Alaska Trojan Partnership v. Gutierrez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALASKA TROJAN PARTNERSHIP, 

Plaintiff-Appellant,

v. No. 04-35753

D.C. No.

CARLOS M. GUTIERREZ;* UNITED

STATES DEPARTMENT OF COMMERCE;  CV-04-00003-

NATIONAL OCEANIC AND J-RRB

ATMOSPHERIC ADMINISTRATION; OPINION

NATIONAL FISHERIES SERVICE,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Alaska

Ralph R. Beistline, District Judge, Presiding

Argued and Submitted

July 14, 2005—Anchorage, Alaska

Filed September 22, 2005

Before: Alfred T. Goodwin, Melvin Brunetti, and

William A. Fletcher, Circuit Judges.

Opinion by Judge Brunetti

*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).

13591

13594 ALASKA TROJAN PARTNERSHIP v. GUTIERREZ

COUNSEL

Michael A. D. Stanley, Juneau, Alaska, for the appellant.

James C. Kilbourne, Department of Justice, Washington,

D.C., for the appellees.

OPINION

BRUNETTI, Circuit Judge:

Alaska Trojan Partnership (“Alaska Trojan”) challenges the

decision of Carlos M. Gutierrez, in his official capacity as

Secretary of Commerce (“the Secretary”), the United States

Department of Commerce, the National Oceanic and Atmo-

spheric Administration, and the National Marine Fisheries

Service (“NMFS”)1 (collectively “defendants”) denying

1

National Marine Fisheries Service is now known as NOAA Fisheries.

ALASKA TROJAN PARTNERSHIP v. GUTIERREZ 13595

Alaska Trojan’s application for an Aleutian Islands brown

king crab endorsement under the license limitation program

(“LLP”) for the Bering Sea and Aleutian Islands groundfish

and crab fisheries. Defendants determined that Alaska Trojan

made only two “documented harvests” of brown king crab in

the Aleutian Islands brown king crab endorsement area during

the endorsement qualification period, January 1, 1992,

through December 31, 1994, and therefore denied Alaska Tro-

jan an Aleutian Islands brown king crab endorsement. Alaska

Trojan argues that it made three “documented harvests” and

therefore is entitled to receive an Aleutian Islands brown king

crab endorsement. Alaska Trojan argues that defendants’

interpretation of the term “documented harvest” is inconsis-

tent with the plain meaning of that term as defined in the reg-

ulations implementing the LLP, and that defendants’

interpretation of “documented harvest” is inconsistent with

the intent of the LLP. We agree with Alaska Trojan on both

issues and reverse the judgment of the district court granting

summary judgment for defendants. We further hold that

Alaska Trojan is entitled to summary judgment.

FACTS AND PROCEEDINGS BELOW

License Limitation Program

Pursuant to the Magnuson-Stevens Fisheries Conservation

Act, 16 U.S.C. §§ 1801, et seq. (“Magnuson Act”), Congress

delegated authority to the Secretary to manage and conserve

coastal fisheries. The Magnuson Act created independent fish-

ery councils to assist the Secretary in carrying out these man-

agement and conservation duties. See id. § 1852. The primary

duty of these councils is to prepare fishery management plans

and amendments to those plans, which the Secretary reviews

and, when appropriate, promulgates regulations to implement.

See id. §§ 1852(h), 1854(a)-(b). Pursuant to the Magnuson

Act, the North Pacific Fishery Management Council (“the

Council”) recommends fishery management plans for fish-

eries in the Arctic Ocean, the Bering Sea, and the Pacific

13596 ALASKA TROJAN PARTNERSHIP v. GUTIERREZ

Ocean seaward of Alaska. See id. § 1852(a)(1)(G). This court

has recently provided substantial background concerning the

Magnuson Act and the Council. See Yakutat, Inc. v. Gutierrez,

407 F.3d 1054, 1057-62 (9th Cir. 2005).

After reviewing several fishery management plans, at its

June 1995 meeting the Council ultimately adopted and sub-

mitted to NMFS an LLP to regulate crab harvesting as

Amendment 5 to the Fishery Management Plan for the Com-

mercial King and Tanner Crab Fisheries. Based on the Coun-

cil’s recommendation, NMFS published proposed LLP

regulations for notice and comment. 62 Fed. Reg. 43,866

(proposed Aug. 15, 1997) (hereinafter “Proposed Rule”).

NMFS prepared final regulations and forwarded them to the

Secretary for review. After the Secretary approved the LLP

regulations, NMFS published the final regulations to imple-

ment the LLP on October 1, 1998. Fisheries of the Exclusive

Economic Zone Off Alaska, 63 Fed. Reg. 52,642 (Oct. 1,

1998) (codified at 50 C.F.R. pt. 679) (hereinafter “Final

Rule”). Regulations establishing an application process and

transfer process for LLP licenses were promulgated on

August 6, 1999. 64 Fed. Reg. 42,826 (Aug. 6, 1999) (codified

at 15 C.F.R. pt. 902; 50 C.F.R. pt. 679). Anyone who wanted

an Aleutian Islands brown king crab endorsement was

required to file an application by December 17, 1999. See 50

C.F.R. § 679.4(k)(6)(i), (ii). Fishing under the LLP began on

January 1, 2000.

