*1 of receiving an extension after decision INC; FINEST U.S. FISHERMEN’S
time. Fishing LLC; North Pacific Fish that our refusal to vacate It is true ing Inc, Plaintiffs-Appellants, deprives moot after it has become decision v. right to seek a member of our court Secretary Gary LOCKE,* as he is the in order sponte rehearing an en banc sua Department United States decision on the merits obtain a different Commerce, Defendant-Appellee. open opportunity it (although leaves rehearing purpose for the an en banc seek No. 08-36024. decision). mini- vacating do not our We Appeals, States Court of United that it right, but have concluded mize Ninth Circuit. we have equities not overcome the does justify erasing a and does not described Argued and 2009. Submitted Nov. when the panel issued decision Filed Jan. live, and that controversy was still are content complied have with and parties
to let stand. panel our declined
For all these reasons ap- and dismiss the
to vacate its decision initially judge as moot. The who
peal called for an
sought en banc review then for the
en banc vote to rehear the matter vacating decision as moot
purpose of dismissing appeal. A vote was
taken and the matter failed to receive
majority of the nonrecused of the votes judges in favor of en banc consider-
active See R.App.
ation. Fed. P. 35. DE- AND
VACATUR DISMISSAL
NIED.
* 43(c)(2). R.App. predecessor Commerce. Fed. P. Gary Locke is substituted for his Department of the United States *3 Ferrell,
Linda R. Larson and Jessica K. PLLC, Seattle, WA, Marten Group Law for the plaintiffs-appellants. Scott,
Charles R. Depart- United States Justice, ment of Environment & Natural Division, DC, Resources Washington, the defendant-appellee. ALARCÓN,
Before: ARTHUR L. ANDREW J. KLEINFELD and CLIFTON, R. Judges. RICHARD Circuit Opinion by ABARCÓN; Judge Dissent by Judge CLIFTON.
ABARCÓN, Judge: Senior Circuit Finest, Inc., North Pacific Inc., Fishing, LLC, Fishing, and U.S. (“Fishermen’s”) appeal from the district granting summary court’s order judgment favor of the of the United Department States of Commerce. Fisher- challenges Secretary’s men’s issuance adopting of a final rule Amendment 85 (“A85”) Fishery Management Plan (“FMP”) Bering for Groundfish of the Sea Management Fishery Aleutian Islands Area Management Conservation and (“MSA”) (“BSAIMA”). Act “conserve and manage fishery resources” and to “achieve The Government allocates Pacific cod maintain, basis, continuing on a among different the BSAIMA optimum yield fishery.” from each Id. fishing industry. belongs 1801(b)(1) (4). & In order to achieve (“CP”) to the trawl sec- Catcher/Processor these eight ends MSA established re- tor. It contends that the most recent al- gional Fishery Management Councils location, which reduced its share of the (“Councils”), which could set the Total Al- fishery, Pacific cod did not comport with *4 (“TAC”) lowable Catch for each spe- fish applicable law. in fishing cies different zones. See id. agree We affirm because we with the 1852(b) 1852(h)(1). (c), 1801(b)(5); §§ & Secretary district court that the did not FMP’s, thereto, and amendments do arbitrarily act capriciously adopting and effective, however, not become they until Amendment A85. approved by are the Secretary. See 16 1854(a)-(b), §§ U.S.C. 1855. The Secre- I tary delegated has responsibility this the National Marine Fisheries Service operates two medium-sized (“NMFS”), which promulgates the cod, flatfish, vessels that fish for Pacific regulation ensuring after the FMP’s and rockfish Atka and mackerel the BSAI- amendments are consistent with the MA. The BSAIMA is located off Standards, alia, MSA’s ten National inter the northwest coast of Alaska. It is this 1854(a)-(b), § 16 U.S.C. period and a after largest nation’s in terms of harvest and 1854(a)(1)(B) public §§ comment. Id. & area. Pollock is the most lucrative and (b)(1)(A). BSAIMA; largest fishery in the cod is second. fishing Different means of complains that the most re- employed are the BSAIMA. Allocations cent allocations of the Pacific cod TAC in among are made different methods of fish- amendment A85 to the current FMP of the ing, because of their individualized envi- BSAIMA violated National Standard and impact. ronmental and socioeconomic A National Standard 4 of the MSA. National fishing by trawler is a vessel that fishes 4 provide Standards and that: dragging large net or through (2) Conservation management and process water. CP vessels fish remov- measures shall be upon based the best ing gut the head and they as soon as are scientific information available. caught, belongs hence Fishermen’s to a colloquially known as the “Head & (4) Conservation management and Gut” sector. measures shall not discriminate between residents of different If states. it be-
