Midwater Trawlers Co-Op. v. Dept. of Commerce

• Decision Date: 05 March 2002
• Docket Number: No. 00-35717.,No. 00-35853.,00-35717.,00-35853.
• Parties: MIDWATER TRAWLERS CO-OPERATIVE; West Coast Seafood Processors Association; Fishermen's Marketing Association, Plaintiffs-Appellants, and State of Oregon; State of Washington, Plaintiffs, v. DEPARTMENT OF COMMERCE; the National Marine Fisheries Service; Donald Evans, Secretary of Commerce; Penelope D. Dalton, Assistant Administrator for Fisheries, National Oceanic and Atmospheric Administration; William W. Stelle, Jr., Director, National Marine Fisheries Service, Defendants-Appellees, Makah Indian Tribe, Defendant-Intervenor-Appellee, v. State of Oregon, Plaintiff-Intervenor. Midwater Trawlers Co-Operative, Plaintiff, and State of Oregon, Plaintiff-Appellant, v. Department of Commerce; Donald Evans, Secretary of Commerce; National Marine Fisheries Service; Penelope D. Dalton, Assistant Administrator for Fisheries, National Oceanic and Atmospheric Administration; William Stelle, Jr., Director, National Marine Fisheries Service, Defendants-Appellees, Makah Indian Tribe, Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

282 F.3d 710

MIDWATER TRAWLERS CO-OPERATIVE; West Coast Seafood Processors Association; Fishermen's Marketing Association, Plaintiffs-Appellants, and State of Oregon; State of Washington, Plaintiffs, v. DEPARTMENT OF COMMERCE; the National Marine Fisheries Service; Donald Evans, Secretary of Commerce; Penelope D. Dalton, Assistant Administrator for Fisheries, National

Oceanic and Atmospheric Administration; William W. Stelle, Jr., Director, National Marine Fisheries Service, Defendants-Appellees, Makah Indian Tribe, Defendant-Intervenor-Appellee, v. State of Oregon, Plaintiff-Intervenor.

Midwater Trawlers Co-Operative, Plaintiff, and State of Oregon, Plaintiff-Appellant, v. Department of Commerce; Donald Evans, Secretary of Commerce; National Marine Fisheries Service; Penelope D. Dalton, Assistant Administrator for Fisheries, National Oceanic and Atmospheric Administration; William Stelle, Jr., Director, National Marine Fisheries Service, Defendants-Appellees, Makah Indian Tribe, Defendant-Intervenor-Appellee.

No. 00-35717.

No. 00-35853.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 7, 2002.

Filed March 5, 2002.

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James P. Walsh, Davis Wright Tremaine LLP, San Francisco, California, for the plaintiffs-appellants.

Hardy Myers, Attorney General; Michael D. Reynolds, Solicitor General; Jas. Jeffrey Adams, Assistant Attorney General, Salem, Oregon, for plaintiff-appellant State of Oregon.

John C. Cruden, Acting Assistant Attorney General; Peter Monson, Sam Rauch, David C. Shilton, M. Alice Thurston, U.S. Department of Justice, Environment and Natural Resources Division, Washington, DC; Marc D. Slonim, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, Washington; for the defendants-appellees.

David S. Vogel, Law Offices of David S. Vogel, P.L.L.C., Seattle, WA; Richard Reich, Office of the Reservation Attorney, Quinault Indian Nation, Mercer Island, WA; for amici curiae Quileute Tribe and Quinault Nation.

Bill Tobin, Vashon, WA; Alix Foster, Swinomish Tribal Community, LaConner, WA; Mason D. Morisset, Morisset, Schlosser, Ayer & Jozwiak, Seattle, WA; for amici curiae Tulalip Tribes of Washington, Swinomish Tribal Community, and Nisqually Indian Tribe.

Appeal from the United States District Court for the Western District of Washington, Barbara J. Rothstein, Chief Judge, Presiding.

Before: THOMAS, GRABER and GOULD, Circuit Judges.

OPINION

THOMAS, Circuit Judge.

We consider in this appeal a challenge by fishing industry groups and the States of Oregon and Washington to a federal regulation that increased the amount of Pacific whiting fish allocated to four Indian tribes. We affirm in part and reverse in part, with instructions to the district court to remand to the agency for more specific findings.

I

Isaac I. Stevens, Washington's first Territorial Governor and the first Superintendent of Indian Affairs of the Washington Territory, negotiated a series of treaties in the mid-1850s involving a number of Indian tribes located in the Northwest.¹

These treaties, commonly referred to as the "Stevens Treaties," reserved to the signing Tribes certain fishing rights. The treaties at issue in this action are the Treaty of Neah Bay, a treaty with the Makah Tribe; and the Treaty of Olympia, a treaty with the Quinault, Quileute and Hoh Tribes. As to the right of the Makah Tribe, the Treaty of Neah Bay provided that:

[t]he right of taking fish and of whaling or sealing at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the United States, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands: Provided, however, That they shall not take shellfish from any beds staked or cultivated by citizens.

Treaty of Neah Bay, 12 Stat. 939, art. 4 (1855).

