Midwater Trawlers Co-Op. v. U.S. Dept. of Commerce
| Citation | 139 F.Supp.2d 1136 |
| Decision Date | 26 July 2000 |
| Docket Number | No. C96-5671R.,No. C96-1808R.,No. C99-1415R.,No. C99-1500R.,C96-1808R.,C96-5671R.,C99-1415R.,C99-1500R. |
| Parties | MIDWATER TRAWLERS COOPERATIVE, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants, State of Washington, Petitioner, v. William M. Daley, United States Secretary of Commerce, Respondent, State of Oregon, Plaintiff, v. William M. Daley, United States Secretary of Commerce, et al., Defendants, West Coast Seafood Processors Association, et al., Plaintiffs, v. William M. Daley, United States Secretary of Commerce, et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
Eric J. Bloch, Attorney General's Office, Dept. of Justice, Portland, OR, Stephen K. Bushong, Miller, Nash, Wiener, Hager & Carlsen, Portland, OR, Allen D. Clark, Davis Wright Tremaine, Bellevue, WA, Robert Kirk Costello, Attorney General's Office, Fish & Wildlife, Olympia, WA, Barbara J. Gazeley, Attorney General's Office, Department of Justice, Salem, OR, James Martin Johnson, James M. Johnson, Olympia, WA, David E. Leith, Attorney General's Office, Department of Justice, Salem, OR, Mary E. McCrea, Attorney General's Office, Ecology Division, Olympia, WA, David D. Swartling, Mills Meyers Swartling, Seattle, WA, James P. Walsh, Davis Wright Tremaine, San Francisco, CA, Fonda C. Woods, Attorney General's Office Fish & Wildlife, Olympia, WA, for Plaintiffs in No. 2:96cv01808.
Brian C. Kipnis, U.S. Attorney's Office, Seattle, WA, Peter C. Monson, U.S. Department of Justice, Environment & Natural Resources Division, Denver, CO, Christopher Lee Pickrell, U.S. Attorney's Office, Seattle, WA, Samuel D. Rauch, III, U.S. Department of Justice Enrd, Wildlife & Marine Resources, Washington, DC, Marc Slonim, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA, Jean E. Williams, U.S. Department of Justice, Environment & Natural Resources, Washington, DC, for Defendants in No. 2:96cv01808.
David S. Vogel, Seattle, WA, for Amicus in No. 2:96cv01808.
Robert Kirk Costello, Attorney General's Office Fish & Wildlife, Olympia, WA, Matthew Alan Love, U.S. Department of Justice Environmental & Natural Resources, Washington, DC, Fonda C. Woods, Attorney General's Office Fish & Wildlife, Olympia, WA, for Petitioner in No. 3:96cv05671.
Brian C. Kipnis, U.S. Attorney's Office, Seattle, WA, Sammuel D. Rauch, III, U.S. Department of Justice, Enrd, Wildlife & Marine Resources, Washington, DC, for Respondent in No. 3:96cv05671.
Barbara J. Gazeley, David E. Leith, Attorney General's Office, Department of Justice, Salem, OR, for Plaintiff in No. 2:99cv01415.
Christopher Lee Pickrell, U.S. Attorney's Office, Seattle, WA, Samuel D. Rauch, III, U.S. Department of Justice, Enrd, Wildlife & Marine Resources, Washington, DC, Marc Slonim, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA, Jean E. Williams, U.S. Department of Justice, Environmental & Natural Resources, Washington, DC, for Defendants in No. 2:99cv01415.
Allen D. Clark, Davis Wright Tremaine, Bellevue, WA, James P. Walsh, Davis Wright Tremaine, San Francisco, CA, for Plaintiffs in No. 2:99cv01500.
Christopher Lee Pickrell, U.S. Attorney's Office, Seattle, WA, Samuel D. Rauch, III, U.S. Department of Justice Enrd, Wildlife & Marine Resources, Washington, DC, Tim Simmons, U.S. Attorney's Office, Portland, OR, Marc Slonim, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA, for Defendants in No. 2:99cv01500.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT*
THIS MATTER comes before the court on the parties' cross-motions for summary judgment. The court has reviewed the documents filed in support of and in opposition to the motions together with the relevant files. Being fully advised, the court finds that defendants are entitled to summary judgment.
