ELR Citation: ELR 21064
No(s). 2:95cv1178 (E.D. Va. Feb 16, 1996)

The court holds that a moratorium imposed by the National Marine Fisheries Service (NMFS) on possessing and harvesting Atlantic Coast weakfish in the exclusive economic zone (EEZ) exceeds the authority granted to NMFS by the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act). The Act charges the Atlantic States Marine Fisheries Commission with developing a coastal fishery management plan. Atlantic Coastal Act §804(b)(1) provides that absent an approved and implemented fishery management plan under the Magnuson Fishery Conservation and Management Act, NMFS may implement regulations to govern fishing in the EEZ that are necessary to support the commission's coastal fishery management plan. The Act defines coastal fishery management plan as a plan that, among other things, recommends actions to be taken by the Secretary of Commerce in the EEZ to conserve and manage the fishery. The commission's original weakfish management plan made no mention of any recommended action. The court first holds that the complimentary measures the commission requested the Mid-Atlantic Fishery Management Council to take do not qualify as recommended actions under the Atlantic Coastal Act. The Mid-Atlantic Council is not the same as the Secretary, which is the term that the Act uses. The court next holds that in the absence of recommended actions, there exists no coastal fishery management plan within the meaning of the Act. Therefore, the Secretary is powerless to implement regulations necessary to support the effective implementation of the plan. The court rejects the Secretary's argument that Congress' failure to include in the Atlantic Coastal Act provisions that limit when the Secretary may develop a management plan absent a regional council recommendation signifies that the Secretary need not wait for the commission's recommendations. The court also holds that its interpretation of the statute does not cause to be superfluous §804(b)(1)'s language that the Secretary "may include" measures recommended by the commission in NMFS regulations. The language means that once the Secretary decides to implement regulations, he has the discretion to accept or reject the commission's proposals.

Counsel for Plaintiffs
Mark S. Davis
McGuire, Woods, Battle & Boothe
9000 World Trade Ctr.
101 W. Main St., Norfolk VA 23510
(804) 640-3700

Counsel for Defendant
Samuel D. Rauch III
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000