Arctic Sole Seafoods v. Gutierrez
| Decision Date | 19 May 2008 |
| Docket Number | Case No. C07-1676MJP. |
| Citation | 622 F.Supp.2d 1050 |
| Parties | ARCTIC SOLE SEAFOODS, Plaintiff, v. Carlos M. GUTIERREZ, Defendant. |
| Court | U.S. District Court — Western District of Washington |
John E. Casperson, Michael A. Barcott, Megan Elizabeth Blomquist, Holmes Weddle & Barcott, Seattle WA, for Plaintiffs.
Brian C. Kipnis, U.S. Attorney's Office, Seattle WA, Lisa L. Russell, U.S. Department of Justice, Washington DC, Rickey D. Turner, U.S. Dept., of Justice Wildlife & Marine Resources Section, Washington DC, for Defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on the parties' cross-motions for summary judgment. (Dkt. Nos. 7 & 24.) Having considered the motions, responses, and the relevant portions of the administrative record, and having heard oral argument on these issues, the Court GRANTS Plaintiff's motion for summary judgment and DENIES Defendant's cross-motion.
This case involves amendments to the Fishery Management Plan for groundfish in the Bering Sea and Aleutian Island management area. In separate amendments to the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson-Stevens Act" or "Act"), 16 U.S.C. § 1801 et seq., Congress established eligibility criteria for four catcher processor subsectors in the Bering Sea Aleutian Islands ("BSAI") management area. In 2007, in a regulation entitled "Amendment 80," the National Marine Fisheries Service ("NMFS") interpreted Congress' criteria to limit eligibility in the non-AFA trawl catcher processor subsector to certain qualified vessels. NMFS did not include in its regulations a replacement vessel provision, i.e. a provision by which otherwise qualified owners could use a different vessel to participate in the fishery.
The ARCTIC ROSE, owned by Plaintiff Arctic Sole Seafoods ("Arctic Sole"), is specifically listed as a qualifying vessel in Amendment 80. 50 C.F.R. 679, Table 31. However, the ARCTIC ROSE sank in the Bering Sea on April 2, 2001, and has never been recovered. (Olney Decl. ¶ 5.) Arctic Sole purchased the OCEAN CAPE and transferred the LLP ("License Limitation Program") license from the ARCTIC ROSE to the OCEAN CAPE. (Id. ¶ 6.) Arctic Sole wishes to fish in the BSAI non-pollock groundfish fishery using the OCEAN CAPE, but cannot do so under the Amendment 80 regulations.
Arctic Sole has sued Carlos M. Gutierrez, in his official capacity as the Secretary of Commerce, alleging that the NMFS rule impermissibly restricts participation in the BSAI fishery to qualifying vessels. The parties have cross-moved for summary judgment on this issue and agree that this case will be decided on these briefs.
The Magnuson-Stevens Act created a national program for the conservation and management of fishery resources. 16 U.S.C. § 1801; Yakutat, Inc. v. Gutierrez, 407 F.3d 1054, 1058 (9th Cir.2005). The Act provides the Secretary of Commerce, acting through NMFS and eight regional fishery management councils, the authority to regulate domestic fisheries where necessary and appropriate. 16 U.S.C. §§ 1811(a) & 1852(a). The Act authorizes development of federal fishery management plans and plan amendments, which are prepared by the regional councils and submitted to NMFS for review. 16 U.S.C. §§ 1852(h) & 1854(a). The BSAI fishery is managed by the Bering Sea/Aleutian Islands Groundfish Fishery Management Plan ("the Plan"). The Plan was developed by the Northern Pacific Fishery Management Council ("the Council") and is implemented by NMFS.
One of the many goals of the Magnuson-Stevens Act is "minimiz[ing] bycatch and avoid[ing] unnecessary waste of fish." 16 U.S.C. § 1801(c)(3). "Bycatch" is the Yakutat, 407 F.3d at 1059 n. 3.
In 2004, as part of the Consolidated Appropriations Act of 2005, Congress amended the Magnuson-Stevens Act. Act of Dec. 8, 2004, Pub. L. No. 108-447, 118 Stat. 2809, § 219 [hereinafter Pub. L. 108-447, § 219]. The amendments created the Bearing Sea Aleutian Island Catcher Processor Capacity Reduction Program ("Capacity Reduction Program"), an attempt to promote stability of the fishery by "reduc[ing] excess harvesting capacity" from the catcher processor sector of the non-pollock groundfish fishery. See id.; see also 150 Cong. Rec. S11747-04, 11748, 2004 WL 2642449 (daily ed. Nov. 20, 2004) (comments of Senator Murray). The Capacity Reduction Program put in place a program for reducing the number of vessels and licenses. Pub. L. 108-447, § 219(d) & (e)(1).
