Brown

The only issue in this case is whether regulations for implementing a fishery management plan in and near Alaska waters was arbitrary and capricious, or violative of the authorizing statute. We conclude that the regulations were a permissible exercise of authority by the Secretary of Commerce.

I. FACTS AND REGULATORY FRAMEWORK

Commercial ocean fishing combines difficult and risky labor with large capital investments to make money from a resource owned by no one, the fish. Unlimited access tends to cause declining fisheries. The reason is that to get title to a fish, a fisherman has to catch it before someone else does. Pierson v. Post, 3 Caines 175 , 2 Am. Dec. 264 (N.Y.1805). This gives each fishermen an incentive to invest in a fast, large boat and to fish as fast as possible. As boats and crews get more efficient, fewer fish escape the fishermen and live to reproduce. “The result is lower profits for the too many fishermen investing in too much capital to catch too few fish.” Terry L. Anderson and Donald R. Leal, Free Market Environmentalism, 123 (1991).

Congress made findings in the Magnuson Fishery Conservation and Management Act (“Magnuson Act”), 16 U.S.C. § 1801…