Oregon Trollers Ass'n v. Gutierrez , 452 F.3d 1104 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OREGON TROLLERS ASSOCIATION; 
SUISLAW FISHERMEN’S ASSOCIATION;
THOMAS HARRIS; JAMES MOORE; JIM
GAGNON; JOHN FRASER; GARTH
PORTEUR; STAN JONES; RUSSELL
OTT; DONALD JACOBS; GREAT
AMERICAN SMOKEHOUSE AND
SEAFOOD COMPANY; CAP’N ZACH’S
CRAB HOUSE; ZACK ROTWEIN; PAT
HOUCK; DAN MORRIS,
Plaintiffs-Appellants, No. 05-35970

v. D.C. No.
CARLOS M. GUTIERREZ, Secretary CV-05-06165-TMC
of the United States Department of OPINION
Commerce; NATIONAL MARINE
FISHERIES SERVICES; WILLIAM T.
HOGARTH, NMFS Director; D.
ROBERT LOHN, NMFS Regional
Director for the Northwest Region,
Defendants-Appellees,
YUROK TRIBE; HOOPA VALLEY
TRIBE,
Defendants-Intervenors-
Appellees.

Appeal from the United States District Court
for the District of Oregon
Thomas M. Coffin, Magistrate Judge, Presiding
Argued and Submitted
May 1, 2006—Portland, Oregon
7383
7384 OREGON TROLLERS v. GUTIERREZ
Filed July 6, 2006
Before: John T. Noonan, A. Wallace Tashima, and
William A. Fletcher, Circuit Judges.
Opinion by Judge William A. Fletcher
7388 OREGON TROLLERS v. GUTIERREZ
COUNSEL
Russell C. Brooks, Pacific Legal Foundation, Bellevue,
Washington; Ross Day, Oregonians in Action Legal Center,
Tigard, Oregon, for the appellants.
Mark R. Haag, U.S. Department of Justice, Washington, D.C.,
and James L. Sutherland, Office of the U.S. Attorney,
Eugene, Oregon, for the appellees.
Rob Roy Smith, Morisset Schlosser Jozwiak & McGaw, Seat-
tle, Washington, and Scott W. Williams, Curtis G. Berkey,
Alexander Berkey Williams & Weathers, Berkeley, Califor-
nia, for the defendants-intervenors-appellees.
OREGON TROLLERS v. GUTIERREZ 7389
OPINION
W. FLETCHER, Circuit Judge:
The 250-mile Klamath River originates in eastern Oregon
and empties into the Pacific Ocean at Crescent City, Califor-
nia. The Klamath River fall chinook, an anadromous salmon
species, begin life in the river’s upper reaches and tributaries,
either in hatcheries or in the wild. As juveniles the Klamath
chinook migrate to sea and spend much of their lives in the
Klamath Management Zone, an area off the coasts of Califor-
nia and Oregon. At age 3, 4, or 5, they return, usually to their
natal tributaries or hatcheries, to spawn and die.
In early 2005, the National Marine Fisheries Service
(“NMFS”) projected that a critically low number of Klamath
chinook would escape that season’s harvest to survive and to
spawn in the wild. To increase the projected number of wild-
spawning Klamath chinook, the NMFS adopted fishery man-
agement measures that substantially limited commercial and,
to a lesser extent, recreational fishing in the Klamath Manage-
ment Zone for 2005.
Plaintiffs, who include fishermen, fishing-related busi-
nesses, and fishing organizations, filed this action against the
NMFS and other governmental entities to challenge the 2005
management measures. Plaintiffs allege that the measures
conflict with a number of substantive and procedural require-
ments set forth in the Magnuson-Stevens Fishery Conserva-
tion and Management Act (“Magnuson Act”), 16 U.S.C.
§ 1801 et seq. The district court granted summary judgment
to defendants, and we affirm.
I. Introduction
The events at issue in this dispute unfolded in early 2005
against a complicated regulatory backdrop. We first describe
7390 OREGON TROLLERS v. GUTIERREZ
in general terms the regulation of Pacific fisheries under the
Magnuson Act. We then turn to the specific facts of this case.
A. Regulatory Background
1. The Magnuson Act and Fishery Management Plans
Congress passed the Magnuson Act in 1976 in order “to
take immediate action to conserve and manage the fishery
resources found off the coasts of the United States . . . .” 16
U.S.C. § 1801(b)(1). The statute established eight Regional
Fishery Management Councils, including the Pacific Fishery
Management Council (“PFMC” or “the Council”). Id.
§ 1852(a)(1)(F). The councils, composed of federal and state
officials as well as private experts appointed by the NMFS,
draft “fishery management plans” (“FMPs”), id. § 1852(h)(1),
that are designed to “achieve and maintain, on a continuing
basis, the optimum yield from each fishery[.]” Id.
§ 1801(b)(4). The councils also propose regulations imple-
menting these FMPs to the Secretary of Commerce. Id.
§ 1853(c). Acting through the NMFS, the Secretary reviews
FMPs and their implementing regulations for consistency
with the Magnuson Act, solicits public comment, and pub-
lishes final regulations in the Federal Register. Id.
§ 1854(a)(1)(B), (b)(1).
2. The Pacific Coast Salmon Plan
In 1977, the NMFS approved the Pacific Coast Salmon
Plan (“Pacific Plan”), an FMP for the Pacific salmon fish-
eries. See Pacific Plan 1 (revised Sept. 2003), available at
http://www.pcouncil.org/salmon/salfmp.html.1 From 1978
through 1983, the Council recommended annual amendments
to the Pacific Plan based on yearly “salmon abundance esti-
mates and social and economic factors affecting the fish-
1
All PFMC documents we refer to are available at the Council’s web-
site, http://www.pcouncil.org.
OREGON TROLLERS v. GUTIERREZ 7391
eries.” 49 Fed. Reg. 43679, 43679 (Oct. 31, 1984). This
process, which required notice-and-comment and other proce-
dures, proved “too cumbersome to allow for timely imple-
mentation of the annual regulations and efficient fishery
management.” Pacific Plan at 1. In 1984, the Council there-
fore proposed a “comprehensive framework amendment” to
the NMFS. Pacific Plan at 1. The 1984 amendment estab-
lished consistent terms for salmon regulation that would apply
every year, and it provided a “mechanism for making presea-
son and inseason adjustments in the regulations without
annual amendments to the FMP.” 49 Fed. Reg. at 43679.
Shortly thereafter, the NMFS approved the amended Pacific
Plan and promulgated implementing regulations, now codi-
fied at 50 C.F.R. §§ 660.401-411.
The amended Pacific Plan includes fixed measures, which
can only be changed through formal rulemaking, and allows
for flexible measures, which change from year-to-year based
on fishery conservation and management needs. See Nw.
Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1243 (9th Cir.
1988). “Fixed measures” include “the procedures and sched-
ules for making preseason and inseason adjustments to the
regulations.” “Flexible measures” include “determinations of
the annual allowable levels of ocean harvests . . . .” 49 Fed.
Reg. 32414, 32414-15 (Aug. 14, 1984) (proposed rule).
One of the most important features of the Pacific Plan’s
management of Klamath chinook is its “spawning escapement
goal.” “For natural stocks, the escapement goal is defined as
the number of spawning adults needed to produce the maxi-
mum number of juvenile salmon that, after incubation and
freshwater rearing, will out-migrate to the sea . . . . For hatch-
ery stocks, the escapement goal is that number of spawners
needed to meet a hatchery’s agreed-upon artificial production
plan.” United States v. Washington, 774 F.2d 1470, 1473 n.2
(9th Cir. 1985). The NMFS first adopted a spawning escape-
ment goal for the Klamath chinook in 1985. It required the
agency to design annual management measures such that, by
7392 OREGON TROLLERS v. GUTIERREZ
1998, 115,000 Klamath chinook, including 97,000 natural
spawners, would escape to spawn. See 50 Fed. Reg. 812, 813
(Jan. 7, 1985).
