United Cook Inlet Drift Association v. National Marine Fisheries Service

processors, and community members."³Plaintiffs bring this suit to challenge Federal Defendants' adoption of Amendment 16 to the Fishery Management Plan for Salmon Fisheries in the Exclusive Economic Zone ("EEZ") off the Coast of Alaska ("Cook Inlet Salmon FMP").⁴The Cook Inlet Salmon FMP was developed pursuant to the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson-Stevens Act" or "MSA").⁵Plaintiffs contend that Amendment 16 violates the MSA and the Administrative Procedure Act ("APA"), and seek an order vacating Amendment 16. For the reasons set forth below, Plaintiffs' request for relief is DENIED and their claims are DISMISSED.

BACKGROUND

I. Magnuson-Stevens Act

The Cook Inlet Salmon FMP was created pursuant to the Magnuson- Stevens Act, 16 U.S.C. §§ 1801-1891d, which provides for exclusive federal management over fisheries within the United States' EEZ.⁶Pursuant to the MSA,

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"[s]tates retain[] jurisdiction over the first three miles from the coast, and the federal government [has] jurisdiction over the next 197 miles," the EEZ.⁷Generally,

"nothing in [the MSA] shall be construed as extending or diminishing the jurisdiction or authority of any State within its boundaries."⁸

In order to conserve and manage federal fisheries, the MSA established eight Regional Fishery Management Councils, which prepare FMPs and plan amendments, and propose implementing regulations.⁹The North Pacific Fishery Management Council ("Council") is the regional council that has "authority over the fisheries in the Arctic Ocean, Bering Sea, and Pacific Ocean seaward of Alaska."¹⁰ Although the Secretary of Commerce is responsible for reviewing and implementing FMPs, the Secretary has delegated that authority to the National Marine Fisheries Service ("NMFS").¹¹

The MSA directs each Regional Fishery Management Council to prepare and submit an FMP for each fishery under its authority that requires conservation

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and management.¹²The MSA defines "fishery" as "(A) one or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics; and (B) any fishing for such stocks."¹³In turn, "stock of fish" is defined as "a species, subspecies, geographical grouping, or other category of fish capable of management as a unit."¹⁴

FMPs must comply with both the National Standards and the Required Provisions that are contained in the MSA.¹⁵As relevant to this case, National Standards 1-3 and 10 are as follows:

(1) Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.

(2) Conservation and management measures shall be based upon the best scientific information available.

(3) To the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination.

. . .

(10) Conservation and management measures shall, to the extent practicable, promote the safety of human life at sea.¹⁶

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Further, Required Provision 3 provides that an FMP must "assess and specify the present and probable future condition of, and the maximum sustainable yield [("MSY")] and optimum yield [("OY")] from, the fishery, and include a summary of the information utilized in making such specification."¹⁷"Optimum" yield is the amount of fish which—(A) will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems; (B) is prescribed on the basis of the maximum sustainable yield from the fishery, as reduced by any relevant social, economic, or ecological factor; and (C) in the case of an overfished fishery, provides for rebuilding to a level consistent with producing the maximum sustainable yield in such fishery.¹⁸

Federal regulations further explain that "[e]ach FMP must include an estimate of MSY for the stocks and stock complexes that require conservation and management," and "[f]or stocks that require conservation and management, OY may be established at the stock, stock complex, or fishery level."¹⁹

II. Cook Inlet Salmon FMP

In 1979, pursuant to the MSA, NMFS promulgated an FMP for the High Seas Salmon.²⁰The High Seas Salmon FMP divided federal waters in Alaska into two areas: East and West. Cook Inlet is in the West Area. The FMP prohibited

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commercial salmon fishing in the West Area, excepting Cook Inlet and two other areas where commercial net fishing had historically been permitted under Alaska law.²¹The FMP also provided that the State of Alaska would continue to manage fishing in Cook Inlet.²²

In December 2012, NMFS promulgated an amendment to the FMP— Amendment 12—which removed Cook Inlet from the FMP's definition of the West Area; NMFS explained that "removing the net fishing areas and the sport fishery from the West Area allows the State to manage Alaska salmon stocks and directed fishing for those stocks as seamlessly as practicable throughout their range."²³ Plaintiffs challenged Amendment 12.²⁴The Ninth Circuit held that Amendment 12 was contrary to law to the extent that it removed Cook Inlet from the FMP because NMFS could not delegate fisheries management in the EEZ to the State of Alaska by removing an area from an FMP.²⁵Rather, "to delegate authority over a federal fishery to a state, NMFS must do so expressly in an FMP. If NMFS concludes that

