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Honorable Marsha J. Pechman

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

TRIDENT SEAFOODS CORPORATION, et al., Plaintiffs, v. JOHN BRYSON, in his official capacity as Secretary Of Commerce, et al., Defendants. ______________________________________________) I. INTRODUCTION AND SUMMARY.

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Case No. 2:12-cv-00134-MJP UNITED CATCHER BOATS MOTION TO INTERVENE Note on Motion Calendar: Friday, May 4, 2012

United Catcher Boats (UCB) moves to intervene as a defendant in this case for two purposes: (1) to respond to plaintiffs claims regarding the effect of the challenged agency action on the relationship between catcher boats and onshore processors in the market for Central Gulf of Alaska rockfish; and (2) to participate as a full party in any proceedings regarding the appropriate remedy should plaintiffs prevail on the merits of their claims. UCB seeks to

intervene under either Fed.R.Civ.P. 24(a)(2) or 24(b). Counsel for plaintiffs has informed us that plaintiffs reserve the right to oppose this motion after careful review of it, while counsel for defendants has informed us that defendants will take no position on this motion.

UCB MOTION TO INTERVENE PAGE 1 (No. 2:12-cv-00134-MJP)

ZIONTZ, CHESTNUT, VARNELL, BERLEY & SLONIM

2101 Fourth Ave, Suite 1230 ~ Seattle, WA 98121

Tel. 206 448 1230; Fax 206 448 0962

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UCB is a membership organization whose members (or their affiliates) own catcher boats that participate in: (1) groundfish trawl fisheries in the Gulf of Alaska, Bering Sea and Aleutian Islands and off of the west coast of Washington, Oregon and California; and (2) crab fisheries in the Eastern Bering Sea. See Declaration of Brent Paine at 1 ( 2). Although some of UCBs members also own onshore processing facilities,1 UCB moves to intervene in this case to protect the interests of its members (and their affiliates) who own independent catcher boats, that is, catcher boats that are not affiliated with onshore processors. See id at 2 ( 2). In this case, plaintiffs, four owners of onshore processing facilities in Kodiak, Alaska,2 challenge a final rule promulgated by defendants to implement Amendment 88 to the Fishery Management Plan for Groundfish of the Gulf of Alaska. See First Amended Complaint (Doc. 14) at 1 ( 1), 5-8 ( 11-14). Amendment 88, the Central Gulf of Alaska Rockfish Program, allocates exclusive harvesting privileges for specified rockfish species harvested near Kodiak, Alaska, to cooperatives comprised of either certain catcher boats (vessels that deliver their catch to onshore processors) or catcher-processors (vessels that process their catch at sea) holding licenses issued under the Central Gulf of Alaska License Limitation Program (LLP). See 76 Fed. Reg. 81428, 81251 (Dec. 27, 2011) (Notice of Adoption of Final Rule). It replaces the Rockfish Pilot Program, which had been in effect since 2007. See id. at 81248. Two the changes made by Amendment 88 were to change the manner in which quota shares are calculated for LLP licensees and to remove the requirement that harvesters in a catcher vessel cooperative deliver their fish to a specific onshore processor. Id. at 81249; see also Paine Decl. at 3 ( 5-6).

For example, plaintiff Trident Seafoods Corporation is a member of UCB by virtue of its ownership of catcher boats that participate in groundfish trawl and crab fisheries, even though Trident is also an owner of on and offshore processing facilities. Plaintiffs are Trident Seafoods Corporation, Westward Seafoods, Inc., North Pacific Seafoods, Inc., and Ocean Beauty Seafoods LLC.
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UCB MOTION TO INTERVENE PAGE 2 (No. 2:12-cv-00134-MJP)

