IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 SECOND APPELLATE DISTRICT, DIVISION SIX

THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO ENJOIN RESPONDENTS FROM CLOSING RECREATIONAL ROCKFISH ANGLING IN NEARSHORE WATERS FOR SIX MONTHS AND FROM ENFORCING ANY 2003 FISH HARVEST LIMIT

Respondents have made a valiant attempt to divert the Court’s attention from the true issues.  Conformity to federal regulations and risk of preemption are not the issues.  These are red herring-issues.  The true issue concerns the abuse of discretion by the lower court in allowing Respondents to deprive Appellants of six month of recreational fishing when their was no rational basis for such limitation.  A second issue is the lower court’s willingness to allow Respondents to enforce outrageous and unjustified nearshore fish harvest levels.  The nearshore fishery is abundant and thriving.  There is no evidence to the contrary.  The contested seasonal limitations and harvest limits were completely unjustified.  The conduct of Respondents was arbitrary and capricious.

A.  NO NEED TO TAKE PRECAUTIONARY APPROACH TO HEALTHY, FLOURISHING NEARSHORE FISHERY

In this section, the focus is strictly on the status of the nearshore fishery.  We are talking here about nearshore waters that are from shore out to 20 fathoms (120 feet).  We are talking about the 18 species of nearshore rockfish that the MLMA commands that Respondents monitor and regulate.  It is also important to know what we are NOT talking about in this section.  We are not talking about the deeper federal fishery (from 3-200 nautical miles offshore).  We are not talking about federally regulated fish species that dwell in deeper waters.  Therefore, we are not talking about any “overfished” species such as bocaccio, yelloweye, canary rockfish, lingcod or cowcod.  Also, we are not talking about federal regulations or conformity issues (that will be discussed in a subsequent section.)  The focus is strictly on the status of the nearshore fishery.

Appellants contend that all nearshore fish species are abundant, healthy and thriving.  None are “overfished.”  This is a flourishing fishery.  There is no evidence to the contrary.  Respondents have presented no evidence to the contrary.

It is important for the Court to understand the fundamental difference between the nearshore fishery and deeper water fisheries.  The nearshore fishery in a general way extends from the shoreline out to about one mile from shore (of course this varies throughout the state).  The nearshore fishery is rocky and traditional commercial fishing operations do not ply their trade in these shallow waters.  They would destroy their valuable nets on the rocks.  Essentially, this is a fishery only for recreational hook-and-line fishermen. [It is true that in the last 20 years a small number of commercial skiff fishermen have fished in shallow waters for “live fish”, a business which caters to a small population that likes to buy live fish in restaurants for consumption.  This has a trivial impact on nearshore fishing.  Current regulations allow these commercial fishermen to catch 20% of the overall harvest allowed to commercial and recreational fishermen.]

Because of the underwater topography of nearshore waters, the nearshore fishery has been healthy and flourishing for decades, if not centuries.  Problems concerning overfishing only relate to deeper water species that are subject to the huge take by commercial fishing.  All of the overfished species are federally regulated fish found primarily in deeper waters. None of the nearshore fish species are overfished.  Respondents admit this fact (See CT, p.406).  Counsel for Respondents admits this fact at the top of page 34 of Respondents’ Reply Brief (hereafter RRB).  Respondents made the feeble claim that they are “precautionary” because maybe in the future nearshore could become overfished.  The Court should give this type of scare tactic short shrift.  If Respondents were truly concerned that any nearshore species may become overfished, they would comply with the MLMA mandate and get some workers out on the waters performing fish stock surveys.

Respondents are not devoid of data about the health of the nearshore fishery.  From 1984 to 1998 Respondents had its employees performing on-board fish stock surveys in both southern and northern California.  In the Nearshore Fishery Management Plan, Respondents acknowledge these on-board fish surveys (See CT, p. 239).   A Fish & Game on-board fish stock survey between Santa Barbara and Crescent City took place between 1987-1998.  Since the survey was specific about the location of the fishing, deeper water data can be extracted from the data leaving the nearshore data.  A copy of the Fish & Game fish stock survey on the central coast is found at CT, pages 324-327.  The last data on the nearshore fishery suggests that nearshore fishing continues to thrive.  Fish & Game biologists said concerning the central coast survey, “All values for 1995 were at or above the average values for the 1988-1995 period.” (CT, bottom of p. 324).  Although the central coast study involves only a portion of the coast, it gives strong evidence about the health of this fishery.  The Fish & Game biologists said:

   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. … None of the 15 species here

   exhibit long-term trends from 1988 to 1995 of declining catch rate and

   declining mean length. (CT, p. 325)

At the time that the MLMA legislation was passed in 1998, all of the nearshore fish species were healthy and flourishing.  There is no evidence to the contrary.  Respondents have done nothing since 1998 to conduct any fish stock surveys or scientific surveys concerning the health and abundance of the nearshore species.  There is no evidence to suggest that the condition of the fishery has changed since 1998.  There is absolutely no basis for taking a “precautionary approach” when setting harvest levels or fishing seasons.  Allowing Respondents to get away with their claims about “precautionary approach” would reward them for there ignorance and their violation of the law.

