FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OREGON TROLLERS ASSOCIATION; 

SUISLAW FISHERMEN’S ASSOCIATION;

THOMAS HARRIS; JAMES MOORE; JIM

GAGNON; JOHN FRASER; GARTH

PORTEUR; STAN JONES; RUSSELL

OTT; DONALD JACOBS; GREAT

AMERICAN SMOKEHOUSE AND

SEAFOOD COMPANY; CAP’N ZACH’S

CRAB HOUSE; ZACK ROTWEIN; PAT

HOUCK; DAN MORRIS,

Plaintiffs-Appellants, No. 05-35970

v. D.C. No. 

CARLOS M. GUTIERREZ, Secretary CV-05-06165-TMC

of the United States Department of OPINION

Commerce; NATIONAL MARINE

FISHERIES SERVICES; WILLIAM T.

HOGARTH, NMFS Director; D.

ROBERT LOHN, NMFS Regional

Director for the Northwest Region,

Defendants-Appellees,

YUROK TRIBE; HOOPA VALLEY

TRIBE,

Defendants-IntervenorsAppellees. 

Appeal from the United States District Court

for the District of Oregon

Thomas M. Coffin, Magistrate Judge, Presiding

Argued and Submitted

May 1, 2006—Portland, Oregon

7383
Filed July 6, 2006

Before: John T. Noonan, A. Wallace Tashima, and

William A. Fletcher, Circuit Judges.

Opinion by Judge William A. Fletcher

7384 OREGON TROLLERS v. GUTIERREZ
COUNSEL

Russell C. Brooks, Pacific Legal Foundation, Bellevue,

Washington; Ross Day, Oregonians in Action Legal Center,

Tigard, Oregon, for the appellants.

Mark R. Haag, U.S. Department of Justice, Washington, D.C.,

and James L. Sutherland, Office of the U.S. Attorney,

Eugene, Oregon, for the appellees.

Rob Roy Smith, Morisset Schlosser Jozwiak & McGaw, Seattle, Washington, and Scott W. Williams, Curtis G. Berkey,

Alexander Berkey Williams & Weathers, Berkeley, California, for the defendants-intervenors-appellees.

7388 OREGON TROLLERS v. GUTIERREZ
OPINION

W. FLETCHER, Circuit Judge: 

The 250-mile Klamath River originates in eastern Oregon

and empties into the Pacific Ocean at Crescent City, California. The Klamath River fall chinook, an anadromous salmon

species, begin life in the river’s upper reaches and tributaries,

either in hatcheries or in the wild. As juveniles the Klamath

chinook migrate to sea and spend much of their lives in the

Klamath Management Zone, an area off the coasts of California and Oregon. At age 3, 4, or 5, they return, usually to their

natal tributaries or hatcheries, to spawn and die. 

In early 2005, the National Marine Fisheries Service

(“NMFS”) projected that a critically low number of Klamath

chinook would escape that season’s harvest to survive and to

spawn in the wild. To increase the projected number of wildspawning Klamath chinook, the NMFS adopted fishery management measures that substantially limited commercial and,

to a lesser extent, recreational fishing in the Klamath Management Zone for 2005. 

Plaintiffs, who include fishermen, fishing-related businesses, and fishing organizations, filed this action against the

NMFS and other governmental entities to challenge the 2005

management measures. Plaintiffs allege that the measures

conflict with a number of substantive and procedural requirements set forth in the Magnuson-Stevens Fishery Conservation and Management Act (“Magnuson Act”), 16 U.S.C.

§ 1801 et seq. The district court granted summary judgment

to defendants, and we affirm. 

I. Introduction

The events at issue in this dispute unfolded in early 2005

against a complicated regulatory backdrop. We first describe

OREGON TROLLERS v. GUTIERREZ 7389
in general terms the regulation of Pacific fisheries under the

Magnuson Act. We then turn to the specific facts of this case.

A. Regulatory Background

1. The Magnuson Act and Fishery Management Plans

Congress passed the Magnuson Act in 1976 in order “to

take immediate action to conserve and manage the fishery

resources found off the coasts of the United States . . . .” 16

U.S.C. § 1801(b)(1). The statute established eight Regional

Fishery Management Councils, including the Pacific Fishery

Management Council (“PFMC” or “the Council”). Id.

§ 1852(a)(1)(F). The councils, composed of federal and state

officials as well as private experts appointed by the NMFS,

draft “fishery management plans” (“FMPs”), id. § 1852(h)(1),

that are designed to “achieve and maintain, on a continuing

basis, the optimum yield from each fishery[.]” Id.

§ 1801(b)(4). The councils also propose regulations implementing these FMPs to the Secretary of Commerce. Id.

§ 1853(c). Acting through the NMFS, the Secretary reviews

FMPs and their implementing regulations for consistency

with the Magnuson Act, solicits public comment, and publishes final regulations in the Federal Register. Id.

§ 1854(a)(1)(B), (b)(1). 

2. The Pacific Coast Salmon Plan

In 1977, the NMFS approved the Pacific Coast Salmon

Plan (“Pacific Plan”), an FMP for the Pacific salmon fisheries. See Pacific Plan 1 (revised Sept. 2003), available at

http://www.pcouncil.org/salmon/salfmp.html.1 From 1978

through 1983, the Council recommended annual amendments

to the Pacific Plan based on yearly “salmon abundance estimates and social and economic factors affecting the fish1All PFMC documents we refer to are available at the Council’s website, http://www.pcouncil.org. 

7390 OREGON TROLLERS v. GUTIERREZ
eries.” 49 Fed. Reg. 43679, 43679 (Oct. 31, 1984). This

process, which required notice-and-comment and other procedures, proved “too cumbersome to allow for timely implementation of the annual regulations and efficient fishery

management.” Pacific Plan at 1. In 1984, the Council therefore proposed a “comprehensive framework amendment” to

the NMFS. Pacific Plan at 1. The 1984 amendment established consistent terms for salmon regulation that would apply

every year, and it provided a “mechanism for making preseason and inseason adjustments in the regulations without

annual amendments to the FMP.” 49 Fed. Reg. at 43679.

Shortly thereafter, the NMFS approved the amended Pacific

Plan and promulgated implementing regulations, now codified at 50 C.F.R. §§ 660.401-411. 

The amended Pacific Plan includes fixed measures, which

can only be changed through formal rulemaking, and allows

for flexible measures, which change from year-to-year based

on fishery conservation and management needs. See Nw.

Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1243 (9th Cir.

1988). “Fixed measures” include “the procedures and schedules for making preseason and inseason adjustments to the

regulations.” “Flexible measures” include “determinations of

the annual allowable levels of ocean harvests . . . .” 49 Fed.

Reg. 32414, 32414-15 (Aug. 14, 1984) (proposed rule). 

One of the most important features of the Pacific Plan’s

management of Klamath chinook is its “spawning escapement

goal.” “For natural stocks, the escapement goal is defined as

the number of spawning adults needed to produce the maximum number of juvenile salmon that, after incubation and

freshwater rearing, will out-migrate to the sea . . . . For hatchery stocks, the escapement goal is that number of spawners

needed to meet a hatchery’s agreed-upon artificial production

plan.” United States v. Washington, 774 F.2d 1470, 1473 n.2

(9th Cir. 1985). The NMFS first adopted a spawning escapement goal for the Klamath chinook in 1985. It required the

agency to design annual management measures such that, by

OREGON TROLLERS v. GUTIERREZ 7391
1998, 115,000 Klamath chinook, including 97,000 natural

spawners, would escape to spawn. See 50 Fed. Reg. 812, 813

(Jan. 7, 1985).

