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Trawler Carolina Lady, Inc. v. Ross

United States District Court, E.D. North Carolina, Eastern Division

May 23, 2019

TRAWLER CAROLINA LADY, INC., a North Carolina Corporation Plaintiff,
v.
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.

          ORDER

          LOUISE W. FLANAGAN United States District Judge.

         This matter is before the court on motions by defendants to limit review to the administrative record (DE 29) and for protective order (DE 39).[1] The issues raised have been briefed fully, and in this posture are ripe for ruling. For the following reasons, the motions are granted.

         BACKGROUND

         Plaintiff 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).[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 applications.

         In particular, as pertinent to the instant motions, the complaint alleges the following information regarding plaintiff's three vessels, their status, and their permitting:

1. F/V CAPT. JEFF
Official Number: 906996
Status: Broken down, being rebuilt.
Permitting: Had fishing permit number 330626 that it couldn't use.
2. F/V MISS TYLER (1)
Official Number: 651715
Status: Operable.
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, 2018.[3]

         In 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.

         The 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 the ...


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