A necessary comes to allocate or assign To understand the fishing privileges substance of Fisher- among various United fishermen, requires men’s claims an overview of the States such shall allocation (A) regulation fishing. Government’s Find- equitable be fair and to all such “[cjertain (B) fishermen; ing stocks of fish have reasonably de- calculated to (C) point conservation; clined to the where their promote survival is carried threatened,” 1801(a)(2)(A), § 16 U.S.C. out in such a manner that particular no individual, Congress Magnuson-Stevens enacted the corporation, entity or other past participation that met a test priv- of such ic vessels share acquires an excessive industry. § AFA in that 208. Fisher- ileges. belong group. does not to this It is men’s (4). 1851(a)(2) § & The MSA 16 U.S.C. participant a non-AFA referred to as guide- promulgate requires the NMFS fishing. granted The vessels BSAIMA National Standards. interpreting lines monopoly by operate coopera- 1851(b). According guide- Id. at engage fishing also for other tives that lines, 2 “best scientific National Standard anticipated species, approved as was “includes, is not limited but information” competi- the AFA. Because of the to, biological, ecological, of a information advantage specific tive vessels economic, nature.” 50 C.F.R. or social gained pollock monopoly, due to their Con- 600.315(b)(1) (2006). Further, FMPs limit gress sought their on other “take into account” and amendments must dictating fisheries Councils: information available at the “best scientific approval by if new infor- shall recommend for preparation” the time of initial man- available between such conservation and mation becomes *5 review, agement it measures as it and NMFS “should be determines nec- drafting essary protect final FMP where to other fisheries under incorporated into the 600.315(b). jurisdiction § in participants Where practicable.” Id. fisheries, including processors, conflicting opinions, are facts and those there may by Act Fishery Management impacts Councils choose from adverse caused this justify fishery cooperatives in the to consider “but should or directed what 600.315(b)(1). pollock fishery. § choice.” Id. 4, regards added). to National Standard 211(a)
With (emphasis § AFA Con- they if equitable” allocations are “fair and gress protections also built in in the AFA “rationally to the achieve- are connected advantages against competitive unfair for yield] or with the fur- [optimum ment of “sideboards,” AFA imposing vessels legitimate objective.” of a FMP therance on how much of other which are limits fish 600.325(c)(3)(i)(A). Further, § Id. species AFA vessels are allowed to catch. “in- advantaging in an 211(b)(2) (C). herent allocation is § example, & For group of one to the detriment another.” fishery, the Pacific cod Thus, fishing privi- allocation of Id. “[a]n operated vessels under a sideboard limit of may group on one leges impose hardship 6.1% of TAC and AFA trawl CV vessels outweighed by if it is the total benefits operated under a limit of 20.2% sideboard group groups.” received another or Id. AFA, As a result of the non-AFA TAC. 600.325(c)(3)(i)(B). example, For section non-pol- vessels increased their harvest of portion of the sets aside a 305 MSA they species, lock as were now excluded eligible villages part TAC for Rule, pollock. Final 72 Fed. Community Development Western Alaska 52, Reg. at Quota Program. See 16 U.S.C. B 1855(i)(l)(A). An FMP for the BSAIMA was first argues
Fishermen’s also A85’s TAC 211(a) 63, promulgated Fed.Reg. allocation of the American 1981. 46 295 violates (“AFA”) (Dec. 1981). 31, by creating Fisheries Act an “ad- It includes annual TACs in- impact” fishing target species, verse on non-AFA vessels. for each of seventeen 1994, 1998, In for the first monopoly cluding In the AFA created a Pacific cod. time, 24 allocated the Pacific fishing rights pollock assigned specif- Amendment
891 (hook- TAC, processors (part trawl catcher gear” 44% to the “fixed of the fleet cod sector, granted pollock fishing pot) rights 54% under the and-line AFA) (fish- gear and non-AFA trawl catcher jig pro- and 2% to the methods). (those 4009, Fed.Reg. pollock 4010 cessors who had no fishing lure ing 1994). (Jan. 28, rights). Fed.Reg. re- These allocations 50788. Because from AFA the harvests those sectors trawl CP vessels were now limited flected 1993, Pacific exception with the that the their amount of a direct allocation, longer allocations was increased to en- there was no a need for jig gear’s gave imposed by Amendment 24 also the 6.1% sideboard limit courage growth. authority phased to “reallocate Pacific AFA. The sideboard was out. the NMFS one sector to anoth- [from cod from vessels Council, The North which has ... anytime [NMFS] determines er] BSAIMA, authority sought over the gear group that one or the other will adoption “[g]rowing of A85 because de- allocation of Pacific be able to harvest its cod, fully exploited mand for Pacific fish- at 4010. Fed.Reg. cod.” 59 ery, and other distributional concerns among Amendment 46 divided the sectors led the Council to consider between catcher vessels ... action to revise a[n] trawl allocation allocations of Pa- (“CP”) (“CV”) among many cific cod catcher-processors BSAI[MA] gear, groundfish 47% to trawl sectors.” 