TUTEIN v. DALEY

43 F. Supp.2d 113 (1999) | Cited 0 times | D. Massachusetts | March 17, 1999

ORDER RE: DEFENDANT'S MOTION TO DISMISS (DOCKET ENTRY # 9); MOTION OF THE NATIONAL AUDUBON SOCIETY TO INTERVENE AS A DEFENDANT

(DOCKET ENTRY # 16)

Plaintiffs, five New England commercial fishermen of AtlanticBluefin Tuna ("ABT"), seek declaratory and injunctive reliefagainst defendant William M. Daley, Secretary of the Departmentof Commerce ("the Secretary"). Plaintiffs complain that theSecretary acted in an arbitrary and capricious manner as well asoutside his statutory authority by issuing a May 1, 1998guideline and by declaring ABT "overfished" based on stock sizeas opposed to fishing mortality rates. Plaintiffs assert claimsunder the Magnuson Fishery Conservation and Management Act ("theMagnuson Act"), as amended by the Sustainable Fisheries Act of1996 ("the SFA"), 16 U.S.C. § 1801 et seq. (collectively: "theMagnuson-Stevens Act"), and the Administrative Procedure Act("the APA"), 5 U.S.C. § 702 & 706. In a three countcomplaint, plaintiffs additionally claim that the Secretaryviolated the Regulatory Flexibility Act ("the RFA"), 5 U.S.C. § 601-612.

The Secretary moves to dismiss all counts for lack of subjectmatter jurisdiction. With respect to Count I under theMagnuson-Stevens Act and the APA, the Secretary contends that theMagnuson-Stevens Act precludes, by implication, judicial reviewof the May 1, 1998 advisory guideline notwithstanding the APA'sgeneral provisions for judicial review of agency actions. TheSecretary also asserts that all three counts are not ripe forreview because the Secretary has yet to promulgate finalregulations implementing a fishery management plan ("an FMP")with respect to ABT. (Docket Entry 10 & 15). Plaintiffs takeissue with both arguments. (Docket Entry # 13).

After hearing arguments on the motion to dismiss (Docket Entry# 9) and a motion to intervene filed by the National AudubonSociety ("NAS") (Docket Entry # 16) at the December 2, 1998hearing, this court took the motions under advisement.

I. DEFENDANT'S MOTION TO DISMISS (DOCKET ENTRY # 9)

PROCEDURAL BACKGROUND AND RELEVANT DEFINITIONS

Count I seeks to invalidate an advisory guideline published asa "Final Rule" in the Federal Register, 50 C.F.R. § 600.310(d),on May 1, 1998. The guideline1 further defined the terms"overfishing" and "overfished" set forth in the SFA,16 U.S.C. § 1802(29). Unlike the prior legislation, the SFA, signed into lawin October 1996, contains an express definition of the terms"overfishing" and "overfished." It reads as follows:

The terms "overfishing" and "overfished" mean a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis.

16 U.S.C. § 1802(29).

On May 1, 1998, the Secretary, acting through the NationalMarine Fisheries Service ("the NMFS") and the National Oceanicand Atmospheric Administration ("NOAA"), issued revised as wellas new guidelines for eight of the ten national standards forfishery management and conservation set forth in theMagnuson-Stevens Act. In order to assist in the development ofFMPs and regulations as well as to implement the October 1996amendments to the Magnuson Act, which resulted in the SFA, theNMFS and NOAA extensively amended 50 C.F.R. part 600 on May 1,1998. 63 Fed.Reg. 24212 (1998). With respect to national standardone,2 the NMFS and NOAA amended the existing guideline byissuing a twofold definition of "overfished" based: (1) on therate or level of fishing mortality; and (2) on the small size ofa stock or stock complex. As promulgated, the definition,which plaintiffs contend is ultra vires, reads as follows:

(D) Overfishing —

(1) Definitions.

(i) "To overfish" means to fish at a rate or level that jeopardizes the capacity of a stock or stock complex to produce MSY on a continuing basis. . . .

(iii) In the Magnuson-Stevens Act, the term "overfished" is used in two senses: First, to describe any stock or stock complex that is subjected to a rate or level of fishing mortality meeting the criterion in paragraph (d)(1)(i) of this section, and second, to describe any stock or stock complex whose size is sufficiently small that a change in management practices is required in order to achieve an appropriate level and rate of rebuilding.

50 C.F.R. § 600.310(d) (emphasis added). In Count I, plaintiffscontend that the emphasized definition of "overfished" in termsof stock size, as opposed to fishing mortality rate, is arbitraryand capricious and exceeds the Secretary's statutory authority.

In Count II, plaintiffs object to the Secretary listingABT3 as overfished in a September 1997 report to Congress.Asserting that the listing was arbitrary and capricious as wellas outside the Secretary's statutory authority, plaintiffs seekjudicial review under the APA, 5 U.S.C. § 702, 706(2)(A) &706(2)(C).

The SFA requires the Secretary to "report annually to Congress. . . and identify those fisheries that are overfished or areapproaching a condition of being overfished."16 U.S.C. § 1854(e)(1). The Secretary, acting through NMFS, issued its firstreport under the SFA to Congress in September 1997. The reportextensively catalogues 86 species as overfished, 193 species asnot overfished, ten species as approaching an overfishedcondition and the remaining 448 species as unknown. Therein, theSecretary classified ABT as overfished based on its stock sizeusing criteria from the 1995 edition of Our Living Oceans("OLO"), a report issued by the United States Department ofCommerce, NOAA and NMFS.4

In Count III, plaintiffs maintain that the RFA required theSecretary to prepare an initial and a final regulatoryflexibility analysis vis-a-vis the May 1, 1998 guideline. See5 U.S.C. § 603 & 604. The Assistant General Counsel forLegislation and Regulation of the Department of Commerce,however, certified that the May 1, 1998 guideline would not havea significant impact upon a substantial number of small entities.63 Fed.Reg. 24228-24229 (1998). Hence, no regulatory analyseswere prepared. See 5 U.S.C. § 605(b). Plaintiffs disagree withthis determination. Under the RFA's judicial review provision,5 U.S.C. § 611(a)(1) & 611(a)(4), plaintiffs seek to defer anyfurther implementation of the May 1, 1998 guideline until theSecretary performs the required regulatory analyses and therebycomplies with the RFA.

STATUTORY FRAMEWORK

Beginning at the international level, in 1969 the United Statesjoined other signatory nations to the International Conventionfor Conservation of Atlantic Tunas ("ICCAT"). MassachusettsAudubon Society,Inc. v. Daley, 31 F. Supp.2d 189, 192 (D.Mass. 1998). ABTmigrates over broad oceanic areas thereby generating a need forinternational conservation efforts. (Docket Entry # 11, Ex. 306,p. 53). To carry out the Convention, the ICCAT established anInternational Commission for the Conservation of Atlantic Tunas("the Commission"). Massachusetts Audubon Society, Inc. v.Daley, 31 F. Supp.2d at 192. Since 1982, the Commission has setand established ABT quotas by country. (Docket Entry # 11, Ex.306, p. 53; Docket Entry # 1, ¶ 5).

In 1998 the total allowable catch for ABT allocated to theUnited States was 1,344 metric tons. (Docket Entry # 1, ¶ 62).The United States implements the ICCAT and the Commission'sharvesting recommendations through the Atlantic Tunas ConventionAct ("ATCA"), 16 U.S.C. § 971-971i. Under Article VIII of theICCAT, the Commission's suggested harvesting recommendationsbecome binding upon signatory nations such as the United Stateswithin six months, absent an objection accepted by theICCAT.5 Center for Marine Conservation v. Brown, 1993 WL108944 at * 1 (D.D.C. March 29, 1993). "Section 971d of ATCAmakes the quotas proposed by the Commission binding on the UnitedStates." Center for Marine Conservation v. Brown, 1993 WL108944 at * 1 (D.D.C. March 29, 1993).

