Judge's Opinion on Snapper Grouper Amendment 13C ... - SAFMC.net

Case 1:06-cv-01815-JDB Document 34 Filed 08/17/2007 Page 64 of 65vacatur of a partially valid rule would only serve to stall progress where it is most needed").There are also significant practical questions whose resolution will dictate whether certainremedies will be viable and effective. For example, a quick review of the final Federal Registerentry on Amendment 13C reveals that the grant of summary judgment on Count III will affectvarious provisions relating to snowy grouper and black sea bass; these provisions are scatteredacross a number of different regulations in Part 622 of the Code of Federal Regulations. It is notclear which of the regulations (or the subparts thereof) the Court would have to vacate even wereit to grant plaintiffs the broadest relief that they seek. Just as critical are unanswered questionsregarding the Secretary's ability timely to remedy the absence of a rebuilding plan. Counsel forthe Secretary represented as recently as at the motions hearing in June that a public-hearing draftof a plan amendment containing rebuilding measures will be available by September of this year.Prelim. Tr. at 28. But as the lengthy process that culminated in Amendment 13C demonstrates, apublic-hearing draft, even if ready in September, does not mean that the rebuilding measures willtake effect any time soon. It may therefore be necessary, as plaintiffs' counsel put it, "to hold theagency's feet to the fire to get something done." Id. at 59.These concerns support tracing a cautious remedial path that takes the parties' views intoaccount and that preserves the status quo while those views are sought. Although district courtsdo not possess the formal ability to vacate a rule and then withhold the mandate (as the court ofappeals did in Chamber of Commerce), this Court can follow a course that has a similar effectand that allows an analogous opportunity for input by the parties. Specifically, the Court willorder the parties to confer and, within thirty days, to submit either a joint proposal or separateproposals advocating a particular remedy and explaining why that remedy is appropriate. The64