Washington Trollers Association v. Juanita Kreps, Secretary of Commerce , 645 F.2d 684 ( 1981 )

PREGERSON, Circuit Judge:

Appellants — several associations representing commercial troll fishermen, and named individual troll fishermen — appeal from a summary judgment against them in this suit challenging the 1978 Fishery Management Plan for commercial and recreational salmon fisheries off the coasts of Washington, Oregon, and California (“the Plan”). Appellants seek a declaration that the Plan does not conform to the provisions of the Fishery Conservation and Management Act of 1976, 16 U.S.C. §§ 1801-82 [“the FCMA”], and the guidelines established pursuant to that act, 50 C.F.R. 602.2, 602.3, and hence could not serve as a proper basis for fishery management regulations promulgated by the appellee Secretary of Commerce. Because we find that material issues of fact remain unresolved, we reverse the district court’s grant of summary judgment.

Section 303(a)(3) of the FCMA, 16 U.S.C. § 1853(a)(3), which provides that fishery management plans are to specify the fishery’s present and likely future condition, maximum sustainable yield, and optimum yield, requires that plans “include a summary of the information utilized in making such specification.” Appellants contend that the Plan violates this requirement because it relies on computerized analysis systems without describing either the computer methodology or the data used to arrive at the Plan’s projections and recommendations. Appellees reply that the Plan cites documents that describe the computer methodology in sufficient detail to serve as the basis for informed criticism and that as long as such documents were publicly available, it was unnecessary to include them in the Plan itself.

The kind of “summary” section 303(a)(3) requires can be understood only in light of the purposes and policies of the FCMA. Congress clearly intended to give those members of the public interested in or affected by fishery management plans and regulations a meaningful voice in shaping those plans and regulations. Section 2(b)(5XA) of the FCMA, 16 U.S.C. § 1801(bX5)(A), states that one purpose of the Act is to “enable the States, the fishing industry, consumer and environmental organizations, and other interested persons to participate in, and advise on, the establishment and administration of such [fishery] plans.” And section 2(c)(3) of the FCMA, 16 U.S.C. § 1801(c)(3), enunciates a policy of “assurpng] that the national fishery conservation and management program ... involves, and is responsive to the needs of, interested and affected States and citizens.” To realize these goals, Congress stipulated that when the Secretary of Commerce approves a fishery management plan and publishes it with proposed implementing regulations, “[interested persons shall be afforded a period of not less than 45 days after such publication within which to submit in writing data, views, or comments on the plan . .., and on the proposed regulations.” FCMA section 305(a), 16 U.S.C. § 1855(a).

This provision for public comment can effectuate Congress’s goals only if the public is able to make intelligent, informed, meaningful comments. The “summary of the information utilized” in the Plan’s specifications required by section 303(a)(3) must therefore provide information sufficient to enable an interested or affected party to comment intelligently on those specifications.¹ “To suppress meaningful comment by failure to disclose the basic data relied upon is akin to rejecting comment altogether.” United States v. Nova Scotia Food Products Corp., 568 F.2d 240, 252 (2d Cir. 1977). Accordingly, although the “summary” that the Plan is required to include may incorporate by reference documents containing the necessary information, those documents must be reasonably available to the interested public.² “It is not consonant with the purpose of a rule-making proceeding to promulgate rules on the basis of inadequate data, or on data that [to a] critical degree, is known only to the agency.” Portland Cement Association v. Ruckelshaus, 486 F.2d 375, 393 (D.C.Cir.1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974).³

Here, appellants and appellees disagree sharply as to how readily available the documents describing the computer methodology actually were. They disagree on whether the Plan sets out the data that was fed into the computer to obtain the Plan’s specifications. They even disagree on whether only one computer model was used to obtain all of the descriptions, projections, and analyses in the Plan. All of these are issues of fact, all are highly material, and all are unresolved. Summary judgment, however, is proper only when “there is no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c); Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 668 n.3 (9th Cir. 1980). Therefore, we must reverse the entry of summary judgment; further proceedings will be necessary to resolve the factual disputes in this lawsuit.

The judgment of the district court is reversed, and the case is remanded for further proceedings.

1 . The dissent argues that this interpretation of “summary” strains the common meaning of the term, which it characterizes as “ ‘a comprehensive and usually brief abstract, recapitulation, or compendium of previously stated facts or statements.’ ” Dissent, at 688. Yet in reality it is the sketchy information contained in the Plan which does violence to the common meaning of “summary.” Repeatedly, the Plan explains how data used in its calculations was obtained, but gives no clue as to what that data actually was nor where to find it. For example, the Plan states that its yield computations are based partly on ocean migration patterns derived “primarily [from] an analysis of adult fish tagging experiments in the ocean.” Plan at 91, 43 Fed.Reg. 15685. But nothing is said as to what these patterns actually were, where they are to be found, what the experiments were, or where they are recorded. Such sketchy information is not an abstract, recapitulation, or compendium of previously stated facts, but rather an allusion to completely unstated facts.

2 . The dissent is mistaken in describing this requirement as mandating that “all of the raw data and any other information” used in formulating fishery yield specifications must be made available. The issue is whether the very information central to the decision, and which the government in fact relied upon, must in some form be accessible to the interested public.

3 . Cf. Western Oil & Gas Ass’n v. EPA, 633 F.2d 803, 813 (9th Cir. 1980) (“When substantive judgments are committed to the very broad discretion of an administrative agency, procedural safeguards that assure public access to the decisionmaker should be vigorously enforced.”)