In December 1988, the Council, “[f]aced with declining run
sizes,” proposed an amendment to the Pacific Plan that would
set the escapement goal at “35 percent of the potential adults
from each brood of natural spawners, but no fewer than
35,000 naturally spawning adults in any given year.” Hatch-
ery spawners would not count toward this goal. The NMFS
adopted this amendment to the Pacific Plan and implemented
it in a regulation promulgated on May 4, 1989. The regulation
has remained in effect, with minor adjustments, since then.
See 54 Fed. Reg. 19185, 19194 (May 4, 1989); 54 Fed. Reg.
19798, 19800 (May 8, 1989) (lowering the percentage to 33-
34%).
3. Annual Management Measures
The process for setting the “flexible” annual management
measures for Pacific salmon fisheries begins in January, when
the Council releases a report describing abundance levels for
the previous year’s salmon stocks. See PFMC, Council Oper-
ating Procedure: Preseason Mgmt. Process (rev. Mar. 11,
2005). In February, the Council drafts Preseason Report I,
which makes “stock abundance forecasts and harvest and
escapement estimates [for the coming season] when recent
regulatory regimes are projected on current year abundance.”
Id. In early March, the Council meets in public to discuss var-
ious management options for the coming season in that year.
It then releases Preseason Report II, which proposes “not
more than three alternative regulatory options” to meet “FMP
management objectives.” Id. The Council holds public meet-
ings on the proposed salmon management options in late
March. After receiving comments from the public, the Coun-
cil chooses from among the options at its early April meeting.
Most of that meeting is open to the public. See Pacific Plan
at 9-1. The Council then forwards its proposed management
OREGON TROLLERS v. GUTIERREZ 7393
measures to the NMFS for final approval. Annual manage-
ment measures for the Pacific salmon fisheries are published
in final form in the Federal Register in early May.
B. Klamath Chinook and 2005 Management Measures
Klamath River salmon have suffered dramatically in recent
years. In the spring of 2002, thousands of juvenile salmon
died in the river before reaching the ocean. That fall, 34,000
mature chinook, coho, and steelhead died in the river’s lower
20 miles as they tried to swim upstream. The proliferation of
a salmon parasite, exacerbated by low water levels caused by
drought and irrigation use, may have caused this mass fish
kill. See U.S. Fish & Wildlife Serv., Klamath River Fish Die-
Off September 2002: Causative Factors of Mortality, Exec.
Summary at ii (Nov. 2003), available at http://www.fws.gov/
sacramento/ea.
Problems continued in 2004 and 2005. In its Review of
2004 Ocean Salmon Fisheries, published in early 2005
(“2004 Review”), the Council reported that the Klamath River
run after the 2004 fishing season consisted of 79,000 return-
ing adult chinook, or about 20,000 fewer than its preseason
estimate. Of these, only 24,300 were natural spawners. 2004
Review at 35. Predictions for the 2005 postseason run, when
juvenile salmon that had survived the 2002 die-off would
return to spawn, were even more dire. Preseason Report I,
released in February 2005, concluded that “a repeat of [the
2004 management measures] would be expected to result in
fewer than 35,000 natural area adult spawners, and thus, fail
to meet the minimum spawner requirement.” 2005 Preseason
Report I at 23.
The Council met from March 6 to 11, 2005, to develop pro-
posed options for annual management measures under the
Pacific Plan. These proposals appeared in Preseason Report
II. Each proposal recommended drastically restricted fishing
in the Klamath Management Zone.
7394 OREGON TROLLERS v. GUTIERREZ
After public hearings in late March, the Council met in
early April to adopt its final 2005 recommendations. On the
table was a proposal to lower the 35,000 natural spawner
escapement floor for Klamath chinook by 3,000 fish in order
to spare fishermen a highly restricted season. The proposal
was seriously considered by the Council. One councilmember
observed that “[m]anaging below the floor could result in
overfishing and would require [an] emergency rule.” Another
insisted that “the risk of reducing the escapement by 3,000
fish was minimal,” while a third stated that, in his view, the
risk “was worth the potential economic benefit to the fish-
eries.” A fourth councilmember responded that “the manage-
ment doctrine for the Klamath system was based on the
Council’s Salmon FMP.” “[I]f the Council moved away from
its mandates,” he argued, “it would contribute to the problems
in the Klamath system, which was not in the long-term inter-
est of the Council and the fishermen.” The motion to recom-
mend a lowered escapement floor for Klamath chinook
natural spawners from the 35,000 number established in 1989
failed by a vote of 7 to 7.
The Council formally proposed its 2005 management mea-
sures in Preseason Report III, released shortly after the April
meeting. The report acknowledged that its recommended
“commercial fishery measures” for the Klamath Management
Zone “are substantially more restrictive than in 2004.” 2005
Preseason Report III at 2. For example, commercial fishing
in the Oregon portion of the Klamath Management Zone
would be closed for all of May, June, July, and August. Id. at
3. The Report also acknowledged that recommended “recre-
ational fishery measures are somewhat more restrictive than
in 2004.” Id.
The Council forwarded its proposed management measures
to the NMFS. An April 22 NMFS memorandum observed that
“during the process of developing final management recom-
mendations for 2005 there was controversy relating to
achievement of the Klamath River fall Chinook escapement
OREGON TROLLERS v. GUTIERREZ 7395
floor of 35,000 . . . .” It noted that some commercial fisher-
men had appeared at the April Council meeting to propose
that it “consider increasing harvest beyond what was devel-
oped” in Preseason Report II. The memorandum recognized
that approval of this proposal would have resulted in returning
Klamath River chinook natural spawners below the 35,000
fish floor, and stated that “an emergency rule would have
been required” to allow for this deviation from the 1989 regu-
lation amending the Pacific Plan. Another NMFS memoran-
dum observed that the restricted season recommended by the
Council would yield an expected $33.7 million in income for
Pacific salmon fisheries, “down 28% from the 2004 value of
$46.8 million, and 74% below the 1976-1990 average.”
Declaring that projected shortfalls in numbers of returning
salmon made “certain reductions” necessary “in order to
achieve the conservation objective of 35,000 natural Klamath
River fall Chinook adult spawners,” the NMFS adopted the
Council’s recommendations without change in an action pub-
lished in the Federal Register on May 4, 2005. 70 Fed. Reg.
23054, 23055 (May 4, 2005). The NMFS did not open a pub-
lic comment period before publishing its action. Rather, it
invoked the Administrative Procedure Act’s (“APA”) “good
cause” exception based on the need to get the action finalized
before opening of the fishing season. See 5 U.S.C.
§ 553(b)(B).
There is little doubt that the restricted salmon fishing sea-
son under the 2005 management measures imposed signifi-
cant hardship on Pacific fishing communities. One estimate
pegged the loss caused to commercial fishermen and related
businesses at $40 million. See Stacy Finz & Glen Martin,
Imagine a Year Without Local Salmon, S.F. Chron., Mar. 3,
2006, at A1. Several of the individual plaintiffs in this suit
attested to the threats the 2005 management measures posed
to their livelihoods.
7396 OREGON TROLLERS v. GUTIERREZ
C. Proceedings Below
Plaintiffs commenced this suit within 30 days of the publi-
cation of the 2005 management measures in the Federal Reg-
ister. Their suit has two parts. First, and most important, they
object to the 1989 regulation establishing the 35,000 natural
spawner escapement floor for Klamath chinook, under which
the 2005 action was taken. Second, they object to the 2005
action on several bases that are independent of the 1989 regu-
lation.
The Hoopa Valley and Yurok Tribes, whose reservations
straddle the Klamath River and its tributaries, intervened in
support of the NMFS. In a thorough and carefully reasoned
opinion, the district court granted the defendants’ motion for
summary judgment. See generally Oregon Trollers Ass’n v.
Gutierrez, Civ. No. 05-6165, 2005 U.S. Dist. LEXIS 34084
(D. Or. Sept. 8, 2005). The court concluded that plaintiffs’
attacks on the 1989 regulation establishing the 35,000 natural
spawner escapement floor were barred by the 30-day limita-
tions period of the Magnuson Act. See 16 U.S.C. § 1855(f)(1).
