MELVIN A. DE LA MOTTE, JR. (State Bar No. 56867)
Attorney at Law
1239 Higuera Street
Attorney for Petitioners and Plaintiffs.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

 IN AND FOR THE COUNTY OF SAN LUIS OBISPO

INTRODUCTION

1. 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.  Since November 1, 2002, recreational

 rockfish angling has been banned along the coast of California.  Nearshore fishing is not scheduled to reopen until July 1, 2003.  If the rockfish regulations for 2003 are allowed to remain in full force and effect, petitioners and many other citizens along the Central Coast will suffer irreparable financial harm.  The current fishing closure by Respondents is not based on any surveys, studies, or reliable data indicating that any of the nearshore species of fish are endangered or even overfished.  The closure by respondents is arbitrary, capricious, and without any evidentiary basis.

2. Petitioner CENTRAL COAST FISHERIES CONSERVATION COALITION (hereafter referred to as CCFCC) is a non-profit mutual benefit corporation with members in San Luis Obispo County.  These anglers seek to preserve their rights to rockfishing opportunities along the Central Coast.
3. Petitioners challenge the regulations which have closed nearshore recreational fishing until July 1, 2003 and reduced recreational limits for rockfish in effect when fishing reopens in July.  The regulations under attack in this petition are referred to hereafter as “the new rockfish regulations.”
4. The development of the new rockfish regulations represented an unlawful delegation of legislative power, and the regulations reflect an arbitrary and capricious abuse of administrative discretion.  Petitioners seek to enjoin enforcement of the new rockfish regulations because they violate fishing rights and will cause irreparable financial harm to Petitioners VIRG’S LANDING, INC., PATRIOT SPORTFISHING, INC., and many other members of Petitioner CCFCC.  The new rockfish regulations unfairly and unlawfully limit access to a public resource.
5. The new rockfish regulations are based on an assumed depletion of nearshore fisheries, but the administrative record shows that none of the fish species to be regulated by the Department of Fish & Game are considered endangered species, and that none are even considered to be “overfished.”  In spite of directives by the state legislature commanding Respondents to survey the population of nearshore species of fish, the Respondents have failed or refused to conduct any population surveys or studies concerning the nearshore

 fish to be regulated.  Respondents have many duties mandated by legislation.  One duty is

 to develop a Nearshore Fishery Management Plan (hereafter “Nearshore Plan”).  Respondents admit that they have spent all their time and effort on developing the Nearshore Plan and have not had time or staff to survey fish stock conditions in the nearshore fishing zone.  Petitioners contend that this flimsy excuse does not justify closing down recreational fishing.

6. One might assume that even though there is not a current rockfish stock assessment that the Respondents must have some surveys of the nearshore fishery from the recent past that justify these closures.  Even this assumption would be untrue.  Respondents do not have any surveys, even from the recent past, showing that any nearshore species are overfished.  The current closure has no justification at all.
7. The nearshore regulations are based on whim and expedience, not evidence and reason.  These regulations exist because the California Legislature delegated unbridled discretion to the regulators to develop the Nearshore Plan.  The Marine Life Management Act of 1998 (Fish & Game Code §7050, et seq.) directed the Department of Fish & Game to prepare the Nearshore Plan based on any information, no matter how arbitrary, in the unfettered discretion of the Department, so long as the gathering of that information did not “substantially delay” implementation of the plan.  So, the legislative standard was expediency, with no concern to scientific evidence or reliable data.  It is this standard that is the basis of the current rockfish regulations.
8. The absence of a reasonable and reliable legislative standard is reflected in the arbitrary and capricious regulations now in force.  Fish species said to be “healthy” by the Department of Fish & Game are subject to prohibitive regulation.  The Department admits that anglers are currently seeing more bocaccio (one of the species to be regulated) than ever before.  The department also admits that “new scientific information from stock assessments done in 2003 may show that we can allow for more fishing opportunities,” but Respondents have closed the fishery on the Central Coast (and crippled businesses that depend on recreational fishing) anyway.  Reliable and readily-available data regarding fish

 stocks were ignored, while unreliable sources and whim and caprice were used.  The

 Department of Fish & Game has set important regulatory fish-take labeled total allowable catch (TAC) and optimum sustainable yield (OY) which are not based on any scientific evidence concerning the species’ abundance or any reliable data.  Instead, the TAC and OY regulations are based on “precautionary” figures lacking any scientific basis.  In their rush to regulate, Respondents have also failed to consider the severe economic impact these regulations will have across the state.

