Territory of American Samoa v. Nmfs ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 25 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRITORY OF AMERICAN SAMOA, No. 17-17081
Plaintiff-Appellee, D.C. No.
1:16-cv-00095-LEK-KJM
v.
NATIONAL MARINE FISHERIES MEMORANDUM*
SERVICE; UNITED STATES
DEPARTMENT OF COMMERCE;
NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION;
KITTY SIMONDS, Executive Director of
Western Pacific Regional Fishery
Management Council; MICHAEL D.
TOSATTO, Regional Administrator for
NOAA’s National Marine Fisheries Service
Pacific Islands Regional Office; WILBUR
ROSS, Secretary of Commerce; CHRIS
OLIVER**,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted February 5, 2020
Honolulu, Hawaii
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Chris Oliver, Assistant Administrator for Fisheries, is substituted for
Samuel D. Rauch III. See Fed. R. App. P. 43(c)(2).
Before: McKEOWN, BADE, and HUNSAKER, *** Circuit Judges.
Appellants seek reversal of the district court’s partial grant of summary
judgment and vacatur of a final rule regarding large fishing vessels in the waters
off the coast of American Samoa. Because the parties are familiar with the
administrative record and facts, we do not repeat them here. We have jurisdiction
under 28 U.S.C. § 1291 and reverse.
This appeal raises a question of whether the Government of American
Samoa (“ASG”)—representing an unorganized American territory—can sue
federal agencies under the doctrine of parens patriae, on the basis of language of
early twentieth-century cessions and the status of the waters at issue as high seas.
Because parens patriae is a prudential doctrine and not a jurisdictional limitation,
we need not reach this issue, and instead proceed to the merits. See Lexmark Int’l,
Inc. v. Static Control Components, Inc., 572 U.S. 118, 125–28 & n.4 (2014)
(distinguishing between “prudential standing” and Article III jurisdictional
limitations).
We review de novo the district court’s grant of summary judgment. Branch
Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2019). Our
***
This case was originally submitted to a panel that included Judge
Jerome Farris. After Judge Farris’s passing, Judge Hunsaker was drawn to replace
him. See Ninth Circuit General Order 3.2.h. Judge Hunsaker has reviewed the
briefs, record, and oral argument recording.
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review of the National Marine Fisheries Service’s (“NMFS”) compliance with the
Magnuson-Stevens Fishery Conservation and Management Act,
16 U.S.C. §§ 1801–1891d, is dictated by the Administrative Procedure Act, and we
will set aside the regulation if it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Pac. Coast Fed’n of
Fishermen’s Ass’ns v. Blank, 693 F.3d 1084, 1091 (9th Cir. 2012). “This standard
of review is highly deferential, presuming the agency action to be valid and
affirming the agency action if a reasonable basis exists for its decision.” Id.
(quotation marks and citation omitted).
Here, NMFS considered the input offered by ASG regarding the rule’s
impact on fishing communities, the probable effects of increased large vessel
longline fishing, and the availability of fish. It is of little import that NMFS did
not specifically cite the cessions when detailing the “other applicable laws” it
consulted, as NMFS considered the consequences of the rule on alia fishing boats,
and rationally determined the effects were not significant. “[S]ince 2006, fewer
than three alia have been operating on a regular basis; and of these, only one was
active in 2013 and 2014.” Pacific Island Pelagic Fisheries; Exemption for Large
U.S. Longline Vessels, 81 Fed. Reg. 5,619-5,620 (Feb. 3, 2016). The Western
Pacific Fishery Management Council and ASG are developing strategies to
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develop and increase alia fishing, however, and NMFS will annually review the
effects of the rule, providing ASG the opportunity for further input and challenge.
When, as here, the agency “has considered the relevant factors and
articulated a rational connection between the facts found and the choice made, the
decision is not arbitrary or capricious.” Pac. Dawn LLC v. Pritzker, 831 F.3d
1166, 1173 (9th Cir. 2016) (quotation marks and citations omitted).
REVERSED.
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