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Wards Cove Packing Corp. v. National Marine Fisheries Service



Wards Cove Packing Corporation (Wards Cove), a commercial fishing company, appealed the district court’s summary judgment decision deferring to the National Marine Fisheries Service (NMFS) on an interpretative rule concerning a sablefish harvest regulation. The Ninth Circuit found no ambiguity in the regulation and therefore, no deference due to NMFS’s interpretation. The Ninth Circuit remanded the case to the district court to find in favor of Wards Cove.

Under the Magnuson-Stevens Fishery Conservation and Management Act[1] and the Northern Pacific Halibut Act,[2] the Secretary of Commerce promulgated rules to create an Individual Fishing Quota (IFQ) system, which provided annual catch limits for sablefish (black cod) (Anoplopoma fimbria) and halibut (Hippoglossus stenolepis) fisheries in Alaska, the Bering Sea, and Aleutian Islands regions.[3] These regulations require commercial fishing operators to file an application with NMFS, and if the application is denied, appeal to NMFS to fish for either halibut or sablefish in the regulated area. An owner must be “qualified,” which entails having “made legal landings of halibut or sablefish”[4] in the qualifying years of 1988, 1989, or 1990.[5] Next, the owner is subjected to an initial quota share based on the owner’s “highest total legal landings of halibut” between 1984 and 1990[6] and “highest total legal landings of sablefish” between 1985 and 1990 (sablefish calculation years).[7]

Wards Cove applied to fish for both halibut and sablefish, but NMFS denied the sablefish permit because Wards Cove had made legal landings in the sablefish calculating years, but not during the more limited qualifying years. Therefore, even though Wards Cove made legal landings of halibut in the qualifying years, NMFS interpreted the regulation to mean that Wards Cove was not “qualified” for a quota share of sablefish.[8] However, the Ninth Circuit held that because the regulations were unambiguous, it would not defer to the agency’s interpretation. Instead, the court found that the regulations based the qualification for a quota share of both halibut and sablefish on the “legal landings of halibut or sablefish” in the qualifying years.[9] Thus, Wards Cove qualified for an initial quota share of sablefish with its landings of halibut. The court reconciled this interpretation with the regulation that calculates the initial quota share, by reasoning that if people were qualified for a permit to land sablefish, but had not landed sablefish in the sablefish calculating years, then they would not receive a quota share. The Ninth Circuit therefore reversed and remanded to the district court to find in favor of Wards Cove and grant Wards Cove attorney fees and costs under the Equal Access to Justice Act.[10]

[1] 16 U.S.C. §§ 1801-1883 (2000).

[2] Id. § 773 (2000).

[3] Pacific Halibut Fisheries, 58 Fed. Reg. 59,375, 59,402 (Nov. 9, 1993) (codified at 50 C.F.R. pt. 679 (2002)).

[4] 50 C.F.R. § 679.40(a)(2)(A) (emphasis added).

[5] Id. § 679.40(a)(3).

[6] Id. § 679.40(a)(4)(i).

[7] Id. § 679.40(a)(4)(ii).

[8] Wards Cove Packing Corp. v. Nat’l Marine Fisheries Serv., 307 F.3d 1214, 1218 (9th Cir. 2002).

[9] Id.

[10] 28 U.S.C. § 2412(d)(1)(A) (2000).

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