Fishermen's Finest Inc v. Carlos Gutierrez ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FISHERMEN’S FINEST INC; US 
FISHING LLC; NORTH PACIFIC
FISHING INC,
No. 08-36024
Plaintiffs-Appellants,
v.  D.C. No.
2:07-cv-01574-MJP
GARY LOCKE,* as he is the
OPINION
Secretary of the United States
Department of Commerce,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted
November 6, 2009—Seattle, Washington
Filed January 19, 2010
Before: Arthur L. Alarcón, Andrew J. Kleinfeld and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Alarcón;
Dissent by Judge Clifton
*Gary Locke is substituted for his predecessor as Secretary of the
United States Department of Commerce. Fed. R. App. P. 43(c)(2).
1217
FISHERMEN’S FINEST v. LOCKE 1221
COUNSEL
Linda R. Larson, Marten Law Group PLLC, Spokane, Wash-
ington, for the plaintiffs-appellants.
Charles R. Scott, United States Department of Justice, Envi-
ronment & Natural Resources Division, Washington, D.C.,
for the the defendant-appellee.
OPINION
ALARCÓN, Senior Circuit Judge:
Fishermen’s Finest, Inc., North Pacific Fishing, Inc., and
U.S. Fishing, LLC, (“Fishermen’s”) appeal from the district
court’s order granting summary judgment in favor of the Sec-
retary of the United States Department of Commerce. Fisher-
men’s challenges the Secretary’s issuance of a final rule
adopting Amendment 85 (“A85”) to the Fishery Management
Plan (“FMP”) for Groundfish of the Bering Sea and Aleutian
Islands Management Area (“BSAIMA”).
1222 FISHERMEN’S FINEST v. LOCKE
The Government allocates Pacific cod in the BSAIMA
among different sectors of the fishing industry. Fishermen’s
belongs to the trawl Catcher / Processor (“CP”) sector. It con-
tends that the most recent allocation, which reduced its share
of the Pacific cod fishery, did not comport with applicable
law.
We affirm because we agree with the district court that the
Secretary did not act arbitrarily and capriciously in adopting
Amendment A85.
I
Fishermen’s operates two medium-sized vessels that fish
for Pacific cod, flatfish, rockfish and Atka mackerel in the
BSAIMA. The BSAIMA fishery is located off the northwest
coast of Alaska. It is this nation’s largest in terms of harvest
and area. Pollock is the most lucrative and largest fishery in
the BSAIMA; Pacific cod is second. Different means of fish-
ing are employed in the BSAIMA. Allocations are made
among different methods of fishing, because of their individu-
alized environmental and socioeconomic impact. A trawler is
a fishing vessel that fishes by dragging a large net or trawl
through the water. CP vessels process fish by removing the
head and gut as soon as they are caught, hence Fishermen’s
belongs to a sector colloquially known as the “Head & Gut”
sector.
A
To understand the substance of Fishermen’s claims requires
an overview of the Government’s regulation of fishing. Find-
ing that “[c]ertain stocks of fish have declined to the point
where their survival is threatened,” 16 U.S.C.
§ 1801(a)(2)(A), Congress enacted the Magnuson-Stevens
Fishery Conservation and Management Act (“MSA”) in 1976
to “conserve and manage fishery resources” and to “achieve
and maintain, on a continuing basis, the optimum yield from
FISHERMEN’S FINEST v. LOCKE 1223
each fishery.” Id. § 1801(b)(1) & (4). In order to achieve these
ends the MSA established eight regional Fishery Management
Councils (“Councils”), which could set the Total Allowable
Catch (“TAC”) for each fish species in different fishing
zones. See id. §§ 1852(b) & (c), 1801(b)(5); 1852(h)(1). The
FMP’s, and amendments thereto, do not become effective,
however, until they are approved by the Secretary. See 16
U.S.C. §§ 1854(a)-(b), 1855. The Secretary has delegated this
responsibility to the National Marine Fisheries Service
(“NMFS”), which only promulgates the regulation after
ensuring the FMP’s and amendments are consistent with the
MSA’s ten National Standards, inter alia, 16 U.S.C.
§ 1854(a)-(b), and after a period of public comment. Id.
§§ 1854(a)(1)(B) & (b)(1)(A).
Fishermen’s complains that the most recent allocations of
the Pacific cod TAC in amendment A85 to the current FMP
of the BSAIMA violated National Standard 2 and National
Standard 4 of the MSA. National Standards 2 and 4 provide
that:
(2) Conservation and management measures shall be
based upon the best scientific information available.
...
(4) Conservation and management measures shall
not discriminate between residents of different
states. If it becomes necessary to allocate or assign
fishing privileges among various United States fish-
ermen, such allocation shall be (A) fair and equitable
to all such fishermen; (B) reasonably calculated to
promote conservation; and (C) carried out in such a
manner that no particular individual, corporation, or
other entity acquires an excessive share of such priv-
ileges.
16 U.S.C. § 1851(a)(2) & (4). The MSA requires the NMFS
to promulgate guidelines interpreting the National Standards.
1224 FISHERMEN’S FINEST v. LOCKE
Id. at § 1851(b). According to the guidelines, National Stan-
dard 2 “best scientific information” “includes, but is not lim-
ited to, information of a biological, ecological, economic, or
social nature.” 50 C.F.R. § 600.315(b)(1) (2006). Further,
FMPs and amendments must “take into account” the “best
scientific information available at the time of preparation” and
if new information becomes available between initial drafting
and NMFS review, it “should be incorporated into the final
FMP where practicable.” Id. § 600.315(b). Where there are
conflicting facts and opinions, the Fishery Management
Councils may choose what to consider “but should justify the
choice.” Id. § 600.315(b)(1).
With regards to National Standard 4, allocations are “fair
and equitable” if they are “rationally connected to the
achievement of [optimum yield] or with the furtherance of a
legitimate FMP objective.” Id. § 600.325(c)(3)(i)(A). Further,
“[i]nherent in an allocation is the advantaging of one group to
the detriment of another.” Id. Thus, “[a]n allocation of fishing
privileges may impose a hardship on one group if it is out-
weighed by the total benefits received by another group or
groups.” Id. § 600.325(c)(3)(i)(B). For example, section 305
of the MSA sets aside a portion of TAC for eligible villages
as part of the Western Alaska Community Development
Quota Program. See 16 U.S.C. § 1855(i)(1)(A).
