Charter Operators v. Blank
2012 U.S. Dist. LEXIS 23123
D.C. Cir.2012Background
- The Final Rule creates a limited access system with permits for charter vessels in two Gulf of Alaska areas, administered by NMFS and the Secretary of Commerce.
- North Pacific Council considered limited entry, published a control date in 2005–2006 signaling potential future access restrictions.
- In January 2010 the Final Rule imposed permit requirements and differentiated transferable vs nontransferable permits based on participation logs.
- Plaintiffs, Charter Operators of Alaska, challenge the rule under the APA, arguing it violates the Halibut Act and the Magnuson-Stevens Act and is not fair or equitable.
- This suit follows an earlier bench ruling denying a preliminary injunction; the court now resolves cross-motions for summary judgment on the administrative record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conservation purpose under Halibut Act | Plaintiffs argue the Final Rule is not reasonably calculated to promote conservation. | Defendants contend the rule advances long-term conservation and reduces fleet growth. | Defendants win; rule reasonably promotes conservation. |
| Compliance with limited entry criteria (MSA §1853(b)(6)) | Plaintiffs claim the rule fails to establish an FMP or optimum yield as required. | Defendants say no FMP/optimum yield is required; the rule satisfies the seven criteria. | Defendants win; rule complies with §1853(b)(6). |
| Fair and equitable allocation | Plaintiffs contend exclusion of certain operators is unjust and lacking a conservation basis. | Defendants emphasize notice via the control date and equity via nontransferable permits and CQE allocations. | Defendants win; allocation is fair and equitable under the statute. |
| Economic analysis adequacy under §1853(b)(6)(C) | Economic analysis is qualitatively insufficient and harms small charter businesses. | Regulatory Impact Review and Final Regulatory Flexibility Analysis provide substantial economic analysis. | Defendants win; analysis adequate. |
Key Cases Cited
- Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (arbitrary and capricious review is narrow; deference to agency decisions)
- Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (U.S. 1971) (presumption of regularity; narrow inquiry into administrative records)
- Serono Labs., Inc. v. Shalala, 158 F.3d 1313 (D.C. Cir. 1998) (high level of deference for scientific/technical agency decisions)
- Alliance Against IFQs v. Brown, 84 F.3d 343 (9th Cir. 1996) (unlimited access can undermine conservation; review of conservation purpose)
- Gen. Category Scallop Fishermen v. Sec’y, U.S. Dep’t of Commerce, 635 F.3d 106 (3d Cir. 2011) (notice from control date supports rational basis for future access decisions)