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 &amp; 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 &amp; 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
                                         

          Conservation  sued  the  Secretary  alleging  that  the

Secretary failed  to prevent  overfishing  off the  coast of  New

England, as  required by the Fishery  Management and Conservation

Act of  1976, as amended, 16  U.S.C.    1801-1882   (1985 &amp; Supp.

1992) ("Magnuson  Act").   Appellants sought  to intervene.   The

district  court  denied  the  request,  but  we   granted  it  in

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

Cir. 1992).  While  the appeal seeking intervention  was pending,

the district court entered  a consent decree between Conservation

and the Secretary.   Appellants  now seek to  vacate the  consent

decree  on  various grounds.    To fully  understand  the present

appeal, we  must briefly describe  the statutory context  to this

suit.

                       STATUTORY BACKGROUND
                                           

          Congress  enacted  the  Magnuson  Act  to  establish  a

                    

1  These  associations include:   Associated Fisheries of  Maine,
N.E.; Atlantic  Swordfish Net Ass'n, Inc.;  Massachusetts Inshore
Draggermen's   Ass'n,   Inc.;   and   Point   Judith  Fishermen's
Cooperative Ass'n, Inc.

                               -3-

comprehensive system  of fisheries  management for  waters within

the jurisdiction of the  United States.  16 U.S.C.    1801(b)(1).

In particular,  Congress found that  certain stocks  of fish  had

been so overfished that  their survival was threatened, id.  at  
                                                           

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

1851(a)(1). 

          To attain  these goals, the Act  creates eight regional

fishery management councils.   Id.  at   1852(a).   The  regional
                                  

councils are comprised of state and federal government officials,

as  well  as  individuals   nominated  by  state  executives  and

appointed by the Secretary.  Id. at   1852(b), (c).  The Magnuson
                                

Act  charges  the  Secretary  and the  Councils  with  developing

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

jurisdictions that require conservation  and management.  The Act

specifies the  procedures by which FMPs are developed and creates

a number of standards to which  the plans must conform.  National

Standard   One  requires  that   "[c]onservation  and  management

measures   shall  prevent  overfishing   while  achieving,  on  a

continuing  basis, the  optimum yield from  each fishery  for the

United  States  fishing industry."   Id.  at    1851(a)(1).   The
                                        

Secretary  has issued  guidelines  to assist  the development  of

plans by the regional councils.  See 50 C.F.R. pt. 602. 
                                    

          The  Act  provides  that  either the  councils  or  the

Secretary  can develop FMPs.  If a  council generates a plan, the

Secretary  must  follow  a  detailed  procedure  for  review,  as

specified in    1854(a), (b).   The Secretary  first reviews  the

                               -4-

plan for compliance with  statutory mandates and publishes notice

of the  plan in  the Federal  Register, soliciting  comments from

interested  persons.   After review,  the Secretary  may approve,

partially  approve, or  disapprove the  plan.   If  the Secretary

disapproves  or partially disapproves  of a plan  she must inform

the council of her reasons.  16 U.S.C.   1854(b)(2).  The council

may then  submit a revised plan,  id. at    1854(b)(3), which the
                                     

Secretary will review.

          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,  a  fishery  management  plan  for  such  fishery,  or  any
    

necessary  amendment to  such a  plan, if  such  fishery requires

conservation  and  management .  . .  ,"  id. at    1854(c)(1)(A)
                                             

(emphasis added); or (2)  "the Secretary disapproves or partially

disapproves any such plan or amendment,  or disapproves a revised

plan or amendment,  and the  Council involved fails  to submit  a

revised or further  revised plan  or amendment, as  the case  may

be."   Id. at   1854(c)(1)(B).  Under either statutory authority,
          

the  Secretary must submit the FMP to the appropriate council for

comments,  and publish  notice  of the  plan  and regulations  to

implement  the  plan  in   the  Federal  Register.    Id.   at   
                                                         

1854(c)(2)(A).   Before  the Secretary  implements the  plan, she

must consider the  comments of  the council and  the public,  and

ensure  compliance   with  the   national  standards.     Id.  at
                                                             

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

                               -5-

          Approved   FMPs   are   implemented    by   regulations

promulgated  by  the Secretary,  which  are  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
                                                           

          This case involves  the conservation and  management of

groundfish  off the  coast of  New England.2    In its  effort to

manage New England fisheries,  the New England Fishery Management

Council ("New England Council")  first eliminated foreign fishing

within its jurisdiction, 42 Fed. Reg. 13,998 (1977).  In 1985, it

developed the  Northeast  Multispecies Fisheries  Plan,  Proposed

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

problem.   The Secretary approved the plan  as an interim rule in

1986,  indicating  that  the   rule  improved  matters,  but  was

unsatisfactory  for   long  term  conservation   and  management.

