Gene S.
__________________
________

Martin, Office of General Counsel, National Oceanic & Atmospheric

______
Administration, were on brief for Federal appellees.

Peter Shelley, with whom Maura J. Sheehan, was on brief for

______________
________________
appellees Conservation Law Foundation, Inc., and Massachusetts
Audubon Society.
____________________
March 30, 1993
____________________

TORRUELLA,

Circuit Judge.
_____________

In

this appeal,

several

fishing associations,1 appellants here,

request that we vacate a

consent decree approved and entered by the district court between

the

Conservation

Law

Foundation

of

New

England,

Inc.

and

Massachusetts Audubon Society (collectively, "Conservation"), and

the Secretary

of Commerce ("Secretary").

For the

reasons that

follow, we reject this request.

PRIOR PROCEEDINGS
PRIOR PROCEEDINGS
_________________
Conservation
Secretary failed
England, as
Act of

sued

to prevent

Secretary

overfishing

required by the Fishery

1976, as amended, 16

1992) ("Magnuson
district

the

court

Act").
denied

off the

that

the

coast of

New

Management and Conservation

U.S.C.

1801-1882

Appellants sought
the

alleging

request,

but

(1985 & Supp.

to intervene.
we

granted

The
it

in

Conservation Law Foundation, Inc. v. Mosbacher, 966 F.2d 39 (1st

__________________________________
_________
Cir. 1992).

While

the appeal seeking intervention

the district court entered

and the Secretary.
decree

on

appeal, we

was pending,

a consent decree between Conservation

Appellants

various grounds.

now seek to
To fully

must briefly describe

vacate the

understand

consent

the present

the statutory context

to this

suit.
STATUTORY BACKGROUND
STATUTORY BACKGROUND
____________________
Congress

enacted

the

Magnuson

Act

to

establish

____________________

1 These associations include:

Associated Fisheries of Maine,
N.E.; Atlantic Swordfish Net Ass'n, Inc.; Massachusetts Inshore

Draggermen's
Ass'n,
Inc.;
Cooperative Ass'n, Inc.

and

Point

Judith

Fishermen's

-3-

comprehensive system

of fisheries

the jurisdiction of the

In particular,

management for

United States.

Congress found that

been so overfished that

waters within

16 U.S.C.

1801(b)(1).

certain stocks

of fish

their survival was threatened, id.

___

1801(a)(2), and mandated that overfishing be prevented,

had
at

id. at
___

1851(a)(1).
To attain

these goals, the Act

fishery management councils.

Id.
___

at

creates eight regional

1852(a).

The

regional

councils are comprised of state and federal government officials,

as

well

as

individuals

appointed by the Secretary.

Act

charges

the

nominated
Id. at
___

Secretary

by

state

executives

1852(b), (c).

and the

Councils

and

The Magnuson

with

developing

fishery management plans ("FMPs") for stocks of fish within their

jurisdictions that require conservation
specifies the

and management.

The Act

procedures by which FMPs are developed and creates

a number of standards to which

the plans must conform.

National

Standard

One

measures

shall

continuing
United

requires
prevent

basis, the

States

Secretary

that

"[c]onservation

overfishing

optimum yield from

fishing industry."

has issued

guidelines

plans by the regional councils.

The

Act

while

Id.
___

and

management

achieving,

each fishery
at

to assist

on

for the

1851(a)(1).

The

the development

of

See 50 C.F.R. pt. 602.

___

provides

that

either the

Secretary

can develop FMPs.

If a

council generates a plan, the

Secretary

must

specified in

follow

detailed

1854(a), (b).

councils

procedure

The Secretary

for

or

review,

first reviews

the

as

the

-4-

plan for compliance with

of the

plan in

the Federal

interested

persons.

partially

approve, or

disapproves

statutory mandates and publishes notice

After review,

or partially disapproves

Secretary will review.

plan.
of a plan

16 U.S.C.

submit a revised plan,

comments from

the Secretary

disapprove the

the council of her reasons.

may then

Register, soliciting

id. at
___

If

may approve,

the Secretary

she must inform

1854(b)(2).

