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Midwater Trawlers Coop. v. Department of Commerce

ELR Citation: 32 ELR 20532
Nos. Nos. 00-35717, -35853, 282 F.3d 710/(9th Cir., 03/05/2002)

The court affirms in part and reverses in part a district court decision upholding National Marine Fisheries Service (NMFS) regulations providing a Native American tribe an allocation of the Pacific whiting fishery. In the 1850s, Washington State entered into several treaties known as the Stevens Treaties with Native American tribes regarding fishing rights. The Stevens Treaties entitled the tribes to take 50% of the free-swimming fish within their usual and accustomed (U&A) fishing areas. Over a century later, the U.S. Congress passed the Magnuson-Stevens Act, which allowed NMFS to issue fishery management regulations. The Magnuson-Stevens Act required any NMFS regulations to be consistent with applicable Native American treaty rights. In 1996, NMFS issued a regulation that defined the tribe's U&A fishing area to extend to 40 miles off the coast of Washington State and that allocated to the tribe 15,000 metric tons of Pacific whiting. In 1999, NMFS issued another regulation increasing the tribe's allocation of Pacific whiting to 32,500 metric tons. Several commercial fishing organizations challenged the regulations arguing that the treaty rights could not be recognized as applicable law under the Magnuson-Stevens Act because there had been no judicial adjudication of tribal treaty rights to Pacific whiting.

The court first holds that such an adjudication is unnecessary. Under U.S. Supreme Court and circuit court precedent, a tribe need not prove its historic fishing of a particular area or a particular fish. The Stevens Treaties reserved to the tribes the right to take fish, and that right extends to any species. Moreover, the Secretary of Commerce, as represented by NMFS, appropriately recognized that the tribe's U&A fishing rights extended beyond the customary three-mile territorial limit. The Stevens Treaties do not provide a geographic limitation, and prior precedent recognized that the tribe's historic fishing grounds extended 40 miles out to sea. Nevertheless, the court holds that the 1999 NMFS regulation is inconsistent with the scientific principles of the Magnuson-Stevens Act and, therefore, must be remanded. The Act requires that regulatory allocations of fish and the extent of tribal fishing rights be based on the best scientific information available. The 1999 regulation was issued pursuant to a negotiated agreement between the National Oceanic and Atmospheric Administration and the tribe. As such, it is totally devoid of any scientific rationale. Consequently, the 1999 regulation is arbitrary and capricious, and, on remand, NMFS must promulgate a new allocation based on the best available science or provide further scientific justification for the 1999 allocation.

The full text of this decision is available from ELR (19 pp., ELR Order No. L-461).

Counsel for Plaintiffs
Jeffrey Adams, Ass't Attorney General
Attorney General's Office
1162 Court St. NE, Salem OR 97310
(503) 378-6002

Counsel for Defendants
David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000