C&W Fish Co., Inc. v. Fox

931 F.2d 1556 (D.C. Cir. 1991)


The Magnuson Act grants D the authority to create national programs for the conservation and management of fishery resources. It provides for the creation of eight Regional Fishery Management Councils each with authority over a specific geographic region while composed of members who represent the interests of the states included in that region. A Council can propose a Fishery Management Plan subject to D's approval, or if D makes a proposed plan, the Councils must be given an opportunity to submit comments and recommendations on that FMP. Councils initially submit their proposed FMPs to Regional Directors; the proposals then move up the ranks of D and are subject to approval by the individual officials in the chain of delegation. The South Atlantic Regional Council and the Gulf Regional Council have for a long time wanted to ban drift gillnet fishing for the coastal migratory pelagics fishery. After much effort, a newly appointed Regional Director approved the qualified ban on purse-seine and run-around gillnets but declined to approve the unqualified ban on the use of drift gillnets in the Mackerel Fishery. The decision then reached Dr. Fox, the newly appointed NOAA Assistant Administrator, the rejected portions of the amendment gained new life, and it was approved. The Under Secretary and the Secretary subsequently approved the Councils' proposal, and NOAA implemented appropriate notice and comment rulemaking. Immediately after the final rule was issued, Ps filed suit against Ds, seeking declaratory and injunctive relief. The district court granted Ds' motion and dismissed the case with prejudice. Ps' appealed on a number of grounds. the fourth being that Ps were denied due process because Assistant Administrator Fox had an unalterably closed mind and should have disqualified himself from participating in the rulemaking.