Alaska Trojan Partnership (Alaska Trojan) brought suit against defendants Carlos M. Gutierrez, Secretary of Commerce (Secretary), the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service (NMFS) (Defendants), challenging the denial of Alaska Trojan's application for an Aleutian Islands brown king crab endorsement under the license limitation program (LLP) for the Bering Sea and Aleutian Islands groundfish and crab fisheries. The Ninth Circuit granted summary judgment to Alaska Trojan and reversed the judgment of the district court granting summary judgment to the Defendants.

The Defendants argued that Alaska Trojan only made two "documented harvests"[1] during the qualification period of January 1, 1992 through December 31, 1994, and thus did not qualify for an endorsement under the LLP, but Alaska Trojan maintained that it made three "documented harvests" and was entitled to the endorsement. Alaska Trojan successfully argued that the Defendants' interpretation of "documented harvest" was inconsistent with the plain meaning of the term as defined in regulations that implemented the LLP and that the Defendants' interpretation of the term was inconsistent with the intent of the LLP.

Through the Magnuson-Stevens Fisheries Conservation Act[2] the Secretary has authority to manage and conserve coastal fisheries and fishery councils were created to aid the Secretary with accomplishing the goals of the act. The North Pacific Fishery Management Council (the Council) developed an LLP to regulate harvesting of Aleutian Islands brown king crabs and required that three documented harvests be made by a vessel between the period of January 1, 1992 and December 31, 1994. A "documented harvest" was defined as "a lawful harvest that was recorded in compliance with Federal and state commercial fishing regulations in effect at the time of harvesting."[3]

The F/V Alaska Trojan began fishing for brown and red king crab on November 1, 1994 and caught brown king crab on November 5 and 7, 1994, in area 795200, an area within the endorsement area. Alaska Trojan did not obtain a fishing ticket at this time because, although Alaska Trojan had arranged to have the crab delivered to Mike Rosenthal, and consequently received a fishing ticket, poor weather made it difficult to offload the crab and Rosenthal wanted to continue fishing. More brown king crab were caught by Alaska Trojan, this time in area 805201, and when Alaska Trojan delivered the crab from both areas on November 24, 1994, it received one fish ticket which reflected that it had caught crab in both areas. Alaska Trojan received one more fish ticket on December 1, 1994 for crabs caught in another area. Following that season Alaska Trojan fished for brown king crab every year as its primary and sometimes sole harvest.

Alaska Trojan received a letter from Restricted Access Management Program (RAM) stating that it qualified for five different crab species, but not brown king crab. On appeal to the Office of Administrative Appeals, Alaska Trojan argued that although it only had two tickets that it in fact had caught from three state statistical areas on three separate occasions and that the catches were recorded in compliance with Alaska Department of Fish and Game (ADF&G) regulations. However, RAM had received a copy of the tickets from ADF&G with area 805201 crossed out, leaving only area 795200 and Alaska Trojan did not know how or why 805201 was crossed out. RAM testified than an "internal policy" had been devised in which each fish ticket would count as one documented harvest regardless of where or on how many occasions the crab were caught. The policy was not promulgated as a regulation in which there would be notice and comment procedures.

At a hearing, RAM personnel testified that RAM did not consult with the Council in formulating its interpretation because RAM believed that there was no ambiguity in the definition of "documented harvest." The Office of Administrative Appeals denied Alaska Trojan's appeal and upheld RAM's interpretation and finding of only two fishing tickets. Alaska Trojan appealed to the United States District Court for the District of Alaska challenging the denial as a violation of the Magnuson Act[4] and the Administrative Procedure Act.[5] The district court denied Alaska Trojan's motion for summary judgment and granted the Defendants' cross-motion for summary judgment. The Ninth Circuit reviewed the district court's decision de novo and held that Alaska Trojan was entitled to an Aleutian Islands Brown King Crab Endorsement.