In the alternative, the district court rejected plaintiffs’ claims
on the merits, holding that the escapement floor reflected “an
eminently reasonable consideration when managing a fishery
to maintain its long-term viability.” 2005 U.S. Dist. LEXIS
34084, at *31. The district court also upheld the 2005 man-
agement measures against plaintiffs’ other objections.
On appeal, plaintiffs challenge every aspect of the district
court’s decision. We disagree with the district court’s conclu-
sion that the plaintiffs’ attack on the 1989 regulation is barred
by the thirty-day statute of limitations contained in 16 U.S.C.
§ 1855(f)(1). However, we agree with the district court on the
merits. We therefore affirm.
II. Statute of Limitations
We review a district court’s statute of limitations determi-
nation de novo. Oja v. U.S. Army Corps of Eng’rs, 440 F.3d
OREGON TROLLERS v. GUTIERREZ 7397
1122, 1127 (9th Cir. 2006). As originally drafted, the Magnu-
son Act provided that a plaintiff was required to bring suit to
challenge a “regulation” within 30 days of its promulgation.
Pub. L. No. 94-265, Title III, § 305(d), 90 Stat. 354 (1976).
Congress amended this limitations period in 1990. As now set
forth in § 1855(f), it reads as follows:
(1) Regulations promulgated by the Secretary
under this chapter and actions described in para-
graph (2) shall be subject to judicial review . . . if a
petition for such review is filed within 30 days after
the date on which the regulations are promulgated or
the action is published in the Federal Register . . .
(2) The actions referred to in paragraph (1) are
actions that are taken by the Secretary under regula-
tions which implement a fishery management plan,
including but not limited to actions that establish the
date of closure of a fishery to commercial or recre-
ational fishing.
16 U.S.C. § 1855(f) (emphasis added to indicate language
added by 1990 amendment).
Three of plaintiffs’ six causes of action challenge the
35,000 natural spawner escapement floor as inconsistent with
the Magnuson Act. The NMFS added the escapement floor to
the Pacific Plan and its implementing regulations in 1989.
Defendants contend that under § 1855(f)(1) plaintiffs should
have filed their challenge within thirty days of the promulga-
tion of that regulation, and that their suit is therefore sixteen
years too late. Plaintiffs in response argue, inter alia, that the
1990 amendment to § 1855(f)(1) renders their challenge to the
1989 regulation timely. For the reasons given below, we agree
with plaintiffs.
[1] Before 1990, the Magnuson Act only allowed judicial
review of “regulations.” A challenge to a “regulation” had to
7398 OREGON TROLLERS v. GUTIERREZ
be filed within thirty days of its promulgation. If § 1855(f)(1)
were still in its original form, plaintiffs’ claim, brought in
June 2005, would be clearly time-barred because the NMFS
promulgated the regulation implementing the 35,000 natural
spawner escapement floor on May 4, 1989. See 54 Fed. Reg.
at 19194.
The Fourth Circuit addressed the pre-1990 version of
§ 1855(f)(1) in Kramer v. Mosbacher, 878 F.2d 134 (4th Cir.
1989). There, the Secretary of Commerce promulgated a regu-
lation establishing a 2.6 million pound limit for the 1988-89
king mackerel season on July 8, 1988. On October 14, 1988,
the Secretary declared that king mackerel were overfished and
announced that he would close the recreational fishing season
on October 17. On November 18, he announced that the com-
mercial fishing season would close on November 23. On
November 10, plaintiffs sued to compel the Secretary to dou-
ble the total allowable catch of 2.6 million pounds for the
1988 season. Id. at 135. They argued that the 30-day limita-
tions period for challenging 2.6 million pound limit did not
commence until October 14, when the Secretary announced
his intention to close the fishery, rather than on July 8, when
he adopted the underlying regulation setting the total catch
limit. Id. at 137.
The Fourth Circuit concluded that “the thirty day limit
commences at the time the regulations are published and that
this limit is to be strictly construed.” 878 F.2d at 137. The
court held that “the Secretary is required by the regulations to
close a fishery when its quota is reached . . . . As a result,
catch limits are in fact put into operation on the date of the
regulation’s publication, and not at some later time.” Id. (cita-
tion omitted) (emphasis in original). Because the suit was
filed four months after the regulation’s promulgation on July
8, the court concluded that it was untimely. Id.
Our case mirrors Kramer. If we were to apply § 1855(f)(1)
as it existed before its 1990 amendment, we would conclude
OREGON TROLLERS v. GUTIERREZ 7399
that the statute of limitations for challenging the regulation
establishing the 35,000 natural spawner escapement floor
expired in June of 1989, thirty days after the promulgation of
that regulation. However, Congress amended § 1855(f)(1) in
1990 specifically in order to change the result in Kramer. See
Fishery Conservation Amendments of 1990, Pub. L. No. 101-
627, § 111, 104 Stat. 4436, 4452-53. The House Report
makes this intention plain, stating that the 1990 amendment
“is a direct response to a portion of the decision of the Fourth
Circuit Court of Appeals in Kramer . . . .” H.R. Rep. No. 101-
393, at 28 (1990).
[2] The text of the amended § 1855(f)(1) provides that a
plaintiff may challenge both an action and a regulation under
which the action is taken so long as the suit is filed within
thirty days of the action’s publication in the Federal Register.
Section 1855(f)(1) states that “[r]egulations . . . and actions
. . . shall be subject to judicial review” if a petition for review
is filed “within 30 days after the date on which the regulations
are promulgated or the action is published in the Federal Reg-
ister[.]” The conjunctive “and” — italicized above — indi-
cates that both regulations and actions are reviewable in a
timely filed petition. See Dawson v. City of Seattle, 435 F.3d
1054, 1063 (9th Cir. 2006) (describing the plain meaning of
“and”). The disjunctive “or” — also italicized above — indi-
cates that a petition is timely if it is filed within thirty days of
either promulgation of the regulation or publication of the
action. See United States v. Tucor Int’l, Inc., 238 F.3d 1171,
1179 (9th Cir. 2001) (interpreting the plain meaning of “or”).
Thus, as a straightforward textual matter, a petition filed
within 30 days of the publication of an action may challenge
both the action and the regulation under which the action is
taken.
If additional evidence were needed, the legislative history
of the 1990 amendment makes clear that this reading reflects
the intent of Congress. The Senate Report accompanying the
amendment stated that an affected party is unlikely to chal-
7400 OREGON TROLLERS v. GUTIERREZ
lenge a regulation until the regulation has a discernable practi-
cal application — that is, until the agency takes an action
under the regulation that has a material adverse effect on that
party. The short limitations period in the pre-1990 statute,
however, made such challenges untimely:
[A] substantial period may lapse between the time a
regulation to implement a fishery management plan
is published and the time action is taken by the Sec-
retary pursuant to the regulation. In many instances,
it is only when such an action is taken that partici-
pants in the fishery can assess whether a petition for
judicial review is necessary. The time lapse between
publication o[f] a regulation and Secretarial action
may deny individuals the opportunity to challenge
regulations at the point in time when they can deter-
mine that such a challenge is necessary.
S. Rep. No. 101-414, reprinted in 1990 U.S.C.C.A.N. 6276,
6298 (emphasis added). According to the Report, the 1990
amendment would remedy this problem by “allow[ing] a chal-
lenge within 30 days of the time that a Secretarial action is
published.” Id.
The House Report made the same point:
Under current law, a management plan or regulation
can only be challenged in court within 30 days after
publication in the Federal Register. Since some man-
agement regulations are prospective, this prevents
interested parties from challenging those regulations
at the time they are actually implemented. The
amendments made by this subsection will allow a
challenge within 30 days of the time that a regulation
is implemented.
