United Cook Inlet Drift Association et al v. National Marine Fisheries Service et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED COOK INLET DRIFT
ASSOCIATION, et al.,
Plaintiffs,
vs.
NATIONAL MARINE FISHERIES
SERVICE, et al.,
Defendants,
STATE OF ALASKA,
Defendant-
Intervenor.
Case No. 3:21-cv-00255-JMK
3:21-cv-00247-JMK
CONSOLIDATED
ORDER ON CROSS MOTIONS FOR
SUMMARY JUDGMENT
WES HUMBYRD, et al.;
Plaintiffs,
vs.
GINA RAIMONDO, in her official
capacity as Secretary of the U.S.
Department of Commerce, et al.,
Defendants.
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United Cook Inlet Drift Ass’n, et al. v. Nat’l Marine Fisheries Serv., et al.
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Order on Cross Motions for Summary Judgment 	Page 2
I. 	INTRODUCTION
This matter comes before the Court on two consolidated cases challenging
the National Marine Fisheries Service’s (“NMFS”) promulgation of a Final Rule amending
a 	Federal 	Management 	Plan 	(“FMP”) 	pursuant 	to 	the 	Magnuson-Stevens 	Fishery
Conservation and Management Act, 16 U.S.C. §§ 1801–1891(d) (“Magnuson-Stevens
Act” or the “Act”). 	Pending before the Court at Docket 36 is Plaintiffs Wes Humbyrd,
Robert Wolfe, and Dan Anderson’s (collectively, the “Humbyrd Plaintiffs”) Motion for
Summary Judgment against Defendants NMFS, Gina Riamondo in her official capacity as
the United States Secretary of Commerce (the “Secretary”), and Janet Coit in her official
capacity 	as 	the 	Assistant 	Administrator 	of 	National 	Oceanic 	and 	Atmospheric
Administration (“NOAA”) (collectively, the “Humbyrd Defendants”).
Additionally, pending before the Court at Docket 38 is Plaintiffs United
Cook Inlet Drift Association and Cook Inlet Fisherman Fund’s (collectively, the “UCIDA
Plaintiffs”) Motion for Summary Judgment against NMFS, NOAA, Gina Riamondo in her
official capacity as the Secretary, Janet Coit in her official capacity as the Assistant
Administrator of NOAA, and James Balsiger in his official capacity as NMFS Alaska
Regional Administrator (collectively, the “UCIDA Defendants” and together with the
Humbyrd Defendants, the “Federal Defendants”). 	The State of Alaska intervened as a
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United Cook Inlet Drift Ass’n, et al. v. Nat’l Marine Fisheries Serv., et al.
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Defendant. 	The Alaska Salmon Alliance, City of Kenai, City of Homer, and City of
Soldotna filed amicus briefs in support of UCIDA.1
Consistent with this Court’s Order consolidating review of the two cases now
before it, Federal Defendants filed a combined response brief (“Cross Motion for Summary
Judgment”) at Docket 53 and moved for summary judgment on all claims raised by both
sets of Plaintiffs. UCIDA Plaintiffs filed a Reply at Docket 57; Humbyrd Plaintiffs filed a
Reply at Docket 58. The Court heard oral argument on April 22, 2022.2
For 	the 	following 	reasons, 	UCIDA 	Plaintiffs’ 	Motion 	for 	Summary
Judgment at Docket 38 is GRANTED. 	Humbyrd Plaintiffs’ Motion for Summary
Judgment at Docket 36 is DENIED. 	Federal Defendants’ Cross Motion for Summary
Judgment at Docket 53 is GRANTED IN PART and DENIED IN PART.
II. 	BACKGROUND
Salmon fishing bears great cultural, economic, and recreational significance
to Alaskans. It is thus no wonder that the regulation of Alaska’s fisheries presents unique
challenges. 	The historical regulation of Alaska’s salmon fisheries was detailed at great
length by the Ninth Circuit in United Cook Inlet Drift Association v. National Marine
Fisheries Service (“UCIDA I”);3 therefore, this Court will only briefly summarize the facts
relevant to its decision here.
1 Docket 35-1 (Amicus Brief of Alaska Salmon Alliance in Support of UCIDA Plaintiffs’
Claims); Docket 44 (City of Soldotna’s Amicus Brief); Docket 45-2 (Amicus Brief of the City of Kenai
Supporting UCIDA Plaintiffs’ Claims); Docket 46-1 (Brief of Amicus Curiae the City of Homer, Alaska).
2 Docket 65 (Minute Entry for Oral Argument).
3 837 F.3d 1055 (9th Cir. 2016).
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This case centers around the Cook Inlet, “one of the nation’s most productive
salmon fisheries.”4 The Cook Inlet is a large inlet that connects the Pacific Ocean to major
Alaskan rivers, and contains both state and federal waters. 	Inhabiting its waters are
anadromous salmon, which begin their lives in Alaskan freshwater, migrate to the ocean,
and return to freshwater to spawn.5 The Cook Inlet salmon fishery contains five species of
Pacific salmon: Chinook, Silver, Sockeye, Pink, and Chum.6 Each species is comprised
of a number of “stocks,” which generally are delineated by the areas in which the salmon
spawn or the time of year that they spawn.7
A. 	Management of Fisheries Under the Magnuson-Stevens Act.
1. 	Federal management
“In 1976, Congress enacted the Fishery Conservation and Management Act
(the “1976 Act”), later renamed the Magnuson-Stevens Act.”8 The Magnuson-Stevens Act
established federal management authority over (i) all fishery resources within federal
waters, commonly referred to as the “exclusive economic zone” (“EEZ”), and (ii) beyond
the EEZ, “over such anadromous species and Continental Shelf fishery resources.”9 The
Magnuson-Stevens Act delegates fishery management authority and responsibility to
NOAA, an agency within the Department of Commerce, and NOAA, in turn, has delegated
4 Id. at 1057.
5 Id.
6 AKR0000162. The Court follows the Parties’ practice of citing to record materials by their
production number, which begin with the prefix “AKR” and are found at Dockets 62-1–61-6.
7 See AKR0000170.
8 UCIDA I, 837 F.3d at 1058.
9 16 U.S.C. § 1801(b)(1).
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some of its authority and responsibility to NMFS, an agency within NOAA.10 	The Act
extended federal jurisdiction to 200 nautical miles from the shore and established eight
regional fishery management Councils, each of which is tasked with developing an FMP
for each fishery under its jurisdiction.11
“In 1983, Congress amended the Act to specify that a Council need only
prepare an FMP with respect to a fishery ‘that requires conservation and management.’”12
The purpose of an FMP is to “achieve and maintain, on a continuing basis, the optimum
yield from each fishery” and, to facilitate that endeavor, each FMP must comply with ten
National 	Standards.13 	Voting 	Council 	members 	include 	federal 	and 	state 	fishery
management officials, as well as other fishery experts nominated by state governors and
appointed by the Secretary.14 Amendments to an FMP may be developed through a public
process which includes Council meetings, opportunities for interested persons to submit
oral and written statements during those meetings, and public hearings.15 Once a Council
recommends an amendment, the Secretary must determine whether it complies with federal
law, and, if it does, the Secretary must issue implementing regulations.16 Relevant to this
case, “[t]he North Pacific Council [(“the Council”)] has jurisdiction over the federal waters
of Cook Inlet.”17
10 AKR0000013–16; AKR0000001–04.
11 UCIDA I, 837 F.3d at 1057–58.
12 Id. at 1058; 16 U.S.C. § 1852(h)(1). 	The Act additionally was amended in 1996 and
reauthorized in 2007. See UCIDA I, 837 F.3d at 1062.
13 16 U.S.C. § 1801(b)(4); 16 U.S.C. § 1851.
14 16 U.S.C. § 1852(b).
15 See id. §§ 1852(h)(3), (i)(2).
16 Id. § 1853.
17 UCIDA I, 837 F.3d at 1060.
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2. 	State management
Although NMFS has “exclusive fishery management authority” over all fish
within the EEZ, and over all anadromous species throughout their migratory range beyond
the EEZ, the Act explicitly recognizes and reserves State jurisdiction over in-state fishery
resources.18 	However, a state fishing management program may not “substantially and
adversely affect” the implementation of an FMP.19 NMFS may delegate implementation
of an FMP to a state, but only expressly in an FMP, and only when the “[s]tate’s laws and
regulations are consistent with such [FMP].”20
Historically, the Cook Inlet fishery has been managed by the State of Alaska,
despite persistent ambiguity with respect to the division of management authority between
the State and NMFS due to changing federal regulatory regimes. In its earliest iteration,
NMFS promulgated the Fishery Management Plan for the High Seas Salmon (“Salmon
FMP”) in 1979,21 which “divided Alaskan federal waters into East and West Areas; Cook
Inlet is in the West Area.”22 The Salmon FMP prohibited commercial salmon fishing in
the West Area, “except in the three historic net-fishing areas, including Cook Inlet, which
the State would continue to manage.”23 The Salmon FMP was revised in 1990 in an attempt
to mirror regulations implementing the North Pacific Fisheries Act of 1954 (“1954 Act”).24
18 16 U.S.C. §§ 1811(a), (b)(1), 1856(a) (“[n]othing in this chapter shall be construed as extending
or diminishing the jurisdiction or authority of any State within its boundaries.”).
19 See id. §§ 1856(a)(1), (b)(1)(B).
20 UCIDA I, 837 F.3d at 1060; 16 U.S.C. § 1856(a)(3)(B).
21 44 Fed. Reg. 33250 (June 8, 1979) (to be codified at 50 C.F.R. pt. 674).
22 UCIDA I, 837 F.3d at 1058 (citing 44 Fed. Reg. 33267).
23 Id. (citing 44 Fed. Reg. at 33267).
24 Id. at 1059; see also Pub. L. No. 83–579, §§ 10 & 12, 68 Stat. 698, 699–700 (previously codified
at 16 U.S.C. §§ 1021–35).
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The 1990 revisions prohibited salmon net fishing in the West Area, “with the exception of
the three historic net-fishing areas, which technically extend into the EEZ, but . . . are
conducted and managed by the State of Alaska as nearshore fisheries.”25 Later, in 1992,
Congress repealed the 1954 Act and the Secretary followed suit by repealing its
implementing regulations.26 This effectively rendered the Salmon FMP incomplete, as it
failed to specify how the Cook Inlet EEZ would be managed. Nevertheless, the State of
Alaska continued to captain management efforts.
