SUPERIOR COURT OF THE STATE OF CALIFORNIA

 IN AND FOR THE COUNTY OF SAN LUIS OBISPO

INTRODUCTION

For many years, Respondents and Defendants, together with a federal regulatory body (The Pacific Fishery Management Council) have used unreliable data coupled with a complete failure to perform necessary fish stock surveys to erode and restrict recreational fishing rights.  In 2002, for reasons unrelated to nearshore fishing, the federal government closed down all recreational rockfishing in waters deeper than 120 feet.  That complete closure of rockfishing in federal waters is indefinite and encompasses all of 2003.  Respondents were left in a position where they had no federal regulations that they needed to be “consistent with” or “parallel to”.  Therefore, Respondents and Defendants once again used unreliable data combined with no fish stock surveys and no scientific studies to come up with arbitrary and capricious regulations that prohibit recreational fishing in the nearshore fishery for six months of the year and set total catch limits based on complete guesswork.  There is no rational basis for the limitations on recreational fishing.  The 2003 rockfish regulations as they apply to recreational rockfishing in nearshore waters must be set aside and voided.

A.  RELEVANT HISTORY

Both federal and state regulatory bodies share in the management of marine resources off California’s coast.  As it relates to this action, federal waters refer to the deep water fishery beyond 120 feet in depth.  The state-regulated waters are referred to as the nearshore fishery which refers to waters from the shoreline out to 120 feet in depth.  Federal and state regulatory bodies coordinate their efforts and share data with a goal to promulgating unified regulations concerning fishing.  Historically, Respondents have mimicked federal regulations for the sake of “consistency,” not because the condition of the nearshore fishery compelled the change.  Respondents always claim that changing state regulations to conform to federal regulations is necessary to ensure consistency between California sport fishing regulations and federal regulations.

Due to the effectiveness of commercial fishing fleets plying their trade in federal waters (beyond 120 feet in depth), the federal regulatory agency, the Pacific Fishery Management Council (hereafter abbreviated “PFMC”), started seeing depletions of some deep-water species of fish.  In 1998, the PFMC increased the size limit for lingcod from 22 inches to 24 inches, and then later increased the size limit up to 26 inches.  Without any fish stock surveys or reliable data concerning lingcod populations in the nearshore fishery, Respondents went along with these changes in regulations for the sake of “consistency.”  The bag limit for lingcod was reduced from five to three fish (later it was reduced to two fish).  Respondents copied this change in the regulations for the sake of “consistency” even though there was no evidence that the change was necessary in the nearshore fishery.  In 1998, the PFMC established a three-fish recreational bag limit for bocaccio caught in California.  Even though bocaccio are rarely caught in the nearshore fishery and there were no fish stock surveys or scientific studies about the nearshore fishery

suggesting that the change was needed, Respondents went along for the sake of consistency and changed their regulations concerning bocaccio to conform to the federal regulation.  In 2000, the PFMC reduced overall rockfish bag limits from 15 to 10 fish.  Although there was no evidence or surveys to justify this bag limit change in the nearshore fishery, Respondents went along and copied the federal regulation change.  In 2000, the PFMC set a bag limit for canary rockfish at three and cowcod at one (subsequently these limits were reduced to zero).  Once again, for the sake of “consistency” the Respondents went along and changed their regulations to conform to the federal regulations.

In 1998, the California Legislature passed the Marine Life Management Act (hereafter abbreviated “MLMA”).  The MLMA directed Respondents to develop and adopt a fishery management plan for managing sport and commercial fishing in nearshore waters.  The legislation selected 19 species of fish that had to be monitored and regulated.  The MLMA directed Respondents to prepare and implement a fishery research protocol that monitors the nearshore fishery with ongoing surveys, scientific studies and compilation of “Essential Fishery Information” concerning each of the 19 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 required Respondents to describe in its management plan the steps Respondents were taking to monitor the fishery and to obtain essential fishery information – including data collection and research methodologies – on an ongoing basis.  Since 1998, Respondents have done absolutely nothing to comply with this requirement of the 1998 MLMA legislation.  Their flagrant breach of the law is the reason for the current nearshore fishery closure.

