United States v. Pedro Saade, United States of America v. Carlos Zenon-Rodriguez, 800 F.2d 269

United States v. Pedro Saade, United States of America v. Carlos Zenon-Rodriguez

800 F.2d 269

1st Cir.

1986

Check Treatment

*1 America, Appellee, UNITED STATES

v. SAADE, Defendant, Appellant.

Pedro America, Appellee,

UNITED STATES ZENON-RODRIGUEZ,

Carlos

Defendant, Appellant. 85-2023,

Nos. 85-2024. Appeals,

United States Court of

First Circuit.

Argued June Sept.

Decided

Pеdro J. Varela with whom Harry An brief, defendants, duze was on for appel lants. Toro-Font,

Eduardo E. Atty., Asst. U.S. Romo, with whom F. Lopez Daniel Atty., brief, was on appellee. BOWNES, Before Judge, Circuit BROWN,* Senior Circuit BREYER, Judge. Circuit BREYER, Judge. Circuit appellants were convicted of enter- ing a military danger during naval target practice off the coast of the island of Vieques, in violation of 33 U.S.C. § (creating and 33 204.234 Vieques). zone off previously reviewed several claims that their con- * Circuit, sitting by designation. Of the Fifth *2 unlawful, rejected Register, copies ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍proposal all sent of the and we to

victions parties, accepted potentially having interested and arguments their but two. We only response, one received announced that argument regulation in appellants’ regulation They was final. conclude 204.234, valid question, 33 C.F.R. was § comply that these actions did not with sev- authority of promulgated if under the only rules, Army’s procedural eral of the own authorizes the 3. That statute 33 U.S.C. § following: which state the prescribe regula- to Secretary of the [1) Engineer must,] District navigable waters tions “for the use ... notice, prior issuing any public make endangered by Artillery target fire in ... [Department certain that the of Defense importаnt practice.” It also contains an agency requesting or other the Secre proviso: tary’s approval danger to establish a authority That the conferred shall be so preliminary has ... conducted dis zone] as not to inter- exercised cussions local with interests when con fishing or the food fere with restrict sidered advisable. C.F.R. 209. [33 § industry, regulations prescribed and the 200(c)(2).] pursuance provide in hereof shall for the [2) Whenever the establishment of a ] by use of such waters food fishermen proposed danger may zone ... affect operating permits granted fishing operations Enginеer the District Department Army. of the director, regional will consult with the judgment respect We then reserved with Service, Depart Fish and Wildlife danger appellants’ further claim that the ment of Interior. C.F.R. 209. [33 § regulation “unreasonably in zone did fact 200(c)(3).] fishing ... interfere with ... the food in- [3) Engineer] pub The District will issue dustry,” it therefоre within fell parties likely lic to all notices deemed proviso. We remanded the case for interested____ C.F.R. 209. [33 § findings. further 200(g)(1).] Appellants argue contrary [4) ... will be held P]ublic proviso, regulation did in “unrea fact appears whenever there to be sufficient sonably ... interfere with or restrict public justify interest to such action. [33 fishing industry.” originally food re 209.200(h)(1).] C.F.R. § manded the case because had [5) Engineer] The District ... will dis- adequate opportunity not had to show copies departmental regula- tribute whether or not this was so. United States parties tions to all as known interested Saade, (1st F.2d Cir. publication soon аs their has been noted 1981). remand, Upon the district court Register. in the Federal C.F.R. [33 regulation question held that in 209.200(a)(2).] § scope valid and fell within the of the stat following The record facts shows authority, ute’s but it did not hold an evi promulgation danger regu- about the of the dentiary hearing. We remand so lation in 1974: that it сan do so. officials, Department Defense aware political pro- of the controversies that the I. cause, (and posed regulation might debated We first turn to the matter that disagreed) with each other about whether primarily occupied both the and the public to consult with оfficials in Puerto remand, argu namely appellants’ court on proposing danger reg- zone Rico before danger regulation, ment that the zone They eventually ulation. decided send 204.234, procedural invalid for holding proposal out notice of the without Appellants claim that reasons. preliminary discussions. Department Army promulgated of the simply Army widely disseminated text, sending explanation proposal, filed the notice in the Federal Dia, agencies, August (our to 207 federal Com- map and a El Nuevo trans- lation). agencies, record political requests reveals no monwealth officials Rico, nor other objections reconsideration newspapers, sta- Puerto television or near pro- the time of stations, tions, groups private radio mulgation. fishing. par- in wildlife interested *3 ticular, Mayor notices were sent to of the deciding whether or not fаcts these (a fairly

