ELR Citation: ELR 20604
No(s). C93-2003 TEH (N.D. Cal. Nov 3, 1993)

The court holds that the Secretary of Commerce was required under National Standard Two of the Fisheries Conservation and Management Act (FCMA) to base his decision to issue an emergency regulation that reduced the ocean harvest rate and increased the escapement floor for Klamath Chinook salmon on the best scientific information available. The emergency regulation provided for a reduced ocean harvest rate of 14.5 percent, a 44.6 percent Indian in-river harvest rate, and a 38,000 escapement floor for the fall 1993 fishing season. The court first grants the Secretary's motion to strike plaintiffs' supplementation of the record, because plaintiffs failed to demonstrate that their proferred affidavits fall within an exception to the rule that limits judicial review of agency action to the existing administrative record. The court holds that the Secretary's rejection of the Pacific Fishery Management Council's recommendation for a 22-percent ocean harvest rate, a 32.5-percent Indian in-river harvest, and a 35,000 escapement floor, was not arbitrary and capricious. The Secretary had a reasonable basis for concluding that the Council's recommendations were inconsistent with FCMA National Standard One's requirement of preventing overfishing. Given the Council's past failure to achieve necessary escapement levels, and the Secretary of the Interior's promise of a 50 percent Indian in-river harvest, it was reasonable for the Secretary of Commerce to conclude that a 22-percent ocean harvest rate would result in another failed effort to achieve the minimum 35,000 escapement floor then in effect. While the Council's role in the FCMA's resource-management process is intended to be meaningful, the Secretary is not supposed merely to rubber-stamp the Council's recommendations. The court also holds that the Secretary's issuance of the emergency regulation was not arbitrary and capricious, because it did not violate FCMA National Standard One's requirement of achieving an "optimum yield." The Secretary properly balanced the relevant economic and ecological factors and related them to his conclusions. He was required neither to conduct a formal cost-benefit analysis nor to choose the least restrictive alternative available. The court holds that the Secretary did not violate National Standard Four's requirement of equitable allocation of harvesting rights. Given the Secretary's duty to consider in-river fishing rights and the Secretary of the Interior's promise of a 50 percent Indian in-river harvest rate, the Secretary could reasonably conclude that the 44.6-percent Indian harvest rate and a 55.4-percent non-Indian harvest rate were "fair and equitable."

The court holds that the Secretary violated his duty under National Standard Two to use the "best scientific information available" in setting the 38,000 escapement floor. While there may be adequate support for the Secretary's decision, it is not apparent in the record, which provides only conclusions that the combination of the higher 38,000 escapement floor and reduced ocean harvest rate will achieve the Secretary's legitimate objectives. The court also holds that the Secretary had a reasonable basis to impose the emergency regulations authorized by the FCMA. Once the Secretary rejected the Council's recommendations, the fishing season could not begin—and thus severe economic harm could not be avoided—unless the Secretary promulgated substitute, emergency regulations.

Turning to the plaintiffs' procedural arguments, the court holds that the emergency regulation falls within the Administrative Procedure Act's "good cause" exception to notice-and-comment rulemaking; the emergency regulation functioned as a temporary amendment and thus did not conflict with FCMA amendment procedures for Fishery Management Plans; and a private consultation between the Secretaries of Commerce and the Interior regarding Indian fishing rights did not constitute ex parte contacts in violation of the "Sunshine Act."

Counsel for Plaintiffs
James M. Johnson, Ass't Attorney General
Attorney General's Office
Hwy.-Licenses Bldg.
P.O. Box 40100, Olympia WA 98504
(206) 753-6220

Counsel for Defendants
James C. Kilbourne
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000