Interim Rule, 51  Fed. Reg. 29,642, 29,643 (1986).   In 1987, the

rule became final and three amendments followed.  See Final Rule,
                                                     

52 Fed. Reg. 35,093  (1987) (amendment one); Final Rule,  54 Fed.

Reg.  4,798  (1989) (amendment  two);  Final Rule,  54  Fed. Reg.

52,803 (1989) (amendment three).

          The  Rule   and  its   amendments  did  not   eliminate

overfishing as required  by National Standard  One.  Pursuant  to

the Secretary's  guidelines on  what constitutes  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  and drafted  amendment four  to redress

that problem.   The Secretary partially  approved amendment four,

56 Fed. Reg.  24,724 (1991), but  found the amendment  deficient,

stating  that  it  did  "not  constitute  a  complete  rebuilding

strategy . . . ."  Id. at 24,725. 
                      

          In response  to amendment  four, Conservation sued  the

Secretary, complaining that she  had arbitrarily and capriciously

approved  the amendment and that the overall FMP failed to comply

with  National Standard  One.   Thereafter, Conservation  and the

Secretary began  negotiations to enter a  consent decree settling

the  suit.  Appellants sought to intervene but the district court

denied the request.   While the appeal was pending,  the district

court entered  a  consent decree  on  August 28,  1991.   In  the

appeal, we granted appellants intervenor status.

                        THE CONSENT DECREE
                                          

          The consent decree established a timetable for a FMP or

an  amendment to the plan  applicable to New  England waters that

would "eliminate  the overfished condition of  cod and yellowtail

flounder  stocks in  five years  after implementation  and .  . .

eliminate the overfished condition of haddock stocks in ten years

after  implementation."   Conservation  Law  Foundation, Inc.  v.
                                                             

Mosbacher,  C.A.  No.  91-11759-MA,  slip  op.  at 2  (D.  Mass.,
         

August 28, 1991)  (consent decree).  The  decree expressly stated

that it  "shall meet  all requirements established  by applicable

statutes and regulations  . . . ."   Id. at 2.  It  directed that
                                        

                               -7-

the  New  England Council  would  have the  first  opportunity to

develop the  groundfish rebuilding  plan, but also  established a

timetable  for the Secretary to create and implement her own plan

if the council failed to act.  Appellants unsuccessfully moved to

vacate the consent decree.  This appeal followed.

                            DISCUSSION
                                      

          District courts must review  a consent decree to ensure

that it  is "fair,  adequate, and reasonable;  that the  proposed

decree  will not  violate the  Constitution, a  statute or  other

authority;  [and] that  it is consistent  with the  objectives of

Congress . .  . ."  Durrett  v. Housing Authority of  Providence,
                                                                

896  F.2d  600, 604  (1st Cir.  1990).   Where  an administrative

agency has  committed itself  to a  consent decree, the  district

court must exercise some  deference to the agency's determination

that  settlement is  appropriate,  F.T.C.  v. Standard  Financial
                                                                 

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

from  second-guessing the  Executive Branch."   United  States v.
                                                              

Cannons  Engineering Corp.,  899  F.2d 79,  84  (1st Cir.  1990).
                          

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

merely  because  it might  lack  authority  under [the  governing

statute] to do so after a  trial."  Local No. 93, Int'l  Ass'n of
                                                                 

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

          The Supreme  Court has stated that  district courts may

properly approve  a consent decree  where (1) it  "spring[s] from

and serve[s] to  resolve a  dispute within  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.  Furthermore, we recognize

a strong and "clear policy in favor  of encouraging settlements,"

especially in complicated regulatory settings.  Durrett, 896 F.2d
                                                       

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

          We  review the district  court's denial of  a motion to

vacate  a  consent  decree  for  abuse  of  discretion.    Cannon
                                                                 

Engineering,  899  F.2d  at  84.    Additionally,  "[t]he  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  the consent decree constitutes

improper rulemaking  under the statute which  deprives the public

of  an  opportunity to  comment.   They  assert that  the consent

decree  (1)  creates  a  new  standard  requiring  that  the  FMP

"eliminate" overfishing, whereas  National Standard One  mandates

"prevention" of overfishing while maintaining maximum sustainable

yield from  fisheries; (2) requires  a rebuilding  program and  a

timetable for  compliance not  present in  the Magnuson Act;  (3)

establishes  a  "good  faith" performance  standard  for  Council

action; and  (4) constrains the Secretary's  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.    1854(b),  which requires  that the

Secretary notify the  council of its reasons for disapproving any

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

revise the plan.   Appellants also argue that the  consent decree

essentially  is improper  under    1854(c), which  authorizes the

Secretary to generate her  own plans under certain circumstances.

