Yakutat, Inc. v. Gutierrez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YAKUTAT, INC., 

Plaintiff-Appellant,

v.

CARLOS M. GUTIERREZ,* in his No. 03-35400

official capacity as Secretary of

Commerce; DEPARTMENT OF  D.C. No.

CV-02-01052-BJR

COMMERCE; NATIONAL OCEANIC AND

OPINION

ATMOSPHERIC ADMINISTRATION;

NATIONAL MARINE FISHERIES

SERVICE,

Defendants-Appellees.



Appeal from the United States District Court

for the Western District of Washington

Barbara Jacobs Rothstein, District Judge, Presiding

Argued and Submitted

September 17, 2004—Seattle, Washington

Filed May 18, 2005

Before: James R. Browning, A. Wallace Tashima, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee

*Carlos M. Gutierrez is substituted for his predecessor, Donald L.

Evans, as Secretary of Commerce of the United States, pursuant to Fed.

R. App. P. 43(c)(2).

5301

5304 YAKUTAT v. GUTIERREZ

COUNSEL

Michael A.D. Stanley, Attorney at Law, Juneau, Alaska, for

the plaintiff-appellant.

Sylvia Quast, U.S. Department of Justice, Washington, D.C.,

Brian C. Kipnis, U.S. Attorney’s Office, Seattle, Washington,

and Bridget McNeil, U.S. Department of Justice, Washington,

D.C., for the defendants-appellees.

YAKUTAT v. GUTIERREZ 5305

OPINION

BYBEE, Circuit Judge:

The National Marine Fisheries Service (“NMFS”) is

charged with implementing a licensing program to prevent

overfishing of Pacific cod in the Bering Sea and Aleutian

Islands (“BSAI”) groundfish fishery. The NMFS decided to

limit the number of boats fishing in the BSAI fishery by

granting licenses only to boats that caught a prescribed

amount of fish during any two years between 1995-1998. The

F/V Blue North caught the requisite amount of fish in 1997

and 1999, but not in the other qualifying years of 1995-96 or

1998. Had the NMFS included 1999 as a qualifying year, the

F/V Blue North would have qualified to secure a license to

fish for Pacific cod in the BSAI fishery.

Yakutat, Inc. is the owner of the F/V Blue North. It brought

this action to challenge the NMFS’s failure to include 1999 as

a qualifying year. Yakutat argues that the NMFS’s decision is

unfair and inequitable under the Magnuson-Stevens Fishery

Conservation and Management Act (“Magnuson Act”), 16

U.S.C. §§ 1801 et seq., and is arbitrary and capricious, lack-

ing a rational basis under the Administrative Procedure Act

(“APA”), 5 U.S.C. §§ 501 et seq. The district court upheld the

decision of the Secretary of Commerce (“Secretary”). Upon

review of the record, we conclude that the Secretary’s deci-

sion to implement the final rule amending the BSAI fishery

management plan was neither arbitrary and capricious, nor

unfair and inequitable, and that the Secretary articulated a

rational basis for the decision. We therefore affirm the judg-

ment of the district court.

I. FACTS AND PROCEEDINGS

The BSAI fishery, located off the coast of Alaska, is the

largest fishery in the United States. See 50 C.F.R.

§ 679.20(a)(1)(i), (2). The BSAI fishery is managed by the

5306 YAKUTAT v. GUTIERREZ

Bering Sea/Aleutian Islands Groundfish Fishery Management

Plan (“FMP”), which is developed by the Northern Pacific

Fishery Management Council (“Council”) in accordance with

the Magnuson Act and implemented by the NMFS. See 16

U.S.C. § 773c(c); 50 C.F.R. § 679.1.

A. The Regulatory Framework

In the Magnuson Act, Congress found that “[c]ertain stocks

of such fish have declined to the point where their survival is

threatened,” 16 U.S.C. § 1801(a)(2)(A), and established a

national program for the conservation of fishery resources.

Congress stated that this program was “necessary to prevent

overfishing, to rebuild overfished stocks, to insure conserva-

tion, to facilitate long-term protection of essential fish habitats

and to realize the full potential of the Nation’s resources.” 16

U.S.C. § 1801(a)(6). The purposes of the Magnuson Act

include inter alia, providing “fishery management plans

which will achieve and maintain, on a continuing basis, the

optimum yield from each fishery,” and establishing “Regional

Fishery Management Councils” that would create, monitor,

and review these Fishery Management Plans. 16 U.S.C.

§ 1801(b)(4), (5). The Magnuson Act provides the Secretary

with fishery management authority within the exclusive eco-

nomic zone1 of the United States. See 16 U.S.C. § 1811(a).

The Secretary carries out his management and conservation

duties through the NMFS and eight Regional Fishery Man-

agement Councils established by the Magnuson Act. 16

U.S.C. § 1852(a). The Northern Pacific Fishery Management

Council covers the states of Alaska, Washington, and Oregon,

and has authority over fisheries in the exclusive economic

zone encompassing the Arctic Ocean, Bering Sea, and the

Pacific Ocean seaward of Alaska. 16 U.S.C. § 1852(a)(1)(G).

1

The exclusive economic zone extends 200 nautical miles seaward from

the territorial coast. See Exclusive Economic Zone, Proclamation No.

5030, 48 Fed. Reg. 10605 (March 10, 1983).

YAKUTAT v. GUTIERREZ 5307

The Council includes state and NMFS officials, appointed by

the Secretary for their expertise regarding the relevant fishery

resources. 16 U.S.C. § 1852(b).

The Council is required to prepare Fishery Management

Plans and amendments to those plans as necessary for the

fisheries in its area. 16 U.S.C. § 1852(h)(1). The Fishery

Management Plans must contain conservation and manage-

ment measures deemed by the Council to be “necessary and

appropriate for the conservation and management of the fish-

ery,” and must be consistent with the “national standards”2

2

The ten national standards in 16 U.S.C. § 1851(a)(1)-(10) are:

(1) Conservation and management measures shall prevent over-

fishing while achieving, on a continuing basis, the optimum yield

from each fishery for the United States fishing industry.

(2) Conservation and management measures shall be based

upon the best scientific information available.

(3) To the extent practicable, an individual stock of fish shall

be managed as a unit throughout its range, and interrelated stocks

of fish shall be managed as a unit or in close coordination.

(4) Conservation and management measures shall not discrimi-

nate between residents of different States. If it becomes necessary

to allocate or assign fishing privileges among various United

States fishermen, such allocation shall be (A) fair and equitable

to all such fishermen; (B) reasonably calculated to promote con-

servation; and (C) carried out in such manner that no particular

individual, corporation, or other entity acquires an excessive

share of such privileges.

(5) Conservation and management measures shall, where prac-

ticable, consider efficiency in the utilization of fishery resources;

except that no such measure shall have economic allocation as its

sole purpose.

(6) Conservation and management measures shall take into

account and allow for variations among, and contingencies in,

fisheries, fishery resources, and catches.

(7) Conservation and management measures shall, where prac-

ticable, minimize costs and avoid unnecessary duplication.

