The Fishing Company of Alaska v. U.S.
| Decision Date | 05 March 2002 |
| Docket Number | No. C97-126Z.,C97-126Z. |
| Citation | 195 F.Supp.2d 1239 |
| Parties | The FISHING COMPANY OF ALASKA, et al., Plaintiffs, v. THE UNITED STATES of America, et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
John R. Neeleman, Lane Powell Spears Lubersky, Seattle, for Fishing Company of Alaska, Inc., a Washington corporation, William McGill, Richard Joseph, plaintiffs.
Samuel D. Rauch, III, Richard A. Monikowski, U.S. Department of Justice, Enrd, Wildlife & Marine Resources, Washington, DC, Warigia M. Bowman, Mary M. Whittle, U.S. Department of Justice, Environmental & Natural, Resources, Washington, DC, for United States of America, Department of Commerce, Stuart E. Eizenstat, Ambassador, Acting Secretary of Commerce in his official capacity, defendants.
This action involves judicial review of regulations promulgated and civil penalties assessed by the National Oceanic and Atmospheric Administration ("NOAA" or "Agency"). This matter comes before the Court on the following motions: Plaintiffs' motion for summary judgment, docket no. 44; defendants' motion for summary judgment, docket no. 50; plaintiffs' motion to strike, docket no. 57; and plaintiffs' motion for leave to offer extra-record evidence, docket no. 59. The parties have agreed that this matter may be decided on these motions and without trial. While the parties have requested oral argument, the Court finds that these motions fully develop the issues presented and no oral argument is necessary. The Court hereby GRANTS plaintiffs' motion to strike and DENIES plaintiffs' motion for leave to offer extra-record evidence. The Court hereby GRANTS defendants' motion for summary judgment on all claims and hereby dismisses this action.
This action arises out of plaintiffs' incidental catches of halibut while fishing for groundfish off Alaska in 1991. Plaintiff Fishing Company of Alaska ("FCA") is a commercial fishing company that operates trawler fishing vessels, including the ALASKA RANGER and the ALASKA I. Plaintiffs William McGill and Richard Joseph were captains of the ALASKA RANGER during the time at issue here. The captain of the ALASKA I has since died.
Plaintiffs were fined for violating regulations governing the Bering Sea/Aleutian Island ("BSAI") groundfish fishery. These regulations implement a Vessel Incentive Program ("VIP") created by the North Pacific Fishery Management Council ("Council") as part of its responsibility under the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1883,1 for developing fishery management plans ("FMPs") for the North Pacific fisheries. 16 U.S.C. § 1852. The North Pacific Fisheries Management Council, like all such Councils, is composed of industry and government representatives. 16 U.S.C. § 1852(b). The Secretary of Commerce has ultimate responsibility for reviewing an FMP and approving regulations to implement the plans, as the Secretary did here.2 16 U.S.C. § 1854. The regulations at issue here target the amount of halibut and crab that may be incidentally caught as "bycatch" while fishing for groundfish species such as pollock, Pacific cod, and yellowfin sole.
The regulations under which the plaintiffs were fined were chosen after alternatives had been rejected. The Secretary first approved bycatch limits in 1989. Final Rule Implementing Amendment 12a to BSAI FMP, 54 Fed.Reg. 32642 (Aug. 9, 1989). This first system set a fishery-wide bycatch limit under which the entire fishery would close once the limit was reached. This approach was rejected as prompting a race to maximize catches, regardless of bycatch, before the fishery was closed. VIP AR3 192, 242, 368, 862. Seeking to provide incentives to each vessel, the Council then proposed what it called a "penalty box" program. This proposal would use current, in-season data taken from the fisheries in which the vessel was operating in order to set bycatch rates. VIP AR 3969. Each vessel's performance would then be measured against this data. VIP AR 2104. Vessels exceeding the current rates would be required to stop fishing. Final Rule Implementing Amendment 16 to BSAI FMP, 56 Fed.Reg. 2700, 2701 (Jan 24, 1991). The National Marine Fisheries Service ("NMFS") rejected this plan as imposing high costs without any corresponding benefit. Id.
