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Glacier Fish Co. v. Pritzker

ELR Citation: 46 ELR 20138
Nos. 15-35103, (9th Cir., 08/10/2016)

The Ninth Circuit held that NMFS may collect cost recovery fees for the Pacific groundfish fishery from individual members of the Pacific whiting catcher-processing sector, but that NMFS’ calculation of the 2014 cost recovery fee for that sector was inconsistent with its own regulation. Under the rule, NMFS requires members of a Pacific whiting catcher-processor cooperative to pay a percentage of the revenue earned by each vessel as a fee to NMFS. A member of that coop filed suit, challenging NMFS' requirement that it pay a fee of 1.1% of its 2014 revenue. The court held that NMFS has the authority to collect a cost-recovery fee from the individual members of the coop. The catcher-processor coop permit is a "limited access privilege" under the Magnuson-Stevens Fishery Conservation and Management Act, and the member could reasonably be said to be a "holder" of that permit. In addition, NMFS applied an appropriate cost accounting methodology. But NMFS’ calculation of the 2014 cost recovery fee was inconsistent with its own regulations. NMFS did not properly determine the "actual incremental costs" that were "directly related to the management, data collection, and enforcement of each sector" for assessment on the members of the catcher-processor sector. The court therefore reversed a lower court's grant of summary judgment in favor of NMFS to the extent it upheld the Service's fee calculation and remanded the matter so that it could re-determine that fee in accordance with its regulations.