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Thread: 9 th CIRCUIT Ct of Appeals reverses District Ct in case filed by UCIDA

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    Default 9 th CIRCUIT Ct of Appeals reverses District Ct in case filed by UCIDA

    Don't have a link but panel on the 9th Circuit rules in favor of UCIDA requiring the Feds to have FMP for Cook Inlet salmon in federal waters and not simply turn management if the fed fishery over to the State. Big victory for UCIDA in one sense. But in another would not be surprised to see the Council simply "adopt" state management plans in CI as their own. Pretty sure the Council does not want to take on this mess. But, who knows. It could be interesting. Imagine a FMP in the federal waters of the inlet and then state management plan in state waters that differs significantly. One has quota and the other manages based on escapement. Could put the ESSN fishers at risk if fed quota for drifters is too high to get state mandated escapements. Same for the PU and sports fisheries.

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    Default Not good!

    Since it from the 9th Circuit Court you can bet it isn't good!
    Living the urban lifestyle so I can pay my way and for my family's needs, and support my country. And you?
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    For your reading pleasure.... Here's the link.

    http://cdn.ca9.uscourts.gov/datastor...1/14-35928.pdf

    Here's the summary:

    "Magnuson-Stevens Fishery Conservation and Management Act"

    "The panel reversed the district courtís summary judgment in favor of the government in an action under the Magnuson-Stevens Fishery Conservation and Management Act brought by two groups of commercial fishermen urging the rejection of Amendment 12, which removed the historic net-fishing area of Cook Inlet from the Salmon Fishery Management Plan (ďFMPĒ); and remanded with instructions that judgment be entered in favor of plaintiffs.

    The panel held that the National Marine Fisheries Service cannot exempt a fishery under its authority that required conservation and management from an FMP because the agency is content with State management. The panel held that the Magnuson-Stevens Act unambiguously requires a Regional Fishery Management Council to create an FMP for each fishery under its authority that requires conservation and management. The panel further held that the Magnuson-Stevens Act allowed delegation to a state under the FMP, but did not excuse the obligation to adopt an FMP when a Regional Fishery Management Council opted for state management. The panel concluded that Amendment 12 was therefore contrary to law to the extent that it removed Cook Inlet from the FMP."

    The summary is taken directly from the opinion on page 1.

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    So, the question is: should the State appeal? The 9th circuit uses three judge panels to decide cases which is unlike other circuits. And it is the most reversed circuit in the federal appeals system. The state could ask for a full 9 th circuit ft review and then go to the U.S. Supreme Court.
    There is more than just Cook inlet fisheries at stake. There are two other areas where the Council does not have FMPs for salmon caught in federal waters. The state will have to deal with those areas as well as almost the same facts apply. Quite the mess. Think that the Council wants to have meetings to create their own rules that differ from state regs. Ha! I would bet they are not wanting to have a place at the table in these wars

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    Youíre correct that the 9th Circuit is the most reversed Circuit court in the country. But only because itís the largest Circuit court in the country. By percentage of opinions, itís no different than any other Circuit Court.

    The State could ask the entire 9th Circuit (15 judges) to review the decision, but thatís a long shot. The decision does not have implications across the entire Circuit (nine States), which is an important consideration in an appeal. Ditto for the Supreme Court. Since the decision does not have national implications, a successful appeal to the Supremes is even less likely. My sense is that the State should fully understand what the decision means, and live with it.

    They may have no other choice.....

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    Quote Originally Posted by onthego View Post
    Don't have a link but panel on the 9th Circuit rules in favor of UCIDA requiring the Feds to have FMP for Cook Inlet salmon in federal waters and not simply turn management if the fed fishery over to the State. Big victory for UCIDA in one sense. But in another would not be surprised to see the Council simply "adopt" state management plans in CI as their own. Pretty sure the Council does not want to take on this mess. But, who knows. It could be interesting. Imagine a FMP in the federal waters of the inlet and then state management plan in state waters that differs significantly. One has quota and the other manages based on escapement. Could put the ESSN fishers at risk if fed quota for drifters is too high to get state mandated escapements. Same for the PU and sports fisheries.
    To your bolded part - this would be interesting because (I think) part of UCIDA's argument was that state management is not consistent with standards defined in MSA. Not my area of expertise, but I'm pretty sure any FMP has to meet standards in MSA.

