IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 SECOND APPELLATE DISTRICT, DIVISION SIX

INTRODUCTORY STATEMENT 

Fishing has been a cherished tradition along the Central Coast of California for decades.  Rockfish angling close to shore has been particularly attractive to families, seniors and children because near shore fishing is usually in calmer waters and does not present the fears and risks associated with fishing in rougher waters out-of-sight of land.  Many businesses in San Luis Obispo County rely on recreational anglers for a major part of their livelihood.  Anglers and their families travel from all over California to the Central Coast throughout the entire year for rockfish angling.

Both federal and state regulatory bodies share in the management of marine resources off California’s coast.  The Magnuson-Stevens Fishery Conservation and Management Act (originally enacted in 1976) is the principal law governing marine fisheries along the west coast of the United States.  In 1996, the Magnuson Act was revised and reauthorized by Congress under the Sustainable Fisheries Act.  The fishery management zone under this federal legislation encompasses an area off the coasts of Washington, Oregon and California between 3 and 200 nautical miles offshore, and is bounded on the north by the Provisional International Boundary between the United States and Canada, and bounded on the south by the International Boundary between the United States and Mexico.  This federal zone of jurisdiction is called the EEZ (exclusive economic zone).

The federal agency that manages this fishery along the coasts of Washington, Oregon and California is called the Pacific Fishery Management Council (hereafter abbreviated as “PFMC”).  The management plan that guides the PFMC is called the Pacific Coast Groundfish Fishery Management Plan.  About 60 species of rockfish, and lingcod, are designated as “groundfish” under the management plan.  The Magnuson Act/Sustainable Fisheries Act compels the PFMC to manage and protect these species of groundfish.

The Magnuson Act specifically reserves to the coastal states the right to make fishing regulations concerning the area from shoreline out to 3 nautical miles.  However, the Magnuson Act also provides an elaborate scheme whereby the federal government can preempt the making of fishing regulations in state-regulated waters if a state enacts fishing regulations that adversely affect the carrying out of the federal management plan.  Some of the federally-regulated fish species are found in waters between 20 fathoms (approximately 1 mile from shore) out to three miles.  Although this area is not in the federal zone (EEZ), the state of California traditionally allows the federal government to dictate fishing regulations for this zone.  The subject matter of this action only relates to the fishery between shore and 20 fathoms (referred to as the “nearshore fishery”).  

Fishing regulations in California are promulgated by Respondent FISH AND GAME COMMISSION, an agency created by Article IV, Section 20 of the California State Constitution.  Fishing regulations are enforced by Respondent DEPARTMENT OF FISH & GAME, a state agency created pursuant to California Government Code Section 12800.

In 1998, the California Legislature passed the Marine Life Management Act (hereafter abbreviated “MLMA”).  The MLMA directs Respondents to develop and adopt a fishery management plan to manage sport and commercial fishing in nearshore waters (from shore out to 20 fathoms).  The legislation lists by species the fish that are to be monitored and regulated.  The MLMA directs Respondents to prepare and implement a fishery research protocol that monitors the nearshore fishery with ongoing surveys, scientific studies and compilation of “essential fishery information” concerning each of the named nearshore species, including, but not limited to, age and growth, minimum size at maturity, spawning season and age structure of the population.  The MLMA also requires Respondents to describe in its management plan the steps Respondents are taking to monitor the fishery and to obtain essential fishery information – including data collection and research methodologies – on an ongoing basis.  Since 1998, Respondents have done absolutely nothing to comply with this requirement of the 1998 MLMA legislation.  This flagrant breach of the law is at the heart of this action.

The history of rockfish regulations in the deeper federal waters has always been intertwined with regulations in the state-regulated fishery (from shore out to 3 miles).  Due to the effectiveness of commercial fishing fleets plying their trade in deeper waters, the PFMC started seeing depletions of some federally regulated fish species.  In 1998, the PFMC increased the size limit for lingcod from 22 inches to 24 inches, and then later increased the size limit up to 26 inches.  Respondents had completed no studies or surveys concerning the health and abundance of lingcod in state waters, but went along with these changes in regulations for the sake of “consistency.”  The bag limit for lingcod was reduced by the PFMC from five to three fish (later it was reduced to two fish) in the deeper federal waters.  Respondents copied this change in regulation for the sake of “consistency” even though there was no evidence or surveys suggesting that the change was necessary in the state-regulated fishery. 

In 1998, the PFMC established a three-fish recreational limit for bocaccio caught in federally-regulated waters.  Even though bocaccio are rarely caught in the nearshore fishery and there were no fish stock surveys or scientific studies in the nearshore fishery suggesting that the change was needed, Respondents went along for the sake of consistency and changed the state regulations to conform to the federal regulations.  In 2000, the PFMC changed the overall bag limits from 15 fish to 10 fish.  Although there was no evidence or surveys to justify this bag limit change in the nearshore fishery, Respondents went along and copied the federal regulation change.

