Both parties agree that if a state statute is determined to be in direct conflict with federal law, the state law is preempted. Plaintiffs claim that the Pacific Council's decision of inconsistency between Proposition 132 and the Plan should have res judicata effect. In any event, even if the Council's finding is not binding, plaintiffs argue that Proposition 132 should be preempted because it is in conflict with federal law.
Defendants and intervenors claim that summary judgment should be denied because the Pacific Council's opinion is merely advisory and that the language of the Magnuson Act does not conflict with Proposition 132.
A. Res Judicata
For this Court to be bound by the Pacific Council's ruling, the administrative agency must have been acting in a "judicial capacity" at the time the ruling was issued. See United States v. Utah Constr. & Mining Co., 384 U.S. 394, 86 S. Ct. 1545, 1560, 16 L. Ed. 2d 642 (1966) (courts have applied res judicata when an administrative agency is acting in a judicial capacity and the parties have had an adequate opportunity to litigate the issues of fact).
Among other considerations, the agency must have acted in a judicial capacity for res judicata to attach. This includes complying with the standards of "procedural and substantive due process that attend a valid judgment by a court." Paramount Transport Systems v. Local 150, 436 F.2d 1064, 1066 (9th Cir. 1971). Although no single formula exists to capture all the essential elements of adjudicatory procedure that may entitle administrative decisions to preclusive effects, see Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4475, at 765 (1981), certain elements such as cross-examination, the right to subpoena witnesses, and testimony under oath have proven important. See, e.g., Plaine v. McCabe, 790 F.2d 742, 744 (9th Cir.), as amended on reh'g, 797 F.2d 713 (9th Cir. 1986); Nasem v. Brown, 193 U.S. App. D.C. 416, 595 F.2d 801, 807 (D.C. Cir. 1979). However, preclusion has been accepted despite the absence of a jury trial and limitations on discovery. See, e.g., Consolidated Express, Inc. v. New York Shipping Ass'n, 602 F.2d 494, 504-05, 512 (3d Cir. 1979), vacated on other grounds, 448 U.S. 902, 65 L. Ed. 2d 1131, 100 S. Ct. 3040 (1980).
The Court, however, need not reach the question of whether the Pacific Council's consistency determination should be afforded res judicata effect. Although a persuasive argument can be articulated in favor of preclusion, the Court will not rest its decision on a finding of res judicata. Rather, the Court turns to the merits of preemption.
B. Conflict Between Federal and State Law -- Preemption
Plaintiffs are entitled to summary judgment on the basis of preemption. No dispute exists as to the text of the federal and state laws in question. Simply stated, these laws conflict and, under the doctrine of preemption, federal law prevails.
Under the Supremacy Clause, U.S. Constitution, art. VI, cl. 2, the laws of the United States, including federal regulations promulgated pursuant to statutory authorization, take precedence over state laws. See Hillsborough County v. Automated Medical Lab., Inc., 471 U.S. 707, 105 S. Ct. 2371, 2375, 85 L. Ed. 2d 714 (1985).
Federal law may preempt state law in several ways. First, Congress may expressly define the extent to which it intends to preempt state law. Id.; Jones v. Rath Packing Co., 430 U.S. 519, 97 S. Ct. 1305, 1309, 51 L. Ed. 2d 604 (1977). Second, Congress may indicate an intent to preempt all state law in a particular field of regulation. Hillsborough County, 105 S. Ct. at 2375; Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S. Ct. 1146, 1152, 91 L. Ed. 1447 (1947). Third, federal law may preempt state law to the extent that state law directly conflicts with federal law. Hillsborough County, 105 S. Ct. at 2375; Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S. Ct. 1210, 1217-18, 10 L. Ed. 2d 248 (1963). Plaintiffs argue that both the first and the third type of preemption applies; however the Court need only examine the third category to find preemption.
