United States District Court, E.D. North Carolina, Eastern Division
TRAWLER CAROLINA LADY, INC., a North Carolina Corporation Plaintiff,
WILBUR ROSS, Secretary of Commerce; CHRIS OLIVER, National Oceanic and Atmospheric Administration Assistant Administrator for Fisheries; MICHAEL PENTONY, National Marine Fisheries Service Regional Administrator, Greater Atlantic Regional Fisheries Office; DAVID GOUVEIA, National Marine Fisheries Service Assistant Regional Administrator for Analysis and Program Support, Greater Atlantic Fisheries Office, Defendants.
W. FLANAGAN United States District Judge.
matter is before the court on motions by defendants to limit
review to the administrative record (DE 29) and for
protective order (DE 39). The issues raised have been briefed
fully, and in this posture are ripe for ruling. For the
following reasons, the motions are granted.
commenced this action on January 31, 2019, against defendants
Wilbur Ross, Secretary of Commerce and subordinate government
agency officials (hereinafter “defendants, ” or
the “government”) seeking judicial review of
administrative decisions by the government denying scallop
fishing permit replacement applications by plaintiff for the
2018/2019 fishing season, ending March 31, 2019. In its first
claim for relief, plaintiff asserts the government violated
the Administrative Procedure Act, 5 U.S.C. § 704, by
wrongfully denying plaintiff's applications to transfer a
scallop fishing permit from one vessel, the F/V CAPT. JEFF,
to another vessel, the F/V MISS TYLER (1), and then to
another vessel, F/V MISS TYLER (2). In its second claim for
relief, for mandamus under 28 U.S.C. § 1361, plaintiff
seeks to compel the government to approve said transfer
particular, as pertinent to the instant motions, the
complaint alleges the following information regarding
plaintiff's three vessels, their status, and their
1. F/V CAPT. JEFF
Official Number: 906996
Status: Broken down, being rebuilt.
Permitting: Had fishing permit number 330626 that it
2. F/V MISS TYLER (1)
Official Number: 651715
Permitting: Plaintiff applied June 12, 2018, to transfer
permit 330626 to F/V MISS TYLER (1), but the government
denied the transfer application on July 16, 2018, because
plaintiff's purchase of F/V MISS TYLER (1) was not an
arms length purchase.
3. F/V MISS TYLER (2), F/K/A LET IT RIDE
Official Number: 522950
Status: Purchased by plaintiff in November 2018, refurbished
with new engine, and now operable.
Permitting: Plaintiff applied on November 26, 2018, to
transfer permit 330626 to F/V MISS TYLER (2). The government
denied the transfer application on December 20,
addition to declaratory and mandamus relief, plaintiff seeks
preliminary injunctive relief and final injunctive relief in
the form of an order allowing plaintiff to fish its allocated
2018/2019 “Days at Sea, ” its 9.9 days carried
over from the previous scallop season, and its six allocated
access trips, “during the 2019/2020 Atlantic Sea
Scallop season should it be unable to fish those allocated
days and trips during the 2018/2019 Atlantic Sea Scallop
season.” (Compl. p. 18). Finally, plaintiff seeks costs
and attorney's fees.
government responded in opposition to the motion for
preliminary injunction on February 25, 2019, arguing that the
relief requested therein was moot because the government had
reconsidered its December 20, 2018, denial of the transfer
application, and it would be issuing the requested
replacement permit for F/V MISS TYLER (2). The government
filed notice of such issuance of replacement permit (new No.
410134) on February 28, 2019, which permit applies to both