The analysis here is simple.  First, why was the contested fish harvest level slashed to 541 metric tons (80% to recreational fishermen and 20% to commercial fishermen)?  Second, why was the fishing season slashed in half to six months?  The answer to both of these questions is found in Fish & Game biologist Tom Barnes report located in CT at pages 828-837.  The answer to both questions is tied to lack of data!  If Respondents had gathered the data mandated in the 1998 MLMA legislation, they would be able to craft a true “optimum yield” (OY).  Optimum yield is defined as the amount of catch that will provide the greatest benefit to the public, both with regard to food and recreation, taking into account the health and abundance of the fishery.  In this case, Respondents had gathered no data at all concerning the health and abundance of the fishery since it was mandated in 1998.  So they used a substitute OY or “proxy OY”.  Tom Barnes admits in his report that fish harvest levels,

   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. (CT, p. 829)

With the fish annual harvest level cut in half, it was now clear that fishermen would reach this harvest level in less than 12 months.  In fact, Tom Barnes admitted that some members of the Department of Fish & Game thought that the harvest level might be reached in 2-4 months if the bag limit remained the same. (See Barnes report at CT, p. 832).  So, the recreational fishing season was set at 6 months because the harvest level was slashed in half. (See Barnes report, CT, p. 832)

The conclusion is inescapable.  It is admitted by Respondents.  The fishing harvest level was severely reduced and the fishing season was cut in half because Respondents had no data upon which to build a true OY.  They used a “proxy OY” because of their lack of data!  Buy why take the “precautionary approach” of slashing the harvest level and cutting the season in half when the last reliable data suggested that the nearshore fishery was abundant and thriving?  Why punish Appellants and other citizens of California because Respondents have failed to do their job?  A far more reasonable and prudent course of action would have been to rely on the status of the fishery at the time of the last collection of reliable data.  There was no rational basis to severely restrict the harvest level or slash the fishing season in half.  It was a clear abuse of discretion for the lower court to allow this arbitrary and capricious action by Respondents.

In light of the California Constitution, Article I, Section 25, what would be the rational and reasonable response of Respondents when they have failed to gather fishing data for 5 years upon which to base a reasonable fish harvest level?  Remember, the status quo in 1998 was that the fishery was healthy and flourishing.  The Constitution guarantees to the citizens of California the right to fish in state waters.  The nearshore waters are state waters.  All parties here agree that Article I, Section 25 gives the government the power to regulate fishing in state waters.  But, limitations or restrictions on that right must have a rational basis!  There was no rational basis to take a “precautionary approach” when the last available data suggested the fishery was healthy and thriving.

B.  NO NEED FOR ANNUAL RECREATIONAL HARVEST LIMIT

Tom Barnes explains at CT, p. 829 that the mean annual recreational harvest level for a period from 1994-1999 is 1,081.6 metric tons.  He explains why he took a “precautionary approach” and reduced this average catch by 50% (i.e. lack of data).  As suggested above there is no reason to take this “precautionary approach”.  In fact, there is no need at all for any annual harvest limit for recreational rockfish angling.  There is already a harvest limit in place for every fisherman on a daily basis, it is called a 10 groundfish bag limit.  This is all the limitation that is necessary.  No data or evidence by Respondents suggests any further limitation.  Given the last known condition of the nearshore fishery, it would be arbitrary and capricious to further limit recreational rockfish angling.

