
USCA1 Opinion

	




          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 & 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 & 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                                  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 & 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                                 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                 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                                  __________________                    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                                      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-