72 Fed.Reg. allocated 51% to fixed at 5657. (divided jig gear. and 2% Revision of allocations gear equally), had become neces- (Nov. 1996)(codified sary because current allocations meant *6 679). and that pt. typically at 50 C.F.R. Amendments 64 “one or more sectors are 2003, 77, in passed respectively, 2000 and unable to harvest their annual allocation of refined sector subdivisions from the Pacific cod TAC.” 72 at Fed.Reg. further 5655. “Thus, original gear provide opportunity fixed sector into five an for 24, Fed.Reg. (Aug. non-CDQ 65 51553 full harvest of BSAI Pacific cod groups. See 2000)(codified 679); TAC, pt. existing at 50 C.F.R. 68 allocations of Pacific cod 2003)(codified 18, Fed.Reg. projected at that are (Aug. by 49416 to be unharvested 679). pt. annually 50 These amendments did some sectors are reallocated C.F.R. alter the allocated to the trawl to other sectors.” TAC NMFS Id. “Since BSAI 5654, group. Fed.Reg. 5655 Pacific cod sector in See allocations have been rule) 2007) 7, effect, (February (proposed (noting has NMFS reallocated cod quota year jig a 23.5% for trawl CPs between each from the trawl and sectors to TAC A85). Id.; gear Fishery 1997 and fixed sectors.” See also Council, Management Public Review 4, 2007, September up- On the NMFS Assessment/Regula- Draft: Environmental groundfish the FMP for dated tory Impact Regulatory Review/Initial 85, which sets BSAIMA Amendment for Flexibility Analysis Proposed Amend- for the of Pacif- forth new allocations TAC (March 12, E-l ment 85 iii-iv and Table may nine sectors catch ic cod each of (hereinafter (not- 2006) “EA/RIR/IRFA”) annually. Fisheries of the Executive Eco- ing that 2000 and between CPs Alaska, nomic Zone Off Pacific Cod Alloca- quota). reallocated 19% of their sector’s Is- Bering tions Sea and Aleutian The NMFS also carried out other more Area, Management Fed.Reg. land minor reallocations. Id. 2007) (codified at (September 50 C.F.R. 679). MSA, problem setting time statement forth the pt. For the first since the objectives reads as trawl CPs were divided between follows: fishery Pacific cod is As other in the The BSAIMA fisheries BSAIMA and rationalized, and has been allocated fully incrementally utilized GOA are his- and to sectors within among gear groups participants torical in the BSAIMA Pa- current gear groups. The allocations fishery may put cific cod be at a disad- trawl, among jig, gear and fixed were vantage. Each sector in the BSAIMA (Amendment 46) in 1997 implemented fishery currently Pacific cod has differ- [Community CDQ Development degrees ent requirements license and Quota] implemented allocation participation. levels of Allocations to These allocations are overdue for 1998. necessary the sector step level are have patterns review. Harvest varied path comprehensive towards ration- significantly among resulting the sectors Prompt alization. action is needed to in annual in-season re-allocations of stability maintain in the BSAIMA Pacif- result, TAC. As a the current allocations ic cod fisheries. correspond dependen- do not with actual In pursuing socio- cy and use sectors. factors, economic the North Pacific Council Participants in the BSAIMA Pacific particularly stated that it was interested significant who have made expanding entry-level, opportunities local long-term depen-
investments and have fish cod coastal Alaskan communities stability dence on the resource need may under-represented be due to the trawl, jig, the allocations to the fixed high entry present fixed cost barrier to gear CDQ and To un- sectors. reduce fishing other methods. Id. certainty provide stability, alloca- adjusted tions should be to better reflect The Council aimed to allocate Pacific cod historic use sector. The average basis for based on the history. catch determining pre-A85 sector allocations will be post-A85 allocations can (all history catch as well as consideration of be summarized as follows numbers are TAC): socio-economic community percentage factors. *7 Average Average Recent Retained Harvest Retained Harvest
SECTOR_Pre-A85 (1995-2003)_(2000-2003) Jig_2.0 1.4_01_0.1
Hook-and-line/poi^CV_0.7 2.0_04_0/7_ CP_40.8
Hook-and-line 48.7_491_49.4_ (60 +)_7.6 Pot CV ft 8.4_R6_9.0
AFA Trawl CP 2.2 1.5 _ 23.5 _A3_ Non-AFA Trawl CP_134_134_16.0 CV_23.5 221_240_21.6
Trawl 5659, 72 Fed.Reg. at Table 3: expansive years, Current and selected the most set of Proposed Allocations of BSAIMA. Pacific choosing analyze history catch data non-CDQ 1995, cod Average TAC and Harvest began, from when allocations to 2003. (percent) (emphasis 2006, Share Sector April add- In the Council voted to take ed). 2003, it began analysis When its propose final action and new sector alloca- tions, the Council options considered alternative including providing the non-AEA for the data that should be used in deter- a trawl CP sector with 13.4% share of the mining the historical points catch. The Council TAC. Fishermen’s out these (because im- significant processing), financial of onshore have a allocations percent greater as each of the and that CV sectors had suffered pact on fisheries approximately represents impacts protect allocated from restrictions to Stellar TAC million revenue. sea lions. $2 history further catch data