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    Quote Originally Posted by smithtb View Post
    To your bolded part - this would be interesting because (I think) part of UCIDA's argument was that state management is not consistent with standards defined in MSA. Not my area of expertise, but I'm pretty sure any FMP has to meet standards in MSA.
    interesting point. Standards are pretty broad and likely could be in compliance with some language changes in state plans. But you raise other issues with you observation. Would there need to be observers in any of the fed waters? Are there endangered species issues, who would provide enforcement, would there be separate data banks, is a limited entry permit required in fed waters. It would seem to me to be prudent to try to have a cooperative effort where what had worked well is kept qnd fed requirements are maintained. Will be quite a challenge if the council significantly deviates from what it has claimed was so good about state management. And the same thing applies to PWS and the aalaska peninsula.

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    Quote Originally Posted by onthego View Post
    [...] But in another would not be surprised to see the Council simply "adopt" state management plans in CI as their own.
    That is definitely not as simple as it sounds. Every time state regulations changed (at least every 3 years, if not more often), the federal rules would have to be modified. While the Council's iterative process is quite thorough, it moves at a glacial pace compared to the State and BOF. There are NEPA and APA requirements the Council and NMFS have to follow. Doing such might also require some form of annual federal review of the preseason Kenai sockeye forecasts because those guide which tier of the management plans are followed.
    "Fishing relaxes me. It's like yoga, except I still get to kill something." --Ron Swanson

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    I wonder how UCIDA would feel if the NMFS simply closed fishing in the EEZ until an FMP was adopted or this was sorted out? One of a multitude of outcomes which could screw a lot of people. Not sure about the wisdom in this lawsuit, but it is a bit over my head.

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    This is a complicated issue but there are some issues that need to be resolved relative to MS. First, one cannot have an exclusive state fishery - personal use is no long a state resident fishery under MS. Second, MS has different defitiions of goals so State regulations would have to be in compliance. FMP's from the Northwest have extensive habitat sections and how to deal with invasive species like pike in the valley. There are lots of legal requirements to meet. UCIDA really should be thanked for making State and Federal Gov follow the law whether you like the law or not.

    Now to the future. The court sent the case back to the lower court to define how the fisheries would be managed until the FMP is written. That will require Federal, State, and UCIDA and others to work that out. Adopting State regulations will not meet MS. It may be 90 percent but there are issues that will need to be addressed.

    One point I have is why have a Board of Fish meeting in January and Feb? Any regulations passed by the BOF without compliance with Federal MS or an FMP will be voided. So lets save some money and put the Board meeting off for at least a year to sort things out. There is nothing pressing at this BOF and the State needs to save money and not waste it. A new BOF meeting would probably need to be held after the Federal Gov works out the FMP and interim approach.

    Appealing is not a good option. First the Federal Gov has already indicated it will not appeal and will start working on compliance. They can read that the decision is sound and unlikely to prevail in an appeal. The three judges made it clear that they were unanimous in their decision. Also the State cannot appeal from what I understand since they were not sued. Only the Federal Gov was sued in the suit. The State intervened but that does not give them a right to appeal from my understanding. I could be wrong on this so need to check.

    At this point speculation and hand wringing and red flagging waving is just useless chatter. The world will not end, user will still fish, and maybe some federal money will come into the inlet to help with things the State refuses to fund.

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    Found out State can appeal

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    Slight correction. Since this is a circut court decision, the State can request an appeal to the entire 9th circut (15 judges) or to the Supremes. They are defendent/intervenors in this case.

    This is different than an opinion from a district court. If a district court opinion/decision is appealed to the appropriate circut court, the circut court MUST hear the case, as they did here. But any appeal thereafter is discretionary on the part of the next highest court (full circut court or Supreme court). So the next highest court can take the appeal, or not. So the State is in a position to request an appeal. But for reasons Nerka has already stated, the chances of the State being granted an appeal, by either the full 9th or the Supreme court, are slim to none.

    And Slim just left town.......

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    Quote Originally Posted by Cohoangler View Post
    Slight correction. Since this is a circut court decision, the State can request an appeal to the entire 9th circut (15 judges) or to the Supremes. They are defendent/intervenors in this case.

    This is different than an opinion from a district court. If a district court opinion/decision is appealed to the appropriate circut court, the circut court MUST hear the case, as they did here. But any appeal thereafter is discretionary on the part of the next highest court (full circut court or Supreme court). So the next highest court can take the appeal, or not. So the State is in a position to request an appeal. But for reasons Nerka has already stated, the chances of the State being granted an appeal, by either the full 9th or the Supreme court, are slim to none.