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state regulations embody sound principles of conservation and management and are consistent with federal law, it can incorporate them into the FMP."²⁶For example, "Amendment 12 expressly delegates management of the East Area— certain federal waters off Alaska not including Cook Inlet—to Alaska."²⁷The Ninth Circuit rejected the Federal Defendants' argument that an FMP need not cover an entire fishery; the Circuit explained, "[w]hen Congress directed each Council to create an FMP 'for each fishery under its authority that requires conservation and management,' it did not suggest that a Council could wriggle out of this requirement by creating FMPs only for selected parts of those fisheries, excluding other areas that required conservation and management."²⁸The Circuit further noted that "[t]he [Magnuson-Stevens] Act makes plain that federal fisheries are to be governed by federal rules in the national interest, not managed by a state based on parochial concerns."²⁹

Following the Ninth Circuit's decision, this Court remanded Amendment 12 to NMFS without vacatur so that NMFS could prepare a new salmon FMP

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amendment for Cook Inlet.³⁰In an attempt to comply with the Ninth Circuit's order on remand, NMFS promulgated Amendment 14.³¹Plaintiffs challenged Amendment 14.³²Once again, Plaintiffs succeeded.³³In June 2022, this Court vacated Amendment 14 after finding that several aspects of the amendment were arbitrary and capricious, including the failure to explain the exclusion of the recreational salmon fishery in the FMP when sport fishing had been included in Amendment 12, the improper delegation of management of the Cook Inlet fishery to the State of Alaska, and the closure of the commercial salmon fishery in the Cook Inlet EEZ area without independently determining that closure was warranted.³⁴

In a third attempt to adopt a legally sufficient FMP for the Cook Inlet EEZ, in April 2023, the Council considered a draft Environmental Assessment ("EA") for Proposed Amendment 16 and four alternatives: (1) no action; (2) federal management of the fishery in the EEZ with specific management measures delegated to the State of Alaska; (3) federal management of the fishery in the EEZ;

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and (4) federal management of the commercial fishery in the EEZ with the EEZ closed to commercial fishing.³⁵The Advisory Panel recommended that the Council adopt Alternative 2, federal management of the EEZ with specific management delegated to the State.³⁶However, "[f]ollowing the Advisory Panel motion, . . . the State informed NMFS and the Council . . . that it would not accept a delegation of management authority for the Cook Inlet EEZ salmon fishery under the conditions that would be necessary to comply with the MSA."³⁷"NMFS proffered a motion that would have adopted Alternative 3, but no member of the Council would second that motion."³⁸The Council otherwise failed to recommend management measures for the Cook Inlet EEZ salmon fishery.³⁹Therefore, NMFS prepared a Secretarial Amendment based on Alternative 3.⁴⁰

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After providing public notice and an opportunity to comment on the proposed amendment, NMFS promulgated a final rule implementing Amendment 16 on April 30, 2024.⁴¹Amendment 16 "incorporates the Cook Inlet EEZ into the Salmon FMP as the Cook Inlet EEZ Area, . . . a separate and distinctly managed area" and

"establish[es] Federal fishery management for all salmon fishing that occurs in the Cook Inlet EEZ, which includes commercial drift gillnet and recreational salmon fishery sectors."⁴²Amendment 16 does not change the preexisting "Salmon FMP content related to the East Area and West Area."⁴³

Regarding MSY in Amendment 16, NMFS explained that "MSY is a reference point, informed by the best available scientific information, related to maximum possible sustainable removals of a stock or stock complex throughout its range."⁴⁴In Amendment 16, MSY is

defined as the maximum potential yield, which is calculated by subtracting the lower bound of the escapement goal (or another value as recommended by the Council's Scientific and Statistical Committee (SSC) based on the best scientific information available) from the total run size for stocks where data are available. Any fish in excess of that

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necessary to achieve the escapement goal for each stock or stock complex are theoretically available for harvest under this definition of MSY. For stocks where escapement is not known, historical catch would be used as a proxy for MSY. This definition of MSY is based on escapement goals established for salmon stocks in Cook Inlet, as informed by salmon stock assessments that use the best scientific information available, and undergo peer review by the Council's

