Petition for Writ of Certiorari — Sea Hawk Seafoods, Inc. v. Locke

Supreme Court, U.S.

FILED

= 09-67 3 DEC 8 - 2009

a ecreicts

In The William KX. Suter, Clerk

Supreme Court of the Gnited States

¢

SEA HAWK SEAFOODS, INC. ET AL..,

Petitioners,

V.

GARY F. LOCKE, ET AL..,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

4

PETITION FOR A WRIT OF CERTIORARI

4

LEONARD J. FELDMAN* KEVIN SULLIVAN

JASON T. MORGAN SULLIVAN & THORESON

MAREN R. NORTON 701 Fifth Avenue,

STOEL RIVES LLP Suite 3470

600 University Street, Seattle, WA 98104

Suite 3600 (206) 903-0504

Seattle, WA 98101

(206) 624-0900

December 8, 2009 *Counsel of Record

anne ere

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

The question presented is whether an agency

can effectively avoid judicial review under the Admin-

istrative Procedure Act of regulations required under

one statute by unilaterally promulgating the

regulations “in part” under a different statute that

severely limits judicial review. The Ninth Circuit’s

holding that agencies can do so conflicts with this

Court’s precedent and with decisions of every other

circuit that has addressed the issue.

li

LIST OF PARTIES

Plaintiff-Appellant-Petitioner:

Sea Hawk Seafoods, Inc.

Non-AFA Processors Association

Defendant-Appellee-Respondent:

Gary F. Locke

United States Department of Commerce

National Oceanic and Atmospheric Administration

National Marine Fisheries Services

ili

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Sea Hawk

Seafoods, Inc. represents that there is no parent

corporation or any publicly held corporation that

owns 10% or more of Sea Hawk Seafoods, Inc.’s stock.

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED........................ccceeseeees i

I iin canis cudsatcommapidaaicmminsbecaieiens ii

CORPORATE DISCLOSURE STATEMENT....... ili

PETITION FOR A WRIT OF CERTIORART ....... 1

Ee MFO vcssscacisecacsicicesssecsreneesenscesenctens 1

ae hai lit ag ccinccsacicnssaasbonsinssissinsancdes 1

AE te BT VION cesscccrecsccscoccessescccccesess 2

STATEMENT OF THE CASE.....................0cc0ecees 4

I. LEGISLATIVE AND REGULATORY BACK-

RAE TE I a Te 4

II. PETITIONERS AND THEIR CLAIMS

AGAINST THE AGENCY.................cceeceeees 8

REASONS FOR GRANTING THE PETITION ..... 10

I. THE NINTH CIRCUIT’S OPINION CON-

FLICTS WITH THIS COURT’S PRECE-

DENT AND WITH DECISIONS OF

EVERY OTHER CIRCUIT THAT HAS

ADDRESSED THE ISSUE...................e eee. 12

II. THE QUESTION PRESENTED INVOLVES

A RECURRING ISSUE OF SUBSTAN-

Ee BIE ciscsceccscsiscsctcnistscsetaseens 20

eI acct caseescobsassascsuceh bcxapsesnranmateveonesduis 23

TABLE OF CONTENTS -— Continued

Page

APPENDIX

Sea Hawk Seafoods, Inc. v. Locke, 568 F.3d 757

IE sci sncvsnsestvacksenceduunaxatcteneckenacion App. 1-21

Order Granting Defendant’s Motion to Dis-

miss, No. C06-1616-JCC (W.D. Wn. Aug. 14,

SEED icadaeucsescdbrabiicaedseedsessatopaskisnenianrsaneenne App. 22-26

Order Denying Petition for Rehearing and

Petition for Rehearing en banc, No. 07-35754

CHER CAE. TOW, Bh, BE? cvccccecsesvesserccccscesenssvsnes App. 27

vl

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Abbott Labs v. Gardner, 367 U.S. 136 (1967)............ 14

Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638

(ER ESTERS LAPSE Seer ees oe Pere eee 21

Amberg v. FDIC, 934 F.2d 681 (5th Cir. 1991).......... 14

Ball, Ball & Brosamer, Inc. v. Reich, 24 F.3d

ne EE I cs. adesccmuunmn sean sbabaceaonscasesias 15

Block v. Cmty. Nutrition Inst., 467 U.S. 340

PUTIN ixiscnddaiehibsonsiadenadausécansseuecetneabeutsssacauebaibindaciusess 13

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204

Ei anshalataibsikadbadipicswaddsassetebeiadesaeenaausda nara 15

Bowen v. Mich. Acad. of Family Physicians,

476 U.S. 667 (1986).............sccececseves 11, 13, 16, 17, 19

California v. Fed. Power Comm’n, 369 U.S. 482

Ta lng 21

Citizens to Preserve Overton Park v. Volpe, 401

U.S. 402 (1971), overruled on other grounds,

Califano v. Sanders, 420 U.S. 99 (1977) .............2.. 14

De Jesus Ramirez v. Reich, 156 F.3d 1273 (D.C.

NIE IIIT das cack ccabcinikeiecdaiannnenumaiuatapencanisuainmbedinssselian 16

El Rio Santa Cruz Neighborhood Health Ctr.

Inc. v. U.S. Dep’t of Health & Human Servs.,

SOS F.OG LESS CE).C. Civ, BOGS)... .cccscesccscccsscccessssceess 16

Japan Whaling v. Am. Cetacean Soc’y, 478 U.S.

I ssc la slacskdu tess ataeaiasioeamirnsaabasevememauniveu 13

Keene Corp. v. United States, 508 U.S. 200

PIII Cu ichaceatunssncenaksseaadsenguudeeusssenscedeugsearieeumenneeieanad 18

Vii

TABLE OF AUTHORITIES - Continued

Page

Marbury v. Madison, 5 U.S. (1 Cranch) 137

EaIIIIIN cssenpinsthaceconaneesnensnciabistibabiniihdeaiiaplasanaaedaniiebaauniisdiae 13, 23

Massachusetts v. Environmental Protection

Mapes, SEB B.. GBT CRIB) acosecesscsscoscccsssecssscoseveess 22

Memorial Hospital v. Heckler, 706 F.2d 1130

et Ge | See dicchenabialicihiniolabaadabadbanenes 15

Nagahi v. Immigration & Naturalization

Service, 219 F.3d 1166 (10th Cir. 2000).................. 14

FEDERAL STATUTES

3 RE RERNener eens eae nen nt Ne eee ENS STITT 2

Oy I I cs inva dhctindccnecdnempbannsicdaineniuateeatadaiial 22

TED cision sscsncanenseseubovenabeuniiounsubintniienes 7

se I vevvnvcnccunnstecsounsernencsveoauisuveseecaneuns 7

a Oe EE EI cccccucaccsnsescnicscsetscesecectenexeteneuten 7

I i cale dentctraiid deal’ 3,18

Ne TITS <4 darncsvndiionssiavwinceaiibseaouaséeaseioaeaane 7

a SERRATE enn See am 22

sak duabconsebenasenenl 22

I I oss ccs acanccsadupanneciensbunesendanenaiiananniil 1

a saad anauamuenaiin 22

ET Oe Re Ie Ree PO a 22

I eo ss ses sacnnsesipnbunsevabartaiatadionialed 3,6

ee eee Te SE BD vinsccecevscninsccscsnncsnccnicesssevenvatccn 22

Vill

TABLE OF AUTHORITIES — Continued

42 U.S.C. § 6976

42 U.S.C. § 7607

RULES

Fed. R. Civ. P. 12(b)(1)

Sup. Ct. R. 10(a)

REGULATIONS

67 Fed. Reg. 79,692

67 Fed. Reg. 79,721

OTHER AUTHORITIES

144 Cong. Rec. $12,696 (daily ed. Oct. 20, 1998)

144 Cong. Rec. $12,708 (daily ed. Oct. 20, 1998)

144 Cong. Rec. $12,781 (daily ea. Oct. 21, 1998)

1

PETITION FOR A WRIT OF CERTIORARI

Petitioners Sea Hawk Seafoods, Inc. and the

Non-AFA Processors Association (“Petitioners”) re-

spectfully petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Ninth Circuit in this case.

*

OPINIONS BELOW

The district court’s unpublished order granting

the United States’ motion to dismiss Petitioners’

claims pursuant to Fed. R. Civ. P. 12(b)(1) is repro-

duced in the appendix (“App.”) at 22-26. The Ninth

Circuit’s decision affirming the district court’s order is

published at 568 F.3d 757 (9th Cir. 2009), and is

reproduced at App. 1-21. The Ninth Circuit’s order

denying Petitioners’ petition for rehearing and

suggestion for rehearing en banc is reproduced at

App. 27.