In December 1988, the Council, “[f]aced with declining run

sizes,” proposed an amendment to the Pacific Plan that would

set the escapement goal at “35 percent of the potential adults

from each brood of natural spawners, but no fewer than

35,000 naturally spawning adults in any given year.” Hatchery spawners would not count toward this goal. The NMFS

adopted this amendment to the Pacific Plan and implemented

it in a regulation promulgated on May 4, 1989. The regulation

has remained in effect, with minor adjustments, since then.

See 54 Fed. Reg. 19185, 19194 (May 4, 1989); 54 Fed. Reg.

19798, 19800 (May 8, 1989) (lowering the percentage to 33-

34%). 

3. Annual Management Measures

The process for setting the “flexible” annual management

measures for Pacific salmon fisheries begins in January, when

the Council releases a report describing abundance levels for

the previous year’s salmon stocks. See PFMC, Council Operating Procedure: Preseason Mgmt. Process (rev. Mar. 11,

2005). In February, the Council drafts Preseason Report I,

which makes “stock abundance forecasts and harvest and

escapement estimates [for the coming season] when recent

regulatory regimes are projected on current year abundance.”

Id. In early March, the Council meets in public to discuss various management options for the coming season in that year.

It then releases Preseason Report II, which proposes “not

more than three alternative regulatory options” to meet “FMP

management objectives.” Id. The Council holds public meetings on the proposed salmon management options in late

March. After receiving comments from the public, the Council chooses from among the options at its early April meeting.

Most of that meeting is open to the public. See Pacific Plan

at 9-1. The Council then forwards its proposed management

7392 OREGON TROLLERS v. GUTIERREZ
measures to the NMFS for final approval. Annual management measures for the Pacific salmon fisheries are published

in final form in the Federal Register in early May. 

B. Klamath Chinook and 2005 Management Measures

Klamath River salmon have suffered dramatically in recent

years. In the spring of 2002, thousands of juvenile salmon

died in the river before reaching the ocean. That fall, 34,000

mature chinook, coho, and steelhead died in the river’s lower

20 miles as they tried to swim upstream. The proliferation of

a salmon parasite, exacerbated by low water levels caused by

drought and irrigation use, may have caused this mass fish

kill. See U.S. Fish & Wildlife Serv., Klamath River Fish DieOff September 2002: Causative Factors of Mortality, Exec.

Summary at ii (Nov. 2003), available at http://www.fws.gov/

sacramento/ea. 

Problems continued in 2004 and 2005. In its Review of

2004 Ocean Salmon Fisheries, published in early 2005

(“2004 Review”), the Council reported that the Klamath River

run after the 2004 fishing season consisted of 79,000 returning adult chinook, or about 20,000 fewer than its preseason

estimate. Of these, only 24,300 were natural spawners. 2004

Review at 35. Predictions for the 2005 postseason run, when

juvenile salmon that had survived the 2002 die-off would

return to spawn, were even more dire. Preseason Report I,

released in February 2005, concluded that “a repeat of [the

2004 management measures] would be expected to result in

fewer than 35,000 natural area adult spawners, and thus, fail

to meet the minimum spawner requirement.” 2005 Preseason

Report I at 23. 

The Council met from March 6 to 11, 2005, to develop proposed options for annual management measures under the

Pacific Plan. These proposals appeared in Preseason Report

II. Each proposal recommended drastically restricted fishing

in the Klamath Management Zone. 

OREGON TROLLERS v. GUTIERREZ 7393
After public hearings in late March, the Council met in

early April to adopt its final 2005 recommendations. On the

table was a proposal to lower the 35,000 natural spawner

escapement floor for Klamath chinook by 3,000 fish in order

to spare fishermen a highly restricted season. The proposal

was seriously considered by the Council. One councilmember

observed that “[m]anaging below the floor could result in

overfishing and would require [an] emergency rule.” Another

insisted that “the risk of reducing the escapement by 3,000

fish was minimal,” while a third stated that, in his view, the

risk “was worth the potential economic benefit to the fisheries.” A fourth councilmember responded that “the management doctrine for the Klamath system was based on the

Council’s Salmon FMP.” “[I]f the Council moved away from

its mandates,” he argued, “it would contribute to the problems

in the Klamath system, which was not in the long-term interest of the Council and the fishermen.” The motion to recommend a lowered escapement floor for Klamath chinook

natural spawners from the 35,000 number established in 1989

failed by a vote of 7 to 7. 

The Council formally proposed its 2005 management measures in Preseason Report III, released shortly after the April

meeting. The report acknowledged that its recommended

“commercial fishery measures” for the Klamath Management

Zone “are substantially more restrictive than in 2004.” 2005

Preseason Report III at 2. For example, commercial fishing

in the Oregon portion of the Klamath Management Zone

would be closed for all of May, June, July, and August. Id. at

3. The Report also acknowledged that recommended “recreational fishery measures are somewhat more restrictive than

in 2004.” Id. 

The Council forwarded its proposed management measures

to the NMFS. An April 22 NMFS memorandum observed that

“during the process of developing final management recommendations for 2005 there was controversy relating to

achievement of the Klamath River fall Chinook escapement

7394 OREGON TROLLERS v. GUTIERREZ
floor of 35,000 . . . .” It noted that some commercial fishermen had appeared at the April Council meeting to propose

that it “consider increasing harvest beyond what was developed” in Preseason Report II. The memorandum recognized

that approval of this proposal would have resulted in returning

Klamath River chinook natural spawners below the 35,000

fish floor, and stated that “an emergency rule would have

been required” to allow for this deviation from the 1989 regulation amending the Pacific Plan. Another NMFS memorandum observed that the restricted season recommended by the

Council would yield an expected $33.7 million in income for

Pacific salmon fisheries, “down 28% from the 2004 value of

$46.8 million, and 74% below the 1976-1990 average.” 

Declaring that projected shortfalls in numbers of returning

salmon made “certain reductions” necessary “in order to

achieve the conservation objective of 35,000 natural Klamath

River fall Chinook adult spawners,” the NMFS adopted the

Council’s recommendations without change in an action published in the Federal Register on May 4, 2005. 70 Fed. Reg.

23054, 23055 (May 4, 2005). The NMFS did not open a public comment period before publishing its action. Rather, it

invoked the Administrative Procedure Act’s (“APA”) “good

cause” exception based on the need to get the action finalized

before opening of the fishing season. See 5 U.S.C.

§ 553(b)(B). 

There is little doubt that the restricted salmon fishing season under the 2005 management measures imposed significant hardship on Pacific fishing communities. One estimate

pegged the loss caused to commercial fishermen and related

businesses at $40 million. See Stacy Finz & Glen Martin,

Imagine a Year Without Local Salmon, S.F. Chron., Mar. 3,

2006, at A1. Several of the individual plaintiffs in this suit

attested to the threats the 2005 management measures posed

to their livelihoods. 

OREGON TROLLERS v. GUTIERREZ 7395
C. Proceedings Below

Plaintiffs commenced this suit within 30 days of the publication of the 2005 management measures in the Federal Register. Their suit has two parts. First, and most important, they

object to the 1989 regulation establishing the 35,000 natural

spawner escapement floor for Klamath chinook, under which

the 2005 action was taken. Second, they object to the 2005

action on several bases that are independent of the 1989 regulation. 

The Hoopa Valley and Yurok Tribes, whose reservations

straddle the Klamath River and its tributaries, intervened in

support of the NMFS. In a thorough and carefully reasoned

opinion, the district court granted the defendants’ motion for

summary judgment. See generally Oregon Trollers Ass’n v.

Gutierrez, Civ. No. 05-6165, 2005 U.S. Dist. LEXIS 34084

(D. Or. Sept. 8, 2005). The court concluded that plaintiffs’

attacks on the 1989 regulation establishing the 35,000 natural

spawner escapement floor were barred by the 30-day limitations period of the Magnuson Act. See 16 U.S.C. § 1855(f)(1).

