Rhode Island Fishermen's Allia v. Rhode Island Department of Env, (1st Cir. 2009)

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United States Court of Appeals

For the First Circuit

No. 08-2390

RHODE ISLAND FISHERMEN'S ALLIANCE, INC., ET AL.,

Plaintiffs, Appellants,

v.

RHODE ISLAND DEPARTMENT OF ENVIRONMENTAL MANAGEMENT ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

 Torruella, Selya and Howard, Circuit Judges.

 

    Robert J. Caron for appellants.

    Sean H. Donahue and Gary E. Powers, Chief Deputy Legal

Counsel, Department of Environmental Management, with whom Donahue

& Goldberg, LLP, Terence J. Tierney, Special Assistant Attorney

General, Mark A. McSally, and Kelly, Kelleher, Reilly & Simpson

were on consolidated brief, for appellees.

 

October 23, 2009

 

         SELYA, Circuit Judge. This appeal brings us face to face

with two exotic creatures: the American lobster and a state-law

claim that may or may not contain an embedded federal question

sufficient to ground a claim of original jurisdiction under 28

U.S.C. § 1331 (commonly known as "federal question" jurisdiction).

Cases of this sort require courts to venture into a murky

jurisprudence. The answers are rarely black or white but, rather,

more often doused in varying shades of gray. The difficult

jurisdictional question presented here is no exception.

         The underlying case began as a state-court challenge to

regulations promulgated by the Rhode Island Department of

Environmental Management (DEM). Those regulations imposed

restrictions on lobster-trap allocations for Rhode Island waters.

The challenge to them centers on the DEM's alleged use of

retroactive control dates in composing the regulatory scheme.

[1]

         The DEM thought that it was obliged to adopt the

retroactive control dates by federal law. Accordingly, it removed

the case to the federal district court. The plaintiffs moved to

remand, but the district court refused to relinquish jurisdiction.

R.I. Fishermen's All., Inc. v. Dep't of Envtl. Mgmt. (RIFA I), No.

07-230 (D.R.I. Nov. 5, 2007) (unpublished order). The court

subsequently granted summary judgment in favor of the defendants.

R.I. Fishermen's All., Inc. v. Dep't of Envtl. Mgmt. (RIFA II), No.

07-230, 2008 WL 4467186, at *16 (D.R.I. Oct. 3, 2008).

         After careful consideration of the plaintiffs' ensuing

appeal, we agree that the district court appropriately exercised

federal question jurisdiction over the case. Once the

jurisdictional puzzle is solved, the challenge to the regulations

is easily dispatched. The tale follows.

I. BACKGROUND

         We rehearse here the regulatory framework and travel of

the case to the extent needed to place this appeal in perspective.

A. Regulatory Framework.

         In 1942, Congress consented to and approved the Atlantic

States Marine Fisheries Compact (the Compact), an interstate

agreement among fifteen states (including Rhode Island) and the

District of Columbia. See Pub. L. No. 77-539, 56 Stat. 267. All

the signatories are situated close to the Atlantic coast.

         Under the Compact, the signatories are to exercise joint

regulatory oversight of their fisheries through the development of

interstate fishery management plans. See Medeiros v. Vincent, 431

F.3d 25, 27-28 (1st Cir. 2005). Originally, participation in any

given fishery management plan was voluntary. Id. In 1993,

however, Congress implanted some teeth in the Compact by adopting

the Atlantic Coastal Fisheries Cooperative Management Act (the

Management Act), Pub. L. No. 103-206, 107 Stat. 2447 (codified at

16 U.S.C. §§ 5101-5108).

         Among other things, the new law made state compliance

with fishery management plans compulsory. See 16 U.S.C.

§ 5104(b)(1). It also designated the Atlantic States Marine

Fisheries Commission (the Commission) as the body that would

prepare and adopt interstate fishery management plans. Id.

§§ 5102(3); 5104(a)(1). The Commission works through species-specific management boards (such as the American Lobster Management

Board) to develop such plans.

         Once a plan is formulated and approved, each affected

state is required to implement it, usually through the medium of

state laws and regulations. See Medeiros, 431 F.3d at 27-28. The

Commission itself monitors compliance. 16 U.S.C. § 5104(c). If a

state fails to comply with an approved plan, the Commission may

notify the Secretary of Commerce, who has the power to impose a

moratorium on fishing of the relevant species in the waters of the

noncompliant state. Id. § 5106(c).