Fishermen’s also argues that A85’s TAC allocation violates
211(a) of the American Fisheries Act (“AFA”) by creating an
“adverse impact” on non-AFA fishing vessels. In 1998, the
AFA created a monopoly in fishing rights to pollock assigned
to specific vessels that met a past participation test in that
industry. AFA § 208. Fishermen’s does not belong to this
group. It is referred to as a non-AFA participant in BSAIMA
fishing. The vessels granted a monopoly by the AFA operate
as cooperatives that also engage in fishing for other species,
as was anticipated and approved of by the AFA. Because of
the competitive advantage the specific AFA vessels gained
FISHERMEN’S FINEST v. LOCKE 1225
due to their pollock monopoly, Congress sought to limit their
impact on other fisheries by dictating that Councils:
shall recommend for approval by the Secretary such
conservation and management measures as it deter-
mines necessary to protect other fisheries under its
jurisdiction and the participants in those fisheries,
including processors, from adverse impacts caused
by this Act or fishery cooperatives in the directed
pollock fishery.
AFA § 211(a) (emphasis added). Congress also built in pro-
tections in the AFA against unfair competitive advantages for
the AFA vessels by imposing “sideboards,” which are limits
on how much fish of other species AFA vessels are allowed
to catch. AFA § 211(b)(2) & (C). For example, in the Pacific
cod fishery, AFA trawl CP vessels operated under a sideboard
limit of 6.1% of TAC and AFA trawl CV vessels operated
under a sideboard limit of 20.2% of TAC. As a result of the
AFA, non-AFA vessels increased their harvest of non-pollock
species, as they were now excluded from pollock. A80 Final
Rule, 72 Fed. Reg. at 52, 668.
B
An FMP for the BSAIMA was first promulgated in 1981.
46 Fed. Reg. 63, 295 (Dec. 31, 1981). It includes annual
TACs for each of seventeen target species, including Pacific
cod. In 1994, for the first time, Amendment 24 allocated the
Pacific cod TAC, 44% to the “fixed gear” (hook-and-line and
pot) sector, 54% to the trawl sector, and 2% to the jig gear
sector (fishing lure methods). 59 Fed. Reg. 4009, 4010 (Jan.
28, 1994). These allocations reflected the harvests in those
sectors from 1991 to 1993, with the exception that the jig
gear’s allocations was increased to encourage growth.
Amendment 24 also gave the NMFS authority to “reallocate
Pacific cod from vessels [from one sector to another] anytime
. . . the [NMFS] determines that one gear group or the other
1226 FISHERMEN’S FINEST v. LOCKE
will not be able to harvest its allocation of Pacific cod.” 59
Fed. Reg. at 4010.
In 1997, Amendment 46 divided the trawl allocation
between catcher vessels (“CV”) and catcher-processors
(“CP”) and allocated 51% to fixed gear, 47% to trawl gear
(divided equally), and 2% for jig gear. 61 Fed. Reg. 59029
(Nov. 20, 1996)(codified at 50 C.F.R. pt. 679). Amendments
64 and 77, passed in 2000 and 2003, respectively, further
refined sector subdivisions from the original fixed gear sector
into five groups. See 65 Fed. Reg. 51553 (Aug. 24,
2000)(codified at 50 C.F.R. pt. 679); 68 Fed. Reg. 49416
(Aug. 18, 2003)(codified at 50 C.F.R. pt. 679). These amend-
ments did not alter the TAC allocated to the trawl CP group.
See 72 Fed. Reg. 5654, 5655 (February 7, 2007) (proposed
rule) (noting a 23.5% TAC quota for trawl CPs between 1997
and A85).
On September 4, 2007, the NMFS updated the FMP for
groundfish of the BSAIMA with Amendment 85, which sets
forth new allocations for the TAC of Pacific cod that each of
nine sectors may catch annually. Fisheries of the Executive
Economic Zone Off Alaska, Pacific Cod Allocations in the
Bering Sea and Aleutian Island Management Area, 72 Fed.
Reg. 50788 (September 4, 2007) (codified at 50 C.F.R. pt.
679). For the first time since the MSA, trawl CPs were
divided between AFA trawl catcher processors (part of the
fleet granted pollock fishing rights under the AFA) and non-
AFA trawl catcher processors (those who had no pollock fish-
ing rights). 72 Fed. Reg. at 50788. Because AFA trawl CP
vessels were now limited in their amount of Pacific cod by a
direct allocation, there was no longer a need for the 6.1%
sideboard limit imposed by the AFA. The sideboard was
phased out.
The North Pacific Council, which has authority over the
BSAIMA, sought the adoption of A85 because “[g]rowing
demand for Pacific cod, a fully exploited fishery, and other
FISHERMEN’S FINEST v. LOCKE 1227
distributional concerns among sectors led the Council to con-
sider a[n] . . . action to revise allocations of Pacific cod
among the many BSAI[MA] groundfish sectors.” 72 Fed.
Reg. at 5657. Revision of allocations had become necessary
because current allocations meant that “one or more sectors
are typically unable to harvest their annual allocation of the
Pacific cod TAC.” 72 Fed. Reg. at 5655. “Thus, to provide an
opportunity for the full harvest of BSAI Pacific cod non-CDQ
TAC, existing allocations of Pacific cod that are projected to
be unharvested by some sectors are annually reallocated by
NMFS to other sectors.” Id. “Since BSAI Pacific cod sector
allocations have been in effect, NMFS has reallocated Pacific
cod each year from the trawl and jig sectors to fixed gear sec-
tors.” Id.; See also Fishery Management Council, Public
Review Draft: Environmental Assessment/Regulatory Impact
Review/Initial Regulatory Flexibility Analysis for Proposed
Amendment 85 iii-iv and Table E-1 (March 12, 2006) (herein-
after “EA/RIR/IRFA”) (noting that between 2000 and 2004,
trawl CPs reallocated 19% of their sector’s quota). The NMFS
also carried out other more minor reallocations. Id.
