Washington v. Daley

• Decision Date: 02 April 1999
• Docket Number: 97-36008,Nos. 97-35680,s. 97-35680
• Citation: 173 F.3d 1158
• Parties: 99 Cal. Daily Op. Serv. 2432, 1999 Daily Journal D.A.R. 3174 State of WASHINGTON, Petitioner-Appellant, v. William M. DALEY, * United States Secretary of Commerce, Respondent-Appellee. Midwater Trawlers Co-Operative; West Coast Seafood Processors; Fisherman's Marketing Assoc., Plaintiffs-Appellants, v. Department of Commerce, National Marine Fisheries Service, William M. Daley, ** United States Secretary of Commerce, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1158

173 F.3d 1158

99 Cal. Daily Op. Serv. 2432, 1999 Daily

Journal D.A.R. 3174

State of WASHINGTON, Petitioner-Appellant, v. William M. DALEY, ^* United States Secretary

of Commerce, Respondent-Appellee.

Midwater Trawlers Co-Operative; West Coast Seafood

Processors; Fisherman's Marketing Assoc., Plaintiffs-Appellants, v. Department of Commerce, National Marine Fisheries Service, William M. Daley, ^** United

States Secretary of Commerce,

Defendants-Appellees.

Nos. 97-35680, 97-36008.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 17, 1998.

Decided April 2, 1999.

Fonda Woods and Robert Costello, Assistant Attorneys General, Olympia, Washington, for petitioner-appellant State of Washington v. Daley, No. 97-35680.

James Johnson, Olympia, Washington, for plaintiffs-appellants Midwater Trawlers Co-Operative v. DOC, No. 97-36008.

M. Alice Thurston, United States Department of Justice, Washington, D.C., for respondent-appellee in case State of Washington v. Daley, No. 97-35680 and defendants-appellees Midwater Trawlers Co-Operative v. DOC, No. 97-36008.

Appeals from the United States District Court for the Western District of Washington; Barbara J. Rothstein, Chief Judge, Presiding. D.C. Nos. CV-96-00561-BJR, CV-96-01808R.

Before: GOODWIN, SCHROEDER and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

The State of Washington ("Washington") and Midwater Trawlers Cooperative, West Coast Seafood Processors Association and Fisherman's Marketing Association (collectively "Midwater") appeal the district court's dismissals of their petitions seeking to overturn regulations promulgated by the Secretary of Commerce ("the Secretary") allocating groundfish catches off the Washington coast to four Northwest Indian tribes ("the Tribes"). Midwater and Washington also appeal the denial of the motion for reconsideration and motion for consolidation with Subproceeding 96-2 in United States v. Washington, Civil No. 9213. In addition, Midwater appeals the district court's grant of summary judgment in favor of the Secretary on Midwater's claim that the challenged regulations violated the Magnuson Act by failing to comply with the Endangered Species Act and the Regulatory Flexibility Act. We have jurisdiction. 28 U.S.C. § 1291. We affirm in part, reverse in part and remand for further proceedings.

I

Although these cases were not formally consolidated in the district court, we combine them in this opinion because the cases challenge the same regulation and share common issues. Both cases involve challenges to regulations promulgated by the Secretary acting under the authority of the Magnuson Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1882 ("the Magnuson Act"). The Magnuson Act delegates to the Secretary the authority to promulgate regulations governing fisheries within the United States fishery conservation zone, which extends from three to two hundred nautical miles offshore. See 16 U.S.C. § 1811(a); Pres. Proc. No. 5030, 48 Fed. Reg. 10605 (Mar. 10, 1983) (establishing extent of conservation zone); Teresa M. Cloutier, "Conflicts of Interest on Regional Fishery Management Councils: Corruption or Cooperative Management?," 2 Ocean and Coastal L.J. 101, 116-17 (1996) [hereinafter Cloutier, "Conflicts of Interest"].

The Magnuson Act provides for a system of Regional Fishery Management Councils, each of which "prepare[s] and submit[s] to the Secretary of Commerce a fishery management plan (FMP) with respect to each fishery within its geographical area of authority." Cloutier, "Conflicts of Interest," supra, at 117; see also 16 U.S.C. §§ 1852-1861. The Secretary, acting through the National Marine Fisheries Service ("Fisheries Service"), reviews the plans and amendments to the plans for consistency with national standards and "other applicable law." 16 U.S.C. § 1854(a)(1)(A). Assuming that the plan meets these criteria, the Secretary publishes notice of the plan or amendment in the Federal Register and promulgates regulations implementing the plan after the statutory comment period. See Cloutier, "Conflicts of Interest," supra, at 117-18; 16 U.S.C. § 1854(a)-(b). The Secretary may independently prepare a plan only if the Regional Management Council has failed to do so within a reasonable time or if the Secretary disapproves a submitted plan and the submitting council fails to submit a revised version. 16 U.S.C. § 1854(c)(1).

