throbber
JAMES S. BURLING, Alaska Bar No. 8411102
`Email: JBurling@pacificlegal.org
`DAMIEN M. SCHIFF,* Cal. Bar No. 235101
`Email: DSchiff@pacificlegal.org
`MICHAEL A. POON,* Cal. Bar No. 320156
`Email: MPoon@pacificlegal.org
`Pacific Legal Foundation
`555 Capitol Mall, Suite 1290
`Sacramento, California 95814
`Telephone: (916) 419-7111
`
`OLIVER J. DUNFORD,* Fla. Bar No. 1017791
`Email: ODunford@pacificlegal.org
`Pacific Legal Foundation
`4440 PGA Blvd., Suite 307
`Palm Beach Gardens, Florida 33410
`Telephone: (561) 691-5000
`
`*Pro Hac Vice Pending
`Attorneys for Petitioners and Plaintiffs
`
`
` v.
`
`GINA RAIMONDO, in her official capacity
`as Secretary of the U.S. Department of
`Commerce; JANET COIT, in her official
`capacity as Assistant Administrator for the
`National Marine Fisheries Service; and
`NATIONAL MARINE FISHERIES
`SERVICE,
`
`Respondents and Defendants.
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF ALASKA
`
`
`WES HUMBYRD; ROBERT WOLFE; and
`DAN ANDERSON,
`Petitioners and Plaintiffs,
`
`
`
`
`
`No. 3:21-cv-00247-JWS
`
`
`
`
`
`1
`Humbyrd v. Raimondo
`No. 3:21-cv-00247-JWS
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`

`

`PETITION FOR REVIEW & COMPLAINT
`(16 U.S.C. § 1855; 5 U.S.C. § 706)
`
`INTRODUCTION
`
`1.
`
`“Since time immemorial Alaska has been blessed with a natural food
`
`resource in the form of annual migrations of salmon.” Metlakatla Indian Cmty.,
`
`Annette Island Rsrv. v. Egan, 362 P.2d 901, 903 (Alaska 1961), judgment aff’d in part
`
`sub nom., Organized Village of Kake v. Egan, 369 U.S. 60 (1962), and vacated in part
`
`on other grounds, 369 U.S. 45 (1962). This gift of nature “has always been one of the
`
`basic food resources of the people as well as the basis of their main industry,” forming
`
`“the principal source of income for a large portion of Alaska’s labor force.” Id.
`
`2.
`
`Wes Humbyrd, Robert Wolfe, and Dan Anderson (“Petitioners” or
`
`“Plaintiffs”) are fishermen who make their livelihoods engaging in this integral part
`
`of Alaskan identity. For decades, Wes, Bob, and Dan have fished for salmon in Cook
`
`Inlet, investing their lives in a craft that feeds their communities, their families, and
`
`themselves.
`
`3.
`
`In December, this time-honored way of life will be permanently wiped
`
`out from Cook Inlet.
`
`4.
`
`The cause is a rule approved by Defendant National Marine Fisheries
`
`Service (“NMFS” or “Service”) through power delegated by Defendant Gina
`
`Raimondo, the Secretary of Commerce. See Fisheries of the Exclusive Economic Zone
`
`Off Alaska; Cook Inlet Salmon; Amendment 14, 86 Fed. Reg. 60,568 (Nov. 3, 2021)
`
`(“Rule”). In less than a month, the Rule will permanently close the commercial salmon
`
`fishery in Cook Inlet’s federal waters—not because the fishery is overfished or for any
`
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`

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`other conservation or environmental reason, but simply because the government
`
`finds it too bothersome to coordinate with the State of Alaska in managing the fishery.
`
`5.
`
`This casually destructive rule must be vacated, however, because it
`
`violates the Constitution’s Appointments Clause and Take Care Clause. These
`
`“essential” structural provisions of the Constitution are accountability-preserving
`
`mechanisms. Collins v. Yellen, 141 S. Ct. 1761, 1783 (2021). Their basic function is to
`
`ensure presidential control over the agents who exercise executive power on his
`
`behalf.
