Fishing Co AK vs. Gutierrez, Carlos

Dec 18: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5153. In April 2006, the Secretary of Commerce, Carlos Gutierrez (Secretary), via his delegee the National Marine Fisheries Service (Service), issued a final rule establishing a minimum “groundfish retention standard” for the Bering Sea and Aleutian Islands fishing region [71 FR 17,362 4/6/06]. In issuing the rule, the Service exercised authority under the Magnuson-Stevens Fishery Conservation and Management Act (MSA).

The Fishing Company of Alaska (FCA), an operator of commercial fishing vessels in the region, sued the Secretary in district court, claiming that the rule was unlawful because of its inclusion of three monitoring and enforcement (M&E) requirements. FCA argued that the Service had adopted the rule without statutorily required predicate action by the North Pacific Fishery Management Council (Council), a regional body created by the MSA to represent state governments, certain agencies of the federal government, and other interested constituencies. FCA also claimed that the M&E requirements were substantively inconsistent with the MSA’s “National Standards” for conservation.

Both sides sought summary judgment, which the district court granted in favor of the defendants. FCA appealed, and the Appeals Court reversed the district court ruling, finding that the inadequacy of the Council’s action fatally tainted the Final Rule’s three challenged M&E requirements. The case was remanded with instructions to vacate the three disputed M&E requirements of the Final Rule.

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