9. Petitioner requests that Respondents be enjoined from enforcing the new rockfish regulations and requests a declaration of their invalidity.  Petitioner requests a judgment that will return California’s ocean anglers to the open season and bag limits that were in effect in September of 2002.

PARTIES

10. Petitioner and Plaintiff 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 CCFCC and its membership will be directly affected by the regulations at issue here, and must comply with the new rockfish regulations.
11. Petitioner and Plaintiff 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 current 2003 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 new rockfish regulations.
12. Petitioner and Plaintiff 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 current 2003 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 new rockfish regulations.  

13. Respondent and Defendant 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.
14. Respondent and Defendant 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.
15. This action involves the enforcement of important rights affecting the public interest – from Disabled American Veterans who previously enjoyed therapeutic fishing trips in nearshore waters to children who will have limited access to nearshore waters because of the financial impact of the regulations on Sportfishing vessels.  Accordingly, should petitioners prevail in this action, petitioners will confer a significant benefit on the citizens of the state of California.  Petitioners are therefore entitled to an award of reasonable attorneys’ fees pursuant to California Code of Civil Procedure §1021.5.
16. This action is also commenced pursuant to California Government Code §800 which permits an award of $7,500 in attorneys’ fees in those actions which overturn agency decisions, such as those decisions challenged herein, that are arbitrary and capricious.

JURISDICTION,VENUE AND STANDING

17. This Court has jurisdiction over the matters alleged herein pursuant to §1094.5 and/or §1085 of the Code of Civil Procedure.
18. Venue of this action is proper in the County of San Luis Obispo pursuant to CCP §393(1)(b).  Most members of Petitioner CCFCC reside in San Luis Obispo County.  Both VIRG’S LANDING, INC., and PATRIOT SPORTFISHING, INC., are businesses

 located in San Luis Obispo County.   The effects of the administrative action complained

of herein will be felt in San Luis Obispo County.

19. Petitioners have complied with any and all conditions precedent to the institution of this action and have exhausted any and all available and required administrative remedies.  Steve Moore of PATRIOT SPORTFISHING, INC., and Darby Neil of VIRG’S LANDING, INC., and other members of CCFCC have personally appeared at the public hearings that preceded implementation of the 2003 rockfish regulations and objected to the regulations.  Steve Moore, sole shareholder of PATRIOT SPORTFISHING, INC., and a member of the CCFCC, appeared at the October 25, 2002 hearings of the Fish and Game Commission and objected to the proposed 2003 rockfish regulations.  These objections by Steve Moore, Darby Neil and other members of CCFCC at public hearings satisfies all administrative law requirements and confirms standing to bring this action.  To the extent Petitioners and Plaintiffs failed to exhaust all administrative remedies, such failure, which Petitioners and Plaintiffs deny, is excused by the doctrine of futility and because the Respondent’s lack power to correct the Legislature’s improper delegation of legislative power.

RELEVANT HISTORY

Federal Regulatory History

20. Both federal and state regulatory bodies share in the management of marine resources off California’s coast.  As it relates to this action, the federal government regulates the deep water fishery (beyond 120 feet deep) and the state government regulates the nearshore fishery (from the shore out to 120 feet in depth).  The federal and state regulatory bodies are supposed to coordinate their efforts and share data with a goal to promulgating unified regulations (more on this later).
21. The federal regulatory body, created by the Magnuson-Stevens Fishery Conservation Management Act, that regulates the deep water fishery is the Pacific Fisheries Management Counsel (hereafter referred to as the “PFMC”).  The PFMC is composed of state and federal agency representatives together with fishing representatives from California, Oregon, Washington, and Idaho, and a Native American representative.

