Washington Trollers Ass'n v. Kreps, 79-4240
| Decision Date | 18 May 1981 |
| Docket Number | No. 79-4240,79-4240 |
| Citation | 645 F.2d 684 |
| Parties | WASHINGTON TROLLERS ASSOCIATION et al., Plaintiffs-Appellants, v. Juanita KREPS, Secretary of Commerce, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Scott E. Stafne, Stafne & Hemphill, Seattle, Wash., for plaintiffs-appellants.
Anne S. Almy, Dept. of Justice, Washington, D. C., for defendant-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before PREGERSON and POOLE, Circuit Judges, and KARLTON, * District Judge.
Appellants several associations representing commercial troll fishermen, and named individual troll fishermen appeal from a summary judgment against them in this suit challenging the 1978 Fishery Management Plan for commercial and recreational salmon fisheries off the coasts of Washington, Oregon, and California ("the Plan"). Appellants seek a declaration that the Plan does not conform to the provisions of the Fishery Conservation and Management Act of 1976, 16 U.S.C. §§ 1801-82 ("the FCMA"), and the guidelines established pursuant to that act, 50 C.F.R. 602.2, 602.3, and hence could not serve as a proper basis for fishery management regulations promulgated by the appellee Secretary of Commerce. Because we find that material issues of fact remain unresolved, we reverse the district court's grant of summary judgment.
Section 303(a)(3) of the FCMA, 16 U.S.C. § 1853(a)(3), which provides that fishery management plans are to specify the fishery's present and likely future condition, maximum sustainable yield, and optimum yield, requires that plans "include a summary of the information utilized in making such specification." Appellants contend that the Plan violates this requirement because it relies on computerized analysis systems without describing either the computer methodology or the data used to arrive at the Plan's projections and recommendations. Appellees reply that the Plan cites documents that describe the computer methodology in sufficient detail to serve as the basis for informed criticism and that as long as such documents were publicly available, it was unnecessary to include them in the Plan itself.
The kind of "summary" section 303(a)(3) requires can be understood only in light of the purposes and policies of the FCMA. Congress clearly intended to give those members of the public interested in or affected by fishery management plans and regulations a meaningful voice in shaping those plans and regulations. Section 2(b)(5)(A) of the FCMA, 16 U.S.C. § 1801(b)(5)(A), states that one purpose of the Act is to "enable the States, the fishing industry, consumer and environmental organizations, and other interested persons to participate in, and advise on, the establishment and administration of such (fishery) plans." And section 2(c)(3) of the FCMA, 16 U.S.C. § 1801(c)(3), enunciates a policy of "assur(ing) that the national fishery conservation and management program ... involves, and is responsive to the needs of, interested and affected States and citizens." To realize these goals, Congress stipulated that when the Secretary of Commerce approves a fishery management plan and publishes it with proposed implementing regulations, "(i)nterested persons shall be afforded a period of not less than 45 days after such publication within which to submit in writing data, views, or comments on the plan ..., and on the proposed regulations." FCMA section 305(a), 16 U.S.C. § 1855(a).
This provision for public comment can effectuate Congress's goals only if the public is able to make intelligent, informed, meaningful comments. The "summary of the information utilized" in the Plan's specifications required by section 303(a)(3) must therefore provide information sufficient to enable an interested or affected party to comment intelligently on those specifications. 1 "To suppress meaningful comment by failure to disclose the basic data relied upon is akin to rejecting comment altogether." United States v. Nova Scotia Food Products Corp., 568 F.2d 240, 252 (2d Cir. 1977). Accordingly, although the "summary" that the Plan is required to include may incorporate by reference documents containing the necessary information, those documents must be reasonably available to the interested public. 2 "It is not consonant with the purpose of a rule-making proceeding to promulgate rules on the basis of inadequate data, or on data that (to a) critical degree, is known only to the agency." Portland Cement Association v. Ruckelshaus, 486 F.2d 375, 393 (D.C.Cir.1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). 3
Here, appellants and appellees disagree sharply as to how readily available the documents describing the computer methodology actually were. They disagree on whether the Plan sets out the data that was fed into the computer to obtain the Plan's specifications. They even disagree on whether only one computer model was used to obtain all of the descriptions, projections, and analyses in the Plan. All of these are issues of fact, all are highly material, and all are unresolved. Summary judgment, however, is proper only when "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 668 n.3 (9th Cir. 1980). Therefore, we must reverse the entry of summary judgment; further proceedings will be necessary to resolve the factual disputes in this lawsuit.
