Fishermen's Finest, Inc. v. Locke

Decision Date19 January 2010
Docket NumberNo. 08-36024.,08-36024.
Citation593 F.3d 886
PartiesFISHERMEN'S FINEST INC; U.S. Fishing LLC; North Pacific Fishing Inc, Plaintiffs-Appellants, v. Gary LOCKE,<SMALL><SUP>*</SUP></SMALL> as he is the Secretary of the United States Department of Commerce, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Linda R. Larson and Jessica K. Ferrell, Marten Law Group PLLC, Seattle, WA, for the plaintiffs-appellants.

Charles R. Scott, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for the defendant-appellee.

Appeal from the United States District Court for the Western District of Washington, Marsha J. Pechman, District Judge, Presiding. D.C. No. 2:07-cv-01574.

Before: ARTHUR L. ALARCÓN, ANDREW J. KLEINFELD and RICHARD R. CLIFTON, Circuit Judges.

Opinion by Judge ALARCÓN; Dissent by Judge CLIFTON.

ALARCÓN, Senior Circuit Judge:

Fishermen's Finest, Inc., North Pacific Fishing, Inc., and U.S. Fishing, LLC, ("Fishermen's") appeal from the district court's order granting summary judgment in favor of the Secretary of the United States Department of Commerce. Fishermen's challenges the Secretary's issuance of a final rule adopting Amendment 85 ("A85") to the Fishery Management Plan ("FMP") for Groundfish of the Bering Sea and Aleutian Islands Management Area ("BSAIMA").

The Government allocates Pacific cod in the BSAIMA among different sectors of the fishing industry. Fishermen's belongs to the trawl Catcher/Processor ("CP") sector. It contends that the most recent allocation, which reduced its share of the Pacific cod fishery, did not comport with applicable law.

We affirm because we agree with the district court that the Secretary did not act arbitrarily and capriciously in adopting Amendment A85.

I

Fishermen's operates two medium-sized vessels that fish for Pacific cod, flatfish, rockfish and Atka mackerel in the BSAIMA. The BSAIMA fishery is located off the northwest coast of Alaska. It is this nation's largest in terms of harvest and area. Pollock is the most lucrative and largest fishery in the BSAIMA; Pacific cod is second. Different means of fishing are employed in the BSAIMA. Allocations are made among different methods of fishing, because of their individualized environmental and socioeconomic impact. A trawler is a fishing vessel that fishes by dragging a large net or trawl through the water. CP vessels process fish by removing the head and gut as soon as they are caught, hence Fishermen's belongs to a sector colloquially known as the "Head & Gut" sector.

A

To understand the substance of Fishermen's claims requires an overview of the Government's regulation of fishing. Finding that "[c]ertain stocks of fish have declined to the point where their survival is threatened," 16 U.S.C. § 1801(a)(2)(A), Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act ("MSA") in 1976 to "conserve and manage fishery resources" and to "achieve and maintain, on a continuing basis, the optimum yield from each fishery." Id. § 1801(b)(1) & (4). In order to achieve these ends the MSA established eight regional Fishery Management Councils ("Councils"), which could set the Total Allowable Catch ("TAC") for each fish species in different fishing zones. See id. §§ 1852(b) & (c), 1801(b)(5); 1852(h)(1). The FMP's, and amendments thereto, do not become effective, however, until they are approved by the Secretary. See 16 U.S.C. §§ 1854(a)-(b), 1855. The Secretary has delegated this responsibility to the National Marine Fisheries Service ("NMFS"), which only promulgates the regulation after ensuring the FMP's and amendments are consistent with the MSA's ten National Standards, inter alia, 16 U.S.C. § 1854(a)-(b), and after a period of public comment. Id. §§ 1854(a)(1)(B) & (b)(1)(A).

Fishermen's complains that the most recent allocations of the Pacific cod TAC in amendment A85 to the current FMP of the BSAIMA violated National Standard 2 and National Standard 4 of the MSA. National Standards 2 and 4 provide that:

(2) Conservation and management measures shall be based upon the best scientific information available.

...

(4) Conservation and management measures shall not discriminate between residents of different states. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such a manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges.

16 U.S.C. § 1851(a)(2) & (4). The MSA requires the NMFS to promulgate guidelines interpreting the National Standards. Id. at § 1851(b). According to the guidelines, National Standard 2 "best scientific information" "includes, but is not limited to, information of a biological, ecological, economic, or social nature." 50 C.F.R. § 600.315(b)(1) (2006). Further, FMPs and amendments must "take into account" the "best scientific information available at the time of preparation" and if new information becomes available between initial drafting and NMFS review, it "should be incorporated into the final FMP where practicable." Id. § 600.315(b). Where there are conflicting facts and opinions, the Fishery Management Councils may choose what to consider "but should justify the choice." Id. § 600.315(b)(1).

