The other rockfish lawsuit

Andrew Jensen, Alaska Journal of Commerce

Feb 4, 2012 - 03:26 PM

SEATTLE — I found one of the lawsuits against NMFS relating to the rockfish program earlier this week, and became aware of the other one today. The first, filed by Loughbeg Fisheries Inc. of Kodiak was filed in the U.S. Alaska District Jan. 23. The second was filed Jan. 24 in the U.S. Western District of Washington.

Trident Seafoods, Ocean Beauty, Westward Seafoods, North Pacific Seafoods and International Seafoods of Alaska are suing National Marine Fisheries Service over the severing of ties between vessels and processors established in the rockfish pilot program that expired in 2011, and was amended by the North Pacific Fishery Management Council in June 2010. The new program is set to take effect in the season that begins this May.

The processors allege they have been deprived unlawfully of their share of the fishery revenue by the design of the revised rockfish program, which eliminated the vessel-processor cooperatives that were required under the pilot program. The vessel-processor ties were based on historical deliveries to the five Kodiak processors now suing NMFS.

From the complaint:

The Council’s new rockfish management plan allocated individual harvesting quota to vessel owners, but allowed these vessels to then deliver their harvest to any processor in Kodiak, thereby granting harvesters an unencumbered monopoly on the sale of a fixed percentage of the available rockfish. Because any one of the processors in Kodiak has the physical capacity to process more than all of the available rockfish harvest in a fishery managed under an individual harvesting quota system, the new rockfish plan creates a large surplus of processing capacity relative to harvesting capacity. Processors will, therefore, unavoidably bid up the price for deliveries of rockfish and its associated bycatch such that they will cover only their variable costs of production for processing rockfish. All the rents generated from the fishery will no longer be shared, but instead will be transferred exclusively to the vessel owners who receive rockfish harvesting quota.

The suit references NOAA General Counsel legal advice given to the council in October 2009 informing the members that the Magnuson-Stevens Act does not authorize harvester-processor linkages other than the Bering Sea Aleutian Islands crab rationalization program. (You can read the NOAA GC memo here) The BSAI crab program mandates that 90 percent of the harvest is allocated as "A" shares that must be matched with corresponding shares of Individual Processor Quota, or IPQ, thus guaranteeing processors their historical share of landings. The use of IPQ raised anti-trust questions in 2002, and the U.S. Department of Justice recommended NOAA oppose the creation of IPQ on those grounds.

The five seafood processors also allege the new rockfish program violates the Administrative Procedures Act and the National Environmental Policy Act. Plaintiffs allege NMFS was required to craft an environmental impact statement under NEPA, rather than the environmental assessment that was written. The processors ask for the final rule to be vacated, that management revert to the pilot program rules and the amendment be remanded back to NMFS to create an EIS.

The MSA requires that any regulations promulgated by the Secretary of Commerce be subject to judicial review within 30 days after the final rule is published in the Federal Register. The Secretary now has 45 days to respond.