&

v

JURISDICTION

The Ninth Circuit filed its decision on June 17,

2009 and denied Sea Hawk’s timely petition for

rehearing and suggestion for rehearing en banc on

September 21, 2009. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

2

STATUTORY PROVISIONS

Section 706 of Title 5 to the United States Code

provides:

To the extent necessary to decision and when

presented, the reviewing court shall decide

all relevant questions of law, interpret

constitutional and statutory provisions, and

determine the meaning or applicability of the

terms of an agency action. The reviewing

court shall —

(1) compel agency action unlawfully

withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency

action, findings, and conclusions found

to be —

(A) arbitrary, capricious, an abuse

of discretion, or otherwise not in

accordance with law;

(B) contrary to constitutional right,

power, privilege, or immunity;

(C) in excess of statutory juris-

diction, authority, or limitations, or

short of statutory right;

(D) without observance of proce-

dure required by law;

(E) unsupported by substantial

evidence in a case subject to sections

556 and 557 of this title or otherwise

reviewed on the record of an agency

hearing provided by statute; or

3

(F) unwarranted by the facts to

the extent that the facts are subject

to trial de novo by the reviewing

court.

In making the foregoing determinations,

the court shall review the whole record

or those parts of it cited by a party, and

due account shall be taken of the rule of

prejudicial error.

Section 1855(f)(1) of Title 16 to the United States

Code provides:

Regulations promulgated by the Secretary

under this chapter and actions described in

paragraph (2) shall be subject to judicial

review to the extent authorized by, and in

accordance with, chapter 7 of title 5, if a

petition for such review is filed within 30

days after the date on which the regulations

are promulgated or the action is published in

the Federal Register, as applicable; except

that —

(A) section 705 of such title is not

applicable, and

(B) the appropriate court shall only set

aside any such regulation or action on a

ground specified in section 706(2)(A),

(B), (C), or (D) of such title.

Section 2401(a) of Title 28 to the United States

Code provides:

Except as provided by the Contract Disputes

Act of 1978, every civil action commenced

4

against the United States shall be barred

unless the complaint is filed within six years

after the right of action first accrues. The

action of any person under legal disability

or beyond the seas at the time the claim

accrues may be commenced within three

years after the disability ceases.

é

vv

STATEMENT OF THE CASE

I. LEGISLATIVE AND REGULATORY BACK-

GROUND

Congress enacted the American Fisheries Act

(“AFA”) in 1998, among other things, to “rationalize”

the North Pacific Pollock Fishery by providing exclu-

sive rights to certain companies and vessels. App. 6.

In essence, the AFA granted statutory monopoly

power to fishing cooperatives formed under the AFA

and to AFA-designated processors. Jd. Congress

recognized that this monopoly power could have

adverse economic effects on nonparticipating proces-

sors. Id. As a result, the AFA requires the North

Pacific Council (the “Council”) to recommend manage-

ment measures and other protections for those

processors. Jd. at 6-7.

In passing the AFA, numerous members of

Congress specifically recognized the importance of

such measures and protections. In discussing the bill

that enacted the AFA, Washington Senator Patty

Murray stated:

5

“While we have attempted to include at least

a minimum level of protections for these

other fisheries, it is clear to many of us that

unintended consequences are likely. It is

therefore imperative that the fishery man-

agement councils not perceive the protec-

tions provided in this bill as a statement by

Congress that these are the only protections

needed. In fact, the opposite is true.”

App. 6 n.4 (quoting 144 Cong. Rec. $12,696, S12,708

(daily ed. Oct. 20, 1998)). Speaking for those

individuals “involved intimately in the development

of [the AFA],” Senator Murray “strongly urged” the

Council to “ensure that other fisheries are held

harmless to the maximum extent possible.” Jd.

Alaska Senators Frank Murkowski and Ted

Stevens echoed Senator Murray’s statements. Senator

Murkowski emphasized that AFA _ cooperatives

“should not be empowered by this legislation to gain a

competitive advantage in ... other fisheries to the

detriment of participants who have not benefited

from the resolution of the Pollock fishery problems.”

144 Cong. Rec. $12,708 (daily ed. Oct. 20, 1998).

Senator Stevens, in turn, added that “(t]he intent of

[AFA § 211(c)] is to protect processors that are not...

eligible from increased competition from shoreside

processors who have had a financial advantage as a

result of the increased pollock allocation under the

[AFA] or by receiving pollock under a fishery

cooperative.” 144 Cong. Rec. $12,781 (daily ed. Oct.

21, 1998).

6

Consistent with its legislative history, the AFA

specifically requires the Council to “‘protect proces-

sors not eligible to participate in the directed pollock

fishery from adverse effects’ resulting from the AFA.”

App. 7 (quoting AFA § 211(c)}(1)). The AFA also states

that the Council “‘shall recommend for approval by

the Secretary such conservation and management

measures as it determines are necessary to protect

... processors... from the adverse impacts caused by

[the AFA] or fishery cooperatives in the directed

pollock fishery.’” App. 7 (quoting AFA § 211(a)). These

protections are referred to as “sideboard protections”

or simply “sideboards.” Id.

As the Ninth Circuit correctly noted, the regu-

lations at issue in this proceeding “were prompted by

passage of the” AFA. App. 3. The summary included

with the final rules confirms that point; it specifically

states that the amendments and management

measures were necessary “to implement the AFA.”

App. 11 (quoting 67 Fed. Reg. 79,692). As a result,

any challenge to the regulations would necessarily be

subject te the six-year limitations period that applies

to agency action under the Administrative Procedure

Act (“APA”) because the AFA — the implementing

statute — does not include a shorter or different

limitations period. App. 14; see also 28 U.S.C. § 2401(a)

(“[E]very civil action commenced against the United

States shall be barred unless the complaint is filed

within six years after the right of action first

accrues.”).

The Magnuson-Steven Fisheries Conservation

and Management Act (“MSA”) also governs the

7

Council’s actions. Congress enacted the MSA in 1976

in an effort to, among other things, “‘conserve and

manage the fishery resources found off the coasts

of the United States.’” App. 3 (quoting 16 U.S.C.

§ 1801(b)(1)). The MSA requires the Council to

perform that function through “fishery management

plans” (“FMPs”), which are submitted by the Council

to the Secretary of Commerce (the “Secretary”) for

approval. App. 4. FMPs establish general limitations

on fisheries, including “seasonal restrictions and gear

limitations,” to “achieve and maintain, on a contin-

uing basis, the optimal yield from each fishery.” Jd.

(citing 16 U.S.C. § 1801(bX4)).

The MSA specifies the procedures for imple-

menting or amending an FMP. Upon receipt of an

FMP or amendment, the Secretary must publish a

notice in the Federal Register stating that the FMP

or amendment is available for public comment. Jd.

(quoting 16 U.S.C. § 1854(a)(1)(B)). Because FMPs

provide “seasonal restrictions” and generally govern

each forthcoming fishing season, they must be

reviewed and promulgated quickly. The public com-

ment period is therefore 60 days, and judicial review

is permitted only if a petition for review is filed

“within 30 days after the date on which the... action

is published in the Federal Register.” App. 5 (quoting

16 U.S.C. § 1855(f)(1)).

Although not required to do so by the AFA or the

MSA, the Agency here promulgated its AFA side-

boards by amending the FMPs that govern the Bering

Sea and Aleutian Islands (“BSAI”) pollock fishery.

8

App. 8.’ As a result, the regulations indicate that they

were developed “under the Magnuson-Stevens Act

and American Fisheries Act .. . to govern commercial

fishing for BSAI pollock according to the require-

ments of the AFA.” App. 11-12 (quoting 67 Fed. Reg.

79,721). Stated another way, the regulations were

promulgated using MSA rulemaking procedures even

though the purpose of the regulations was, as the

Ninth Circuit noted and the legislative history of the

AFA confirms, “to implement the AFA.” App. 11

(quoting 67 Fed. Reg. at 79,692).

Il. PETITIONERS AND THEIR CLAIMS

AGAINST THE AGENCY

Petitioners in this matter operate shoreside fish-

processing facilities in Alaska waters and are ad-

versely affected by the statutory monopoly granted to

eligible processors under the AFA. App. 9. Petitioners

complained to the Agency that the AFA regulations

did not provide adequate sideboard protections for

non-AFA shoreside processors with respect to fish

other than pollock (such as salmon, black cod, and

halibut). Jd. In particular, Petitioners were concerned

that beneficiaries of the statutory monopoly in the

pollock industry could use this competitive advantage

to leverage their monopoly power into the salmon

' As used herein, “Agency” refers to the U.S. Secretary of

Commerce, the U.S. Commerce Department, the National

Oceanic and Atmospheric Administration, and the National

Marine Fisheries Service. App. 2.

9

industry, which would of course undermine Peti-

tioners’ livelihood. App. 10.

Petitioners specifically advised the Council of

their concerns regarding “the anticipated encroach-

ment of AFA-owned or controlled processor vessels

into [Prince William Sound],” but the Council did

nothing to address that concern. App. 10-12. As the

Ninth Circuit correctly noted, “[aJlthough the AFA

required the Council to recommend sideboards for

both non-AFA catcher vessels and processors, AFA

§ 211(c)(1), the Council decided not to take any

action with regard to non-AFA processors.” App. 12

(emphasis added). Sea Hawk continued to complain,

prompting the Agency to write a May 18, 2006 letter

explaining its refusal to take appropriate action to

protect non-AFA processors. App. 12-13.