SSC.⁴⁵

NMFS determined that "the best scientific information available to determine escapement goals for stocks in Cook Inlet are contained in the escapement goal analysis reports developed by the State of Alaska, which have been vetted by the SSC."⁴⁶

NMFS also explained that "MSY must be defined at the stock or stock complex level without reference to management jurisdictions. In contrast, OY is a long term average amount of desired yield from a particular stock or fishery and is generally set below MSY."⁴⁷"Under Amendment 16, OY would be defined at the EEZ fishery level to both account for the interactions between salmon stocks in the ecosystem and provide Federal managers with a target that is within their control to achieve."⁴⁸Amendment 16 defines "the OY range for the Cook Inlet EEZ salmon fisheries in the Salmon FMP as the range between the averages of the three lowest

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years of total estimated EEZ salmon harvest and the three highest years of total estimated EEZ salmon harvest from 1999 to 2021. . . . This results in a proposed OY range of approximately 291,631 to 1,551,464 salmon of all species."⁴⁹ Further, Amendment 16 prohibits "[v]essels . . . from fishing in both State and Federal waters on the same day, or otherwise having on board or delivering fish harvested in both EEZ and State waters, to ensure accurate catch accounting for Federal managers."⁵⁰

In May 2024, Plaintiffs filed this suit challenging several aspects of Amendment 16.⁵¹Plaintiffs also challenge the harvest specifications promulgated by NMFS pursuant to Amendment 16.⁵²Plaintiffs' Opening Brief is at Docket 37. Federal Defendants and Intervenor-Defendant State of Alaska responded in opposition at Docket 40 and Docket 41, respectively. Plaintiffs replied at Docket

46. Federal Defendants filed a sur-reply at Docket 51-1.⁵³Oral argument was held on March 25, 2025.⁵⁴

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JURISDICTION

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, which "confer[s] jurisdiction on federal courts to review agency action, regardless of whether the APA of its own force may serve as a jurisdictional predicate."⁵⁵

LEGAL STANDARD

Pursuant to the APA, a reviewing court shall set aside agency action that is

"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."⁵⁶

The APA's arbitrary-and-capricious standard requires that agency action be reasonable and reasonably explained. Judicial review under that standard is deferential, and a court may not substitute its own policy judgment for that of the agency. A court simply ensures that the agency has acted within a zone of reasonableness and, in particular, has reasonably considered the relevant issues and reasonably explained the decision.⁵⁷

The APA requires courts to "exercise their independent judgment in deciding whether an agency has acted within its statutory authority . . . . [C]ourts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous."⁵⁸

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"Courts give special deference to agency interpretations of scientific issues."⁵⁹Where "evidence is susceptible of more than one rational interpretation,"

courts will uphold the agency's findings.⁶⁰"The determination of what constitutes the 'best scientific data available' belongs to the agency's 'special expertise . . . . When examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential.'"⁶¹

"A regulation implementing a FMP will be upheld under [16 U.S.C.] § 1851(a) unless the Secretary has acted in an 'arbitrary and capricious manner promulgating such regulations.' Stated another way, [a court] will uphold a regulation against a claim of inconsistency with a 'national standard' under § 1851 if the Secretary had a 'rational basis' for it."⁶²

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DISCUSSION

I. The Definition of Fishery⁶³

Plaintiffs maintain that NMFS's FMP violates the MSA because the FMP defines fishery to include only those salmon in the federal waters of Cook Inlet. Plaintiffs assert that the FMP must set standards that apply to stocks and fishing not only within the Cook Inlet EEZ, but also in the adjacent state waters through which the salmon stock traverses. Plaintiffs maintain that "the plain language of the MSA" defines "fishery" to include "any fishing for such stocks";⁶⁴in Cook Inlet, the stocks at issue are five species of salmon that are born inland in rivers and streams, migrate to the Pacific Ocean for several years, and then travel through the Cook Inlet EEZ and three miles through state waters when returning to their natal rivers and streams to spawn. Plaintiffs maintain the MSA requires that the Salmon FMP must include measures that would apply to salmon "once they leave the EEZ" and enter water under the jurisdiction of the State of Alaska because the

