observance of procedure required by law. Id.; 5 U.S.C. § 706(2).
The Ninth Circuit has emphasized the limited nature of review, stating that "we must uphold the Secretary's regulations unless they are arbitrary and capricious." Northwest Environmental Defense Center v. Brennen, 958 F.2d 930, 934 (9th Cir. 1992); See also, State of Maine, 563 F.2d at 1055 (courts may only determine whether Secretary's discretionary action under the Magnuson Act was "exercised rationally and consistently with the standards set by Congress and may not substitute its own judgment . . . for that of the Secretary"). This limited review applies to review of emergency regulations as well. Pacific Coast Federation, 494 F.Supp at 633 ("The only question is whether the Secretary has made a reasonable finding that an emergency involving the salmon fishery resource exists").
Plaintiffs seek to overturn the Secretary's actions on the ground that issuance of the emergency regulation was (a) arbitrary and capricious, and (b) done without observance of procedure required by law. 16 U.S.C. § 1855(b); 5 U.S.C. § 706(2)(A),(D). With respect to the former, plaintiffs contend that issuance of the emergency regulation was arbitrary and capricious because (1) the Secretary was obliged to approve and implement the Council's recommendations because they were consistent with the National Standards in the Magnuson Act, (2) the regulation violates three of the National Standards under the Magnuson Act, and (3) there was no reasonable basis for finding the existence of an emergency.
With respect to the latter, procedural challenges, plaintiffs contend that the Secretary's issuance of the emergency regulation was "not done in observance of procedure required by law" because (1) the Secretary failed to comply with procedures in the Administrative Procedure Act, (2) the Secretary failed to comply with procedures for changing the escapement floor set forth in the Fishery Management Plan, and, (3) the Secretary's meetings with the Secretary of the Interior violated the "Sunshine Act."
Each of these claims is discussed in turn.
ARBITRARY AND CAPRICIOUS ARGUMENTS
(1) Whether the Secretary was Obliged to Approve and Implement the Council's Recommendations because they were consistent with the National Standards in the Magnuson Act.
This claim raises the issue whether the Secretary acted arbitrarily in rejecting the Council's recommendations. In order to resolve this issue, some additional background regarding the Council's recommendation process and the Secretary's reasons for rejecting the Klamath chinook recommendations Is required.
The 1993 ocean management process began in March of 1993, with an initial round of meetings and preparation of reports, including the Salmon Technical Team's analysis of the 1992 season. This report found, among other things, that the spawning escapement of Klamath chinook adults had fallen below one-third of the 35,000 minimum floor believed necessary to avoid long-term declines, for the last three years (1990 - 1992). The 11,100 escapement for 1992 was the lowest on record. AR 25; AR 12.
During the process for accepting public input, The Secretary of the Department of the Interior submitted a letter in his capacity as trustee of the Hoopa Valley and Yurok tribes' federally reserved fishing rights. The letter noted that, while the precise share that the Indians were entitled to had not yet been legally quantified, it was his position that, as a reasonable and prudent trustee, he "must ensure" that at least 50 percent of the total allowable annual harvest be set aside for the "in-river" Indian fishery. AR 121. He further noted that because stock abundance had been extremely low in recent years, the Bureau of Indian Affairs had frequently curtailed Indian fishing to accommodate ocean fisheries, "causing the tribes to bear a large share of the conservation burden." Id.10
The Council ultimately developed three options which were subsequently narrowed to two, both of which provided a spawning escapement floor of 35,000. One option provided for a 15 percent ocean harvest rate, which assumed a 50 percent Indian in-river harvest rate; the other provided for a 22 percent ocean harvest rate, which assumed a 32.5 percent Indian in-river harvest rate.
During a further public comment period, a representative of the Interior Department reiterated that it was the Interior Department's clear intent to provide affected tribes with 50 percent of the harvestable fish. AR 251 at S-6. The Hoopa Valley and Yurok Tribe representatives also stated their opposition to any option that did not allow for a 50 percent in-river Indian harvest. AR 251 at S-12 to S-14. In the end, the Council recommended the second option which provided for a 22 percent ocean harvest, a 32.5 percent Indian in-river harvest, and a 35,000 escapement floor.
