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January 17, 2003


The opinion of the court was delivered by: Larson, United States Magistrate Judge

ORDER 35-1, 40-1


Plaintiffs' Motion for Order on Remedy came on for hearing on November 20, 2002; Filed at the same time was the Motion of West Coast Seafood Processors' Association and Fishermen's Marketing Association for Leave to file Amicus Brief, which was not opposed by any party. Andrew Caputo appeared for Plaintiffs. Mauricia Bacca appeared for Defendants. There was no appearance for amici. The moving and opposing papers and the arguments of counsel having been considered and good cause appearing, it is hereby ordered that the motion for order on remedy (40-1) is denied, without prejudice.

The Motion for Leave to file Amicus Brief (35-1) is granted. Amici, as distinguished from intervenors, may file briefs and may possibly participate in oral argument, but are not entitled to take discovery or participate at trial. (Schwarzer et al. Federal Civil Procedure Before Trial at 7:168 and 170).


Defendants object to Plaintiffs' motion on procedural grounds, claiming that it is in effect a motion to amend the judgment, or for reconsideration or relief from judgment, under FRCP Rule 60(b). Defendants claim final judgment was entered in August 2001.

In fact, in the consolidated cases: 01-0421 and 01-0637, summary judgment was granted in August 2001 but no final judgment was entered. In the 01-2506 case, partial judgment was entered April 16, 2002, "as to the equitable relief prayed in this case."

01-0421, 01-0637 Amendment 12 Remand

Plaintiffs argue correctly that the court retains jurisdiction after remand to oversee the agency's actions in compliance with the court's directive. Plaintiffs ask this court to set a timetable for compliance with its remand order as it has authority to do. Zambrana v.Califano, 651 F.2d 842, 844 (2d Cir. 1981). See also Arizona Elec. Power Coop. V. United States, 816 F.2d 1366, 1376 (9th Cir. 1987) (establishing a 60-day deadline for agency action on remand). "Generally , a remand order is an interlocutory order which does not divest a court of jurisdiction over a case." Avery v. Secretary of Health & Human Services, 762 F.2d 158, 163 (1st Cir. 1985); Papazian v. Bowen, 856 F.2d 1455, 1456 (9th Cir. 1988) (presuming that "any dispute over the agency's determination on remand would have been presented to the district court and possibly to us on appeal.")

An order remanding a matter to an administrative agency is a non-final interlocutory order. See Chugach Alaska Corp. v. Lujan , 915 F.2d 454, 456 (9th Cir. 1990 ("in general, remand orders are not considered final"); Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 329-330 (D.C.Cir. 1989) (reviewing case law and concluding "[t]he courts of appeal that have considered the question . . . have uniformly held that, as a general rule, a remand order is `interlocutory' rather than `final'"); United States v. Spears, 859 F.2d 284, 286-287 (3d Cir. 1988) ("[A]n order remanding a matter to an administrative agency is no more than an interlocutory step in an adjudicative proceeding . . .").

The August 2001 order in the consolidated 01-0421 and 01-0637 cases setting aside portions of Amendment 12 and remanding to the agency falls within this rule, and this court can exercise its continuing jurisdiction over these consolidated cases on this basis.

01-2506 Amendment 13 Remand

In the 01-2506 case, concerning Amendment 13, the partial judgment does not divest this court of jurisdiction, since the court did not enter a final judgment but ruled only that "judgment be entered for Plaintiffs as to the equitable relief prayed in this case." As stated above, such a remand order is interlocutory, not final, and the court retains jurisdiction.

This court may also modify its partial judgment in order to ensure compliance. A federal court has inherent power to enforce its judgments. Peacock v. Thomas, 516 U.S. 349, 356 (1996) ("Without jurisdiction to enforce a judgment entered by a federal court, the judicial power would be incomplete and entirely inadequate to the purposes for which it was conferred by the Constitution.") The court also has the power to modify its judgments.

