Washington Crab Producers, Inc. v. Mosbacher

924 F.2d 1438, 1991 WL 5910
Court of Appeals for the Ninth Circuit·Decided January 25, 1991·No. No. 89-35595·Published·Cited by 13 cases

Opinion

ORDER

The memorandum disposition filed October 23, 1990, is redesignated as an authored opinion by Judge Leavy.

OPINION

LEAVY, Circuit Judge:

OVERVIEW

The eleven appellants are various commercial and recreational groups who fish off the coast of the State of Washington and land their catches in Washington ports. In 1989, they challenged the Secretary of Commerce’s annual ocean harvest plan for 1988, including amendments to the 1984 Fisheries Management Plan and the implementation of emergency regulations for the 1988 ocean fishing season that were recommended to the Secretary by the Pacific Fisheries Management Council (“the Council”). They sought a declaratory judgment and a review of the administrative action.

The appellee Secretary of Commerce (“the Secretary”) is responsible for approving or preparing, implementing, and enforcing fishery management plans or amendments to such plans under the Magnuson Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1882 (1988) (“Mag-nuson Act”) in the Fishery Conservation Zone from 3 to 200 miles off the United States coast. 16 U.S.C. §§ 1854, 1855(g), 1811. He promulgates regulations governing this zone. The Secretary relies heavily on the statutorily-created Council for development of, and advice on, plans and the preparation of proposed regulations for the fisheries off the coasts of California, Oregon, Washington, and Alaska. See 16 U.S.C. § 1852(h). The Magnuson Act requires that any fishery management plan must contain the conservation and management measures that are consistent with the national standards set forth in 16 U.S.C. § 1851, the provisions of the Magnuson Act, and any other applicable law including treaties with the Indian tribes. Hoh Indi[1440]*1440an Tribe v. Baldrige, 522 F.Supp. 683, 685 (W.D.Wash.1981).

The complaint in this case alleged that: (1) the Secretary did not follow the duty imposed on him by the Magnuson Act to establish ocean salmon fishing seasons with information adequate to determine if treaty/nontreaty fishers would be provided their allotted shares of runs of salmon originating in Washington streams for the 1988 season; (2) sections 1801(b)(5)(A) and 1855(a) (repealed 1983) of the Magnuson Act require the Secretary to provide sufficient information “as to the division of catch between Indian and non-Indian fishermen, and the impact of the 1988 annual harvest plan and implementing regulations upon Indian and non-Indian catches” for informed public comment on the impact of the proposed ocean salmon fishing seasons on the allocation of fish between treaty/nontreaty fishers; and (3) the Magnu-son Act requires the Secretary to obtain and review data on the allocations of fish between treaty and nontreaty fishers on the Pacific coastal rivers (hereafter “inside fisheries”) before issuing the regulations for the ocean harvest.

The Secretary’s alleged failure to establish the Pacific Ocean salmon fishing seasons with sufficient information from the other fisheries to determine whether the 1988 ocean fishing season would provide treaty/nontreaty fishers with their allotted shares of runs of salmon originating in Washington streams is the sine qua non of this case.1

We find nothing in the Magnuson Act or any related amendments or regulations that requires the Secretary to obtain and use information regarding the allocation of fish between treaty Indians and non-Indians in other fisheries before issuing the 1988 ocean harvest plan. We therefore affirm the district court’s summary judgment in favor of the Secretary.

DISCUSSION

Standard of Review

A grant of summary judgment is reviewed de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986).

The parties differ as to the method by which this court should review the challenged administrative actions of the Secretary. The appellants contend the appropriate standard of review is de novo, citing 5 U.S.C. § 706(2)(C) and (D) (West 1988); Kelley v. Calio, 831 F.2d 190 (9th Cir.1987); and Washington Trollers Ass’n v. Kreps, 645 F.2d 684 (9th Cir.1981) (Kreps II). The Secretary contends we may examine the Secretary’s action only for reasonableness and may not overturn the action unless it was arbitrary, capricious, or an abuse of discretion.

Section 305(d) of the Magnuson Act, 16 U.S.C. § 1855(d), specifies Congress’ mandate for judicial review of the implementation of fishery management plans:

Regulations promulgated by the Secretary under this chapter shall be subject to judicial review to the extent authorized by, and in accordance with, chapter 7 of title 5 ... except that ... the appropriate court shall only set aside any such regulation on a ground specified in section 706(2)(A), (B), (C), or (D) of such title.2

This court has stated

A court, acting under authority granted by the [Magnuson Act], may review regulations promulgated by the Secre[1441]*1441tary of Commerce, and the [Magnuson Act] provides for the standard of judicial review [in] 16 U.S.C. § 1855(d). However, unless the Secretary acts in an arbitrary and capricious manner in promulgating such regulations, they may not be declared invalid. Section 1855(d); 5 U.S.C. § 706(2)(A).

Alaska Factory Trawler Ass’n v. Baldridge [sic], 831 F.2d 1456, 1460 (9th Cir.1987). This court defers to the interpretation of a statute by the agency charged with administering it. Southern Cal. Edison Co. v. F.E.R.C., 770 F.2d 779, 782 (9th Cir.1985). Further, the standard of review under 5 U.S.C. § 706(2) presumes the agency action to be valid. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Our only function is to determine whether the Secretary “has considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Baltimore Gas & Elec. Co. v. Natural Resources Defense Council,

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Washington Crab Producers, Inc. v. Mosbacher
924 F.2d 1438 (Ninth Circuit, 1991)