By that time Re-allocations also occurred based on 2004 and 2005 was available. The from preserve the need to “directed cod” fish- average an trawl CP sector had non-AFA ery for various sectors. The term “direct- the retained harvest percent of 17.7 ed” refers to whether vessels in- Fed.Reg. 2004 and 2005. 72 between particular species tend to catch that of fish 5660, Average (percent) Table 4: Share caught incidentally. or whether the fish is 2004-2005. Whereas Retained Harvest caught incidentally “by- Fish are known as processed to 2003 was the data from 1995 previously catch.” Vessels would discard tickets, which issue based on fish dying bycatch or dead back into the fish, the 2004 and upon sale or transfer although kept sea some were for sale. Be- extrapolated 2005 data was observer cause waste detrimental envi- Further, coverage estimates. observer practice, ronmental effects of this MSA varied between sectors. Id. requires bycatch National Standard 9 1851(a)(9). be minimized. U.S.C. disregarded the 2004 and Council Accordingly, required the NMFS inequita- it considered it 2005 data because all, vessels to retain or specified amounts to favor the trawl CP which ble of, cod, Pacific pollock by adopting response high market demand for Pacif- Amendment 49 for the BSAIMA FMP. anticipation and in of A85’s evalua- ic cod (Dec. 63, 880, 63, 1997) able, usage, had been thanks to its tion (codified 679.27). pro- at 50 C.F.R. over-allocation, steadily to increase prior A85, posing sought the Council to allocate fishing, its Pacific cod while other sectors enough Pacific under-allocation, cod TAC to the which suffered from re- CP sector so it could maintain the “mini- Thus, usage. mained limited to smaller mum necessary” for a directed Pacific cod “considered [the 2004-2005] the Council fishery. The Council was motivated ... recent harvest data illustrate the fact that the trawl CP sector was trends,” rely upon but them in did not fishing, efficient establishing allocations. higher percentage being of its allocation statement, problem with the Consistent up by fishing. used directed The Council *8 higher the allocated than the aver- Council also made the decision to favor those with age historical catch to those sectors that bycatch by counting pre-1997 less histori- would most benefit coastal Alaskan com- though cal catch that data data even did sector, gear the fixed 77% munities: small bycatch. not include of residents of coast- comprised of which is communities, jig Fishermen’s contends that the North al Alaskan In Pacific allocated Pacific processing which uses coastal facilities. Council cod TAC justifying part the non-AFA trawl sector’s to the AFA trawl sector as of an CP allocation, impermissible arbitrary political com- the Council also noted that the to ensure that one sole promise trawl sectors had never “funded” allocation order fleet, Ann, entry-level small fixed vessel of that the Katie had increases for the fishery. Fuglvog average, its historic directed cod Councilman gear CV sector above expressed more to the concern about whether the that CV sectors contribute allocation economy communities than CP trawl CP sector would be suffi- of coastal 894 jurisdic- timely appealed. This Court has Ann to continue its the Katie
cient to allow 1294(1). §§ under 28 U.S.C. 1291 and tion fishery. response, Coun- directed cod action stated that “this cilwoman Salveson II allocation to to ... establish
is intended ... not historic use better reflect A any for a directed provide for Secretary Fishermen’s contends the Final allocations to the one vessel.” 2 and violated National Standard National range sector were within Further, 4 in promulgating A85. Standard historic use. calculated based on creates an Fishermen’s contends A85 7, 2007, pub- February the NMFS On adverse on non-AFA vessels vio- request rule and proposed lished its lation of the AFA. Fed.Reg. Sep- at 5654. On comments. 72 “This reviews a district Court 4, 2007, final promulgated it tember grant summary judg court’s decision to comments and re- published rule and with all in the ment de novo facts read Fed.Reg. 72 at 50788. There sponses. light non-moving most favorable to the addressing comments
were numerous
Yakutat,
Gutierrez,
v.
407
party.”
Inc.
of cod to non-AFA trawl CPs.
allocation
(9th
1054, 1066
Cir.2005)(quoting
F.3d
(Comment
See,
e.g.,
72
50793
Covington
County,
v.
358 F.3d
Jefferson
(Comments
(Com-
9),
3),
50796
50795
6 and
(9th Cir.2004)).
626,
641 n.
In review
(Comment 16).
11),
ment
ing regulations promulgated under
Act,
Magnuson
only
“our
function is to
4, 2007, Fishermen’s filed
On October
Secretary
whether
determine
Com
[of
challenging
court
this action
federal
‘has considered the
factors
merce]
relevant
judicial
powers
reg-
over
under the
review
and articulated a rational connection be
MSA, in-
promulgated
ulations
under the
tween the facts
the choice
found and
FMPs,
cluding
granted by the APA. 16
”
Brown,
IFQs
Against
made.’ Alliance
v.
1855(f)(1)
(2).
U.S.C.
&
The district
(9th Cir.1996)
343,
(quoting
84 F.3d
upheld Secretary’s
court
decision in a sum-
Producers,
Mosbacher,
Crab
Inc. v.
Wash.
5,
mary judgment
order
December
(9th Cir.1990)).
924 F.2d
1440-41
(1)
2008. It held that
A85’s allocations were
only
determine
if
acted
“We
rationally
objectives
connected to the
set
arbitrary
in an
capricious
manner
problem
forth in the
statement and result-
promulgating
regulations.”
