Unpublished Disposition, 852 F.2d 572 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 572 (9th Cir. 1987)

NORTH PACIFIC FISHING VESSEL OWNERS' ASSOCIATION, et al.,Plaintiffs- Appellants,v.Bill SHEFFIELD, Governor, State of Alaska, et al.,Defendants-Appellees.

No. 87-3646.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 1988.Decided July 7, 1988.

Before EUGENE A. WRIGHT, FERGUSON and BRUNETTI, Circuit Judges.


MEMORANDUM* 

The North Pacific Fishing Vessel Owners' Association (NPFVOA) and two individual named plaintiffs (collectively hereinafter "appellants") appeal the district court's denial of their motion for attorney's fees under 42 U.S.C. § 1988. Appellants claim that the district court erred in ruling that they were not entitled to attorney's fees because they had not made a cognizable claim under 42 U.S.C. § 1983. Appellants argue that they made a valid statutory claim under the Magnuson Fishery Conservation and Management Act (Magnuson Act), as well as valid constitutional claims under the Supremacy Clause, the Commerce Clause, the Due Process and Equal Protection clauses of the Fourteenth Amendment, and under the Privileges and Immunities Clause of Article IV, section 2, and that any one of these provided a basis for a section 1983 claim.

In 1978, the Secretary of Commerce, acting under the authority of the Magnuson Act (16 U.S.C. §§ 1801-1882), promulgated regulations which restricted vessels operating in Alaska's various geographic fishing areas delineated in the Act. These areas, or "Fishing Control Zones" ("FCZs"), encompassed the oceanic expanse from the Alaska's territorial boundary of three miles to a line 200 miles offshore. The relevant regulations defined certain areas to be non-exclusive. See 50 C.F.R. Secs. 671.23, 671.24 (suspended 51 Fed.Reg. 40,02 7, 40,029 (1986), repealed 52 Fed.Reg. 17,577, 17,579 (1987)).

In March of 1983, the state of Alaska's Board of Fisheries adopted regulations for the 1984 Tanner crab season which designated as "super-exclusive" the same FCZs referenced in the federal regulations. Under these state regulations, anyone registered to take Tanner crab in the super-exclusive areas would not be permitted to fish or take crab in any other area. Violation of these regulations could result in potential seizure of the vessel and arrest. In addition, the state regulations placed restrictions on the number of crab pots that each vessel could use while operating in a separate area defined as the Kodiak District.

Shortly after the state adopted these regulations, the North Pacific Fishery Management Council, an advisory council to the Secretary of Commerce, considered whether the federal government should adopt the state restrictions at issue. The Council ultimately rejected the idea in September of 1983 in part because the Council found that, while unable to make a "quantitative estimate," they believed that the proposed regulations could have a disparate impact between "local" and "non-local" vessels.1 

Just prior to the scheduled February 10 opening of the Tanner crab season, the governor's office issued a press release which stated that these new regulations would be specifically enforced. Shortly thereafter, appellants filed a complaint seeking declaratory and injunctive relief against enforcement of the state regulations. On February 9, the district court granted a temporary restraining order. That same day, the Alaska Board of Fisheries repealed the challenged regulations.

Appellants subsequently filed for attorney's fees. At a hearing on the motion, counsel for the state raised the possibility that the state might try to reenact the challenged regulations. Since such action would require appellants to go to trial on the merits of their claims--and thus possibly increase their attorney's fees--the court reserved its decision on appellants' motion for fees.

The parties later stipulated to a dismissal of the action, conditioned upon the state's agreement not to implement similar regulations in the future. Appellants then filed a supplemental motion for attorney's fees. On June 21, 1985 the district court issued an order dismissing the case, "subject to plaintiffs' motion and supplemental motion for an award of attorney's fees, costs, and expenses, both parties having reserved the right to appeal said disposition."

The district court's original dismissal order was premised exclusively on appellants' preemption claim. None of the other constitutional claims were mentioned. On January 21, 1987, after supplemental responses had been made by both parties, the district court issued an order denying the appellants' motion for attorney's fees. The court stated that, while appellants had "prevailed on the merits," they had failed to state any cognizable section 1983 claim. The court also stated that it had relied primarily on the Supremacy Clause challenge in granting the temporary restraining order, and neither that claim nor any of appellants' other claims sufficiently supported a request for attorney's fees under section 1988.