Respondents did complete a management plan as required by the 1998 MLMA legislation in August of 2002 (see Exhibit “A”).  They labeled it the Nearshore Fishery Management Plan (hereafter abbreviated “NFMP”).  Ironically, the management plan states at p. 4-147 that:

“At the core of the Marine Life Management Act (MLMA)is the principle of basing decisions on the best available scientific information as well as other information that the Department and Commission possess [Fish and Game Code (FGC)§7050(b)6 ].  With this in mind, the MLMA includes, as a general objective, promotion of marine ecosystem research that will enable better management decisions [FGC §7050(b)5 ].” (Exhibit A, p. 4-147)

On the very next page of the NFMP (Exhibit A, p. 4-148), Respondents admit their lack of data about the nearshore fishery when they say:

The 19 species included in the NFMP are in a data-poor situation.  Key EFI (Essential Fishery Information) is not available for these species… The NFMP Project management strategy requires significant increases in monitoring and assessment to acquire three critical EFI categories for each species:

•spatial and temporal estimates of abundance

•accurate accounts of total mortality (including information of species and

            location)

·        Age and growth information on a species-by-species basis are needed

(emphasis added)

In 1998, when the MLMA legislation was passed, Respondents knew that they were required to conduct thorough ongoing fish stock surveys.  Respondents had in place an extensive fish stock survey program that covered from Pt. Conception (near Santa Barbara) to Crescent City.  Instead of enlarging this plan to encompass the entire state, they cancelled the program indicating it had low priority.  In the intervening five years, Respondents have done nothing to comply with legal requirements that they monitor the nearshore fishery.

In 2001, the PFMC decided that more restrictive measures were necessary to protect four species that were labeled “overfished.”  These were all deep water species that are rarely found in the nearshore fishery.   The overfished species were bocaccio, canary rockfish, yelloweye and cowcod.  So, the PFMC closed down recreational fishing in January and February of 2001 in federal deep waters.  Respondents went along with the two-month closure in nearshore waters without any evidence or data suggesting that there was any need for closure in nearshore waters.

In 2002, the PFMC was even more restrictive. The PFMC closed down recreational fishing for four months in 2002, banning rockfish angling in March, April, November and December.  Legislative mandate required Respondents to regularly monitor nearshore species with fish stock surveys.  They are also required to keep track of total fish catch in the nearshore waters.  They did neither.  So, without any evidence about the status of nearshore fish species, Respondents went along with the proposed federal regulations and closed down nearshore fishing to recreational anglers for four month in 2002.

Data compiled by a federal agency is used by both the PFMC and Respondents.  The data is gathered by the Marine Recreational Fisheries Statistics Survey.  This data is hereafter referred to as MRFSS Data.  For many years Respondents have claimed that MRFSS Data is unreliable and should not be used for in-season purposes or to formulate regulations or set catch limits.  Respondents have asserted that MRFSS Data overstates fish catch by 6-20 times.  In spite of admissions by Respondents that MRFSS Data is unreliable and should not be used for in-season purposes, in the middle of 2002, Respondents closed down all recreational fishing for kelp greenling and rock greenling based solely on MRFSS Data (See Exhibit “E”).  In July of 2002, Respondents did the same thing again by making a mid-season change banning the take of all cabezon based strictly on MRFSS Data (See Exhibit “F”).  This same unreliable data was used as the exclusive data source to set catch limits for recreational fishing during 2003.  Then, to make things even worse, this unreliable data on total allowable catch was cut in half (a 50% reduction) for no reason or rational basis.  The reason for the reduction of allowable catch in 2003 was supposedly for “precautionary reasons.”  The reason for this alleged precaution was because of the total void of necessary information in the hands of Respondents concerning the status of the nearshore fishery.  For five years Respondents have failed and refused to comply with state Fish & Game regulations compelling them to collect fish stock surveys, conduct scientific studies and gather reliable catch data about the nearshore fishery.  They have done absolutely nothing to comply with this law.  So, the ban on recreational fishing for six months and the lowered allowable catch is really because Respondents have failed to do their own homework and have failed to comply with state law.

Mid-way through the 2002 calendar year the PFMC determined that the “overfished”

condition of bocaccio necessitated a complete closure of the deep water fishery.  Since July of 2002, the federal fishery (deeper than 120 feet) has been closed to all recreational angling.  The closure has been described as “indefinite”.  This closure has put Respondents in a bind.  They can no longer “piggy-back” on the federal regulations and no longer have a motive to mimic federal

regulations for “consistency” sake.  They have been put in a position where they have to

independently formulate regulations for the nearshore fishery.  The failure to obey the legal

mandate to monitor nearshore species by fish stock surveys, scientific studies and gathering of reliable data has come back to haunt them.  They are working in a vacuum.  So, they have used unreliable MRFSS Data to set catch limits that were based on combined state and federal mean annual catch in a period between 1994 and 1999.  This admittedly unreliable data was then cut in half for “precautionary reasons” and the fishing season was cut in half for “precautionary reasons.”  There was no catch data available for the nearshore fishery because Respondents never bothered to follow the law and compile this data.  There was no fish stock survey available about the nearshore fishery, as described above, because Respondents never bothered to follow the law and conduct these surveys.  The brunt of this arbitrary and capricious behavior has fallen on the recreational fisherman.  Constitutional rights cannot be abridged based on such flimsy and unreliable information.

B.  STATEMENT OF FACTS

[This statement of facts is based on the Administrative Record (consisting of 559 pages) lodged with the Court and such other documentary evidence submitted as Exhibits along with the filing of this Memorandum.]

