United Cook Inlet Drift Ass'n v. Nat'l Marine Fisheries Serv.

• Decision Date: 21 September 2016
• Docket Number: No. 14-35928,14-35928
• Parties: United Cook Inlet Drift Association ; Cook Inlet Fishermen's Fund, Plaintiffs-Appellants, v. National Marine Fisheries Service; Penny Pritzker, in her official capacity as Acting United States Secretary of Commerce; Kathryn Sullivan, Acting Under Secretary of Commerce and Administrator for the National Oceanic and Atmospheric Administration; James W. Balsiger, in his official capacity as NMFS Alaska Region Administrator, Defendants-Appellees, State of Alaska, Intervenor-Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

837 F.3d 1055

United Cook Inlet Drift Association ; Cook Inlet Fishermen's Fund, Plaintiffs-Appellants,

v.National Marine Fisheries Service; Penny Pritzker, in her official capacity as Acting United States Secretary of Commerce; Kathryn Sullivan, Acting Under Secretary of Commerce and Administrator for the National Oceanic and Atmospheric Administration; James W. Balsiger, in his official capacity as NMFS Alaska Region Administrator, Defendants-Appellees,State of Alaska, Intervenor-Defendant-Appellee.

No. 14-35928

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 2, 2016, Anchorage, Alaska

Filed September 21, 2016

Jason T. Morgan (argued) and Beth S. Ginsberg, Stoel Rives LLP, Seattle, Washington, for Plaintiffs-Appellants.

Ellen J. Durkee (argued) and Coby Howell, Attorneys, Appellate Section; John C. Cruden, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Caroline Park, NOAA Office of the General Counsel, Silver Spring, Maryland; Lauren Smoker, NOAA Office of the General Counsel, Department of Commerce, Juneau, Alaska; for Defendants-Appellees.

Seth M. Beausang (argued), Assistant Attorney General, Anchorage, Alaska, for Intervenor-Defendant-Appellee.

Before: Raymond C. Fisher, Richard A. Paez, and Andrew D. Hurwitz, Circuit Judges.

OPINION

HURWITZ

, Circuit Judge:

The Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801

–91 (“Magnuson-Stevens Act,” or “the Act”), creates a “national program for the conservation and management of the fishery resources of the United States.” Id. § 1801(a)(6). The Act establishes eight Regional Fishery Management Councils, each of which “shall” prepare a fishery management plan (“FMP”) “for each fishery under its authority that requires conservation and management.” Id. § 1852(a), (h)(1). The Secretary of Commerce, acting through the National Marine Fisheries Service (“NMFS”), then reviews each FMP or amendment of a plan “to determine whether it is consistent with the [Act's] national standards, the other provisions of this chapter, and any other applicable law,” 16 U.S.C. § 1854(a)(1). See

Or. Trollers Ass'n v. Gutierrez , 452 F.3d 1104, 1108 (9th Cir. 2006).

The issue for decision is whether NMFS can exempt a fishery under its authority that requires conservation and management from an FMP because the agency is content with State management. The district court held that it could. We disagree, and reverse.

BACKGROUND

I. Factual and Legislative Background

Cook Inlet is one of the nation's most productive salmon fisheries. Its salmon are anadromous, beginning their lives in Alaskan freshwater, migrating to the ocean, and returning to freshwater to spawn.

In 1953, the United States entered into the International Convention for the High Seas Fisheries of the North Pacific Ocean. In response, Congress enacted the North Pacific Fisheries Act of 1954 (the “1954 Act”), authorizing the Secretary of the Interior to promulgate regulations governing fisheries contiguous to Alaskan waters. See Pub. L. No. 83–579, §§ 10 & 12, 68 Stat. 698, 699–700 (previously codified at 16 U.S.C. §§ 1021

–35 ). The Secretary then issued a regulation prohibiting salmon net fishing in the western waters of Alaska, but excepting Cook Inlet and two other areas where net fishing had historically been permitted under Alaska law; in those areas, federal regulation was to mirror existing Alaskan regulation. 50 C.F.R. § 210.10 (repealed).

Before 1976, the United States asserted authority only over waters up to twelve nautical miles from the coastline, and there was substantial concern that foreign fishers were depleting American fisheries. See Mark H. Zilberberg, A Legislative History of the Fishery Conservation & Management Act of 1976 (“Legislative History”) 237–41, 352, 448–49, 455–56, 472–73, 476–81, 519 (1976). In 1976, Congress enacted the Fishery Conservation and Management Act (the “1976 Act”), Pub. L. No. 94–265, 90 Stat 331

(codified as amended at 16 U.S.C. §§ 1801 –1891 ), later renamed the Magnuson-Stevens Act. The 1976 Act extended federal jurisdiction to 200 miles from the coastline, id. § 101 (codified as amended at 16 U.S.C. § 1811 ), and regulated foreign fishing in that area, id. §§ 201, 204 (codified as amended at 16 U.S.C. §§ 1821, 1824 ). States retained jurisdiction over the first three miles from the coast, id. § 306(a) (codified as amended at 16 U.S.C. § 1856 ), and the federal government had jurisdiction over the next 197 miles, originally called the fishery conservation zone (“FCZ”) and later named the exclusive economic zone (“EEZ”), id. § 101 (codified as amended at 16 U.S.C. § 1811 ). See also 16 U.S.C. § 1801(b)(1) ; Exclusive Economic Zone of the United States of America , 48 Fed. Reg. 10,605 (Mar. 10, 1983).