The problem statement setting forth the objectives of A85
reads as follows:
The BSAIMA Pacific cod fishery is fully utilized
and has been allocated among gear groups and to
sectors within gear groups. The current allocations
among trawl, jig, and fixed gear were implemented
in 1997 (Amendment 46) and the CDQ [Community
Development Quota] allocation was implemented in
1998. These allocations are overdue for review. Har-
vest patterns have varied significantly among the
sectors resulting in annual in-season re-allocations of
TAC. As a result, the current allocations do not cor-
respond with actual dependency and use by sectors.
Participants in the BSAIMA Pacific cod fishery
who have made significant investments and have
1228 FISHERMEN’S FINEST v. LOCKE
long-term dependence on the resource need stability
in the allocations to the trawl, jig, fixed gear and
CDQ sectors. To reduce uncertainty and provide sta-
bility, allocations should be adjusted to better reflect
historic use by sector. The basis for determining sec-
tor allocations will be catch history as well as con-
sideration of socio-economic and community factors.
As other fisheries in the BSAIMA and GOA are
incrementally rationalized, historical participants in
the BSAIMA Pacific cod fishery may be put at a dis-
advantage. Each sector in the BSAIMA Pacific cod
fishery currently has different degrees of license
requirements and levels of participation. Allocations
to the sector level are a necessary step on the path
towards comprehensive rationalization. Prompt
action is needed to maintain stability in the BSAIMA
Pacific cod fisheries.
72 Fed. Reg. at 5657. In pursuing socioeconomic factors, the
North Pacific Council stated that it was particularly interested
in expanding entry-level, local opportunities to fish cod for
coastal Alaskan communities that may be under-represented
due to the high fixed cost barrier to entry present in other fish-
ing methods. Id.
The Council aimed to allocate Pacific cod based on the
average of catch history. The pre-A85 and post-A85 alloca-
tions can be summarized as follows (all numbers are a per-
centage of TAC):
FISHERMEN’S FINEST v. LOCKE 1229
SECTOR Pre-A85 A85 Average Recent Average
Retained Harvest Retained
(1995-2003) Harvest
(2000-2003)
Jig 2.0 1.4 0.1 0.1
Hook-and- 0.7 2.0 0.4 0.7
line/pot-CV
Hook-and-line CP 40.8 48.7 49.1 49.4
Pot CV (60 ft +) 7.6 8.4 8.6 9.0
AFA Trawl CP 2.2 1.5
23.5 2.3
Non-AFA Trawl 13.4 13.4 16.0
CP
Trawl CV 23.5 22.1 24.0 21.6
72 Fed. Reg. at 5659, Table 3: Current and Proposed Alloca-
tions of BSAIMA Pacific cod non-CDQ TAC and Average
Harvest Share by Sector (percent) (emphasis added). When it
began its analysis in 2003, the Council considered alternative
options for the data that should be used in determining the
historical catch. The Council selected the most expansive set
of years, choosing to analyze catch history data from 1995,
when allocations began, to 2003. In April 2006, the Council
voted to take final action and propose new sector allocations,
including providing the non-AFA trawl CP sector with a
13.4% share of the TAC. Fishermen’s points out that these
allocations have a significant financial impact on fisheries as
each percent of the TAC allocated represents approximately
$2 million in revenue.
By that time further catch history data from 2004 and 2005
was available. The non-AFA trawl CP sector had an average
of 17.7 percent of the retained harvest between 2004 and
2005. 72 Fed. Reg. at 5660, Table 4: Average Share (percent)
1230 FISHERMEN’S FINEST v. LOCKE
of Retained Harvest 2004-2005. Whereas the data from 1995
to 2003 was processed based on fish tickets, which issue only
upon sale or transfer of fish, the 2004 and 2005 data was
extrapolated from observer estimates. Further, observer cover-
age varied between sectors. Id.
The Council disregarded the 2004 and 2005 data because
it considered it inequitable to favor the trawl CP sector, which
in response to high market demand for Pacific cod and in
anticipation of A85’s evaluation of usage, had been able,
thanks to its prior over-allocation, to increase steadily its
Pacific cod fishing, while other sectors which suffered from
under-allocation, remained limited to smaller usage. Thus, the
Council “considered [the 2004-2005] data . . . to illustrate
recent harvest trends,” but did not rely upon them in establish-
ing allocations.
Consistent with the problem statement, the Council allo-
cated higher than the average historical catch to those sectors
that would most benefit coastal Alaskan communities: the
small fixed gear sector, 77% of which is comprised of resi-
dents of coastal Alaskan communities, and the jig sector,
which uses coastal processing facilities. In justifying the non-
AFA trawl CP sector’s allocation, the Council also noted that
the trawl sectors had never “funded” allocation increases for
the entry-level small fixed gear CV sector above its historic
average, that CV sectors contribute more to the economy of
coastal communities than CP sectors (because of onshore pro-
cessing), and that CV sectors had suffered greater impacts
from restrictions to protect Stellar sea lions.
Re-allocations also occurred based on the need to preserve
a “directed cod” fishery for various sectors. The term “direct-
ed” fishery refers to whether vessels intend to catch that par-
ticular species of fish or whether the fish is caught
incidentally. Fish caught incidentally are known as “bycatch.”
Vessels previously would discard the dead or dying bycatch
back into the sea although some were kept for sale. Because
FISHERMEN’S FINEST v. LOCKE 1231
of the waste and detrimental environmental effects of this
practice, MSA National Standard 9 requires that bycatch be
minimized. 16 U.S.C. § 1851(a)(9). Accordingly, in 1997, the
NMFS required vessels to retain all, or specified amounts of,
pollock and Pacific cod, by adopting Amendment 49 for the
BSAIMA FMP. 62 Fed. Reg. 63, 880, 63, 890 (Dec. 3, 1997)
(codified at 50 C.F.R. § 679.27). In proposing A85, the Coun-
cil sought to allocate enough Pacific cod TAC to the AFA
trawl CP sector so it could maintain the “minimum necessary”
for a directed Pacific cod fishery. The Council was motivated
by the fact that the AFA trawl CP sector was efficient in its
Pacific cod fishing, with a higher percentage of its allocation
being used up by directed fishing. The Council also made the
decision to favor those with less bycatch by counting pre-
1997 historical catch data even though that data did not
include bycatch.