The district court's denial of attorney's fees under 42 U.S.C. § 1988 is reviewable under an abuse of discretion standard. Ackerley Communications v. City of Salem, Oregon, 752 F.2d 1394 (9th Cir.), cert. denied sub nom., County of Mulnomah v. Ackerley Communications, Inc., 472 U.S. 1028 (1985). The elements of legal analysis and statutory interpretation which were involved in the district court's decision are reviewed de novo. Hall v. Bolger, 768 F.2d 1148, 1150 (9th Cir. 1985).

Appellants argue that the district court's ruling was in error because their claims under the Supremacy Clause, the Commerce Clause, the Due Process and Equal Protection clauses of the Fourteenth Amendment, and the Privileges and Immunities Clause, as well as their claim under the Magnuson Act are sufficient to bring them under the purview of section 1988. Material to the analysis of appellants' claims is an understanding of what constitutes a cognizable section 1983 action which, though unadjudicated by the trial court, would support a claim for attorney's fees under section 1988.

Section 1983 provides a remedy for the deprivation of "rights, privileges, or immunities secured by the Constitution and laws...." 42 U.S.C. § 1983. While ultimate success on a section 1983 claim is not required for an award of attorney's fees under section 1988, Maher v. Gagne, 448 U.S. 122, 132 (1980), the Supreme Court has noted that consideration must be given to the "relationship between the claims on which effort was expended and the ultimate relief obtained." Smith v. Robinson, 468 U.S. 992, 1006 (1984). Thus, recovery of attorney's fees under section 1988 is only available when an undecided claim meets the "substantiality" test of Hagans v. Levine, 415 U.S. 528 (1974), and Maher v. Gagne, requiring that the plaintiff "allege constitutional violations sufficiently substantial to support federal jurisdiction." United States v. State of Washington, 813 F.2d 1020, 1024 (9th Cir. 1987), cert. denied sub nom., Makah Tribe v. Washington, 108 S. Ct. 1593 (1988) (citing Maher, 448 U.S. at 130-31).

Because appellant's Magnuson Act, Supremacy and Commerce clause claims are not actionable under section 1983, the issue of substantiality for purposes of section 1988 is never reached with regard to these claims. As for appellants' remaining claims, while substantiality is relevant, the claims nonetheless fail. Each of these issues will be discussed in turn.

Appellants claim that they have a cause of action to enforce the Magnuson Act under section 1983 which entitles them to collect attorney's fees under section 1988. We disagree.

In Maine v. Thiboutot, 448 U.S. 1 (1980), the Supreme Court held that individuals may have a section 1983 cause of action against state officials for violations of federal statutes. However, two exceptions to this presumption that a section 1983 remedy exists were recently summarized by the Court as follows:

where Congress has foreclosed such enforcement of the statute in the enactment itself and where the statute did not create enforceable rights, privileges, or immunities within the meaning of Sec. 1983.

Wright v. City of Roanoke Redev. & Housing Auth., 107 S. Ct. 766, 770 (1987).

Regarding the first exception, this court has stated that where a statute's enforcement scheme is sufficiently comprehensive, an intent to foreclose private enforcement can be inferred. Almond Hill School v. United States Dept. of Agr., 768 F.2d 1030, 1035 (9th Cir. 1985).

The Magnuson Act provides various enforcement mechanisms, and remedies including civil fines, civil forfeiture, and criminal penalties. 16 U.S.C. §§ 1858-1860. Enforcement responsibility for the Act has been entrusted to the Secretary of Commerce and "the Secretary of the department in which the Coast Guard is operating," and their delegatees. 16 U.S.C. § 1861(a). Section 1856(b) is especially relevant to the instant case in that it addresses circumstances in which state regulation lies in direct conflict with the federal regulatory scheme. The section provides that the Secretary of Commerce may exercise preemptive powers over a state fishing regulation, inter alia, where the state action "will substantially and adversely affect the carrying out of [the federal] fishery management plan...." 16 U.S.C. § 1856(b) (1) (B).