We have construed similar treaty language² as entitling "the Tribes to take fifty percent of the salmon and other free-swimming fish in the waters controlled by Washington State." U.S. v. Wash., 135 F.3d 618 (9th Cir.1998), opinion amended and superceded by 157 F.3d 630, 638-39 (9th Cir.1998) ("Shellfish II").³

More than a century after the execution of the Stevens Treaties, Congress responded to concerns about preservation of the nation's fishery resources and enacted the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1883("the Magnuson-Stevens Act" or "the Act"). "The purpose of the Magnuson[Stevens] Act was to protect United States fisheries by extending the exclusive fisheries zone of the United States from 12 to 200 miles and to provide for management of fishing within the 200-mile zone." Wash. State Charterboat Ass'n v. Baldrige, 702 F.2d 820, 823-24 (9th Cir.1983) (citing H.R.Rep. No. 445, 94th Cong., 1st Sess. 21 (1975), reprinted in 1976 U.S.C.C.A.N. 593, 593-94).

The Magnuson-Stevens Act vested the National Marine Fisheries Service ("NMFS") of the Department of Commerce with the authority to issue fishery management regulations. 16 U.S.C. §§ 1853, 1855; see generally Wash. v. Daley, 173 F.3d 1158, 1162 (9th Cir.1999). However, under the Act, fishery management regulations must be consistent with "applicable law" defining Native American treaty fishing rights. See, e.g., Parravano v. Babbitt, 70 F.3d 539, 544 (9th Cir.1995). In 1996, the NMFS promulgated a regulation (the "Framework Regulation") that established a limit on the total number of Pacific whiting fish to be taken in any year and a framework for allocating these fish to the Hoh, Makah, Quileute, and Quinault Tribes. 50 C.F.R. § 660.324. The regulation stipulated coordinates that identified "usual and accustomed" fishing areas ("U & As") for the tribes, extending about forty miles into the ocean off the coast of Washington. Daley, 173 F.3d at 1163. In so doing, the NMFS recognized that the "Stevens Treaties" reserved rights to harvest Pacific whiting in the tribes' U & As. The Framework Regulation also made a specific allocation of 15,000 metric tons of Pacific whiting to the Makah Tribe for 1996.

Shortly after the 1996 regulation was enacted, Midwater Trawlers Co-operative, West Coast Seafood Processors, and the Fishermen's Marketing Association (collectively, "Mid-water"), the State of Oregon, and the State of Washington challenged the regulation and its annual allocations of Pacific whiting to the Makah. The action originally was brought in the Oregon federal district court, but was transferred to the federal district court in Washington. In 1997, the district court dismissed the plaintiffs' claims for failure to join the tribes as necessary and indispensable parties. In 1999, this Court reversed the dismissal of the claims and remanded for further proceedings. See Daley, 173 F.3d at 1169.

In 1999, Midwater and Oregon challenged in Oregon federal district court another NMFS regulation, which increased the 1999 amount of Pacific whiting allocated to the Makah Tribe to 32,500 metric tons. 64 Fed.Reg. 27928(May 24, 1999). This case was transferred to Washington federal district court and consolidated with the 1996 suit pending on remand. The federal government moved for summary judgment, which the district court granted in 2000 for all the cases. The Washington district court held that (1) the federal defendants did not act arbitrarily and capriciously in recognizing the tribes' right to harvest Pacific whiting, because the Stevens Treaties are "other applicable law" under the Magnuson-Stevens Act; (2) the Secretary of Commerce did not act arbitrarily and capriciously in recognizing the U & A fishing areas beyond the three-mile territorial limit off Washington's coast; and (3) the NMFS's allocation of whiting in 1999 was not arbitrary and capricious. Midwater and Oregon appealed.

We review the district court's grant of summary judgment de novo. Robi v. Reed, 173 F.3d 736, 739 (9th Cir.1999). Under Section 305(f) of the Magnuson-Stevens Act, 16 U.S.C. § 1855(f), which adopts the standard of review set forth in the Administrative Procedure Act ("APA") at 5 U.S.C. § 706, regulations promulgated by the Secretary may be set aside only if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. 706(2)(A). Our only task is to determine whether the Secretary has considered the relevant factors and articulated a rational connection between the facts found and the choices made. Wash. Crab Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1441 (9th Cir.1990).

II

Midwater lacks standing to challenge that portion of the Framework Regulation that identified U & A areas for the Hoh, Quileute, and Quinault Tribes beyond three miles. In order to have standing, a plaintiff must have suffered an "injury in fact" — an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. U.S. v. Hays, 515 U.S. 737, 743, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995). Although none of the tribes disclaims its right to seek an allocation through the Framework Regulation in the future, the NMFS has not allocated any Pacific whiting to them. Thus, any injury Midwater suffered in connection with the Hoh, Quileute, and Quinault Tribes was "conjectural or hypothetical" rather than "actual or imminent." In short, Midwater has not suffered the requisite injury in fact and lacks standing to challenge the portion of the regulation identifying U & As with respect to the Hoh, Quileute, and Quinault Tribes. Thus, the only tribal allocation properly at issue is that to the Makah Tribe.

III

Midwater argues that tribal treaty rights to Pacific whiting could not be recognized as "applicable law" at the time the 1996 Framework Regulation was adopted, because no express 3623 judicial adjudication of tribal treaty rights to Pacific whiting had been made....