ELR Citation: ELR 21474
No(s). s. 91-1629, -1710 (1st Cir. Jul 22, 1992)

The court holds that a Massachusetts regulation prohibiting vessels that exceed 90 feet from fishing in Massachusetts waters is not preempted by federal law or unconstitutional, and vacates a district court injunction against enforcement by the Massachusetts Division of Marine Fisheries (MDMF) of a provision in a vessel's fishery permit limiting the amount of loligo squid that the vessel could process to 250 metric tons. The MDMF barred the vessel from fishing for loligo squid in 1990 in Nantucket and Vineyard Sounds because the vessel exceeded the state regulation's length limit by six inches, and included the 250-metric-ton limit in a permit issued to the vessel for at-sea processing in the spring of 1991. The court first holds that the federal Fishery Conservation and Management Act (FCMA) does not preempt Massachusetts regulatory authority with respect to Massachusetts off-shore waters, because §306(a) of the Act expressly confirms state regulatory authority. The court holds that the 90-foot limitation does not violate the Commerce Clause of the U.S. Constitution, because the regulation does not burden interstate commerce. It applies to all fishing vessels, wherever berthed, and Massachusetts fishing vessels longer than 90 feet greatly outnumber out-of-state vessels. The court holds that the record supports the district court's conclusions that the 90-foot limitation is a proper regulation of the means of catching fish and is reasonably related to conservation of the fishery. Accordingly, the court holds that the regulation is not clearly excessive in relation to the putative local benefits. The court next holds that the regulation does not violate the Equal Protection Clause of the U.S. Constitution, because it applies to all fishing vessels, far more Massachusetts vessels than out-of-state vessels are longer than 90 feet, a number of Massachusetts fishing vessels over 90 feet long can be converted to squid fishing, and the MDMF's exception for purse seine vessels has benefitted out-of-state fishermen. Finally, the court holds that the regulation does not violate the Privileges and Immunities Clause of the U.S. Constitution, because the regulation does not differentiate among fishing vessels on the basis of the states in which they are berthed or the states of citizenship, residence, or incorporation of the vessels' owners.

Turning to the 250-metric-ton processing limitation, the court holds that the FCMA does not preempt Massachusetts' exercise of regulatory authority over the harvesting and at-sea processing of fish in Nantucket and Vineyard Sounds. The court finds that the record shows that the MDMF's concern for shore-based processors was not confined to Massachusetts enterprises, and that there is scant evidence on whether limitations on at-sea processing of squid are needed in order to insure that shore-based processors will remain in business to handle fish species other than squid. Accordingly, the court remands to the district court for further proceedings with respect to the 250-metric-ton limitation.

A dissenting judge would not uphold the 90-foot limitation or vacate the district court's decision on the 250-metric-ton limitation, because the 90-foot limitation burdens interstate commerce and the 250-metric-ton limitation discriminates against out-of-state interests.

Counsel for Appellants
Ronald R. Coles
P.O. Box 1028, Kennebunk ME 04043
(207) 985-6561

Counsel for Appellees
Donald H. Wilkins, Ass't Attorney General
Attorney General's Office
One Ashburton Pl., 20th Fl., Boston MA 02108
(617) 727-2800

(Before Selya and Coffin), JJ.