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Oregon Trollers Ass'n v. Gutierrez


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Fishermen, fishermen’s organizations, and fishing-related businesses (Oregon Trollers) sued the National Marine Fisheries Association (NMFS) and other government entities challenging 2005 management measures that substantially limited commercial and recreational salmon fishing in the Klamath Management Zone–an area located off the coasts of California and Oregon. The plaintiffs alleged that these measures violated substantive and procedural requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act).[1] The Ninth Circuit reversed the district court’s ruling that the plaintiffs’ claim was time-barred due to a failure to file within the thirty-day statutory period of the agency action, but upheld the district court’s ruling that NMFS did not violate the Magnuson Act.

In 2005, NMFS projected that critically low numbers of naturally spawning Klamath chinook salmon (Oncorhynchus tshawytscha) would survive the fishing harvest in the Klamath Management Zone and return to spawn in the upper reaches of the Klamath River. Because the Pacific Fisheries Management Council (PFMC)[2] projected a wild spawner escapement[3] below the 35,000 escapement floor established in a 1989 amendment to the Pacific Coast Salmon Management Plan (Pacific Plan),[4] NMFS adopted fisheries management measures for 2005 that dramatically curtailed commercial, and to a lesser extent recreational fishing in the Klamath Management Zone.[5] The agency did not take public comment before adopting the measures, and instead cited the need to implement restrictions before the beginning of the fishing season as a “good cause” exception to the Administrative Procedure Act (APA) requirement of public comment.[6] NMFS published the 2005 management measures in the Federal Register on May 4, 2005 and within thirty days the plaintiffs filed suit in federal district court to challenge the 1989 escapement floor and the 2005 action.

The district court ruled that the plaintiffs’ claims challenging the 1989 escapement floor were time-barred because they were not filed within thirty days of the agency adoption of the 1989 regulation as required by the Magnuson Act.[7] In addition, the district court ruled that, even if those claims were not time-barred, the plaintiffs failed to show on the merits that NMFS violated any procedural or substantive requirements of the Magnuson Act.[8]

The Ninth Circuit reviewed the district court’s statute of limitations determination de novo.[9] It reversed the district court, ruling that the plaintiffs’ claims were not time-barred because they challenged the 2005 management measures, which constituted an agency “action” within the thirty days of the date when that action was published in the Federal Register.[10] The Magnuson Act had originally only allowed for judicial review of agency “regulation” and required challengers of regulations to file suit within thirty days of the rule’s publication.[11] However, a 1990 amendment extended allowed challenges to agency “actions” that are published in the Federal Register including those “that establish the date of closure to commercial and recreational fishing.”[12] Under the amendment challenges to an action must similarly be filed within thirty days of the action’s publication in the Federal Register. The fact that the plaintiffs’ claims were rooted in the 35,000 spawner escapement goal of the 1989 regulation did not foreclose them from filing within the thirty days of the agency publishing the 2005 management measure.[13]

The court rejected all three of the defendants’ arguments that the plaintiffs’ claims were time-barred. First, the defendants claimed that the plaintiffs waived their argument that the statutory period was based on the 2005 agency action by not raising it in district court. The Ninth Circuit responded by pointing out that the plaintiffs did, in fact, raise it during oral argument on summary judgment. Second, the court determined that the holding in Norbird Fisheries, Inc. v. National Marine Fisheries Service[14] did not time bar the plaintiffs’ challenge to the 1989 regulation because Norbird only applied to cases where only a regulation was at issue. Here, the challenge was not just based on a regulation, but also on a later agency action in which a timely challenge was filed. Third, the court ruled that the plaintiffs’ challenge was not to a regulation, but to an action and therefore within the thirty-day period. Indeed, the court reasoned, there was no better example of an agency action than the 2005 management measures. These measures fit the definition of actions in section 1855(f)(2),[15] and they were implemented, [16] finalized, and published[17] according to the process set out in the Pacific Plan’s regulations for actions.

The Ninth Circuit then turned to the merits of the case reviewing NMFS construction of the Magnuson Act under the two-step test of Chevron, U.S.A. Inc. v. NRDC, Inc.[18]That test requires the court to determine if a statute is ambiguous and, if so, to then determine if the agency’s interpretation of that statute is reasonable.[19] The Magnuson Act adopts the APA standard that in order to set aside an agency’s regulations a court must find they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”[20] To meet this standard the agency must consider “relevant data” and “articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.'”[21]

The plaintiffs made six claims, three of which attacked the 1989 regulation establishing a 35,000 natural spawner escapement floor and three of which attacked the 2005 management measures. As to the 1989 regulation the plaintiffs claimed 1) that the regulations counting natural spawning salmon as a “stock of fish” separate from hatchery spawning salmon were not consistent with the Magnuson Act’s definition of “stock of fish,”[22] 2) that an escapement goal that counts only natural spawners was not consistent with the “national standard” requiring measures be “based on the best scientific information available,”[23] and 3) that these regulations were inconsistent with the “national standard” that, “[t]o the extent practicable, an individual stock of fish shall be managed as a unit.”[24]

