SUPERIOR COURT OF THE STATE OF CALIFORNIA

 IN AND FOR THE COUNTY OF SAN LUIS OBISPO

            Plaintiffs move the court for an order enjoining defendants from enforcing the 2003

California rockfish regulations concerning recreational ocean fishing in the nearshore fishery along

the coast of California.

BACKGROUND

A.  Constitutional Issues

            The First Article of the California Constitution outlines the basic rights of California citizens.  Many of these rights are identical to those described in the United States Constitution.  However, in California, there is also the cherished constitutional right to fish in the state waters of California.  In this case, defendants have abridged and violated the rights of California citizens as described in Article I, Section 25 of the California Constitution.  Certainly, there are circumstances where limitations are justified as they relate to constitutional rights.  Even Article I, Section 25 spells out that the government can set seasons and the manner of taking fish.  However, abridgment of this cherished right is only allowed when there is some reasonable and rational justification.  The use of police powers to limit and abridge constitutional rights is only allowable when some greater need provides justification for the limitation.  In the present case, the defendants have no justification for the current ban on recreational fishing in the nearshore fishery. Defendants have violated both Article I, Section 25 of the California Constitution and the “Due Process Clause” of the state Constitution found in Article I, Section 7(a).

B.  Sharing of Marine Management

            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 in depth) 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 concerning fishing.

C.  Federal Regulatory History

            The federal regulatory body, created by the Magnuson-Stevens Fishery Conservation Management Act, that regulates the deep water fishery is the Pacific Fisheries Management Council (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.  The PFMC works under a management plan called the Pacific Coast Groundfish Management Plan.  The PFMC is suppose to receive from defendants data and surveys concerning fish stocks that indicate the health and population of fish species living in the nearshore fishery.  They are also supposed to receive from defendants data on the tonnage catch by recreational and commercial fishermen in the nearshore fishery.  This data is necessary so that the PFMC can combine this information with similar data concerning the deeper waters.  Thereafter the PFMC is supposed to make “recommendations” back to defendants so

that defendants can make regulations about fishing in the nearshore fishery.  Defendants have failed and refused to supply this necessary information to the PFMC.  Therefore, the PFMC does not have necessary information and data for making recommendations back to Defendants about state regulations concerning fishing in the nearshore fishery.  The 2003 regulations concerning fishing in the nearshore fishery are a product of expedience and guesswork, not the product of scientific surveys and reliable data.

D.  State Regulatory History

            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.  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.

            There is no mandatory language in any federal or state legislation compelling defendants to take any action or institute any regulation to conform state to federal law.  Respondent and Defendant FISH AND GAME COMMISSION maintains authority under the Marine Life Management Act of 1998.  The COMMISSION regulates recreational fishing in the nearshore fishery by authority of Fish & Game Code §200, et seq.

            The 1998 Marine Life Management Act mandates that defendants monitor and regulate 19 species of fish that have been designated as “nearshore fishes” for purposes of the management plan.  The 1998 MLMA required defendants to prepare a Nearshore Fishery Management Plan.  Peer review of the proposed management plan was critical of the failure to conduct any surveys on any of the 19 fish species found in the nearshore fishery.  Instead of monitoring and surveying fish stock levels in the nearshore fishery, the defendants relied on figures and data compiled by the PFMC about the health of species in deeper waters.  There is no evidence from any source suggesting that fish stock surveys about species inhabiting deeper waters has any relationship to fish stock surveys that might be found in the nearshore fishery.  Many of the fish that live in deeper waters are seldom found in nearshore 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 would

ruin their nets on the nearshore rocks. 

The current 2003 regulations concerning fishing in the nearshore fishery are based on a complete vacuum of information about the health of all 19 nearshore fish species.  Defendants have completely failed and refused to survey the condition of the 19 nearshore fish species.  All of their regulations are based on speculation and guesswork.  The administrative record shows that none of the 19 fish species to be regulated by defendants are considered endangered species, and that none are even considered to be “overfished.”  Constitutional rights cannot be abridged on such flimsy evidence.