In 2001, the PFMC decided that more restrictive measures were necessary to protect four species that were labeled “overfished.”  These overfished species dwell in both the federally-regulated EEZ and deeper state-regulated waters (from 20 fathoms out to 3 miles).  The overfished species were bocaccio, canary rockfish, yelloweye, and cowcod.  To limit the take of these species, the PFMC closed down recreational fishing in the EEZ during January and February of 2001.  Respondents went along with the closure in deeper state-regulated waters as well as nearshore waters even though there was no evidence or data suggesting that there was any need for closure of nearshore waters.

In 2002, the PFMC was even more restrictive.  The PFMC closed down recreational fishing in federal waters for four months, banning rockfish angling in March, April, November and December.  Respondents had been ordered in 1998 to regularly monitor nearshore species with fish stock surveys.  By 2002, Respondents had done nothing to comply with the MLMA mandates.  So, without any evidence about the health and abundance of nearshore fish species, Respondents went along with the federal regulations and closed down nearshore fishing to recreational anglers for four month in 2002.

Mid-way through the 2002 calendar year the PFMC determined that the “overfished” condition of bocaccio necessitated a complete closure of the deep-water fishery starting on July 1, 2002.  Because bocaccio also dwell in state-regulated waters (from 20 fathoms out to 3 miles from shore), Respondents agreed to close state-regulated waters from 20 fathoms out to 3 miles to conform to federal regulations.  Since bocaccio normally do not dwell in shallower waters, the nearshore fishery (from shore out to 20 fathoms) remained open after July 1, 2002.  Since July of 2002, all federally-regulated and state-regulated waters deeper than 20 fathoms have been closed to recreational rockfish angling.  The closure has been described as “indefinite.”  It was clear in the latter part of 2002 that there would be no recreational fishing during 2003 in deeper federal or state waters.

This closure of rockfish angling in deeper waters put Respondents in a real bind.  They had failed to obey the legislative mandate of the MLMA legislation and had conducted no fish stock surveys or scientific studies concerning the health and abundance of nearshore fish species.  They could no longer copy federal regulations since they knew that there would be no fishing season in federal waters in 2003.  They were put in a position where they would have to independently formulate regulations for the nearshore fishery with no scientific surveys and zero data. 

In October of 2002, when Respondents were deciding on the nearshore fishing regulations for 2003, they had absolutely zero evidence and no studies concerning the health and abundance of any nearshore fish species.  Their failure to follow the 1998 mandates of the state legislature had come back to haunt them.  Respondents decided to go back to a period of time between 1994 and 1999 and guessed at the total annual amount of tonnage taken by recreational fishing (note that this has nothing to do with the abundance of fish in nearshore waters).  Then, this average tonnage amount was cut in half and that was the amount of fish tonnage that would be allowed for combined commercial and recreational fishing in nearshore waters during 2003. [In the Administrative Record and Court’s Ruling, the total annual tonnage limitation is abbreviated “OY” which stands for “optimum yield”.  Henceforth the total annual tonnage limitation will be similarly abbreviated]   There was no rational basis for this guesswork, other than to excuse the ignorance of Respondents, an ignorance caused by their failure to obey the commands of the state legislature.  To make these regulations even more draconian, Respondents, again with no rational basis, cut the fishing season in half.  Respondents decided to ban recreational rockfish angling in nearshore waters from January 1, 2003 through June 30, 2003.  Respondents promulgated these irrational regulations even though they admit there is no evidence that any nearshore fish species are “overfished.”

Arbitrary and capricious regulations with no rational basis or justification have severely limited recreational rockfish angling along the coast of California during the calendar year 2003.  Appellants appeal from denial of a motion for preliminary injunction that would prevent Respondents from enforcing these challenged regulations.

THE PARTIES

Petitioner and Appellant CENTRAL COAST FISHERIES CONSERVATION COALITION (CCFCC) is a non-profit mutual benefit corporation, organized and registered under California law.  The CCFCC is committed to preserving the fishery along the Central Coast of California so that future generations will have the benefit of this important recreational sport and public resource.  The rights and enjoyment of the CCFCC membership has been and will be harmed unless the challenged 2003 recreational fishing regulations are set aside.  Many members of the CCFCC have suffered and will continue to suffer irreparable financial harm unless the challenged 2003 recreational rockfish regulations are set aside and voided.  The CCFCC and its membership are directly affected by the regulations at issue here, and must comply with the 2003 rockfish regulations.

Petitioner and Appellant VIRG’S LANDING, INC., is a corporation duly organized under the laws of the state of California.  VIRG’S LANDING, INC., is a sportfishing business located in Morro Bay, California, a fishing village in San Luis Obispo County.  VIRG’S LANDING, INC., has suffered and will continue to suffer irreparable financial harm unless the 2003 recreational rockfish regulations are set aside and voided.  VIRG’S LANDING, INC., will be directly affected by the regulations at issue here, and its customers and employees must comply with the challenged rockfish regulations.

Petitioner and Appellant PATRIOT SPORTFISHING, INC., is a corporation duly organized under the laws of the state of California.  PATRIOT SPORTFISHING, INC., is a sportfishing business located in Avila Beach, California, a beach community in San Luis Obispo County.  PATRIOT SPORTFISHING, INC., has suffered and will continue to suffer irreparable financial harm unless the 2003 recreational rockfish regulations are set aside and voided.  PATRIOT SPORTFISHING, INC., will be directly affected by the regulations at issue here, and its customers and employees must comply with the challenged rockfish regulations.