This action is a consolidation of four cases: two from 1996 and two from 1999. Plaintiffs are Midwater Trawlers Cooperative, West Coast Seafood Processors Association and Fisherman's Marketing Association (collectively, "Midwater"), the State of Washington, and the State of Oregon. They challenge rules and regulations promulgated by the Secretary of Commerce (the "Secretary") allocating groundfish catches off the Washington and Oregon coasts to four Northwest Indian tribes (the "Tribes").1
The Secretary's 1996 final rule ("Final Rule") established the regulatory framework for implementing the Tribes' treaty rights in the groundfish fishery and allocated a specific amount of Pacific whiting to the Makah for that year. See 61 Fed. Reg. 28786 (1996); 61 Fed.Reg. 34570 (1996); 50 C.F.R. § 660.324. Subsequent annual rules made specific allocations of whiting to the Makah based on the Final Rule. The federal defendants' administrative actions are based on the Tribes' treaty fishing rights and the court's continuing jurisdiction over these matters as set forth in United States v. Washington.2 The federal defendants justified the Final Rule, in part, upon Judge Rafeedie's determination that the Tribes' rights to take fish cover all fish available to them in their "usual and accustomed" ("U & A") fishing areas without any species limitation.3 That determination was ultimately affirmed by the Ninth Circuit.4
In earlier orders in the 1996 cases, the court dismissed plaintiffs' Magnuson Act claims for failure to join the Tribes as necessary and indispensable parties, and granted summary judgment against plaintiffs on their claims under the Endangered Species Act and the Regulatory Flexibility Act. The Ninth Circuit reversed the court's dismissal of the Magnuson Act claims and affirmed the court's grant of summary judgment on all other claims. See Washington v. Daley, 173 F.3d 1158 (9th Cir. 1999).
The parties have filed cross-motions for summary judgment and agree that all issues may be resolved on the present record. Plaintiffs assert that the Final Rule and subsequent annual rules are arbitrary, capricious, or otherwise not in accordance with the law for four reasons: (1) the Tribes have no treaty right to harvest whiting; (2) the U & A fishing areas do not extend beyond three miles, i.e., they do not extend beyond Washington's territorial waters into the federal government's jurisdiction; (3) that a clause referring to the Tribes' role as "co-manager" of the "shared" fishery resources improperly ceded powers to the Tribes that are exclusively held by the federal government; and (4) that the 1999 allocation of whiting to the Makah, based upon a similar compromise allocation found in the Final Rule, is improper.5
The rules and regulations at issue here were issued under the authority of the Pacific Coast Groundfish Fishery Management Plan (FMP) and the Magnuson Fishery Conservation and Management Act (Magnuson Act). The Magnuson Act requires that the court apply the traditional Administrative Procedure Act (APA) arbitrary and capricious standard of review. See 16 U.S.C. § 1855(b); C & W Fish Co. v. Fox, 931 F.2d 1556, 1562, 1565 (D.C.Cir.1991); Southeastern Fisheries Ass'n v. Mosbacher, 773 F.Supp. 435, 439 (D.D.C.1991). The court sets aside an action only if the Secretary's decision was arbitrary and capricious, an abuse of discretion or otherwise not in accordance with the law. 5 U.S.C. § 706(2)(A); see Alaska Factory Trawler Ass'n v. Baldridge, 831 F.2d 1456, 1460 (9th Cir.1987). The court's "only function is to determine whether the Secretary `has considered the relevant factors and articulated a rational connection between the facts found and the choice made.'" Washington v. Daley, 173 F.3d at 1169 (quoting Alliance Against IFQs v. Brown, 84 F.3d 343, 345 (9th Cir.1996)). Accordingly, the court need decide only whether the Secretary could reasonably have concluded that the actions taken were lawful. Washington Crab Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1441 (9th Cir.1990). The standard of review is narrow and the court may not substitute its judgment for that of the agency. See Washington v. Daley, 173 F.3d at 1169.
Midwater argues that in 1996, when the Final Rule was adopted, no court had "affirmatively and precisely held that Indian fishing rights applied to Pacific whiting." Midwater's Memorandum in Support of Motion for Summary Judgment at 13. On this basis, Midwater argues that there was no "applicable law" on this question and, therefore, the federal defendants acted unreasonably by promulgating regulations recognizing such a right. Id. This argument lacks merit.
First, Midwater advances a flawed definition of "applicable law." Although Fishery Management Plans and regulations promulgated under the Magnuson Act must be consistent with the provisions of the Magnuson Act and "other applicable law," 16 U.S.C. § 1853(a)(1)(C), 1854(a)(1)(B), "other applicable law" includes the Stevens Treaties negotiated between the United States and the Tribes in the 1850s.6 See, e.g., Parravano v. Babbitt, 70 F.3d 539, 544 (9th Cir.1995); Washington Crab Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1440-41 (9th Cir. 1990). The Secretary need not await a specific adjudication prior to carrying out his obligation to promulgate regulations consistent with treaty rights. See Makah Indian Tribe v. Brown, No. C85-1606R (W.D.Wash.), Order on Five Motions relating to Treaty Halibut Fishing at 2, 5 (Dec. 29, 1993) () [hereinafter "Makah v. Brown Order"].
Second, Judge Rafeedie determined in 1994 that tribal rights are not limited by species of fish or by whether the Tribes harvested that species at the time of the Stevens Treaties. See Shellfish I, 873 F.Supp. at 1430. In the Final Rule, the Secretary cited Judge Rafeedie's decision as support for recognizing the Tribes' treaty right to whiting. 61 Fed.Reg. 28788. Judge...
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Midwater Trawlers v. Department of Commerce
...on all of Midwater's claims, upholding the 1996 Framework Regulation and the 1999 allocation. Midwater Trawlers Coop. v. Dep't of Commerce, 139 F.Supp.2d 1136, 1148 (W.D.Wash.2000). On appeal from that decision, we upheld the Framework Regulation that recognized and implemented the treaty r......