22. In 1996, the Magnuson-Stevens Fishery Conservation and Management Act was amended

by the Sustainable Fisheries Act.  This amendment called for the creation of a fishery management plan by federal authorities.  Thereafter, the PFMC developed and implemented the Pacific Coast Groundfish Management Plan to manage groundfish fisheries in water deeper than 120 feet. 

23. The PFMC proposes federal regulations action with respect to West Coast Marine Fisheries, including groundfish.  The PFMC is supposed to receive information from Respondents based on current stock assessments concerning the health of nearshore fish species.  The PFMC is also supposed to receive from Respondents data concerning the tonnage taken by recreational and commercial fishing from the nearshore fishery.  This information is supposed to be combined with data collected by the federal government concerning federal groundfish fisheries.  With this combined information, the PFMC is supposed to make “recommendations” back to the CALIFORNIA FISH AND GAME COMMISSION concerning regulations for the coming year.  In this way, the regulations for federal and state waters can be somewhat unified.  However, when the PFMC has requested data and surveys on the health of nearshore fish species, the representative of Respondent CALIFORNIA FISH AND GAME COMMISSION (who is an employee of Respondent and also sits on the PFMC panel) has responded that the State of California does not have any surveys, scientific studies, or reliable data on the health of nearshore fish species.  Respondent has also been unable to provide the PFMC with reliable data about the tonnage taken by recreational fishing.  When the PFMC has inquired as to what the State of California wants to do about their failure to comply with federal guidelines requiring the above information, the representative of Respondent has “picked a number out of the sky” for proposed TAC and OY for California fishing interests.  The representative of Respondent has failed and refused to explain where the tonnage number comes from.  This tonnage number is the number subsequently accepted by Respondent DEPARTMENT OF FISH & GAME as a basis for 2003 rockfish regulations.  It is this number drawn from thin air that is the basis of the current closure of

 recreational fishing along the coast of California.  When Respondents try to excuse their

own arbitrary and capricious behavior by saying that they are just following federal PFMC suggestions, this claim is ludicrous.  The tonnage numbers suggested by the PFMC are baseless numbers taken out of thin air by Respondents and fed to the PFMC, who turn around and recommend the same unreliable tonnage numbers back to Respondents.  Hiding behind a “preemption doctrine” claim has zero merit in this case.

24. In recent years while Respondents were finalizing the Nearshore Plan, they simply mimicked, with no supporting study, surveys, or analysis, regulatory changes imposed in deeper federal waters.   However, it has also become clear in recent years that the health of fisheries in federal waters (beyond 120 feet in depth) is different than found in nearshore waters.  Many of the fish that live is deeper waters are seldom found in shallow waters.  Likewise, there are many shallow water species that are not found in deeper waters.  Additionally, trawlers dragging the bottom of the ocean ply their trade in deeper waters, but are not found in nearshore waters because they will ruin their nets on the nearshore rocks.  Therefore, federal and state regulations have not always been parallel.  Finally, in 2002 the PFMC determined that one species of fish, bocaccio, warranted closing down federal waters completely.  Federal waters are closed to recreational fishing along the coast of California indefinitely.  Since federal waters are now closed indefinitely, Respondents can no longer “piggy back” on the regulations of the PFMC.  Since Respondents have no current surveys or scientific data on the health of any of the 19 nearshore fish species, they have no information upon which to base nearshore regulations.  Respondents’ answer to the dilemma posed by their failure to comply with legislative mandate compelling them to regularly assess and monitor the health of nearshore fish species is to pick numbers out of thin air and close down recreational fishing for half of the year.  This arbitrary and capricious behavior must be set aside.

