On November 17, 2003 the Governor of California issued Executive Order S-2-03 with immediate effect, requiring each California Agency, department, board, commission and office of the executive branch to immediately return proposed regulations, including emergency regulations (except those relating to health and safety) to the Office of Administrative Law (“OAL”) for further review and ordered immediate cessation of processing of any proposed regulatory action.  The next day, November 18^th, ignoring this directive, the Fish and Game Commission (“Commission”) purported to adopt a regulation the effect of which would be to close recreational fishing in California’s nearshore fishery for all species addressed in the Federal Groundfish Management Plan, excluding sanddabs, with effect from November 21, 2003 through the end of this year.

            On November 7, 2003, without any action on the part of the Director or Acting Director of the Department of Fish and Game (“Department”), a notice was issued by Patricia Wolf, a Regional Manager for the Department to interested persons, including the Plaintiffs, stating:

            (1)       The recreational fishery for lingcod, rockfish, and California scorpionfish will be closed effective 12:01 a.m. Friday, November 21, 2003 for the remainder of the year pursuant to Title 14, CCR §27.82;

            (2)       The California sheephead commercial fishery will be closed for the same time period pursuant to Title 14, CCR §52.10; and

            (3)       The Department will be requesting that the Fish and Game Commission consider emergency action to close recreational fishing for all species addressed in the Groundfish Management Plan excluding sanddabs, also to be effective on November 21, 2003. (Exh. “A”)

            Executive Order S-2-03 renders both of these actions invalid, yet the Commission and the Department insist that the closure will take effect on November 21, 2003.  This Application seeks a temporary restraining order preventing the closure as ultra vires and invalid.  Defendant’s proposal to close recreational fishing will have a profoundly negative effect and will cause irreparable damage to Plaintiffs and the public.  Aside from being invalid as the result of the Executive Order, the Defendants’ basis for ordering the closure is wholly irrational and their action is ultra vires.  Further, they have not given Plaintiffs and other affected persons adequate notice or an adequate opportunity to be heard prior to closure.

A.        Statutory Scheme.   Federal and state regulatory bodies share in the management of marine resources off California’s coast.  The Magnuson‑Stevens Fishery Conservation and Management Act (16 U.S.C. § 1801, et seq.) is the principal federal law governing marine fisheries along the West coast of the United States.  The Magnuson-Stevens Act applies to a fishery management zone encompassing an area off the coasts of Washington, Oregon and California between 3 and 200 nautical miles offshore.  This federal zone of jurisdiction is known as the exclusive economic zone (“EEZ”).

            The federal agency that manages the EEZ fishery along the coasts of Washington, Oregon and California is called the Pacific Fishery Management Council (“PFMC”).  The PFMC is guided by the Pacific Coast Groundfish Fishery Management Plan.  About 60 species of rockfish, and lingcod, are designated as “groundfish” under the management plan.  The Magnuson-Stevens Act compels the PFMC to manage and protect groundfish.

            The Magnuson-Stevens 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-Stevens 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.  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 Defendant Commission, an agency created by Article IV, Section 20 of the California State Constitution.  Fishing regulations are enforced by Defendant Department, a state agency created pursuant to Govt. Code §12800.  In 1998, the California Legislature passed the Marine Life Management Act (“MLMA”) (F&G Code §7050 et seq.[1] )  The MLMA directs Defendants 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 Defendants 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 Defendants to describe in the management plan the steps Defendants are taking to monitor the fishery and to obtain essential fishery information – including data collection and research methodologies – on an ongoing basis.  Defendants have done absolutely nothing to comply with this requirement of the 1998 MLMA legislation. This lack of data is confirmed in Sec. 8585.5 as part of the Nearshore Fishery Management Act wherein it stated, “The legislature further finds and declares that although extensive research has been conducted on some of these species by state and federal governments, there are many gaps in the information on these species and their habitats and that there is no program currently adequate for the systematic research conservation of management of nearshore fish stocks and the sustainable activity of recreational and commercial nearshore fisheries”. 