`
`6.
`
`The Appointments Clause reserves the exercise of significant federal
`
`power, including rulemaking and policymaking power, to “Officers of the United
`
`States.” Buckley v. Valeo, 424 U.S. 1, 140–41 (1976) (per curiam). Such officers must
`
`be appointed by the President with the advice and consent of the Senate, except that
`
`Congress may by law vest the appointment of “inferior” officers in the President
`
`alone, the courts of law, or the heads of departments. U.S. Const. art. II, § 2, cl. 2.
`
`These limitations make the President responsible for the selection and oversight of
`
`executive officials with significant power; and the American people can then hold him
`
`responsible for poor appointments.
`
`7.
`
`Though the Rule here was approved for publication by the National
`
`Marine Fisheries Service, the policy choice behind the Rule was made by the North
`
`Pacific Fishery Management Council (“Council”). The Council is an independent
`
`policymaking body created by the Magnuson-Stevens Fishery Conservation and
`
`Management Act (“Act” or “Fishery Act”) to manage fisheries off the coast of Alaska.
`
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`Pursuant to the Act, the Council issues fishery management plans (“FMPs”),
`
`amendments to those plans, and implementing regulations. The Rule implements
`
`Amendment 14, an amendment to the Salmon FMP, which regulates salmon fishing
`
`in federal waters off the coast of Alaska. Under the Act, when the Council proposes a
`
`regulation, the Service must issue it as a final rule, provided only that the regulation
`
`is consistent with the Act and other applicable law. The Council thus decides the
`
`essential policy questions governing fishery management. Accordingly, Council
`
`members wield power reserved for officers.
`
`8.
`
`Furthermore, the breadth of their policymaking power, combined with
`
`their statutorily granted discretion and independence, means that Council members
`
`must be appointed as non-inferior officers, sometimes called principal officers. Yet,
`
`none of the Council’s members who adopted the Rule was appointed by the President
`
`with the advice and consent of the Senate. Moreover, even if inferior officers could
`
`wield the Council’s power, the Council members were not properly appointed as
`
`inferior officers. Accordingly, the Constitution forbade them from proposing the Rule,
`
`and the Rule is void.
`
`9.
`
`The Take Care Clause subjects federal officials exercising officer powers
`
`to another accountability mechanism. The Take Care Clause, with the Executive
`
`Vesting Clause, requires that officers be removable by the President, so that he is
`
`able to take care that the laws be faithfully executed. This powerful mechanism for
`
`oversight persists even if the President has other means of controlling an officer.
`
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`Given the breadth of the President’s supervisory powers and responsibilities, only
`
`limited removal protections are permissible.
`
`10.
`
`First, only two types of officers may have tenure protection:
`
`“multimember bod[ies] of experts, balanced along partisan lines, that perform[]
`
`legislative and judicial functions and [are] said not to exercise any executive power,”
`
`and “inferior officers with limited duties and no policymaking or administrative
`
`authority.” Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2199–2200 (2020). For reasons
`
`explained herein, the Council is neither and may not receive tenure protection.
`
`11.
`
`Second, any tenure protection must not be so stringent as to impede the
`
`President’s supervision. Yet, 10 of the 11 members of the Pacific Council enjoy such
`
`strong tenure protection that they cannot be effectively overseen. Seven members
`
`cannot be removed unless a Council supermajority consents or if the members violate
`
`certain financial conflict-of-interest provisions. Some members cannot be removed at
`
`all. These protections, by stymieing the President’s efforts to oversee the members’
`
`duties, violate the Take Care Clause. And because the Rule was effected by Council
`
`members wielding officer power outside of presidential oversight, the Rule is void.
`
`JURISDICTION AND VENUE
`
`12.