Currently, Cook Inlet salmon are managed by the State according to
“escapement goals,” which are the number of salmon that escape harvest and return to
freshwater to spawn.27 According to historical management data, the commercial harvest
of salmon from the Cook Inlet has decreased significantly over the past two decades,
despite its reputation as one of the best commercial fishing locations in Alaska.28
B. 	The History of this Litigation
1. 	Amendment 12
In 	2010, 	the 	North 	Pacific 	Council 	reviewed 	the 	Salmon 	FMP 	and
determined that the Cook Inlet was “not exempt from the FMP as previously assumed.”29
The Council observed that “the FMP does not explicitly defer management of [the three
historic net fisheries] to the State . . . [and] does not contain any management goals or
25 UCIDA I, 837 F.3d at 1059 (internal quotation omitted).
26 Id. (citing Removal of Regulations, 60 Fed. Reg. 39271, 39272 (Aug. 2, 1995)).
27 See AKR0000163; AKR0000167–68.
28 AKR0000577–78; see also Docket 38 at 14–16.
29 UCIDA I, 837 F.3d at 1060.
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objectives for these three areas or any provisions with which to manage salmon fishing.”30
To correct this deficiency, the Council proposed Amendment 12 to the Salmon FMP, which
removed the three historic net fishing areas and the sport fishery from the FMP’s definition
of “West Area”; the effect of which was to eliminate federal management of these areas.31
Amendment 12, as drafted, “maintain[ed] the prohibition on commercial fishing in the
redefined West Area.”32 NMFS solicited public comment on the proposed change and, in
April 2012, proposed implementing regulations.33 	In June 2012, NMFS issued a Final
Environmental Assessment (“EA”) pursuant to the National Environmental Policy Act
(“NEPA”), 	finding 	that 	Amendment 	12 	would 	have 	no 	significant 	impact 	on 	the
environment because it would not change the management of the fisheries.34 	That Final
EA determined that “the State is the appropriate authority for managing Alaska salmon
fisheries[,] given the State’s infrastructure and expertise.”35 	NMFS promulgated a Final
Rule implementing Amendment 12 in December 2012.36
2. 	UCIDA I
In 	UCIDA 	I, 	UCIDA 	Plaintiffs 	challenged 	Amendment 	12 	and 	its
implementing regulations as “contrary to the Magnuson-Stevens Act’s requirement that a
30 Id.
31 AKR0013789.
32 Id.
33 See 77 Fed. Reg. 19605 (proposed Apr. 2, 2012) (to be codified at 50 C.F.R. pt. 679); 77 Fed.
Reg. 21716 (proposed Apr. 11, 2012) (to be codified at 50 C.F.R. pt. 679).
34 UCIDA I, 837 F.3d at 1061.
35 Id.
36 See F ISHERIES OF THE EXCLUSIVE E CONOMIC Z ONE OFF ALASKA; P ACIFIC S ALMON, 77 Fed.
Reg. 75570 (Dec. 21, 2012) (to be codified at 50 C.F.R. pt. 679); 50 C.F.R. § 679.2 (definition of West
Area).
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Council prepare an FMP ‘for each fishery under its authority that requires conservation and
management.’”37 In opposition, the Government agreed that the Cook Inlet “is a fishery
under its authority that requires conservation and management,”38 but argued that the Act
only mandated an FMP for fisheries in need of federal conservation and management, and
the Cook Inlet was properly managed by the State.39 The District Court found that the Act
was ambiguous and deferred to the Government’s interpretation of the statute.40 UCIDA
Plaintiffs appealed, and the Ninth Circuit disagreed with the Government’s interpretation,
finding that “[t]he Act is clear: to delegate authority over a federal fishery to a state, NMFS
must do so expressly in an FMP.”41 In other words, simply removing the Cook Inlet from
the FMP did not amount to proper delegation of management authority to the State
“because a Council is required to develop FMPs for fisheries within its jurisdiction
requiring management and then to manage those fisheries ‘through’ those plans.”42 	The
Ninth Circuit unquestionably found that NMFS and a regional Council must adopt
management measures through an FMP to effectuate delegation of management authority
of a fishery to a state; anything less would amount to a failure to comply with the Act.
Amendment 12 was found to be arbitrary and capricious and the Ninth Circuit remanded
37 837 F.3d at 1061 (quoting 16 U.S.C. § 1852(h)(1)). UCIDA also alleged that Amendment 12
and its implementing regulations were arbitrary and capricious and contrary to NEPA. Id.
38 Id. at 1062; see also id. at 1064 (“No one disputes that the exempted area of Cook Inlet is a
salmon fishery.”).
39 Id. at 1062.
40 United Cook Inlet Drift Ass’n v. Nat’l Marine Fisheries Servs., Case No. 3:13-cv-00104-TMB,
2014 WL 10988279, *14 (D. Alaska Sept. 5, 2014).
41 UCIDA I, 837 F.3d at 1062 (citing 16 U.S.C. §§ 1801(b)(4)–(5), 1852(h)(1)).
42 Id. at 1065.
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the case back to the District Court without vacatur.43 The parties agreed to maintain the
status quo (management by the State of Alaska) while NMFS and the Council worked to
develop a new, compliant amendment.44
3. 	Amendment 14
The Council first met in April 2017 to begin the process of drafting a new
amendment, initially identifying three preliminary alternatives to consider: Alternative 1,
a no action alternative; Alternative 2, “[a]mend the Salmon FMP to include three traditional
net fishing areas in the FMP’s fishery management unit in the West Area and establish
cooperative management for these salmon fisheries that delegates specific management
measures to the State of Alaska”; and Alternative 3, “[a]mend the Salmon FMP to include
three traditional net fishing areas in the FMP’s fishery management unit in the West Area
and apply Federal management to those portions of the fisheries that occur in the EEZ.”45
In June 2020, the Council replaced Alternative 2 with an expanded version that would
establish management requirements for Cook Inlet salmon stocks throughout their range.46
Between April 2017 and June 2020, the Council and NMFS continued to
review these three alternatives and assembled a Salmon Stakeholder Committee (“the
Salmon Committee”) to “develop recommendations under Alternative 2.”47 In September
2019, concerned by the pace of the remand and the scope of the alternatives before the
43 Id.
44 Docket 38 at 19.
45 AKR0014925.
46 AKR0017661–64.
47 See AKR0018504.
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Council, UCIDA Plaintiffs sought enforcement of the District Court’s August 2017 Order
and Entry of Judgment, which was jointly agreed to by UCIDA and NMFS and directed
NMFS to develop a new plan amendment.48 	The District Court declined to address the
specific alternatives before the Council, but ordered NMFS “to prepare and adopt a salmon
FMP compliant with the Ninth Circuit’s decision on or before December 31, 2020, and
final agency action and/or promulgation of a final rule shall occur within one year
thereafter.”49
In October 2020, representatives from the State of Alaska presented a motion
to the Council that described an altogether new fourth alternative for consideration.50
Alternative 4 would “[a]mend the Salmon FMP to include the Cook Inlet EEZ in the FMP’s
fishery management unit in the West Area and apply Federal management by extending
the general West Area prohibition on commercial salmon fishing in the EEZ to the Cook
Inlet EEZ.”51 Shortly after the introduction of Alternative 4, a representative for the State
of Alaska announced for the first time publicly that the State would be unwilling to accept
delegated management authority over Cook Inlet.52 	The State’s announcement rendered
Alternatives 1 and 2 impracticable, leaving Alternatives 3 and 4 as the only seemingly
viable options, and the Council voted unanimously to recommend Alternative 4.53
48 AKR0018390.
49 See United Cook Inlet Drift Ass’n v. NMFS, Case No. 3:13-cv-00104-TMB, 2020 WL 1061794,
at *5 (D. Alaska Jan. 6, 2020) (emphasis omitted).
50 AKR0006544–45.
51 AKR0006545.
52 AKR0007302.
53 AKR0007318–19.
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However, James Balsiger, NMFS’s regional administrator for the State of Alaska,
abstained from the vote.54
On 	June 4, 2021, NMFS 	promulgated a proposed rule implementing
Alternative 4, which later became Amendment 14, and a draft EA.55 Following a public
comment period, NMFS issued its Final Rule on November 3, 2021.56 	The Final Rule
“amended the Code of Federal Regulations to change the definition of ‘The West Area’ to
include ‘the Cook Inlet EEZ Subarea.’”57 	NMFS explained in its Final Rule that
Amendment 14 would prohibit commercial salmon fishing in the federal waters of the
Cook Inlet.58 However, “[u]nder the Salmon FMP, recreational fishing c[ould] still occur
in the Cook Inlet EEZ.”59 Because “[t]he only commercial salmon fishery that occurs in
[the] federal waters of Cook Inlet is the drift gillnet fishery . . . [i]f federal waters were
closed to commercial salmon fishing, fishing with drift gillnet gear would occur only in
state waters.”60 The practical impact of the Final Rule to fishermen is thus that “drift gillnet
vessels displaced by a permanent EEZ closure would have the options of ceasing to fish or
relocating their fishing activities to State waters in Upper Cook Inlet.”61
Humbyrd and UCIDA Plaintiffs brought separate actions against Federal
Defendants, both alleging that Amendment 14 and the implementing Final Rule are
54 AKR0007315; AKR0007319.
55 Docket 53 at 35; AKR0013812–21.
56 AKR0013822–42.
57 Docket 53 at 37; see also AKR0013822; AKR0013841–42.
58 See AKR0013839.
59 Id.
60 AKR0007130.
61 AKR0000327.
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unlawful, albeit under drastically different legal theories. 	Humbyrd Plaintiffs allege that
Amendment 14 and the Final Rule violate the Magnuson-Stevens Act and Administrative
Procedure 	Act 	(“APA”) 	because 	they 	are 	contrary 	to 	the 	Federal 	Constitution’s
Appointments, Take Care, and Executive Vesting Clauses; while UCIDA Plaintiffs allege
the regulation violates the Magnuson-Stevens Act, APA, and NEPA because it is arbitrary
and capricious and not in accordance with law.62 On January 6, 2022, this Court granted
Federal Defendants’ Motion to Consolidate the cases.63 	On the same day, this Court
granted the State of Alaska’s Motion to Intervene as a Defendant in the UCIDA matter.64
Both cases challenge and request vacatur of the same Final Rule; therefore, the law and
facts in both are drawn from, and decided on, the same administrative record.65
III. 	LEGAL STANDARD
The Magnuson-Stevens Act provides for judicial review of final regulations
promulgated by NMFS “which implement a fishery management plan, including but not
limited to actions that establish the date of closure of a fishery to commercial or recreational
fishing.”66 	“Actions taken by the Secretary under regulations implementing fishery
management plans are ‘subject to judicial review to the extent authorized by, and in
accordance with,’ the . . . APA.”67
62 Docket 36 at 2.
63 Docket 20.
64 Docket 21. The Court later denied the State of Alaska’s Motion to Intervene in the Humbyrd
matter as untimely. See Docket 66 at 3.
65 See generally Docket 62.
66 16 U.S.C. § 1855(f)(2).
67 Pac. Dawn LLC v. Pritzker, 831 F.3d 1166, 1173 (9th Cir. 2016) (quoting 16 U.S.C.
§ 1855(f)(1)); see also 16 U.S.C. § 1855(f)(1)(B) (“the appropriate court shall only set aside any such
regulation or action on a ground specified in section 706(2)(A), (B), (C), (D) of [the APA].”).
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Summary judgment generally is appropriate under Federal Rule of Civil
Procedure 56 when the pleadings and evidence demonstrate that “there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law.”
However, “in a case involving review of a final agency action under the APA, 5 U.S.C.