Appellants maintain  that the  Secretary may  not act  unless the

Council has failed  to issue a plan after a reasonable period, or

the  Secretary disapproves  of  some aspect  of  a plan  and  the

Council  fails to revise it.  Because neither   1854(c) condition

has  occurred,  appellants   contend  that  the   consent  decree

constitutes unlawful rulemaking.   They allege that the Secretary

is not free  to by-pass the dictates of    1854 through a consent

decree,  but  rather must  wait  for a  revised  amendment before

developing her own plan.

          Appellants' challenge fails for three reasons.   First,

in instances in  which the rights of third parties  are the basis

for blocking the entry  of, or vacating, a consent  decree, there

must  be a demonstrable injury  or adverse effect  upon the group

not party  to the decree.   See Durrett, 896  F.2d at 604.   This
                                       

threshold  showing is analogous  to the standing  requirement.  A

right  to intervene does not necessarily suffice to meet the test

for vacating a  consent decree.   In this  case, appellants  have

failed  to allege any specific injury to themselves, or any other

                               -10-

party.  The  district court denied  appellants' motion to  vacate

without  prejudice   to  renewal   for  precisely   this  reason.

Furthermore, appellants' suggestion that they  have been excluded

from  the development of the  plan is simply  untrue.  Appellants

will have ample opportunity to  comment on the plan  contemplated

by  the consent decree through their influence in the New England

Council,3  and through  the notice  and comment  process required

before  final  rules  and  regulations  are  promulgated  by  the

Secretary.

          Second, the statutory argument based on   1854(c)(1)(B)

is  without merit.   Section  1854(c)(1)(B) grants  the Secretary

authority  to  generate  her  own  plan,  after  disapproving  or

partially disapproving a  council-generated plan, only  after the

council  fails  to  submit  a   revision.    Appellants  read    

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

case,  because  Conservation  sued  alleging  the  illegality  of

amendment  four.   According  to appellants,  the consent  decree

represents  an improper  exercise  by the  Secretary because  the

Council has not  been given  a chance to  revise amendment  four.

Thus, until the  New England Council fails  to propose revisions,

the  Secretary may  not act.   If  we were to  follow appellants'

suggestion,  the  Secretary would  not  be able  to  exercise her

statutory  discretion to develop  her own  plan once  the Council

submits a plan.  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  statute, however, does not support

appellants' interpretation.  The statute authorizes the Secretary

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

amendment  thereto,  "within  a  reasonable  time."    16  U.S.C.

  1854(c)(1)(A).     Section  1854(c)(1)(B)  provides   that  the

Secretary may  act if "[he] disapproves  or partially disapproves

any  such plan  or amendment,  or disapproves  a revised  plan or

amendment,  and the Council involved fails to submit a revised or

further  revised plan or amendment, as the  case may be."  Id. at
                                                              

  1854(c)(1)(B).   Thus, while  the provision does  not expressly

include   the   phrase  "after   a   reasonable   time,"  as   in

  1854(c)(1)(A),  such a condition is  implicit.  Without it, the

statute fails to indicate  who decides when a Council  has failed

to act or how much time  must pass before that decision maker can

conclude that  the council has  failed to  act.  Since  these two

subsections  are part of  the same statutory  grant of authority,

and a  contrary reading would  create an incomprehensible  gap in

the  statute and hold the  Secretary hostage to  the Councils, we

hold  that  the  Secretary  may generate  her  own  revisions  to

Council-generated  plans, if the council fails  to revise after a

reasonable time.  

          Our reading  gives proper  deference to  the Secretary,

who,  under   the  Magnuson  Act,  is   ultimately  charged  with

preventing overfishing as mandated by National Standard One.  The

councils  serve the Secretary  by presenting FMPs.   The Magnuson

                               -12-

Act also unequivocally vests the Secretary with the discretion to

determine  whether  a  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.  The

purpose  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.  The decree sought to save limited agency resources

that  would   have  been   wasted  on  discovery,   compiling  an

administrative record,  and  protracted litigation.   The  decree

purposefully  did  not  admit  wrong-doing  on  the  part of  the

Secretary  or the improper approval of amendment four.  It merely

mandates  the  creation  of  a  new  amendment, rather  than  the

revision  of an old one - amendment four.  As the provisions in  

1854(c)(1)(B)  related  to  revisions  do not  apply  here,  that

section cannot be used as a shield to prevent  the Secretary from

exercising her statutory discretion.