B.  Factual Background.     The federal government, through the National Marine Fisheries Service (NMFS) sets a tonnage quota for individual species of federally‑regulated fish along the entire West coast, including Washington, Oregon and California.  In 2003, the West coast tonnage quota for canary rockfish was set at 44 metric tons and the tonnage quota for lingcod was set at 841 metric tons.  Recreational fishing during 2003 is allowed in nearshore waters in California for 12 months north of Cape Mendocino.  South of Cape Mendocino to the Mexican border, recreational fishing is only allowed for six months, starting on July 1, 2003.  Lingcod are caught statewide in nearshore waters.  Some canary rockfish are caught in nearshore waters in Northern California.  However, because Defendants have completely failed to comply with the mandate of the MLMA legislation requiring them to count and monitor fish, Defendants have no idea how many tons of canary rockfish or lingcod have been caught by recreational and commercial fishermen in nearshore waters during 2003.  Instead, Defendants have relied on a federal data‑collection system that is wholly inaccurate and unworthy of any credence or consideration and that state and federal agencies have admitted is unreliable.  (Exhibit “C”)  This data comes from a federally sponsored data collection service known as Marine Recreational Fisheries Statistics Survey (“MRFSS”).  MRFSS itself acknowledges the limitations of the data: the MRFSS national web site has a “Mission” statement which says in bold type:  “It is not our mission to provide in‑season quota monitoring.”  Despite this disclaimer, Defendants used the MRFSS data to support their claim that fishing quotas have been exceeded and to support their decision to close down the fishery for the remainder of the year.  A more irrational basis for taking away the right to fish would be difficult to find.  Defendants will no doubt argue that MRFSS is the best data available to them but that argument should be given short shrift  because data that is admitted (even by Defendants) to be unreliable should not be allowed to justify the taking away of a right simply because no other data is available.  Defendants have relied on MRFSS data for in‑season quota monitoring, in violation of MRFSS own “Mission” statement. In addition, the absence of reliable data is due to Defendants’ own violation of their statutory duty to compile reliable data.  Defendants should not be permitted to profit from their own dilatory conduct.

            During the week of November 2‑8, 2003, the Pacific Fishery Management Council (PFMC) met in San Diego, California.  Under the Agenda topic “Status of Groundfish Fisheries and In-season Adjustments,” the PFMC considered data from MRFSS and the Groundfish Management Team claiming that the tonnage quota for lingcod and canary rockfish was exceeded along the west coast of the United States.  The PFMC voted to recommend closure of all recreational fishing for rockfish and lingcod in nearshore waters of California, effective “as soon as possible for the rest of the year.”  (See Exhibit “L”)  The PFMC did not close recreational rockfish angling in Washington or Oregon, other than for canary rockfish and lingcod.  This recommendation by the PFMC was passed on to Defendants, who blindly accepted the recommendation of the PFMC without any independent verification of the faulty catch data that related to harvest quotas for lingcod and canary rockfish.  Using MRFSS data, Defendants propose to close down all recreational rockfish angling in California for the rest of 2003 commencing at 12:01 a.m. on November 21, 2003.  This closure is based on faulty MRFSS data suggesting that tonnage quotas have been exceeded in California for lingcod and canary rockfish.

            Defendants were obligated to investigate independently the accuracy of catch‑data that provided the basis for the closure recommended by the PFMC.  Defendants knew that the data was unreliable and acted arbitrarily and capriciously in blindly accepting the MRFSS data and using it to justify the closure.  Defendants completely failed to consider the irreparable injury that would result to plaintiffs and other citizens of California caused by this unwarranted fishing closure.  Defendants failed to consider the benefits of limiting the closure to lingcod and canary rockfish; an action that would address the claim of exceeding the tonnage quota for these species, but allow recreational anglers to continue fishing for other allowable rockfish.

            In March, 2001, the Commission adopted regulations which provide authority to the Department to close fishing for certain fish species in nearshore waters if and

“When the Department determines, based upon the best available scientific information, that an annual harvest limit (harvest guideline) establishing regulation by the National Marine Fishery Service for lingcod, rockfish or a subgroup of rockfish, and/or California scorpionfish in the California recreational fishery has been exceeded or is projected to be exceeded prior to the end of the year, the Department may close the recreational fishing for lingcod, rockfish, a subgroup of rockfish and/or California scorpionfish in all or part of the Northern, Central or Southern rockfish and lingcod management areas depending on the level of lingcod, rockfish, a subgroup of rockfish and/or California scorpionfish catch in each area for the balance of the calendar year”.  Title 14 CCR § 27.82; and see, Title 14, CCR § 52.10.

