Last week, the United States District Court for the Western District of Washington, in Trident Seafoods Corp. v. Bryson, No. C12-134 MJP (Nov. 30, 2012), sent litigants a reminder about the necessity of proper standing in rulemaking challenges.  Indeed, standing is often one of the most difficult aspects of these cases, and often result in early case dismissal, as it did in Trident.

The inquiry into standing is a two-step process.  First, a party must meet the requirements of Article III of the United States Constitution, meaning that it has brought a true “case or controversy” before the Court.  Second, a party must have “prudential standing” which requires, among other things, that the party bringing suit is within the “zone of interest” of the statute or legal claim being asserted.  And while the United States Supreme Court has said that “the ‘zone of interest’ test “is not a particularly demanding one,” Clarke v. Securities Industry Association, 479 U.S. 388, 399, 107 S.Ct. 750, 757, 93 L.Ed.2d 757 (1987), it still must be met. 

The Plaintiffs in Trident owned and operated fish processing plants in Alaska and challenged the adoption of an amendment (“Amendment 88”) to the Fishery Management Plan for groundfish.  A pilot program had required fish catching vessels to deliver their catches to specific processors through a cooperative arrangement, while Amendment 88 only required that vessels operating in the Gulf of Alaska deliver fish to any processors in Kodiak.  Because this change did not affect the fishing allocations and limits itself, no Environmental Impact Study was prepared under the National Environmental Policy Act (“NEPA”).  The Plaintiffs, who were no longer guaranteed to receive fish harvests, brought suit under NEPA and the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”) challenging this failure and asserting that the pilot program should become permanent.   

In its opinion, the Court acknowledged that the Plaintiffs had Article III standing – that is, they were damaged by the adoption of Amendment 88 and a favorable decision, such as the re-adoption of the pilot program, would redress their injury.  However, the Court found prudential standing lacking because the Plaintiffs’ interests were purely economic, while the purpose of NEPA is environmental protection.  “Even applying prudential standings’ low bar, Plaintiffs’ wholly economic interests fall outside of NEPA’s environmental zone of interest,” the Court stated.  Further, as their  MSA claims were entirely derivative of the NEPA claims, the Court would not permit the Plaintiffs to make an end-run around the standing issue.   

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