Upon receipt of the Agency’s unequivocal refusal

to take corrective action, Petitioners filed this law-

suit. Petitioners did so on November 8, 2006 — well

within the six-year limitations period applicable to

AFA actions. App. 13. The district court nevertheless

dismissed Petitioners’ complaint as time-barred, and

the Ninth Circuit affirmed. The central thrust of the

Ninth Circuit’s ruling is as follows:

[A]lthough the [regulations at issue] were

intended to implement AFA-related amend-

ments, the regulations were promulgated

under the MSA, even if in part. Accordingly,

the [MSA’s] thirty-day review period bars

as untimely [Petitioners’] challenge to the

regulations.

10

App. 16-17 (footnote omitted). In other words,

because the Agency unilaterally chose to promulgate

its AFA regulations pursuant to the rulemaking

procedures in the MSA, the Ninth Circuit affirmed

the district court’s dismissal of Petitioners’ lawsuit as

time-barred even though Petitioners filed that law-

suit within the six-year limitations period applicable

to AFA actions.

¢

REASONS FOR GRANTING THE PETITION

The question presented in this matter is whether

an agency can effectively avoid judicial review under

the APA of regulations required under one statute by

unilaterally promulgating the regulations “in part”

under a different statute that severely limits judicial

review. Here, the Agency promulgated amendments

to an FMP that, as the Ninth Circuit correctly

recognized, “were prompted by passage of the [AFA].”

App. 3. Under the AFA, a party has six years in which

to challenge such agency action. App. 14. But

“although the ... regulations were intended to

implement AFA-related amendments,” they were

“developed, published for review, and promulgated

pursuant to the ... procedures” set forth in the MSA.

App. 16. The MSA imposes a 30-day limitations

period, which the Ninth Circuit held “compelled”

dismissal of Petitioners’ challenge to the AFA amend-

ments as time-barred even though Petitioners asserted

that challenge within the six-year limitations period

applicable to AFA actions. App. 13-17.

11

This Court should review the judgment and

opinion of the Ninth Circuit because the court’s

opinion conflicts with controlling opinions of both this

Court and every other circuit that has addressed the

issue. This Court has repeatedly held that agency

action is subject to review under the APA and is

therefore subject to a six-year limitations period

absent “clear and convincing evidence of contrary

legislative intent.” Bowen v. Mich. Acad. of Family

Physicians, 476 U.S. 667, 671 (1986) (internal quota-

tion marks and citation omitted). Lower courts have

consistently followed Bowen. The Ninth Circuit, in

contrast, concluded that the six-year limitations

period for AFA regulations does not apply to

Petitioners’ claims and that the 30-day limitations

period in the MSA does apply to those claims based

on the Agency’s unilateral decision to promulgate AFA

regulations under the MSA. App. 16-17. That decision

says nothing about legislative intent, which is

dispositive on this point. Indeed, the Ninth Circuit’s

analysis conflicts with legislative intent: Congress

indicated those instances in which AFA regulations

are to be promulgated under the MSA, and this case

does not involve any such regulations.

It is equally clear that the question presented is

“important” and therefore warrants further review

under Sup. Ct. R. 10(a). Numerous agencies are

required to implement regulations pursuant to

overlapping regulations, many of which include short

limitations periods or provisions that otherwise

curtail judicial review. The Ninth Circuit’s opinion

12

provides a roadmap for such agencies to avoid or limit

judicial review: agencies can simply promulgate

regulations that are prompted by the passage of one

statute using the rulemaking procedures in another —

“more favorable” — statute. The result is that litigants

may be unable to challenge agency actions under a

given statute even if, as is true in this case, they do so

in full compliance with the limitations period and

other procedures applicable to that statute.

Moreover, the economic nature of the AFA

regulations underscores the importance of effective

judicial review. As noted, the AFA grants monopoly

power to a defined group of favored processors at

the direct expense of non-AFA processors. Congress

therefore emphasized the importance of protecting

non-AFA processors from adverse effects resulting

from the AFA. Given the absence of free market

competition, it is especially important that courts

step in, as necessary, to protect those whose liveli-

hoods and investments are at risk. For this reason

too, the Court should grant a writ of certiorari to

review the judgment and opinion of the Ninth Circuit.

THE NINTH CIRCUIT’S OPINION CON-

FLICTS WITH THIS COURT’S PRECE-

DENT AND WITH DECISIONS OF EVERY

OTHER CIRCUIT THAT HAS ADDRESSED

THE ISSUE

This Court has repeatedly explained that there is

a “strong presumption that Congress intends judicial

13

review of administrative action.” Bowen, 476 U.S. at

670. As a result, APA review “will not be cut off unless

there is persuasive reason to believe that such was

the purpose of Congress.” Jd. (internal quotation

marks and citation omitted). To satisfy this require-

ment, the party opposing judicial review must provide

“clear and convincing evidence” of “legislative intent”

to limit judicial review. Jd. at 671 (emphasis added;

internal quotation marks and citation omitted). As

the Court noted in Bowen, this legal principle dates

back to its landmark opinion in Marbury v. Madison,

5 U.S. (1 Cranch) 137, 163 (1803). Bowen, 476 U.S. at

670.

One way (perhaps the only way) to limit judicial

review of agency action is to point to “specific

language or legislative history that is a reliable

indicator of congressional intent.” Block v. Cmty.

Nutrition Inst., 467 U.S. 340, 349 (1984). Conversely,

Congress's failure to specifically provide for judicial

review in a statute “is certainly not evidence of intent

to withhold review.” Bowen, 476 U.S. at 671 (internal

quotation marks and citation omitted). In that cir-

cumstance, “where substantial doubt about congres-

sional intent exists,” the “general presumption

favoring judicial review of administrative action is

controlling.” Jd. at 672 n.3 (quoting Block, 467 U.S. at

350-51).”

* Numerous other opinions are to the same effect. See, e.g.,

Japan Whaling v. Am. Cetacean Soc’y, 478 U.S. 221, 230 n.4

(Continued on following page)

14

Lower courts have consistently adhered to these

legal principles and have consistently held that

agency action, including promulgation of regulations,

cannot preclude judicial review in the absence of

express Congressional intent to do so. In Amberg uv.

FDIC, 934 F.2d 681 (5th Cir. 1991), for example, the

Fifth Circuit considered whether an agency, through

regulation, could truncate the time period for an

aggrieved party to request a hearing. On the premise

that “judicial review will not be cut off unless there is

a persuasive reason to believe that such was the

purpose of Congress,” the Fifth Circuit held that the

agency could not and, therefore, the court had

jurisdiction to find the request was timely. Id. at 684.

Likewise, in Nagahi v. Immigration & Natu-

ralization Service, 219 F.3d 1166 (10th Cir. 2000), the

Tenth Circuit held that, in the absence of Con-

gressional authorization to “regulate the scope of the

judicial power vested by the statute,” the agency

could not limit the time for judicial review by

regulation. Specifically, the Tenth Circuit opined that

the district court erred in relying on agency

regulations to find the petitioner’s claim time barred.

“[A] statutory grant of legislative rulemaking au-

thority will not, as a general matter, be understood to

encompass the power to promulgate [limits on

judicial review] unless the power is conveyed by

(1986); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402,

410 (1971), overruled on other grounds, Califano v. Sanders, 420

U.S. 99 (1977); Abbott Labs v. Gardner, 367 U.S. 136, 140 (1967).

15

Congress in express terms.” Id. at 1170 (quoting

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204

(1988)).

The Eleventh Circuit followed suit in Memorial

Hospital v. Heckler, 706 F.2d 1130 (11th Cir. 1983). At

issue in that case was a provision in the Medicare Act

that exempted from judicial review findings that

particular items are not eligible for reimbursement.

The Secretary of the Department of Health and

Human Services relied on that provision to argue

that a regulation defining telephone service as a

“personal comfort” item and, as such, ineligible for

reimbursement was, therefore, immune from review.

Id. at 1132. The Eleventh Circuit rejected that

argument, noting that the Medicare Act did not

specifically include telephone service in its list of

exempt items. Insulating the “policy decisions of the

Secretary” from review would “give the Secretary

virtually unbridled discretion to prevent reimburse-

ments through regulation. Such a result would run

contrary to the presumption favoring judicial review.”

Id. at 1133.

The District of Columbia Circuit has similarly

ruled. In Ball, Ball & Brosamer, Inc. v. Reich, 24 F.3d

1447 (D.C. Cir. 1994), for example, the D.C. Circuit

considered the enforceability of a mandatory “incor-

poration clause” in construction contracts entered

into with the Department of Labor. That clause

incorporated all Department of Labor regulations into

the contract and, as such, the government argued

that the contractor was precluded from challenging

16

the validity of such regulations. The court found that

nothing in the Davis-Bacon Act “specifically autho-

rize{(d) the Secretary to promulgate regulations

requiring contractors to agree to waive judicial review

normally available under the APA.” Id. at 1451.

Absent “clear and convincing evidence” of Congres-

sional intent to preclude review, the “Secretary, there-

fore, cannot adopt regulations erasing the pre-

sumption of reviewability embodied in the APA.” /d.

at 1450-51. Other District of Columbia Circuit

opinions are to the same effect.’

