Glacier Fish Company v. Penny Pritzker

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GLACIER FISH COMPANY LLC, a No. 15-35103 Washington limited liability company, D.C. No. Plaintiff-Appellant, 2:14-cv-00040-MJP

v.

OPINION

PENNY PRITZKER, in her official capacity as Secretary of U.S. Department of Commerce;

NATIONAL OCEANIC AND

ATMOSPHERIC ADMINISTRATION;

NATIONAL MARINE FISHERIES

SERVICE,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Marsha J. Pechman, Senior District Judge, Presiding

Argued and Submitted May 10, 2016 San Francisco, California

Filed August 10, 2016 Before: Sandra S. Ikuta, and Paul J. Watford, Circuit Judges, and Derrick Kahala Watson,* District Judge.

Opinion by Judge Ikuta; Partial Concurrence by Judge Watson

SUMMARY**

Magnuson-Stevens Fishery Conservation and Management Act

The panel affirmed in part and reversed in part the district court’s grant of summary judgment to the National Marine Fisheries Service (“NMFS”) in an action by the Glacier Fish Co. challenging the fee imposed on it pursuant to NMFS’s cost recovery program developed…

Partial Concurrence by Judge WATSON

OPINION

Glacier Fish Co. challenges the fee imposed on it by the National Marine Fisheries Service (NMFS) pursuant to the agency’s cost recovery program developed under the Magnuson-Stevens Fishery Conservation and Management Act (Mag-nuson-Stevens Act, or MSA). We conclude that the agency had the authority to require Glacier to pay a cost recovery fee but that the .agency’s calculation of the amount of the 2014 cost recovery fee was inconsistent with its own regulations. We therefore reverse the district court’s grant of summary judgment in part and remand to the agency.

I

The Magnuson-Stevens Act created eight Regional Fishery Management Councils. 1 Each council creates a fishery *1116 management plan, which must contain conservation and management measures and an assessment of the maximum sustainable yield from each fishery. 16 U.S.C. § 1853 (a). Beginning in 1990, the councils were given the discretion to use “a limited access system for the fishery in order to achieve optimum yield.” Id. § 1853(b)(6). A limited access system allows only those entities that satisfy certain eligibility criteria or requirements contained in a fishery…

concurring in part and concurring in the judgment:

On appeal, Glacier makes three claims: (1) that NMFS is not authorized to collect a cost recovery fee from Glacier because (a) the coop permit does not qualify as a limited access privilege and (b) even if it did, Glacier does not hold fhe permit; (2) that NMFS failed to implement the cost accounting methodology reqommended by the Council; and (8) that NMFS’s calculation of the 2014 fee was inconsistent with its own regulations. While I join in the majority’s evaluation of the merits of all three issues, in my view, we need not have considered much of the first because Glacier waived it.

“[A] party’s failure to make an argument before the administrative ajgeney in comments on a proposed rule bar[s] it from raising that argument on judicial review.” Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013 , 1019, 1021 (9th Cir. 2004) (citing Exxon Mobil Corp. v. EPA, 217 F.3d 1246 (9th Cir. 2000)). “Although ‘claimants who bring administrative appeals may try to resolve their difficulties by alerting the decision maker to the problem in general terms, rather than using precise legal formulations,’ claimants are still obligated to…