Alliance Against IFQs (plaintiffs) filed suit to challenge federal regulations that the Secretary of Commerce promulgated under authority of the Magnuson Act. The goal of the Act is to provide for fishery management plans that would ensure optimum yields from the fishery resources of the United States. The challenged regulations limited access to sablefish and halibut fisheries in the Gulf of Alaska, the Bering Sea, and areas surrounding the Aleutian Islands. The district court found that the regulations were not arbitrary and capricious, and that they did not violate the authorizing Act. The Ninth Circuit affirmed this decision, concluding that while some of the Secretary's decisions did push the "limits of reasonableness," they were not arbitrary and capricious.
The Secretary of Commerce promulgated regulations limiting access to sablefish and halibut fisheries as required by the Regional Fishery Management Council's management plan. The management plan requires commercial fishing boats that received any regulated fish within the regulated waters near Alaska to carry an individual quota share permit on board. This permit specifies the individual fishing quota allowed for that particular boat. The plan also requires the regional director of the National Marine Fisheries Service (NMFS) to assign a quota share (QS) to each owner or lessee of a vessel that made legal landings of halibut or sablefish during 1988, 1989, or 1990. This QS is based on each individual's highest total legal landing of halibut and sablefish during 1984 to 1990. The NMFS regional director multiplies each vessel's QS by the annual allowable catch and then allocates individual fish quotas (IFQs). These can be freely transferred, sold or leased. Most importantly, individuals who did not receive a QS because they did not fish in the regulated waters during the period from 1988 to 1990, must purchase one from someone who did in order to fish these waters.
The plaintiffs challenged these regulations on several grounds. First, they contended that the regulations violate that part of the Magnuson Act which requires the Secretary of Commerce and the Council to take into account "present participation in the fishery" when preparing the management plan. The plaintiffs based their argument on the fact that the final regulation was promulgated in November of 1993, yet the years during which people were required to own or lease vessels and capture the regulated fish in order to obtain qualifying shares were 1988 to 1990. The Secretary offered an explanation, which the court accepted, as to why the qualifying period ended in 1990. According to the Secretary, allowing participation in the fishery while the regulation was being promulgated would not only induce additional fishermen to enter the fishery, but would also entice existing fishermen to adopt extreme fishing methods to increase their quota share. This phenomenon would only exacerbate the overcapitalization problem which the regulations were intended to mitigate.
However, this rationale did not explain the Secretary's violation of almost every time requirement established by the Act for issuing regulations. The establishes a timetable for each step in the rule making process, which includes publishing Federal Register notice of the proposed regulations, allowing sixty days to comment, and promulgation of a final rule within 110 days. The Secretary failed to meet every one of these time restrictions. The plaintiffs argued that these violations bolstered their contention that the Secretary did not take into account "present participation in the fishery." The court noted that because Congress did not define "present participation," it intended to leave the Secretary room for discretion. It also noted that the Secretary began work on the plan in 1990. The process of public review and environmental impact review was lengthy, as it typically is, and contributed to the late promulgation of the rule. Accordingly, the Ninth Circuit held that, although the three-year delay "pushed the limits of reasonableness," it was not so excessive as to constitute arbitrary and capricious agency action.
The plaintiffs' second major argument was that by limiting the allocation of shares to only vessel owners and lessees, the Secretary violated the statutory requirement that allocation of quota shares be "fair and equitable to all such fishermen."The plaintiffs pointed out that a crew member is just as much a fisherman as a vessel owner. In response, the Council and the Secretary argued that equity favored allocation shares to those people who had invested in boats, the owners and lessees, over individual fishermen. Further, the federal defendants stressed the relative ease of administering a per-vessel allotment. The Ninth Circuit found these arguments consistent with statutory standards and allowed the Secretary to sacrifice the interests of some groups in order to benefit the fishery as a whole.
The plaintiffs next argued that it was inappropriate to include Bellingham, Washington on the list of ports from which fishermen could unload and transfer fish. The plaintiffs were concerned that, once the boats left Alaska, they might illegally sell the fish before they arrived at a non-Alaskan port.
The Secretary added Bellingham to the list of ports for two reasons. First, the Ports Preference Clause of the United States Constitution provides that no preference shall be given to the ports of one state over another. By including a non-Alaskan port, the Secretary hoped to avoid possible litigation over the constitutionality of the regulations. Second, Bellingham has a rich history in the trade of Alaskan halibut and sablefish. The court found that the Secretary's decision to add Bellingham to the list of ports was within the agency's discretion.
The plaintiffs also contended that the Secretary did not have the authority to add Bellingham to the Management Plan without approval of the Council. The Act allows the Secretary to amend the regulations freely, but does not give the Secretary this same power over the Management Plan. The court held that designation of the primary ports was a concern the Secretary could properly control through implementing regulations. Therefore, the Ninth Circuit concluded that they need not decide whether the Secretary had the authority to change the Management Plan and that the Secretary's decision to add Bellingham was not arbitrary and capricious.
Finally, the plaintiffs argued that the Secretary violated a provision of the Magnuson Act which prohibits any action under a fisheries management plan that extends or diminishes the authority of any state within the boundaries of the plan. They contended that the Secretary violated this provision by failing to give notice and to hold a preemptive hearing before asserting jurisdiction over Alaskan waters. The court concluded that the Secretary's actions did not constitute "an invasion of a legally protectable interest" of the fishermen. Thus, the court held that the fishermen had no standing to enforce this statutory right themselves.