The judgment of the district court is reversed, and the case is remanded for further proceedings.
Today the majority mandates that henceforth, before promulgating fishing regulations pursuant to the Fishery Conservation and Management Act (Act), 16 U.S.C. § 1801 et seq., the Secretary of Commerce must make available to every interested party, every computer model, methodology, statistical study, all of the raw data and any other information which played a role in formulating fishery yield specifications pursuant to § 1853(a)(3). Thus, the public now has a right of access to all that is used to formulate such specifications and may obtain the information in the form that it came to the Secretary. I cannot agree that the statute or the public's interest in commenting on proposed regulations requires imposition of such a sweeping access requirement. Nor can I agree that summary judgment was improperly granted in this case. I respectfully dissent.
The key statutory provision construed is 16 U.S.C. § 1853(a)(3), which provides that in promulgating a fishery management plan, that plan must:
assess and specify the present and probable future condition of, and the maximum sustainable yield and optimum yield from, the fishery, including a summary of the information utilized in making such specification.
(emphasis supplied). Reading this language in conjunction with provisions of the Act requiring public opportunity for comment on fishery management plans and regulations, 1 the majority concludes that the term "summary" must be defined to require complete access to all the information and methodologies used in formulating the specifications of a fishery management plan. As the majority makes clear in the fourth paragraph of its opinion, all of the basic data used must be available if meaningful public comment is to be possible. Moreover, in light of the conclusion that material issues of unresolved fact are whether the raw data fed into the computer was disclosed in the plan, 2 or whether the computer model was available, the majority must necessarily conclude that disclosure of such materials is essential. Absolute access is the necessary import of today's decision.
It is a familiar principle of statutory construction that the particular words used by Congress provide the best indication of a statute's meaning. See, e. g., Ernst and Ernst v. Hochfelder, 425 U.S. 185, 201, 96 S.Ct. 1375, 1384, 47 L.Ed.2d 668 (1976). In this case, Congress used the term "summary" and the Act requires a plan to summarize the information used to develop the plan specifications. 16 U.S.C. § 1853(a)(3). I cannot conceive of any definition of the term "summary" which would require access to the underlying raw data. A summary is "an abridgment; brief; compendium; digest; * * * "; 3 or "a comprehensive and usually brief abstract, recapitulation, or compendium of previously stated facts or statements." 4 Access to all is the antithesis of a summary.
As a matter of language and common understanding, the majority does not attempt to characterize "complete access" as an accepted or even plausible definition of the term "summary." 5 Rather, the justification for the extraordinary access mandated today is said to lie in the public's need for all the Secretary's information so that meaningful comment will be possible. We are told that although this information need not be appended to the plan or regulations themselves, it must be reasonably available to the interested public if intelligent public comment is to be expected, and that access to that body of knowledge, wherever it be located, is an absolute condition to the legality of any plan or regulation.
I have no difficulty agreeing that, when the Secretary is required to disclose highly detailed information, it is adequate if, instead of appending that information to the plan or regulations, the public is provided a means of reasonable access. The flaw in the majority opinion is its conclusion that the word summary is to be given something foreign to its common meaning and that the Act's provisions for public comment are to be enlarged into an onerous responsibility nowhere contemplated by Congress or supported in any authority on administrative procedure. It simply serves no legitimate end to hold that complete access to everything used to formulate plan specifications is the sine qua non of intelligent public comment. 6
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