State Regulatory History

25. The Fish and Game Code merely provides that California regulators “may” take action to conform state to federal law if state regulators determine that the action is necessary to

avoid a substantial and adverse effect on the state’s fishery management plan.  Fish & Game Code §7652.  Federal provisions are substantially similar.  See 16 U.S.C.S. §1856.  The CALIFORNIA FISH AND GAME COMMISSION maintains authority under the Marine Life Management Act (discussed below) and the COMMISSIONS general sport fishing regulatory authority under Fish & Game Code §200, et seq. to regulate nearshore species in accordance with California law.

26. In 1998, the California Legislature passed the Marine Life Management Act (MLMA), codified in Fish & Game Code §7050, et seq.  Among other things, the MLMA directed the DEPARTMENT OF FISH & GAME to develop, and the FISH AND GAME COMMISSION to adopt, Fishery Management Plans as the primary basis for managing California’s sport and commercial marine fisheries.
27. The MLMA delegated legislative responsibility to the executive branch of the California state government, in violation of the Separation of Powers Clause of the California Constitution. Cal. Constitution, Article III, Section 3.
28. Under the MLMA, the FISH AND GAME COMMISSION developed the Nearshore Fishery Management Plan.  Nineteen species of fish have been designated as “nearshore fishes” for purposes of the Plan.  14 C.C.R. §1.90.  “Nearshore fisheries” are ocean waters extending from the shore to a depth of 120 feet, or approximately one nautical mile from the shore.  See 14 C.C.R. §1.90(d); Fish & Game Code §8586(c).
29. The MLMA required the preparation and adoption of a Nearshore Fishery Management Plan no later than January 1, 2002, and implementation of the Plan within 60 days of adoption.  Fish & Game Code §7078.  External peer review of the scientific bases of the Fishery Management Plan is mandated by sections 2858 and 7062 of the Fish & Game Code.  The DEPARTMENT OF FISH & GAME purportedly found some scientific peer review comments on the Plan to be unclear, and determined in late 2001 that the adoption period would be extended until August 2002.
30. The scientific peer review of the Plan noted, among other things, that little is known about the biomass or appropriate harvest rates for nearshore species, and that “it probably is not

 possible to estimate the unfinished biomass of any of the 19 nearshore species.”  The peer

review criticized the Plan’s reliance on figures used by the PFMC to set harvest levels, noting that the Plan failed to show that harvest rates appropriate for deep waters would also be appropriate for nearshore fisheries.  The DEPARTMENT OF FISH & GAME admitted in response that for several nearshore species, “shelf (deep water) species information is the closest related species information that is available,” that they were operating under “data poor” conditions regarding fish populations, and that “We need to gather better information and move from a data poor to a data moderate level of information.”

31. On May 9, 2002, the DEPARTMENT OF FISH & GAME presented the Nearshore Fisheries Management Plan to the FISH AND GAME COMMISSION.  On October 25, 2002, an adoption hearing for the proposed regulations was held in Crescent City, California.  The final administrative decision of the FISH AND GAME COMMISSION was completed at that hearing.  The regulations were later finalized and sent to the Office of Administrative Law for approval.   Petitioners are informed and on that basis believe that the Office of Administrative Law approved the regulations on or about January 9, 2003, and sent the regulations on to the Secretary of State to become law.

REASONS WHY THE NEW ROCKFISH REGULATIONS SHOULD BE VOIDED

32. The new rockfish regulations should be voided for at least the following reasons:

(a)    The regulations were developed and adopted without sufficient legislative direction, in violation of the Separation of Powers doctrine of the California Constitution;

(b)   Respondents failed to adhere to scientific guidelines and standards established by the MLMA and the Fish & Game Code (the regulations are actually in conflict with these provisions), and Respondents’ assessment and allocation calculations are admittedly based on “precautionary” estimates (guesswork) rather than scientific data.

(c)    Respondents conducted an incomplete (nonexistent) and improper assessment of the economic impact of the regulations, and funding for the administration and enforcement of the regulations will violate State law (see Paragraphs 42-44 below).