The council

1854(b)(3), which the

The Act authorizes the Secretary to develop an FMP with

respect to any fishery

if (1) "the appropriate council

fails to

develop and submit to the Secretary, after a reasonable period of

____________________________
time,
____

fishery

necessary

management

amendment to

conservation

and

plan

such a

such

plan, if

management .

(emphasis added); or (2)

for

. .

,"

and the

revised or further

revised plan

the

or

any

fishery requires

1854(c)(1)(A)

"the Secretary disapproves or partially

plan or amendment,

Id. at
___

such
id. at
___

disapproves any such plan or amendment,

be."

fishery,

or disapproves a revised

Council involved fails

1854(c)(1)(B).

or amendment, as

to submit
the case

may

Under either statutory authority,

Secretary must submit the FMP to the appropriate council for

comments,

and publish

implement

the

plan

1854(c)(2)(A).

in

Before

must consider the

ensure

notice

compliance

the

the

plan

Federal

the Secretary

comments of
with

of the

and regulations

Register.
implements the

the council and

national

1854(c)(2)(B), 1851, 1853.

-5-

Id.
___

at

plan, she

the public,

standards.

to

Id.
___

and

at

Approved
promulgated

by

FMPs

are

implemented

the Secretary,

which

are

by

regulations

subject to

judicial

review in accordance with select provisions of the Administrative

Procedures Act, 5 U.S.C.

701 et seq.
__ ____

See 16 U.S.C.
___

1855(b).

HISTORY OF THE NORTHEAST MULTISPECIES FISHERIES PLAN

HISTORY OF THE NORTHEAST MULTISPECIES FISHERIES PLAN
____________________________________________________
This case involves
groundfish

off the

the conservation and

coast of

manage New England fisheries,

New England.2

management of

In its

the New England Fishery Management

Council ("New England Council")

first eliminated foreign fishing

within its jurisdiction, 42 Fed. Reg. 13,998 (1977).

developed the

Northeast

effort to

Multispecies Fisheries

In 1985, it

Plan,

Rule, 50 Fed. Reg. 49,582 (1985), because overfishing

problem.
1986,

The Secretary approved the plan

indicating

unsatisfactory

that

for

Interim Rule, 51

the

long

rule
term

improved

matters,

conservation

and

rule became final and three amendments followed.

Reg.

4,798

remained a

as an interim rule in

two);

was

In 1987, the

See Final Rule,

___

(1987) (amendment one); Final Rule,

(1989) (amendment

but

management.

Fed. Reg. 29,642, 29,643 (1986).

52 Fed. Reg. 35,093

Proposed

Final Rule,

54

54 Fed.

Fed. Reg.

52,803 (1989) (amendment three).

The

Rule

and

overfishing as required
the Secretary's

its

amendments

by National Standard

guidelines on

did

not

One.

what constitutes

eliminate
Pursuant

to

overfishing, 50

C.F.R. 602.11

(1991), the Council determined

that cod, haddock,

____________________

2
Groundfish tend to live near the ocean floor and include cod,
haddock, and flounder.
-6-

and yellowtail flounder in certain fisheries off the coast of New

England

were overfished

that problem.
56 Fed. Reg.
stating

and drafted

The Secretary partially

24,724 (1991), but

that

it

did

strategy . . . ."

"not

to amendment

National Standard

suit.

deficient,

complete

rebuilding

four, Conservation sued

the

had arbitrarily and capriciously

the amendment and that the overall FMP failed to comply

Secretary began
the

approved amendment four,

found the amendment

constitute

Secretary, complaining that she

with

to redress

Id. at 24,725.
___

In response

approved

amendment four

One.

