1 2 3 4 5 6 7 8 9 10 11 12 Plaintiffs, 13 vs. 14 15 16 Defendants.

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MOTION TO INTERVENE - Page 1

The Honorable Marsha J. Pechman

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE TRIDENT SEAFOODS CORPORATION, et al.,

Case No. 2:12-cv-00134-MJP MOTION TO INTERVENE OF FISHERMEN’S FINEST, INC., NORTH PACIFIC FISHING, INC. AND U.S. FISHING, L.L.C. NOTE ON MOTION CALENDAR: APRIL 6, 2012

THE HONORABLE JOHN E. BRYSON, in his official capacity as Secretary of Commerce, et al.,

Pursuant to Federal Rule of Civil Procedure 24(a), Fishermen’s Finest, Inc., North Pacific Fishing, Inc., and U.S. Fishing, L.L.C. (collectively, “FFI”) move to intervene as of right as defendants. In the alternative, FFI moves to intervene permissively pursuant to Rule 24(b). The relief sought by Plaintiffs in this case, if granted in whole or in part, would have direct and adverse impacts on FFI, which for over the last twenty five years has fished for Gulf of Alaska rockfish. Plaintiffs’ contention that on-shore processors are entitled to limited entry program privileges under the general authority of the Magnuson Stevens Fishery Management

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and Conservation Act (“MSA”) would be an unprecedented change in the management of this fishery, and the remedy requested by Plaintiffs, if granted, would destabilize the fishery and result in direct losses to the actual harvesters participating in the fishery such as FFI. NMFS does not and cannot adequately represent FFI in this action. Under the MSA, NMFS must balance all of the competing interests in the fishery as well as environmental, scientific, and conservation goals. NMFS does not have the singular focus that FFI has with respect to its participation in the fishery. Further, FFI, as a member of at-sea cooperatives and as the day-to-day operator of its catcher-processor vessels, has technical knowledge and expertise related to this complex fishery that will assist the Court in this proceeding. In sum, on a practical and legal basis, FFI’s ability to protect its interests in this action will be impaired unless it is granted intervention. Counsel for FFI has conferred with counsel for Plaintiffs and Defendants. Defendants take no position on this motion. Plaintiffs take no position on this motion at this time, but reserve their right to oppose the motion after reviewing it. FFI’s proposed answer to the First Amended Complaint and a proposed order are filed concurrently with this motion. BACKGROUND FFI operates two fishing vessels, F/V American No. 1 and F/V U.S. Intrepid, which harvest rockfish in the federal Gulf of Alaska (“GOA”) fishery management area, and other groundfish species in the federal Bering Sea/Aleutian Islands (“BSAI”) fishery management area. North Pacific Fishing, Inc. owns F/V American No. 1; U.S. Fishing, L.L.C. owns F/V U.S. Intrepid. Declaration of Helena Park (“Park Decl.”) ¶ 2. F/V American No. 1 was the first groundfish catcher processor built in the Pacific Northwest, in 1979. Id. ¶ 3. FFI is a long-time participant in the GOA rockfish fishery and has made significant investments in harvesting, processing, and developing markets, both foreign and domestic, for rockfish. FFI

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has targeted rockfish continuously in the GOA since 1986 through the present, and FFI was the second highest quota share holder of the Rockfish Pilot Program (“RPP”) catcher processors. Id. ¶ 4. FFI’s harvesting and processing activities take place solely on its vessels at sea. Id. ¶ 6. FFI has taken a consistent interest in the development of limited entry programs for the GOA rockfish fishery, and has modified its operations and made investments in reliance upon those programs. Id. ¶ 4. FFI has maintained a consistent presence in the GOA rockfish

fishery, thereby foregoing opportunities to fish and establish catch history in other GOA and BSAI groundfish fisheries. Id. FFI took an active role in the development of the RPP and Amendment 88 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (“Amendment 88”), including providing oral and written testimony to the North Pacific Fishery Management Council (the “Council”) and commenting on the proposed rule implementing the amendment. Id. ¶ 5. FFI fished for rockfish through cooperatives, first as an RPP participant, and now as a holder quota share pursuant to Amendment 88. Under Amendment 88, FFI’s catcher-processor (“CP”) quota share of rockfish increased from 30.35% to 39.37%. Id. ¶ 7. FFI now holds the second largest amount of rockfish CP quota shares, as it did under the RPP, and over 15% of total rockfish quota shares. The value of each percentage point of rockfish fishery quota share is well over $100,000. If plaintiffs are granted the relief they seek in this case, FFI will be directly and immediately harmed by the loss of its approximately 9% increase in quota share, as well as the accompanying uncertainty and loss of stability in the GOA rockfish fishery. Id. Further, the legal issues in this case concerning the scope of NMFS’ authority to develop limited entry and quota share programs pursuant to the MSA have the potential to directly impact FFI in all of the fisheries in which it participates, not just the GOA rockfish fishery. Plaintiffs assert in the First Amended Complaint that the final rule implementing

