USCG changes monetary property damage threshold amounts for certain marine casualties

The United States Coast Guard (USCG) recently published a final rule[1] whereby it is changing the monetary property damage threshold amounts for reporting a marine casualty and for reporting a type of marine casualty called a ‘‘serious marine incident.’’  Currently, owners/operators are required to notify the USCG when property damage[2] in excess of $25,000 results from an incident[3].  Those incidents which result in property damage greater than $100,000 are deemed Serious Marine Incidents[4] which require mandatory drug and alcohol testing under 46 CFR Subpart 4.06 (Mandatory Chemical Testing Following Serious Marine Incidents Involving Vessels in Commercial Service).

Effective April 18, 2018, the reportable marine casualty property damage threshold amount in 46 CFR 4.05–1(a)(7) will increase from $25,000 to $75,000.  The Serious Marine Incident property damage threshold in 46 CFR 4.03–2(a)(3) will increase from $100,000 to $200,000.  Current requirements for Mandatory Chemical Testing following a Serious Marine Incident will still remain in effect.

The primary rationale provided for the changes is that the current values ($25,000/$100,000 respectively) were established in the 1980s and have not been updated.  This has resulted in reporting of incidents with relatively minor property damage – at cost to industry and the USCG.  The Final Notice contains numerous tables showing cost and time savings to both.

[1] https://www.gpo.gov/fdsys/pkg/FR-2018-03-19/pdf/2018-05467.pdf

[2] This damage including the cost of labor and material to restore the property to its condition before the occurrence, but not including the cost of salvage, cleaning, gas-freeing, drydocking, or demurrage.

[3] 46 CFR §4.05-1(a)(7)

[4] 46 CFR §4.03–2(a)(3)

Coalition of support for potential NOAA Fisheries appointee

We are proud to be amongst the signatories to “[a]n industry letter signed by more than 50 companies and fisheries groups to Vice President Pence and Secretary of Commerce nominee Wilbur Ross, urges the appointment of Chris Oliver to the post of Assistant Administrator for NOAA Fisheries.”

“The letter, which is signed by most major processors and industry organizations from Unalaska to southern California, national groups such as National Fisheries Institute, and recreational users of the marine resource, points out that NOAA Fisheries oversees a marine economy of $214 billion in sales that supports 1.83 million jobs.”

Our take is that Mr. Oliver’s proven track record and understanding of issues facing fisheries operating off the US West Coast makes him an ideal candidate.

PDF version of letter sent to the Administration

California’s commercial fishing differential fee statutes – OK for now

On February 19, 2014 we wrote about the 9^th Circuit’s decision in Marilley v Bohnam which found California’s commercial fishing differential fee statutes unconstitutional.  See https://westcoastfisheriesconsultants.wordpress.com/2014/02/19/californias-commercial-fishing-differential-fee-statutes-deemed-unconstitutional/.  On December 21^st, the 9^th Circuit published an en banc opinion overturning that decision[1].  “California’s fee differentials for commercial fishing vessel registrations, fishing licenses, Dungeness crab permits, and herring gill net permits survive the Privileges and Immunities Clause challenge because the differentials are justified by a substantial reason that is closely related to the differential fees. The fees survive the Equal Protection Clause challenge because California has a rational basis for charging the differential fees. California is therefore entitled to summary judgment on both of Plaintiffs’ claims. We remand with directions to the district court to enter summary judgment for California.”  The decision was a divided one, with the dissent choosing to focus on California income tax paid by the fishermen.

In the 2014 decision, the Court focused on the competitive advantage enjoyed by resident commercial fishermen over nonresident fishermen who wished to commercial fish in the State.  This court, instead, focused the substantial reasons portion of the analysis and found, “California’s interest in receiving compensation for its commercial fishery management provided a “rational basis” for its fee differentials.”  Plaintiffs also raised an Equal Protection Claim, which the lower Court never reached as it found the Privileges and Immunities analysis dispositive.

Privileges and Immunities Discussion

Analysis under the Privileges and Immunities Clause[2] is a two-step inquiry.

1. Plaintiff (here the nonresident commercial fishermen) bears the burden of showing that the challenged law “fall[s] within the purview of the Privileges and Immunities Clause.” If Plaintiff fails to meet this burden, the Claim falls.
2. If the plaintiff meets his burden, the burden shifts to the state to show that the challenged law is “closely related to the advancement of a substantial state interest.”

Does California’s differential fee structure for nonresident commercial fishermen fall within the purview of the Privileges and Immunities Clause?

In short, yes.

Clearly, the California law treats nonresidents differently from residents; therefore the question is whether or not commercial fishing is a “fundamental” privilege or immunity protected by the Constitution.  Commercial fishing is a “protected privilege” because it implies “the right to earn a living”.    Because Plaintiff’s have met their burden, it now shifts to the State.

Is California’s differential fee structure closely related to the advancement of a substantial state interest”?

In short, yes.  The substantial state interest in having nonresident commercial fishers fairly contribute for state-provided expenditures/benefits from a fund to which nonresidents do not contribute.

To answer this question, the Court devoted a portion of its Opinion outlining some factual elements which informed its decision.  In summary:

• The higher fees for nonresidents has not reduced the percentage of nonresidents obtaining permits and/or licenses.
• For the 2010-11 license year[3]:
  • “California spent approximately $20,000,000 on enforcement, management, and conservation activities benefitting commercial fishers.” This estimate was deemed conservative, at best.
  • Nonresidents accounted for approximately[4]: (a) 10% of vessel registrations; (b) 12% of commercial fishing license sales; (c) 13% of Dungeness crab permits; and (d) 18% of herring gill net permits.
  • California received approximately $2.5 M from the sale of commercial fishing licenses, commercial vessel registrations, Dungeness crab and herring gill net permits. $435,000 came from nonresidents in the form of the higher differential fees.  In total, the State received $5.8 M in commercial fishing revenues.
  • The shortfall (loss) incurred by the State in enforcement, management and conservation activities related to commercial fishing – was roughly $14 M. This shortfall (subsidy) was covered by the State’s general tax revenues.  The question is whether, or to what degree, nonresident commercial fishers may be required to pay differential fees to account for their proportionate share of that subsidy, or benefit.

In answering that question, the Court reviewed two Supreme Court precedents[5] which, while striking down similar fee differentials applied to nonresident commercial fishers, endorsed the concept of differential fees if they were compensation or reimbursement for state-provided expenditures/benefits from a fund to which nonresidents do not contribute.  When the benefit at issue is access to a natural resource, the state may not exclude nonresidents, but it may seek reimbursement for money spent to manage and preserve the resource.  In such cases, the Privileges and Immunities Clause allows a state “to charge non-residents a differential which would merely compensate the State for any added enforcement burden they may impose or for any conservation expenditures from taxes which only residents pay.”  Toomer 334 US @ 399.

Further expanding on the above:

• Mathematical precision not required in calculating benefit(s) provided to nonresidents;
• States have deference in determining those benefit(s) and the appropriate amount of compensation; and
• The State must treat residents and nonresidents with “substantial equality” when seeking compensation from nonresidents.

The Court then spent considerable time calculating “at a general level the benefit provided by California and the appropriate compensation from nonresident fishers.”  The Court also then calculated the subsidies for the two named fisheries – Dungeness crab and herring.  Regardless of which calculation was chosen, “the fee differentials charged by California, are less than the amount by which California subsidizes the management of the nonresidents’ portions of its commercial fishery.”

The dissent, focusing on income taxes paid to California by nonresident commercial fishers, would have upheld the lower Court’s ruling that the fee differential statutes were unconstitutional.  The majority chose to focus on the de minimus amounts of income tax paid to California by the named Plaintiffs[6].  “If Plaintiffs paid more than de minimus income tax to California, such that they should be assimilated, either entirely or in part, to California resident taxpayers for purposes of the Privileges and Immunities Clause, we would have to modify our analysis.”

Equal Protection Discussion

Because the fee differentials do not “classify persons based on protected characteristics, such as race, alienage, national origin, or sex” or “affect the exercise of fundamental rights,” rational basis review applies.  Under this standard of review, challenged government action will satisfy the equal protection requirement if “there is any conceivable state of facts that could provide a rational basis for the classification.”

Here, “California has a ‘substantial reason’ for charging nonresident differentials. It has an obvious interest in recovering from nonresident commercial fishers their share of the benefit provided to them by its management of its commercial fishery. Congress has recognized this interest as legitimate[7]. But even absent such congressional endorsement, California’s interest in receiving compensation for the benefit its management confers provides a “rational basis” for its fee differentials.”

