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Washington v. Daley

ELR Citation: 29 ELR 21032
Nos. 97-35680, -36008, 173 F.3d 1158/(9th Cir., 04/02/1999)

The court reverses two district court decisions dismissing petitions by Washington State and three fishing associations to overturn a U.S. Department of Commerce regulation allocating groundfish catches off the Washington coast to four Native American tribes. Although the cases were not formally consolidated in the district court, the court combines them in this opinion because the cases challenge the same regulation and share common issues. The court first holds that the cases are not moot with regard to the petitioners' Magnuson Fishery Conservation and Management Act claims. Although the 1996 and 1997 fishing seasons are now past, the framework regulation is still effective. In addition, because the allocations have been and will continue to be made on the basis of the challenged regulation, the petitioners' injury is fairly traceable to that regulation. And the cases remain live because the injury suffered by petitioners would be redressed by a favorable decision. The court next holds that while the factual basis for the challenges to the regulation has changed since the institution of these proceedings, the cases are not moot. First, the challenged regulation remains effective. Second, the district court's decision in a subproceeding did not determine all of the tribes' treaty rights, nor did it determine the extent of the usual and accustomed grounds of those tribes. Third, the Pacific Fishery Management Council's recommended allocation does not insulate the regulation from review—if the regulation was arbitrary and capricious when promulgated, it still remains arbitrary and capricious.

The court next holds that the district court erred in dismissing the petitions pursuant to Fed. R. Civ. P. 19 for failure to join the tribes as necessary and indispensable parties. The tribes are not necessary parties because their interests can be adequately represented by the federal defendants. There is no conflict of interest between the tribes and the federal defendants in the instant matter. Furthermore, there is no clear potential for inconsistency between the Secretary's obligations to the tribes and its obligations to protect the fishery resource.

The court then holds that the district court correctly granted summary judgment on the association's Endangered Species Act (ESA) claims. The National Marine Fisheries Service reasoned that the increased bycatch of chinook salmon on the Snake River would not jeopardize the endangered species because the overall amount of the species had increased, the change was proportional, and the overall take was within the originally expected range. Because the agency followed the required steps and its conclusions were not arbitrary and capricious, the Department of Commerce did not violate the ESA. The court also holds that the district court correctly granted summary judgment on the association's Regulatory Flexibility Act claims. In finding that the agency action will not have a significant economic impact on a substantial number of small entities, the district court noted that the Secretary of Commerce concluded that the seven percent tribal allocation of whiting would result in a one to three percent reduction in annual gross revenue for the association. The plain language of the statute defeats the association's argument that the Secretary and the district court erred in considering the overall effect on its revenues, rather than the effect on revenue earned from the sale of whiting. The statute's language calls for the agency to consider the effect on the entity, not the effect on revenue earned from a particular harvest.

Counsel for Petitioner
Fonda Woods, Robert Costello, Ass't Attorneys General
Attorney General's Office
905 Plum St., Bldg. 3, Olympia WA 98504
(360) 753-6200

Counsel for Respondent
M. Alice Thurston
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Goodwin and Schroeder, JJ.