Frontier Fishing Corp. v. Penny Pritzker; Kathryn D. Sullivan

United States Court of Appeals
For the First Circuit
No. 13-1776
FRONTIER FISHING CORP.,
Plaintiff, Appellant,
v.
PENNY PRITZKER; KATHRYN D. SULLIVAN,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Thompson, Kayatta, and Barron,
Circuit Judges.
Stephen M. Ouellette, for appellant.
Christine J. Wichers, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellees.
October 24, 2014

-- 1 of 17 --

KAYATTA, Circuit Judge. The National Oceanic and
Atmospheric Administration ("NOAA") determined Frontier Fishing
liable for trawling in a restricted gear area in violation of
regulations promulgated under the Magnuson-Stevens Fishing
Conservation and Management Act, 16 U.S.C. §§ 1801-1891d. NOAA
fined Frontier Fishing $10,000 and suspended one-quarter of
Frontier Fishing's seasonal fishing days under its Northeast
Scallop Days-at-Sea Permit. Frontier Fishing appeals, arguing that
the record lacks substantial evidence for a rational finding that
its vessel trawled in the restricted area, and challenging other
aspects of the agency proceedings. Largely for reasons given by the
district court, we affirm.
I. Background
The lengthy background out of which this appeal arises
covers nearly seventeen years and is impressively reviewed in the
most recent district court opinion. See Frontier Fishing Corp. v.
Locke, No. 10-10162, 2013 WL 2090551 (D. Mass. May 13, 2013). We
repeat only as much as is necessary to explain our ruling.
A. The Night of the Violation
On the evening of October 16, 1997, the crew of the Coast
Guard cutter Spencer detected a radar contact up to one mile inside
Restricted Gear Area 1, southeast of Nantucket. From October 1 to
June 15, Restricted Gear Area 1 was open only to fixed fishing
-2-

-- 2 of 17 --

gear, like lobster traps marked with "high flyers." 1 The applicable
regulations prohibited the use of mobile fishing gear, like trawl
nets. See 50 C.F.R. § 648.14(a)(98) (1997).
Following the crew's initial report of a contact in the
restricted area, Spencer's commander, Charley Diaz, verified the
contact on bridge radar, and assigned identification number 8174 to
the object indicated by the radar. At 21:30, a Coast Guard lookout
observed a white light on the horizon. Crew members thereafter
maintained visual contact with the lit object using oversized
binoculars known as "big eyes." As the Coast Guard cutter got
closer, crew members observed green over white lights, indicating
a fishing vessel trawling at night. Commander Diaz then directed
his crew to plot the radar contact's location. At 21:40, the Coast
Guard proceeded to record the following data: Spencer's own
position using its navigational system and DGPS, which determines
and records location in longitude and latitude; the radar range and
bearing of target 8174; and the course and speed of target 8174 as
determined by the Command Display and Control system. Using this
data, the Coast Guard plotted the location of radar contact 8174 at
21:40 approximately seven-tenths of a mile inside the restricted
area.
1A high flyer is a radar reflector, attached to a lobster trap
buoy, that assists lobster boats locating their traps.
-3-

-- 3 of 17 --

In addition to recording data on electronic equipment,
other members of Spencer's crew simultaneously used an alidade 2 to
determine by sight the bearing of the observed lights. Commander
Diaz himself checked the approximate position of the contact both
visually and through radar equipment. The Coast Guard crew did not
detect by sight or radar any other vessels in the area at that
time. Shortly after determining that the 21:40 radar contact was
within the restricted gear area, the Coast Guard altered course to
intercept the target at a high rate of speed. The Coast Guard
ultimately recorded range and bearing data for radar contact 8174
three additional times showing it within the restricted area, at
21:47, 21:52, and 21:58. We note that the various readings estimate
location at the time of the reading without implying that contact
8174 moved in a straight line from one location to the other.
At 22:00, Spencer closed on a fishing vessel that all
parties agree was Settler, a 90-foot trawler owned by Frontier
Fishing, which had departed New Bedford, Massachusetts earlier that
day on a monkfish trawling expedition. Commander Diaz estimated
that Settler was 1,000 yards off Spencer's starboard side at 22:00.
Commander Diaz visually confirmed that Settler had mobile fishing
gear deployed off its stern. Spencer then quickly turned around
Settler and ended up on its port quarter, where Spencer remained
2"A telescope mounted on a compass repeater and used as part
of a ship's navigational equipment for taking bearings." W EBSTER 'S
THIRD NEW I NTERNATIONAL DICTIONARY at 53 (1986).
-4-