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

Respondent FISH AND GAME COMMISSION is a state agency created by Article IV, Section 20 of the California State Constitution.  The COMMISION is composed of five members appointed by the Governor and approved by a majority of the membership of the senate.

Respondents are required by Fish & Game Code §200 et seq. to create annual regulations concerning fishing in state waters.  State regulated waters are called “nearshore waters.”  Nearshore waters “means ocean waters including around offshore rocks and islands extending from the shore to a depth of 20 fathoms.”  See Title 14, CCR §1.90 and the Administrative Record (hereafter abbreviated “AR”), p. 4.  “Nearshore Fish Stocks” is defined in Title 14, CCR §1.90 and includes 18 species of “rockfish” (AR, p. 4). [At many places in the AR, the NFMP, and other documents there is reference to the obligation of the state to regulate 19 nearshore fish species.  The reason for the difference in the number is because kelp greenling and rock greenling have been combined into one species referred to as greenlings] The 1998 MLMA legislation requires Respondents to regulate these 18 species of nearshore rockfish.

It is useful to note that Respondents share regulatory power with the federal government concerning marine resources off the coast of California.  Management of rockfish in federal waters (beyond 20 fathoms in depth) is the job of the Pacific Fishery Management Counsel (hereafter abbreviated “PFMC”).  The PFMC was created as a part of the Magnuson-Stevens Fishery Conservation Management Act.  Beginning in 1998, the PFMC started to impose restrictive regulations in federal waters to protect deep-water species that were “overfished”.  These limitations involved bag limit reductions, seasonal closures, gear restrictions and fish take and size limits.  Although none of these restrictions were based on information about nearshore fish species, Respondents went along with all of these regulatory changes.  Respondents take the position that they are “bound” to conform state law to federal regulations for consistency sake.  This issue is discussed in ARGUMENT AND AUTHORITIES, section 2 below.  However, it is worth noting the frequent mention in the AR on this subject.

Petitioners suggest that conforming state law to federal regulations is not mandatory based on F & G Code §7652.  Federal law also suggests that conforming state regulations to federal regulations is optional.  See 16 U.S.C.S. §1856.  The preemption doctrine is misplaced.  This is discussed in ARGUMENT AND AUTHORITIES, section 2 below.

Respondents conducted public hearings during 2002 allowing comment on potential changes in fishing regulations.  A FISH AND GAME COMMISSION meeting was held in San Luis Obispo on August 1-2, 2002 (AR, pp. 53-57).  Another public hearing was conducted in Oakland on August 29-30, 2002 (AR, pp. 142-150).  Finally, in Crescent City a public hearing was conducted where the COMMISSION voted to approve the final regulations for 2003 that became law (AR, pp. 243-248).  Only three “purported” members of the five members of the COMMISSION were present and the vote to approve the proposed regulations was unanimous (AR, p. 243 and p. 248).  Petitioners have been informed, and on that basis believe and allege, that Bob Hattoy, one of the voting members in Crescent City on the final regulations was not a qualified member of the COMMISSION because he had not been approved by a majority of the

membership of the senate.  Therefore, no quorum was present and the resulting vote was a nullity and must be voided.

            The final version of the 2003 rockfish regulations relating to nearshore ocean fishing was approved and filed with the Office of Administrative Law on January 8, 2003 (AR, p. 1).  The contested regulations that limit recreational fishing rights in nearshore waters are found in the Administrative Record, pp. 3-10.  The specific reduction to six months fishing for recreational anglers is found in Title 14, CCR Section 27.82(d)(2) (AR, p. 7, toward the top).  The total allowable catch of 541 metric tons for both commercial and recreational anglers in the nearshore waters for 2003 is described in detail at AR, p. 487.  The approval of the 541 metric ton limit by the COMMISSION is referred to at AR, p. 309, R-11.  The cursory mention of economic impact by the COMMISSION, though false and incomplete, is found at AR, pp.283-287.

It is clear from the AR that the COMMISSION contemplated at an early stage that there would be significant changes in the 2003 nearshore rockfish regulations (See AR, pp. 61-79).  After the San Luis Obispo public hearing and before the Oakland public hearing, the COMMISSION drafted an “Initial Statement of Reasons for Regulatory Action” (AR, pp. 61-79).  This was the first of many drafts of the justification by the COMMISSION for their actions.  This first draft was dated August 27, 2002.  The second draft was dated September 24, 2002 (AR, pp. 153-173).  A third draft was dated September 30, 2002 (AR, pp. 219-237).  This was labeled the “Pre-adoption Statement of Reasons” (see AR, p. 219).  A final revision of the Statement of Reasons responding to public comments at the October 25 meeting in Crescent City is found at AR, pp. 305-310.