such
Alliance
in a fair
equitable
ed
result
re-
IFQs,
Against
895 Council, however, may under National (The ... must Management Plans Fishery hardship a “impose the “national "standards” one Standard be consistent Act.). by total Magnuson outweighed in the if its bene- group described National Stan- implementing or regulations group groups.” fits received another new alloca- 600.325(e)(3)(i)(B). above, that motives for require dard As noted Id. objec- in terms of the “justified tions be of the reduction was due to socioeco- part FMP.” 50 C.F.R. tives leading factors the Council to fund nomic 600.325(c)(3)(i)(A). argues Fishermen’s growth that favor for coastal Alas- the non-AFA that, reduces because A85 Further, whatever shift in kan residents. Fishermen’s def- allocation below that could be “traced” percentage points use,” changed quo- of “historical inition sector to the from the non-AFA trawl CP objectives. to meet the stated ta fails rationally justi- AFA trawl CP sector was state- problem contrasts the preserve fied the need to the more ment, alloca- pre-A85 out that points which fishery of efficient directed cod the latter. dependency “actual tions did not reflect 211(a), separately As for we discuss it use,” regulations new with the any statutory do not believe there is con- their actual aver- their share below reduce requires special fluence that treatment of Fed.Reg. in 2004 and 2005. age usage 211(a) with National 4. Standard narrowly focuses on at 5657. Fishermen’s attempts to combine the re- of a more expense clause at the this one 211(a) with National quirements of reading of the en- comprehensive, coherent 4, by claiming the NMFS was Standard final problem While the tire statement. analyze specifically any ad- required among begin describing, statement does impact A85 have on the non- verse would concerns, discrepancy between al- other caused benefit- trawl CP sector use, specifically pro- it and actual locations ting the AFA trawl CP sector. As ex- for future allocations vides that the basis below, however, anything, if A85 plained other socioeco- history” be catch “will had an adverse on the AFA trawl considerations. nomic sector, thus, there can be no reason- an annu- Fishermen’s was allocated 5657. expectation that the NMFS should able average that was the of their his- al TAC harm. analyze a non-existent from 1995 to usage of Pacific cod toric and com- In terms of socioeconomic Fishermen’s has failed to demonstrate factors, was reduced munity their share allocation, although disadvanta- entry-level small fixed part to fund the them, equitable fair or geous to was not of coastal Alaskan residents. gear sector objectives of furthering the beneficial attempts a novel com- Fishermen’s also Thus, comports with National FMP. 4 of the bination of National Standard Standard 4. 211(a) AFA. Fisher- MSA with argu Fishermen’s makes related points out that National Standard men’s analyze that the NMFS failed to ment privileges group to one forbids excessive allocations under National 211(a) impact of the impacts forbids adverse while by failing “po to consider its Standard by any advantages unfair caused fishery. tential” loss of a directed cod then would AFA vessels. Fishermen’s regulations state that “the Council should A85, by shifting have us conclude that of the relative make an initial estimate final points in its allocation percentage *10 by the al hardships imposed benefits the non-AFA trawl CP sector 600.325(c)(3)(i)(B). § sector, 50 both. The location.” C.F.R. AFA trawl violated CP 896
However, 1851(a)(2), which, “includes, the demon- but is not EA/RIR/IFRA to, strates that the Council did consider the limited information of a biological, eco- impact changes on the non-AFA economic, logical, or social nature.” 50 example, trawl For 600.315(b)(1). CP sector. Coun- C.F.R. ar- Fishermen’s by- cil considered the extent limitations on gues that the Council failed to consider the prevent catch would direct cod developing most relevant data in the new sepa- and noted that the trawl allocations. Fishermen’s asserts that the prevent rate allowances would the non- Council considered data that was too old closing trawl sector from down di- longer and no relevant to reallocation in- fishing rected cod for the entire trawl sec- formation, and failed to consider the rele- Further, responses tor. to the com- vance of the most recent available data. published ments with the final rule show argues further that instead of that, that the NMFS determined even un- basing the decision on analysis” “scientific scenario,” der a “worst case the non-AFA it was an “arbitrary political compromise.” sector would be able to maintain Fishermen’s maintains that the older fishery. a directed cod 72 Fed.Reg. See at catch history analyzed by data the Council 50799, The 50801. National Standards do They was irrelevant. argue any data require any particular not outcome with collected particularly before 1998 is mis- allocations; respect rather, they provide to leading regulations because catch changed a framework for analysis. the Council’s support, 1998. In point out There is nothing guaran- the MSA that A80, a concurrent amendment de- tees Fishermen’s a fishery. directed cod signed reorganize species all fishing Fishermen’s is to a certain extent a victim BSAIMA, pre-1998 data ignored success, of its own greater because the its because there was a concern the data operations for other species, inevitably fish would fail to “represent best the tradition- greater bycatch its incidental of Pacific al patterns harvest of the [A]80 sector.” cod. objec- One the BSAIMA FMP’s (A80 Rule). at Final tives under the MSA is “conservation and Council, however, stated its rationale management.” Accordingly, under Na- for including the older data in FMPs, tional A85. The Standard year of 1995 was thereto, starting selected as a amendments must by- minimize point it immediately catch. because The Council is not followed the tied down Magnuson-Stevens first need Act preserve to allocate in order to allocations. di- acknowledged The Council rected cod fisheries for that there were participants with high bycatch. intervening may levels of events that changed The Council ful- have obligations allocations, filled under the circumstances of the framework by analyzing particular legislation the new alloca- the 1998 AFA tions on the non-AFA attempts protect trawl CP sector. the Steller sea Thus, none of Secretary’s lion. example, actions on For the passing of the AFA this arbitrary issue were capricious. legislation or pushed the non-AFA trawl sec- Against IFQs, Alliance AFA, F.3d tor into fishing. increased cod