    And Slim just left town.......
    maybe, maybe not! Given that the State is a party it has the same rights as the initial defendant. And since this is a decision that takes away the Stare's rights in some respect and reaches other areas of the state, I would not be so quick to count an appeal out. The consequences of this decision are dramatic and will involve major changes in how salmon fisheries are managed in fed waters right next to state waters. State could ask the full 9 th circuit to decide en banc which occasionally occurs or could apply to the SC for a writ permitting the appeal. In either case it would likely ask for a stay of the 9th circuit's decision pending final outcome. It could be something I think the state would try. IMO and could be mistaken

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    Would it be safe to assume the goal of the lawsuit was to get rid of the Personal Use Fishery?

    If exclusive fisheries are not allowed under MS, then to continue with the Personal Use dip-net fishery, participation would have to be open to all US citizens.

    I think at that point it would be safe to assume that this fishery couldn't adapt to that kind of demand and would cease to exist.

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    Onthego - I agree. The State may well decide to appeal. My point is that their request will get quickly denied, for the reasons Nerka outlined.

    To reiterate: 1) The primary defendant, the Federal government, is not appealing (if Nerka is correct). That weakens the case for appeal; 2) The decision was unanimous among the three judge panel. That is, there were no dissenting opinions; and 3) the issue does not have regional or national implications (reasonable people can disagree on this last point).

    That may not stop the State from seeking an appeal, but their chances of actually getting the full 9th or the Supremes to accept their request is virtually zero. The courts have lots of pending cases before them, and this case is just not that important, noteworthy, or controversial.

    Just my opinion.....

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    I think this is a great opportunity for the State and Federal Gov to work toward sustainable salmon fisheries and resources. Instead of fighting each other and blaming user groups that want the law followed it would be best for the hard work to start putting an FMP together for the State. Remember the lawsuit challenged Amendment 12 to the Statewide FMP.

    The State may actually gain some funds to monitor the Susitna drainage, deal with pike and habitat issues, and have outside review of management practices. In my opinion these are all good outcomes.

    I do not think UCIDA even knows the outcome of this lawsuit. They cannot predict the future and I do not think they really believe the personal use fishery will cease. It may have a quota instead of something open ended. But the personal use fishery was not really part of the suit. If you follow thhis UCIDA never mentions the PU fishery and the requirement for non-residents. They focused on escapement goals and habitat issues. Also the management to high yields rather than OEG's which I think is the foundation of their concern. I cannot speak for them but I have the sense that they see a recreational priority coming in UCI with more OEG's and In-river allocations and hope a new look via MS will reverse or slow that trend. MS is strong on support for fishing communities and commercial fisheries in traditional area.

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    Quote Originally Posted by Cohoangler View Post
    Onthego - I agree. The State may well decide to appeal. My point is that their request will get quickly denied, for the reasons Nerka outlined.

    To reiterate: 1) The primary defendant, the Federal government, is not appealing (if Nerka is correct). That weakens the case for appeal; 2) The decision was unanimous among the three judge panel. That is, there were no dissenting opinions; and 3) the issue does not have regional or national implications (reasonable people can disagree on this last point).

    That may not stop the State from seeking an appeal, but their chances of actually getting the full 9th or the Supremes to accept their request is virtually zero. The courts have lots of pending cases before them, and this case is just not that important, noteworthy, or controversial.

    Just my opinion.....
    in years 2011, 12, and 13 the 9th circuit was reversed between 71 and 86 percent of all of the appeals that were taken up by the Supreme Court. It is on track to do about the same this year. Many were three judge majority decisions. There are 29 active judges on the 9 th circuit. An appeal to the full court would take a majority of active judges to be accepted. The 9 th circuit has the dubious distinction of being the most reversed circuit court. By far. If I were advising the Stare of Alaska, I would say go for it. At least try I get the court to accept he appeal. If accepted the odds go way up. And it does not take a lot of effort to ask the court to take the appeal. It might provide some time and opportunity for the players to get together if a stay of proceedings were issued pending a decision whether to accept the appeal and then if accepted, during the appeal. Perhaps some good can come out of this. But it is quite clear that neither the State or the Council want to take this on. And if they have to there is always the chance that rather than go through a quick fix it might take years to come up with a FMP. While in the meantime the Council could simply not permit any harvest in federal waters. UCIDa's actions may come back to haunt it. Closure could really make the fishery a terminal fishery and would crowd the beaches.