Under ATCA, the Secretary has the authority to promulgate "suchregulations as may be necessary and appropriate to carry out" therecommendations of the Commission. 16 U.S.C. § 971d(c)(1)(A).Such regulations may "limit the size of the fish and quantity ofthe catch" taken from a particular area.16 U.S.C. § 971d(c)(3)(D). ATCA regulations, codified at 50 C.F.R. § 285.1et seq., cannot "have the effect of increasing or decreasingany allocation or quota of fish or fishing mortality level"recommended by the Commission and agreed to by the United States.16 U.S.C. § 971d(c)(3); Massachusetts Audubon Society, Inc. v.Daley, 31 F. Supp.2d at 193. Such regulations must also beconsistent with FMPs implemented under the Magnuson-Stevens Act.16 U.S.C. § 971d(c)(1)(C).

In addition to ATCA, the Secretary has authority to manage ABTunder the Magnuson-Stevens Act. Massachusetts Audubon Society,Inc. v. Daley, 31 F. Supp.2d at 192. In particular, the SFAamended the Magnuson Act to expressly give the Secretary"authority over any highly migratory species fishery."616 U.S.C. § 1852(a)(3). The SFA defines "highly migratory species"as tuna, i.e., ABT. 16 U.S.C. § 1802(20).

In general, the Magnuson-Stevens Act established "eightregional fishery management councils, each of which has theresponsibility for fashioning [an FMP] to regulate commercialfishing within a particular geographic region." AssociatedFisheries of Maine, Inc. v. Daley, 127 F.3d 104, 107 (1st Cir.1997);7 16 U.S.C. § 1852. FMPs may be prepared by a regionalcouncil, see 16 U.S.C. § 1852(h), or by the Secretary, see16 U.S.C. § 1854(c)(1) & 1854(g). When developed by a council, thecouncil prepares the FMP and submits itto the Secretary for review together with any proposedimplementing regulations. 16 U.S.C. § 1852(h) & 1853(c)(1). TheSecretary must then evaluate the FMP for consistency with the tennational standards in section 1851(a) and "any other applicablelaw," such as the RFA or ATCA. 16 U.S.C. § 1854(a)(1)(A). AllFMPs, whether developed by a council or by the Secretary, must beconsistent with the ten national standards in theMagnuson-Stevens Act, any regulations implementingrecommendations of the Commission "and any other applicable law,"such as the RFA. 16 U.S.C. § 1853(a)(1)(C).

Likewise, the Secretary must evaluate any proposed regulationsubmitted by a council for consistency with the accompanying FMP.16 U.S.C. § 1854(b)(1). If the Secretary approves the proposedregulation, he must publish it in the Federal Register.Otherwise, the Secretary must allow the council an opportunity torevise the proposed regulation and resubmit a revised proposedregulation for further review. 16 U.S.C. § 1854(b). Onceimplemented, these regulations, as well as those proposed andpublished by the Secretary as discussed supra, are then subjectto judicial review. 16 U.S.C. § 1855(f).

Under the Magnuson-Stevens Act, the Secretary has the exclusiveauthority to prepare and implement FMPs for highly migratoryspecies such as the ABT. 16 U.S.C. § 1852(a)(3) & 1854(g). Inthe course of developing an FMP for a highly migratory species,the Secretary must consult and consider the views of any affectedcouncil, any advisory group appointed under ATCA, and theadvisory panel established by the Secretary under section1852(g).8 16 U.S.C. § 1854(g)(1)(A). The Secretary must alsoconduct public hearings in order to "allow interested persons anopportunity to be heard" both with respect to the FMP and "anyregulations implementing the plan." 16 U.S.C. § 1854(c)(2)(A);16 U.S.C. § 1854(g)(1)(A) (stating that the Secretary must preparethe FMP in accordance with subsection (c)). Once the Secretaryprepares the proposed FMP, he must immediately publish a noticein the Federal Register stating that the FMP is available andinviting written comments from any interested person within a 60day period. 16 U.S.C. § 1854(c)(4)(B). After the close of the 60day period and after considering the aforementioned comments, theSecretary "may adopt" the FMP. 16 U.S.C. § 1854(c)(5).

FMPs governing highly migratory species must be consistent withthe ten national standards. 16 U.S.C. § 1851(a). In preparing andimplementing an FMP of a highly migratory species, the Secretarymust also evaluate the effects of the conservation efforts uponthe affected fisheries "and minimize, to the extent practicable,any disadvantage to United States fishermen in relation toforeign competitors." 16 U.S.C. § 1854(g)(1)(C). Like section1851(a), section 1854(g) requires the Secretary to balance orconsider the competing interests of promoting the conservation ofhighly migratory species and protecting the economic interests ofUnited States fishermen.

The Magnuson-Stevens Act also authorizes the Secretary to"propose regulations in the Federal register to implement anyplan or amendment prepared by the Secretary" for highly migratoryspecies such as the ABT. 16 U.S.C. § 1854(c)(6);16 U.S.C. § 1854(g)(1)(A). Initially, the Secretary proposes a regulation "inthe Federal Register to implement any [FMP]" prepared by him.16 U.S.C. § 1854(c)(6). After allowing for a 60 day "comment periodon proposed regulations," the Secretary must "promulgate finalregulations within 30 days after the end of the [60 day] commentperiod." 16 U.S.C. § 1854(c)(7). These "final regulations must beconsistent with the [FMP], with the national standardsand other provisions of this chapter, and with any otherapplicable law."9 16 U.S.C. § 1854(c)(7). Under theMagnuson-Stevens Act's judicial review section, these"regulations" are then expressly subject to judicial review.16 U.S.C. § 1855(d).

Conspicuously absent from this implementation process is anyreference to the "advisory guidelines" of section 1851(b).Indeed, although the Magnuson-Stevens Act states that, "TheSecretary shall establish advisory guidelines," the act is silentas to the manner and means whereby the Secretary establishes suchguidelines. This silence is particularly glaring given thedetailed procedures applicable to the development andimplementation of an FMP and the FMP's implementing regulations.Whereas proposed regulations require publication in the FederalRegister, allowance for a public comment period, an explanationin the Federal Register from the Secretary as to any substantivedifferences between the proposed and the final regulations,16 U.S.C. § 1854(c), advisory guidelines are not expressly requiredto follow any particular implementation procedure.

As previously indicated, the Magnuson-Stevens Act sets forthten national standards and mandates that all FMPs and "anyregulation" implementing an FMP be consistent with thesestandards. The act then requires the Secretary to establish"advisory guidelines." The Magnuson-Stevens Act further states,in no uncertain terms, that the advisory guidelines "shall nothave the force and effect of law." The pertinent provision readsas follows, "The Secretary shall establish advisory guidelines(which shall not have the force and effect of law), based on thenational standards, to assist in the development of fisherymanagement plans." 16 U.S.C. § 1851(b).

With respect to the advisory guideline in the case at bar, theSecretary, acting through NMFS and NOAA, received public commentson the definition of "overfishing" and "overfished."10 On May1, 1998, after the comment period expired, the Secretary, throughthe NMFS and NOAA, published the guideline in the FederalRegistry. The preamble makes clear that the Secretary enacted thenew definition of "overfishing" and "overfished" pursuant to hisauthority under the Magnuson-Stevens Act to "establish advisoryguidelines . . . based on the national standards."16 U.S.C. § 1851(b). Although described as a "final rule," the summaryclarifies that the NMFS was revising the "guidelines for nationalstandard 1" in order to "implement the October 1996 amendments tothe Magnuson-Stevens Act." 63 Fed.Reg. 24212.

Thereafter, the May 1, 1998 guideline was codified at50 C.F.R. § 600.310. The title for the relevant subpart reads, "§ 600.310National Standard 1 — Optimum Yield." 50 C.F.R. § 600.310. Afterquoting national standard one, the guideline sets forth thedefinitions of "overfishing" and "overfished" quoted supra.

In addition to the foregoing, the Magnuson Act, as amended bythe SFA, directs the Secretary to issue an annual report andtherein identify those "fisheries thatare overfished or are approaching a condition of beingoverfished." As previously noted, the September 1997 report toCongress identified ABT as "overfished" based on its stock levelbeing below that necessary to produce maximum sustainable yieldusing the definitions employed by OLO. (Docket Entry # 11, Ex.311, pp. 2-3 & 53 & Ex. 306).