Dissent

As previously mentioned, the dissent would find the fee differential statues unconstitutional under the Privileges and Immunities Clause.  Key to their analysis is that nonresidents do pay into the general fund via income tax, excise tax, sales and use tax.  The dissent also challenges the Court’s assignment of the evidentiary burden.  “[I]t is California that must demonstrate that the differentials recoup a subsidy funded only by its residents. Hence, any purported lack of evidence on the tax liability of nonresident fishermen counts against the State, not the other way around.

Thoughts

This was not a unanimous decision which lends some credibility to the likelihood of Plaintiffs seeking review before the US Supreme Court.  Unless and until the Supreme Court overturns this decision, States are free to develop and implement differential fee structures on nonresident commercial fishers provided they comply with the teachings of this case.

If you are interested, you can watch a recording of the en banc hearing here – https://www.youtube.com/watch?v=Kb3LL2m8dmU

[1] See – https://cdn.ca9.uscourts.gov/datastore/opinions/2016/12/21/13-17358.pdf

[2] The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. US Const Art IV §2, cl 1

[3] The DFW’s “year” for commercial fishing purposes runs April 1 through March 31.

[4] The underlying lawsuit challenged the following sections of the Fish and Game Code: §7852 – Commercial fishing licenses; §7881 – Commercial fishing boat registration; §8550.1 – Herring gill net permits;  and §8280.6 – Dungeness crab vessel permits.

[5] Toomer v. Witsell, 334 U.S. 385 (1948) and Mullaney v. Anderson, 342 U.S. 415 (1952),

[6] The three named plaintiffs paid either no or minimal California income tax.

[7] See Pub. L. No. 109-13, § 6036(b)(1), 119 Stat. 231 – “IN GENERAL.—It is the policy of Congress that it is in the public interest for each State to continue to regulate the taking for any purpose of fish and wildlife within its boundaries, including by means of laws or regulations that differentiate between residents and nonresidents of such State with respect to the availability of licenses or permits for taking of particular species of fish or wildlife, the kind and numbers of fish and wildlife that may be taken, or the fees charged in connection with issuance of licenses or permits for hunting or fishing.

Pacific Council on proposed Marine Monument

Today, the Pacific Fishery Management Council sent a letter to President Obama expressing concern about “how these National Monument designations would impact our fishery management efforts in the west coast Exclusive Economic Zone.”

In it, the Council stresses:

1. All of the areas proposed for designation already have significant protections from specific fishing activities.  For example – Essential Fish Habitat requirements under the Magnuson-Stevens Fishery Conservation and Management Act; and Cowcod Conservation Areas off the Southern California coast.
2. Fishery management decisions are best done in a thoroughly transparent public process rather than being done with limited involvement of certain stakeholders.
3. The social and economic importance of those areas cannot be understated.

Based on our track record of collaboration, effective fisheries and habitat management, the Pacific Council recommends fishery management decisions in the US West Coast Exclusive Economic Zone remain exclusively under authority of the MSA. (Page 3)

California’s offshore seamounts at risk of being closed

It has long been rumored that conservation groups were hoping to have the President use the Antiquities Act to designate Tanner and Cortes banks as National Marine Monuments.  Finally, this rumor has been put on paper and its reach is far more than just the two areas mentioned above.  The areas in grey below are those being proposed for Monument designation.

The full text of “The Case for Protecting California’s Seamounts, Ridges and Banks” is available here – Proposal to designate national monument.

Unlike the substantial public process that accompanies creation of a National Marine Sanctuary, designation of an area as a National Marine Monument is done outside the public eye – under the Antiquities Act.  The Antiquities Act (54 USC §320301 et seq) empowers the President to, “in the President’s discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.”  In a letter to the White House Council on Environmental Quality, the Fisheries Survival Fund stated it well:

“A monument designation, with its unilateral implementation and opaque process, is the exact opposite of the fisheries management process in which we participate,” the letter states. “Public areas and public resources should be managed in an open and transparent manner, not an imperial stroke of the pen.” See – http://www.savingseafood.org/news/washington/atlantic-sea-scallop-group-opposes-atlantic-marine-monument-says-contradicts-presidents-order/

Fishing interests and the communities which rely upon them are dealing with a similar proposal off the East Coast.  There a 35,000 square mile stretch of ocean is being considered for Monument designation.  On the East Coast, the Atlantic States Marine Fisheries Commission with the backing of major fishing groups and the most valuable fishing port in the U.S. (New Bedford, Mass) has written the President and “urged the President and the White House Council on Environmental Quality (CEQ) for transparency and a robust opportunity for public input as the Administration considers designating a National Monument through its authority under the Antiquities Act.” See – http://www.savingseafood.org/wp-content/uploads/2016/05/pr14MarineMonuments.pdf.

We have been led to believe that many of California’s Congressional Delegation oppose this proposal.  We are working with our clients and other interested parties to try and ensure this proposal receives the attention it deserves.  Backroom deals and catering to the interests of a few is no way to go about closing vast areas off the California Coast.  The proposal’s authors and backers should have their ideas and claims vetted in a process that is fully public so that an informed decision can be made.

Pacific Bluefin Tuna and California’s fisheries – looking ahead

The Inter-American Tropical Tuna Commission’s (“IATTC”) Science Advisory Committee (“SAC”) will be meeting in La Jolla this week (May 9 – 13).  One of the topics up for discussion is Pacific bluefin tuna: updated assessment and management.  For California’s recreational and commercial fishermen, the 2014 stock assessment update for Pacific bluefin tuna (“PBF”) had profound impacts.

• Recreational fishermen saw their daily limit reduced to two fish per day with a trip limit of six for trips three-days in length or longer in US waters. Mexico initially banned the take of PBF in their waters; but have since adopted limits which mirror those imposed by the US.

• Commercial fishermen, who had been assured access to at least 500 metric tons (“mt”) per year, saw a quota imposed which reduced landings to a combined 600 mt for the 2015 and 2016 seasons.

These reductions were the direct result of actions taken by the IATTC in response to the 2014 stock assessment update.  That update found (1) the biomass of pacific bluefin was at an extremely low fraction of its unexploited biomass (around 4.2%); (2) it was highly depleted and (3) experiencing overfishing.  IATTC Resolution C-14-06[1] included conservation measures designed to achieve a reduction in catches of 20% to 45% to address these findings.

A new stock assessment for PBF is scheduled to be finalized and published later in 2016.  In advance of the SAC meeting, the International Scientific Committee for Tuna and Tuna-like Species in the North Pacific Ocean (“ISC”) provided a Draft Executive Summary of the 2016 Pacific Bluefin Stock Assessment[2] (“Executive Summary”). IATTC staff, using the Draft Executive Summary, prepared a document for the SAC meeting entitled Updated Assessment and Management of Pacific Bluefin Tuna[3] (“IATTC Document”).

What do these documents show and should California’s recreational and commercial fishermen be worried about further reductions?

The 2016 Stock Assessment

A full analysis of how the biomass for PBF is estimated is beyond the scope of this document.  Having said that, we think a brief primer on how the stock assessment works is in order.  In short, it is based on a computer model which uses catch per unit of effort and length-composition data from a number of PBF fisheries throughout the Pacific[4] as inputs[5].  Also accounted for are assumptions regarding natural mortality and hypothetical recruitment scenarios.  After the information is input, the model produces an estimate for both total biomass and that portion of the total capable of reproducing – spawning stock biomass (“SSB”).

The 2016 stock assessment is being touted as an improved assessment model which is much better than the previous models; but is still thought to be problematic in terms of rebuilding projections.   The Executive Summary makes the following statement, “In this assessment, the ratio of spawning stock biomass *  *  * relative to the theoretical unfished biomass * * * is 2.6%.”[6]  This is less than the 4.2% figure from the 2014 stock assessment update; and would support the idea that further management measures are necessary.  However, if we delve deeper into the documents mentioned above, we see a glimmer of hope.

After giving the 2.6% value, the Executive Summary offers a comparison to the 4.2% number taken from the 2014 update. “Although the [ratio] for this assessment (2.6%) is lower that the [ratio] from the 2014 assessment (4.2%) this is due to the changes in the model assumptions because SSB gradually increased in the last four years and does not represent a decline in SSB from 2012 – 2014.”[7]  In short, it is likely that the 2.6% value currently under consideration by the ISC may represent an increase over what the 2014 value would have been had the current stock assessment methods been in use.