§ 706 . . . the standard set forth in Rule 56(c) does not apply because of the limited role of
a court in reviewing the administrative record.”68 	Under the APA, the agency is tasked
with resolving factual issues to render a decision that is supported by the administrative
record; therefore, “the function of the district court [in reviewing the agency’s decision] is
to determine whether or not as a matter of law the evidence in the administrative record
permitted the agency to make the decision it did.”69 Particularly where
a party challenges an FMP, plan amendment, or regulation as
inconsistent with one or more of the ten National Standards set
forth in 16 U.S.C. § 1851(a), a court’s “task is not to review de
novo whether the amendment complies with these standards
but to determine whether the Secretary’s conclusion that the
standards have been satisfied is rational and supported by the
record.”70
Pursuant to the APA, regulations may be set aside if they are found to be
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”71
“To determine whether the agency’s decision was arbitrary and capricious, the court must
68 North Carolina Fisheries Ass’n v. Gutierrez, 518 F. Supp. 2d 62, 79 (D.D.C. 2007).
69 Occidental Eng’g Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985); see also Northwest
Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1472 (9th Cir. 1994) (“[T]his case involves review
of a final agency determination under the [APA]; therefore, resolution of th[e] matter does not require fact
finding on behalf of this court. Rather, the court’s review is limited to the administrative record . . . .”).
70 Gutierrez, 518 F. Supp. 2d at 79 (quoting C & W Fish Co., Inc. v. Fox, 931 F.2d 1556, 1562
(D.C. Cir. 1991)).
71 5 U.S.C. § 706(2)(A).
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consider whether the decision was based on a consideration of the relevant factors required
by the statute, but the court is not empowered to substitute its judgment for that of the
agency.”72 Further,
an agency’s decision may “be found to be arbitrary and
capricious if the agency has relied on factors which Congress
had not intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for its
decision that runs counter to evidence before the agency, or is
so implausible that it could not be ascribed to a difference in
view or the product of the agency’s expertise.”73
If the Secretary “has considered the relevant factors and articulated a rational
connection between the facts found and the choice made,” then the decision is not arbitrary
or capricious.74 But if the “agency has failed to provide a reasoned explanation, or where
the record belies the agency’s conclusion, [the court] must undo its action.”75 Regulations
also may be set aside if they are found to be “contrary to constitutional right, power,
privilege, or immunity.”76
IV. 	DISCUSSION
The Court first addresses UCIDA Plaintiffs’ statutory claims that the Final
Rule violates the Magnuson-Stevens Act (including the National Standards), APA, and
NEPA. The Court will then address Humbyrd Plaintiffs’ claims that Amendment 14 and
72 Pac. Dawn LLC v. Pritzker, 831 F.3d 1166, 1173 (9th Cir. 2016) (internal citations and
quotation omitted).
73 Id. (quoting Yakutat, Inc. v. Gutierrez, 407 F.3d 1054, 1066 (9th Cir. 2005) (internal quotation
omitted)).
74 Id. (quotation omitted).
75 Cnty. of Los Angeles v. Shalala, 192 F.3d 1005, 1021 (D.C. Cir. 1999) (citation and quotation
omitted).76 5 U.S.C. § 706(2)(B).
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the Final Rule run afoul of the Appointments, Take Care, and Executive Vesting Clauses
of the United States Constitution. Lastly, the Court addresses remedies. In addressing the
Parties’ arguments, this Court has considered the administrative record compiled by NMFS
and, consistent with the requirements of the Magnuson-Stevens Act, the Court has adhered
to an expedited schedule for disposition of this matter in anticipation of the salmon fishing
season beginning on June 20, 2022.77
A. 	The Final Rule is Arbitrary and Capricious
UCIDA Plaintiffs argue that NMFS’s adoption of Amendment 14 to the
Salmon FMP and promulgation of implementing regulations that prohibit commercial
salmon fishing in the Cook Inlet EEZ “violates the Magnuson Act, disregards the Ninth
Circuit’s clear instruction, and arbitrarily and capriciously elevates the State’s interest over
the goals and purpose of the Magnuson Act.”78 Specifically, UCIDA Plaintiffs allege that
the closure was effectuated for political reasons that do not comply with NMFS’s
obligations to federally manage the fishery under the Magnuson-Stevens Act, and
improperly defers management to the State of Alaska.79 UCIDA Plaintiffs also allege that
Amendment 14 and the Final Rule are not consistent with National Standards 1, 2, 4, and
8.80 Federal Defendants respond that Amendment 14 and the Final Rule are fully compliant
77 See Docket 9 at 8; Docket 22 at 3.
78 Docket 38 at 29.
79 Id. at 31.
80 Id. at 37–46.
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with the Magnuson-Stevens Act and the National Standards, the agency’s conclusions and
findings are not arbitrary and capricious, and the Final Rule should be upheld.81
This Court’s analysis as to these issues is guided by the Ninth Circuit’s
decision in UCIDA I. 	In other words, if the agency articulated a reasonable explanation
for its decision to promulgate the Final Rule prohibiting commercial fishing in the Cook
Inlet fishery, that decision can be reconciled with the Ninth Circuit’s interpretation of the
Magnuson-Stevens Act in UCIDA I, and that decision is supported by the record, the Final
Rule must be upheld.82
1. 	NMFS’s decision to exclude the recreational salmon fishery in the Cook
Inlet EEZ Area from the FMP was arbitrary and capricious
At the outset, the Court notes that the Parties disagree on the scope of the
“fishery” at issue in this case. 	The Magnuson-Stevens Act specifically requires that an
FMP be developed “for each fishery under its authority that requires conservation and
management.”83 A “fishery” is defined in the Act as “one or more stocks of fish which can
be treated as a unit for purposes of conservation and management and which are identified
on 	the 	basis 	of 	geographical, 	scientific, 	technical, 	recreational, 	and 	economic
characteristics” and “any fishing for such stocks.”84 	“Thus, the usual initial question is
whether the fishery at issue even needs conservation and management”; an administrative
decision which is reviewed under the familiar arbitrary and capricious standard.85 	In
81 See generally Docket 53.
82 See Pac. Dawn LLC v. Pritzker, 831 F.3d 1166, 1173 (9th Cir. 2016).
83 16 U.S.C. § 1852(h)(1) (emphasis added).
84 16 U.S.C. § 1802(13)(A)–(B).
85 UCIDA I, 837 F.3d 1055, 1061 (9th Cir. 2016).
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UCIDA I, the Ninth Circuit determined that the Cook Inlet is a fishery within NMFS’s
jurisdiction requiring conservation and management pursuant to the Act.86 In so finding,
the Ninth Circuit did not distinguish between the commercial and recreational interests
included in the EEZ of the Cook Inlet.87 	Nevertheless, NMFS made this distinction in
Amendment 14 and the Final Rule, which regulates only the commercial salmon fishery of
the Cook Inlet to the exclusion of the recreational fishery.88
Federal Defendants argue that “neither the Council nor NMFS has ever
determined that the recreational fishery in the EEZ requires conservation and management
and, while NMFS recommended that the Council evaluate that question at some future
date, the Council prioritized incorporating the Cook Inlet EEZ commercial salmon fishery
into the FMP.”89 Federal Defendants also argue that the Court should not even reach this
issue, asserting that the “the question of whether the recreational salmon fishery in the
Cook Inlet EEZ Area must be included in the FMP is separate from the Final Rule at issue
here,” and, thus, is not an issue properly before this Court.90
86 Id. at 1062 (“The government concedes that Cook Inlet is a fishery under its authority that
requires conservation and management.”).
87 See generally UCIDA I, 837 F.3d 1055. Federal Defendants allege that “the animating premise
of UCIDA [Plaintiffs’] arguments is that NMFS was required to regulate commercial salmon fishing in
State waters.” Docket 53 at 39. The Court does not read UCIDA Plaintiffs’ briefing as arguing for this
result. Although briefly stating that the fishery at issue in this case should include federal and state waters,
UCIDA Plaintiffs appear to agree that, for purposes of this litigation, “the issue here is whether NMFS’s
decision to close all commercial salmon fishing in federal waters to serve the State’s political agenda was
arbitrary, capricious, and contrary to law.” 	Docket 57 at 6–7. 	The Court does not address NMFS’s
authority, if any, to manage state waters because it is not pertinent to its decision. The Court cabins its
analysis to the federal waters of the Cook Inlet.
88 AKR0013822.
89 Docket 53 at 28.
90 Id. at 45.
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NMFS’s decision to exclude the recreational sector from the Cook Inlet
fishery is before this Court to the extent it is encompassed within the Final Rule. NMFS
does not offer a rational explanation for its decision to exclude the recreational fishery from
the scope of its definition of the Cook Inlet fishery, nor can the Court determine its decision
is supported by the administrative record. In 2018, James Balsiger, Administrator for the
Alaska Region of NOAA, actually highlighted this discrepancy in a letter to the Chairman
of the North Pacific Fishery Management Council, stating that the Council and NMFS have
never “explicitly address[ed] the determination required under UCIDA v. NMFS, which is
whether the sport fishery for salmon in the West Area EEZ requires conservation and
management.”91 	In UCIDA I, the Ninth Circuit did not specifically distinguish between
the “commercial” and “sport” fisheries within the Cook Inlet when it ruled that an FMP
must be adopted for the entire fishery. 	This is because the challenged Amendment 12
explicitly included the sport fishery, eliminating any need for the Court to make such a
distinction.92 Indeed, the EA prepared for Amendment 12 provides detailed information
on, and analysis of, the commercial and sport salmon fisheries that occur in the Cook Inlet
Area and the status and trends of Cook Inlet salmon.93 	It thus appears that, in the
Amendment 12 rulemaking, the Council exercised management authority over the
recreational fishery in the Cook Inlet EEZ and the agency has not offered any explanation
for its later decision to reverse course.
91 AKR0015107.
92 F ISHERIES OF THE E XCLUSIVE E CONOMIC Z ONE OFF ALASKA; P ACIFIC S ALMON, 77 Fed. Reg.
75570 (Dec. 21, 2012) (to be codified at 50 C.F.R. pt. 679).
93 AKR0013789.
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Further, the Court notes that the decision to exclude the recreational fishery
from the Final Rule is difficult to reconcile with the plain language of the 2021 Salmon
FMP, which states that “[t]he Cook Inlet salmon fishery includes the stocks of salmon
harvested by all sectors within State and federal waters of Cook Inlet.”94 	Although the
Salmon FMP does distinguish between the commercial fishery and the recreational fishery
in the Cook Inlet for purposes of management by closure, in doing so it still appears to
acknowledge that both areas require federal conservation and management. Accordingly,
NMFS failed to include a reasoned explanation for its decision to exclude the recreational
sector from the FMP for the Cook Inlet salmon fishery. 	This by itself renders the Final
Rule arbitrary and capricious under the APA.
2. 	The Final Rule delegates management of the Cook Inlet salmon fishery
to the State of Alaska in a manner that is inconsistent with the
Magnuson-Stevens Act
The Court also finds that NMFS’s decision to prohibit commercial salmon
fishing in the Cook Inlet EEZ is arbitrary and capricious because it delegates conservation
and management measures to the State of Alaska in violation of the Magnuson-Stevens
Act and is directly contrary to the Ninth Circuit’s ruling in UCIDA I.95
The functional import of Amendment 14 and the Final Rule is that it
“incorporate[s] the Cook Inlet EEZ Area into the FMP’s West Area and thereby appl[ies]
94 AKR0020364 (emphasis added).
95 See UCIDA I, 837 F.3d 1055, 1065 (9th Cir. 2016) (“The Act allows delegation to a state under
an FMP, but does not excuse the obligation to adopt an FMP when a Council opts for state management.”).