The federal government manages its waters through eight regional Councils. 16 U.S.C. § 1852

. During the debate on the 1976 Act, Senator Gravel of Alaska criticized the concept of federal management on one side of the three-mile line and state management on the other, because fish freely travel across the three-mile boundary. Legislative History 412–13, 460–67. Senator Gravel suggested that a state should manage its federal waters under a plan approved by the federal government. Id. at 467, 471. Senator Stevens of Alaska, one of the bill's managers, offered an even broader proposal, which provided for exclusive state management of “[t]hose fisheries capable of being managed as a unit, which reside principally within the waters of a single State.” Id. at 422. But, Congress instead approved a more modest substitute offered by the bill's other manager, Senator Magnuson, directing Councils, if possible, to incorporate state management measures in FMPs. Id . ; 1976 Act § 305(c) (codified at 16 U.S.C. § 1855 ).

In 1979, NMFS promulgated an FMP for salmon fisheries near Alaska. See Fishery Management Plan for the High Seas Salmon, 44 Fed. Reg. 33,250 (June 8, 1979)

(the “Salmon FMP”). The Salmon FMP divided Alaskan federal waters into East and West Areas; Cook Inlet is in the West Area. Id. at 33,267. With respect to the West Area, the FMP tracked the regulations promulgated under the 1954 Act prohibiting commercial salmon fishing except in the three historic net-fishing areas, including Cook Inlet, which the State would continue to manage. Id. (“These fisheries are technically in the FCZ, but are conducted and managed by the State of Alaska as inside fisheries.”). The decision to leave these fisheries in the hands of the State was not based on a finding that they were in good health; to the contrary, the Salmon FMP found that “[a]ll salmon species are at historic low levels in the Cook Inlet management area, with chinook stocks seriously depleted.” Id. at 33,309.

In 1983, Congress amended the Act to specify that a Council need only prepare an FMP with respect to a fishery “that requires conservation and management.”

Pub. L. No. 97–453

, § 5(4), 96 Stat. 2481, 2486 (codified as amended at 16 U.S.C. §–1852(h)(1) ). The conference report explained this amendment was intended “to clarify that the function of the Councils is not to prepare a fishery management plan (FMP) for each and every fishery within their geographical areas of authority. Rather, such plans are to be developed for those fisheries which require conservation and management.” H.R. Conf. Rep. No. 97-982, 97th Cong., 2d Sess., at *18.

Alaska had proposed to amend the Act “to direct the Secretary of Commerce to delegate authority of a domestic fishery in the FCZ to the adjacent state ... if ... 1) the fishery does not cross interstate boundaries; and 2) the State is capable and willing to provide conservation and management consistent with the National Standards.” Omnibus Authorization Bill for the National Oceanic and Atmospheric Administration: Hearings Before the S. Comm. on Commerce, Sci. & Transp. , Serial No. 97-118, 97 Cong. 310 (1982) [hereinafter Hearings ] (statement of Ronald O. Skoog, Commissioner, Alaska Department of Fish and Game). But, this proposal was not enacted. See Pub. L. No. 97-453

, § 5(4), 96 Stat. 2481, 2486 (1982).

The Salmon FMP was revised in 1990. The revised FMP stated that, under the regulation implementing the 1954 Act, 50 C.F.R. § 210, salmon net fishing in the West Area was prohibited, with the exception of the three historic net-fishing areas, which “technically extend into the EEZ, but ... are conducted and managed by the State of Alaska as nearshore fisheries.”

In 1992, a new international convention prohibited all fishing for anadromous fish beyond the EEZ. Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, art. I, III. Congress promptly implemented that convention and repealed the 1954 Act. North Pacific Anadromous Stocks Act of 1992, Pub. L. No. 102–567, §§ 801–14, 106 Stat. 4309

(codified at 16 U.S.C. §§ 5001 –5012 ). The Secretary of Commerce then concluded that regulations promulgated under the 1954 Act, including 50 C.F.R. § 210, no longer had statutory support, and repealed them. Removal of Regulations, 60 Fed. Reg. 39,271, 39,272 (Aug. 2, 1995). But, the Salmon FMP was not revised, and Alaska continued to manage the three historic net fisheries.

In 1995, a fishing vessel, “Mister Big,” engaged in a massive unregulated harvest of scallops in the federal waters of Prince William Sound. See Trawler Diane Marie, Inc. v. Brown , 918 F.Supp. 921 (E.D.N.C. 1995)

. That scallop fishery was not covered by an FMP, but the Magnuson-Stevens Act provided that a State could regulate fishing vessels in federal waters that were registered in that state. Id. at 924, 926 ; see Pub. L. No. 98–623, § 404(4), 98 Stat. 3394, 3408 (1984) (“[A] State may not directly or indirectly regulate any fishing vessel outside its boundaries, unless the vessel is registered under the law of that State.”). The Mister Big set sail from Seattle, renounced its Alaska...