American Tunaboat Association, a Nonprofit Cooperative Association v. Malcolm Baldrige, Secretary of Commerce

I. OVERVIEW

This appeal concerns regulations promulgated by the National Oceanic & Atmospheric Administration (NOAA) regarding the incidental taking of porpoise by purse seine tuna fishermen. The regulations derived from a formal rule-making proceeding conducted under § 4 of the Administrative Procedure Act (APA). 5 U.S.C. § 553 . The American Tunaboat Association (ATA) filed this action in district court to set aside or modify the final regulations adopted by NOAA. The district court, on cross-motions for summary judgment, ruled for the ATA, finding NOAA’s decision unsupported by substantial evidence. The district court ordered NOAA to revise its regulations in accordance with a prior decision entered by an administrative law judge. NOAA appeals. We affirm.

II. FACTS

The members of the ATA fish commercially for yellowfin tuna in the eastern tropical Pacific Ocean. Over the years, the fishermen have observed that yellowfin tuna tend to associate with various species of porpoise. Where a school of porpoise is observed at the surface, a school of tuna will generally be found below. The fishermen take advantage of this phenomenon by guiding the porpoise to an area where nets have…