United States District Court, W.D. Washington, Seattle
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
MARSHA J. PECHMAN, District Judge.
THIS MATTER comes before the Court on the parties' cross-motions for summary judgment. (Dkt. Nos. 19, 20.) Having reviewed the motions, respective responses and replies (Dkt. Nos. 20, 21, 24), and all related papers, the Court GRANTS Defendants' motion and DENIES Plaintiffs motion.
A. Regulatory Background
The Magnuson-Stevens Fishery Conservation and Management Act ("MSA") was enacted, among other things, to "conserve and manage the fishery resources found off the coasts of the United States..." 16 U.S.C. § 1801(b)(1). The MSA provides for the establishment of eight Regional Fishery Management Councils, each made up of fisheries experts. 16 U.S.C. § 1852(a)(1). Each Regional Council is required to prepare a proposed Fishery Management Plan ("FMP") and amendments to that plan. 16 U.S.C. § 1852(h)(1). An FMP may require a permit, designate zones where and periods when fishing may be limited, prohibit certain types of fishing gear, and limit access to a fishery, among other things. 16 U.S.C. § 1853.
An FMP, any amendments, or implementing regulations must be submitted to National Marine Fisheries Services ("NMFS"). (Dkt. No. 20 at 10.) NMFS is tasked with reviewing the FMP to ensure consistency with the MSAs ten national standards and other provisions of the MSA, among other things. (Id.) NMFS then publishes a proposed rule, requests public comment, and takes final action on the proposal. (Id.) NMFS can approve, disapprove, or partially approve the plan or regulations. (Id.)
A Regional Council may choose establish a limited access system for a fishery in order to achieve optimum yield. 16 U.S.C. § 1853(b)(6). The MSA allows the Regional Council to implement a Limited Access Privilege Program ("LAPP") for any fishery managed under such a limited access system. 16 U.S.C. § 1853a. The MSA defines a LAPP as "a Federal permit, issued as part of a limited access system under section 1853a of this title to harvest a quantity of fish expressed by a unit or units representing a portion of the total allowable catch of the fishery that may be received or held for exclusive use by a person." 16 U.S.C. § 1802(26) (definitions).
The MSA requires the Regional Council to develop a cost recovery program and collect a fee to recover certain costs related to the administration of any LAPP. 16 U.S.C. § 1853a(e). In addition, the MSA tasks the Regional Council with developing "a methodology and the means to identify and assess the management, data collection and analysis, and enforcement programs that are directly related to and in support of" the LAPP. Id.
B. Factual Background
Since 1997, the total amount of Pacific whiting available to be caught by non-tribal commercial harvesters has been divided among three sectors: the catcher-processor sector ("CP Sector"), the mothership sector, and the shoreside sector. (Dkt. No. 19 at 4.) The CP Sector consists of vessels that harvest and process Pacific whiting at sea. (Id.) The CP Sectors allocation of Pacific whiting presently consists of 34% of the allowable catch. (Id.)
In 1997, Glacier Fish Company, LLC ("Plaintiff") and two other Seattle-based companies-the CP Sector participants-formed the Pacific Whiting Conservation Cooperative ("PWCC"). (Id.) The purpose of the cooperative was to rationalize the CP sector by facilitating orderly harvest of the sectors Pacific whiting allocation in order to avoid an unrestrained "race for fish" among sector participants. (Id.) To achieve this purpose, each member of PWCC limits its Pacific whiting harvest to a certain percentage of the CP Sectors total allocation. (Id. at 4-5.)
In January 2011, NMFS and the Pacific Fishery Management Council ("Pacific Council") implemented Amendment 20 to the Pacific Coast Groundfish Fishery Management Plan, also known as the Trawl Rationalization Program. (Dkt. No. 20 at 11-12.) Amendment 20 created an individual fishing quota ("IFQ") program for the shoreside trawl fleet and cooperative programs for the mothership sector and CP Sector. (Id. at 12.) Amendment 20 established a LAPP with associated IFQs and coop permits. (Id.); 50 C.F.R. § 660.100.
Under Amendment 20, PWCC continues to operate as a coop, as it has done voluntarily for years. (Id. at 13.) However, the program created several changes for PWCC. (Id.) PWCC is now required to apply annually for a CP Coop Permit. (Dkt. No. 19 at 11.) Ten Pacific whiting vessel licenses issued to PWCC members under a prior Amendment 15 were eliminated in favor of CP endorsements to limited entry permits associated with vessels that caught and processed Pacific whiting between 1997 and 2003. (Id.) Amendment 20 also established provisions whereby individual CP-endorsed limited-entry trawl permit owners would be issued IFQs in the event the coop dissolves in order to create incentives to maintain the coop. (Dkt. No. 20 at 13.) Additionally, under Amendment 20, the CP Coop Program is allocated key bycatch species along with Pacific whiting. (Id.) Under Amendment 20, the CP Coop Program includes other provisions that enhance management, data, and enforcement of the program, such as mandatory data collection, among other things. (Id. at 14.)
On February 1, 2013, NMFS proposed a set of rules to create a cost recovery program for the Trawl Rationalization Program. (Id.); 78 Fed. Reg. 7371. In December 2013, NMFS published its final rules implementing the cost recovery program. 78 Fed. Reg. at 75268. NMFS also calculated and announced the applicable fee percentages for each sector for the first year of cost recovery. Id.