Under the LLP, crab licenses are endorsed for specific

areas and specific species. See generally id. § 679.4(k) (sub-

stantive requirements for groundfish and crab licenses). The

Aleutian Islands brown king crab endorsement regulation at

issue provides:

A crab species license will be assigned [by NMFS]

an Aleutian Islands brown king area/species endorse-

ment if at least three documented harvests of brown

king crab were made by a vessel during the period

ALASKA TROJAN PARTNERSHIP v. GUTIERREZ 13597

beginning January 1, 1992, through December 31,

1994 in the area described in the definition for an

Aleutian Islands brown king area/species endorse-

ment at [50 C.F.R.] § 679.2.

Id. § 679.4(k)(5)(ii)(D) (italics added; capitalization and ellip-

ses omitted). “Documented harvest” is defined as “a lawful

harvest that was recorded in compliance with Federal and

state commercial fishing regulations in effect at the time of

harvesting.” Id. § 679.2. “Harvest” is not defined, but

“[h]arvesting or to harvest means the catching and retaining

of any fish.” Id. The regulation defines the Aleutian Islands

brown king crab endorsement area as:

Aleutian Islands brown king in waters with an east-

ern boundary the longitude of Scotch Cap Light

(164° 44′ W. long.), a western boundary of the U.S.-

Russian Convention Line of 1867, and a northern

boundary of a line from the latitude of Cape Sarichef

(54° 36′ N. lat.) westward to 171° W. long., then

north to 55° 30′ N. lat., then west to the U.S.-

Russian Convention Line of 1867.

Id.

Prior to the promulgation of the final LLP regulations, the

term “legal landing” had been used in place of “documented

harvest” as the criterion for endorsements. The proposed

Aleutian Islands brown king crab endorsement regulation had

required “at least three legal landings of any amount of brown

king crab.” Proposed Rule, 62 Fed. Reg. at 43,888. “Landing”

is defined in the LLP regulations as “offloading fish.” 50

C.F.R. § 679.2. “Legal landing” is further defined as “a land-

ing in compliance with Federal and state commercial fishing

regulations in effect at the time of landing.” Id. The final LLP

regulations, however, replaced “legal landing” with “docu-

mented harvest.” NMFS explained the change, and the reason

for it, as follows:

13598 ALASKA TROJAN PARTNERSHIP v. GUTIERREZ

A definition for the term “documented harvest” is

added to the final rule. The term “documented har-

vest” replaces “legal landing” throughout the final

rule. The new term more accurately describes the

activity necessary for eligibility. Included in the pro-

posed definition of legal landing was the activity of

off-loading. Off-loading is not necessary for eligibil-

ity. Further, the area endorsement(s) a person is

issued should reflect the area in which fishing

occurred, not the area in which the fish were deliv-

ered.

Final Rule, 63 Fed. Reg. at 52,648 (describing the final rule).

NMFS administers the LLP through the Restricted Access

Management Program (“RAM”), an agency within the Alaska

Regional Office of NMFS. To determine which applicants

qualify to receive an LLP endorsement, RAM must use the

“official LLP record” prepared by NMFS. See 50 C.F.R.

§ 679.4(k)(6)(v). RAM “compare[s] all claims in the applica-

tion with information in the official LLP record.” Id. The “of-

ficial LLP record” is defined as:

the information prepared by the Regional Adminis-

trator [of NMSF] about vessels that were used to

participate in the groundfish or crab fisheries during

qualified periods for the groundfish and crab LLP

specified at § 679.4(k) . . . . Information in the offi-

cial LLP record includes vessel ownership informa-

tion, documented harvests made from vessels during

the qualification periods, and vessel characteristics.

The official LLP record is presumed to be correct for

the purpose of determining eligibility for licenses.

An applicant for a license under the LLP will have

the burden of proving the validity of information

submitted in an application that is inconsistent with

the official LLP record.

ALASKA TROJAN PARTNERSHIP v. GUTIERREZ 13599

50 C.F.R. § 679.2 (emphasis added). If the applicant’s claims

are consistent with the information in the official LLP record,

such claims will be accepted by RAM. 50 C.F.R. § 679.4(k)

(6)(v). If, however, the applicant makes an inconsistent claim,

the applicant has sixty days to “submit evidence to verify his

or her inconsistent claims.” Id. If RAM “determines that the

additional information or evidence meets the applicant’s bur-

den of proving that the inconsistent claims in his or her appli-

cation is correct, the official LLP record will be amended and

the information will be used in determining whether the appli-

cant is eligible for a license.” Id. § 679.4(k)(6)(vi). If RAM

determines that the additional evidence does not meet the

applicant’s burden, RAM notifies the applicant by an Initial

Administrative Decision that the inconsistent claim cannot be

approved. Id. § 679.4(k)(6)(viii). The applicant may then

appeal this decision to NMFS’ Office of Administrative

Appeals pursuant to 50 C.F.R. § 679.43.

The State of Alaska, through regulations implemented by

the Alaska Department of Fish and Game (“ADF&G”),

requires commercial fishermen to report the catching and buy-

ing of crab. This information is originally recorded on

ADF&G fish tickets. Relevant to this case, ADF&G requires

that “[e]ach buyer of raw fish . . . shall record each landing

on an ADF&G fish ticket.” 5 Alaska Administrative Code

(“AAC”) § 39.130(c). The ADF&G regulations also require

that the fish ticket separately list “the nearest headland or bay

or statistical catch area in which the fish were taken.” Id.

§ 39.130(c)(7). The Alaska Commercial Fisheries Entry Com-

mission (“State Commission”) collects information from

ADF&G fish tickets to create data bases. The State Commis-

sion refers to its data bases as the gross earnings file (“GE

file”) and the condensed gross earnings file (“CGE file”). The

administrative record for this case indicates that the GE file

contains a separate line for each state statistical area where a

crab catch was made.

