Ninth Circuit Upholds Federal Fishery Fees

(CN) - The National Marine Fisheries Service can require fish processors to make contributions to a fisheries management plan but the amount should be recalculated, the Ninth Circuit ruled.

The Fisheries Service, also called NMFS, developed the cost recovery program under the Magnuson-Stevens Fishery Conservation and Management Act. Catcher-processor co-ops are assessed a tonnage fee that is used by the service for management, scientific research and public education.

In 2014, Glacier Fish Company challenged the fees in Federal Court, claiming the Fisheries Service is only authorized to collect the fees from "limited access privilege holders."

Glacier argued that a co-op permit is not a limited access privilege and it is not the holder of the permit. The company also disputed the NMFS cost accounting methods for the fees.

On Wednesday, a three-judge panel of the Ninth Circuit upheld the lower court's decision approving the fees and accounting methodology, but ruled the calculations for the 2014 fees should be revisited.

The panel found that the NMFS "could reasonably determine the co-op permit to be a limited access privilege," according to the majority opinion written by Judge Sandra Ikuta.

The Ninth Circuit also rejected Glacier's argument that even if a co-op permit is limited access privilege, fees can only be collected from the permit holder.

"Because the catcher-processor co-op permit is a limited access privilege, and Glacier can reasonably be said to be a 'holder' of that permit, NMFS had the authority to collect a fee from the individual members of the coop, including Glacier," Ikuta wrote. "The district court therefore did not err in granting summary judgment to NMFS on this issue."

However, Glacier won its challenge to how the 21014 fees were calculated. The panel agreed the NMFS did not use "reasonable methods" to determine additional costs related to a new trawl rationalization program.

The Ninth Circuit remanded the case back to the Fisheries Service for new calculations of the 2014 fees.

Judge Derrick Watson concurred in part, saying Glacier waived its argument about the viability of fees collected from co-op members. Watson said the court should not have considered the claim.

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