Oregon Trollers Ass'n v. Gutierrez

• Decision Date: 06 July 2006
• Docket Number: No. 05-35970.,05-35970.
• Citation: 452 F.3d 1104
• Parties: OREGON TROLLERS ASSOCIATION; Suislaw Fishermen's Association; Thomas Harris; James Moore; Jim Gagnon; John Fraser; Garth Porteur; Stan Jones; Russell Ott; Donald Jacobs; Great American Smokehouse and Seafood Company; Cap'n Zach's Crab House; Zack Rotwein; Pat Houck; Dan Morris, Plaintiffs-Appellants, v. Carlos M. GUTIERREZ, Secretary of the United States Department of Commerce; National Marine Fisheries Services; William T. Hogarth, NMFS Director; D. Robert Lohn, NMFS Regional Director for the Northwest Region, Defendants-Appellees, Yurok Tribe; Hoopa Valley Tribe, Defendants-Intervenors-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

452 F.3d 1104

OREGON TROLLERS ASSOCIATION; Suislaw Fishermen's Association; Thomas Harris; James Moore; Jim Gagnon; John Fraser; Garth Porteur; Stan Jones; Russell Ott; Donald Jacobs; Great American Smokehouse and Seafood Company; Cap'n Zach's Crab House; Zack Rotwein; Pat Houck; Dan Morris, Plaintiffs-Appellants,

v. Carlos M. GUTIERREZ, Secretary of the United States Department of Commerce; National Marine Fisheries Services; William T. Hogarth, NMFS Director; D. Robert Lohn, NMFS Regional Director for the Northwest Region, Defendants-Appellees, Yurok Tribe; Hoopa Valley Tribe, Defendants-Intervenors-Appellees.

No. 05-35970.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 1, 2006.

Filed July 6, 2006.

COPYRIGHT MATERIAL OMITTED

Russell C. Brooks, Pacific Legal Foundation, Bellevue, WA; Ross Day, Oregonians in Action Legal Center, Tigard, OR, for the appellants.

Mark R. Haag, U.S. Department of Justice, Washington, D.C., and James L. Sutherland, Office of the U.S. Attorney, Eugene, OR, for the appellees.

Rob Roy Smith, Morisset Schlosser Jozwiak & McGaw, Seattle, WA, and Scott W. Williams, Curtis G. Berkey, Alexander Berkey Williams & Weathers, Berkeley, CA, for the defendants-intervenors-appellees.

Appeal from the United States District Court for the District of Oregon; Thomas M. Coffin, Magistrate Judge, Presiding. D.C. No. CV-05-06165-TMC.

Before: JOHN T. NOONAN, A. WALLACE TASHIMA, and W. FLETCHER, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge:

The 250-mile Klamath River originates in eastern Oregon and empties into the Pacific Ocean at Crescent City, California. The Klamath River fall chinook, an anadromous salmon species, begin life in the river's upper reaches and tributaries, either in hatcheries or in the wild. As juveniles the Klamath chinook migrate to sea and spend much of their lives in the Klamath Management Zone, an area off the coasts of California and Oregon. At age 3, 4, or 5, they return, usually to their natal tributaries or hatcheries, to spawn and die.

In early 2005, the National Marine Fisheries Service ("NMFS") projected that a critically low number of Klamath chinook would escape that season's harvest to survive and to spawn in the wild. To increase the projected number of wild-spawning Klamath chinook, the NMFS adopted fishery management measures that substantially limited commercial and, to a lesser extent, recreational fishing in the Klamath Management Zone for 2005.

Plaintiffs, who include fishermen, fishing-related businesses, and fishing organizations, filed this action against the NMFS and other governmental entities to challenge the 2005 management measures. Plaintiffs allege that the measures conflict with a number of substantive and procedural requirements set forth in the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson Act"), 16 U.S.C. § 1801 et seq. The district court granted summary judgment to defendants, and we affirm.

I. Introduction

The events at issue in this dispute unfolded in early 2005 against a complicated regulatory backdrop. We first describe in general terms the regulation of Pacific fisheries under the Magnuson Act. We then turn to the specific facts of this case.

A. Regulatory Background

1. The Magnuson Act and Fishery Management Plans

Congress passed the Magnuson Act in 1976 in order "to take immediate action to conserve and manage the fishery resources found off the coasts of the United States. . . ." 16 U.S.C. § 1801(b)(1). The statute established eight Regional Fishery Management Councils, including the Pacific Fishery Management Council ("PFMC" or "the Council"). Id. § 1852(a)(1)(F). The councils, composed of federal and state officials as well as private experts appointed by the NMFS, draft "fishery management plans" ("FMPs"), id. § 1852(h)(1), that are designed to "achieve and maintain, on a continuing basis, the optimum yield from each fishery[.]" Id. § 1801(b)(4). The councils also propose regulations implementing these FMPs to the Secretary of Commerce. Id. § 1853(c). Acting through the NMFS, the Secretary reviews FMPs and their implementing regulations for consistency with the Magnuson Act, solicits public comment, and publishes final regulations in the Federal Register. Id. § 1854(a)(1)(B), (b)(1).