In the alternative, the district court rejected plaintiffs’ claims

on the merits, holding that the escapement floor reflected “an

eminently reasonable consideration when managing a fishery

to maintain its long-term viability.” 2005 U.S. Dist. LEXIS

34084, at *31. The district court also upheld the 2005 management measures against plaintiffs’ other objections. 

On appeal, plaintiffs challenge every aspect of the district

court’s decision. We disagree with the district court’s conclusion that the plaintiffs’ attack on the 1989 regulation is barred

by the thirty-day statute of limitations contained in 16 U.S.C.

§ 1855(f)(1). However, we agree with the district court on the

merits. We therefore affirm.

II. Statute of Limitations

We review a district court’s statute of limitations determination de novo. Oja v. U.S. Army Corps of Eng’rs, 440 F.3d

7396 OREGON TROLLERS v. GUTIERREZ
1122, 1127 (9th Cir. 2006). As originally drafted, the Magnuson Act provided that a plaintiff was required to bring suit to

challenge a “regulation” within 30 days of its promulgation.

Pub. L. No. 94-265, Title III, § 305(d), 90 Stat. 354 (1976).

Congress amended this limitations period in 1990. As now set

forth in § 1855(f), it reads as follows:

(1) Regulations promulgated by the Secretary

under this chapter and actions described in paragraph (2) shall be subject to judicial review . . . if a

petition for such review is filed within 30 days after

the date on which the regulations are promulgated or

the action is published in the Federal Register . . .

(2) The actions referred to in paragraph (1) are

actions that are taken by the Secretary under regulations which implement a fishery management plan,

including but not limited to actions that establish the

date of closure of a fishery to commercial or recreational fishing.

16 U.S.C. § 1855(f) (emphasis added to indicate language

added by 1990 amendment). 

Three of plaintiffs’ six causes of action challenge the

35,000 natural spawner escapement floor as inconsistent with

the Magnuson Act. The NMFS added the escapement floor to

the Pacific Plan and its implementing regulations in 1989.

Defendants contend that under § 1855(f)(1) plaintiffs should

have filed their challenge within thirty days of the promulgation of that regulation, and that their suit is therefore sixteen

years too late. Plaintiffs in response argue, inter alia, that the

1990 amendment to § 1855(f)(1) renders their challenge to the

1989 regulation timely. For the reasons given below, we agree

with plaintiffs. 

[1] Before 1990, the Magnuson Act only allowed judicial

review of “regulations.” A challenge to a “regulation” had to

OREGON TROLLERS v. GUTIERREZ 7397
be filed within thirty days of its promulgation. If § 1855(f)(1)

were still in its original form, plaintiffs’ claim, brought in

June 2005, would be clearly time-barred because the NMFS

promulgated the regulation implementing the 35,000 natural

spawner escapement floor on May 4, 1989. See 54 Fed. Reg.

at 19194. 

The Fourth Circuit addressed the pre-1990 version of

§ 1855(f)(1) in Kramer v. Mosbacher, 878 F.2d 134 (4th Cir.

1989). There, the Secretary of Commerce promulgated a regulation establishing a 2.6 million pound limit for the 1988-89

king mackerel season on July 8, 1988. On October 14, 1988,

the Secretary declared that king mackerel were overfished and

announced that he would close the recreational fishing season

on October 17. On November 18, he announced that the commercial fishing season would close on November 23. On

November 10, plaintiffs sued to compel the Secretary to double the total allowable catch of 2.6 million pounds for the

1988 season. Id. at 135. They argued that the 30-day limitations period for challenging 2.6 million pound limit did not

commence until October 14, when the Secretary announced

his intention to close the fishery, rather than on July 8, when

he adopted the underlying regulation setting the total catch

limit. Id. at 137. 

The Fourth Circuit concluded that “the thirty day limit

commences at the time the regulations are published and that

this limit is to be strictly construed.” 878 F.2d at 137. The

court held that “the Secretary is required by the regulations to

close a fishery when its quota is reached . . . . As a result,

catch limits are in fact put into operation on the date of the

regulation’s publication, and not at some later time.” Id. (citation omitted) (emphasis in original). Because the suit was

filed four months after the regulation’s promulgation on July

8, the court concluded that it was untimely. Id.

Our case mirrors Kramer. If we were to apply § 1855(f)(1)

as it existed before its 1990 amendment, we would conclude

7398 OREGON TROLLERS v. GUTIERREZ
that the statute of limitations for challenging the regulation

establishing the 35,000 natural spawner escapement floor

expired in June of 1989, thirty days after the promulgation of

that regulation. However, Congress amended § 1855(f)(1) in

1990 specifically in order to change the result in Kramer. See

Fishery Conservation Amendments of 1990, Pub. L. No. 101-

627, § 111, 104 Stat. 4436, 4452-53. The House Report

makes this intention plain, stating that the 1990 amendment

“is a direct response to a portion of the decision of the Fourth

Circuit Court of Appeals in Kramer . . . .” H.R. Rep. No. 101-

393, at 28 (1990). 

[2] The text of the amended § 1855(f)(1) provides that a

plaintiff may challenge both an action and a regulation under

which the action is taken so long as the suit is filed within

thirty days of the action’s publication in the Federal Register.

Section 1855(f)(1) states that “[r]egulations . . . and actions

. . . shall be subject to judicial review” if a petition for review

is filed “within 30 days after the date on which the regulations

are promulgated or the action is published in the Federal Register[.]” The conjunctive “and” — italicized above — indicates that both regulations and actions are reviewable in a

timely filed petition. See Dawson v. City of Seattle, 435 F.3d

1054, 1063 (9th Cir. 2006) (describing the plain meaning of

“and”). The disjunctive “or” — also italicized above — indicates that a petition is timely if it is filed within thirty days of

either promulgation of the regulation or publication of the

action. See United States v. Tucor Int’l, Inc., 238 F.3d 1171,

1179 (9th Cir. 2001) (interpreting the plain meaning of “or”).

Thus, as a straightforward textual matter, a petition filed

within 30 days of the publication of an action may challenge

both the action and the regulation under which the action is

taken. 

If additional evidence were needed, the legislative history

of the 1990 amendment makes clear that this reading reflects

the intent of Congress. The Senate Report accompanying the

amendment stated that an affected party is unlikely to chalOREGON TROLLERS v. GUTIERREZ 7399
lenge a regulation until the regulation has a discernable practical application — that is, until the agency takes an action

under the regulation that has a material adverse effect on that

party. The short limitations period in the pre-1990 statute,

however, made such challenges untimely:

[A] substantial period may lapse between the time a

regulation to implement a fishery management plan

is published and the time action is taken by the Secretary pursuant to the regulation. In many instances,

it is only when such an action is taken that participants in the fishery can assess whether a petition for

judicial review is necessary. The time lapse between

publication o[f] a regulation and Secretarial action

may deny individuals the opportunity to challenge

regulations at the point in time when they can determine that such a challenge is necessary. 

S. Rep. No. 101-414, reprinted in 1990 U.S.C.C.A.N. 6276,

6298 (emphasis added). According to the Report, the 1990

amendment would remedy this problem by “allow[ing] a challenge within 30 days of the time that a Secretarial action is

published.” Id. 

The House Report made the same point: 

Under current law, a management plan or regulation

can only be challenged in court within 30 days after

publication in the Federal Register. Since some management regulations are prospective, this prevents

interested parties from challenging those regulations

at the time they are actually implemented. The

amendments made by this subsection will allow a

challenge within 30 days of the time that a regulation

is implemented. 

