Processors denied in challenge to Gulf rockfish program

A Washington judge ruled to uphold the rockfish catch share program in the Gulf of Alaska on procedural grounds.

The technical ruling left unanswered the broader question of whether processors should be considered “fishing” operations under the Magnuson-Stevens Act and thus entitled to a guaranteed share of the harvest.

The rockfish program implemented in 2012 allocated shares of the total harvest to vessel owners, but did not guarantee processors a share of the harvest, as the prior pilot program had done. The rockfish program also allocates set amounts of high-value secondary targets such as sablefish and Pacific cod to catcher vessels.

Four Kodiak processors — Trident Seafoods, Ocean Beauty, Westward Seafoods, and North Pacific Seafoods — filed suit in January, asking for a guaranteed delivery of a portion of the harvest each year.

U.S. District Court Judge Marsha Pechman upheld the program, denying the processors request, Nov. 30, after hearing oral argument in the case Nov. 19.

Pechman’s Nov. 30 order stated that the processors did not have standing to bring a National Environmental Policy Act, or NEPA, claim and that the economic argument made by Trident and the other processors didn’t qualify as an environmental concern protected by NEPA.

Pechman further wrote that without a NEPA violation, the plaintiffs had no grounds to make a claim based on the Magnuson-Stevens Act, or MSA. The MSA was the authority by which the National Marine Fisheries Service, or NMFS, implemented the catch share program.

The new rockfish program was crafted by the North Pacific Fishery Management Council over several years and was approved in June 2010. NMFS is charged under the MSA with implementing council programs.

Trident spokesman John Van Amerongen said the company had no comment on the judgment.

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).

Processors do receive some protections under the new program. Catcher vessels must belong to a cooperative that is associated with a shore-based processor, although the cooperatives can change processor affiliations, and no processor can receive more than 30 percent of the harvest, meaning at least four receive business.

Glenn Merrill, NMFS assistant regional administrator for Sustainable Fisheries, Alaska Region, said the ruling was narrowly focused on the procedural question.

“From our standpoint, that means business as usual for the rockfish program,” Merrill said.

The question the court answered was whether or not the processors had NEPA standing, and more specifically, whether or not their complaint fell within the NEPA zone of interest, Merrill said. NEPA is concerned largely with the environment; the complaint was entirely economic, with processors stating that the catch share program drove the price of rockfish up.

How the ruling affects future programs remains to be seen, Merrill said.

Catch share programs allocate shares of the total harvest to individual owners, typically based on catch history. Generally, the programs are intended to end the race for fish and give vessels a better way to minimize prohibited species catch.

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. So did the rockfish pilot program, which ended in 2011.

The current rockfish program was a purposeful step away from that, and was based on legal guidance from the National Oceanic and Atmospheric Administration.

“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 in June 2010 after the new program was approved. “The closed class of processors in the pilot program was something the state of Alaska just didn’t think was good public policy.”

A crux of the argument on both sides of the suit was whether or not on-shore processing was included in the definition of “fishing” within the Magnuson-Stevens Act.

Processors have been included in past programs, with specific congressional authorization, but a 2009 NOAA legal opinion stated that processing was not fishing, and thus not eligible for a quota shares under the MSA for any programs created by a regional fishery management council.

“The court didn’t address that,” Merrill said.

If the case had answered those broader questions about catch share programs, it would have set a precedent as the council looks toward rationalizing the central Gulf of Alaska trawl fleet, and toward other rationalization programs.

Now, policy makers and industry may look elsewhere for those answers with the 2009 NOAA legal opinion still guiding regional councils.

Whether shoreside processors can be defined as “fishing” operations will likely come back in 2013 when the MSA is up for reauthorization.

When the lawsuit was still in progress this fall, United Catcher Boats Executive Director Brent Paine said it 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 in September.

UCB had motioned to intervene and help defend the current program, but was denied that role in the case. The group and other harvester associations were given status to participate in the remedy phase, but because the judge did not order any changes to the program, that never came to pass.

Sen. Mark Begich, chair of the Senate Commerce subcommittee with oversight of NOAA, said he’s aware that the definition could be a question for some.

“Let me say, I’m sure (processing) will come up, what will be the result, can’t tell you,” he said.

Begich said he thinks the discussion on MSA reauthorization will include a variety of interests and concerns. He wants to see them discussed before any bill is actually on the table as part of a thorough process to seek out concerns across the country.

“We’re not just gonna pop the bill open,” he said. “We’re gonna have a process that engages, and as chair of the oceans committee, I’ll spend the time to do that, and obviously Alaskans will be fully engaged in this.”

The rockfish program will be up for review after the 2014 fishing season. That’s just three years out, rather than the usual five, but will likely come after the MSA reauthorization.