Pending Gulf rockfish lawsuit has major policy implications


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Gulf of Alaska rockfish are loaded in this file photo. Motions for summary judgment have been filed in a lawsuit by processors arguing they should receive a guaranteed share of the Gulf of Alaska rockfish program. The outcome will have major implications for future management programs by determining if processors are considered “fishing” operations under the Magnuson-Stevens Act.

Photo/File/AJOC

Motions for summary judgment have been filed in a lawsuit over the new rockfish catch share program in the Gulf of Alaska.

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 new Gulf of Alaska rockfish catch share program, which took effect in May. In their July 20 motion for summary judgment, the processors also requested an opportunity for oral argument Oct. 5.

As of Sept. 5, Judge Marsha Pechman had not yet ruled on the processors’ request for oral argument. NMFS filed its motion for summary judgment on Aug. 23.

The lawsuit revolves around whether processors should receive a guaranteed share of the rockfish harvest, and has policy implications for the rockfish program, Gulf of Alaska fisheries management, and catch share programs as a whole nationwide.

Catch share programs allocate shares of the total harvest to indivdual owners, typically based on catch history.

The Kodiak 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, as the past five-year pilot program did from 2007 to 2011.

The processors argue that the legal opinion upon which the harvester-processor linkage was severed was flawed, and offered contradicting management examples and segments of the Congressional record.

The 2009 opinion on which much of the case rests was a memo from general counsel of the National Ocean and Atmospheric Administration, or NOAA, to the North Pacific Fishery Management Council stating 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 and therefore were not entitled to quota allocations.

The motion filed on behalf of the processors July 20 stated: “The 2009 Opinion is premised on the assertion that the term ‘fishing’ in the (Magnuson-Stevens Act) does not include on-shore processing. That Opinion is inconsistent with the MSA, other (NOAA) legal opinions, and agency practice.”

Attorneys for the processors did not respond to calls for comment.

A share of the fishery for processors was part of the prior rockfish program because Congress created the program through legislation that specifically authorized such a linkage requiring harvesters to deliver to the processors where they had historically made deliveries.

The NMFS motion for summary judgment explains the rationale that led managers to sever the tie between catcher vessels and processors, and details possible consequences of leaving the linkage intact.

The NMFS motion reads, in part: “Plaintiffs are on-shore processors who seek to expand the definition of ‘fishing’ to include on-shore processing, which could have the effect of creating individual processor quota or justifying ‘fixed linkages’ following expiration of the Pilot Program.”

The program eventually passed by the council in June 2010 replaced the expired rockfish pilot program, and was the first catch share program created after the Magnuson-Stevens Act was reauthorized by Congress in 2007.

Management programs for pollock and crab in the Bering Sea, which took effect in 2002 and 2005, respectively, currently give processors a share of the harvest. The rockfish program was a purposeful step away from that policy, and could be the model for future programs if the judge upholds the severed tie in the new program.

United Catcher Boats Association Executive Director Brent Paine said the lawsuit could have an effect on any effort by the North Pacific council to have a multi-species management program in the Gulf of Alaska.

“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.

The harvester associations were denied their motion to defend the rockfish program, but will be allowed to participate in the remedy phase should Judge Pechman elect to order changes in her eventual ruling.

The relationship between processors and catchers impacts the price processors pay for the fish. In their lawsuit, the processors argued that without fixed linkages, they would be forced to compete for fish, and pay more for it, effectively cutting into their profit.

“Really what’s going on here is who gets the power, when you sit at a bargaining table, to determine the price of fish,” Paine said.

The Magnuson-Stevens Act will be up for reauthorization in 2013. The lawsuit could be the beginning of an effort to include processors in future programs as part of the redrafting.

“I think you’ll see processors proposing language that gives them a little better footing or gives them more consideration than what is currently defined by law if they lose this lawsuit,” Paine said.

Under the pilot rockfish program, on-shore processors were guaranteed a portion of the harvest because catcher vessels had to deliver their catch to one processor, based on historic relationships.

When the program was revised in 2010, that requirement was purposefully struck from the new program based on NOAA legal advice.

“The (state) didn’t feel or believe that, as a matter of policy, the processors be granted a share of the fishery, a harvester quota, or have some kind of forced delivery requirement that vessels would have to deliver specific processors,” said council member Duncan Fields of Kodiak at the time. “The closed class of processors in the pilot program was something the state of Alaska just didn’t think was good public policy.”

The program allocates northern rockfish, pelagic shelf rockfish, Pacific Ocean perch and secondary, more valuable targets: sablefish and Pacific Cod, to trawl catcher vessels and catcher-processors. Rockfish are large, colorful fish that congregate either in schools (pelagic) or stay close to the bottom in rocky areas (non-pelagic).

Despite the changes in the rockfish program, the council built in some protections for the processors.

The program requires catcher vessels to belong to a cooperative that is associated with a shore-based processor, but allowed more flexibility in that vessels can change cooperatives and cooperatives can change processors without repercussion. The program also prevented any one processor from receiving more than 30 percent of the harvest, ensuring that at least four receive business.

The council also set the program to come up for review in three years, rather than five, which is what is usually required under the Magnuson-Stevens Act.

“The council wanted to make sure we did it right,” Fields told the Journal in 2010. “An earlier review will particularly look to, are vessels leaving the fishery or are crew losing jobs? Are processors being disadvantage? These are some of the things we’ll review.”

 

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

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