5308 YAKUTAT v. GUTIERREZ

described in the Magnuson Act. 16 U.S.C. § 1853(a)(1)(A).

The Fishery Management Plan or its amendment must

describe the fishery, the vessels involved, the type of gear

used, the species of fish involved, and the costs of managing

the fishery; it must estimate the maximum and optimum

yields and the extent to which the yields will be harvested by

U.S. and foreign vessels; it must include measures to mini-

mize bycatch3 and bycatch mortality; and, to the extent the

measures reduce the harvest, it must allocate the restrictions

equitably among commercial, recreational and charter fishing

sectors. 16 U.S.C. § 1853(a). Any plan or amendment pre-

pared by the Council may “designate zones where, and peri-

ods when, fishing shall be limited, or shall not be permitted,

or shall be permitted only by specified types of fishing vessels

or with specific types of quantities of fishing gear.” 16 U.S.C.

§ 1853(b)(2). The plan or amendment may also “establish a

limited access system for the fishery in order to achieve opti-

mum yield” of fishery catches. 16 U.S.C. § 1853(b)(6). If the

Council develops a limited access system, it must consider,

(8) Conservation and management measures shall, consistent

with the conservation requirements of this Act (including the pre-

vention of overfishing and rebuilding of overfished stocks), take

into account the importance of fishery resources to fishing com-

munities in order to (A) provide for the sustained participation of

such communities, and (B) to the extent practicable, minimize

adverse economic impacts on such communities.

(9) Conservation and management measures shall, to the extent

practicable, (A) minimize bycatch and (B) to the extent bycatch

cannot be avoided, minimize the mortality of such bycatch.

(10) Conservation and management measures shall, to the

extent practicable, promote the safety of human life at sea.

3

“ ‘Bycatch’ in this context refers to the practice of discarding fish over-

board from a fishing boat when, for example, a boat catches more fish

than permitted under its quota. Discarded fish often do not survive the

trauma associated with being pulled from the depths of the ocean only to

be thrown back in.” Natural Res. Def. Council v. Evans, 316 F.3d 904, 909

n.6 (9th Cir. 2003).

YAKUTAT v. GUTIERREZ 5309

inter alia, present participation, historical fishing practices,

and cultural and economic considerations. 16 U.S.C.

§ 1853(b)(6)(A)-(F).

The Magnuson Act directs the Council to establish fishing

industry advisory panels “which shall provide information

and recommendations on, and assist in the development of,”

Fishery Management Plans and amendments. 16 U.S.C.

§ 1852(g)(3)(A). These panels shall be appointed in a manner

that provides fair representation of the fishing community and

commercial fishing interests in the area. 16 U.S.C.

§ 1852(g)(3)(B). However, all decisions made by these panels

are advisory only, as the Secretary holds ultimate authority

regarding the preparation and implementation of Fishery

Management Plans and amendments. 16 U.S.C. § 1852(g)(5).

The Council prepares a Fishery Management Plan or an

amendment with the input of the advisory panel, and then

submits it to the Secretary for review. 16 U.S.C.

§§ 1852(h)(1), 1854(a). Upon receipt of the Fishery Manage-

ment Plan or amendment, the Secretary, through the NMFS,

reviews it to determine whether it is consistent with the provi-

sions of the Magnuson Act. 16 U.S.C. § 1854(a)(1). The

NMFS places a public notice in the Federal Register and a

comment period runs for sixty days after publication. Id.

Within thirty days of the end of the public comment period,

the Secretary must approve, disapprove, or partially approve

the Fishery Management Plan or amendment. 16 U.S.C.

§ 1854(a)(3).

Although the Council may also propose and submit imple-

menting regulations with the Fishery Management Plan or

amendment, the Secretary must determine whether the pro-

posed regulations are consistent with both the Fishery Man-

agement Plan or amendment and the Magnuson Act prior to

the public notice and comment period. 16 U.S.C.

§ 1854(b)(1).

5310 YAKUTAT v. GUTIERREZ

The Secretary also evaluates the consistency of the Fishery

Management Plan with six factors that must be taken into

account prior to implementing a Fishery Management Plan:

Any fishery management plan which is prepared by

any Council, or by the Secretary, with respect to any

fishery, may . . . establish a limited access system for

the fishery in order to achieve optimum yield if, in

developing such system, the Council and the Secre-

tary take into account . . .

(A) present participation in the fishery,

(B) historical fishing practices in, and dependence

on, the fishery,

(C) the economics of the fishery,

(D) the capability of fishing vessels used in the

fishery to engage in other fisheries,

(E) the cultural and social framework relevant to

the fishery and any affected fishing communities,

and

(F) any other relevant considerations.

16 U.S.C. § 1853(b)(6). The Secretary evaluates proposed

regulations immediately upon receipt from the Council, and

within fifteen days of initiating this evaluation the Secretary

must either publish the regulations for a fifteen to sixty day

public comment period or provide recommendations to the

Council as to why these regulations are not consistent with the

Fishery Management Plan, the amendment, the Magnuson

Act, or applicable law. 16 U.S.C. § 1854(b)(1)(A), (B). The

Secretary must then promulgate final regulations within thirty

days of the end of the public comment period, and “shall con-

sult with the Council before making any revisions to the pro-

YAKUTAT v. GUTIERREZ 5311

posed regulations.” 16 U.S.C. § 1854(b)(3). These regulations

are to be published in the Federal Register, along with “an

explanation of any differences between the proposed and final

regulations.” Id. These regulations are subject to judicial

review under the APA. 16 U.S.C. § 1855(f).

B. The Establishment of the BSAI License Limitation

Program

In 1995, the Council approved a License Limitation Pro-

gram (“LLP”) for vessels operating in federal waters within

the BSAI area, slated to begin on January 1, 2000. 50 C.F.R.

§ 679.4 (establishing the permit system in the BSAI for

groundfish fishing). Viewed as the first step in the “Council’s

commitment to develop a comprehensive and rational man-

agement program” for Alaskan fisheries, this LLP limited the

number of available licenses to participate in the BSAI

groundfish fishery. Fisheries of the Exclusive Economic Zone

Off Alaska; License Limitation Program, 63 Fed. Reg.

52,642-43 (Oct. 1, 1998) (to be codified at 50 C.F.R. pt. 679)

(“Alaska LLP”). The Council “intended to design a program

that would efficiently manage the resources under its author-

ity, reduce bycatch, minimize waste, and improve utilization”

of the resources in the area, especially given the Council’s

concern that the domestic harvesting fleet had expanded

beyond the optimum yield (“OY”) of the fisheries in Alaska.

Id. The Council intended the LLP program to protect fisher-

men with past dependence on and recent participation in the

fisheries, but also desired to rationalize the extent of Pacific

cod fishing for more efficient resource allocation. Id.

The LLP established eligibility criteria for fishing boats to

receive licenses to fish for groundfish or crab. See 50 C.F.R.