Thereafter, Conservation

negotiations to enter a

and the

consent decree settling

Appellants sought to intervene but the district court

denied the request.

court entered

While the appeal was pending,

consent decree

on

August 28,

appeal, we granted appellants intervenor status.

the district

1991.

In

the

THE CONSENT DECREE

THE CONSENT DECREE
__________________

The consent decree established a timetable for a FMP or

an

amendment to the plan

would "eliminate
flounder

applicable to New

England waters that

the overfished condition of

stocks in

five years

cod and yellowtail

after implementation

and .

. .

eliminate the overfished condition of haddock stocks in ten years

after

implementation."

Mosbacher,
_________

C.A.

August 28, 1991)

that it

No.

Conservation Law Foundation, Inc.

___________________________________
91-11759-MA,

(consent decree).

"shall meet

slip
The

op.

at 2

. . . ."

Mass.,

decree expressly stated

all requirements established

statutes and regulations

(D.

v.

Id. at 2.
___

It

by applicable

directed that

-7-

the

New

England Council

develop the
timetable

would

groundfish rebuilding

have the

first

plan, but also

opportunity to

established a

for the Secretary to create and implement her own plan

if the council failed to act.

vacate the consent decree.

Appellants unsuccessfully moved to

This appeal followed.

DISCUSSION
DISCUSSION
__________
District courts must review
that it
decree

is "fair,
will not

authority;

896

F.2d

agency has

adequate, and reasonable;

violate the

[and] that

Congress . .

. ."

Durrett
_______

600, 604

proposed

statute or

with the

other

objectives of

v. Housing Authority of Providence,

________________________________

(1st Cir.

committed itself

settlement is

that the

Constitution, a

it is consistent

court must exercise some

that

a consent decree to ensure

1990).
to a

Where

an administrative

consent decree, the

district

deference to the agency's determination

appropriate,

F.T.C.
______

v. Standard Financial
___________________

Management Corp., 830 F.2d 404, 408 (1st Cir. 1987), and "refrain
________________
from

second-guessing the

Cannons Engineering Corp.,

__________________________

Executive Branch."
899

F.2d 79,

United States v.
______________

84

(1st Cir.

1990).

Moreover, "the court is not barred from entering a consent decree

merely

because

it might

statute] to do so after a

lack

authority

trial."

under [the

governing

Local No. 93, Int'l Ass'n of

_____________________________

Firefighters v. Cleveland, 478 U.S. 501, 525-26 (1986).

____________
_________
The Supreme
properly approve
and serve[s] to

Court has stated that

a consent decree
resolve a

district courts may

where (1) it

dispute within

"spring[s] from

the courts'

subject-

matter jurisdiction"; (2) it "come[s] within the general scope of

-8-

the

case made by the pleadings"; and (3) furthers the objectives

upon which the complaint

was based.

Id.
___

Therefore, the parties

enjoy wide latitude in terms of what they may agree to by consent

decree and have sanctioned by a court.
a strong and "clear policy in favor

Furthermore, we recognize

of encouraging settlements,"

especially in complicated regulatory settings.

Durrett, 896 F.2d

_______

at 604 (citation omitted); Cannon Engineering, 899 F.2d at 84.

__________________
We
vacate

review the district

consent

Engineering,
___________

899

decree
F.2d

at

for
84.

court's denial of
abuse

of

a motion to

discretion.

Additionally,

"[t]he

Cannon
______

doubly

required deference - district court to agency and appellate court

to district court - places a heavy burden on those who propose to

upset

the trial judge's approval of a

consent decree."

Id.
___

We

turn now to appellants' challenge to the decree.