          The third,  and final, reason the  appeal fails relates

to the  permissible scope of  consent decrees.   Appellants argue

that  because the  suit  challenged amendment  four, the  consent

decree cannot resolve  matters beyond the terms of the amendment.

They  misstate the  factual  scope  of Conservation's  complaint.

While it is true  that Conservation's original complaint attacked

the  Secretary's  approval  of  amendment four,  it  also  sought

broader relief - more vigorous conservation and management of New

                               -13-

England  fisheries.   In  any  event, the  law  governing consent

decrees  clearly holds  that parties  are not  restricted to  the

terms of the complaint, and  may enter a consent decree on  other

matters,  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  England fisheries.    Specifically,  the Secretary  has

stated  in advance that she will exercise her authority to create

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

FMP  within the  "reasonable  time" set  by  the consent  decree.

Indeed,  it specifically  provides that  the New  England Council

attempt to create a FMP before the Secretary acts.  

          The Secretary  could have established the same schedule

without explicitly notifying the  New England Council, or without

entering a  consent decree, since what  constitutes a "reasonable

time"  under  the  statute   is  solely  within  the  Secretary's

discretion.      Instead,   the   Secretary   chose   to   settle

Conservation's  law suit  with a  fair, adequate,  and reasonable

consent decree that agrees to  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 other factors of Local  No. 93.  First,
                                                        

the  decree   resolved  a  dispute  within   the  subject  matter

jurisdiction  of   the  court  since  the   suit  challenged  the

Secretary's approval  of  amendment four,  which  was  reviewable

pursuant to    1855(b).  Second, the parties agreed  to develop a

fishery rebuilding program to prevent overfishing which remedy is

within  the  general scope  of the  pleadings.   Indeed,  this is

exactly the relief requested.  Third, it satisfies the objectives

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

          We  find  no  merit  to  appellants'  other  arguments.

Appellants  rely heavily  on  the fact  that  the consent  decree

commits  the   Secretary  to   develop  a  plan   to  "eliminate"

overfishing, rather  than "prevent" overfishing as  stated in the

Magnuson  Act, 16 U.S.C.     1851(a).  This  change, they assert,

amounts  to  rulemaking  establishing a  new  standard.    On the

contrary, the decree  uses the word  "eliminate" because the  New

England Council  already has determined that  overfishing of cod,

haddock, and  yellowtail flounder  presently occurs.   One cannot

prevent what  has already  occurred.   Thus,  the consent  decree

establishes that a plan to rebuild will be developed in  order to

"eliminate"   present   overfishing,    and   "prevent"    future

overfishing.

          Similarly, we  are  unmoved by  appellants'  contention

that the  consent decree imposes  a new "good  faith" requirement

with  respect  to Council  action, which  is  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  states,  the  Secretary  maintains   sole  discretion  to

determine whether the  Council's failure to act requires that she

begin developing  her own conservation  program.   Substantively,

the  provisions of  the consent  decree mirror  those of    1854.

"The  fact  that  certain  provisions  in the  Decree  track  the

language  of the Act more  closely than others  is irrelevant, so

long as  all are  consistent  with it."   Citizens  for a  Better
                                                                 

Environment v.  Gorsuch, 718  F.2d  1117, 1125  (D.C. Cir.  1983)
                       

(holding  consent  decree  that  established   similar  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,  requirements, or conditions and  restrictions as

are  determined   to  be   necessary  and  appropriate   for  the

conservation  and management  of  the fishery."   The  Secretary,

thus, has broad discretion concerning the  contents of a FMP.  Of

course,  the rebuilding  targets in  the consent  decree are  not

rules, but rather periods  that may be incorporated into  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.   Once  the Secretary  approves  a plan,  she  will

promulgate  regulations to enforce the plan.  The consent decree,

                               -16-

therefore, does  not violate the notice  and comment requirements

of the statute because  it creates no rule  for which notice  and

comment  is required.    Appellants will  have an  opportunity to

voice their opinions on the plan.

          Appellants'  last argument  contends that  the district

court could not enter  the decree because it lacked  jurisdiction

under 16 U.S.C.   1855(b) of the Magnuson Act, which provides for

judicial  review  only  of regulations  and  certain  secretarial

actions.   The  claim  is  without  merit.    The  benchmark  for

determining whether the court properly  exercised jurisdiction is

the  original complaint  filed  by Conservation.   The  complaint

challenged  amendment  four, among  other  things.   Because  the

district  court  had  jurisdiction  under     1855(b)  to  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.
                          

                               -17-