The Ninth Circuit here ignored these controlling

legal principles in applying the MSA’s 30-day limi-

tations period to Petitioners’ claims. As noted pre-

viously, the central thrust of the Ninth Circuit’s

ruling that Petitioners’ claims are subject to the 30-

day limitations period in the MSA is that “although

the [regulations at issue] were intended to implement

AFA-related amendments, the regulations were

promulgated under the MSA, even if in part.” App.

16. In direct conflict with Bowen and other similar

* See, e.g., El Rio Santa Cruz Neighborhood Health Ctr., Inc.

v. U.S. Dep't of Health & Human Servs., 396 F.3d 1265, 1270

(D.C. Cir. 2005) (“The Supreme Court has long instructed that

the generous review provisions of the APA must be given a

hospitable interpretation such that only upon a showing of clear

and convincing evidence of a contrary legislative intent should

the courts restrict access to judicial review.” (internal quotation

marks and citation omitted)); De Jesus Ramirez v. Reich, 156

F.3d 1273, 1276 (D.C. Cir. 1998) (“it is only statutes, not agency

regulations, that can preclude otherwise available judicial

review”).

17

cases, the Ninth Circuit looked at the agency’s actions

in deciding to limit judicial review, thus giving the

agency unfettered discretion to limit judicial review of

its own actions.

The relevant inquiry here, which the Ninth

Circuit overlooked, is whether Congress, when it

passed the AFA in 1998, intended to restrict judicial

review of AFA § 211(c)(1) sideboard regulations. The

Ninth Circuit identified no such evidence of legisla-

tive intent, and indeed there is none. The AFA is

silent on judicial review. and therefore “the general

presumption favoring judicial review of administra-

tive action is controlling.” Block, 467 U.S. at 350-51;

Bowen, 476 U.S. at 671 (silence in statute regarding

judicial review of agency action “is certainly no

evidence of an intent to withhold review”). Accord-

ingly, the six-year limitations period in the APA, and

not the 30-day limitations period in the MSA, is

controlling.

Importantly, had the Ninth Circuit reviewed the

AFA for clear and convincing evidence of legislative

intent to limit judicial review, it would have found

evidence directly contrary to its holding. In specific

sections of the AFA, including § 211(c\2) regarding

limitations on crab and ground fish activities,

Congress instructed the Agency to act pursuant to the

“authority” of the MSA. By contrast the adjoining

section of the AFA at issue in this appeal, § 211(c)(1),

says nothing about either the authority or the

procedures of the MSA. If anything, the AFA shows

that Congress did not intend to limit judicial review

18

regarding the AFA § 211(cX1) regulations at issue

here.*

While it is true, as the Ninth Circuit noted (Op.

7233), that the MSA limits judicial review of agency

action, Congress’s intent in passing the MSA sheds no

light on its intent to limit judicial review under the

AFA, which Congress enacted years later. The AFA

was not an amendment to the MSA and did not

incorporate the “procedures” of the MSA or its

jurisdictional limitations. The AFA is a separate and

independent statutory obligation requiring the

Agency to take certain additional actions. Those

actions are subject to judicial review under the APA

(including that statute’s six-year limitations period)

unless the AFA indicates otherwise, which as noted

above it does not.

Indeed, the MSA itself states that its limitation

on judicial review applies only to “[rjegulations

promulgated by the Secretary under this chapter [the

MSA].” 16 U.S.C. § 1855(f). Notably the Ninth Circuit

did not conclude that the regulations at issue here

were promulgated “under” the MSA. Rather, the

Ninth Circuit concluded — based on agency action —

that the regulations “were promulgated, at least in

* See, e.g., Keene Corp. v. United States, 508 U.S. 200, 208

(1993) (“[W]Jhere Congress includes particular language in one

section of a statute but omits it in another ... it is generally

presumed that Congress acts intentionally and purposely in the

disparate inclusion or exclusion.” (internal quotation marks and

citation omitted; ellipsis in original)).

19

part, under the MSA.” App. 15 (emphasis added).

Congress did not state in the MSA that such actions

should be subject to the statute’s 30-day limitations

period. At the very least, there is “substantial doubt

about congressional intent,” in which case the

“general presumption favoring judicial review of

administrative action is controlling.” Bowen, 476 U.S.

at 672 n.3 (internal quotation marks and citation

omitted).

Finally, the Ninth Circuit also noted “in passing”

that applying the MSA’s 30-day limitations period to

Petitioners’ claims is “not particularly unfair.” App.

17. Whether it is fair or not is irrelevant under Bowen

and other such cases, which make clear that APA

review “will not be cut off unless there is persuasive

reason to believe that such was the purpose of

Congress.” Bowen, 476 U.S. at 670 (internal quotation

marks and citation omitted). Moreover, Petitioners

could not have known in 1999 (when they first

complained to the Agency) or in 2002 (when the AFA

regulations were promulgated) that the Agency would

ultimately refuse to take corrective action when

requested to do so in 2006. App. 12-13, 17-18. This

is not a “persuasive reason” — let alone “clear and

convincing evidence” of “legislative intent” — to limit

judicial review.

Equally important, applying the MSA’s 30-day

limitations period to AFA regulations ignores the

purpose of the AFA. As noted, the purpose of the

regulations at issue here is to “protect processors not

eligible to participate in the directed pollock fishery

20

from adverse effects as a result of this Act or fishery

cooperative in the directed pollock fishery.” AFA

§ 211(c)(1)(B). Unlike MSA regulations (such as gear

restrictions, catch limits, and season lengths), where

the impact is apparent from the outset, the impact of

anticompetitive behavior may not be apparent for

years. Contrary to the Ninth Circuit’s holding, it is

manifestly unfair to require affected parties to

challenge AFA regulations within 30 days or be

forever barred from so doing.

Il. THE QUESTION PRESENTED INVOLVES

A RECURRING ISSUE OF SUBSTANTIAL

IMPORTANCE

The above discussion shows that the Ninth

Circuit’s opinion is in direct conflict with the strong

presumption in favor of judicial review as set forth in

Bowen and the numerous other opinions cited above.

The Ninth Circuit’s reliance on agency action to limit

(and in this case preclude) judicial review creates an

irreconcilable conflict between circuit precedents,

which by itself warrants review. See Sup. Ct. R. 10(a).

The Ninth Circuit’s opinion also involves a

recurring issue of substantial importance, which

likewise warrants review. Id. While courts have

recognized Congress’s ability to limit judicial review

of agency action, no court has permitted federal

agencies to do so without Congressional authorization

or intent. Such a holding is directly contrary to

fundamental principles of judicial review. See, e.g.,

21

Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 650

(1990) (Congressional authority to implement statute

“does not empower the Secretary to regulate the

scope of the judicial power vested by the statute.”);

California v. Fed. Power Comm’n, 369 U.S. 482, 490

(1962) (“Our function is to see that the policy

entrusted to the courts is not frustrated by an

administrative agency.”).

Despite this body of law, the Ninth Circuit relied

on agency action to limit judicial review of the

Agency’s AFA § 211(c)(1) sideboard protections. As

explained above, the Agency uwnilaterally chose to

promulgate the AFA § 211(c)(1) sideboard protections

pursuant to the rulemaking procedures in the MSA,

without any indication of Congressional authorization

or intent. The Ninth Circuit relied on that unilateral

decision in applying the MSA’s 30-day limitations

period to Petitioners’ claims. As a result, the Agency

can now immunize its regulations from judicial

review under the APA simply by choosing to

promulgate its regulations — “at least in part” — under

the MSA. App. 16. Such a result is contrary to

controlling case law.

Nor is the opinion’s impact limited to AFA

regulations. Congress requires many federal agencies

to comply with a wide variety of overlapping statu-

tory mandates, many of which significantly limit

judicial review. One such statute (among many

others) is Section 307 of the Clean Air Act, 42 U.S.C.

§ 7607, which mandates a 60-day limitations period

for judicial review of clean air regulations. Under the

22

Ninth Circuit’s reasoning, the Environmental Pro-

tection Agency can limit judicial review of its actions

simply by promulgating any or all of its regulations —

“at least in part” ~ under the Clean Air Act.’

Many other statutes similarly limit judicial

review of agency actions. See, e.g., 28 U.S.C. §§ 2342,

2344 (60-day limitations period for challenges to

certain actions of six agencies, including Departments

of Agriculture and Transportation); 42 U.S.C. § 6976

(60-day limitations period for challenges to

regulations issued under Solid Waste Disposal Act);

7 U.S.C. §136n (60-day limitations period for

challenges to orders issued under Federal Insecticide

Fungicide and Rodenticide Act). Following the Ninth

Circuit’s analysis, numerous such agencies can now

trigger these limitations periods simply by promul-

gating regulations — “at least in part” — under such

statutes.

More troubling still, numerous federal statutes

completely preclude judicial review of certain agency

actions. See, e.g., 42 U.S.C. § 1395](t)(12) (precluding

review of certain Medicare decisions); 23 U.S.C.