-- 4 of 17 --

parallel to Settler for several minutes. It is undisputed that this
interception occurred just outside the restricted gear area, at
approximately 22:08. The Coast Guard maintained continuous visual
contact with the lit object it had observed throughout its approach
that night.
The Coast Guard subsequently issued Settler a citation
for violating regulations promulgated under the Magnuson-Stevens
Act. See 50 C.F.R. § 648.14(a)(98) (1997). Two years later, NOAA
issued Frontier Fishing a Notice of Violation and Assessment and a
Notice of Permit Sanction.
B. Frontier Fishing's Challenges to the Finding of Liability
During the seventeen years since the Coast Guard cited
Settler, Frontier Fishing has consistently denied that Settler was
actually in the restricted area. Central to Frontier Fishing's
position is the radar contact recorded at 21:58 just inside the
restricted area. That location is simply too far from the location
that Spencer's captain estimated observing Settler two minutes
later, at 22:00 (approximately 1,000 yards from Spencer). Frontier
Fishing built two arguments based on this discrepancy: it must have
been another vessel that the Coast Guard was tracking by radar (the
phantom vessel theory); or, in any event, any unreliability of the
21:58 readings rendered unreliable the other range and bearing
readings, most crucially those used to plot the 21:40 contact upon
which the citation rests.
-5-

-- 5 of 17 --

The adjudication of Frontier Fishing's challenge based on
these arguments worked its way through an administrative law judge,
to the NOAA administrator, to the district court (which remanded
for de novo review), Frontier Fishing Corp. v. Evans, 429 F. Supp.
2d 316, 335 (D. Mass. 2006), back through the same administrative
law judge, to the administrator again, back for a de novo review by
a different administrative law judge, to the administrator for a
third time, and finally to the district court again, which this
time affirmed NOAA's ultimate finding of liability.
In finding Frontier Fishing liable, NOAA rested largely
on the fact that the evidence was clear that a vessel was in the
restricted area at 21:40, and Settler, viewed in the direction of
the radar sightings and eventually intercepted just outside the
restricted area, was the only vessel that could have been the
contact identified at 21:40. In reaching that finding, NOAA agreed
with Frontier Fishing that the 21:58 contact could not have
represented an accurate depiction of where Settler was located at
that time. NOAA nevertheless rejected the hypothetical explanation
for the 21:58 contact proffered by Frontier Fishing: that there was
a second phantom vessel visible to radar but not by sight, and that
Settler itself was invisible to radar although visible by sight.
Instead, NOAA opted for the explanation that the 21:58 contact was
Settler, albeit erroneously located. In so reasoning, NOAA noted
that the 21:40 plot placed a vessel well inside the area, that the
-6-

-- 6 of 17 --

parties agreed that "something" spotted by the radar was in the
area at the time, that the Coast Guard crew visually observed a
lighted vessel in the direction of the 21:40 contact, and that any
suggestion that the Coast Guard somehow missed a second vessel
throughout the entire sequence of events was simply not credible
given Spencer's radar capabilities and the observations of both the
Settler and Spencer crews.
II. Standard of Review
The Magnuson-Stevens Act incorporates the standard of
review from the Administrative Procedure Act (APA), and thus we
look for substantial evidence to support the agency's final
decision. See 16 U.S.C. § 1858(b); 5 U.S.C. § 706(2); N. Wind, Inc.
v. Daley, 200 F.3d 13, 17 (1st Cir. 1999). Under the substantial
evidence test, "the agency's decision is presumed valid." N. Wind,
200 F.3d at 17. "'[I]t requires not the degree of evidence which
satisfies the court that the requisite fact exists, but merely the
degree that could satisfy a reasonable factfinder.'" Penobscot Air
Servs., Ltd. v. Fed. Aviation Admin., 164 F.3d 713, 718 (1st Cir.
1999) (quoting Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522
U.S. 359, 377 (1998)). The agency's findings must be set aside when
the record before the court "'clearly precludes the [agency's]
decision from being justified by a fair estimate of the worth of
the testimony of witnesses or its informed judgment on matters
within its special competence.'" Penobscot, 164 F.3d at 718
-7-