H. R. Rep. No. 101-393, at 28 (1990). The amendment’s

sponsor in the House, Representative Jones, added his voice

7400 OREGON TROLLERS v. GUTIERREZ
to this chorus. He stated that the amendment would “permit[ ]

suit” to challenge a regulation “either when initial management plan regulations are issued or when implementing

actions are put into effect.” 136 Cong. Rec. H229-06, H240

(Feb. 6, 1990) (statement of Rep. Jones). 

[3] Plaintiffs filed suit within thirty days of the publication

of the 2005 management measures. Under our reading of

§ 1855(f) as amended, the publication of these measures was

an “action” within the meaning of the statute. Therefore,

plaintiffs had thirty days to attack both the action and the

1989 regulation under which the action was taken. The government makes three arguments to avoid this result. None is

persuasive. 

First, the government argues that plaintiffs waived an argument based on the 1990 amendment to § 1855(f)(1) because

they never raised it in the district court. This is not, strictly

speaking, true. Plaintiffs did raise this argument, although

they did so only during oral argument on summary judgment.

To the extent that we need to exercise our discretion to

address this otherwise tardy argument, we are willing to exercise it in this case. Because plaintiffs’ argument raises a

purely legal issue whose resolution requires no further factual

development, and because the issue would otherwise reappear

in identical form the next time plaintiffs challenge annual

management measures, we believe it appropriate to address

this issue now. See A-1 Ambulance Serv., Inc. v. County of

Monterey, 90 F.3d 333, 339 (9th Cir. 1996). 

Second, the government argues that our earlier holding in

Norbird Fisheries, Inc. v. Nat’l Marine Fisheries Serv., 112

F.3d 414 (9th Cir. 1997), compels us to hold that plaintiffs’

challenge to the 1989 regulation is untimely. The government

has misread our analysis in Norbird. The entirety of our analysis of § 1855(f)(1) in that case was as follows:

Regulations promulgated by the Secretary under the

Magnuson Act are “subject to judicial review” in

OREGON TROLLERS v. GUTIERREZ 7401
accordance with the Administrative Procedure Act,

5 U.S.C. § 701 et seq., “if a petition for such review

is filed within 30 days after the date on which the

regulations are promulgated.” 16 U.S.C.

§ 1855(f)(1). A separate section of the Magnuson

Act confers jurisdiction on the district court “over

any case or controversy arising under the provisions

of this chapter.” 16 U.S.C. § 1861(d). This latter provision is to be read in conjunction with the provision

governing judicial review of the regulations. That

provision, § 1855(f)(1), deprives the district court of

jurisdiction to hear an attack on the regulations if

review is not sought within 30 days of their promulgation. Kramer v. Mosbacher, 878 F.2d 134, 136-37

(4th Cir. 1989). 

112 F.3d at 416. As this passage shows, our analysis in Norbird focused only on a challenge brought to a “regulation”

under § 1855(f)(1). It did not address a challenge brought to

an “action,” as distinct from a “regulation.” Our citation to

Kramer underscores this exclusive focus on a “regulation.”

The 1990 amendment to § 1855(f)(1), specifically designed to

overrule the Fourth Circuit’s decision in Kramer, relaxed the

statute of limitations by allowing a challenge to an “action”

taken under a “regulation.” We did not analyze in Norbird the

new provision in § 1855(f)(1) allowing challenges to an “action.” 

Third, and finally, the government argues that plaintiffs’

challenge to the 2005 management measures is a challenge to

a “regulation,” not to an “action.” The government has misunderstood the meaning of “action” as that term is used in

§ 1855(f)(1) and defined in § 1855(f)(2). “Actions” are

defined in § 1855(f)(2) as “actions that are taken by the Secretary under regulations which implement a fishery management plan, including but not limited to actions that establish

the date of closure of a fishery to commercial or recreational

7402 OREGON TROLLERS v. GUTIERREZ
fishing.” There can hardly be a better fit between the 2005

management measures and this definition. 

The 2005 management measures “establish the date of closure of a fishery to commercial or recreational fishing” by

closing both commercial and recreational fishing for specified

periods in specified areas in the Klamath Management Zone.

Moreover, the 2005 management measures “are taken . . .

under [a] regulation[ ] which implement[s] a fishery management plan.” The regulations implementing the Pacific Plan are

set forth at 50 C.F.R. §§ 660.401-411. The regulation in question — the 1989 amendment to the Pacific Plan adding the

escapement floor — was initially (and for several years thereafter) expressly included in the Code of Federal Regulations.

See 50 C.F.R. § 661 Appx. pt. IV(a) (1989); 50 C.F.R.

§ 660.410(a) (1996). In 2000, the express mention of the

35,000 natural spawner escapement floor was removed from

the code, see 65 Fed. Reg. 63047, 63050 (2000), but it

remains incorporated by reference. 50 C.F.R. § 660.410(a)

(2005) (providing that “conservation objectives are summarized in Table 3-1 of the Pacific Coast Salmon Plan”); Pacific

Plan at 3-9 (Table 3-1, describing 35,000 natural spawner

escapement floor). Thus, the escapement goal is part of the

regulations that implement the FMP at issue. 

The NMFS adopted the 2005 management measures by following the process the Pacific Plan’s implementing regulations prescribes for “actions.” Section 660.408, entitled

“Annual actions,” provides that the “NMFS will annually

establish . . . management specifications . . . by publishing the

action in the Federal Register under § 660.411.” 50 C.F.R.

§ 660.408(a) (emphasis added). That section further states that

“[m]anagement specifications are set forth in paragraphs (b)

through (n) of this section.” Id. Paragraph (h) is entitled “Seasons” and provides, in part, that “[c]ommercial seasons will

be established or modified taking into account . . . protection

of depressed stocks present in the fishing areas.” Id.

§ 660.408(h)(2). Thus, management measures that set a seaOREGON TROLLERS v. GUTIERREZ 7403
son’s length are “management specifications,” which in turn

are “actions.” 

Finally, the NMFS finalized and published the 2005 management measures pursuant to § 660.411, the mechanism

specified in § 660.408 for the publication of “actions.” Section 660.411 states that “[a]nnual and certain other actions . . .

will be implemented by an action published in the Federal

Register . . . .” 50 C.F.R. § 660.411(a) (emphasis added). The

regulation sets forth a “good cause” exception to the noticeand-comment requirement that otherwise applies to “any

action.” Id. § 660.411(b). When it published the 2005 management measures in the Federal Register, the NMFS invoked

§ 660.411 and its “good cause” exception. See 70 Fed. Reg.

at 23063. 

It is not our job to determine whether the statute of limitations, as it now operates under § 1855(f)(1), is unwise, unfair,

or unworkable. That job belongs to Congress. Our task is to

interpret the statute. Applying our reading of its plain terms,

the 2005 management measures’ publication triggered a 30-

day period during which plaintiffs could challenge the 1989

regulation establishing the 35,000 natural spawner escapement floor. 

III. Merits

A. Standard of Review

We now turn to the merits of plaintiffs’ claims. We review

the NMFS’s construction of the Magnuson Act under the

familiar test set forth in Chevron, U.S.A. Inc. v. NRDC, Inc.,

467 U.S. 837 (1984). See NRDC, Inc. v. Nat’l Marine Fisheries Serv., 421 F.3d 872, 878 (9th Cir. 2005). We first consider “whether Congress has directly spoken to the precise

question at issue. If the intent of Congress is clear, that is the

end of the matter; for the court, as well as the agency, must

give effect to the unambiguously expressed intent of Con7404 OREGON TROLLERS v. GUTIERREZ
gress.” Chevron, 467 U.S. at 842-43. However, “if the statute

is silent or ambiguous with respect to the specific issue, the

question for the court is whether the agency’s answer is based

on a permissible construction of the statute.” Id. at 843. So

long as the agency’s construction is reasonably consistent

with the statute, we defer to it. Id.; see also Pronsolino v.