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state waters are part of the fishery.⁶⁵As such, in Plaintiffs' view, Amendment 16 violates the MSA because it is "artificially limited . . . to management measures governing the 'harvest[] by the commercial and recreation fishing sectors within the Cook Inlet EEZ Area.'"⁶⁶

Plaintiffs contend that their position is supported by other MSA provisions, maintaining that "[t]here is no plausible reading of the statute that allows NMFS to apply the 'maximum sustainable yield' to the entire 'stock' but restrict 'optimum yield' to only that portion of the stock that is harvested in the EEZ. Rather, both MSY and OY must be set for the 'fishery,' which, by definition, includes 'any fishing' for the stock."⁶⁷As such, in Plaintiffs' view, the MSA requires NMFS to establish an FMP and to set OY and MSY for the entire Cook Inlet salmon fishery, including fishing for salmon in waters within the State's jurisdiction, and a separate question remains as to whether the State is willing to comply with the FMP's standards or whether federal preemption is needed.⁶⁸

Federal Defendants and the State of Alaska respond that the plain language of the MSA limits NMFS's jurisdiction to the EEZ and reserves to the State

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jurisdiction to manage fisheries within three nautical miles of Alaska's coastline.⁶⁹ Further, Federal Defendants contend that "the definitions of 'fishery' and 'stock of fish' do not turn on whether the fish are a biological unit" but rather "both definitions make clear that these are management units, not simply a biological designation, and must be defined based on the ability to treat them as a unit for management purposes."⁷⁰Regarding MSY, Federal Defendants maintain that unlike the terms fishery or OY, MSY is "a biological reference point" and "nothing in the statute . . . suggests the definition of maximum sustainable yield mandates any particular definition of 'fishery' or is otherwise intended to drive the definition of the management unit."⁷¹

The Court finds that the MSA does not require NMFS to adopt an FMP that includes waters outside the EEZ. In Oregon Trollers Ass'n v. Gutierrez, the plaintiffs argued that a NMFS amendment to the Pacific Coast Salmon FMP violated the MSA's definitions of fishery and stock of fish because it "distinguish[ed] between natural and hatchery spawners for the purposes of Klamath chinook management and conservation" in setting a "35,000 natural spawner escapement floor."⁷²Specifically, the plaintiffs maintained that "the categories of naturally

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spawning and hatchery spawning Klamath chinook are part of the same 'stock of fish' under the Magnuson Act. In their view, the NMFS may not manage members of the same 'stock of fish' separately, or treat them differently for conservation purposes."⁷³

The Ninth Circuit disagreed, interpreting the MSA's definition of "stock of fish"—"a species, subspecies, geographical grouping or other category of fish capable of management as a unit"—to hold that "[t]here is nothing in the [MSA] to suggest that natural spawners are not a 'division' or 'distinct class,' and hence a 'category,' of Klamath chinook."⁷⁴The Court observed that "[t]his host of possible bases for choosing a 'management unit' indicates the term's flexibility."⁷⁵ The same is true in this case. The salmon within the Cook Inlet EEZ are, at the very least, a "category of fish capable of management as a unit." As such, Amendment 16 is consistent with the MSA's definition of fishery, i.e., "one or more stocks of fish which can be treated as a unit for purposes of conservation and management."⁷⁶Subpart (B) of the MSA's definition of fishery does not expand the

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definition of "fishery" to encompass waters outside of the federal fishery. And yet under Plaintiffs' expansive definition, the FMP for the Cook Inlet EEZ would need to set standards for any location in which the salmon that travel within the EEZ might be fished - including inland rivers and foreign waters. In this same regard, as Federal Defendants observe, in UCIDA I, the Ninth Circuit held that NMFS was required to prepare an FMP for the "federal fishery."⁷⁷The Circuit Court observed then that "[n]o one disputes that the exempted area of the Cook Inlet is a salmon fishery."⁷⁸And the exempted area was only the EEZ portion of Cook Inlet, not the state waters. Nothing in that decision suggests that an FMP must extend to state waters.