GROUNDS FOR VOIDING 2003 ROCKFISH REGULATIONS

A.  Constitutional Violation:  Defendants have violated Article I, Section 25 of the California Constitution protecting the right to fish in state waters.  Although defendants are accorded regulatory powers to set seasons and manner of taking fish, these rights cannot be abridged without reasonable and rational bases.  The current regulations ban recreational fishing in the nearshore fishery with no basis at all.

B.  Violation of Separation of Powers Doctrine:  Article III, Section 3 of the California Constitution states 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.”  Defendants are both part of the executive branch of California government.  The California Legislature violated the Separation of Powers Doctrine when it delegated legislative power to defendants in the Marine Life Management Act of 1998.  The defendants were given virtually unfettered discretion to adopt the regulations at issue here.  No standard at all was provided to defendants for promulgating regulations.  The only requirement in the legislation was expediency.  The violation of the Separation of Powers Doctrine voids the resulting 2003 fishing regulations concerning the nearshore fishery.

C.  Failure to Collect and Utilize Required Scientific Data:  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.  Fish & Game Code §1700(e) says that regulations and management of the nearshore fishery shall be based on “adequate scientific information promptly promulgated for public scrutiny, of the fisheries under the state’s jurisdiction” and that the management of these fisheries shall be “with the objective of maximizing the sustained harvest.”  Defendants have utterly and completely failed to comply with legislative mandate to conduct research and management studies of marine fishery resources and have failed to gather catch data to be used in establishing reasonable nearshore fishing regulations.

            The 1998 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).  Defendants 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.

            Defendants have failed to meet legislative mandates regarding the procurement and use of scientific evidence, surveys and data.  Their failure to obtain necessary data on the health of the nearshore fishery and lack of information suggesting that any of the 19 nearshore fish species are “overfished” compels the Court to set aside the current 2003 rockfish regulations and reinstate the regulations that were in effect before the nearshore fishing ban started on November 1, 2002.

D.  FAILURE TO CONSIDER ECONOMIC IMPACT:  Defendants and Respondents have failed to consider and/or mitigate the economic impact of the regulations on jobs and businesses in the State of California.

            Party boat operators like the petitioners and plaintiffs named herein have been seriously harmed by these regulations.  These petitioners will continue to be seriously impacted by these regulations unless the Court grants an injunction preventing defendants from enforcing the 2003

rockfish regulations and reinstates the regulations that were in effect just prior to November of 2002.  Sportfishing landings in San Luis Obispo County will be among the hardest hit by the current regulations because of their heavy reliance on rockfishing.  These petitioners have already been forced to lay off employees and restructure their businesses.  Many tackle shops in San Luis Obispo County are on the verge of going out of business because of the current closure of nearshore fishing.  Defendants paid only lip service to these anticipated problems in adopting the current regulations and failed to consider the regulations’ devastating economic impact.  These petitioners will continue to suffer irreparable harm unless these regulations are immediately set aside and voided.

INCORPORATION BY REFERENCE TO OTHER DOCUMENTS

            In support of this motion for preliminary injunction, plaintiffs incorporate by reference the declarations filed in support of the Application for Order Shortening Time to Set Hearing on Preliminary Injunction.  Plaintiffs also incorporate by reference all the allegations contained in the Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief on file.  Plaintiffs also incorporate by reference the Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction which shall be filed hereafter.

REQUESTED PRELIMINARY INJUNCTION

            Petitioners and Plaintiffs request that this Court grant the following injunctive relief:

1.      That Respondents and Defendants, and each of them, be enjoined from enforcing the California Fishing Regulations for 2003 that apply to recreational fishing in nearshore waters of California.

2.      That Respondents and Defendants, and each of them, be enjoined from enforcing any other fishing regulations concerning the nearshore fishery other than the regulations in effect just prior to the closure in November of 2002.

3.      Respondents and Defendants, and each of them, shall be enjoined from taking any action or imposing any regulation that would prevent or preclude recreational fishing in the nearshore fishery (under the regulations in effect in October of 2002) until this matter comes to trial or further order of this Court.  This order should remain in effect

until trial in this action or until further order of this Court.

Dated: ______________________________.

                                                                        _______________________________

                                                                        Melvin A. de la Motte Jr.

                                                                        Attorney for Petitioners and Plaintiffs

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