First, the Ninth Circuit determined that there was nothing in the Magnuson Act that prevented NMFS from including only naturally spawning salmon–that is salmon that spawn outside of hatcheries–in establishing the escapement goals and thereby treating them as an individual “stock of fish . . . for the purposes of conservation and management,” separate from salmon that spawn in hatcheries.[25] The court determined that such a classification is consistent with the dictionary definition of the term “category,”[26] previous NMFS regulations[27] and scientific policy papers.[28] Furthermore, the phrase “capable of management as a unit” in the Magnuson Act does not preclude NMFS from making a distinction between hatchery and natural spawners.[29] NMFS has a great deal of flexibility to set that management unit as long as it is consistent with “the focus of the FMP’s [Fishery Management Plan’s] objectives.”[30] Finally, although the Magnuson Act did not expressly distinguish between natural and hatchery spawners, a closely related statute, the Trinity River Basin Fish and Wildlife Management Reauthorization Act of 1997, did.[31] This act’s “clear intent to distinguish between natural and hatchery fish sheds light on Congress’ wishes for the Magnuson Act.”[32]

The court also rejected the argument that a district court’s interpretation of “species” under the Endangered Species Act to include hatchery as well as naturally spawning salmon should apply to “stock of fish” under the Magnuson Act[33] because neither the Endangered Species Act (ESA) nor the district court’s opinion suggested that “species” and “stock” have the same definition.

Second, the Ninth Circuit determined that NMFS had a “rational basis”[34] for including only natural spawners in the 1989 regulation and that there was no evidence that such a determination was not based on “the best scientific information available.”[35] On a strictly statutory interpretation basis, the Magnuson Act regulates fisheries,[36] and fisheries include “stocks.”[37] The court ruled that since naturally spawning salmon may constitute an individual stock, NMFS could set an escapement goal unique to natural spawners. Though the plaintiffs did not attack the scientific basis for the escapement goal, the court went on to state that NMFS had compiled sufficient scientific information in establishing that escapement goal and there was no evidence in the record indicating that the NMFS data was “outdated and flawed.” Furthermore, the reviewing court is “highly deferential” in matters of scientific and technical expertise.[38]

Third, the court ruled that NMFS regulations managing the entire Klamath Management Zone, which extends from Humbug Mountain, Oregon to Horse Mountain, California, were consistent with the Magnuson Act’s national standard requiring that “[t]o the extent practicable, an individual stock of fish shall be managed as a unit throughout its range.”[39] Because Klamath chinook salmon migrate throughout Oregon and California, NMFS regulations managing the entire Klamath Management Zone are necessary to ensure the 35,000 natural spawner escapement goal.

As to the 2005 management measures, the plaintiffs claimed 1) the management measures did not adequately take into account the “importance of fishery resources to fishing communities” as required by a Magnuson Act national standard;[40] 2) the measures were inconsistent with the Magnuson Act’s national standard that required NMFS “to the extent practicable” to “promote the safety of human life at sea;”[41] and 3) NMFS improperly invoked the “good cause” exception under the APA thereby allowing NMFS to skip the public comment period that is typically required before publishing the management measures.[42]

First, the Ninth Circuit held that NMFS adequately addressed the national standard[43] requiring it “to take into account the importance of fishery resources to fishing communities” in its 2004 Environmental Assessment (EA) that supported the 2004 management measures and in a 2005 supplement that supported the contested management measures. The court indicated that the plaintiffs did not provide data to support their claim that the 2004 EA and 2005 supplement were inadequate. “So long as the agency appropriately updates its analysis under [the] National Standard . . . , there is no reason why it must start from scratch every year.”[44]

Second, the court rejected the plaintiffs’ claim that NMFS did not “to the extent practicable” “promote human safety” when they shortened the fishing season thereby forcing fishermen to fish regardless of weather and other dangers. NMFS addressed safety concerns in an April 2005 memorandum when it stated that “the proposed action is expected to be neutral with respect to health and safety.” The court concluded that it was within the agency’s discretion to determine that this neutrality qualified as a promotion of safety “to the extent practicable.”