         In 1997, the Commission decided to take steps to combat

rampant overfishing of lobster stock. In a determined effort to

protect the supply of these appetizing arthropods, it adopted

Amendment 3 to the Interstate Fishery Management Plan for American

Lobster. Then, worried about especially rapid depletion of the

lobster stock in "Area 2" — the waters off Massachusetts and Rhode

Island — the American Lobster Management Board engrafted Addendum

VII onto Amendment 3. Addendum VII requires these states to

allocate lobster traps to fishermen based on each fisherman's

documented lobster catch during 2001-2003. See Addendum VII,

§ 2.1.1.

         In 2006, the DEM adopted Regulation 15.14.2 for the

avowed purpose of "bring[ing] the State of Rhode Island into

compliance with Addendum VII." 12-080-012 R.I. Code R. § 15.14.2-1. The taking of lobsters in Rhode Island waters requires either

a federal permit or a state license. See R.I. Gen. Laws § 20-2.1-4(a); 12-080-012 R.I. Code R. § 15.1. The state's licensing

scheme, in turn, involves lobster-trap allocations. See 12-080-012

R.I. Code R. § 15.14.2. Under the new regulation, eligibility for

a lobster-trap allocation depends, inter alia, on a showing (i)

that the applicant held a DEM-issued commercial lobster license or

federal permit for Area 2 at some time in the 2001-2003 time frame;

and (ii) that he had documented lobster landings from traps in Area

2 during that time frame. Id. § 15.14.2-6.

B. Proceedings Below.

         Distressed by what they perceived as the use of

retroactive control dates in the new regulatory framework, the

lobstermen clawed back. On June 4, 2007, the Rhode Island

Fishermen's Alliance, a trade organization acting by and through

its president, Richard Fuka, and eight individual lobster fishermen

(Steven Riley, Brian Loftes, Stephen Mederios, Greg Duckworth,

Vincent Carvalho, Peter DiBiase, Robert Morris, and Andrew

Cavanagh) filed a complaint for declaratory judgment against the

DEM and its director, Michael Sullivan, in his official capacity,

in a Rhode Island state court. The plaintiffs alleged that the

adoption of Regulation 15.14.2 violated the Rhode Island

Constitution and an array of Rhode Island statutes.

         Despite the fact that the complaint alleged only state-law causes of action, defendants DEM and Michael Sullivan invoked

federal question jurisdiction, 28 U.S.C. § 1331, and removed the

case to the United States District Court for the District of Rhode

Island. Shortly thereafter, the Commission and the Rhode Island

Lobstermen's Association, along with seven individual lobster

fishermen (Al Christopher, Lanny Dellinger, Al Eagles, Aaron

Gerwitz, Michael Marchetti, Harry Towne, and Russ Wallace), filed

motions to intervene, which were granted by the district court.

The plaintiffs challenged the existence of federal jurisdiction and

asked the district court to remand the case to the state court.

The district court denied their motion. RIFA I, at 11.

         The case proceeded in the federal forum. In due season,

the parties cross-moved for summary judgment. In a well-reasoned

rescript, the district court granted the defendants' motion and

denied the plaintiffs' motion. RIFA II, 2008 WL 4467186, at *16.

         The plaintiffs now appeal both the denial of their motion

to remand and the entry of summary judgment in favor of the

defendants. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm both rulings.

II. ANALYSIS

         We divide our analysis into two main segments. We first

address the tangled jurisdictional issue and then briefly address

the merits.

A. Jurisdiction.

         The district court denied the motion to remand without an

evidentiary hearing. Thus, we review de novo the propriety of that

order (and, thus, the court's underlying conclusion that it had

subject matter jurisdiction over the action). See Fayard v. N.E.

Vehicle Servs., LLC, 533 F.3d 42, 45 (1st Cir. 2008).

         Removal of a civil action from state to federal court is

proper only if the action initially could have been brought in the

federal court. 28 U.S.C. § 1441(a). Because the defendants

concede that there is no conceivable basis for federal jurisdiction

apart from 28 U.S.C. § 1331, the propriety of removal hinges on

whether the district court had federal question jurisdiction. See

Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1,

11 n.9 (1983).

         The relevant statute grants federal district courts

original jurisdiction over "all civil actions arising under the

Constitution, laws, or treaties of the United States." 28 U.S.C.

§ 1331. There is no mechanical test for determining when an action

"aris[es] under" federal law. See Franchise Tax, 463 U.S. at 8

(noting that the phrase "arising under" has "resisted all attempts

to frame a single, precise definition for determining which cases

fall within, and which cases fall outside, the original

jurisdiction of the district courts"). This does not mean,

however, that we are left rudderless on a sea of uncertainty.