In each and every statement of reasons for regulatory change, Respondents claim that they are compelled to conform state regulations to federal regulations in 2003 (See AR, p. 61, p. 62, p. 63, p. 65, p. 120, p. 153, p. 154, p. 156, p. 219, p. 220, p. 306).  However, federal waters are closed for all of 2003 and the PFMC has performed no surveys or studies on any of the nearshore species.  So, why would Respondents need to rely or respond to anything recommended by the PFMC?  The answer is based on the normal pattern of Respondents doing no surveys, completing

no scientific studies and gathering no reliable data about the nearshore fishery.  The Respondents

traditionally just copy the regulations recommended by the PFMC.  To excuse their lack of data and information, Respondents needed to hide behind the preemption doctrine to explain their regulatory actions.  Respondents fed a set of recommendations to the PFMC based on unreliable data and information and asked the PFMC to turn around and hand the same set of unreliable recommendations back to Respondents with the “stamp of approval” of the PFMC.  In that way, the Respondents could say that they were just following federal recommendations.  This process is clear from the Administrative Record as described below.

Some background is needed on this subject.  Members of Respondent FISH & GAME and FISH AND GAME COMMISSION also sit on the PFMC.  Respondents make recommendations to the PFMC as to what they would like to receive back from the PFMC as federal guidelines for nearshore fishery regulations.  Then, the same persons who are employees of Respondent put on their “other hat” as a member of the PFMC and receive their own recommendations.  The PFMC approves the recommendations and hands them back to Respondents.  Now Respondents can hide behind the claim that these regulations originated with the PFMC and are “binding” on

Respondents.  On page 19 of the AR, the final statement of reasons for the regulatory changes, it states:

            R-2:  Through its representation on the PFMC, the Department provides input to

            the Council based on the perspective of what is in the best interest of the state

            of California.  In the Council’s decision process related to sport fishing

            regulations for groundfish for 2003, the Commission directly provided input

            to the Council on their preferences regarding allocation of nearshore fishery

            resources, which were approved by the Council as part of their action at the

            September meeting. (emphasis added)

So, the Respondents (like a football), throw the set of recommended changes to the PFMC, then change hats and receive the recommendations as members of the PFMC.  They give the recommendations the federal stamp of approval and pass the recommendations back to Respondents who approve their own drafted recommendations and call them federally required.

Robert Hight (The Director of the Dept. of Fish & Game) wrote a memo to Robert Treanor (The Executive Officer of the Fish and Game Commission) on October 4, 2002.  In his memo, he again points out that the PFMC recommendations concerning total allowable catch in 2003 actually originated with Respondents (AR, p. 216).  Where did respondents come up with these allowable catch recommendations?  Again, some background is necessary.

The total allowable catch for 2003 in the nearshore waters is 541 metric tons allocated 80% to recreational fishermen and 20% to commercial fishing (see AR, p. 233, Response 6 and p. 244 concerning the 80%/20% split).  The source of the 541 metric tons total allowable catch is explained in the AR at pp. 486-495.

The report by Tom Barnes found at AR, pp. 486-495 is particularly instructive.  Mr. Barnes is an employee of the Department of Fish & Game.  However, he also wears a different hat as a member of the federal PFMC.  He prepared the recommendations for Respondents that were fed to the PFMC and then approved and handed back to Respondents.  This report explains why sport and commercial fishing are only allowed 541 metric tons of total catch during 2003.

The crucial language is found on AR, at p. 487:

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

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

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

                        then applying a precautionary adjustment of 50% to determine the

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

                        selected because it represents the most recent period when rockfish

                        trip limits were not constraining for the nearshore fishery.  Rockfish

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

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

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

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

The data for this statistical gymnastics came from MRFSS Data.  At Chapter 2, page 59 of the NFMP(see Exhibit “A”) is a description of how MRFSS data is collected.  The information is fed into the Recreational Fisheries Information Network (RecFIN) database.  So, the data above comes strictly from MRFSS Data.  Respondents agree that this data (which they have used to take recreational fishermen off the nearshore waters) is unreliable.  Exhibit “B” is a memo from Robert C. Hight, the Director of the FISH & GAME DEPARTMENT to Robert R. Treanor, the Executive Director of the FISH AND GAME COMMISSION dated July 26, 2000. He says on the first page of Exhibit B: 

            Analysis of CDFG (Cal. Dept. of Fish & Game) logbook data indicate

            the MRFSS estimates for the first two months of 2000 (36 mt) significantly

            overestimate the catch of bocaccio in northern California  by 32-34 mt. and

            of lingcod by about 71 mt.  It is apparent from our analysis that the

            MRFSS program lacks sufficient precision to be used for in-season

            purposes.  We believe it is best used post-season and only then if it is

            verified with other data sources, such as state sampling and logbook

            programs. (emphasis added)

Exhibit “C” is a memo by L.B. Boydstun, an employee (until recently) of Respondent and also a member of the PFMC.  He says on the first page that he has reason to doubt the accuracy of MRFSS Data.  He concludes that MRFSS Data overstates fish catch by at least six times.