Appellants contend that
improper rulemaking
of

an

decree

under the statute which

opportunity to
(1)

creates

the consent decree constitutes

comment.
a

new

They

standard

deprives the public

assert that
requiring

the consent

that

the

FMP

"eliminate" overfishing, whereas

National Standard One

mandates

"prevention" of overfishing while maintaining maximum sustainable

yield from

fisheries; (2) requires

timetable for

compliance not
"good

a rebuilding

present in

program and

the Magnuson Act;

establishes

faith" performance

standard

action; and

(4) constrains the Secretary's

for

(3)

Council

discretion under the

Act.
Appellants

essentially

maintain that

the Secretary's

-9-

action

with respect

to

Council-generated

FMPs, or

amendments

thereto, must follow the statutorily prescribed course of review,

as

set forth in

16 U.S.C.

Secretary notify the

1854(b),

which requires

that the

council of its reasons for disapproving any

portion of the plan and provide an opportunity for the council to

revise the plan.
essentially

Appellants also argue that the

is improper

Secretary to generate her

Appellants maintain
Council has failed
the

under

1854(c), which

consent decree

authorizes the

own plans under certain circumstances.

that the

Secretary may

not act

unless the

to issue a plan after a reasonable period, or

Secretary disapproves

of

some aspect

of

a plan

and

the

Council
has

fails to revise it.

occurred,

appellants

Because neither
contend

constitutes unlawful rulemaking.

is not free
decree,

that

rather must

wait

the

consent

decree

They allege that the Secretary

to by-pass the dictates of

but

1854(c) condition

for a

1854 through a consent

revised

amendment before

developing her own plan.

Appellants' challenge fails for three reasons.
in instances in

which the rights of third parties

for blocking the entry

must

of, or vacating, a consent

be a demonstrable injury

not party

to the decree.

threshold

showing is analogous

right

See Durrett, 896

___ _______

are the basis

decree, there

upon the group

F.2d at 604.

to the standing

This

requirement.

to intervene does not necessarily suffice to meet the test

for vacating a
failed

or adverse effect

First,

consent decree.

In this

case, appellants

have

to allege any specific injury to themselves, or any other

-10-

party.
without

The

district court denied

prejudice

to

renewal

appellants' motion to
for

precisely

Furthermore, appellants' suggestion that they

this

vacate

reason.

have been excluded

from

the development of the

plan is simply

will have ample opportunity to

by

untrue.

comment on the plan

Appellants

contemplated

the consent decree through their influence in the New England

Council,3
before

and through

final

rules

the notice
and

and comment

regulations

are

process required

promulgated

by

the

Secretary.
Second, the statutory argument based on
is

without merit.

authority

to

Section

generate

council

fails

to

1854(c)(1)(B) grants

her

partially disapproving a

1854(c)(1)(B)

own

plan,

after

the Secretary

disapproving

council-generated plan, only

submit

revision.

or

after the

Appellants

read

1854(c)(1)(B) as circumscribing the Secretary's authority in this

case,

because

amendment
represents

Conservation

four.

According

an improper

sued

alleging

to appellants,

exercise

by the

Council has not

been given

Thus, until the

New England Council fails

the

Secretary may

suggestion,
statutory

the

not act.

a chance to

If

not

illegality

the consent

revise amendment

the

four.

to propose revisions,

be able

her own

of

decree

Secretary because

we were to

Secretary would

discretion to develop

submits a plan.

the

follow appellants'
to

plan once

exercise her

the Council

The practical effect would permit the Council to

____________________

3
Apparently some members of the intervenor associations are on
the Council.
-11-

determine the timetable for developing and enforcing FMPs.

The language of the
appellants' interpretation.

statute, however, does not support

The statute authorizes the Secretary

to develop her own plan if the council fails to submit a plan, or

amendment

thereto,

1854(c)(1)(A).
Secretary may
any

further

Section

1854(c)(1)(B)

or amendment,

the

Thus, while
phrase

1854(c)(1)(A),

"after

to act or how much time

conclude that
subsections

that

a revised

the

plan or

are part of

statute and hold the

Council-generated
reasonable time.

the provision does

a

reasonable

not expressly
time,"

implicit.