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    Quote Originally Posted by onthego View Post
    in years 2011, 12, and 13 the 9th circuit was reversed between 71 and 86 percent of all of the appeals that were taken up by the Supreme Court. It is on track to do about the same this year. Many were three judge majority decisions. There are 29 active judges on the 9 th circuit. An appeal to the full court would take a majority of active judges to be accepted. The 9 th circuit has the dubious distinction of being the most reversed circuit court. By far. If I were advising the Stare of Alaska, I would say go for it. At least try I get the court to accept he appeal. If accepted the odds go way up. And it does not take a lot of effort to ask the court to take the appeal. It might provide some time and opportunity for the players to get together if a stay of proceedings were issued pending a decision whether to accept the appeal and then if accepted, during the appeal. Perhaps some good can come out of this. But it is quite clear that neither the State or the Council want to take this on. And if they have to there is always the chance that rather than go through a quick fix it might take years to come up with a FMP. While in the meantime the Council could simply not permit any harvest in federal waters. UCIDa's actions may come back to haunt it. Closure could really make the fishery a terminal fishery and would crowd the beaches.
    I do not think the Council can close the federal waters given this finding. It would be arbitrary and capricious. There is no biological foundation to do so and no other areas in this nation closed while an FMP is being written. I think the courts would say no to that in a heartbeat.

    Again, why fight this. This is not a State rights issue it is about following the law which is fairly clear here. The Council can delegate authority to the State with MS provisions enacted. The law is clear that UCI is a conservation and managed fishery and no party disputed that. So the law is the law and it is obvious to me that the judges could read. So what is the appeal point? Watching the hearings it was pretty obvious the Federal lawyers were on less than firm ground. The State lawyer was off the point totally. I do not believe the Federal Gov will appeal if what UCIDA lawyers have indicated from talking with the Federal representatives.

    Remember the State operated under an FMP for years. This is only recent that the council indicated they did not want to deal with UCI. I believe it is more not wanting to do their job than anything else given it is UCI>

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    Quote Originally Posted by Nerka View Post
    I do not think the Council can close the federal waters given this finding. It would be arbitrary and capricious. There is no biological foundation to do so and no other areas in this nation closed while an FMP is being written. I think the courts would say no to that in a heartbeat.

    Again, why fight this. This is not a State rights issue it is about following the law which is fairly clear here. The Council can delegate authority to the State with MS provisions enacted. The law is clear that UCI is a conservation and managed fishery and no party disputed that. So the law is the law and it is obvious to me that the judges could read. So what is the appeal point? Watching the hearings it was pretty obvious the Federal lawyers were on less than firm ground. The State lawyer was off the point totally. I do not believe the Federal Gov will appeal if what UCIDA lawyers have indicated from talking with the Federal representatives.

    Remember the State operated under an FMP for years. This is only recent that the council indicated they did not want to deal with UCI. I believe it is more not wanting to do their job than anything else given it is UCI>
    you make it sound fairly easy. I'm not sure it would be so. I agree that in a perfect world, it would be in the best interests of all to start a process to try to come up with a plan that incorporates MSA standards. But given the history of the Council and its deliberative slowness, what happens in the meantime. The BOF meets for 14 days early next year. The UCI season starts in May. A delegation sounds easy. But what about required process. Is it likely an FMP could be passed by the council by early next year? Probably not considering the required process. Think of the advance notices, the APs needs, need for public input, additional meetings required, etc. The public has rights and will demand to have input.
    The Council has far less experience in managing salmon fisheries than the state. A delegation sounds simple. But is it? What MSA standards Would be needed? Would you expect that UCIDA would want language that might not be agreeable to other users. Yeah, probably. They filed the lawsuit because they wanted harvest opportunities on the over escapements. How can the FMP address that concern without interfering with escapement goal management?
    What do think are the important standards that need to be addressed that are not covered by the State's management plans in federal waters? And do you think that the Council now has to come up with a FMP for PWS and the Ak Peninsula? More meetings, notices, public participation, joint meetings, etc.
    a solution would be for the District Ct judge to keep the regs in place and give the parties a deadline to come up with the FMP. But will UCIDA agree with more delay after this decision. I wouldn't.
    I may be in a minority but an appeal seems like a very good option. The State has demonstrated it can manage its salmon fisheries reasonably well, albeit with some flaws. The council does not have the same history of salmon management. the areas in play are small and do not generate much in terms of revenue compared to many federal fisheries. If I were the the governor I would go to our congressional delegation and see if legislation could be submitted exempting these areas from the federal oversight required by MSA. Meantime I would have the Atty General seek review by the full court and if denied would ask the SC to accept an appeal. Work could still take place towards a solution with the parties meeting with one another in workshops open to the public.
    No criticism of your position Nerka, but my take. Help us out here.