A district court "always ha[s] the power to modify earlier orders in a pending case." Kapco Mfg. Co. v. C & O Enterprises, Inc., 773 F.2d 151, 154 (7th Cir. 1985). Moreover, it is well established that a district court has the inherent power to reconsider interlocutory orders and reopen any part of a case before entry of final judgment. See Marconi Wireless Tel. Co. v. United States, 320 U.S. 1, 47-48, 63 S.Ct. 1393, 1414-15, 87 L.Ed. 1731 (1943). This authority does not rest in any particular federal rule, but emanates from the inherent power of the court. See A Hollow Metal Warehouse v. United States Fidelity & Guar. Co., 700 F. Supp. 410, 411-12 (N.D.Ill. 1988). Thus it is within a district court's discretion to revisit previously issued orders while the case is still pending before the court.

Rule 60(b)(6), Federal Rules of Civil procedure, provides that a judgment may be altered for "any other reason justifying relief from the operation of the judgment." The rule "provides courts with authority adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice," although "it should only be applied in extraordinary circumstances." Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988). Plaintiffs in the cases at bar contend that these cases present extraordinary circumstances.

The NMFS, this court has ruled, failed to take actions to prevent or reduce bycatch of overfished species, which were mandated by Congress to take place by October 1998. Pacific Marine Conservation Council v. Evans, 200 F. Supp.2d 1194, 1198, 1201 (N.D.Cal. 2001) (noting passing of statutory deadline). After losing the case on the merits, NMFS now proposes to proceed at its accustomed pace, still not correcting its deficiencies for several more years. For example, its bycatch reduction measures will not be released in draft form until summer 2003 or in final form until summer 2004 (Robinson Decl. at 10). Further measures will not be taken until 2004, and perhaps into 2005 or beyond, given the agency's history.*fn1

Plaintiffs reject Defendants' protests that Plaintiffs delayed seeking this remedy. The parties have been in settlement discussions on remedy issues starting in April and into October. Plaintiffs claimed these sessions were initiated by Defendants and abruptly halted in October.

This court concludes that its order in the consolidated cases was interlocutory in nature and subject to review and continuing enforcement by the court and that the partial judgment was just that, and not a final judgment and that in any event the court has authority to see that its orders are obeyed. Accordingly this court has jurisdiction over both the consolidated cases related to Amendment 12 and the case related to Amendment 13 and the defendants' compliance with the court's remand.


This court entered its order of partial summary judgment in the consolidated cases (01-0421 and 01-0637) on August 20, 2001. The court ruled:

NMFS has failed to adhere to the aforementioned provisions of the APA, the MSA, and NEPA, and, accordingly, The court hereby grants the following relief:
1. Declaratory judgment that NMFS's revised 2001 specifications for bocaccio rockfish and lingcod fishing limits violates the MSA and APA by failing to adequately account for discard mortality;
1a. An order that NMFS reassess its 2001 specifications using a legally adequate consideration of discard mortality;
2. Declaratory judgment that NMFS violated the MSA and the APA by not providing prior public notice and allowing for comment on the 2001 specifications after their publication by the Secretary;
2a. An order that, in accordance with the MSA and the APA, NMFS provide prior public notice and allow comment on future Pacific groundfish specifications;
3. Declaratory judgment that Amendment 12 violates the MSA by authorizing inadequate rebuilding plans for overfished species;
3a. An order setting aside that portion of Amendment 12 that authorizes rebuilding plans that do not accord with the MSA and remanding it to NMFS for further consideration;
4. Declaratory judgment that the Environmental Assessments NMFS performed in conjunction with Amendment 12 and the 2001 bocaccio and lingcod groundfish specifications failed to consider a reasonable range of alternatives and environmental consequences, in violation of NEPA;
4a. An order setting aside and remanding the EAs performed in conjunction with Amendment 12 and the 2001 groundfish specifications to NMFS.

The court hereby grants to NMFS the following:

3. Declaratory judgment that the issue of Amendment 12's inclusion of a "mixed-stock exception" is not yet ripe for adjudication;
3a. An order allowing the "mixed-stock exception" of Amendment 12 to stand, subject to any revisions NMFS implements after conducting an ...

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