Federal Judiciary

Pacific Choice Seafood Co. v. Ross (9th Cir. - Sept. 25, 2020)

By Shaun Martin

Another routine Magnuson-Stevens Fishery Conservation and Management Act case involving a Pacific non-whiting groundfish fishery.  You see those every day.

The Act sets a quota, and no one can control more than 2.7 percent of that quota.  Pacific Choice controls more than that -- at least 3.8 percent.  So it's got to divest itself of some of the ships that catch these fish.

Pacific Choice doesn't like that.  So sues.

But everything that Judge Miller says in his opinion seems right to me.  Including but not limited to the final paragraph of the opinion:

"Crucially, we see no ambiguity about whether Pacific Choice ?own[ed] or control[led]? the related entities at issue here. Pacific Choice?s brief discloses that each of the six entities that held quota share are wholly owned either by Frank Dulcich or by a corporation that Dulcich owns. Under any plausible definition of ?control,? Dulcich controls the Pacific Choice entities. Because Pacific Choice is subject to the control rule even under its narrowest construction, we need not consider the rule?s outermost limits or whether, in some other case, the Service might abuse its discretion by applying the rule in a surprising or unforeseeable way. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982) (?A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.?)."

Affirmed.

Full post as published by California Appellate Report on September 25, 2020 (boomark / email).