`
`The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331
`
`(federal question jurisdiction); id. § 2201 (authorizing declaratory relief); id. § 2202
`
`(authorizing injunctive relief); 16 U.S.C. § 1855(f) (providing for judicial review of
`
`Fishery Act regulations); id. § 1861 (providing district court jurisdiction over cases
`
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`arising under the Fishery Act); and 5 U.S.C. §§ 701–06 (judicial review provisions of
`
`the Administrative Procedure Act).
`
`13.
`
`Venue in the District of Alaska is proper because the offices of the
`
`Defendants are located within the district, a substantial part of the acts or omissions
`
`giving rise to this action occurred within the district, and Plaintiffs reside in the
`
`district. 28 U.S.C. § 1391(e).
`
`PARTIES
`
`Plaintiffs
`
`14.
`
`Wes Humbyrd, Bob Wolfe, and Dan Anderson are Alaska residents and
`
`active commercial salmon fishermen, possessing the necessary state permits.
`
`15.
`
`Other than a 5-year break, Wes has been fishing for salmon in Cook
`
`Inlet for approximately 53 years. He typically earns between 70% and 80% of his
`
`income fishing for salmon in Cook Inlet, predominantly in federal waters.
`
`16.
`
`Bob has worked in the Cook Inlet commercial salmon industry for 42
`
`years, starting as a fish processor in 1980 and working his way up to owning his own
`
`boat and permit in 1987. Seven years ago, he started a retail business to sell his fish
`
`directly to consumers. On average, he earns 50% of his income fishing in Cook Inlet
`
`for salmon, predominantly in federal waters.
`
`17.
`
`Dan first started participating in Cook Inlet’s commercial salmon
`
`fishery in 1986 as a deckhand. In 1989, he struck out on his own with a newly
`
`purchased vessel and permit. Due to market uncertainties, Dan did not fish for
`
`salmon in 2020, but in most years, he fishes for salmon in Cook Inlet’s federal and
`
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`state waters from June to August. Fishing Cook Inlet’s federal waters is typically
`
`responsible for a significant portion of Dan’s annual income.
`
`18.
`
`Shutting down the federal waters to commercial salmon fishing will
`
`have a devastating impact on Wes, Bob, and Dan. With the waters in the middle of
`
`Cook Inlet closed, Plaintiffs will be forced to fish in nearshore state waters. Salmon
`
`in nearshore waters are not spread out evenly but rather congregate near the river
`
`mouths into which they migrate. Plaintiffs will therefore be required to drive their
`
`vessels an additional 8 to 10 hours per trip to arrive at a viable fishing site. If tides
`
`are unfavorable, Plaintiffs may be required to drive to state waters the day before
`
`they fish. This will injure Plaintiffs not just by increasing their operating costs, but
`
`also by imposing additional travel time, decreasing fishing opportunities, and
`
`significantly reducing their catch.
`
`19.
`
`The Rule is also expected to impact the quality of Plaintiffs’ catch. In
`
`Plaintiffs’ experience, salmon in the open federal waters are fattier and of higher
`
`quality in texture, firmness, and color compared to nearshore salmon that have begun
`
`to migrate upriver. Their catch in state waters is therefore expected to be less
`
`competitive and sell at a lower price at market.
`
`20.
`
`The volume of their catch will also be significantly curtailed. State
`
`waters extend only three nautical miles from shore, and much of that space is already
`
`taken up by other fishermen. For example, setnetters may place their nets up to 1.5
`
`nautical miles from shore, depending on the precise location. Plaintiffs will thus be
`
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`left to fish in an extremely narrow band of water, significantly limiting the volume of
`
`possible catch compared with fishing in the open federal waters.
`
`21.
