Sea Hawk Seafoods, Inc. v. Locke

• Decision Date: 17 June 2009
• Docket Number: No. 07-35754.,07-35754.
• Parties: SEA HAWK SEAFOODS, INC., an Alaska corporation; Non-AFA Processors Association, Plaintiffs-Appellants, v. Gary F. LOCKE, in his official capacity as United States Secretary of Commerce; United States Department of Commerce; National Oceanic and Atmospheric Administration; National Marine Fisheries Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

568 F.3d 757

SEA HAWK SEAFOODS, INC., an Alaska corporation; Non-AFA Processors Association, Plaintiffs-Appellants, v. Gary F. LOCKE, in his official capacity as United States Secretary of Commerce; United States Department of Commerce; National Oceanic and Atmospheric Administration; National Marine Fisheries Service, Defendants-Appellees.

No. 07-35754.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 9, 2008.

Filed June 17, 2009.

Leonard J. Feldman, Michael T. Shein, Kevin P. Sullivan, Seattle, WA, on behalf of appellants Sea Hawk Seafoods, Inc. and the Non-AFA Processors Association.

Anna T. Katselas, United States Department of Justice, Washington, D.C., on behalf of appellees Gary F. Locke, United States Secretary of Commerce; United States Department of Commerce; National Oceanic and Atmospheric Administration; and National Marine Fisheries Service.

Appeal from the United States District Court for the Western District of Washington, John C. Coughenour, District Judge, Presiding. D.C. No. CV-06-01616-JCC.

Before: RONALD M. GOULD, RICHARD C. TALLMAN and CONSUELO M. CALLAHAN, Circuit Judges.

CALLAHAN, Circuit Judge:

Sea Hawk Seafoods, Inc. ("Sea Hawk") and the Non-AFA Processors Association (collectively, "Plaintiffs") appeal the district court's dismissal of their claims against the United States Secretary of Commerce ("Secretary"), United States Department of Commerce ("Commerce Department"), National Oceanic and Atmospheric Administration ("NOAA"), and National Marine Fisheries Service ("NMFS"). We consider whether the Magnuson-Stevens Fishery Conservation and Management Act's ("MSA") thirty-day statute of limitations, 16 U.S.C. § 1855(f), or the Administrative Procedure Act's ("APA") general six-year limitations period applies to Plaintiffs' challenge to regulations promulgated to implement amendments to fishery management plans. These amendments were prompted by passage of the American Fisheries Act ("AFA").¹ We also consider whether Plaintiffs have adequately alleged a "failure to act" claim under the APA against NMFS and the North Pacific Council, which is not a party here, related to the promulgation of the challenged regulations. We conclude that the MSA's thirty-day limitations period applies to bar Plaintiffs' direct challenge to the regulations and that Plaintiffs' failure to act claim is an impermissible attempt to recast its direct challenge to the regulations so as to avoid the MSA's shortened limitations period. Accordingly, we affirm the district court's dismissal of Plaintiffs' claims.

I.

A.

In 1976, Congress enacted the MSA, 16 U.S.C. §§ 1801-1883, in an effort to, among other things, "conserve and manage the fishery resources found off the coasts of the United States" and, in particular, within the United States' exclusive economic zone. 16 U.S.C. § 1801(b)(1); see generally Or. Trollers Ass'n v. Gutierrez, 452 F.3d 1104, 1108 (9th Cir.2006). The MSA provides for the establishment of eight Regional Fishery Management Councils ("Regional Councils") to oversee conservation and management efforts in various fisheries.² 16 U.S.C. § 1852(a), (h). The overall authority to implement those efforts, however, is delegated to the Secretary, who acts through NMFS and NOAA. See id. §§ 1853-1854.

The Regional Councils are required to prepare and submit to the Secretary fishery management plans ("FMPs") and any amendments to such FMPs as "are necessary from time to time." Id. § 1852(h)(1). FMPs establish general limitations on fisheries, such as seasonal restrictions and gear limitations, in order to "achieve and maintain, on a continuing basis, the optimum yield from each fishery." Id. § 1801(b)(4); see also, e.g., 50 C.F.R. pt. 679. FMPs and amendments thereto shall contain, among other things, "conservation and management measures ... consistent with the [MSA] ... and any other applicable law." 16 U.S.C. § 1853(a)(1)(C). Upon receipt of a FMP or an amendment, the Secretary must "publish in the Federal Registry a notice stating that the FMP or amendment is available" for a public comment period of sixty days. Id. § 1854(a)(1)(B). After receiving comments, the Secretary may approve, reject, or partially approve the submitted FMPs or amendments. Id. § 1854(a)(3). Moreover, if the appropriate council does not make a recommendation, or if the Secretary is not satisfied with the recommendation made, the Secretary can himself prepare a plan or an amendment, likewise utilizing a sixty-day comment period. Id. § 1854(c).