Vieques small with a community compliance demonstrate with Army’s the 10,000), (in population and two regulations, recognize own we that we ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍posted English) Vieques give in the Post weight agen must considerable to an cy’s interpretation of its regulations. Office. own Immigration & Naturalization Serv. Army оnly response, received The one Stanisic, 62, 72, 1519, 395 U.S. 89 S.Ct. 23 Department Agriculture, from the of Soil (1969); Tallman, L.Ed.2d 101 Udall v. objection Service. It had Conservation no 792, 1, (1965); S.Ct. L.Ed.2d 616 proposal. Co., Bowles v. Seminole Rock 325 U.S. 4) According to the Director of the Chief 410, 1215, 65 S.Ct. 89 L.Ed. 1700 Corps Division Operations Army of the of law, As a matter of we ask wheth (one charge of Engineers the officers in of agency er the could reasonably take these regulation), Army the promulgating the showing compliance regu facts as with its per a handled “about thousand” such cases might reasonably interpret lations as it year. Moreover, recognize them. we the that Army interpret regulations must its ap publication regula- After of the final ply only Vieques not but also to hun tion, newspaper ran stat- a local an article situations, dreds of other many or most of ing following: the out which will turn not to involve con any Navy first be- For the time since the troversy. require Army To hold gan firing bombing practices its hearings, discussions or after widespread Ceiba, separated Base of from the it has suggests notice the absence real any of Vieques of one an area covers —that threaten, controversy, through overly could third of the Island on its east coast—for elaborate, procedure, bureaucratized firing practices. its unnecessarily make difficult the selection target practice ranges. Because we can this is an say not that unreasonable con map danger [representing The new cern, Army may intеrpret procedur became zone established § 204.234] regulations al with such considerations July pub- last effective after it was mind. Reg- lished in two editions in the Federal so, being given the no widespread That publications place ister. The took on response, Army tice and lack could July June 18 that “preliminary conclude here discussions publi- preparation map of the was with local interests” were not “advisable” June was cized on and notice meaning within the of 33 209. C.F.R. § to all interested circulated sectors. 200(c)(2). It could conclude was that there pre- map danger of the zone was public require not “sufficient interest” to Army Corps Engineers. pared by public within the terms of object to period to comment and 209.200(h)(1). ques Though § proposal expired May on closer, Army tion is we believe the could Nobody opposed, according to the year. reasonably find sеnding also that a notice announcement, pro- from then on Di proposed Regional action to the ceedings followed their course normal rector of the U.S. Fish and Wildlife Service regulation] published regulation’s until satisfied its admonition to [the “consult,” 209.200(c)(3); Register, required for it the Federаl as 33 C.F.R. that § say, might and effective. read 33 C.F.R. to be official 209.200(c)(3) require any not to a more so—at least in the than absence of evidence suggesting greater a need for access to token consultation reason- Regardless, fishing. reme- believed, ably widespread the basis of on dy “рermit” provision for violation of this notice, likely nothing that there was sub- requiring permits, be an order would more stantive to consult about. regulation. not invalidation of the entire sending We also believe 207 notices regulation’s requirement satisfied III. notices be issued to “all deemed question We turn now to the wheth likely to be interested.” 33 C.F.R. 209. er or not the violat 200(g)(1). Appellants point out that notices proviso “unreasonably ed the because it any were not sent to individual fishermen ... ... with ... the food fish interfere[d] persons making living fishing a or from ing industry____” We remanded this case operations. They say knew or previоusly so that the district court could *4 should have known that individual fisher decide, point take evidence on this and in interested,” “likely men to be and evidence, light of that whether or not the that,in Army 1953 the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍had sent notices to regulation scope fell within the of the au Yet, say individuals. we cannot the thorizing Saade, statute. United States reading light is its rule in of Nathanson, 652 F.2d at 1134. See also in the facts that its files 1971 did not Probing the Mind the Administrator: of any contain current names or addresses of Hearing Variations and Standards Ju of fishermen; particular local and it made dicial Review under the Administrative bring reasonable efforts to its аction to the Procedure Act and other Federal Stat living by utes, attention of those in the area 75 Colum.L.Rev. 755 & n. 172 others, sending notices, among

