Home » Case Summaries » 2002 » Midwater Trawlers Co-operative v. Department of Commerce


Midwater Trawlers Co-operative v. Department of Commerce



The states of Oregon and Washington as well as fishing industry groups appealed a decision by the district court that the National Marine Fisheries Service (NMFS) did not act arbitrarily in allocating Pacific whiting fish to the Makah Indian Tribe. The Ninth Circuit affirmed in part and reversed in part.

In 1996, NMFS promulgated regulations limiting on the number of Pacific whiting to be taken annually and establishing a framework for allocating these fish to the Hoh, Makah, Quileute, and Quinault Tribes.[1] Several treaties from the mid 1800s, known collectively as the Stevens Treaties, had reserved certain fishing rights to these tribes.[2] In previous cases, the court had construed treaty language as reserving to the Tribes “fifty percent of the salmon and other free-swimming fish in the waters controlled by Washington State.”[3] In 1976, Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act)[4] to protect U.S. fisheries by extending the fisheries zone up to two hundred miles from the coast and by providing for fisheries management within this 200-mile zone.[5] The Magnuson-Stevens Act authorizes NMFS to issue fishery management regulations,[6] but such regulations must be consistent with applicable law defining tribal treaty fishing rights.[7] NMFS’s 1996 regulations identified areas extending forty miles off the coast as “usual and accustomed” fishing areas for the Tribes (including the Makah)[8] and then allocated 15,000 metric tons of Pacific whiting to the Makah.

The states and fishing industry challenged this allocation in the United States District Court for the District of Oregon. The case was transferred to the United States District Court for the Western District of Washington and dismissed in 1997 because the plaintiffs failed to join the Tribes as necessary and indispensable parties. In 1999, the Ninth Circuit reversed the dismissal and remanded to the Washington federal district court for further proceedings.[9] In 1999, Midwater Trawlers Cooperative and the state of Oregon challenged a 1999 NMFS regulation allocating 32,500 metric tons of Pacific whiting to the Makah.[10] The case was brought in Oregon federal district court but later transferred to Washington federal district court and consolidated with the 1996 remanded suit. In 2000, the district court granted summary judgment for NMFS, holding that NMFS had not acted arbitrarily and capriciously by recognizing a tribal right to fish for Pacific whiting because the Stevens Treaties constitute applicable law under the Magnuson-Stevens Act, recognizing “usual and accustomed” fishing areas extending more than three miles from Washington’s coast, or allocating whiting in 1999.

The plaintiffs argued that no “applicable law” applied under the Magnuson-Stevens Act because the courts had yet to expressly adjudicate tribal treaty rights with respect to Pacific whiting. The court rejected this “fish by fish”[11] approach and determined that because the “right to take any species, without limit, pre-existed the Stevens Treaties, the Court must read the ‘right of taking fish’ without any species limitation.”[12] The plaintiffs also argued that the courts had yet to adjudicate the extension of “usual and accustomed” fishing areas from three miles to forty miles off the coast. The court rejected the plaintiffs’ argument, finding nothing in the treaties or in the case law to suggest a geographic limitation on the tribal fishing grounds. In fact, in Makah Indian Tribe v. Verity,[13] the Ninth Circuit specifically held that the Makah had a treaty right to fish up to forty miles off the coast.[14]

