Fish Trawling Priority Fought in 9th Circuit

      (CN) - Hook-and-line fishermen urged the 9th Circuit to overturn new federal regulations that give 90 percent of the Pacific groundfish catch to large-scale companies.
     U.S. fishing quotas are governed by the Magnuson-Stevens Fishery Conservation and Management Act, which uses a system of eight councils to develop region-specific fishery management plans. The nation's second largest region, the Pacific Coast Groundfish Fishery, extends over a quarter-million square miles off the coasts of California, Oregon and Washington.
     Largely responding to overfishing and economic turmoil in the 1980s, the National Marine Fisheries Service last year amended the Pacific Coast Groundfish Fishery Management Plan to create an individual quota system. Amendments 20 and 21 allow for the allocation of fixed shares of the total allowable catch for long-term exclusive use by trawl permit holders.
     The statute aims to increase economic efficiency by recalculating quotas every five years - as opposed to every two years. Vessels that do not reach their assigned quotas can sell or trade their shares of a particular fish species with other vessels.
     Regulators maintained that individual quotas would favor efficient fishermen and decrease environmental harm from by catch, a term that describes fish caught unintentionally.
     But the Pacific Coast Federation of Fishermen's Associations, Port Orford Ocean Resource Team and San Francisco Crab Boat Owners Association filed suit after larger fishing enterprises received most quota shares in the initial allotment.
     The groups represent fishermen who gather bottom-dwelling fish such as flounder and cod, as well as crabs using traps or hook-and-line systems. They claim that federal agency had violated the Magnuson-Stevens Act by failing to properly consider their community interest in initial allocations, allowing fleet consolidation to drive small fishermen out of the industry. They also argued that NMFS had assessed the environmental impacts of the two amendments separately, in violation of the National Environmental Policy Act.
     Concluding that these claims could not hold water, however, U.S. District Judge Charles Breyer granted awarded summary judgment to the federal defendants.
     On appeal Tuesday before the 9th Circuit, arguments largely focused on the extent to which NMFS was required to "consider" the fishing communities when establishing the quota program.
     Mary Hudson, a Sausalito attorney for the plaintiffs, argued that Magnuson-Stevens Act requires NMFS to let local fishing communities demonstrate their historical participation and environmental sustainability in the industry.
     "Once those two requirements are met, then they are supposed to participate in the allocations," Hudson said.
     Justice Department attorney Brian Toth painted a different picture of NMFS actions.
     "The trawl rationalization program ... does not exclude communities from participating by holding quota," Toth said. "It did not allocate separate quota as an initial matter to communities unless of course they had participated in the fishery by owning a trawl permit and then they would have received initial allocations of quota like any other fisherman who owned a trawl permit."
     Though the government historically sets 10 percent of catch aside during program evaluation, it has the discretion to allocate that figure to local fishing communities or put it to other uses, Toth added.
     Judge Consuelo Callahan, who dominated questioning at the hearing, said that the standard of review is highly deferential.
     "The District Court probably said that they could have approached this differently, that they could have made different determinations ... but they didn't," Callahan said. "And the District Court said, 'I cannot substitute my judgment for their judgment.' So you have to show more than just maybe just a different decision."
     The hearing also looked at whether the federal appeals court should publish its ultimate finding.
     Arguing for publication, Hudson said that "this case ... goes to some of the most basic policies in the management of fisheries."
     "I think that the outcome of this case is going to be felt ... all across the country for years to come," he told the appellate panel.
     Toth noted, however, that he does not think the case at hand addresses "a real widespread problem."
     The Environmental Defense Fund joined two large-scale fishing organizations, Midwater Trawlers Cooperative and United Catcher Boats, in support of the rationalization plan. Another environmental advocacy group, Food and Water Watch, filed an amicus brief in opposition, saying that the plan "unfairly benefits one type of larger-scale fishermen ... at the risk of serious environmental harm."
     Judge Callahan will determine the outcome along with Judge Paul Watford and U.S. District Judge Edward Korman, sitting by designation from the Eastern District of New York.