In December of 2015, the Western and Central Pacific Fisheries Commission (“WCPFC”) adopted Conservation and Management Measure 2015-04 which stated an initial goal of rebuilding the SSB (of PBF) to the historical median (42,592 t) within 10 years with at least 60% probability[8].  The stock is still overfished and subject to overfishing; but is projected to meet the WCPFC mandate under current management actions.  This would support a decision by the IATTC to not impose further restrictions on California’s PBF fisheries.  The document prepared by IATTC staff offers a somewhat different view.  Based on uncertainty in terms of how recruitment is related to spawning stock biomass and the small number of individuals that comprise the spawning stock biomass, “it is recommended that further action be taken to protect the spawning population.”[9]

What further action(s)

When contemplating how management measures may impact PBF, we need to be mindful of the impacts the various fisheries have on the stock.  The following two graphs show landings of PBF by Country and then by gear type:

 

Figures taken from Executive Summary, page 2.

In 2014, US Commercial vessels landed a total of 404 mt[10] while California commercial passenger-carrying fishing vessels were thought to have landed 27,321 fish with an estimated tonnage of 423.5 mt[11][12].  By comparison, the other fisheries (by nation) informing the stock assessment reported landings as follows:  Japan – 9,604 mt; Korea – 1,311 mt; Taiwan – 483 mt; Mexico – 4,862 mt; Australia and New Zealand – 12.[13]  Total reported landings of PBF for 2014 was 17,076 of which the US accounted for less than 5%.

It is generally accepted that PBF spawn only in the Western North Pacific Ocean (“WPO”) and that a portion of juvenile PBF make trans-Pacific migrations to the Eastern North Pacific Ocean (“EPO”), spending up to several years of its juvenile life stage here before returning to the WPO.  Last summer, when larger PBF were taken in the EPO, fishery biologists searched for evidence of spawning in the EPO but none of the fish studied showed signs of sexual maturity (ie – roe or sperm).

As to relative impacts on the stock – when comparing fisheries in the WPO to those in the EPO – the Executive Summary makes the following statement, “Historically, the WPO coastal fisheries group has had the greatest impact on the PBF stock, but since about the early 1990s the WPO purse seine fleets, in particular those targeting small fish (age 0-1), have had a greater impact, and the effect of these fleets in 2014 was greater than any of the other fishery groups. The impact of the EPO fishery was large before the mid-1980s, decreasing significantly thereafter. The WPO longline fleet has had a limited effect on the stock throughout the analysis period (Figure 7). This is because the impact of a fishery on a stock depends on both the number and size of the fish caught by each fleet; i.e., catching a high number of smaller juvenile fish can have a greater impact on future spawning stock biomass than catching the same weight of larger mature fish.”  See Executive Summary Page 9.

Conclusion

We have already seen some conservation groups highlighting the 2.6% and how it shows further decline in the status of PBF.  As discussed above, the 4.2% figure from the 2014 stock assessment update would be lower if calculated using the proposed 2016 stock assessment methodologies.  The Executive Summary notes that “the decline in SSB appears to have ceased since 2010, although the stock remains near the historic low”.

If we are to assume the goal is to comply with the WCPFC’s 2015 Conservation and Management Measure of having a 60% probability of rebuilding the SSB of PBF by 2024, then no additional restrictions are necessary on California’s PBF fisheries (commercial and recreational).  The Executive Summary concludes with the following statement, “Under all examined scenarios the initial goal of WCPFC, rebuilding to SSB_MED by 2024 with at least 60% probability, is reached and the risk of SSB falling below B_loss at least once in 10 years was very low.”  If, however, we are facing an unstated goal with loftier ambitions, our fisheries may be asked to contribute more to the rebuilding efforts.

We also must consider the international aspect of this stock.  While it would be easy to point the finger at the fisheries operating in the WPO, those fisheries have been very good at convincing the international fishery management organizations (IATTC and WCPFC) that restrictions need to be implemented wherever PBF are targeted and landed.  It will be incumbent upon US representatives to those Commissions to keep the relative small impact US vessels have on the PBF stock in mind as they negotiate proposed management measures.  California based commercial and recreational fishermen; and the coastal communities that benefit from and rely upon those fisheries, should not be used as pawns in a larger game.

______________________________________________________________

[1] See – https://www.iattc.org/PDFFiles2/Resolutions/C-14-06-Conservation-of-bluefin-2015-2016.pdf

[2] See – http://www.iattc.org/Meetings/Meetings2016/SAC7/PDFfiles/INF/SAC-07-INF-C(a)-ISC-Letter-IATTC-Executive-Summary.pdf

[3] See – http://www.iattc.org/Meetings/Meetings2014/MAYSAC/PDFs/SAC-05-10a-PBF-stock-assessment-and-management.pdf

[4] A total of 16 Fleets were defined for use in the 2016 stock assessment model based on country/gear/season/region stratification.  Thee Fleets are:  (1) Japanese longline; (2) Japanese small pelagic fish purse seine fishery in the East China Sea; (3) : Korean offshore large purse seine; (4) Japanese tuna purse seine fishery in the Sea of Japan; (5) Japanese tuna purse seine fishery off the Pacific coast of Japan; (6) Japanese troll; (7) Japanese pole and line; (8 – 10)  Japanese set-net fisheries; (11) Japanese other fisheries – mainly small-scale fisheries in the Tsugaru Strait; (12) Taiwanese longline fishery; (13) Eastern Pacific Ocean commercial purse seine of USA; (14) Eastern Pacific Ocean commercial purse seine of Mexico; (15) Eastern Pacific Ocean sports fishery; and (16) Japanese troll fishery for farming.

[5] If you really want an in-depth overview of the inputs to the 2016 Stock Assessment – see the ISC Pacific Bluefin Working Group’s document entitled, Input data of Pacific bluefin tuna fisheries for stock assessment model, Stock Synthesis 3; Update for 2016 assessment, accessible at http://isc.fra.go.jp/pdf/PBF/ISC16_PBF_1/ISC_16_PBFWG-1_03_Sakai.pdf

[6] See Page 8 of Executive Summary

[7] Ibid

[8] See Page 2 – https://www.wcpfc.int/system/files/CMM%202015-04%20Conservation%20and%20Management%20Measure%20to%20establish%20a%20multi-annual%20rebuilding%20plan%20for%20Pacific%20Bluefin.pdf

[9] See Page 4 of IATTC Doc

[10] http://www.westcoast.fisheries.noaa.gov/fisheries/migratory_species/bluefin_tuna_harvest_status.html

[11] See – http://www.pcouncil.org/wp-content/uploads/I3b_Sup_CDFW2_Rpt_NOV2014BB.pdf (page 1)

[12] For 2015, US Commercial vessels landed a total of 96.1 mt and CA CPFVs are estimated to have landed 21,062 PBF.

[13] See Table 1 beginning on Page 15 of the Input data of Pacific bluefin tuna fisheries for stock assessment model, Stock Synthesis 3; Update for 2016 assessment at http://isc.fra.go.jp/pdf/PBF/ISC16_PBF_1/ISC_16_PBFWG-1_03_Sakai.pdf

Alternate Safety Compliance Programs

Amendments made to 46 USC §4503 by the Coast Guard Reauthorization Act of 2010 will require certain fishing vessels, fish processing vessels or fish tender vessels comply with alternate safety compliance programs.

What vessels are covered?

Vessels that are (A) at least 50 feet overall in length[1]; (B) built before July 1, 2012; and (C) 25 years of age or older.

or

A vessel built before July 1, 2012 and undergoes a substantial change to the dimension of or type of vessel completed after the date the Secretary establishes standards for an alternate safety compliance program.  This is being referred to as the “major conversion” requirement.  See 46 USC §4503 – https://www.law.cornell.edu/uscode/text/46/4503

Now that we know which vessels are covered, what is an alternate safety compliance program?

In short, it is a vessel compliance program for US-based commercial fishing vessels.  There will be some requirements which will apply without regard to which fishery you participate in or geographic region your vessel operates.  For example – all vessels are, and will continue to be, required to carry adequate safety equipment.  There may be regional and/or fishery specific differences depending on hazards and/or how a fishery is prosecuted.  For example, de-icing equipment- which is necessary to guard against a hazard in Alaska and parts of northern New England,  would not be a necessity off California.  West coast pole and line albacore vessels will likely have different requirements than west coast fixed gear fisheries based upon gear types and how they fisheries are prosecuted.  ASCPS are designed to be a safety agreement between commercial fishing vessels and the USCG.  Particulars of the program will be set forth in regulations under Part 28 of 46 CFR.

