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Charter Operators of Alaska, et al v. Rebecca Blank

February 24, 2012


The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge



Pacific Halibut are a highly desired catch off the coast of Southeast Alaska. Through the National Marine Fisheries Service ("NMFS"), the Secretary of Commerce ("Secretary") has issued a formal rule ("Final Rule") creating a limited access system*fn1 for charter vessels engaged in guided sport fishery for halibut in a designated area in the Central Gulf of Alaska. See Fed. Reg. 554 (adopted Jan. 5, 2010; effective Feb. 1, 2010); 50 C.F.R. §§ 300.61, 300.66, 300.67. The plaintiffs, Charter Operators of Alaska,*fn2 allege that the Secretary*fn3 violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., by adopting the Final Rule.

Before the Court are the plaintiffs' motion [22] for summary judgment and the defendants' cross-motion [23] for summary judgment. Upon consideration of the filings, the entire record herein and the relevant law, the Court will GRANT the defendants' motion for summary judgment, and the plaintiffs' motion for summary judgment will be DENIED.


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" is a treaty between the United States and Canada called 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 the 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. Congress additionally granted supplemental regulatory authority over halibut to the regional councils created under the Magnunson-Stevens Fishery Conservation and Management Act ("MSA"). Id. at 4-5; 16 U.S.C. § 773c(c).

The regional councils have authority to enact regulations that limit access to halibut fisheries and allocate shares of halibut among individual fisherman, so long as the allocations are "fair and equitable to all such fisherman[.]" 16 U.S.C. § 773c(c). The regulations must also be "consistent with the limited entry criteria set forth in section 1853(b) of [the MSA]." Id. Section 1853(b)(6) authorizes regional councils to enact limited access systems after taking into account seven specified criteria: (A) present participation in the fishery; (B) historical fishing practices in, and dependence on, the fishery; (C) the economics of the fishery; (D) the capability of fishing vessels used in the fishery to engage in other fisheries; (E) the cultural and social framework relevant to the fishery and any affected fishing communities; (F) the fair and equitable distribution of access privileges in the fishery; (G) and any other relevant considerations. 16 U.S.C. § 1853(b)(6)(A)-(G).

In April 1997, the North Pacific Fishery Management Council ("North Pacific")*fn4 began considering the possibility of implementing a limited access system to address the problem of open access in the halibut charter vessel fleet. Defs.' Mot. at 9. In February 2006, North Pacific published an announcement, establishing a "control date" of December 9, 2005. Id. at 10. The publication conveyed that anyone entering the halibut fishing industry after the control date would not be guaranteed future access should North Pacific implement a limited access system. Id.

In December 2008, North Pacific promulgated a different rule, limiting charter fishermen to a one-fish daily bag limit in Area 2C of the Gulf of Alaska territory. Id. at 11. This Court reviewed and upheld that rule in November 2009. Van Valin v. Locke, 671 F. Supp. 2d 1 (D.D.C. 2009) (Collyer, J.).

In January 2010, North Pacific published the Final Rule, which enacted a limited access system for charter vessels in the guided sport fishery for Pacific halibut in two areas of the Gulf of Alaska. Id. at 13. The Final Rule limited the number of charter vessels that may participate in the guided sport fishery for halibut in the outlined areas. Id. After enactment, all halibut guided sport fishery vessels were required to obtain a permit. Id. In order to qualify for a charter permit, the applicant needed to meet two qualifications: (1) minimum participation in either 2004 or 2005, and (2) minimum participation in 2008.*fn5 Id. Depending on the number of logged trips, applicants either qualified for a transferable or nontransferable permit. Id. at 14.

Because the plaintiffs did not meet the minimum participation requirements, they did not qualify to receive any permits under the Final Rule. The plaintiffs filed this complaint in April 2011 and simultaneously moved for a preliminary injunction to enjoin the implementation of the Final Rule. The Court (per Judge Sullivan) heard oral arguments on the motion and issued a bench ruling on April 26, 2011. The Court found that the plaintiffs failed to show a likelihood of success on the merits, and denied the plaintiffs' motion. Because the Administrative Record had not been assembled at that time, the Court felt it was premature to issue a ruling on the merits. With the parties' motions for summary judgment now ripe for review, the Court will examine the merits.


Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when the moving party demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). However, in a case involving review of a final agency action under the Administrative Procedure Act, 5 U.S.C. § 706, the standard set forth in Rule 56(c) does not apply because of the limited role of a court in reviewing the administrative record. See AFL-CIO v. Chao, 496 F. Supp. 2d 76, 81 (D.D.C. 2007); Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89--90 (D.D.C. 2006). Under the APA, the agency's role is to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas the district court's function "is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Occidental Eng'g Co. v. INS, 753 F.2d 766, 769--70 (9th Cir. 1985). Summary judgment thus serves as a mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and is otherwise consistent with the APA standard of review. See Richard v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977).

The plaintiffs challenge the Final Rule under the APA as violating the requirements of the Halibut Act and the MSA. Under the APA, the Court must "hold unlawful and set aside agency action, findings, and conclusions" that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The "scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Assn. of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). A reviewing court must be satisfied that the agency has " 'examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.' " Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006). The agency's decisions are entitled to a "presumption of regularity," Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), and although "inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one." Id. at 416. That inquiry is ...

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