Alaska Trojan Partnership v. Gutierrez, 04-35753.

• Decision Date: 22 September 2005
• Docket Number: No. 04-35753.,04-35753.
• Citation: 425 F.3d 620
• Parties: ALASKA TROJAN PARTNERSHIP, Plaintiff-Appellant, v. Carlos M. GUTIERREZ;<SMALL><SUP>*</SUP></SMALL> United States Department of Commerce; National Oceanic and Atmospheric Administration; National Fisheries Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

425 F.3d 620

ALASKA TROJAN PARTNERSHIP, Plaintiff-Appellant, v. Carlos M. GUTIERREZ;^* United States Department of Commerce; National Oceanic and Atmospheric Administration; National Fisheries Service, Defendants-Appellees.

No. 04-35753.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 2005.

Filed September 22, 2005.

Michael A.D. Stanley, Juneau, AK, for the appellant.

James C. Kilbourne, Department of Justice, Washington, D.C., for the appellees.

Appeal from the United States District Court for the District of Alaska; Ralph R. Beistline, District Judge, Presiding. D.C. No. CV-04-00003-J-RRB.

Before: GOODWIN, BRUNETTI, and W. FLETCHER, Circuit Judges.

BRUNETTI, Circuit Judge.

Alaska Trojan Partnership ("Alaska Trojan") challenges the decision of Carlos M. Gutierrez, in his official capacity as Secretary of Commerce ("the Secretary"), the United States Department of Commerce, the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service ("NMFS")¹ (collectively "defendants") denying 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. Defendants determined that Alaska Trojan made only two "documented harvests" of brown king crab in the Aleutian Islands brown king crab endorsement area during the endorsement qualification period, January 1, 1992, through December 31, 1994, and therefore denied Alaska Trojan an Aleutian Islands brown king crab endorsement. Alaska Trojan argues that it made three "documented harvests" and therefore is entitled to receive an Aleutian Islands brown king crab endorsement. Alaska Trojan argues that defendants' interpretation of the term "documented harvest" is inconsistent with the plain meaning of that term as defined in the regulations implementing the LLP, and that defendants' interpretation of "documented harvest" is inconsistent with the intent of the LLP. We agree with Alaska Trojan on both issues and reverse the judgment of the district court granting summary judgment for defendants. We further hold that Alaska Trojan is entitled to summary judgment.

FACTS AND PROCEEDINGS BELOW

License Limitation Program

Pursuant to the Magnuson-Stevens Fisheries Conservation Act, 16 U.S.C. §§ 1801, et seq. ("Magnuson Act"), Congress delegated authority to the Secretary to manage and conserve coastal fisheries. The Magnuson Act created independent fishery councils to assist the Secretary in carrying out these management and conservation duties. See id. § 1852. The primary duty of these councils is to prepare fishery management plans and amendments to those plans, which the Secretary reviews and, when appropriate, promulgates regulations to implement. See id. §§ 1852(h), 1854(a)-(b). Pursuant to the Magnuson Act, the North Pacific Fishery Management Council ("the Council") recommends fishery management plans for fisheries in the Arctic Ocean, the Bering Sea, and the Pacific Ocean seaward of Alaska. See id. § 1852(a)(1)(G). This court has recently provided substantial background concerning the Magnuson Act and the Council. See Yakutat, Inc. v. Gutierrez, 407 F.3d 1054, 1057-62 (9th Cir.2005).

After reviewing several fishery management plans, at its June 1995 meeting the Council ultimately adopted and submitted to NMFS an LLP to regulate crab harvesting as Amendment 5 to the Fishery Management Plan for the Commercial King and Tanner Crab Fisheries. Based on the Council's recommendation, NMFS published proposed LLP regulations for notice and comment. 62 Fed.Reg. 43,866 (proposed Aug. 15, 1997) (hereinafter "Proposed Rule"). NMFS prepared final regulations and forwarded them to the Secretary for review. After the Secretary approved the LLP regulations, NMFS published the final regulations to implement the LLP on October 1, 1998. Fisheries of the Exclusive Economic Zone Off Alaska, 63 Fed.Reg. 52,642 (Oct. 1, 1998) (codified at 50 C.F.R. pt. 679) (hereinafter "Final Rule"). Regulations establishing an application process and transfer process for LLP licenses were promulgated on August 6, 1999. 64 Fed.Reg. 42,826 (Aug. 6, 1999) (codified at 15 C.F.R. pt. 902; 50 C.F.R. pt. 679). Anyone who wanted an Aleutian Islands brown king crab endorsement was required to file an application by December 17, 1999. See 50 C.F.R. § 679.4(k)(6)(i), (ii). Fishing under the LLP began on January 1, 2000.