Why is this being done?

In short, safety.  As mentioned, the Coast Guard Reauthorization Act of 2010 created these programs.  In general, the older the vessel, the more likely it is to experience a catastrophic event. While the Coast Guard does not have authority to require inspection of commercial fishing vessels, it does have the authority to examine these vessels to ensure compliance with safety standards.  Standards to ensure a well-maintained fleet of vessels and application of equivalent safety standards on older and modified commercial fishing vessels are needed to improve safety of the vessel. Construction and maintenance standards have been needed for some time and had never been fully addressed in either the law or regulations.

What is the “Matrix” and how was it developed?

The Matrix is a graduated list of proposed items to be considered by regional working groups to reduce risks in their particular region or with particular fleets.  See http://www.uscg.mil/d13/cfvs/PDFs/ASCP_MatrixDraft_10_30_20_15.pdf for the most current version of the Martix.  Yes, it is daunting; but it needs to be looked at.  We will discuss this in greater detail below.

If these aren’t required until 2020, why are we talking about it now?

It is envisioned that these programs will vary depending on fishery and geographic location of a specific fishery.  The USCG is reaching out to commercial fishers and commercial fishing groups in an attempt to tailor these programs to specific fisheries and geographic locations.  The goal of these programs is to increase safety to fishermen.  The USCG has been required to develop and define these programs by 2017 to give vessel owners/operators sufficient time to make any necessary modifications before these programs go into effect in 2020.

What does this all mean?

We were present at a recent meeting and were given a presentation on these programs.  The Powerpoint provided closely mirrored this one – https://www.uscg.mil/d13/cfvs/PDFs/ASCP_Update_2015.pdf.  During the presentation, we were informed that if your overall length borders on 50 feet, you should plan on having to comply (in other words, they will go out of their way to find a measurement which exceeds the 50-foot threshold).  Note – if you participate in more than one fishery and those fisheries have different requirements under their particular program, you will be required to comply with the more stringent program.  For example, if you have a HMS permit with authorizes you to fish pole-and-line for tunas and you also have a Dungeness Crab Permit, you would have to comply with the requirements for the Dungeness Crab Fishery if they are more strict than those decided upon for your pole-and-line fishery.

How can I participate?

The USCG is scheduling hearings/workshops on these programs.  An event took place in Westport, Wa on April 28 and another is scheduled for May 4 in Half Moon Bay.  “Fishermen and representatives of fishing organizations are encouraged to participate in either of the two meetings * * * and provide input to help shape effective and efficient safety standards.”  We assume similar hearings/workshops are taking place in other parts of the Country.  Best to check with your local Coast Guard District office for additional information.

Looking more closely at the October 30, 2015 Draft Matrix.

I can’t stress enough how important it is for you to read through this and comprehend what is being asked.  “The matrix is designed to be a starting point and is not all inclusive. It is desired to keep programs as standard as possible while allowing flexibility to address regional and fishery-specific risks, as well as considering regional limitations.”

Some of the items contained in the Matrix apply in all areas and to all fisheries, while others are regionally based (typically based on the Coast Guard District you are operating in) and/or fishery based.  As a reminder – California is in District 11, Oregon and Washington in District 13, Alaska in District 17 and Hawaii in District 14.  Fisheries within a particular District can have different requirements based on special hazards and/or higher risks associated with that fishery.

The Draft Matrix begins on Page 11.  Remember – this is only a draft.  These are the types of things you should be thinking about as you read through the proposed requirements.

Requirement	Things to Consider
Risk Evaluation and Casualty Review NIOSH is the National Institute for Occupational Safety and Health[2] 1.       Evaluate marine casualties 2.       Evaluate risks (measured and unmeasured) 3.       Prioritize job hazards	1. 2.  Once such unmeasured risk would be fatigue. 3.
Administration 1.       Decal/COC 2.       ASCP Endorsement 3.       Multiple fishery compliance 4.       Random Drug/Alcohol testing	1. 2. 3. 4. Could this mirror program(s) implemented for CPFV fleets.
Methods to reduce fatalities from falls overboard 1.       Written policy re use of PFDs 2.       Fishing Co administrative controls 3.       Increase effectiveness of drills 4.       Recovery devices 5.       Safe means of embarking/disembarking 6.       Railing & Bulwark height 7.       Slip prevention 8.       Personal locator beacons/MOB alarm 9.       Tethering other MOB prevention 10.    Self-Rescue	1. 2. PFDs on deck restrict maneuverability 3. 4. 5. 6. Told this was unlikely 7. 8. 9. 10. Solo operations (light boats)
Stability 1.       Stability verification 2.       Stability instructions 3.       Stability instructions compliance 4.       Operational limitations 5.       High capacity AUTOMATIC bilge pumps 6.       Best practices notice 7.       Admin controls to avoid icing	Note – this is highly unlikely 1. I can see shifting loads in a hatch being problematic 2. 3. 4. Cp loads when crossing a bar vs calm of So Cal Bight 5. Define high capacity 6. 7. Let’s hope this is never an issue
Watertight and Watertight Integrity 1.       General 2.       Doors at deck level 3.       All weathertight/watertight closures 4.       Hatches 5.       Down flooding points 6.       Vents 7.       Below deck watertight doors, hatches, etc 8.       Sea and Overboard valves 9.       Written Instructions 10.    Pre-departure checks/logs	1. Costly??? 2. 3. 4. 5. Is downflooding an issue 6. Will this require modifications on many vessels 7. 8. Will PVC be an approved material 9. 10. Are we “at high risk of flooding/capsizing”?
Lifesaving Equipment & Arrangements 1.       EPIRBs upgraded to GPIRBs 2.       Liferafts 3.       Immersion suits lights	1. Plan on this 2. Cold water defined as < 59 degrees 3. See above
Drydock and Internal Structural Exam – note requirement re wood vessels 1.       Hull exam 2.       Examine 3.       Sea chests 4.       Sea and Overboard Valves 5.       Sea Strainers 6.       Valves for Emergency bilge suction 7.       Tail-shaft and rudder	Unless you own a wood vessel, I cant imagine this being problematic 1. 2. 3. 4. 5. 6. 7.
Machinery Systems 1.       Piping and Valves 2.       Fuel System 3.       Remote Fuel shutoffs 4.       Sight gauges 5.       Preventative Maintenance Log 6.       Visual Exam of Vital System Piping 7.       Electrical Systems	1. 2. 3. 4. 5. 6. 7. Any appeal process or is Inspector’s discretion all?
Fire Prevention and Mitigation 1.       Fire safety hazard survey 2.       Where applicable and appropriate 3.       Non-combustible insulation 4.       Guards and Exposed Hazards 5.       Fuel tank vents 6.       Smoke detectors 7.       Deck water/fire pump – if installed 8.       Portable fire/dewatering pump 9.       Required fixed fire fighting systems? 10.    Minimum requirements re fixed firefighting 11.    Best practices re fire prevention and control 12.    Fire and safety plan 13.    Structural fire protection	1. 2. Is this practicable? 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.
Crew and Deck Safety 1.       Specific to gear type 2.       New crew orientation and training 3.       Freon and refrigerant detectors 4.       CO2/Halon detection systems 5.       Confined space entry procedures 6.       Self-contained Breathing Apparatus 7.       Slip/Trip/Fall Prevention and Protection 8.       Winch/drum protection 9.       Crane and Boom Safety 10.    AED, Medical Oxygen and Training 11.    Lock out Tag out procedures	1. 2. 3. What is adequate ventilation? 4. 5. Any common hazardous gases? 6. Comments needed 7. 8. Pay attention to this one. 9. 10. 11.
Diving Safety 1.       Diving Safety	1.
Emergency Drills and Training 1.       Required # of qualified drill conductors 2.       Record keeping 3.       Communications	1. If between 6 and 12 crew – need 2 2. 3.
Methods to combat fatigue 1.       Crew endurance plan and training 2.       Install watch alarms	1. 2.
Collision Avoidance 1.       Blind sectors 2.       Radar proximity alarms 3.       AIS	1. Navigation Rule 5[3] 2. Given where you operate, high likelihood of use? 3. Already required if > 65 feet.

 

 

[1] This will generally be “A few feet longer than the registered length” – See slide 4 of https://www.uscg.mil/d13/cfvs/PDFs/ASCP_Update_2015.pdf

[2] NIOSH website on Commercial Fishing Safety on the West Coast – http://www.cdc.gov/niosh/topics/fishing/westcoastregion.html

[3] § 83.05 Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.

