The opinion of the court was delivered by: LARSON, United States Magistrate Judge
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
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
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
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
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
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
NMFS has failed to adhere to the aforementioned
provisions of the APA, the MSA, and NEPA, and,
accordingly, The court hereby grants the following
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
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
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 adequate EA in
conjunction with 4a supra;
Plaintiffs' Motion to Strike Defendants' Answer is denied, as moot.
(01-0421 JL and 01-0637 JL, NRDC and Oceana v. Evans)
That was August 20, 2001.
In 01-2506,This court entered its order granting partial summary
judgment for Plaintiffs and part for Defendants in on April 12, 2002. The
This court finds as follows:
1. Amendment 13 fails to establish an adequate bycatch
2. NMFS did not comply with its duty to minimize
bycatch and bycatch mortality.
3. NMFS has violated NEPA by not taking a "hard look"
at the environmental consequences of Amendment 13.
4. The Environment Assessment NMFS performed in
conjunction with Amendment 13 failed to consider a
reasonable range of alternatives and environmental
consequences, in violation of NEPA.
Plaintiff's motion for summary judgment is hereby GRANTED. Defendant's
cross-motion for summary judgment is DENIED. This court finds that NMFS
violated the MSA, NEPA, and the APA in approving Amendment 13.
Accordingly, this court remands Amendment 13 to NMFS for reconsideration
in light of these legal requirements. (01-2506 JL, Pacific Marine
Conservation Council v. Evans)
POSITION OF THE FISHERMEN AND PROCESSORS
Plaintiffs want the court to light a fire under NMFS. Defendants along
with amici, the fishermen and the processors, claim that NMFS has already
made significant progress and that if its resources are diverted by this
court, it will be slowed down or stalled entirely.
Amici ask the court to consider the human costs of drastic reductions
in fishing quotas and not just dry statistics or legal theory.
Amici claim that Plaintiffs' contentions are mooted by the NMFS'
subsequent regulations. Gulf of Maine Fishermen's Alliance v. Daley,
42 F.3d 1278, 1282 (9th Cir. 1994) (challenge mooted when fishing season
ended and no evidence ...