§ 679(k)(4) (groundfish) and (k)(5) (crab). The LLP provided

two area endorsements4 within the BSAI groundfish fishery:

4

“Area endorsement means (for purposes of groundfish LLP) a designa-

tion on a license that authorizes a license holder to deploy a vessel to con-

duct directed fishing for license limitation groundfish in the designated

area, subarea, or district.” 50 C.F.R. 679.2.

5312 YAKUTAT v. GUTIERREZ

The Aleutian Islands and the Bering Sea. See 50 C.F.R.

§ 679.4(k)(4)(ii)(A), (B). The Council did not view the pro-

gram as an end-all solution to the problem of rationalizing

scarce resources. The NMFS recognized it as “an interim step

toward a more comprehensive solution to the conservation

and management problems of an open access fishery.” Alaska

LLP, 63 Fed. Reg. 52,642-43.

The Alaskan fishing industry expressed concerns about par-

ticipants jumping from overfished/limited fisheries into other

already fully utilized fisheries, despite the introduction of the

LLP proposal.5 See Fisheries of the Exclusive Economic Zone

Off Alaska; Fishing Participation in 1999, 64 Fed. Reg.

2,870-71 (Jan. 19, 1999) (to be codified 50 C.F.R. pt. 679)

(“Alaska Fishing Participation”). To alleviate these concerns

while it considered amendments to the LLP program, the

Council notified potential license applicants that participation

in a non-salmon6 fishery in 1999 would not necessarily count

as a qualifying year under the proposed rules. Id. The Council

expressly warned that by publishing this notice it “intended to

promote public awareness that potential eligibility criteria for

future access to the affected fisheries may be developed and

to discourage new entrants into those fisheries based on eco-

nomic speculation while the Council considers further con-

trols on access to those fisheries.” Id.

C. The Original LLP and Amendment 67

The original LLP had not classified BSAI groundfish

licensees by their use of specific gear or their proposed har-

vest. Eventually, however, the Council refined its proposed

5

A number of fishery participants leveled specific concerns at crab and

pollock licensees entering into the Pacific cod fisheries as crab and pol-

lock resources dwindled.

6

Pacific cod falls under the “non-salmon” category, and all other fish-

eries besides salmon in the Northern Pacific Region fall under the jurisdic-

tion of the Council. See 16 U.S.C. § 1862(a).

YAKUTAT v. GUTIERREZ 5313

LLP to address the issue of gear and species endorsements for

Pacific cod. See Fisheries of the Exclusive Economic Zone off

Alaska; Allocations of Pacific Cod in the Bering Sea and

Aleutian Islands Area, 61 Fed. Reg. 59,029 (Nov. 20, 1996)

(to be codified at 50 C.F.R. pt. 679) (implementing Amend-

ment 46 allocating specific allowances for total allowable

catch (“TAC”) between fixed, trawl, and jig gear) and Fish-

eries of the Exclusive Economic Zone Off Alaska; Allocation

of Pacific Cod among Vessels Using Hook-and-line or Pot

Gear in the Bering Sea and Aleutian Islands, 65 Fed. Reg.

51,553 (Aug. 24, 2000) (to be codified at 50 C.F.R. pt. 679)

(implementing Amendment 64 allocating the fixed gear per-

centage of Pacific cod TAC among hook-and-line catch pro-

cessors (freezer longline boats), hook-and-line catcher

vessels, pot gear vessels, and fixed gear vessels under 60 feet

in length).

Due to concerns “about new participants entering the

Pacific cod fisheries and movement of Pacific cod fisherman

among the various sectors that use non-trawl gear,” the Coun-

cil also discussed whether it should add Pacific cod endorse-

ments to LLP ground fish licenses, to limit the number of new

entrants.7 Fisheries of the Exclusive Economic Zone Off

Alaska; License Limitation Program for Groundfish of the

Bering Sea and Aleutian Islands Area, 66 Fed. Reg. 49,908-

09 (Oct. 1, 2001) (proposed rule and request for comments)

(“Proposed Rule”). The Council noted concern that under its

preliminary estimates, “about 340 fixed gear catcher vessels

and 100 fixed gear catcher/processors would be allowed to

target [Pacific] cod in the BSAI under the LLP.” The Council

considered requiring potential licensees to have minimum

catches in 1996-1998 for freezer longline vessels and catcher

7

A LLP allows for general fishing in the BSAI groundfish fisheries, but

a Pacific cod endorsement must be attached to the LLP, which will allow

Pacific cod fishing using pot or hook-and-line gear. See The Northern

Pacific License Limitation Program, at http://www.fakr.noaa.gov/ram/

llp.htm.

5314 YAKUTAT v. GUTIERREZ

longline vessels, and a host of qualifying year alternatives

(such as any three years between 1995-98, any two years

between 1995-98, any one year between 1995-98, etc.) with

a minimum number of landing requirements for pot gear ves-

sels. The Council also worried that a recent dearth of crab

resources in the BSAI created incentives for fishermen using

fixed gear8 to enter the BSAI Pacific cod fisheries, thereby

increasing the overfishing of fisheries and an increased

Pacific cod catch.9 Proposed Rule, 66 Fed. Reg. at 49,908.

The Council stated that it needed “to promote stability in the

BSAI fixed gear [non-trawl] cod fishery until comprehensive

rationalization is completed.” Id. The Council urged prompt

action and proposed that “a person who holds [a] LLP

groundfish license, but who has not participated in the Pacific

cod fisheries in the BSAI with non-trawl gear in the past, or

who has not participated at a level that could constitute signif-

icant dependence on those fisheries,” should be prevented

from participating in the fisheries. Id.

The desire for prompt action resulted in the Council intro-

ducing Amendment 67 for the LLP program to establish a

license endorsement for Pacific cod. To evaluate proposed

Amendment 67, the Council analyzed a number of alterna-

8

Fixed gear vessels are vessels with “fishing gear comprised of lines

with hooks attached, including one or more stationary, buoyed, and

anchored lines with hooks attached.” 50 C.F.R. § 679.2. Longliners are

“stationary, buoyed, and anchored groundline with hooks attached, so as

to fish along the seabed. It does not include commercial vertical hook-and-

line or troll gear.” 50 C.F.R. § 660.302. Pot catchers use “pots” which

are “baited cages set on the ocean floor to catch fish and shellfish.”

http://www.st.nmfs.gov/st4/nop/trainingmanuals/West_Coast_Groundfish

_Observer_Program_Manual_Part2.pdf, at 5-12. Pot catcher/processors

are vessels that can process the catch “on a vessel or other platform that

floats” rather than processing the catch back on land. 50 C.F.R. § 660.302.

The specifics and distinctions are known to the Secretary, the Council, the

NMFS, and the fisherman involved in this litigation.

9

Besides the “depressed abundance of crab resources,” the high value

of the Pacific cod catch provided incentives for new participants to enter

the field. Proposed Rule, 66 Fed. Reg. at 49,908.