The Secretary's designation triggers a one year timetableduring which the Secretary must prepare an FMP or proposedregulations designed "to end overfishing in the fishery and torebuild affected stocks of fish." 16 U.S.C. § 1854(e)(3). The FMPor proposed regulation must specify a time period to end theoverfishing and rebuild the fishery which is "as short aspossible, taking into account the status and biology of anyoverfished stocks" as well as "the needs of fishing communities."16 U.S.C. § 1854(e)(4). The statutory language in section1854(e)(4) therefore strikes a balance between the "competinginterests of the fishery and the community in its efforts torebuild fish stocks." Massachusetts Audubon Society, Inc. v.Daley, 31 F. Supp.2d at 200. Once the Secretary adopts the FMPand promulgates final regulations to implement the FMP, theregulations and actions taken under such regulations becomesubject to judicial review. 16 U.S.C. § 1855(f).

A draft FMP covering ABT became available in October1998.11 It is unclear what further actions have taken placesince October 1998.

JUDICIAL REVIEW OF COUNT I

The Secretary argues that this court lacks subject matterjurisdiction to review the May 1, 1998 advisory guidelinedefining the terms "overfishing" and "overfished" because, byimplication, the Magnuson-Stevens Act precludes such review. TheSecretary seeks dismissal of Count I under Rule 12(b)(1),Fed.R.Civ.P.

Under Rule 12(b)(1), the party invoking jurisdiction has theburden of proof to establish its existence. Murphy v. UnitedStates, 45 F.3d 520, 522 (1st Cir.), cert. denied,515 U.S. 1144, 115 S.Ct. 2581, 132 L.Ed.2d 831 (1995). Where, as here,plaintiffs rely primarily on the complaint, this court construesthe complaint in plaintiffs' favor, White v. C.I.R.,899 F. Supp. 767, 771 (D.Mass. 1995), and treats "all well-pleadedfacts as true, according [plaintiffs] the benefit of allreasonable inferences."12 Murphy v. United States, 45 F.3dat 522. Plaintiffs may not, however, rely upon "`unsupportedconclusions or interpretations of law.'" Murphy v. UnitedStates, 45 F.3d at 522 (citation omitted).

In Count I, Plaintiffs assert jurisdiction to review the May 1,1998 advisory guideline under section 1855(f)(1) of theMagnuson-Stevens Act and/or sections 704 and 706 of the APA.(Docket Entry 1 & 13). With respect to the Magnuson-Stevens Act,plaintiffs contend that the May 1, 1998 advisory guideline was a"regulation" within the meaning of section 1855(f)(1). This courtdisagrees.

A. Judicial Review under the Magnuson-Stevens Act

The issue of whether Congress intended to allow judicial reviewof advisory guidelines promulgated under section 1851(b) is anissue of first impression in this circuit. The inquiry beginswith the language of the relevant provision, section1855(f)(1).13 See Riva v. Commonwealth of Massachusetts,61 F.3d 1003, 1007 (1st Cir. 1995). "In searching a statute's textto determine Congressional intent," the First Circuit"attribute[s] to words that are not defined in the statute itselftheir ordinary usage, while keeping in mind that meaning can onlybe ascribed to statutory language if that language is taken incontext." Brady v. The Credit Recovery Company, Inc.,160 F.3d 64, 66 (1st Cir. 1998).

Section 1855(f)(1) states, in no uncertain terms, that,"Regulations promulgated by the Secretary under this chapter . .. shall be subject to judicial review to the extent authorizedby, and in accordance with, chapter 7 of Title 5 . . .; exceptthat — (A) section 705 of such Title is not applicable, and (B)the appropriate court shall only set aside any such regulation oraction on a ground specified in section 706(2)(A),(B),(C), or (D)of such Title." 16 U.S.C. § 1855(f)(1). Hence, as indicated bythe latter language, this court may set aside "regulations" wherethey are "arbitrary, capricious, or otherwise contrary to law."Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d at 109.

Irrespective of the appropriate standard once judicial reviewattaches, however, the determinative question is whether the May1, 1998 advisory guideline constitutes a "regulation" within themeaning of section 1855(f)(1). Although not defined in theMagnuson-Stevens Act, the term "regulation" refers to legallybinding obligations placed upon a council and/or the agency whichhave the force and effect of law and, as such, are analogous tosubstantive rules issued by an administrative agency which aresubject to APA review. See generally, Chrysler Corporation v.Brown, 441 U.S. 281, 301-302, 99 S.Ct. 1705, 60 L.Ed.2d 208(1979).

Placing the term in context, see Brady v. The Credit RecoveryCompany, Inc., 160 F.3d at 66-67 (viewing disputed language incontext of other statutory sections), section 1854, as previouslydiscussed at length above, gives the Secretary the authority toissue regulations in order to implement an FMP. He also has thegeneral authority to "promulgate such regulations . . . as may benecessary . . . to carry out any other provision of thischapter." 16 U.S.C. § 1855(d). Section 1957 demonstrates that"regulations" are given the force of law inasmuch as that sectiondeclares that, "It is unlawful — (1) for any person — (A) toviolate any provision of this chapter or any regulation."16 U.S.C. § 1857 (emphasis added). Likewise, the Magnuson-StevensAct gives the Secretary the authority to enforce "[t]heprovisions of this chapter." 16 U.S.C. § 1861(a). The act thendefines the "provisions of this chapter" to include "anyregulation or permit issued pursuant to this chapter."16 U.S.C. § 1861(h) (emphasis added). Consequently, as used in theMagnuson-Stevens Act, the term "regulation" refers to legallybinding obligations which have the force and effect of law andcarry with them the threat of civil penalties, citations and/orvessel forfeitures.

In contrast, "advisory guidelines"14 under theMagnuson-Stevens Act expressly"shall not have the force and effect of law."16 U.S.C. § 1851(b). Making a rule or definition issued as an advisoryguideline subject to judicial review as a "regulation" undersection 1855(f)(1) would therefore obviate and render superfluousthis language. See generally Brady v. The Credit RecoveryCompany, Inc., 160 F.3d at 67 (recognizing this generalprinciple of statutory construction).

Consequently, both the plain meaning of the term "regulation"and the context in which it is used throughout theMagnuson-Stevens Act together with the plain meaning of the term"advisory guidelines," coupled with the language that suchguidelines "shall not have the force and effect of law," lead tothe conclusion that Congress did not intend the advisoryguidelines promulgated by the Secretary under section 1851(b) tobe subject to judicial review as regulations under section1855(f)(1). The fact that the Secretary, through NMFS and NOAA,chose to publish the guidelines in the Federal Register15cannot alter the intent expressed by Congress that suchguidelines are not regulations, as that term is used in theMagnuson-Stevens Act, and are not subject to judicial review.

B. Judicial Review under the APA

Plaintiffs also seek judicial review of the May 1, 1998advisory guideline under section 704 of the APA. (Docket Entry #13, pp. 5-9). Section 704 provides that, "final agency action forwhich there is no other adequate remedy in a court [is] subjectto judicial review." 5 U.S.C. § 704. For purposes of argumentonly, this court accepts that the May 1, 1998 guideline furtherdefining the terms "overfishing" and "overfished" constitutes aninterpretive regulation as well as final agency action. Thegeneral cause of action made available by section 704 or 702,however, is subject to the overriding caveat that anotherstatute, i.e., the Magnuson-Stevens Act, does not precludejudicial review. Section 701 of the APA thus cautions that, "Thischapter applies . . . except to the extent that — (1) statutespreclude judicial review." 5 U.S.C. § 701(a).

As noted by the APA's legislative history, however, "`The merefailure to provide specially by statute for judicial review iscertainly no evidence of intent to withhold review.'" AbbottLaboratories v. Gardner, 387 U.S. 136, 140 n. 2, 87 S.Ct. 1507,18 L.Ed.2d 681 (1967) (quoting H.R.Rep. No. 1980, 79th Cong., 2dSess., 41 U.S.Code Cong. Serv. 1946, p. 1195 (1946)). Rather,"only upon a showing of `clear and convincing evidence' of acontrary legislative intent should courts restrict access tojudicial review." Abbott Laboratories v. Gardner, 387 U.S. at141, 87 S.Ct. 1507. In the context of judicial preclusionanalysis, however, "the `clear and convincing evidence' standardis not a rigid evidentiary test but a useful reminder to courtsthat, where substantial doubt about the congressional intentexists, the general presumption favoring judicial review ofadministrative action is controlling." Block v. CommunityNutrition Institute, 467 U.S. 340, 351, 104 S.Ct. 2450, 81L.Ed.2d 270 (1984). In other words, "the presumption favoringjudicial review is not to be applied in the `strict evidentiarysense,' but may be overcome whenever the congressional intent topreclude is `fairly discernible in the statutory scheme.'"United States v. Fausto, 484 U.S. 439, 452, 108 S.Ct. 668, 98L.Ed.2d 830 (1988) (quoting Block v. Community NutritionInstitute, 467 U.S. at 351, 104 S.Ct. 2450).