The official LLP record for crab was derived solely from

information obtained from ADF&G fish tickets because fish

13600 ALASKA TROJAN PARTNERSHIP v. GUTIERREZ

tickets are the only available data source for catches of crab.

RAM does not receive and review the actual fish tickets.

Rather, the official LLP record relied on information obtained

from the State Commission’s data bases. Like the GE file, the

official LLP record contains a separate line for each state sta-

tistical area where a catch of crab occurred; catches from dif-

ferent state statistical areas reported on one fish ticket have

separate lines in the official LLP record.

The LLP was an interim program that has recently been

replaced by a quota system, the Crab Rationalization Pro-

gram. See 70 Fed. Reg. 10,174 (March 2, 2005) (codified at

15 C.F.R. pt. 902; 50 C.F.R. pts. 679 & 680) (describing Final

Rule). Under the Crab Rationalization Program, qualified har-

vesters are allocated a quota share in a particular fishery if

they hold a permanent, fully transferable LLP license

endorsed for that fishery. Id. at 10,174-75; 50 C.F.R.

§ 680.40(b)(3)(i). Quota share holders receive an annual allo-

cation to harvest a specific percentage of the fishery’s total

allowable catch. 70 Fed. Reg. at 10,175. Individual fishing

quotas are the annual allocations of pounds of crab for harvest

that represent a quota share holder’s percentage of the total

allowable catch.

F/V Alaska Trojan

Alaska Trojan is the owner of the catcher vessel F/V Alaska

Trojan. David Capri, formerly the captain of the F/V Alaska

Trojan, is a partner in Alaska Trojan. In 1994, five years prior

to RAM’s internal interpretation, Alaska Trojan invested

nearly $750,000 to reconfigure the F/V Alaska Trojan to par-

ticipate in the Aleutian Islands brown king crab fishery. The

F/V Alaska Trojan began fishing for brown and red king crab

on November 1, 1994. Brown king crab were caught on

November 5 and 7, 1994, in state statistical area 795200, an

area known as Petrel Banks in the Aleutian Islands brown

king crab endorsement area. Alaska Trojan had arranged in

advance to deliver this crab to, and then receive a fish ticket

ALASKA TROJAN PARTNERSHIP v. GUTIERREZ 13601

from, Mike Rosenthal, captain of the catcher/processor vessel

F/V Patricia Lee. Capri radioed Rosenthal on November 7,

but Rosenthal refused to take delivery because poor weather

made it difficult to offload the crab and because he wanted to

continue fishing for his own crab for processing rather than

process crab from other boats. Because of these circum-

stances, even though the F/V Alaska Trojan had caught brown

king crab from state statistical area 795200, Alaska Trojan

was unable at that time to evidence this catch with a fish

ticket. Instead, the F/V Alaska Trojan went to Kiska Island,

picked up gear and fished for crab but without success. The

F/V Alaska Trojan returned to Petrel Banks on November 12,

1994, and caught more brown king crab, this time from state

statistical area 805201, also in the Aleutian Islands brown

king crab endorsement area.

On November 24, 1994, the F/V Alaska Trojan delivered

the brown king crab it caught in state statistical areas 795200

and 805201 to the F/V Patricia Lee. Upon delivery of this

crab, Alaska Trojan was given one fish ticket. This fish ticket,

as prepared by Capri and Rosenthal, shows that the crab were

caught from state statistical areas 795200 and 805201.

Following the November 24 delivery, the F/V Alaska Tro-

jan continued fishing. The crab caught were landed in Dutch

Harbor on December 1, 1994. The fish ticket received for this

landing reports that brown king crab were caught from one

state statistical area in the Aleutian Islands brown king crab

endorsement area. Following the 1994 season, Alaska Trojan

has fished for brown king crab every year, and brown king

crab have been the primary, and in some years the only, crab

species harvested aboard the F/V Alaska Trojan.

Proceedings Below

Based on the information contained in the official LLP

record, RAM sent Alaska Trojan a letter stating that Alaska

Trojan had qualified for endorsements for five different crab

13602 ALASKA TROJAN PARTNERSHIP v. GUTIERREZ

species, none of which were brown king crab. Alaska Trojan

timely filed an application for an Aleutian Islands brown king

crab endorsement on December 6, 1999. RAM denied Alaska

Trojan’s application for this endorsement in an Initial Admin-

istrative Decision.

Alaska Trojan then appealed to the Office of Administra-

tive Appeals, arguing that it had three documented harvests

during the endorsement qualification period. Although Alaska

Trojan had only two fish tickets from 1994, those tickets dem-

onstrated that brown king crab were caught from three state

statistical areas on three separate occasions within the Aleu-

tian Islands brown king crab endorsement area, and these

catches were recorded in compliance with ADF&G regula-

tions. RAM responded with a copy of an Alaska Trojan fish

ticket received from ADF&G that had state statistical area

805201 crossed out, showing only a catch from area 795200.

Because ADF&G’s version of this fish ticket listed only one

state statistical area, the official LLP record also lists a catch

from only one state statistical area from this fish ticket.

Alaska Trojan did not know how or why 805201 was crossed

out.

Alaska Trojan argued that the official LLP record should be

amended to reflect the catch from state statistical area 805201.

It contended that once the official LLP record was amended

to include this third line representing a catch of brown king

crab from a distinct state statistical area, this third line entry

would evidence Alaska Trojan’s third documented harvest.