Nastri, 291 F.3d 1123, 1131 (9th Cir. 2002). This test is satisfied if the agency’s interpretation “reflects a plausible construction of the statute’s plain language and does not

otherwise conflict with Congress’ expressed intent.” Rust v.

Sullivan, 500 U.S. 173, 183 (1991). 

The Magnuson Act adopts the APA’s standard for judicial

review of agency action set forth in 5 U.S.C. § 706(2)(A). 16

U.S.C. § 1855(f)(1). We set aside an agency’s regulations if

they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 5 U.S.C. § 706(2)(A).

“[T]he agency must examine the relevant data and articulate

a satisfactory explanation for its action including a rational

connection between the facts found and the choice made.”

Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983) (internal quotation omitted). 

B. Attacks on the 1989 Regulation

Three of plaintiffs’ six claims attack the 1989 regulation

establishing the 35,000 natural spawner escapement floor.

Plaintiffs claim (1) that the regulation is inconsistent with the

Magnuson Act’s definition of a “stock of fish” under 16

U.S.C. § 1802(37); (2) that it is inconsistent with the “national

standard” under 16 U.S.C. § 1851(a)(2) requiring that management measures “be based upon the best scientific information available;” and (3) that it is inconsistent with the

“national standard” under 16 U.S.C. § 1851(a)(3) requiring

that, “[t]o the extent practicable, an individual stock of fish

shall be managed as a unit.” We address these claims in turn.

OREGON TROLLERS v. GUTIERREZ 7405
1. “Stock of Fish” under the Magnuson Act

Plaintiffs’ primary claim is that the Magnuson Act forbids

the NMFS to distinguish between natural and hatchery spawners for the purposes of Klamath chinook management and

conservation. In the view of plaintiffs, the NMFS must count

hatchery spawners towards any escapement goal for Klamath

chinook. If this were required, an escapement goal would be

satisfied much more easily with less restrictive management

measures. The practical impact of their argument, plaintiffs

hope, is that fishermen would be allowed to catch more

salmon in the Klamath Management Zone. 

The 1989 regulation, setting a 35,000 natural spawner

escapement floor, is designed to ensure that a certain number

of naturally spawning fish survive, not that a certain number

of naturally spawned fish survive. There is substantial overlap

between the categories of salmon spawning in the wild (naturally spawning) and salmon born in the wild (naturally

spawned), but the categories are not identical. Some hatcheryborn salmon will spawn in the wild, and some salmon born in

the wild will spawn in a hatchery. Consistent with the 1989

regulation, the Council defines natural spawners as “age-three

or older fall chinook that spawn outside of the hatchery environment, regardless of their origin.” Ocean Abundance Projections and Prospective Harvest Levels for Klamath River

Fall Chinook, 2005 Season, at 2 (Feb. 2005), available at

http://www.pcouncil.org. 

Plaintiffs contend that the categories of naturally 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.

For the reasons that follow, we disagree. 

[4] A “fishery” is defined under the Magnuson Act as

7406 OREGON TROLLERS v. GUTIERREZ
(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. 

16 U.S.C. § 1802(13) (emphasis added). A “stock of fish” is

“a species, subspecies, geographical grouping or other category of fish capable of management as a unit.” Id. § 1802(37)

(emphasis added). 

Plaintiffs make two arguments why naturally spawning

Klamath chinook are not a separate “stock of fish” within the

meaning of § 1802(37). First, they point out that natural and

hatchery spawners swim side-by-side in the years between

their departure from the river as juveniles and their return as

adults. They also point out that the 2005 management measures, in their effort to meet the 35,000 natural spawner

escapement floor, limit the overall catch of chinook without

distinguishing between natural and hatchery spawners. They

argue from these two undisputed facts that natural spawning

Klamath chinook are not a “category of fish capable of being

managed as a unit” within the meaning of § 1802(37) and are

hence not a “stock of fish.” 

[5] We see nothing in the Magnuson Act to compel this

understanding of the term “stock.” A “category” is “any of

several fundamental and distinct classes to which entities or

concepts belong,” or “a division within a system of classification.” Merriam Webster’s Collegiate Dictionary 180 (10th ed.

1998); see also Aid Ass’n for Lutherans v. USPS, 321 F.3d

1166, 1176 (D.C. Cir. 2003) (considering dictionary definition to determine if agency’s interpretation of a statute is reasonable). There is nothing in the Act to suggest that natural

spawners are not a “division” or “distinct class,” and hence a

“category,” of Klamath chinook. 

OREGON TROLLERS v. GUTIERREZ 7407
[6] The term “stock” is commonly used and generally

understood in fisheries management to allow a distinction

between natural and hatchery spawners. The NMFS routinely

distinguishes between natural and hatchery stocks in other

regulatory contexts. See, e.g., 70 Fed. Reg. 37204, 37208

(June 28, 2005) (adopting hatchery policy under ESA). Similarly, a nonpartisan group of scientists established by Congress to propose hatchery policy differentiates between

“hatchery stock” and “natural stock” on a regular basis. See,

e.g., Hatchery Scientific Review Group, Hatchery Reform:

Principles and Recommendations, at 17 (Apr. 2004); Hatchery Scientific Review Group, Hatchery Reform: Report to

Congress, at 35 (Mar. 2006);2 Hatchery Scientific Review

Group, Hatchery Reform in Washington State: Principles and

Emerging Issues, Fisheries Magazine, June 2005, at 12. 

[7] Nor does the phrase “capable of management as a unit”

preclude a distinction between natural and hatchery spawners.

The NMFS has determined that “the choice of a management

unit” may be decided on a number of different grounds; it

“depends on the focus of the FMP’s objectives, and may be

organized around biological, geographic, economic, technical,

social, or ecological perspectives.” 50 C.F.R. § 600.320(d)(1).

This host of possible bases for choosing a “management unit”

indicates the term’s flexibility. Even assuming that the NMFS

managed natural and hatchery spawners separately, plaintiffs

do not identify anything in the statute or related regulations

that would draw the line for the purposes of defining the

appropriate “unit” at the distinction between natural and

hatchery spawners. 

We also note that although the Magnuson Act does not

expressly distinguish between natural and hatchery spawners,

a closely related statute does. The Trinity River Basin Fish

and Wildlife Management Reauthorization Act of 1996, Pub.

2The Hatchery Scientific Reform Group’s reports are available at http://

www.lltk.org. 

7408 OREGON TROLLERS v. GUTIERREZ
L. No. 104-143, 110 Stat. 1338, a statute that regulates fisheries in one of the Klamath River’s main tributaries, refers to

“naturally reproducing anadromous fish stocks.” Id. § 3, 110

Stat. 1339. The Senate Report on the statute, discussing a

Trinity River hatchery, noted that support for the hatchery

should “not impair[ ] efforts to restore and maintain naturally

reproducing anadramous [sic] fish stocks . . . .” S. Rep. No.

104-253, at 3 (1996). This clear intent to distinguish between

natural and hatchery fish sheds light on Congress’s wishes for

the Magnuson Act. See Jett v. Dallas Indep. Sch. Dist., 491

U.S. 701, 738-39 (1989) (Scalia, J., concurring) (declaring

that it is a “rudimentary principle[ ] of construction” that

“statutes dealing with similar subjects should be interpreted

harmoniously”). 

[8] In short, we see nothing in the Act to prevent the NMFS

from regarding naturally spawning Klamath chinook as a

“stock” of salmon within the meaning of § 1802(37), and to

prevent the agency from adopting protective measures in an

FMP to conserve this “stock.” Even without the assistance of

Chevron deference, we would read the Act in this way. Our

obligation to give Chevron deference to the NMFS’s interpretation of the Act that it is charged to administer removes any

possible doubt. 

