Thursday, January 21, 2010

Fishermen's Finest Inc. v. Locke

Jan 19: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-36024. In this case, Fishermen’s Finest, Inc., North Pacific Fishing, Inc., and U.S. Fishing, LLC, (Fishermen’s) appeal from the district court’s order granting summary judgment in favor of the Secretary of the United States Department of Commerce. Fishermen’s challenges the Secretary’s issuance of a final rule adopting Amendment 85 (A85) to the Fishery Management Plan (FMP) for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAIMA).

The Government allocates Pacific cod in the BSAIMA among different sectors of the fishing industry. Fishermen’s belongs to the trawl Catcher / Processor (CP) sector. It contends that the most recent allocation, which reduced its share of the Pacific cod fishery, did not comport with applicable law. However, in a split 2-1 decision, the Appeals Court ruled, "We affirm because we agree with the district court that the Secretary did not act arbitrarily and capriciously in adopting Amendment A85."

In its conclusion, the majority ruled, "We are persuaded that the Secretary did not act arbitrarily and capriciously in approving Amendment A85. As we noted in Alliance, '[t]he Secretary is allowed, under [controlling precedent], to sacrifice the interest of some groups of fishermen for the benefit as the Secretary sees it of the fishery as a whole.' 84 F. 3d at 350. Here the interests of Fishermen’s were sacrificed for the benefit of the fishery as a whole, as the Secretary favored sectors that benefitted coastal Alaskan residents, and selected data that would reduce prior unintended favoritism to the non-AFA trawl CP sector, to which Fishermen’s belonged."

Access the complete opinion and dissent (
click here).