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MIDWATER TRAWLERS CO-OPERATIVE v. DEPARTMENT OF COMMERCE

No. 03-35398.

393 F.3d 994 (2004)

MIDWATER TRAWLERS CO-OPERATIVE; West Coast Seafood Processors; Fisherman's Marketing Association, Plaintiffs-Appellants, and State of Oregon; State of Washington, Plaintiffs, v. DEPARTMENT OF COMMERCE; National Marine Fisheries Service; Mickey Kantor, Secretary, U.S. Dept of Commerce; William M. Daley, Secretary of Commerce; Penelope D. Dalton, Asst Administrator for Fisheries, National Oceanic and Atmospheric Admin; Director, National Marine Fisheries Svc; William Stelle, Jr., Director, National Marine Fisheries Svc, Defendants-Appellees, Makah Indian Tribe, Defendant-intervenor-Appellant.

United States Court of Appeals, Ninth Circuit.

Filed December 28, 2004.

Attorney(s) appearing for the Case

James P. Walsh, Davis, Wright, Tremaine, LLP, San Francisco, California, for the plaintiffs-appellants.

Thomas L. Sansonetti, Assistant Attorney General, and Robert L. Gulley, Peter C. Monson, and James C. Kilbourne, U.S. Department of Justice, Environmental and Natural Resources Division, Washington, D.C., for the federal defendants-appellees.

Eileen M. Cooney, Elizabeth R. Mitchell, Office of General Counsel, National Oceanic and Atmospheric Administration, Seattle, Washington, of counsel for the federal defendants-appellees.

Marc D. Slonim, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, Washington, for defendant-intervenor-appellee Makah Indian Tribe.

Before: PREGERSON, FERGUSON, and CALLAHAN, Circuit Judges.

PREGERSON, Circuit Judge:

Midwater Trawlers Cooperative, West Coast Seafood Processors, and the Fishermen's Marketing Association (collectively "Appellants" or "Midwater") challenge the Secretary of Commerce's decision to allocate a portion of the U.S. harvest of Pacific whiting1 to the Makah Indian Tribe ("the Makah Tribe"). Appellants argue that the allocation runs afoul of the Magnuson-Stevens Fishery Conservation and Management Act...

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