With a third documented harvest, Alaska Trojan would qual-

ify to receive an Aleutian Islands brown king crab endorse-

ment.

During the administrative appeal, RAM’s understanding of

what constituted a documented harvest of brown king crab

was revealed. RAM did not consider each line entry in the

official LLP record representing a catch from a state statistical

area to be a documented harvest. Rather, RAM personnel tes-

ALASKA TROJAN PARTNERSHIP v. GUTIERREZ 13603

tified that an “internal policy” was devised, as reflected in a

June 7, 1999, e-mail that stated: “For fish tickets, each valid

fish ticket of delivered catch will be counted as evidence of

one documented harvest.” This e-mail directive was translated

into an internal computer programming “business rule” that

RAM used to screen the official LLP record. In other words,

RAM adopted a “one fish ticket equals one documented har-

vest” rule: one “documented harvest” was all the crab of one

LLP species caught and retained from one LLP crab endorse-

ment area that was landed and recorded on one fish ticket,

irrespective of where and on how many occasions the crab

were caught. In an exception to RAM’s “one fish ticket equals

one documented harvest” rule not applicable here, RAM

allows for one fish ticket to equal two documented harvests

if the fish ticket showed that two different LLP species were

caught. This exception suggests that interpretations by RAM

can be made on the basis of separate catches that are repre-

sented on the fish ticket.

Neither the “internal policy” nor the “business rule” were

promulgated as regulations with notice and comment proce-

dures. As this interpretation was not in the LLP regulations

nor otherwise made available, Alaska Trojan’s administrative

appeal was the first time this interpretation surfaced publicly.

The Office of Administrative Appeals held a hearing on

RAM’s construction of the official LLP record. At the hear-

ing, RAM personnel testified that RAM did not consult with

the Council in formulating their interpretation. Rather, RAM

believed there was no ambiguity in the definition of “docu-

mented harvest” and its interpretation was based on “a

straightforward reading of the regulations.” In addition,

RAM’s Program Administrator acknowledged that a line

entry in the official LLP record does, in fact, document a har-

vest:

Mr. Smith [RAM Program Administrator]: . . . [I]f,

in relation to [the November 24] delivery, the fish

13604 ALASKA TROJAN PARTNERSHIP v. GUTIERREZ

ticket file had documented harvest of Brown King

Crab in two statistical areas, would the official LLP

record also have documented a harvest? Well, yes,

but it would not have been a documented harvest.

...

Q. [by Alaska Trojan’s Counsel]: Let me under-

stand. Your answer is it documents a harvest, but it’s

not a quote/unquote documented harvest?

A. For the purposes of the definition contained in

679.2, that’s correct.

Further, applying RAM’s interpretation, RAM’s Program

Administrator acknowledged that if the F/V Alaska Trojan

had not experienced poor weather and the F/V Patricia Lee

had decided to accept Alaska Trojan’s crab in early Novem-

ber, and therefore had issued the F/V Alaska Trojan another

fish ticket, “we wouldn’t be here” because Alaska Trojan

would have had three fish tickets during the endorsement

qualification period, representing three documented harvests.

The Office of Administrative Appeals issued a decision

denying Alaska Trojan’s appeal. It upheld RAM’s interpreta-

tion of “documented harvest” and RAM’s finding that Alaska

Trojan had only two documented harvests during the endorse-

ment qualification period, as represented by the November 24,

1994, and December 1, 1994, fish tickets. The Office of

Administrative Appeals subsequently denied Alaska Trojan’s

motion for reconsideration. Based on this decision, RAM sent

Alaska Trojan a letter of Final Agency Action invalidating

Alaska Trojan’s interim LLP license effective December 31,

2003, pursuant to which Alaska Trojan had been fishing dur-

ing the pendency of its administrative appeals. RAM also

issued Alaska Trojan a transferable LLP license without the

Aleutian Islands brown king crab endorsement.

ALASKA TROJAN PARTNERSHIP v. GUTIERREZ 13605

Alaska Trojan then filed a complaint in the United States

District Court for the District of Alaska challenging the denial

of its claim for an Aleutian Islands brown king crab endorse-

ment. Alaska Trojan alleged that defendants violated the

Magnuson Act and the Administrative Procedure Act, 5

U.S.C. §§ 551, et seq. Alaska Trojan moved for summary

judgment, defendants cross-moved for summary judgment,

and on July 27, 2004, the district court issued an order deny-

ing Alaska Trojan’s motion for summary judgment and grant-

ing defendants’ cross-motion. The district court entered a

final judgment the next day, and Alaska Trojan timely

appealed on August 25, 2004. We have jurisdiction pursuant

to 28 U.S.C. § 1291.

DISCUSSION

Standard of Review

This court reviews de novo the district court’s grant of sum-

mary judgment upholding an agency decision. Wards Cove

Packing Co. v. NMFS, 307 F.3d 1214, 1218 (9th Cir. 2002).

With certain exceptions not applicable here, defendants’ deci-

sion under the Magnuson Act is governed by the Administra-

tive Procedure Act. See 16 U.S.C. § 1855(f). This court is to

set aside defendants’ action only if it is arbitrary and capri-

cious, an abuse of discretion, or otherwise not in accordance

with the law. See 5 U.S.C. § 706(2)(A); see also Wards Cove,

307 F.3d at 1218. Substantial deference is given “to an agen-

cy’s interpretation of its own regulations.” Thomas Jefferson

Univ. v. Shalala, 512 U.S. 504, 512 (1994) (citations omitted).