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    Quote Originally Posted by onthego View Post
    you make it sound fairly easy. I'm not sure it would be so. I agree that in a perfect world, it would be in the best interests of all to start a process to try to come up with a plan that incorporates MSA standards. But given the history of the Council and its deliberative slowness, what happens in the meantime. The BOF meets for 14 days early next year. The UCI season starts in May. A delegation sounds easy. But what about required process. Is it likely an FMP could be passed by the council by early next year? Probably not considering the required process. Think of the advance notices, the APs needs, need for public input, additional meetings required, etc. The public has rights and will demand to have input.
    The Council has far less experience in managing salmon fisheries than the state. A delegation sounds simple. But is it? What MSA standards Would be needed? Would you expect that UCIDA would want language that might not be agreeable to other users. Yeah, probably. They filed the lawsuit because they wanted harvest opportunities on the over escapements. How can the FMP address that concern without interfering with escapement goal management?
    What do think are the important standards that need to be addressed that are not covered by the State's management plans in federal waters? And do you think that the Council now has to come up with a FMP for PWS and the Ak Peninsula? More meetings, notices, public participation, joint meetings, etc.
    a solution would be for the District Ct judge to keep the regs in place and give the parties a deadline to come up with the FMP. But will UCIDA agree with more delay after this decision. I wouldn't.
    I may be in a minority but an appeal seems like a very good option. The State has demonstrated it can manage its salmon fisheries reasonably well, albeit with some flaws. The council does not have the same history of salmon management. the areas in play are small and do not generate much in terms of revenue compared to many federal fisheries. If I were the the governor I would go to our congressional delegation and see if legislation could be submitted exempting these areas from the federal oversight required by MSA. Meantime I would have the Atty General seek review by the full court and if denied would ask the SC to accept an appeal. Work could still take place towards a solution with the parties meeting with one another in workshops open to the public.
    No criticism of your position Nerka, but my take. Help us out here.
    Will try. So first the Council had an FMP for UCI so in a historical context this is just going back and following the process they used for years since MS was passed. Yes it will take some time but the court did indicated that the lower court was to come up with a plan while the FMP process is on-going. I believe the judge will take into consideration the concerns you have and in the short term will follow existing regulations with some modifications. For example, telling the State the PU fishery has to be open to all residents is a single issue that the Board of Fish could deal with via emergency meetings. That is why I think having a full Board meeting is a waste of time and more focused meetings after the judge decides the parameters is a better idea.

    Next, the idea of reversing the MS act and getting exceptions for Alaska was tried and rejected by Congress. Every state would want an exception so that route is even slower than the FMP process. In the meantime the law needs to be followed and this whole thing can be over in a couple of years at most. The council has the template for management in the existing regulations of the State. They just need to roll up their sleeves and do the work. Past performance by the Council will have to change but is that not what the court ordered?

    This FMP is not limited to Federal waters. The habitat issues are clearly to the headwater of the streams per FMP's written for the Pacific Northwest. I will try to get a link to those FMP's for people to see what the Federal and State governments have done in a cooperative effort. I think they look pretty good. Maybe Cohoangler has a comment on this.

    UCIDA has no special standing with the FMP process. All inputs must be considered. Relative to the lower court UCIDA may have better standing but the 9th court judges made it clear in the hearing that if UCIDA did not like what the court came up with or the council they would have to refile their suit on those points. So I do not think UCIDA really has much of club here. They won a challenge to process but not that they get special consideration.

    This is not rocket science. UCI had an FMP for years, the State managed salmon under that FMP, the Board of Fish decided to ignore provisions of MS, the Council decided to ignore provisions of MS, and thus the mess we have now. But it is fixable and trying to change MS is cutting one's nose off despite your face. Lets just see how the lower court takes this on and hope the Federal and State people stop the flag waving and do their jobs. Frankly if the Board of Fish and Council has done their this would not be an issue. The Board certainly should have known that MS would not allow a resident only PU fishery. But they threw the dice and lost now. The Council knew they had to have an FMP from other areas and wording of MS but they threw the dice and hoped no one would sue. They lost. Both groups were not responsible for their charge and duty. So lets hope they are now given the court has ruled.

    Just for the record I sat in one Board of Fish meeting and heard a Board member tell me that they knew something was illegal but said they would do it and if people did not like it they could sue. I have heard the AG representative at the Board tell the Board they could pass regulations and see if anyone would sue. I assume the Council has done the same. The legislature changed the law on sueing to make it difficult to sue the State and that created an open playing field for questionable regulations.

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