§ 136(f) (precluding review of transportation plans);

22 U.S.C. §2778(h) (precluding review of certain

° In Massachusetts v. Environmental Protection Agency, 549

U.S. 497, 533 (2007), the Court criticized the EPA for failing to

regulate greenhouse gases based on jurisdictional and pru-

dential concerns, noting that “the use of the word ‘judgment’ is

not a roving license to ignore the statutory text” of the Clean Air

Act. The same reasoning applies here as well.

23

regulations under the Arms Export Control Act).

Thus, not only can federal agencies invoke the Ninth

Circuit’s analysis to limit the time period for judicial

review, but in some instances an agency could use the

Ninth Circuit’s decision to insulate its decisions from

any judicial review whatsoever.

As to all of these issues, the Court aptly recog-

nized in Marbury that “[tlhe very essence of civil

liberty certainly consists in the right of every indi-

vidual to claim protection of the laws, whenever he

receives an injury.” 5 U.S. at 163. The availability of

judicial review is a matter of national importance and

should not vary from circuit to circuit — as it would if

the Ninth Circuit’s decision is permitted to stand.

a

vw

CONCLUSION

For each of these reasons, this Court should

grant a writ of certiorari to review the judgment and

opinion of the Ninth Circuit.

Respectfully submitted,

LEONARD J. FELDMAN*

JASON T. MORGAN

MAREN R. NORTON

STOEL RIvES LLP

600 University Street, Suite 3600

Seattle, WA 98101

(206) 624-0900

Counsel for Petitioners

*Counsel of Record

App. 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SEA HAWK SEAFOODS, INC.,

an Alaska corporation; NOn-

AFA PRocEssors ASSOCIATION,

Plaintiffs-Appellants,

v.

GARY F. LOCKE, in his official DC.No

capacity as United States gh ty

Secretary of Commerce; CV-06-01616-JCC

UNITED STATES DEPARTMENT OPINION

OF COMMERCE; NATIONAL

OCEANIC AND ATMOSPHERIC

ADMINISTRATION; NATIONAL

MARINE FISHERIES SERVICE,

Defendants-Appellees.

No. 07-35754.

Appeal from the United States District Court

for the Western District of Washington

John C. Coughenour, District Judge, Presiding

Argued and Submitted

December 9, 2008 — Seattle, Washington

Filed June 17, 2009

Before: Ronald M. Gould, Richard C. Tallman

and Consuelo M. Callahan, Circuit Judges.

Opinion »y Judge Callahan

App. 2

COUNSEL

Leonard J. Feldman, Michael T. Shein, Kevin P.

Sullivan, Seattle, Washington, on behalf of appellants

Sea Hawk Seafoods, Inc. and the Non-AFA Processors

Association.

Anna T. Katselas, United States Department of Jus-

tice, Washington, D.C., on behalf of appellees Gary F-.

Locke, United States Secretary of Commerce; United

States Department of Commerce; National Oceanic

and Atmospheric Administration; and National Ma-

rine Fisheries Service.

OPINION

CALLAHAN, Circuit Judge:

Sea Hawk Seafoods, Inc. (“Sea Hawk”) and the

Non-AFA Processors Association (collectively, “Plain-

tiffs”) appeal the district court’s dismissal of their

claims against the United States Secretary of

Commerce (“Secretary”), United States Department

of Commerce (“Commerce Department”), National

Oceanic and Atmospheric Administration (“NOAA”),

and National Marine Fisheries Service (“NMFS”). We

consider whether the Magnuson-Stevens Fishery

Conservation and Management Act’s (“MSA”) thirty-

day statute of limitations, 16 U.S.C. § 1855(f), or the

Administrative Procedure Act’s (“APA”) general six-

year limitations period applies to Plaintiffs’ challenge

to regulations promulgated to implement amendments

to fishery management plans. These amendments

App. 3

were prompted by passage of the American Fisheries

Act (“AFA”).' We also consider whether Plaintiffs have

adequately alleged a “failure to act” claim under the

APA against NMFS and the North Pacific Council,

which is not a party here, related to the promulgation

of the challenged regulations. We conclude that the

MSA's thirty-day limitations period applies to bar

Plaintiffs’ direct challenge to the regulations and that

Plaintiffs’ failure to act claim is an impermissible

attempt to recast its direct challenge to the regu-

lations so as to avoid the MSA’s shortened limitations

period. Accordingly, we affirm the district court’s

dismissal of Plaintiffs’ claims.

I.

A.

In 1976, Congress enacted the MSA, 16 U.S.C.

§§ 1801-1883, in an effort to, among other things,

“conserve and manage the fishery resources found off

the coasts of the United States” and, in particular,

within the United States’ exclusive economic zone. 16

U.S.C. § 1801(b)(1); see generally Or. Trollers Ass’n v.

Gutierrez, 452 F.3d 1104, 1108 (9th Cir. 2006). The

MSA provides for the establishment of eight Regional

Fishery Management Councils (“Regional Councils”)

to oversee conservation and management efforts in

* Pub. L. No. 105-277, div. C., tit. II, §§ 205-213, 112 Stat.

2681-621 to 2681-637 (Oct. 21, 1998) (codified at 16 U.S.C.

§ 1851 note).

App. 4

various fisheries.’ 16 U.S.C. § 1852(a), (h). The overall

authority to implement those efforts, however, is dele-

gated to the Secretary, who acts through NMFS and

NOAA. See id. §§ 1853-1854.

The Regional Councils are required to prepare

and submit to the Secretary fishery management

plans (“FMPs”) and any amendments to such FMPs

as “are necessary from time to time.” Jd. § 1852(h)(1).

FMPs establish general limitations on fisheries, such

as seasonal restrictions and gear limitations, in order

to “achieve and maintain, on a continuing basis, the

optimum yield from each fishery.” Jd. § 1801(b)(4); see

also, e.g., 50 C.F.R. pt. 679. FMPs and amendments

thereto shall contain, among other things, “conserva-

tion and management measures ... consistent with

the [MSA] ... and any other applicable law.” 16

U.S.C. § 1853(a)(1(C). Upon receipt of a FMP or an

amendment, the Secretary must “publish in the Fed-

eral Registry a notice stating that the FMP or

amendment is available” for a public comment period

of sixty days. Id. § 1854(a)\(1)B). After receiving

comments, the Secretary may approve, reject, or par-

tially approve the submitted FMPs or amendments.

Id. § 1854(a)(3). Moreover, if the appropriate council

* Each council is made up of “individuals who, by reason of

their occupational or other experience, scientific expertise, or

training, are knowledgeable regarding conservation and

management, or the commercial or recreational harvest, of the

fishery resources of the geographical area concerned.” 16 U.S.C.

§ 1852(b)(2)(A).

App. 5

does not make a recommendation, or if the Secretary

is not satisfied with the recommendation made, the

Secretary can himself prepare a plan or an amend-

ment, likewise utilizing a sixty-day comment period.

Id. § 1854(c).

The MSA also contains a provision limiting

judicial review, which is at the center of this appeal:

Regulations promulgated by the Secretary

under [the MSA] and actions described in

paragraph (2) shall be subject to judicial

review to the extent authorized by, and in

accordance with, [the Administrative

Procedure Act (APA)], if a petition for such

review is filed within 30 days after the date

on which the regulations are promulgated or

the action is published in the Federal

Register. .. .

Id. § 1855(f)(1) (emphasis added). The actions de-

scribed in “paragraph (2)” are those “taken by the

Secretary under regulations which implement a fish-

ery management plan... .” Jd. § 1855(f (2).

B.

Additional legislation is implicated by this

appeal. In 1998, Congress enacted the American

Fisheries Act, which, among other things, attempted

to rationalize’ the North Pacific Pollock Fishery by

* Rationalize means to “make [an industry] more efficient

by reorganizing it in such a way as to dispense with unnecessary

(Continued on following page)

App. 6

providing exclusive rights to certain companies and

vessels. See AFA §§ 208-209. In essence, the AFA

created bilateral monopolies for fishing cooperatives

formed under the AFA, as well as AFA-designated

processors. See AFA §§ 208(f)(1), 210(b)(1); see also

Scott C. Matulich et al., Fishery Cooperatives as an

Alternative to ITQs: Implications of the American

Fisheries Act, 16 MARINE RESOURCE ECONOMICS 1, 4

(2001).

Congress recognized that this cooperative scheme

could have adverse economic effects on other fisheries

and non-participating processors.‘ Accordingly, the

AFA calls for the North Pacific Council (“Council”), one

of the Regional Councils, to recommend protections,

personnel or equipment.” NEw OXFORD AMERICAN DICTIONARY

1413 (Elizabeth J. Jewell & Frank Abate, eds., 2001).

* In discussing the bill that enacted the AFA, Senator Patty

Murray stated:

While we have attempted to include at least a mini-

mum level of protections for these other fisheries, it is

clear to many of us that unintended consequences are

likely. It is therefore imperative that the fishery

management councils not perceive the protections

provided in this bill as a statement by Congress that

these are the only protections needed. In fact, the

opposite is true. .. . Those of us involved intimately in

the development of this legislation strongly urge the

Councils to monitor the formation of fishery coopera-

tives closely and ensure that other fisheries are held

harmless to the maximum extent possible.

