MELVIN A. DE LA MOTTE, JR. (State Bar No. 56867)
Attorney at Law
1239 Higuera Street
San Luis Obispo, California 93401
(805)544-2424

Attorney for Petitioners and Plaintiffs.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

 IN AND FOR THE COUNTY OF SAN LUIS OBISPO

A.  INTRODUCTION

A responsive brief filled with “red herrings,” distortions and outright falsehoods is the telltale sign of a weak case.  In this reply memorandum, the “red herrings,” distortions and falsehoods will be exposed, discussed and discarded.  When the key issues again come into focus, it is clear that the requested injunction should be granted.

B.  RED HERRINGS

            1.  Threat of Preemption.  This appears to be the lynchpin of Respondents’ case.  It is totally off-base.  It is not only a “red herring,” but also based on a distorted analysis of the law.

The Magnuson-Stevens Fishery Conservation and Management Act is the principal law governing marine fisheries in the United States.  In 1996, the Magnuson-Stevens Fishery Conservation and Management Act was amended by the Sustainable Fisheries Act, which called for the development and creation of regional fishery management plans.  The regional council off the west coast is called the Pacific Fishery Management Council (PFMC).  The PFMC has developed and implements the Pacific Coast Groundfish Management Plan.  All federal laws and regulations indicate that the authority under the Magnuson-Stevens Act and the Pacific Coast Groundfish Management Plan extend to commercial and recreational fishing between 3-200 nautical miles off Washington, Oregon and California.  If the Court looks at Respondents’ Appendix, Exhibit 2, 50 CFR §660.302, it will see that the fishery management area under this federal plan means “off the coasts of Washington, Oregon, and California between 3 and 200 nm offshore…”   The federal Submerged Lands Act of 1953, amended in 1986, indicates that the federal government grants title to and ownership of all lands and waters up to three miles from the coastline to coastal states.

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

The State of California has the exclusive right to promulgate fishing regulations for nearshore waters.  Claims to the contrary by Respondents are complete falsehoods.  The federal government has no power, right, or authority to make any regulations concerning fishing in nearshore waters.  This is the exclusive province and power of the State of California.

So, where do Respondents get this incorrect and distorted view that the state must conform its regulations to recommendations by the federal government?  It comes from a distorted and incorrect view of 16 U.S.C. 1856(b).

[Petitioners’ copy of Exhibit 12 of Respondents’ Appendix is so poorly copied that it is unreadable.  On the off-chance that the Court’s copy is equally bad, a nicer copy is being lodged as an Appendix with this Reply.]  16 U.S.C. 1856 acknowledges that the Magnuson-Stevens Act does not diminish or reduce the power, authority or jurisdiction of the State to make fishing regulations within its boundaries.  The potential for federal preemption is discussed in 16 U.S.C. 1856 (b).  It says:

(b) EXCEPTION.

(1)  If the Secretary finds, after notice and an opportunity for a hearing in accordance

with section 554 of title 5, United States Code, that –

(A)  the fishing in a fishery, which is covered by a fishery management plan implemented

under this Act, is engaged in predominantly within the exclusive economic zone and beyond

such zone; and

(B)  any State has taken any action, or omitted to take any action, the results of which

will substantially and adversely affect the carrying out of such fishery management plan;

the Secretary shall promptly notify such State and the appropriate Council of such finding

and of his intention to regulate the applicable fishery within the boundaries of such State

(other than its internal waters), pursuant to such fishery management plan and the

regulations promulgated to implement such plan.

(2) If the Secretary, pursuant to this subsection, assumes responsibility for the regulation of

any fishery, the State involved may at any time thereafter apply to the Secretary for

reinstatement of its authority over such fishery.  If the Secretary finds that the reasons for

which he assumed such regulations no longer prevail, he shall promptly terminate such

regulation.