UCIDA Plaintiffs also argue that the closure contained in Amendment 14 “is not a conservation measure.”
Docket 38 at 30. The Court declines to address this argument.
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the West Area’s pre-existing Federal management regime to the Cook Inlet EEZ Area,
rather than developing new management measures.”96 	UCIDA Plaintiffs argue that the
Final Rule allows the State of Alaska to manage the fishery without federal oversight,
which constitutes “the same kind of improper delegation [to the State] that was rejected by
the Ninth Circuit . . . .”97 Federal Defendants respond that Amendment 14 and the Final
Rule do, in fact, “assert [federal] management authority over the portions of the
commercial [salmon] fishery in the Federal EEZ portion of Cook Inlet by incorporating it
into the FMP’s West Area, as required by the Ninth Circuit’s opinion.”98 	However,
elsewhere in its brief, Federal Defendants declare that NMFS’s action “is consistent with
the Council’s longstanding West Area salmon management policy to facilitate salmon
management by the State,” and “reflects a determination by the Council and NMFS that
the State is best situated to respond to changing conditions in season to fully utilize salmon
stocks and avoid overfishing consistent with the constraints of weak stock management in
a mixed stock fishery.”99 	Although Federal Defendants are correct that “nothing in the
Ninth Circuit’s opinion required any particular management regime for the Cook Inlet EEZ
Area,” the Ninth Circuit clearly held that “[t]he Act makes plain that federal fisheries are
96 Docket 53 at 33.
97 Docket 38 at 32.
98 Docket 53 at 43. The Court notes that the Ninth Circuit did not expressly task NMFS with
including the Cook Inlet salmon fishery in the existing Salmon FMP, despite Federal Defendants’
arguments to the contrary.
99 Id. (quoting AKR0001445).
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to be governed by federal rules in the national interest, not managed by a state based on
parochial concerns.”100
The record amply supports the conclusion that Amendment 14 and the Final
Rule improperly delegates management of the Cook Inlet fishery to the State of Alaska.
First, it is apparent from the record that Alternative 4, the precursor to Amendment 14, was
adopted only after the State of Alaska protested the express delegation of management
authority to it through the Salmon FMP. 	At the Council meeting in December 2020,
representatives from the State of Alaska insisted that the three alternatives under
consideration by the Council at that time—and for nearly four years prior—“would open
management of an Alaskan salmon fishery to federal and outsider oversight,” while
Alternative 4 would “ensur[e] against federal incursion into this and other state-managed
salmon fisheries.”101 While the State is certainly a stakeholder and should have input into
the rulemaking, and federal agencies and State governments must work together to
effectuate management of salmon stocks, it appears here that the State had an overriding
interest in which alternative was selected.102 	Furthermore, the record clearly establishes
that Alternative 4 was crafted as a thinly veiled attempt to ensure an absence of federal
management, which conflicts with the Ninth Circuit’s holding in UCIDA I.103
Second, the management standards set by NMFS are federal management
standards in form rather than substance. These standards rely entirely on decisions made
100 UCIDA I, 837 F.3d 1055, 1063 (9th Cir. 2016).
101 AKR0000683–85.
102 See 16 U.S.C. § 1801(b)(5), (c)(3).
103 See 837 F.3d at 1063.
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by the state of Alaska. For example, the Magnuson-Stevens Act requires that each FMP
contain “a mechanism for specifying annual catch limits in the plan (including a multiyear
plan), implementing regulations, or annual specifications, at a level such that overfishing
does not occur in the fishery, including measures to ensure accountability.”104 Here, the
Final Rule sets the annual catch limit (“ACL”) for “the Cook Inlet EEZ Subarea
commercial salmon fishery [to] zero.”105 	According to NMFS, “[t]his ACL reflects that
[Optimum Yield (“OY”)] is fully achieved in state waters of Cook Inlet by State salmon
fisheries. In order to implement this ACL, NMFS prohibits commercial fishing for salmon
in the Cook Inlet EEZ Subarea.”106 Federal Defendants state that the OY for the Cook Inlet
salmon fishery is set to “the level of catch from all salmon fisheries occurring within Cook
Inlet (State and Federal water catch) . . . .”107 In other words, the ACL relies on the OY,
which is determined by the escapement goals set by the State of Alaska for commercial
and recreational salmon fishing in state waters. These escapement goals are not subject to
review by the Council or NMFS. 	In NMFS’s own words, its objective is to “[m]anage
salmon fisheries in the EEZ in a manner that enables the State to manage salmon stocks
seamlessly throughout their range” and “[i]n the West Area, this objective is achieved by
prohibiting commercial fishing for salmon in the West Area so that the State can manage
Alaska salmon stocks as a unit.”108 This is in direct contravention of the Ninth Circuit’s
104 16 U.S.C. § 1853(a)(15).
105 AKR0001918.
106 Id.
107 Docket 53 at 46.
108 AKR0000106.
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finding that “federal fisheries are to be governed by federal rules in the national interest,
not managed by a state . . . .”109
Moreover, NMFS cannot satisfy its obligation under the Magnuson-Stevens
Act to develop a plan for the Cook Inlet salmon fishery simply by applying conservation
and management measures (i.e., the closure) from an existing plan. Although not binding
on this Court, the Fifth Circuit has found that
the 	[Magnuson-Stevens] 	Act’s 	pertinent 	conservation
provisions apply to each FMP and per fishery. In other words,
the 	Act 	requires 	each 	management 	plan 	to 	employ
conservation techniques for the given fishery, not for all
fisheries or the ecosystem as a whole. 	Accordingly, the Act
defines “fishery” as “one or more stocks of fish which can be
treated 	as 	a 	unit 	for 	purposes 	of 	conservation 	and
management.”110
The Ninth Circuit already has determined that the Cook Inlet salmon fishery is a distinct
fishery requiring conservation and management.111 	NMFS therefore was required to
independently establish that closure was warranted in the Cook Inlet salmon fishery, rather
than blindly importing existing conservation measures from an adjacent area. The text of
the amendments to the Salmon FMP offers nothing by way of conservation measures that
pertain specifically to the Cook Inlet EEZ. Instead, NMFS simply incorporated the “Cook
Inlet EEZ subarea” into the existing management plan and imposed the existing prohibition
that applies to other fisheries in the West Area.112 Permitting this approach would allow
109 UCIDA I, 837 F.3d 1055, 1063 (9th Cir. 2016).
110 Gulf Fishermens Ass’n v. Nat’l Marine Fisheries Serv., 968 F.3d 454, 468 (5th Cir. 2020)
(emphasis in original).
111 UCIDA I, 837 F.3d at 1062.
112 AKR0013822.
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NMFS to tack on any new fishery to any FMP once the Council has decided it requires
conservation and management under the Act.
Intervenor-Defendant 	State 	of 	Alaska 	correctly 	points 	out 	that 	the
Magnuson-Stevens Act contemplates State and Federal cooperation.113 	Indeed, the
Magnuson-Stevens Act allows FMPs to “incorporate . . . the relevant fishery conservation
and management measures of the coastal States nearest to the fishery.”114 	However,
pragmatic incorporation should not be confused with wholesale deferral. 	The Ninth
Circuit determined that the Cook Inlet salmon fishery must be managed “through” the
FMP.115 Inclusion of the “Cook Inlet EEZ Subarea” to an existing list of closure measures,
absent further explanation or analysis as to how the closure serves the conservation and
management purposes of the Magnuson-Stevens Act as to the Cook Inlet salmon fishery,
does not amount to management through the FMP. 	Definitional semantics cannot
substitute for actual management, especially where the agency anchors its decision to
effectuating delegation to the State without any measures for federal oversight.
The Court holds that NMFS did not offer a reasoned explanation for failing
to include the recreational fishery contained within the Cook Inlet salmon fishery in the
Final Rule. The Court also finds that NMFS’s Final Rule prohibiting commercial salmon
fishing in the Cook Inlet salmon fishery is arbitrary and capricious to the extent that it
relied entirely on considerations of delegation of management authority to the State of
113 Docket 54 at 11–12.
114 16 U.S.C. § 1853(b)(5).
115 UCIDA I, 837 F.3d at 1063.
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Alaska absent justification consistent with the conservation and management standards
contained in the Magnuson-Stevens Act.
B. 	Amendment 14 and the Final Rule Do Not Comply with the National Standards
“Any fishery management plan prepared, and any regulation promulgated to
implement any such plan,” must abide by ten enumerated standards.116 	The Court notes
that “[f]isheries regulation requires highly technical and scientific determinations that are
within the agency’s expertise, but are beyond the ken of most judges.”117 For this reason,
judicial review of an agency’s compliance with the National Standards generally is
deferential and the Court will not substitute its judgment for that of the expert agency.118
The Court’s role is limited to determining whether a reasonable basis exists for the
agency’s decision.119 UCIDA Plaintiffs allege that NMFS failed to comply with National
Standards 1, 2, 4, and 8; the Court considers each in turn.
1. 	National Standard 1
National Standard 1 requires that “[c]onservation and management measures
shall prevent overfishing while achieving, on a continuing basis, the optimum yield from
each fishery for the United States fishing industry.”120 	“Optimum” in this context is
defined as
the amount of fish which—(A) will provide the greatest overall
benefit 	to 	the 	Nation, 	particularly 	with 	respect 	to 	food
116 16 U.S.C. § 1851(a).
117 North Carolina Fisheries Ass’n, Inc. v. Gutierrez, 518 F. Supp. 2d 62, 80 (D.D.C. 2007).
118 Id.
119 Pac. Coast Fed’n of Fishermen’s Ass’ns v. Blank, 693 F.3d 1084, 1091 (9th Cir. 2012) (citing
Nw. Ecosystem All. v. U.S. Fish and Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007)).
120 16 U.S.C. § 1851(a)(1) (emphasis added).
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production and recreational opportunities, and taking into
account the protection of marine ecosystems; (B) is prescribed
on the basis of maximum sustainable yield from the fishery, as
reduced by any relevant social, economic, or ecological factor;
and (C) in the case of an overfished fishery, provides for
rebuilding to a level consistent with producing the maximum
sustainable yield in such fishery.121
Each FMP must include an estimate of Maximum Sustained Yield (“MSY”) which forms
the basis for the OY calculation.122 “OY is derived from MSY, as reduced by the relevant
economic, social, and ecological factors.”123 UCIDA Plaintiffs argue that Amendment 14
and the Final Rule “fail[] to provide any means to ensure that the Cook Inlet salmon stocks
are not overfished or to ensure that the fishery is achieving optimum yield on a continuing
basis” in violation of National Standard 1.124
Amendment 14 and the Final Rule set the MSY for the Cook Inlet salmon
fishery as “the maximum amount of harvest possible under the State of Alaska’s
escapement goals.”125 	According to the agency, “[o]ptimum yield for the Cook Inlet
salmon fishery is the level of catch from all salmon fisheries occurring within the Cook
Inlet (State and Federal water catch) . . . .”126 	The agency explained that “[t]his OY
recognizes that salmon are fully utilized by State managed fisheries and that the State of
121 16 U.S.C. § 1802(33).