Id. at
___

as

in

Without it, the

has failed

must pass before that decision maker can

the council has

the

case may be."

who decides when a Council

Secretary

failed to

act.

the same statutory

contrary reading would

that

U.S.C.

or partially disapproves

or disapproves

such a condition is

statute fails to indicate

hold

16

provides

revised plan or amendment, as the

include

the

time."

and the Council involved fails to submit a revised or

1854(c)(1)(B).

and a

reasonable

act if "[he] disapproves

such plan

amendment,

"within

Since

these two

grant of authority,

create an incomprehensible

Secretary hostage to
may generate

her

plans, if the council fails

gap in

the Councils, we
own

revisions

to

to revise after a

Our reading
who,

under

the

gives proper

Magnuson

Act,

deference to
is

ultimately

the Secretary,
charged

with

preventing overfishing as mandated by National Standard One.

councils

serve the Secretary

by presenting FMPs.

The

The Magnuson

-12-

Act also unequivocally vests the Secretary with the discretion to

determine

whether

Council's

progress

on

conservation

and

management is reasonable.
Furthermore,

contrary

to

appellants'

assertions,

section 1854(c)(1)(B) simply is not implicated in this case.

purpose

The

of the consent decree was to avoid a legal determination

whether amendment

four complied

with National Standard

One, or

whether the Secretary had discharged her statutory duty under the
Magnuson Act.
that

would

The decree sought to save limited agency resources

have

been

wasted

administrative record,

and

purposefully

admit

Secretary

did

not

on

discovery,

compiling

protracted litigation.
wrong-doing

on

the

The

mandates

the

creation

of

new

revision

of an old one - amendment four.

decree

part of

or the improper approval of amendment four.

amendment, rather

an

the

It merely
than

the

As the provisions in

1854(c)(1)(B)

related

to

revisions

do not

apply

section cannot be used as a shield to prevent

here,

that

the Secretary from

exercising her statutory discretion.

The third,
to the
that

and final, reason the

permissible scope of
because the

suit

decree cannot resolve

They

misstate the

appeal fails relates

consent decrees.

challenged amendment

Appellants argue
four, the

consent

matters beyond the terms of the amendment.

factual

scope

of Conservation's

complaint.

While it is true

that Conservation's original complaint attacked

the

approval

Secretary's

of

amendment four,

it

also

sought

broader relief - more vigorous conservation and management of New

-13-

England

fisheries.

decrees

clearly holds

In

any

that parties

terms of the complaint, and

matters,

event, the

law

are not

governing consent
restricted to

the

may enter a consent decree on

other

provided they have the legal authority to do so.

Local
_____

No. 93, 478 U.S. at 525-26.

______

In the present case, the Secretary simply has exercised

her discretion

to set a timetable

for the development

of a FMP

for

New

stated

England fisheries.

within the

Indeed,

the Secretary

has

in advance that she will exercise her authority to create

a plan pursuant to
FMP

Specifically,

1854(c)(1)(A), unless the Council develops a

"reasonable

it specifically

time" set

provides that

by

the consent

the New

decree.

England Council

attempt to create a FMP before the Secretary acts.

The Secretary

could have established the same schedule

without explicitly notifying the

entering a
time"

New England Council, or without

consent decree, since what

under

discretion.
Conservation's

the

statute
Instead,

law suit

is

solely

the

within

Secretary

with a

consent decree that agrees to

constitutes a "reasonable
the

chose

fair, adequate,

Secretary's
to

settle

and reasonable

flexible dates for the development

of a much needed FMP for New England.4

See Durrett, 896 F.2d at

___ _______

604.
In addition,

the district

court properly

entered the

____________________

4 The parties to the consent decree already have indicated that

the specific dates in the decree will be changed because the
Council has failed to meet the deadline and both agree more time
is necessary.
-14-

consent decree under

the

decree

jurisdiction

the other factors of Local No. 93.