H. R. Rep. No. 101-393, at 28 (1990). The amendment’s
sponsor in the House, Representative Jones, added his voice
OREGON TROLLERS v. GUTIERREZ 7401
to this chorus. He stated that the amendment would “permit[ ]
suit” to challenge a regulation “either when initial manage-
ment plan regulations are issued or when implementing
actions are put into effect.” 136 Cong. Rec. H229-06, H240
(Feb. 6, 1990) (statement of Rep. Jones).
[3] Plaintiffs filed suit within thirty days of the publication
of the 2005 management measures. Under our reading of
§ 1855(f) as amended, the publication of these measures was
an “action” within the meaning of the statute. Therefore,
plaintiffs had thirty days to attack both the action and the
1989 regulation under which the action was taken. The gov-
ernment makes three arguments to avoid this result. None is
persuasive.
First, the government argues that plaintiffs waived an argu-
ment based on the 1990 amendment to § 1855(f)(1) because
they never raised it in the district court. This is not, strictly
speaking, true. Plaintiffs did raise this argument, although
they did so only during oral argument on summary judgment.
To the extent that we need to exercise our discretion to
address this otherwise tardy argument, we are willing to exer-
cise it in this case. Because plaintiffs’ argument raises a
purely legal issue whose resolution requires no further factual
development, and because the issue would otherwise reappear
in identical form the next time plaintiffs challenge annual
management measures, we believe it appropriate to address
this issue now. See A-1 Ambulance Serv., Inc. v. County of
Monterey, 90 F.3d 333, 339 (9th Cir. 1996).
Second, the government argues that our earlier holding in
Norbird Fisheries, Inc. v. Nat’l Marine Fisheries Serv., 112
F.3d 414 (9th Cir. 1997), compels us to hold that plaintiffs’
challenge to the 1989 regulation is untimely. The government
has misread our analysis in Norbird. The entirety of our anal-
ysis of § 1855(f)(1) in that case was as follows:
Regulations promulgated by the Secretary under the
Magnuson Act are “subject to judicial review” in
7402 OREGON TROLLERS v. GUTIERREZ
accordance with the Administrative Procedure Act,
5 U.S.C. § 701 et seq., “if a petition for such review
is filed within 30 days after the date on which the
regulations are promulgated.” 16 U.S.C.
§ 1855(f)(1). A separate section of the Magnuson
Act confers jurisdiction on the district court “over
any case or controversy arising under the provisions
of this chapter.” 16 U.S.C. § 1861(d). This latter pro-
vision is to be read in conjunction with the provision
governing judicial review of the regulations. That
provision, § 1855(f)(1), deprives the district court of
jurisdiction to hear an attack on the regulations if
review is not sought within 30 days of their promul-
gation. Kramer v. Mosbacher, 878 F.2d 134, 136-37
(4th Cir. 1989).
112 F.3d at 416. As this passage shows, our analysis in Nor-
bird focused only on a challenge brought to a “regulation”
under § 1855(f)(1). It did not address a challenge brought to
an “action,” as distinct from a “regulation.” Our citation to
Kramer underscores this exclusive focus on a “regulation.”
The 1990 amendment to § 1855(f)(1), specifically designed to
overrule the Fourth Circuit’s decision in Kramer, relaxed the
statute of limitations by allowing a challenge to an “action”
taken under a “regulation.” We did not analyze in Norbird the
new provision in § 1855(f)(1) allowing challenges to an “ac-
tion.”
Third, and finally, the government argues that plaintiffs’
challenge to the 2005 management measures is a challenge to
a “regulation,” not to an “action.” The government has misun-
derstood the meaning of “action” as that term is used in
§ 1855(f)(1) and defined in § 1855(f)(2). “Actions” are
defined in § 1855(f)(2) as “actions that are taken by the Secre-
tary under regulations which implement a fishery manage-
ment plan, including but not limited to actions that establish
the date of closure of a fishery to commercial or recreational
OREGON TROLLERS v. GUTIERREZ 7403
fishing.” There can hardly be a better fit between the 2005
management measures and this definition.
The 2005 management measures “establish the date of clo-
sure of a fishery to commercial or recreational fishing” by
closing both commercial and recreational fishing for specified
periods in specified areas in the Klamath Management Zone.
Moreover, the 2005 management measures “are taken . . .
under [a] regulation[ ] which implement[s] a fishery manage-
ment plan.” The regulations implementing the Pacific Plan are
set forth at 50 C.F.R. §§ 660.401-411. The regulation in ques-
tion — the 1989 amendment to the Pacific Plan adding the
escapement floor — was initially (and for several years there-
after) expressly included in the Code of Federal Regulations.
See 50 C.F.R. § 661 Appx. pt. IV(a) (1989); 50 C.F.R.
§ 660.410(a) (1996). In 2000, the express mention of the
35,000 natural spawner escapement floor was removed from
the code, see 65 Fed. Reg. 63047, 63050 (2000), but it
remains incorporated by reference. 50 C.F.R. § 660.410(a)
(2005) (providing that “conservation objectives are summa-
rized in Table 3-1 of the Pacific Coast Salmon Plan”); Pacific
Plan at 3-9 (Table 3-1, describing 35,000 natural spawner
escapement floor). Thus, the escapement goal is part of the
regulations that implement the FMP at issue.
The NMFS adopted the 2005 management measures by fol-
lowing the process the Pacific Plan’s implementing regula-
tions prescribes for “actions.” Section 660.408, entitled
“Annual actions,” provides that the “NMFS will annually
establish . . . management specifications . . . by publishing the
action in the Federal Register under § 660.411.” 50 C.F.R.
§ 660.408(a) (emphasis added). That section further states that
“[m]anagement specifications are set forth in paragraphs (b)
through (n) of this section.” Id. Paragraph (h) is entitled “Sea-
sons” and provides, in part, that “[c]ommercial seasons will
be established or modified taking into account . . . protection
of depressed stocks present in the fishing areas.” Id.
§ 660.408(h)(2). Thus, management measures that set a sea-
7404 OREGON TROLLERS v. GUTIERREZ
son’s length are “management specifications,” which in turn
are “actions.”
Finally, the NMFS finalized and published the 2005 man-
agement measures pursuant to § 660.411, the mechanism
specified in § 660.408 for the publication of “actions.” Sec-
tion 660.411 states that “[a]nnual and certain other actions . . .
will be implemented by an action published in the Federal
Register . . . .” 50 C.F.R. § 660.411(a) (emphasis added). The
regulation sets forth a “good cause” exception to the notice-
and-comment requirement that otherwise applies to “any
action.” Id. § 660.411(b). When it published the 2005 man-
agement measures in the Federal Register, the NMFS invoked
§ 660.411 and its “good cause” exception. See 70 Fed. Reg.
at 23063.
It is not our job to determine whether the statute of limita-
tions, as it now operates under § 1855(f)(1), is unwise, unfair,
or unworkable. That job belongs to Congress. Our task is to
interpret the statute. Applying our reading of its plain terms,
the 2005 management measures’ publication triggered a 30-
day period during which plaintiffs could challenge the 1989
regulation establishing the 35,000 natural spawner escape-
ment floor.
III. Merits
A. Standard of Review
We now turn to the merits of plaintiffs’ claims. We review
the NMFS’s construction of the Magnuson Act under the
familiar test set forth in Chevron, U.S.A. Inc. v. NRDC, Inc.,
467 U.S. 837 (1984). See NRDC, Inc. v. Nat’l Marine Fish-
eries Serv., 421 F.3d 872, 878 (9th Cir. 2005). We first con-
sider “whether Congress has directly spoken to the precise
question at issue. If the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency, must
give effect to the unambiguously expressed intent of Con-
OREGON TROLLERS v. GUTIERREZ 7405
gress.” Chevron, 467 U.S. at 842-43. However, “if the statute
is silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency’s answer is based
on a permissible construction of the statute.” Id. at 843. So
long as the agency’s construction is reasonably consistent
with the statute, we defer to it. Id.; see also Pronsolino v.
Nastri, 291 F.3d 1123, 1131 (9th Cir. 2002). This test is satis-
fied if the agency’s interpretation “reflects a plausible con-
struction of the statute’s plain language and does not
otherwise conflict with Congress’ expressed intent.” Rust v.