            A Regional Manager of the Department on November 7, 2003 issued a notice that the recreational fishery for lingcod, rockfish and California scorpionfish and the commercial fishery for California sheephead would be closed from November 21^st through the end of this year.  No order effecting the closure has yet been signed by the Director, no notice of hearing has been provided, no hearing conducted by the Director, and the required 10 days’ notice following the action to close has not occurred.  The procedure for adoption by the Director of emergency regulations has simply not been followed.

            On November 17, 2003, the Commission issued a news release that it had scheduled an emergency teleconference call for Tuesday, November 18, “to consider conforming California’s 2003 sportfishing regulations with the recently amended Federal Recreational Groundfish Rules scheduled to take effect on November 21, 2003” and “to consider closing the recreational fishery for ocean whitefish through the end of the year.”  (Exhibit “B.”)  Ignoring the fact that the PFMC has no jurisdiction over state waters except to recommend action, the news release inaccurately states, “The statewide federal closures were adopted on November 5 by the Pacific Fishery Management Council (PFMC).  The PFMC’s actions prohibit recreational and commercial fishing for groundfish in most waters off of California’s coastline.”  With full knowledge of Executive Order S-2-03 signed the previous day, the Commission ordered the closure of recreational fisheries in California.  (Decl. of Fry, ¶¶4-5.)

            The actions of Defendants in closing down all rockfish angling for the rest of 2003 is arbitrary and capricious and ultra vires based upon the Executive Order.  The closure will cause immediate and irreparable harm to Plaintiffs.  This Court should issue an order immediately restraining the closure and compelling Defendants to Show Cause why such restraining order should not become a permanent injunction.

            II.  ARGUMENT

A.        Defendants’ Actions in Closing Recreational Fishing in California for the Remainder of the Year Are Stayed by Executive Order S-2-03.

            Plaintiffs understand that the Commission’s telephone conference on November 18, 2003, held to consider conforming California’s sportfishing regulations with the recently amended Federal Recreational Groundfish Rules, was held pursuant to Sec. 240 which allows the adoption of regulations as an emergency action after at least one hearing.  The Commission’s right to take emergency action is governed by Sec. 240(a) which provides:

“Notwithstanding any other provisions of this Code, the Commission, when promulgating regulations pursuant to any authority otherwise vested in it by this Code may, after at least one hearing, adopt an emergency regulation or order of appeal pursuant to Section 11346.1 of the Government Code if it makes either of the following findings:

(1)  That the adoption of a regulation or order of appeal of a regulation is necessary for the immediate conservation, preservation, or protection of birds, mammals, reptiles, or fish, including but not limited to, any nests or eggs thereof.

(2)  That the adoption of a regulation or order of appeal of a regulation is necessary for the immediate preservation of the public peace, health and safety, or general welfare.  (Emphasis added)

            Govt. Code §11346.1, referred to in Sec. 240, states that the emergency regulation “shall become effective upon filing [with the OAL] or upon any later date specified by the [promulgating] state agency in a written instrument filed with, or as a part of, the regulation.”      The Commission’s emergency regulation is subject to Executive Order S-2-03 (Exhibit “G”), dated November 17, 2003, which provides

1. Each Agency, department, board, commission and office of the executive branch (hereinafter referred to as "Agency" or "Agencies") shall:

a) Subject to any exceptions the Director of the Department Finance allows for emergency or other situations relating to health and safety, request, pursuant to the California Administrative Procedure Act, the immediate return of any proposed regulation, including emergency regulations, for final adoption, amendment, or repeal or other processing by the Office of Administrative Law (OAL) for further review for a period not to exceed 180 days;

b) Subject to the exceptions described in paragraph 1a) above, cease processing, pursuant to the California Administrative Procedure Act, any proposed regulatory action, including emergency regulations, for further review for a period not to exceed 180 days;

c) Pursuant to law and the extent necessary to comply with this Executive Order, suspend or postpone the effective date of any adopted, amended or repealed regulations published in the California Regulatory Notice Register but not yet effective;

d) Reassess the regulatory impact on business of any proposed regulation for adoption, amendment or repeal described in paragraphs 1 a)-c), above, pursuant to California Government Code section 11346.3 and submit a preliminary report to the Legal Affairs Secretary within 90 days of the date of this Executive Orders . . .[2]

