Oregon Trollers Association v. Gutierrez

United States Court of Appeals for the Ninth Circuit · 2007 · Administrative Law

Administrative LawMagnuson-Stevens ActJudicial ReviewStatute of LimitationsNotice and CommentMagnuson Act§ 1855(f)action versus regulation

Facts

In 2005 NMFS projected that too few Klamath River fall chinook would escape harvest to spawn in the wild, so it adopted annual management measures sharply restricting commercial and somewhat restricting recreational fishing in the Klamath Management Zone. Those measures were designed to achieve the Pacific Coast Salmon Plan's conservation objective of 35,000 natural Klamath River fall chinook adult spawners, a floor established by a 1989 regulation. Plaintiffs, including fishermen and fishing businesses, argued both that the 1989 natural-spawner floor violated the Magnuson Act and that the 2005 measures themselves violated statutory national standards and procedural requirements. NMFS adopted the 2005 measures without pre-promulgation notice and comment, invoking the APA good-cause exception because the measures had to be finalized before the fishing season opened.

Issue

Whether publication of the 2005 management measures triggered a new 30-day period under 16 U.S.C. § 1855(f) allowing plaintiffs to challenge both the 2005 action and the 1989 underlying regulation, and if so, whether the 1989 escapement-floor regulation and the 2005 management measures violated the Magnuson Act or the APA.

Rule

Under amended 16 U.S.C. § 1855(f), a petition filed within 30 days after publication of a Secretarial action may seek review of both the action and the regulation under which the action was taken. On the merits, NMFS's interpretation of the Magnuson Act receives Chevron deference where the statute is ambiguous, and agency fishery measures are upheld unless arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. A good-cause exception to notice and comment is valid when NMFS provides specific, year-related reasons showing that timely implementation is impracticable, not merely generic assertions of annual time pressure.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In 2029, the Secretary published annual Atlantic herring season limits for waters off Portland, Maine, relying on a 2012 regulation that set a minimum spawning-threshold methodology. Within 20 days of publication, Harbor Net Fisheries and its owner, Lena Ortiz, petitioned for review, arguing both that the 2029 limits are unlawful and that the 2012 regulation itself conflicts with the governing fishery statute.

Is the challenge to the 2012 regulation timely?

Explanation. The majority read 16 U.S.C. § 1855(f) to allow review of both regulations and later actions, and held that a timely petition filed within 30 days of publication of an action may also challenge the underlying regulation. The key is that the later measure is a Secretarial action taken under implementing regulations. No extra showing about inability to sue earlier is required.