Rockfish lawsuit up for oral argument Nov. 19 in Washington


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An answer could be on the way soon for Kodiak processors who asked the courts to intervene and give them a guaranteed share of the Gulf of Alaska rockfish harvest.

Oral argument in the rockfish lawsuit is scheduled for Nov. 19.

Four companies with processing operations in Kodiak sued the National Marine Fisheries Service, or NMFS, in the U.S. Western District of Washington in January to overturn the catch share program, which took effect in May.

The lawsuit revolves around whether processors should receive a guaranteed share of the rockfish harvest. The rockfish program also allocates set amounts of high-value secondary targets such as sablefish and Pacific cod to catcher vessels. Catch share programs allocate shares of the total harvest to individual owners, typically based on catch history.

The hearing is regarding NMFS and the processors’ motions for summary judgment, as well as the NMFS memorandum in opposition to the processors’ motion.

Judge Marsha Pechman announced the hearing Oct. 30, giving each side 20 minutes to argue their case, and 10 minutes each for rebuttal.

The processors — Trident Seafoods, Ocean Beauty, Westward Seafoods, and North Pacific Seafoods — want to be guaranteed delivery of a portion of the harvest each year. The current rockfish program does not give them that guarantee, but the five-year pilot program, which ran from 2007 to 2011, did.

Under the current program, vessels can deliver their take to any of the processors in Kodiak. The pilot program, however, had a contractual linkage between vessel owners and shore-based processors, obligating vessels to deliver to a specific shore-based processor based on past delivery history.

After the initial motions for summary judgment were filed, Trident Seafoods’ Joe Plesha filed a declaration stating that processors had paid more for rockfish this year than in the past. That September declaration is based on the more up-to-date financial information than processors had provided previously, and was filed on the same day as the processor’s response to NMFS prior filing.

In 2011, the pilot program’s final year, Trident paid 12 cents per pound for northern rockfish at the Kodiak plant and 10 cents per pound for pelagic shelf rockfish and Pacific Ocean perch. In 2012, the first year of the new program, Trident paid 27 cents for all species.

“My understanding is that the other (rockfish pilot program) processors have had similar increases in the costs of rockfish,” Plesha said in his filing.

According to the processors’ filing, the pilot program ensured a predictable amount of rockfish would be delivered, and allowed the processors to handle rockfish while other fisheries were closed. But under the program now in place, any processor could handle all of the fish, changing economics for all the processors.

“Processors, therefore, will unavoidably bid up the price for deliveries of rockfish and its associated bycatch such that they will cover only their variable costs of production of rockfish,” Plesha wrote in his filing.

NMFS response to the processors’ Sept. 14 filing did not include a response to the pricing issue, instead continuing to address the major crux of the case: whether or not processing is considered fishing, and the alleged National Environmental Policy Act issues, or lack thereof.

Those are the issues that will likely dominate the Nov. 19 hearing.

The fishing definition issue is a major matter of contention. A 2009 opinion from general counsel of the National Ocean and Atmospheric Administration, or NOAA, to the North Pacific Fishery Management Council stated that the Magnuson-Stevens Act did not give the council the authority to give on-shore processors a guaranteed share of the harvest.

The North Pacific council was in the process of revising the rockfish program in advance of its 2011 sunset date, and the NOAA legal opinion stated processors were not “fishing” operations under the Magnuson-Stevens Act, or MSA, and therefore were not entitled to quota allocations.

But the processors say that legal opinion was flawed, and that the role of processors in the pilot program should have been continued. They also argued that the pilot program’s inclusion of processors was entirely the result of the MSA, not the program’s congressional authorization, as the defendants have said.

How processors are defined will matter greatly as the North Pacific Fishery Management Council is now looking at a rationalization program for the Gulf of Alaska trawl fleet. Earlier this fall, United Catcher Boats Association Executive Director Brent Paine said the lawsuit would have an effect on future rationalization.

“This will set a precedent for what any council in the United States will have to do when they consider development of a catch share program,” Paine said.

UCB vessels operate in the Gulf, as well as in Bering Sea fisheries and elsewhere on the west coast. UCB, along with Gulf harvester association Alaska Whitefish Trawlers, moved to intervene in the case to defend the rockfish program as crafted by the council without any fixed linkages between catcher vessels and shoreside processors.

 

Molly Dischner can be reached at molly.dischner@alaskajournal.com.

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