YAKUTAT v. GUTIERREZ 5315

tives for licensing fixed-gear vessels10 in the Pacific cod fish-

eries. In addition, the Council also considered whether to

issue an Environmental Assessment, Regulatory Impact

Review, and Initial Regulatory Flexibility Analysis (“EA/

RIR/IRFA”) for the Pacific cod license endorsements, and

debated over which specific alternatives to include in the

report. After deciding to issue the EA/RIR/IRFA, and decid-

ing to include 1999 as one of the alternatives for qualifying

years in the report, the Council reaffirmed its December 1998

statement “that landings in 1999 and beyond will not count in

qualification for Pacific cod endorsements” under the LLP.

Council staff furnished the EA/RIR/IRFA to the Council in

September 1999. The report included analysis of fixed gear

vessels in each of the three categories. The report evaluated

the number of qualifying freezer longline and catcher longline

vessels resulting from three different minimum catch quanti-

ties during the years 1996, 1997, and 1998. It also analyzed

pot gear vessels under different qualification standards, con-

sidering the number of qualifying vessels resulting from

requiring either one, two, or three years participation between

1995 and 1998. It further evaluated the number of qualifying

vessels resulting from minimum landing requirements

between 25,000 and 300,000 pounds.11 Upon receiving this

report, the Council expanded its prior data set and decided to

factor 1999 participation into the report it would present at its

October 1999 meeting. In addition, the Council also separated

categories for pot gear catcher/processor vessels and pot gear

catcher vessels so that Council staff could further analyze

these categories separately.

The final EA/RIR/IRFA report to the Council contained

106 proposed alternatives (up from its original list of 23 alter-

10

The Council listed freezer longliners, longline catcher vessels, and pot

gear vessels as the fixed-gear vessel classes affected by Amendment 67.

11

Options 1, 2, and 5 considered qualifying years of 1995-1998, while

option 3 considered 1995-1997 and option 4 considered 1996-1998.

5316 YAKUTAT v. GUTIERREZ

natives), and less than half (42) of these proposed alternatives

included 1999 participation. The Council adopted the final

EA/RIR/IRFA for proposed Amendment 67 in March 2000.

In the pot gear vessel category, the report contained 10 quali-

fying year options and 12 qualifying landing catch options.12

According to analysis provided by Council staff, the factor

that would most greatly affect the number of qualifying pot

catcher/processor vessels would be the participation years

requirement. The EA/RIR/IRFA report noted that the most

restrictive alternative for pot catcher/processors would reduce

the number of potential pot catcher/processor vessels from 67

to 4, and the most widely considered combination of alterna-

tives generally resulted in between 4 to 20 qualifying vessels.

In addition, during the public comment period, concerned

members of the public submitted numerous public statements

to the Council urging adoption of stringent catch requirements

and standards. Several owners leveled accusations that a num-

ber of pot catcher/processor vessels made speculative land-

ings in 1999 in order to qualify for the Pacific cod

endorsement. The Council noted these concerns and included

them in its decision process regarding the adoption of Amend-

ment 67.

In April 2000, the Council received recommendations from

its Advisory Panel and also conducted a public hearing to

gather testimony on proposed Amendment 67. The Council

also deliberated privately on the inclusion of 1999 as a quali-

fying year for the pot gear sector, but most of the Council

members advocated 1998 as a cutoff date for a number of rea-

sons. After hearing testimony, looking at the public com-

12

The qualification year alternatives ranged from 1995-1999, 1995-

1998, 1995-1997, 1996-1998, and 1996-1999, and varied between one,

two or three years of participation required within each alternative. The

landing requirements ranged from “a landing” (no minimum) to over

300,000 pounds during each or any of the qualifying years, or an aggre-

gate poundage during the qualifying years (between 200,000-600,000

pounds or over 600,000 pounds).

YAKUTAT v. GUTIERREZ 5317

ments, reviewing the recommendations from the Advisory

Panel, analyzing the EA/RIR/IFRA from the Council staff and

discussing the alternatives in detail, the Council recom-

mended the adoption of Amendment 67. The Amendment 67

recommendation included requiring pot catcher/processor

vessels to have landed over 300,000 pounds of Pacific cod in

any two years during the 1995-1998 period in order to qualify

for a license. The Advisory Panel had also recommended

these specific requirements, but it had deliberated between

picking option 3 (two years between 1995 and 1998) and

option 7A (two years between 1996-1999), before finally

choosing option 3.13

The Council submitted the revised EA/RIR/IRFA to the

Secretary of Commerce for review on July 31, 2000, and

detailed the Council’s preferred alternative for qualifying pot

catcher/processor vessels. It also noted the considerable testi-

mony and public concern that “any serious participant in the

P[acific] cod fishery could easily land 300,000 lb in one sea-

son, and that allowing a catcher/processor to qualify with any

less than that annual harvest level would essentially qualify a

number of vessels that participate in the P[acific] cod fishery

to supplement the income they receive from their primary

fisheries.” The Council observed that requiring two out of

four years for landing qualification would allow “for legiti-

mate, unanticipated absences from the fishery without penal-

izing serious participants.” It noted that fourteen LLP

qualified pot catch/processor vessels in the BSAI groundfish

fisheries resulted if the Secretary adopted the qualifying years

of 1995-1999, but that nine of those vessels would drop out

under the criteria adopted by the Council. The Council

13

The Advisory Panel debated the use of 1999 as a qualifying year. The

minority report of the panel states: “The main reason the Council routinely

stated that it may not use 1999 for recent participation requirements was

the concern that not doing so might lead to speculative landings and

increase in the number of licenses. Otherwise recent participation is pre-

ferred.”

5318 YAKUTAT v. GUTIERREZ

remarked that these nine vessels “reported relatively few P[a-

cific] cod landings by comparison over the qualifying 1995-

98 time period, seven of which land[ed] P[acific] cod in only

one of the qualifying years if at all . . . . This indicates that

these vessels were not historically dependent on the P[acific]

cod fishery and that the majority of their income likely comes

from other fisheries.”

D. The Final Rule

After submission of the Council’s Amendment 67 recom-

mendation to the Secretary, the NMFS published the notice of

availability of proposed Amendment 67. Fisheries of the

Exclusive Economic Zone Off Alaska; License Limitation Pro-

gram for Groundfish of the Bering Sea and Aleutian Islands

Area, 66 Fed. Reg. 42,833 (Aug. 15, 2001) (notice of avail-

ability). It subsequently proposed Amendment 67 as a final

rule, and requested public comment. Proposed Rule, 66 Fed.

Reg. 49,908. Following public comment period, the Secretary

published the Final Rule in the Federal Register, and

explained the rule while addressing public concerns raised

during the comment period. Fisheries of the Exclusive Eco-

nomic Zone Off Alaska; License Limitation Program for

Groundfish of the Bering Sea and Aleutian Islands Area, 67

Fed. Reg. 18,129-40 (Apr. 15, 2002) (final rule) (“Final

Rule”).

The Secretary explicitly addressed the concern in the Final

Rule that “[t]he standards used to determine eligibility for a

Pacific cod permit were not fair and equitable, in violation of

national standard 4, because different requirements were used

for different methods of catching Pacific cod.” Id. at 18,134.