            The Commission’s regulation closing fishing is not one “relating to health or safety.”  The Commission was required to cease processing it pursuant to paragraph 1(a) of the Executive Order, as it was a “proposed regulation” on November 17, the date the Executive Order was issued and the Commission was required to reassess its impact on business pursuant to paragraph 1(d).  Because of the Executive Order, the Commission has no power to order closure of the recreational fishery from November 21^st.  The same is true of the Department’s proposed closure, which the Department apparently continues to insist will go into effect on November 21^st.

B.        Defendants Have a Duty to Independently Investigate and Consider the Validity of PFMC Recommendation Before Adopting Regulations Based Upon Them.

" \l 2  Since the Magnuson-Stevens Act reserves to California the right to make fishing regulations concerning nearshore fishing off California, the PFMC has no jurisdiction to make orders affecting nearshore fishing, but can only make recommendations.  Far from indicating an intention to defer to the PFMC and blindly adopt its recommendations, the California legislature has made it clear that the PFMC does not always act in California’s interests.  In Sec. 7654, adopting a hearing process for Director review and approval of PFMC regulations (§ 7652, et seq.) the legislature made clear its dissatisfaction with the PFMC, noting:

(a)       That the actions taken by the Federal Pacific Fishery Management Council have resulted in significant economic losses to California’s salmon and groundfish fisheries, have caused significant waste of fish and have failed to manage and conserve fisheries for their optimum yield . . .

(c)       That the membership of the Pacific Fishery Management Council has never included a commercial salmon troll fisherman and has at times lacked balance and representation from major fisheries subject to the fishery management plans of the council.

            Any claim that California must accept PFMC data without question, runs afoul of the legislature’s acknowledgment that “there is no program currently adequate for the systematic research, conservation and management of nearshore fish stocks and the sustainable activity of recreational and commercial nearshore fisheries.” (§ 8585.5) (Emphasis added)  In Sec. 7652, the legislature has given the Director of Fish and Game discretion to do certain acts related to conforming state regulations to the PFMC’s Fishery Management Plan thus demonstrating that the Director does not have to accept the PFMC’s recommendations without question.  Further evidence is found in the legislature’s requirement that the Director hold public hearings after a recommendation by PFMC, must provide adequate notice to the public and the appropriate standing policy committees of each house of the legislature and to the joint committee, and must take evidence of the effects any proposed regulation would have on the state fishery resources, the commercial or recreational fishing industry, and the state’s ability to manage fishery resources in state waters.  While Sec. 7652 shows willingness to defer to federally designated routine management measures (such as use of troll nets (Sec. 8496) and shrimp and prawn troll nets (Sec.  8842(b)), there is no indication that the legislature, which designed such an elaborate hearing process and required the Director to report to the legislature, had any intention to relinquish control of fishery closures to the PFMC.

            Apparently the federal government recognizes that it is a state decision as to whether to implement PFMC recommendations and the federal government’s only recourse is to initiate preemption.  In the correspondence from the U.S. Department of Commerce presented to the Commission on November 18, 2003 (Exhibit “F”) there was federal recognition that adoption of the recommended regulations was up to the Commission.  Presumably, if the federal government felt that it could mandate these regulations, it would not have requested  the state to adopt the recommendations.  A process exists whereby the federal government can attempt to preempt the field.  However, Plaintiffs submit that the federal government is unlikely to do so as its defective, faulty MRFSS data does not support the actions recommended  by the PFMC.  Plaintiffs further submit that the mere theoretical ability of the federal government to preempt the field does not require blind acceptance of whatever a federal agency recommends.

C.        Marine Recreational Fisheries Statistics Survey (MRFSS) Data Is Not Sufficiently Reliable to Be Used for In-season Monitoring and Adjustments.

