Category Archives: Manguson-Stevens Fisheries Conservation Act

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).

Yakutat, Inc. v. Gutierrez

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Yakutat, Inc. (Yakutat), the owner of a fishing vessel which did not qualify for a license to fish for Pacific Cod in the Bering and Aleutian Seas, brought an action against the Secretary of Commerce (Secretary) charging that the failure of the National Marine Fisheries Service (NMFS) to include 1995-1998 but not 1999 as a past qualifying year for granting fishing licenses under the amended Bering Sea and Aleutian Islands (BSAI) fishery management plan was unfair and inequitable pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act).[1] Yakutat also challenged the rule as arbitrary and capricious under the Administrative Procedure Act (APA)[2]. The Ninth Circuit affirmed the lower court’s decision to uphold the Secretary’s decision to exclude 1999 as a qualifying year in obtaining a Pacific cod fishing license under the BSAI management plan.

To prevent the over fishing of Pacific cod in the BSAI fishery off of the coast of Alaska the NMFS implemented a plan to limit the number of boats that were granted licenses to fish based on which boats caught a minimum amount of fish during any two years between 1995 and 1998. The F/V Blue North, which is owned by Yakutat, Inc., only qualified for 1997 and 1999. Had 1999 been a qualifying year the vessel would have received a license. The district court dismissed Yakutat’s claims and granted the Secretary’s summary judgment motion. The Ninth Circuit reviewed the lower court’s decision under a de novo standard of review, such that all facts were interpreted most favorably to the non-moving party.[3] Precedent required that the Ninth Circuit, when reviewing decisions under the Magnuson Act, only determine whether the Secretary “considered the relevant factors and articulated a rational connection” between the facts and the decision[4] and whether the Secretary acted in an arbitrary and capricious manner.[5] Similarly, under the APA an agency action may only be reversed if the action is arbitrary, capricious, an abuse of discretion or otherwise contrary to the law.[6]

In Alaska, Washington, and Oregon, the Northern Pacific Fishery Management Council has authority over fisheries in the exclusive economic zone which includes the Arctic Ocean, Bering Sea, and the Pacific Ocean off of Alaska.[7] The Council must prepare Fishery Management Plans and amendments when necessary for fisheries in its area.[8] After the Secretary receives the Fishery Management Plan from the Council, the Secretary is responsible for reviewing it to ensure that it is consistent with the Magnuson Act.[9]

The Ninth Circuit held that the final rule was not arbitrary and capricious. Yakutat argued that the exclusion of 1999 as a qualifying year did not comply with National Standard 4[10] and failed to articulate a valid motive for an allocation of fishing rights in violation of the Magnuson Act. Furthermore, Yakutat alleged that the Secretary’s actions were arbitrary and capricious because he did not establish a connection between the facts and the Final Rule.

The Ninth Circuit relied upon the administrative record to show a rational connection between the Magnusson Act and the exclusion of 1999 as a qualifying year. The record indicated that the decision was motivated by the Secretary’s concern over the conservation and management of the Pacific cod resources[11] and the Secretary’s concern about protecting the interests of fishermen who had made long-term investments in the industry and had long catch histories in the sector.[12] The record further indicated that the Secretary and Council considered alternatives to the rule, including the viability of using 1999 as a qualifying year. The Council decided not to include 1999 as a qualifying year because boats that did not qualify when 1999 was not included were not historically dependent on the fishery and received the majority of their income from other fisheries. Public testimony, industry experience and data analysis were all taken into consideration when the Council established a standard for measuring historical dependence and the Ninth Circuit held that the record clearly provided a rational basis for the Secretary’s decision to adopt the Council’s recommendation.