This court “must defer to the Secretary’s interpretation unless

an ‘alternative reading is compelled by the regulation’s plain

language or by other indications of the Secretary’s intent at

the time of the regulation’s promulgation.’ ” Id. (citation

omitted); see also Auer v. Robbins, 519 U.S. 452, 461 (1997)

(An agency’s interpretation of its own regulations is “control-

ling unless plainly erroneous or inconsistent with the regula-

tion.”) (citations and internal quotation marks omitted);

13606 ALASKA TROJAN PARTNERSHIP v. GUTIERREZ

Wards Cove, 307 F.3d at 1218 (“An agency’s interpretation

of regulations it is charged with administering is entitled to a

high degree of deference and will be upheld as long as it is

not plainly erroneous or inconsistent with the regulation.”)

(citations omitted).

Interpreting “Documented Harvest” as a “Landing” Is

Plainly Erroneous

Alaska Trojan argues that RAM improperly interpreted

“documented harvest” to exclude one of its two November

1994 catches. “ ‘In ascertaining the plain meaning of [a] stat-

ute, the court must look to the particular statutory language at

issue, as well as the language and design of the statute as a

whole.’ ” McCarthy v. Bronson, 500 U.S. 136, 139 (1991)

(quoting K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291

(1988)) (alteration in original). When a statute or regulation

defines a term, that definition controls, and the court need not

look to the dictionary or common usage. Compare F.D.I.C. v.

Meyer, 510 U.S. 471, 476 (1994) (“In the absence of such a

definition, we construe a statutory term in accordance with its

ordinary or natural meaning.”). An agency’s interpretation of

a regulation must “conform with the wording and purpose of

the regulation.” Public Citizen Inc. v. Mineta, 343 F.3d 1159,

1166 (9th Cir. 2003). Thus, we must look not only at the defi-

nition of documented harvest in isolation, but also at that defi-

nition in the context of the entire LLP regulations, to

determine whether RAM’s interpretation is permissible.

[1] The LLP regulations do not leave “documented harvest”

undefined and thereby allow RAM to provide the interpreta-

tion it provided in this case. The LLP regulations expressly

define “documented harvest” as “a lawful harvest that was

recorded in compliance with Federal and state commercial

fishing regulations in effect at the time of harvesting.” 50

C.F.R. § 679.2. The LLP regulations also expressly define

another term, “legal landing,” as “a landing in compliance

with Federal and state commercial fishing regulations in

ALASKA TROJAN PARTNERSHIP v. GUTIERREZ 13607

effect at the time of landing.” Id. “Landing” is defined as

“offloading fish.” Id.

Even though at the time it derived its internal interpretation

RAM believed the term “documented harvest” unambigu-

ously meant “landing,” defendants now attempt to create

ambiguity in the definition of documented harvest by arguing

that “harvest”—a term used within the definition—is not

defined in the LLP regulations. Therefore, defendants argue,

RAM has the discretion to craft a reasonable interpretation as

to what constitutes a “harvest” for purposes of a “documented

harvest.” RAM interprets “harvest” to mean a “landing” of

crab, and this harvest is documented by an ADF&G fish ticket

received upon the offloading of the crab. RAM’s interpreta-

tion requires an offload of crab in order to be considered a

harvest of crab.

[2] Defendants are correct that “harvest” is not defined in

the LLP regulations. However, this court must look at the reg-

ulations as a whole in determining the plain meaning of a

term. See McCarthy, 500 U.S. at 139. It is clear from the LLP

regulations that a harvest cannot be defined as an offload, as

the LLP regulations separately define landing as an offload.

See 50 C.F.R. § 679.2. Moreover, while not defining “har-

vest,” the regulations do define “[h]arvesting or to harvest” as

“the catching and retaining of any fish.” Id. “Harvesting or to

harvest” is not defined as “offloading” or “receiving a fish

ticket.” Notably, “landing,” the one term defined in the LLP

regulations that is the nearest equivalent to receiving a fish

ticket, does not appear in this definition.

[3] Applying the plain meaning of “harvesting or to har-

vest” in relation to brown king crab, the definition of “docu-

mented harvest” would be “a lawful catching and retaining of

brown king crab that was recorded in compliance with Fed-

eral and state commercial fishing regulations in effect at the

time of harvesting.” The event that triggers a harvest under

the plain meaning of LLP regulations is not an offload of

13608 ALASKA TROJAN PARTNERSHIP v. GUTIERREZ

crab, but rather the lawful catching and retaining of crab, and

the recording of this catch in compliance with ADF&G regu-

lations. On an ADF&G fish ticket, ADF&G regulations

require that the fish ticket separately list “the nearest headland

or bay or statistical catch area in which the fish were taken.”

5 AAC § 39.130(c)(7).

Under RAM’s interpretation, a documented harvest of

brown king crab is an offload of crab through a landing as

evidenced by a fish ticket. RAM’s interpretation—that one

documented harvest is one fish ticket—effectively defines one

documented harvest as one legal landing. However, the LLP

regulations have a separate definition for “legal landing” as “a

landing in compliance with Federal and state commercial fish-

ing regulations in effect at the time of landing,” and “landing”

is defined as “offloading fish.” 50 C.F.R. § 679.2. Instead of

a “harvest” being “a lawful catching and retaining of brown

king crab,” RAM has re-written the definition of “docu-

mented harvest” to mean “a lawful offload of brown king crab

that was recorded in compliance with Federal and state com-

mercial fishing regulations in effect at the time of harvesting.”