ZIONTZ, CHESTNUT, VARNELL, BERLEY & SLONIM

2101 Fourth Ave, Suite 1230 ~ Seattle, WA 98121

Tel. 206 448 1230; Fax 206 448 0962

www.zcvbs.com

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Plaintiffs allege that defendants (the Secretary of Commerce, the National Oceanic and Atmospheric Administration (NOAA) and the National Marine Fisheries Service) violated the National Environmental Policy Act (NEPA) and the Magnuson-Stevens Fishery Conservation and Management Act (MSA) in promulgating a final rule to implement Amendment 88. See Plaintiffs First Amended Complaint (Doc. 14) at 1 ( 1). In particular, plaintiffs claim that defendants violated NEPA by failing to analyze a reasonable range of alternatives to Amendment 88, failing to prepare an environmental impact statement, and failing to properly examine the effects of the proposed action and its alternatives on the physical, natural and socio-economic environment. Id. at 2 ( 3). In addition, plaintiffs claim defendants violated the MSA because Defendants rationale for not examining a reasonable range of alternatives . . . was based on the incorrect interpretation of the [MSA] that a) on-shore processing is not included in the definition of the terms fishery and fishing, and b) the [MSA] does not authorize continuation of the rockfish management program existing before the adoption of Amendment 88. Id. Plaintiffs claims are specifically focused on defendants alleged failure to consider alternatives to Amendment 88 that would have continued the requirement that catcher boat cooperatives deliver their catch to specific onshore processors. Indeed, in their First Amended Complaint, plaintiffs identify only one specific alternative that they believe defendants should have but did not consider the alternative of extending the Rockfish Pilot Program and then identify only one element of the Rockfish Pilot Program that should have been, but allegedly was not, considered the requirement that harvesters deliver their catch to the same processors to whom they historically delivered. See id. at 13 ( 36). According to plaintiffs, by allowing catcher boats to market their catch to more than one processor, Amendment 88 allocated 100% of the rents (i.e., the difference between total revenues from the fishery and the total costs of the UCB MOTION TO INTERVENE PAGE 3 (No. 2:12-cv-00134-MJP)
ZIONTZ, CHESTNUT, VARNELL, BERLEY & SLONIM
2101 Fourth Ave, Suite 1230 ~ Seattle, WA 98121

Tel. 206 448 1230; Fax 206 448 0962

www.zcvbs.com

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fishery) to vessel owners instead of allowing Plaintiffs to share in those rents. Id. at 3 ( 4). Similarly, plaintiffs claim that the new rockfish management program allocated individual harvesting quota to vessel owners, but allowed these vessels to then deliver their harvest to any processor in Kodiak, thereby granting harvesters an unencumbered monopoly on the sale of a fixed percentage of the available rockfish. Id. at 14 (38). In their prayer for relief, plaintiffs ask the Court to reinstate the Pilot Rockfish Program [including, presumably, its requirement that catcher boats deliver their catch to the processor to whom they historically delivered] pending reconsideration by the [North Pacific Fishery Management] Council and approval by Defendants of a Final Rule that complies with the [MSA], NEPA and the [Administrative Procedures Act]. Id. at 19 ( (e)). In their opposition to the motion to intervene filed by Fishermens Finest, et al., plaintiffs confirm that their claims are focused on, and seek to alter, the relationship between catcher boats and onshore processors in the market for Central Gulf of Alaska rockfish. Plaintiffs provide the following summary of their claims: Plaintiffs ask that Defendants analyze a reasonable range of alternatives regarding the relationship between catcher vessels and onshore processors based on the legal status of onshore processors under the [MSA]. . . . The pre-Amendment 88 rockfish management program, the Rockfish Pilot Program (RPP), required catcher vessels to deliver their harvest to onshore processors to whom they had historically delivered. This and other types of linkages between catcher vessels and onshore processors were not considered in the development of Amendment 88. . . . Linkage options were not considered because Defendants claimed the MSA definitions of fishing and fishery do not include onshore processing. . . . Thus, [t]he heart of the case is whether onshore processing is included in these definitions. . . . Plaintiffs seek relief . . . that would vacate Amendment 88 and remand it to [Defendants] for reconsideration according to the definitions of fishing and fishery . . . . . . . Plaintiffs Opposition to Motion to Intervene of Fishermens Finest, Inc., et al. (Doc. 22) at 3 (emphasis added); see also id. at 4-5 (plaintiffs claims relate solely to the legal status of catcher UCB MOTION TO INTERVENE PAGE 4 (No. 2:12-cv-00134-MJP)
ZIONTZ, CHESTNUT, VARNELL, BERLEY & SLONIM
2101 Fourth Ave, Suite 1230 ~ Seattle, WA 98121