Second, plaintiffs rely on a district court decision interpreting the term “species” in the Endangered Species Act

(“ESA”) as a basis for interpreting the term “stock” in the

Magnuson Act. The ESA requires the NMFS to protect “endangered” or “threatened species.” 16 U.S.C. § 1531(b). A

“species” under the ESA includes “any distinct population

segment . . . of any species of . . . fish . . . which interbreeds

when mature.” Id. § 1532(16). In Alsea Valley Alliance v.

Evans, 161 F. Supp. 2d 1154 (D. Or. 2001), the plaintiffs

challenged the NMFS’s decision to list naturally spawning

coho salmon as “threatened.” In making this determination,

the agency ignored hatchery-spawning coho. See 63 Fed. Reg.

42587, 42589 (1998). The district court held that the listing of

OREGON TROLLERS v. GUTIERREZ 7409
naturally spawning coho as “threatened” without regard to

hatchery-spawning coho was arbitrary and capricious. In the

view of the district court, hatchery-spawned coho populations

are part of the same distinct population segment as natural

coho populations, and “[l]isting distinctions below that of . . .

a [distinct population segment] of a species are not

allowed[.]” 161 F. Supp. 2d at 1162. 

We did not review the district court’s decision in Alsea on

the merits. See Alsea Valley Alliance v. Dep’t of Commerce,

358 F.3d 1181 (9th Cir. 2004) (dismissing appeal on jurisdictional grounds). But even if the district court in Alsea was correct in its interpretation of the ESA (which we do not decide),

its decision is not relevant to the question before us. The ESA

and the Magnuson Act use different terminologies. The ESA

refers to “species,” while the Magnuson Act refers to “stock.”

There is nothing in the ESA, or in the district court’s decision

in Alsea, that even remotely suggests that “species” and

“stock” have the same definition.

2. “Best Scientific Information Available”

Fishery management plans and their implementing regulations must be consistent with “national standards” for fishery

management set forth in 16 U.S.C. § 1851(a). A regulation

implementing a FMP will be upheld under § 1851(a) unless

the Secretary has acted in an “arbitrary and capricious manner

promulgating such regulations.” Alliance Against IFQs v.

Brown, 84 F.3d 343, 350 (9th Cir. 1996) (internal quotation

omitted). Stated another way, we will uphold a regulation

against a claim of inconsistency with a “national standard”

under § 1851 if the Secretary had a “rational basis” for it. Id.;

see also Yakutat, Inc. v. Gutierrez, 407 F.3d 1054, 1071 (9th

Cir. 2005). 

[9] National Standard No. 2 requires that “[c]onservation

and management measures shall be based upon the best scientific information available.” 16 U.S.C. § 1851(a)(2). Plaintiffs

7410 OREGON TROLLERS v. GUTIERREZ
argue that there is no scientific basis to support an escapement

goal that counts only natural spawners as relevant for conservation purposes. However, plaintiffs frame their argument

purely in terms of statutory interpretation. They did not introduce any evidence to dispute the scientific basis for the

escapement goal. In effect, plaintiffs would have us construe

National Standard No. 2 to require as a matter of law that all

Klamath chinook must receive the same consideration for

management and conservation. But the statute regulates fisheries, see, e.g., 16 U.S.C. §§ 1801(b)(4), 1851(a)(1), and fisheries include “one or more stocks of fish.” Id. § 1802(37). As

we have just held, a “stock” may reasonably include only natural spawners. 

Even if plaintiffs had attacked the evidentiary basis for the

escapement goal established in the 1989 regulation, the distinction between natural and hatchery spawners would pass

muster on the record before us. “Where scientific and technical expertise is necessarily involved in agency decisionmaking, . . . a reviewing court must be highly deferential to

the judgment of the agency.” Nat’l Wildlife Fed’n v. U.S.

Army Corps of Eng’rs, 384 F.3d 1163, 1174 (9th Cir. 2004).

The relevant administrative record for these purposes is the

record compiled in 1989 to support the FMP amendment that

established the escapement goal. See 50 C.F.R.

§ 600.315(b)(2) (providing that an FMP “must take into

account the best scientific information available at the time of

preparation”). While the NMFS did not file the 1989 record

in this case, the 2005 record contains enough excerpts of that

record to allow us to defer to the agency’s decisionmaking. 

A lengthy analysis conducted in 1986 concluded that the

35,000 natural spawner floor “is needed to protect the production potential of the resource in the event of several consecutive years of adverse environmental conditions.” In 1988, the

Council found that “[a]n evaluation of available information

on the production potential of Klamath River fall chinook

indicates that a minimum escapement goal of 35,000 naturally

OREGON TROLLERS v. GUTIERREZ 7411
spawning adults must be protected in all years in order to prevent extended periods of low juvenile production.” After a

time series modeling test, the Council deemed the 35,000 natural spawner escapement floor “sufficient . . . to protect the

stock and reduce the risk of prolonged depressed production,”

and to “provide a high probability of attaining sufficient

escapement for hatchery production needs.” 

[10] There is no evidence in the record that the Council’s

1986 and 1988 studies are outdated or flawed. Bereft of any

contrary science, plaintiffs’ bare allegation that the agency’s

distinction conflicts with the “best scientific evidence available” fails. See Nw. Envtl. Def. Ctr. v. Brennen, 958 F.2d 930,

936 (9th Cir. 1992) (rejecting a “best scientific information

available” claim because the challenger “has not pointed to

any scientific evidence inconsistent with the Secretary’s decision”); see also Massachusetts v. Daley, 170 F.3d 23, 30 (1st

Cir. 1999) (observing that the challenger may have “forfeited”

its challenge by not proposing any better science). Cf. Midwater Trawlers Coop. v. Dep’t of Commerce, 393 F.3d 994,

1004 (9th Cir. 2004) (affirming regulation based on best scientific evidence available when “no new information” contradicted the agency’s data). 

3. “Managed as a Unit”

[11] National Standard No. 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.” 16 U.S.C.

§ 1851(a)(3). “The purpose of this standard is to induce a

comprehensive approach to fishery management” that is not

jeopardized when fish live in the waters of more than one

jurisdiction. 50 C.F.R. § 600.320(b). As a Senate Committee

Report on the Magnuson Act explained, “unity of management, or at least close cooper[at]ion, is vital to prevent jurisdictional differences from adversely affecting conservation

practices.” S. Commerce Comm. Rep. No. 94-416 (1975),

7412 OREGON TROLLERS v. GUTIERREZ
reprinted in A Legislative History of the Fishery Conservation

and Management Act of 1976, at 685 (1976) (“A Legislative

History”). To further this goal, “[t]he geographic scope of the

fishery, for planning purposes, should cover the entire range

of the stocks(s) of fish, and not be overly constrained by political boundaries.” 50 C.F.R. § 600.320(b). 

[12] The Senate Report used the Klamath salmon to illustrate the problem addressed by National Standard No. 3: 

[A] State-to-State separation of power is not reflective of the migratory habits of fish stocks, but is due

to historic and political factors. As a result, inconsistent regulations have often developed. For example,

the State of Oregon maintains a salmon hatchery

program. Salmon reared in the Oregon program

de[s]cend Oregon rivers and later may be found in

California waters. These same salmon may then be

caught legally under the California fishing regulations, but earlier in the season and at a smaller size

than it would be legal to catch these fish under Oregon’s fishing code. Consequently, management of

fishery resources from the national or regional perspective is important to sound conservation practices. 