Respondent DEPARTMENT OF FISH & GAME is a legislative agency, specifically a sub-agency of the California Resource Agency, created pursuant to the California Government Code, Section 12800.

Respondent FISH AND GAME COMMISSION is an agency created by Article IV, Section 20 of the California State Constitution.  The COMMISSION is composed of five members.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

[References to the Clerk’s  Transcript on Appeal will hereafter be abbreviated “CT”]

The Marine Life Management Act of 1998 (MLMA) (Chapter 1052, Stats. 1998) (F & G Code §§7050-7090) and Nearshore Fisheries Management Act (Chapter 1053, Stats. 1998) compel Respondents to monitor and regulate 18 nearshore fish species (Title 14, CCR, §1.90).  Respondents are required by F & G Code §200 et seq. to create annual regulations concerning fishing in state waters.  The zone of jurisdiction under these acts is from shore out to 20 fathoms (120 feet) (Title 14, CCR, §1.90(d)).  The legislation lists by species the fish that are to be monitored and regulated.  The MLMA directs Respondents to prepare and implement a fishery research protocol that monitors the nearshore fishery with ongoing surveys, scientific studies and compilation of “essential fishery information” concerning each of the named nearshore species, including, but not limited to, age and growth, minimum size at maturity, spawning season and age structure of the population.  (See F & G Code §7060(b) and §7081)  The MLMA also requires Respondents to describe in its management plan the steps Respondents are taking to monitor the fishery and to obtain essential fishery information – including data collection and research methodologies – on an ongoing basis.  It is the failure of Respondents to comply with this legislation that is the basis of the claim that Respondents acted arbitrarily and capriciously in enacting their 2003 rockfish regulations.

The MLMA legislation also requires Respondents to create a management plan for managing sport and commercial fishing in nearshore waters.  This master plan was to

be submitted to the FISH AND GAME COMMISSION for its approval by September 1, 2001. (See F& G Code §7073)  Respondent FISH & GAME DEPARTMENT failed to submit this master plan timely.  Efforts have been made to complete a master plan.  A Nearshore Fishery Management Plan was submitted to the COMMISSION. (See CT, Vol.2, pp. 63-297)  As of the time of oral argument before the trial court below on April 8, 2003, counsel for Respondents stated during oral argument to the Court that the Nearshore Fishery Management Plan had not been enacted as law.  While the master plan was being prepared, Respondent FISH & GAME DEPARTMENT was supposed to conduct interim fishery research in the nearshore fishery areas with “the greatest need for changes in conservation and management measures.” (See F & G Code §§7073 and 7074)  No such research was ever conducted.  The failure to conduct this interim research and surveys renders the resulting 2003 nearshore rockfish regulations arbitrary and capricious. 

The same year that the MLMA legislation was passed, the federal government started increasing regulatory restrictions on commercial and recreational fishing in the EEZ to rebuild rockfish populations, some of which were becoming overfished.  This history of increasing restrictions is described at CT, Vol. 3, pp. 498-499.

Finally, because of concerns about bocaccio rockfish, the PFMC closed all recreational fishing in the EEZ south of Cape Mendocino from July 1, 2002 until the end of the year.  Notice of this emergency closure was published in the Federal Register.  Respondents followed suit with an emergency closure of state-regulated waters from 20 fathoms out to 3 miles pursuant to Section 27.82(g), Title 14, California Code of Regulations.  (CT, Vol. 3, p. 386)

The Director of Respondent FISH & GAME, Robert C. Hight, advised Respondent FISH AND GAME COMMISSION  in July of 2002 that all groundfish angling in waters deeper than 20 fathoms would be precluded during the entire calendar year 2003. (CT, Vol. 3, p. 387)  So, in mid-2002 Respondents knew that they would not be able to copy federal regulations for the calendar year 2003 since there would be no fishing season in federal waters during 2003.  Since Respondents had failed to obey the mandate of the 1998 MLMA legislation concerning the obligation to conduct interim fishery research (see F & G Code, §7074) and had done nothing to monitor and determine the health and abundance of nearshore fish species, Respondents would be making 2003 nearshore regulations with a total void of fish stock surveys and scientific data.

Respondents conducted public hearings during 2002 allowing comment on potential changes in nearshore rockfish regulations.  A FISH AND GAME COMMISSION meeting was held in San Luis Obispo on August 1-2, 2002 (CT, Vol. 3, pp. 390-400)  Another public hearing was conducted by the COMMISSION in Oakland on August 29-30, 2002 (CT, Vol. 3, pp. 482-493) 

The first draft of a “Statement of Reasons” for proposed 2003 regulations was dated August 27, 2002. (CT, Vol. 3, pp. 404-429)  The draft makes no mention of any studies or surveys by Respondents concerning the health and abundance of nearshore fish species.  In fact, the draft states at CT, Vol. 3, p. 406 that:  “None of the nearshore rockfish species are currently designated as overfished.” The second draft was dated September 24, 2002 (CT, Vol. 3, pp. 496-526)  A third draft was Dated September 30, 2002 (CT, Vol. 3, pp. 562-580)  A final Attachment to the Statement of Reasons responding to public comments at the October 25 meeting in Crescent City is found at CT, Vol. 4, pp. 648-653.  In none of the Statements of Reasons is there any claim or suggestion that Respondents conducted any of the required fish stock surveys and scientific studies mandated in the 1998 MLMA legislation.