First, the court held that interpreting "documented harvest" as a "landing" was plainly erroneous. The court explained that in order to find the plain meaning of "documented statute" it was necessary to look at the particular language as well as the statute as a whole. "Documented harvest" was defined as "a lawful harvest that was recorded in compliance with Federal and state commercial fishing regulations in effect at the time of harvesting."[6] The Ninth Circuit pointed out that although "harvest" was not defined in the LLP regulations, that it was necessary to look at the regulations as a whole to ascertain the term's definition. The court clarified that "harvest" could not mean "landing" as RAM asserted because in the LLP regulations "landing" was defined as an offload and furthermore the regulations define "harvesting or to harvest" as "the catching and retaining of any fish"[7] and not as "offloading" or "receiving a fish ticket." When the "harvesting or to harvest" definition is applied to brown king crab, the court explained that the definition of "documented harvest" would be "a lawful catching and retaining of brown king crab that was recorded in compliance with Federal and state commercial fishing regulations in effect at the time of harvesting" such that the event that triggers a harvest is the catching and retaining of crab, not an offload of crab. The court pointed out that the proposed regulation would have required "at least three legal landings of any amount of brown king crab"[8] but that in the final regulation "legal landing" was replaced with "documented harvest." Thus, RAM defied the Secretary's regulations by impermissibly focusing on the offloading of crab as opposed to their harvest and documentation.

LLP records of documented harvests are not organized by fish ticket number but by state statistical area. The Defendants asserted that the state statistical areas were only in the LLP record so that RAM could figure out whether the crab were caught in the larger federal endorsement area. However, the Ninth Circuit explained that when the official LLP record was prepared that crab catches in different areas still kept their identities even though they were reported on one ticket, so this argument did not support RAM's position. Hence, "this contradicts RAM's interpretation that one fish ticket represents one documented harvest."[9]

Next, the Defendants argued that the change in terminology from "legal landing" to "documented landing" not meant to apply to catcher/processor vessels that process their own catch on board and write their own tickets. Yet the court pointed out that not only is this explanation not found in the regulations but also that the LLP regulations do acknowledge differences between catcher vessels and catcher/processor vessels. While the Secretary chose to use the term "legal landings" instead of "documented harvest" in the alternate "Crab Rationalization Program" the court pointed out that the Secretary did not intend to apply this system of evaluation to catcher/processor vessels under the new regulations.

Next, the Ninth Circuit held that interpreting "documented harvest" as a "landing" was inconsistent with the intent of the LLP as expressed by the secretary. As discussed above, the court explained that the proposed language of "legal landings" was replaced with the promulgated regulation with the term "documented harvest." These two terms have distinctly different definitions in the LLP regulations. The secretary also approved the NMFS statement that "offloading is not necessary for eligibility"[10] a factor that the Ninth Circuit considered "clear expressed intent that one offload dose not necessarily equate to one documented harvest."[11]

The Defendants argued that the change was not substantive but the court explains that this argument was defeated by the preceding sentence which described the change as a "substantive change to the final rule."[12] Further the Defendants asserted that the Council used the term landing when projecting the number of permits that might be issued under different alternatives. However, the court pointed out that it is not clear that the Council was referring to the number of fish tickets when it used the term in relation to crab. The court conceded that the defendant's argument was plausible because the landing of crab or groundfish is defined in the LLP as "offloading fish"[13] and the only way to document that was through a fish ticket. However, the court also pointed out that the Council's information came from State Commission's CGE file, which was similar to the GE file which was derived from ADF&G fish tickets. Thus, the court explained that there is no reason to assume the data is any different from the GE file. The GE file had a separate line for each area where crab was caught and not for each fish ticket where the crab was offloaded. The court pointed out that even if at one time the Council had considered fish tickets to be the ultimate qualifier in obtaining a brown crab license, the Secretary's new regulations indicate that offloading was no longer necessary for eligibility.

In conclusion, the court held that because Defendants committed an error of law because of RAM's impermissible interpretation of "documented harvest" as "landing" and in the interest of judicial economy that it was not necessary to remand to Defendants for a new interpretation. Instead the court held that there was no reasonable interpretation that Defendants could adopt that would deny Alaska Trojan an Aleutian Islands brown king crab endorsement and that the two disputed catches were undoubtedly "documented harvests." The court also clarified that there will not be an ecology disruption because the share that Alaska Trojan will receive would have been given to other vessels and that the total fishing quota will remain the same. Thus, the Ninth Circuit reversed the district court's order granting summary judgment to Defendants remanded the issue to the district court with instruction to enter summary judgment in favor of Alaska Trojan.