`
`To catch salmon, Plaintiffs rely on drift gillnets, an efficient and
`
`economical method of fishing. But the difficulties and dangers of drift gillnet fishing
`
`in state waters will be greater than in open federal waters. Successful drift gillnet
`
`fishing requires significant space in which to spread out the gillnet. As a result,
`
`crowding the entire commercial salmon fishing fleet into the narrow band of state
`
`waters will require Plaintiffs to constantly maneuver their vessels and gear to avoid
`
`sand bars, rocks, and collisions and interference with other fishermen. These hazards
`
`of confining Plaintiffs to state waters—made worse by Cook Inlet’s large tidal
`
`fluctuations—will increase the chances that Plaintiffs suffer damage to their fishing
`
`gear and vessels.
`
`22.
`
`Because of these factors, Wes, Bob, and Dan expect the fishery closure
`
`under the Rule to put them out of business, ending their decades-long careers fishing
`
`for salmon and significantly decreasing their incomes.
`
`23.
`
`Even then, the Rule inflicts a further economic injury on each Plaintiff
`
`by reducing the value of his fishing assets, including his transferable fishing permits,
`
`vessels, and gear.
`
`Defendants
`
`24.
`
`Gina Raimondo is the Secretary of Commerce and the official charged
`
`by law with administering the Fishery Act. She is sued in her official capacity only.
`
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`25.
`
`Janet Coit is the Assistant Administrator for Fisheries. The Assistant
`
`Administrator approved the Rule as being consistent with applicable law. She is sued
`
`in her official capacity only.
`
`26.
`
`The National Marine Fisheries Service is an agency within the
`
`Department of Commerce. The Secretary of Commerce has delegated to the National
`
`Oceanic and Atmospheric Administration (“NOAA”) the authority to administer the
`
`relevant portions of the Fishery Act; and NOAA has sub-delegated that authority to
`
`the Service.
`
`LEGAL BACKGROUND
`
`Federal Fisheries Management
`
`27.
`
`In the United States, the state and federal governments divide authority
`
`to regulate oceanic fisheries. States govern nearshore waters, from the shoreline to
`
`three nautical miles offshore, while federal authority extends from three nautical
`
`miles to 200 nautical miles offshore. United Cook Inlet Drift Ass’n v. NMFS, 837 F.3d
`
`1055, 1058 (9th Cir. 2016).
`
`28.
`
`Federal fisheries are regulated through the process established by the
`
`Magnuson-Stevens Fisheries Conservation and Management Act. The express
`
`purpose of the Act is to manage fisheries to maximize their long-term benefits,
`
`including for commercial fishermen; the Act is not a one-sided environmentalist
`
`measure. 16 U.S.C. §§ 1801, 1851.
`
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`29.
`
`This purpose is given force through fishery management plans and
`
`amendments usually developed by eight regional fishery management councils and
`
`approved by the Secretary. See id. §§ 1852, 1854(a).
`
`30.
`
`The fishery management plans and amendments are, in turn,
`
`implemented through regulations usually proposed by the regional councils and
`
`approved by the Secretary. Id. §§ 1853(c), 1854(b).
`
`31.
`
`The Secretary has delegated her powers under the Fishery Act,
`
`including approval of fishery management plans, amendments, and regulations, to
`
`the Service.
`
`32.
`
`The Secretary, and so the Service, may not reject councils’ fishery
`
`management plans, amendments, and implementing regulations unless the same
`
`would violate “applicable law.” See id. § 1854(a)(3), (b)(1). The Fishery Act does not
`
`authorize the Service or the Secretary to reject councils’ fishery management plans,
`
`amendments, or implementing regulations for any other reason, such as a preference
`
`for a different policy approach. See id.
`
`33.
`
`The Service is led by the Assistant Administrator for Fisheries. The
`
`Assistant Administrator for Fisheries is not nominated by the President and
`
`confirmed by the Senate.
`
`The Regional Fishery Management Councils
`
`34.
`
`Among the eight fishery management councils established by the
`
`Fishery Act is the North Pacific Fishery Management Council, which covers the
`
`states of Alaska, Washington, and Oregon. Id. § 1852(a)(1)(G).