The court also concluded that the 1999 allocation of Pacific whiting to the Makah Tribe was inconsistent with the scientific standards outlined in the Magnuson-Stevens Act.[15] In Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n,[16] the Supreme Court provided a framework for determining the rightful allocation of fish pursuant to a tribal treaty fishing right.[17] First, divide the harvestable portion of the run passing through “usual and accustomed” fishing areas into equal treaty and non-treaty shares. Then reduce the treaty share if the tribal needs may be met by fewer fish.[18] The harvestable portion is that portion of fish that will not cause “demonstrable harm to the actual conservation of the fish.”[19] Initially, NMFS sought to determine allocation based on a percentage of the Pacific whiting in the Makah’s usual and accustomed fishing area, which was adjusted by a multiplier to correct for interannual variation in harvest rates. NMFS concluded that the Makah were entitled to between 13,000 and 18,000 metric tons, or 6.5% of the harvest available to all U.S. fishermen. In an earlier case, United States v. Washington,[20] the district court had rejected this methodology because the approach was contrary to the conservation principles outlined in the Magnuson-Stevens Act.[21] NMFS and the Makah later reached a settlement with respect to Pacific whiting, and NMFS allocated 15,000 metric tons to the tribe. For 1997 and 1998, the Makah proposed an allocation of 10.8% of the harvest available; NMFS approved this proposal after finding no significant environmental impact. In 1998, the Makah proposed a five-year compromise of an allocation not to exceed 17.5% of the harvest available in any one year. In 1999, NMFS allocated 32,500 metric tons, or 14% of the harvest available, based on the Makah proposal; again, NMFS approved the Makah proposal after finding no significant environmental impact.

The Ninth Circuit rejected the 1999 allocation as “devoid of any stated scientific rationale”[22] and determined that underlying the Magnuson-Stevens Act was Congress’s intent that NMFS use the “best available scientific information”[23] when making conservation and management decisions. Rejecting the allocations as a “product of pure political compromise,”[24] the Ninth Circuit reversed and remanded to NMFS either to reallocate the Pacific whiting using best available science or justify the current allocation.

[1] 50 C.F.R. § 660.324 (2002).

[2] See Midwater Trawlers Co-op. v. Dep’t of Commerce, 282 F.3d 710, 714 n.1 (9th Cir. 2002) (listing the individual Stevens Treaties by name and the tribes that were party to each).

[3] United States v. Washington 135 F.3d 618 (9th Cir. 1998), amended and superceded by 157 F.3d 630, 639 (9th Cir. 1998).

[4] 16 U.S.C. §§ 1801-1883 (2000).

[5] H.R. Rep. No. 94-445, at 21 (1975), reprinted in 1976 U.S.C.C.A.N. 593, 593-94.

[6] 16 U.S.C. §§ 1853(c), 1855(d) (2000).

[7] Midwater Trawlers Co-op., 282 F.3d at 715 (citing Parravano v. Babbitt, 70 F.3d 539, 544 (9th Cir. 1995)).

[8] Id. (citing Washington v. Daley, 173 F.3d 1158, 1163 (9th Cir. 1999)).

[9] Daley, 173 F.3d at 1169.

[10] Fisheries off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; Final 1999 ABC, OY, and Tribal and Nontribal Allocations for Pacific Whiting, 64 Fed. Reg. 27,928, 27,930 (Mar. 24, 1999) (to be codified at 50 C.F.R. pt. 600 at 660).

[11] Midwater Trawlers Co-op., 282 F.3d at 716.

[12] United States v. Washington, 157 F.3d 630, 644 (9th Cir. 1998) (quoting United States v. Washington, 873 F. Supp. 1422, 1430 (W.D. Wash. 1994)). The Ninth Circuit noted that in fact the Makah had submitted “undisputed evidence” establishing that the tribe had harvested Pacific whiting at treaty time. Midwater Trawlers Co-op., 282 F.3d at 717 n.4.

[13] 910 F.2d 555 (9th Cir. 1990).

[14] Id. at 556.

[15] The Magnuson-Stevens Act requires NMFS to base fishery conservation and management on the “best scientific information available.” 16 U.S.C. §1851(a)(2) (2000).

[16] 443 U.S. 658 (1979) modified sub nom. Washington v. United States, 444 U.S. 816 (1979).

[17] Id. at 685.

[18] Id.

[19] United States v. Washington, 384 F. Supp. 312, 415 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975).

[20] Id.

[21] Midwater Trawlers Co-op., 282 F.3d at 719 (citing United States v. Washington, 384 F.Supp. 312 (W.D. Wash. 1974) in which the allocation was calculated for halibut).

[22] Id. at 720.

[23] 16 U.S.C. § 1851(a)(2) (2000).

[24] Midwater Trawlers Co-op., 282 F.3d at 720.

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