We hold that by enacting this comprehensive remedial scheme, Congress intended to foreclose private enforcement of the Act through section 1983.

Even if we did not find that appellants' cause of action was barred by the Act's comprehensive remedial scheme, however, appellants would still be barred by the second exception to the presumption of section 1983 availability because the Magnuson Act does not create enforceable rights in favor of appellants. Appellants contend that the Magnuson Act gives them a "right to fish." To have a federal right cognizable under section 1983, appellants must be members of the class for whose particular benefit the Magnuson Act was enacted. See Boatowners and Tenants Ass'n v. Port of Seattle, 716 F.2d 669, 672 (9th Cir. 1983) (reiterating the Cort v. Ash, 422 U.S. 66 (1975), analysis for implying private rights of action from statutes). "The question is not simply who would benefit from the Act, but whether Congress intended to confer federal rights upon those beneficiaries." California v. Sierra Club, 451 U.S. 287, 294 (1981). While appellants are beneficiaries of the Act because of the Act's restrictions on foreign fleets, we find nothing in the statute which demonstrates that Congress intended to confer federal rights on them. Cf. Boatowners, 716 F.2d at 673 ("There is no indication that the statute was intended to benefit specially the pleasure craft owners ... nor that Congress intended to confer federal rights on [them]."). Rather, the Act was passed to protect the domestic fisheries from depletion. See Washington State Charterboat Association v. Baldridge, 702 F.2d 820, 823-24 (9th Cir. 1983), cert. denied, 464 U.S. 1053 (1984), and therefore does not confer rights upon appellants.2 

Having concluded that the statutory enforcement provisions are exhaustive and that the Magnuson Act does not confer "enforceable rights" upon appellants, it is clear that the district court did not err in concluding that appellants do not have a section 1983 claim under this theory.

Appellants also argue that they presented a cognizable section 1983 claim under the Supremacy Clause. Recent Ninth Circuit holdings make it clear that generally a preemption claim is not a colorable 1983 action that would allow for recovery of attorney's fees under section 1988. White Mountain Apache Tribe v. Williams, 810 F.2d 844, 848-50 (9th Cir.) (as amended), cert. denied sub nom., White Mountain Appache Tribe v. Arizona State Transp. Bd., 107 S. Ct. 940 (1987); Segundo v. City of Rancho Mirage, 813 F.2d 1387, 1394 (9th Cir. 1987).3 

Neither White Mountain nor Washington, which followed it, involved situations in which there was an "actual conflict" between state and federal law. See White Mountain, 810 F.2d at 850 n. 8; Washington, 813 F.2d at 1023. Thus appellants assert that these cases do not foreclose their Supremacy Clause claim from qualifying as a section 1983 action, since an actual conflict exists between the Magnuson Act and its implementing regulations, and the significantly more restrictive state regulations.

However, the distinction between circumstances in which an actual conflict exists and those presenting a preoccupation issue will only be helpful to appellants if the underlying federal statute confers rights upon them. Cf. Washington, 813 F.2d at 1023. As discussed above, the Magnuson Act confers no such right upon them. Thus appellants' claim for attorney's fees based upon their Supremacy Clause claim is without merit.

Appellants claim that they presented a substantial section 1983 claim under a Commerce Clause theory is equally without merit. This court noted in White Mountain that the Commerce Clause was analogous to the Supremacy Clause in that it functions as an "allocation of power between national and state governments," 810 F.2d at 849, and does not create individual "rights, privileges, and immunities within the meaning of section 1983." 810 F.2d at 850; accord International Org. of Masters, Mates, & Pilots v. Andrews, 831 F.2d 843 (9th Cir. 1987), cert. denied, 108 S. Ct. 1228 (1988). Thus, appellants' Commerce Clause claim also fails to support their motion for attorney's fees.

Like those in White Mountain, appellants in the instant case have "failed to provide ... any meaningful basis" for evaluating their remaining constitutional claims. White Mountain, 810 F.2d at 852. In White Mountain, the only information in the record of the appellant's constitutional claims were the "bare allegations" contained in their complaint. 810 F.2d at 852. It thus appeared to the court that any civil rights claim was at best "an afterthought" to their non-section 1983 claim. Id. at 855; cf. Washington, 813 F.2d at 1024. Appellants in this case have likewise failed to provide a sufficient factual basis for a more favorable assessment of their constitutional claims.