" \l 2  Defendants have long known that MRFSS data is inherently unreliable and should not be used for in-season monitoring and adjustments, yet the decision by the PFMC and these Defendants to close recreational rockfish angling for the rest of 2003 is based solely on MRFSS data.  This court should give careful consideration to an almost identical situation that occurred in 2000.  (See Exhibit “C.”)  In 2000, harvest levels were set by the PFMC for lingcod and bocaccio.  The PFMC’s Executive Director, D. O. McIsaac, Ph.D., wrote to Robert Treanor, Executive Director of the Commission, claiming that harvest quotas were going to be exceeded for both lingcod and bocaccio. and requesting the Commission to take emergency action.  In response to this request, Robert C. Hight, Director of the Department, wrote a memo to Robert Treanor, advising the Commission that MRFSS data “significantly overestimates” catch of both lingcod and bocaccio.  The memo says, “It is apparent from our analysis that the MRFSS program lacks sufficient precision to be used for in-season purposes.  (Exhibit “C”)  Director Hight went on to say:

No emergency action is recommended at this time to affect bocaccio and lingcod catches in the recreational fishery during the remainder of 2000.  This is because of uncertainty in the catch estimates to date and our inability to accurately project catch for the remainder of the year. (Id.) (Emphasis added)

            MRFSS’ national web-site contains the following “Mission” statement:  “It is not our mission to provide in-season quota monitoring.” (Exhibit “I”)  Maybe MRFSS recognizes that its data is so suspect that it should never be used for in-season adjustments.  Even the federal government, which sponsors MRFSS, admits that its data-collection process is unreliable and that there is no data collection system available that is accurate enough to be used for in-season adjustments.  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 In-season monitoring and regulation 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.  (Exhibit “H”.)

In light of these facts and admissions, Defendants’ decision to close recreational fishing in California based upon MRFSS data cannot be viewed as rational, but is contrary to reason.

D.        The Commission Acted Arbitrarily and Capriciously in Accepting the PFMC’s Recommendation to Close Rockfish Angling Statewide for the Remainder of 2003 Based Solely on MRFSS Data.

            The PFMC’s vote to close all recreational rockfish angling (except for sanddabs) statewide in California was based on a claim (based solely on MRFSS data) that harvest quotas for lingcod and canary rockfish were exceeded for 2003.  The MRFSS data suggesting California exceeded its harvest quota for canary rockfish and lingcod is exaggerated by 10-20 times.  The PFMC and Defendants agree that fishing regulations and in-season adjustments must be based on the “best available scientific” data.  However, MRFSS data does not qualify as “science” by any stretch of the imagination.  Some examples demonstrate the absurdity of these statistics.

            The federal Groundfish Management Team (“GMT”) supplied to the PFMC the data that was the basis of the rockfish closure.  The top 1/3 of page 6 of the GMT report (Exhibit “E”) shows the raw MRFSS data on fish harvest in California.  [The computerized data collection program is referred to as RecFIN data].  MRFSS data claims that 370 metric tons of fish were caught in “wave 4” (July and August of 2003) between Cape Mendocino and the Oregon border in the deeper nearshore rockfish fishery (from 10 fathoms out to 27 fathoms.)  370 metric tons converts to 814,000 pounds.  The sworn declaration of Randy Fry and page 7 of Exhibit “K” shows that there were 1534 skiff launches in the two ports between Cape Mendocino and the Oregon border in July and August of 2003.  That means that these 1534 boats caught an average of over 530 pounds of rockfish per boat for that two-month period.  That assumes that every single boat was rockfish angling and none were fishing for salmon or just pleasure cruising.  The data is absurd.  MRFSS data based on observed fish concluded statewide that the average rockfish caught weighed slightly over 1.5 pounds.  It is more likely that the total catch by these 1534 launches was closer to 50 pounds per boat (and that assumes that every single boat was rockfish angling and that every boat had two passengers and they caught limits of rockfish every single day.)  The MRFSS data is exaggerated by at least 10 times.  Equally unreliable is the MRFSS data which claims that California has exceeded its harvest quota for lingcod and canary rockfish.  If the court again looks at Exhibit “E,” the raw MRFSS data claims that 509 metric tons of lingcod were caught statewide during wave 4 (July and August).  The same exhibit shows that in wave 1-3 (January-June) statewide, 37.5 metric tons of lingcod were caught.  This was during a time when rockfish angling, including lingcod was banned and the season was closed!  How was this figure arrived at?  MRFSS’s website, which spells out the numbers caught for each county and also by Southern California and Northern California, says that in the entire state during January-June 2003, a total of 18  lingcod were caught (illegally), 9 in Southern California and 9 in Northern California.  Wade Van Buskirk (to whom the MRFSS website refers all inquiries regarding the data) explained that the 9 lingcod in Northern California were observed by MRFSS employees who were checking salmon fishermen in Santa Cruz harbor and discovered these 9 illegal lingcod being taken.  Now here comes the bizarre part.  Mr. Van Buskirk admits that catching these “poachers” with illegal lingcod is extrapolated statewide … and leads to the conclusion that 37.5 metric tons were taken (illegally).  That means that MRFSS assumes that all fishermen in California are criminals and took 82,500 pounds of lingcod in January-June 2003! The same MRFSS data shows that 14.0 metric tons of canary rockfish were caught statewide in July and August of 2003.  Again, this is a total absurdity.  It is likely that the total catch has been overstated at least 10 times.