144 Cona. REc. S12,696-03, $12,708 (Oct. 20, 1998) (remarks of

Sen. Murray).

App. 7

referred to as “sideboard protections” or “sideboards,”

for those fisheries and processors.” The Council

shall recommend for approval by the Secre-

tary such conservation and management

measures as it determines necessary to pro-

tect other fisheries under its jurisdiction and

the participants in those fisheries, including

processors, from adverse impacts caused by

[the AFA] or fishery cooperatives in the

directed pollock fishery.

AFA §21l(a); see 50 C.F.R. § 679.64 (referring to

sideboard protections). Moreover, the AFA provides

that the Council “shall” by July 1, 1999 recommend

for approval by the Secretary conservation and man-

agement measures to prevent overharvesting and to

“protect processors not eligible to participate in the

directed pollock fishery from adverse effects” resulting

from the AFA. AFA § 211(c)(1).° It also authorizes the

* The North Pacific Council is one of the eight Regional

Councils established by the MSA. 16 U.S.C. § 1852(aX1){G). It

encompasses the states of Alaska, Oregon, and Washington, and

has authority over “the fisheries in the Arctic Ocean, Bering Sea,

and Pacific Ocean seaward of Alaska.” Jd.

* Section 211(c)(1) of the AFA states, in part:

(1) Required council recommendations. — By not later

than July 1, 1999, the North Pacific Council shall

recommend for approval by the Secretary conservation

and management measures to —

(A) prevent the catcher vessels eligible under

subsections (a), (b), and (c) of section 208 [of this

note) from exceeding in the aggregate the tradi-

tional harvest levels of such vessels in other

(Continued on following page)

App. 8

Secretary to take action if the Council does not make

recommendations or if the Secretary determines that

the Council’s recommendations are inadequate.’ Jd.

C.

The present action focuses on certain regulations

promulgated by NMFS in December 2002 (“2002

Regulations”), which concern four amendments to

FMPs and their implementing regulations.” See 67

fisheries under the authority of the North Pacific

Council as a result of fishery cooperatives in the

directed pollock fishery; and

(B) protect processors not eligible to participate

in the directed pollock fishery from adverse ef-

fects as a result of this Act [American Fisheries

Act, Pub.L. 105-277, Div. C, Title Il, Oct. 21,

1998, 112 Stat. 2681-616] or fishery cooperatives

in the directed pollock fishery.

’ Section 211(c\1) continues:

If the North Pacific Council does not recommend such

conservation and management measures by such date,

or if the Secretary determines that such conservation

and management measures recommended by the

North Pacific Council are not adequate to fulfill the

purposes of this paragraph, the Secretary may by

regulation restrict or change the authority in section

210(b) lof this note] to the extent the Secretary deems

appropriate, including by preventing fishery coopera-

tives from being formed pursuant to such section and

by providing greater flexibility with respect to the

shoreside processor or shoreside processors to which

catcher vessels in a fishery cooperative under section

210(b) [of this note] may deliver pollock.

* The summary to the amendments notes:

(Continued on following page)

App. 9

Fed. Reg. 79,692-79,739 (Dec. 30, 2002) (codified in

various sections of 50 C.F.R. pt. 679). Plaintiffs were

concerned that although the 2002 Regulations pro-

vided some protections for non-AFA “shoreside proces-

sors” against unfair competition related to pollock

fishing, the regulations did not provide adequate

sideboard protections for non-AFA shoreside pro-

cessors with respect to other types of fish, such as

salmon. In particular, Plaintiffs complained that these

regulations did not restrict AFA-related “floating shore-

side processors” from leaving a single geographic

The management measures include: measures that

allocate the Bering Sea and Aleutian Islands Manage-

ment Area (BSAI) pollock among the sectors of the

pollock processing industry and restrict who may fish

for and process pollock within each industry sector;

measures that govern the formation and operation of

fishery cooperatives in the BSAI pollock fishery;

harvesting and processing limits known as sideboards

to protect the participants in other fisheries from

spillover effects resulting from the rationalization of

the BSAI pollock fishery; measures that establish

catch weighing and monitoring requirements for ves-

sels and processors that participate in the BSAI

pollock fishery; and extension of the inshore/offshore

regime for pollock and Pacific cod in the Gulf of

Alaska (GOA) through December 31, 2004.

67 Fed. Reg. at 79,692.

’ “Shoreside processor” is defined as “any person or vessel

that receives, purchases, or arranges to purchase, unprocessed

groundfish, except catcher/processors, motherships, buying sta-

tions, restaurants, or persons receiving groundfish for personal

consumption or bait.” 50 C.F.R. § 679.2; see also AFA § 205(12).

” A “floating shoreside processor” or “stationary floating

processor” is defined as “a vessel of the United States operating

(Continued on following page)

App. 10

location in Alaskan waters after the pollock fishing

season and relocating to Prince William Sound,

Alaska to process salmon, which would impact Sea

Hawk’s business. In 1999, Sea Hawk had advised the

Council of its concerns as an established non-AFA

shoreside salmon processor located in Prince William

Sound regarding “the anticipated encroachment of

AFA-owned or controlled processing vessels into

[Prince William Sound].” Sea Hawk alleged that

“allowing AFA-created surplus processor ships to

enter any Alaska salmon fishery jeopardizes and

devalues the established shoreside facilities’ in-

vestments and development.”

The 2002 amendments were developed over a

three-year period and involved twelve Council meet-

ings as well as “numerous other public meetings.” 67

Fed. Reg. at 79,692. Regarding the provision of notice

and a public comment period, the background section

to the final rule explains that:

[wJhile [these amendments] were under

development, the deadlines and statutory

requirements of the AFA were met on an

interim basis through several emergency

interim rules.["] The final [Environmental]

as a processor in Alaska State waters that remains anchored or

otherwise remains stationary in a single geographic location

while receiving or processing groundfish harvested in the GOA

or BSAI.” 50 C.F.R. § 679.2.

' See 16 U.S.C. § 1855(c) (giving the Secretary the author-

ity to promulgate emergency regulations or interim measures,

(Continued on following page)

App. 11

Impact Statement) for [the amendments]

contains a summary of the extensive public

process involved in the development of the

amendments and describes the AFA-related

rulemaking completed [up to December

2002). The proposed rule for [the amend-

ments] was published on December 17, 2001

(66 FR 65028), with comments invited

through January 31, 2002. NMFS received

12 letters of comment by the end of the

comment period on the proposed rule, many

of which contained extensive comments on

various sections of the proposed rule. A

notice of availability of [the amendments]

was published on November 27, 2001 (66 FR

59225), with comments on the Amendments

invited through January 28, 2002. NMFS

received one comment letter on the amend-

ments that supported approval and no

comments that recommended disapproval.

Id. The summary included with the final rule states

that these amendments and management measures

were necessary “to implement the AFA” and were

intended to do so “in a manner consistent with the

environmental and socioeconomic objectives of AFA,

the [MSA], and other applicable laws.” 67 Fed. Reg.

at 79,692. The 2002 Regulations also note that they

“were developed by NMFS and the Council under the

Magnuson-Stevens Act and American Fisheries Act

and providing that such regulations or measures shall remain in

effect for not more than 180 days).

App. 12

(AFA) to govern commercial fishing for BSAI pollock

according to the requirements of the AFA.” ZId. at

79,721 (codified as amended at 50 C.F-.R. § 679.1).

Although the AFA required the Council to recom-

mend sideboards for both non-AFA catcher vessels

and processors, AFA § 211(c)(1), the Council decided

not to take any action with regard to the non-AFA

processors, explaining:

With respect to non-pollock groundfish

processing sideboards, the Council took no

action. The Council believed that placing

non-pollock groundfish processing limits on

AFA processors could have negative effects

on markets for both AFA and non-AFA

catcher vessels. In addition, the Council con-

cluded that its suite of harvesting sideboard

restrictions on AFA catcher vessels and

catcher/processors also serve to protect non-

AFA processors in the BSAI, which are

primarily non-AFA catcher/processors. In-

stead of imposing non-poliock processing

limits on AFA processors, the Council

indicated its intent to explore revisions to its

Improved Retention/Improved Utilization

program set out at 50 CFR 679.27. Testi-

mony from non-AFA processors indicated

that such changes could be a more effective

means of providing a more level playing field

for non-AFA catcher/processors.

66 Fed. Reg. at 59,228.

Plaintiffs challenged the Council’s decision not to

act. In a 2006 letter to NMFS, they requested that

App. 13

NMFS rescind part of its 2002 Regulations and take

appropriate action to protect the non-AFA processors

as required by the AFA. In reply, NMFS disputed the

application of the AFA to Plaintiffs, noting that the

AFA only provides for protection of “other fisheries

under [the Council’s] jurisdiction.” According to NMFS,

Plaintiffs, who are located in the territorial sea/

internal waters of Alaska, are not within the

Council’s jurisdiction under either the AFA or MSA.

y).