Sullivan, 500 U.S. 173, 183 (1991).
The Magnuson Act adopts the APA’s standard for judicial
review of agency action set forth in 5 U.S.C. § 706(2)(A). 16
U.S.C. § 1855(f)(1). We set aside an agency’s regulations if
they are “arbitrary, capricious, an abuse of discretion, or oth-
erwise not in accordance with law[.]” 5 U.S.C. § 706(2)(A).
“[T]he agency must examine the relevant data and articulate
a satisfactory explanation for its action including a rational
connection between the facts found and the choice made.”
Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983) (internal quotation omitted).
B. Attacks on the 1989 Regulation
Three of plaintiffs’ six claims attack the 1989 regulation
establishing the 35,000 natural spawner escapement floor.
Plaintiffs claim (1) that the regulation is inconsistent with the
Magnuson Act’s definition of a “stock of fish” under 16
U.S.C. § 1802(37); (2) that it is inconsistent with the “national
standard” under 16 U.S.C. § 1851(a)(2) requiring that man-
agement measures “be based upon the best scientific informa-
tion available;” and (3) that it is inconsistent with the
“national standard” under 16 U.S.C. § 1851(a)(3) requiring
that, “[t]o the extent practicable, an individual stock of fish
shall be managed as a unit.” We address these claims in turn.
7406 OREGON TROLLERS v. GUTIERREZ
1. “Stock of Fish” under the Magnuson Act
Plaintiffs’ primary claim is that the Magnuson Act forbids
the NMFS to distinguish between natural and hatchery spawn-
ers for the purposes of Klamath chinook management and
conservation. In the view of plaintiffs, the NMFS must count
hatchery spawners towards any escapement goal for Klamath
chinook. If this were required, an escapement goal would be
satisfied much more easily with less restrictive management
measures. The practical impact of their argument, plaintiffs
hope, is that fishermen would be allowed to catch more
salmon in the Klamath Management Zone.
The 1989 regulation, setting a 35,000 natural spawner
escapement floor, is designed to ensure that a certain number
of naturally spawning fish survive, not that a certain number
of naturally spawned fish survive. There is substantial overlap
between the categories of salmon spawning in the wild (natu-
rally spawning) and salmon born in the wild (naturally
spawned), but the categories are not identical. Some hatchery-
born salmon will spawn in the wild, and some salmon born in
the wild will spawn in a hatchery. Consistent with the 1989
regulation, the Council defines natural spawners as “age-three
or older fall chinook that spawn outside of the hatchery envi-
ronment, regardless of their origin.” Ocean Abundance Pro-
jections and Prospective Harvest Levels for Klamath River
Fall Chinook, 2005 Season, at 2 (Feb. 2005), available at
http://www.pcouncil.org.
Plaintiffs contend that the categories of naturally spawning
and hatchery spawning Klamath chinook are part of the same
“stock of fish” under the Magnuson Act. In their view, the
NMFS may not manage members of the same “stock of fish”
separately, or treat them differently for conservation purposes.
For the reasons that follow, we disagree.
[4] A “fishery” is defined under the Magnuson Act as
OREGON TROLLERS v. GUTIERREZ 7407
(A) one or more stocks of fish which can be
treated as a unit for purposes of conservation and
management and which are identified on the basis of
geographical, scientific, technical, recreational, and
economic characteristics; and
(B) any fishing for such stocks.
16 U.S.C. § 1802(13) (emphasis added). A “stock of fish” is
“a species, subspecies, geographical grouping or other cate-
gory of fish capable of management as a unit.” Id. § 1802(37)
(emphasis added).
Plaintiffs make two arguments why naturally spawning
Klamath chinook are not a separate “stock of fish” within the
meaning of § 1802(37). First, they point out that natural and
hatchery spawners swim side-by-side in the years between
their departure from the river as juveniles and their return as
adults. They also point out that the 2005 management mea-
sures, in their effort to meet the 35,000 natural spawner
escapement floor, limit the overall catch of chinook without
distinguishing between natural and hatchery spawners. They
argue from these two undisputed facts that natural spawning
Klamath chinook are not a “category of fish capable of being
managed as a unit” within the meaning of § 1802(37) and are
hence not a “stock of fish.”
[5] We see nothing in the Magnuson Act to compel this
understanding of the term “stock.” A “category” is “any of
several fundamental and distinct classes to which entities or
concepts belong,” or “a division within a system of classifica-
tion.” Merriam Webster’s Collegiate Dictionary 180 (10th ed.
1998); see also Aid Ass’n for Lutherans v. USPS, 321 F.3d
1166, 1176 (D.C. Cir. 2003) (considering dictionary defini-
tion to determine if agency’s interpretation of a statute is rea-
sonable). There is nothing in the Act to suggest that natural
spawners are not a “division” or “distinct class,” and hence a
“category,” of Klamath chinook.
7408 OREGON TROLLERS v. GUTIERREZ
[6] The term “stock” is commonly used and generally
understood in fisheries management to allow a distinction
between natural and hatchery spawners. The NMFS routinely
distinguishes between natural and hatchery stocks in other
regulatory contexts. See, e.g., 70 Fed. Reg. 37204, 37208
(June 28, 2005) (adopting hatchery policy under ESA). Simi-
larly, a nonpartisan group of scientists established by Con-
gress to propose hatchery policy differentiates between
“hatchery stock” and “natural stock” on a regular basis. See,
e.g., Hatchery Scientific Review Group, Hatchery Reform:
Principles and Recommendations, at 17 (Apr. 2004); Hatch-
ery Scientific Review Group, Hatchery Reform: Report to
Congress, at 35 (Mar. 2006);2 Hatchery Scientific Review
Group, Hatchery Reform in Washington State: Principles and
Emerging Issues, Fisheries Magazine, June 2005, at 12.
[7] Nor does the phrase “capable of management as a unit”
preclude a distinction between natural and hatchery spawners.
The NMFS has determined that “the choice of a management
unit” may be decided on a number of different grounds; it
“depends on the focus of the FMP’s objectives, and may be
organized around biological, geographic, economic, technical,
social, or ecological perspectives.” 50 C.F.R. § 600.320(d)(1).
This host of possible bases for choosing a “management unit”
indicates the term’s flexibility. Even assuming that the NMFS
managed natural and hatchery spawners separately, plaintiffs
do not identify anything in the statute or related regulations
that would draw the line for the purposes of defining the
appropriate “unit” at the distinction between natural and
hatchery spawners.
We also note that although the Magnuson Act does not
expressly distinguish between natural and hatchery spawners,
a closely related statute does. The Trinity River Basin Fish
and Wildlife Management Reauthorization Act of 1996, Pub.
2
The Hatchery Scientific Reform Group’s reports are available at http://
www.lltk.org.
OREGON TROLLERS v. GUTIERREZ 7409
L. No. 104-143, 110 Stat. 1338, a statute that regulates fish-
eries in one of the Klamath River’s main tributaries, refers to
“naturally reproducing anadromous fish stocks.” Id. § 3, 110
Stat. 1339. The Senate Report on the statute, discussing a
Trinity River hatchery, noted that support for the hatchery
should “not impair[ ] efforts to restore and maintain naturally
reproducing anadramous [sic] fish stocks . . . .” S. Rep. No.
104-253, at 3 (1996). This clear intent to distinguish between
natural and hatchery fish sheds light on Congress’s wishes for
the Magnuson Act. See Jett v. Dallas Indep. Sch. Dist., 491
U.S. 701, 738-39 (1989) (Scalia, J., concurring) (declaring
that it is a “rudimentary principle[ ] of construction” that
“statutes dealing with similar subjects should be interpreted
harmoniously”).
[8] In short, we see nothing in the Act to prevent the NMFS
from regarding naturally spawning Klamath chinook as a
“stock” of salmon within the meaning of § 1802(37), and to
prevent the agency from adopting protective measures in an
FMP to conserve this “stock.” Even without the assistance of
Chevron deference, we would read the Act in this way. Our
obligation to give Chevron deference to the NMFS’s interpre-
tation of the Act that it is charged to administer removes any
possible doubt.