Plaintiffs assert that Oregon Trollers supports their position because the provision of the Pacific Coast Salmon Plan at issue in that case defined the management zone for the Klamath chinook salmon to include the Klamath River from Oregon to California to the ocean.⁷⁹The Ninth Circuit found that the provision complied with federal regulatory guidance that "the geographic scope of the fishery, for planning purposes, should cover the entire range of the stock(s) of fish, and not be overly constrained by political boundaries."⁸⁰However, as Federal

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Defendants explain, in implementing the Pacific Coast Salmon Plan, NMFS "has a long and successful practice of managing federal and state waters fisheries collaboratively with Washington, Oregon, and California, with agreement from the States to take conforming measures. This type of cooperation has not been offered by the State of Alaska."⁸¹

Further, the text of National Standard 3 provides that "[t]o the extent practicable, an individual stock of fish shall be managed as a unit throughout its range,"⁸²and National Standard 3's implementing regulations, which include 50 C.F.R. § 600.320(b), direct that the geographic scope of a fishery should cover the entire range of the stocks of fish. The Court does not read § 600.320(b) to mandate than an FMP must cover the entire range of a stock of fish; rather, the MSA and § 600.320(b) direct NMFS to manage stocks of fish throughout their range, but only

"to the extent practicable."⁸³As NMFS has explained, in this case it was not practicable to adopt an FMP with measures applicable to state waters because the (quoting 50 C.F.R. § 600.320(b))).

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State of Alaska has declined to accept or implement delegated management measures.⁸⁴

Finally, nothing in the text of the MSA requires NMFS to include management measures for waters within the State of Alaska's jurisdiction. The MSA preserves state jurisdiction over fisheries in the waters from the Alaska coastline to three nautical miles seaward. While the MSA contemplates cooperation between state and federal fisheries managers and permits the delegation of management pursuant to an FMP to state authorities, nothing in the MSA requires such an arrangement.

In sum, the Court finds that Amendment 16 does not violate the MSA's definition of fishery.

II. Optimum Yield

Plaintiffs contend that Amendment 16's definition of optimum yield ("OY") violates the MSA and prior court orders. First, Plaintiffs reiterate their claim that NMFS cannot define an OY for the Cook Inlet EEZ fishery because NMFS has an

"obligation to set OY for any harvest on the Cook Inlet salmon stocks, whether such harvest is in state or federal waters."⁸⁵However, as discussed above, the

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MSA permits NMFS to define a fishery based on a category of fish capable of management as a unit, and the Court finds that the Cook Inlet EEZ salmon constitutes such a category.

Next, Plaintiffs contend that Amendment 16's OY is not based on MSY as required by the MSA because OY is based on salmon within the Cook Inlet EEZ whereas MSY is based on the entire stock of Cook Inlet salmon.⁸⁶While Federal Defendants acknowledge that "NMFS defined maximum sustainable yield on a stock-by-stock basis, while optimum yield is set at the fishery level," they maintain that NMFS complied with the MSA because MSY must be defined at the stock level while OY can be set at either the stock or fishery level.⁸⁷ The Court finds that Amendment 16's OY is based on MSY. As NMFS explained, "the maximum yield for each stock would be the total run of a stock minus the lower bound of its escapement goal range. However, because stocks cannot be targeted individually in the EEZ and are harvested in a mixed stock fishery, OY must be reduced to account for these ecological conditions and specified for the EEZ fishery as a whole."⁸⁸While the MSA provides that OY "is

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prescribed on the basis of the maximum sustainable yield from the fishery," and here NMFS defined the fishery as Cook Inlet EEZ salmon, NMFS's decision to define MSY for stocks of salmon throughout their range and to limit OY to the Cook Inlet EEZ fishery was reasonable considering NMFS's jurisdiction is limited to the EEZ and the mixed stock nature of the Cook Inlet EEZ fishery.⁸⁹Further, as Federal Defendants note, pursuant to the MSA's implementing regulations,

"maximum sustainable yield must be defined at the stock level, [whereas] optimum yield can be set at either the stock or fishery level."⁹⁰ Plaintiffs also maintain that because Amendment 16 based the Cook Inlet EEZ OY on the average of the three highest and three lowest years of estimated EEZ salmon harvest, NMFS impermissibly deferred to the State of Alaska, in violation of this Court's order in UCIDA II regarding Amendment 14.⁹¹Plaintiffs intermingled with stocks that regularly exceed their escapement goal, and because harvest of all Cook Inlet stocks also occurs in State marine and fresh waters, OY must be reduced from MSY to account for these various ecological, economic, and social factors. For this reason, OY would be defined at the fishery level to account for mixed stock harvest and variabilities in run strength.").

