Goethel v. U.S. Department of Commerce
854 F.3d 106
| 1st Cir. | 2017Background
- The New England Fishery Management Council adopted Amendment 16 (2010) to the Northeast Multispecies Fishery Management Plan, requiring at-sea monitors (ASMs) on certain commercial groundfish trips and stating that sectors must pay ASM costs to the extent NMFS did not fund them.
- NMFS funded ASM costs from 2012–2014 but signaled in 2015 that federal funding would be exhausted and industry would assume costs; a May 1, 2015 final rule announced that funding was expected to expire before the end of the 2015 fishing year.
- On November 10, 2015 NOAA emailed sectors that ASM federal contract funds would be expended by December 31, 2015 and that industry cost transition would be effective January 1, 2016; NMFS nonetheless continued paying through mid-February 2016 and later offset some industry costs.
- Plaintiff David Goethel (and Sector 13) sued December 9, 2015 challenging the industry-funding requirement and the ASM program on multiple statutory and constitutional grounds, and sought pre-enforcement review under the APA.
- The district court granted summary judgment for the government, holding the suit untimely under the Magnuson‑Stevens Act (MSA) 30-day review period, and alternatively found the claims would fail on the merits.
- The First Circuit affirmed on jurisdictional/limitations grounds only, holding the November 10, 2015 email was not a separately reviewable MSA “action” and that the latest challengeable action was the May 2015 final rule (making the December 2015 filing untimely).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the suit was timely under the MSA 30-day review provision | Goethel: November 10, 2015 NOAA email set a new, "date-certain" obligation (Jan 1, 2016) and thus triggered a fresh 30-day window; suit filed Dec 9, 2015 was timely | Government: The relevant reviewable action was the May 1, 2015 final rule; the November email was an informational update, not a separate reviewable action | Held: Suit untimely; November 10 email not a separately reviewable action; May 2015 final rule started the 30-day clock |
| Whether pre-enforcement APA review avoids MSA's 30-day limit | Goethel: Pre-enforcement APA challenge should permit review outside MSA's 30-day window | Government: MSA expressly channels review and the 30-day limit applies to pre-enforcement challenges to NMFS regulations | Held: MSA's 30-day limit applies to pre-enforcement review; plaintiff cites no authority to waive it |
| Whether the November 10 email was final agency action (Bennett v. Spear standard) | Goethel: Email consummated decision-making and fixed obligations (who pays) so it was final and reviewable | Government: Email was routine notification of prior rule; not a regulation, Federal Register publication, or adjudicative order | Held: Email was not final agency action for purposes of §1855(f)(1); Bennett does not help plaintiff |
| Merits of statutory and constitutional challenges (Appointments Clause, Tenth Amendment, APA, Appropriations/Anti-Deficiency/Miscellaneous Receipts, Fourth Amendment, RFA) | Goethel: Industry funding and ASM program violate various statutes and constitutional provisions (claims preserved on appeal include Appointments Clause and anti-commandeering/Tenth Amendment plus several statutory challenges) | Government: Substantive defenses; district court held claims would fail on merits if reached | Held: Court did not decide merits because suit is time-barred; district court had alternatively rejected merits claims |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (1997) (defines when agency action is "final" for APA review)
- Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 438 F.3d 937 (9th Cir. 2006) (MSA 30‑day review period applies to pre-enforcement challenges to fishery regulations)
- Oceana v. Locke, 670 F.3d 1238 (D.C. Cir. 2011) (agency funding obligations can affect availability of program funds and implementation)
- Norbird Fisheries, Inc. v. Nat’l Marine Fisheries Serv., 112 F.3d 414 (9th Cir. 1997) (untimeliness under MSA deprives court of jurisdiction)