Tel. 206 448 1230; Fax 206 448 0962

www.zcvbs.com

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vessels and onshore processors); 5 (case is about legal status of onshore processors and how fish harvested by catcher vessels are processed). UCB has a direct, legally protectable interest in the resolution of plaintiffs claims. UCB
members own nine of the 46 LLP licenses eligible to participate in the Amendment 88 rockfish program. The nine licenses held by UCB members represent approximately 25 percent of the Amendment 88 programs quota shares for rockfish species. In addition, UCB members owned 13 of the 45 vessels that were active in the last year of the Rockfish Pilot Program (2011).

See Paine Decl. at 4 ( 7). The

relief sought by plaintiffs in this case would directly affect these catcher boats and their relationship with onshore processors. See id. at 4-6 ( 8-11). In addition, many catcher boats owned by UCB members or their affiliates participate in fisheries in which defendants have allocated, or may in the future allocate, exclusive harvesting privileges under the MSA provisions at issue in this case. See id. at 6 ( 12). The resolution of this case will directly affect the relationship of these catcher boats with onshore processors under any such program. Id. UCB seeks to intervene to protect the interests of its independent-catcher-boat members in this case. With one exception, UCB believes that defendants will adequately represent UCBs interests in defending against plaintiffs claims on the merits. Defendants are well equipped to explain to the Court the factors that defendants considered in adopting the Final Rule to implement Amendment 88 (including, contrary to plaintiffs assertions, defendants consideration of linkages between potential harvesters and processors) and to explain defendants interpretation of their legal authority under the MSA (which was not, contrary to plaintiffs assertions, based solely on the definitions of fishing and fishery in the MSA). See generally 76 Fed. Reg. at 81252-53, 81258, 81264-65. However, to the extent plaintiffs claims rest on assertions regarding the effect of Amendment 88 on the relationship between catcher boats and processors in the market for Central Gulf of Alaska rockfish such as plaintiffs ZIONTZ, CHESTNUT, VARNELL, BERLEY & SLONIM UCB MOTION TO INTERVENE PAGE 5 2101 Fourth Ave, Suite 1230 ~ Seattle, WA 98121 (No. 2:12-cv-00134-MJP) Tel. 206 448 1230; Fax 206 448 0962
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exaggerated claims that Amendment 88 will allocate 100% of the rents . . . to vessel owners and grant harvesters an unencumbered monopoly on the sale of a fixed percentage of the available rockfish, Plaintiffs First Amended Complaint (Doc. 14) at 3 ( 4), 14 ( 38) (emphasis added) UCB believes that, as an organization of catcher boats, it is in a unique position to respond to plaintiffs claims in a manner that defendants are not. See, e.g., Paine Decl. at 3 ( 6). Moreover, in the event plaintiffs prevail on the merits of their claims, UCB does not believe defendants can adequately represent UCBs interests in addressing the appropriate remedy for any violations found by the Court. As noted above, plaintiffs seek, among other things, an order reinstat[ing] the Pilot Rockfish Program pending reconsideration of the rockfish program. See Plaintiffs First Amended Complaint (Doc. 14) at 19 ( (e)) (emphasis added). As plaintiffs recognize, this would require catcher boats to deliver all of their catch to the onshore processor to whom they historically delivered their catch, see id. at 13 ( 36), depriving the catcher boats of any ability to market their catch to more than one processor. Because such relief would uniquely and adversely affect independent catcher boats, UCB should be permitted to intervene to represent the interests of its independent-catcher-boat members in any remedial proceedings in this case. II. UCB IS ENTITLED TO INTERVENE AS OF RIGHT. Fishermens Finest et al. correctly set forth the standards for intervention of right under Rule 24(a)(2) in their motion to intervene. See Fishermens Finest et al. Motion to Intervene (Doc. 18) at 5. Briefly, an applicant is entitled to intervene as of right if: (1) its application is timely; (2) it claims a significantly protectable interest relating to the property or transaction which is the subject of the action; (3) it is so situated that the disposition of the action may as a UCB MOTION TO INTERVENE PAGE 6 (No. 2:12-cv-00134-MJP)
ZIONTZ, CHESTNUT, VARNELL, BERLEY & SLONIM
2101 Fourth Ave, Suite 1230 ~ Seattle, WA 98121