The Magnuson Act has been interpreted to allow state regulation in federal waters only where the state law does not actually conflict with federal law. See Southeastern Fisheries Ass'n v. Martinez, 772 F. Supp. 1263, 1267-68 (S.D. Fla. 1991) (state law attempted to limit the taking of Spanish mackerel in federal waters to an amount less than 2.99 million pounds annually while federal law permitted an annual quota of between 2.99 and 3.14 million pounds. The court found these two laws in direct conflict because federal law permitted the taking of up to 2.99 million pounds of Spanish mackerel whereas state prohibited the exact conduct); Bateman v. Gardner, 716 F. Supp. 595, 598 (S.D. Fla. 1989), aff'd, 922 F.2d 847 (11th Cir. 1990), and cert. denied, 114 L. Ed. 2d 459, 111 S. Ct. 2053 (1991) (State law banning shrimp harvest preempted where, under federal law, shrimp could be taken in disputed area); State v. Sterling, 448 A.2d 785, 787 (R.I. 1982) (conflicting state provision imposing a landing-possession limit on flounder preempted); F/V American Eagle v. State of Alaska, 620 P.2d 657, 662 n.10 (Alaska 1980) (to extent that a conflict exists between state regulations and federal regulations, state's authority preempted).
Under the Plan, as discussed in 50 C.F.R. §§ 602, 663.1-.29 (1990), applicable state regulations will be enforced in federal waters so long as they are consistent with the Plan. See id. § 663.3(c). Here, then, the federal Plan specifically applies to the taking of rockfish. See id. § 663.2. The Plan provides that gill nets are authorized for the commercial harvest of groundfish, but that fishing for groundfish with gill nets is prohibited in all areas north of 38 degrees N. latitude. Id. §§ 663.22(a), 663.22(d); Plan 184.108.40.206.
Section 4(a) of Proposition 132 provides that "notwithstanding any other provision of law, gill nets and trammel nets may not be used to take any species of rockfish." Defendants insist, and seek to enforce, that Proposition 132 prohibits the use of gill nets in federal waters.
In essence, although federal law prohibits gill nets in federal waters north of 38 degrees N. latitude, federal law permits the use of such nets south of 38 degrees N. latitude. By expressly prohibiting gill nets north of 38 degrees N. latitude, federal law has, through its silence, necessarily implied that the use of gill nets south of 38 degrees N. latitude is authorized. Plaintiffs cannot comply with both the state and federal schemes unless they forgo their right to use gill nets south of 38 degrees N. latitude. As recognized by Bateman, Martinez, and Sterling, the possibility to comply with a more stringent state standard does not resolve the conflict between state and federal law. In those cases, the more severe state statutes were all stricken and federal law ruled federal waters.
Interveners challenge Bateman, Martinez, and Sterling, noting that all dealt with express federal language which conflicted with express state language. Here, interveners claim, although express state language exists, there is no express federal language. Rather, interveners believe that no conflict exists. In fact, the statute may be interpreted as leaving to the sound discretion of the state the decision of whether to allow gill nets south of 38 degrees N. latitude. Yet this interpretation misses the mark. Despite the lengthy arguments and the surrounding rhetoric, state law prohibits gill nets and federal law permits gill nets south of 38 degrees N. latitude in federal waters. This conflict justifies preemption.
In addition, interveners claim that the intent behind the Magnuson Act is consistent with Proposition 132. However, preemption may be based either on direct conflict or the obstruction of the goals and policies of federal law. Martinez, 772 F. Supp. at 1267. Plaintiffs need not demonstrate both. See Florida Lime, 83 S. Ct. at 1217.
Moreover, even though the Court will not rule that the Pacific Council's consistency determination has res judicata effect in this matter, it does not mean that the Court should ignore the decision. Rather, the finding is entitled to deference. The authority to determine whether a conflict exists between state and federal law is vested in the Pacific Council. With its considerable expenditure of time and resources in this case and with the extensive materials it reviewed, the Council's decision reflects careful deliberation, not undue haste, and thus is worthy of some deference in this Court's consideration of the issue. The Council's finding of inconsistency is consistent with the Court's analysis of preemption.
Accordingly, because section 4(a) of Proposition 132 conflicts with the Magnuson Act, that section must fail when administered to the EEZ and defendants must be permanently enjoined from enforcing that section in federal waters. Summary judgment is thus appropriate for plaintiffs.
For the foregoing reasons, the Court ORDERS as follows:
1. Plaintiffs' motion for summary judgment is GRANTED.
2. Plaintiffs shall prepare and submit to the Court a proposed form of judgment by March 24, 1993. Defendants and interveners may file any objections to the proposed form of judgment by April 7, 1993. The Court will then issue judgment without further hearing.
IT IS SO ORDERED.
DATED: February 25, 1993.
D. Lowell Jensen
United States District Judge