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also contend that NMFS violated National Standard 1 because Amendment 16 purportedly defers to the State to maintain the status quo and "does not address the significant potential yield that is going un-harvested according to NMFS's own data."⁹²

Amendment 14 prohibited commercial salmon fishing in the EEZ entirely; the UCIDA II Court found that "NMFS's decision to prohibit commercial fishing so that the State can effectuate its management strategy via state waters does not amount to express delegation of that management strategy through an FMP."⁹³ Further, the UCIDA II Court found that "[b]ootstrapping statutorily required management measures, such as MSY and OY, to the actual number of fish caught in the Cook Inlet, as determined by the State of Alaska, summarily casts the decision of what constitutes 'the amount of fish which . . . will provide the greatest overall benefit to the Nation' to Alaska's Department of Fish and Game."⁹⁴ Here, Amendment 16 does not repeat the above errors identified in UCIDA

II. Amendment 16 does not close the Cook Inlet EEZ to commercial fishing; rather, it provides a comprehensive FMP for the management of commercial fishing in the

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Cook Inlet EEZ. Additionally, NMFS's use of the State's average harvest data to inform the OY for the Cook Inlet EEZ salmon fishery does not amount to deferral to the State. NMFS developed its own methodology to determine harvest levels in the Cook Inlet EEZ.⁹⁵Further, as explained in Amendment 16, NMFS "evaluated historical EEZ harvest levels and found that harvest in the EEZ could not be increased to fully harvest surplus Kenai and Kasilof salmon without causing serious impacts to other salmon harvesters and major conservation problems for other stocks."⁹⁶The Council's Scientific and Statistical Committee reviewed an independent analysis of whether there had been reduced yield as a result of overescapement in Kenai and Kasilof river sockeye salmon stocks and "found that [Alaska's] escapement goals were established within the range expected to produce MSY for those stocks, that [Alaska's] point estimates of MSY were accurate, and that there is limited evidence for [reduced yield due to overescapement] across the observed range of escapements for Kenai and Kasilof sockeye salmon."⁹⁷NMFS also noted that Amendment 16 establishes a fishery

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management framework that will provide NMFS with information needed to precisely determine EEZ harvest and establish harvest specifications.⁹⁸ Given that NMFS developed its own methodology to calculate historic salmon harvests in the EEZ, considered whether harvests could be increased above Alaska's historical fishery management practices, and implemented mechanisms to collect data to reevaluate conservation and management measures annually, the Court finds that NMFS did not improperly defer to the State in defining OY in the EEZ. The Court also finds that NMFS did not violate National Standard 1 because it demonstrated a rational basis for establishing OY.⁹⁹

III. National Standards 2, 3, and 10

Plaintiffs maintain that NMFS violated the MSA's requirement, set forth in National Standard 2, that conservation and management measures be based upon the "best scientific information available."¹⁰⁰In this regard, Plaintiffs contend that

"[m]ultiple stock definitions that NMFS used in the final analysis for Amendment 16 were contrary to the recommendations of its own SAFE Team."¹⁰¹Specifically,

"the SAFE Team recommended definitions that tracked these stocks throughout their range," and "[t]he analysis does not explain why NMFS disregarded the

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recommendations of its own SAFE Team."¹⁰²Federal Defendants respond that the SAFE Team definitions on which Plaintiffs rely "'include Cook Inlet EEZ Area harvests' and do not include State water harvest" and that Plaintiffs otherwise fail to explain "how these definitions are inconsistent."¹⁰³

The Court notes that the portion of the record on which Plaintiffs rely is found in the Cook Inlet EEZ Area Salmon SAFE Report from May 2024, dated after NMFS issued the Final Rule for Amendment 16. Plaintiffs do not cite other evidence demonstrating that NMFS considered a draft version of the SAFE Team report containing the same proposed definition. Even assuming NMFS had considered the recommended definition from the SAFE Team, Plaintiffs do not explain the practical import of the differing definitions nor how NMFS's definition and the resulting conservation and management measures in Amendment 16 are not ultimately based on the best available science.¹⁰⁴As such, the Court finds that

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NMFS did not violate National Standard 2 by adopting a definition different than the one recommended by the SAFE Team.¹⁰⁵