(3) If the State involved requests that a hearing be held pursuant to paragraph (1), the

Secretary shall conduct such hearing prior to taking any action under paragraph (1). (See Petitioner’s Appendix, Exhibit A)

The federal government has no power, authority or jurisdiction to make regulations concerning state nearshore waters.  They can only exercise preemption by going through the complicated notice and hearings described in 16 U.S.C. 1856 (b).  If this Court grants the requested preliminary injunction, there is no chance that such preemption would occur.  First of all, Petitioners are not intending to fish in federal waters.  Subpart (b) (1) (A) requires that the fishing be in a fishery covered by the plan.  The Pacific Coast Groundfish Fishery Management Plan only relates to federal waters.  It does not relate to fishing in nearshore state waters.  Likewise, subpart (b) (1) (B) would be impossible to establish.  Neither the federal government nor the state government have done any surveys, scientific studies, or gathering of reliable date that would indicate that recreational fishing in nearshore waters will adversely affect any of the deep-water federal species.  Interestingly, the federal government has the same view as Respondents about MRFSS data being completely unreliable.  They certainly would not use this type of data to make a case for preemption against the state.  At Federal Register, Vol. 68, No. 45/ Friday, March 7, 2003, page 11191 it says:

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

monitoring system that satisfactorily characterizes catches in these fisheries to

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

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

Survey (MRFSS) so that it is more responsive to fishery management needs. (See

 Petitioners’ Appendix, Exhibit B, p. 11191, middle column at top)

At page 9, lines 13-14, Respondents claim that both federal and state regulations apply to areas within the 20 fathom depth contour.  This is completely false.  The federal government has no power, authority or ability to enforce regulations in state nearshore waters.  They can only intervene in regulating state waters by the preemption scenario outlined in 16 U.S.C. 1856 (b) described above.  An injunction that allows recreational fishing in state waters for the rest of 2003 has no chance of triggering preemption.  What Respondents should worry about is their own flagrant violation of state legislation (MLMA) which compels them to regularly do fish stock surveys and gather reliable data on the health and abundance of nearshore fish species.  Their failure to obey the law for five years might trigger preemption, but that would certainly be their own fault.

2.  Federal Regulations prevent fishing from Jan 1, 2003 to June 30, 2003

At page 7, lines 6-24, Respondents claim that federal regulations prevent fishing in nearshore waters between January 1 and June 30.  This is another falsehood.  The fact that the Federal Register has a “printing” or “listing” of each state’s fishing regulations does not mean that such printing makes it a federal law or regulation.  The federal government has confirmed to each state their exclusive right to make laws concerning fishing in state waters!  16 U.S.C. 1856 (b) sets forth the only way that the federal government (through the Secretary of Commerce) could intervene in state regulations.  Petitioners’ Appendix, Exhibit B is the Federal Register, 50 CFR, Volume 68, No. 45/Friday, March 7, 2003.  In the back of the document, at pages 11226-11228, the state fishing regulations for Washington, Oregon and California are copied.  This does not magically convert all these state regulations into federal regulations.  The federal government does not have the power or authority to make these regulations into federal regulations.  The federal government has no power to enforce these as federal regulations.  Even if the printing of California fishing regulations in the Federal Register made them into federal regulations, the federal government would not have the power or authority to enforce these regulations.

The Court will notice how Respondents have worded their discussions in the area of preemption.  They use the phrase “risk of preemption” as a threat to the Court.  At this time, the federal government has not preempted the making of fishing regulations relating to nearshore waters of California.  The printing of the state regulations in the Federal Register does not make them federally enforceable regulations.

3.  No state regulation concerning 541 metric tons

Again we have a “red herring” about the total allowable catch for recreational fishermen in 2003.  It really makes absolutely no difference whose figure or calculation it is.  Petitioners are asking for an injunction stopping the Respondents from enforcing any total tonnage catch for recreational fishermen fishing in state waters.  Even if this tonnage number is found in federal regulations, it is not enforceable in state waters.  This is a figure based on erroneous data that has no bearing or relationship to nearshore waters or nearshore fish species.

