Pacific Choice Seafood Co. v. Ross, No. 18-15455 (9th Cir. 2020)
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The Ninth Circuit affirmed the district court's grant of summary judgment in favor of the Service in an action brought by Pacific Choice challenging the agency's rule imposing a quota system for the Pacific non-whiting groundwater fishery. Pacific Choice alleged that the Service's 2.7 percent maximum share and its "control" rule exceeded its authority under the Magnuson-Stevens Fishery Conservation and Management Act of 1976 and violated the Administrative Procedure Act (APA).
After determining that Pacific Choice's suit was timely, the panel held that the Service did not act arbitrarily or capriciously in setting the 2.7 percent maximum share. The panel rejected Pacific Choice's contention that the Service failed to consider market power and failed to articulate the methods by which, and the purposes for which, it set the maximum share percent. The panel also rejected Pacific Choice's statutory and APA challenges to the Service's control rule. The panel applied Chevron deference to the Service's interpretation of "hold, acquire, or use" to include "control," as well as to the Service's definition of "control," and held that nothing in the statute unambiguously foreclosed the Service's approach.
Court Description: Magnuson-Stevens Fishery Conservation and. Management Act The panel affirmed the district court’s summary judgment entered in favor of the National Marine Fisheries Service in an action brought by Pacific Choice Seafood Company challenging the Service’s rule imposing a quota system for the Pacific non-whiting groundwater fishery, limiting the total allowable catch and prohibiting any one entity from controlling more than 2.7 percent of the outstanding quota share. In 2015, the Service determined that Pacific Choice and related entities together owned or controlled at least 3.8 percent of the quota share. Acting under the Magnuson- Stevens Fishery Conservation and Management Act of 1976 (the “Act”), the Service ordered Pacific Choice to divest its excess share. The panel held that Pacific Choice’s suit was timely because it was brought within 30 days of the Service’s publication of the 2015 rule requiring divestiture. 16 U.S.C. § 1855(f)(1). In challenging the 2.7 percent quota share limit, first, Pacific Choice argued that the Service misinterpreted the term “excessive share” in 18 U.S.C. § 1853a(c)(5)(D) by sidelining considerations of market power in favor of per- PACIFIC CHOICE SEAFOOD V. ROSS 3 vessel profitability. Because the Act was ambiguous as to what factors the Service must consider in setting a maximum share, the panel turned to step two of the framework set forth in Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984), and considered whether the Service adopted a “reasonable interpretation” of the statute. The panel held that it was reasonable for the Service to conclude that other factors can dictate a lower maximum share than might be required by a singular focus on preventing excessive market power. Second, Pacific Choice argued that the Service acted arbitrarily and capriciously by failing to consider all relevant factors and relying on insufficient analysis in choosing the 2.7 percent limit. The panel held that the record showed that the Service considered market power. The panel further held that the Service engaged in a reasoned process from which its path to the 2.7 percent limit may reasonably be discerned. The panel held that Pacific Choice’s interpretation of the administrative record was not persuasive. The panel concluded that the Service did not act arbitrarily or capriciously in setting the 2.7 percent maximum share. The panel rejected Pacific Choice’s statutory and Administrative Procedure Act challenges to the Service’s control rule. The Act requires that the Service “establish [] a maximum share . . . that a [share] holder is permitted to hold, acquire, or use.” 16 U.S.C. § 1853a(c)(5)(D)(i). The Service interpreted “hold, acquire, or use” to include “control” and defined “control” to include, among other things, “the ability through any means whatsoever to control or have a controlling influence over the entity to which [quota share] is registered.” 50 C.F.R. § 660.140(d)(4)(iii)(H). The panel held that its review of the Service’s interpretation of the rule was governed by Chevron analysis, and the panel saw nothing in the statute that 4 PACIFIC CHOICE SEAFOOD V. ROSS unambiguously foreclosed the Service’s approach. The panel further held that the rule was not arbitrary or capricious.
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