            The fault with the MRFSS survey system is in the “telephone survey” which is the basis of determining the “multiplier” of actual observed fish in the on-board survey and the dockside interviews.  MRFSS has three parts to its data collection effort.  First, it has on-board observers who go on Commercial Passenger Fishing Vessels (CPFVs - also known as Party Boats).  Second, it has employees go dockside to interview recreational skiff fishermen and count, measure, and weigh fish.  Third, it conducts a telephone survey within a 50 mile radius of fishing ports to determine “fishing effort.”  This last telephone survey leads to the absurd results.  Defendants know this and the PFMC knows this.

            Page 4 of Exhibit “E” directly addresses the problem of exaggerated “angler days”.  The GMT acknowledges that the data from 2003 suggests that fishing in July and August of 2003 is three times higher than the mean fishing days for a 24-year period of 1980-2003.  The fishing effort is supposedly 50% higher than any other year in history.  This data is probably overstated by at least 5-10 times.  When data is so exaggerated, it is deserving of no consideration at all.  It cannot be called “scientific data” and reliance upon it cannot be viewed as rational.

E.        Defendants Did Not Adequately Consider the Economic Impact of Their Action to Close Groundfishing Statewide Which Closure Will Irreparably Harm Plaintiffs and Others.

" \l 2  In Sec. 8585.5, the legislature declared that “whenever feasible and practical it is the policy of the state to assure sustainable commercial and recreational nearshore fisheries to protect recreational opportunities and to assure long term employment in commercial and recreational fisheries.”  Not only is the data supporting the closure flawed, but the economic impact on Plaintiffs and other fishermen has been ignored by Defendants.  As set forth in the Declarations of Plaintiffs, and others, their businesses and livelihood will be destroyed if their fishing for 2003 is limited to 4.5 months, particularly with the loss of Thanksgiving and Christmas.  (See declarations of Neal, Moore and CFC members attached hereto.)  The damage to be sustained, loss of customers, bookings and goodwill is irreparable.  Temporary restraining orders may be granted ex parte if it appears from the facts set forth in the declarations or the verified complaint that great or irreparable injury would result to the applicant before the matter can be heard on notice.  Code of Civil Procedure, §527(c)1.

F.        The Closure of Nearshore Fisheries and Recreational Fishing Violates Plaintiffs’ Right to Due Process.

" \l 2

            1)        The Commission Is Required to Hold a Properly Noticed Public Hearing and Give 10 Days’ Notice Before Closing the Fishery and the Teleconference Held on November 18 Did Not Satisfy Due Process Requirements.