In the final explanation of reasons for regulatory changes, Respondents admit that MRFSS Data is unreliable (AR, p. 310, R-15).

In spite of the fact that there is universal agreement, including admissions by Respondents, that MRFSS data is unreliable, it was the sole data source for setting the 2003 total allowable

catch to recreational and commercial fishermen in nearshore waters during 2003.

            The most powerful fact in the entire Administrative Record is the admission by Respondents that none of the 18 species of nearshore fish that they have been assigned to monitor and protect are “overfished” In the top paragraph of AR, p. 63, it states that, “None of the nearshore rockfish species are currently designated as overfished.”

In 2003, Oregon relied on the actual catch in 2000 to set harvest guidelines.  In California, for no apparent reason (other than their ignorance of the condition of fish stocks in nearshore waters), California took unreliable data from 1994-1999 and reduced that mean annual catch level by 50% (AR, p. 495, top paragraph). That type of regulatory action is arbitrary and unreasonable.

C.  GROUNDS FOR INJUNCTION

            This court should grant a preliminary injunction stopping Respondents from enforcing their 2003 rockfish regulations against recreational anglers who wish to fish in nearshore waters.  The regulations should be set aside and voided.  The Total Allowable Catch allocation to recreational anglers for 2003 should be set aside and voided.  The grounds for this injunction are

as follows:

            1.  The 2003 Regulations Concerning Recreational Angling in Nearshore Waters Violate Article I, Section 25 and Article I, Section 7 of the California Constitution.

            2.  Respondents have Failed to Comply with Legislative Mandate by Failing to Collect and Utilize Required Scientific Data.

            3.  Respondents have Failed to Consider the Severe Economic Impact of Their Regulations.

            4.  A Quorum was not Present on October 24-25, 2002 to Vote on the Final 2003 Nearshore Fishing Regulations and the Resulting Actions by the COMMSSION are a Nullity.  

D.  ARGUMENT AND AUTHORITIES

1.  The 2003 Regulations Concerning Recreational Angling in Nearshore Waters violate Article I, Section 25 and Article I, Section 7 of the California Constitution.

        Article I, Section 25 of the California Constitution provides that the people of this state

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

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

               The “due process” clause requires that limitations on the fishing right guaranteed in Article I, Section 25 must have a “rational basis”, it cannot be arbitrary and unreasonable; it must be related to a legitimate government purpose.  In Santa Monica Beach, Ltd. v. Superior Court

1999) 19 Cal. 4^th 952, 979-980, the California Supreme Court described “rational basis” substantive due process review by quoting the U.S. Supreme Court language such as: “The police power is subject to the constitutional limitation that it may not be exerted arbitrarily or unreasonably.” and “Our cases have not departed from the requirement that the government’s chosen means must rationally further some legitimate state purpose.” (Quoting Nashville, Chattanooga & St. L. Rv. V. Walters (1935) 294 U.S. 405, 415 and Nectow v. City of Cambridge (1928) 277 U.S. 183,188.)

   Hypothetically, Respondents could claim that the “legitimate state purpose” for their 2003 regulations is the need to protect the 18 nearshore species that they have been assigned to monitor and protect under MLMA legislation.  The problem with that hypothetical is that Respondents have zero evidence that any of the 18 species need protection from recreational angling.  Respondents admit that the current status of all 18 species is that none are overfished.

(See AR, p. 63, top paragraph).  The 1998 MLMA legislation clearly mandated that Respondents monitor the fish stocks and health of 18 nearshore species.  In the 5-year interim period, Respondents have done absolutely nothing to comply with this mandate of the California legislature.  The only reason that Respondents have prohibited recreational angling in nearshore waters for six months of the year and set an unreasonably low annual allowable catch is because they have failed to obey the law and have no knowledge about the status of nearshore fish species.

“Lack of knowledge” is not a rational basis upon which fishing rights can be abridged. 

Protecting the 18 nearshore fish species would be a legitimate governmental concern that would justify limitations of the right to fish.  However, since none of the 18 species is “overfished” and Respondents have done nothing to comply with the mandate to monitor these 18 species, the right to fish cannot be abridged for “precautionary” reasons.  The ignorance and lack of knowledge by Respondents is their own fault.  They cannot lay the brunt of their lack of knowledge on the recreational fisherman.

               2.  Respondents have Failed to Comply with Legislative Mandate by Failing to Collect and Utilize Required Scientific Data.