The “Optimum Yield” figures found in the Federal Register concerning the central and southern coast of California are only enforceable by the State of California.  The federal government does not have any power or authority to enforce these OY levels.  The levels are completely bogus from start to finish.  First of all, they are based on a totally unreliable data collecting process.  The federal government, the Respondents and the Petitioners all agree that the data is worthless; it is garbage.  The unreliability- opinion of the federal government is quoted above from page 11191 of the March 7, 2003 Federal Register.  In Exhibit B filed with Petitioners’ opening brief, the highest ranking member of the Department of Fish & Game, Robert Hight, writes to the highest ranking member of the Fish and Game Commission, Robert Treanor, saying that MRFSS data is unreliable.  In Exhibit C filed with Petitioners’ opening brief, L.B. Boydstun, an employee of DFG and also a member of the PFMC, writes to the PFMC complaining that MRFSS date overstates catch by 6-20 times.  Even the AR, at page 487, has Tom Barnes admitting that his data used for determining OY is unreliable.

The data setting OY is not only unreliable, but has no relationship to abundance of fish and appropriate OY for nearshore waters.  The MRFSS data used by Tom Barnes (See AR, pp. 486-495) was collected between 1994 and 1999 (AR, p. 487).  During this time, the bag limit was 15 fish and recreational fishermen could fish in both state and federal waters.  There is no relationship whatsoever between this data and the abundance of fish in nearshore waters.  This is comparing “apples to oranges.”  The 1994-99 data involves a different geographic area with a different fishing dynamic.  Fishing in federal waters between 1994-99 was certainly influenced by the impact of commercial fishing in those waters.  In addition to the data being unreliable by everyone’s agreement, the data bears no relationship to nearshore abundance of fish.

Tom Barnes letter (AR, pp. 486-495) also points out that the average mean tonnage figure is being cut in half for precautionary reasons.  There is no rational basis for this halving of the total tonnage catch.  The precaution is only because the Respondents have failed to follow the legislative mandate that they regularly determine fish stock health and abundance in state waters.  There is no basis or reason for setting any total tonnage catch (other than the personal bag limit) for nearshore fishing by recreational anglers.  The state has no evidence that any of the nearshore species are other than abundant, healthy and flourishing.  They have no evidence to justify any tonnage limitation.

C.  DISTORTIONS AND FALSEHOODS

            1.  Limit to 6 months fishing to protect bocaccio, canary rockfish, and yelloweye.  It is suggested at page 16, lines 6-20 of the Response, that the limit to six months of fishing was somehow to protect against bycatch of bocaccio, canary rockfish and yelloweye.  That is a total falsehood.  The limit to 6 months of fishing had nothing to do with this subject matter.  This was never given as a reason for why fishing was limited to six months.  Bocaccio, canary rockfish and yelloweye are rarely caught in nearshore waters.  The statistics at AR, p. 489 are unreliable.  Look at where the data came from …. MRFSS data, the same data that DFG employee L.B. Boydstun suggested overestimates catch by 6-20 times.  If Petitioners are allowed to fish in state waters for the rest of 2003, the bycatch of these federally protected fish will be insignificant.

2.  Waiting for species of fish to become so depleted as to be “overfished” is a failure of the regulatory process.  Here is another distortion from page 1 of the Response.  Respondents try to imply

that some species of nearshore fish are on the verge of being declared “overfished.”  Where is the evidence of this?  This is a falsehood.  The Respondents have NO EVIDENCE that any species of nearshore fish is other than healthy, abundant and flourishing.  They have done absolutely nothing in the last five years to monitor the nearshore species as required by law.

            3.  Following Federal Law is not “arbitrary and capricious.”  This is another distortion from page 6 of the Response.  What federal law are they talking about?  Are they talking about those federal “suggestions” from the PFMC that were spoon-fed to the PFMC by the State of California?  Yes it would be arbitrary and capricious to follow seasonal closures and total catch figures that were bogus, unreliable, arbitrary and capricious at their source!  The federal government does nothing to assess the health of fish species in nearshore waters!  They also do not gather any catch data that is targeted solely to nearshore fishing.  All of the data and information that comes into the hands of the PFMC comes solely from Respondents.  So it is “garbage in – garbage out”.  The information fed to the PFMC was arbitrary and capricious.  It was just as arbitrary and capricious when it was received back from the PFMC verbatim.  The fact that it was “strained” through the PFMC does not give it some magical improvement.  The fact that Respondents received back the same recommendations they fed to the PFMC, does not absolve Respondents from their misconduct in feeding bogus and arbitrary information to the PFMC.