With regards to National Standard 4, allocations are "fair and equitable" if they are "rationally connected to the achievement of [optimum yield] or with the furtherance of a legitimate FMP objective." Id. § 600.325(c)(3)(i)(A). Further, "[i]nherent in an allocation is the advantaging of one group to the detriment of another." Id. Thus, "[a]n allocation of fishing privileges may impose a hardship on one group if it is outweighed by the total benefits received by another group or groups." Id. § 600.325(c)(3)(i)(B). For example, section 305 of the MSA sets aside a portion of TAC for eligible villages as part of the Western Alaska Community Development Quota Program. See 16 U.S.C. § 1855(i)(1)(A).

Fishermen's also argues that A85's TAC allocation violates 211(a) of the American Fisheries Act ("AFA") by creating an "adverse impact" on non-AFA fishing vessels. In 1998, the AFA created a monopoly in fishing rights to pollock assigned to specific vessels that met a past participation test in that industry. AFA § 208. Fishermen's does not belong to this group. It is referred to as a non-AFA participant in BSAIMA fishing. The vessels granted a monopoly by the AFA operate as cooperatives that also engage in fishing for other species, as was anticipated and approved of by the AFA. Because of the competitive advantage the specific AFA vessels gained due to their pollock monopoly, Congress sought to limit their impact on other fisheries by dictating that Councils:

shall recommend for approval by the Secretary such conservation and management measures as it determines necessary to protect other fisheries under its jurisdiction and the participants in those fisheries, including processors, from adverse impacts caused by this Act or fishery cooperatives in the directed pollock fishery.

AFA § 211(a) (emphasis added). Congress also built in protections in the AFA against unfair competitive advantages for the AFA vessels by imposing "sideboards," which are limits on how much fish of other species AFA vessels are allowed to catch. AFA § 211(b)(2) & (C). For example, in the Pacific cod fishery, AFA trawl CP vessels operated under a sideboard limit of 6.1% of TAC and AFA trawl CV vessels operated under a sideboard limit of 20.2% of TAC. As a result of the AFA, non-AFA vessels increased their harvest of non-pollock species, as they were now excluded from pollock. A80 Final Rule, 72 Fed. Reg. at 52, 668.

B

An FMP for the BSAIMA was first promulgated in 1981. 46 Fed.Reg. 63, 295 (Dec. 31, 1981). It includes annual TACs for each of seventeen target species, including Pacific cod. In 1994, for the first time, Amendment 24 allocated the Pacific cod TAC, 44% to the "fixed gear" (hook-and-line and pot) sector, 54% to the trawl sector, and 2% to the jig gear sector (fishing lure methods). 59 Fed.Reg. 4009, 4010 (Jan. 28, 1994). These allocations reflected the harvests in those sectors from 1991 to 1993, with the exception that the jig gear's allocations was increased to encourage growth. Amendment 24 also gave the NMFS authority to "reallocate Pacific cod from vessels [from one sector to another] anytime ... the [NMFS] determines that one gear group or the other will not be able to harvest its allocation of Pacific cod." 59 Fed.Reg. at 4010.

In 1997, Amendment 46 divided the trawl allocation between catcher vessels ("CV") and catcher-processors ("CP") and allocated 51% to fixed gear, 47% to trawl gear (divided equally), and 2% for jig gear. 61 Fed.Reg. 59029 (Nov. 20, 1996)(codified at 50 C.F.R. pt. 679). Amendments 64 and 77, passed in 2000 and 2003, respectively, further refined sector subdivisions from the original fixed gear sector into five groups. See 65 Fed.Reg. 51553 (Aug. 24, 2000)(codified at 50 C.F.R. pt. 679); 68 Fed.Reg. 49416 (Aug. 18, 2003)(codified at 50 C.F.R. pt. 679). These amendments did not alter the TAC allocated to the trawl CP group. See 72 Fed.Reg. 5654, 5655 (February 7, 2007) (proposed rule) (noting a 23.5% TAC quota for trawl CPs between 1997 and A85).

On September 4, 2007, the NMFS updated the FMP for groundfish of the BSAIMA with Amendment 85, which sets forth new allocations for the TAC of Pacific cod that each of nine sectors may catch annually. Fisheries of the Executive Economic Zone Off Alaska, Pacific Cod Allocations in the Bering Sea and Aleutian Island Management Area, 72 Fed.Reg. 50788 (September 4, 2007) (codified at 50 C.F.R. pt. 679). For the first time since the MSA, trawl CPs were divided between AFA trawl catcher processors (part of the...

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