The MSA also contains a provision limiting judicial review, which is at the center of this appeal:

Regulations promulgated by the Secretary under [the MSA] and actions described in paragraph (2) shall be subject to judicial review to the extent authorized by, and in accordance with, [the Administrative Procedure Act (APA)], if a petition for such review is filed within 30 days after the date on which the regulations are promulgated or the action is published in the Federal Register....

Id. § 1855(f)(1) (emphasis added). The actions described in "paragraph (2)" are those "taken by the Secretary under regulations which implement a fishery management plan...." Id. § 1855(f)(2).

B.

Additional legislation is implicated by this appeal. In 1998, Congress enacted the American Fisheries Act, which, among other things, attempted to rationalize³ the North Pacific Pollock Fishery by providing exclusive rights to certain companies and vessels. See AFA §§ 208-209. In essence, the AFA created bilateral monopolies for fishing cooperatives formed under the AFA, as well as AFA-designated processors. See AFA §§ 208(f)(1), 210(b)(1); see also Scott C. Matulich et al., Fishery Cooperatives as an Alternative to ITQs: Implications of the American Fisheries Act, 16 MARINE RESOURCE ECONOMICS 1, 4 (2001).

Congress recognized that this cooperative scheme could have adverse economic effects on other fisheries and non-participating processors.⁴ Accordingly, the AFA calls for the North Pacific Council ("Council"), one of the Regional Councils, to recommend protections, referred to as "sideboard protections" or "sideboards," for those fisheries and processors.⁵ The Council

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 [the AFA] or fishery cooperatives in the directed pollock fishery.

AFA § 211(a); see 50 C.F.R. § 679.64 (referring to sideboard protections). Moreover, the AFA provides that the Council "shall" by July 1, 1999 recommend for approval by the Secretary conservation and management measures to prevent overharvesting and to "protect processors not eligible to participate in the directed pollock fishery from adverse effects" resulting from the AFA. AFA § 211(c)(1).⁶ It also authorizes the Secretary to take action if the Council does not make recommendations or if the Secretary determines that the Council's recommendations are inadequate.⁷ Id.

C.

The present action focuses on certain regulations promulgated by NMFS in December 2002 ("2002 Regulations"), which concern four amendments to FMPs and their implementing regulations.⁸ See 67 Fed.Reg. 79,692-79,739 (Dec. 30, 2002) (codified in various sections of 50 C.F.R. pt. 679). Plaintiffs were concerned that although the 2002 Regulations provided some protections for non-AFA "shoreside processors"⁹ against unfair competition related to pollock fishing, the regulations did not provide adequate sideboard protections for non-AFA shoreside processors with respect to other types of fish, such as salmon. In particular, Plaintiffs complained that these regulations did not restrict AFA-related "floating shoreside processors"¹⁰ from leaving a single geographic location in Alaskan waters after the pollock fishing season and relocating to Prince William Sound, Alaska to process salmon, which would impact Sea Hawk's business. In 1999, Sea Hawk had advised the Council of its concerns as an established non-AFA shoreside salmon processor located in Prince William Sound regarding "the anticipated encroachment of AFA-owned or controlled processing vessels into [Prince William Sound]." Sea Hawk alleged that "allowing AFA-created surplus processor ships to enter any Alaska salmon fishery jeopardizes and devalues the established shoreside facilities' investments and development."

The 2002 amendments were developed over a three-year period and involved twelve Council meetings as well as "numerous other public meetings." 67 Fed. Reg. at 79,692. Regarding the provision of notice and a public comment period, the background section to the final rule explains that:

[w]hile [these amendments] were under development, the deadlines and statutory requirements of the AFA were met on an interim basis through several emergency interim rules.[¹¹] The final [Environmental Impact Statement] for [the amendments] contains a summary of the extensive public process involved in the development of the amendments and describes the AFA-related rulemaking completed [up to December 2002]. The proposed rule for [the amendments] was published on December 17, 2001 (66 FR 65028), with comments invited through January 31, 2002. NMFS received 12 letters of comment by the end of the comment period on the proposed rule, many of which contained extensive comments on various sections of the proposed rule. A notice of availability of [the amendments] was published on November 27, 2001 (66 FR 59225), with comments on the Amendments invited through January 28, 2002. NMFS received one comment letter on the amendments that supported approval and no comments that recommended disapproval.

Id. The summary included with the final rule states that these amendments and management measures were necessary "to implement the AFA" and were intended to do so "in a manner...