ELR Citation: ELR 20526
No(s). 85-5180 (3d Cir. Mar 26, 1986)

The court holds that defendant violated the Fishery Conservation and Management Act (FCMA) by refusing two National Marine Fisheries Service agents access to inspect his catch and by physically threatening one of them, and upholds an assessment against defendant of $50,000 in civil penalties. The court first holds that the district court property concluded that the administrative law judge's (ALJ's) decision holding defendant liable for violating two regulations was supported by substantial evidence. Defendant conceded that he had refused to let the agents climb a platform from which they could inspect his catch and that the platform fell within the meaning of the regulation making it unlawful to refuse access to an "area of custody." The court rejects defendant's argument that standing at the top of ladder was not sufficient to constitute a refusal of access. The court also rejects defendant's argument that the ALJ erred in finding that defendant violated the regulation making it unlawful to forcefully resist an inspection since there was no actual physical confrontation. The agents testified that defendant's manner and speech were threatening, and defendant himself testified that he acted aggressively and in a physically threatening manner. The court next rules that the common law of merger does not apply to the ALJ's imposition of two fines, one for each violation. After initially noting that the doctrine has largely been repudiated, the court concludes that defendant's argument is more one of double jeopardy. Even if the issue is one of double jeopardy, however, the two fines are valid. The two violations require proof of different facts; the first requires proof that an enforcement agent was denied access to conduct an inspection and the second requires evidence of force or the threat of force.

The court holds that the regulations do not violate the Fourth Amendment's prohibition against unreasonable searches and seizures. The court first rules that the scope of the regulations, allowing for warrantless inspections of areas beyond the confines of the fishing vessel, is within the authority granted to the Secretary of Commerce under the FCMA. Limiting officials to warrantless searches of vessels only would hamper effective enforcement, since on-the-spot inspections are necessary in a business where no specific hours are kept and those intending to violate the Act could do so with impunity once the fish have reached the dock. Although §311 of the Act only explicitly authorizes warrantless inspections of fishing vessels, the Secretary reasonably determined that dock area inspections might be necessary in order to comply with the Act's management provisions. The legislative history also supports this conclusion. The court rules that the warrantless search as authorized by the regulations are reasonable within the meaning of the Fourth Amendment. Defendant had no reasonable expectation of privacy in his dock area during the unloading of a catch from his fishing vessel, since commercial property is treated differently from an individual's home and the fishing industry has historically been subject to heavy regulation. Given the strong federal interest in protecting the nation's fishery resources, the regulations, including the provision for warrantless searches of dock areas, are reasonable. It would be next to impossible for agents to obtain search warrants for such areas, since fish are perishable and the agents do not always know where a fishing vessel will dock. Finally, the regulations do not invite unnecessary intrusions on privacy. Inspecting officials are limited to authorized agents, inspections may take place only when and where groundfish may be found, and fines may only be imposed for FCMA violations.

The court holds that defendant's First Amendment rights have not been violated, since he was not punished for exercising his right to free speech. The court also holds that the ALJ did not abuse his discretion by imposing a greater penalty than that sought by the government.

A dissent would hold that there was sufficient evidence to support the ALJ's finding that defendant violated the regulation prohibiting forceful resistance to inspections.

Counsel for Appellant
Marlene Lynch Ford
Ford & Berkowitz
P.O. Box 1980, 201 Arnold Ave., Point Pleasant Beach NJ 08742
(201) 899-1208

Counsel for Appellees
F. Henry Habicht II, Ass't Attorney General; Roger J. Marzulla, Deputy Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2716

Thomas W. Greelish, U.S. Attorney
Federal Bldg., 970 Broad St., Rm. 502, Newark NJ 07102
(201) 645-2155

Irene Dowdy, Ass't U.S. Attorney
402 E. State St., Rm. 265, Trenton NJ 08608
(609) 989-2190

Linda I. Marks, Charles J. Juliand
National Oceanic & Atmospheric Administration
14th St. & Constitution Ave. NW, Washington DC 20230
(202) 377-2000

Before Garth and Fullam, JJ.