Although the PFMC does not have jurisdiction to make regulations in nearshore waters (this is specifically reserved to the states under the Magnuson Act), and despite the fact that federally-regulated fish species are seldom found in nearshore waters, Respondents wanted the “blessing” of the PFMC on their proposed 2003 nearshore rockfish regulations.  Respondents presented their proposed 2003 regulations at the PFMC meeting of September 10-13, 2002.  With some minor suggested modifications, the PFMC approved Respondents Initial Statement of Reasons (See CT, Vol. 3, pp. 404-429) which details the proposed changes in 2003 nearshore rockfish regulations.(See CT, Vol. 3, p. 362, Response R-2 and pp. 538-539)  Nowhere in the Administrative Record does it state that the suggestions of the PFMC concerning nearshore rockfish regulations for 2003 were anything but “recommendations.”  (CT, Vol. 3, p.495, bottom of p. 502, top of p. 513, middle of p. 528, p. 559, bottom of p. 587)

The request for a preliminary injunction by Appellants centers on a six-month ban on recreational rockfish angling in nearshore waters and the “OY” limitation on nearshore fishing. (see CT, Vol. 4, p. 903, lines 12-27)  These challenged regulations were not presented to the PFMC at their September 10-13, 2002 meeting.   The Initial Statement of Reasons presented to the PFMC makes no mention of a six-month ban on recreational fishing and makes no reference to any “OY” limitation on nearshore fishing.  The recommendations to Respondents from the PFMC do not refer to any six-month ban on recreational fishing and do not suggest any “OY” on nearshore fishing.  It cannot be said that the challenged regulations in this legal action were ever recommended to Respondents by the federal government.  The contested regulations were the creation of Respondents, initially penned in a report by state-employee Tom Barnes dated September 27, 2002. (CT, Vol. 4, pp. 828-837)

The total tonnage proposal (“OY”) for combined commercial and recreational fishing in nearshore waters for 2003 was not based on anything relating to the health and abundance of available fish.  It was based on guesswork concerning tonnage taken in a period between 1994 and 1999 in nearshore waters.  The mean “OY” was then cut in half to account for Respondent’s lack of knowledge about the health and abundance of nearshore fish species.  On top of that, Respondents proposed to cut the fishing season in half, allowing fishing in the nearshore during 2003 only during July through December.  The report submitted to the FISH AND GAME COMMISSION justifying these regulations was written by Tom Barnes, one of Respondents’ employees.  (CT, Vol. 4, pp. 828-837)

Respondent FISH AND GAME COMMISSION met in Crescent City on October 24-25, 2002.  At the conclusion of this meeting, the COMMISSION adopted and approved the nearshore rockfish regulations for 2003.  (CT, Vol. 3, pp. 581-609, especially the bottom of p. 591.)  These regulations became law on January 3, 2003. (CT, Vol. 3, pp. 345-346)

Appellants filed their Verified Petition and Complaint for Declaratory and Injunctive Relief on February 18, 2002. (CT, Vol. 1, pp. 1-21)  Evidence concerning irreparable financial harm was received by the Court based on the declarations of Petitioners and members of the CCFCC. (CT, Vol. 1, pp. 22-30 and Vol. 5, p. 1075)

Appellants filed their Motion for Preliminary Injunction on March 4, 2003. (CT, Vol. 1, pp. 31-37)  The specific grounds for the injunction and the challenged regulations were further clarified by Appellants on March 20, 2003. (CT, Vol. 4, pp. 902-904)

On March 7, 2003, the PFMC published in the Federal Register nearshore rockfish regulations for California conforming to existing California nearshore rockfish regulations for 2003. (CT, Vol. 5, pp. 1084-1135)

Appellants’ Motion for Preliminary Injunction was argued in the San Luis Obispo County Superior Court on April 8, 2003 before the Honorable Martin Tangeman.  The Court issued a written ruling denying the motion for preliminary injunction on April 9, 2003. The written ruling is found at CT, Vol. 5, pp. 1136-1147.  Appellants have appealed from this ruling. (CT, Vol. 5, p. 1160)

SHOWING OF IRREPARABLE FINANCIAL HARM

Appellants presented ample evidence that failure to grant the requested preliminary injunction would cause appellants irreparable financial harm.  (See the declarations at CT, Vol. 1, pp. 22-30)  These declarations were submitted by either named parties or members of the CCFCC. (See CT, Vol. 5, p. 1074, line 18 to p. 1075, line 16)

The lower court correctly found that Appellants had shown significant and irreparable harm. (CT, Vol. 5, pp. 1138-1139).  When said harm to Appellants was weighed against any harm that might come to Respondents, the lower court correctly found that “relative harm” tipped in favor of Appellants.

