Please update your links! Our new website url is http://masglp.olemiss.edu . This old website will soon cease to exist!

No Deference for NMFS Interpretation of Quota Program

Wards Cove Packing Corp. v. National Maine Fisheries Service, 307 F.3d 1214 (9th Cir. 2002).

Stephanie Showalter, J.D., M.S.E.L

The Ninth Circuit recently held that the National Marine Fisheries Service’s interpretation of the halibut and sablefish Individual Fishing Quota program regulations was not entitled to deference, because the agency failed to comply with the plain language of the regulations.

Background
In the years before the implementation of fisheries management plans in the Pacific Northwest, fishing for halibut and sablefish was a race to harvest as many fish as possible before the fishery closed for the year. This type of fishing caused numerous problems for fishermen and the public. In 1991, the North Pacific Fishery Management Council recommended the creation of a quota system to improve the management of the halibut and sablefish fisheries. In 1993, the Secretary of Commerce promulgated final regulations for the Individual Fishing Quota (IFQ) program for the fixed gear halibut and sablefish fisheries in the Pacific region.
In order to receive an IFQ, a person must be qualified. An applicant is qualified if s/he “owned a vessel that made legal landings of halibut or sablefish, harvested with fixed gear from any IFQ regulatory area, in any QS [Quota Share] qualifying year.”1 The QS qualifying years are 1988, 1989, and 1990.2 If qualified, an applicant is entitled to receive an annual quota share of the particular species. In 1995, the National Marine Fisheries Service (NFMS) adopted an interpretative rule stating that an applicant must have legal landings of both halibut and sablefish during the qualifying year to qualify for a quota share in both fisheries.

The Lawsuit
Wards Cove Packing Corporation applied for a Quota Share (QS) for both halibut and sablefish. Wards Cove had made legal landings of halibut in 1988, 1989, and 1990 and sablefish in 1985, 1986, and 1987. The NMFS issued Wards Cove an initial QS for halibut, but denied Wards Cove’s application for sablefish on the basis that Wards Cove failed to make legal landings of sablefish during the qualifying years.

Wards Cove appealed the agency’s decision arguing that because it had made legal landings of one of the species during the qualifying year and had landings of both species during the species base period, it was entitled to an initial quota share for both species. The district court determined that the regulation for the IFQ program was ambiguous and ruled that the NMFS’s interpretation was entitled to deference. Wards Cove again appealed.

Qualified Person
“The plain meaning of a regulation governs and deference to an agency’s interpretation of its regulation is warranted only when the regulation’s language is ambiguous.”3 The Ninth Circuit held that the regulations for the sablefish and halibut QS program are unambiguous.

The Regional Administrator is authorized to assign a halibut and sablefish fixed gear fishery QS to qualified persons.4 A qualified person is someone who owned or leased a vessel that made legal landings of halibut or sablefish, harvested with fixed gear, in 1988, 1989, 1990.5 The court determined that this language is clear. “It provides that a person that made a legal landing of either halibut or sablefish is qualified to receive an initial QS.”6

The NMFS argued, however, that the regulation is ambiguous because § 679.40(a)(4) differentiates between the two species in the calculation of the initial QS. A qualified person’s halibut initial QS is calculated “based on that person’s highest total legal landings . . . for any 5 years of the 7-year halibut QS base period 1984 through 1990.”7 The sablefish initial QS is calculated in a similar fashion, except the QS base period is 1985 through 1990.8 The court quickly reconciles the plain language of the statute with the calculation instructions, stating that the regulations recognize that fixed-gear commercial operators may switch between species of fish depending on market condition. The court reasoned that this flexibility gives applicants the benefit of their best years of operation and was not meant to exclude applicants who made legal landing of only one species in 1988, 1989, and 1990.

Conclusion
The Ninth Circuit held “that an applicant must have had legal landing of either halibut or sablefish during the years between 1984 through 1990 to qualify for QS in either fishery.”9 Because Wards Cove made legal landings of halibut during the qualifying base period and had landings of both species during their respective species base periods, they were entitled to a QS for both halibut and sablefish.

ENDNOTES
1. 50 C.F.R. § 679.40(a)(2)(A) (2002).
2. 50 C.F.R. § 679.40(a)(3) (2002).
3. Wards Cove Packing v. NMFS, 307 F.3d 1214, 1219 (9th Cir. 2002).
4. 50 C.F.R. § 679.40(a)(1) (2002).
5. 50 C.F.R. §§ 679.40(a)(2), (a)(3) (2002).
6. Wards Cove, 307 F.3d at 1219 (emphasis in original).
7. 50 C.F.R. § 679.40(a)(4)(i) (2002).
8. 50 C.F.R. § 679.40(a)(4)(ii) (2002).
9. Wards Cove, 307 F.3d at 1220.

University of Mississippi