Victors in suit against NMFS want hired skipper rule scrapped

  • Halibut are offloaded in Seward in this file photo. After successfully challenging a rule prohibiting the use of hired skippers to harvest certain halibut and sablefish quota, the plaintiffs are asking a federal judge to vacate the rule put in place in December 2014. Photo/File/AJOC

The victorious plaintiffs in a case challenging a federal rule over hired skippers in the sablefish and halibut fisheries filed a motion Feb. 24 to vacate the National Marine Fisheries Service action.

Fairweather Fish Inc. and Ray Welsh filed suit against the National Marine Fisheries Service, or NMFS, in 2014, following the finalization of a regulation that prohibited the use of hired skippers to harvest halibut and sablefish quota acquired after Feb. 12, 2010.

A U.S. District Court judge in the Western Washington District ruled in their favor on Jan. 13, finding that the regulation didn’t meet legal muster. The court ruled that NMFS violated the Administrative Procedures Act, and failed to ensure the new rule complied with National Standards 9 and 10 of the Magnuson-Stevens Act.

Judge Benjamin Settle asked the parties for briefings regarding remedy, and the plaintiffs are now requesting that the court simply throw the rule out.

“To remedy these violations of law,” the motion reads, “plaintiffs respectfully request that the court vacate the final rule and remand to NMFS for further review.”

The Magnuson-Stevens Act was passed in 1976 to govern all federal fisheries in the U.S. It established an Exclusive Economic Zone from three to 200 miles off the U.S. coast, and created eight regional fishery management councils to govern.

The act, or MSA, has 10 National Standards, or guidelines that mandate fisheries management goals.

National Standard 9 requires regulations to minimize bycatch and bycatch mortality; National Standard 10 requires regulations to prioritize human safety at sea.

The court ruled that NMFS failed to consider either when it approved the hired master prohibition.

“A fundamental purpose of the halibut and sablefish IFQ program is to reduce bycatch in those fisheries. Yet, the final rule increased bycatch,” reads the plaintiffs’ motion to vacate the rule. “Likewise, by forcing disabled individuals to be onboard their vessels, the final rule decreased safety at sea.”

Rather than tune up the rule, the plaintiffs argue that it should be scrapped, citing an earlier case against the U.S. Department of Energy: “When a court determines that an agency’s action failed to follow Congress’s clear mandate the appropriate remedy is to vacate that action.”

The hired master rule was a perceived loophole in the federal quota systems installed in the North Pacific, following a derby-style fishery that was both dangerous and over-capitalized.

In 1993, the North Pacific Fishery Management Council created an Individual Fishing Quota, or IFQ, program for halibut and sablefish in the North Pacific. The program, ultimately approved by NMFS through the Secretary of Commerce, assigned quota shares to fishermen based on their historical participation in the fishery, and provided for the transfer or sale of those shares among fishermen.

The IFQ system allowed for some initial quota recipients to use hired skippers to fish quota for them as long as the quota holder retained more than 20 percent interest in the vessel. They also had to have traditionally used a hired skipper to fish.

The North Pacific council, believing that the hired skipper exception was allowing for overconsolidation of quota shares among owners not required to be onboard the vessel, passed a rule in 2013 that prohibited the use of hired masters to harvest any quota acquired after Feb. 12, 2010.

However, the council did not set the control date until February 2011, which was after several share transfers had occurred and been approved by NMFS. The plaintiffs argued that the council’s action was an illegal retroactive rule, and that it violated the Rehabilitation Act by disqualifying a disabled quota share owner from the fishery by requiring them to be on board the vessel.

The judge did not rule on either the retroactive or Rehabilitation Act claims, stating that the violations of National Standards were enough to determine the final rule was improperly implemented.

DJ Summers can be reached at daniel.summers@alaskajournal.com.

Updated: 
03/16/2016 - 2:36pm

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