Vessel Monitoring System Lawsuit Allowed to Move Forward

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Gulf Fishermen’s Association v. Gutierrez, 2008 U.S. App. LEXIS 12559 (11th Cir. June 13, 2008).

Stephanie Showalter, J.D./M.S.E.L.

On December 15, 2006, the Gulf Fishermen’s Association (GFA), a commercial fishing advocacy group based in Florida, filed a complaint challenging Amendment 18A to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico. Amendment 18A, among many other things, requires a National Marine Fisheries Service-approved “vessel monitoring system [VMS] on board vessels with Federal commercial permits for Gulf reef fish, including charter vessels/headboats with such commercial permits.”1 GFA claims the final rule implementing Amendment 18A violates the Regulatory Flexibility Act, the Magnuson-Stevens Fisheries Management Act (Act) and the right to privacy guaranteed by the Fourth Amendment.2

The district court dismissed GFA’s suit as time-barred. Regulations promulgated by the Secretary of Commerce (Secretary) under the Act and actions taken by the Secretary under such regulations are subject to judicial review “if a petition for such review is filed within 30 days after the date on which the regulations are promulgated or the action is published in the Federal Register.”3 The Secretary published the final rule implementing Amendment 18A on August 9, 2006. The regulation was to become effective on December 7, 2006. On December 6, the Secretary published a notice delaying the effective date for implementation of the VMS requirement until March 7, 2007. GFA filed its challenge to Amendment 18A nine days later on December 15, 2006. Because GFA was challenging the VMS requirement and not the delay of the effective date, the district court held that GFA should have filed its claim within thirty days of the publication of the final rule on August 9, 2006.

GFA appealed to the Eleventh Circuit. GFA argued that its complaint was timely because the Secretary’s notice delaying the effective date created a new 30-day filing window. The Eleventh Circuit agreed. “If a petition for review of a regulation that implements a fishery management plan is filed within thirty days of a Secretarial action under that regulation, it is timely.”#4 Under § 1855(f), according to the court, both regulations and actions are reviewable in a timely-filed petition and a petition is timely if it is filed within thirty days of either the promulgation of the regulation or publication of action. GFA’s complaint was timely because it was filed within 30 days of a Secretarial action under the regulations implementing Amendment 18A. The case was remanded to the district court for further proceedings. GFA’s challenge to the VMS remains alive.

Endnotes:

1. National Marine Fisheries Service, Availability of Amendment 18A to the reef fish resources of the Gulf of Mexico; Request for Comments, 71 Fed. Reg. 24635, 24636 (April 26, 2006).
2. Gulf Fishermen’s Association v. Gutierrez, 484 F. Supp. 2d 1264, 1266 (M.D. Fla. 2007).
3. 16 U.S.C. § 1855(f)(1).
4. Gulf Fishermen’s Association v. Gutierrez, 2008 U.S. App. LEXIS 12559 at *5 (11th Cir. June 13, 2008).