IMPERMISSIBLE DELEGATION OF LEGISLATIVE AUTHORITY

33. Article III, Section 3 of the California Constitution state that “The powers of state             government are legislative, executive and judicial.  Persons charged with the exercise of one  power may not exercise either of the others except as permitted by this Constitution.”
34. Both the DEPARTMENT OF FISH & GAME and the FISH AND GAME COMMISSION are administrative agencies and part of the executive branch of California government.
35. The Marine Life Management Act effectively delegated to the executive branch the power to make law, and provided Respondents virtually unfettered discretion to adopt the regulations at issue here.  The standard provided in the MLMA is no standard at all, and, at its core, requires only expediency.

FAILURE TO COLLECT AND UTILIZE REQUIRED SCIENTIFIC DATA

36. The Fish & Game Code mandates that the DEPARTMENT OF FISH & GAME expend such sums “as may be necessary” for biological research and the collection of statistics and information pertaining to the conservation and protection of fish.  Fish & Game Code §1000.  The Fish & Game Code also mandates that the DEPARTMENT OF FISH & GAME “conduct research and management studies of marine fishery resources” in order to “closely monitor changes in the status of any marine fishery resource.” Fish & Game Code §1701.
37. Respondents have admittedly failed to conduct research or otherwise “closely monitor” the nearshore fishery.  Respondents admittedly possess no reliable scientific information regarding nearshore stocks.
38. The MLMA requires that each fishery management plan include a “fishery research protocol,” which does all of the following: (1) describe past and ongoing monitoring of the fishery, (2) identify “essential fishery information” for the fishery, including, but not limited to, age and growth, minimum size at maturity, spawning season, age structure of the population (if essential fishery information is lacking, the MLMA requires that the plan identify means to obtain the information), and (3) describe the steps the Department shall

take to monitor the fishery and to obtain essential fishery information – including data

collection and research methodologies – on an ongoing basis.  Fish & Game Code §7081 (a)-(c).  Respondents have completely failed to comply with the requirements of the MLMA by, among other things, failing to conduct, let alone describe, any monitoring of the fishery, and failing to take steps to obtain essential fishery information.

39. Fish & Game Code §7072(b) mandates that the Nearshore Fishery Management Plan be based on the best available scientific information.  The Nearshore Plan is not based on the best scientific information available.  By way of example, but not limitation, Respondents have ignored available data from Commercial Passenger Fishing Vessels (so-called “charter boats”).  For years, the DEPARTMENT OF FISH & GAME has collected charter boat logbooks, which indicate landings for various species of fish.  Neither the DEPARTMENT or the COMMISSION have analyzed the data, or relied on the data in formulating regulations at issue here.
40. The DEPARTMENT OF FISH & GAME has admittedly failed to meet Legislative directives regarding the procurement and use of scientific evidence.  In response to public comments on the Nearshore Plan,  the DEPARTMENT admitted its failure to perform assessments on nearshore rockfish, explaining that preparation of the Plan “limited the available staff time for stock assessment.”  At present, the DEPARTMENT has only “plans to begin” the assessment for the very fish the DEPARTMENT and the COMMISSION seek to impose regulatory restrictions.
41. In the Nearshore Fishery Management Plan, the DEPARTMENT OF FISH & GAME identified 19 nearshore species to be regulated and provided the “status of the stocks” of each species.  The following chart shows the DEPARTMENTS stock assessment of each of the 19 nearshore species.  This shows the lack of evidence that is the basis for the DEPARTMENT’S arbitrary and outrageous regulations:

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///

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THE ECONOMIC IMPACT OF THE REGULATIONS

