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C & W Fish Co. v. Fox - 289 U.S. App. D.C. 323, 931 F.2d 1556 (D.C. Cir. 1991)


The Magnuson Act, 16 U.S.C.S. § 1802(18), defines "optimum yield" as: The amount of fish (A) which will provide the greatest overall benefit to the Nation, with particular reference to food production and recreational opportunities; and (B) which is prescribed as such on the basis of the maximum sustainable yield from such fishery, as modified by any relevant economic, social, or ecological factor. Significantly, optimum yield is not defined by the "maximum sustainable yield" but instead by the maximum yield less whatever amount need be conserved for economic, social or ecological reasons. Stated differently, a Fishery Management Plan can comply with if there are social, economic or ecological factors that justify the pursuit of a yield less than the maximum sustainable yield.


On April 13, 1990, the Department of Commerce, National Oceanic and Atmospheric Administration (NOAA), issued a final rule which, in part, banned the use of drift gillnets in the Atlantic King Mackerel Fishery. Plaintiffs C & W Fish Company, Inc., and others involved in the fishing industry, filed a lawsuit in federal district court against defendants William W. Fox, Jr., the Assistant Administrator for Fisheries, NOAA and others, challenging the final rule on several grounds, including its allegedly ultra vires promulgation. The district court rejected plaintiffs' challenges and granted defendants summary judgment. Plaintiffs appealed.


Was the ban promulgated by Fox on gillnet fishing proper?




The court of appeals affirmed the district court's judgment. The court determined that Fox's reserved power "to be advised" before final action was taken included the power to approve, disapprove or partially disapprove a fishery management plan or amendment pursuant to NOAA Directive 83-37. The court found that the Fox had adequately justified his reason for the reversal of an earlier decision that had limited the ban. The court found that the ban complied with all statutory requirements set forth by the Magnuson Act, 16 U.S.C.S. § 1851(a) and 50 C.F.R. § 602.14(c)(3).

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