Lawsuit filed over new rules for hired halibut skippers

A Washington-based fishing company has sued the federal government over recent changes to participation requirements in Alaska’s halibut and sablefish fisheries.

The changes to the individual fishing quota, or IFQ, program revolve around the hired master program, and when a quota holder can have someone else catch their fish. Under the planned changes, catcher vessel-derived quota received by transfer after February 2010 cannot be fished by a hired master, with certain exceptions for small amounts of quota.

The changes also would not allow the National Marine Fisheries Service, or NMFS, to transfer catcher vessel quota to a corporation, partnership, association or other non-individual entity.

The plaintiffs have asked the court to vacate the final rule and remand it to the federal managers for a rewrite that complies with various laws.

The North Pacific Fishery Management Council voted in favor of those changes in 2011; NMFS published the final rule to officially implement those changes in July, effective Dec. 1.

Now, Fairweather Fish Inc. and Captain Ray Welsh have asserted that the changes violate a handful of federal laws.

In the complaint, Fairweather and Welsh assert: “The final rule and amended regulations do not promote environmental conservation and will have no effect on protecting halibut and sablefish resources. Instead, the final rule and amended regulations attempt to engage in social engineering by advancing an owner on board standard which unlawfully impacts the economic welfare of corporations/entities and discriminates against otherwise qualified disabled individuals.”

Fairweather is a family-owned business in Gig Harbor, Wash., that was issued quota at the start of the IFQ program in 1995 and relies on a hired master to harvest its fish; the company also purchased additional quota after February 2010.

Welsh, an Anchor Point resident, also received halibut quota when the program was instituted and in July 2010 sold it and received sablefish quota by transfer. Due to his disabilities, he relies on a hired master.

The lawsuit was filed in federal district court in Washington in August. An electronic copy of the record is due Nov. 7, as is the federal government’s response to the case.

The complaint identifies violations of several laws, including the Rehabilitation Act, Magnuson-Stevens Act, Halibut Act and the Administrative Procedures Act.

According to the complaint, the new regulations are “impermissibly retroactive and arbitrary and capricious.”

The complaint also asserts that the regulation violates the Rehabilitation Act because it excludes otherwise qualified individuals with a disability from participating in the IFQ program, including a fellow plaintiff in the case, Captain Ray Welsh.

“As a result of his disabilities, Captain Welsh is not able to be on board his vessel when harvesting halibut or sablefish QS.”

The Fairweather and Welsh complaint asserts that the changes violate National Standards One, Four and Ten of the Magnuson-Stevens Act because they fail to achieve optimum yield, are not fair and equitable, and fail to promote the safety of human life at sea.

Fairweather isn’t the first entity to raise complaints about the regulation changes. When they were discussed by the council in 2011, some of the same issues were raised.

In a September 2011 letter to the council, Fishing Vessel Owners Association Manager Bob Alverson wrote that although the council signaled its intent to adopt the February 2010 control date at that time, it did not actually do so until final action was taken in March 2011, making it retroactive rulemaking, which the Supreme Court has disallowed in past court cases.

The complaint also discusses the issues with the regulation that affect that company specifically by limiting its ability to acquire quota or participate in the fishery.

“As a corporation, Fairweather Fish is not able to be on board its vessel when harvesting halibut or sablefish (quota share). Accordingly, Fairweather Fish relies on a hired master to harvest its halibut and sablefish (quota share). If the final rule is upheld and the amended regulations become effective, Fairweather Fish will not be able to harvest its QS received by transfer after Feb. 12, 2010.”

10/29/2014 - 12:45pm