            4.  Preference for conforming state law to federal law.  At page 8, lines 3-6 of the Response we have another obvious distortion of both law and fact.  The Salmon Trawlers Marketing case cited by Respondents is actually strongly in favor of Petitioners’ position.  It points out at page 300 that California has a lasting policy to “continue state jurisdiction over its fisheries within three miles of offshore by avoiding conflict with the federal fishery plan” Salmon Trawlers v. Fullerton (124 Cal. App. 3d 291, at p.300) (emphasis added).  This case only talks about conforming state law to the management plan enacted as a part of the Magnuson-Stevens Act and Sustainable Fisheries Act.  The case does not say anything about conforming state fishing regulations to PFMC recommendations.  Nothing prayed for by Petitioners would conflict with any federal management plan.  Allowing recreational fishing for the rest of 2003 and setting no total catch limit would not conflict with any federal regulatory plan. 

            5.  This Court does not have jurisdiction to invalidate federal regulations.  This statement found at p. 6, line 28 is correct.  Petitioners are not asking the Court to invalidate any federal regulations.  We are asking for an injunction aimed solely at Respondents.  The federal government has no power or authority to regulate fishing in nearshore waters.  The risk of federal preemption under 16 U.S.C. section 1856 (b) should only be a concern to Respondents because of their own blatant failure to follow the law requiring them to monitor nearshore species.  An injunction allowing recreational fishing for the remainder of 2003 with no total catch limitation will not “trigger” any preemption by the federal government.  That is a hollow threat that should not be a concern to the Court.

            6.  Federal law will preclude fishing from Jan 1 to June 30.  This claim at page 7 of the Response is another falsehood.  The federal government does not have any power or authority to make regulations concerning fishing in state waters.  The fact that the Federal Register has printed the state fishing regulations of Washington, Oregon and California, does not mean that such “printing” blossoms into federal law.  The state still has exclusive power to regulate fishing in state waters!

7.  State needs to take preemptive measures to protect its natural resources.  This claim at page 1, line 28 would have some validity if the Respondents had even a speck of evidence to justify it.  There is no evidence that any nearshore fish species is other than abundant, healthy and flourishing.

8.  Exhibit D shows how this study missed a decline in some federal fish species.  Here is a grand distortion if there ever was one.  At page21, lines 8-16 of the Response, Respondents attempt to use Exhibit D for their own purposes, even though they object to its introduction in a separate motion.  Again, they have failed to carefully read the exhibit.  In fact, the study does report a declining trend in bocaccio and canary rockfish starting in 1991.  This was confirmed later by federal studies.  This study was conducted out of Morro Bay and Port San Luis.  The study makes no mention about yelloweye because they are seldom caught in this part of the state.  The study was right on target.  It was a part of the larger survey mentioned favorably by Respondents in there NFMP found at page 155 of Exhibit A.

D.  STANDARDS TO PREVAIL IN REQUEST FOR PRELIMINARY INJUNCTION

The parties are in agreement as to what is necessary to prevail in obtaining a preliminary injunction.  It must be 1) likely that Petitioners will prevail on the merits; and 2) Petitioners will suffer much greater harm if the injunction is not granted than if granted.  In the present case, the evidence is abundantly clear that Respondents have acted arbitrarily and capriciously and have no rational basis for their seasonal closure of fishing and have no basis whatsoever for enforcing any total allowable catch.  The chances of Petitioner prevailing at trial are near 100%.  The closure of fishing has had a devastating effect on Petitioners and will continue to cause irreparable injury to Petitioners unless the injunction is granted.  The claim by Respondents that federal regulations will preclude fishing in any event from January 1 to June 30 is completely false.  The federal government has no power or authority to regulate fishing in state waters.  The claim by Respondents that after six months an OY will be reached and fishing will be closed down by the federal government is equally bogus and untenable.  The federal government has NO POWER OR AUTHORITY to close down any fishing in state waters.  Until enjoined by this Court, the only governmental agencies with power and jurisdiction over fishing in state waters are Respondents.