          Experience teaches that there are two types of actions

that fall within the encincture of federal question jurisdiction.

The first (and most familiar) category involves direct federal

questions; that is, suits in which the plaintiff pleads a cause of

action that has its roots in federal law (say, a claim premised on

the United States Constitution or on a federal statute). See,

e.g., Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260

(1916) (Holmes, J.); Almond v. Capital Props., Inc., 212 F.3d 20,

23 (1st Cir. 2000). The second (and far more rare) category

involves embedded federal questions; that is, suits in which the

plaintiff pleads a state-law cause of action, but that cause of

action "necessarily raise[s] a stated federal issue, actually

disputed and substantial, which a federal forum may entertain

without disturbing any congressionally approved balance of federal

and state judicial responsibilities." Grable & Sons Metal Prods.,

Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005); accord Smith

v. Kan. City Title & Trust Co., 255 U.S. 180, 201-02 (1921).

         These categories have some commonalities. Most

prominently, every putative federal question case must pay tribute

to the well-pleaded complaint rule. As this shorthand nomenclature

suggests, the rule requires the federal question to be stated on the

face of the plaintiff's well-pleaded complaint. See Franchise Tax,

463 U.S. at 13 (holding that federal question jurisdiction extends

to "only those cases in which a well-pleaded complaint establishes

either that federal law creates the cause of action or that the

plaintiff's right to relief necessarily depends on resolution of a

substantial question of federal law"). To satisfy the rule, the

plaintiff's well-pleaded complaint must exhibit, within its four

corners, either an explicit federal cause of action or a state-law

cause of action that contains an embedded question of federal law

that is both substantial and disputed. See W. 14th St. Comm'l Corp.

v. 5 W. 14th Owners Corp., 815 F.2d 188, 193 (2d Cir. 1987). The

existence of a federal defense to a state-law cause of action will

not suffice. See Louisville & Nashville R.R. Co. v. Mottley, 211

U.S. 149, 152 (1908).

         In the case at hand, the plaintiffs have pleaded nothing

but state-law causes of action. Consequently, the jurisdictional

inquiry reduces to whether an embedded federal question afforded the

district court original jurisdiction over the action.

         The plaintiffs' complaint limns a wide variety of state

constitutional and statutory claims, attacking the DEM's regulatory

scheme from a number of vantage points. Importantly, however, all

of these causes of action derive from a common nucleus of operative

fact. Thus, if the district court had original jurisdiction over

any one of these causes of action, then it had supplemental

jurisdiction over the rest, see 28 U.S.C. § 1367; United Mine

Workers v. Gibbs, 383 U.S. 715, 725 (1966); Rodriguez v. Doral

Mortg. Corp., 57 F.3d 1168, 1176-77 (1st Cir. 1995); see also

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350-51 (1988)

(holding that the supplemental jurisdiction statute applies with

equal force to cases removed to federal court), and we must answer

the jurisdictional question affirmatively. Mindful of this reality,

we focus the lens of our inquiry on the most promising candidate for

federal jurisdiction: the plaintiffs' claim that the adoption of

Regulation 15.14.2 violated R.I. Gen. Laws § 20-2.1-9.

         In undertaking this task, we follow the three-step

progression suggested by the Supreme Court's decision in Grable, 545

U.S. at 313-16. We start with the most pressing concern: whether

the plaintiffs' well-pleaded complaint necessarily raises a federal

question. If so, we then mull whether the federal question is

actually disputed and substantial. And if the question survives

scrutiny on these points, we last consider whether that question is

one that a federal court may entertain without impermissibly tilting

the balance of federal and state judicial responsibilities.

         1. Necessity. In count 5 of their complaint, the

plaintiffs allege that the defendants violated R.I. Gen. Laws § 20-2.1-9. This statute, in the process of delineating the powers and

duties of the director of the DEM, provides in pertinent part that

"retroactive control dates are prohibited and shall not be used or

implemented, unless expressly required by federal law, regulation

or court decision." The plaintiffs allege that the director

transgressed this prohibition by adopting Regulation 15.14.2-6

(which in their view employs retroactive control dates). This

charge rests on the plaintiffs' argument that retroactive control

dates were not expressly required by federal law because that

"requirement" — supposedly found in Addendum VII — was unenforceable

under the Management Act or, in the alternative, because Amendment

3 allows for "conservation equivalency" measures (and, thus, allowed

Rhode Island to propose an alternative scheme to achieve the goals

of Addendum VII without recourse to retroactive control dates).