C.  NEARSHORE FISHERY MANAGEMENT PLAN DOES NOT MANDATE 50% REDUCTION OF MEAN ANNUAL HARVEST LEVEL

Appellants are faced with an interesting situation here.  At oral argument before Judge Tangeman, counsel for Respondents argued that the Nearshore Fishery Management Plan (NFMP) had not been implemented and was not law.  He convinced Judge Tangeman not to consider the NFMP when Plaintiffs were pointing to portions of the NFMP that described the weakness and inaccuracy of MRFSS data.  Now, counsel for respondents cites the NFMP as support for taking a “precautionary approach” when Respondents have no data upon which to set a proper annual fish harvest level. (See RRB, p. 36)

If this Court is going to consider the NFMP, which has never been funded and has never been used by Respondents other than as a reference point, the Court should carefully review CT, page 189.  At the top of page 189, the NFMP discusses situations when Respondents are in a “data-poor” condition.  Then it says, “A proxy for OY is then determined by reducing the proxy MSY (Maximum Sustainable Yield) by a percentage that can vary depending on the amount of information available.”  In this case, when the last known condition of the nearshore fishery suggests that it is healthy and flourishing, there would not be an rational basis to reduce the OY by any percentage at all.  The 1,082 metric ton mean average calculated by Tom Barnes should not have been reduced by any percentage at all.  There was no evidence to justify the slashing by 50%.

To the extent that the NFMP violates the California Constitution, it is null and void.  If the NFMP suggests that in a data-poor situation (in this case caused by Respondents own “unclean hands”) the fishing season and harvest should be reduced even when the last known status of the fishery suggests that it is healthy and thriving, then such portion of the NFMP is unconstitutional.  The duty of Respondents under the California Constitution is to the people of California, not the fishery of California.  The rights belong to the people, not the fish.  This is fundamentally different from the federal system where there is no constitutional or statutory right to fish.  In California, when there is no evidence or data to justify limitation on the fishing right, the right of the people prevails over worry or concern about the fishery.  Otherwise, the rights stated in Article I, section 25 are meaningless.  

D.  CONFORMING TO FEDERAL RECOMMENDATIONS IS A RED HERRING

Respondents’ Reply Brief focuses on who made the contested regulations and which governmental agency conformed its regulations to the others.  This issue is a red herring and a complete waste of time and effort.

There is no question that the nearshore waters which are the sole focus of this case are state-regulated waters.  Fishing regulations for nearshore waters are the exclusive jurisdiction of Respondents.  Respondents are compelled to make fishing regulations for state waters pursuant to F&G Code, section 200 et seq.  The federal government does not have jurisdiction to make or enforce regulations in nearshore waters.  The Magnuson-Stephens Act clearly reserves to the coastal states the exclusive right to make fishing regulations concerning the area from shoreline out to three nautical miles.  (See 16 U.S.C. section 1856)  California Government Code section 170 and 110 both lay claim to exclusive jurisdiction over state waters to three nautical miles offshore.  Numerous California cases have also claimed jurisdiction out to three miles.  See Suttori v. Peckham (1920) 48 Cal. App.88; People v. Weeren (1980) 26 Cal. 3d 654; Tidewater Marine Western Inc. v. Bradshaw (1996) 14 Cal 4^th 557.

Respondents vigorously claim that the six-month fishing season was first adopted at the September 2002 meeting of the PFMC.  There is no record of this activity.  In RRB, footnote 10, Respondents point out that the federal rulemaking record is not before this Court.  We know that the six-month closure was discussed at the September 2002 PFMC meeting because it is referenced in a memo by DFG Director Robert Hight to Executive Officer Robert Treanor dated October 4, 2002 . (See CT, page 560, item 1)  Robert Hight discusses how the six-month season was discussed at an advisory panel meeting during the September 2002 PFMC meetings.  Whether the PFMC officially adopted the six month season for recreational nearshore rockfish angling in California at that meeting is totally irrelevant.  If a federal agency attempts to adopt regulations that exceed the authority granted in the enabling legislation, the regulation is null and void.  Any regulations by the PFMC that concern fishing regulations in nearshore waters are without any force or effect.  The Magnuson Act does not give this federal agency power to make such regulations.

It makes no difference that the PFMC or NMFS published regulations in the Federal Register concerning fishing regulations in California nearshore waters.  Such regulations are null and void.  Appellants are not asking this Court to overrule any federal regulations.  We are asking that they be completely disregarded.  They are unenforceable and void on their face because they exceed the authority granted in the Magnuson Act.

Respondents claim that the regulations adopted by the FISH AND GAME COMMISSION at their October 2002 meeting are reasonable and rational because they seek to conform to federal regulations (made at the September 2002 PFMC meeting).  Respondents cannot be allowed to hide behind this flimsy federal veil.