Fishermen’s contends that the North Pacific Council allo-
cated Pacific cod TAC to the AFA trawl CP sector as part of
an impermissible and arbitrary political compromise in order
to ensure that one sole vessel of that fleet, the Katie Ann, had
a directed cod fishery. Councilman Fuglvog expressed con-
cern about whether the AFA trawl CP sector allocation would
be sufficient to allow the Katie Ann to continue its directed
cod fishery. In response, Councilwoman Salveson stated that
“this action is intended to . . . establish allocation to better
reflect historic use by sector . . . not to provide for a directed
fishery for any one vessel.” Final allocations to the AFA trawl
CP sector were within the range calculated based on historic
use.
On February 7, 2007, the NMFS published its proposed
rule and request for comments. 72 Fed. Reg. at 5654. On Sep-
tember 4, 2007, it promulgated its final rule and published the
comments and responses. 72 Fed. Reg. at 50788. There were
numerous comments addressing the allocation of cod to non-
AFA trawl CPs. See, e.g., 72 Fed. Reg. at 50793 (Comment
1232 FISHERMEN’S FINEST v. LOCKE
3), 50795 (Comments 6 and 9), 50796 (Comment 11), 50798
(Comment 16).
On October 4, 2007, Fishermen’s filed this action in federal
court challenging A85 under the judicial review powers over
regulations promulgated under the MSA, including FMPs,
granted by the APA. 16 U.S.C. § 1855(f)(1) & (2). The dis-
trict court upheld Secretary’s decision in a summary judgment
order on December 5, 2008. It held that (1) A85’s allocations
were rationally connected to the objectives set forth in the
problem statement and resulted in a fair and equitable result
as required by National Standard 4; (2) the inclusion of the
1995-1997 years and exclusion of the 2004-2005 years in cal-
culating historical catch data was not a failure to consider the
best scientific information available under National Standard
2; (3) the allocation to the AFA trawl CP sector was not a
political compromise merely for the benefit of the Katie Ann;
and (4) the allocations did not create an adverse impact in vio-
lation of the AFA by robbing the non-AFA trawl CP sector
to benefit the AFA trawl CP sector. Fishermen’s has timely
appealed. This Court has jurisdiction under 28 U.S.C.
§§ 1291and 1294(1).
II
A
Fishermen’s contends that the Secretary violated National
Standard 2 and National Standard 4 in promulgating A85.
Further, Fishermen’s contends that A85 creates an adverse
impact on non-AFA vessels in violation of the AFA.
“This Court reviews a district court’s decision to grant
summary judgment de novo with all facts read in the light
most favorable to the non-moving party.” Yakutat, Inc. v.
Gutierrez, 407 F.3d 1054, 1066 (9th Cir. 2005)(quoting Cov-
ington v. Jefferson County, 358 F.3d 626, 641 n.22 (9th Cir.
2004)). In reviewing regulations promulgated under the
FISHERMEN’S FINEST v. LOCKE 1233
Magnuson Act, “our only function is to determine whether the
Secretary [of Commerce] ‘has considered the relevant factors
and articulated a rational connection between the facts found
and the choice made.’ ” Alliance Against IFQs v. Brown, 84
F.3d 343, 345 (9th Cir. 1996) (quoting Wash. Crab Produc-
ers, Inc. v. Mosbacher, 924 F.2d 1438, 1440-41) (9th Cir.
1990)). “We determine only if the Secretary acted in an arbi-
trary and capricious manner in promulgating such regula-
tions.” Alliance Against IFQs, 84 F.3d at 345. “Under the
APA, we will reverse the agency action only if the action is
arbitrary, capricious, an abuse of discretion, or otherwise con-
trary to law.” Lands Council v. Powell, 379 F.3d 738, 743
(9th Cir. 2004), amended by 395 F.3d 1019 (9th Cir. 2005).
B
[1] To be valid A85 must be consistent with the National
Standards presented in the Magnuson-Stevens Act. 16 U.S.C.
§ 1854; see Yakutat, 407 F.3d at 1058 (The Fishery Manage-
ment Plans . . . must be consistent with the “national stan-
dards” described in the Magnuson Act.”). The regulations
implementing National Standard 4 require that motives for
new allocations be “justified in terms of the objectives of the
FMP.” 50 C.F.R. § 600.325(c)(3)(i)(A). Fishermen’s argues
that, because A85 reduces the non-AFA trawl CP allocation
below Fishermen’s definition of “historical use,” the changed
quota fails to meet the stated objectives. Fishermen’s con-
trasts the problem statement, which points out that pre-A85
allocations did not reflect “actual dependency and use,” with
the new regulations that reduce their share below their actual
average usage in 2004 and 2005. 72 Fed. Reg. at 5657. Fish-
ermen’s narrowly focuses on this one clause at the expense of
a more comprehensive, coherent reading of the entire state-
ment. While the final problem statement does begin describ-
ing, among other concerns, a discrepancy between allocations
and actual use, it specifically provides that the basis for future
allocations “will be catch history” and other socioeconomic
considerations. 72 Fed. Reg. at 5657. Fishermen’s was allo-
1234 FISHERMEN’S FINEST v. LOCKE
cated an annual TAC that was the average of their historic
usage of Pacific cod from 1995 to 2003. In terms of socioeco-
nomic and community factors, their share was reduced in part
to fund the entry-level small fixed gear sector of coastal Alas-
kan residents.
[2] Fishermen’s also attempts a novel combination of
National Standard 4 of the MSA with 211(a) of the AFA.
