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November 2, 1993

BRUCE BABBITT, as Secretary of the UNITED STATES DEPARTMENT OF THE INTERIOR, and in his individual capacity; RON BROWN, as Secretary of the UNITED STATES DEPARTMENT OF COMMERCE, and in his individual capacity, Defendants.

The opinion of the court was delivered by: THELTON E. HENDERSON

 This matter came before the Court on Tuesday, August 10, 1993 on the parties' Cross-Motions for Partial Summary Judgment and defendants' Motion to Strike Plaintiffs' Affidavits and Limit Review to the Administrative Record. Having carefully considered the parties' written and oral arguments, and the record herein, the Court grants defendants' motion to strike, and grants in part, and denies in part, the cross-motions for summary judgment as set forth below. *fn1"



 The focal point of this action is the popular Klamath River fall chinook. These salmon spawn in the Klamath River and its upper tributaries, migrate downstream to the ocean, and then return to their fresh water origins at age three or four to spawn and then die. An unfortunate combination of overfishing, prolonged drought, and habitat degradation, have led to significantly depressed levels of Klamath chinook stock, to the detriment of commercial fishing interests, sport fishermen, and the Native American tribes who rely on these fish for subsistence and ceremonial needs. See, United States v. Eberhardt, 789 F.2d 1354, 1363 (9th Cir. 1986) (conc. opin.) (overfishing has depleted the stocks of Klamath River fish). The conflicts inherent in having a chinook population too small to satisfy the needs of all who have a stake in the Klamath salmon are what underlie this case.

 Plaintiffs are commercial fishermen and commercial fishing associations *fn2" who contend that the Secretary of Commerce ("The Secretary") improperly reduced, by way of an invalid emergency regulation, the Klamath chinook ocean harvest rate for the fall fishing season, which opened May 1, 1993. They contend that the Secretary's actions violate the Magnuson Fishery Conservation and Management Act, 16 U.S.C. §§ 1801 et seq., the Administrative Procedures Act, 5 U.S.C. § 551 et seq., the "Sunshine Act," 5 U.S.C. §§ 552b, and the Pacific Fishery Management plan. They seek a partial summary judgment (a) overturning that portion of the emergency regulation addressing the Klamath chinook, and (b) ordering enforcement of a higher ocean harvest rate recommended by the Pacific Fishery Management Council.

 The Secretary cross-moves for a partial summary judgment affirming the validity of his emergency action. *fn3" The Secretary also moves to strike several declarations that plaintiffs filed in support of their motion for partial summary judgment. We first address the Motion to Strike, since it will inform the scope of our review on the cross-motions for partial summary judgment.



 In support of their Motion for Partial Summary Judgment, plaintiffs have filed several affidavits from ocean commercial fishermen, the California Department of Fish and Game, the Oregon Department of Fish and Wildlife, and a member of the staff of the Pacific Fishery Management Council. The Secretary argues that because his actions may only be reviewed in light of the administrative record, consideration of the these extra-record affidavits is improper.

 As plaintiffs concede, the general rule is that judicial review of the Secretary's actions under the Magnuson Act is confined to the administrative record. Washington Crab Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1441 (9th Cir. 1990); Asarco, Inc. v. U.S. E.P.A., 616 F.2d 1153, 1160 (9th Cir. 1980). There are, however, exceptions to this general rule. Specifically, supplementation of the record is appropriate where (1) there is "such a failure to explain administrative action as to frustrate effective judicial review," (2) the agency has relied on documents not included in the record, (3) extra-record evidence is necessary to clarify or explain technical terms, and (4) there is a showing of agency bad faith. Public Power Council v. Johnson, 674 F.2d 791, 793-95 (9th Cir. 1982). It is the plaintiffs' burden to demonstrate that one or more of these exceptions apply. See, Animal Defense Council v. Hodel, 840 F.2d 1432, 1436-38 (9th Cir. 1988), modified, 867 F.2d 1244 (9th Cir. 1989).

 Plaintiffs' primary argument is that supplementation is needed because there is "such a failure to explain administrative action as to frustrate effective judicial review." This exception is limited to cases where the agency action is so poorly explained that effective review is precluded. Courts are "reluctant to invoke" this exception; furthermore, "when there is a need to supplement the record to explain agency action, the preferred procedure is to remand to the agency for its amplification." Public Power Council, 674 F.2d at 794; State of Maine v. Kreps, 563 F.2d 1052, 1054 (1st Cir. 1977) (action remanded for Secretary to explain basis for her decision).

 Plaintiffs also insinuate that the Secretary has acted in "bad faith" by intentionally omitting two "comment letters." The Secretary states that the letters were forwarded to the regional office late, resulting in their unintentional omission. They have now been added to the record. We find nothing to support the suggestion of wrongdoing or bad faith in the omission of the two letters.

 Plaintiffs also suggest that we should treat this case differently because it involves a challenge to an emergency regulation. However, they provide no support for this proposition, and we find no indication in the caselaw that the emergency nature of the regulation affects the traditional rules governing judicial review. *fn4"

 Plaintiffs have failed to demonstrate that their proffered affidavits fall within any of the exceptions delineated by the court in Public Power Council, supra. Accordingly, defendants' Motion to Strike shall be granted.