Specifically, appellants claim that certain regulations promulgated under the Magnuson Act,--C.F.R. Secs. 671.23 and 671.24--created a "liberty and property interest" in their right to fish in certain FCZs. These regulations, however, merely discuss vessel registration and inspection. Neither the regulations, nor any section of the statute cited by appellants, create a liberty or property right protected by the constitutional requirement of due process.

Similarly, appellants claim that the state of Alaska has violated their rights under the Equal Protection Clause of the Fourteenth Amendment and the Privileges and Immunities Clause of Article IV, section 2, by enacting regulations specifically intended to discriminate against out-of-state residents.4  In their papers before the district court, however, appellants failed to allege facts sufficient to support these claims.5  Relatedly, they neglected to explain how the few cases they cited actually support or are applicable to the particular facts of this case. Because insufficient facts were alleged, the relevance of this handful of cases is not apparent now and was not apparent when the claim was before the district court. Thus, appellants have not raised substantial equal protection or privileges and immunities claims.6 

From the plain language of the district court's denial of their motion, it is clear that appellants prevailed on the merits of only their Supremacy Clause claim, which itself does not provide a basis for attorney's fees, costs, and expenses under section 1988. Like their Supremacy Clause claim, appellants' claims under the Magnuson Act and the Commerce Clause do not constitute cognizable section 1983 claims. In addition, appellants' other unadjudicated constitutional claims fail as they are not sufficiently supported in the record by either facts or law. Thus, we conclude that the district court was correct in holding that appellants are not entitled to attorney's fees, costs and expenses under section 1988.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The Council defined local vessels to be "all boats whose home port was Chignik, Sand Point or King Cove, owned by a local resident who fishes predominantly in this area."

 2

Appellants claim that Congress' intent to create a privately enforceable right through the Magnuson Act is demonstrated in the Act's requirement that federal regulations "not discriminate between residents of different states," 16 U.S.C. § 1851(a) (4), and through the Act's introduction, articulating the Congressional policy that implementation of the Act be responsive to the needs of U.S. citizens and not unnecessarily impede legitimate uses of the high seas. 16 U.S.C. § 1801(c) (2)-(3). Viewed in context, those sections confer neither substantive rights, nor an enforcement right

 3

In White Mountain, the court held that no section 1983 claim had arisen where the challenged state statute was preempted by the federal government's occupation of the field. 810 F.2d at 852; accord, Segundo, 813 F.2d at 1394

 4

A corporation such as the NPFVOA may not bring a privileges and immunities claim. See Hague v. CIO, 307 U.S. 496, 514 (1939). As to the additional named plaintiffs, while the record shows that they fish in the FCZs at issue, there was nothing in the record before the district court to show that they were in fact non-Alaska residents

 5

Appellants claim that the Alaska regulation would have a discriminatory impact on non-local fishers with large vessels. The Regional Council advising the Secretary of Commerce, noted that the scheme presented in Alaska regulations could unequally impact local and non-local vessels, cautioning, however, that the actual effect "is not entirely clear." Appellants did not present evidence or argument to show that such discriminatory impact was in fact likely to occur, and that such impact would have a discriminatory affect on a particular group because of their status as out-of-state residents

 6

A statute or regulation challenged on the basis of the Privileges and Immunities Clause must make a distinction based upon residence, and must adversely impact non-residents. See, e.g., United Building and Constr. Trades Council v. City of Camden, 465 U.S. 208, 216-17 (1984); Toomer v. Witsell, 334 U.S. 385 (1948); International Org. of Masters, 831 F.2d at 845. Here, there is no such distinction on the face of the state's statute and appellants have not shown that a de facto discriminatory impact would have occurred. While local vessels may be afforded an advantage if they can better afford to fish under the restrictions of the statute, there is nothing in the record to show that all Alaska fishers would be so benefitted. Moreover, it is likely that large Alaska vessels would be equally encumbered. Thus, appellants have raised no tenable issue of impairment of a right protected by the Privileges And Immunities Clause of Article IV, section 2