-- 7 of 17 --

(quoting Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 490
(1951)).
Our review of the district court's decision is de novo,
because the district court reviewed only the administrative record
and thus was "in no better position to review the agency than the
court of appeals." Puerto Rico v. United States, 490 F.3d 50, 61
(1st Cir. 2007) (internal quotations and citations omitted).
III. Analysis
A. Frontier Fishing's Procedural Complaints
Before addressing the substance of Frontier Fishing's
arguments on the matter of Settler's location, we address two
procedural arguments preserved by Frontier Fishing and pressed on
appeal.
1. Refusal to Supplement the Administrative Record
During discovery prior to the very first hearing, NOAA
produced to Frontier Fishing a one-page document that consisted of
a single handwritten entry on a form like the Coast Guard's radar
tracking log form. Dated October 16, 1997, with a time entry of
"10:19", the document listed a "track" of "8174", "remarks" of
"Settler Pts" and navigation data that Frontier Fishing's expert
claimed shows contact 8174 at 22:19 located well inside the
restricted area and a long way off from where Settler was
admittedly located post-intercept by Spencer. Due to the passage of
-8-

-- 8 of 17 --

time, discovery shed no light on what exactly this document was, or
who created it.
At the first hearing, in August 2001, Frontier Fishing
did not offer this document into evidence. Subsequently, it sought
to introduce it in its first appeal to the district court. The
district court rejected the attempt to supplement the record before
the court. Frontier Fishing, 429 F. Supp. 2d at 325. In remanding,
however, the district court did not preclude "such further
development of the record . . . as appears advisable to the ALJ."
Id. at 335.
ALJ Devine denied Frontier Fishing's request to
supplement the record compiled at the first hearing by adding
Exhibit 15. The ALJ questioned the relevance of the document,
noting that it was unsigned and was not annotated in standard form.
Most significantly, the document could not have any relevance
unless the time entry of "10:19" were construed as 10:19 p.m.
(i.e., 22:19), which would suggest no one accustomed to use of
military time on such documents wrote it. Finally, the ALJ observed
that Frontier Fishing had a full and fair opportunity to offer the
document at the original hearing, and did not do so.
In so ruling, the ALJ did not abuse the discretion left
to him on remand. His observations regarding the questionable
materiality and provenance of the document speak for themselves.
Frontier Fishing fails, also, to offer any good cause for why it
-9-

-- 9 of 17 --

did not offer the document at the first hearing, claiming only
negligence by prior counsel (whom the ALJ found to have presented
a vigorous defense).
2. Denial of Request for Additional Discovery
Frontier Fishing argues on appeal that the NOAA and the
district court erred in denying requests for additional discovery.
"We disturb a district court's management of discovery 'only upon
a clear showing of manifest injustice, that is, where the lower
court's discovery order was plainly wrong and resulted in
substantial prejudice to the aggrieved party.'" Olsen v. United
States, 414 F.3d 144, 156 (1st Cir. 2005) (quoting Mack v. Great
Atl. & Pac. Tea Co., 871 F.2d 179, 186 (1st Cir. 1989)). Generally,
further discovery is not allowed in an action for judicial review
upon an administrative record for the same reasons that
supplementation is generally not permitted. Id. at 155-56. "It is
almost inherent in the idea of reviewing agency or other
administrative action for reasonableness; how could an
administrator act unreasonably by ignoring information never
presented to it?" Liston v. Unum Corp. Officer Severance Plan, 330
F.3d 19, 23 (1st Cir. 2003). As for NOAA's denial of additional
discovery, the applicable agency rule gave the ALJ the discretion
to "allow additional discovery only upon a showing of relevance,
need, and reasonable scope of the evidence sought." 15 C.F.R.
§ 904.240(b). For the reasons stated by the ALJ and the district
-10-

