This Week At The Ninth: Herring And Delay

• Published date: 16 May 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Morrison & Foerster LLP
• Author: Mr James R. Sigel and Zachary Fuchs

This week, the Ninth Circuit examines the government's prohibition on commercial fishing in the Golden Gate National Recreation Area, and considers when a party may file suit to compel delayed agency action.

SAN FRANCISCO HERRING ASS'N v. U.S. DEPARTMENT OF THE INTERIOR

The Court holds that the National Park Service has statutory authority to prohibit commercial herring fishing in the Golden Gate National Recreation Area.

Panel: Judges Wallace, Bress, and England (E.D. Cal.), with Judge Bress writing the opinion.

Key Highlight: "The language and context of the GGNRA Act instead reflect the commonsense conclusion that Congress did not include navigable waters within the boundaries of the GGNRA and direct their protection, only to severely hamstring the Park Service in accomplishing that objective."

Background: In 1972, Congress passed the Golden Gate National Recreation Area (GGNRA) Act to preserve land and waters around the San Francisco Bay as part of the National Park System. The Act delineated specific physical boundaries for the GGNRA, established a policy for future land acquisitions within those boundaries, and expressly authorized the Secretary of the Interior to administer the "lands, waters, and interests therein acquired for the recreation area[.]" 16 U.S.C. ' 460bb-3(a) (emphasis added). In 1983, the Secretary promulgated a regulation prohibiting commercial fishing in national parks.

The San Francisco Herring Association (the "Association") is a group of small business owners who fish in the Bay Area. In 2013, the Association filed suit, alleging that the National Park Service lacked authority to prohibit commercial herring fishing in the GGNRA. The Association focused on ' 460bb-3(a), arguing that the Park Service must first acquire a formal property interest in waters before being able to administer them. The district court rejected this argument, granting summary judgment to the government.

Result: The Ninth Circuit affirmed. First, the Court parsed the language and structure of the GGNRA Act and determined that Congress clearly authorized the Park Service to administer the Recreation Area's navigable waters within one-quarter mile offshore. The panel acknowledged that running waters cannot be owned, but wrote that the Park Service had control over them for purposes of administering them. Second, the Court addressed the Supreme Court's decision in Sturgeon v. Frost, 139 S. Ct. 1066 (2019), which held that the Park Service could not apply a...