Fishermen’s points out that National Standard 4 forbids
excessive privileges to one group while 211(a) forbids
adverse impacts caused by any unfair advantages to the AFA
vessels. Fishermen’s then would have us conclude that A85,
by shifting percentage points in its final allocation from the
non-AFA trawl CP sector to the AFA trawl CP sector, vio-
lated both. The Council, however, may under National Stan-
dard 4, “impose a hardship on one group if its outweighed by
the total benefits received by another group or groups.” Id.
§ 600.325(c)(3)(i)(B). As noted above, part of the reduction
was due to socioeconomic factors leading the Council to fund
sectors that favor growth for coastal Alaskan residents. Fur-
ther, whatever shift in percentage points that could be
“traced” from the non-AFA trawl CP sector to the AFA trawl
CP sector was rationally justified by the need to preserve the
more efficient directed cod fishery of the latter. As for 211(a),
we discuss it separately and do not believe there is any statu-
tory confluence that requires special treatment of 211(a) with
National Standard 4.
Fishermen’s attempts to combine the requirements of AFA
211(a) with National Standard 4, by claiming the NMFS was
required to analyze specifically any adverse impact A85
would have on the non-AFA trawl CP sector caused by bene-
fitting the AFA trawl CP sector. As explained below, how-
ever, if anything, A85 had an adverse impact on the AFA
trawl CP sector, thus, there can be no reasonable expectation
that the NMFS should analyse a non-existent harm.
[3] Fishermen’s has failed to demonstrate that the alloca-
tion, although disadvantageous to them, was not fair or equi-
FISHERMEN’S FINEST v. LOCKE 1235
table in furthering the beneficial objectives of the FMP. Thus,
A85 comports with National Standard 4.
[4] Fishermen’s makes a related argument that the NMFS
failed to analyze the impact of the allocations under National
Standard 4 by failing to consider its “potential” loss of a
directed cod fishery. The regulations state that “the Council
should make an initial estimate of the relative benefits and
hardships imposed by the allocation.” 50 C.F.R.
§ 600.325(c)(3)(i)(B). However, the EA/RIR/IFRA demon-
strates that the Council did consider the impact of the changes
on the non-AFA trawl CP sector. For example, the Council
considered the extent limitations on bycatch would prevent a
direct cod fishery for the trawl sector, and noted that separate
allowances would prevent the non-AFA trawl sector from
closing down directed cod fishing for the entire trawl sector.
Further, the responses to the comments published with the
final rule show that the NMFS determined that, even under a
“worst case scenario,” the non-AFA trawl CP sector would be
able to maintain a directed cod fishery. See 72 Fed. Reg. at
50799, 50801. The National Standards do not require any par-
ticular outcome with respect to allocations; rather, they pro-
vide a framework for the Council’s analysis. There is nothing
in the MSA that guarantees Fishermen’s a directed cod fish-
ery. Fishermen’s is to a certain extent a victim of its own suc-
cess, because the greater its operations for other fish species,
inevitably the greater its incidental bycatch of Pacific cod.
One of the BSAIMA FMP’s objectives under the MSA is
“conservation and management.” Accordingly, under
National Standard 9, the FMPs, and the amendments thereto,
must minimize bycatch. The Council is not tied down by the
need to allocate in order to preserve directed cod fisheries for
participants with high levels of bycatch. The Council fulfilled
its obligations under the framework by analyzing the impact
of the new allocations on the non-AFA trawl CP sector. Thus,
none of the Secretary’s actions on this issue were arbitrary or
capricious. Alliance Against IFQs, 84 F.3d at 345.
1236 FISHERMEN’S FINEST v. LOCKE
C
[5] Under National Standard 2, conservation and manage-
ment measures “shall be based upon the best scientific infor-
mation available,” 16 U.S.C. § 1851(a)(2), which, “includes,
but is not limited to, information of a biological, ecological,
economic, or social nature.” 50 C.F.R. § 600.315(b)(1). Fish-
ermen’s argues that the Council failed to consider the most
relevant data in developing the new allocations. Fishermen’s
asserts that the Council considered data that was too old and
no longer relevant to reallocation information, and failed to
consider the relevance of the most recent available data. Fish-
ermen’s further argues that instead of basing the decision on
“scientific analysis” it was an “arbitrary political compro-
mise.”
[6] Fishermen’s maintains that the older catch history data
analyzed by the Council was irrelevant. They argue that any
data collected before 1998 is particularly misleading because
catch regulations changed in 1998. In support, Fishermen’s
point out that in A80, a concurrent amendment designed to
reorganize all species fishing in the BSAIMA, pre-1998 data
was ignored because there was a concern the data would fail
to best “represent the traditional harvest patterns of the [A]80
sector.” 72 Fed. Reg. at 52688 (A80 Final Rule). The Council,
however, stated its rationale for including the older data in
A85. The year of 1995 was selected as a starting point
because it immediately followed the first Magnuson-Stevens
Act allocations. The Council acknowledged that there were
intervening events that may have changed the circumstances
of the allocations, in particular the 1998 AFA legislation and
2001 attempts to protect the Steller sea lion. For example, the
passing of the AFA legislation pushed the non-AFA trawl
sector into increased cod fishing. The AFA, however, pushed
all non-AFA Pacific cod participants into increased Pacific
cod use, not just Fishermen’s. The key difference is that
because Fishermen’s belonged to a sector with one of the
most significant over-allocations prior to A85, it was one of
FISHERMEN’S FINEST v. LOCKE 1237
the few who could increase its usage without being limited by
its allocation in response to the AFA. If the Council focused
exclusively on post 1999 data, it would benefit Fishermen’s
unfairly while ignoring long-term harvest trends for the indus-
try as a whole not just Fishermen’s sector.
[7] Further, the data Fishermen’s disputed was not the only
National Standard 2 data the Council was allowed to rely on
in making its decision, considering the objectives of the FMP.
The Council also made reallocations based on sociological
data, which pointed towards increasing allocations to the
small gear sector that consisted mainly of coastal Alaskan res-
idents.