         We conclude that the plaintiffs' well-pleaded complaint

establishes that their asserted right to relief under state law

requires resolution of a federal question. To prevail on the

asserted cause of action, the plaintiffs had to show that the

defendants violated R.I. Gen. Laws § 20-2.1-9. This, in turn,

required them to show (i) that the director mandated retroactive

control dates, notwithstanding (ii) that retroactive control dates

were not compulsory under federal law. Thus, 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 Compact, "expressly required" the use of retroactive

control dates. That is enough to make out a federal question. See

Cuyler v. Adams, 449 U.S. 433, 438 (1981) (holding that

interpretation of a congressionally sanctioned compact is a question

of federal law). No more is exigible to surmount the first step of

the Grable progression.

         Indeed, the question of whether the director acted outside

the scope of his authority in using retroactive control dates turns

exclusively on the antecedent (and embedded) federal question of

whether that act was expressly required by federal law. Section 20-2.1-9 affords the director a grant of authority to adopt retroactive

control dates if, and only if, a "federal law, regulation or court

decision" expressly requires their use. Thus, answering the state-law question of whether the director exceeded his authority

necessarily entails answering the embedded federal question of

whether federal law required him to act as he did.

         Of course, a federal preemption defense to a state-law

cause of action is insufficient to confer federal question

jurisdiction on a federal court. See Mottley, 211 U.S. at 152. The

plaintiffs beseech us, by analogy, to apply that analysis here. We

reject their importunings: although there may well be a preemption

defense lurking in the wings,

[2]

that potential defense is not the

hook on which we propose to hang federal question jurisdiction.

Rather, the federal question here is inherent in the state-law

question itself because the state statute expressly references

federal law. Cf. Franchise Tax, 463 U.S. at 13 (declining to extend

federal question jurisdiction where "California law establish[ed]

a set of conditions, without reference to federal law" (emphasis

supplied)).

         The plaintiffs try in various ways to blunt the force of

this reasoning. Their most loudly bruited refrain is that they "do

not challenge the legality [of] any provision of the 'compact'."

Appellants' Br. at 17. This is a red herring.

         In this case, federal jurisdiction does not depend on the

legality of either the Compact or one of its provisions. Instead,

a different federal question is in play: a question of whether

Addendum VII required the DEM to insert retroactive control dates

into the state regulatory scheme. It is this latter question that

undergirds the case for federal jurisdiction.

         The plaintiffs also argue that their claims arise under

Rhode Island law and, therefore, not under federal law. This

argument sets up a false dichotomy. It presumes that claims cannot

simultaneously arise under both federal and state law. That premise

is faulty: federal jurisdiction extends to a case arising under

federal law regardless of whether the cause of action itself has its

genesis in state law. See Smith, 255 U.S. at 201-02.

         Last but not least, the plaintiffs point to their

complaint and protest that they mention only once that the

defendants "essentially adopted . . . Addendum VII." In their view,

that lone allegation — which is contained in the facts and travel

portion of the complaint — cannot serve as a basis for federal

jurisdiction.

         This protestation is correct as far as it goes. Federal

jurisdiction cannot be conjured up by a passing mention of some

federal subject. Under the well-pleaded complaint rule, allegations

in the complaint that are unnecessary to the statement of the

relevant cause of action cannot themselves support a claim of

federal question jurisdiction. See, e.g., Baldwin v. Pirelli

Armstrong Tire Corp., 927 F. Supp. 1046, 1053 (M.D. Tenn. 1996); 13D

Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure

§ 3566 (3d ed. 1999). We can assume, for argument's sake, that it

was not necessary for the plaintiffs to allege that the DEM

"essentially adopted . . . Addendum VII" and, thus, that federal

jurisdiction could not be premised on that allegation.

         In the end, this favorable assumption is small consolation

to the plaintiffs. Here, the claim of entitlement to a federal

forum rests not on the reference in the complaint to Addendum VII

but, rather, on the express incorporation of federal law into the

state statute on which the plaintiffs' cause of action is grounded.

That is a horse of quite a different hue.

         2. Substantiality. Federal jurisdiction based on the

presence of an embedded federal question requires a question that

is both actually disputed and substantial. Grable, 545 U.S. at 313.

This requirement ensures that there is a "serious federal interest

in claiming the advantages thought to be inherent in a federal

forum." Id.

