WHITE DOVE, INC. vs. DIRECTOR OF THE DIVISION OF MARINE FISHERIES [Note 1] & another. [Note 2]

KAPLAN, J. In December, 1978, the plaintiff White Dove, Inc., a New Jersey corporation engaged in commercial fishing, commenced an action in the United States District Court for the District of Massachusetts attacking on various Federal and "pendent" State grounds the validity of

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322 Code Mass. Regs. Section 6.04, a 1976 regulation of the Massachusetts Division of Marine Fisheries governing the taking of Atlantic bluefin tuna. Under the regulation, the plaintiff's vessel White Dove could not obtain a "special permit," which would entitle it to take bluefin tuna by purse seine, for the reason that it had not operated in that purse seine fishery in Massachusetts prior to 1974. One of the claims advanced by the plaintiff in United States District Court was that the regulation was not authorized by statute. The District Judge denied the plaintiff preliminary injunctive relief against the regulation, and at the same time, on the defendants' motion, certified to this court under S.J.C. Rule 3:21 the question: "Did the Director of the Division of Marine Fisheries have statutory authority under G. L. c. 130, Sections 2, 17A, 80, and 104 to promulgate the 1976 tuna purse-seine regulation?" We shall answer the question, "Yes."

Accompanying the certified question is a statement of facts (see S.J.C. Rule 3:21, Section 3[2], 359 Mass. 790 [1971]) which we condense, avoiding some detail, as follows. It is the giant bluefin tuna (300 pounds and over) that is of interest here. From December to June these fish are not found in Massachusetts waters, as part of the population moves to the Gulf of Mexico and another into mid-Atlantic waters. The fish are first sighted off the Massachusetts coast in early June and remain in the locality -- both within and outside Massachusetts waters -- well into the autumn. Cape Cod Bay is an important fishing ground, and it may be -- so the plaintiff has contended -- that in many, but not all years, the fish appear in "seinable configurations" only within that Bay.

The fish are taken mostly by purse seine or handgear. By the former method, an airplane spots a school and the mother vessel pays out a net around it, closes (purses) the net, and brings the net and contents onto the deck. Handgear fishing is done by individual handline (or rod and reel or harpoon) from relatively small boats.

In recent years the giant bluefin tuna have been destined predominantly for the Japanese market. They are not

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much fancied in this country, being darker, oilier, and with higher concentrations of mercury than the school-size (smaller) tuna.

In 1974, the Director adopted a regulation of the purse seine and handgear fisheries for the tuna. Purse seine fishing was allowed only in September and October but not beyond a total seine quota of 225 short tons; it was limited to vessels "having operated in the purse seine fishery for bluefin tuna in Massachusetts since 1964." Handgear fishermen each had a catch limit of two a day (or, at the option of any individual or company that had taken the fish in 1973, a seasonal limit equal to 80% of his or its 1973 catch).

A Federal Atlantic Tunas Convention Act, 16 U.S.C. Section 971, et seq., was passed in 1975. Regulations thereunder (50 CFR Sections 285.29, 285.30, set forth at 44 Fed. Reg. 36050 [1979]) establish a total quota for all purse seine vessels of 300 tons of the fish; when that weight is reached, this kind of fishing for the giant tuna is closed until the following August 15. Each vessel using hand gear is permitted to take no more than one giant fish a day with a yearly limit for all vessels of 1,128 tons (northern area), or five fish a week with a limit of ninety tons (southern area). There are provisions for giving notice of fish taken.

In view of the Federal regulations, the Director after due procedures adopted the 1976 regulation (reproduced in the margin) [Note 3] repealing the 1974 catch limits. The material provisions

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prohibited seine fishing before September 1, stated that no vessel should take bluefin tuna by purse seine without a "special permit for a regulated fishery" to be issued by the Director, and limited these permits to "those vessels having operated in the purse seine fishery for bluefin tuna in Massachusetts prior to 1974, as ascertained by official vessel logs or other accredited records."

As noted, the plaintiff's vessel White Dove could not qualify for a special permit under the 1976 regulation because it had not participated in the purse seine fishery before 1974; it was not equipped for tuna seining until 1976 and did not attempt such seining (which it could do outside Massachusetts coastal waters notwithstanding the regulation) until 1977. Similarly disqualified were two other prospective applicants for special permits. Only two vessels have obtained such permits, A.A. Ferrante and Sea Rover. The owners of these vessels operate them as a single company, selling the catch to a Japanese company. When the regulation was promulgated in 1976 the Division knew that these two vessels had participated in the seine fishery for the tuna prior to 1974 and knew of no other vessel currently in the fishery which had so participated.

1. The 1976 regulation, in the form of a "proposal," had to be given a public hearing and receive approval by the Marine Fisheries Advisory Commission (established by G. L. c. 21, Section 5A), and, in the form of a regulation, required approval of the Commissioner of Fisheries, Wildlife and Recreational Vehicles, all before issuance by the Director. (See G. L. c. 130, Section 17A, first par., and State Administrative Procedure Act, G. L. c. 30A, Section 2.) The regulation is

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now to be measured against the substantive empowering provisions, notably those of G. L. c. 130, Section 17A and Section 80. The former speaks of proposals "relating to the management of the marine fisheries," eventuating in "rules and regulations...which shall govern the following activities only: (1) The manner of taking fish" (and other listed matters). [Note 4] And Section 80 states in part: "No person shall take or sell fish from a fishery regulated by the director without a regulated marine fishery permit, in addition to any other permit that may be required by this chapter. [Note 5]