122 50 C.F.R. § 600.310(b)(2)(ii) (“The determination of OY is a decisional mechanism for
resolving the Magnuson-Stevens Act’s conservation and management objectives, achieving an FMP’s
objectives, and balancing the various interests that comprise the greatest overall benefits to the Nation. OY
is based on MSY. . . .”).
123 AKR0001917.
124 Docket 38 at 37.
125 AKR0020364.
126 Docket 53 at 46.
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Alaska manages fisheries based on the best available information using the State’s
escapement goal management system.”127
As explained supra in Section IV.A.2. of this Order, hinging federal
management targets on the changing landscape of state decisions is an improper delegation
of management authority to the State, and the agency’s explanation for its decision to do
so fares no better in this context. Federal Defendants assert that the State’s management
practices for determining MSY and OY can be retroactively supported by an analysis of
status determination criteria128 and reference points that were reviewed by the Council and
its Scientific and Statistical Committee (“SSC”) in assessing Alternatives 2 and 3.129 “The
analysis found that State management of Cook Inlet salmon stocks had been consistently
appropriate for conservation within the bounds of the status determination criteria that
would be implemented under Federal management.”130 	In ultimately recommending
adoption of Alternative 4, in its Proposed Rule, the agency stated that
[f]ederal management of the Cook Inlet EEZ through closure
of the area to commercial salmon fishing (1) takes the most
precautionary 	approach 	to 	minimizing 	the 	potential 	for
overfishing, (2) avoids creating new management uncertainty,
(3) 	minimizes 	regulatory 	burden 	to 	fishery 	participants,
(4) maximizes management efficiency for Cook Inlet salmon
fisheries, and (5) avoids the introduction of an additional
management jurisdiction and the associated uncertainty it
would add to the already complex and interdependent network
of Cook Inlet salmon fisheries.131
127 AKR0000109.
128 Status determination criteria, as well as an analysis of MSY, OY, and ACLs, allow NMFS to
assess whether a stock is overfished or overfishing is occurring. 50 C.F.R. § 600.310(b)(1)(ii).
129 Docket 53 at 46–47; AKR0013814.
130 Docket 53 at 36.
131 AKR0013814.
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Therefore, when analyzing Alternative 4, the agency effectively recycled the
analysis that was performed to assess the viability of Alternatives 2 and 3, concluded that
the State of Alaska already was competently managing the salmon stocks in the Cook Inlet
EEZ, and on that basis alone, deferred entirely to existing State management measures.
“Avoiding management uncertainty,” “minimiz[ing] regulatory burden” and “avoid[ing]
the introduction of an additional management jurisdiction” are all insufficient justifications
for the abdication of federal management authority.132 	The Ninth Circuit already has
determined that this approach does not comply with the Magnuson-Stevens Act’s mandate
that “federal fisheries are to be governed by federal rules in the national interest.”133
Bootstrapping statutorily required management measures, such as MSY and OY, to the
actual number of fish caught in the Cook Inlet, as determined by the State of Alaska,
summarily casts the decision of what constitutes “the amount of fish which . . . will provide
the greatest overall benefit to the Nation” to Alaska’s Department of Fish and Game.134
The Magnuson-Stevens Act surely does not intend for the State of Alaska to be the sole
arbiter of conservation and management measures without any federal stewardship.
Although the Ninth Circuit in UCIDA I determined that NMFS could utilize
state management measures, it qualified this finding by stating that NMFS must do so
“expressly in an FMP.”135 Specifically, the Court found that “if NMFS concludes that state
132 See id.
133 United Cook Inlet Drift Ass’n v. Nat’l Marine Fisheries Serv., 837 F.3d 1055, 1063 (9th Cir.
2016) (emphasis added).
134 16 U.S.C. § 1851(a)(1).
135 UCIDA I, 837 F.3d 1055, 1063 (9th Cir. 2016).
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regulations embody sound principles of conservation and management and are consistent
with federal law, it can incorporate them into the FMP.”136 However, the fishery must be
managed “through those plans.”137 	Indeed, the Ninth Circuit approvingly points to
NMFS’s express delegation of salmon fishery management of the East Area to the State of
Alaska.138 Even assuming the agency appropriately studied and documented the impacts
of State management of Cook Inlet salmon stocks, as described above, NMFS’s decision
to prohibit commercial fishing so that the State can effectuate its management strategy via
state waters does not amount to express delegation of that management strategy through an
FMP. 	The plan for continuous federal management cannot consist of the agency
abandoning its responsibilities in favor of deferral to the State.139 	This approach would
open the door for state management that is inconsistent with, and free from, oversight by
the federal agencies ultimately tasked with conservation and management of the fishery.
Lastly, NMFS’s own analysis determined that “[o]verfishing is not occurring
for any Cook Inlet salmon stocks, and none are in an overfished status.”140 This does not
track with the agency’s explanation that the reason for the closure is to ensure a
“precautionary approach to minimizing the potential for overfishing.”141 	The agency’s
136 Id. (citing 16 U.S.C. § 1856(b)(5)).
137 Id. (emphasis added).
138 Id. (citing 50 C.F.R. §§ 679.1(i)(2)) (“State of Alaska laws and regulations that are consistent
with the Salmon FMP and with the regulations in this part apply to vessels of the United States that are
commercial and sport fishing for salmon in the East Area of the Salmon Management Area.”).
139 See 16 U.S.C. § 1801(a)(6) (stating that the Magnuson-Stevens Act is intended to establish a
“national program for the conservation and management of the fishery resources of the United States. . . .”).
140 AKR0001731.
141 AKR0013814.
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explanation for why closure cannot be reconciled with the evidence before it and its own
stated conclusions. A decision to minimize a nonexistent threat is not reasonable.
The administrative record is replete with justifications from NMFS for why
the State of Alaska should continue to manage salmon stocks in the Cook Inlet EEZ, but
fails to wed State management of the Cook Inlet salmon with proper standards for
determining the OY of that fishery. 	Amendment 14 also does not provide any measures
that ensure OY is achieved on a continuing basis. 	Amendment 14 and the Final Rule
therefore do not comply with National Standard 1.
2. 	National Standard 2
National Standard requires 2 that “[c]onservation and management measures
shall be based upon the best scientific information available.”142 This standard “dictates
that the Secretary cannot simply create a rule out of whole cloth or one based on mere
political compromise: 	a regulation must be based on concrete analysis that permits the
Secretary to ‘rationally conclude that his [or her] approach would accomplish his [or her]
legitimate objectives.’”143 	UCIDA Plaintiffs argue that the prohibition of commercial
salmon fishing in the Cook Inlet fishery was based on political compromise rather than
science.144 Federal Defendants respond that “NMFS had no ability or authority to force a
142 16 U.S.C. § 1851(a)(2).
143 The Fishing Co. of Alaska v. United States, 195 F. Supp. 2d 1239, 1248 (W.D. Wash. 2002)
(citing Parravano, v. Babbitt, 837 F. Supp. 1034, 1041 (N.D. Cal. 1993)).
144 Docket 38 at 40–41.
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delegation on the State . . . and Alaska’s reasons are immaterial to NMFS’s compliance
with National Standard 2.”145
This Court recognizes that it is out of its depth in terms of analyzing scientific
determinations made during the rulemaking process. That is the job of the expert agency
and the purpose of assembling a Council of fishery experts and stakeholders under the
Magnuson-Stevens Act. The Court reiterates that its role simply is to determine whether
the administrative record before it supports the challenged agency decision.146 However,
if “a plain reading of the proposed NMFS rule, and the undisputed history leading up to
the . . . decision, demonstrate that the rule was a product of pure political compromise, not
reasoned scientific endeavor[,]” the Court is well-positioned to determine that Federal
Defendants failed to meet National Standard 2.147
The Council first met in April 2017 to work on an amendment to the Salmon
FMP that complied with the Ninth Circuit’s ruling. and initially proposed three alternatives
for action.148 It appears from the administrative record that, although different variations
providing for Federal management of the Cook Inlet EEZ were considered, Alternative 2
was the preferred alternative and focused on by the Salmon Committee for nearly four
years.149 	To reiterate, Alternative 2 endeavored to amend the FMP to include the Cook
145 Docket 53 at 57–58.
146 See Pac. Coast Fed’n of Fishermen’s Ass’ns v. Blank, 693 F.3d 1084, 1091 (9th Cir. 2012).
UCIDA Plaintiffs argue that the State of Alaska has historically mismanaged salmon stocks in the Cook
Inlet and at least a part of the impetus for its litigation appears to stem from its unhappiness with declining
commercial harvests. Docket 38 at 14–17. The Court declines to address these concerns because they are
beyond the scope of its review.
147 Midwater Trawlers Co-op. v. Dep’t of Commerce, 282 F.3d 710, 720 (9th Cir. 2002).
148 Docket 53 at 28.
149 See id. at 29–33; AKR0018504; AKR0000708.
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Inlet EEZ Area and delegate authority over specific management measures to the State
with review and oversight by the Council. However, in October 2020, a mere two months
before the District Court’s deadline for the Council to make a final recommendation to
NMFS, the State of Alaska introduced Alternative 4.150
The 	administrative 	record 	shows 	that 	the 	State 	of 	Alaska 	preferred
Alternative 4 for primarily, or perhaps purely, ideological reasons and effectively steered
the Council to recommend Alternative 4 over others, despite a lack of public support and
analysis. 	Emails between State Fish and Game officials show that the State’s primary
motivation for supporting Alternative 4 was resistance to “federal and outsider influence
on our state salmon fisheries.”151 	The Commissioner of the Alaska Department of Fish
and Game drafted an op-ed entitled “State Right to Manage,” rejecting “state management
in federal waters in line with federal standards.”152 	The State of Alaska formally
announced its position that it would reject delegated management authority under
Alternative 2 at a Council meeting in December 2020.153 Federal Defendants assert that
“without an agreement from the State to accept the delegation of management authority,
Alternative 2 was no longer a viable option.”154 The Council then was left with a choice
between Alternative 1, the no action alternative, which was not feasible due to the Ninth
150 AKR0019263. See also AKR0006543.
151 AKR0000692.
152 AKR0000684–85. The draft op-ed declares that the State government “would prefer to close
federal waters in Cook Inlet to commercial salmon fishing rather than allowing federal encroachment into
the management of Alaska’s salmon fisheries.” AKR0000685.
153 AKR0007301–02.
154 Docket 53 at 34–35.
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Circuit’s ruling; Alternative 3, complete federal management; and Alternative 4. 	The
Council voted unanimously to recommend Alternative 4; however, NMFS’s representative
to the Council abstained, stating that the State’s decision to refuse delegation of
management authority left “us only a solution that’s been rejected by all of the impacted
users.”155
Even setting aside any political interference in the Council process, the
scientific information NMFS had before it in promulgating the Final Rule is inadequate.