A Legislative History at 684. When a stock of fish is managed

in the same manner throughout its geographical range,

National Standard No. 3 is satisfied. See Stinson Canning Co.

v. Mosbacher, 731 F. Supp. 32, 37 (D. Me. 1990) (no violation of National Standard No. 3 when regulation at issue

applies to fish “wherever caught”). 

[13] By defining the Klamath Management Zone to reach

from Humbug Mountain, Oregon, to Horse Mountain, California, the Pacific Plan takes into account the migration pattern of the Klamath chinook from the Klamath River to the

ocean, and their growth to maturity off the coasts of Oregon

OREGON TROLLERS v. GUTIERREZ 7413
and California. Pacific Plan at 6-2. Salmon fisheries throughout this range, off the coasts of both states, are managed in the

same manner to ensure that 35,000 natural spawning Klamath

chinook escape. See Pacific Plan at 3-9 (stating that the Klamath chinook are a “[m]ajor contributor to ocean fisheries from

Humbug Mt., OR to Horse Mt., CA” and should be managed

accordingly). The 2005 management measures are thus

entirely consistent with National Standard No. 3. 

C. Attacks on the 2005 Management Measures

Plaintiffs’ three remaining claims attack the 2005 management measures themselves. Plaintiffs claim (1) that the management measures are inconsistent with the “national

standard” under 16 U.S.C. § 1851(a)(8) requiring that the

“importance of fishery resources to fishing communities” be

taken into account; (2) that they are inconsistent with the “national standard” under 16 U.S.C. § 1851(a)(10) requiring the

NMFS “to the extent practicable” to “promote the safety of

human life at sea;” and (3) that the NMFS improperly invoked

a “good cause” provision of the Administrative Procedure

Act, 5 U.S.C § 553(b)(B), to justify its decision not to open

a public comment period. We take these three claims in turn.

1. “Importance of Fishery Resources to Fishing

Communities”

[14] By its explicit terms, § 1851(a) requires only that

FMPs and their implementing regulations be consistent with

the “national standards.” The 2005 management measures are

“actions,” not “regulations.” For purposes of plaintiffs’ two

claims against the 2005 management measures based on

national standards set forth in § 1851(a), we assume without

deciding that the standards of that section apply to actions

taken under regulations implementing FMPs as well as to the

regulations themselves. 

National Standard No. 8 provides that

7414 OREGON TROLLERS v. GUTIERREZ
Conservation and management measures shall, consistent with the conservation requirements of this

chapter (including the prevention of overfishing and

rebuilding of overfished stocks) take into account the

importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities, and (B) to the extent

practicable, minimize adverse economic impacts on

such communities. 

16 U.S.C. § 1851(a)(8). Plaintiffs claim that the Council inadequately analyzed the economic impact of its 2005 management measures, and that the NMFS inadequately reviewed the

measures for consistency with National Standard No. 8. 

The regulation implementing National Standard No. 8 provides that an economic analysis must “identify affected fishing communities and then assess their differing levels of

dependence and engagement in the fishery being regulated

. . . . The analysis should discuss each alternative’s likely

effect on the sustained participation of these fishing communities in the fishery.” 50 C.F.R. § 600.345(c)(3). In addition,

“[t]he analysis should assess the likely positive and negative

social and economic impacts of the alternative management

measures, over both the short and the long term, on fishing

communities[,]” id. § 600.345(c)(4), as well as “identify those

alternatives that would minimize adverse impacts on those

fishing communities within the constraints of conservation

and management goals of the FMP . . . .” Id. § 600.345(c)(5).

In 2004, the Council and the NMFS considered the socioeconomic impact of that year’s proposed management measures and issued a lengthy report titled an “Environmental

Assessment.” That assessment discussed various alternatives

to measures satisfying the 35,000 natural spawner escapement

floor, addressing their short- and long-term impacts on fishing

communities. In April 2005, the NMFS concluded that, “[f]or

the fisheries to be conducted under the proposed 2005 ocean

OREGON TROLLERS v. GUTIERREZ 7415
salmon regulations[,] the analysis from the 2004 [Environmental Assessment] is sufficient to understand the range of

options developed and the impacts projected . . . for the 2005

season.” The NMFS’s “Supplemental Finding of No Significant Impact” updated the Environmental Assessment’s conclusions for the 2005 management measures and concluded as

follows:

The overall 2005 community income impact of the

commercial fishery is projected to be $33.7 million,

down 28% from the 2004 value of $46.8 million, and

74% below the 1976-1990 average. The overall community income impact of the recreational fishery is

projected to be $394 million, down 16% from the

2004 value of $471 million, and 44% below the

1976-1990 average. Community income impacts

projected for both the commercial and recreational

fisheries off Washington, Oregon, and California,

are well above the disaster levels of the 1994 season.

[15] So long as the agency appropriately updates its analysis under National Standard No. 8, there is no reason why it

must start from scratch every year. Compare N.C. Fisheries

Ass’n, Inc. v. Daley, 16 F. Supp. 2d 647, 654 (E.D. Va. 1997)

(reliance on previous year’s measures without discussion of

National Standard No. 8 is improper when the agency had not

assessed the previous year’s measures for consistency with

the standard). Plaintiffs do not identify data missing from the

2004 and 2005 analyses or explain why the analyses in the

record fall short of what the Magnuson Act requires. See Little Bay Lobster Co. v. Evans, 352 F.3d 462, 470 (1st Cir.

2003). “About the best a court can do” when it reviews the

NMFS’s performance with respect to National Standard No.

8 “is to ask whether the Secretary has examined the impact of,

and alternatives to, the plan he ultimately adopts . . . .” Id. We

conclude the that NMFS did not abuse its discretion when it

relied on a 2004 analysis, updated for 2005, to review the

7416 OREGON TROLLERS v. GUTIERREZ
2005 management measures for consistency with National

Standard No. 8. 

2. “Safety of Human Life at Sea”

[16] National Standard No. 10 provides that

“[c]onservation and management measures shall, to the extent

practicable, promote the safety of human life at sea.” 16

U.S.C. § 1851(a)(10). Plaintiffs contend that, by shortening

the fishing season, the 2005 management measures unnecessarily obliged fishermen to go to sea regardless of the weather

or other dangers. Thus, according to plaintiffs, the management measures did not, “to the extent practicable,” “promote”

human safety. 

[17] The NMFS addressed safety concerns in an April 2005

memorandum commenting on the Council’s recommendations:

The proposed action is expected to be neutral with

respect to health and safety. The proposed regulations are within the range of annual regulations

implemented since adoption of the salmon framework plan in 1984 and meet the considerations for

weather-related safety and harvest opportunity . . . .

Although cursory, this analysis indicates that the NMFS considered National Standard No. 10 and thus discharged its duty

under § 1855(a)(10). As stated by the NMFS memorandum,

the 2005 management measures do fall within the “range” of

measures that have governed fisheries in past years. See, e.g.,

56 Fed. Reg. 21311, 21316 (May 8, 1991) (announcing closure of Klamath Management Zone fishery for all but one

month). The 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.” We conclude that

the NMFS did not act arbitrarily and capriciously when it

OREGON TROLLERS v. GUTIERREZ 7417
assessed the management measures for compliance with

National Standard No. 10. 

3. “Good Cause” to be Excused from Notice and

Comment

[18] Finally, plaintiffs claim the NMFS failed to perform

the economic analysis required by the Regulatory Flexibility

Act (“RFA”), 5 U.S.C. § 601 et seq. When an agency has an

obligation to open a public comment period during the rulemaking process, the RFA requires it to prepare a “regulatory

flexibility analysis.” 5 U.S.C. §§ 603, 604. The “initial regulatory flexibility analysis,” published after announcement of the

proposed rule, must “describe the impact of the proposed rule

on small entities” and discuss “significant alternatives” that

accomplish the regulatory objectives while “minimiz[ing] any

significant economic impact of the proposed rule on small

entities.” 5 U.S.C. §§ 603(a), (c). The “final regulatory flexibility analysis,” published with the final rule, must discuss the

reasons why the agency adopted the alternative it did. Id.

