Midwater Trawlers Co-Operative v. Department of Commerce

Midwater Trawlers Cooperative, West Coast Seafood Processors, and the Fishermen’s Marketing Association (collectively “Appellants” or “Midwater”) challenge the Secretary of Commerce’s decision to allocate a portion of the U.S. harvest of Pacific whiting 1 to the Makah Indian Tribe (“the Makah Tribe”). Appellants argue that the allocation runs afoul of the Magnuson-Stevens Fishery Conservation and Management Act (“Magnuson-Stevens Act”), 16 U.S.C. § 1801 et seq., and the Administrative Procedure Act (“APA”). In an earlier appeal in this case, we concluded that the National Marine Fisheries Service (“Fisheries Service”) 2 had failed to explain its allocation of Pacific whiting to the Ma-kah Tribe using the best available scientific information. Accordingly, we remanded for the Fisheries Service to promulgate a new allocation to the Makah Tribe consistent with the law and based on the best available science, or to provide further justification that the current allocation conforms to the requirements of the Magnu-son-Stevens Act and the 1855 Treaty of Neah Bay. 3 Midwater Trawlers Coop. v. Dep’t of Commerce, 282 F.3d 710 (9th Cir. 2002) (Midwater II).

Following remand, the district…