The SSC offered no analysis on Alternative 4 because it was proposed after the Salmon
Committee’s analysis already was completed.156 The Council’s Advisory Panel (“AP”)157
did analyze the full panoply of alternatives and found that Alternative 4 “does not consider
the migration of displaced fishers and how the amplified effort in State waters will affect
harvest strategies,” and “has had little to no transparent public process.”158 	The AP
additionally found that
[t]he following statement “prohibiting commercial harvest
enables 	the 	state 	to 	manage 	salmon 	fisheries 	to 	achieve
escapement goals and maximize economic and social benefits
from the fishery” is not thoroughly explained and reads more
like an arbitrary statement than best available science.159
155 Id. at 35.
156 Docket 57 at 19.
157 See 16 U.S.C. § 1852(g)(3)(A) (“Each Council shall establish and maintain a fishing industry
advisory committee which shall provide information and recommendations on, and assist in the
development of, fishery management plans and amendments to such plans.”).
158 AKR0016427.
159 Id.
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The Court agrees with the AP’s findings. The agency does not clearly explain the rationale
behind its finding that OY will be maximized through a closure. 	Conclusory statements
cannot substitute for the reasoned explanation that the APA demands.160 The Court finds
that the administrative record does not support a finding that the Final Rule was predicated
on the best available scientific information.
3. 	National Standard 4
National Standard 4 requires that:
[c]onservation 	and 	management 	measures 	shall 	not
discriminate between residents of different States.161 	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.162
An “allocation” is a “direct and deliberate distribution of the opportunity to participate in
a fishery among identifiable, discrete user groups or individuals.”163 	A closure can be
considered an allocation of fishing privileges where
160 Envt’l Health Trust v. Fed. Commc’ns Comm’n, 9 F.4th 893, 905 (D.C. Cir. 2021).
161 Intervenor-Defendant State of Alaska argues that National Standard 4 is irrelevant in evaluating
whether Amendment 14 complies with the Magnuson-Stevens Act because it does not discriminate between
residents of different states. Docket 54 at 31–32. The State of Alaska does not identify any case law that
supports its assertion that National Standard 4’s allocation provisions are only applied if the condition
precedent of out-of-state discrimination is first established. See id. The District of D.C. has found agency
action not in compliance with National Standard 4 where an amendment to an FMP placed the commercial
sector at a permanent disadvantage and failed to consider the effects of a quota program in evaluating the
impacts of reallocation. See Guindon v. Pritzker, 240 F. Supp. 3d 181, 195 (D.D.C. Cir. 2017). Further,
other courts have assessed the fairness of fishing privilege allocations between different groups of
fishermen that were not necessarily based on an in-state/out-of-state distinction. See, e.g., All. Against IFQs
v. Brown, 84 F.3d 343, 348–50 (9th Cir. 1996) (determining whether an allocation that distinguished
between boat owners and boat lessees was fair and equitable under National Standard 4).
162 16 U.S.C. § 1851(a)(4).
163 50 C.F.R. § 600.325(c)(1).
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it results ‘in direct distributions of fishing privileges . . . .
Allocations of fishing privileges include, for example, per-
vessel catch limits, quotas by vessel class and gear type,
different 	quotas 	or 	fishing 	seasons 	for 	recreational 	and
commercial fishermen, assignment of ocean areas to different
gear users, and limitation of permits to a certain number of
vessels or fishermen.’164
However, a regulation that results in “incidental allocative effects,” is not an allocation.165
“[A]llocations are ‘fair and equitable’ if they are ‘rationally connected to the achievement
of optimum yield or with the furtherance of a legitimate FMP objective.’”166 	National
Standard 	4 	provides 	that 	“[a]n 	allocation 	scheme 	may 	promote 	conservation 	by
encouraging a rational, more easily managed use of the resource.”167
UCIDA Plaintiffs argue that the Final Rule violates this standard because it
“unfairly eliminates all fishing privileges for commercial permit holders in the federal
waters in the EEZ . . . while leaving open this same area to be used solely by recreational
fishermen.”168 	Federal Defendants assert that while the Final Rule has “incidental
allocative effects,” it is not a direct distribution and therefore not an allocation.169 Federal
Defendants further argue that, even if the Final Rule could be construed as an allocation of
fishing privileges, it is nonetheless fair and equitable because it applies to all commercial
164 Nat’l Coalition for Marine Conservation v. Evans, 231 F. Supp. 2d 119, 131 (D.D.C. 2002)
(quoting 50 C.F.R. § 600.325(c)(1)).
165 Id.
166 Fishermen’s Finest, Inc. v. Locke, 593 F.3d 886, 890 (9th Cir. 2010).
167 50 C.F.R. § 600.325(c)(3)(ii).
168 Docket 38 at 42.
169 Docket 53 at 59 (emphasis in original).
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fisherman equally and is “rationally connected to achieving optimum yield and maximizing
benefits.”170
The first question for the Court under this standard is whether the closure of
the Cook Inlet EEZ to commercial salmon fishing amounts to an allocation. NMFS agrees
that, under the Final Rule, recreational salmon fishing is permitted in the Cook Inlet EEZ,
while commercial salmon fishing is prohibited.171 	NMFS staff described the impacts of
the closure as a “reallocation from the drift gillnet to other fisheries,” because “the State
could . . . work with sport fishers to increase sport harvest in the EEZ.”172 The closure of
the Cook Inlet EEZ to all commercial salmon fishing activities, while simultaneously
allowing all recreational fishing activities, clearly fits within the range of actions
contemplated by NMFS’s regulations as a “different quota[] . . . for recreational and
commercial fishermen,” as well as an “assignment of ocean areas to different gear
users.”173 The Court finds that the Final Rule makes an allocation of fishing privileges.
The 	second 	question 	is 	whether 	this 	allocation 	is fair 	and 	equitable,
reasonably calculated to promote conservation, and carried out in such a manner that no
particular entity acquires an excessive share of privileges.174 As to fairness and equity, this
Court notes that many other “courts have declined to second-guess the Secretary’s
judgment simply because the provisions of a FMP or a plan allocation ‘have a greater
170 Id. at 60.
171 See id. at 56 (“Recreational salmon fishing is still permitted in all of the West Area . . . .”).
172 AKR0007281.
173 50 C.F.R. § 600.325(c)(1).
174 16 U.S.C. § 1851(a)(4).
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impact upon’ one group or type of fishermen.”175 Indeed, the Ninth Circuit has determined
that the “Secretary is allowed . . . to sacrifice the interests of some groups of fishermen, for
the benefit as the Secretary sees it of the fishery as a whole.”176 This is because “[i]nherent
in an allocation is the advantaging of one group to the detriment of another.”177 	The
Magnuson-Stevens Act clearly accounts for “winners” and “losers” in any distribution of
privileges, but those losing out on valuable fishing opportunities must do so for the benefit
of a larger conservation purpose.
Here, it appears that NMFS effectuated the prohibition on commercial
salmon fishing in the Cook Inlet solely to facilitate state management of salmon stocks in
the Cook Inlet EEZ, rather than to promote conservation goals. 	As discussed supra in
section IV.A.2. of this Order, this deferral of management responsibility was not rationally
related to conservation, but in furtherance of the State of Alaska’s goal to remain the sole
regulator of salmon stocks in the Cook Inlet. Federal Defendants have failed to describe
which “benefits” this reallocation of fishing privileges for commercial fishers from federal
waters to state waters would “maximize,” and it is not clear from the record how the closure
is supported by any conservation rationale. Indeed, NMFS determines that the Cook Inlet
EEZ is not at risk of being overfished or in overfished status.178 As stated above, this does
175 North Carolina Fisheries Ass’n, Inc. v. Gutierrez, 518 F. Supp. 2d 62, 89–90 (D.D.C. 2007)
(quoting Nat’l Fisheries Inst., Inc. v. Mosbacher, 732 F. Supp. 210, 225 (D.D.C. 1990)).
176 All. Against IFQs v. Brown, 84 F.3d 343, 350 (9th Cir. 1996).
177 50 C.F.R. § 600.325(c)(3)(i)(A).
178 AKR0001731.
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not comport with Federal Defendant’s assertion that the Final Rule is “reasonably
calculated to promote conservation by reducing the risk of overfishing . . . .”179
Further, the effect of the Final Rule is that recreational fishermen are
allocated the entirety of salmon fishing privileges in the Cook Inlet fishery due to the
blanket prohibition on commercial salmon fishing. 	NMFS asserts that this rulemaking
applied only to commercial fishing and an explanation as to why recreational fisherman
have carte blanche to fish for salmon stocks covered by the FMP is noticeably absent from
the administrative record. An assessment of those privileges as compared to the prohibition
applied to commercial fisherman also was not considered. 	Without a reasonable
justification rationally related to conservation, and where recreational fishermen receive an
excessive allocation of fishing privileges for no stated purpose, this allocation plainly is
inequitable.
4. 	National Standard 8
Lastly, National Standard 8 requires that:
[c]onservation and management measures shall, consistent
with the conservation requirements of this chapter (including
the preventing of overfishing and rebuilding of overfished
stocks), take into account the importance of fishery resources
to fishing communities by utilizing economic and social data
that meet the requirements of [National Standard 2], in order
to (A) provide for sustained participation of such communities,
and (B) to the extent practicable, minimize adverse economic
impacts on such communities.180
179 Docket 53 at 60.
180 16 U.S.C. § 1851(a)(8).
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UCIDA Plaintiffs argue that “NMFS and the Council failed to meaningfully
assess the actual impact of the closure on fishing communities” and “failed entirely to
identify and discuss possible mitigation measures and minimize adverse impacts on fishing
communities.”181 Federal Defendants assert that “NMFS developed quantitative indicators
of community fishery engagement and dependency,” which included an analysis of “where
harvesting vessels and permit holders were located, how dependent these entities were on
the drift net gill net fishery, and how dependent they were on salmon caught in the EEZ
portion of the fishery.”182 	Federal Defendants assert that, despite extensive analysis,
“NMFS could not predict exactly how the fishery would shift due to the Final Rule and
therefore 	could 	not 	predict 	the 	precise 	impacts 	to 	these 	communities, 	but 	NMFS
acknowledged that a loss of revenue could negatively affect fishing communities on the
Kenai Peninsula.”183
At its core, National Standard 8 “requires only that conservation and
management measures ‘take into account the importance of fishery resources to fishing
communities by utilizing the best available economic and social data” and does not “require
any particular outcome with respect to allocations.”184 It does appear here that the agency
performed an extensive analysis of the negative impacts of prohibiting commercial salmon
fishing in the Cook Inlet EEZ on commercial fishermen. 	In its Final EA, the agency
181 Docket 38 at 44–45 (internal citations omitted).
182 Docket 53 at 50 (citing AKR0000272).
183 Id. at 61.
184 Pac. Coast Fed’n of Fishermen’s Ass’ns v. Blank, 693 F.3d 1084, 1093 (9th Cir. 2012)
(emphasis in the original) (quoting 16 U.S.C. § 1851(a)(8) and Fisherman’s Finest, Inc. v. Locke, 593 F.3d
886, 896 (9th Cir. 2010)).