Second, plaintiffs rely on a district court decision interpret-
ing the term “species” in the Endangered Species Act
(“ESA”) as a basis for interpreting the term “stock” in the
Magnuson Act. The ESA requires the NMFS to protect “en-
dangered” or “threatened species.” 16 U.S.C. § 1531(b). A
“species” under the ESA includes “any distinct population
segment . . . of any species of . . . fish . . . which interbreeds
when mature.” Id. § 1532(16). In Alsea Valley Alliance v.
Evans, 161 F. Supp. 2d 1154 (D. Or. 2001), the plaintiffs
challenged the NMFS’s decision to list naturally spawning
coho salmon as “threatened.” In making this determination,
the agency ignored hatchery-spawning coho. See 63 Fed. Reg.
42587, 42589 (1998). The district court held that the listing of
7410 OREGON TROLLERS v. GUTIERREZ
naturally spawning coho as “threatened” without regard to
hatchery-spawning coho was arbitrary and capricious. In the
view of the district court, hatchery-spawned coho populations
are part of the same distinct population segment as natural
coho populations, and “[l]isting distinctions below that of . . .
a [distinct population segment] of a species are not
allowed[.]” 161 F. Supp. 2d at 1162.
We did not review the district court’s decision in Alsea on
the merits. See Alsea Valley Alliance v. Dep’t of Commerce,
358 F.3d 1181 (9th Cir. 2004) (dismissing appeal on jurisdic-
tional grounds). But even if the district court in Alsea was cor-
rect in its interpretation of the ESA (which we do not decide),
its decision is not relevant to the question before us. The ESA
and the Magnuson Act use different terminologies. The ESA
refers to “species,” while the Magnuson Act refers to “stock.”
There is nothing in the ESA, or in the district court’s decision
in Alsea, that even remotely suggests that “species” and
“stock” have the same definition.
2. “Best Scientific Information Available”
Fishery management plans and their implementing regula-
tions must be consistent with “national standards” for fishery
management set forth in 16 U.S.C. § 1851(a). A regulation
implementing a FMP will be upheld under § 1851(a) unless
the Secretary has acted in an “arbitrary and capricious manner
promulgating such regulations.” Alliance Against IFQs v.
Brown, 84 F.3d 343, 350 (9th Cir. 1996) (internal quotation
omitted). Stated another way, we will uphold a regulation
against a claim of inconsistency with a “national standard”
under § 1851 if the Secretary had a “rational basis” for it. Id.;
see also Yakutat, Inc. v. Gutierrez, 407 F.3d 1054, 1071 (9th
Cir. 2005).
[9] National Standard No. 2 requires that “[c]onservation
and management measures shall be based upon the best scien-
tific information available.” 16 U.S.C. § 1851(a)(2). Plaintiffs
OREGON TROLLERS v. GUTIERREZ 7411
argue that there is no scientific basis to support an escapement
goal that counts only natural spawners as relevant for conser-
vation purposes. However, plaintiffs frame their argument
purely in terms of statutory interpretation. They did not intro-
duce any evidence to dispute the scientific basis for the
escapement goal. In effect, plaintiffs would have us construe
National Standard No. 2 to require as a matter of law that all
Klamath chinook must receive the same consideration for
management and conservation. But the statute regulates fish-
eries, see, e.g., 16 U.S.C. §§ 1801(b)(4), 1851(a)(1), and fish-
eries include “one or more stocks of fish.” Id. § 1802(37). As
we have just held, a “stock” may reasonably include only nat-
ural spawners.
Even if plaintiffs had attacked the evidentiary basis for the
escapement goal established in the 1989 regulation, the dis-
tinction between natural and hatchery spawners would pass
muster on the record before us. “Where scientific and techni-
cal expertise is necessarily involved in agency decision-
making, . . . a reviewing court must be highly deferential to
the judgment of the agency.” Nat’l Wildlife Fed’n v. U.S.
Army Corps of Eng’rs, 384 F.3d 1163, 1174 (9th Cir. 2004).
The relevant administrative record for these purposes is the
record compiled in 1989 to support the FMP amendment that
established the escapement goal. See 50 C.F.R.
§ 600.315(b)(2) (providing that an FMP “must take into
account the best scientific information available at the time of
preparation”). While the NMFS did not file the 1989 record
in this case, the 2005 record contains enough excerpts of that
record to allow us to defer to the agency’s decisionmaking.
A lengthy analysis conducted in 1986 concluded that the
35,000 natural spawner floor “is needed to protect the produc-
tion potential of the resource in the event of several consecu-
tive years of adverse environmental conditions.” In 1988, the
Council found that “[a]n evaluation of available information
on the production potential of Klamath River fall chinook
indicates that a minimum escapement goal of 35,000 naturally
7412 OREGON TROLLERS v. GUTIERREZ
spawning adults must be protected in all years in order to pre-
vent extended periods of low juvenile production.” After a
time series modeling test, the Council deemed the 35,000 nat-
ural spawner escapement floor “sufficient . . . to protect the
stock and reduce the risk of prolonged depressed production,”
and to “provide a high probability of attaining sufficient
escapement for hatchery production needs.”
[10] There is no evidence in the record that the Council’s
1986 and 1988 studies are outdated or flawed. Bereft of any
contrary science, plaintiffs’ bare allegation that the agency’s
distinction conflicts with the “best scientific evidence avail-
able” fails. See Nw. Envtl. Def. Ctr. v. Brennen, 958 F.2d 930,
936 (9th Cir. 1992) (rejecting a “best scientific information
available” claim because the challenger “has not pointed to
any scientific evidence inconsistent with the Secretary’s deci-
sion”); see also Massachusetts v. Daley, 170 F.3d 23, 30 (1st
Cir. 1999) (observing that the challenger may have “forfeited”
its challenge by not proposing any better science). Cf. Mid-
water Trawlers Coop. v. Dep’t of Commerce, 393 F.3d 994,
1004 (9th Cir. 2004) (affirming regulation based on best sci-
entific evidence available when “no new information” contra-
dicted the agency’s data).
3. “Managed as a Unit”
[11] National Standard No. 3 provides that, “[t]o the extent
practicable, an individual stock of fish shall be managed as a
unit throughout its range, and interrelated stocks of fish shall
be managed as a unit or in close coordination.” 16 U.S.C.
§ 1851(a)(3). “The purpose of this standard is to induce a
comprehensive approach to fishery management” that is not
jeopardized when fish live in the waters of more than one
jurisdiction. 50 C.F.R. § 600.320(b). As a Senate Committee
Report on the Magnuson Act explained, “unity of manage-
ment, or at least close cooper[at]ion, is vital to prevent juris-
dictional differences from adversely affecting conservation
practices.” S. Commerce Comm. Rep. No. 94-416 (1975),
OREGON TROLLERS v. GUTIERREZ 7413
reprinted in A Legislative History of the Fishery Conservation
and Management Act of 1976, at 685 (1976) (“A Legislative
History”). To further this goal, “[t]he geographic scope of the
fishery, for planning purposes, should cover the entire range
of the stocks(s) of fish, and not be overly constrained by polit-
ical boundaries.” 50 C.F.R. § 600.320(b).
[12] The Senate Report used the Klamath salmon to illus-
trate the problem addressed by National Standard No. 3:
[A] State-to-State separation of power is not reflec-
tive of the migratory habits of fish stocks, but is due
to historic and political factors. As a result, inconsis-
tent regulations have often developed. For example,
the State of Oregon maintains a salmon hatchery
program. Salmon reared in the Oregon program
de[s]cend Oregon rivers and later may be found in
California waters. These same salmon may then be
caught legally under the California fishing regula-
tions, but earlier in the season and at a smaller size
than it would be legal to catch these fish under Ore-
gon’s fishing code. Consequently, management of
fishery resources from the national or regional per-
spective is important to sound conservation prac-
tices.