The actions of the PFMC at their September 2002 meeting carry no more weight than recommendations.  Respondents, in their RRB, footnote 9, claim that Appellants reference to the PFMC actions as “recommendations” is not supported by the record.  They are wrong in law and wrong in fact.  DFG Director Robert Hight, in his memorandum dated October 4, 2002, says, “The Pacific Fishery Management Council (Council) met September 10-13, 2002 and developed its 2003 groundfish recommendations.” (CT, p. 559)  John M. Duffy, Assistant Executive Director of FISH & GAME sent out the notice of proposed regulations before the October COMMISSION meeting.  The proposed regulations said, “The Pacific Fishery Management Council (Council) met September 10-13, 2002 and developed final regulatory recommendations affecting ocean recreational groundfish fisheries …commencing January 1, 2003.” (CT, p. 538)  Those are the facts.  Legally, since the PFMC has no authority or jurisdiction to make regulations concerning state nearshore waters, they can do no more than make recommendations to the state.

E.  CONFORMITY UNWARRANTED IN THIS SITUATION

The “conformity issue” deserves careful consideration.  RRB provides a laundry list of reasons why conformity to Federal Regulations is desirable (See RRB, pp. 28-31).  In this situation, none of the suggested reasons for conformity is applicable.

The federal government and Respondents share marine management along the coast of California.  The federal government claims jurisdiction in the EEZ (exclusive economic zone) which stretches from 3 nautical miles out to 200 nautical miles.  The state of California has jurisdiction to make fishing regulations in state waters which are from shore out to 3 nautical miles.  It is obvious that it is normally desirable to have consistency of fishing regulations.

Due to the effectiveness of commercial fishing fleets plying their trade in deeper waters, the 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 to 26 inches.  Respondents went along with these changes and conformed state regulations to federal 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 regulations for the sake of consistency.  In 2000, the PFMC reduced overall bag limits from 15 fish to 10 fish.  Although there was no evidence or surveys to justify this bag limit change in nearshore waters, Respondents went along and copied the federal regulation change.  This is only a partial list of the many times that Respondents have conformed state regulations to federal regulations for the sake of consistency.  This general policy is reasonable.  Common sense supports this type behavior.

From a practical point of view, it is reasonable to have federal and state regulations that mirror each other.  When a boat comes back into harbor after a day of fishing, it would be almost impossible to enforce regulations if the federal and state regulations were different on bag-limits, size limits, species size and catch limits, equipment regulations, or filleting regulations.  How would enforcement officers be able to determine if the fish were caught in federally regulated waters or state waters?  If the regulations are identical, then enforcement is manageable.

It is certainly understandable why the legislature would encourage conformity.  Cases such as Salmon Trollers Marketing Assn. Inc. v. E.C. Fullerton (1981) 124 Cal. App. 3d 291 encourage conformity so that state and federal regulations will be consistent.

However, conformity is not warranted in this situation.  The crucial and glaring difference between this situation and all of the above circumstances is that there is no recreational fishing season in federal waters during 2003.  There is nothing to be consistent with.  There is nothing to conform to.  The PFMC determined in July of 2002 that there would no longer be any recreational fishing in federal waters … indefinitely.

The contested six-month fishing closure has nothing to do with fishing in federal waters or any legitimate concern of the federal government.  The six-month closure was not promulgated to conform to a fishing season in federal waters.  The harvest limit of 541 metric tons only relates to fishing for state-regulated groundfish in nearshore waters.  It does not have any relationship to the federal management plan. 

Respondents might argue that the state regulations promulgated at the October 2002 meeting of the FISH AND GAME COMMISSION were drafted to conform to the federal regulations adopted at the September 2002 meeting of the PFMC.  This is where the devious and duplicitous arrangement between Respondents and the PFMC comes into play.  Representatives of Respondent went to the September 2002 PFMC meeting with a package of suggested recreational fishing regulations for nearshore waters.  Respondents wanted the PFMC to adopt regulations concerning the nearshore fishery and wanted the regulations printed in the Federal Register.  The federal government “rubber-stamped” the state recommendations and these regulations were eventually printed in the Federal Register in January 2003 and March 2003.  Then, Respondents were able to appear at the October 2002 meeting of the FISH AND GAME COMMISSION and said that they would be adopting a set of fishing regulations to conform to the recently adopted federal regulations.  In this case, the claim by Respondents that they needed to conform to federal regulations is for one reason … and one reason only.  They want to be able to hide behind the federal government if there is a legal attack on these regulations.  This Court must see through the diaphanous argument by Respondents.  The claims justifying conformity in this situation are hollow and without any merit.  The regulations under attack here must stand on their own merits.  All of the arguments about conformity are inappropriate.  Legitimate reasons for conformity are non-existent.  Respondents cannot be allowed to hide behind the federal government with their weak “conformity” plea.