[4] Had the Secretary preferred RAM’s interpretation that

a documented harvest is a legal landing, and thus an offload

is a requirement for eligibility, the term “legal landing” would

have been used instead of “documented harvest.” This court

need not speculate as to whether the Secretary actually

intended to mean legal landing instead of documented harvest

because, in promulgating the final LLP regulations, the Secre-

tary approved NMFS’ statement expressly stating that docu-

mented harvest was the preferred term over legal landing. The

proposed Aleutian Islands brown king crab endorsement reg-

ulation required “at least three legal landings of any amount

of brown king crab.” See Proposed Rule, 62 Fed. Reg. at

43,888. When the final LLP regulations were promulgated,

however, “legal landing” was replaced with “documented har-

vest.” This change was explained in the regulations as fol-

lows:

ALASKA TROJAN PARTNERSHIP v. GUTIERREZ 13609

A definition for the term “documented harvest” is

added to the final rule. The term “documented har-

vest” replaces “legal landing” throughout the final

rule. The new term more accurately describes the

activity necessary for eligibility. Included in the pro-

posed definition of legal landing was the activity of

off-loading. Off-loading is not necessary for eligibil-

ity. Further, the area endorsement(s) a person is

issued should reflect the area in which fishing

occurred, not the area in which the fish was deliv-

ered.

Final Rule, 63 Fed. Reg. at 52,648 (emphasis added). In other

words, while offloading (a landing) is necessary to obtain a

fish ticket and a fish ticket must be obtained under ADF&G

regulations, offloading (a landing) is not necessary for a catch

to be considered a “documented harvest.” Therefore, evidence

of one offload through one fish ticket is not necessarily evi-

dence of only one documented harvest. RAM’s interpretation,

however, mandates offloading as a necessary requirement for

a catch to be considered a documented harvest. While RAM’s

interpretation seems consistent with the definition of legal

landing, it is clearly inconsistent with the definition of docu-

mented harvest.

RAM’s reliance on the number of fish tickets to determine

the number of documented harvests misconstrues what a fish

ticket represents under the plain meaning of the LLP regula-

tory definitions. The regulations define a landing—but not a

documented harvest or a harvest—as “offloading fish.” 50

C.F.R. § 679.2. Fish tickets are the sole data source for

catches of crab. One fish ticket has a correlation to one land-

ing because a fish ticket is received upon the landing of crab.

One fish ticket, however, does not necessarily reflect that only

one harvest of crab took place. Instead, fish tickets are instru-

mentalities by which one or more harvests of Aleutian Islands

brown king crab are documented. The content of the fish

ticket will show how many harvests have occurred. It is the

13610 ALASKA TROJAN PARTNERSHIP v. GUTIERREZ

substance of the fish ticket that is material in the analysis, not

merely the form of one fish ticket.

The regulatory definition and construction of the official

LLP record, upon which an applicant’s claims are determined,

see id. § 679.4(k)(6)(v), further demonstrate how RAM’s

interpretation is inconsistent with the definition of docu-

mented harvest. The information in the official LLP record

includes “documented harvests made from vessels during the

qualification periods.” Id. § 679.2. The definition of the offi-

cial LLP record does not refer to “landings,” “offloads,” or

“fish tickets.” Information on documented harvests is

obtained from the State Commission’s data bases which list

each catch of crab not by fish ticket but by state statistical

area. Again, it is the substance of the fish ticket, and not the

total number of fish tickets, that is the basis for recording

catches. Similar to the State Commission’s data bases, catches

in the official LLP record are also not listed by fish ticket

number. Instead, catches are listed by the state statistical area

from where the crab were caught.

Defendants argue that the state statistical areas are placed

in the official LLP record only so that RAM can determine if

the crab were caught in the larger federal endorsement area.

Defendants correctly point out that RAM adds the federal

endorsement area to the official LLP record, an item of infor-

mation that is not included on the fish ticket. What is note-

worthy about the official LLP record, however, is not what

RAM added, but rather what is not done to the official LLP

record. The official LLP record tracked the State Commis-

sion’s data bases by documenting each catch by state statisti-

cal area, not by fish ticket number. Identification of the state

statistical area was not removed from the official LLP record

and, similar to the State Commission’s data bases, the state

statistical area remained a separate line representing a distinct

catch of crab. Moreover, the separate state statistical area

entries were not combined into a single entry where they were

associated with a single fish ticket. When the official LLP

ALASKA TROJAN PARTNERSHIP v. GUTIERREZ 13611

record was prepared, crab catches in different state statistical

areas retained their separate identities, even though such

catches were delivered on the same date and reported on one

fish ticket. Thus, the construction of the official LLP record

lends no support to RAM and in fact contradicts RAM’s inter-

pretation that one fish ticket represents one documented har-

vest. It is the substance of the fish ticket that represents each

line in the official LLP record, and RAM ignored this ines-

capable conclusion in its faulty interpretation.

In an attempt to support RAM’s interpretation, defendants

argue that in replacing “legal landing” with “documented har-

vest,” the Secretary actually intended to maintain “legal land-

ing” as the requirement for crab catcher vessels such as the

F/V Alaska Trojan. Defendants argue that this change in ter-

minology was done only to reflect the practice of catcher/

processor vessels who process their own catch on board and

can write themselves fish tickets without offloading their

catch. In addition to the fact that this rationale is found

nowhere in the LLP regulations, it is also inconsistent with

the structure of the LLP regulations. The LLP regulations

acknowledge that there are differences between catcher ves-

sels and catcher/processor vessels by, for example, separately

defining each term, see 50 C.F.R. § 679.2, and having sepa-

rate requirements for each vessel. See generally id. § 679.4.