In particular, the presumption may "be overcome by specificlanguage or specific legislative history" evidencing a contrarycongressional intent or "by inferences of [congressional] intentdrawn from the statutory scheme as a whole." Block v. CommunityNutrition Institute, 467 U.S. at 349, 104 S.Ct. 2450. As notedby the Supreme Court in Block, "Whether and to what extent aparticular statute precludes judicial review is determined notonly from its express language, but also from the structure ofthe statutory scheme, its objectives, its legislative history,and the nature of the administrative action." Block v. CommunityNutrition Institute, 467 U.S. at 345, 104 S.Ct. 2450.

It is also true that simply because one section of a statute orthe statutory scheme as a whole allows judicial review to aparticular class of persons or of a particular issue does notprevent Congress from impliedly denying judicial review of otherissues or agency actions under the same statute. Where Congressdid not preclude all judicial review in a statute, such as in theMagnuson-Stevens Act, see, e.g., 16 U.S.C. § 1855(f)(1) &1858(b), a court must examine the statutory scheme to determine"whether Congress nevertheless foreclosed review to the class towhich the respondents belong." Block v. Community NutritionInstitute, 467 U.S. at 345-346, 104 S.Ct. 2450 (parentheticalbrackets omitted). Thus, the Supreme Court in Block determinedthat although the Agricultural Marketing Agreement Act of 1937gave an express cause of action to milk handlers and an impliedcause of action to milk producers, the statutory scheme evidencedthat Congress intended, by implication, to preclude judicialreview to consumers. Block v. Community Nutrition Institute,467 U.S. at 345-351, 104 S.Ct. 2450. By analogy, the fact thatthe Magnuson-Stevens Act expressly authorizes judicial review ofregulations, 16 U.S.C. § 1855(f)(1), and impliedly allowsjudicial review of the Secretary's failure to certify a foreignnation as diminishing the effectiveness of an internationaltreaty establishing whaling quotas, Japan Whaling Association v.American Cetacean Society, 478 U.S. 221, 230 n. 4, 106 S.Ct.2860, 92 L.Ed.2d 166 (1986),16 does not necessarilymean that Congress intended to allow aggrieved parties a cause ofaction to challenge advisory guidelines issued under section1851(b).

It is also true that the Supreme Court generally reserves theexception set forth in section 701(a)(1) of the APA for "cases inwhich the existence of an alternative review procedure provided`clear and convincing evidence' of a legislative intent topreclude judicial review." Franklin v. Massachusetts,505 U.S. 788, 820 n. 21, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) (citationomitted). This is such a case.

First, the statutory scheme in the National Fishery ManagementProgram in subchapter IV of the Magnuson-Stevens Act,16 U.S.C. § 1851-1863, evidences a Congressional intent to precludejudicial of advisory guidelines. As previously explained,Congress set forth an elaborate and detailed administrativeframework whereby councils and the Secretary would develop FMPs,propose regulations, review such regulations, conduct publichearings, respond to public comments and, within set periods oftime, promulgate final regulations implementing an FMP. Once theSecretary promulgates the final regulations, they are subject tojudicial review under section 1855(f)(1). At that time, a courtwill examine the FMP and the implementing regulations forconsistency with the national standards as well as compliancewith other mandatory provisions and other laws such as the RFA.

The comprehensive and time sensitive nature of thisadministrative process leading to judicial review of regulationsand the emphasis placed upon the development of regulations incontrast to the absence of such a process for advisory guidelinesleads to the conclusion that Congress did not intend suchguidelines to be separately reviewable. The entire subchapter isan extremely well-drawn statute with inter-connected sections andsubsections setting forth a definite path leading to judicialreview. The advisory guidelines constitute part of the processbut they are conspicuously absent from the judicial reviewsection as well as from the implementation and administrativereview sections, 16 U.S.C. § 1853 and 1854. The advisoryguidelines lack the detailed development and attention affordedto the entity which is subject to judicial review, theregulations. In a complex statutory scheme, the omission ofadvisory guidelines from the administrative review process andfrom the subchapter's judicial review section provides sufficientreason to conclude that Congress intended to foreclose a cause ofaction based on the advisory guidelines. See, e.g., Block v.Community Nutrition Institute, 467 U.S. at 347, 104 S.Ct. 2450("In a complex scheme of this type, the omission of such aprovision [for consumer participation in hearings, agreements andvotes among milk handlers, milk producers and Secretary ofAgriculture] is sufficient reason to believe that Congressintended to foreclose consumer participation"); see also Stateof Nevada v. Watkins, 939 F.2d 710, 715-716 (9th Cir. 1991).

The statutory language yields the same conclusion. Section1855(f)(1) clearly states that, "Regulations . . . shall besubject to judicial review." In contrast, the language of section1851(b) states that the advisory guidelines "shall not have theforce and effect of law." Such language further evidences aCongressional intent that the guidelines have no effect and,thus, do not create, in and of themselves, a private right ofaction.

In the natural course of events, a court may review the May 1,1998 advisory guideline. The definitions therein, however, do not"have the force and effect of law." 16 U.S.C. § 1851(b). They donot create a separate implied cause of actionbased on the Secretary's acting in an arbitrary and capriciousmanner or in excess of his statutory authority. Rather, anyreview of the May 1, 1998 advisory guideline would be in thecontext of a cause of action based on a regulation or actionstaken by the Secretary implementing an FMP. See16 U.S.C. § 1855(f)(1) & (2). In such circumstances, the statutory definitionof "overfishing" and "overfished," national standard one and theregulations would constitute the primary focus.

In addition, allowing aggrieved parties the ability to sue theSecretary during the administrative process would severelydisrupt the statutory scheme. See, e.g., Block v. CommunityNutrition Institute, 467 U.S. at 348, 104 S.Ct. 2450 (allowingconsumer suits during administrative process "would severelydisrupt this complex and delicate administrative scheme").Congress established a one year time frame to develop an FMP oncethe Secretary reports a fishery as "overfished." Congress alsoset forth explicit and brief time periods applicable todeveloping an FMP and implementing regulations. See16 U.S.C. § 1854(a), (b) & (c). An implied cause of action based on theSecretary's arbitrary and capricious conduct or ultra viresconduct in issuing an advisory guideline could occur at any timeduring this process thereby disrupting the administrative scheme.Furthermore, the existence of the remedy in section 1855(f) ofthe Magnuson-Stevens Act ensures that the Secretary will issueFMPs and regulations consistent with the national standardsthereby ensuring realization of the act's objectives. See Blockv. Community Nutrition Institute, 467 U.S. at 350, 104 S.Ct.2450 (discussing Morris v. Gressette, 432 U.S. 491, 505-507, 97S.Ct. 2411, 53 L.Ed.2d 506 (1977), wherein Supreme Court deemedrelevant existence of other remedies to ensure statute'sobjectives).

In sum, like the nonpreference members of the excepted serviceunder the Civil Service Reform Act in United States v. Fausto,484 U.S. 439, 447-453, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988), theconsumers affected by milk market orders in Block v. CommunityNutrition Institute, 467 U.S. at 352, 104 S.Ct. 2450, and theSecretary of the Department of Energy's issuance of guidelinesunder the Nuclear Waste Policy Act in State of Nevada v.Watkins, 939 F.2d at 712 & 714-716, Congress intended topreclude judicial review to aggrieved parties challenging theSecretary's authority and actions in promulgating the May 1, 1998advisory guideline. Congress' intent to preclude judicial reviewis fairly discernible in the statutory scheme and in the expresslanguage such that this court has no substantial doubt ofCongress' intent. Count I seeking judicial review under theMagnuson-Stevens Act and the APA of the May 1, 1998 advisoryguideline wherein the Secretary promulgated definitions of"overfishing" and "overfished" is dismissed due to lack ofsubject matter jurisdiction.