A Legislative History at 684. When a stock of fish is managed
in the same manner throughout its geographical range,
National Standard No. 3 is satisfied. See Stinson Canning Co.
v. Mosbacher, 731 F. Supp. 32, 37 (D. Me. 1990) (no viola-
tion of National Standard No. 3 when regulation at issue
applies to fish “wherever caught”).
[13] By defining the Klamath Management Zone to reach
from Humbug Mountain, Oregon, to Horse Mountain, Cali-
fornia, the Pacific Plan takes into account the migration pat-
tern of the Klamath chinook from the Klamath River to the
ocean, and their growth to maturity off the coasts of Oregon
7414 OREGON TROLLERS v. GUTIERREZ
and California. Pacific Plan at 6-2. Salmon fisheries through-
out this range, off the coasts of both states, are managed in the
same manner to ensure that 35,000 natural spawning Klamath
chinook escape. See Pacific Plan at 3-9 (stating that the Klam-
ath chinook are a “[m]ajor contributor to ocean fisheries from
Humbug Mt., OR to Horse Mt., CA” and should be managed
accordingly). The 2005 management measures are thus
entirely consistent with National Standard No. 3.
C. Attacks on the 2005 Management Measures
Plaintiffs’ three remaining claims attack the 2005 manage-
ment measures themselves. Plaintiffs claim (1) that the man-
agement measures are inconsistent with the “national
standard” under 16 U.S.C. § 1851(a)(8) requiring that the
“importance of fishery resources to fishing communities” be
taken into account; (2) that they are inconsistent with the “na-
tional standard” under 16 U.S.C. § 1851(a)(10) requiring the
NMFS “to the extent practicable” to “promote the safety of
human life at sea;” and (3) that the NMFS improperly invoked
a “good cause” provision of the Administrative Procedure
Act, 5 U.S.C § 553(b)(B), to justify its decision not to open
a public comment period. We take these three claims in turn.
1. “Importance of Fishery Resources to Fishing
Communities”
[14] By its explicit terms, § 1851(a) requires only that
FMPs and their implementing regulations be consistent with
the “national standards.” The 2005 management measures are
“actions,” not “regulations.” For purposes of plaintiffs’ two
claims against the 2005 management measures based on
national standards set forth in § 1851(a), we assume without
deciding that the standards of that section apply to actions
taken under regulations implementing FMPs as well as to the
regulations themselves.
National Standard No. 8 provides that
OREGON TROLLERS v. GUTIERREZ 7415
Conservation and management measures shall, con-
sistent with the conservation requirements of this
chapter (including the prevention of overfishing and
rebuilding of overfished stocks) take into account the
importance of fishery resources to fishing communi-
ties in order to (A) provide for the sustained partici-
pation of such communities, and (B) to the extent
practicable, minimize adverse economic impacts on
such communities.
16 U.S.C. § 1851(a)(8). Plaintiffs claim that the Council inad-
equately analyzed the economic impact of its 2005 manage-
ment measures, and that the NMFS inadequately reviewed the
measures for consistency with National Standard No. 8.
The regulation implementing National Standard No. 8 pro-
vides that an economic analysis must “identify affected fish-
ing communities and then assess their differing levels of
dependence and engagement in the fishery being regulated
. . . . The analysis should discuss each alternative’s likely
effect on the sustained participation of these fishing commu-
nities in the fishery.” 50 C.F.R. § 600.345(c)(3). In addition,
“[t]he analysis should assess the likely positive and negative
social and economic impacts of the alternative management
measures, over both the short and the long term, on fishing
communities[,]” id. § 600.345(c)(4), as well as “identify those
alternatives that would minimize adverse impacts on those
fishing communities within the constraints of conservation
and management goals of the FMP . . . .” Id. § 600.345(c)(5).
In 2004, the Council and the NMFS considered the socio-
economic impact of that year’s proposed management mea-
sures and issued a lengthy report titled an “Environmental
Assessment.” That assessment discussed various alternatives
to measures satisfying the 35,000 natural spawner escapement
floor, addressing their short- and long-term impacts on fishing
communities. In April 2005, the NMFS concluded that, “[f]or
the fisheries to be conducted under the proposed 2005 ocean
7416 OREGON TROLLERS v. GUTIERREZ
salmon regulations[,] the analysis from the 2004 [Environ-
mental Assessment] is sufficient to understand the range of
options developed and the impacts projected . . . for the 2005
season.” The NMFS’s “Supplemental Finding of No Signifi-
cant Impact” updated the Environmental Assessment’s con-
clusions for the 2005 management measures and concluded as
follows:
The overall 2005 community income impact of the
commercial fishery is projected to be $33.7 million,
down 28% from the 2004 value of $46.8 million, and
74% below the 1976-1990 average. The overall com-
munity income impact of the recreational fishery is
projected to be $394 million, down 16% from the
2004 value of $471 million, and 44% below the
1976-1990 average. Community income impacts
projected for both the commercial and recreational
fisheries off Washington, Oregon, and California,
are well above the disaster levels of the 1994 season.
[15] So long as the agency appropriately updates its analy-
sis under National Standard No. 8, there is no reason why it
must start from scratch every year. Compare N.C. Fisheries
Ass’n, Inc. v. Daley, 16 F. Supp. 2d 647, 654 (E.D. Va. 1997)
(reliance on previous year’s measures without discussion of
National Standard No. 8 is improper when the agency had not
assessed the previous year’s measures for consistency with
the standard). Plaintiffs do not identify data missing from the
2004 and 2005 analyses or explain why the analyses in the
record fall short of what the Magnuson Act requires. See Lit-
tle Bay Lobster Co. v. Evans, 352 F.3d 462, 470 (1st Cir.
2003). “About the best a court can do” when it reviews the
NMFS’s performance with respect to National Standard No.
8 “is to ask whether the Secretary has examined the impact of,
and alternatives to, the plan he ultimately adopts . . . .” Id. We
conclude the that NMFS did not abuse its discretion when it
relied on a 2004 analysis, updated for 2005, to review the
OREGON TROLLERS v. GUTIERREZ 7417
2005 management measures for consistency with National
Standard No. 8.
2. “Safety of Human Life at Sea”
[16] National Standard No. 10 provides that
“[c]onservation and management measures shall, to the extent
practicable, promote the safety of human life at sea.” 16
U.S.C. § 1851(a)(10). Plaintiffs contend that, by shortening
the fishing season, the 2005 management measures unneces-
sarily obliged fishermen to go to sea regardless of the weather
or other dangers. Thus, according to plaintiffs, the manage-
ment measures did not, “to the extent practicable,” “promote”
human safety.
[17] The NMFS addressed safety concerns in an April 2005
memorandum commenting on the Council’s recommenda-
tions:
The proposed action is expected to be neutral with
respect to health and safety. The proposed regula-
tions are within the range of annual regulations
implemented since adoption of the salmon frame-
work plan in 1984 and meet the considerations for
weather-related safety and harvest opportunity . . . .
Although cursory, this analysis indicates that the NMFS con-
sidered National Standard No. 10 and thus discharged its duty
under § 1855(a)(10). As stated by the NMFS memorandum,
the 2005 management measures do fall within the “range” of
measures that have governed fisheries in past years. See, e.g.,
56 Fed. Reg. 21311, 21316 (May 8, 1991) (announcing clo-
sure of Klamath Management Zone fishery for all but one
month). The fact that the measures are “neutral,” and do not
affirmatively promote safety, does not mean that they do not
promote safety “to the extent practicable.” We conclude that
the NMFS did not act arbitrarily and capriciously when it
7418 OREGON TROLLERS v. GUTIERREZ
assessed the management measures for compliance with
National Standard No. 10.