The Capacity Reduction Program sets out eligibility criteria for participation in the BSAI fishery. First, "[o]nly a member of a catcher processor subsector may participate in ... the catcher processor sector of the BSAI non-pollock groundfish fishery." Pub. L. 108-447, § 219(g)(1)(A). Subsection 219(a)(3)(C) defines "catcher processor subsector" to include, among others, the "non-AFA [(American Fisheries Act)] trawl catcher processor subsector." "Non-AFA trawl catcher processor subsector" is in turn defined as:
the owner of each trawl catcher processor—
(A) that is not an AFA trawl catcher processor;
(B) to whom a valid LLP license that is endorsed for Bering Sea or Aleutian Islands trawl catcher processor fishing activity has been issued; and
(C) that the Secretary determines has harvested with trawl gear and processed not less than a total of 150 metric tons of non-pollock groundfish during the period January 1, 1997 through December 31, 2002.
In June 2006, the Council recommended an amendment—Amendment 80—to the BSAI Plan. In developing Amendment 80, the Council sought legal advice from counsel for the National Oceanic and Atmospheric Administration ("NOAA"). (Administrative Record ("AR") 134a.) The Council submitted Amendment 80 for review by the Secretary of Commerce in April 2007. On May 30, 2007, NMFS published a proposed rule to implement Amendment 80. Fisheries of the Exclusive Economic Zone of Alaska, 72 Fed. Reg. 30,052 (May 30, 2007). The proposed rule was approved (with few changes) and NMFS issued a final rule. Fisheries of the Exclusive Economic Zone of Alaska, 72 Fed.Reg. 52,668 (Sept. 14, 2007). Among other things, the final rule allocates several BSAI non-pollock groundfish species among trawl fishery sectors and facilitates the formation of harvesting cooperatives in the non-AFA trawl catcher/processor sector. Id. As stated in the final rule, "the Council adopted [Amendment 80] to meet the broad goals of (1) improving retention and utilization of fishery resources; (2) allocating fishery resources among BSAI trawl harvesters; (3) establishing a LAPP [("Limited Access Privilege Program")] for the non-AFA trawl catcher/processors; and (4) limiting the ability of non-AFA trawl catcher/processors to expand their harvesting capacity into other fisheries not managed under a LAPP." Id. at 52,671. These goals were intended to support the larger goals of reducing bycatch and improving utilization of fish resources "in order to provide the maximum benefit to present and future generations of fishermen, associated fishing industry sectors, communities, and the Nation as a whole." Id. at 52,668.
The proposed rule, like the final rule, limited participation in the Amendment 80 fishery to particular vessels. 72 Fed.Reg. at 30,055. Arctic Sole commented on the proposed rule. Arctic Sole's comment and NMFS' response is as follows:
Comment 23: For no discernable reason, replacement vessel provisions are absent from the proposed rule. This is a serious omission that was not addressed or explained anywhere in the proposed rule even though Section 1.11.13.4 in the draft EA/RIR/IRFA assumes that replacement vessels will be allowed. There is no explanation for the rationale of such a drastic and unprecedented step.
NMFS has indicated that section 219(a)(7) of the CRP limits the vessels that can participate in the Amendment 80 sector. NMFS has incorrectly interpreted this provision of the CRP. Section 219 of the CRP should not be interpreted to create a defined class of vessels. Had Congress wished to limit participation by a group of vessels, they would have used the same language as was used in the AFA. A clear distinction needs to be made between qualifying participants, which is what the CRP [("Capacity Reduction Program")] addresses, and the vessels used to qualify. Response: The proposed rule does not address, or create provisions for replacement vessels in the event an Amendment 80 vessel suffers an actual total loss or constructive total loss, because Congress did not provide for such a provision in the CRP. The preamble to the proposed rule clearly describes the criteria that Congress established for allowing a person to fish in the Amendment 80 sector under the CRP (72 FR 30057). In addition, NOAA General Counsel provided a series of memoranda to guide the Council in the development of the Program that specifically address this issue. Those memoranda are appended to the final EA/RIR/FRFA prepared for this action (see ADDRESSES).
The criteria to participate in the Amendment 80 sector are clearly established in the CRP. For purposes of participation in the catcher/processor sector of the BSAI non-pollock groundfish fishery, section 219(a)(7) of the CRP states:
(7) Non-AFA Trawl Catcher Processor Subsector.—The term "non-AFA trawl catcher processor subsector" means the owner of each trawl catcher processor—
(A) That is not an AFA trawl catcher processor;
(B) To whom a valid LLP license that is endorsed for Bering Sea or Aleutian...
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