Federal judge tosses another fisheries management rule
Federal judges keep smacking down the North Pacific Fishery Management Council’s decisions.
For the second time in the last three months, a federal court has overturned a management decision made by the North Pacific council and enacted by the National Marine Fisheries Service, or NMFS. The United States District Court of Washington overturned a 2011 decision relating to halibut quota shares harvested by hired skippers on Nov. 16.
Federal courts have overturned several council decisions in recent years. In September, a the 9th Circuit Court of Appeals overturned the council’s 2011 decision to remove Cook Inlet, Prince William Sound and Alaska Peninsula salmon fisheries from federal oversight.
In this case, the North Pacific council made a decision in 2011 regarding which halibut quota holders can use a hired skipper instead of being required to be on board the vessel. Due to the court’s ruling, NOAA will have to open that group back up after limiting it in 2011.
Julie Speegle, the NMFS Alaska Region spokesperson, said the agency will change the impacted halibut fishermen’s quota shares to reflect the court’s ruling and that the council itself will review the issue.
“The court order does not require any immediate change to regulations,” wrote Speegle. “NOAA Fisheries is in the process of modifying those halibut QS permits to allow the use of hired masters for any halibut QS acquired before July 28, 2014. NOAA Fisheries is also considering how to respond to the court’s order to assess the rule’s consideration of the national standards. The (North Pacific) council and NOAA Fisheries will have further discussions on the order at its December council meeting.”
The ruling relates to halibut quota. The halibut and sablefish Individual Fishing Quota program, or IFQ program, was approved by the North Pacific council in 1992. Managers assigned quota shares to fishermen who commercially fished halibut or sablefish between 1988 and 1990. The program allowed for shares to be transferred.
The program has certain limits on the use of hired masters — people who don’t own the halibut quota themselves but who man the vessel on behalf of the people who do.
Concerned about consolidation of quota and desirous to maintain an owner-operator fleet, the North Pacific Fishery Management Council approved changes to the hired master regulations in 2011; NMFS published the final rule in July 2014, effective that Dec. 1.
Under the council’s rule, quota holders couldn’t use a hired master for fishing any quota they acquired after February 2010.
The rule hurt certain fishermen who didn’t make the cutoff and had warned the council that the rule wouldn’t follow several of the 10 National Standards of the Magnuson-Stevens Act, the law of federal fisheries.
Fairweather Fish Inc. and Captain Ray Welsh filed a lawsuit against the National Marine Fisheries Service. Fairweather got halibut quota in 1995 when the IFQ program began and relies on a hired master to harvest its fish; the company also purchased additional quota after February 2010.
Welsh, an Anchor Point resident, also received halibut quota when the program was instituted and in July 2010 sold it and received sablefish quota by transfer.
Welsh has physical disabilities and relies on hired masters to fish his quota. Because the rule affected only a small number of fishermen, it’s unknown what kind of impact the court’s ruling will have. The court ordered that any quota shares transferred before July 28, 2014, could be fished under the previous hired skipper rules.
Bob Alverson, a commissioner on the International Pacific Halibut Commission, said the ruling means very little for the fishery itself.
“I think it’ll have very little impact, myself,” he said. “It’s so far down the road. It’s down to a very small minority of people, a few people that may have a problem with what the council decided.”
The real issue, he said, is the council itself. Alverson said the decision was hasty, as it ignored the guidance of its Advisory Panel and members of the public who wanted a different cutoff point known as a control date.
“They hurt some people that didn’t need to be hurt,” he said. “There’s that old adage: Don’t inflict pain without gain. I think some people were unnecessarily injured in this, and that’s why you got the lawsuit.”
Chris Oliver, the North Pacific council’s executive director, was unavailable for comment.
This is the latest in a string of federal judicial decisions overturning council decisions.
In September, the U.S. 9th Circuit Court of Appeals overturned a 2011 decision by the council to remove several Alaska salmon fisheries from federal oversight, which is required by the Magnuson-Stevens Act for all federal fisheries.
United Cook Inlet Drift Association, or UCIDA, filed the lawsuit in 2013 to repeal the council’s decision, which was officially Amendment 12 to the Alaska salmon fishery management plan, or FMP. The court ruled that the council must have an FMP for the Alaska salmon fisheries and it could not ignore the Magnuson-Stevens Act by turning over total control to the state.
In 2012, the State of Alaska and several fishing groups won a lawsuit against the National Marine Fisheries Service for improperly imposing fishing closures in the Aleutian Islands to protect food sources for Steller sea lions. In that case the North Pacific council was bypassed by NMFS to create the closures through emergency action.
In 2014, another federal court ruled that NMFS did not use the best scientific information and therefore violated the Administrative Procedures Act in the implementation of a revised observer program that did not account for loss of data quality when coverage on trawl vessels dropped to 13 percent from 30 percent under the previous program.
DJ Summers can be reached at [email protected].