Midwater Trawlers v. Department of Commerce

• Citation: 393 F.3d 994
• Decision Date: 28 December 2004
• Docket Number: No. 03-35398.,03-35398.
• Parties: MIDWATER TRAWLERS CO-OPERATIVE; West Coast Seafood Processors; Fisherman's Marketing Association, Plaintiffs-Appellants, and State of Oregon; State of Washington, Plaintiffs, v. DEPARTMENT OF COMMERCE; National Marine Fisheries Service; Mickey Kantor, Secretary, U.S. Dept of Commerce; William M. Daley, Secretary of Commerce; Penelope D. Dalton, Asst Administrator for Fisheries, National Oceanic and Atmospheric Admin; Director, National Marine Fisheries Svc; William Stelle, Jr., Director, National Marine Fisheries Svc, Defendants-Appellees, Makah Indian Tribe, Defendant-intervenor-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

393 F.3d 994

MIDWATER TRAWLERS CO-OPERATIVE; West Coast Seafood Processors; Fisherman's Marketing Association, Plaintiffs-Appellants, and State of Oregon; State of Washington, Plaintiffs, v. DEPARTMENT OF COMMERCE; National Marine Fisheries Service; Mickey Kantor, Secretary, U.S. Dept of Commerce; William M. Daley, Secretary of Commerce; Penelope D. Dalton, Asst Administrator for Fisheries, National Oceanic and Atmospheric Admin; Director, National Marine Fisheries Svc; William Stelle, Jr., Director, National Marine Fisheries Svc, Defendants-Appellees, Makah Indian Tribe, Defendant-intervenor-Appellant.

No. 03-35398.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 2004.

Filed December 28, 2004.

COPYRIGHT MATERIAL OMITTED

James P. Walsh, Davis, Wright, Tremaine, LLP, San Francisco, California, for the plaintiffs-appellants.

Thomas L. Sansonetti, Assistant Attorney General, and Robert L. Gulley, Peter C. Monson, and James C. Kilbourne, U.S. Department of Justice, Environmental and Natural Resources Division, Washington, D.C., for the federal defendants-appellees.

Eileen M. Cooney, Elizabeth R. Mitchell, Office of General Counsel, National Oceanic and Atmospheric Administration, Seattle, Washington, of counsel for the federal defendants-appellees.

Marc D. Slonim, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, Washington, for defendant-intervenor-appellee Makah Indian Tribe.

Before: PREGERSON, FERGUSON, and CALLAHAN, Circuit Judges.

PREGERSON, Circuit Judge:

Midwater Trawlers Cooperative, West Coast Seafood Processors, and the Fishermen's Marketing Association (collectively "Appellants" or "Midwater") challenge the Secretary of Commerce's decision to allocate a portion of the U.S. harvest of Pacific whiting¹ to the Makah Indian Tribe ("the Makah Tribe"). Appellants argue that the allocation runs afoul of the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson-Stevens Act"), 16 U.S.C. § 1801 et seq., and the Administrative Procedure Act ("APA"). In an earlier appeal in this case, we concluded that the National Marine Fisheries Service ("Fisheries Service")² had failed to explain its allocation of Pacific whiting to the Makah Tribe using the best available scientific information. Accordingly, we remanded for the Fisheries Service to promulgate a new allocation to the Makah Tribe consistent with the law and based on the best available science, or to provide further justification that the current allocation conforms to the requirements of the Magnuson-Stevens Act and the 1855 Treaty of Neah Bay.³ Midwater Trawlers Coop. v. Dep't of Commerce, 282 F.3d 710 (9th Cir.2002) (Midwater II).

Following remand, the district court granted summary judgment in favor of the Department of Commerce, the Fisheries Service, and the National Oceanic and Atmospheric Administration (collectively "Appellees"). In so doing, the district court denied Appellants' request to remand to the Fisheries Service for further rulemaking proceedings to clarify the basis of the "sliding scale" method of Pacific whiting allocation. Instead, the district court approved the sliding scale method. Appellants argue (1) that the district court should have vacated the challenged regulation and remanded to the Fisheries Service, and (2) that the sliding scale method of allocation is not based on the "best available scientific evidence" as required by the Magnuson-Stevens Act. We affirm the district court's decision.

FACTUAL AND PROCEDURAL BACKGROUND

This appeal arises out of a series of four consolidated suits challenging the Secretary of Commerce's decisions to allocate a portion of the U.S. harvest of Pacific coast whiting to the Makah Tribe under the Treaty of Neah Bay. The controversy began in 1995, after the Makah Tribe notified the Fisheries Service that it intended to exercise its treaty rights and harvest up to one half of the harvestable surplus of Pacific whiting that pass through its usual and accustomed fishing grounds.⁴ See generally Washington v. Daley, 173 F.3d 1158, 1162 (9th Cir.1999).⁵

Allocation of Pacific whiting is subject to regulation pursuant to the Magnuson-Stevens Act, 16 U.S.C. § 1801 et seq., which vests the Fisheries Service with the authority to issue fishery management regulations.⁶ See 16 U.S.C. §§ 1853, 1855; see also Kramer v. Mosbacher, 878 F.2d 134, 135 (4th Cir.1989). Such regulations must be consistent with the Magnuson-Stevens Act and other applicable law defining Indian treaty fishing rights. See Parravano v. Babbitt, 70 F.3d 539, 544 (9th Cir.1995). "Other applicable law" under the Magnuson-Stevens Act includes Indian treaty fishing rights. Wash. State Charterboat Ass'n v. Baldrige, 702 F.2d 820, 823 (9th Cir.1983).