-- 10 of 17 --

court, we find that this is not one of those unusual cases in which
a district court or an agency must allow additional discovery.
Frontier Fishing (1) was given ample opportunity to conduct
reasonable discovery throughout the various administrative
proceedings; (2) was able to move for summary judgment without the
information it now seeks through further discovery; and (3)
received all of the information the agency used to make its
determination. Frontier Fishing Corp., 429 F. Supp. 2d at 326.
B. The Merits
We begin our analysis of the merits with several
observations amply supported by the record. First, prior to 21:40,
the cutter's crew spotted one set of lights in the general
direction of the restricted area, prompting the taking of a plotted
radar contact at 21:40. Second, Frontier Fishing, by conceding that
the Coast Guard reliably plotted 'something' in the restricted gear
area, agreed that the position of radar contact 8174 at 21:40 was
.69 nautical miles inside the restricted gear area. 3 Third, there
is no claim that the distance between that location and the
location where Spencer intercepted Settler just outside the area
was too far for Settler to travel between 21:40 and 22:08. Fourth,
during the entire incident, no crew member of either vessel
observed any other lights or vessels, nor did Spencer's radar
3 Spencer's quartermaster placed it approximately 200 yards
further inside the area.
-11-

-- 11 of 17 --

detect two vessels at any point during the relevant events. Fourth,
Settler could not have been in the location of the radar contact as
recorded at 21:58 because that location was too far from the
location at which Commander Diaz estimated Settler at 22:00,
approximately 1,000 yards away from Spencer.
NOAA's take on the foregoing information was that radar
contact 8174 was Settler, and that the 21:58 radar contact was
erroneously recorded. The primary alternative explanation tendered
by Frontier Fishing is that there was a phantom vessel that moved
from the site of the 21:40 plot to the sites of the 21:47, 21:52,
and 21:58 contacts, and then disappeared from the radar. This
explanation presumes that Settler itself was invisible to the radar
until after 21:58, while the phantom vessel by coincidence remained
visible to the radar until after 21:58 but invisible to the eyes of
those on both Settler and Spencer on an evening when visibility was
eight miles.
NOAA, which plainly has much more expertise with such
matters than do we, rejected this explanation as not credible.
Substantial evidence supports this conclusion. Spencer's radar was
set to pick up vessels within twelve nautical miles. Frontier
Fishing's claim that "radar clutter" from "high flyers" in the area
may have blinded Spencer's radar does not persuasively explain how
Spencer's radar would repeatedly detect one moving vessel and not
the other over the course of a half hour. And the commanders of
-12-

-- 12 of 17 --

both Spencer and Settler testified that they could tell the
difference on radar between high flyers and a vessel.
Frontier Fishing claims that the Coast Guard never
visually correlated radar target 8174 to the lighted vessel, and
that Spencer's steady approach to the lighted vessel was actually
consistent with Frontier Fishing's claim that Settler maintained a
straight, southerly trawl path outside the restricted area, and was
not consistent with target 8174's radar plots. Frontier Fishing's
expert testified that "the heading and maneuvering of [Spencer] was
always directed at the trawler lights and at no time was
[Spencer's] maneuvering or heading directed toward any of the radar
points purported to be [Settler]." Of course the alidade readings
cut against this theory, so Frontier Fishing points to an absence
of any written reference to those readings in some reports, as
implying that the crew of Spencer actually took no such visual
bearings.
NOAA considered Frontier Fishing's expert analysis on
this point and rejected it. NOAA found that "there is no evidence
of a continuous navigational track for [Settler]," as assumed by
Frontier Fishing's expert. The ALJ noted that Frontier Fishing's
expert relied on Settler's manually inputted 21:30 waypoint
position to support his analysis, and that no corroborating
evidence supports Frontier Fishing's allegation that Settler
actually began trawling at the manually inputted waypoint position.
-13-

-- 13 of 17 --

Further, nothing in the record conclusively established that
Spencer's approach angles, cited by Frontier Fishing's expert,
would be unreasonable for intercepting another vessel at high
speed. Contrary to Frontier Fishing's claim, we also note multiple
instances in the record that show the crew did correlate radar
readings with its visual sightings using an alidade. For example,
in the offense investigation report, Commander Diaz noted that he
himself at one point "shot a bearing" of Settler using Spencer's
starboard alidade. He also testified that Coast Guard crew
determined target 8174's location at 21:40 using "an alidade
bearing, a radar range and [Spencer's] electronic DGPS position."
A quartermaster also testified to the use of an alidade that night.
While not supported by all the evidence in the record--
acknowledging that several crew member reports do lack specific
reference to alidade use--NOAA's conclusion that Coast Guard crew
properly correlated the 21:40 radar reading and visual sightings
was supported by substantial evidence, given the testimony by crew
members at the hearings. The ALJ's decision to credit the testimony
from Coast Guard crew on this point, and not Frontier Fishing's
expert's analysis, based on uncorroborated assertions, constituted
a reasonable resolution of the record.
Substantial evidence also amply supports the finding that
the presumed location of the 21:58 radar contact was simply an
error. The 21:58 reading was taken after the chase was on, as
-14-