In the proposed LLP regulations, crab catcher vessels—and

every other vessel—had to establish “at least three legal land-

ings of any amount of brown king crab.” Proposed Rule, 62

Fed. Reg. at 43,888. Had the Secretary actually intended

“legal landing” to remain the requirement for crab catcher

vessels, this requirement would have been left alone. Instead,

the Secretary approved the replacement of “legal landing”

with “documented harvest” “throughout the final rule,”

including as it relates to requirements for crab catcher vessels.

Final Rule, 63 Fed. Reg. at 52,648.

[5] Notably, under the new Crab Rationalization Program,

the Secretary has decided to measure quota share for crab

13612 ALASKA TROJAN PARTNERSHIP v. GUTIERREZ

catcher vessels according to legal landings, as opposed to

documented harvests. See, e.g., 50 C.F.R. § 680.40(b)(1)(i)

(“Catcher Vessel Owner . . . [quota share] shall be initially

issued to qualified persons . . . based on legal landings of

unprocessed crab.”). The Secretary could have required the

same under the final LLP regulations, but chose a different

measurement. Under the plain meaning of the final LLP regu-

lations, crab catcher vessels—along with every other vessel—

must have established three documented harvests of Aleutian

Islands brown king crab during the endorsement qualification

period, not three legal landings.2

Interpreting “Documented Harvest” as a “Landing” Is

Inconsistent with the Intent of the LLP as Expressed by

the Secretary

[6] Notwithstanding the fact that RAM’s interpretation is at

odds with the plain meaning of the regulatory definition of

“documented harvest,” RAM’s interpretation suffers a second

flaw: it is inconsistent with the intent of the LLP regulations

as expressed by the Secretary at the time of final promulga-

tion. See Thomas Jefferson Univ., 512 U.S. at 512; see also

Auer, 519 U.S. at 461.

As one landing is evidenced by one fish ticket, RAM

admits that its interpretation requires one landing of crab in

order to receive credit for one documented harvest. However,

2

The Secretary, in providing a definition as to what constitutes evidence

of a “documented harvest” of groundfish under the LLP, made a distinc-

tion between a “harvest” and a “landing.” Regarding groundfish, the LLP

regulation states: “For purposes of the license limitation program, evi-

dence of a documented harvest must be demonstrated by a state catch

report, a Federal catch report, or other valid documentation that indicates

the amount of license limitation groundfish harvested, the groundfish

reporting area in which the license limitation groundfish was harvested,

the vessel and gear type used to harvest the license limitation groundfish,

and the date of harvesting, landing, or reporting.” Id. § 679.4(k)(4)

(emphasis added).

ALASKA TROJAN PARTNERSHIP v. GUTIERREZ 13613

this interpretation equating one landing for one documented

harvest cannot be squared with the Secretary’s express intent

at the time the final LLP regulations were promulgated. As

discussed above, the proposed Aleutian Islands brown king

crab endorsement regulation required “at least three legal

landings of any amount of brown king crab.” See Proposed

Rule, 62 Fed. Reg. at 43,888 (emphasis added). When the

final LLP regulations were promulgated, the Secretary

approved NMFS’ replacement of “legal landing” with “docu-

mented harvest,” which stated that the term “documented har-

vest” “more accurately describes the activity necessary for

eligibility.” Final Rule, 63 Fed. Reg. at 52,648. NMFS noted

that a legal landing required an offload, and with the change

to the term documented harvest, “[o]ff-loading is not neces-

sary for eligibility.” Id. NMFS also stated that “the area

endorsement(s) a person is issued should reflect the area in

which fishing occurred, not the area in which the fish were

delivered.” Id.

[7] This was an important change because, as discussed

above, the terms “documented harvest” and “legal landing”

are not synonymous. These two terms have distinct and differ-

ent definitions in the LLP regulations. See 50 C.F.R. § 679.2.

The Secretary approved NMFS’ express statement at the time

of the final LLP regulations’ promulgation that this change in

terminology was to reflect that “[o]ff-loading is not necessary

for eligibility.” Final Rule, 63 Fed. Reg. at 52,648. This was

a clear, expressed intent that one offload does not necessarily

equate to one documented harvest because offloading is not

necessary for a catch to be considered a documented harvest.

By this statement, the Secretary made clear that the substance

of the fish ticket, and not simply a fish ticket by itself, is cru-

cial in determining what constitutes a “documented harvest.”

[8] RAM’s interpretation contravenes this intent by requir-

ing an offload of a catch for that catch to be considered a doc-

umented harvest. Under RAM’s interpretation, evidence of an

offload—a fish ticket—is now the determining factor as to

13614 ALASKA TROJAN PARTNERSHIP v. GUTIERREZ

whether a catch is a documented harvest. Further, where the

fish are delivered—through evidence of a fish ticket—is now

paramount in contrast to where the crab were harvested,

which could be evidenced by the state statistical area where

the crab were caught. Because the Secretary evidenced the

intent that evidence of an offload is no longer necessary for

eligibility, RAM’s interpretation is inconsistent with that

intent. See Thomas Jefferson Univ., 512 U.S. at 512.

Defendants argue that the change from “legal landing” to

“documented harvest” was not really a substantive change.

This argument is belied by the clear meaning of the preceding

sentence describing this change as a “substantive change[ ] to

the final rule.” Final Rule, 63 Fed. Reg. at 52,648. As one

offload—in other words, one landing—was no longer

required for a catch to be considered one documented harvest,

this must be considered a substantive change in the regula-

tions.