         We need not tarry in resolving the first part of this

inquiry. The parties have hotly contested the issue of whether

federal law obliged the DEM to embrace the concept of retroactive

control dates. Thus, the federal question is actually disputed.

         The second part of the inquiry likewise must be resolved

in the defendants' favor. There is a significant federal interest

in making certain that states comply with federally sanctioned

interstate compacts. See League to Save Lake Tahoe v. Tahoe Reg'l

Planning Agency, 507 F.2d 517, 523-24 (9th Cir. 1974).

         Prior to passage of the Management Act, state compliance

with interstate fishery management plans was voluntary. That

freedom resulted in "disparate, inconsistent, and intermittent State

and Federal regulation," which proved "detrimental to the

conservation and sustainable use of [fishery] resources." 16 U.S.C.

§ 5101(a)(3). These shortcomings prompted Congress to adopt the

Management Act. See Joseph A. Farside, Jr., Note, Atlantic States

Marine Fisheries Commission: Getting a Grip on Slippery Fisheries

Management, 11 Roger Williams U. L. Rev. 231, 238-39 (2005).

         The Management Act demands state compliance with fishery

management plans adopted pursuant to the Compact. See 16 U.S.C.

§ 5104(b)(1). In that regard, the Act makes it pellucid that a

single state's failure "to fully implement a coastal fishery

management plan can affect the status of Atlantic coastal fisheries,

and can discourage other States from fully implementing coastal

fishery management plans." Id. § 5101(a)(5).

         In addition, there is a substantial federal interest in

ensuring that actions taken in pursuance of the Management Act

receive the uniformity of interpretation that a federal forum

offers. This interest is underscored by the fact that Congress

adopted the Management Act, in part, to achieve greater consistency

in the regulation of fisheries. See id. § 5101(a)(3).

         3. The Federal-State Balance. Even if a substantial and

actually disputed federal question is embedded in a state-law claim,

federal jurisdiction will not attach if its exercise will "disturb[]

any congressionally approved balance of federal and state judicial

responsibilities." Grable, 545 U.S. at 314. Consequently, we must

determine whether federal jurisdiction is "consistent with

congressional judgment about the sound division of labor between

state and federal courts." Franchise Tax, 463 U.S. at 8.

         Congress could have, but did not, specifically assigned

disputes touching upon the interpretation of interstate compacts to

either the federal or state judicial systems. The legislative

background, therefore, is consistent with a division of

responsibilities between the two court systems.

         Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804

(1986), exemplifies a case in which exercise of federal jurisdiction

over an embedded federal question would disturb the balance of

federal and state judicial responsibilities. There, the plaintiff

filed a state tort action alleging, among other things, that a

pharmaceutical manufacturer's failure to furnish an adequate warning

for a product violated the Federal Food, Drug, and Cosmetic Act, 21

U.S.C. § 301 et. seq., and therefore created a rebuttable

presumption of negligence. 478 U.S. at 805-06. This, the defendant

said, created an embedded federal question and, thus, supported

removal of the case to federal court.

         The Supreme Court disagreed. Because it is a common

feature of state tort law that violation of any statute may give

rise to a presumption of negligence, see Restatement of Torts § 14,

Reporters' Note, cmt. a (Tent. Draft No. 1, 2001), extending federal

jurisdiction would have "attracted a horde of original filings and

removal cases" to federal courts — cases in which state tort actions

were premised on violations of federal regulations. Grable, 545

U.S. at 318 (discussing Merrell Dow). The Court deemed it highly

doubtful that Congress intended to permit a seismic shift in tort

litigation from state to federal courts on the basis of the

regulations at issue, particularly since Congress had neither

preempted state remedies in the field nor created a private federal

right of action to enforce the regulation. See id. at 319. The

"threatening structural consequences" of opening the gates to

federal question jurisdiction guided the Court's decision to reject

the claim of federal question jurisdiction. Id.

         This case is quite different. The statutory provision at

issue, R.I. Gen. Laws § 20-2.1-9, is sui generis: the Rhode Island

General Assembly's decision to make the limits of state agency

authority dependent on federal law is an odd approach, not found in

any case to which the parties have directed us. To hold that a

claim under this unique statute can support federal question

jurisdiction will not raise the specter of threatening structural

consequences (and, thus, will not disturb the delicate balance of

federal and state judicial power).

         To cinch matters, it is highly unlikely that there will

be many additional suits under section 20-2.1-9, let alone a "horde

of cases" wending their way to federal courts. Past is prologue,

see William Shakespeare, The Tempest act 2, sc. 1 (circa 1610), and

it does not appear that the statute has generated any suit other

than this one.