§ 604(a). 

[19] Under the APA, the NMFS must open a public comment period before it adopts annual management measures.

See NRDC, Inc. v. Evans, 316 F.3d 904, 910 (9th Cir. 2003);

see also 50 C.F.R. § 660.411(b). The obligation is excused

“when the agency for good cause finds (and incorporates the

finding and a brief statement of reasons therefor in the rules

issued) that notice and procedure thereon are impracticable,

unnecessary, or contrary to the public interest.” 5 U.S.C.

§ 553(b)(B); see also 50 C.F.R. § 660.411(b). When the

agency validly invokes the “good cause” exception, the RFA

does not apply. See A.M.L. Int’l, Inc. v. Daley, 107 F. Supp.

2d 90, 107 (D. Mass. 2000). Citing irreducible time pressure

to act before the fishing season began, the NMFS invoked the

“good cause” exception when it adopted the 2005 management measures. See 70 Fed. Reg. at 23063. 

7418 OREGON TROLLERS v. GUTIERREZ
We recently addressed the “good cause” exception in

NRDC, Inc. v. Evans, a case similar to this one in several

respects. There, the plaintiffs argued that the NMFS’s failure

to provide a public comment period invalidated annual management measures that implemented a groundfish FMP. 316

F.3d at 907-08. The NMFS did not open a public comment

period and instead invoked the “good cause” exception under

5 U.S.C. § 553(b)(B). It explained that “ ‘[d]elay in implementation of the measures’ ” to allow the public to comment

“ ‘could upset [the] balance’ ” between conservation and harvest exploitation “ ‘and cause harm to some stocks . . . .’ ” Id.

at 908 n.4 (quoting 66 Fed. Reg. 2338, 2371-72 (Jan. 11,

2000)). The NMFS stated that it could not have started the

rulemaking process earlier because “ ‘[m]uch of the data necessary for these specifications and management measures

came from the current fishing year.’ ” Id. The NMFS has

invoked the good cause exception on precisely these grounds

each year for the previous decade. Id. at 911. 

We held that the NMFS had not adequately justified its

decision not to open a public comment period. Following CalAlmond, Inc. v. United States Department of Agriculture, 14

F.3d 429 (9th Cir. 2003), we declared that generic “timeliness

considerations of rulemaking on an annual basis cannot constitute good cause.” NRDC, 316 F.3d at 912 (citing CalAlmond, 14 F.3d at 441-42). The agency must “demonstrate

. . . some exigency apart from generic complexity of data collection and time constraints[,]” and it had not done so. Id. We

took pains to note, however, that we did not need to “determine the precise contours of what constitutes good cause in

this context[,]” and that “we [did] not mean to suggest that

habitual invocation of the good cause exception is itself

improper.” Id. We concluded in NRDC that the “NMFS

should be free in future years to show that compliance is

impracticable under specific circumstances pertinent to the

year at issue.” Id. at 912. 

The district court in this case found that the grounds for the

good cause exception were adequately explained. It distinOREGON TROLLERS v. GUTIERREZ 7419
guished our holding in NRDC on the ground that the NMFS’s

statement “contain[s] a great deal more foundational information, as well as season specific bases, than the very general

statement in NRDC.” 2005 U.S. Dist. LEXIS 34084, at *46.

We agree with the district court. In NRDC, the good cause

statement simply asserted that data-gathering and timeliness

concerns excused a public comment period. Too long to

reproduce in full here, the good cause statement in this case

fills nearly a page in the Federal Register, and it thoroughly

explains why the NMFS could not solicit public comment

before the measures’ effective date. See 70 Fed. Reg. at

23063. The NMFS justified its decision with specific fisheryrelated reasons, not generic complaints about time pressure

and data collection difficulties. It observed that the data on

which the management measures are based “are not available

until January and February because spawning escapement

continues through the fall[.]” The Council does not finish its

process until early April, and the season must begin on May

1. The NMFS thus has only a month to finalize the Council’s

proposals. Id. “Delaying implementation of annual fishing

regulations, which are based on the current stock abundance

projections, for an additional sixty days would require that

fishing regulations for May and June be set in the previous

year without knowledge of current stock status.” Id.

[20] The NMFS also explained why season-specific measures, which cannot be ready until early May, must be in

place by that time: 

[T]he 2005 forecast ocean abundance for Klamath

River fall Chinook requires a reduction in the commercial season length from Humbug Mountain, OR,

to the Oregon-California Border from being open

from May-June 2004 to being closed in 2005. Without these, and similar restrictions in other areas in

2005, the projected Klamath River fall Chinook

escapement floor would not be met. 

7420 OREGON TROLLERS v. GUTIERREZ
70 Fed. Reg. at 23063. Taken together, the NMFS’s explanations set forth the “specific circumstances pertinent to the year

at issue” we found missing in NRDC. See 316 F.3d at 912. 

[21] The fact that the NMFS regularly invokes the good

cause exception for the Pacific Plan salmon management

measures does not render the exception unavailable for 2005.3

So long as the NMFS continues to give season-specific reasons for why the good cause exception is needed, its “habitual

invocation” is not improper. Because the NMFS properly

relied on the “good cause” exception in connection with the

2005 management measures, it did not have an obligation

under the RFA to issue a regulatory flexibility analysis.

Conclusion

[22] The publication of the 2005 management measures in

the Federal Register was an “action” under the Magnuson

Act. It triggered the thirty-day limitations period during which

plaintiffs could challenge both the action and the 1989 regulation implementing the Pacific Plan’s 35,000 natural spawner

escapement floor. The district court therefore erred when it

concluded that plaintiffs’ claims challenging the escapement

floor were time-barred. However, on the merits, we hold that

the district court properly rejected each of plaintiffs’ chal3

See 69 Fed. Reg. 25026, 25035 (May 5, 2004); 68 Fed. Reg. 23913,

23922 (May 6, 2003); 67 Fed. Reg. 30616, 30625 (May 7, 2002); 66 Fed.

Reg. 23185, 23194 (May 8, 2001); 65 Fed. Reg. 26138, 26146 (May 5,

2000); 64 Fed. Reg. 24078, 24089 (May 5, 1999); 63 Fed. Reg. 24973,

24983 (May 6, 1998); 62 Fed. Reg. 24355, 24366 (May 5, 1997); 61 Fed.

Reg. 20175, 20187 (May 6, 1996); 60 Fed. Reg. 21746, 21757 (May 3,

1995); 59 Fed. Reg. 22999, 23011 (May 4, 1994); 58 Fed. Reg. 26922,

26931 (May 6, 1993) (not invoking “good cause” per se but promulgating

“emergency rule” and eschewing notice and comment); 57 Fed. Reg.

19388, 19403 (May 6, 1992); 56 Fed. Reg. 21311, 21318 (May 8, 1991);

55 Fed. Reg. 18894, 18906 (May 7, 1990); 54 Fed. Reg. 19798, 19809

(May 8, 1989); 53 Fed. Reg. 16002, 16012 (May 4, 1988); 52 Fed. Reg.

17264, 17273 (May 6, 1987); 51 Fed. Reg. 16520 (May 5, 1986); 50 Fed.

Reg. 18672 (May 2, 1985). 

OREGON TROLLERS v. GUTIERREZ 7421
lenges to the 1989 regulation and to the 2005 management

measures. 

AFFIRMED. 

7422 OREGON TROLLERS v. GUTIERREZ