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Valin v. Locke

June 25, 2009

SCOTT VAN VALIN, ET AL., PLAINTIFFS,
v.
GARY LOCKE, SECRETARY, DEPARTMENT OF COMMERCE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Scott Van Valin, Ken Dole, Rick Bierman, Theresa Weiser, Donald Westlund, and Richard Yamada are charter fishing operators in area 2C (Southeast Alaska). They brought this suit against the following Defendants: Gary Locke, in his official capacity as Secretary of the Department of Commerce; Dr. Jane Lubchenco, in her official capacity as Administrator of the National Oceanic and Atmospheric Administration; and Dr. James Balsinger, in his official capacity as Acting Administrator of the National Marine Fisheries Service ("NMFS").*fn1 Plaintiffs challenge a Final Rule adopted by the Secretary of Commerce on May 6, 2009, effective June 5, 2009. See 74 Fed. Reg. 21194. The only provision of the Final Rule that Plaintiffs challenge is the limitation on the harvest of Pacific halibut to one halibut per calendar day by guided charter vessel anglers in Area 2C (Southeast Alaska).

I. FACTS

A. Prior Litigation

This is the Secretary's second attempt to limit charter fishermen to a one-fish daily bag limit in Area 2C. A substantially similar group of plaintiffs challenged a rule that imposed a one-halibut-per-day limit in 2008. See Van Valin v. Gutierrez, No. 08-941 (D.D.C.) (challenging 73 Fed. Reg. 30504, May 28, 2008 final rule). In that case, the Court granted the plaintiffs' request for a temporary restraining order and then granted a preliminary injunction on June 20, 2008, enjoining the enforcement of the 2008 rule. The Court found that plaintiffs made a clear showing of irreparable harm because they had received cancellations of charter bookings for the 2008 season due to the one fish limit, causing them great monetary loss and threatening the very existence of their businesses. See Bracco Diagnostics v. Shalala, 963 F. Supp. 20, 29 (D.D.C. 1997) (economic injury may amount to irreparable harm if no adequate compensatory relief is available). The Court also found that plaintiffs had made a clear showing of likelihood of success on the merits on their claim that the Secretary violated his own regulations in violation of the Administrative Procedure Act, 5 U.S.C. § 551 et seq. The 2008 rule was based on the 2003 guideline harvest level regulations, and yet it limited the halibut harvest by the charter sector in anticipation of the projected 2008 harvest - instead of regulating to a past guideline harvest level as contemplated by the 2003 regulation. After the Court granted the preliminary injunction, the Secretary withdrew the 2008 rule. On November 18, 2008, the Court dismissed Van Valin v. Gutierrez as moot. Van Valin v. Gutierrez, 587 F. Supp. 2d 118 (D.D.C. 2008).

B. Statutory and Regulatory Provisions

Under the Northern Pacific Halibut Act (the "Halibut Act"), 16 U.S.C. §§ 773-773k, the Secretary has broad authority and discretion to "adopt such regulations as may be necessary to carry out the purposes and objectives of the Convention and the Act." Id. § 773c(b)(1); see 50 C.F.R. §§ 300.60 - 300.66. The "Convention" referred to is a U.S. - Canadian treaty, the Convention for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, Ottawa, 1953, 5 U.S.T. 5, T.I.A.S. 2900 (as amended by the Protocol Amending Convention, Washington, 1979, 32 U.S.T. 2483, 2487, T.I.A.S. 9855). Under the Halibut Act, the International Pacific Halibut Commission ("IPHC"), established by Convention, can recommend regulations regarding Northern Pacific Halibut to the U.S. Secretaries of State and Commerce. 16 U.S.C. § 773c(c). If approved by both Secretaries, the Secretary of Commerce promulgates the regulations via publication in the Federal Register. Id.; 50 C.F.R. § 300.62.