however, pushed all non-AFA Pacific cod C participants use, into increased Pacific cod just Under National key Standard con Fishermen’s. The difference servation management is that belonged measures because Fishermen’s to a “shall upon be based the best scientific sector with significant one of the most available,” information A85, prior U.S.C. over-allocations it was one of *11 (Council a rational line” at 1067 “drew usage its with- could increase the few who analysis from of which boats omitting allocation in re- limited its being out because focused to include AFA. If the Council sponse data, depen- it would those boats omitted as result exclusively post on ignor- species). on that one unfairly while dent benefit trends for the indus- long-term harvest ing just Fishermen’s sector. a whole not
try as D Further, disputed the data Fishermen’s that the argues Coun 2 data only National Standard was not the adequately to consider data cil failed rely on in mak- was allowed to the Council (2004 years the two most recent catch decision, objectives considering the ing its 2005). require Fishermen’s relies on also made reallo- FMP. The Council new incorporate ment that FMP’s must data, sociological which based on cations information as it becomes available where increasing allocations pointed towards 600.315(b)(2). 50 C.F.R. practicable. mainly that consisted gear small that, “[t]he concluded Coun Alaskan residents. of coastal cil and NMFS considered more recent 2005) (2004 and harvest data from the the Council
Finally, it is evident accounting database in re data sets be- NMFS catch potential several examined history to illustrate recent including viewing 1995 to harvest selecting range fore that information harvest trends as became regards with to the selection 1998. Even available, but it was not available question, the Council deter- years from 1995 years would same format as data that a smaller set of mined Fed.Reg. through a too 2003.” See 50793- results based on produce skewed (Comment Response). For 1995 for cod in 3 and view of market demand narrow words, had data from Federal although the Council years. other those Reports pro- Weekly Production and Alaska legislation and Stellar sea lion Fish and fish tickets. significant Department variables Game measures were tection using noted that a set based pre-1998 data The NMFS threaten to render did harvest from 1995-2003 was “justified its on retained misleading, the Council using than data from later choice,” more accurate required 50 C.F.R. 600.315(b)(1), years because the latter is based on ob pre-1998 to include the server estimates. 72 at 50793. it believed a host of other data because history inequitable use observer data would be influencing catch To variables were sectors, because certain such as the representation accurate could and a more group, are observed more care by broadening the set of only be reached rely have to comparable fully than others who would years to include all years fact, Id. In fish Ultimately, extrapolated data. began. allocations data since in raw inherently tickets became available data places one any selection of data years in March form for the 2004 and 2005 disadvantage; Fishermen’s has party at issuing to the Council prior a month to demonstrate how this selection failed Given the time proposed allocations. arbitrary capricious. or this data information, process needed to permissible stated a rationale Council were fact that the Council’s deliberations nothing data and including pre-1998 than two coming to a close after more deliberations on record of the Council’s information years, incorporating the new capricious contrary or appears this issue Yakutat, Inc., have “practicable” was not and so need not 407 F.3d the evidence. See *12 Secretary’s 2004-2005 data. The under National Standard decision been considered (if 600.315(b) new in was regard arbitrary infor- this neither nor 2. See 50 C.F.R. initial capricious. available between mation becomes review, it NMFS “should be drafting and FMP into the final where incorporated E added). (emphasis practicable.”) point to the Coun that also contends the Ann, of an cil’s treatment the Katie data for into account Council did take vessel, argument for the that if numbers did not even those inappropriate political in considerations for historical catch form the basis the final rational making. terfered with decision a review of the Secretarial numbers. As Regulations product pure are “a demonstrates, Review Draft of A85 data political in absence of compromise” the sci analyzed. 2004 and 2005 was justification generally entific will be trawl Council that the non-AFA CP noted arbitrary viewed capricious. as Mid- in harvest share 2004 that sector had a Co-operative Dep’t water Trawlers v. year. any was than Id. at greater other (9th Commerce, 282 F.3d 720-21 Cir. However, that, 273. the NMFS noted de- 2002) (specific fishing rights allocation of harvest, spite higher the this increase to Indian tribe not based on scientific ra numbers did not mean that and 2005 MSA). tionale violation of While the catching the trawl CP sector was combined allocating Council had considered 1.5% of Fed.Reg. at its entire allocation. sector, they CP TAC to the trawl part, In discounted this recent the Council quota to sector increased the this to 2.3% high unusually data market de- because based, in part, the concern years, mand for Pacific cod in as well those Katie Ann would not be able maintain as for competition “the likelihood of fishery. words, cod other directed In anticipation among sectors of this allocation, absent an ships increased like prior action.” Because of its over-alloca- the Katie Ann would able to catch be
