Home » Case Summaries » 2003 » Natural Resources Defense Council, Inc. v. Evans


Natural Resources Defense Council, Inc. v. Evans



Two environmental organizations brought suit against the National Marine Fisheries Service (NMFS),[1] challenging its issuance of specifications and management measures for 2001 for the Pacific Coast Groundfish Fisheries without meeting notice and comment requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act)[2] and the Administrative Procedure Act (APA).[3] The district court found that NMFS was required to go through notice and comment under both the Magnuson Act and the APA because it had not shown good cause why the notice and comment procedures should not be considered, and therefore did not warrant the statutory exemption. NMFS appealed, and the Ninth Circuit held that NMFS did not show the exigency required to meet the good cause exception to the notice and comment requirements of the APA. Thus, the Ninth Circuit found that notice and comment was required under the APA and determined that it did not need to decide whether notice and comment was required under the Magnuson Act.

The challenged regulations were specifications for harvest levels of major fish species and management measures for 2001, originally created by the Pacific Fishery Management Council (Pacific Council).[4] Under the Magnuson Act, the Pacific Council creates and revises fishery management plans (FMPs) for Washington, Oregon, California, and Idaho.[5] The Secretary of Commerce reviews the FMPs and amendments and then places them in the Federal Register.[6] The Pacific Council’s Pacific Coast Groundfish FMP–amended in 1990 (through the notice and comment process)–outlined a procedure for the annual management cycle. Under this procedure, the Pacific Council would first gather information throughout the year and hold a public meeting. Then the Council would create recommendations based on the hearings and information gathered, notify the public, and hold a second meeting where it would consider public testimony. Finally, it would adopt regulations on specifications and management methods. After regulations went through this process, the Secretary of Commerce would review the regulations and publish them in the Federal Register.[7] The Secretary waived notice and comment for 2001 and prior years for good cause, claiming that the process the regulation went through at the Council was sufficient and that delay of implementation of these regulations could have harmed the stock and interfered with the timing of the regulations.

The first issue in dispute was whether the regulations were “proposed regulations” subject to the Magnuson Act.[8] However, because both parties agreed that the regulations were subject to the notice and comment requirements of the APA,[9] barring any exception, the court did not address the Magnuson Act dispute. Instead, the court focused on whether NMFS properly invoked the APA’s good cause exception.[10]

First, NMFS argued that the issue of whether it properly invoked the good cause exception in 2001 was moot because new specifications and management measures had been adopted. The Ninth Circuit determined that this case fell into the “capable of repetition, yet evading review” exception to mootness because “(1) the duration of the challenged action [was] too short to allow full litigation before it cease[d], and (2) there [was] a reasonable expectation that the plaintiffs [would] be subjected to it again.”[11] In particular, the yearly update of the regulation was too short a time for full litigation. In addition, the Groundfish FMP “anticipate[d] invocation of the good cause exception for every set of specifications and management measures,” and NMFS had used the exception in this context for over ten years.[12] Thus, the court held that the case was not moot.

Second, NMFS argued that the district court wrongly required it to undergo notice and comment under the APA because its showing of good cause was adequate. The Ninth Circuit found that the proper use of the good cause exception depends on the totality of the circumstances, and that the exception was limited to instances where “compliance would interfere with the agency’s ability to carry out its mission.”[13] The court found that the Pacific Council’s procedures did not allow the public to make comments to NMFS, the final decision maker. Then, the court noted that NMFS did not “engage in any context-specific analysis of the circumstances giving rise to good cause in 2001,” and instead repeated the same reasons for the lack of notice and comment as it had in previous years.[14] In addition, the court looked at precedent that required notice of weekly meetings[15] and found that time limitations for annual regulations were not sufficient grounds to invoke the good cause exception in this case. Therefore, the court held that NMFS did not make a sufficient showing of good cause. However, the court left open the possibility that NMFS could invoke the good cause exception in subsequent years if the specific circumstances of the year were addressed in the invocation. Thus, while the court affirmed the district court’s decision finding that NMFS failed to comply with the APA, it also vacated the ruling that all future specifications and management measures must undergo notice and comment.


[1] The defendants were the Secretary of Commerce, NMFS, and the National Oceanic and Atmospheric Administration, collectively NMFS for this summary.

[2] 16 U.S.C. §§ 1801-1883 (2000).

[3] 5 U.S.C. § 553(b)-(c) (2000).

[4] Pacific Council is one of the Regional Fishery Management Councils established by the Magnuson Act, 16 U.S.C. § 1801(b)(5) (2000).

[5] Id.

[6] Id. § 1854(a).

[7] The 2001 regulations were published January 11, 2001. 2001 Groundfish Fishery Specifications and Management Measures, 66 Fed. Reg. 2338 (Jan. 11, 2001).

[8] 16 U.S.C. §§ 1853(c), 1854(b)(1) (2000).

[9] 5 U.S.C. § 553(b) (2000).

[10] Id. § 553(b)(B). Notice and comment may be waived when an agency “for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Id.

[11] Natural Res. Def. Council, Inc. v. Evans (NRDC), 316 F.3d 904, 910 (9th Cir. 2003) (quoting Greenpeace Action v. Franklin, 14 F.3d 1324, 1329 (9th Cir. 1992)) (internal quotations omitted).

[12] Id.

[13] Id. at 911 (quoting Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1484 (9th Cir. 1992)) (internal quotations omitted).

[14] NRDC, 316 F.3d at 912.

[15] Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1486 (9th Cir. 1992).

Print this pageEmail this to someoneTweet about this on TwitterShare on Facebook

Comments are closed

Sorry, but you cannot leave a comment for this post.