 The Klamath chinook fall under the jurisdiction of three separate government entities. The United States Department of the Interior has jurisdiction over the setting of salmon harvest levels for the Yurok and Hoopa Valley tribes who fish in the Klamath Trinity rivers which flow through their respective reservations. See Pacific Coast Fed. v. Secretary of Commerce, 494 F.Supp 626, 631-633 (N.D. Cal. 1980). The United States Department of Commerce has jurisdiction, under the Magnuson Act, to set harvest levels in the ocean between three and two hundred nautical miles offshore, referred to as the "exclusive economic zone" or "EEZ." 16 U.S.C. § 1801 et seq. Finally, the coastal states have jurisdiction over the area between the coast and three nautical miles offshore. *fn5"

 Plaintiffs' challenge to the Secretary's actions rests primarily on the Magnuson Act. Enacted in 1976, the Magnuson Act was intended to respond to overfishing and inadequate conservation measures which were threatening future commercial and recreational fishing, as well as the very survival of species. 16 U.S.C. § 1801(a); Lovgren v. Byrne, 787 F.2d 857, 861 (3rd. Cir. 1986) (Magnuson Act "was enacted at a time when overfishing of coastal waters was commonplace, threatening the existence of a number of species of fish"); Pacific Coast Federation, 494 F. Supp. at 635, n. 7 ("overfishing of species was a primary impetus to passage of the Act").

 The Act provides for the establishment of regional Councils which are charged with developing, after public comment, a recommended fishery management plan ("FMP") for regulating fishing in the EEZ. 16 U.S.C. § 1852. The Councils also recommend seasonal adjustments and amendments to the FMP. Id. The Council's recommendations are submitted to the Secretary of Commerce who reviews them for consistency with seven "National Standards" set forth in the Act and "other applicable law." Based on this review, the Secretary may either approve or disapprove the Council's recommendations. 16 U.S.C. § 1854; Eberhardt, 789 F.2d 1354 at 1363 (Councils "recommend" ocean fishing regulations to the Department of Commerce). The Act also authorizes the Secretary to bypass the above process and promulgate 90-day emergency regulations (which may be extended an additional 90 days), if "the Secretary finds that an emergency exists involving any fishery." 16 U.S.C. § 1855(c)(1).

 The EEZ off the coast of Washington, Oregon, and California falls under the purview of the Pacific Fishery Management Council ("the Council"). In 1984, the Council recommended, and the Secretary adopted, a multi-year management plan for ocean salmon fishery, referred to as "the Final Framework Plan." See 50 C.F.R. § 661 (1992). Amendment Nine to the Framework Plan (adopted in 1988) provides for a spawning escapement *fn6" "rate" for Klamath river chinook of 35 percent of the potential adults from each brood, but no fewer than 35,000 naturally spawning adults in any one year. See 50 C.F.R. 661, Appendix at IV.A (1992)(emph. added); AR 4 at 12. This latter, 35,000 spawning escapement "floor," represents the minimum escapement believed necessary to avoid long-term decline of the Klamath Chinook, and can only be modified by formal amendment to the Framework Plan or by emergency regulation. Id. Appendix at IV.A., n.3; 16 U.S.C. § 1854(c).

 The Framework Plan recognizes that "Indians *fn7" residing on the Klamath River have a right to fish for salmon for subsistence and ceremonial purposes." AR 3 at 44; AR 121; see also, Eberhardt, 789 F.2d at 1363 (conc. opin.) ("The right to take fish from the Klamath River was reserved to the Indians when the Hoopa Valley Reservation was created"). Thus, the Plan requires that the Council, in assessing the optimum yield to be achieved from the Fishery, account for the "requirements of the Indian fishery for salmon on the Klamath River." AR 3 at 9, § 3.3; see also, AR 3 at 11, Table 3-2. Finally, we note that the Magnuson Act requires that any management measure be consistent "with any other applicable law," 16 U.S.C. § 1854(a)(1)(B), which we construe as including United States obligations to Indian reservations with respect to fishing rights.

 After holding public hearings, and reviewing analysis by the "Salmon Technical Team," the Council submitted a recommendation to the Secretary of Commerce on April 14, 1993, which, inter alia, recommended for the upcoming season a 22 percent ocean harvest rate for Klamath chinook (a substantial increase over the 1992 rate), and a spawning escapement floor of 35,000.

 The instant dispute arose when the Secretary rejected the Council's recommendations regarding the Klamath chinook on the ground that they would lead to overfishing and further deterioration of chinook stock. The Secretary subsequently issued an emergency regulation that increased the 35,000 spawning escapement floor to 38,000, and decreased the ocean harvest rate to 14.5 percent. *fn8" Plaintiffs strenuously oppose the Secretary's actions on a number of procedural and substantive grounds.

 Standard of Review

 Actions taken by the Secretary of Commerce under the Magnuson Act are subject to limited judicial review. 16 U.S.C. § 1855 (b). Specifically, Congress provided that courts may only invalidate a challenged regulation if the regulation is (1) arbitrary and capricious or an abuse of discretion, (2) unconstitutional, (3) in excess of statutory jurisdiction, or (4) was promulgated without 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, ...

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