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
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

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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.

1

A high flyer is a radar reflector, attached to a lobster trap

buoy, that assists lobster boats locating their traps.

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In addition to recording data on electronic equipment,

other members of Spencer's crew simultaneously used an alidade2 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." WEBSTER'S

THIRD NEW INTERNATIONAL DICTIONARY at 53 (1986).

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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.

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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

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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

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(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

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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

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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

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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.

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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

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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.

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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

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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.

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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

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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.

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