Alaska Factory Trawler Ass'n v. Baldridge, 86-4410

• Citation: 831 F.2d 1456
• Decision Date: 06 November 1987
• Docket Number: No. 86-4410,86-4410
• Parties: ALASKA FACTORY TRAWLER ASSOCIATION, et al., Plaintiffs/Appellants, v. Malcolm BALDRIDGE, Secretary of Commerce, Defendant/Appellee, and Fishing Vessel Owners' Association, et al., Intervenor-Defendants/Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1456

831 F.2d 1456

ALASKA FACTORY TRAWLER ASSOCIATION, et al., Plaintiffs/Appellants, v. Malcolm BALDRIDGE, Secretary of Commerce, Defendant/Appellee and Fishing Vessel Owners' Association, et al Intervenor-Defendants/Appellees.

No. 86-4410.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 10, 1987.

Decided Nov. 6, 1987.

Stephen B. Johnson, Seattle, Wash., for appellants Alaska Factory Trawler Ass'n, et al.

William B. Lazarus, Washington, D.C., for appellee Baldridge.

Allan A. Tuttle, Washington, D.C., for intervenor-appellees Fishing Vessel Owners' Ass'n, et al.

Appeal from the United States District Court for the Western District of Washington.

Before KENNEDY and BEEZER, Circuit Judges, and GRAY, ^* District Judge.

PER CURIAM:

The plaintiffs/appellants are an association of trawl fishermen in the Gulf of Alaska sablefish industry. The defendant/appellee is the acting Secretary of Commerce, ^** and the intervenor-defendants/appellees represent the interests of the longline fishing industry in the Gulf of Alaska.

The plaintiffs/appellants sought in the United States District Court a summary judgment that would render null and void Amendment 14 to the Gulf of Alaska Groundfish Fishing Management Plan and its implementing regulations, and would enjoin the defendant from enforcing the latter. Judge Voorhees denied the plaintiffs' motion and, instead, granted summary judgment motions made by the defendants.

Judge Voorhees very carefully and fully set forth his analysis of the facts and his legal conclusions therefrom in an Order dated August 28, 1986, a copy of which we append hereto. We are in complete agreement with Judge Voorhees' decision, and we do not see how we can improve upon his articulation of it. We accordingly adopt his opinion as our own, summarize briefly the

principal holdings, and affirm the decision below.

STANDARD OF REVIEW

A court, acting under authority granted by the Magnuson Fishery Conservation and Management Act (FCMA), may review regulations promulgated by the Secretary of Commerce, and the FCMA provides for the standard of judicial review in this case. 16 U.S.C. Sec. 1855(d). However, unless the Secretary acts in an arbitrary and capricious manner in promulgating such regulations, they may not be declared invalid. Section 1855(d); 5 U.S.C. Sec. 706(2)(A).

THE SECRETARY'S DECISION

In order for a court to overturn a Secretary's decision, it must be shown that alleged irregularities, such as closed mealtime meetings, affected such decision. The trial court found, and we agree, that the alleged irregularities did not result in any improper material being added to the administrative record. In this case the Secretary followed procedures correctly and established a rational basis for his decision.

Amendment 14 of the Gulf of Alaska Groundfish Fishing Plan does not violate National Standard 4, 16 U.S.C. Sec. 1851(a)(4), because it will benefit all longline fishermen, not just those that are residents of Alaska. Even though there may be some discriminatory impact from Amendment 14, the regulations satisfy the requirements of National Standard 4 in that they are tailored to solve a gear conflict problem and to promote the conservation of sablefish. Hence, the Secretary's decision to adopt Amendment 14 was not arbitrary and capricious.

The record shows that the Secretary considered several non-economic objectives in promulgating the regulations and that the measure was not adopted solely for economic reasons. In consequence, the Secretary could reasonably conclude that Amendment 14 does not violate National Standard 5, 16 U.S.C. Sec. 1851(a)(5).

The Secretary does not have to conduct a formal cost/benefit analysis of Amendment 14. He, therefore, does not need to demonstrate that it is the least restrictive alternative available for managing the sablefish resource. The Secretary could reasonably have concluded from the record that pot and trawl fishing should be curtailed in Alaska for both sociological and environmental reasons, and that the amendment would be beneficial to the nation as a whole, even though some interest groups might be harmed. Thus, National Standard 7 has not been violated. 16 U.S.C. Sec. 1851(a)(7); 50 C.F.R. Sec. 602.17(d).