Pacific sardine – when reality appears to differ from what we are told

As we all know, the directed harvest of Pacific Sardine was not allowed for the season running July 1, 2015 – June 30, 2016.  We previously provided an explanation on how the harvest level for Pacific Sardine is calculated – see here.  In 2015, the adjusted biomass estimate was 96,688 metric tons.  This estimate was based, in good part, on average recruitment during the previous years (those years were cold-water La Nina years which typically don’t result in high sardine recruitment).  This 96,688 figure was the low estimate, the high estimate was 136,000 mt; but the lower number was recommended because virtually no recruitment was observed.

Because this was less than the cutoff amount of 150,000 mt, no directed non-tribal fishery was authorized.  According to reports[1], the preliminary biomass estimate proposed for the 2016-17 fishery season is a little over 64,000 mt.   Once again, the average of the last three year’s recruitment helped to inform this estimate.  The model also produced a much higher estimate of 106,000 mt; but that is disfavored by the Assessment’s authors.  Both of these numbers ignore the observed recruitment event which we discuss further below.

If the 64,000 mt estimate is approved, it will again result in no directed, non-tribal, fishery for the season running July 1, 2016 – June 30, 2017.  Commercial fishermen who target sardines, their families and the coastal communities who rely upon sardine harvest will face further uncertainty and extreme hardship.

Because this is an “update” to an existing stock assessment, very little flexibility if given to scientists and fishery managers to modify the model or methods used to produce the estimate.  Further, the current pacific sardine harvest control rule allows no discretion for the Pacific Fishery Management Council and fishery managers to allow a directed non-tribal fishery if the biomass estimate falls below the 150,000mt cutoff[2].  What we do want to call into question are the data and methods used to estimate the biomass.

While we acknowledge the pacific sardine biomass has declined since 2007, we do not believe the decline has been as severe as reported; and there is evidence that populations may be expanding again.  Sardine populations have declined in the years since 2007 due to strong La Niña cold-water conditions, not conducive to sardine productivity.  A similar situation occurred during the strong La Niña conditions in 1999-2001, when the sardine population also declined rapidly.   However, the 2003 El Niño resulted in strong recruitment in the following years, leading to a peak in abundance in 2007.    The 2015 El Niño is producing a similar response.

The 2015 Stock Assessment references a “lack of evidence for spawning in 2014”[3].  During the summer of 2015, we were repeatedly told of vast amounts of smaller sardines in various places along the southern California coast and Channel Islands.  These were of a size that would have been the result of 2014 and early 2015 spawning.  On more than one occasion, we delivered samples of these smaller fish to show there had been recruitment and that some of the assumptions in the 2015 Assessment may prove to be false.  Pilots who assist and have assisted California fishermen reported seeing abundant schools of sardine.   A pilot who has extensive experience spotting for the Oregon and Washington sardine fishery, was flying his plane from Sitka to Oregon last fall and reported seeing more sardine than he has ever seen.  This past weekend, we were told that Monterey Bay has so much sardine in it that vessels hoping to target anchovies are unable to work without the risk of incidentally catching too much sardine.   These harvesters and pilots are concerned that the science use to determine biomass is somehow missing a population which is much stronger than presented.

How is the sardine biomass estimated?

The Stock Assessment provides the basis for management decisions impacting the pacific sardine fishery.  In recent history, the stock has been fully assessed every three years with updates provided annually.  As noted above, this year is an update assessment and a full stock assessment is scheduled for 2017.  The assessment is model based, which means certain data are collected and become inputs.  The model (think computer program) then produces the output, which for our purpose is the estimated biomass of Pacific sardine age 1 and older.  Types of information that provide the data inputs include:

• Landings from the three most recent fishing seasons;
• Size structure of samples collected from those landings;
• Age structure of those same samples;
• A measure of the daily egg production method (DEPM) if an estimate can be provided[4].
• An estimate of the biomass gathered from spring and summer surveys using the acoustic trawl method.

Possible limitations for each data element

Recent landings.  We know that actual landings from the three most recent fishing seasons are collected and broken down by region.  These landings are then subtracted from the estimated biomass in helping to inform the next year’s assessment.  Is the model robust enough to account for regional fluctuations?  The cold water regime we recently experienced was a boom for the California squid fishery.  Squid is a much more valuable target than sardine.  This led to reduced targeting of sardine in California.  Does the model take into account that those fishermen were likely targeting a higher value product – squid or mackerel for example – and that lower sardine landings in California is not indicative of unavailability?

Size and age structure.  Sardines harvested off Oregon and Washington tend to be larger than those taken in southern California.  As mentioned above, California landings may be artificially low given the availability of higher valued alternatives; consequently, does the model become skewed with a higher percentage of the Harvest Guideline being landed in Oregon and/or Washington?  For example, does a higher percentage of larger and older fish inform the model that recruitment events are less than they may have been in reality?

Daily egg production method (DEPM).  In the Spring of each year, ship-based surveys are conducted to collect adult sardines and sardine eggs or larvae in fine meshed nets.  Between 1994 – 2013, these surveys ran between San Diego and San Francisco.  Based on the number of eggs/larvae and adult female sardines, an estimate of the DEPM was derived.  In 2014, the survey returned no valid data and thus, DEPM could not be estimated.  In November of 2015, the Southwest Fisheries Science Center submitted its Summary of Current Information Available on Coastal Pelagic Species with Emphasis on Northern Anchovy.[5]  While the emphasis may have been on northern anchovy, it offered some valuable information on pacific sardine:

• Sardine eggs are rarely found north of San Francisco in the spring, but in 2015 sardine spawned 445–556 km further north than usual (emphasis in original).[6]
• Larval sardine captured during the spring CalCOFI/CPS cruise suggest additional spawning occurred outside the traditional spawning period and thus might negatively impact DEPM value estimates.[7]
• “Pacific sardine eggs were collected from southern California to the Pacific Northwest suggesting that sardine were spawning during June in the southern California Bight, in July off San Francisco, off central Oregon in July and off the Columbia River in August.[8]”
• During a Juvenile Rockfish Midwater Trawl survey for pelagic juvenile rockfish, conducted off the coast of Central California in May and June of 2015, “the abundance of adult Pacific sardine and northern anchovy remained very low, although larval catches for both species were at high or record levels in most areas.[9]”

Have these observations from 2015 been accounted for in determining DEPM moving forward and could they retroactively offer an explanation for the lack of observations in 2014?  Regarding the collection of adult sardines and eggs/larvae in towed nets, what effect does a deeper thermocline have on the collection density?  Is it likely that if warmer water extends deeper you would expect to see less collectible samples higher in the water column? All of those observations lead to the logical conclusion that spring and early summer of 2015 were banner times for sardine recruitment.  These fish would be age 1+ as of July 1, 2016, yet the stock assessment shows a 33% drop in the biomass?

Acoustic Trawl Surveys.  These surveys couple acoustic electronic gear (echosounder) with a trawl to validate species measured and captured.  For those unfamiliar with echosounder gear, it provides a picture of what lies directly under the vessel.  Its coverage is cone shaped – widening as it goes deeper in the water column.  In 2011, the Council’s Methodology Review Panel noted, “[t]he transducer is mounted on a blister or keel extending from the vessel hull, precluding observation of animals present nominally 10 m below the surface.[10]”  Spotter planes are often used to target sardines, especially off the Pacific Northwest.  Most, if not all, of the schools seen by these pilots would be invisible to the acoustic trawl survey vessel.  Given the acoustic’s inability to observe the top 10 m of the water column and ineffectiveness in shallow waters, is this a reliable method?  Commercial fishermen report that sardines avoid having a vessel drive right over the top of them, couldn’t this artificially lower the estimated school size as the sounder only picks up what is under the vessel.  The model assumes that the acoustic trawl method will account for all fish in the surveyed area.  This ignores how sardines react to vessels.   A new vessel is scheduled to join the research activities in the very near future.  This vessel, the Reuben Lasker,[11] is equipped with a side-scanning sonar.  Hopefully the Council will prioritize a methodology review which will allow the new research vessel, the FSV Reuben Lasker, to become operational in informing the stock assessment.