The Secretary explained that “the Council, through Amend-

ment 67, was trying to achieve a level of participation that

reflected historical participation patterns for each of the sec-

tors.” Id. With respect to the pot catcher/processor sector, the

Secretary noted that this sector did not have a long and con-

sistent history and that significant variance in the composition

YAKUTAT v. GUTIERREZ 5319

of qualifying vessels occurred depending on which years and

qualifying catches the Council considered. Id. “[T]he Council

chose eligibility criteria that would decrease the number of

participants . . . intend[ing] to ensure that vessels in the sector

that had historical and consistent participation based on the

Council’s analysis of the available data would be allowed to

continue to participate at a level that reflected what the Coun-

cil determined to be economic dependence.” Id.

E. Yakutat, Inc.

Yakutat, Inc. currently operates the F/V Blue North in the

BSAI groundfish fishery, and has operated in the area since

1994. The F/V Blue North originally operated as a freezer

longliner, but converted to a combination pot catcher/

processor and freezer longliner in December of 1996. The F/V

Blue North fished using its longliner capabilities until reach-

ing its allotted limit in May 1997, and it then utilized pot gear

for the rest of the year, landing more than 300,000 pounds of

Pacific cod in 1997. In 1998, the F/V Blue North did not fish

using pot gear, solely utilizing its longliner equipment the

entire season.14 In 1999, the F/V Blue North landed more than

300,000 pounds of Pacific cod using pot gear after reaching

its seasonal apportionment using longliner gear. Upon publi-

cation of the Final Rule, the NMFS deemed the F/V Blue

North ineligible for a pot catcher/processor Pacific cod

endorsement because its 300,000 pounds catch landing

occurred in only one of the qualifying years between 1995-

1998. Yakutat currently holds a BSAI pot catcher/processor

endorsement pending its “unavoidable circumstances” excep-

tion claim under 50 C.F.R. § 679.4(k)(9)(v)(B).15

14

Yakutat notes that it placed the vessel in shipyard maintenance repair

in June and July 1998. However, it did fish continuously from December

1996 until June 1998, and then resumed operations from September to

December 1998. It states that it only relied on its longliner capabilities

during 1998.

15

Yakutat requested that the NMFS credit it with participation in 1998,

notwithstanding that it does not otherwise qualify, based on “unavoidable

5320 YAKUTAT v. GUTIERREZ

F. Proceedings Below

On May 12, 2002, Yakutat sought district court review of

the Secretary’s Final Rule. Yakutat argued that the Final Rule

violated national standards created by the Magnuson Act, was

arbitrary and capricious in violation of the APA, and denied

equal protection of the laws guaranteed by the Fifth Amend-

ment. The district court granted the Secretary’s summary

judgment motion and dismissed Yakutat’s claims.

Yakutat appeals the district court’s judgment, claiming that

the district court erred in granting the Secretary’s summary

judgment motion, and reiterates its original claims.16 First,

Yakutat argues that the Secretary’s failure to include 1999 as

a qualifying year for pot catcher/processors violated the

Magnuson Act and the APA because the Secretary and Coun-

cil failed to articulate a justification for the exclusion. Second,

Yakutat claims that the exclusion of 1999 as a qualifying year

is unfair and inequitable, and lacks a rational basis, thereby

violating the Magnuson Act and the APA. Yakutat requests

that this Court overturn the district court’s grant of summary

judgment in favor of the Secretary.

circumstances.” 50 C.F.R. § 679.4(k)(9)(v)(B)(1)-(4) (a claimant must

show the vessel was “lost, damaged, or otherwise unable to participate in

the license limitation groundfish” fishery to receive credit for “unavoid-

able circumstances”). The NMFS denied the claim on March 27, 2003,

and Yakutat appealed to the NMFS Office of Administrative Appeals on

May 27, 2003. If successful, Yakutat will be credited with participation for

1998 and would be eligible for the Pacific cod endorsement. Neither party,

however, seeks to have the Court wait until the NMFS decides Yakutat’s

appeal to decide this issue, although a favorable decision to Yakutat

would, presumably, moot Yakutat’s claim and the F/V Blue North’s would

receive a Pacific cod pot catcher/processor endorsement.

16

Yakutat does not, however, appeal their equal protection claim to this

Court.

YAKUTAT v. GUTIERREZ 5321

II. STANDARD OF REVIEW

This Court reviews a district court’s decision to grant sum-

mary judgment de novo with all facts read in the light most

favorable to the non-moving party. Covington v. Jefferson

County, 358 F.3d 626, 641 n.22 (9th Cir. 2004). In reviewing

regulations promulgated under the Magnuson Act, we have

held that “our only function is to determine whether the Sec-

retary [of Commerce] ‘has considered the relevant factors and

articulated a rational connection between the facts found and

the choice made.’ ” Alliance Against IFQs v. Brown, 84 F.3d

343, 345 (9th Cir. 1996) (quoting Wash. Crab Producers, Inc.

v. Mosbacher, 924 F.2d 1438, 1440-41) (9th Cir. 1990)). “We

determine only if the Secretary acted in an arbitrary and capri-

cious manner in promulgating such regulations.” Alliance

Against IFQs, 84 F.3d at 345. Similarly, when reviewing

administrative actions taken under the APA, the panel may

reverse the agency action only if the action is arbitrary, capri-

cious, an abuse of discretion, or otherwise contrary to law.

See 5 U.S.C. § 706(2); Lands Council v. Powell, 379 F.3d

738, 743 (9th Cir. 2004), amended by 395 F.3d 1019 (9th Cir.

2005).

III. DISCUSSION

Yakutat makes two claims on appeal: First, Yakutat argues

that the Secretary’s failure to include 1999 as a qualifying

year for pot catcher/processors is arbitrary and capricious, in

violation of both the Magnuson Act and the APA, because the

Secretary and Council failed to articulate a justification for

the exclusion. 5 U.S.C. § 706(2)(A); 16 U.S.C. § 1853(b)(6).

Second, Yakutat claims the exclusion of 1999 as a qualifying

year is unfair and inequitable in violation of the Magnuson

Act, and lacks a rational basis, in violation of the APA. 5

U.S.C. § 706(2)(A); 16 U.S.C. § 1851(a)(4). We review each

in turn.

5322 YAKUTAT v. GUTIERREZ

A. The Final Rule Was Not Arbitrary and Capricious

Yakutat claims that the Council and the Secretary (through

NMFS) must articulate a rational connection between the

facts found and the Final Rule. Yakutat alleges that this obli-

gation is expressed in National Standard 4 of the Magnuson

Act. National Standard 4 reads:

(4) Conservation and management measures shall

not discriminate between residents of different

States. If it becomes necessary to allocate or assign

fishing privileges among various United States fish-

ermen, such allocation shall be (A) fair and equitable

to all such fishermen; (B) reasonably calculated to

promote conservation; and (C) carried out in such

manner that no particular individual, corporation, or

other entity acquires an excessive share of such priv-

ileges.