42. Respondents have failed to fully consider and/or mitigate the economic impacts of the regulations on jobs and businesses in the State of California, and have grossly underestimated the toll of the regulations.
43. Party boat operators like the petitioners and plaintiffs named herein will be seriously impacted by these regulations.  Sportfishing landings in San Luis Obispo County will be among the hardest hit, given their reliance on rockfishing.  These petitioners and plaintiffs have already been forced to sell assets, lay off employees, and restructure their businesses.  Respondents paid only lip service to these anticipated problems in adopting the regulations, and failed to fully consider the regulations’ devastating economic impact.  These petitioners and plaintiffs will suffer irreparable financial harm unless these regulations are immediately set aside and voided.
44. According to the American Sportfishing Association, the average recreational angler spends over $1,200 every year on the sport.  Hidden, but nonetheless real, is a multiplying factor that effectively triples that expenditure.  The total economic output of California’s 2.5 million recreational anglers is estimated at nearly $5 billion dollars.

FIRST CAUSE OF ACTION

[Writ of Administrative Mandamus]

45. Petitioners incorporate by reference, as though fully set forth here at, paragraphs 1 through 44 inclusive.
46. A writ of administrative and/or traditional mandate is appropriate for the following reasons:

[Unlawful Delegation of Legislative Responsibility]

47. The California legislature may, by statute, delegate quasi-legislative powers to a state agency in the executive branch, but only so long as adequate standards are provided to guide the agency in its rule-making responsibilities.
48. The Legislature gave no meaningful guidance to Respondents as to what information

 could property be used to formulate plans such as the Nearshore Plan.  The statutory directives explicitly favor expediency, and conflict with other provisions of the Fish & Game Code which contain more rigorous and scientific-oriented standards.  In developing and adopting the regulations at issue here, executive branch personnel have exercised the legislative function, in violation of the separation of powers mandated by the California Constitution.

49. By way of example but not limitation, the definition of “overfishing” in the Fish & Game Code is defined as “a rate or level of taking that the best available scientific information, and other relevant information that the commission or department possesses or receives, indicates is not sustainable or that jeopardizes the capacity of a marine fishery to produce the maximum sustainable yield on a continuing basis.” Fish & Game Code §98.
50. It is little wonder that none of the 19 species of fish to be regulated under the Nearshore Fisheries Management Plan have been declared “overfished” in California waters – neither the department nor commission could hope to meet the statutory requirement of “best available scientific information.”
51. The Nearshore Plan’s use of a vague standard permitted Respondents to develop regulations for nearshore species even though insufficient scientific evidence exists to declare the species “overfished.”  Accordingly, the scientific standard used in the NFMP is both in conflict with other governing authority and insufficient to provide administrative guidance.

[Respondents Prejudicially Abused Their Administrative Discretion]

52. In developing and adopting the regulations complained of here, Respondents failed to proceed in the manner required by both the Fish & Game Code and the Administrative Procedures Act in that, among other things, the regulations are not supported by Respondents’ findings, and the findings are not supported by evidence.
53. By way of example, but not limitation, Respondents’ principal administrative finding in support of new rockfish regulations – a perceived depletion in nearshore rockfish stocks – is not based on substantial evidence (or any evidence at all).  The administrative record

 fails to include facts, studies, or testimony that are reasonably credible and of solid value which would lead a reasonable person to conclude that the regulations are necessary.  Suspicions regarding the status of nearshore rockfish stocks are insufficient to support the regulations.

54. Additionally, Respondents refused and neglected to analyze or obtain scientific evidence available to them, including stock assessments of nearshore fish, log book data from Commercial Passenger Fishing Vessels, and other information readily available to Respondents.
55. Respondents also failed to consider or respond meaningful to peer review comments and failed to consider the economic impact of the regulations.
56. As a result of these and other prejudicial abuses of administrative discretion, as alleged herein, Respondents failed to act in a manner required by law.