As noted above, the Secretary of Commerce can not enforce a 32.5 percent in-river harvest, as the rivers running through the reservations are under the jurisdiction of the Department of the Interior. Nor do plaintiffs dispute that if the Department of Interior followed through on its stated intent to allow a 50 percent in-river Indian harvest, it would be virtually impossible to meet the 35,000 escapement floor; rather, the escapement would be at most 21,000, or only 61 percent of the 35,000 minimum. AR 12 at 26923.
Given the above, the Secretary of Commerce conferred with the Secretary of the Interior upon receiving the Council's recommendations. The result was an agreement whereby the Department of Interior agreed to limit the tribal fishery to a 44.6 percent share (or 18,500 chinook) while the Department of Commerce agreed to increase the escapement floor to 38,000 natural spawners in an effort to improve future stock and compensate for past failures to meet the 35,000 floor. AR 13 at 31665; AR 257. To accommodate these changes, the Secretary of Commerce also reduced the ocean harvest rate to 14.5 percent, well below the Council recommended 22 percent.
The Secretary's disapproval of the Council's recommendations were clearly based on his conclusion that it would be impossible to achieve the 35,000 escapement floor in the event of a 50 percent Indian harvest, particularly given the unsatisfactory escapement levels achieved over the last three years. AR 12 at 26922-23; AR 13 at 31664. The emergency regulation, he explained, would help to achieve the 35,000 floor, and thus serve to rebuild the Klamath chinook stock, and prevent further overfishing. "The Department of Commerce believes that it is in the best long-term interest of the Klamath River fall chinook resource, the fishing industry, and the tribal fisheries, to achieve as large a spawning escapement as reasonably possible in 1993." AR 12 at 26923.
The Secretary acknowledged that the emergency regulation would reduce the ocean commercial and recreational harvest in the ocean south of Cape Falcon, Oregon by about 89,000 fish.
AR 13 at 31665. The Secretary stated, however, that he had "balanced the conservation need for additional spawners against the economic impacts on the ocean fishery in this year, and [had] determined that a spawning escapement of 38,000 retained spawners is a reasonable accommodation of the competing needs." AR 12 at 26923. He justified the temporary increase as scientifically supportable because the Council's salmon technical team had recommended a minimum spawning escapement floor of 43,000 and the end of the drought offered the best opportunity to begin to rebuild the stock to levels that would support healthy and sustained harvests by both tribal and non-tribal fisheries. AR 13 at 31665.
As a legal matter, the Secretary argues that his rejection of the Council's Klamath chinook recommendations must be upheld because he had a reasonable basis for concluding that the recommendations were inconsistent with National Standard One of the Magnuson Act. We agree.
National Standard One provides that:
Conservation and management measures shall prevent overfishing
while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.
16 U.S.C. § 1851(1)(emph. added). The depressed state of the Klamath chinook salmon stock and the need to rebuild it has been recognized for some time. AR 4, AR 141, AR 144. The December 1988 Amendment Nine, which set a minimum escapement floor of 35,000 was adopted as a necessary measure to achieve this goal. See AR-4. Given that the Council's past management measures have proved wholly unsuccessful in achieving the needed escapement, and the promise of a 50 percent Indian in-river harvest, it was eminently reasonable for the Secretary to conclude that a 22 percent ocean harvest rate would almost certainly result in yet another failed effort to achieve the minimum 35,000 escapement floor.
The result would be four years of overfishing of the Klamath stock (representing an entire life cycle), which would substantially impact the restoration and maintenance of a viable Klamath chinook population. AR 141, 144, 163, 210. As such, the Secretary could rationally conclude that the Council's Klamath chinook recommendations were inconsistent with his obligation to prevent "overfishing" under National Standard One. See, Brennan, 958 F.2d at 934 (Secretary must disapprove fishery management plan that does not comply with the National Standards).