The current regulations fix quarterly bycatch rates based on historical bycatch data. The vessel bycatch rate is a ratio of kilograms of halibut to metric tons of groundfish (kg/mt). 50 C.F.R. § 675.26(d)(3)(i)(C).4 Onboard observers sample each vessel's hauls, communicate bycatch and groundfish data to NMFS on a weekly basis, and make such data available to the vessel operator. 50 C.F.R. § 675.26(d)(2). NMFS then confirms the observers' data and calculates a vessel's bycatch rate at the end of a fishing month in which the observer sampled at least fifty percent of the vessel's hauls. 50 C.F.R. § 675.26(d)(3)(i)(B). The vessel's rate cannot exceed the quarterly bycatch rate during any fishing month. 50 C.F.R. § 675.7(g). The relevant rate here was 5kg/mt for the third quarter in 1991, covering July and August, the months for which plaintiffs were fined.5
Plaintiffs do not dispute that they exceeded the bycatch rate for July and August. The ALASKA I had halibut bycatch rates of 16.2 and 16.8 kg/mt for July and August, respectively. AR Vol. XIV, Tab 47. The ALASKA RANGER had halibut bycatch rates of 35.8 and 11.2 kg/mt for July and August, respectively. AR Vol. IX, Tab 26. On April 17, 1996, the Administrative Law Judge (ALJ) assessed $75,000 for each monthly violation per vessel, and then suspended a total of $50,000 per vessel on the condition that the plaintiffs not violate the Act for two years. Initial Decisions, AR Vol. III, Tab 95, at 26 (ALASKA RANGER); 26 (ALASKA I). The resulting penalty was $100,000 per vessel. The ALJ held the vessel owners and captains jointly and severally liable. The Secretary of Commerce, through the Deputy Under Secretary for Oceans and Atmosphere, denied plaintiffs' petition for review. This action for judicial review followed.
Two threshold motions determine the scope of the record before the Court. Plaintiffs have filed a motion to strike two extra-record affidavits submitted by the Agency, docket no. 57, and a motion for leave to offer extra-record evidence, docket no. 59. The Court GRANTS the motion to strike, and DENIES the motion for leave to offer extra-record evidence.
Plaintiffs seek to strike two affidavits filed by the defendants as being outside of the administrative record. Generally, judicial review of an agency decision is limited to the administrative record. First Nat. Bank & Trust, Wibaux, Mont. v. Dep't of Treasury, 63 F.3d 894, 897 (9th Cir.1995). However, there are exceptions to this rule. The court may consider extrinsic evidence when: (1) the record so fails to explain agency action that judicial review is frustrated; (2) it appears that the agency has relied on documents or materials not included in the record; or (3) where supplementation is necessary to explain complex terms or technical matters. Public Power Council v. Johnson, 674 F.2d 791, 793-95 (9th Cir.1982); City and County of San Francisco v. United States, 930 F.Supp. 1348, 1355-56 (N.D.Cal.1996).
The Agency filed the two disputed affidavits with its combined response to plaintiffs' motion for summary judgment and cross-motion for summary judgment. The declaration of Susan Auer, docket no. 52, discusses other enforcement actions brought contemporaneously with the action against the plaintiffs. The Agency filed this affidavit to rebut plaintiffs' claims of selective prosecution. The Agency filed the affidavit of Susan Salveson stating that the North Pacific Fisheries Council had not adopted any system of fines as permitted by the 1996 amendments. The Agency filed this affidavit in response to the plaintiffs claims that the Amendments should be retroactively applied. The Agency claims both affidavits are in response to collateral attacks outside of the administrative record. Defendants' Reply, docket no. 63, at 2.
Both affidavits are irrelevant. Whether there were other actions against other parties was not before the ALJ, is ultimately irrelevant to plaintiffs' selective prosecution claim, and need not be considered by this Court. Furthermore, whether or not the fisheries council has exercised a specific authority does not influence this Court's construction of that authority. These supplements to the record are unnecessary and are therefore STRICKEN.
Plaintiffs also have moved to supplement the administrative record with transcripts of recent testimony and seek leave to obtain additional depositions. Alternatively, plaintiffs seek a remand to the ALJ to develop this evidence. Plaintiffs rely on a final exception to the "record rule" recognized by the Johnson court, which permits supplementation of the administrative record where agency bad faith is alleged. Johnson, 674 F.2d at 795. However, there must be a "strong showing of bad faith or improper behavior before the court may inquire into the thought processes of administrative decision makers." Id.
Plaintiffs seek to introduce testimony given on October 8, 2001, by Agency and Council personnel that the VIP is not working as designed. Plaintiffs' Memo, docket no. 66, at 3. Plaintiffs argue that this testimony is evidence that the Agency's enforcement action was undertaken in bad faith because it is not based on the best scientific evidence. Id. Defendants counter that not only have plaintiffs failed to present any evidence of bad faith, the testimony proffered does not indicate bad faith. Defendants' Response, docket no. 63, at 2.
This testimony does not prove any bad faith. Instead, it merely suggests that the VIP is...
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