Tel. 206 448 1230; Fax 206 448 0962

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practical matter impair or impede its ability to protect that interest; and (4) its interest is inadequately represented by the parties to the action. Id., citing Wilderness Society v. U.S. Forest Service, 630 F.3d 1173, 1177 (9th Cir. 2011) (en banc); Fed.R.Civ.P. 24(a). UCB satisfies each element of this test. First, UCBs motion is timely. Three factors are considered in determining timeliness: (1) the stage of the proceeding; (2) the prejudice to the other parties resulting from any delay; and (3) the reason for and length of any delay. See United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004). UCB is filing its motion at the beginning stage of this litigation. The motion is being filed over one month before the parties own deadline for joining additional parties, and three months before the Courts deadline for plaintiffs to file a motion for summary judgment. See Joint Status Report (Doc. No. 12) at 2 ( 4); Order Setting Briefing Schedule (Doc. No. 13) at 2. The litigation is currently focused on the assembly of the administrative record, a matter in which UCB does not intend to participate. UCB will adhere to the parties and the Courts schedule for this case, and will not cause any delay or prejudice to the parties as a result of the timing of its motion to intervene. UCB has moved promptly since leaning of the filing of this case to consider the case at a meeting of its board of directors, retain counsel, and prepare and file its motion to intervene. See Paine Decl. at 6 ( 13). Under these circumstances, its motion is timely. Second, UCB has a significantly protectable interest in this case. Rule 24(a) does not require a specific legal or equitable interest; rather, it is generally enough that the interest is protectable under some law, and that there is a relationship between the legally protected interest and the claims at issue. Wilderness Society, 630 F.3d at1179, quoting Sierra Club v. EPA, 995 F.2d 1478, 1484 (9th Cir. 1993). As the en banc panel in Wilderness Society emphasized, the UCB MOTION TO INTERVENE PAGE 7 (No. 2:12-cv-00134-MJP)
ZIONTZ, CHESTNUT, VARNELL, BERLEY & SLONIM
2101 Fourth Ave, Suite 1230 ~ Seattle, WA 98121

Tel. 206 448 1230; Fax 206 448 0962

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interest test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process. Id., quoting Neusse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967). UCB is entitled to intervene to protect the interests of its independent-catcher-boat members and their affiliates in this action. See, e.g., Pacific Rivers Council v. U.S. Forest Service, 668 F.3d 609, 618 (9th Cir. 2012) (an organization may sue on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit) (quoting Friends of the Earth, Inc. v. Laidlaw Environmental. Services, 528 U.S. 167, 181 (2000)). The interests of UCBs independent-catcher-boat members and their affiliates in being able to sell their catch to more than one processor are protected by the MSA and Amendment 88, the very laws and regulations at issue in this case. Moreover, as plaintiffs complaint makes clear, any gain in market position plaintiffs achieve in this case will come at the expense of the market position of independent catcher boats. Under these circumstances, UCB clearly satisfies the interest requirement. Third, UCB is so situated that the disposition of this action may as a practical matter impair or impede its ability to protect its interest. Plaintiffs seek to alter the legal framework under which Amendment 88 was developed, so as to reinstate the requirement in the Rockfish Pilot Program that compelled catcher boats to deliver their catch to the processor to whom they historically delivered their catch. As noted above, plaintiffs complaint specifically seeks an order reinstating the Rockfish Pilot Program pending reconsideration of Amendment 88. If plaintiffs are successful in obtaining this relief, the market position of the catcher boats will be

UCB MOTION TO INTERVENE PAGE 8 (No. 2:12-cv-00134-MJP)