In 1996, the Fisheries Service promulgated a "Framework Regulation," codified at 50 C.F.R. § 660.324, that recognized the treaty rights of four coastal tribes — the Hoh, Makah, and Quileute Indian Tribes, and the Quinault Indian Nation — to harvest groundfish⁷ in the tribes'"usual and accustomed" fishing areas. 61 Fed.Reg. 28786 (June 6, 1996); 50 C.F.R. § 660.324. The Framework Regulation defined the usual and accustomed fishing areas of the four tribes as extending approximately forty miles into the ocean off Washington's coast. Daley, 173 F.3d at 1162. It also instituted a procedure for accommodating these treaty rights. Id.

Pursuant to the Framework Regulation, the Department of Commerce has made allocations of Pacific whiting to the Makah Tribe every year since 1996. In 1996, Midwater, along with the states of Oregon and Washington, filed suit against Appellees, challenging the Framework Regulation and the allocation provided to the tribes. In addition, because it believed the Fisheries Service's proposed allocation deprived it of its treaty entitlement in violation of its treaty rights, the Makah Tribe initiated a subproceeding seeking to have the proposal declared invalid.⁸ Washington II, 143 F.Supp.2d at 1221.

In its subproceeding, the Makah Tribe disagreed with the Fisheries Service over the method to be used for calculating the tribe's allocation of Pacific whiting. The Makah Tribe argued that the biomass method lacked scientific support and disagreed with the Fisheries Service on the definition of "harvestable surplus." See, e.g., Washington II, 143 F.Supp.2d at 1221.

Under the biomass methodology initially used by the Fisheries Service, "the amount of harvestable fish is calculated by taking snapshots of the geographic distribution of Pacific whiting at given points in time." Id. at 1223. The problem with the biomass method is that it fails to account for the annual migration patterns of Pacific whiting, which can be influenced by ocean conditions, age, and food sources. This means that the abundance of Pacific whiting in a particular area may dramatically differ from day-to-day as the fish migrate for food or because of ocean conditions. Consequently, the biomass's snapshot method will only count those fish present in the Makah Tribe's usual and accustomed fishing grounds during the particular survey period, likely resulting in an underestimate of the actual numbers of Pacific whiting passing through those fishing grounds.

Instead of a biomass methodology, the Makah Tribe had long argued that a sliding scale methodology provided a better way to calculate its treaty share of the annual Pacific whiting harvest. Under the sliding scale method, the amount of Pacific whiting allocated to the tribes varied, based on the amount of U.S. Optimum Yield.⁹ The data supporting this approach indicates that the "bulk" of migratory Pacific whiting pass through the Makah Tribe's usual and accustomed fishing grounds, thereby entitling the Makah Tribe to fifty percent of the bulk of the migratory Pacific whiting harvest. Midwater II, 282 F.3d at 719. When estimates of the Optimum Yield are less than 145,000 metric tons ("mt"), the Makah Tribe would be allocated 17.5 percent of the Optimum Yield. After the estimate reached 250,000 mt, the tribe's portion would remain at 35,000 mt.

Before making the 1999 Pacific whiting allocation, the Fisheries Service sought public comment on two allocation proposals. One proposal would have kept the tribe's 1999 allocation the same as it had been for 1997 and 1998. The other proposal would have relied upon the sliding scale methodology proposed by Makah, which varied the tribe's allocation as a percentage of the U.S. Optimal Yield. 64 Fed.Reg. 1341 (Jan. 8, 1999). However, the Fisheries Service later determined that the tribe's proposal of 32,500 mt was a "reasonable accommodation of the treaty right for 1999 in view of the remaining uncertainty surrounding the appropriate quantification." 64 Fed.Reg. 27928 (May 24, 1999).

In response to the Fisheries Service's 1999 Pacific whiting allocation, Midwater and Oregon filed a second suit in the U.S District Court in Oregon, again challenging the agency's allocation of Pacific whiting to Makah. This case was consolidated with Midwater's 1996 suit in the U.S. District Court for the Western District of Washington.

In its second suit, Midwater argued, among other things, that the 1999 Pacific whiting allocation was illegal because it was not based on the "best scientific information available." The district court granted Appellees' motion for summary judgment on all of Midwater's claims, upholding the 1996 Framework Regulation and the 1999 allocation. Midwater Trawlers Coop. v. Dep't of Commerce, 139 F.Supp.2d 1136, 1148 (W.D.Wash.2000).

On appeal from that decision, we upheld the Framework Regulation that recognized and implemented the treaty rights of the four coastal tribes to harvest groundfish in their usual and accustomed fishing grounds. Midwater II, 282 F.3d at 719 (holding that the Makah Tribe is "entitled, pursuant to the Treaty of Neah Bay, to one half the harvestable surplus of Pacific whiting that passes through its usual and accustomed fishing...