16 U.S.C. § 1851(a)(4).

Yakutat argues that failure to comply with National Stan-

dard 4 or to articulate a motive for a particular allocation vio-

lates the Magnuson Act. Yakutat also argues that the

Secretary’s actions are arbitrary and capricious because he has

not supplied a rational connection between the facts and the

Final Rule.

[1] The record demonstrates the Secretary’s concern “to

conserve and manage the Pacific cod resources” and “stabilize

fully utilized Pacific cod resources” being harvested in the

BSAI. Final Rule, 67 Fed. Reg. at 18,129. The Secretary also

noted concern to protect fishermen with significant long-term

investments and long catch histories in the pot catcher/

processor sector. Id. at 18,130. The Secretary and Council

fully evaluated all of the alternatives available to them, which

included numerous alternatives that included 1999 as a quali-

fying year. The Council produced the final EA/RIR/IFRA,

YAKUTAT v. GUTIERREZ 5323

which specifically included analysis of 42 out of 106 alterna-

tives with 1999 as a qualifying year for pot catcher/

processors. Based on the data before the Council, it chose to

not include 1999 as a qualifying year because those boats that

dropped out when 1999 was not included “were not histori-

cally dependent on the Pacific cod fishery and [ ] the majority

of their income likely [came] from other fisheries.” In accor-

dance with public testimony, industry experience, and data

analysis, the Council decision established a standard for mea-

suring historical dependence, and drew a rational line. The

Secretary, utilizing the same data and reports provided by the

Council, adopted the Council’s recommendation. The record

clearly provides a rational basis on which the Secretary based

his decision.

[2] Agency actions may also be found to be arbitrary and

capricious “if the agency has relied on factors which Congress

had not intended it to consider, entirely failed to consider an

important aspect of the problem, offered an explanation for its

decision that runs counter to evidence before the agency, or

is so implausible that it could not be ascribed to a difference

in view or the product of the agency’s expertise.” Motor Vehi-

cle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 43 (1983). See also 5 U.S.C. § 706(2); Foss v. Nat’l

Marine Fisheries Serv., 161 F.3d 584, 590 (9th Cir. 1998)

(rejecting an arbitrary and capricious claim against the NMFS

because the NMFS provided rational reasons for the action

taken). “Controlling precedent requires that a plan not be

deemed arbitrary and capricious, ‘even though there may be

some discriminatory impact,’ if the regulations ‘are tailored to

solve a gear conflict problem and to promote the conservation

of’ ” the fish in question. Alliance Against IFQs, 84 F.3d at

350 (quoting Alaska Factory Trawler Ass’n v. Baldridge, 831

F.2d 1456, 1460 (9th Cir. 1987)). As long as the Secretary

considered the fishermen’s interests, and “considered the rele-

vant factors and articulated a rational connection between the

facts found and the choice made,” the Secretary’s decision

will not lack a rational basis. Wash. Crab Producers, Inc., 924

5324 YAKUTAT v. GUTIERREZ

F.2d at 1441. See also Alliance Against IFQs, 84 F.3d at 350.

We conclude that the Secretary has not run afoul of these con-

siderations.

[3] First, neither the Secretary, nor the Council, relied on

factors that Congress did not intend the agency to consider.

The Secretary must take into account six factors for imple-

menting any Fishery Management Plan or amendments to a

Fishery Management Plan.17 See 16 U.S.C. § 1853(b)(6); Alli-

ance Against IFQs, 84 F.3d at 346. The Council explicitly

looked at all of these factors, including historical fishing prac-

tices and dependence on the fishery, economics of the fishery,

capability of fishing vessels to engage in other fisheries, other

relevant considerations, and also analyzed present participa-

tion in the fishery. The only factor not explicitly examined in

the record is the cultural and social framework relevant to the

fishery. However, this is not fatal to the Secretary and Coun-

cil’s decision. See Alliance Against IFQs, 84 F.3d at 347 (stat-

ing that Congress left the Secretary some room by not

defining such terms as “present participation” and determin-

ing that each factor is “one of many factors which the Council

and Secretary must ‘take into account’ ”).

[4] Second, 16 U.S.C. § 1851(a) requires any Fishery Man-

agement Plan to comply with ten national standards.18 The

Secretary’s comments in the Final Rule explicitly respond to

public comments regarding alleged violations of National

Standards 1, 2, 3, 4 (twice), 5, 6, 7, 8, 9, and 10. See Final

Rule, 67 Fed. Reg. at 18,133-136. The Secretary’s response to

these public comments shows that he considered all of these

national standards in analyzing and constructing the Final

Rule. Id. There is no evidence that the Secretary relied on fac-

tors Congress did not intend, and it is clear that the Secretary

and Council made every effort to comply with all of the

options required by Congress.

17

See supra at 5310.

18

See supra at 5307-08 n.2.

YAKUTAT v. GUTIERREZ 5325

[5] Third, the Secretary did not fail to consider an impor-

tant aspect of the agency action because he analyzed the

Council recommendation and independently considered

including 1999 as a qualifying year. See Motor Vehicle Mfrs.

Ass’n, 463 U.S. at 43. The inclusion of 1999 was one of many

factors considered by the Secretary, as well as by the Council,

and both considered including 1999 as a qualifying year

before choosing to emphasize issues implicating other factors

more relevant to the problem statement and overall goal of the

FMP.

[6] Finally, the Secretary neither offered an explanation for

his decision that runs counter to the evidence, nor acted in a

manner that could not be ascribed to agency expertise. The

Secretary specifically responded to public comments about

the decision in the Federal Register, and explained the ratio-

nale behind treating pot catcher/processor vessels differently

than other vessels. Final Rule, 67 Fed. Reg. at 18,134. In

addition, the Council, with its expertise and industry experi-

ence, deliberated over the Amendment for over 45 hours,

heard public testimony, received public comments, and read

staff reports and analysis prior to making its recommendation

to the Secretary. The Secretary analyzed these same reports,

received public comments, and responded publically to those

comments in making his decision. There is nothing in the evi-

dence that suggests that the Secretary, or the Council, acted

in manner that could not be ascribed to agency expertise.

B. The Final Rule Is Neither Unfair or Inequitable

Yakutat argues that the exclusion of 1999 from the pot

catcher/processor vessel criteria is unfair and inequitable

because it violates the Magnuson Act by not taking recent

participation into account as required by 16 U.S.C.

§ 1853(b)(6), and because it violates National Standard 4, 16

U.S.C. § 1851(a)(4). Specifically, Yakutat asserts that the

Final Rule does not comply with the requirement that fishing

allocations be “fair and equitable” because the endorsement

5326 YAKUTAT v. GUTIERREZ

requirements for pot catcher/processors do not extend to

include participation in 1999. See 16 U.S.C. § 1851(a)(4) (“If

it becomes necessary to allocate or assign fishing privileges

among various United States fishermen, such allocation shall

be (A) fair and equitable to all such fishermen . . . .”).