On November 8, 2006, nearly four years after the

2002 Regulations were promulgated, Plaintiffs filed a

complaint for declaratory and injunctive relief

against the Secretary, the Commerce Department,

NOAA, and NMFS (collectively, the “Agency”). The

complaint challenged the 2002 Regulations and

alleged that the Agency failed to act as required by

the AFA.

The Agency filed a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(1), asserting

that Plaintiffs’ action was untimely filed under the

MSA’s thirty-day limitations period. The district court

granted the Agency’s motion to dismiss and dismissed

the lawsuit with prejudice. The court concluded that

the 2002 Regulations were issued pursuant to the

MSA because they “were developed, published for

review, and promulgated under the [MSA’s] statutory

procedures and by authority delegated to NMFS as

part of the [MSA‘s] overall regulation of the federal

App. 14

fisheries.” As a result, the dismissal was compelled

by the thirty-day limitations period in 16 U.S.C.

§ 1855(f). The district court also rejected Plaintiffs’

claim that NMFS failed to implement measures man-

dated by the AFA.

II.

We review de novo a dismissal for lack of subject

matter jurisdiction. Ctr. for Biological Diversity v.

Veneman. 394 F.3d 1108, 1110 (9th Cir. 2005). We also

review de novo a dismissal based on the running of a

statute of limitations. Ellis v. City of San Diego, 176

F.3d 1188, 1188 (9th Cir. 1999). We may affirm “on

any proper ground supported by the record,” Papa uv.

United States, 281 F.3d 1004, 1009 (9th Cir. 2002),

but we assume that the material facts alleged in the

complaint are true. Rhoades v. Avon Prods., 504 F.3d

1151, 1156 (9th Cir. 2007).

ITT.

Plaintiffs first argue that the district court erred

by applying the MSA’s thirty-day statute of limi-

tations instead of the general, six-year statute of

limitations that otherwise applies to challenges under

the APA. Compare 16 U.S.C. § 1855(f)(1), with Turtle

Island Restoration Network v. U.S. Dep’t of Commerce,

438 F.3d 937, 942-43 (9th Cir. 2006) (“Although the

APA itself contains no specific statute of limitations, a

general six-year civil action statute of limitation

applies to challenges under the APA.”). They contend

App. 15

that the MSA’s expedited review period does not

apply to the 2002 Regulations because they were

promulgated under the AFA, not the MSA.

Challenges to “[rjegulations promulgated by the

Secretary” under the MSA must be brought “within

30 days after the date on which the regulations are

promulgated....”” 16 U.S.C. § 1855(f)(1); see also

Turtle Island, 438 F.3d at 944 (stating that “the thirty-

day time limit applies whenever a party challenges

‘rjJegulations promulgated by the Secretary under the

[Magnuson Act]’” (alterations in original, citation

omitted)). This is a “strict jurisdictional” requirement

that cannot be avoided “through careful pleading.”

Turtle Island, 438 F.3d at 945 (citation and internal

quotation marks omitted). Because there is no

dispute that Plaintiffs’ complaint directly challenges

the substance of the 2002 Regulations and was filed

more than thirty days after those regulations were

promulgated, the narrow question here is whether

the 2002 Regulations were promulgated under the

MSA. See id. at 948 (“Section 1855(f) applies only to

. Claims ... that clearly challenge regulations

promulgated under the Magnuson Act.”).

We conclude that the 2002 Regulations were

promulgated, at least in part, under the MSA.

* Regulations are “promulgated” within the meaning of

section 1855(f 1) when published in the Federal Register. Turtle

Island, 438 F.3d at 943-44 (citing Nw. Envtl. Def. Ctr. v.

Brennen, 958 F.2d 930, 934 (9th Cir. 1992)).

App. 16

Although the Agency’s final rule indicates that the

2002 Regulations were intended to “implement” certain

AFA-related amendments, 67 Fed. Reg. at 79,692, the

“purpose and scope” section of the final rule plainly

states that the regulations “were developed by NMFS

and the Council under the Magnuson-Stevens Act and

American Fisheries Act.” 67 Fed. Reg. at 79,721

(codified as amended at 50 C.F.R. § 679.1(k)). Fur-

- thermore, as the district court stated, the 2002

Regulations were “developed, published for review,

and promulgated” pursuant to the MSA’s procedures.

For example, in accordance with the MSA’s require-

ments, see 16 U.S.C. § 1854(a), the 2002 Regulations

were published by the Secretary upon receipt, and a

public comment period of sixty days was provided.”

67 Fed. Reg. at 79,692. The November 2001 notice

and request for public comment regarding the pro-

posed amendments also indicates that NMFS would

review the proposed rule implementing the amend-

ments to the FMPs under MSA procedures. 66 Fed.

Reg. at 59,228. Based on the foregoing, we conclude

that although the 2002 Regulations were intended to

implement AFA-related amendments, the regulations

were promulgated under the MSA, even if in part.“

* Plaintiffs’ opening brief acknowledges that NMFS followed

the MSA’s notice and comment procedures, but contends without

supporting authority that this fact is of “de minimus” value.

The nature of the relationship between the MSA and the

AFA is such that a challenge to the Secretary’s actions or

inactions under the AFA with respect to FMP amendments is

likely to invoke the MSA. The MSA is the vehicle through which

(Continued on following page)

App. 17

Accordingly, the thirty-day review period bars as

untimely Plaintiffs’ challenge to the regulations.

We note, in passing, that application of the MSA’s

thirty-day statute of limitations to Plaintiffs’ complaint

is not particularly unfair. Plaintiffs had notice of the

proposed amendments to the FMPs as early as 1999

and voiced concerns to the Council regarding the

impact of the regulations on salmon processors in

Prince William Sound. Thus, Plaintiffs cannot legiti-

mately claim surprise regarding the promulgation of

the 2002 Regulations and the need to immediately

file any suit challenging these regulations.

IV.

We also reject Plaintiffs’ challenge to the district

court’s dismissal of their “failure to act” claim alleged

pursuant to the APA, 5 U.S.C. §§ 551, 702, 706(1).

Their failure to act claim is an improper attempt to

plead around the MSA’s thirty-day statute of limita-

tions because the essence of their complaint remains

that the Secretary failed to conform to his responsi-

bilities under the AFA and/or the MSA with regard to

the specific regulations enacted.

regulations implementing FMP amendments are promulgated.

See 16 U.S.C. §§ 1853-1854. The MSA also requires that FMPs

be consistent with other applicable law, which would include the

AFA. 16 U.S.C. § 1853(aX1XC). Accordingly, in order for the

MSA’s limited judicial review period to have any meaning, it

must apply to actions that ~ like the one here — necessarily cha-

llenge the Secretary’s obligat.ons under the MSA.

App. 18

Although Plaintiffs’ briefs on this issue lack

clarity, their reply brief asserts that the “failure to act

was the Council’s failure to recommend sideboards to

‘protect processors not eligible to participate in the

directed pollock fishery from adverse effects as a

result of this Act [the AFA] ..., and NMFS’s failure

to recognize its power over salmon processor side-

boards.” In other words, their real complaint is that

the 2002 Regulations do not adequately protect

shoreside salmon processors like Sea Hawk from

floating shoreside processors that might begin

processing salmon after conclusion of the pollock

season. Specifically, Plaintiffs disagree with the

Council’s perspective that other sideboard protections

would adequately protect non-AFA processors. See 66

Fed. Reg. at 59,228. Regardless of the merits of the

dispute, Plaintiffs’ challenge is to the substance of the

2002 Regulations. Accordingly, the MSA’s thirty-day,

jurisdictional statute of limitations applies and bars

Plaintiffs’ lawsuit despite Plaintiffs’ characterization

of their claim as a failure to act claim. Cf. Am. Bird

Conservancy v. FCC, 545 F.3d 1190, 1193 (9th Cir.

2008) (rejecting plaintiffs’ attempt to plead a direct

challenge to an order of the FCC as a failure to act

claim).

If Plaintiffs’ failure to act claim were construed

as not being a challenge to the promulgation of a

specific regulation but rather as a claim that the

Secretary had failed to fulfill his overall obligations

under the AFA to protect salmon processors, it still

would not state a judicially cognizable claim. The APA

App. 19

provides that “(a] person suffering legal wrong be-

cause of agency action, or adversely affected or

aggrieved by agency action within the meaning of a

relevant statute, is entitled to judicial review thereof,”

5 U.S.C. § 702, and that a reviewing court has the

power to “compel agency action unlawfully withheld.”

Id. § 706(1)."° However, the United States Supreme

Court has held that “a claim under § 706(1) can

proceed only where a plaintiff asserts that an agency

failed to take a discrete agency action that it is

required to take.” Norton v. S. Utah Wilderness Alli-

ance, 542 U.S. 55, 64 (2004).

Here, the Secretary was not required to enact at

least some level of protection for salmon processors.

The text of AFA §211(c)(1) provides that if the

Council does not make protection recommendations

or makes recommendations that are not satisfactory,

the Secretary “may by regulation restrict or change

the authority in section 210(b) ... to the extent the

Secretary deems appropriate....” AFA § 211(c)(1)

(emphasis added). Because the word “may” implies

discretion, there is no legally required action imposed

on the Agency. See Norton, 542 U.S. at 64 (noting that

a court can only compel an agency “to perform a

‘ministerial or non-discretionary act’” (citation

omitted)).