The Halibut Act also provides the Northern Pacific Management Council (the "Council") with authority to recommend regulations to the Secretary to allocate harvesting privileges among U.S. fishermen. 16 U.S.C. § 773c(c). The Halibut Act requires that allocation determinations be fair and equitable. Id. Every year, the IPHC sets the annual total constant exploitation yield ("Total CEY"), that is, the total amount of halibut that may be harvested by all fishing sectors - commercial, sport (charter and unguided), and subsistence - in a given area in a given year. 74 Fed. Reg. at 21194. The IPHC then subtracts estimates of all non commercial removals (including sport, subsistence, bycatch, and waste) to determine the remainder. The remainder constitutes the available commercial catch, i.e., the Fishery CEY. Id.

In 2003, the Council recommended that the Secretary adopt a guideline harvest policy to use as a benchmark for monitoring the harvest of Pacific halibut. The Secretary adopted the policy and promulgated a regulation, which provides that the guideline harvest level ("GHL") may be adjusted downward if the IPHC reduces the CEY. 68 Fed. Reg. 47256. The GHL regulations were set up to follow and react to actual harvest figures, i.e., harvest restrictions would be adopted in the year following a year that the GHL was exceeded. "Given the one-year lag between the end of the fishing season and availability of that year's harvest data, management measures in response to the guided recreational fleet's meeting or exceeding the GHL would take up to two years to become effective." Id. at 47276. "[I]f the GHL is exceeded in a given year, appropriate harvest reduction measures would be imposed in following years to reduce harvests incrementally by the percentage at which the previous year's harvest exceeded the GHL." 67 Fed. Reg. 3867, 3870 (GHL proposed rule Jan. 28, 2002).

C. The Current Litigation

In recent years, the charter sector has exceeded its GHL in Area 2C by significant margins: by 22% in 2004, by 36% in 2005, by 26% in 2006, and by 34% in 2007. 73 Fed. Reg. at 78277-78 (proposed rule);*fn2 see 74 Fed. Reg. at 21203 (the charter sector harvest has increased by 107% between 1999 and 2005). Preliminary estimates are that the charter sector harvested more than double the 2008 GHL. 73 Fed. Reg. 78277-78. While it has been the policy of the Council that the charter sector should not exceed the GHL, no regulations have been imposed on the charter sector limiting the charter harvest until the recently promulgated Final Rule. Only the commercial sector has been subject to harvest limits. The commercial sectors' limits have been reduced by 54% between 2005 and 2009. 74 Fed. Reg. at 21207.

The lack of limits on the charter harvest did not pose a problem when the halibut biomass was large and the non commercial harvest was small and stable. As part of the normal cycle, the biomass of halibut is declining at this time; however, the charter harvest is escalating. Accordingly, the Council recommended that the charter harvest be regulated, and that the Secretary adopt the Final Rule at issue in this case. The Final Rule limits each charter sport fisherman to one halibut per calendar day based on the GHL. 74 Fed. Reg. 21194.

The Complaint alleges three causes of action: (1) the Secretary violated the APA by promulgating the Final Rule without analyzing whether the allocation of the halibut harvest in Area 2C was fair and equitable; (2) the Secretary violated the APA by unreasonably relying on old data from 1995 through 1999 when it promulgated the GHL in 2003; and (3) the Secretary promulgated the Final Rule in violation of the Halibut Act because the Final Rule does not provide a fair and equitable allocation of the halibut harvest. Plaintiffs seek a preliminary injunction enjoining enforcement of the Final Rule. The Court held a hearing on the motion on June 4, 2009, and denied the motion for the reasons set forth in this Memorandum Opinion.

II. STANDARD OF REVIEW

A. Preliminary Injunction Factors

A court must consider four factors in deciding whether to issue a preliminary injunction:

1. whether the movant has shown a substantial likelihood of success on the merits;

2. whether the movant would suffer irreparable injury if the injunction is not granted;

3. whether the issuance of a preliminary injunction would cause substantial harm to other ...


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