ZIONTZ, CHESTNUT, VARNELL, BERLEY & SLONIM

2101 Fourth Ave, Suite 1230 ~ Seattle, WA 98121

Tel. 206 448 1230; Fax 206 448 0962

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eroded. Thus, as a practical matter, the disposition of this action may impair UCBs ability to protect its interests. Finally, UCBs interests are not adequately represented by the existing parties. In

considering this requirement, the Ninth Circuit follows the guidance of the Rule 24 Advisory Committee that, if an [applicant] would be substantially affected in a practical sense by the determination made in an action, he should, as a general rule, be entitled to intervene. Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir.), cert. denied, 540 U.S. 1017 (2003). Accordingly, the burden on an applicant to show inadequate representation is minimal, and is satisfied where it can show representation of its interests may be inadequate. Id. Three factors are relevant to this determination: (1) whether the interests of a present party are such that it will undoubtedly make all of the applicants arguments; (2) whether the present party is capable and willing to make such arguments; and (3) whether an applicant would offer any necessary elements to the proceeding that other parties would neglect. Id. The most important factor is how the interest of the applicant compares with the interests of the existing parties. Id. In this case UCB has unique interests that are not adequately represented by either the defendants or the other applicants for intervention, Fishermens Finest et al. UCBs interests are narrower than those of the defendants, who are charged with administration of the MSA as a whole, and with consideration of a broad range of biological and community interests. In contrast, UCB is narrowly focused on the interests of its independent-catcher-boat members and their affiliates. It likely that UCBs unique interests in and knowledge of the market for Central Gulf of Alaska rockfish will lead it to make arguments that are different than those that will be made by the defendants. This is especially true with respect to the two matters for which UCB UCB MOTION TO INTERVENE PAGE 9 (No. 2:12-cv-00134-MJP)
ZIONTZ, CHESTNUT, VARNELL, BERLEY & SLONIM
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Tel. 206 448 1230; Fax 206 448 0962

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seeks intervention: (1) to respond to plaintiffs claims regarding the effect of Amendment 88 on the market for Central Gulf of Alaska rockfish; and (2) to participate fully in any proceedings regarding the appropriate remedy should plaintiffs prevail on the merits of their claims. UCBs interests are also fundamentally different than those of Fishermens Finest et al., who participate in the catcher-processor segment of the fishery. Fishermens Finest et al. do not participate in the catcher-boat sector of the fishery, and have no interest in protecting the market position of independent catcher boats. UCB recognizes that where an applicant for intervention and an existing party have the same ultimate objective, a presumption of adequacy of representation exists. Arakaki, 324 F.3d at 1086. Similarly, there is an assumption of adequate representation when the government is acting on behalf of a constituency that it represents. Id. However, these presumptions are not controlling where the applicants interests are narrower than that of the government and therefore may not be adequately represented. Id. at 1087-88, citing Southwest Center for Biological Diversity v. Berg, 268 F.3d 810, 823 (9th Cir. 2001) (Citys range of considerations in development is broader than the profit-motive animating intervening developers); Californians for Safe Dump Truck Transp. v. Mendonca, 152 F.3d 1184, 1190 (9th Cir. 1998), cert. denied, 526 U.S. 1060 (1999) (intervenors interests were potentially more narrow and parochial than interests of public at large); Forest Conservation Council v. U.S. Forest Service, 66 F.3d 1489, 1499 (9th Cir. 1995) (Forest Service is required to represent a broader view than the more narrow, parochial interests of the state and local intervenors). In Southwest Center for Biological Diversity, 268 F.3d at 824, the District Court denied intervention on the grounds that the applicants had not identified any argument they would make

UCB MOTION TO INTERVENE PAGE 10 (No. 2:12-cv-00134-MJP)