RIPENESS OF COUNTS II AND III

The Secretary moves to dismiss counts II and III as unripe.Ripeness requires consideration of "the fitness of the issue forimmediate review and the hardship to the litigant should reviewbe postponed." Riva v. Commonwealth of Massachusetts,61 F.3d 1003, 1009 (1st Cir. 1995). Ordinarily, both prongs, fitness andhardship, "must be satisfied." Ernst & Young v. DepositorsEconomic Protection Corporation, 45 F.3d 530, 535 (1st Cir.1995) (further acknowledging "the possibility" of "some sort ofsliding scale"). Fitness depends, in part, upon whether certainevents will definitely occur as anticipated or whether suchevents may not occur at all. Riva v. Commonwealth ofMassachusetts, 61 F.3d at 1009. The fitness prong also examinesthe finality of the agency's action. Roosevelt CampobelloInternational Park Commission v. United States EnvironmentalProtection Agency, 684 F.2d 1034, 1040 (1st Cir. 1982). Relevantconcerns under the hardship prong include whether "`thechallenged action creates a "direct and immediate" dilemmafor the parties.'" Riva v. Commonwealth of Massachusetts, 61F.3d at 1010 (citation omitted).

Based on the present record, this court hesitates to issue aruling on the ripeness of counts II and III due to the likelyexistence of additional, relevant actions by the Secretaryoccurring after the filing and the taking under advisement of themotion on December 2, 1998. Apparently, the Secretary issued adraft FMP for highly migratory species in October 1998. Thestatus of the draft FMP and, more significantly, any implementingregulations would more than likely affect the ripenessdetermination. The parties are therefore ordered to fileadditional briefs limited to the ripeness of counts II and III inlight of any additional agency action occurring from October 1998to the present.17 Briefs shall be limited to ten pages,double spaced, and shall be filed on or before April 2, 1999.

II. MOTION OF THE NATIONAL AUDUBON SOCIETY TO INTERVENE AS A DEFENDANT (DOCKET ENTRY # 16)

On August 17, 1998, three months after plaintiffs filed suit,NAS filed a motion under Rule 24, Fed.R.Civ.P. ("Rule 24")seeking intervention as of right or, in the alternative,permissive intervention with respect to Count II.18 (DocketEntry # 16). NAS, a conservation group whose mission includesprotecting ABT from further depletion, asserts that it has ademonstrated interest in this litigation which will be adverselyaffected by this litigation if plaintiffs prevail and whichcannot be adequately protected by the existing parties. (DocketEntry 18, 19, 20 & 29). Plaintiffs object to intervention andassert that the better course is to allow NAS to file an amicuscuriae brief. (Docket Entry # 22). The Secretary did not file aresponse to the motion.

Under Rule 24, Fed.R.Civ.P., there are two types ofintervention: (1) intervention as of right under Rule 24(a); and(2) permissive intervention under Rule 24(b). Fiandaca v.Cunningham, 827 F.2d 825, 833 (1st Cir. 1987). Intervention asof right requires the following:

(1) a timely application for intervention;

(2) a demonstrated interest relating to the property or transaction that forms the basis of the ongoing action; (3) a satisfactory showing that the disposition of the action threatens to create a practical impairment or impediment to its ability to protect that interest; and (4) a satisfactory showing that existing parties inadequately represent its interest.

Public Service Company of New Hampshire v. Patch, 136 F.3d 197,204 (1st Cir. 1998); accord United Nuclear Corporation v.Cannon, 696 F.2d 141, 142-143 (1st Cir. 1982) (further notingthat it is "the prospective intervenor must establish [the] fourconditions"). The failure of the prospective intervenor to fulfilany one of these prerequisites forecloses its ability tointervene as of right under Rule 24(a). Public Service Companyof New Hampshire v. Patch, 136 F.3d at 204.

Notwithstanding plaintiffs' argument to the contrary, NAS'application to intervene is timely. Timeliness generally requiresconsideration of the following four factors:

"(i) the length of time the prospective intervenors knew or reasonably should have known of their interest before they petitioned to intervene; (ii) the prejudice to existing parties due to the intervenor's failure to petition for intervention promptly; (iii) the prejudice the prospective intervenors would suffer if not allowed to intervene; and (iv) the existence of unusual circumstances militating for or against intervention."

Caterino v. Barry, 922 F.2d 37, 40 (1st Cir. 1990) (quotingUnited States v. Metropolitan Dist. Com'n, 865 F.2d 2, 5(1989)).

NAS became aware of this litigation shortly after the May 29,1998 filing of the complaint. Waiting three months to file theapplication and respond to the 129 paragraph complaint19 isnot an appreciable period of time under the circumstances.Although another party inevitably adds a layer of complexity to acase, NAS does not seek additional discovery or take a positionon the motion to dismiss. Rather, NAS seeks to intervene in orderto brief the issues on summary judgment based on theadministrative record. Accordingly, NAS' intervention will notdelay resolving the merits, except to the extent resulting fromthe addition of a party, and will not result in significantprejudice to plaintiffs. Although this court finds that NAS canmore than adequately protect its interest in protecting ABT viaits ongoing litigation in Massachusetts Audubon Society v.Daley, 31 F. Supp.2d 189,20 under the first prerequisite forintervention as of right, NAS' application is timely.

Turning to the issue of a demonstrated interest, this court haslittle doubt of NAS' genuine and deep felt interest in protectingABT from further depletion and overfishing. Indeed, NASinstituted a separate program to pursue its interest inprotecting and conserving large pelagic fish species such as ABT.(Docket Entry # 19, ¶ 5). NAS and its members are dedicated toconserving and restoring highly migratory fish species includingABT. (Docket Entry #20, ¶¶ 4-6). NAS' participation in theenactment of the SFA21 (Docket Entry #20, ¶ 5; Docket Entry #19, ¶ 5) further evidences its demonstrable interest inpreserving ABT. NAS' members are deeply interested in preventingany invalidation of the Secretary's designation of ABT as"overfished" inasmuch as the designation provides the groundworkfor establishing a rebuilding plan for ABT. (Docket Entry # 19, ¶12; Docket Entry # 20, ¶ 16). NAS also has an interest inprotecting other fish species designated by the Secretary as"overfished" based on stock levels. NAS' interests therefore bearan extremely close relationship to the issue in Count IIconcerning the Secretary's identification of ABT as "overfished"based on stock level. See Conservation Law Foundation v.Mosbacher, 966 F.2d 39, 42 (1st Cir. 1992). Such directinterests are, undoubtedly, "`significantly protectable.'"Conservation Law Foundation v. Mosbacher, 966 F.2d at 41(citation omitted). NAS therefore has a protectable ordemonstrated interest within the meaning of the secondprerequisite.

Under the third factor, there must be a showing thatdisposition of Count II may, as a practical matter, impair orimpede NAS' ability to protect its interests. NAS urges thatplaintiffs' success in reversing the Secretary's September 1997designation of ABT as "overfished" would vitiate any rebuildingplan for ABT. NAS additionally contends that plaintiffs' successwould jeopardize other fish species wherein the Secretarydesignated such species as "overfished" based on stock levels.Finally, NAS points to the potential stare decisis effect ofthis litigation. (Docket Entry 18 & 29).

This court has little doubt of the vital importance of theissue raised in Count II to NAS. Furthermore, "the adverse impactof stare decisis standing alone may be sufficient to satisfythe practical impairment requirement." International PaperCompany v. Inhabitants of the Town of Jay, Maine, 887 F.2d 338,344 (1st Cir. 1989); accord Chiles v. Thornburgh,865 F.2d 1197, 1214 (11th Cir. 1989). This is particularly true where, ashere, the case involves one of first impression in this circuitas well as a matter of federal law. International Paper Companyv. Inhabitants of the Town of Jay, Maine, 887 F.2d at 345. Inaddition, according to NAS, there is no international rebuildingplan in place for ABT. (Docket Entry # 29, p. 7).