In 1998, the California Legislature passed the Marine Life Management Act (MLMA).  This legislation directs Respondents to develop and adopt a fishery management plan for managing sport and commercial fishing in nearshore waters. The MLMA is codified in F&G Code section 7050, et seq.  The mandatory language about collection of scientific data is found in F&G Code §7081.  In pertinent part, this section says that Respondents:

                               …shall include a fishery research protocol that does all of the

                               following:

(a)   Describe past and ongoing monitoring of the fishery.

(b)   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,

and, if essential fishery information is lacking, identify the

additional information needed and the resources and time

necessary to acquire the information.

(c)    Indicate the steps the department shall take to monitor the

fishery and to obtain essential fishery information, including the

data collection and research methodologies, on an ongoing

basis.                    

      We know that Respondents were keenly aware of this legislative mandate.  When Respondents completed there management plan called the Nearshore Fishery Management Plan (NFMP), they said that,

“At the core of the Marine Life Management Act (MLMA)is the principle of basing decisions on the best available scientific information as well as other information that the Department and Commission possess [Fish and Game Code (FGC)§7050(b)6 ].  With this in mind, the MLMA includes, as a general objective, promotion of marine ecosystem research that will enable better management decisions [FGC §7050(b)5 ].” (See Exhibit A, p. 147)

After acknowledging the importance of this legislative mandate, Respondents go on to admit that they are “data-poor” on these issues (like in no data at all).  On page 148 of Exhibit A, the NFMP describe the data-poor situation and what needs to be done to correct the problem:

The 19 species included in the NFMP are in a data-poor situation.  Key EFI (Essential Fishery Information) is not available for these species… The NFMP Project management strategy requires significant increases in monitoring and assessment to acquire three critical EFI categories for each species:

•spatial and temporal estimates of abundance

•accurate accounts of total mortality (including information of species and location)

·                    Age and growth information on a species-by-species basis are needed (emphasis added)

One might by sympathetic to Respondents concerning their “data poor” condition on nearshore fish stocks, except that Respondents were heavily involved in this exact type of data collection and scientific work when the MLMA Legislation was passed.  Exhibit “D” is a report concerning this same type of fish stock survey that was performed between 1988 and 1995 for an area between Pt. Conception and San Simeon.  Although this specific report relates only to a portion of Central California, this same survey was going on from Pt. Conception all the way to Crescent City. Respondents admit that this valuable scientific information was being collected from 1987 until 1998 (See Exhibit A, p. 155).  This scientific research is described as follows:

Commercial Passenger Fishing Vessel Onboard Surveys

Between 1984 and 1998, the Department conducted two onboard survey programs of CPFVs.  The first was conducted in 1984-1989 and covered CPFV fishing trips in southern California.  The second survey covered 1987-1998 and surveyed CPFV rockfish and lingcod trips from Point Conception (Santa Barbara County) to Crescent City.  Each survey collected information on catch composition, amount, size, and bycatch for selected passengers at each location fished.  While the southern California survey collected catch information by general fishing area, the central/northern California survey collected more specific location information and therefore more site-specific catch information.  Some of the results from the second survey have been used for in-season fisheries management and to supplement MRFSS data. (Exhibit A, p. 155)

               Exhibit “D” is not being introduced for its substantive value or the conclusions of the report, but to show that Respondents have previously been involved in scientific studies, fish stock surveys and data collection in the past.  Page 2 of Exhibit D explains why the survey data tends to show the health of fish stocks.  In pertinent part, it states:

   It is impossible for us to determine how many rockfishes and lingcod are

   in the ocean.  If we had this information we could make more informed

   management decisions about our fisheries.  But, since we don’t, the next

   best thing is to use indicators to assess the health of our fish stocks.  Two

   of the best and readily obtained indicators are the average length and the

   catch rate by species…

   As biologists we become concerned when we observe both the average length

   and catch rate of a species decreasing at the same time, because this

   represents a population under stress.  One result of our long-term sampling

   program is that it helps us determine the extent of variability over the

   years, including that caused by fishing, oceanic events such as El Niňos, or

   strong year classes…. None of the 15 species shown here exhibit long-term

   trends from 1988 to 1995 of declining catch rate and declining mean length.

The type of scientific studies and data gathering as described above should have been expanded to a state-wide study in 1998.  By 2003, Respondents would have had a nice base-line and five years of survey data.  They would be able to make intelligent decisions about monitoring and regulating the nearshore fishery.  Instead, they cancelled all of these research projects.  From 1998 until the present Respondents have performed none of the nearshore studies mandated by law or suggested in their own Nearshore Fisheries Management Plan.  They have failed and refused to comply with legislative mandate for no legitimate reason.  This arbitrary and unreasonable behavior dictates that the current 2003 regulations concerning recreational angling in nearshore waters be set aside and voided.

Respondents might try to hide behind a claim of the “preemption doctrine”.  They might say that their regulations were drafted to conform to federal regulations and there was no need to do the surveys and scientific studies about the condition of nearshore fish species.  This type of claim is ludicrous.