`
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`35.
`
`The Council is an independent entity within the Executive Branch not
`
`contained within any other agency or Executive Department.
`
`36.
`
`37.
`
`The Council has 11 voting members. Id.
`
`A quorum is a majority of the Council, and the Council acts by majority
`
`vote of those present and voting. Id. § 1852(e)(1).
`
`38.
`
`The Regional Administrator: One voting member of the Council is
`
`“[t]he regional director of the National Marine Fisheries Service for the geographic
`
`area concerned, or his designee.” Id. § 1852(b)(1)(B). The relevant official here is the
`
`NMFS Alaska Regional Administrator.
`
`39.
`
`The Alaska Regional Administrator is appointed by the NMFS Deputy
`
`Assistant Administrator for Regulatory Programs.
`
`40.
`
`The Alaska Regional Administrator is a career official in the Senior
`
`Executive Service. He is therefore removable only for cause. 5 U.S.C. §§ 7541–43.
`
`41.
`
`The state officials: Three voting members consist of the “principal
`
`State official with marine fishery management responsibility and expertise in each
`
`constituent State, who is designated as such by the Governor of the State, so long as
`
`the official continues to hold such position, or the designee of such official.” 16 U.S.C.
`
`§ 1852(b)(1)(A).
`
`42.
`
`The relevant Alaska state official is the Commissioner of the Alaska
`
`Department of Fish and Game. The Commissioner is appointed to his state position
`
`by the governor of Alaska.
`
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`43.
`
`The relevant Washington state official is the Director of the Washington
`
`Department of Fish and Wildlife. The Director is appointed to his state position by
`
`the Washington Fish and Wildlife Commission.
`
`44.
`
`The relevant Oregon state official is the Director of the Oregon
`
`Department of Fish and Wildlife. The Director is appointed to his state position by
`
`the Oregon Fish and Wildlife Commission.
`
`45.
`
`The Act does not permit the President or the Secretary to remove the
`
`three state fishery officials from the Council.
`
`46.
`
`The governor-nominated members: The remaining seven voting
`
`members are appointed by the Secretary, id. § 1852(a)(1)(G), but the Secretary’s
`
`selection is limited to a list of nominees provided by the governors of Alaska and
`
`Washington, id. § 1852(b)(2)(C). The Alaskan governor provides nominations for five
`
`of the positions and the Washington governor for two positions. The governors need
`
`provide no more than three nominees for each vacancy.
`
`47.
`
`The Secretary may reject a slate of nominees for a position only if the
`
`nominees fail to satisfy certain minimal statutory qualifications, in which case the
`
`governor may revise the list or resubmit the original list with additional explanations
`
`of the individuals’ qualifications; the Secretary may not reject the list on the basis of
`
`the nominees’ judgment, policy prescriptions, or character. Id.
`
`48.
`
`The Secretary does not herself appoint these Council members. As with
`
`her other powers under the Fishery Act, the Secretary has delegated her appointment
`
`power to the NOAA Administrator. The NOAA Administrator has, in turn, delegated
`
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`this appointment power to the Assistant Administrator for Fisheries, who leads
`
`NMFS. The Assistant Administrator appoints these seven Council members.
`
`49.
`
`The Act permits the Secretary to remove a governor-nominated member
`
`only if the Council first recommends removal by a two-thirds majority of voting
`
`members and states the basis for the recommendation, or the member violates
`
`§ 1857(1)(O), a financial conflict-of-interest provision. Id. § 1852(b)(6).
`
`The Appointments Clause
`
`50.
`
`The Appointments Clause of the United States Constitution provides
`
`that the President “shall nominate, and by and with the Advice and Consent of the
`
`Senate, shall appoint” all “Officers of the United States.” U.S. Const. art. II, § 2, cl. 2.