press, officials, including Mayor to local the however, holding of hearing, Instead the Vieques, and to at least those users of the district court seems to have decided the Vieques the Post who Office understood grounds. on other As case far as we can English (though Spanish notices in would record, parties make out from the the be- preferable). have For been similar rea gan prepare hearing, to for the sons, Army complied we conclude that the expert рresented a list of The witnesses. requirement that it send of defendants then moved to dismiss based on procedural grounds the regulations “all discussed above. to known interested parties subsequently agreed post- to sum, parties” publication. after we pone evidentiary hearing the “provi- on the agree pro with the district court that the pursued so” issue while the defendants mulgation regulation zone procedural their attacks. The district court Army’s procedural regu did not the violate eventually told the it would hold the (read Army might lawfully lations as the evidentiary hearing to determine the facts them). interpret regulation existence at the time the promulgated in government 1974. The II. summary for judgment, argu- then asked Appellants also claim that the dan ing “proviso” that the issue should be de- ger regulation zone is invalid because it the cided on basis of the administrative satisfy part proviso failed tо that the record, evidentiary without recourse to an required “provide the to for the hearing. Despite appellants’ request oper use of such waters food fishermen hearing the to determine whether the dan- ating permits.” U.S.C. ger regulation met the test of the itself, however, regulation sаys that the “proviso,” statute’s the court did not hold “open navigation restricted is to all area at Instead, hearing. apparently the court the except firing being times is conduct accepted government’s argument the fact, In light ed.” the simply granted summary its motion for comply part prоvi- judgment. seems to with this the First, plain It is us that the district prediction court of then now refusing evidentiary erred hold the Judge, Campbell, Chief dissent, in his hearing requested. We F.2d pass. has come to He very purpose. remanded for that if predicted procedure of remand government apparently arguеd to the dis despite objections the absence of trial is to trict court that instead it should determine allowed, be regula the substantive lawfulness of litigants not only encouraged will tion on basis of the administrative up save ammunition for de novo use in (due record—a record that lack of court, appellate already but overbur- response) question. was silent on the dened will up holding courts end double that, recognize years, parties in recent chal expense at the litigants of other lenging validity of a often do yet whose have claims to be heard at all. issued, at so the time it on the basis of But, an longer administrative record. No hearings.” older is it “double Now it still legal party valid tradition allows a means at triple hearing, least a assum- wait, challenging regulation’s validi ing not unlikely assumption too —a —that ty agency when the seeks to enforce the government will not onсe divert Then, regulation. if the invalidity claim of conducting district court from the man- requires evidentiary hearing, an hearing. dated Judge factual As Breyer’s may permit creation of an opinion us, makes so clear for that is exact- Nathanson, supra, factual record. See ly place: whаt took *5 745, 755-57, 763-64. That is what we or The district court eventually told par- Briggs dered. See v. Pennsylvania R.R. ties it ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍would hold the evidentiary hearing Co., 304, 306, 334 U.S. 68 S.Ct. to determine the facts in existence at the (1948); Ohio-Sealy 92 L.Ed. 1403 Mattress time the regulation was promulgated in Inc., 490, Mfg. Sealy, Co. v. 669 F.2d 1974. government then asked for (7th Cir.), denied, 943, cert. 459 U.S. summary judgment, аrguing that 257, S.Ct. L.Ed.2d 201 We there “proviso” issue should be decided on the appellants may present fore reiterate that record, basis of the administrative with- designed regula evidence to show that the out evidentiary recourse an hearing. tion interfered with food Despite appellants’ requеst for the hear- fishing industry. ing to determine the danger whether We note challenge did not met the test the stat- grant the district of summary judg- court’s “proviso,” ute’s the court did not hold ment their initial brief appeal. on this Instead, hearing. appar- the court However, they raised the matter oral ently accеpted government’s argu- argument. previously Because we ordered simply granted ment and its motion for hearing and the failure to hold result- summary judgment. position from government ed below, accept took we shall This spectacular case is once a appellants’ tardy point. mеntion of the See example of the lack of utility indeed, the — 1188, Devine, Shirey v. 670 F.2d 1191 n. 7 making lack sense—in the reflex of mo- (D.C.Cir.1982); Smith, Harris v. 372 F.2d summary judgment. tions for With socie- (8th Cir.1967). ty’s finality cases, demand for in criminal government read, The case is should proceedings remanded have and then heeded, opinion. consistent plain with this words of this Court to proceed hearing evidentiary with the which BROWN, JOHN R. Senior Circuit trial ready court was to conduct and concurring. plainly which Court had so ordered “to determine opinion. I concur in whether C.F.R. 204.234 the result and the I un- separately emphasize reasonably write interferes food fishing sеveral things. industry.” 652 F.2d at 1134. later,

Now, years we start all over five

again. guilt for this lost time1 cannot

really placed judiciary. on the BONNEY,

Cheryl Repre D. as Personal

sentative and Administratrix of the Es Plaintiff, Rodney Bonney, Ap

tate

pellee, NATIONAL

CANADIAN RAILWAY

COMPANY, Defendant, Appellant.

No. 85-1635. Appeals,

United States Court of

First Circuit. April

Heard Sept.

Decided *6 Montgomery H. with whom Nich-

John Nadzo, olas Lisa R. Gorman and Jensen ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍S. Portland, Me., Henry, Baird Gardner & defendant, brief, appellant. were on Complying If rules with this Court’s mandate would the convictions shall stand. (and ought contrary, have assured a decision which could to) it shall dismiss informa- subject present appeal: have been the tions. If the district court rules that the regulation complies F.2d at fishing proviso,