_____________

resolved

of

court

the

Secretary's approval
pursuant to

dispute

of

1855(b).

within

the

the

suit

amendment four,

which

since

subject

First,

matter

challenged
was

Second, the parties agreed

the

reviewable

to develop a

fishery rebuilding program to prevent overfishing which remedy is

within

the

general scope

of the

exactly the relief requested.

of the complaint.
We
Appellants
commits

find

amounts

no

merit

to

appellants'

on

the fact

Secretary

to

develop

1851(a).

rulemaking

contrary, the decree

England Council

that
a

other

plan

This

establishing a

uses the word

new

to

yellowtail flounder

prevent what

has already

"eliminate"

stated in the

change, they assert,

standard.

On the

presently occurs.

occurred.

Thus,

present

overfishing,

and

New

overfishing of cod,

One cannot

the consent

establishes that a plan to rebuild will be developed in

"eliminate"

decree

"eliminate" because the

already has determined that

haddock, and

arguments.

the consent

than "prevent" overfishing as

Act, 16 U.S.C.
to

this is

Third, it satisfies the objectives

rely heavily

the

Indeed,

Local No. 93, 478 U.S. at 525-26.

____________

overfishing, rather
Magnuson

pleadings.

decree

order to

"prevent"

future

overfishing.
Similarly, we
that the
with

are

unmoved by

consent decree imposes

respect

to Council

appellants'

a new "good

action, which

is

contention

faith" requirement
not present

in the

Magnuson Act.

The "good faith" language of the consent decree is

-15-

superfluous and does not change the relationship between the

New

England Council and the Secretary in any respect.

As the consent

decree

discretion

states,

the

Secretary

determine whether the

begin developing
the
"The

language
long as

that

of the Act more

Environment v.
___________
(holding

the consent
certain

all are

decree mirror

to

in the

with it."
F.2d

that

Substantively,
those of

Decree

closely than others

Gorsuch, 718
_______
decree

program.

provisions

consistent

consent

sole

Council's failure to act requires that she

her own conservation

provisions of
fact

maintains

1854.

track

the

is irrelevant, so

Citizens for a Better

_______________________

1117, 1125

established

(D.C. Cir.
similar

1983)

timetable

judicially enforceable).

With respect to the five and ten year rebuilding goals,

the Secretary

has discretion

to establish such

target periods.

Section 1853(b)(10) provides that the Secretary may include "such

other measures,
are

determined

requirements, or conditions and

to

be

necessary

and

restrictions as

appropriate

for

the

conservation

and management

of

the fishery."

thus, has broad discretion concerning the

course,

the rebuilding

targets in

rules, but rather periods

The

Secretary,

contents of a FMP.

the consent

decree are

that may be incorporated into

Of

not

a final

rebuilding program contemplated by the consent decree.

The decree

expressly provides that the

provisions for

notice and comment by the New England Council and the public will
be

followed.

promulgate

Once

the Secretary

approves

regulations to enforce the plan.

a plan,

she

will

The consent decree,

-16-

therefore, does

not violate the notice

of the statute because

comment

and comment requirements

it creates no rule

is required.

Appellants will

for which notice

have an

and

opportunity to

voice their opinions on the plan.

Appellants'
court could not enter

last argument

contends that

the district

the decree because it lacked

jurisdiction

under 16 U.S.C.

1855(b) of the Magnuson Act, which provides for

judicial

review

only

actions.

The

claim

of regulations
is

without

and

merit.

determining whether the court properly

certain
The

secretarial

benchmark

for

exercised jurisdiction is

the

original complaint

challenged
district

amendment
court

had

filed

by Conservation.

four, among

other

jurisdiction

under

The

things.
1855(b)

complaint

Because
to

the

review

amendment four, the district court could enter the consent decree
because it resolved the

dispute within the standards established

by Local No. 93, 478 U.S. at 525-26.

____________

The district court's denial of the motion to vacate the

consent decree is affirmed.
________

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