Next, Plaintiffs contend that NMFS violated National Standard 3 because NMFS limited the conservation and management measures in Amendment 16 to the Cook Inlet EEZ and "fail[ed] to identify the state action and explaining the consequences of state inaction or contrary action."¹⁰⁶National Standard 3 provides that, "[t]o the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination."¹⁰⁷NMFS explained how Amendment 16 complied with National Standard 3, concluding that NMFS has no authority to manage salmon fishing that occurs in State waters, and thus there would necessarily be two separate Cook Inlet salmon fisheries. The State would not accept delegated management authority for the fishery. Under this action, NMFS would work with the State to the extent practicable in order [to] coordinate adjacent salmon fisheries and share scientific and fishery data collected between agencies to ensure that management actions are appropriately responsive to conditions throughout the range of stocks.¹⁰⁸

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Because NMFS provided a rational basis for determining that a single management of Cook Inlet salmon throughout their range was not practicable, the Court finds that NMFS did not violate National Standard 3.¹⁰⁹ Finally, Plaintiffs assert that NMFS violated National Standard 10 because Amendment 16 prohibits commercial fishing in state and federal waters on the same day.¹¹⁰According to Plaintiffs, this prohibition prevents fishermen from

"mov[ing] to safer [state] waters closer to shore and keep fishing" if the weather in federal waters becomes "dangerous."¹¹¹

National Standard 10 provides that "[c]onservation and management measures shall, to the extent practicable, promote the safety of human life at sea."¹¹²In adopting the prohibition on same-day fishing in state and federal waters, NMFS explained that if vessels were allowed to fish in both fisheries on the same day, those vessels' catch would contain a mix of salmon caught in the two management areas with no way to accurately apportion the catch between the to manage salmon stocks into State waters where NMFS has no management jurisdiction, and, thus, NMFS has designed management measures that allow it to manage stocks of salmon as a unit throughout the portion of their range under NMFS's authority, grouping interrelated stocks of salmon together because vessels cannot target individual stocks in the EEZ.").

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two areas.¹¹³Without this prohibition, NMFS "could not accurately monitor EEZ harvests and ensure the fishery complies with all Magnuson-Stevens Act requirements."¹¹⁴

Federal Defendants maintain that Plaintiffs waived this argument because they did not raise a safety issue with the same-day prohibition during the notice and comment process.¹¹⁵Further, they maintain that NMFS adequately explained how Amendment 16 complies with National Standard 10.¹¹⁶Plaintiffs respond that the safety issue was raised in UCIDA's comment letters and that, in any event,

"[t]here is no waiver when, as here, the asserted claims address the agency's obligation to comply with a statutory mandate" to "affirmatively promote the safety of human life at sea."¹¹⁷

The Court finds that even if Plaintiffs have not waived this particular argument, NMFS complied with National Standard 10. In Oregon Trollers, the Ninth Circuit rejected the plaintiffs' claim that "by shortening the fishing season, the 2005 management measures unnecessarily obliged fishermen to go to sea

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regardless of the weather or other dangers," in violation of National Standard 10.¹¹⁸ The Court explained that even a "cursory . . . analysis indicates that the NMFS considered National Standard No. 10 and thus discharged its duty under § 1851(a)(10)."¹¹⁹The Court held that "[t]he fact that the measures are 'neutral,' and do not affirmatively promote safety, does not mean that they do not promote safety 'to the extent practicable.'"¹²⁰

The same is true here. NMFS explained that

[t]his action could have an indirect impact on commercial salmon fishing vessel safety to the extent that the cost of complying with monitoring, recordkeeping and reporting measures could reduce profit margins and therefore reduce the funds available for vessel maintenance and safety equipment. However, the use of [a vessel monitoring system] would provide another way to locate fishing vessels in the event of an emergency and may improve response and rescue time.¹²¹

Further, in Amendment 16's response to comments regarding National Standard 10, NMFS noted that "[t]his action also closes fishing in the Cook Inlet EEZ Area prior to the advent of deteriorating late summer and fall weather conditions."¹²² NMFS's consideration of National Standard 10 satisfies the MSA.

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In sum, the Court finds that NMFS does not violate National Standards 2, 3, and 10 of the MSA or the APA in promulgating Amendment 16.

CONCLUSION

In light of the foregoing, Plaintiffs' claims are DISMISSED with prejudice. The Clerk of Court is directed to enter a final judgment for Defendants accordingly.

DATED this 30th day of June, 2025, at Anchorage, Alaska. /s/ Sharon L. Gleason

UNITED STATES DISTRICT JUDGE

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