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Amendment 88 is unlawful because NMFS failed to analyze a reasonable range of alternatives to Amendment 88 as required by NEPA, failed to prepare an environmental impact statement, and failed to perform proper analyses in the environmental assessment that was prepared. Dkt. 14 ¶ 3. The heart of the case, however, is Plaintiffs’ contention that NMFS incorrectly interpreted the MSA by finding that “a) on-shore processing is not included in the definition of the terms ‘fishery’ and ‘fishing,’ and b) the Magnuson-Stevens Act does not authorize continuation of the rockfish management program existing before the adoption of Amendment 88.” Id.; see also Dkt. 12 ¶ 1 (“Plaintiffs seafood processors challenge [Amendment 88], alleging that Defendants’ interpretation of the terms ‘fishery’ and ‘fishing’ as used in Amendment 88 is contrary to the [MSA] rendering Defendants’ approval of Amendment 88 arbitrary, capricious and not in accordance with law.”). Plaintiffs seek a novel interpretation of the MSA that would upend the rationalization process for many fisheries in the North Pacific, including the unrationalized GOA flatfish fisheries in which FFI participates. Park Decl. ¶ 9. Moreover, Plaintiffs seek relief from the Court that, if granted, would vacate Amendment 88 and remand it to NMFS for reconsideration according to definitions of “fishing” and “fishery” that would entitle Plaintiffs to participation rights in the rockfish and other fisheries to which they have previously not been eligible absent a specific act of Congress such as the authorizing legislation for the now-expired RPP. Thus, this action has the potential to significantly change the regulatory conditions under which FFI has participated in the North Pacific groundfish fisheries for over twenty five years. The relief requested by the Plaintiffs, if granted, would directly and adversely impact both the limited entry rights and operations of FFI in the GOA rockfish fishery by reducing FFI’s rockfish quota share and potentially reinstating a “race for fish,” as well as by making the terms of FFI’s longstanding federal permitting and license rights in other North Pacific groundfish fisheries uncertain and unpredictable.

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MOTION TO INTERVENE - Page 5

ARGUMENT I. FFI is entitled to intervene as a matter of right.

FFI satisfies the four-part test for intervention as of right under Rule 24(a). Under this test: (1) the motion to intervene must be timely; (2) the applicant must claim a “significantly protectable” interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant’s interest must be inadequately represented by the parties to the action. Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011) (quoting Sierra Club v. U.S. Envtl. Prot. Agency, 995 F.2d 1478, 1481 (9th Cir. 1993)); see also Fed. R. Civ. P. 24(a). The test is applied “liberally in favor of potential intervenors,” and a court’s analysis “is guided primarily by practical considerations, not technical distinctions.” Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 818 (9th Cir. 2001) (citations and quotations omitted). When ruling on a motion to intervene, “[c]ourts are to take all well-pleaded, nonconclusory allegations in the motion to intervene, the proposed complaint or answer in intervention, and declarations supporting the motion as true . . . .” Id. at 820. FFI meets each of the elements for intervention as of right. A. FFI’s motion for intervention is timely.

To assess timeliness, courts look to (1) the stage of litigation, (2) the prejudice to other parties, and (3) the reason for and length of any delay. San Jose Mercury News, Inc. v. U.S. Dist. Court—N. Dist. (San Jose), 187 F.3d 1096, 1100-01 (9th Cir. 1999) (citation omitted). The present case is in its very early stages. FFI files this motion less than a week after the Defendants filed the administrative record with the Court and the Plaintiffs filed their First Amended Complaint. See Dkts 14, 15. Defendants filed their answer yesterday. Dkt. 17. This case will be resolved upon summary judgment, and the Court has entered a scheduling order requiring Plaintiffs to file their motion for summary judgment on July 20,