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that an existing party to the case was either incapable or unwilling to make. The Ninth Circuit reversed. It reasoned: [I]t is not Applicants burden at this stage in the litigation to anticipate specific differences in trial strategy. It is sufficient for Applicants to show that, because of the difference in interests, it is likely that Defendants will not advance the same arguments as Applicants. Resolution of this case will decidedly affect Applicants legally protectable interests and there is sufficient doubt about the adequacy of representation to warrant intervention. Trbovich [v. United Mine Workers], 404 U.S. [528,] 538 [(1972)]. Id. So here: given UCBs unique interests in this case, it is likely that neither the defendants nor Fishermens Finest et al. will advance the same arguments as UCB. Resolution of this case will directly affect the UCBs interests and there is sufficient doubt about the adequacy of representation to warrant intervention. Accordingly, UCB should be granted intervention as of right under Rule 24(a)(2). III. UCB SHOULD BE PERMITTED TO INTERVENE PERMISSIVELY. In the alternative, UCB should be permitted to intervene permissively. Under Rule 24(b), [a]n applicant who seeks permissive intervention must prove that it meets three threshold requirements: (1) it shares a common question of law or fact with the main action; (2) its motion is timely; and (3) the court has an independent basis for jurisdiction over the applicants claims. Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998). UCB satisfies each of these threshold requirements. First, because UCB seeks to present defenses to plaintiffs claims in this case including a response to plaintiffs claims regarding the effect of Amendment 88 on the market for Central Gulf of Alaska rockfish and to plaintiffs requested relief it shares a common question of law or fact with the main action. Second, as discussed above, UCB has submitted a timely application. Third, the Courts jurisdiction over

UCB MOTION TO INTERVENE PAGE 11 (No. 2:12-cv-00134-MJP)

ZIONTZ, CHESTNUT, VARNELL, BERLEY & SLONIM

2101 Fourth Ave, Suite 1230 ~ Seattle, WA 98121

Tel. 206 448 1230; Fax 206 448 0962

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the present case including UCBs defenses is based on the federal question raised by the plaintiffs complaint. Once these threshold requirements are satisfied, Rule 24(b) directs the Court to exercise its discretion whether to grant intervention, giving consideration to whether intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Because UCB is filing its motion to intervene and proposed answer well before the parties own deadline to add additional parties and well before the deadline for plaintiffs to file a motion for summary judgment, there is no reason to expect that UCBs intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Accordingly, the Court should exercise its discretion to allow UCB to intervene since the interests of UCBs independent-catcher-boat members and their affiliates are directly targeted in this case. IV. CONCLUSION. The Court should grant UCBs motion to intervene as a defendant in this case for two purposes: (1) to respond to plaintiffs claims regarding the effect of Amendment 88 on the relationship between catcher boats and onshore processors in the market for Central Gulf of Alaska rockfish; and (2) to participate as a full party in any proceedings regarding the appropriate remedy should plaintiffs prevail on the merits of their claims. Dated: April 19, 2012 Respectfully submitted, ZIONTZ, CHESTNUT, VARNELL, BERLEY & SLONIM s/ Marc D. Slonim Marc D. Slonim WSBA No. 11181 mslonim@zcvbs.com UCB MOTION TO INTERVENE PAGE 12 (No. 2:12-cv-00134-MJP)
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2101 Fourth Ave., Suite 1230 Seattle, WA 98121 Telephone: 206 448 1230 Telefax: 206 448 0962 Attorneys for United Catcher Boats

UCB MOTION TO INTERVENE PAGE 13 (No. 2:12-cv-00134-MJP)

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CERTIFICATE OF SERVICE I, Chris Kelsey, hereby certify that I am over the age of eighteen, employed by Ziontz, Chestnut, Varnell, Berley & Slonim, and not a party to this action. On April 19, 2012, I caused to be filed the foregoing United Catcher Boats Motion to Intervene by using the Western Districts ECF system, which will send notification to all parties of record. Dated: April 19, 2012.

s/ Chris Kelsey Chris Kelsey

UCB MOTION TO INTERVENE PAGE 14 (No. 2:12-cv-00134-MJP)

ZIONTZ, CHESTNUT, VARNELL, BERLEY & SLONIM

2101 Fourth Ave, Suite 1230 ~ Seattle, WA 98121

Tel. 206 448 1230; Fax 206 448 0962

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