1. The Secretary Took Present Participation Into Account

Yakutat argues that by not including 1999 as one of the

qualifying years in the Final Rule, the NMFS and the Secre-

tary violated 16 U.S.C. § 1853(b) because “present participa-

tion” is thereby not included in the Final Rule. The statute

reads: “Any [Fishery Management Plan] which is prepared by

any Council, or by the Secretary, with respect to any fishery,

may . . . establish a limited access system for the fishery in

order to achieve Optimum Yield if, in developing such a sys-

tem, the Council and the Secretary take into account (A) pres-

ent participation in the fishery, [and] (B) historical fishing

practices in, and dependence on, the fishery . . .” Id. Aside

from these factors, there are four other factors that must be

considered, including the economics of the fishery, the cul-

tural and social framework relevant to the fishery, the capabil-

ity of fishing vessels used in the fishery to engage in other

fisheries, and “other relevant considerations.” Id.

We previously dealt with similar claims in Alliance Against

IFQs v. Brown, 84 F.3d 343. In Alliance Against IFQs, the

NMFS implemented regulations for a Fishery Management

Plan regarding sablefish and Pacific halibut, assigning quota

shares based on participation in landings in 1984-90. NMFS

implemented the Final Rule in 1993, and the plaintiffs, a num-

ber of concerned fishermen, argued that the Final Rule vio-

lated the “present participation” requirement of the Magnuson

Act by not taking into account participation in fishing during

1991-93. Id. at 346. We concluded that the Secretary had

good reason for not including 1991-93 in the qualifying years

for a rule issued in 1993: the industry knew that a rule was

under consideration and recent fishing history might have

YAKUTAT v. GUTIERREZ 5327

skewed the data. Id. at 346-47. As we explained: “[I]f partici-

pation in the fishery while the rule was under consideration

had been considered, then people would have fished and

invested in boats in order to obtain quota shares, even though

that would have exacerbated overcapacity and made no eco-

nomic sense independently of the regulatory benefit.” Id. at

346. We held that we could not “characterize use of a 1988

through 1990 period as so far from ‘present participation’

when the regulation was promulgated in 1993 as to be ‘arbi-

trary and capricious.’ ” Id. at 348 (citing Wash. Crab Produc-

ers, Inc., 924 F.2d at 1441).

In the instant case, the Council noted a similar concern

regarding “present participation” while it debated the specif-

ics of the Final Rule to present to the Secretary. The Council

gave notice that 1999 might not qualify in order “to discour-

age new entrants into those fisheries based on economic spec-

ulation while the Council considers further controls on access

to those fisheries.” Alaska Fishing Participation, 64 Fed. Reg.

at 2,870. These concerns were not imagined. The data showed

a jump in participation by pot catcher/processor vessels dur-

ing 1999 from crabbing to Pacific cod fishing. Nevertheless,

the Council did not reject 1999 out of hand, but still consid-

ered whether 1999 should be a qualifying year. Alaska Fish-

ing Participation, 64 Fed. Reg. at 2,870. The Council actually

considered 106 alternatives, of which 42 included 1999 as a

qualifying year. Even when the Council submitted its pre-

ferred alternative, which did not include 1999 as a qualifying

year, the Council advised the Secretary of other options,

which included proposals to make 1999 a qualifying year. In

the end, the Secretary adopted the Council’s recommenda-

tions, published the Final Rule and responded to comments

regarding the “different requirements used for different meth-

ods of catching Pacific cod.” Final Rule, 67 Fed. Reg. at

18,134.

[7] Present participation is only one of six factors that must

be taken into account when promulgating a new rule for Fish-

5328 YAKUTAT v. GUTIERREZ

ery Management Plans. Alliance Against IFQs, 84 F.3d at 347

(“Congress left the Secretary some room for the exercise of

discretion, by not defining ‘present participation,’ and by list-

ing it as only one of many factors which the Council and the

Secretary must ‘take into account.’ ” (emphasis added)). The

Secretary exercised the discretion granted him in the Act by

concluding that a cut-off date was essential for the Final

Rule’s treatment of pot catcher/processor vessels. The Secre-

tary’s decision to reject the most recent year in favor of a

cumulation of the other five factors that also must be consid-

ered, is reasonable and consistent with our precedent. Alliance

Against IFQs, 84 F.3d at 348. We conclude that the Secretary

had a rational basis for not allowing “present participation” in

the form of including 1999 to take precedence over other rele-

vant factors under consideration in crafting the FMP amend-

ment.

2. The Final Rule Does Not Violate National Standard 4

[8] Yakutat argues that not including 1999 in the FMP as

a qualifying year is unfair and inequitable in contravention of

National Standard 4. National Standard 4 provides: “Conser-

vation and management measures shall not discriminate

between residents of different States. If it becomes necessary

to allocate or assign fishing privileges among various United

States fishermen, such allocation shall be (A) fair and equita-

ble to all such fishermen; (B) reasonably calculated to pro-

mote conservation; and (C) carried out in such a manner that

no particular individual, corporation, or other entity acquires

an excessive share of such privileges.” 16 U.S.C.

§ 1851(a)(4). See also 50 C.F.R. § 600.325(c)(3)(i).19 In Alli-

19

The NMFS guidelines for National Standard 4 state: “The motive for

making a particular allocation should be justified in terms of the objectives

of the FMP; otherwise the disadvantaged user groups or individuals would

suffer without cause.” 50 C.F.R. § 600.325(c)(3)(i)(A). Accord 50 C.F.R.

§ 600.325(c)(3)(i)(B) (“An allocation of fishing privileges may impose a

hardship on one group if it is outweighed by the total benefits received by

another group or groups. An allocation need not preserve the status quo

in the fishery to qualify as “fair and equitable,” if a restructuring of fishing

privileges would maximize overall benefits.”).

YAKUTAT v. GUTIERREZ 5329

ance Against IFQs, we noted that there is tension “between

fairness among all fishermen, preventing overfishing, promot-

ing efficiency, and avoiding unnecessary duplication, [which]

necessarily requires that each goal be sacrificed to some

extent to meet[ ] the others.” Alliance Against IFQs, 84 F.3d

at 349. “The Secretary is allowed, under this authority, to sac-

rifice the interests of some groups of fishermen, for the bene-

fit as the Secretary sees it of the fishery as a whole.” Id. at 350

(citing Alaska Factory Trawler, 831 F.2d at 1460).

Yakutat argues that the FMP amendment qualified two

boats that have clearly abandoned the fishing industry, while

it excludes the F/V Blue North, thereby demonstrating the

unfairness of the qualifying criteria. Yakutat contends that the

Council should have used base years 1996-99 as qualifying

years, which would include the F/V Blue North, and preclude

the qualification of other boats that have qualified for the

Pacific cod endorsement under the current regime.

The Secretary and the Council addressed directly the issues

raised by Yakutat, and examined the use of 1999 as a qualify-

ing year for pot catcher/processors. The Council explained

that it did not include 1999 in its final recommendation “to

ensure that vessels in the sector that had historical and consis-

tent participation based on the Council’s analysis of available

data would be allowed to continue to participate at a level that

reflected what the Council determined to be economic depen-

dence.” Final Rule, 67 Fed. Reg. at 18,134.