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2012 with the Defendants’ response and cross-motion due on August 24, 2012. There has been no delay or prejudice to opposing parties. The motion is therefore timely. See, e.g., PEST Comm. v. Miller, 648 F. Supp. 2d 1202, 1212 (D. Nev. 2009) (timely when filed during an early stage of the proceedings, there, two months after filing of answer). B. FFI has significant legally protectable interests in the subject of this litigation. The second prong of the intervention test, the “protectable interest” requirement, is also satisfied. Rule 24(a) requires that an applicant for intervention possess an interest relating to the property or transaction that is the subject matter of the litigation. Here, those interests include FFI’s long-term investments in the GOA rockfish fishery, its ability to exercise its existing harvest privileges in the fishery, and its interests in sustainable, safe, and stable North Pacific fisheries. Rule 24(a) does not pose a stringent test: [W]hether an applicant for intervention demonstrates sufficient interest in an action is a practical, threshold inquiry. No specific legal or equitable interest need be established. It is generally enough that the interest asserted is protectable under some law, and that there is a relationship between the legally protected interest and the claims at issue. Sw. Ctr. for Biological Diversity, 268 F.3d at 818 (internal quotations, citation and brackets omitted); see also Wilderness Soc’y, 630 F.3d at 1176 (“[T]he operative inquiry should be . . . whether the ‘interest is protectable under some law,’ and whether ‘there is a relationship between the legally protected interest and the claims at issue.’”) (quoting Sierra Club, 995 F.2d at 1484). “[T]he interest test directs courts to make a practical, threshold inquiry, and is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.” United States v. City of Los Angeles, Cal., 288 F.3d 391, 398 (9th Cir. 2002) (internal quotations and citations omitted).

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1

FFI’s protectable interests here are concrete “contractual or other legally protectable rights.” Portland Audubon Soc’y v. Hodel, 866 F.2d 302, 309 (9th Cir. 1989), abrogated on other grounds by Wilderness Soc’y, 630 F.3d 1173 (internal quotation omitted). FFI’s limited entry privileges and its allocation of quota share are directly tied to and intertwined with the validity of Amendment 88. See id.; Sierra Club, 995 F.2d at 1482 (interests and rights stemming from existing permits sufficient to support intervention). The MSA provides only for judicial review of the final rule implementing Amendment 88, not the resulting quota distributions. See 16 U.S.C. § 1855(f)(1). The process used to develop Amendment 88 and the allocations of rockfish that resulted from implementation of the rule are inextricably intertwined, giving FFI an interest in the Court’s review of the NEPA process for Amendment 88. An adverse ruling as to the validity of Amendment 88 will adversely affect the distribution of quota share for GOA rockfish and the ability of FFI to exercise its long-standing fishing licenses. If the Court determines that Amendment 88 is invalid and grants the

Plaintiffs’ request to vacate the final rule implementing Amendment 88 and “reinstate the Pilot Rockfish Program pending reconsideration by the Council and approval by Defendants of a [new] Final Rule,” then FFI will lose its increased quota share under Amendment 88 and its investment in the GOA rockfish fishery will be put in jeopardy. Dkt. 14 at 19, ¶ e. This outcome would have a substantial immediate negative financial impact on FFI, as well as creating uncertainty as to the future conduct of the fishery, including the potential for a return to an open access fishery with accompanying adverse safety and environmental impacts.1 It also would have potential regulatory implications for the other groundfish fisheries in which

Prior to the RPP, the GOA rockfish fishery was an open access fishery. Although Plaintiffs’ request for relief includes a reinstatement of the RPP, Plaintiffs also admit that the authorizing legislation for the RPP expired at the end of 2011. Dkt. 14 ¶34. Thus, although FFI opposes vacatur of Amendment 88 as a remedy in this case, if the RPP is no longer authorized, a return to an open access fishery would be one potential outcome (albeit one that FFI would oppose).

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FFI participates. FFI has direct legally protectable interests (its Amendment 88 quota share, limited entry licenses, and investments) in the subject matter of this litigation. See Wilderness Soc’y, 630 F.3d at 1176 (“[T]he operative inquiry should be . . . whether the ‘interest is protectable under some law,’ and whether ‘there is a relationship between the legally protected interest and the claims at issue.’”) (quoting Sierra Club, 995 F.2d at 1484). C. An adverse decision would impair FFI’s interests.