`
`This requirement applies to both principal (also called superior) officers and inferior
`
`officers, except that “Congress may by Law vest the Appointment of such inferior
`
`Officers, as they think proper, in the President alone, in the Courts of Law, or in the
`
`Heads of Departments.” Id.
`
`51.
`
`“[A]ny appointee exercising significant authority pursuant to the laws
`
`of the United States is an ‘Officer of the United States,’ and must, therefore, be
`
`appointed in the manner prescribed by” the Appointments Clause. Buckley, 424 U.S.
`
`at 126.
`
`52.
`
`The Appointments Clause is not limited to officials with authority to
`
`“enter a final decision” on behalf of the United States; it applies to any official who
`
`“exercise[s] significant discretion” in “carrying out . . . important functions.” Freytag
`
`v. Comm’r, 501 U.S. 868, 881–82 (1991).
`
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`53.
`
`Rulemaking is significant authority which may be exercised only by an
`
`officer. Buckley, 424 U.S. at 140–41.
`
`54.
`
`A person exercising officer powers may be appointed as an inferior
`
`officer only if his “work is directed and supervised at some level by others who were
`
`appointed by presidential nomination with the advice and consent of the Senate.”
`
`Edmond v. United States, 520 U.S. 651, 663 (1997). It is necessary but “not enough
`
`that other officers may be identified who formally maintain a higher rank, or possess
`
`responsibilities of a greater magnitude.” Id. at 662–63. The key question, rather, is
`
`“how much power an officer exercises free from control by a superior.” United States
`
`v. Arthrex, Inc., 141 S. Ct. 1970, 1982 (2021).
`
`55.
`
`Three factors that bear on whether an official wielding officer powers
`
`may be appointed as an inferior officer are: (1) whether the officer is subject to
`
`oversight in the conduct of his duties; (2) whether the officer is subject to removal
`
`without cause; and (3) whether the officer has “no power to render a final decision on
`
`behalf of the United States unless permitted to do so by other Executive officers.”
`
`Edmond, 520 U.S. at 664–65. Supervision over inferior officers must extend to
`
`“matters of law as well as policy.” Arthrex, 141 S. Ct. at 1983; see Collins v. Yellen,
`
`141 S. Ct. 1761, 1783 (2021). A head of department may not be appointed as an
`
`inferior officer. Freytag v. Comm’r, 501 U.S. 868, 884 (1991) (identifying heads of
`
`departments as “principal federal officers” who must be appointed with Senate
`
`confirmation).
`
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`56.
`
`The practical result of the Appointments Clause is that officers with
`
`more discretion must be appointed by nomination and confirmation, while closely
`
`supervised officers with less discretion may be appointed with less scrutiny (if allowed
`
`by Congress). Only nonofficers—those who lack any significant federal authority—
`
`may be selected by other means.
`
`The Take Care Clause
`
`57.
`
`The Take Care Clause, together with the Executive Vesting Clause,
`
`empowers the President to remove officers. Free Enter. Fund v. Public Co. Accounting
`
`Oversight Bd., 561 U.S. 477, 484, 492 (2010); Seila Law, 140 S. Ct. at 2205. The
`
`removal power ensures that officers, once appointed, remain under the President’s
`
`control so that he may ensure and be accountable for the faithful execution of the
`
`laws. This power persists even if the President can control an officer through other
`
`means, such as the budget process and regulations. Free Enter. Fund, 561 U.S. at
`
`504.
`
`58.
`
`Congress may bestow tenure protection only on two small categories of
`
`officers: “multimember bod[ies] of experts, balanced along partisan lines, that
`
`perform legislative and judicial functions and [are] said not to exercise any executive
`
`power,” and “inferior officers with limited duties and no policymaking or
`
`administrative authority.” Seila Law, 140 S. Ct. at 2199–2200.
`
`59.
`
`Even among officers who may enjoy tenure protection, the protection
`
`must be “[]appropriate for officers wielding the executive power of the United States.”
