ELR Citation: ELR 20873
No(s). 92-2029 (1st Cir. Mar 30, 1993)

The court denies a motion by intervening fishing associations to vacate a consent decree between the Secretary of Commerce and an environmental group under the Magnuson Fisheries Conservation and Management Act (MFCMA). The MFCMA requires regional fishery management councils to promulgate fishery management plans (FMPs) to prevent overfishing. If a council fails to develop the FMP or revise it after the secretary has disapproved it, the secretary is authorized to develop the FMP herself. The environmental group sued the secretary alleging that she had arbitrarily and capriciously approved the New England regional FMP for cod, yellowtail flounder, and haddock. The secretary subsequently entered into a consent decree with the group which set forth timetables for establishing an FMP to eliminate overfishing in New England waters, which the intervening fishing associations appealed. The court first notes that there is a strong policy in favor of encouraging settlements, especially in complicated regulatory settings. The court holds that the right of a party to intervene in a proceeding does not necessarily suffice to meet the test for vacating a consent decree. The fishing associations failed to show a demonstrable injury or adverse effect resulting from the decree, and they will have ample opportunity to comment on the FMP before final rules are promulgated by the secretary.

The court next holds that the MFCMA contains an implied condition that the council revise the FMP within a reasonable time, and that the secretary is entitled to generate her own revisions if the council fails to do so. Additionally, the secretary is not required to allow the regional council to revise the challenged portions of the FMP in this case because the environmental group is asking for an entirely new amendment, not a revision to the existing one. The court holds that the consent decree may validly resolve matters that are beyond the scope of the original complaint provided the matters are within the secretary's legal authority. Because the secretary could have established the same schedule that the consent decree contains once she found that the council failed to act within a reasonable time, the choice of a consent decree to achieve the same end is permissible. The district court properly entered the consent decree because the decree resolved a dispute within the court's subject matter jurisdiction and the remedy was within the general scope of the pleadings. The timetables established are within the secretary's discretion. The decree does not violate the notice and comment requirements of the statute, because it requires notice and comment by its terms and the secretary will establish actual regulations by normal procedures.

Counsel for Plaintiffs
Peter A. Appel
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Ralph J. Gillis
Gillis & Angley
160 Old Derby St., Hingham MA 02043
(617) 749-2432

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.