ELR Citation: ELR 20133
No(s). 05-35970 (9th Cir. Jul 6, 2006)

The court holds that certain fishery management measures and regulations undertaken by the National Marine Fisheries Service (NMFS) to protect chinook salmon in the Klamath Management Zone, an area off the coasts of California and Oregon, do not conflict with the Magnuson-Stevens Fishery Conservation and Management Act. In 1989, the NMFS issued a regulation setting forth a spawning escapement goal of at least 35,000 naturally spawning adults in any given year. Due to massive die-offs of salmon in 2002, 2004, and 2005, the NMFS established management measures that substantially limited commercial and, to a lesser extent, recreational fishing in the Klamath River. Naturally, these measures have imposed significant hardship on Pacific fishing communities. Although the lower court erred in concluding that fishermen associations' claims challenging the 1989 regulation were time-barred, their claims lack merit. Nothing in the Magnuson-Stevens Act prevents the NMFS from regarding naturally spawning Klamath chinook as a "stock" of salmon and from adopting protective measures in a fishery management plan to conserve this stock. Likewise, challenges to the 2005 measures are without merit. The management measures are consistent with the Magnuson-Stevens Act's national standards. The NMFS takes into account the importance of fishery resources to fishing communities in establishing the measures, and the fact that the measures do not affirmatively promote safety does not mean that they do not promote safety to the extent practicable. Last, the NMFS properly relies on the "good cause" exception in deciding not to issue a regulatory flexibility analysis under the Regulatory Flexibility Act.