tion, belonged to a sector that bycatch during cod as pol their directed could usage response increase its lock A fishery. Council member noted incentives, these unlike other sectors. The “negotiations there were and discussions” Secretary provided explanation a rational that led to the increased allocation. Read for the Council’s action: the Council did whole, ing as a it the record is clear that not wish to reward Fishermen’s for just considered Council not the Katie prior their by perpetuating over-allocation maintaining Ann in the context direct it telling they while the other sectors did fishery, ed cod but the sector as a whole not need bigger they allocations because and its use. the Secretary historic As had maximized their current allocations. however, points out, ample rational and supported The record shows that the Council also scientific reasons final allo cations, sociological considered the best available reflected which Fishermen’s his data, fact, percentage which indicated that TAC toric usage. agency acted needed consistently position, to be subtracted from other sectors with its original always to benefit the coastal Alaskan communi- which had been to allocate consistency ties. The in AFA 0.9% need maintain trawl sector between and 3.7% data equally and treat all an is non-AFA CP sector between 16.2%, ample justification using 1995-2003 12.7% and based on historical us Furthermore, practicable age. data. It to include AFA trawl 211(a) because the historic a much smaller allocation than defined *13 sector, manag- higher catch of the non-AFA sector was trawl CP the non-AFA fishery a cod be- than A85 allocation whereas the historic maintain directed ing to of AFA than its proportion less as a catch the sector was lower bycatch it had cause fishery. argument Under National A85 allocation. Fishermen’s of its bycatch injured in of requires they to be that were violation which Standard 211(a) 211(a) minimized, to the fact as de- ignores the decision ensure Council’s permitted impact fined in AFA fishery greater of directed cod the continuance the the by the on sector manage- AFA sector the non-AFA practical had conservation Thus, AFA-imposed objectives, political ones. than A85 effectuates. The ment not the to predominate permitted as sideboard AFA sector concerns did political fish for of the total Pacific cod of the Co-opera- in Midwater Trawlers 26%2 they did sector, tive, 720-21, post- where the final trawl CP whereas of the total 282 F.3d allocation, AFA political A85 sector pure compro- decision was trawl CP agency Thus, mise, engage had agency any did not 14.6%3 total. as AFA analysis. supposed trawl CP sector’s encroach- scientific
ment on the non-AFA trawl CP sector was F actually reduced greatly by A85 as com- itself, pared AFA is the which requires AFA that the Council shall rights sup- source of would way protect the BSAIMA in a to manage posedly rely question have us on. The is impacts of non-AFA vessels from adverse not whether the A85 on AFA vessels limits pollock monopoly. 16 the directed U.S.C. than usage, are less restrictive historical 211(a).1 1851, note, they are than the greater but whether impact A85 has an adverse claims such They impact legally by allowed the AFA. it “robs” non-AFA because trawl CP Hence, are run afoul of not. A85 does not AFA trawl CP sector to benefit the sector. Fisheries American Act. A85, the trawl CPs were one sector Before of See 72 Fed. allocated 23.5% the TAC. CONCLUSION protected Reg. at 5659. The AFA itself by persuaded are that the Secre allocating the non-AFA trawl CP sector We tary capricious a arbitrarily the AFA trawl sector did not act to CP “sideboard” ly of As we approving limit of 6.1% Pacific cod catch. AFA Amendment A85. Alliance, 211(b)(2)(A). effectively Secretary is al replaces “[t]he noted in A85 lowed, [controlling precedent], the two sectors under protection splitting this allocation, allocating groups sacrifice the interest some each set Secretary fishermen for the benefit as the the non-AFA trawl CP limited to sees it 84 F.3d and the AFA trawl CP sector to a whole.” 13.4% at 350. Here the of Fishermen’s argu- The substance of Fishermen’s interests 2.3%. were for the of the fish- impact” that A85 causes “adverse sacrificed benefit ment is thus, sector, trawl no reason- attempts to combine the re- CP there can be 1. Fishermen's 211(a) quirements of with National Stan- expectation able that the ana- NMFS should required by claiming the NMFS was dard lyze harm. non-existent analyze specifically any impact adverse have the non-AFA trawl CP A85 would 2. 6.1% divided 23.5%. by benefitting the AFAtrawl CP sector caused below, however, explained any- As if sector. (2.3% 13.4%). 4- divided 2.3% thing, had an on the AFA A85 adverse whole, as a as the favored That allocation was made at ery expense others, of, among Alaskan res- the non-AFA benefítted coastal idents, sector, necessity and selected data that would re- which relies more unintended prior heavily favoritism to the on Pacific cod after being pushed duce pollock which out of fishery by Fish- the AFA. non-AFA belonged. ermen’s Specifically, grants the AFA trawl AFFIRMED. CP sector a direct allocation of 2.3% of *14 portion Pacific TAC-a cod well above that CLIFTON, Judge, dissenting: Circuit sector’s At historic cod harvest. time, the A85 same reduces the non-AFA The American Fisheries Act of 1998 trawl CP sector’s allocation to the 13.4% of (“AFA”) granted monopoly a lucrative portion Pacific cod TAC-a well below that pollock fishing rights operat- to 20 vessels sector’s recent harvests and its below even (described in the “AFA ing BSAIMA average by historic as calculated the Coun- vessels”). compensat- trawl CP AFA The (As below, cil. discussed there is reason by fishing pol- vessels not the ed favored calculation.) question to the Council’s (“non-AFA vessels”) monopoly by lock historic character of the new allocations charging the North Pacific Council with question calls into the professed Council’s protecting monopoly’s them from the ad- goal for A85 “better reflecting] historic Specifically, verse effects. the Council’s by importantly, by any use sector.” More (“FMPs”) Fishery Management Plans measure the reasonable new allocations “protect ju- must other fisheries under its adversely impact the non-AFA trawl participants risdiction and the in those sector at same time that they the benefit fisheries, including processors, from ad- already the sector pollock favored the impacts by verse caused or fishery this Act monopoly granted under the AFA. cooperatives the fish- pollock directed note, ery.” § 16 U.S.C. AFA majority opinion seeks to rebut this 211(a). I conclude that Amendment 85 A85’s impact assessment of adverse on the (“A85”)violates protective by this mandate by non-AFA trawl CP sector -comparing directly allocating to Pacific cod the AFA the 6.1% “sideboard” limit formerly im- sector to the detriment of the non-AFA posed on trawl the CP