            The “meeting” held by the Commission by teleconference on November 18 is not adequate to comply with due process or with Sec. 240's requirement that emergency regulations be adopted only after “at least one meeting.”  The Commission’s news release, transmitted on November 17, 2003, stating that it has scheduled “an emergency teleconference call” originating from Sacramento on the following day, November 18, 2003 at 2:00 p.m., appears to be an attempt to comply with the hearing requirement.  If so, it is pitifully inadequate.  One day’s notice of a telephone conference is certainly not adequate.  The telephone conference originated from a conference room in Sacramento that holds approximately 40 people.  Although four of the five Commissioners apparently participated by telephone, members of the public were not allowed  to do so.

            Furthermore, the Commission is a state agency whose actions must be taken openly and their deliberations conducted openly.  Government Code §§ 11120 and 11123.  Government Code §11125 provides that notice shall be provided at least 10 days in advance of the meeting.  The Commission must comply with the 10 day notice requirement of Government Code §11125 unless it is holding an emergency meeting pursuant to Government Code §11125.4 or 11125.6.  Neither of these emergency exceptions applies to the Commission’s November 18 meeting, as none of the special circumstances set forth in Section 11125.4 apply nor is this Commission action an appeal of a closure or restriction in a fishery adopted to pursuant to Sec. 7710 of the Fish & Game Code as no action has been taken by the Director pursuant to Sec. 7710.  The Commission cannot argue that it was not “practicable” to have meetings (or even one meeting) on the coast as required by Sec. 7059(1).  Such an argument would be spurious.  The PFMC issued its recommendation on November 5 and the commission has had ample opportunity to arrange a public meeting with notice sufficient to allow Plaintiffs and other interested persons to attend.

            The Commission appears determined to prevent a public hearing on the closure issue, even going so far as to cancel the mandatory public meeting it was required to hold in the first 10 days of this month pursuant to Sec. 206 for the purpose of considering and adopting revisions to regulations.  The Commission had arranged the meeting, publicized it, and had booked hotel rooms at the same hotel in San Diego where the PFMC was holding its meeting.  Had it been held as arranged, it would have occurred almost immediately after the PFMC made its recommendation to close fishing and the issue would, without doubt, have given rise to considerable input from interested parties.  On or about November 1, 2003, the Commission’s meeting was abruptly cancelled, ostensibly because of the Southern California wildfires.  This excuse is suspect, not least because the fires did not prevent the PFMC’s meeting from going ahead.  It is difficult to avoid the conclusion, because of the timing and the unprecedented failure of the Commission to hold a meeting mandated by statute, that the Commission cancelled the meeting precisely to avoid a public hearing on the issue.

             Sec. 7050(b) includes the following as an objective of the State’s policy to conserve and manage marine resources:

Involve all interested parties, including, but not limited to, individuals from the sport and commercial fishing industries, agricultural industries, coastal and ocean tourism and recreational industries, marine conservation organizations, local governments, marine scientists, and the public in marine living resource management decisions.  (F&G Code § 7050(b)7.)

            There is simply no excuse for the Commission’s failure to adhere to these policies.

            2)        The Director of the Department of Fish and Game Is Required to Hold a Hearing Before Implementing the Proposed Closure.

            Emergency regulations by the Department are governed by Sec.7710 which provides:

(a)       If the director determines, based on the best available scientific information, or other relevant information that the director possesses or receives, and on at least one public hearing in the area of the fishery, that taking in a fishery is being conducted in a manner that is not sustainable, the director may order the closure of any waters or otherwise restrict the taking under a fishing license in state waters of that species.  Any closure or restriction order shall be adopted by emergency regulation in accordance with Chapter 3.5 (commencing with Section 11340) of Division 3 of Title 2 of the Government Code.

(b)       The director shall bring to the attention of the commission within seven working days any regulations adopted pursuant to this section.  Any regulations shall be effective for only 30 days unless the commission extends the closure or restriction under any authority it may have, or unless the director orders another closure or restriction, consistent with the requirements of subdivision (a).

            Hence, the Director may only order closure of waters or otherwise restrict the taking of a particular species, after conducting at least one public hearing.  Indeed, his decision to issue such an order must be based upon at least one public hearing.  Not only has no public hearing been held, but no action has been taken by the Director. 

