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From the Fleet: Court Decision Threatens Fishing Industry in Washington State

Puget Sound Dungeness Crab Harvesters Seek Appeal to State Supreme Court

 


On April 23, 2013, a Washington Court of Appeals (COA) issued a decision that threatens Washington State’s fishing industry and commercial fishing. In a case called Puget Sound Crab Association v. State of Washington, Department of Fish and Wildlife (WDFW), the association of Puget Sound Dungeness Crab commercial harvesters sued to overturn WDFW actions increasing recreational allocation and cutting commercial allocation in that fishery. The suit said that these actions violated WDFW’s duties to protect the fishing industry and commercial fishing – as set forth in Revised Code of Washington section 77.04.012. That law requires that WDFW not just protect food fish and shellfish, but also “maintain the economic well-being and stability of the fishing industry” – and “improve recreational and commercial fishing.”

The Court of Appeals decision allowed WDFW to cut commercial allocation merely to increase recreational allocation. Incredibly, the Court said that WDFW is acting within the law requiring it to improve commercial fishing and maintain the fishing industry as long as it does not “completely divest the commercial harvesters of their allocation.”

The court of appeals decision upheld earlier action by the WDFW expanding the recreational season and cutting commercial share in this fishery, citing the growing numbers of recreational crabbers. In this fishery, as in many, commercial harvesters compete with recreational or sports users for the set amount of catch belonging to the State of Washington each season. The WDFW had made new crab rules and policy expanding the recreational season citing the fact that there are 236,000 people engaged in recreational crabbing in the Puget Sound Dungeness Crab fishery, while the number of commercial crabbers is much lower.

The Court decision on April 23d and the earlier WDFW action are important for all fisheries which have this zero-sum relationship between unlimited numbers of recreational fishers, and limited numbers of commercial ones. The court decision and WDFW actions in this fishery are precedent and are based on their views of WDFW’s power and duties generally. Thus, the precedent set by this Court decision is that WDFW has the power to cut commercial share in any fishery where commercial harvesters compete with recreational ones – and there is growth in the numbers of recreational harvesters. The Court of Appeals decision is a threat to commercial fishing in the State generally because it means that the Courts have now said that WDFW has the power to go just short of completely divesting commercial fishing of their allocation wherever a limited State share has to be divided between sports fishers, and commercial fishers.

The PSCA and Puget Sound Dungeness crab commercial harvesters have already taken legal action to reverse the Court of Appeals decision. On May 23, 2013, PSCA and six Puget Sound Dungeness crab commercial operators filed a petition asking the Washington State Supreme Court to accept review of the Court of Appeals decision in PSCA v. WDFW – that is, to hear the appeal of that decision – which could lead to the Supreme Court reversing it. This petition for review was filed in Washington Supreme Court case, PSCA v. State of Washington, Department of Fish and Wildlife, No. 88870-1.

The petition of PSCA argues that the Supreme Court should hear this appeal because the issue of whether WDFW may divest commercial fishing of their allocations almost completely, versus maintaining the historical 68 percent historical allocation for the commercial participants in this fishery, is of great public importance. And PSCA argues that the Court of Appeals and WDFW simply misconstrued the plain meaning of the relevant statutes. And the petition for review points out that if WDFW can give more allocation to recreational groups simply because they want it, and are more numerous than commercial fishers – then salmon, shrimp and all commercial fisheries in the State of Washington are destabilized and under threat.

If the PSCA petition for review is accepted and the Washington Supreme Court hears the appeal and overturns the Court of Appeals, this threat can be eliminated. Alternatively, the Supreme Court could hear the appeal and uphold WDFW action yet still set forth some meaningful limits on WDFW’s ability to cut commercial allocation and protect commercial fishing in that manner. And, the Supreme Court could decide to not hear the appeal or it could hear it and uphold the Court of Appeals. In these scenarios, every commercial fishery facing competition from unlimited recreational fishers will have to wonder what is there to stop WDFW from shifting more and more allocation to recreational groups.

Background: What did the State Legislature say?

The issue of how fisheries are to be managed is a question of legislative intent in the provisions of RCW 77.04.012. The State Legislature is well aware there are important food fish and shellfish fisheries in Washington State, where large numbers of sports fishers divide the state catch with small numbers of commercial operators. Often, it is the legislature itself that created a limited-entry, tightly managed commercial fishery. The State Legislature addressed the needs of the fishing industry, and commercial fishing, in setting forth basic mandates for WDFW in RCW 77.04.012. This section has three basic mandates:

• WDFW shall conserve “wildlife and food fish, game fish, and shellfish.”

• WDFW “shall seek to maintain the economic well-being and stability of the fishing industry” and “enhance and improve recreational and commercial fishing.” And,

• WDFW “shall attempt to maximize” hunting of wildlife and “recreational game fishing.”

In the Puget Sound Dungeness crab fishery for two decades the commercial harvesters received about two thirds of the state share and the recreational harvesters about one third. But the number of commercial harvesters is capped at 250 licenses, while the number of recreational users is not capped. And their number doubled to some 236,000 in the nine years ending in 2010.

Prompted by demands by recreational crabbers for more allocation, in late 2010 and early 2011, WDFW changed the fishery rules and policy, to expand the recreational season by one day a week, giving them formal “priority” and ending the prior crab management policy – with the goal or effect of increasing recreational share “from approximately 32 percent to 48 percent” of the State total – and cutting the commercial share from 68 percent to 52 percent of the State share. In other words, looking at the change in allocation in percentage terms, WDFW deliberately sought to increase recreational share by 50 percent and cut commercial share by 24 percent in this zero sum fishery.