The PFMC makes regulations about fishing in federal waters.  This geographic area is fundamentally different that the shallow nearshore waters.  Different species of fish, for the most part, inhabit the deeper waters.  Most importantly, commercial fishermen drag their nets across the ocean bottom in the deeper federal waters.  These commercial fishermen have been very successful at taking fish from federal waters.  The problems in federal waters began even before 1998, but in that year the problems became so severe that a number of fish species were deemed “overfished”.  The nearshore waters do not have any of the same problems.  The commercial trawlers are not dragging their nets in the nearshore because they would be torn to shreds on the rocks.  Additionally, even by Respondents admissions, none of the 18 nearshore fish species are “overfished.”  Now that federal waters are closed indefinitely, there is no motive to conform any state regulations to federal regulations.  In the past, it made sense to have the same bag limits, length limits, species limits, and seasons to parallel federal regulations.  The Court can imagine how complicated it would be for enforcement personnel to determine whether fish coming back into port were caught in deep water or nearshore waters.  There was a motive to have parallel regulations.  But now that the federal waters are closed indefinitely, there is no motive to have similar regulations.

It was explained above how Respondents feed information and suggestions to the PFMC on what they want the federal recommendations to look like.  The PFMC then hands back the same recommendations to Respondents.  Given the fact that both state and federal statutes indicate that conforming state regulations to federal regulations is purely optional, this Court should not countenance a claim by Respondents that they had to follow PFMC recommendations. See F&G Code §7652 and 16 U.S.C.S. §1856.

3.  Respondents have Failed to Consider the Severe Economic Impact of Their Regulations.

A series of declarations by the City of Morro Bay, individuals and businesses were previously submitted to the Court in Support of Petitioners Motion for Preliminary Injunction.  These declarations are incorporated by reference.

The final “Economic and Fiscal Impact Statement” of Respondents is found in AR at pp. 283-287.  It looks like someone spent about five minutes filling out this form.  The form is so misleading that it must be labeled as false and deceptive.

On page 1, category 1 (AR, p. 283), box “a” has been mistakenly left “unchecked”.  How could Respondents possibly think that these regulations do not impact “businesses and/or employees”?  Box “c” has mistakenly been left “unchecked”.  Note the declarations of Steve

Moore for PATRIOT SPORTFISHING, INC. and Darby Neil for VIRG’S LANDING, INC.  VIRG’S has dismissed many employees as has PATRIOT SPORTFISHING.  Many of these people are currently unemployed.

On page 1, category 2(AR, p. 283), Respondents have listed only 416 businesses that would be impacted by these regulatory changes.  These 416 businesses are the Commercial Passenger Fishing Vessels licensed to operate in State waters (see AR, p. 287, A.2).  Now read the declarations by Bill Yates, Mayor of Morro Bay, Robert Koch, Leonard Willhite, Mike DeGarimore, John Solu, and David Ross.  This is just the tip of the iceberg on businesses adversely effected by these regulations.  The 9% drop in “Transient Occupancy Tax” (Motel Tax) in the first two month of 2003 in the City of Morro Bay means that the motels in this coastal community are suffering.  All the portside fuel docks in California are suffering.  All the tackle shops that rely on recreational rockfishing are suffering.  Restaurants in coastal communities are suffering.  Repair shops and parts houses that cater to recreational boaters are suffering.  The numbers of businesses suffering is in the tens of thousands.  This report by Respondents would be “humorous” if it wasn’t for the fact that it is so tragic and damaging to so many citizens of this state.

National data on the economic impact of fishing would be helpful.  In the Los  Angles Times edition of February 21, 2003, at page D8, it reports:

   …America’s 44 million anglers spend nearly $42 billion annually on

   things such as equipment, transportation and lodging, the study

   says.  These expenditures represent a 33% increase over the last 10

   years.  The study, conducted every five years by the Census Bureau

   and U.S. Fish and Wildlife Service, also finds that fishing has an

   annual economic impact of $116 billion on the economy, supports 1.1

   million jobs and generates $30 billion in wages and $7.3 billion in tax

   revenue each year.

Page 1, category 3(AR, p. 283), suggests that zero businesses will be eliminated by these regulations.  The business by Leonard Willhite will fail this coming month.  Bob’s Tackle Too indicates they are ready to close.  Both Virg’s Landing and Patriot Sportfishing are financially in trouble.  Accountants for Virg’s Landing have suggested they close their doors.  These are just a few of the many business that are on the verge of closing down because of these onerous fishing closures.  Closing down recreational rockfishing in nearshore waters was bound to ruin many businesses.