3. “Good Cause” to be Excused from Notice and
Comment
[18] Finally, plaintiffs claim the NMFS failed to perform
the economic analysis required by the Regulatory Flexibility
Act (“RFA”), 5 U.S.C. § 601 et seq. When an agency has an
obligation to open a public comment period during the rule-
making process, the RFA requires it to prepare a “regulatory
flexibility analysis.” 5 U.S.C. §§ 603, 604. The “initial regula-
tory flexibility analysis,” published after announcement of the
proposed rule, must “describe the impact of the proposed rule
on small entities” and discuss “significant alternatives” that
accomplish the regulatory objectives while “minimiz[ing] any
significant economic impact of the proposed rule on small
entities.” 5 U.S.C. §§ 603(a), (c). The “final regulatory flexi-
bility analysis,” published with the final rule, must discuss the
reasons why the agency adopted the alternative it did. Id.
§ 604(a).
[19] Under the APA, the NMFS must open a public com-
ment period before it adopts annual management measures.
See NRDC, Inc. v. Evans, 316 F.3d 904, 910 (9th Cir. 2003);
see also 50 C.F.R. § 660.411(b). The obligation is excused
“when the agency for good cause finds (and incorporates the
finding and a brief statement of reasons therefor in the rules
issued) that notice and procedure thereon are impracticable,
unnecessary, or contrary to the public interest.” 5 U.S.C.
§ 553(b)(B); see also 50 C.F.R. § 660.411(b). When the
agency validly invokes the “good cause” exception, the RFA
does not apply. See A.M.L. Int’l, Inc. v. Daley, 107 F. Supp.
2d 90, 107 (D. Mass. 2000). Citing irreducible time pressure
to act before the fishing season began, the NMFS invoked the
“good cause” exception when it adopted the 2005 manage-
ment measures. See 70 Fed. Reg. at 23063.
OREGON TROLLERS v. GUTIERREZ 7419
We recently addressed the “good cause” exception in
NRDC, Inc. v. Evans, a case similar to this one in several
respects. There, the plaintiffs argued that the NMFS’s failure
to provide a public comment period invalidated annual man-
agement measures that implemented a groundfish FMP. 316
F.3d at 907-08. The NMFS did not open a public comment
period and instead invoked the “good cause” exception under
5 U.S.C. § 553(b)(B). It explained that “ ‘[d]elay in imple-
mentation of the measures’ ” to allow the public to comment
“ ‘could upset [the] balance’ ” between conservation and har-
vest exploitation “ ‘and cause harm to some stocks . . . .’ ” Id.
at 908 n.4 (quoting 66 Fed. Reg. 2338, 2371-72 (Jan. 11,
2000)). The NMFS stated that it could not have started the
rulemaking process earlier because “ ‘[m]uch of the data nec-
essary for these specifications and management measures
came from the current fishing year.’ ” Id. The NMFS has
invoked the good cause exception on precisely these grounds
each year for the previous decade. Id. at 911.
We held that the NMFS had not adequately justified its
decision not to open a public comment period. Following Cal-
Almond, Inc. v. United States Department of Agriculture, 14
F.3d 429 (9th Cir. 2003), we declared that generic “timeliness
considerations of rulemaking on an annual basis cannot con-
stitute good cause.” NRDC, 316 F.3d at 912 (citing Cal-
Almond, 14 F.3d at 441-42). The agency must “demonstrate
. . . some exigency apart from generic complexity of data col-
lection and time constraints[,]” and it had not done so. Id. We
took pains to note, however, that we did not need to “deter-
mine the precise contours of what constitutes good cause in
this context[,]” and that “we [did] not mean to suggest that
habitual invocation of the good cause exception is itself
improper.” Id. We concluded in NRDC that the “NMFS
should be free in future years to show that compliance is
impracticable under specific circumstances pertinent to the
year at issue.” Id. at 912.
The district court in this case found that the grounds for the
good cause exception were adequately explained. It distin-
7420 OREGON TROLLERS v. GUTIERREZ
guished our holding in NRDC on the ground that the NMFS’s
statement “contain[s] a great deal more foundational informa-
tion, as well as season specific bases, than the very general
statement in NRDC.” 2005 U.S. Dist. LEXIS 34084, at *46.
We agree with the district court. In NRDC, the good cause
statement simply asserted that data-gathering and timeliness
concerns excused a public comment period. Too long to
reproduce in full here, the good cause statement in this case
fills nearly a page in the Federal Register, and it thoroughly
explains why the NMFS could not solicit public comment
before the measures’ effective date. See 70 Fed. Reg. at
23063. The NMFS justified its decision with specific fishery-
related reasons, not generic complaints about time pressure
and data collection difficulties. It observed that the data on
which the management measures are based “are not available
until January and February because spawning escapement
continues through the fall[.]” The Council does not finish its
process until early April, and the season must begin on May
1. The NMFS thus has only a month to finalize the Council’s
proposals. Id. “Delaying implementation of annual fishing
regulations, which are based on the current stock abundance
projections, for an additional sixty days would require that
fishing regulations for May and June be set in the previous
year without knowledge of current stock status.” Id.
[20] The NMFS also explained why season-specific mea-
sures, which cannot be ready until early May, must be in
place by that time:
[T]he 2005 forecast ocean abundance for Klamath
River fall Chinook requires a reduction in the com-
mercial season length from Humbug Mountain, OR,
to the Oregon-California Border from being open
from May-June 2004 to being closed in 2005. With-
out these, and similar restrictions in other areas in
2005, the projected Klamath River fall Chinook
escapement floor would not be met.
OREGON TROLLERS v. GUTIERREZ 7421
70 Fed. Reg. at 23063. Taken together, the NMFS’s explana-
tions set forth the “specific circumstances pertinent to the year
at issue” we found missing in NRDC. See 316 F.3d at 912.
[21] The fact that the NMFS regularly invokes the good
cause exception for the Pacific Plan salmon management
measures does not render the exception unavailable for 2005.3
So long as the NMFS continues to give season-specific rea-
sons for why the good cause exception is needed, its “habitual
invocation” is not improper. Because the NMFS properly
relied on the “good cause” exception in connection with the
2005 management measures, it did not have an obligation
under the RFA to issue a regulatory flexibility analysis.
Conclusion
[22] The publication of the 2005 management measures in
the Federal Register was an “action” under the Magnuson
Act. It triggered the thirty-day limitations period during which
plaintiffs could challenge both the action and the 1989 regula-
tion implementing the Pacific Plan’s 35,000 natural spawner
escapement floor. The district court therefore erred when it
concluded that plaintiffs’ claims challenging the escapement
floor were time-barred. However, on the merits, we hold that
the district court properly rejected each of plaintiffs’ chal-
3
See 69 Fed. Reg. 25026, 25035 (May 5, 2004); 68 Fed. Reg. 23913,
23922 (May 6, 2003); 67 Fed. Reg. 30616, 30625 (May 7, 2002); 66 Fed.
Reg. 23185, 23194 (May 8, 2001); 65 Fed. Reg. 26138, 26146 (May 5,
2000); 64 Fed. Reg. 24078, 24089 (May 5, 1999); 63 Fed. Reg. 24973,
24983 (May 6, 1998); 62 Fed. Reg. 24355, 24366 (May 5, 1997); 61 Fed.
Reg. 20175, 20187 (May 6, 1996); 60 Fed. Reg. 21746, 21757 (May 3,
1995); 59 Fed. Reg. 22999, 23011 (May 4, 1994); 58 Fed. Reg. 26922,
26931 (May 6, 1993) (not invoking “good cause” per se but promulgating
“emergency rule” and eschewing notice and comment); 57 Fed. Reg.
19388, 19403 (May 6, 1992); 56 Fed. Reg. 21311, 21318 (May 8, 1991);
55 Fed. Reg. 18894, 18906 (May 7, 1990); 54 Fed. Reg. 19798, 19809
(May 8, 1989); 53 Fed. Reg. 16002, 16012 (May 4, 1988); 52 Fed. Reg.
17264, 17273 (May 6, 1987); 51 Fed. Reg. 16520 (May 5, 1986); 50 Fed.
Reg. 18672 (May 2, 1985).
7422 OREGON TROLLERS v. GUTIERREZ
lenges to the 1989 regulation and to the 2005 management
measures.
AFFIRMED.