F.  FEDERAL PREEMPTION IS NOT A THREAT

Respondents drag in another red herring by raising the specter of federal preemption.  On page 30 of RRB, Respondents correctly describe circumstances that might cause preemption under the Magnuson Act. 16 U.S.C. 1856 (1) and (2).  If the state takes action or fails to take action that adversely affects the federal management plan, then the federal government may preempt management of the fishery.  On the same page of the RRB, Respondents discuss the problems of “overfished” species such as bocaccio, yelloweye, and canary rockfish.  The problem with all this verbiage is that the contested regulations and the requested preliminary injunction in this case have no bearing or relationship whatsoever to the federal management plan or any of the “overfished” federal species.

It would be easy to conclude after skimming the RRB that this case has some relationship to Respondents’ concern about “overfished” species in the federal management plan.  Respondents spend a lot of time in their brief patting themselves on the back about their righteous concerns about certain “overfished” federally-regulated species.  The problem is that the contested issues here have no relationship whatsoever to these “overfished” species or the federal management plan.

The 541 metric tons of groundfish mentioned in Tom Barnes report (CT, p. 828-837) relates only to nearshore groundfish.  Setting this harvest limit and enforcing this limit is not a concern of the federal government.  If this harvest level was double, triple, or even 10 times the 541-metric-ton level, it would have no bearing on the federal management plan.  The “overfished” federally regulated species are no part of this harvest level.  The federally-regulated “overfished” species all have their own separate OYs that are not a part of the nearshore groundfish harvest quota.  The federal government is free to request closure of state-regulated waters at any time when they feel nearshore fishing is taking too many of the “overfished” species … regardless of the harvest level set by the state for nearshore groundfish.  There will not be, and could not be any effort at federal preemption caused by the harvest level allowed to recreational fishermen for nearshore groundfish.

If the Court carefully reviews how Tom Barnes reached his conclusion that the groundfish harvest limit for recreational and commercial fishermen in the nearshore should be 541 metric tons, the Court will see that the calculations have no bearing or relationship to any federally protected fish.  All of the gratuitous remarks by Respondents about their concern about the federal management plan in agreeing to this harvest level are misplaced.  The nearshore harvest level has no relationship or impact on the federal management plan.

Turning to the six-month fishing closure, once again the regulation has nothing to do with the federal management plan.  If the 2003 recreational fishing regulations allowed 12 months of nearshore groundfish angling, there would be no possibility that there would be an attempted federal preemption.  Once again, the motivation by the Respondents in setting the six-month season was not related in any way to the federal management plan.  If the Court reviews Tom Barnes report in the middle of page 832 of CT, the Court will see that the six-month season was chosen because it was estimated that the 541 metric tons of fish would be taken within six months.  In fact, Barnes suggested that the harvest level might be reached in 2-4 months of bag limits remained at 10 fish.  The regulation setting the season at six months had no connection to the federal management plan and no relationship to concerns about “overfished” federally regulated species.

The EEZ managed by the PFMC relates to an area stretching from 3 nautical miles from shore out to 200 nautical miles.  The nearshore fishery only relates to fishing between shore and 20 fathoms (120 feet or approximately one mile from shore).  The contested issues in this case have no impact or relationship to the federal EEZ or the federal management plan.  All of the comments about preemption by Respondents are of no merit or concern.

CONCLUSION

The nearshore fishery is healthy and thriving.  None of the nearshore species are determined to be “overfished”.  Respondents provide no data or evidence to suggest that the nearshore fishery is other than healthy and thriving.  It would be irrational and imprudent to take a “cautionary approach” and slash the recreational annual harvest level and cut the fishing season in half on account of the lack of credible fishing data accumulated by Respondents.  To deprive Plaintiffs and the citizens of the State of California of their fishing rights in this fashion would be punishing the public because of the failure of Respondents to follow the law.  This Court should not tolerate this activity by Respondents.  The lower court abused its discretion by condoning this activity.

The red herring arguments about the need for conformity to federal regulations and the threat of preemption are misplaced.  Conformity purely for the purpose of hiding behind the federal government is intolerable.  The claims about possible federal preemption are without any merit.  This court should reverse the lower court and find that the lower court abused its discretion by failing to grant the prayed-for injunction.

Dated:  December 8, 2003.

                                                             ________________________________________

                                                             Melvin A. de la Motte, Jr.

                                                 Attorney for Appellants

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