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considered, at length, significant reductions in the number of salmon harvested by the drift
gillnet fleet and substantial decreases in production, which could result in the shutdown of
processing businesses.185 This analysis used economic and social data from the ten most
recent years for which data was available to the agency at the time.186 Further, in the Final
Rule itself, it appears that NMFS responded to several comments expressing concern about
the economic impacts the closure would have on communities in the Kenai Peninsula.187
Although the impacts described by the agency are less than crystal clear, the Court
recognizes that “some degree of speculation and uncertainty is inherent in agency
decisionmaking.”188 Here, the Court can find that the administrative record supports the
conclusion that the agency considered the impacts to fishermen in the relevant impacted
communities.189
It is less clear that the agency considered mitigation measures which would
minimize the impacts to these communities, as required by subsection (b) of National
Standard 8.190 The only evidence of such consideration that Federal Defendants can point
to in the record is a few lines in the proposed rule where the agency briefly considered that
Alternative 	3 	might 	have 	additional 	economic 	impacts 	and 	result 	in 	regulatory
uncertainty.191 	Federal Defendants argue that once the State of Alaska declared that “it
185 See AKR0000272–329; AKR0007133.
186 See AKR0000167–68; AKR0000181; AKR0000183; AKR0000184.
187 AKR0013831–34.
188 North Carolina Fisheries Ass’n v. Gutierrez, 518 F. Supp. 2d 62, 85 (D.D.C. 2005) (quoting
Oceana, Inc. v. Evans, 384 F. Supp. 2d 203, 219 (D.D.C. 2005)).
189 See Fishermen’s Finest, 593 F.3d at 896.
190 See 16 U.S.C. § 1851(a)(8)(b).
191 See AKR0013831–32.
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would not accept a delegation of authority to manage the EEZ portions of the fishery—
there was no option available that would both meet the terms of the Judgment and avoid
any changes to the fishery that could affect fishing communities.”192 	But NMFS could
have considered any plan short of a complete prohibition of commercial fishing in the Cook
Inlet EEZ. Although an agency certainly is not required to consider every possible measure
that might mitigate the economic impacts of an action, and National Standard 8 does not
guarantee any specific group particular access to a fishery, the plain language of the
standard indicates that the agency must engage in some analysis of potential mitigation
measures.193 What little analysis that can be found in the record fails to convince the Court
that the Final Rule complies with the subsection (b) of National Standard 8.
The Court holds that the closure contained in the Final Rule is arbitrary and
capricious and not in accordance with law.
C. 	UCIDA Plaintiffs Have Failed to Establish that the Final Rule Violated NEPA
UCIDA Plaintiffs additionally allege that Federal Defendants failed to
comply with NEPA in promulgating the Final Rule.194 	“NEPA imposes procedural
requirements 	designed 	to 	force 	agencies 	to 	take 	a 	hard 	look 	at 	environmental
192 Docket 53 at 62.
193 See Groundfish Forum v. Ross, 375 F. Supp. 3d 72, 86–90 (D.D.C. 2019) (finding that National
Standard 8 “does not constitute a basis for allocating resources to a specific fishing community nor for
providing preferential treatment based on residence in a fishing community,” but also that “where two
alternatives achieve similar conservation goals, the alternative the provides the greater potential for
sustained participation of fishing communities and minimizes the adverse economic impacts on such
communities should be the preferred alternative.”) (internal citations omitted)).
194 Docket 38 at 46–48.
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consequences” of their proposed actions.195 	Agencies must prepare an environmental
impact statement (“EIS”) for federal actions that will “significantly affect[] the quality of
the human environment.”196 	To determine whether a proposed action will have a
significant effect on the quality of the human environment, agencies must prepare an EA.197
The EA must consider a reasonable range of alternatives, and include a reasonably
thorough discussion of the direct, indirect, and cumulative impacts of the proposed
alternative.198 	If an agency declines to produce an EIS, it must provide “a convincing
statement of reasons to explain why a project’s impacts are insignificant.”199 The agency
may then “issue a Finding of No Significant Impact and may then proceed with the
action.”200
Like the Magnuson-Stevens Act, “[j]udicial review of agency compliance
with NEPA is under the Administrative Procedure Act . . . . ”201 Accordingly, just as the
Court required Federal Defendants to adequately explain the basis for the promulgation of
the Final Rule and show that the administrative record supports the agency’s decision-
making, UCIDA Plaintiffs must fully describe the basis for their claims that the agency
action here violated NEPA’s requirements. 	UCIDA Plaintiffs do not acknowledge this
195 League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d
755, 763 (9th Cir. 2014) (quotations and citation omitted).
196 42 U.S.C. § 4332(2)(C).
197 40 C.F.R. § 1501.5(a)(1).
198 See id. § 1501.5(c)(2).
199 Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105, 1111 (9th Cir. 2015)
(quotations and citation omitted).
200 Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004).
201 Chilkat Indian Vill. of Klukwan v. Bureau of Land Mgmt., 399 F. Supp. 3d 888, 900–01 (D.
Alaska 2019) (citing Klamath-Siskiyou Wildlands Center, 387 F.3d at 993) aff’d, 825 F. App’x 425 (9th
Cir. 2020); see also Pac. Coast Fed’n of Fisherman’s Ass’ns v. Blank, 693 F.3d 1084, 1091 (9th Cir. 2012).
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burden under NEPA, much less carry it. UCIDA Plaintiffs’ argument in their opening brief
that the Final Rule does not comply with NEPA spans two paragraphs of argument and
includes only two citations to the record.202 UCIDA Plaintiffs allege that NMFS failed to
“provide a ‘convincing statement of reasons’ as to why its unprecedented closure will not
have significant impacts” and failed to “consider a reasonable range of alternatives” but
does not substantiate those allegations with factual findings from the record, or relevant
legal 	authority.203 	Federal 	Defendants 	correctly 	point 	out 	that 	UCIDA Plaintiffs’
arguments are not substantiated enough to establish a NEPA claim. With so little material
to analyze this claim, this Court declines to “manufacture arguments” for UCIDA
Plaintiffs, “particularly where, as here, a host of other issues are presented for review.”204
UCIDA Plaintiffs therefore have failed to establish a violation of NEPA.
D. 	Humbyrd Plaintiffs Lack Standing for Their Constitutional Claims
The Court now addresses Humbyrd Plaintiffs’ constitutional challenges to
the member composition of the Council. 	Humbyrd Plaintiffs assert that the Final Rule
must be vacated because “the North Pacific Council’s members are officers, yet do not
comply with constitutional appointment and removal requirements,” and therefore, “their
202 Docket 38 at 46–48. While the length of an argument certainly has no bearing on the quality,
this Court finds UCIDA Plaintiffs’ minimal citation to the record and legal citation particularly problematic
where the length of the Final EA produced by NMFS contains nearly 500 pages of analysis. 	See
AKR0000040–504.
203 Docket 38 at 47–48.
204 Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994).
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adoption of Amendment 14 was invalid.”205 	As a threshold matter, the Court first must
determine whether Humbyrd Plaintiffs have standing to bring these constitutional claims.
Article III of the United States Constitution confines the jurisdiction of the
federal courts to actual “cases” and “controversies.”206 	The doctrines of standing,
mootness, ripeness, and political question, among others, all elucidate the constitutional
limits placed on the role of the courts.207 “The [Article] III doctrine that requires a litigant
to have ‘standing’ to invoke the power of a federal court is perhaps the most important of
these doctrines.”208 	Standing asks “whether the plaintiff has shown an injury to himself
[or herself] that is likely to be redressed by a favorable decision;”209 in other words,
“whether the litigant is entitled to have the court decide the merits of the dispute or of
particular issues.”210
The 	“irreducible 	constitutional 	minimum 	of 	standing 	contains 	three
elements”: 	(1) injury-in-fact; (2) traceability or causation; and (3) redressability.211
Humbyrd Plaintiffs did not address standing in their opening brief, but argued in their
Reply that they are injured by the Final Rule, “which was unlawfully adopted due to the
Council members’ control over the rulemaking process, and their injuries would be
205 Docket 37 at 13.
206 U.S. Const. Art. III. § 2.
207 See Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975).
208 Allen v. Wright, 468 U.S. 737, 750 (1984), abrogated on other grounds by Lexmark Int’l, Inc.
v. Static Control Components, Inc., 572 U.S. 118 (2014).
209 Idaho Conservation League v. Mumma, 956 F.2d 1508, 1513 (9th Cir. 1992) (quoting Simon v.
Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976)).
210 Allen, 468 U.S. at 750–51 (quoting Warth, 422 U.S. at 498).
211 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
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redressed by the Rule’s vacatur.”212 Federal Defendants assert that Humbyrd Plaintiffs do
not have standing because their “alleged injuries are not caused by the allegedly
unconstitutional 	makeup 	of 	the 	Council,” 	and 	therefore 	they 	cannot 	demonstrate
traceability or redressability.213 	The Court finds that the Humbyrd Plaintiffs have not
demonstrated, at least, the final two elements necessary to establish standing and therefore
declines to reach the merits of their claims.
1. 	Injury-in-fact
The Court first must determine whether Humbyrd Plaintiffs have alleged an
injury-in-fact. Humbyrd Plaintiffs do not address standing at all in their opening brief and
instead state that the Court should find standing to be “self-evident” because “the plaintiff
is directly regulated by the challenged action.”214 	Ironically, Humbyrd Plaintiffs cite to
Sierra Club v. EPA for this proposition,215 in which the D.C. Circuit admonished plaintiff’s
failure to fully establish standing in its opening brief, instead waiting until its Reply to fully
develop its arguments.216 	The D.C. Circuit found that “[r]equiring the petitioner to
establish its standing at the outset of its case is the most fair and orderly process by which
to determine whether the petitioner has standing to invoke the jurisdiction of the court.”217
This Court agrees.
212 Docket 58 at 7.
213 Docket 53 at 70.
214 Docket 37 at 13 n.2.
215 292 F.3d 895, 899–900 (D.C. Cir. 2002).
216 Id. at 900. The D.C. Circuit cited to Grant v. United States Air Force, 197 F.3d 539, 543 n.6
(D.C. Cir. 1999) for the proposition that “our caselaw makes clear that an argument first made in the reply
comes too late.”
217 Sierra Club, 292 F.3d at 901.
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Here, Humbyrd Plaintiffs’ standing is far from self-evident. To establish an
injury in-fact, a plaintiff must show that the injury is “concrete and particularized and . . .
actual or imminent, not conjectural or hypothetical . . . .”218 Humbyrd Plaintiffs appear to
challenge the constitutionality of the North Pacific Council and that Council’s ability to
adopt amendments to an FMP, which then later may be promulgated as regulations by
NMFS pursuant to the Magnuson-Stevens Act.219 Humbyrd Plaintiffs’ arguments do not
directly attack the substance of Amendment 14 or the Final Rule, or the process that the
agency undertook in promulgating the Final Rule. 	Nonetheless, the Court need not
determine whether Humbyrd Plaintiffs correctly identified an injury-in-fact because it finds
that causation and redressability are fatal to its standing.