An agency decision is arbitrary and capricious:

if the agency has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of the agency’s expertise.[13] 

There may be some discriminatory impact if the regulations are fashioned to solve a gear conflict problem and promote the conservation of the fish in question.[14] Further, as long as the Secretary has considered the relevant factors and made a rational connection between the facts and the decision, the Secretary’s decision does not lack a rational basis.[15]

The Ninth Circuit held that the Secretary did not “run afoul of these considerations.”[16] First, there was not any reliance on factors which Congress did not intend the agency to consider. The Secretary is required to take six factors into consideration.[17] Only one factor was not fully considered, and the Court explained that the omission was not fatal to the decision.[18] Second, the record shows that the Secretary responded to public comments on all ten national standards and thus made an effort to comply with the standards as required.[19] Third, because the Secretary independently considered using 1999 as a qualifying year as well as analyzed the Council’s recommendation, the Secretary did not fail to consider an important aspect of the agency action.[20] Finally, nothing in the record suggests that the Secretary or Council offered an explanation which did not agree with the evidence or acted in such a way that was not attributable to agency
expertise. The Secretary responded to public comments and explained his rationale. [21] Thus, the Ninth Circuit did not hold the agency action to be arbitrary or capricious.

Next, the Court considered whether the final rule was unfair or inequitable and determined that because the Secretary took present participation into account[22] and did not violation National Standard 4[23] that it was neither unfair nor inequitable. The Ninth Circuit held that the Secretary had a rational basis for not including 1999. In a prior case, this court concluded that the Secretary had a good reason for not including the most recent years because if fishermen knew that the current year would be considered for future allocation of fishing privileges, people would have fished and invested in boats to gain quota shares which would have resulted in overfishing.[24] The Court noted that the same was true in this case because the Council gave notice that 1999 would not qualify to discourage new entrants based on speculation.[25] Despite this, the Council still considered 42 out of 106 alternatives which included 1999 as a qualifying year and eventually adopted the Council’s recommendation.[26] Therefore, the Ninth Circuit concluded that the Council had a reasonable basis for excluding 1999 as a qualifying year.

Finally, the Court found that the Final Rule did not violate National Standard 4 which guarantees fishery allocation is allocated in a fair and equitable manner. Yakutat argued that the Final Rule unfairly excluded Yakutat’s boat while including two boats that had left the industry, and that this would not have occurred if 1996 through1999 had been used as qualifying years. However, the Ninth Circuit points out that the Secretary and Council directly addressed and considered the issues that Yakutat raised and that the Council did not include 1999 to ensure that vessels which had historically and consistently participated in the fishery were granted licenses.[27] The Ninth Circuit added that Congress permits the secretary to use discretion in weighing the national standards and that the reasons articulated for the rule were consistent with the relevant statutory standards.[28] When investigating the option of including 1999, the Council found that including 1999 would not benefit vessels that were historically dependent on the Pacific cod fishery. Although Yakutat argued that the Council did not seriously consider the inclusion of 1999, the Ninth Circuit emphasized that Yakutat must show irregularities in the Secretary’s actions or that the Secretary followed incorrect procedures to prove a violation of National Standard Four.[29] Thus, the Ninth Circuit held that because the Council and Secretary considered historical dependence and consistent participation in the industry while creating the amendment, the court cannot find that the result was unfair and inequitable.

In conclusion, the Ninth Circuit affirmed the district court’s grant of summary judgment to the defendants, holding that the Secretary’s Final Rule did not violate the Magnuson Act or the Administrative Procedure Act and was neither arbitrary and capricious, nor unfair and inequitable.

[1] 16 U.S.C. §§ 1801-1883 (2000).

[2] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

[3] Covington v. Jefferson County, 358 F.3d 626, 641 n.22 (9th Cir. 2004).

[4] Alliance Against IFQs v. Brown, 84 F.3d 343, 345 (9th Cir. 1996) (quoting Wash. Crab Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1440-41 (9th Cir. 1990)).

   [5] Id.

   [6] See 5 U.S.C. § 706(2) (2000); Lands Council v. Powell, 379 F.3d 738, 743 (9th Cir. 2004), amended by 395 F.3d 1019 (9th Cir. 2005).

[7] 16 U.S.C. § 1852(b) (2000).

   [8] Id. § 1852(h)(1).

   [9] Id. § 1854(a)(1).

[10] “Conservation and management measures shall not discriminate between residents of different States. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges.” Id. § 1851(a)(4).