Conclusion

We appreciate the complexity surrounding the stock assessment process.  We understand that this is not a full stock assessment year; but merely an update.  We also acknowledge the harvest control rule offers little discretion once an estimate of the biomass is accepted.  We do question the validity of the biomass estimation because it does not reflect what the fishermen and pilots have observed.  We think we have raised a number of questions which are worthy of further consideration before the assessment is finalized.

_______________________________________________________________

[1] The Assessment of the Pacific Sardine Resource in 2016 for USA Management in 2016-17 has been made public in a number of places.  The title page of the Assessment contains the following, “DO NOT CITE OR DISTRIBUTE WITHOUT PERMISSION FROM THE AUTHORS”.  Therefore, we will only reference the biomass estimate which has been widely reported and not any of the other information from the Assessment until it has been released to the public by those with authority to do so.

[2] This amount has been set aside for ecosystem needs.

[3] See Page 9 – http://www.pcouncil.org/wp-content/uploads/2015/03/G1a_FullSardine_Assessment_E-ONLY_APR2015BB.pdf.

[4] Id at 8.

[5] http://www.pcouncil.org/wp-content/uploads/2015/11/H3a_Sup_SWFSC_Rpt_Nov2015BB.pdf

[6] Id at 2.

[7] Ibid.

[8] Id at 3.

[9] Ibid.

[10] See Page 10 – http://www.pcouncil.org/wp-content/uploads/C3a_ATT1_ACOUSTIC_METH_APR2011BB.pdf

[11] “The Lasker is the fifth in a series of Oscar Dyson-class ships (208 ft; 63m) home ported in San Diego. It is equipped with technologies for fisheries and oceanographic research, including advanced navigation systems and acoustic sensors, five-frequency split-beam echosounders, and scanning, multi-beam and imaging sonars (EK60s, ME70, MS70, SX90). The ship is engineered to produce less noise than other survey vessels and should facilitate studies of fish behavior that could potentially impact our current estimations of sardine as well as other CPS abundance. Regrettably, the first time the SWFSC will be able to use the FSV Lasker to assess sardine will be in the spring of 2016 (30 DAS) and again in the summer of 2016 (78 DAS).” See page 2 – http://www.pcouncil.org/wp-content/uploads/2015/10/H4a_SWFSC_Rpt1_AcousticTrawl_Nov2015BB.pdf

City of Charleston v A Fisherman’s Best – how much longer will this be good law?

In 2002, the Fourth Circuit addressed preemption in the fisheries arena.  The recent decision of the Ninth Circuit in Chinatown Neighborhood Assn v Kamala Harris 794 F.3d 1136, 2015 WL 4509284 (9th Cir. 2015) over California’s Shark Fin Law stands in contrast to the lessons highlighted below.  The Supreme Court has been asked to address the Circuit split which resulted from the Chinatown case – it has not yet answered the Petition for Writ of Certiorari.

Overview:

In City of Charleston v. A Fisherman’s Best[1], a divided Fourth Circuit Court of Appeals ruled that a City Resolution[2] which targeted fishermen utilizing a specific gear type was preempted by duly adopted regulations of the federal government.

Facts: 

The City of Charleston desire to revitalize its waterfront and one of the major beneficiaries was to be a distressed local commercial fishing industry.[3]  Redevelopment of the Charleston Marine Center was to be a cornerstone of this revitalization effort.  The City, through the Charleston County Park and Recreations Commission, accepted a proposal “to manage a full-scale commercial pier, sub-lease moorings to commercial shrimpers and fishing vessels, and operate related support facilities such as a retail/wholesale packing facility and fuel and ice”.  A Fisherman’s Best[4] was one of the parties whose proposal was accepted.   The City, which initially supported the Center’s proposed use, had a change in heart.  This resulted in terminating negotiations with the commercial fishing interest whose proposal had been accepted.  The City Council of the City of Charleston enacted a Resolution which, in effect, closed off access to the Charleston Maritime Center (and its facilities) to vessels utilizing pelagic longline gear.  The Resolution also barred commercial businesses from “purchasing, processing or unloading any fish from or caught by pelagic longline vessels.”  It also contained a provision barring the sale, purchase, processing or unloading of any billfish or swordfish at its facilities. 

Procedural Background:

Shortly after adopting the Resolution, the City brought suit seeking a declaratory judgment that the resolution did not violate the rights of the A Fisherman’s Best or the others who submitted the original proposal (collectively “Defendants”), and that operating the facility per the terms of the Resolution would not be forbidden under the Constitution of either the United States or the State of South Carolina, nor would it violate any federal or state law.   Defendants raised numerous concerns about the Resolution.  Most importantly, its implementation was preempted by federal law – namely 16 U.S.C. § 1801 et seq.[5], the Magnuson-Stevens Fishery Conservation and Management Act.

The lower court granted summary judgment to the City on all claims; thus upholding the Resolution. 

Issue:

Whether the state action, the Resolution, interferes with or is contrary to the laws of Congress (here – The Magnuson-Stevens Fishery Conservation and Management Act[6] (“MSA”)) made in pursuance of the Constitution?

Holding:

The Resolution conflicts in numerous ways with federal laws and, therefore, is preempted.

Preemption – overview: 

Preemption, at its simplest, asks whether state action conflicts with a valid federal law.[7]  A fishery management plan created pursuant to federal law may form the basis for preemption.

The first step in the preemption analysis is the intent of Congress.  Federal and state law conflict when “the state law stands as an obstacle to the accomplishments of the full purposes and objectives of federal law.[8]”  Preemption comes in two forms:

Express preemption – where Congress has declared an intention to preclude state regulation in a given area.

Implied preemption – where Congress, through the structure or objectives of federal law, has implicitly precluded state regulation in the area.  There are two ways in which implied preemption can be shown:

Conflict Preemption – where Congress did not necessarily intend preemption of state regulation in a given area; but the particular state law conflicts directly with federal law or stands as an obstacle to the accomplishment of federal objectives.[9]

Field Preemption – when the federal scheme of regulation of a defined field is so pervasive that Congress must have intended to leave no room for the states to supplement it.

Federal fisheries laws involve a multitude of statutes and in a regulatory system that Congress intends to be national in character.  While States have freedom to act upon their waters (or those certain fisheries which the Federal Government has delegated management to a State or States), this federal system is very tightly regulated.  The Eleventh Circuit has said that the legislative history of the Magnuson Act preempts the entire field of fishery management of the EEZ.[10]

Analysis:

Before reporting on the Court’s analysis, a little background on the management of the swordfish fishery off the east coast of the US.  In 1996, Congress added significant provisions to the MSA – including §1855 which calls upon the Secretary of Commerce to publish allowable gear types for the various fisheries.  In 1999, the Fishery Management Plan (“FMP”) for Atlantic Tuna, Swordfish and Sharks was approved and put into effect.   Longline is an approved and authorized gear type for north Atlantic Swordfish within that FMP.[11]

As noted above, the Court found “The conflicts between federal and state law are many”.  Preemption is “evident” in the sense that the Resolution clearly conflicts with duly enacted regulations of an authorized federal agency.

1.  The Resolution forbids access to vessels employing pelagic longline gear, except for the limited purpose of purchasing “fuel or ice or in case of a storm or other emergency.” Because the action targeted vessels employing a gear type specifically authorized to target swordfish within the US Exclusive Economic Zone, it directly conflicts with Federal regulations; and is therefore preempted.

2.  The Court, looked beyond the direct conflict and examined the motive and/or purpose for the Resolution as those may be relevant in determining whether preemption applies.[12] The record was replete with statements attributed to the mayor’s which show that actions by the City were intended to limit or terminate longline fishing for swordfish in the Charleston area.  The Court chastised the mayor for succumbing to public pressure without considering how this “narrow, limited local issue” would play out.   It would impact dock workers, South Carolina fishermen and fishermen from other states who would be unable to land or sell their catch in the Charleston Marine Center.  “The City intended the resolution to be an obstacle. Utilization of longline tackle by a vessel was a means to deny access to the docks by longline vessels, and denial of access was a means to control or limit the swordfish industry in waters off South Carolina and to discourage non-local vessels from coming to fish in those waters. The City’s opposition was directed at the industry.”

The Court also pointed to a number of other conflicts between federal and state law that were less abrasive.  These, for the most part, were based on how the Resolution conflicted with the reasons and purposes for the MSA and policies behind its enactment as stated by Congress.  Because the Resolution attempted to impose standards for pelagic longline swordfish vessels and tackle, it conflicted with the above-cited Congressional determinations and therefore is preempted.  The Court also pointed out how and where the language of the Resolution undermined specific provisions of the MSA related to management authority and the international aspect of north Atlantic swordfish management.