Finally, the Secretary did not violate the National Environmental Policy Act by not requiring the filing of an Environmental Impact Statement (EIS) on the effects of Amendment 14 on the human environment. When substantial questions are raised as to whether a project may cause significant degradation of the environment, an EIS must be prepared, Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir.1985). However, an agency's decision not to prepare an EIS should be upheld if it is reasonable. Foundation of North American Wild Sheep v. Department of Agriculture, 681 F.2d 1172, 1177 (9th Cir.1982). Since Amendment 14 does not close a highly-worked fishery to all fishermen, but rather allocates the already established optimum yield of sablefish among the existing gear fleets, the decision not to file an EIS was reasonable.

APPENDIX

Alaska Trawler Association, et al., Plaintiffs,

v.

Malcolm Baldridge, Secretary of Commerce, Defendant,

and

Fishing Vessel Owners' Association, et al., Intervenor-Defendants.

No. C85-2279V

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

Filed August 28, 1986

ORDER

Having considered the plaintiffs' motion for partial summary judgment, the defendant's motion for summary judgment, the intervenor-defendants' motion for summary judgment, and the amicus curiae memorandum filed by Senator Ted Stevens of Alaska, the memoranda and affidavits submitted by counsel, the administrative record on file with the Court, and the arguments of counsel at the hearing on these motions, the Court finds and rules as follows:

1. This case involves challenges to an administrative regulation promulgated by the Secretary of Commerce and the National Oceanic and Atmospheric Administration ("NOAA"). The regulation at issue appears in final form in 50 Fed.Reg. 43193 (October 24, 1985) and is codified at 50 C.F.R. Part 672. This regulation was adopted as an amendment to the Gulf of Alaska Groundfish Fishery Management Plan and is referred to as "Amendment 14." Plaintiffs now move for summary judgment on fourteen of their specific challenges to Amendment 14. Defendants and intervenor-devendants have filed cross-motions for summary judgment on those challenges.

2. The portion of Amendment 14 at issue in these motions concerns the allocation of the sablefish optimum yield ("OY") in the Gulf of Alaska among fishermen using various methods of fishing for groundfish. The fishermen who harvest sablefish in the Gulf of Alaska use three kinds of gear: longline gear, pot gear, and trawl gear. Plaintiffs in this case are identified with interests in the pot fishing and trawl fishing industries. The intervenor-defendants represent the interests of the longline fishing industry.

3. Historically, the Gulf of Alaska sablefish fishery was worked primarily by foreign fishermen from Japan, the Soviet Union, and Korea. Since the adoption of the Fishery Conservation and Management Act ("FCMA") in 1976, however, the American share of the sablefish harvest has grown steadily. The Americanization of the fishery has seen a growth in trawl and pot fishing for sablefish. This growth has been at the expense of longline interests.

4. For several years the North Pacific Fishery Management Council ("the Council"), the body responsible for overseeing the development of the Gulf of Alaska Groundfish Fishery Management Plan, had received requests from longline fishermen for the Council to regulate the amount of sablefish that could be caught by trawlers and by pot fishers. In late 1984 and early 1985, the Council received letters from longliners regarding gear conflict and grounds preemption in the sablefish fishery.

5. With reference to pot fishermen, the longliners asserted that pots were often lost and left to rest on the ocean floor and that subsequent activity by longliners in the area of the lost pots would result in their lines becoming entangled in the pots. This entanglement would cause the longliners to lose both their catch and their gear.

6. With reference to the trawl fishermen, the longliners complained that trawling for any groundfish resulted in a large incidental catch of sablefish. As a result, a high percentage of the sablefish OY was being captured by trawlers who were not in fact targeting that species. The activity of the trawlers caused the sablefish fishery to be closed before the longliners could make maximum use of their equipment.

7. In response to a request by the Alaska Longline Fishermen's Association, the Council considered taking emergency action regarding the closure of the Eastern Gulf of Alaska sablefish fishery to all but longline fishermen. In preparation for its February, 1985, meeting, the Council directed its Scientific and Statistical Committee ("SSC") and its Advisory Panel ("AP") to consider the longline fishermen's proposal. Before the February meeting, the SSC filed its report and concluded that further information on the participation by the various gear types in the fishery was needed before the SSC could recommend any action. The AP, however, expressed concern that sablefish could develop into a halibut style fishery where the OY is taken in a short period of time, creating cold storage problems. As a result of this concern, the AP recommended that the Council take some action to close part of the fishery.

8. The Council conducted its public meeting in Sitka, Alaska, on February 5-8 1985. Throughout the course of this meeting, many members of the public stated their concerns regarding the closure of the Eastern Gulf of Alaska sablefish fishery to all but longliners. The minutes of the meeting indicate that many different viewpoints were presented to...