`
`Free Enter. Fund, 561 U.S. at 503. Thus, Congress “may not eliminate the President’s
`
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`Case 3:21-cv-00247-JWS Document 1 Filed 11/09/21 Page 15 of 27
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`

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`removal power altogether” for any officer. Seila Law, 140 S. Ct. at 2205. And Congress
`
`may not create more than one level of tenure protection—that is, grant tenure
`
`protection to an officer who may be removed only by another officer with tenure
`
`protection. Free Enter. Fund, 561 U.S. at 493. No tenure protection may be so
`
`stringent as to “impede the President’s ability to perform his constitutional duty.”
`
`Seila Law, 140 S. Ct. at 2199 (alteration omitted) (quoting Morrison v. Olson, 487
`
`U.S. 654, 691 (1988)).
`
`FACTUAL ALLEGATIONS
`
`The Cook Inlet Salmon Fishery
`
`60.
`
`Plaintiffs make their living fishing for salmon in the federal waters of
`
`Alaska’s Cook Inlet. Cook Inlet is a large inlet connecting the Pacific Ocean to major
`
`Alaskan rivers. Because of its width, Cook Inlet has both state and federal waters.
`
`61.
`
`Cook Inlet’s federal waters fall under the authority of the North Pacific
`
`Fishery Management Council but, until now, no fishery management plan governed
`
`those waters. Rather, the Council left management of these waters to Alaska.
`
`62.
`
`In 2016, the Ninth Circuit held that this arrangement violated the Act
`
`and required the Council to manage Cook Inlet’s federal waters through an FMP.
`
`United Cook Inlet Drift Ass’n, 837 F.3d 1055.
`
`63.
`
`In response to the Ninth Circuit’s decision, the Council proposed to
`
`amend a preexisting FMP bordering Cook Inlet. The amendment—Amendment 14—
`
`and the Rule, which implements Amendment 14, expand that preexisting FMP to
`
`include the Cook Inlet federal waters.
`
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`64.
`
`In addition, Amendment 14 and the Rule ban commercial salmon fishing
`
`in Cook Inlet’s federal waters. Although the Council had considered keeping the
`
`fishery open and simply managing it in accordance with the Fishery Act, it ultimately
`
`opted to close the fishery instead.
`
`65.
`
`NMFS determined that the Rule was consistent with applicable law and
`
`published it for comment. On November 3, 2021, NMFS published the Rule as a final
`
`rule.
`
`DECLARATORY AND INJUNCTIVE RELIEF ALLEGATIONS
`
`66.
`
`Each of the Plaintiffs has a significant interest in whether the Rule was
`
`lawfully promulgated. A substantial portion of each Plaintiff’s income depends on
`
`commercial salmon fishing in Cook Inlet’s federal waters. Further, Plaintiffs’ fishing
`
`permits, vessels, and gear comprise a significant portion of Plaintiffs’ assets. The
`
`closure of the Cook Inlet federal waters to commercial salmon fishing will visit
`
`significant economic hardship on Plaintiffs, in addition to reducing the value of their
`
`permits, vessels, and gear. A decision declaring the Rule to be inconsistent with the
`
`Appointments Clause or the Take Care Clause would remedy these injuries by
`
`preserving the value of Plaintiffs’ assets and enabling Plaintiffs to continue to their
`
`fishing businesses.
`
`67.
`
`Plaintiffs have no plain, speedy, and adequate remedy at law for their
`
`injuries. Money damages in this case are not available.
`
`68.
`
`This case is currently justiciable because the Rule permanently closes
`
`the salmon fishery in Cook Inlet to commercial fishing, starting on December 3, 2021.
`
`17
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`69.
`
`Therefore, declaratory and injunctive relief are appropriate to resolve
`
`this controversy.