On the other hand, the Secretary's position is the same as NAS,i.e., upholding the Secretary's September 1997 designation of ABTas "overfished" based on stock level. See International PaperCompany v. Inhabitants of the Town of Jay, Maine, 887 F.2d at345 (noting that "stare decisis problem is greatly lessenedwhere there are" existing parties "whose position on the issuesis the same as the absent party's"). In addition, the existenceof ongoing litigation by NAS against the Secretary to protect ABTand to implement, as quickly as possible, a rebuilding plan,Massachusetts Audubon Society, Inc. v. Daley, 31 F. Supp.2d at200, diminishes the need, as a practical matter, for NAS tointervene in this action to protect its interests. See PublicService Company of New Hampshire v. Patch, 173 F.R.D. 17, 26(D.N.H. 1997) (due to presence of another forum whereinapplicants could protect their interest, applicants fell "shortof the `practical impairment' requirement of Rule 24(a)(2),"citing Flynn v. Hubbard, 782 F.2d 1084, 1092-1093 (1st Cir.1986) (concurring opinion)), aff'd, 136 F.3d 197 (1st Cir.1998). On balance, NAS therefore fails to make a satisfactoryshowing with respect to the third prerequisite.

Turning to the fourth prerequisite,22 NAS contends that theSecretary inadequately represents NAS' interests. NAS assertsthat the Secretary's conflicting duties under theMagnuson-Stevens Act render the Secretary's representation ofNAS' interests inadequate. Contrary to NAS' reasoning, however,"[t]he Magnuson-Stevens Act's main thrust is to conserve thefisheries as a continuing resource," Commonwealth ofMassachusetts v. Daley, 170 F.3d 23, 27 (1st Cir. 1999). Such afocus corresponds with NAS' interests in conservation.23

Nevertheless, there is some merit to NAS' argument. Both theFMPs and implementing regulations have multiple goals. SeeCommonwealth of Massachusetts v. Daley, 170 F.3d 23, 27 (1stCir. 1999). National standard one also echoes the dual nature ofthe Secretary's obligation to both promote conservation measuresand preserve the economic interests of the United States fishingindustry.24See also 16 U.S.C. § 1801(3). As pointed out by NAS, aprospective intervenor who emphasizes one interest is generallynot adequately represented by a government agency whichrepresents competing interests. See, e.g., Mausolf v. Babbitt,85 F.3d 1295, 1303-1304 (8th Cir. 1996); Conservation LawFoundation v. Mosbacher, 966 F.2d at 44-45.

The difficulty facing NAS, however, is the existence of twodual presumptions which it fails to overcome. First, as argued byplaintiffs, there exists a presumption that members of agovernment body adequately represent the interests of itsconstituents. See Public Service Company of New Hampshire v.Patch, 136 F.3d at 207 (recognizing presumption and requiring"`strong affirmative showing'" by prospective intervenor).Likewise, there exists a more general presumption of adequaterepresentation where, as here, the Secretary and the prospectiveintervenor, NAS, have the same ultimate goal, i.e., upholding theSeptember 1997 designation of ABT as "overfished" based on stocklevel. See Massachusetts Food Association v. Sullivan, 184F.R.D. 217, 222 (D.Mass. 1999) (discussing presumption).

In such circumstances, the prospective intervenor typically"must demonstrate adversity of interest, collusion, ornonfeasance," to overcome the presumption. United NuclearCorporation v. Cannon, 696 F.2d 141, 144 (1st Cir. 1982);accord Moosehead Sanitary District v. S.G. PhillipsCorporation, 610 F.2d 49, 54 (1st Cir. 1979). A potentialdivergence of interests between the economic interests of theSecretary to protect the fishing industry and NAS' exclusiveinterest in protecting ABT and other fish species designated as"overfished" based on stock levels is generally insufficient toovercome the aforementioned dual presumptions of adequaterepresentation. Massachusetts Food Association v. Sullivan, 184F.R.D. 217, 223 (D.Mass. 1999) (noting that, "First Circuitprecedent . . . suggests that the potential divergence ofinterests by itself is insufficient to overcome the dualpresumptions . . . present in this case)"; Resolution TrustCorporation v. City of Boston, 150 F.R.D. 449, 454 (D.Mass.1993) ("according to First Circuit, an individual has notdemonstrated that the current governmental party's representationof her interest may be inadequate simply by virtue of thepotential divergence between government and private interests").Consequently, although at first glance the divergent interests ofthe Secretary and NAS favor a finding of inadequaterepresentation, closer inspection indicates a similarity ofpurpose with respect to upholding the Secretary's action againstplaintiffs' challenge in Count II.

The First Circuit also identifies several factors which "afederal court must consider in the adequacy of interest inquiry."Public Service Company of New Hampshire v. Patch, 136 F.3d at208 (paraphrasing United Nuclear Corporation v. Cannon, 696F.2d. at 144). Examining the factors identified in UnitedNuclear25 reveals that the Secretary may adequatelyrepresent NAS' interests. To begin with, the Secretary and NAShave the same interest in upholding the September 1997designation of ABT as "overfished" based on stock level using thedefinitions in OLS.The issues in Count II are also primarily legal. SeeMassachusetts Food Association v. Sullivan, 184 F.R.D. 217,223-24 (D.Mass. 1999). Furthermore, the failure of the Secretaryto include certain legal arguments in the preamble to the May 1,1998 advisory guideline does not necessarily mean that theSecretary will not raise the two legal arguments identified byNAS with respect to Count II.26 The Secretary has not yetbriefed the merits of the statutory construction issues presentedin Count II. Moreover, the Secretary's interest in upholding thedesignation of ABT as "overfished" militates in favor of assumingthat he would raise the two legal arguments identified by NAS.Furthermore, the quality and comprehensive nature of theSecretary's brief and reply brief concerning the motion todismiss evidences that he would not overlook the legitimate,statutory construction arguments raised by NAS.

NAS also points to the Secretary's alleged unwillingness topursue a recovery plan for ABT at the international level. Thefact that the Secretary's representative did not vehemently pushfor a reduction in the allowable catch level of ABT at theinternational level may demonstrate that the Secretary and NAShave different time tables and means for implementing arebuilding plan for ABT. At issue in Count II is the Secretary'sdesignation of ABT as "overfished" based on stock level and notthe Secretary's delayed implementation of an FMP or regulationsto ensure a rebuilding plan as quickly as possible for ABT under16 U.S.C. § 1854(e)(3). Although at times the interests of theSecretary and NAS undoubtedly do diverge concerning ABT,Massachusetts Audubon Society, Inc. v. Daley, 31 F. Supp.2d 189(D.Mass. Dec.17, 1998), NAS fails to demonstrate that theydiverge with respect to the particular issues presented in thiscase.

In addition, the quality and content of the Secretary's paperssupporting the motion to dismiss amply demonstrate that he isenergetically and actively pursuing this case. See MassachusettsFood Association v. Sullivan, 184 F.R.D. 217, 223 (D.Mass.1999). The Secretary's briefs in support of the motion to dismisscomprehensively address all of the relevant issues. Accordingly,contrary to NAS' assertion, there is no indication that theSecretary may "sleep on its oars" (Docket Entry # 18, pp. 15-16).See generally Moosehead Sanitary District v. S.G. PhillipsCorporation, 610 F.2d at 54 (noting that prospective intervenordid not suggest that "Moosehead's attorneys are sleeping on theiroars").

In short, there is little, if any, basis to assume that theSecretary will not proffer every legitimate legal argument,including those identified by NAS, or that NAS will add anecessary element to this case. In sum, NAS fails to rebut thepresumption of adequacy in this case. Having failed to meet boththe third and the fourth prerequisites, NAS cannot intervene asof right.

NAS also seeks to intervene under Rule 24(b). This rule, whichgoverns permissive intervention, provides that:

Upon timely application anyone may be permitted to intervene in an action: . . . (2) when an applicant's claim or defense and the main action have a question of law or fact in common. . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

Rule 24(b), Fed.R.Civ.P. For previously discussed reasons, theapplication is timely. Although plaintiffs initially challengethe presence of jurisdiction, federal question jurisdiction,28 U.S.C. § 1331, concerning the statutory interpretation of theMagnuson-Stevens Act together with the cause of action under theAPA, 5 U.S.C.§ 702,27 provide the necessary jurisdictional basis.