Rule 24(a) requires that an applicant for intervention as a matter of right be “so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest.” Fed. R. Civ. P. 24(a). Rule 24(a) does not require that the intervenors’ interests would be legally impaired; it is enough that the applicant’s ability to protect its interests may be impaired as a practical matter. See Wilderness Soc’y, 630 F.3d at 1179-80; United States v. Oregon, 839 F.2d 635, 638 (9th Cir. 1988). FFI’s interests would be directly, immediately, and substantially impaired by an adverse decision in this case. FFI is a long time as well as current participant in the fishery impacted by Amendment 88. If the Court were to grant Plaintiffs’ requested relief, FFI’s enjoyment of the benefits of the quota share program established by Amendment 88 and a stable, rationalized fishery would be prevented. These adverse impacts would at the very least constitute a “practical impairment” of FFI’s federal authorization to fish for a particular amount of fish in the GOA rockfish fishery. See Wilderness Soc’y, 630 F.3d at 1179-80. D. FFI’s interests may not be adequately represented by NMFS.

FFI satisfies the final element for intervention because NMFS does not speak only on behalf of the sector of the fishery in which FFI participates and instead must balance a number of competing economic, environmental, scientific, and conservation interests in its management of the GOA rockfish fishery. In contrast, FFI’s interests are limited to those of the offshore catcher/processor sector, a viewpoint that is not provided by any of the existing parties to the

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action. This perspective would further the Court’s resolution of issues that necessarily turn on the complex factors that must be weighed by the Council and NMFS in developing limited entry programs, particularly programs that depend upon the operations of cooperatives for their implementation. See Park Decl. ¶¶ 5-8; Dkt. 14 ¶¶ 32, 38. To assess whether a proposed intervenor will be adequately represented by the existing parties, courts consider: (1) whether a present party will undoubtedly make all of the intervenor’s arguments; (2) whether a present party is capable of and willing to make such arguments; and (3) whether the intervenor offers a necessary element to the proceedings that would be neglected. Prete v. Bradbury, 438 F.3d 949, 956 (9th Cir. 2006) (citing Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 528 (9th Cir. 1983)). Here, FFI does not have any business relationships with on-shore processors, but does have extensive experience fishing in cooperatives in North Pacific groundfish fisheries. Park Decl. ¶¶ 4-6. Further, FFI participates in the offshore catcher-processor sector which

collectively holds approximately 40% of the total rockfish quota shares. The burden of showing inadequacy of representation is minimal and is satisfied if the applicant shows that “representation of its interests may be inadequate.” Prete, 438 F.3d at 956 (internal quotations omitted; emphasis added) (citing Sagebrush, 713 F.2d at 528); see Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972) (inadequate representation requirement “is satisfied if the applicant shows that representation of his interest ‘may be’ in adequate”) (citation omitted). The overall question is how the proposed

intervenor’s “‘interest compares with the interests of existing parties,’” and courts ensure that the two parties’ interests are not identical. Prete, 438 F.3d at 956 (quoting Arakaki v.

Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003)). Because the Plaintiffs’ interests are directly adverse to those of FFI, the motion to intervene should be granted “unless it is clear that [the government] will provide adequate representation.” Chiles v. Thornburgh, 865 F.2d 1197, 1214 (11th Cir. 1989) (internal quotations omitted).

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The duties of NMFS and FFI are not identical here. Where the government has “the duty to serve two distinct interests, which are related, but not identical,” an intervenor’s possession of only one of the interests provides sufficient differentiation to support intervention. Trbovich, 404 U.S. at 538-39. Although NMFS and FFI share an interest in the management of the GOA rockfish fishery, NMFS has an obligation to consider and serve a broader range of interests and constituents in this process than FFI. Under the MSA, NMFS and the Council are required to manage fisheries in accordance with ten National Standards set out in the MSA and as “necessary and appropriate for the conservation and management of the fishery . . . .” 16 U.S.C. § 1853(a)(1)(A), -(a)(1)(C); 50 C.F.R. §§ 600.305-600.355. An allocation of fishing privileges to fishermen must be “fair and equitable to all . . . fishermen” and “carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges.” § 1851(a)(4)(A), -(a)(4)(C); 50 C.F.R. § 600.325(a). 16 U.S.C.

Because NMFS must take into

consideration the interests of the national public, from an economic and environmental perspective, as well as balance the equities among fishermen, FFI cannot rely on NMFS to place sufficient emphasis on its needs and interests. “Even where the would-be intervener has the same ‘ultimate objective’ as some of the parties, intervention may still be appropriate if its interests might diverge from those of the existing parties.” S. Yuba River Citizens League and Friends of the River v. Nat’l Marine Fisheries Serv., No. 06-2845, 2007 WL 3034887, *14 (E.D. Cal. Oct. 16, 2007) (quoting Sw. Ctr. for Biological Diversity, 268 F.3d at 823-24). See also Georgia v. U.S. Army Corps of Eng’rs, 302 F.3d 1242, 1259 (11th Cir. 2002) (reversing district court’s denial of a motion to intervene and stating “[w]e do not believe that a federal defendant with a primary interest in the management of a resource has interests identical to those of an entity with economic interests in the use of that resource.”).