SECOND CAUSE OF ACTION

[Writ of Traditional Mandate]

57. Petitioners incorporate by reference, as though fully set forth here at, paragraphs 1 through 56 inclusive.
58. Respondents, pursuant to the Fish & Game Code and Administrative Procedures Act, had mandatory duties to consider and respond meaningfully to peer review comments, consider the mandates of the Fish & Game Code regarding scientific evidence, and to gather scientific evidence to support the new rockfish regulations, among other duties alleged herein.
59. Respondents have failed and refused to act reasonably in that facts necessary to support new rockfish regulations were not obtained, Respondents failed to fully consider the evidence available to them, and Respondents’ official duties were otherwise not performed reasonably, as alleged herein.
60. As a direct and proximate result of Respondents’ failure to perform their mandatory duties and otherwise act reasonably, the new rockfish regulations have and will harm Petitioners, as alleged herein.  Sport fishing businesses, such as the named Petitioners herein, have and

will be damaged beyond repair unless these regulations are set aside and voided.  Recreational anglers, such as those in Petitioner CCFCC, will lose a satisfying sport use of nearshore fisheries, which is guaranteed to them.  Businesses dependent on rockfishing – including port restaurants, motels, fuel docks, and tackle shops – will suffer.

THIRD CAUSE OF ACTION

[Writ of Traditional Mandate]

61. Petitioners incorporate by reference, as though fully set forth here at, paragraphs 1 through 60 inclusive.
62. Petitioner VIRG’S LANDING, INC., is a charter boat operation in Morro Bay, California.  Darby Neil, the manager/operator of VIRG’S LANDING, INC., would normally have at least 15 employees working on Petitioner’s six “charter boats” as captains and crew during the first six months of a calendar year.  Additionally Petitioner would have 5-6 employees working in the office and tackle shop.  Because of the nearshore fishery closure regulations, VIRG’S LANDING, INC. has had to cut staff back to six employees.
63. If the current rockfish regulations continue in full force and effect, VIRG’S LANDING, INC., will lose approximately 1/3 of its normal annual business revenue.  The accountant has suggested to VIRG’S LANDING, INC., that they cannot survive under the current rockfish regulations and should close their doors and cease business.
64.  As a direct and proximate result of Respondents’ failure to perform their mandatory duties and otherwise act reasonably, the new rockfish regulations have and will harm Petitioner VIRG’S LANDING, INC., as alleged herein.  VIRG’S LANDING, INC., will suffer irreparable harm unless the Court enjoins the enforcement of the new nearshore fishing regulations and restores recreational fishing back to the regulations in place in September of 2002.

FOURTH CAUSE OF ACTION

[Writ of Traditional Mandate]

65. Petitioners incorporate by reference, as though fully set forth here at, paragraphs 1 through 64 inclusive.
66. Petitioner PATRIOT SPORTFISHING, INC., is a charter boat operation in Avila Bay, California.  Steve Moore, the owner/operator of PATRIOT SPORTFISHING, INC., would normally have 16 employees working on boats or in the office during the first six months of a calendar year.  Because of the nearshore fishery closure regulations, PATRIOT SPORTFISHING, INC. has had to cut staff back to three employees.  That means that 13 employees have been fired or dismissed.
67. If the current rockfish regulations continue in full force and effect, PATRIOT SPORTFISHING, INC., will lose approximately 40% of its normal annual business revenue.  Owner Steve Moore is concerned as to whether he can continue his business.
68.  As a direct and proximate result of Respondents’ failure to perform their mandatory duties and otherwise act reasonably, the new rockfish regulations have and will harm Petitioner PATRIOT SPORTFISHING, INC., as alleged herein.  PATRIOT SPORTFISHING, INC., will suffer irreparable harm unless the Court enjoins the enforcement of the new nearshore fishing regulations and restores recreational fishing back to the regulations in place in September of 2002.

FIFTH CAUSE OF ACTION

[Declaratory Relief]

69. Petitioners incorporate by reference, as though fully set forth here at, paragraphs 1 through 68 inclusive.
70. An actual controversy has arisen and now exists between Petitioners and Respondents, and Petitioners request a determination of this Court that the actions of Respondents are illegal, void, unconstitutional, and of no force or effect, and that the new rockfish regulations be set aside.
71. Respondents contend that they have fully complied with their obligations in developing and adopting the Nearshore Plan and related new rockfish regulations.  Petitioners contend that Respondents have failed to comply with their obligations, and numerous statutes, codes, and regulations, as set forth herein above, and that the new rockfish regulations should be set aside.