[8] Finally, it is evident that the Council examined several
potential data sets before selecting the range including 1995
to 1998. Even with regards to the selection of the years in
question, the Council determined that a smaller set of years
would produce skewed results based on a too narrow view of
market demand for cod in those years. In other words,
although the AFA legislation and Stellar sea lion protection
measures were significant variables that did threaten to render
pre-1998 data misleading, the Council “justified its choice,”
as required by 50 C.F.R. § 600.315(b)(1), to include the pre-
1998 data because it believed a host of other variables were
influencing catch history and a more accurate representation
could only be reached by broadening the set of years to
include all years with comparable data since allocations
began. Ultimately, any selection of data inherently places one
party at a disadvantage; Fishermen’s has failed to demonstrate
how this selection of this data was arbitrary or capricious. The
Council stated a permissible rationale for including pre-1998
data and nothing in the record of the Council’s deliberations
on this issue appears capricious or contrary to the evidence.
See Yakutat, Inc., 407 F.3d at 1067 (Council “drew a rational
line” by omitting 1999 from analysis of which boats to
include in Pacific cod fishery because those boats omitted as
a result not dependent on that one species).
1238 FISHERMEN’S FINEST v. LOCKE
D
[9] Fishermen’s argues that the Council failed adequately
to consider data from the two most recent catch years (2004
and 2005). Fishermen’s relies on the requirement that FMP’s
must incorporate new information as it becomes available
where practicable. 50 C.F.R. § 600.315(b)(2). The Secretary
concluded that, “[t]he Council and NMFS considered more
recent (2004 and 2005) harvest data from the NMFS catch
accounting database in reviewing harvest history to illustrate
recent harvest trends as that information became available,
but it was not available in the same format as the data from
1995 through 2003.” See 72 Fed. Reg. at 50793-94 (Comment
3 and Response). For 1995 to 2003, the Council had data from
Federal Weekly Production Reports and Alaska Department
of Fish and Game fish tickets. The NMFS noted that using a
set based on retained harvest from 1995-2003 was more accu-
rate than using data from later years because the latter is
based on observer estimates. 72 Fed. Reg. at 50793. To use
observer data would be inequitable because certain sectors,
such as the AFA trawl CP group, are observed more carefully
than others who would have to rely on extrapolated data. Id.
In fact, fish tickets only became available in raw data form for
the 2004 and 2005 years in March 2006, a month prior to the
Council issuing its proposed allocations. Given the time
needed to process the information, and the fact that the Coun-
cil’s deliberations were coming to a close after more than two
years, incorporating the new information was not “practica-
ble” and so need not have been considered under National
Standard 2. See 50 C.F.R. § 600.315(b) (if new information
becomes available between initial drafting and NMFS review,
it “should be incorporated into the final FMP where practica-
ble.”) (emphasis added).
The Secretary also contends that the Council did take into
account data for 2004 and 2005, even if those numbers did not
form the basis for the final historical catch numbers. As a
review of the Secretarial Review Draft of A85 demonstrates,
FISHERMEN’S FINEST v. LOCKE 1239
data from 2004 and 2005 was analyzed. The Council noted
that the non-AFA trawl CP sector had a harvest share in 2004
that was greater than any other year. Id. at 273. However, the
NMFS noted that, despite this increase in harvest, the higher
2004 and 2005 numbers did not mean that the combined trawl
CP sector was catching its entire allocation. 72 Fed. Reg. at
50794. In part, the Council discounted this recent data
because of unusually high market demand for Pacific cod in
those years, as well as “the likelihood of competition for
Pacific cod among sectors in anticipation of this action.”
Because of its prior over-allocation, Fishermen’s belonged to
a sector that could increase its usage in response to these
incentives, unlike other sectors. The Secretary provided a
rational explanation for the Council’s action: the Council did
not wish to reward Fishermen’s sector for their prior over-
allocation by perpetuating it while telling the other sectors
they did not need bigger allocations because they had maxi-
mized their current allocations.
[10] The record shows that the Council also considered the
best available sociological data, which indicated that TAC
percentage needed to be subtracted from other sectors to ben-
efit the coastal Alaskan communities. The need to maintain
consistency in data and treat all sectors equally is an ample
justification for using the 1995-2003 data. It was not practica-
ble to include the 2004-2005 data. The Secretary’s decision in
this regard was neither arbitrary nor capricious.
E
[11] Fishermen’s point to the Council’s treatment of the
Katie Ann, an AFA trawl CP vessel, for the argument that
inappropriate political considerations interfered with rational
decision making. Regulations that are “a product of pure
political compromise” in the absence of scientific justification
will generally be viewed as arbitrary and capricious. Mid-
water Trawlers Co-operative v. Dep’t of Commerce, 282 F.3d
710, 720-21 (9th Cir. 2002) (specific allocation of fishing
1240 FISHERMEN’S FINEST v. LOCKE
rights to Indian tribe not based on scientific rationale in viola-
tion of MSA). While the Council had considered allocating
1.5% of the TAC to the AFA trawl CP sector, they increased
the quota to this sector to 2.3% based, in part, on the concern
that the Katie Ann would not be able to maintain its directed
cod fishery. In other words, absent an increased allocation,
ships like the Katie Ann would only be able to catch cod as
bycatch during their directed pollock fishery. A Council
member noted there were “negotiations and discussions” that
led to the increased allocation. Reading the record as a whole,
it is clear that the Council considered not just the Katie Ann
in the context of maintaining a directed cod fishery, but the
sector as a whole and its historic use. As the Secretary points
out, however, ample rational and scientific reasons supported
the final allocations, which reflected Fishermen’s historic
usage. In fact, the agency acted consistently with its original
position, which had always been to allocate the AFA trawl
sector between 0.9% and 3.7% and the non-AFA trawl CP
sector between 12.7% and 16.2%, based on historical usage.
Furthermore, the AFA trawl CP sector, with a much smaller
allocation than the non-AFA trawl CP sector, was managing
to maintain a directed cod fishery because it had less bycatch
as a proportion of its Pacific cod fishery. Under National
Standard 9, which requires bycatch to be minimized, the
Council’s decision to ensure the continuance of the directed
cod fishery had practical conservation and management
objectives, not political ones. Thus, political concerns did not
predominate as they did in Midwater Trawlers Co-operative,
282 F.3d at 720-21, where the final agency decision was pure
political compromise, as the agency did not engage in any sci-
entific analysis.