Third, the Ninth Circuit upheld the agency’s use of the “good cause” exception in adopting the 2005 management measures. Under the APA, NMFS is normally required to open a public comment period prior to adopting annual management measures.[45] However, that requirement is excused when the agency incorporates a finding that “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”[46] NMFS cited the time pressure to issue management rules before the fishing season began as grounds for this good cause exception. Management decisions could not be made any earlier because of the lack of data and they could not be made any later because allowing the fishing season to open without new regulations could undermine the annual escapement goals. The court distinguished the facts of the present case from those in NRDC, Inc. v. Evans,[47] in which it determined NMFS had not adequately justified its decision to not open a public comment period prior to publishing management measures implementing a groundfish FMP under the “good cause” exception.[48] In Evans the court stated that the agency had failed to “demonstrate . . . some exigency apart from generic complexity of data collection and time constraints.”[49] However, in this case the Ninth Circuit agreed with the district court that NMFS’s statement of good cause was adequate given its considerable length and the specific reasons cited for the decision. Furthermore, NMFS could continue to invoke this good cause exception in the future as long as it gives “season-specific reasons for why the good cause exception is needed.”[50]

In conclusion, the Ninth Circuit reversed the district court and ruled that plaintiffs’ claims were not time-barred because the thirty-day limitation period did not start until the “action” of NMFS publishing the 2005 management measures. On the merits, however, it upheld the district court’s rejection of each of the plaintiffs’ challenges to the 1989 regulation and the 2005 management measures.

[1] 16 U.S.C. §§ 1801-83 (2000).

[2] The Magnuson Act established eight Regional Fishery Management Councils, including the PFMC. Id. § 1852(a)(1)(A)-(H). The Councils are made up of federal and state officials and private experts appointed by NMFS who draft “fishery management plans” (FMPs) and regulations implementing these FMPs. Id. § 1852(h)(1); Id. § 1853(c).

[3] See United States v. Washington, 774 F.2d 1470, 1473 n.2 (9th Cir. 1985) (explaining that “[f]or natural stocks, the escapement goal is defined as the number of spawning adults needed to produce the maximum number of juvenile salmon that, after incubation and freshwater rearing, will out-migrate to the sea”).

[4] On May 4, 1989, the PFMC adopted an amendment to the Pacific Plan that set its spawner escapement goal at “35 percent of the potential adults from each brood of natural spawners, but no fewer than 35,000 naturally spawning adults in any given year.” 54 Fed. Reg. 19,194 (May 4, 1989) (to be codified at 50 C.F.R. pt. 661); see Ocean Salmon Fisheries off the Coasts of Washington, Oregon, and California, 54 Fed. Reg. 19,800 (May 8, 1989) (to be codified at 50 C.F.R. pt. 661) (lowering the percentage from 34% to 33%).

[5] See Fisheries off West Coast States and in the Western Pacific, 70 Fed. Reg. 23,054-56 (May 4, 2005) (to be codified at 50 C.F.R. pt. 660) (explaining how NMFS adopted the 2005 plan).

[6] See 5 U.S.C. § 553(b)(B) (2000) (explaining that notice or hearing can be dispensed with “when the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest”).

[7] See Or. Trollers Ass’n v. Gutierrez, No. 05-6165, 2005 WL 2211084, at *8 (D. Or. Sept. 8, 2005).

[8] See id. (explaining that the claims would fail on their merits).

[9] See Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1127 (9th Cir. 2006) (explaining that the appropriate standard of review for whether a “cause of action accrues and whether it is barred by the statute of limitations” is de novo).

[10] See Fisheries off West Coast States and in the Western Pacific, 70 Fed. Reg. 23,054-56 (explaining how NMFS adopted the 2005 plan).

[11] See Pub. L. No. 94-265, 90 Stat. 354 (1976).

[12] See Magnuson Act, 16 U.S.C. § 1855(f)(1)-(2) (2000) (explaining review for actions).

[13] See Kramer v. Mosbacher, 878 F.2d 134, 137 (4th Cir. 1989) (construing strictly the 30 day period in the pre-1990 version of § 1855(f)(1) to determine that a challenge to a fishery quota regulation was not timely because, although it was filed within thirty days of the Secretary of Commerce’s action to close the fishery, the 30 day period actually started following the publication of the regulation four months earlier). Congress amended         

§ 1855(f)(1) in 1990 to include agency actions as “a direct response to a portion of the decision of the Fourth Circuit Court of Appeals in Kramer” H.R. Rep. No. 101-393, at 28 (1990).

[14] 112 F.3d 414, 416 (9th Cir. 1997) (explaining the effect that section 1855(f)(1) has on a district court’s ability “to hear an attack on the regulations if review is not sought within 30 days of their promulgation”).

[15] “Actions” are defined in section 1855(f)(2) as “actions that are taken by the Secretary under regulations which implement a fishery management plan, including but not limited to actions that establish the date of closure of a fishery to commercial or recreational fishing.” 16 U.S.C. § 1855(f)(2) (2000).