            Another provision which authorizes the Director to regulate the seasons for taking of fish is Sec. 7652, which permits the Director, upon the recommendation by the PFMC of a Fishery Management Plan or amendment thereto, to conform state law or regulations of the Commission to the Fishery Management Plan or amendment thereto provided the Director finds that the action is necessary to achieve optimum yield in California and that it is necessary to avoid a substantial and adverse effect on the plan by that state law or the regulations.  Sec. 7652 authorizes the Director to adopt regulations governing phases of the taking of fish if he makes such a finding.

            If Sec. 7652 is applicable in this case, a hearing is required, pursuant to Sec. 7652.1(a), which states that the Director “shall hold a public hearing or hearings in the area of the fishery under consideration after a recommendation by the [PFMC] to the Secretary of a fishery management plan or amendment thereto pursuant to the Act or after approval by the Secretary of a fishery management plan or amendment thereto.”  The hearing is required to be held not less than 4 days after the recommendation by the PFMC to the Secretary of a fishery management plan or amendment thereto or after the approval by the Secretary of a fishery management plan or amendment.  Fish &Game Code §7652.1(b).[3]         Nor can the Commission’s belated notice cure the Director’s failure to give notice under Sec. 7652 as the statutory scheme requires that the hearing be held not less than 4 days after the PFMC’s recommendation.  That deadline, of course, has long passed.

            3)        The Department Has Not Given Adequate Notice of the Intended Closure.

            14 CCR §27.2, pursuant to which the Department is closing recreational fishing for lingcod, rockfish and California scorpionfish, states that the Department may close the recreational fishery for those fish when the Department determines, based on the “best available scientific information,” that an annual harvest limit established in regulation by the National Marine Fisheries Service for those fish, in the California recreational fishery has been exceeded or is projected to be exceeded prior to the end of the year.  14 CCR §52.10, dealing with sheephead, also refers to closure of the fishery by “the Department.”  Each provision requires the giving of no less than 10 days notice of any recreational fishery closure.  Sec. 27.82(h) provides, “The Department shall give the public and the National Marine Fishery Service no less than 10 days notice of any fishery closure implemented pursuant to this Section by a Department news release.”  Sec. 52.10(e) states that the Department “shall give Nearshore Fishery Permit holders no less than 10 days notice of any commercial fishery closure pursuant to this Section via a notification letter sent to the permitee’s address on file with the Department.”  The notice provided in this case was signed by Patricia Wolf, Regional Manager of the Marine Region.  However, the Director has made no order with regard to the closure of the fisheries, even for lingcod, rockfish, scorpionfish and sheephead.  The Regional Manager has no authority to close nearshore fishing, even for these fish.

            The Department is administered through the Director.  F&G Code § 700.  The Director is responsible to the Commission for the administration of the Department in accordance with policies formulated by the Commission.  F&G Code § 703(a).  All employees of the Department are responsible to the Director.  Id. § 704(a). Nothing in the Code or the regulations gives any regional manager the power to close a recreational fishery.  Although the regulations give many powers to the regional managers, the power to close fisheries is not among them.[4]  Past orders of closure have been ordered by the Director and Plaintiffs contend Ms. Wolf’s apparently unauthorized action of providing notice of closure which has not been ordered is ultra vires and ineffective.  

            Unless one assumes that the director is merely a rubber stamp for the regional manager’s directives, it is plain that the notice given is notice of an event – the closure of recreational fisheries – which may or may not occur, depending upon whether the Director signs the order.  In short, it is contingent notice.  Just as the service of a proposed judgment cannot start the time running to file a notice of appeal (because the judgment may or may not be signed), the giving of notice of an agency action which may or may not occur is not adequate notice.

            The 10-day notice provision at least recognizes that what is at stake with a closure of this kind is not just the right of California citizens to fish, but also, for many of them, and certainly for the Plaintiffs in this case, their livelihood.  The notice period, if notice is adequate, allows them to organize and order their businesses and their lives around the impending closure.  If, however, there is uncertainty as to whether the closure will occur as in this case, they cannot do so, and it is unfair to expect them to do so.

                                                                                    Respectfully Submitted,

Dated:  November __, 2003

                                                                                    Shaunna Sullivan

                                                                                    Melvin A. de la Motte, Jr.

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