ISSUES PRESENTED ON APPEAL

1. Did Respondents enact 2003 nearshore rockfish regulations to be in “conformity” to federal regulations?
2. Did Respondents have a rational basis for limiting Appellants’ constitutional right to fish?
3. Can Respondents enact fishing regulations based on old, unreliable data when state law compels them to obtain recent reliable data and they have made no effort to obtain such reliable data?
4. Is the request for preliminary injunction moot?

ARGUMENT AND AUTHORITIES

A.  Did Respondents enact 2003 nearshore rockfish regulations to be in “conformity” to federal regulations?

The simple answer to this question is NO!  Just the opposite is true.  However, this is the key area where the lower court was led astray by the argument of Respondents.  Respondents claimed in their opposition papers and oral argument that the 2003 nearshore rockfish regulations were enacted to be in conformity to federal regulations.  It is true that a large part of the 2003 nearshore rockfish regulations copy federal regulations from earlier years.  The regulations specify bag limits, numbers of certain species that may be taken, minimum size requirements on certain species, certain species that may not be taken, gear restrictions, etc.  None of these regulations are contested or challenged by Appellants.  The regulations challenged by appellants were independent creations by Respondents.  The challenged six-month ban on recreational rockfish angling in nearshore waters was not suggested or recommended by the federal government.  This regulation was not enacted to be in conformity with any federal regulation or suggestion.  The “OY” limitation of 541 metric tons for combined commercial and recreational rockfish angling in nearshore waters was a creation by Respondents and initially contained in a report by Respondents’ employee Tom Barnes. (See CT, Vol. 4, pp. 828-837)  State’s rights under the Magnuson Act were preserved when the federal government accepted and copied the state suggestion on an “OY” limitation for nearshore rockfish angling.  Once again, this regulation was not established to be in conformity with federal regulations.

Respondent COMMISSION approved the California 2003 nearshore rockfish regulations at the conclusion of their meeting in Crescent City on October 25, 2002. (CT, Vol. 3, bottom of page 591)  These regulations were approved by the Office of Administrative Law and became law on January 3, 2003.  These regulations did not conform to any federal regulations.  It was not until March 7, 2003 that the federal government published regulations in the Federal Register that copied existing California regulations. (See CT, Vol. 5, pp. 1084-1135, especially starting at p. 1129, column 3)  This action by the federal government was consistent with the clear mandate under the Magnuson Act reserving to the coastal states the exclusive power and jurisdiction to make fishing regulations in state waters.  16 U.S.C. §1856 clearly reserves this power to the states.

The Magnuson Act defines its jurisdiction as follows:

Fishery management area means the EEZ off the coasts of Washington,

Oregon, and California between 3 and 200 nm offshore, and bounded on

the north by the Provisional International Boundary between the United

States and Canada, and bounded on the south by the International Boundary

between the United States and Mexico.

(50 CFR §660.302 and CT, Vol. 5, p. 923) 

California has always claimed policing and regulatory power out to three miles from shore.  California Government Code §§170 and 110 both lay claim to exclusive jurisdiction over state waters to three miles off shore.  Numerous California cases have also claimed jurisdiction out to three miles.  See Suttori v. Peckham, (1920) 48 Cal.App. 88; In re Marinkovich (1920) 48 Cal.App. 474; People v. Weeren (1980) 26 Cal. 3d 654;  Tidewater Marine Western Inc. v. Bradshaw (1996) 14 Cal.4^th 557.

The ruling by the Trial Court contains erroneous language suggested by Respondents’ counsel in his opposition papers and oral argument. At page 5 of the ruling, lines 7-10, the Court says:

The Commission determined that it was in its best interests to have

its regulations conform to federal regulations governing the restrictions

on recreational fishing in the nearshore fishery. (CT, Vol. 5, p. 1140)

As it relates to the challenged regulations, this statement is completely erroneous.  The Initial Statement of Reasons explaining changes in 2003 rockfish regulations in the nearshore fishery presented to the PFMC at its meeting of September 10-13, 2002 makes no mention of a six-month ban on recreational fishing.  The proposed regulations presented to the federal government made no mention of any “OY” limitation on fishing in the nearshore fishery for 2003.  The recommendations back to Respondents concerning 2003 rockfish regulations in the nearshore fishery do not mention any six-month ban on fishing and do not mention any “OY” limitation on fishing in the nearshore fishery.  These contested regulations are totally the creation of Respondents.  Respondents cannot say that they were conforming to federal regulations when adopting these regulations.  It is true that the Administrative Record is replete by comments that it is important for Respondents to conform their regulations to federal regulations.  The problem is that the challenged regulations under scrutiny here were the creations of Respondents and were not enacted to conform to any federal regulations.