[11] Magnuson-Stevens Act Provisions, 67 Fed. Reg. 18,117, 18,120 (Apr. 15, 2002) (to be codified at 50 C.F.R. pt. 660).

[12] Fisheries of the Exclusive Economic Zone Off Alaska, 67 Fed. Reg. 18,129, 18,130 (Apr. 15, 2002) (to be codified at 50 C.F.R. pt. 679).

[13] Yakutat, Inc. v. Gutierrez, 407 F.3d 1054, 1067 (9th Cir. 2005) (quoting Motor Vehicle Mfs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

[14] Alliance Against IFQs v. Brown, 84 F.3d 343, 350 (9th Cir. 1996) (quoting Alaska Factory Trawler Ass’n v. Baldridge, 831 F.2d 1456, 1460 (9th Cir. 1987)).

[15] Wash. Crab Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1441 (9th Cir. 1990).

[16] Yakutat, Inc., 407 F.3d at 1067.

[17] See 16 U.S.C. § 1853(b)(6) (2000); Alliance Against IFQs, 84 F.3d at 346 (holding that under 16 U.S.C. § 1853(b)(6) (2000), the Council and Secretary consider “(A) present participation in the fishery, (B) historical fishing practice, and dependence on, the fishery, (C) the economics of the fishery, (D) the capability of fishing vessels used in the fishery to engage in other fisheries, (E) the cultural and social framework relevant to the fishery, and (F) any other relevant considerations”).

[18] Alliance Against IFQs, 84 F.3d at 347 (noting that the Secretary did not consider “present participation” as including participation while the Secretary was promulgating the final regulations).

[19] 16 U.S.C. §1851(a) (2000).

[20] See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983).

[21] Fisheries of the Exclusive Economic Zone Off Alaska, 67 Fed. Reg. 18,129, 18,134 (Apr. 15, 2002) (to be codified at 50 C.F.R. pt. 679).

[22] See 16 U.S.C. § 1853(b) (2000).

[23] Id. § 1851(a)(4) (2000).

[24] Alliance Against IFQs v. Brown, 84 F.3d 343, 346 (9th Cir. 1996).

[25] Advance Notice of Proposed Rulemaking: Fisheries of the Exclusive Economic Zone Off Alaska, 64 Fed. Reg. 2,870, 2,870 (Jan. 19, 1999).

[26] 67 Fed. Reg. at 18,134.

[27] Id.

[28] Alliance Against IFQs, 84 F.3d at 350.

[29] See Alaska Factory Trawler Ass’n v. Baldridge, 831 F.2d 1456, 1460 (9th Cir. 1987) (“In order for a court to overturn a Secretary’s decision, it must be shown that alleged irregularities . . . affected such decision.”).

Alaska Trojan Partnership v. Gutierrez

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Reply

Alaska Trojan Partnership (Alaska Trojan) brought suit against defendants Carlos M. Gutierrez, Secretary of Commerce (Secretary), the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service (NMFS) (Defendants), challenging the denial of Alaska Trojan’s application for an Aleutian Islands brown king crab endorsement under the license limitation program (LLP) for the Bering Sea and Aleutian Islands groundfish and crab fisheries. The Ninth Circuit granted summary judgment to Alaska Trojan and reversed the judgment of the district court granting summary judgment to the Defendants.

The Defendants argued that Alaska Trojan only made two “documented harvests”[1] during the qualification period of January 1, 1992 through December 31, 1994, and thus did not qualify for an endorsement under the LLP, but Alaska Trojan maintained that it made three “documented harvests” and was entitled to the endorsement. Alaska Trojan successfully argued that the Defendants’ interpretation of “documented harvest” was inconsistent with the plain meaning of the term as defined in regulations that implemented the LLP and that the Defendants’ interpretation of the term was inconsistent with the intent of the LLP.