sector’s Pacif- trawl CP sector. Additionally, the Coun- ic cod harvest to the smaller allocation use of pre-AFA cil’s data to calculate made A85 the AFA sector. Supra history” “catch violates National Standard misinterprets 899. That function Magnuson-Stevens (“MSA”), Act limit, the sideboard which imposed a hard requirement that FMPs “the employ best cap on trawl the AFA CP sector’s harvest scientific information available.” U.S.C. granting rather than it a direct allocation 1851(a)(2). result, respectfully As a I like the the sector enjoys one now under dissent. majority opinion’s A85. The statement that AFA-imposed permitted “[t]he sideboard 211(a) §AFA I. the AFA sector to fish for 26% of the total A85, Secretary and the Council [allocated Pacific cod to the combined] responsibility protect abdicated their is imprecise CP sector” and mislead- Instead, non-AFA granting already vessels ing. the 6.1% al- Id. sideboard privileged AFA trawl CP for the lowed the AFA sector to harvest no more time, first a direct allocation the total than 26% of the combined trawl CP sec- (“TAC”) allocation; authorized catch of Pacific cod. it actually guaran- tor’s did not on the trawl CP sector” fraction of the verse any tee AFA sector A85, the complaining harvest. Prior to that the non-AFA sector is total trawl CP or and the non-AFA at 899 Supra AFA sector “non-existent harm.” n. of a subject group, Instead, treated as one sector were grants the favored AFA I. As the single to a allocation. independence the additional sector boon A85, non- “[p]rior acknowledges, formerly combined trawl CP sec- theoretically sector could AFA trawl CP margin Pacific cod allocation with a tor’s alloca- entire 23.5% [have] harvested] beyond expansion its historic Pacific Pacific cod that it shared tion of the TAC harvest, it and inflicts on the non-AFA (because AFA trawl CP sector with the an loss of unmitigated trawl CP sector the AFA trawl CP sector’s 6.1% sideboard (both Pacific cod market allocated share alloca- limit rather than an exclusive was a actual) cultivated tion).” years following exclusion the AFA *15 sum, pollock fishery. In from the A85’s fact, the AFA never came
In sector of cod TAC redistribution the Pacific im- harvesting 6.1% of the Pacific close to poses on the non-AFA trawl CP sector an 2003, years on 1995 and the TAC. Between 211(a) reallocation, impact requires § adverse the its which the Council based against. guard to just Council average the AFA sector’s harvest was By contrast, non- TAC. the 1.7% of the average harvest
AFA CP trawl sector’s History II. The Relevant of period 1995-2003 was 13.6% during the adopted purpose The Council the of to those assigned The allocations the TAC. reflecting] use “better historic sector” 13.4%, are re- by A85 2.3% and history” “catch as one and declared of Thus, spectively. using range even of for determining three bases sector alloca- years calculate the Council relied on to Having so, tions. done the Council was history” compari- basis for “catch required by to National Standard use son, a share assigned A85 AFA sector “the best scientific information available” Pacific cod above historic of the goals. in furtherance its stated curtailing sec- levels while the non-AFA 1851(a)(2). Determining U.S.C. what its fishing rights Pacific cod below tor’s period to history time consider as relevant historic share. obviously important evaluating his- years If attention is focused on the since toric use. Council calculated catch AFA, of the adverse adoption A85’s 1995 to history years based is even on the non-AFA CP sector brings That selection to mind Mark years, post-AFA worse. between Twain’s observation: average the AFA har- sector’s 1.5%, just cod was substan- vest of Pacific me, Figures beguile particularly often tially lower than A85’s allocation of 2.3%. I them arranging my- when have During years those the non-AFA trawl CP self; in which the remark case attrib- TAC, yet A85 sector harvested 15.7% of apply Disraeli often uted to would group. allocates 13.4% that justice and are force: “There three lies, majority of lies: damned lies sta- numbers contradict the kinds These ad- opinion’s conclusion that “A85 had an tistics.” Twain, Autobiogra- Chapters My to whether attribution of the 1. Mark doubt as Review, No. phy, 185 North American saying is to Disraeli correct. 5, 1907, DCXVIII., July is 471. There adopted curtailing in 1998. Prior hold that in The AFA was the non-AFA ves- time, rights was not reserved to the sels’ to harvest pollock Pacific cod while vessels, fishing expanding rights After the AFA chosen few vessels. those AFA 211(a) game granting adoption rules of the changed the violated AFA, pollock monopoly, using pre-AFA other data to calcu- required focus on late fishermen were other “historic” catch it violated National notably species, including Pacific cod. To Standard 2 of the MSA. years, they
no one’s later when surprise, pollock, they caught
couldn’t catch more
cod. Yet the Council defined “catch histo-
ry” several years to include before the changed rules. problem The Council’s statement ex- COYT, Petitioner, Rafael Martinez
plained on pre-AFA its reliance data v. stating that just Jr., Attorney Consideration of three or four re- Eric H. HOLDER years General, dependency Respondent. cent does not show may unduly the sectors over time and be No. 05-77080. biased because of increased market de- *16 Appeals, United years mand for Pacific cod in States Court of recent for Ninth products, potential some Circuit. par- decreased ticipation to due BSAI crab rationaliza- Argued and Submitted Oct. 2009. tion, and the of competition likelihood Filed Jan. cod among Pacific antici- pation of this action. post-AFA
But these market stimuli should less, more, pre-AFA
make data not useful reallocating going forward.
Most importantly, the passage the AFA
in 1998 forced non-AFA trawl CP sec-
tor expand operations its Pacific cod
compensate for its exclusion from pol-
lock fishery, the TAC shares discussed
above confirm. That is still exclud- pollock
ed from fishery by the AFA. go fishermen cannot back to 1995-
1998 circumstances. The Council should can,
not pretend they that but is
exactly Relying what does. on pre-
AFA data history to calculate the catch
post-AFA players, making any without ef-
fort adjust AFA, for the of the is
manifestly unreasonable. decisions deference,
Council great are entitled to but is deference I unchecked. would