[16] “NMFS will annually establish . . . management specifications . . . by publishing the action in the Federal Register under §660.411.” 50 C.F.R. § 660.408(a) (2005). Management specifications include modifications of fishing seasons for the “protection of depressed stocks present in the fishing areas.” Id.§ 660.408(h)(2). Hence, the court considered the 2005 management measures to be management specifications and, therefore, actions.

[17] Section 660.411 states that “[a]nnual and certain other actions . . . will be implemented by an action published in the Federal Register.” Id.§ 660.411(a) (emphasis added). When NMFS published the 2005 management measures in the Federal Register they also invoked the “good cause” exception to the notice-and-comment requirement that applies to “any action” under section 660.411. See Instream Notice Procedures: Classification, 70 Fed. Reg. 23,063 (May 4, 2005).

[18] 467 U.S. 837 (1984). 

[19] Id.

[20] Magnuson Act, 16 U.S.C. § 1855(b)(1) (2000) (adopting APA, 5 U.S.C. § 706(2)(A) (2000)).

[21] Motor Vehicles Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).

[22] Magnuson Act, 16 U.S.C. § 1802(35) (2000).

[23]Id. § 1851(a)(2).

[24] Id. § 1851(a)(3).

[25] “[F]ishery” had previously been defined as “one or more stock of fish which can be treated as a unit for purposes of conservation and management.”Id. § 1802(8) (emphasis added). A “stock of fish” is defined as “a species, subspecies, geographical grouping or other category of fish capable of management as a unit.” Id.§ 1802(25) (emphasis added).

[26] A “category” is “any of several fundamental and distinct classes to which entities or concepts belong” or “a division within a system of classification.” Merriam Webster’s Collegiate Dictionary 180 (10th ed. 1998).

[27] See, e.g., 70 Fed. Reg. 37,204, 37,208 (June 28, 2005) (adopting hatchery policy under ESA).

[28] See, e.g.Hatchery Scientific Review Group, Hatchery Reform: Principles and Recommendations 17 (Apr. 2004), available at http://www.lltk.org/pdf/hsrg/HSRG_Pric_Recs_Reports_Full_Apr04.pdf (outlining how “biological processes shape the biological significance and viability of both hatchery and naturally-spawning populations”); Hatchery Scientific Review Group, Hatchery Reform: Report to Congress  35 (Mar. 2006), available at http://www.lltk.org/pdf/hrp/report_to_congress06/HR_Report_to_Congress_Mar06.pdf (arguing that “hatchery operations should be designed so that the natural environment is the driving force in determining the genetic make-up of nature stocks within . . . watersheds”); Hatchery Scientific Review Group, Hatchery Reform in Washington State: Principles and Emerging Issues, Fisheries Magazine, June 2005, at 12.

[29] 16 U.S.C. § 1802(25) (2000).

[30] 50 C.F.R. § 600.320(d)(1) (2005).

[31] Pub. L. No. 104-143, 110 Stat. 1338 (1996).

[32] Or. Trollers Ass’n v. Gutierrez, No. 05-6165, 2005 WL 2211084, at *8 (D. Or. Sept. 8, 2005).

[33] Endangered Species Act, 16 U.S.C. § 1531(b) (2000); Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154 (D. Or. 2001).

[34] Alliance Against IFQs v. Brown, 84 F.3d 343, 350 (9th Cir. 1996).

[35] Magnuson Act, 16 U.S.C. § 1851(a)(2) (2000).

[36] See, e.g., id §§ 1801(b)(4), 1851(a)(1).

[37] 16 U.S.C. § 1802(37) (2000).

[38] Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 384 F.3d 1163, 1174 (9th Cir. 2004).

[39] 16 U.S.C. § 1851(a)(3) (2000).

[40] Id. § 1851(a)(8).

[41] Id. § 1851(a)(10).

[42] Administrative Procedure Act, 5 U.S.C. § 553(b)(3)(B) (2000).

[43] The court assumed that the national standards apply to action taken under regulations implementing FMPs, although § 1851(a) explicitly requires only that FMPs and their implementing regulations be consistent with the national standards. Or. Trollers Ass’n v. Gutierrez, 452 F.3d 1104, 1121-22 (9th Cir. 2006).

[44] Id. at 1122.

[45] See Natural Res. Defense Council, Inc. v. Evans, 316 F.3d 904, 910 (9th Cir. 2003) (noting parties’ agreement that independent of the Magnuson Act, the notice and comment requirements of the APA applied to management measures); see also 50 C.F.R. 660.411(b) (2005) (providing good cause exception to public comment requirement of the Magnuson Act).

[46] 5 U.S.C. § 553(b)(3)(B) (2000).

[47] 316 F.3d 904 (9th Cir. 2003).

[48] Id. 912.

[49] Id.

[50] Or. Trollers Ass’n v. Gutierrez, 452 F.3d 1104, 1125 (9th Cir. 2006).

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