The six-month ban on recreational fishing and the “OY” limitation (541 metric tons to combined commercial and recreational fishing) are creations of Respondents.  The record can be thoroughly searched and it will reveal that these proposed regulations were first mentioned in the report of Respondents’ employee Tom Barnes. (CT, Vol. 4, pp. 828-837).  This report was presented to the COMMISSION at its meeting on October 25, 2002. (See CT, Vol. 3, pp. 559-561).  Although the 541 metric ton “OY” is not mentioned in California regulations, it is clear that Respondents intend to enforce this limitation. (See CT, Vol. 3, p. 576, comment 6 and CT, Vol. 4, p. 652, R-11)  Since the federal government has no power or jurisdiction to set “OY” levels for the nearshore fishery in California, where did the federal government get the “OY” figures that are included in the Federal Register printed on March 7, 2003 at page 11196, Table 1b? (Found at CT, Vol. 5, p. 1099)  They got these figures from Respondents.  Tom Barnes says in his report on the first page that the 2003 “OY” levels adopted by the PFMC were “recommended by the DFG” (i.e. the “OY” levels came from the DFG, (DEPARTMENT OF FISH & GAME) (See CT, Vol. 4, p. 828).  A statement by Respondents explaining the 541 metric ton “OY” after the Crescent City meeting of October 25, 2002, shows that the PFMC accepted Tom Barnes report and recommendation in setting the “OY”. (CT, Vol. 4, p. 652, R-11)  Once again, it is clear that the setting of “OY” levels in federal regulations was to conform to state recommendations for the nearshore fishery, not the other way around.  If the 541 metric ton “OY” limitation was arbitrary and capricious in its creation and was arbitrary and capricious when handed off to the federal government, it certainly did not become “rational” when it was “rubber-stamped” by the PFMC. 

Respondents have suggested in their opposition papers that there is a “risk of preemption” by the federal government if a preliminary injunction removes the “OY” for recreational fishing in nearshore waters or allows a 12-month season.  Such a suggestion is an absurdity.  An investigation of the preemption possibility shows that no such risk is even a remote possibility.

The Magnuson Act details the elaborate procedures that would accompany any preemption by the federal government in making fishing regulations in state waters.  The key language is found at 16 U.S.C. 1856 (b).  It says:

(b) EXCEPTION.

(1)  If the Secretary finds, after notice and an opportunity for a hearing in accordance with section 554 of title 5, United States Code, that –

(A)  the fishing in a fishery, which is covered by a fishery management plan implemented under this Act, is engaged in predominantly within the exclusive economic zone and beyond such zone; and

(B)   any State has taken any action, or omitted to take any action, the results of which will substantially and adversely affect the carrying out of such fishery management plan;

the Secretary shall promptly notify such State and the appropriate Council of such finding and of his intention to regulate the applicable fishery within the boundaries of such State (other than its internal waters), pursuant to such fishery management plan and the regulations promulgated to implement such plan.

(2) If the Secretary, pursuant to this subsection, assumes responsibility for the regulation of any fishery, the State involved may at any time thereafter apply to the Secretary for reinstatement of its authority over such fishery.  If the Secretary finds that the reasons for which he assumed such regulations no longer prevail, he shall promptly terminate such regulation.

(3) If the State involved requests that a hearing be held pursuant to paragraph (1), the Secretary shall conduct such hearing prior to taking any action under paragraph (1).

(See CT, Vol. 5, p. 1081)

The federal government has certain mandates in the Magnuson Act and the Sustainable Fisheries Act. The geographic area of concern is from 3 nautical miles out to 200 nautical miles from shore.  60 rockfish plus lingcod are the target of conservation and protection under this legislation.  The rockfish normally dwell in these deeper federal waters.  It is conceded that some of the overfished rockfish also dwell in state-regulated waters from 20 fathoms (approximately one mile from shore) out to 3 nautical miles from shore.  Respondents have allowed the federal government to dictate fishing regulations in this area because these federally-regulated rockfish need protection.  Appellants have no quarrel with the fact that Respondents have abdicated from making regulations for this geographic zone.  However, the MLMA only relates to the nearshore waters from shore out to 20 fathoms.  The 18 nearshore fish species enumerated in the MLMA are shallow-water fish.  There is no evidence anywhere in the Administrative Record that would suggest that allowing 12 months of recreational rockfish angling in nearshore waters or removal of the rockfish “OY” for nearshore waters would have any effect on the carrying out of the federal management plan.  The suggestion about “risk of preemption” by Respondents is nonsense.  The chances of a preemption effort by the federal government after granting of the requested preliminary injunction are non-existent.

B.  Did Respondents have a rational basis for limiting Appellants’ constitutional right to fish?

Article I, Section 25 of the California Constitution provides that the people of this state have a right to fish upon state waters.  Article I, Section 7(a) of the California Constitution provides that “A person may not be deprived of life, liberty, or property without due process of law…”  In the present case, Respondents have deprived Appellants and all citizens of this state of their right to fish in state waters without any rational basis.

               It is conceded by Appellants that Article I, Section 25 does not convey to Californians a “fundamental right” to fish which would require “strict scrutiny” of all limiting regulations.  See California Gillnetters Assn. v. Dept. of Fish & Game (1995) 39 CA 4^th 1145.  In the Gillnetters case, supra at pp. 1152-1153, the Court held that fishing in California is not a fundamental right.  Because of the reference to the power of the state to regulate fishing which is contained within Article I, Section 25 of the California Constitution, the Court determined that Article I, Section 25 “creates only a qualified right to fish.” Gillnetters, supra,at p. 1152.  Therefore, the Court determined that any regulation of fishing rights must pass the “rational basis” test.  The challenged regulations are arbitrary and capricious.  They do not pass the “rational basis” test.