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Given the nature of Plaintiffs’ requested relief in this action, and the inherent divergence between the interests of FFI and NMFS, FFI requests the opportunity to ensure that its interests will be represented. See Prete, 438 F.3d at 956 (burden is satisfied if the applicant shows that representation of its interests may be inadequate) (citing Sagebrush, 713 F.2d at 528). II. IN THE ALTERNATIVE, FFI SHOULD BE PERMITTED TO INTERVENE PERMISSIVELY Rule 24(b) of the Federal Rules of Civil Procedure allows permissive intervention where an applicant’s claim or defense, in addition to being timely, possesses questions of law or fact in common with the existing action. See also Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1110-11 (9th Cir. 2002), abrogated on other grounds by Wilderness Soc’y, 630 F.3d 1173. Once that threshold is passed, the Ninth Circuit has recognized that permissive

intervention should be granted where it will not unduly delay or prejudice the adjudication of an existing party’s rights, where the movant’s interest is not adequately represented by an existing party, and where judicial economy will benefit from the intervention. Venegas v. Skaggs, 867 F.2d 527, 530-31 (9th Cir. 1989), aff’d sub nom., Venegas v. Mitchell, 495 U.S. 82 (1990); see also Kootenai Tribe, 313 F.3d at 1111 (affirming grant of permissive intervention in part because, in complex case, “presence of intervenors would assist the court”). The threshold legal requirements for permissive intervention are clearly met here. As noted above, this motion is timely and allowing FFI to intervene will not delay the litigation: FFI seeks to intervene as a defendant, is not bringing new claims, and would not delay the litigation, alter the factual background around which the claims revolve, or prejudice any party’s ability to defend its rights. See supra pp. 5-6. Further, questions of law or fact are shared with the main parties: FFI seeks to intervene to address the legal questions raised by

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Plaintiffs, and FFI’s intervention will revolve around the same factual background and administrative record related to the appropriate use of finite fisheries resources. The Court should grant permissive intervention because the considerations guiding the Court’s exercise of its discretion weigh in favor of intervention. As demonstrated above, FFI’s interests are distinct from that of, and not adequately represented by, NMFS. See supra pp. 811. Instead, FFI will bring an important and distinct perspective to a complicated case—a perspective that will assist the Court’s resolution of the matter. FFI will represent interests in this litigation that may not otherwise be represented, and its participation will contribute to the equitable resolution of this conflict. Accordingly, FFI requests permissive intervention. CONCLUSION For the reasons described above, FFI respectfully requests that the Court grant its motion to intervene as defendants as a matter of right pursuant to Rule 24(a), or, in the alternative, permissively pursuant to Rule 24(b). DATED this 22nd of March, 2012.

/s/ Linda R. Larson Linda R. Larson WSBA No. 9171 llarson@martenlaw.com Jessica K. Ferrell WSBA No. 36917 jferrell@martenlaw.com Marten Law PLLC 1191 Second Avenue, Suite 2200 Seattle, WA 98101-3421 Telephone: (206) 292-2600 Facsimile: (206) 292-2601 Attorneys for Intervenor-Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on the 22nd of March, 2012, I electronically filed the document to which this Certificate of Service is attached with the Clerk of the Court using the CM/ECF

4 System which will send notification of such filing to the following: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
MOTION TO INTERVENE - Page 13 Marten Law PLLC 1191 Second Avenue, Suite 2200 Seattle, WA 98101 206-292-2600

Geoffrey P. Knudsen Smith & Hennessey 316 Occidental Ave S., Suite 500 Seattle, WA 98104 gknudsen@smithhennessey.com George J. Mannina, Jr. Nossaman LLP 1666 K St. NW, Suite 500 Washington, DC 20006 gmannina@nossaman.com James Alexander Smith, Jr. Smith & Hennessey 316 Occidental Ave. S., Suite 500 Seattle, WA 98104 jas@smithhennessey.com

Brian C. Kipnis US Attorney’s Office 700 Stewart St., Suite 5220 Seattle, WA 98101 Brian.kipnis@usdoj.gov Ethan Carson Eddy U.S. Department of Justice Wildlife and Marine Resources Section 601 “D” St NW Washington, DC 20004 Ethan.eddy@usdoj.gov

DATED this 22nd day of March, 2012. /s/ Linda R. Larson Linda R. Larson, WSBA No. 9171

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