Permissive intervention is allowable where "(1) `theapplicant's claim or defense and the main action have a questionof law or fact in common,' (2) the applicant's interests are notadequately represented by an existing party, and (3)intervention would not result in undue delay or prejudice to theoriginal parties." In Re Thompson, 965 F.2d 1136, 1142 n. 10(1st Cir. 1992) (emphasis in original). Under the first factor,NAS wishes to present the same defense as the Secretary. Both theSecretary and NAS seek to establish that the Secretary did notact in excess of his authority or in an arbitrary or capriciousmanner in designating ABT in September 1997 as "overfished" basedon stock level. See, e.g., Massachusetts Food Association v.Sullivan, 184 F.R.D. 217, 224-25 (D.Mass. 1999). The firstfactor is therefore satisfied.

The second factor, however, is absent. As previously discussed,NAS fails to overcome the presumption that the Secretary mayadequately represent its interests. Although the interests of theSecretary and NAS may differ in terms of the desire toimmediately implement an FMP and regulations for ABT, seeMassachusetts Audubon Society, Inc. v. Daley, 31 F. Supp.2d at200, their interests do not differ in their mutual desire touphold the Secretary's designation of ABT as "overfished" basedon stock level. NAS fails to overcome the presumption of adequacyapplicable under the circumstances of this case. Furthermore,where, as here, intervention as of right is decided based on thegovernment's adequate representation, the case for permissiveintervention diminishes, Massachusetts Food Association v.Sullivan, 184 F.R.D. 217, 224-25 (D.Mass. 1999), or disappearsentirely. See Menominee Indian Tribe of Wisconsin v. Thompson,164 F.R.D. 672, 678 (W.D.Wis. 1996); accord In Re Thompson, 965F.2d at 1142 n. 10 (inasmuch as court concluded intervenors'interests were adequately represented, court deemed it"unnecessary to deal with the requisites for permissiveintervention").

Although NAS' intervention might not delay this case because itdoes not seek additional discovery nor result in significantprejudice to plaintiffs or the Secretary, as a party NAS wouldhave the right to seek leave to file crossclaims against theSecretary for failing to implement an FMP and regulations withinthe one year time frame established in 16 U.S.C. § 1854(3). NAS'memorandum and reply brief fail to state that it will not fileany crossclaims. Even irrespective of the existence of anycrossclaim, which is unnecessary to resolve the permissiveintervention issue, an additional party inevitably increases thedemands of case management for the court. See Massachusetts FoodAssociation v. Sullivan, 184 F.R.D. 217, 224-25 (D.Mass. 1999).

Furthermore, there is little that NAS would contribute to thiscase that it cannot contribute through amicus curiae briefs.See generally Massachusetts Food Association v. Sullivan, 184F.R.D. 217, 224-25 (D.Mass. 1999); 6 James Wm. Moore Moore'sFederal Practice § 24.10[2][b] (1998) (noting that courtsexamine whether intervenor will add value to litigation indetermining permissive intervention). Indeed, plaintiffs suggestthat if this court wishes to hear NAS' views, it may allowamicus curiae briefs. Recognizing the interests NAS has in thislawsuit as well as its familiarity with the statutory andregulatory framework of the Magnuson-Stevens Act, this courtinvites NAS to file a motion for leave to file such briefs atany point as this case proceeds to disposition. Absent anopposition, this court will allow NAS' motion. If opposed, thiscourt will consider the opposition and issue a ruling.See Resolution Trust Corporation v. City of Boston, 150 F.R.D.at 455 (denying permissive intervention and allowing prospectiveintervenor opportunity to file amicus curiae briefs statingcourt would allow motion for leave absent opposition).

Finally, another factor worth considering is the existence ofanother proceeding, Massachusetts Audubon Society, Inc. v.Daley, 31 F. Supp.2d at 200, wherein NAS can protect itsinterests in ensuring the continued conservation and rebuildingof ABT. See Public Service Company of New Hampshire v. Patch,173 F.R.D. 17, 29 (D.N.H. 1997) ("whether an applicant iscurrently a party to another proceeding in which his interestwill be protected" constitutes a factor in determining permissiveintervention), aff'd, 136 F.3d 197 (1st Cir. 1998);28 6James Wm. Moore Moore's Federal Practice § 24.10[2][d] (1998)(existence of adequate remedy to prospective intervenor inanother court mitigates effect of denying permissiveintervention). Permissive intervention is thereforeinappropriate.

CONCLUSION

In accordance with the foregoing discussion, the motion todismiss (Docket Entry #9) is ALLOWED as to Count I. Pendingreceipt of additional briefs on or before April 2, 1999, thiscourt will defer issuing a ruling on the motion to dismiss(Docket Entry # 9) with respect to counts II and III. NAS' motionto intervene (Docket Entry # 16) is DENIED. NAS may seek leaveto file amicus curiae briefs at any time during thislitigation.

1. Although plaintiffs naturally refer to the guideline as aregulation, the reason for denoting the May 1, 1998 rule as aguideline or advisory guideline is because the Secretary, actingthrough the National Marine Fisheries Service and the NationalOceanic and Atmospheric Administration, implemented the guidelineunder his statutory authority in the Magnuson-Stevens Act to"establish advisory guidelines," 16 U.S.C. § 1851(b). As willbecome apparent infra, the Magnuson-Stevens Act carefully anddeliberately distinguishes between regulations, for which the actprovides judicial review, and advisory guidelines, for which theact does not provide judicial review.

2. As set forth in greater detail infra, under theMagnuson-Stevens Act any FMP or regulation promulgated toimplement an FMP must be consistent with ten national standardsfor fishery conservation and management. 16 U.S.C. § 1851(a).National standard one states that:

Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.

16 U.S.C. § 1851(a)(1).

3. The Secretary listed "Bluefin Tuna (West Atlantic)" asoverfished. The distinction between ABT and western AtlanticBluefin Tunas is not material for present purposes. However,under the International Convention for the Conservation ofAtlantic Tunas, the Atlantic Ocean is divided into western andeastern components for purposes of allocating the total allowablecatch per country of ABT. (Docket Entry # 1, ¶ 37).

4. Elsewhere, the Secretary classified various species asoverfished based on their fishing mortality rate. OLO does notuse the term "overfished." Rather, it refers to the similarconcept of "long term potential yield" which is analogous tomaximum sustainable yield. Stock sizes falling far below thosenecessary to produce the long term potential yield are consideredoverfished in the report. (A.R. 306 & 311).

5. Under ATCA, the United States Secretary of State receivesthe Commission's recommendations and, after consulting with theSecretary, determines whether to object to the recommendation.16 U.S.C. § 971c(a).

6. Before the enactment of the SFA, the Magnuson Act precludedthe Secretary from asserting authority over "highly migratoryspecies of fish" such as tuna. 16 U.S.C. § 1813 (repealed); SeeNational Fisheries Institute, Inc. v. Mosbacher, 732 F. Supp. 210,212 n. 2 (D.D.C. 1990).

7. The First Circuit's description of the framework of theMagnuson Act in Associated Fisheries of Maine, Inc. v. Daley,127 F.3d at 107 & n. 1, also holds true for the SFA. TheMagnuson-Stevens Act currently provides that each council shall,"for each fishery under its authority that requires conservationand management, prepare and submit to the Secretary (A) a fisherymanagement plan." 16 U.S.C. § 1852(h)(1).

8. The Magnuson-Stevens Act requires the Secretary to convenean advisory panel whose purpose is to collect and evaluaterelevant information with respect to the FMP under development.16 U.S.C. § 1852(g)(4).

9. Section 1855(d) reiterates that the Secretary has the"general responsibility to carry out any [FMP] . . . prepared byhim. . . . [and] may promulgate such regulations . . . as may benecessary to discharge such responsibility."16 U.S.C. § 1855(d).