         To say more on this point would be supererogatory. We

conclude both that Merrell Dow is distinguishable and that the

exercise of federal jurisdiction over a cause of action predicated

on section 20-2.1-9 "would not materially affect, or threaten to

affect, the normal currents of litigation." Grable, 545 U.S. at

319-20. There is, therefore, insufficient cause "to shirk from

federal jurisdiction over the dispositive and contested federal

issue" that lies at the epicenter of this action.

[3]

Id.

         4. Recapitulation. To sum up, in this case all roads lead

to Rome. There is an embedded federal question; answering it is

necessary to a resolution of the asserted state-law cause of action;

that question is both actually disputed and substantial; and

deciding it in a federal forum will not tilt any congressionally

approved balance of federal and state judicial power. Accordingly,

we hold that the district court had jurisdiction over the action and

did not err in denying the plaintiffs' motion to remand.

B. The Merits.

         This brings us to the merits. There is no need to tarry.

         The plaintiffs' asseverational array involves claims that

the contested regulation violates the Rhode Island Constitution and

a myriad of state statutory provisions. See R.I. Gen. Laws §§ 20-2.1-9, 20-7-9, 42-35-3, 42-35-3.3. This onslaught boils down to two

principal assertions. First, the plaintiffs posit that the

challenged regulation abridges their fundamental right of equal

access to the fisheries, and denies them equal protection, R.I.

Const. art. I, §§ 2, 17. Second, they maintain that the Commission

did not really mandate the use of retroactive control dates when

Addendum VII was adopted and, thus, the challenged regulation

offends R.I. Gen. Laws § 20-2.1-9. The district court patiently

explained why neither of these assertions holds water. See RIFA II,

2008 WL 4467186, at *5-11 (rejecting arguments based on state

constitution); id. at *12-14 (rejecting plaintiffs' suggested

interpretation of Addendum VII). The court also convincingly

dispatched the plaintiffs' arguments arising out of other Rhode

Island statutes. See, e.g., id. at *11-12, *14-16.

         We often have said, and today reaffirm, that when a trial

court addresses issues squarely and in detail, writes a persuasive

opinion that faithfully applies the law to the facts, and reaches

a correct result, there is no need for a reviewing court to write

at length merely to hear its own words resonate. See, e.g., Vargas-Ruiz v. Golden Arch Dev., Inc., 368 F.3d 1, 2 (1st Cir. 2004)

(collecting cases); Henry v. Connolly, 910 F.2d 1000, 1002 (1st Cir.

1990). This is precisely such an instance.

         Here, the district court wrote a thoughtful and

comprehensive rescript explaining its multi-faceted rationale for

rebuffing the plaintiffs' challenge to the contested regulation and

granted summary judgment accordingly. We largely agree with the

reasoning set forth in the lower court's rescript, and uphold its

merits ruling for substantially the reasons set forth in that

opinion.

III. CONCLUSION

         We need go no further. For the reasons elucidated above,

we affirm both the district court's denial of the plaintiffs' motion

to remand and its grant of summary judgment in favor of the

defendants.

 

Affirmed.

Footnotes

[1] ' A "control date" is "[a] cut off date for potential use in

establishing eligibility criteria for future access to a fishery."

12-080-054 R.I. Code. R. 5.17. Neither the relevant statute nor

the challenged regulation, however, defines the term "retroactive

control date." The plaintiffs aver that the DEM employed

"retroactive control dates" by limiting, in 2006, fishermen's

future access to fishing resources based on each fisherman's

documented catch during 2001-2003.

[2] ' For example, R.I. Gen. Laws § 20-2.1-9 may be read to

suggest that it is violated when the director adopts retroactive

control dates that, while not "expressly" required by federal law,

are impliedly required. In that event, a defendant would be able

to attack the state statute on the ground that it conflicts with

federal law and is, therefore, preempted. See, e.g., Gibbons v.

Ogden, 22 U.S. (9 Wheat.) 1, 2 (1824). But that hypothetical

defendant would have to mount this attack as a defense, which would

not provide a sufficient basis for federal question jurisdiction.

See Mottley, 211 U.S. at 152.

[3] ' The fact that the embedded federal question in this case

presents an abstract question of law reinforces this view. See

Empire HealthChoice Assur., Inc. v. McVeigh, 547 U.S. 677, 700-01

(2006).

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