2. 	Causation
Humbyrd Plaintiffs are commercial fishermen with nearly 100 years of
collective commercial fishing experience in the Cook Inlet.220 	Understandably, these
Plaintiffs are concerned about the Cook Inlet salmon fishery’s operations and will be
directly impacted by its closure. Humbyrd Plaintiffs allege that closure of the Cook Inlet
EEZ to commercial salmon fishing will have devastating effects on their livelihoods as
they will be forced to fish in nearshore state waters.221 Humbyrd Plaintiffs assert that the
218 Jensen v. Locke, Case No. 3:08-cv-00286-TMB, 2009 WL 10674336, *5 (D. Alaska Nov. 9,
2009). 219 Docket 36 at 2.
220 See Docket 37-1 at 2; Docket 37-2 at 2; Docket 37-3 at 2.
221 See Docket 37-1 at 2; Docket 37-2 at 2; Docket 37-3 at 2.
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closure will increase operating costs, impose additional travel time, and decrease fishing
opportunities, all while significantly reducing their harvest of salmon.222
The prohibition on commercial salmon fishing in the Cook Inlet EEZ
undoubtedly has direct impacts on the lives of these fishermen, as well as many others.
However, the economic injuries described by Humbyrd Plaintiffs are caused by the Final
Rule, promulgated by NMFS, not by the Council. Under the Magnuson-Stevens Act, once
a regional fisheries management Council recommends an FMP or FMP amendment to
NMFS, only the Secretary (acting through NMFS) has the authority to approve and
implement it through regulations.223 	Humbyrd Plaintiffs allege that recommendations
made by a Council are “proposals” in name only, and NMFS may only block a proposal
from the Council if it violates federal law.224 Humbyrd Plaintiffs allege that the Council is
de facto in charge of making policy decisions and implementing regulations.225 	But a
Council’s proposal has no legal effect whatsoever without the agency first promulgating
implementing regulations.226 The Secretary has wide discretion to deny a proposed FMP
or plan amendment if it is inconsistent with the National Standards or other applicable
laws.227 The Secretary also must determine whether regulations proposed by the Council
222 See Docket 37-1 at 2; Docket 37-2 at 2; Docket 37-3 at 2.
223 See 16 U.S.C. §§ 1855(c)–(d), 1852(h)(1), 1854(a)–(c).
224 Docket 37 at 16.
225 Id. at 15–16.
226 See Gulf Restoration Network, Inc. v NMFS, 730 F. Supp. 2d 157, 174 (D.D.C. 2010) (finding
plaintiffs did not have a cause of action to challenge an FMP where the Secretary did not issue implementing
regulations); Anglers Conservation Network v. Prizker, 70 F. Supp. 3d 427, 436 (D.D.C. 2014) (finding the
vote of a Council formed pursuant to the Magnuson-Stevens Act had no legal effect and therefore was not
judicially reviewable), aff’d 809 F.3d 664 (D.C. Cir. 2016).
227 See 16 U.S.C. § 1854(a).
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are consistent with the FMP, plan amendment, Magnuson-Stevens Act, and all other
applicable laws before taking any rulemaking action.228 This means that the promulgation
of regulations ultimately lies within the discretion of the Secretary.
Federal Defendants argue that this Court is bound by the decision in
Northwest Environmental Defense Center v. Brennen,229 which involved an analogous
situation. 	In Brennen, plaintiffs challenged the validity of regulations promulgated
pursuant to the Magnuson-Stevens Act setting harvest limits for Oregon coastal coho
salmon.230 Plaintiffs disagreed with the regulations to the extent they set harvest levels too
high and argued that they were invalid because “the composition of the Pacific Council
violates the Appointments Clause and the principle of separation of powers.”231 The Ninth
Circuit summarily dismissed these constitutional claims, citing plaintiffs’ lack of standing,
and found that “[w]hatever constitutional infirmity may inhere in the Council’s structure
has not caused the injury of which [plaintiff] complains . . . . ”232 	It further found that
“[a]lthough the Council proposed the challenged fishery regulations, those regulations
were implemented by the Secretary after review.”233
Humbyrd Plaintiffs argue that this Court should narrowly construe Brennen
because the Brennen plaintiffs only challenged the constitutionality of state-appointed
council members, whereas here Humbyrd Plaintiffs challenge the constitutionality of the
228 See 16 U.S.C. § 1854(b).
229 958 F.2d 930 (9th Cir. 1992).
230 Id. at 932.
231 Id. at 937.
232 Id.
233 Id.
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entire Council.234 Humbyrd Plaintiffs distinguish Brennen on the basis of a single sentence
in the opinion, in which the Ninth Circuit observed that redressability for purposes of
Article III standing could not be established where plaintiffs did “not allege that plans
proposed by a Council that did not include state-appointed members would provide for
higher spawning escapement levels of OCN coho.”235 	In other words, even if plaintiffs
prevailed on their claim that state-appointed members of the Council were serving in
violation of Constitutional removal protections, this finding would not lead to the relief
that plaintiffs sought (i.e., lower harvest goals). 	Even if Brennen turned on that finding,
the same could be made here. Humbyrd Plaintiffs do not allege that a differently structured
Council would have voted against the closure of the Cook Inlet fishery to commercial
salmon fishing. 	This Court cannot divine what a Council composed of other members
would have proposed.
Humbyrd 	Plaintiffs 	also 	allege 	that 	Brennen 	has 	been 	overruled 	by
subsequent Supreme Court decisions.236 This simply is not true. Humbyrd Plaintiffs cite
to Collins v. Yellen237 for the proposition that “standing does not require tracing an injury
to the unconstitutional structure of an official’s position.”238 	In that case, plaintiff
shareholders sued the Department of Treasury (“Treasury”), alleging that the Federal
Housing Finance Agency (“FHFA”), a congressionally created, independent agency,
234 Docket 58 at 8–9.
235 Id. at 8 (quoting 958 F.2d at 937).
236 Docket 58 at 9.
237 141 S. Ct. 1761 (2021).
238 Docket 58 at 10 (citing id. at 1779).
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illegally changed how private shareholders of certain companies were compensated when
those 	companies 	profited. 	Plaintiffs 	argued 	that 	the 	structure 	of 	the 	FHFA 	was
unconstitutional because restrictions on the President’s authority to remove the director of
the FHFA violated the separation of powers.239 The injury identified by plaintiffs was the
economic 	losses 	to 	shareholders 	effectuated 	by 	the 	change—amendment 	three—
implemented by the FHFA.240 The Supreme Court found that the shareholders’ injury was
“traceable to the FHFA’s adoption and implementation of the third amendment,” which
was “responsible for the variable dividend formula that swept the companies’ net worth to
Treasury and left nothing for their private shareholders.”241 	The shareholders thus had
standing to pursue their removal protections claim. 	This is different from the case here,
where the Council did not promulgate the Final Rule that inflicted the purported injury to
Humbyrd Plaintiffs. Yellen has no effect on the analysis in Brennen because Yellen does
not change the fact that Councils under the Magnuson-Stevens Act are simply advisory
bodies and have no legal authority. In short, the Council’s composition and the Council’s
proposal of Amendment 14 is not the cause of Humbyrd Plaintiffs’ alleged injuries.
3. 	Redressability
For the same reasons Humbyrd Plaintiffs cannot demonstrate causation,
redressability cannot be established. A plaintiff bears the burden of establishing that it is
“likely, as opposed to merely speculative, that the injury will be redressed by a favorable
239 141 S. Ct. at 1775.
240 Yellen, 141 S. Ct. at 1779.
241 Id. (emphasis added).
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decision.242 In terms of relief from this Court, Humbyrd Plaintiffs request “a declaration
that the regulation is unconstitutional and a permanent prohibitory injunction setting aside
the regulation.”243 	This requested relief further demonstrates that Humbyrd Plaintiffs’
alleged injuries stem from the Final Rule, promulgated and implemented by NMFS, rather
than the Council’s proposal of Amendment 14. NMFS underwent a separate rulemaking
process—mandated and regulated through judicial review via the APA—in which it
engaged in its own analysis and assessment, prior to promulgation of the regulation; this is
the only action that had any impact on Humbyrd Plaintiffs’ ability to engage in commercial
salmon fishing in the Cook Inlet fishery. 	If this Court granted Humbyrd Plaintiffs’
proposed remedy, i.e., vacatur of the Final Rule, the constitutional issues they raise
regarding the makeup of the Council would not be redressed. Because the Council has no
authority 	to 	promulgate 	regulations, 	there 	is 	no 	action 	taken 	by 	the 	allegedly
unconstitutional body that can be redressed by this Court with either declaratory or
injunctive relief.
In summary, this Court finds that Humbyrd Plaintiffs, at minimum, cannot
establish causation or redressability and therefore do not have standing to pursue their
constitutional claims. 	The Court dismisses this action without prejudice as to Humbyrd
Plaintiffs.
242 Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 181 (2000).
243 Docket 36 at 2 (emphasis added).
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E. 	Supplemental Briefing is Necessary to Determine an Appropriate Remedy,
Beyond Vacatur
As described above, the Court finds that NMFS’s Final Rule is arbitrary and
capricious and not in accordance with law pursuant to the APA.244 	Federal Defendants
request the opportunity to brief remedy, and UCIDA Plaintiffs appear to agree that
supplemental briefing, as well as an opportunity to meet and confer with Federal
Defendants, is needed. 	However, UCIDA Plaintiffs insist that immediate vacatur of the
Final Rule is necessary. The Court agrees that “[t]he ordinary practice is to vacate unlawful
agency action.”245 Federal Defendants have not provided any reason why vacatur at this
juncture is inappropriate,246 and the Court finds that the urgency of the impending fishing
season necessitates immediate relief. 	Any interim measures will take time to implement
and potentially lead to disruptive consequences for the fishermen who ultimately answer
to the agency’s decision-making.247 The Court finds it appropriate to immediately vacate
Amendment 14 and its Final Rule.
V. 	CONCLUSION
For 	the 	foregoing 	reasons, 	Humbyrd 	Plaintiffs’ 	Motion 	for 	Summary
Judgment at Docket 36 is DENIED. UCIDA Plaintiffs’ Motion for Summary Judgment at
244 See supra sections IV.A.1.–2. of this Order.
245 United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019) (citing 5
U.S.C. § 706(2)).
246 See Nat’l Parks Conservation Ass’n v. Semonite, 422 F. Supp. 3d 92, 99 (D.D.C. 2019)
(“Because vacatur is the default remedy . . . defendants bear the burden to prove that vacatur is
unnecessary.”).
247 See Int’l Union, United Mine Workers of America v. Mine Safety and Health Admin., 920 F.2d
960, 967 (D.C. Cir. 1990) (describing factors relevant to a Court’s decision whether to vacate an arbitrary
and capricious agency action).
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Docket 38 is GRANTED. Federal Defendants’ Cross Motion for Summary Judgment at
Docket 53 is GRANTED IN PART and DENIED IN PART.
The Final Rule at 86 Fed. Reg. 60, 568, promulgated on November 3, 2021,
is VACATED. 	This matter is REMANDED to the agency for further proceedings
consistent with this Order. 	The parties shall meet and confer and propose a briefing
schedule to this Court on or prior to August 21, 2022. 	Such briefing shall include the
appropriateness of other relief requested in Plaintiff UCIDA’s Complaint.
IT IS SO ORDERED this 21st day of June, 2022, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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