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Lovgren v. Byrne

March 26, 1986

GOSTA (SWEDE) LOVGREN
v.
JOHN V. BYRNE, ADMINISTRATOR, UNITED STATES DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, WASHINGTON, D.C. AND THE NATIONAL MARINE FISHERIES SERVICE; UNITED STATES OF AMERICA, DEFENDANT INTERVENOR; GOSTA (SWEDE) LOVGREN AND LOVGREN ENTERPRISES, APPELLANTS



Appeal from the United States District Court for the District of New Jersey - Trenton Civil Action No. 84-2436.

Author: Stapleton

BEFORE: GARTH and STAPLETON, Circuit Judges, and FULLAM, District Judge.*fn*

Opinion OF THE COURT

STAPLETON, Circuit Judge

Gosta Lovgren and Lovgren Enterprises ("Lovgren") were found by an administrative law judge to have violated two regulations issued pursuant to the National Marine Conservation Act, 16 U.S.C. § 1801 et seq. ("The Magnuson Act") and fined $50,000. The district court denied relief and Lovgren appealed to this court. We affirm.

I.

On March 24, 1983, while the LYDIA J, a fishing boat, was unloading its catch at a dock owned by Lovgren Enterprises, agents of the National Marine Service arrived at Lovgren's dock for the purpose of inspecting the fish being unloaded. This was a routine inspection and the officials did not suspect violation of any federal or state law.

The officials identified themselves upon Mr. Lovgren's request. Because his view of the fish already brought ashore was obstructed, Agent Livingston requested permission to climb onto a platform approximately five feet above the dock, upon which Lovgren was already standing. The other officer remained on the dock. The following is Agent Livingston's uncontradicted testimony:

As I proceeded up the ladder, in order to get a better look as to what was coming up the conveyor belt, Mr. Lovgren came to the top rung of the ladder and stood there so I couldn't complete my climb. It was at this time I said to him, you know, I wish to inspect the catch coming off the boat. . . . He said to me you f****** guys s***. You're nothing but a pain in the a**. I don't recognize National Marine Fishing Service's authority to be on my premises, pointing to me, and then he said to Mr. Winkle, he said I have no b**** with the New Jersey, but the National Marine Fishing Service has f***** up this industry and I want you off my property, pointing back to me.

I then asked him, are you prohibiting me from inspecting this boat and its catch on these premises? He said yes, I am. I said thank you very much, have a good night.

Agent Livingston testified that he had felt physically threatened during this encounter. "I was suspended on that ladder in a physically vulnerable position. If I had in my mind proceeded to the top rung and gone that step further there would have been a physical confrontation."

Lovgren was subsequently charged with violating two regulations issued pursuant to the Magnuson Act. An administrative law judge found Lovgren liable on both counts and, despite the fact that the government had requested a total penalty of $5,000, the ALJ ordered a $50,000 find for the two violations. However, the ALJ suspended all but $10,000 of the fine on the conditions that (1) Lovgren cooperate with the government during the pendency of any appeal, and (2) commit no other violations of the Act for three years.

Lovgren's petition to the Administrator of the National Oceanic and Atmospheric Administration was denied. Subsequently, he filed this suit in district court to review the civil penalties. The district court upheld the assessment of the civil penalties and this appeal followed. Lovgren argues that the findings that he had violated the Magnuson Act regulations are not supported by the evidence. He also argues that the doctrine of merger bars his conviction on both counts. Third, he contends that the regulations he was found to have violated are invalid because they are not authorized by the Magnuson Act. Fourth, he contends that he was impermissibly punished for exercising his first amendment rights. Finally, Lovgren argues that the fines assessed by the ALJ are excessive.

III.

A. The Magnuson Act

The Congress's intent in passing the Magnuson Act was to protect our nation's coastal fish. The national fishing industry, and dependent coastal economies from the stresses caused by overfishing in the waters adjacent to territorial waters. 16 U.S.C. § 1801(a)(1).

The Magnuson Act was enacted at a time when overfishing of coastal waters was commonplace, threatening the existence of a number of species of fish. Congress found this threat aggravated by the inability effectively to regulate fishing beyond the three mile jurisdictional limit. See Magnuson, The Fishery Conservation and Management Act of 1976: First Step Toward Improved Management of Marine Fisheries, 52 Wash. L. Rev., 427, 431-33 (1977); see also S. Rep. No. 94-416, 94th Cong., 1st Sess. (1975) reprinted in A Legislative History of The Fishery Conservation and Management Act, Senate Comm. on Commerce, 94th Cong., 2d Sess., 666 (Comm. Print 1976) (hereinafter cited as "Legislative History--S. Rep.").

Congress found that a viable management scheme for the Nation's fishery resources was a necessary concomitant of an extended fishery zone. Title II of the Act established seven Regional Fishery Management Councils (one for each major ocean area) to institute programs for the management and conservation of fishery resources in a "Fishery Conservation Zone" extending 200 nautical miles from the seaward boundary of each of the coastal states. This action was deemed necessary to "assure that a supply of food and other fish products is available on a continuing basis and so that irreversible or long-term adverse effects on fishery resources or on the marine ecosystem are rendered highly unlikely." Legislative History--S. Rep. at 657. Congress found it "absolutely vital that a national management ...


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