C&W FISH CO., INC. V. FOX
931 F.2d 1556 (D.C. Cir. 1991)
NATURE OF THE CASE: C&W (P) appealed from a summary judgment to Fox (D) on P’s final rule
with respect to drift gillnets.
FACTS: 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.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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