10. NMFS first published the May 1, 1998 guideline in theFederal Register in August 1997. Thereafter, NMFS extended thepublic comment period and, with respect to national standard one,reopened the public comment period up to January 28, 1998. Duringthe reopened public comment period, NMFS specifically requestedcomments on usage of the terms "overfishing" and "overfished." 63Fed.Reg. 24212. The administrative record (Docket Entry # 11)details the comments. Prior to the May 1, 1998 publication,various NMFS officials continued to discuss the SFA's jointdefinition of "overfishing" and "overfished" solely in terms offishing mortality. See, e.g., Docket Entry # 11, Ex. 100 &103.

11. At the December 2, 1998 hearing on the motion to dismissand the motion to intervene, the Secretary referred to theexistence of a draft FMP issued in October 1998. The existence ofsuch a draft and any further action by NMFS to: defineoverfishing criteria for ABT; issue a proposed FMP for publiccomment; issue proposed regulations for public comment; issue afinal FMP; issue final regulations; and issue a regulatoryflexibility analysis with respect to the FMP or regulations isdirectly at issue in assessing the ripeness of counts II and III.Accordingly, this court will order the parties to filesupplemental briefs on or before April 2, 1999, on the effect ofany further administrative action by the Secretary solely withrespect to the issue of the ripeness of counts II and III.

12. In the course of review, this court also considered theaffidavit submitted by plaintiffs, various exhibits submitted bythe Secretary and plaintiffs and portions of the administrativerecord. Such consideration is proper under Rule 12(b)(1). Seegenerally White v. C.I.R., 899 F. Supp. at 771.

13. The Magnuson-Stevens Act elsewhere provides for judicialreview, after an administrative hearing, of civil penaltiesassessed by the Secretary for violations of section 1857.16 U.S.C. § 1858(a) & (b). Section 1855(f)(2) also authorizesjudicial review of actions taken by the Secretary "underregulations which implement a fishery management plan."16 U.S.C. § 1855(f)(2). Due to the absence of any civil penalty or actionstaken by the Secretary under an FMP applicable to ABT, neithersection applies. Nor do plaintiffs, who bear the burden of proofon this issue, rely on these sections as establishing subjectmatter jurisdiction.

14. "Advisory" is commonly defined as the "giving of advice"which itself is commonly defined as an "opinion orrecommendation." The Random House College Dictionary (Reviseded. 1988). Similarly, the non-binding nature of a "guideline" islikewise apparent in the common definition of this term. SeeId. (defining "guideline" as "any guide or indication of futureaction").

15. The APA requires publication in the Federal Register ofthe substance of rules which create creating binding norms butexcludes interpretive rules, policy statements and rules ofagency practice from this requirement. 5 U.S.C. § 553(b)(3)(A).

16. In Japan Whaling, Japan was exceeding certain whalingquotas established under the International Convention for theRegulation of Whaling ("the ICRW"). The Packwood Amendment to theMagnuson Act established a procedure whereby the Secretary couldcertify a foreign nation as diminishing the effectiveness of theICRW which would trigger economic sanctions. 16 U.S.C. § 1821(e)(2)(A)(i) & 1821(e)(2)(B). Various wildlife conservationgroups filed suit objecting to the Secretary's failure to certifyJapan's whaling practices as diminishing the effectiveness of theICRW. The Supreme Court, without much analysis of the relevantstatutory sections and statutory scheme of the PackwoodAmendment, rejected the Secretary's suggestion of the absence ofa private cause of action. Japan Whaling Association v. AmericanCetacean Society, 478 U.S. at 230 n. 4, 106 S.Ct. 2860. Infinding judicial review of the final agency action, i.e., theSecretary's failure to issue a certification, the Supreme Courtnoted that the Secretary "failed to point to any expressedintention on the part of Congress to foreclose APA review ofactions under either Amendment." Japan Whaling Association v.American Cetacean Society, 478 U.S. at 230 n. 4, 106 S.Ct. 2860.

In the present case, however, the Secretary fully examines andpersuasively discusses the reasons why Congress intended topreclude judicial review of the advisory guidelines. In addition,Block teaches that the presence of an implied cause of actionto one group of litigants does not necessarily authorize animplied cause of action to another group of litigants under thesame statute. The fact that Congress impliedly gave a cause ofaction to aggrieved parties under section 1821(e)(2)(A),therefore, does not necessarily or automatically mean thatCongress impliedly gave plaintiffs a private cause of action forreview of advisory guidelines under section 1851(b). Rather, theproper focus is upon ascertaining Congressional intent through anexamination of the language, legislative history and/or statutoryscheme of the Magnuson-Stevens Act. It is therefore necessary toexamine the statutory language and the relevant statutory schemewith respect to advisory guidelines, regulations and FMPs.Furthermore, the certification procedures under the PellyAmendment to the Fishermen's Protective Act of 1967,22 U.S.C. § 1978, and the analogous certification procedures under thePackwood Amendment to the Magnuson Act, 16 U.S.C. § 1821, involvea completely different subject matter and different statutorysections. Consequently, although the Supreme Court'spronouncement in Japan Whaling Association v. American CetaceanSociety, 478 U.S. at 230 n. 4, 106 S.Ct. 2860, gives this courtpause, it does not end the inquiry, as plaintiffs suggest.

17. See footnote number 11.

18. NAS also sought to intervene in Count I. Since this countis dismissed due to lack of subject matter jurisdiction thisportion of the motion is moot.

19. The complaint actually has 140 paragraphs. Count III,however, begins at paragraph 130. Thus, it did not take anysignificant amount of time to respond to paragraphs 130 through140 of the complaint.

20. NAS did not advise this court of this litigation. Nor didthe Secretary. Rather, this court discovered the litigation onlybecause the district judge in the Massachusetts Audubon caseissued a published opinion in December 1998. Therein, theSecretary raised the same argument it does here, i.e., that theclaim under the Magnuson-Stevens Act seeking review of theSecretary's declaration of ABT as overfished is not ripe forreview.

Significantly, NAS strenuously argues that it must intervene inthis action because principles of stare decisis "could impairthe ability of National Audubon to reopen the issue in othercourts." (Docket Entry # 18). NAS repeats this argument in itsreply brief. (Docket Entry # 29). NAS' failure to alert thiscourt to this litigation most likely stems from the fact that theexistence of this litigation lessens NAS' need to intervene inthis case in order to adequately protect its interests.

21. NAS also points out that it took part in theadministrative process leading to the May 1, 1998 advisoryguideline which includes the provision defining the terms"overfishing" and "overfished." (Docket Entry # 19, ¶ 9). Whilesuch participation supports intervention as of right as to CountI, see Public Service Company of New Hampshire v. Patch, 136F.3d at 206, that count is no longer viable.

22. Under the fourth prerequisite, "[a]n intervenor need onlyshow that representation may be inadequate, not that it isinadequate." Conservation Law Foundation v. Mosbacher, 966 F.2dat 44.

23. NAS' affidavits amply demonstrate this vital interest aswell as the group's more particularized interest in protectingABT from further depletion and in promptly implementing an ABTrebuilding plan. (Docket Entry 19 & 20).

24. National standard one reads as follows:

"Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry." 16 U.S.C. § 1851(a)(1).

25. These factors revolve around the legal positions andarguments of the prospective intervenor, NAS, versus the alignedparty, the Secretary. The factors are as follows:

"(1) Are the interests of a present party in the suit sufficiently similar to that of the absentee such that the legal arguments of the latter will undoubtedly be made by the former; (2) is that present party capable and willing to make such arguments; and (3) if permitted to intervene, would the intervenor add some necessary element to the proceedings which would not be covered by the parties in suit?"

United Nuclear Corporation v. Cannon, 696 F.2d. at 144 (quotingBlake v. Pallan, 554 F.2d 947, 954-955 (9th Cir. 1977)).

26. NAS identifies certain language in the Magnuson-StevensAct which it contends supports the Secretary's designation of ABTas "overfished" in terms of stock level. (Docket Entry # 18, pp.14-15; Docket Entry # 29, p. 9).

27. "The APA does not afford an implied grant ofsubject-matter jurisdiction permitting federal review of agencyaction." Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980,51 L.Ed.2d 192 (1977).

28. The First Circuit in Patch did not reach the issue ofpermissive intervention inasmuch as appellants did not press theissue on appeal. Public Service Company of New Hampshire v.Patch, 136 F.3d at 204 n. 5.

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