Arguments against preemption posed by the City:

1.  Because the Resolution is not regulating fish there is no MSA preemption issue. While the Resolution did not directly regulate the taking of swordfish using pelagic longline gear, it did prohibit activities by vessels using that gear and the dock workers employed on at the Center.

2.  As a matter of law, a state has exclusive jurisdiction its waters, and the Resolution is a restraint on only vessels in state waters, therefore there is no issue of federal preemption. While it is true that states have jurisdiction over their waters, that is not absolute.  “When an FMP is in effect and a fisherman has harvested fish in federal waters and is headed for shore to land his cargo, the state cannot exercise its authority over state waters for the purpose or effect of preventing him from landing at an available facility.  Federal and state authority is in conflict and the Supremacy Clause requires that the federal law prevails.”

3.  The City attempted to rely on §1856(b) for the proposition that only the Secretary of Commerce can make this determination. As the Court pointed out, it was the City which instituted this court action seeking a declaration that its Resolution did not violate any laws.  It would be illogical to now contend that the Court is incapable of making such a ruling and only the Secretary can do so.[13]

4.  The City seeks the protections of the “proprietary capacity exception.” This exception focuses on the role of the actor (the City here) and examines whether it is acting as an owner and not a regulator. The City contends, that as proprietor it is authorized to limit who can access its facilities or what can be done with its facilities.  Because the MSA does not explicitly create a proprietary exemption nor is one to be implied, no such exemption exists.

Dissent:

The dissent found two flaws with the court’s holding:

1. First, it assumes the Resolution is government regulation (subject to preemption) rather than proprietary action of the municipality (which is not). The dissent would view the action in the latter capacity when it passed the Resolution.

2.  Even if the Resolution constitutes regulation, the MSA Act does not preempt the resolution because this single jurisdiction’s limitation of docking privileges at this single dock does not actually interfere with longline fishing.  The dissent points to the fact that there are other docks within Charleston Harbor which remain open to longline fishermen albeit docks without the necessary services for landing swordfish.  The dissent would have been much more sympathetic to the preemption argument if the Resolution had made “unavailable all, or substantially all, dock space within the City’s jurisdiction that could be configured to allow longline fishermen to land their fish.”  This would show the City actually prevented such landings.

Going forward:

The City appealed this to the United States Supreme Court; but the Court denied taking the appeal.[14]

The recent decision in Chinatown Neighborhood Assn v Kamala Harris calls into question whether the holding of the Fourth Circuit would be supported in the Ninth Circuit. The Chinatown case has been appealed to the United States Supreme Court and as of the date of this publication, the Court hasn’t decided whether or not to accept the appeal.  In Writ of Certiorari filed with the Court, this case is specifically mentioned, “On the issue of federal preemption of state laws affecting commercial fishing in federal waters, the Ninth Circuit’s opinion conflicts with the decisions of two other circuits, City of Charleston v. A Fisherman’s Best, Inc., 310 F.3d 155 (4th Cir. 2002), and Southeastern Fisheries Ass’n, Inc. v. Chiles, 979 F.2d 1504 (11th Cir. 1992).”  If the Supreme Court decides to hear this case, it could have a profound impact on the preemption analysis in the fisheries context.

Appendix A

A RESOLUTION TO AUTHORIZE THE MAYOR OF THE CITY OF CHARLESTON TO ENTER INTO MONTH TO MONTH LEASES FOR THE USE OF THE CHARLESTON MARITIME CENTER AND ITS APPURTENANT FACILITIES; TO PROHIBIT THE USE OF THE SAID CENTER AND ITS FACILITIES BY FISHING VESSELS THAT UTILIZE PELAGIC LONGLINE TACKLE; AND TO PROHIBIT THE SALE, PURCHASE, PROCESSING OR UNLOADING OF ANY FISH FROM OR CAUGHT BY PELAGIC LONGLINE FISHING VESSELS INCLUDING BUT NOT LIMITED TO BILLFISH AND SWORDFISH.

WHEREAS, the City Council of the City of Charleston makes the following findings of fact:

1. The waters of the City of Charleston are as much a part of its history and tradition as is its grand architecture. The geographic and economic growth of the City is, and has been, inextricably linked to its waterfront environment; and

2. Over the course of the last thirty (30) years, the City has made concerted efforts to protect its waterfront areas from environmentally insensitive uses, and has been steadfast in assuring and preserving for the public, access to, and use and enjoyment of, its waterfront. These efforts have included the acquisition of a 5 acre park on the western bank of the Ashley River; the acquisition of a 51 acre nature preserve along the shores of Church Creek; the acquisition and development of Brittlebank Park on the eastern bank of the Ashley River; the maintenance and improvement of White Point Gardens; the development of the 13 acre passive Waterfront Park along the western bank of the Cooper River; the acquisition of a 5 acre waterfront site on the Cooper River; and the construction of the South Carolina Aquarium, also on the Cooper River. The City has also been very successful in its effort to acquire land or necessary easements toward the goal of providing an uninterrupted pedestrian path along the water’s edge from Brittlebank Park, to the Battery, to the Waterfront Park, to the South Carolina Aquarium, and

3. These efforts on the part of the City have been pursued to assure to the public perpetual access to the natural environment, and all efforts of the City in the development of these accesses has been undertaken in a manner sensitive to the environment, and in recognition of the importance of these areas to the heritage of the City and its citizens; and

4. As part of its continuing efforts to revitalize, preserve and make available to the public the water’s edge, the City has constructed a Maritime Center on a portion of a 5 acre site on the Cooper River, immediately south of the Dockside Condominiums and the South Carolina Aquarium. The City’s purpose in constructing the Maritime Center has been to provide a place for uses, both recreational and commercial, that are consistent with those traditionally and historically conducted on the City’s waterfront. To this end, the Maritime Center will include a pier devoted to recreational events and a pier, with supporting facilities, devoted to foster the shrimping and fishing industry that has, historically, been a part of the City’s water-front environs; and

5. City Council has determined to solicit proposals for the operation of the portion of the Maritime Center that to serve this industry, and in doing so, finds it to be in the public interest, and in furtherance of its efforts to promote its waterfront, to require that this portion of the Maritime Center be operated and used in a manner traditional to such industry and to the City and consistent and compatible with the tenor of other City supported public uses along the waterfront, particularly the Aquarium to the north, and proposed Union Pier and the passive waterfront park to the south; and

6. The City encourages and promotes creativity in the use and operation of the commercial portion of the Maritime Center, but finds that such proposals must, to advance the City’s goal, include elements that foster and enhance the public appeal, enhance the public understanding and appreciation of its delicate maritime resources, enhance the preservation of fisheries resources, discourage fish practices that result in wasteful loss of such resources, and include elements compatible and consistent with the educational and environmental mission of the South Carolina Aquarium and the waterfront park; and

7. City Council further finds that there has been much public debate over the past few months over the depletion of the ocean’s fisheries, especially off the coast of South Carolina, and the effect the operation of the Maritime Center will have on these resources. City Council has followed the debate and is concerned that the operation of the Center furthers the goal of preservation of fisheries to the extent practicable, while also protecting the traditional shrimping and fishing industry in their traditional manner of gathering these resources. City Council further finds that pelagic longline fishing practices result in the loss of the great majority of fish caught, both to the consuming public and more importantly, to the fish population, and that such practices are the primary source of swordfish capture; and

8. City Council further finds that all billfish, including swordfish, are the most threatened of species caught off the coast of South Carolina and that it would be incompatible with the goals of the City in establishing the Maritime Center to allow the processing or sale of such species; therefore, no billfish nor swordfish shall be processed or sold at the Maritime Center.

NOW, THEREFORE, BE IT RESOLVED that the Mayor of the City of Charleston is hereby authorized to enter into month to month leases for the use of the Charleston Maritime Center and its appurtenant facilities.

NOW, THEREFORE, BE IT FURTHER RESOLVED that the use of the Charleston Maritime Center and its appurtenant facilities is hereby prohibited to fishing vessels utilizing pelagic longline tackle, which shall be prohibited from docking or tying up at the Charleston Maritime Center and its appurtenant facilities for any purpose other than to purchase fuel or ice or in the case of a storm or other emergency.

NOW, THEREFORE, BE IT FURTHER RESOLVED that any Lessee or user of any part of the Charleston Maritime Center and its appurtenant facilities shall be prohibited from selling, purchasing, processing or unloading any fish from or caught by pelagic longline fishing vessels.