The Pacific Fishery Management Council ("the Pacific Council") is authorized to prepare plans for fisheries off the coasts of Washington, Oregon and California. 16 U.S.C. § 1852(a)(1)(F). The Pacific Coast Groundfish Management Plan ("the Plan"), first adopted in 1982, manages whiting fisheries. ¹ See 47 Fed.Reg. 6043 (1982); 50 C.F.R. § 660, Subpart G. Since 1989, the Pacific Council has allocated portions of the sablefish and rockfish harvests to the four Tribes that each have a reservation on the Pacific coast of Washington state--the Makah, Hoh and Quileute tribes and the Quinault Indian Nation.

In 1995 the Makah tribe petitioned the Pacific Council to set aside a harvest of 25,000 metric tons of whiting. The Makah claimed that their treaty with the United States ² secures to them the right to harvest whiting within their "usual and accustomed" fishing grounds, which extend roughly westward from the northwest coast of Washington to 125 44 West longitude. See United States v. Washington, 730 F.2d 1314 (9th Cir.1984). In October 1995, the Fisheries Service and the General Counsel to the National Oceanic and Atmospheric Administration advised the Pacific Council that the Tribes have treaty rights to harvest groundfish in their "usual and accustomed" grounds. 61 Fed.Reg. 10303 (1996). In November 1995, after hearing testimony from members of the fishing industry and the Attorney General's office of the State of Oregon, the Pacific Council voted against recognition of the Tribes' treaty rights in the whiting fishery on the ground "that a treaty tribe's right to harvest fish from its [usual and accustomed] area only exists for those species to which the tribe can show historical catch or access at the time the treaty was signed." Id.

The Secretary rejected the Pacific Council's recommendations as contrary to "other applicable law"--specifically, the treaties with the Tribes. Id.; see 16 U.S.C. § 1854(a)(1)(A). The Secretary therefore published a proposed amendment to the Plan's implementing regulations to establish a "framework process" to "accommodate treaty rights" in the groundfish fishery. 61 Fed.Reg. at 10304. The Secretary also proposed other modifications to the groundfish regulations and sought public comment on the 1996 allocation of whiting to the Makah. Id.

On June 6, 1996, the Secretary published the final rule, ³ which established the framework for implementing the Tribes' treaty rights in the groundfish fishery and allocated 15,000 metric tons of whiting to the Makah. 61 Fed.Reg. 28786 (1996); 50 C.F.R. § 660.324. ⁴ The final rule provides that, for purposes of the Plan, the "usual and accustomed fishing areas" of the Tribes extend west from Washington's Pacific coast to 1254400 West longitude and from the international boundary with Canada on the north (the most northerly portion of the Makah's treaty area) to 465318 North latitude (the most southerly portion of the Quinaults' treaty area). 50 C.F.R. § 660.324(c). The Secretary noted that federal salmon and halibut regulations had recognized the same areas as "usual and accustomed" tribal fishing grounds. 61 Fed.Reg. at 28789. The Secretary also noted that the western boundary was determined by extending south the line of the Makah's adjudicated western boundary. Id. (citing United States v. Washington, 626 F.Supp. 1405, 1467 (W.D.Wash.1985), aff'd, 730 F.2d 1314 (9th Cir.1984)).

The final rule also states that

[t]he Secretary recognizes the sovereign status and co-manager role of Indian tribes over shared Federal and tribal fishery resources. Accordingly, the Secretary will develop tribal allocations and regulations under this paragraph in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus.

50 C.F.R. § 660.324(d). This language was added to the rule in response to a comment by the Quileute Tribe. 61 Fed.Reg. at 28791.

On April 19, 1996, the Makah instituted Subproceeding 96-2 in United States v. Washington in the Western District of Washington. The Makah sought a determination from the district court that they had a treaty right to take whiting and that their participation in the fishery would not violate Paragraph G of the district court's 1975 order. See United States v. Washington, 459 F.Supp. 1020, 1037-38 (W.D.Wash.1978). ⁵ On November 4, 1996, the district court entered an order granting partial summary judgment in favor of the Makah. The court held that the Secretary had not violated Paragraph G by promulgating the regulation at issue here; that Paragraph G did not require "a preliminary determination of Makahs' treaty right entitlement to fish for Pacific whiting and rockfish in its usual and accustomed fishing grounds in light of Judge Rafeedie's ruling in Subproceeding 89-3, which constitutes the law of the case"; and that Washington and Oregon had failed to produce evidence sufficient to withstand summary judgment on their claim that the Makah did not have treaty rights to whiting.

On June 26, 1996, Midwater filed a complaint in the district court for the District of Oregon. Midwater sought a declaration that the regulation was adopted in violation of the Magnuson Act, the Administrative Procedures Act, 5 U.S.C. § 706, and the Fifth Amendment. As part of the Magnuson Act claim, Midwater sought a declaration that the Secretary had failed to comply with the Endangered Species Act, 16 U.S.C. § 1531, the National Environmental Policy Act, 42 U.S.C. § 4321, and the Regulatory Flexibility Act, 5 U.S.C. § 601. Midwater sought a declaration that the...