Plaintiffs emphasize that the Councils are not meaningless advisory boards, and that the entire Magnuson Act scheme is premised on the Councils having a "meaningful role" in the process. This is certainly true; however, it is equally true that the Secretary's role is not to simply act as a rubberstamp for Council recommendations. Rather, the statute clearly charges the Secretary with reviewing the Council's recommendations, and places ultimate responsibility for compliance with Magnuson Act standards in that office. 16 U.S.C. § 1854(a)(1), (b)(1)(2).
Given all of the circumstances presented here, we can not find that the Secretary acted arbitrarily and capriciously in rejecting the Council's recommendations. Accordingly, his actions can not be judicially overturned on this ground. Cf. Washington Crab, 924 F.2d at 1449 ("As the Secretary has explained, his concern is with adequate escapement to perpetuate the various salmon species to enable the industry and sport to continue, and in particular, to see that the Indians get their allocated share in accordance with the treaties. Given this stated objective, the Secretary was correct to respond to this complaint as he did").
(2) Whether the Secretary's Emergency Regulation Violates Certain of the National Standards under the Magnuson Act.
In addition to arguing that the Secretary improperly rejected the Council's Klamath chinook recommendations, plaintiffs contend that the Secretary's substitute emergency regulation is arbitrary and capricious because it is inconsistent with National Standards One, Two, and Four of the Magnuson Act.
A. National Standard One
National Standard One, quoted above, mandates conservation and management measures that prevent overfishing while achieving an "optimum yield" from the fishery. 16 U.S.C. § 1851(1). As plaintiffs emphasize, and the Secretary acknowledges, his regulation will result in a loss of 89,000 catch for ocean fisheries, which will have significant economic consequences. On the other hand, the regulation will also preserve 3,000 more Klamath chinook for future spawning and increase the Indian in-river share by 1,100. See AR 12 at 26923; AR 257. Plaintiffs argue, however, that this lopsided cost-benefit violates the Secretary's duty to achieve an "optimum yield," as required by National Standard One.
Clearly, the 89,000 fish "cost" does not equal, in mathematical terms, the 4,100 fish "benefit"; however, such a discrepancy does not necessarily translate into a violation of National Standard One. The Act defines "optimum yield" in broad terms as the amount of the fish that will:
provide the greatest overall benefit to the Nation, with particular reference to food production and recreational opportunities; and . . . which is prescribed as such on the basis of the maximum sustainable yield from such fishery, as modified by any relevant economic, social, or ecological factors.
16 U.S.C. § 1802(21). No formal "cost-benefit analysis" is required. Alaska Factory Trawler Ass'n v. Baldridge, 831 F.2d 1456, 1460 (9th Cir. 1987). Nor is the Secretary required to demonstrate that he has chosen "the least restrictive alternative available for managing the . . . resource." Id. We are also mindful that the "optimum yield" requirement must be viewed in light of other language in National Standard One, which is aimed at avoiding overfishing.
Given the Administrative Record, the Secretary could rationally conclude that reducing the overall harvest and preserving spawners for future generations, would provide the "greatest overall benefit to the Nation" by aiding the Nation's long term interest in restoring depressed Klamath salmon stocks to healthy levels. The "numerical" cost-benefit disparity, while relevant, is clearly not dispositive under either the Act or Ninth Circuit authority.
It is also clear that the Secretary "balanced the conservation need for additional spawners against the economic impacts of the ocean fishery in this year." AR 12 at 26923. Where the Secretary has balanced the relevant economic and ecological factors, and related them to his conclusions, the Courts are less likely to disturb challenged regulatory action. See Washington Crab, 924 F.2d at 1149("The Secretary's interpretation of his duties and obligations are reasonable in that he 'has considered the relevant factors [under the Magnuson Act] and articulated a rational connection between the facts found and the choice made'").
Accordingly, we decline to find that the Secretary's action was arbitrary and capricious on the ground that the emergency regulation conflicts with National Standard One.
National Standard Four
Plaintiffs argue that the 89,000 - 4,100 disparity discussed above also violates National Standard Four because it establishes an unfair and inequitable distribution among fishermen. National Standard Four provides in part that:
If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation, and (c) carried out in such manner that no particular individual, corporation or other entity acquires an excessive share of such privileges.