2. The Pacific Coast Salmon Plan

In 1977, the NMFS approved the Pacific Coast Salmon Plan ("Pacific Plan"), an FMP for the Pacific salmon fisheries. See Pacific Plan 1 (revised Sept. 2003), available at http://www.pcou ncil.org/salmon /salfmp.html.¹ From 1978 through 1983, the Council recommended annual amendments to the Pacific Plan based on yearly "salmon abundance estimates and social and economic factors affecting the fisheries." 49 Fed.Reg. 43679, 43679 (Oct. 31, 1984). This process, which required notice-and-comment and other procedures, proved "too cumbersome to allow for timely implementation of the annual regulations and efficient fishery management." Pacific Plan at 1. In 1984, the Council therefore proposed a "comprehensive framework amendment" to the NMFS. Pacific Plan at 1. The 1984 amendment established consistent terms for salmon regulation that would apply every year, and it provided a "mechanism for making preseason and inseason adjustments in the regulations without annual amendments to the FMP." 49 Fed.Reg. at 43679. Shortly thereafter, the NMFS approved the amended Pacific Plan and promulgated implementing regulations, now codified at 50 C.F.R. §§ 660.401-411.

The amended Pacific Plan includes fixed measures, which can only be changed through formal rulemaking, and allows for flexible measures, which change from year-to-year based on fishery conservation and management needs. See Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1243 (9th Cir.1988). "Fixed measures" include "the procedures and schedules for making preseason and inseason adjustments to the regulations." "Flexible measures" include "determinations of the annual allowable levels of ocean harvests. . . ." 49 Fed.Reg. 32414, 32414-15 (Aug. 14, 1984) (proposed rule).

One of the most important features of the Pacific Plan's management of Klamath chinook is its "spawning escapement goal." "For 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. . . . For hatchery stocks, the escapement goal is that number of spawners needed to meet a hatchery's agreed-upon artificial production plan." United States v. Washington, 774 F.2d 1470, 1473 n. 2 (9th Cir.1985). The NMFS first adopted a spawning escapement goal for the Klamath chinook in 1985. It required the agency to design annual management measures such that, by 1998, 115,000 Klamath chinook, including 97,000 natural spawners, would escape to spawn. See 50 Fed.Reg. 812, 813 (Jan. 7, 1985).

In December 1988, the Council, "[f]aced with declining run sizes," proposed an amendment to the Pacific Plan that would set the 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." Hatchery spawners would not count toward this goal. The NMFS adopted this amendment to the Pacific Plan and implemented it in a regulation promulgated on May 4, 1989. The regulation has remained in effect, with minor adjustments, since then. See 54 Fed.Reg. 19185, 19194 (May 4, 1989); 54 Fed.Reg. 19798, 19800 (May 8, 1989) (lowering the percentage to 33-34%).

3. Annual Management Measures

The process for setting the "flexible" annual management measures for Pacific salmon fisheries begins in January, when the Council releases a report describing abundance levels for the previous year's salmon stocks. See PFMC, Council Operating Procedure: Preseason Mgmt. Process (rev.Mar. 11, 2005). In February, the Council drafts Preseason Report I, which makes "stock abundance forecasts and harvest and escapement estimates [for the coming season] when recent regulatory regimes are projected on current year abundance." Id. In early March, the Council meets in public to discuss various management options for the coming season in that year. It then releases Preseason Report II, which proposes "not more than three alternative regulatory options" to meet "FMP management objectives." Id. The Council holds public meetings on the proposed salmon management options in late March. After receiving comments from the public, the Council chooses from among the options at its early April meeting. Most of that meeting is open to the public. See Pacific Plan at 9-1. The Council then forwards its proposed management measures to the NMFS for final approval. Annual management measures for the Pacific salmon fisheries are published in final form in the Federal Register in early May.

B. Klamath Chinook and 2005 Management Measures

Klamath River salmon have suffered dramatically in recent years. In the spring of 2002, thousands of juvenile salmon died in the river before reaching the ocean. That fall, 34,000 mature chinook, coho, and steelhead died in the river's lower 20 miles as they tried to swim upstream. The proliferation of a salmon parasite, exacerbated by low water levels caused by drought and irrigation use, may have caused this mass fish kill. See U.S. Fish & Wildlife Serv., Klamath River Fish Die-Off September 2002: Causative Factors of Mortality, Exec. Summary at ii (Nov.2003), available at http://www.fws.gov/sacramento/ea.

Problems continued in 2004 and 2005. In its Review of 2004 Ocean Salmon Fisheries, published in early 2005 ("2004 Review"), the Council reported that the Klamath River run after the 2004 fishing season consisted of 79,000 returning adult chinook, or about 20,000 fewer than its preseason estimate. Of these, only 24,300 were natural spawners. 2004 Review at 35. Predictions for the 2005 postseason run, when juvenile salmon that had...