On January 9, 2014, Plaintiff filed suit against Defendants Secretary of the United States Department of Commerce Penny Pritzker, National Oceanic and Atmospheric Administration ("NOAA"), and NMFS (collectively, "Defendants") alleging that the cost recovery regulations violate the MSA because: (1) the CP Coop Permit is not a LAPP; (2) Plaintiff is not the holder of the LAPP and should not be charged the fee; (3) NMFS, and not Pacific Council, developed the methodology to calculate the cost recovery fee; and (4) the cost recovery fee should be set aside because NMFS included unrecoverable costs within its fee calculation. (Dkt. No. 1 at 4-8.)
I. Statute of Limitations
Defendants contend the Court may not reach Plaintiffs first claim because it is barred by the MSAs statute of limitations. (Dkt. No. 20 at 16.) 16 U.S.C. § 1855(f)(1) provides "regulations promulgated by the Secretary under this chapter and actions shall be subject to judicial review to the extent authorized by, and in accordance with, chapter 7 of Title 5, if a petition for such review is filed within 30 days after the date on which the regulations are promulgated or the action is published in the Federal Register, as applicable..." (emphasis added).
Plaintiffs first claim is that "the C/P Coop Program is not a LAPP (and therefore not subject to cost recovery fees) because neither of the two types of permits associated with the C/P Coop Program is a limited access privilege." (Dkt. No. 1 at 5.) Defendants argue this claim "challenges the provisions of 50 C.F.R. § 660.160 establishing the C/P Coop Program and its associated requirement for a C/P coop permit." (Dkt. No. 20 at 17.) Defendants contend the regulations relating to this claim were promulgated by NMFS in 2010 as part of its implementation of Amendment 20 to the FMP. (Id.) As such, Defendants argue Plaintiffs claim is time-barred by the MSAs 30-day statute of limitations because Plaintiff did not file suit until January 2014. (Id.)
Plaintiff argues its claim is not time-barred because it "is seeking to set aside the cost recovery regulations and cost recovery fee percentage for 2014 published in the Federal Register on December 11, 2013, less than 30 days before [Plaintiff] filed suit on January 9, 2014." (Dkt. No. 21 at 4.) Plaintiff further contends that even if its claim could be construed as relating to the regulations implementing Amendment 20, it would still be timely because "NMFS did not publish the cost recovery fee percentage that Plaintiff would have to pay until December 2013." (Id. at 4-5.) Plaintiff relies on the Ninth Circuits opinion in Oregon Trollers Assn v. Gutierrez , 452 F.3d 1104, 1113 (9th Cir. 2006), to make this argument. In that case, the Ninth Circuit held that the "conjunctive and'... [in Subsection 1855(f)(1)] indicates that both regulations and the actions are reviewable in a timely filed petition" and that "[t]he disjunctive or'... indicates that a petition is timely filed if it is filed within thirty days of either promulgation of the regulation or publication of the action... [t]hus as a straightforward textual matter, a petition filed within 30 days of the publication of an action may challenge both the action and the regulation under which the action is taken." Id. at 1113 (emphasis in original).
Defendants argue the cost recovery regulations and fee calculation at issue were not actions taken under the 2010 regulations. (Dkt. No. 24 at 8.) 16 U.S.C. 1855(f)(2) states that "the actions referred to in paragraph (1) are actions that are taken by the Secretary under regulations which implement a fishery management plan, including but not limited to action that establish the date of closure of a fishery to commercial or recreational fishing." Defendants argue this amendment was enacted in light of Congresss recognition that some management regulations are prospective. (Dkt. No. 24 at 8.) Defendants contend "the regulations establishing the C/P Coop Program and according its participants limited access privileges do not fit into this category of having only prospective impact because they immediately required participants such as Glacier and PWCC, as the C/P Coop, to acquire new permits and also authorized newly imposed fees." (Id. at 8-9.)
Plaintiffs claim that the Coop Permit is not a LAPP challenges actions taken under Amendment 20. Nonetheless, the Court finds that the claim is not time-barred under Oregon Trollers. The amended Section 1855(f)(1) allows a person or entity to challenge a regulation or action taken pursuant to a regulation within 30 days of either promulgation of the regulation or publication of the action. The challenger may challenge both the action and the regulation under which the action is taken. 16 U.S.C. 1855(f). While the regulations relating to Amendment 20 were promulgated in late 2010, the rules providing for the cost recovery fee were promulgated in December 2013. NMSF derives authority to assess a cost recovery fee against Glacier from the CP Coop Permit issued under Amendment 20. Because of the relation between these regulations, the Court finds Plaintiffs first claim is timely.
II. Issue Waiver
Defendants also argue Plaintiff "has waived its first, second, and third claims for relief by failing to raise those objections with NMFS before the agency promulgated the cost recovery rules." (Dkt. No. 20 at 19.) Defendants argue Plaintiff "submitted no written comments to NMFS on the proposed cost recovery rule during the public comment period" and that while PWCC did send a detailed comment letter to NMFS, ...