NOW, THEREFORE, BE IT FURTHER RESOLVED that no billfish or swordfish from any source of any kind shall be sold, purchased, processed or unloaded at the Charleston Maritime Center and its appurtenant facilities.

NOW, THEREFORE, BE IT FURTHER RESOLVED that a copy of this Resolution shall be entered into the official Journal of City Council.

IN WITNESS WHEREOF, THE CITY COUNCIL OF CHARLESTON has caused these presents to be executed in its name by Joseph P. Riley, Jr., its Mayor and by Vanessa Turner-Maybank, its Clerk of Council, and its corporate seal to be hereto affixed this 21st day of July, 1998.

CITY COUNCIL OF CHARLESTON:

 

(SEAL) /s/ Joseph P. Riley, Jr. Mayor ATTEST: /s/ ______ Vanessa Turner-Maybank Clerk of Council

________________________________________________________________

[1] 310 F.3d 155 (2002)  cert. denied, 123 S.Ct. 2573 (2003).

[2] The Resolution is reproduced in Appendix A.

[3] The local commercial fishing industry in Charleston included shrimp and pelagic longline fishing for swordfish as two of its major components.

[4] A Fisherman’s Best owned a number of longline vessels that targeted swordfish.

[5] Note – future references to specific code sections are for 16 U.S.C unless otherwise noted.  Code sections referenced are those that existed at the time this case was decided.

[6] §§1801 et seq.  The act has been amended many times over the years.  Two major sets of amendments to the law were the Sustainable Fisheries Act of 1996 and then 10 years later the Magnuson–Stevens Fishery Conservation and Management Reauthorization Act of 2006.

[7] Regulations of a federal agency, adopted pursuant to Congressional delegation, have the same preemptive effect as an act of Congress.

[8] Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984).

[9] Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190, 203-04, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983).

[10] Southeastern Fisheries Ass’n., Inc. v. Chiles, 979 F.2d 1504, 1509 (11th Cir.1992).

[11] See 50 CFR §600.725(v) and 50 CFR §635.21(b) and (e)(4)

[12] Building & Construction Trades Council v. Associated Builders & Contractors of Massachusetts, 507 U.S. 218, 228-29, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993)

[13] §1856(b) does provide for an administrative agency hearing where the Secretary can authorize state action which would otherwise be preempted.  50 CFR §600.605 through §600.630 describe the procedures which the Secretary shall undertake in such a hearing

[14] cert. denied, 123 S.Ct. 2573 (2003)

[15] https://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/27/14-15781.pdf

California Fish and Game Commission – express your opinion!

During a recent appearance on the Angler Chronicles radio show we had a detailed discussion about the two vacancies on the Fish and Game Commission.  We provided some background on the Commission and advised that there are two nominees which many in the fishing community (both recreational and commercial) feel would be welcome additions to the Commission.  These two individuals are Don Hansen and Dan Yparraguirre.  Don Hansen, from Dana Point Sportfishing, most recently has been an advisor to the Pacific Fishery Management Council for over 25 years.  His background and knowledge of the issues make him an ideal candidate.  Dan recently retired from the Department of Fish and Wildlife where he was Deputy Director.  Like Don, Dan has the requisite knowledge and experience to be a valuable asset on the Commission.

The five-member Fish and Game Commission is appointed by the governor, subject to approval by the state Senate.  The Commission members, who are not full-time state employees, are generally involved in private enterprise but are supposed to have an expertise in wildlife-related areas.  Recent appointees call into question the last part of that statement.  Commissioners Sklar and Williams definitely faced a steep learning curve when appointed by Gov Brown last summer.  We were recently in Sacramento and had a meeting with a member of Governor Brown’s appointments staff.  We stressed to the staff that the Commission needs a fair balance and nominees with knowledge and experience in marine and wildlife issues.

California Fish and Game Code Section 101.5 discusses Fish and Game Commissioners.

101.5.  (a) The Legislature finds and declares that the scope and responsibilities of the commission have significantly expanded over the years as the size and diversity of California’s population have increased, and as the scientific knowledge of the habitat conservation and ecosystem-based management needs of wildlife has expanded. The members of the commission are expected to make complex public policy and biological decisions on behalf of the people of California. The commission is created by the California Constitution, which does not include any criteria or qualifications for selection and appointment of commissioners.

(b) It is therefore the intent of the Legislature to encourage the Governor and the Senate Committee on Rules to consider the following minimum qualifications in selecting, appointing, and confirming commissioners to serve on the commission:

(1) The degree to which the appointee will enhance the diversity of background and geographic representation of the commission.

(2) The appointee’s demonstrated interest and background in, and familiarity with, wildlife and natural resources management programs at the state or federal level.

(3) The appointee’s previous experience in public policy decision-making, including government processes involving public participation.

(4) The appointee’s commitment to prepare for and attend meetings and subcommittee meetings of the commission and to comply with all applicable state conflict-of-interest laws.

(5) The extent of the appointee’s exposure to and experience with the basic science underpinning the management of living natural resources.

(6) The appointee’s diversity of knowledge of natural resource issues and related scientific disciplines, including, but not limited to, outdoor recreation.

During the show, a show contributor recommended either a typed or hand-written letter, signed by the author, be sent to the Governor’s office expressing your thoughts and support for a particular nominee or nominees.  When drafting your letter, please keep the following in mind:

• Be respectful. Even if you don’t like Governor Brown or his policies, remember you are addressing the office, not necessarily the individual.
• Proofread. Spell-check is not infallible.  Have a friend, family member or someone else read your letter before you send it.
• Stick to the topic at hand. The people who will be reading your letter are part of the Governor’s staff related to Appointments.  They will not care about the Lobster Fishery Management Plan nor any other items/issues currently before or being considered by the Fish and Game Commission.
• Thank them. Thank the reader and the Governor for their time in reading your letter and giving careful consideration to your thoughts.

Letters should be addressed to Governor Jerry Brown, State Capitol Suite 1173, Sacramento, CA 95814 attn Appointments.  Letters via email should go to Nettie.Sabelhaus@gov.ca.gov, senior appointments advisor.  Also cc:  Kristin Stauffacher in the Governor’s office – kristin.stauffacher@gov.ca.gov.

The following are some points you may want to include in your letter and/or email:

1. A brief introduction:
   1. Who you are (if you have a business that involves fishing, hunting or the outdoors be sure to provide that as well).
   2. Why you care about the make-up of the Fish and Game Commission (ie – I am an avid fishermen, I am an avid hunter, I hunt and fish in California)
   3. Why you are writing (I am writing to support the appointment of Don Hansen to the Fish and Game Commission; I am writing to support the appointment of Dan Yparraguirre to the Fish and Game Commission; I am writing to support the appointments of Don Hansen and Dan Yparraguirre to the Fish and Game Commission)
2. The Fish and Game Commission is an important body that is instrumental in shaping how California’s wildlife resources are managed and utilized.
3. As a fisherman/outdoorsman I am concerned that recent appointees did not have the requisite knowledge and experience with marine and wildlife issues.
4. Commissioners without the requisite knowledge and experience incur a steep learning curve when confronted with the multitude of issues Commissioners face.
5. Fish and Game Code Section 101.5(b) encourages the Governor to consider six factors when selecting and appointing an individual to the Commission. If you are so inclined you can reference any or all of the six factors in your correspondence and how either Don or Dan will help the Governor satisfy the terms of the Fish and Game Code.  For example:
   1. The current Commissioners are from McKinleyville, Huntington Beach and St Helena. Don is from Dana Point and I am not sure where Dan currently resides.
   2. Don and Dan both have extensive experience with management programs at both the state and federal level.
   3. Don’s background with the Pacific Fishery Management Council, Inter-American Tropical Tuna Commission and Pacific States Marine Fisheries all highlight his involvement with processes involving public participation. I don’t know Dan’s memberships, etc – but I do know his familiarity with the Fish and Game Commission and the processes involved are invaluable.
   4. Both Don and Dan have extensive knowledge of the issues. Not only do they have current knowledge; but they also provide the added benefit of a historical perspective for many issues.
6. Either or both individuals bring the added benefit of institutional memory and/or knowledge of the history and background of the issues that come before Commission.
7. Anything else you feel is directly related to the vacancies on the Fish and Game Commission.

It is incumbent upon us fishermen, hunters, outdoors enthusiasts to have our voices heard.  Be confident that those who wish to further curtail your ability to fish and/or hunt are working hard to get their preferred nominees appointed by the Governor.