Midwater Trawlers Coop. v. Department of Commerce
Citation: 35 ELR 20006
No. No. 03-35398, (9th Cir., 12/28/2004) aff'd on remand
The Ninth Circuit upheld the Secretary of Commerce's decision to allocate a portion of the U.S. harvest of Pacific whiting to the Makah Indian Tribe. Because the "best available scientific information" supports a sliding scale method of allocation, the National Marine Fisheries Service's (NMFS') reliance on that method for allocating the tribal share of the Pacific whiting harvest is neither arbitrary, capricious, nor an abuse of its discretion under the Magnuson-Stevens Fishery Conservation and Management Act. In addition, remand to the NMFS was unnecessary. It complied with the Administrative Procedure Act and a prior remand order that the agency "promulgate a new allocation consistent with the law and based on the best available science" when it conducted two new rulemakings, both of which sought public comment. Nor did the district court abuse its discretion by permitting the NMFS to supplement the record.
A prior decision in this litigation is published at 32 ELR 20532.