E.  VIOLATION OF STATE CONSTITUTION

Respondents seem to suggest that their primary responsibility is to protect fish.  They have a higher responsibility to protect the rights of California citizens.  The Constitution, Article I, Section 25, gives citizens a right to fish.  This right prevails unless the Respondents can show affirmative evidence that some species they have been ordered to protect is endangered, overfished, or even on the verge of being overfished.  Respondents have failed to provide any evidence whatsoever that any of the nearshore fish species are anything other than abundant, healthy and flourishing.  Without any evidence to the contrary to justify limitation, state citizens are entitled to fish!  The AR and the Nearshore Fishery Management Plan both confess that they are “data-poor”.  Respondents say in their Response at p. 19, line 20 that “data-poor” does not mean “no-data.”  Oh yes it does!  In this case it means zero, nada, zip, zilch, absolutely rock bottom NOTHING in the way of data.  Respondents have absolutely zero evidence about the status of all nearshore fish species.  This is strictly the fault of Respondents.  They knew their duties under the law and totally failed and refused to obey the law.

F.  FAILURE TO COMPLY WITH LEGISLATIVE MANDATE

In 1998, Respondents knew what was mandated by the MLMA legislation.  They knew it required fish stock surveys, scientific studies, and gathering of data on the health and abundance of 18 species of nearshore fish.  They had a scientific study in place that was surveying fish from Pt. Conception to Crescent City.  Instead of expanding this program to cover the whole state, they abandoned it.  The Response, at page 19, lines 10-15 contains a typical falsehood.  It says that the onboard surveys that were being conducted from 1984-1998 (15 years) relied on the singular method of counting fish.  Maybe Respondent should have read the brief or the NFMP more closely.  As it states in Petitioners brief (at page 15) and the NFMP (Exhibit A, p. 155), these surveys “collected information on catch composition, amount, size and bycatch for selected passengers at each location fished.”  The reason that these fish surveys were mentioned was not to approve the method or results, but to show that the state had done surveys in the past that specifically targeted the issues required by MLMA legislation.  Instead of enlarging these surveys to state-wide scope and targeting only nearshore fisheries, they abandoned them.  If they had enlarged the fish survey described above to state-wide scope … at least they would have some evidence upon which to base nearshore fishery regulations.  As it is, they have nothing.

G.  ECONOMIC HARM TO PETITIONERS

The pitiful attempt by the Response to address economic harm to Petitioners is almost embarrassing.  These people are righteously suffering.  Some are going broke or out of business.  Other petitioners are unemployed.  Respondents suggest that maybe the downturn in the economy is the real cause of their economic harm.  When the state regulations say that there will be no recreational fishing, then commercial passenger boat operators are forced to lay off most of their workers.  When tackle stores who are members of CCFCC sell tackle and gear for rockfishing, it is not surprising that their sales drop by 90% when rockfishing is closed.  The claim about economic downturn is ludicrous.  The mayor of Morro Bay, Bill Yates, knows why businesses that rely on the fishing trade, including motels, restaurants, and waterfront business, are suffering.  It is because of the fishing closures and he said so in his sworn declaration.  The suggestions by Respondents about downturn in the economy are completely off-base.

H.  CONCLUSION

Respondents have built their case on a flimsy “house of cards”.  They have attempted to con the Court into believing that the federal government can make regulations about fishing in state waters.  This is completely false.  The federal government has no power or authority to enforce any regulations concerning fishing in state waters.  The “red herring” about threatened preemption is misplaced.  Preemption under 16 U.S.C. 1856 (b) is extremely unlikely, but certainly would not be triggered by any injunction by this Court.

The original request for an injunction remains “unscathed” after Respondents’ red herrings, falsehoods and distortions have been exposed and discarded.  The 2003 rockfish closure for recreational fishermen violates both the state Constitution and state law.  The regulations are arbitrary and capricious and not founded on any rational basis.  Petitioners’ likelihood of success on the merits at trial is almost a certainty.  The Petitioners will suffer great harm unless this court immediately grants the preliminary injunction prayed for.

                                                            Respectfully submitted,

                                                                        Melvin A. de la Motte Jr.

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