Embedded Federal Question Jurisdiction Found in Lobster Case

And Judge Selya's signature flair shows up on an opinion he didn't even author

Today, a panel of the US Court of Appeals for the First Circuit held, in Rhode Island Fisherman's Alliance v. Rhode Island Department of Environmental Management (DEM), that DEM regulations implementing the Atlantic Coastal Fisheries Cooperative Management Act, codified at 16 U.S.C. §§ 5101-5108, were proper despite their retroactive nature. The challenged regulations allocated lobster traps lobsterman in a certain area off the Rhode Island coast based on whether they had had a license to sink traps in that area in 2001-2003.

A preliminary question was whether the case had properly been removed to federal district court under federal question jurisdiction. Plaintiffs, a group of Rhode Island lobstermen, brought suit in state court. Defendants removed the case to federal court, and won summary judgment on the issue of federal question jurisdiction.

Plaintiffs' pleading mentioned only state law on its face. But their argument that DEM lacked the authority to issue retroactive regulations depended, the First Circuit panel explained, on the notion that the regulations were not "expressly required by federal law, regulation or court decision," which would have made their retroactivity kosher under the relevant Rhode Island law.

The panel ruled that a hypothetical "well pleaded" version of their complaint would therefore have included a federal question, because "it is not logically possible for the plaintiffs to prevail on this cause of action without affirmatively answering the embedded question of whether federal law, in the form of a fishery management plan promulgated under the [Atlantic States Marine Fisheries] Compact, 'expressly required' the use of retroactive control dates." The panel further held that the question involved--whether the regulation was required by federal law--was "actually disputed and substantial," and that ruling on this question would not "disturb[] any congressionally approved balance of federal and state judicial responsibilities." Thus, it met all three requirements of Grable & Sons Metal Products v. Darue Engineering and Manufacturing, 545 U.S. 308, 314 (2005).

The panel dispatched with the merits of the case quickly, affirming that various state law challenges to the regulations failed largely for the reasons set forth by the district court below.

In the end, the lobsters off the Rhode Island coast have a little more protection, and anyone who made it through the case (or this precis) has had a small Wright & Miller refresher. (And this writer, compliments of a panel that included Judge Selya, has learned the words "encincture," "exigible," "superrogatory," and "asseverational.")

The full text of the opinion can be found here. There is, as of yet, no news coverage of the opinion.