`
`FIRST CLAIM FOR RELIEF
`
`Exercise of Powers Reserved to Officers of the United States by Persons Not
`Appointed Consistent with the Appointments Clause
`(U.S. Const. art. II, § 2, cl. 2; 5 U.S.C. § 706(2)(B))
`The preceding paragraphs are incorporated herein by reference.
`
`70.
`
`71.
`
`Council members wield power reserved for officers of the United States
`
`because they exercise significant powers pursuant to the laws of the United States,
`
`including rulemaking powers.
`
`72.
`
`Although Council members cannot promulgate regulations on their own,
`
`proposed Council regulations may be blocked only for inconsistency with law, not
`
`policy. See 16 U.S.C. § 1854(b). Thus, the Council and its members are endowed with
`
`significant power to make federal fishery policy.
`
`Unlawful Principal Officers
`
`73.
`
`Council members must be appointed as principal officers because they
`
`are not effectively supervised by anyone who is appointed by the President with the
`
`advice and consent of the Senate. Council members are not removable at will but
`
`rather enjoy extraordinarily strong protections against removal. See id. § 1852(b)(6).
`
`They have wide discretion over policy decisions. See id. § 1854(a)(3), (b). And they
`
`operate largely independent of external direction: they set their own priorities,
`
`establish and direct their own staff, and create their own operating procedures. Id.
`
`§ 1852(e), (g)–(i).
`
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`

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`74.
`
`Council members must also be appointed as principal officers for an
`
`independent reason. Because the Council is a freestanding entity within the
`
`Executive Branch, it constitutes an Executive department for constitutional
`
`purposes, and the Council members collectively constitute a head of a department.
`
`Free Enter. Fund, 561 U.S. at 511. Heads of departments, by definition, must be
`
`appointed as principal officers. Freytag, 501 U.S. at 884.
`
`75.
`
`Despite the requirement that they be appointed as principal officers,
`
`Council members are not appointed through presidential nomination and Senate
`
`confirmation. They therefore exercise their powers unconstitutionally.
`
`Unlawful Inferior Officers—Appointment by Constitutionally Ineligible Persons
`
`76.
`
`Even if Council members need only be appointed as inferior officers,
`
`such appointment has not taken place, and they therefore exercise their powers
`
`unconstitutionally.
`
`77.
`
`The default appointment procedure for inferior officers is presidential
`
`appointment with Senate confirmation. Edmond, 520 U.S. at 660.
`
`78.
`
`The Constitution permits Congress to loosen this requirement within
`
`strict limits: Congress may only vest the appointment of inferior officers in the
`
`President, the courts of law, or the heads of departments; and Congress must do so
`
`“by law.” U.S. Const. art. II, § 2, cl. 2.
`
`79.
`
`Here, one Council seat is taken by the Service’s Alaska Regional
`
`Administrator, see 16 U.S.C. § 1852(b)(1)(B), whose appointment Congress has not
`
`vested by law in the President, the courts of law, or a head of department, see
`
`19
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`No. 3:21-cv-00247-JWS
`Case 3:21-cv-00247-JWS Document 1 Filed 11/09/21 Page 19 of 27
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`

`

`generally id. § 1851, et seq., and is appointed by the Service’s Deputy Assistant
`
`Administrator for Regulatory Programs. This seat is therefore unconstitutionally
`
`filled.
`
`80.
`
`Three seats on the Council are filled by state officials pursuant to three
`
`governors’ designations. But the appointment diffusion for these seats goes even
`
`further, because the governors are not solely responsible for these officials’
`
`appointments to their state positions.
`
`81.
`
`Each governor designates as a Council member the “principal State
`
`official with marine fishery management responsibility and expertise” in his
`
`respective state. Id. § 1852(b)(1)(A). They thus sit on the Council by virtue of their
`
`state positions. And the relevant state officials for Washington and Oregon—the
`
`Washington Director of Fish and Wildlife and the Oregon Director of Fish and
`
`Wildlife—are appointed to their state positions by the Washi

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