Through the Magnuson-Stevens Fisheries Conservation Act[2] the Secretary has authority to manage and conserve coastal fisheries and fishery councils were created to aid the Secretary with accomplishing the goals of the act. The North Pacific Fishery Management Council (the Council) developed an LLP to regulate harvesting of Aleutian Islands brown king crabs and required that three documented harvests be made by a vessel between the period of January 1, 1992 and December 31, 1994. A “documented harvest” was defined as “a lawful harvest that was recorded in compliance with Federal and state commercial fishing regulations in effect at the time of harvesting.”[3]

The F/V Alaska Trojan began fishing for brown and red king crab on November 1, 1994 and caught brown king crab on November 5 and 7, 1994, in area 795200, an area within the endorsement area. Alaska Trojan did not obtain a fishing ticket at this time because, although Alaska Trojan had arranged to have the crab delivered to Mike Rosenthal, and consequently received a fishing ticket, poor weather made it difficult to offload the crab and Rosenthal wanted to continue fishing. More brown king crab were caught by Alaska Trojan, this time in area 805201, and when Alaska Trojan delivered the crab from both areas on November 24, 1994, it received one fish ticket which reflected that it had caught crab in both areas. Alaska Trojan received one more fish ticket on December 1, 1994 for crabs caught in another area. Following that season Alaska Trojan fished for brown king crab every year as its primary and sometimes sole harvest.

Alaska Trojan received a letter from Restricted Access Management Program (RAM) stating that it qualified for five different crab species, but not brown king crab. On appeal to the Office of Administrative Appeals, Alaska Trojan argued that although it only had two tickets that it in fact had caught from three state statistical areas on three separate occasions and that the catches were recorded in compliance with Alaska Department of Fish and Game (ADF&G) regulations. However, RAM had received a copy of the tickets from ADF&G with area 805201 crossed out, leaving only area 795200 and Alaska Trojan did not know how or why 805201 was crossed out. RAM testified than an “internal policy” had been devised in which each fish ticket would count as one documented harvest regardless of where or on how many occasions the crab were caught. The policy was not promulgated as a regulation in which there would be notice and comment procedures.

At a hearing, RAM personnel testified that RAM did not consult with the Council in formulating its interpretation because RAM believed that there was no ambiguity in the definition of “documented harvest.” The Office of Administrative Appeals denied Alaska Trojan’s appeal and upheld RAM’s interpretation and finding of only two fishing tickets. Alaska Trojan appealed to the United States District Court for the District of Alaska challenging the denial as a violation of the Magnuson Act[4] and the Administrative Procedure Act.[5] The district court denied Alaska Trojan’s motion for summary judgment and granted the Defendants’ cross-motion for summary judgment. The Ninth Circuit reviewed the district court’s decision de novo and held that Alaska Trojan was entitled to an Aleutian Islands Brown King Crab Endorsement.

First, the court held that interpreting “documented harvest” as a “landing” was plainly erroneous. The court explained that in order to find the plain meaning of “documented statute” it was necessary to look at the particular language as well as the statute as a whole. “Documented harvest” was defined as “a lawful harvest that was recorded in compliance with Federal and state commercial fishing regulations in effect at the time of harvesting.”[6] The Ninth Circuit pointed out that although “harvest” was not defined in the LLP regulations, that it was necessary to look at the regulations as a whole to ascertain the term’s definition. The court clarified that “harvest” could not mean “landing” as RAM asserted because in the LLP regulations “landing” was defined as an offload and furthermore the regulations define “harvesting or to harvest” as “the catching and retaining of any fish”[7] and not as “offloading” or “receiving a fish ticket.” When the “harvesting or to harvest” definition is applied to brown king crab, the court explained that the definition of “documented harvest” would be “a lawful catching and retaining of brown king crab that was recorded in compliance with Federal and state commercial fishing regulations in effect at the time of harvesting” such that the event that triggers a harvest is the catching and retaining of crab, not an offload of crab. The court pointed out that the proposed regulation would have required “at least three legal landings of any amount of brown king crab”[8] but that in the final regulation “legal landing” was replaced with “documented harvest.” Thus, RAM defied the Secretary’s regulations by impermissibly focusing on the offloading of crab as opposed to their harvest and documentation.