-- 14 of 17 --

Spencer traveled at high speed in the direction of Settler. The
quartermaster recorded the reading by hand, based on information
relayed to him verbally by other crew members. The measurement's
baseline margin of error was as much as 200 yards, although that
was not enough, even doubled, to account for the discrepancy
between the 21:58 location and the 22:00 estimated position. The
ALJ, however, cited as well the fact that, once the 21:40 plot was
confirmed as a vessel within the restricted area, the crew would
have devoted attention to the law enforcement and safety
considerations manifest in the visually observed rapid pursuit of
that vessel. And, in affirming the ALJ's decision, NOAA pointed to
the fact that the 21:58 bearings were "taken when the vessels were
closing in on each other at high speed." In short, the record
supports the conclusion that human error provided an additional
reason, beyond random error, to distinguish the 21:58 readings from
the 21:40 plot. So, too, once one concludes that the convincing and
reinforcing radar and visual evidence placed Settler at the 21:40
plot and that it was unbelievable that Settler remained invisible
to radar while another visually invisible vessel was detectable by
radar in a peek-a-boo manner, it follows, as Sherlock Holmes might
observe, that the 21:58 location must have been wrong for the
reasons suggested. And given the undisputed fact that the vessel
detected at 21:40 was inside the area, it matters not that the
21:58 reading of that same vessel was itself erroneous.
-15-

-- 15 of 17 --

We also recognize that Frontier Fishing, throughout its
brief, makes a series of objections to NOAA's handling of this
case. None of these objections leads inexorably to the conclusion
that substantial evidence does not support the finding that Settler
trawled illegally at 21:40. Frontier Fishing claims in essence that
both ALJs and the Administrator all joined together with the Coast
Guard in overzealous enforcement, in such a manner to render the
NOAA's decisions unreliable. We have reviewed the record as a whole
and find nothing that would support such a claim. The record here
contained a complicated set of facts. That these extensive and
complicated facts do not all neatly fit together does not thereby
support a finding that NOAA proceeded in a manner that would allow
its conclusions to be disregarded as biased. See N.L.R.B. v. Hosp.
San Pablo, Inc., 207 F.3d 67, 70 (1st Cir. 2000) (internal
quotations and citation omitted)("[T]he possibility of drawing two
inconsistent conclusions from the evidence does not prevent an
administrative agency's finding from being supported by substantial
evidence.")
In so concluding, we do not suggest that the case against
Frontier Fishing was ironclad. The vessels' relative locations in
relationship to the restricted area boundaries potentially rendered
location by visual sighting insufficiently precise. And the point
of interception was outside the area. Perhaps Settler was in the
wrong (but legal) place at exactly the wrong time when unusual
-16-

-- 16 of 17 --

radar conditions masked the visually obvious Settler even as the
radar clearly and repeatedly detected an inexplicably unlit vessel
moving nearby, but in the restricted area. Just as the district
court did, we hold only that, in rejecting this interpretation of
the evidence, NOAA acted neither irrationally nor without minimally
sufficient support in the record to conclude that Settler was the
vessel plotted in the restricted area at 21:40. In short, the
record here does not "clearly preclude[] the [agency's] decision
from being justified by a fair estimate of the worth of the
testimony of witnesses or its informed judgment on matters within
its special competence." Penobscot, 164 F.3d at 718 (quoting
Universal Camera Corp., 340 U.S. at 490) (internal quotation marks
omitted).
IV. Conclusion
Substantial evidence supports NOAA's finding.
Consequently, and for the reasons outlined above, we affirm the
district court's decision upholding the NOAA Administrator's final
decision. So ordered.
-17-

-- 17 of 17 --