               The “due process” clause requires that limitations on the fishing right guaranteed in Article I, Section 25 must have a “rational basis”, they cannot be arbitrary and unreasonable; they must be related to a legitimate government purpose.  In Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal. 4^th 952, 979-980, the California Supreme Court described “rational basis” substantive due process review by quoting the U.S. Supreme Court language such as: “The police power is subject to the constitutional limitation that it may not be exerted arbitrarily or unreasonably.” and “Our cases have not departed from the requirement that the government’s chosen means must rationally further some legitimate state purpose.” (Quoting Nashville, Chattanooga & St. L. Rv. V. Walters (1935) 294 U.S. 405, 415 and Nectow v. City of Cambridge (1928) 277 U.S. 183,188.)

               The 1998 MLMA legislation commanded Respondents to monitor and regulate 18 species of nearshore rockfish.  The legislation was very specific about the requirements for fish stock surveys and scientific studies.  While a master plan for management was being prepared Respondents were to conduct interim scientific studies on the health and abundance of nearshore rockfish.  Respondents completely failed to comply with state law.  They enacted the 2003 rockfish regulations with a total void of information about the condition of nearshore rockfish species.  The resulting regulations are arbitrary and capricious.

Let us first examine the “OY” limitation of 541 metric tons allowed to combined recreational and commercial nearshore rockfish angling in 2003.  Respondents’ employee Tom Barnes came up with this “OY” level by taking the mean annual tonnage allegedly taken in a period from 1994-1999.  This “OY” would be 1081.6 metric tons.  (CT, Vol. 4, p. 829) There is no evidence anywhere that this “OY” level has any relationship whatsoever to the health and abundance of rockfish in nearshore waters. Then Mr. Barnes cut the “OY” level in half.  Why was the level cut in half?  Barnes explains that cutting the level in half was a “precautionary adjustment.” (CT., Vol. 4, at p. 829)  Barnes explains that the “precautionary adjustment” is to account for the fact that Respondents are “data poor” concerning the condition of the nearshore rockfish species.  “Data poor” was an overly-polite description of the situation.  The fact of the matter is that Respondents were “data non-existent” about the condition of nearshore rockfish species.  They had absolutely no data or reports of any kind about the health and abundance of rockfish in nearshore waters.  This kind of guesswork based on old data and “precautionary adjustments” cutting the “OY” in half are arbitrary and capricious.

What about the cutting of the rockfish angling season in half for recreational fishermen?  Tom Barnes explains that cutting the “OY” in half means that it is likely that recreational fishermen will reach the “OY” in half of the year.  This means that if the original “OY” is arbitrary and capricious, then the decision to reduce the recreational rockfish season in half is likewise arbitrary and capricious.

Let us assume for the sake of argument that Respondents admit, as they must, that they enacted the 2003 rockfish regulations for nearshore waters without the benefit of any fish stock surveys, scientific studies or other evidence about the condition of the 18 nearshore species that they were ordered to monitor and regulate under the 1998 MLMA legislation.  Let us also disregard the official position of Respondents that none of the nearshore species of fish are “overfished.”  Would it be “rational conduct” to say that the lack of data and information justifies taking a precautionary approach and justifies severely restricting rockfish angling in nearshore waters?  The answer to that question is clearly “No!”  The California Constitution protects the rights of the citizens, not rights of the fish.  The right to fish in state waters can be regulated and limited, but only based on evidence … there must be some “rational basis” for the limitation.  Without evidence to justify the limitation, then the right to fish prevails.  In this case, there was no evidence or rational basis to justify the limitation.

C.  Can Respondents enact fishing regulations based on old, unreliable data when state law compels them to obtain recent reliable data and they have made no effort to obtain such reliable data?

The decision by Respondents to cut the 2003 recreational rockfish angling season in half was based on the decision to cut the “OY” in half (see explanation above).  As explained above, the “OY” bears no relationship to the health and abundance of rockfish in the nearshore waters.  The failure to gather Essential Fishery Information, as mandated under the MLMA, renders the subsequent guesswork leading to 2003 rockfish regulations as arbitrary and capricious.  Aside from this failure to obey legislative mandate, the data used by Tom Barnes in coming up with a 2003 “OY” is unreliable.  The crucial language from Tom Barnes report is found at CT, Vol. 4, p. 829:

            The nearshore HG’s (Harvest Guidelines) for the three management

            groups were based on the “data poor” approach of using average recent

landings as a proxy for Allowable Biological Catch (ABC), and

            then applying a precautionary adjustment of 50% to determine the

            proxy OY (Optimum Yield) … Annual landings during 1994-1999 were

            selected because it represents the most recent period when rockfish

            trip limits were not constraining for the nearshore fishery.  Rockfish

            management OY’s after 1999 have been based on the 50% precautionary

            adjustment….RecFIN estimates were not available for 1990-92.