LLP records of documented harvests are not organized by fish ticket number but by state statistical area. The Defendants asserted that the state statistical areas were only in the LLP record so that RAM could figure out whether the crab were caught in the larger federal endorsement area. However, the Ninth Circuit explained that when the official LLP record was prepared that crab catches in different areas still kept their identities even though they were reported on one ticket, so this argument did not support RAM’s position. Hence, “this contradicts RAM’s interpretation that one fish ticket represents one documented harvest.”[9]

Next, the Defendants argued that the change in terminology from “legal landing” to “documented landing” not meant to apply to catcher/processor vessels that process their own catch on board and write their own tickets. Yet the court pointed out that not only is this explanation not found in the regulations but also that the LLP regulations do acknowledge differences between catcher vessels and catcher/processor vessels. While the Secretary chose to use the term “legal landings” instead of “documented harvest” in the alternate “Crab Rationalization Program” the court pointed out that the Secretary did not intend to apply this system of evaluation to catcher/processor vessels under the new regulations.

Next, the Ninth Circuit held that interpreting “documented harvest” as a “landing” was inconsistent with the intent of the LLP as expressed by the secretary. As discussed above, the court explained that the proposed language of “legal landings” was replaced with the promulgated regulation with the term “documented harvest.” These two terms have distinctly different definitions in the LLP regulations. The secretary also approved the NMFS statement that “offloading is not necessary for eligibility”[10] a factor that the Ninth Circuit considered “clear expressed intent that one offload dose not necessarily equate to one documented harvest.”[11]

The Defendants argued that the change was not substantive but the court explains that this argument was defeated by the preceding sentence which described the change as a “substantive change to the final rule.”[12] Further the Defendants asserted that the Council used the term landing when projecting the number of permits that might be issued under different alternatives. However, the court pointed out that it is not clear that the Council was referring to the number of fish tickets when it used the term in relation to crab. The court conceded that the defendant’s argument was plausible because the landing of crab or groundfish is defined in the LLP as “offloading fish”[13] and the only way to document that was through a fish ticket. However, the court also pointed out that the Council’s information came from State Commission’s CGE file, which was similar to the GE file which was derived from ADF&G fish tickets. Thus, the court explained that there is no reason to assume the data is any different from the GE file. The GE file had a separate line for each area where crab was caught and not for each fish ticket where the crab was offloaded. The court pointed out that even if at one time the Council had considered fish tickets to be the ultimate qualifier in obtaining a brown crab license, the Secretary’s new regulations indicate that offloading was no longer necessary for eligibility.

In conclusion, the court held that because Defendants committed an error of law because of RAM’s impermissible interpretation of “documented harvest” as “landing” and in the interest of judicial economy that it was not necessary to remand to Defendants for a new interpretation. Instead the court held that there was no reasonable interpretation that Defendants could adopt that would deny Alaska Trojan an Aleutian Islands brown king crab endorsement and that the two disputed catches were undoubtedly “documented harvests.” The court also clarified that there will not be an ecology disruption because the share that Alaska Trojan will receive would have been given to other vessels and that the total fishing quota will remain the same. Thus, the Ninth Circuit reversed the district court’s order granting summary judgment to Defendants remanded the issue to the district court with instruction to enter summary judgment in favor of Alaska Trojan.

[1] Alaska Trojan P’ship v. Gutierrez, 425 F.3d 620, 622 (9th Cir. 2005).

[2] Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1883 (2000).

   [3] Alaska Trojan, 425 F.3d at 623.

[4] Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1883 (2000).

[5] Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

[6] 50 C.F.R. § 679.2 (2005).

   [7] Id.

   [8] SeeFisheries of the Exclusive Economic Zone Off Alaska, 62 Fed. Reg. 43,866, 43,888 (Aug. 15, 1997).

[9] Alaska Trojan P’ship v. Gutierrez, 425 F.3d 620, 630 (9th Cir. 2005).

[10] Fisheries of the Exclusive Economic Zone Off Alaska, 63 Fed. Reg. 52,642, 52,648 (Oct. 1, 1998) (to be codified at 50 C.F.R. pt. 679).

[11] Alaska Trojan, 425 F.3d at 632.

[12] Id.

[13] See 50 C.F.R. § 679.2 (2005).