On Page 1, category 5(AR, p. 283), it suggests that no jobs will be eliminated.  This is completely false.  Many, many people are being put out of work statewide.  Respondents are so aware of this likelihood that they have a category on the home page of their web site described as a “Groundfish Disaster Relief Program.”  The program gives out grants of $1,000 or $1,500 to workers who have been laid off on account of these fishing closures.  The federal government has contributed $1.75 million to this disaster relief and the State of California is contributing matching funds of $583,333, for a total of $2,333,333.  Although the EDD information page says that it is based on commercial closures, it also says that anyone adversely affected by fishing closures may apply.  Steve Moore of Patriot Sportfishing is sending his unemployed workers to this program for aid and assistance.

On page 1, category B (AR, p. 283), it is interesting that Respondents left this whole section blank.  They probably knew that they would have to show millions, if not billions, of dollars in losses statewide.  The economic impact of Sportfishing statewide is estimated at over $4 billion.  Yet, Respondents did not bother to fill out this significant section of the Economic Impact Statement.

On page 2, category C (AR, p. 284), Respondents have conveniently referred by reference to their “Statement of Reasons” for passing these regulatory changes, implying that their behavior has some “benefit” to the people of the state.  To the contrary, as explained above, the conduct of

Respondents is not only harmful and unlawful, it violates the State Constitution.

On page 3, at the top (AR, p. 285), Respondents leave blank a question about whether the regulation changes will cost California businesses in excess of $10 million.  Since they left it blank, they suggest that the cost will not exceed $10 million.  It is likely that the total economic impact will be closer to $1 billion.On page 3, under “Fiscal Impact Statement” (AR, p. 285), it suggests that there will be no fiscal impact on any local governmental entities.  The falsity of this

claim is clear from the declaration of the Mayor of Morro Bay, Bill Yates.

On page 4, under “Fiscal Effect on State Government” (AR, p. 286), it suggests that there will be no impact.  Unemployment benefits are paid by the state of California. The “Groundfish Disaster Relief Program” described above will be paid partially by the State of California and party by the federal government.  Respondent’s response to this question is definitely false.  On the same page, under the topic of Federal funding, again Respondents have filled out the form falsely by saying that no Federal programs will be affected.

Respondents have scoffed off the whole idea about economic impact.  The declarations submitted by Petitioners show the tip of the iceberg.  Many businesses and individuals are being severely harmed by Respondent’s misbehavior.  They will continue to suffer irreparable harm unless the Court grants the relief requested.

4. A Quorum was not Present on October 24-25, 2002 to Vote on the Final 2003 Nearshore Fishing Regulations and the Resulting Actions by the COMMISSION are a Nullity.

Article IV, section 20 of the California Constitution describes the appointment and approval of members of the FISH AND GAME COMMISSION.  In pertinent part, it states:

                   (b) There is a Fish and Game Commission of 5 members

                   appointed by the Governor and approved by the Senate, a

                   majority of the membership concurring, for 6-year terms

                   and until their successors are appointed and qualified…

Only three “purported” members were present at the crucial October 24-25, 2002 meeting in Crescent City (AR, p. 243.)  One of those “purported” members was Bob Hattoy.  Petitioners allege on information and belief that he was not a “qualified” member under the state Constitution in that he had not been confirmed by the state senate.  Therefore, a quorum was not present and the vote at that hearing to approve the 2003 nearshore fishing regulations was a nullity.  The regulations are to be deemed void.

E.  CONCLUSION

In 1998, MLMA legislation was passed compelling Respondents to monitor and regulate

18 species of nearshore fish.  In the last five years, Respondents have done nothing to monitor this

resource.  They know the statute compels it.  Their own NFMP management plan requires it.  They were doing this kind of survey work up until 1998 in some parts of the state … and then discontinued the programs.  They have done nothing since to comply with legislative mandate.  They try to hide behind the “skirts” of the federal government by claiming that these regulations were required to maintain “consistency” with federal regulations.  However, federal waters are closed indefinitely.  Respondents are required to make regulations about nearshore fishing based on available data and scientific studies about nearshore species.  They are left with no data or

scientific studies upon which to base their regulations.  The resulting regulations are based on unreliable data and a vacuum of information about the health and population of nearshore species.  Because of their own lack of information, they want to ban recreational fishing in nearshore waters for half of the year and severely reduce total annual catch.

               The ultimate vote was a nullity because it was only voted on by two qualified members of the COMMISSION.  There was not a quorum of qualified members in attendance, so the resulting actions by the COMMISSION are a nullity.

               For all the reasons stated above, this Court should grant a preliminary injunction, enjoining Respondents from enforcing their 2003 rockfish regulations and allow recreational fishing in nearshore waters under the same regulations in place in October of 2002.  The total allowable catch of 541 metric tons should also be voided and set aside since it is based on unreliable data and the only reliable evidence agreed upon by all parties is that none of the 18 nearshore fish species is “overfished”.

                                                                                            Respectfully submitted,

                                                                                            ____________________________

                                                                                            Melvin A. de la Motte Jr.

                                                                                            Attorney for Petitioners & Respondents

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