72. A judicial determination of this controversy is appropriate and necessary at this time.

PRAYER FOR RELIEF

            WHEREFORE, Petitioners pray for the following relief:

1.      That this Court issue an appropriate Writ of Mandate pursuant to either C.C.P. §1085 or C.C.P. §1094.5 directing Respondents to set aside the new rockfish regulations and directing Respondents to fully and properly comply with the Fish & Game Code and the Administrative Procedures Act.

2.      For a judgment declaring that the new rockfish regulations do not comply with the Fish & Game Code or the Administrative Procedures Act, and that Section 7072(b) of the MLMA constitutes an unlawful delegation of legislative responsibility, and that the new rockfish regulations are void.

3.      For an order prohibiting Respondents from taking any action to carry out, implement, or enforce the new rockfish regulations pending trial in this case.

4.      For an order commanding Respondents to set aside the new rockfish regulations, to immediately proceed to develop compliant regulations, and to return to the rockfish bag limits and open season in effect in September 2002, before the rockfish closure was implemented.

5.      For reasonable attorneys’ fees.

6.      For costs of suit incurred herein.

7.      And for such other and further relief as the Court may deem proper.

Dated:_______________________.                          Melvin A. de la Motte, Jr.

                                                                                   Attorney at Law

                                                                                   __________________________________

                                                                                   Melvin A. de la Motte Jr., Attorney for

                                                                                   Petitioners and Plaintiffs

VERIFICATION

STATE OF CALIFORNIA              )

COUNTY OF SAN LUIS OBISPO )

           I have read the foregoing PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF.

           I am the Secretary of CENTRAL COAST FISHERIES CONSERVATION COALITION, a California Non-Profit Mutual Benefit Corporation, a party to this action.  I am duly authorized by said corporation to verify this petition and complaint on behalf of the corporation.  The foregoing document is true and correct based on the knowledge of members of the Board of Directors of said corporation except as to matters stated on information and belief and as to those matters the Board believes them to be true.

           I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

                                                                                __________________________________

                                                                                   ROBERT K. HATHER, Secretary of

                                                                                   CENTRAL COAST FISHERIES

                                                                                   CONSERVATION COALITION, a

                                                                                   California Non-Profit Mutual Benefit

                                                                                   Corporation

VERIFICATION

STATE OF CALIFORNIA                )

COUNTY OF SAN LUIS OBISPO   )

           I have read the foregoing PETITION FOR WRIT OF MANDATE AND COMPLAINT

FOR DECLARATORY AND INJUNCTIVE RELIEF.

           I am the owner and sole shareholder of PATRIOT SPORTFISHING, INC., a California Corporation, a party to this action.  On behalf of said corporation I verify this petition and complaint.  The matters stated in the foregoing document are true of my own knowledge, except as to those matters stated on information and belief and as to those matters I believe them to be true.

           I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

                                                                       ___________________________________

                                                                       STEVE MOORE, Owner and sole shareholder

                                                                       of PATRIOT SPORTFISHING, INC., a California

                                                                       Corporation

VERIFICATION

STATE OF CALIFORNIA               )

COUNTY OF SAN LUIS OBISPO  )

           I have read the foregoing PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF.

           I am the manager/operator and an officer (Vice President) of VIRG’S LANDING, INC., a California Corporation, a party to this action..  I am authorized to verify this petition and complaint on behalf of the corporation.  The matters stated in the foregoing document are true of my own knowledge, except as to those matters stated on information and belief, and as to those matters I believe them to be true.

           I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

                                                                       _____________________________________

                                                                       DARBY NEIL, Officer and agent of VIRG’S

                                                                       LANDING, INC., a California Corporation

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