SAN FRANCISCO (CN) – Limiting commercial Dungeness crab catches in California does not discriminate against nonresident fishermen, a federal judge ruled.
Section 8276.5 of the Dungeness Crab Trap Limit Program establishes a tiering system that caps the number of crabbing permits a permit holder can get based on “the historical record of a permitee’s catch landed in California (and excluding that landed in Oregon or Washington)” from 2003 to 2008, the ruling states (parentheses and emphasis in original).
Those in the top tier can have up to 500 permits, called “tags.” Permit holders in higher tiers can deploy more trap gear than those in lower tiers.
Ralph and Lynette Dairy and four other out-of-state Dungeness crab fishermen claimed in a federal complaint that they received lower tier assignments because they landed crab outside California during the five-year qualifying period, and were therefore unable to deploy as many crab traps as California residents.
Charles Bonham, director of the California Department of Fish and Wildlife, is named as a defendant to the complaint, which says the statute unconstitutionally discriminates against out-of-state fishermen.
Dungeness crabs get their name from the port of Dungeness, Wash., where they were first commercially harvested. They live in eelgrass beds along North America’s West Coast and typically grow between 7.9 and 9.8 inches across the carapace, the upper section of the shell.
Their tender and slightly sweet-flavored meat is prized as a seafood delicacy.
U.S. District Judge Edward Chen dismissed most of the claims against Section 8276.5 in July 2013 for failure to state a claim and lack of subject matter jurisdiction, but allowed their privileges and immunities and Magnuson-Stevens Act claims to stand.
In a motion for reconsideration, California argued that the court did not fully distinguish between the fishermen’s two privileges and immunities claims of crabs caught and landed in California, and crabs caught in California but landed out of state.
It also said the court ignored evidence showing the statute does not discriminate against nonresidents, and the lack of evidence that the statute makes crabbing unprofitable for all nonresidents. Lastly California decried the “erroneous baseline for assessing total allocation of permits to nonresidents.”
Finding that the statute does not discriminate against nonresident fishermen, Chen on Friday granted the state summary judgment as to the fishermen’s privileges and immunities claims.
The fishermen’s claim that the state improperly ignored crabs caught and landed outside California fails because it “infringes on state sovereignty,” the ruling states.
“Just as the California State Bar may consider the duration (i.e., four years) of bar membership in sister states when deciding whether nonresidents are allowed to take the ‘shorter Attorneys’ Examination rather than the general bar examination,’ the California legislature has the prerogative to ignore out-of-state landings of Dungeness crab caught outside California waters,” Chen’s 11-page ruling states. “Plaintiffs cite no case authority for the proposition that a state, in regulating matters within its own boundaries, must give credit for prior activities occurring wholly outside its boundaries in the context such as the one at bar.”
Claims for discriminatory effect meanwhile fail because the crab-trap regulation harms only about 3 percent out-of-state fishermen, while 97 percent of nonresidents are unaffected, according to the ruling.
Nonresidents experienced only a 0.2 percent decrease in the average number of permit holders in 2013 as opposed to the qualifying period: 12.6 versus 12.8, respectively. They are also fairly distributed between the top and bottom tiers, further indicating a lack of discrimination, the court found.
Though data on the poundage of crab landed before and after the qualifying period would better indicate how much of the crab market went to nonresidents, such information would be of little use because Oregon directs crabbers to report only the area where the majority of the crab was caught in mixed catches, according to the ruling.
But “even these imprecise numbers indicates [sic] that landings of California Dungeness crab in Oregon represents at best only a small percentage of crab caught in Northern California waters,” Chen wrote. “For example, in the years 2003-2008, only 2,048,985 pounds of California Dungeness crab (designated as being caught in California waters] was landed in Oregon, as compared to 75,340,459 and 103,686,457 pounds of California Dungeness crabs landed in Northern California (Eureka and Fort Bragg) and all of California respectively. Thus, Oregon landings of California Dungeness crab amounts to only 2.65 percent of all catches from Northern California. In reality, because of the mixed catch issue noted above, even that percentage likely overstates the Oregon figure.”
Chen refused to wait on the nonresident fishermen’s bid for discovery on poundage data because the previously cited statistics indicate that such data “will not have a material effect upon the privileges and immunities clause claim at issue.”
The plaintiffs were Ralph and Lynette Dairy; Joseph and Phyllis Spier; William Currie; and Howard Moore.
They were represented by Gwendolyn Fanger with Davis Wright Tremaine.
State justice attorney Annadel Almendras led the defense.
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