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Document Type

Case Note

Abstract

In March 2002, the United States Court of Appeals for the Ninth Circuit ruled in Midwater Trawlers Co-operative v. Department of Commerce that the National Marine Fisheries Service's (NMFS) promulgation of a regulation allocating the Makah tribe a portion of the optimum yield (oy) of the Pacific whiting fish was arbitrary and capricious pursuant to the Administrative Procedure Act. The court held that NMFS' action was not in compliance with the Magnuson-Steven's Fishery Conservation and Management Act ("Magnuson-Stevens Act" or "the Act") in that its decision was the result of political compromise and not based on the best available scientific information as required by the Act. The court remanded this issue to NMFS for review in compliance with its decision. This Note examines the dichotomy between the political nature of treaty law and the scientific requirements of the Magnuson-Stevens Act and advocates that the court's opinion in Midwater overlooked the essential nature of political compromise in the fulfillment of Native American treaties with the United States. While the Ninth Circuit Court of Appeals' ruling that the absence of scientific information justifying NMFS' regulation was cause for reversal, the court nevertheless failed to recognize the importance of political compromise in this regulatory process. Despite the court's failure to encourage NMFS to promulgate regulations utilizing scientific information in concert with political compromise in order to ensure continued compliance with applicable law, the agency's re-promulgation action must be based on a balancing of scientific information and the political negotiation already achieved with the Makah.

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