““ The term “agency action” refers to “the whole or a part of

an agency rule, order, license, sanction, relief, or the equivalent

or denial thereof, or failure to act.” 5 U.S.C. § 551(13).

App. 20

Also, the alleged requirement that the Secretary

at least “consider” imposing some sanctions is

similarly not discrete or legally required. We have

previously rejected the argument that a requirement

“to consider” can give rise to an enforceable duty. See

Ctr. for Biological Diversity, 394 F.3d at 1113 (finding

no enforceable duty where the agency had to consider

“57 potentially eligible rivers while planning for the

use and development of water and related land re-

sources” (citing Norton, 542 U.S. at 64-65)). Moreover,

as the Supreme Court noted in Norton, “(gjeneral

deficiencies in compliance ... lack the specificity

requisite for agency action.” Norton, 542 U.S. at 66

(rejecting the claim based on the requirement that

* In Norton, the Court was concerned with courts in-

fringing upon the discretion delegated to the agencies:

The principal purpose of the APA limitations we have

discussed — and of the traditional limitations upon

mandamus from which they were derived — is to

protect agencies from undue judicial interference with

their lawful discretion, and to avoid judicial entangle-

ment in abstract policy disagreements which courts

lack both expertise and information to resolve. If

courts were empowered to enter general orders com-

pelling compliance with broad statutory mandates,

they would necessarily be empowered, as well, to

determine whether compliance was achieved — which

would mean that it would ultimately become the task

of the supervising court, rather than the agency, to

work out compliance with the broad statutory

mandate, injecting the judge into day-to-day agency

management.

542 U.S. at 66-67.

App. 21

the agency “‘manage ... in a manner so as not

to impair the suitability of [certain] areas for

preservation as wilderness’” (citation omitted)). Thus,

the Secretary’s alleged “failure to consider” is not

actionable under Section 706(1).

V.

We conclude that Plaintiffs’ complaint challenging

the 2002 Regulations is governed by the MSA's thirty-

day statute of limitations and is thus time-barred. We

also conclude that Plaintiffs’ complaint cannot be

rendered timely through Plaintiffs’ attempt to recast

their substantive challenges to these regulations as a

failure to act claim. Accordingly, the district court is

AFFIRMED.

App. 22

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

SEA HAWK SEAFOODS, INC.,

et al.,

Plaintiffs,

CASE NO.

V. C06-1616 JCC

CARLOS M. GUTIERREZ, ORDER

in his official capacity as

United States Secretary (Filed Aug. 14, 2007)

of Commerce et al.,

Defendants.

This matter comes before the Court on Defen-

dants’ Motion to Dismiss (Dkt. No. 7) under Federal

Rule of Civil Procedure 12(b)(1). The Court has

considered the papers filed by the parties in support

of and in opposition to the motion, as well as the

allegations in the complaint, and has determined that

oral argument is not necessary. The Court will

GRANT Defendants’ motion and ORDER that this

case be DISMISSED with prejudice.

Plaintiffs constitute a group of floating shoreside

fish-processing vessels in Alaskan waters. They seek

judicial review of regulations promulgated by the

National Marine Fisheries Service (“NMFS”) in 2002

that, according to Plaintiffs, inadequately protect

them from the economic effects of a_ statutory

App. 23

monopoly granted to other processing vessels. See,

e.g., 50 C.F_R. § 679.7(k)(3).

The present motion requires the Court to decide

a narrow question: whether the challenged regula-

tions were promulgated under (1) the Magnuson-

Stevens Fishery Conservation and Management Act

of 1976 (“Magnuson Act”), 16 U.S.C. §§ 1801-1883, or

(2) the American Fisheries Act of 1998 (“Fisheries

Act”), Pub. L. 105-277, Div. C, Title II, §§ 201-13, 112

Stat. 2681-261 to 2861-637 (codified as a note to 16

U.S.C. § 1851). If the former, Plaintiffs’ claim for

injunctive and declaratory relief is time-barred by the

30-day limitations period for review of regulations

promulgated under the Magnuson Act. See 16 U.S.C.

§ 1855(f). If the latter, the 30-day limitations period

in the Magnuson Act does not apply.

Plaintiffs assert that the regulations were devel-

oped to implement the economic protection measures

mandated by the Fisheries Act. This is true, but the

regulations were developed, subjected to public com-

ment, published in the Federal Register, and ulti-

mately promulgated in the Code of Federal Regu-

lations in precisely the manner directed by the

Magnuson Act. See generally 16 U.S.C. §§ 1853-54.

When NMFS published the final regulations in the

Federal Register, it explained that the pollock Fishery

Management Plan would be amended “to give effect

to the required and discretionary provisions of [the

Fisheries Act].” 67 Fed. Reg. 76,692 (Dec. 30, 2002)

(codified at 50 C.F.R. pt. 679). This demonstrates that

NMFS recognized its statutory duty under the

App. 24

Magnuson Act to amend a Fishery Management Plan

to ensure consistency with “any other applicable law,”

in this case the Fisheries Act. 16 U.S.C.

§ 1854(a)(1)(A). Indeed, the complaint alleges that by

failing to implement the mandates of the Fisheries

Act, the regulations violated the Magnuson Act.

Compl. 7] 30(b) & (c).

The Ninth Circuit has applied the Magnuson

Act’s 30-day limitations period under similar, if not

identical, circumstances. In Turtle Island Restoration

Network v. Department of Commerce, the court held

that the plaintiffs could not avoid the 30-day

limitations period by couching their complaint in

terms of an Endangered Species Act (“ESA”) viola-

tion. 438 F.3d 937, 945-46 (9th Cir. 2006). Although

the plaintiffs alleged that the administrative decision

to reopen a fishery violated the ESA, their real

dispute was with the regulations developed by NMFS

and promulgated under the Magnuson Act: “Standing

alone, [the administrative decision) did nothing. It

became operational, and allegedly unlawful, only

upon the promulgation of regulations reopening the

fishery.” Jd. Because the Magnuson Act contains an

explicit directive to amend Fishery Management

Plans in accordance with “any other applicable law,”

regulations implemented to comply with other laws

are still deemed promulgated under the Magnuson

Act. See id. at 946.

Plaintiffs argue that in Turtle Island and similar

cases, the plaintiffs were “collaterally attacking regu-

lations issued under [the Magnuson Act] by invoking

App. 25

a right of action created by [the ESA].” Plaintiffs

distinguish their own claim as a direct attack on

regulations “issued under the [Fisheries Act] for

noncompliance with the [Fisheries Act].” Pl’s Opp’n 8.

This is a false distinction. The regulations in this case

were developed, published for review, and promul-

gated under the Magnuson Act’s statutory procedures

and by authority delegated to NMFS as part of the

Magnuson Act’s overall regulation of the federal

fisheries.’

Plaintiffs’ claim for declaratory and injunctive

relief is a challenge to regulations promulgated under

the Magnuson Act. The complaint is governed by the

30-day limitations period in 16 U.S.C. § 18585(f).

Because Plaintiffs did not file their complaint within

30 days of the December 2002 publication of the

regulations, the Court lacks subject matter jurisdic-

tion.

The Court hereoy GRANTS Defendants’ motion

and ORDERS that this case be DISMISSED with

* The Court rejects Plaintiffs’ argument that NMFS simply

failed to implement the economic-protection measures mandated

by the Fisheries Act. Plaintiffs are dissatisfied with the scope of

the regulations because NMFS did not prohibit authorized

pollock processors from competing for salmon caught in Alaska’s

state waters. See 50 C.F.R. § 679.7(kX3); Fisheries Act § 211(a)

(regional council directed to enact measures to protect

participants in “other fisheries under its jurisdiction”). The fact

that NMFS construed its jurisdiction more narrowly than

Plaintiffs would have preferred does not mean that NMFS failed

to act.

App. 26

prejudice. Plaintiffs’ Motion for Summary Judgment

(Dkt. No. 13) is DENIED AS MOOT.

SO ORDERED this 14th day of August, 2007.

/s/ John C. Coughenour

John C. Coughenour

United States District Judge

App. 27

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SEA HAWK SEAFOODS, INC.,

an Alaska corporation; etal., | No. 07-35754

Plaintiffs-Ap?ellants, D.C. No.

CV-06-01616-JCC

Vv.

Western District of

CARLOS M. GU IERREZ, Washington, Seattle

in his official capacity as

United States Secretary ORDER

of Commerce; et ¢l., (Filed Sep. 21, 2009)

Defendants-Appellees.

Before: GOULD, TALLMAN and CALLAHAN, Cir-

cuit Judges.

The panel voes to deny the petition for rehearing

and the petition Pr rehearing en banc.

The full cour: has been advised of the petition for

rehearing en bart and no active judge has requested

a vote on whethe’ to rehear the matter en banc. (Fed.

R. App. P. 35.)

The petition for rehearing and the petition for

rehearing en ban: are DENIED.