In support of its argument that equating “documented har-

vest” with “landing” is consistent with the Secretary’s intent,

defendants point to the Council’s use of the term “landing”

when projecting the number of permits that would be issued

under different alternatives. Notwithstanding the fact that

RAM did not seek the Council’s input when formulating its

internal interpretation, it is not entirely clear that the Council

was referring to the number of fish tickets when it used the

term “landing” in relation to crab. The Council defines a land-

ing of groundfish as “a legal landing of any amount of any

groundfish species under the management auspice of the

NPFMC [the Council] and NMFS, with the exception of

sablefish which is managed under a separate IFQ program.”

However, the administrative record contains no documents in

which the Council defined what it considered to be a landing

of crab. Defendants’ argument is plausible because a landing

of either crab or groundfish is defined in the LLP as “offload-

ing fish,” see 50 C.F.R. § 679.2, and the only way to docu-

ment an offload of crab is through a fish ticket. Further,

ALASKA TROJAN PARTNERSHIP v. GUTIERREZ 13615

ADF&G regulations also state that “each landing” must be

recorded “on an ADF&G fish ticket.” 5 AAC § 39.130(c).

However, as Alaska Trojan points out, the Council’s source

of landing information came from the State Commission’s

data bases, specifically the CGE file. Both the State Commis-

sion’s CGE file and its similar GE file contain information

derived from ADF&G fish tickets. The administrative record

shows that Alaska Trojan presented evidence that, similar to

the official LLP record, the GE file contains a separate line

for each state statistical area representing where crab were

caught and not for each fish ticket representing where crab

were offloaded. Also similar to the official LLP record, the

GE file does not group all state statistical areas into one line

representing the fish ticket number. Alaska Trojan argues that

there is no evidence in the record nor any reason to assume

that the data presented in the CGE file was any different than

the data presented in the GE file. Therefore, Alaska Trojan

suggests that by landings, the Council was referring to each

line in the GE file, which would correspond to state statistical

areas, not fish tickets.

Even assuming that by “landing” the Council was referring

to one fish ticket, defendants disregard the fact that the Secre-

tary’s intent changed at the time the final LLP regulations

were promulgated. While the Council may have considered

fish tickets, it later clarified and expressly stated that offload-

ing is no longer necessary for eligibility. RAM’s interpreta-

tion may have been consistent with the proposed LLP

regulations requiring three legal landings, but it is inconsistent

with the final LLP regulations requiring three documented

harvests.

Alaska Trojan Is Entitled to an Aleutian Islands Brown

King Crab Endorsement

[9] Generally, when an agency commits an error of law,

this court remands to the agency to reconsider its decision as

13616 ALASKA TROJAN PARTNERSHIP v. GUTIERREZ

required by law. See NLRB v. Enter. Ass’n, 429 U.S. 507, 522

n.9 (1977) (“When an administrative agency has made an

error of law, the duty of the Court is to ‘correct the error of

law committed by that body, and, after doing so to remand the

case to the (agency) so as to afford it the opportunity of exam-

ining the evidence and finding the facts as required by law.’ ”)

(quoting ICC v. Clyde S.S. Co., 181 U.S. 29, 32-33 (1901)).

Here, defendants have committed an error of law through

RAM’s impermissible interpretation of “documented harvest”

as a “landing.” In the interests of judicial economy, however,

this court need not remand to defendants for a new interpreta-

tion. Instead, we hold that, under the facts of this case, there

is no reasonable interpretation that defendants could adopt

that would deny Alaska Trojan an Aleutian Islands brown

king crab endorsement. The circumstances surrounding the

two catches reported on the November 24, 1994, fish ticket

demonstrate that these two catches were “harvests” within the

meaning of the LLP regulations and, having been recorded in

compliance with state regulations, must be deemed “docu-

mented harvests.” See 50 C.F.R. § 679.2.

It is important to point out that, under the new Crab Ratio-

nalization Program, Alaska Trojan’s receipt of an Aleutian

Islands brown king crab endorsement will not cause any dis-

ruption in the ecology of the designated Aleutian Islands

brown king crab endorsement area. Under the new program,

if Alaska Trojan did not receive an Aleutian Islands brown

king crab endorsement, then other vessels would have

received the quota share and annual individual fishing quota

that would have gone to Alaska Trojan. However, once

Alaska Trojan receives its Aleutian Islands brown king crab

endorsement, Alaska Trojan may receive a quota share and

annual individual fishing quota based on its own harvesting

history. Because the Crab Rationalization Program mandates

a total allowable catch for the fishery, the amount of brown

king crab that could be harvested will remain the same.

ALASKA TROJAN PARTNERSHIP v. GUTIERREZ 13617

CONCLUSION

[10] We REVERSE the part of the district court’s order

granting summary judgment to defendants, VACATE the part

denying summary judgment to Alaska Trojan, and REMAND

to the district court with instructions to enter summary judg-

ment in favor of Alaska Trojan.

The preliminary injunction ordered by this court on August

8, 2005, directing defendants to allow Alaska Trojan to partic-

ipate on an interim basis in the Western Aleutian Islands gol-

den king crab fishery that opened on August 15, 2005, as if

Alaska Trojan had originally qualified for an Aleutian Islands

brown king crab endorsement on its license, No. LLC3873,

shall remain in effect pending Alaska Trojan’s receipt of an

Aleutian Islands brown king crab endorsement on its perma-

nent, transferable LLP license.