Marine areas challenged

09/21/2011

A last ditch effort by sport fishermen to repeal restrictions imposed by the Marine Life Protection Act (MLPA), including some 24 protected areas between Half Moon Bay and Point Arena, will be heard next week by the San Diego Superior Court. The lawsuit, which was filed in January by the United Anglers of Southern California, the Coastside Fishing Club and former president of the Sportfishing Association of California, Robert C. Fletcher, alleges that the California Fish and Game Commission lacked the statutory authority to adopt the regulations and that it entered into illegitimate partnerships with private entities while doing so.

In addition, the suit contends that any protected areas are required by law to obtain approval by the California Coastal Commission prior to going into effect. 

At stake is a vast network of conservation zones scattered along the 1,200-mile coastline intended to replenish fragile marine ecosystems through restrictions of varying degrees—some zones prohibit all types of fishing, others allow sport fishing and some commercial fishing, others allow only sport fishing. Seven highly restricted areas, known as marine life closures, prohibit boating and access of any kind. 

The reserves are grouped into five geographic regions, each with their own implementation plan and scheduled date of enactment. Protected areas along Marin County—part of the North Central region—have been in place since last year, though enforcement has thus far been limited to warnings and very few actual fines. 

Planning for the North Central region began in 2007, when regional stakeholders such as local fisherman, scientists, environmentalists and National Park Service officials met with a government-appointed body known as the Blue Ribbon Task Force to determine, over a year and a half, what areas were in greatest need of management enforcement. 

Critics of the MLPA have long called it a corrupt power grab of California’s greatest public resource, while advocates say it is a critical step in saving and protecting coastal waters for future generations.

The pending hearing follows a recent order by the state Office of Administrative Law that the Fish and Game Commission submit information about its administrative process in determining reserve areas along the South Coast region. Various no-fishing zones, which would have gone into effect as of October 1, are now scheduled for adoption on January 1. 

State Attorney General Kamala Harris, who is defending the commission in the case, has adamantly denied the claims, writing in her opening brief that the plaintiffs “argument is not only irrelevant but misstates the appropriate authority upon which the Commission relied in adopting [Marine Protected Areas].”

Harris added that the commission relied on appropriate authority mandated under two separate state amendments, that the regulations do not constitute “development” within the meaning of the Coastal Act and are therefore not subject to the jurisdiction of the Coastal Commission, and that the plaintiff’s failure to raise such issues during the procedural process bars it from raising them now. 

“Coastside presents a misleading and confusing argument incorrectly interpreting two legislative acts,” she wrote. 

The Attorney General’s brief also noted that over a 14-month rulemaking process, the commission conducted public hearings, that it received myriad scientific analyses, and that the plaintiffs should not be allowed to challenge the regulations after having “participated fully in the rulemaking process and advocated the Commission exercise its statutory authority to adopt an alternative [conservation] option.”

Still, fishermen involved in the case remain optimistic that their concerns are valid, and that an abrogation of the reserves would serve as some vindication in a larger debate over the definition of conservation. “What this boils down to is [the commission] thinks this will restore waters off the coast to the way they were 100 years ago, but we think there are a number of other factors—pollution, rain, the number of people who are living along the coast—that are not being addressed here,” said United Anglers of Southern California treasurer John Riordan. “If you just take the fishermen away, this won’t go away.”

Ken Wiseman, director of the MLPA Initiative, refuted the claim, instead describing the protected areas as but one tool in a larger management toolbox. “This whole legislation was about ecosystem management, not fishing management,” he said. “We worked hard to make sure the fisherman’s interests were addressed while still addressing the science.”

But some interests have arguably fallen through the cracks. John Lewallen, who harvests seaweed near Mendocino and sells it to gourmet food markets, estimated that restrictions have cut his business by roughly 40 percent. In order to reach harvestable fields he now relies heavily on kayaks, which is “hard and dangerous.”

Lewallen also takes issue with the way the reserves were researched and defined using funds raised in part through private entities—a claim Wiseman also refuted.

When the MLPA was signed into law in 1999, there were no funds to support it. The act subsequently floundered until 2004, when the Department of Fish and Game approached the nonprofit Resources Legacy Fund Foundation, which receives money from the Packard Foundation, for assistance. 

“This is like a college putting money up for cancer research,” Wiseman said. “The state cannot fund this entirely, so $20 million was put up in part by private groups in order to ensure that all voices were heard, including the fisherman that are now suing us.” 

This is the second lawsuit to challenge the legitimacy of the MLPA. In May 2010, Fletcher filed suit against the Blue Ribbon Task Force for failing to respond to a Public Records Act request to make its records available to the public on the ground that it was not a state agency. In October, the California Superior Court ruled that the task force and its scientific advisory team are state agencies and are therefore compelled by the Public Records Act to share any information previously withheld from public view. 

Why the North Central region is now being examined at all in a suit brought forth by sport fishermen in Southern California is unclear. Wiseman said the plaintiffs needed a region with restrictions already in place in order to bring it before the court. Lewallen contended it was included through their “grace and loving spirit and nature.” 

Sheree Christensan, a lieutenant with the Fish and Game Commission, said local enforcement has thus far been limited because information about the regulations is still being diseminated. “If we find someone in violation we usually just write a warning now,” she said, adding that she expects that will change when her agency feels the public has become adequately aware of the restrictions. 

“We think we’ve done something that is really revolutionary for the state,” Wiseman said. “The fact is that [the plaintiffs] don’t like it is because they don’t want the result.”