Under the LLP, crab licenses are endorsed for specific areas and specific species. See generally id. § 679.4(k) (substantive requirements for groundfish and crab licenses). The Aleutian Islands brown king crab endorsement regulation at issue provides:

A crab species license will be assigned [by NMFS] an Aleutian Islands brown king area/species endorsement if at least three documented harvests of brown king crab were made by a vessel during the period beginning January 1, 1992, through December 31, 1994 in the area described in the definition for an Aleutian Islands brown king area/species endorsement at [50 C.F.R.] § 679.2.

Id. § 679.4(k)(5)(ii)(D) (italics added; capitalization and ellipses omitted). "Documented harvest" is defined as "a lawful harvest that was recorded in compliance with Federal and state commercial fishing regulations in effect at the time of harvesting." Id. § 679.2. "Harvest" is not defined, but "[h]arvesting or to harvest means the catching and retaining of any fish." Id. The regulation defines the Aleutian Islands brown king crab endorsement area as:

Aleutian Islands brown king in waters with an eastern boundary the longitude of Scotch Cap Light (164 44' W. long.), a western boundary of the U.S.-Russian Convention Line of 1867, and a northern boundary of a line from the latitude of Cape Sarichef (54 36' N. lat.) westward to 171 W. long., then north to 55 30' N. lat., then west to the U.S.-Russian Convention Line of 1867.

Id.

Prior to the promulgation of the final LLP regulations, the term "legal landing" had been used in place of "documented harvest" as the criterion for endorsements. The proposed Aleutian Islands brown king crab endorsement regulation had required "at least three legal landings of any amount of brown king crab." Proposed Rule, 62 Fed.Reg. at 43,888. "Landing" is defined in the LLP regulations as "offloading fish." 50 C.F.R. § 679.2. "Legal landing" is further defined as "a landing in compliance with Federal and state commercial fishing regulations in effect at the time of landing." Id. The final LLP regulations, however, replaced "legal landing" with "documented harvest." NMFS explained the change, and the reason for it, as follows:

A definition for the term "documented harvest" is added to the final rule. The term "documented harvest" replaces "legal landing" throughout the final rule. The new term more accurately describes the activity necessary for eligibility. Included in the proposed definition of legal landing was the activity of off-loading. Off-loading is not necessary for eligibility. Further, the area endorsement(s) a person is issued should reflect the area in which fishing occurred, not the area in which the fish were delivered.

Final Rule, 63 Fed.Reg. at 52,648 (describing the final rule).

NMFS administers the LLP through the Restricted Access Management Program ("RAM"), an agency within the Alaska Regional Office of NMFS. To determine which applicants qualify to receive an LLP endorsement, RAM must use the "official LLP record" prepared by NMFS. See 50 C.F.R. § 679.4(k)(6)(v). RAM "compare[s] all claims in the application with information in the official LLP record." Id. The "official LLP record" is defined as:

the information prepared by the Regional Administrator [of NMSF] about vessels that were used to participate in the groundfish or crab fisheries during qualified periods for the groundfish and crab LLP specified at § 679.4(k). . . . Information in the official LLP record includes vessel ownership information, documented harvests made from vessels during the qualification periods, and vessel characteristics. The official LLP record is presumed to be correct for the purpose of determining eligibility for licenses. An applicant for a license under the LLP will have the burden of proving the validity of information submitted in an application that is inconsistent with the official LLP record.

50 C.F.R. § 679.2 (emphasis added). If the applicant's claims are consistent with the information in the official LLP record, such claims will be accepted by RAM. 50 C.F.R. § 679.4(k)(6)(v). If, however, the applicant makes an inconsistent claim, the applicant has sixty days to "submit evidence to verify his or her inconsistent claims." Id. If RAM "determines that the additional information or evidence meets the applicant's burden of proving that the inconsistent claims in his or her application is correct, the official LLP record will be amended and the information will be used in determining whether the applicant is eligible for a license." Id. § 679.4(k)(6)(vi). If RAM determines that the additional evidence does not meet the applicant's burden, RAM notifies the applicant by an Initial Administrative Decision that the inconsistent claim cannot be approved. Id. § 679.4(k)(6)(viii). The applicant may then appeal this decision to NMFS' Office of Administrative Appeals pursuant to 50 C.F.R. § 679.43.

The State of Alaska, through regulations implemented by the Alaska Department of Fish and Game ("ADF & G"), requires commercial fishermen to report the catching and buying of crab. This information is originally recorded on ADF & G fish tickets. Relevant to this case, ADF & G requires that "[e]ach buyer of raw fish . . . shall record each landing on an ADF & G fish ticket." 5 Alaska Administrative Code ("AAC") § 39.130(c). The ADF & G regulations also require that the fish ticket separately list "the nearest headland or bay or statistical catch area in...