Washington Trollers Association v. Juanita Kreps, Secretary of Commerce

Appellants — several associations representing commercial troll fishermen, and named individual troll fishermen — appeal from a summary judgment against them in this suit challenging the 1978 Fishery Management Plan for commercial and recreational salmon fisheries off the coasts of Washington, Oregon, and California (“the Plan”). Appellants seek a declaration that the Plan does not conform to the provisions of the Fishery Conservation and Management Act of 1976, 16 U.S.C. §§ 1801-82 [“the FCMA”], and the guidelines established pursuant to that act, 50 C.F.R. 602.2, 602.3, and hence could not serve as a proper basis for fishery management regulations promulgated by the appellee Secretary of Commerce. Because we find that material issues of fact remain unresolved, we reverse the district court’s grant of summary judgment.

Section 303(a)(3) of the FCMA, 16 U.S.C. § 1853 (a)(3), which provides that fishery management plans are to specify the fishery’s present and likely future condition, maximum sustainable yield, and optimum yield, requires that plans “include a summary of the information utilized in making such specification.” Appellants contend that the Plan violates this…

dissenting.

Today the majority mandates that henceforth, before promulgating fishing regulations pursuant to the Fishery Conservation and Management Act (Act), 16 U.S.C. § 1801 et seq., the Secretary of Commerce must make available to every interested party, every computer model, methodology, statistical study, all of the raw data and any other information which played a role in formulating fishery yield specifications pursuant to § 1853(a)(3). Thus, the public now has a right of access to all that is used to formulate such specifications and may obtain the information in the form that it came to the Secretary. I cannot agree that the statute or the public’s interest in commenting on proposed regulations requires imposition of such a sweeping access requirement. Nor can I agree that summary judgment was improperly granted in this case. I respectfully dissent.

I.

The key statutory provision construed is 16 U.S.C. § 1853 (a)(3), which provides that in promulgating a fishery management plan, that plan must:

(emphasis supplied). Reading this language in conjunction with provisions of the Act requiring public opportunity for comment on fishery management plans and regulations, 1…

645 F.2d 684 WASHINGTON TROLLERS ASSOCIATION et al., Plaintiffs-Appellants, v. Juanita KREPS, Secretary of Commerce, Defendant-Appellee. No. 79-4240. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 8, 1981. Decided May 18, 1981. Scott E. Stafne, Stafne & Hemphill, Seattle, Wash., for plaintiffs-appellants. Anne S. Almy, Dept. of Justice, Washington, D. C., for defendant-appellee. Appeal from the United States District Court for the Western District of Washington. Before PREGERSON and POOLE, Circuit Judges, and KARLTON, * District Judge. PREGERSON, Circuit Judge: 1 Appellants several associations representing commercial troll fishermen, and named individual troll fishermen appeal from a summary judgment against them in this suit challenging the 1978 Fishery Management Plan for commercial and recreational salmon fisheries off the coasts of Washington, Oregon, and California ("the Plan"). Appellants seek a declaration that the Plan does not conform to the provisions of the Fishery Conservation and Management Act of 1976, 16 U.S.C. §§ 1801-82 ("the FCMA"), and the guidelines established pursuant to that act, 50 C.F.R. 602.2, 602.3, and hence…