F
[12] The AFA requires that the Council shall manage the
BSAIMA in a way to protect non-AFA vessels from adverse
impacts of the directed pollock monopoly. 16 U.S.C. § 1851,
FISHERMEN’S FINEST v. LOCKE 1241
note, AFA 211(a).1 Fishermen’s claims A85 has such an
adverse impact because it “robs” the non-AFA trawl CP sec-
tor to benefit the AFA trawl CP sector. Before A85, the trawl
CPs were one sector allocated 23.5% of the TAC. See 72 Fed.
Reg. at 5659. The AFA itself protected the non-AFA trawl CP
sector by allocating to the AFA trawl CP sector a “sideboard”
limit of 6.1% of Pacific cod catch. AFA § 211(b)(2)(A). A85
effectively replaces this protection by splitting the two sectors
and allocating each a set allocation, with the non-AFA trawl
CP sector limited to 13.4% and the AFA trawl CP sector to
2.3%. The substance of Fishermen’s argument is that A85
causes “adverse impact” as defined in 211(a) because the his-
toric catch of the non-AFA sector was higher than its A85
allocation whereas the historic catch of the AFA sector was
lower than its A85 allocation. Fishermen’s argument that they
were injured in violation of 211(a) ignores the fact that 211(a)
as defined in the AFA permitted greater impact by the AFA
sector on the non-AFA sector than A85 effectuates. The AFA-
imposed sideboard permitted the AFA sector to fish for 26%2
of the total Pacific cod of the trawl CP sector, whereas of the
total post-A85 allocation, the AFA trawl CP sector had only
14.6%3 of the total. Thus, the AFA trawl CP sector’s sup-
posed encroachment on the non-AFA trawl CP sector was
actually greatly reduced by A85 as compared to the AFA
itself, which is the source of rights Fishermen’s would sup-
posedly have us rely on. The question is not whether the A85
limits on AFA vessels are less restrictive than historical
usage, but whether they are greater than the impact legally
1
Fishermen’s attempts to combine the requirements of AFA 211(a) with
National Standard 4, by claiming the NMFS was required to analyze spe-
cifically any adverse impact A85 would have on the non-AFA trawl CP
sector caused by benefitting the AFA trawl CP sector. As explained
below, however, if anything, A85 had an adverse impact on the AFA trawl
CP sector, thus, there can be no reasonable expectation that the NMFS
should analyse a non-existent harm.
2
6.1% divided by 23.5%.
3
2.3% divided by (2.3% + 13.4%).
1242 FISHERMEN’S FINEST v. LOCKE
allowed by the AFA. They are not. Hence, A85 does not run
afoul of the American Fisheries Act.
CONCLUSION
[13] We are persuaded that the Secretary did not act arbi-
trarily and capriciously in approving Amendment A85. As we
noted in Alliance, “[t]he Secretary is allowed, under [control-
ling precedent], to sacrifice the interest of some groups of
fishermen for the benefit as the Secretary sees it of the fishery
as a whole.” 84 F.3d at 350. Here the interests of Fishermen’s
were sacrificed for the benefit of the fishery as a whole, as the
Secretary favored sectors that benefitted coastal Alaskan resi-
dents, and selected data that would reduce prior unintended
favoritism to the non-AFA trawl CP sector, to which Fisher-
men’s belonged.
AFFIRMED.
CLIFTON, Circuit Judge, dissenting:
The American Fisheries Act of 1998 (“AFA”) granted a
lucrative monopoly in pollock fishing rights to 20 vessels
operating in the BSAIMA (described as “AFA trawl CP ves-
sels”). The AFA compensated fishing vessels not favored by
the pollock monopoly (“non-AFA vessels”) by charging the
North Pacific Council with protecting them from the monopo-
ly’s adverse effects. Specifically, the Council’s Fishery Man-
agement Plans (“FMPs”) must “protect other fisheries under
its jurisdiction and the participants in those fisheries, includ-
ing processors, from adverse impacts caused by this Act or
fishery cooperatives in the directed pollock fishery.” 16
U.S.C. § 1851, note, AFA § 211(a). I conclude that Amend-
ment 85 (“A85”) violates this protective mandate by directly
allocating Pacific cod to the AFA sector to the detriment of
the non-AFA trawl CP sector. Additionally, the Council’s use
FISHERMEN’S FINEST v. LOCKE 1243
of pre-AFA data to calculate “catch history” violates National
Standard 2 of the Magnuson-Stevens Act (“MSA”), a require-
ment that FMPs employ “the best scientific information avail-
able.” 16 U.S.C. § 1851(a)(2). As a result, I respectfully
dissent.
I. AFA § 211(a)
In A85, the Secretary and the Council abdicated their
responsibility to protect non-AFA vessels by granting the
already privileged AFA trawl CP sector, for the first time, a
direct allocation of the total authorized catch (“TAC”) of
Pacific cod. That allocation was made at the expense of,
among others, the non-AFA trawl CP sector, which of neces-
sity relies more heavily on Pacific cod after being pushed out
of the pollock fishery by the AFA.
Specifically, A85 grants the AFA trawl CP sector a direct
allocation of 2.3% of the Pacific cod TAC — a portion well
above that sector’s historic Pacific cod harvest. At the same
time, A85 reduces the non-AFA trawl CP sector’s allocation
to 13.4% of the Pacific cod TAC — a portion well below that
sector’s recent harvests and below even its historic average as
calculated by the Council. (As discussed below, there is rea-
son to question the Council’s calculation.) The ahistoric char-
acter of the new allocations calls into question the Council’s
professed goal for A85 of “better reflect[ing] historic use by
sector.” More importantly, by any reasonable measure the
new allocations adversely impact the non-AFA trawl CP sec-
tor at the same time that they benefit the sector already
favored with the pollock monopoly granted under the AFA.
The majority opinion seeks to rebut this assessment of
A85’s adverse impact on the non-AFA trawl CP sector by
comparing the 6.1% “sideboard” limit formerly imposed on
the AFA trawl CP sector’s Pacific cod harvest to the smaller
allocation made by A85 to the AFA sector. Supra at 1241.