The plaintiff points out that there is no statutory provision which in terms authorizes a regulation "limiting entry," whence the plaintiff apparently reasons that all comers (presumably the holders of the ordinary commercial fisherman permits, see n.5) must be allowed to enter the purse seining fishery for the tuna, whose lawful catch has been severely controlled by the Federal authorities in the interests of conservation. But "the management of the

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marine fisheries" in respect to "[t]he manner of taking fish" is a power of considerable dimension. "Manner" is surely not to be read as dealing just with the details of the physical process of reducing fish to possession; it takes in also some regulation of the industrial setup for the taking of fish. And in that connection there is nothing to forbid the Director from applying the device of limiting entry even though that is not made the subject of a separate conferral of power in the statute. Thus, as the Director suggests, the Section 17A (1) power, playing in with the existing tight Federal limitation of the seine fishery catch, could be exerted appropriately to prevent "overcatching." [Note 6] So also the power could be used to prevent "gear" conflicts between the seine and handgear fisheries. [Note 7] Approaching the matter from another angle, we would expect common agreement that it would be a regulation of "manner" to prohibit altogether purse seining for the giant fish (as has been done in the case of salmon, 322 Code Mass. Regs. Section 3.06), and to allow only the handgear method. The 1976 regulation, following progressively the 1974 regulation, may be seen as a step to the end of eliminating the seining of the giant fish in waters within our jurisdiction, for the vessels now allowed special permits will drop out of service or be otherwise eliminated or diverted in the course of time. In promoting any of the purposes mentioned, the Director and his advisors could properly decide to give consideration to the reliance interests of those already in the business of seine fishing for the tuna; hence the use of the device of barring entry to newcomers -- a point on which the recent case of New Orleans v. Dukes, 427 U.S. 297 (1976), is suggestive. [Note 8]

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In light of the foregoing, the validity of the 1976 regulation can be upheld with minimal dependence on various supportive canons of interpretation well settled in this jurisdiction, in particular: That no more need be discerned than some rational relation between the regulation and the empowering statute. See Consolidated Cigar Corp. v. Department of Pub. Health, 372 Mass. 844, 855 (1977); Mourning v. Family Publications Serv., Inc., 411 U.S. 356, 369 (1973). That respect is owing to an agency's own view that its regulation is within the statute. See Casa Loma, Inc. v. Alcoholic Beverages Control Comm'n, 377 Mass. 231, 235 (1979); Board of Educ. v. Assessors of Worcester, 368 Mass. 511, 515-516 (1975). That, indeed, there is a presumption that the regulation does not exceed the statute which is as strong as the presumption that a statute squares with the Constitution. See Levy v. Board of Registration & Discipline in Medicine, 378 Mass. 519, 525 (1979); Colella v. State Racing Comm'n, 360 Mass. 152, 159 (1971).

2. We deal with miscellaneous contentions of the plaintiff which fail, in our view, to overcome the interpretive result indicated. (a) The plaintiff makes a last minute discovery that in 1975 the Department of Natural Resources (which then embraced the Division of Marine Fisheries) sponsored a bill (1975 House Doc. No. 238) to amend Section 17A to grant the Director the power to adopt regulations to govern a sixth "activity" -- "[t]he amount of fishing effort." The Legislature did not adopt the proposal, but it is possible to trace the bill into an enactment which limits to 1,300 the number of commercial lobster permits the Director may issue annually. G. L. c. 130, Section 38B, inserted by St. 1975, c. 484, Section 1. The argument is that the Division and the Legislature

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understood in 1975 that there was a lack of power to issue a regulation on the style of the 1976 regulation and that the bill was designed to supply the power. But it may be that the bill looked simply to a power to limit the number of permits, which the 1976 regulation did not purport to do. In all events, the intimation of a consciousness of lack of power must face the fact that the Division had issued in 1974 a regulation resembling the 1976 regulation. The question, moreover, is what was intended by the original enactment of Section 17A, and inaction by a subsequent Legislature carries little weight in defining that intent. See Massachusetts Comm'n Against Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 193-194 (1976). If inaction is given much weight, an agency would be reluctant to seek merely clarifying amendments for fear of the inference that would be drawn from their failure to pass. Id. at 194.

(b) Counsel remind us of the common law tradition that the right to fish is "public and common to every person," Weston v. Sampson, 8 Cush. 347, 352 (1851), and we are warned against a casual derogation from the common law. It may be enough to say that the current reality is not a common law regime penetrated here and there by statute, but a well statutized law of marine fisheries.

(c) The plaintiff reaches back to Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), for the argument that the licensing of White Dove to engage "in the coasting trade and the taking of fish of every description" under the Federal Enrollment and Licensing Act of 1793, 46 U.S.C. Section 263 (1976), forbids the Commonwealth to bar the plaintiff's vessel from the seine fishing while admitting others vessels to it. We recognize that on this question of preemption we do not have the last word. But as the plaintiff urges us to consider the possibility of preemption as conditioning our interpretation of Section 17A (1), we have to say that Douglas v. Seacoast Prods., Inc., 431 U.S. 265 (1977), suggests that that possibility is remote indeed, since neither our statute nor the regulation thereunder affords any preferential treatment to in-State vessels, and prevention of "overcatching" and so on is

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within the Commonwealth's police power. See Manchester v. Massachusetts, 139 U.S. 240 (1891); Smith v. Maryland, 59 U.S. (18 How.) 71 (1855).

The plaintiff complains, finally, of what it terms the "monopolistic" tendency or effect of the 1976 regulation. But this alleged iniquity is not a matter for consideration here.

The question certified is answered, "Yes." This opinion will be forwarded to the certifying court and the parties in accordance with S.J.C. Rule 3:21, Section 7, 359 Mass. 790 (1971).