            During the 6-year period of the analysis, average annual nearshore landings

            were 1081.6 mt. (metric tons), one-half of which is 540.8 mt.

The tonnage data for the 1994-1999 landings comes from the Marine Recreational   Fisheries Statistical Survey (hereafter MRFSS).  Please note the reference in Barnes’ report to RecFIN estimates.  RecFIN data is the same as MRFSS data.  A description of how MRFSS data is collected and fed into the RecFIN database is found at CT, Vol. 2, p. 143.  This method of collecting data, by everyone’s analysis, is unreliable.  Robert C. Hight, Director of the FISH & GAME DEPARTMENT, describes MRFSS data as unreliable. (CT, Vol. 2, p. 299)  Respondents in explaining their proposed 2003 rockfish regulations, confess that MRFSS data is unreliable. (CT. Vol. 4, p. 653, R-15).  Even the federal government who sponsors MRFSS admits that the data collection is unreliable. In the Federal Register, Vol. 68, No. 45, March 7, 2003, at page 11191, middle column, it states:

Neither NMFS nor the State of California now have a recreational fishery catch

monitoring system that satisfactorily characterizes catches in these fisheries to

allow inseason monitoring and regulations revisions.  However, NMFS is working

with all three states to revise the current Marine Recreational Fisheries Statistical

Survey (MRFSS) so that it is more responsive to fishery management needs. (CT, Vol. 5, p. 1094)    

The conclusion is inescapable; using old data that is unreliable and has no relationship to the condition of nearshore rockfish species is arbitrary and capricious when used to formulate state fishing regulations.  This is especially true when the legislature has mandated that Respondents conduct fish stock surveys and scientific studies concerning the health and abundance of nearshore rockfish and Respondents have failed to comply with this mandate. 

D.  Is the request for preliminary injunction moot?

            The motion for preliminary injunction considered by the lower court was based on a request by Appellants to be allowed to fish all twelve months of 2003.  The 2003 regulations banned recreational rockfish angling in nearshore waters from January 1, 2003 through June 30, 2003.  Admittedly, the six-month ban for 2003 has ended and Appellants are back fishing.  The “OY” limitation could still lead to a closure of recreational rockfish angling in 2003.  This is still a live issue.  However, if this matter is not resolved by this court until after December 31, 2003, it could also be said that the “OY” limitation issue is moot.  Appellants contend that strict mootness rules should be relaxed in this case.  This Court should consider the merits of the appeal.

            In the case of Salmon Trollers Marketing Assn. v. Fullerton (1981) 124 Cal.App. 3^rd 291, the state regulation under scrutiny had already expired.  The Director of the California Department of Fish & Game requested a hearing in the appellate court.  Respondent Salmon Trollers Marketing Assn. moved to dismiss the appeal claiming the appeal was moot.  The Director of the DFG claimed that the issue before the appellate court would recur and was of substantial public interest.  The Court, in denying Salmon Trollers’ motion to dismiss, cited People v. West Coast Shows, Inc. (1970) 10 Cal.App. 3^rd 462, 468 and said:

                        It is now established law that where … issues on appeal affect

                        the general public interest and the future rights of the parties,

                        and there is reasonable probability that the same questions will

                        be litigated and appealed, an appellate court may, although the

                        appeal be subject to dismissal, nevertheless adjudicate the

                        issues involved.  (Salmon Trollers, supra, at p. 298.)

In the present case, the challenged regulations only relate to the calendar year 2003.  These same issues will recur in succeeding years.  These issues involve a substantial public interest.  The contested regulations apply to all of the citizens of California and even out-of-state fishermen.  This Court should adjudicate the issues raised by Appellants.

CONCLUSION

            Respondents banned recreational rockfish angling in nearshore waters for six month in 2003.  This ban has caused and will continue to cause irreparable financial harm to Appellants.  The state legislature has mandated that Respondents make fishing regulations concerning nearshore waters with the benefit of fish stock surveys and scientific studies concerning the health and abundance of nearshore rockfish.  Since this MLMA legislation became law, Respondents have done nothing to comply with the obligation to gather data and conduct fish stock surveys and scientific studies.  The six- month ban on recreational rockfish angling was arbitrary and capricious.  It was formulated without any evidence or science.

            Likewise, Respondents established an intolerable “OY” limitation for the year 2003.  They used old, unreliable data not related to the health and abundance of rockfish in nearshore waters.  The unreliable data related to catch tonnage from 1994-1999.  Because Respondents had no evidence or studies revealing the health and abundance of rockfish in nearshore waters, Respondents cut the old “OY” limitations in half.  This severe limitation was a “precautionary adjustment” to account for Respondents lack of knowledge or reliable data.

            Appellants, and all citizens of California, have a constitutional right to fish under the state constitution.  This right has been abridged without any evidence, data, or “rational basis.”  The conduct by Respondents in promulgating these regulations was arbitrary and capricious.  The ruling by the lower court should be reversed and the preliminary injunction granted.

                                                                                    Respectfully submitted,

                                                                                    Melvin A. de la Motte, Jr.

                                                                                    Attorney for Appellants

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