[9] Congress requires the Secretary to exercise discretion

and judgment in weighing the national standards in 16 U.S.C.

§ 1851, and the Secretary need only provide “a reason for

doing that which was consistent with the statutory standards.”

Alliance Against IFQs, 84 F.3d at 350. The Secretary, through

the Council, drafted a problem statement in June 1999 stating

his intent to remedy problems relating to the protection of

dependent fishermen and promotion of stability and rational-

ization of a fully utilized resource. This statement noted:

5330 YAKUTAT v. GUTIERREZ

“Longline and pot fishermen who have made significant long-

term investments, have long catch histories and are signifi-

cantly dependent on the BSAI cod fisheries need protection

from others who have little or limited history and wish to

increase their participation in the fishery.” Fisheries of the

Exclusive Economic Zone Off Alaska; Allocation of Pacific

Cod Among Vessels Using Hook-and-line or Pot Gear in the

Bering Sea and Aleutian Islands, 65 Fed. Reg. 51,554 (Aug.

24, 2000). The Council analyzed the individual catch histories

and reliance upon the Pacific cod fisheries utilizing specific

gear assignments and landing quantities, ultimately agreeing

on a “break even” point for economic dependence and send-

ing its recommendation to the Secretary with the EA/

RIR/IFRA.

The Council thoroughly investigated the inclusion of 1999

as a qualifying year for pot catcher/processor vessels, but con-

cluded that inclusion would not benefit those with significant

historical dependence on the Pacific cod industry. The Coun-

cil found that “under the Council’s preferred alternative,

approximately 9 vessels that landed P[acific] cod in the BSAI

in 1995-99 would no longer be allowed in the fishery. . . . The

9 vessels that drop out reported relatively few P[acific] cod

landings by comparison over the qualifying 1995-98 time

period, seven of which landed P[acific] cod in only one of the

qualifying years if at all. . . . This indicates that these vessels

were not historically dependent on the P[acific] cod fishery

and that the majority of their income likely comes from other

fisheries.”

[10] Yakutat argues that the Council’s lack of serious delib-

eration to include 1999 as a qualifying year tainted the deci-

sion, but Yakutat must demonstrate something more than the

fact that the Secretary allegedly did not give the decision the

consideration Yakutat would have liked. See Alaska Factory

Trawler, 831 F.2d at 1460 (“In order for a court to overturn

a Secretary’s decision, it must be shown that alleged irregu-

larities . . . affected such decision.” (emphasis added)). There-

YAKUTAT v. GUTIERREZ 5331

fore, in order to overturn a decision, plaintiffs must

demonstrate irregularities in the Secretary’s actions or show

that the Secretary followed incorrect procedures. Id. The

record does not support Yakutat’s claims. The Council pro-

vided the Secretary with the EA/RIR/IFRA and its recommen-

dations from the Council, and the Secretary viewed all 106

proposed alternatives prior to making his decision. The Secre-

tary possessed the entire record while making his decision,

and this record demonstrated that the Council’s proposed

alternative for Amendment 67 would achieve the goal of pro-

tecting fishermen with significant long-term investments and

long catch histories.

[11] The Secretary’s decision directly correlates with the

Council-issued statement in 1999 announcing the develop-

ment of the FMP amendment.20 Since both the Council and

the Secretary considered both historical dependence and con-

sistent participation in the industry while constructing the

FMP amendment, we cannot find the result unfair and inequi-

table. The Council and Secretary analyzed the 106 alterna-

tives for pot catcher/processors, and ultimately decided that

including 1999 as a qualifying year would not reflect histori-

cal and consistent participation or economic dependence.

Consistent with his responsibility to preserve the BSAI

fishery, the Secretary properly took into account

“[o]vercapitalization, excess harvest capacity, and economic

waste in a fishery” in order to conserve and maintain fishing

levels without hurting long-time participants. Final Rule, 67

Fed. Reg. at 18,135.

20

“The Council intends to address whether and how to further limit

access to the non-salmon fisheries under its authority. . . . [and] the Coun-

cil [is] to recommend to NMFS, by July 1, 1999, conservation and man-

agement measures to prevent Bering Sea pollock fishing operations from

exceeding in the aggregate the traditional harvest levels of those fishing

operations. . . . This document is intended to discourage speculative entry

into the non-salmon fisheries while potential management regimes [such

as amendment 67] to further control access to those fisheries are discussed

and possibly developed by the Council.” Alaska Fishing Participation, 64

Fed. Reg. at 2,871.

5332 YAKUTAT v. GUTIERREZ

Ultimately, the Secretary had to draw a line because of the

overall number of pot catcher/processors and the number of

vessels that would qualify based on the various criteria con-

sidered. Unlike the long and consistent history of fishing by

the hook-and-line and pot gear vessels, pot catcher/processors

had only a relatively recent history, with a number of boats

jumping in and out of the fishery. Therefore, the Secretary

and Council drew a line based on all the relevant information

and alternatives available at the time, and they offered a ratio-

nal reason for this line in their response to public comments.

See Final Rule, 67 Fed. Reg. at 18,135. Basing his conclu-

sions on the EA/RIR/IFRA which laid out all of the viable

alternatives for pot catcher/processors, the Secretary made a

rational decision to limit the number of newer participants and

draw a line for qualifying years.

[12] When the administrative agency has provided relevant

data supporting its decision, we owe deference to the agency’s

line-drawing. See Natural Res. Def. Council v. EPA, 966 F.2d

1292, 1306 (9th Cir. 1992) (“Without data supporting the

[agency action], we owe no deference to EPA’s line-drawing.

We thus hold that EPA’s [action] is arbitrary and capricious

. . . .”). As such, not including 1999 as a qualifying year based

on all of the relevant analysis and record available is neither

unfair or inequitable, nor is it arbitrary and capricious. See

Leather Indus. of Am., Inc. v. EPA, 40 F.3d 392, 409 (D.C.

Cir. 1994) (“Where the agency’s line-drawing does not appear

irrational and the [plaintiff] has not shown that the conse-

quences of the line-drawing are in any respect dire . . . we will

leave that line drawing to the agency’s discretion.”).

[13] The Secretary placed a higher premium on historical

participation and significant dependence, instead of focusing

solely on present participation. The Secretary determined that

by limiting entry of newer fishing vessels while assuring con-

tinued participation of historically dependent fishermen, the

FMP amendment would conserve the fishery by reducing

overcapitalization. Final Rule, 67 Fed. Reg. at 18,129, 18,134.

YAKUTAT v. GUTIERREZ 5333

The record provides a rational basis for the Secretary’s deci-

sion, and the Final Rule did not violate National Standard 4.

IV. CONCLUSION

The Secretary’s Final Rule for the BSAI FMP does not vio-

late the Magnuson Act or the Administrative Procedure Act.

The Final Rule is neither arbitrary and capricious, nor unfair

and inequitable. We therefore affirm the ruling of the district

court.

AFFIRMED.