That misinterprets the function of the sideboard limit, which
1244 FISHERMEN’S FINEST v. LOCKE
imposed a hard cap on the AFA trawl CP sector’s harvest
rather than granting it a direct allocation like the one the sec-
tor now enjoys under A85. The majority opinion’s statement
that “[t]he AFA-imposed sideboard permitted the AFA sector
to fish for 26% of the total Pacific cod [allocated to the com-
bined] trawl CP sector” is imprecise and misleading. Id.
Instead, the 6.1% sideboard allowed the AFA sector to har-
vest no more than 26% of the combined trawl CP sector’s
allocation; it did not actually guarantee the AFA sector any
fraction of the total trawl CP harvest. Prior to A85, the AFA
sector and the non-AFA trawl CP sector were treated as one
group, subject to a single allocation. As the Secretary
acknowledges, “[p]rior to A85, the non-AFA trawl CP sector
could theoretically [have] harvest[ed] the entire 23.5% alloca-
tion of the Pacific cod TAC that it shared with the AFA trawl
CP sector (because the AFA trawl CP sector’s 6.1% sideboard
was a limit rather than an exclusive allocation).”
In fact, the AFA sector never came close to harvesting
6.1% of the Pacific cod TAC. Between 1995 and 2003, the
years on which the Council based its reallocation, the AFA
sector’s average harvest was just 1.7% of the TAC. By con-
trast, the non-AFA CP trawl sector’s average harvest during
the 1995-2003 period was 13.6% of the TAC. The allocations
assigned to those sectors by A85 are 2.3% and 13.4%, respec-
tively. Thus, even using the range of years the Council relied
on to calculate “catch history” as the basis for comparison,
A85 assigned the AFA sector a share of the Pacific cod fish-
ery above historic levels while curtailing the non-AFA sec-
tor’s Pacific cod fishing rights below its historic share.
If attention is focused on the years since adoption of the
AFA, A85’s adverse impact on the non-AFA trawl CP sector
is even worse. In post-AFA years, between 1998 and 2003,
the AFA sector’s average harvest of Pacific cod was just
1.5%, substantially lower than A85’s allocation of 2.3%. Dur-
ing those years the non-AFA trawl CP sector harvested 15.7%
of TAC, yet A85 allocates only 13.4% to that group.
FISHERMEN’S FINEST v. LOCKE 1245
These numbers contradict the majority opinion’s conclu-
sion that “A85 had an adverse impact on the AFA trawl CP
sector” or that the non-AFA sector is complaining of a “non-
existent harm.” Supra at 1241 n.1. Instead, A85 grants the
favored AFA sector the additional boon of independence from
the formerly combined trawl CP sector’s Pacific cod alloca-
tion with a margin for expansion beyond its historic Pacific
cod harvest, and it inflicts on the non-AFA trawl CP sector an
unmitigated loss of the Pacific cod market share (both allo-
cated and actual) that sector cultivated in the years following
its exclusion by the AFA from the pollock fishery. In sum,
A85’s redistribution of the Pacific cod TAC imposes on the
non-AFA trawl CP section an adverse impact that § 211(a)
requires the Council to guard against.
II. The Relevant History
The Council adopted the purpose of “better reflect[ing] his-
toric use by sector” and declared “catch history” as one of
three bases for determining sector allocations. Having done
so, the Council was required by National Standard 2 to use
“the best scientific information available” in furtherance of its
stated goals. 16 U.S.C. § 1851(a)(2). Determining what time
period to consider as relevant history was obviously important
in evaluating historic use. The Council calculated catch his-
tory based on the years 1995 to 2003. That selection brings to
mind Mark Twain’s observation:
Figures often beguile me, particularly when I have
the arranging of them myself; in which case the
remark attributed to Disraeli would often apply with
justice and force: “There are three kinds of lies: lies,
damned lies and statistics.”1
1
Mark Twain, Chapters from My Autobiography, 185 North American
Review, No. DCXVIII., July 5, 1907, at 465, 471. There is doubt as to
whether the attribution of the saying to Disraeli is correct.
1246 FISHERMEN’S FINEST v. LOCKE
The AFA was adopted in 1998. Prior to that time, pollock
was not reserved to the chosen few fishing vessels. After the
AFA changed the rules of the game by granting the AFA sec-
tor its pollock monopoly, other fishermen were required to
focus on other species, notably including Pacific cod. To no
one’s surprise, in later years, when they couldn’t catch pol-
lock, they caught more cod. Yet the Council defined “catch
history” to include several years before the AFA changed the
rules.
The Council’s problem statement explained its reliance on
pre-AFA data by stating that
Consideration of just three or four recent years does
not show dependency of the sectors over time and
may be unduly biased because of increased market
demand for Pacific cod in recent years for some
products, potential decreased participation due to
BSAI crab rationalization, and the likelihood of
competition for Pacific cod among sectors in antici-
pation of this action.
But these post-AFA market stimuli should make pre-AFA
data less, not more, useful in reallocating Pacific cod going
forward. Most importantly, the passage of the AFA in 1998
forced the non-AFA trawl CP sector to expand its Pacific cod
operations to compensate for its exclusion from the pollock
fishery, as the TAC shares discussed above confirm. That sec-
tor is still excluded from the pollock fishery by the AFA. The
fishermen cannot go back to 1995-1998 circumstances. The
Council should not pretend that they can, but that is exactly
what A85 does. Relying on pre-AFA data to calculate the
catch history of post-AFA players, without making any effort
to adjust for the impact of the AFA, is manifestly unreason-
able.
The decisions of the Secretary and the Council are entitled
to great deference, but that deference is not unchecked. I
FISHERMEN’S FINEST v. LOCKE 1247
would hold that in curtailing the non-AFA vessels’ rights to
harvest Pacific cod while expanding those rights in AFA ves-
sels, the adoption of A85 violated § 211(a) of the AFA, and
in using pre-AFA data to calculate “historic” catch it violated
National Standard 2 of the MSA.