WDFW in taking this action pointed to the fact that recreational harvesters outnumbered commercial ones 236,000 to 160 (some 160 commercial operators hold the extant 249 licenses). WDFW projected that the new system would boost recreational catch to its highest level ever – 1.8 million pounds – while commercial catch would fall from 3 million pounds before the new system (in 2009) to 2.3 million pounds in the first season after the new rules took effect.

Thus, WDFW data showed the policy and rule change would cause a cut in commercial catch of some 700,000 pounds. WDFW stated this would produce commercial revenues of $6.2 million, compared to $8 million in 2009 – that is, a revenue cut of $1.8 million.

WDFW only looked at projections for one season – obviously the effects of boosting recreational season and share accumulate over time and in a few years add up to several million dollars and millions of pounds of crab. And that does not even consider that every crab shifted from commercial to recreational catch causes downstream ripple economic effects at the levels of buyers, wholesalers, grocery stores, bars and restaurants and ultimately consumers.

WDFW said “fishing industry” includes not just commercial fishers, but also support industries selling goods and services to commercial or recreational crabbers. In explaining this new interpretation WDFW pointed to an economic study that says the support industries of sports anglers include stores selling equipment or books, music or vehicles; also gas stations, groceries, and restaurants; and any place a sports crabber may spend money going to and from dropping a crab pot in the water – even spending at bars and casino hotels!

Then WDFW looked at economic impacts of the new allocation on this newly redefined fishing industry. Finding more sports crabbing access will cause more sports angling trips, and each trip creates $43 per day in spending at support industries, WDFW found its new rules would boost personal income at sports support industries by $5 million a year. Then, WDFW said it found no real harm to commercial crabbers because the new system would cut its revenue to a level only a quarter million dollars lower than average revenue – going back nine years. WDFW then concluded there was no harm to the “fishing industry.”

WDFW did not look at whether that yardstick was fair – certainly costs have risen in the prior decade – and anyway the change in percentage allocation is clearly significant harm to commercial crabbing in this fishery. But WDFW’s official position is that a boost of 50 percent in the sports allocation, and cut of 24 percent in the commercial allocation, is really no significant change for the commercial license holders.

In its lawsuit filed in 2011 challenging these WDFW actions, PSCA argued that WDFW cuts to commercial fishing to boost recreational share violated the mandate to “improve recreational and commercial fishing” – because one can’t improve commercial fishing, by reducing and harming it.

PSCA also argued that the term “fishing industry” in RCW 77.04.012 means commercial fishers plus buyers, wholesalers and processors – that is, those commercial businesses that are in the industry of harvesting, processing or selling fish. Notably, recreational users have personal use licenses and may not legally sell a single crab they catch – so they cannot be viewed as being in the “fishing industry.” It is clear based on ordinary dictionary definitions that the term “the fishing industry” means entities that are in business, and which deal in fish or shellfish products commercially. Recreational crabbers are not in business and do not sell, and their activity is pleasure or recreation, not “industry” at all. Moreover, spending at gas stations, groceries, and bars or purchases of boats or equipment is spending in the gas, food, liquor or boating industries – and is not part of the economic well being of the fishing industry. Every industry buys from other industries and economically affects other industries – but this does not merge the various industries into each other. So, PSCA argued that the sudden shift from a historical allocation pattern including large cuts in share, pounds and revenue violated the mandate to maintain the economic well being and stability of the fishing industry, too.

Finally, PSCA argued that WDFW cannot legally use greater numbers of sports crabbers as a basis to upset two decades of a stable 68/32 percent allocation – since this would mean WDFW could then continue to cut commercial fishing more and more, as sports crabber participation grows even more – meaning the very existence of commercial fishing in this fishery is under threat. This is not keeping the fishing industry stable, or improving commercial fishing, PSCA argued.

On April 23, 2013, Division II of the Washington Court of Appeals (COA) issued its decision upholding WDFW’s actions and turning back the PSCA arguments. The COA said that to “improve recreational and commercial fishing” WDFW merely must think about and balance the needs of both groups. Thus, the court said, WDFW may comply with this statute if it improves recreational fishing by cutting and reducing commercial fishing – if it first looks at both groups and says it is “balancing” their needs. Of course in this balancing process, the 236,000 recreational users outweigh the 160 commercial ones, so the “requirement” that WDFW engage in “balancing” really means there is no limit on its power to cut commercial share.

The COA dealt with the “fishing industry” duty in RCW 77.04.012 differently than WDFW did, but upheld the WDFW action anyway. The COA found that WDFW made two mistakes. First, the COA said spending at support industries is not part of the fishing industry, contrary to WDFW’s view. But then the COA said that although sports crabbers’ support spending is not part of the fishing industry, the benefit recreational crabbers get is an economic benefit that is part of the term “fishing industry.” Second the COA said WDFW misused the $43/day figure to estimate this spending was wrong. The $43/day figure came from an economic study which said it was a measure of sports crabbers’ reported personal satisfaction for each day of crabbing – something they feel, not something they spend – and not an estimate of any actual spending. The COA said nonetheless the math done by WDFW should be viewed as correct because this figure estimates the recreational crabbers’ economic well being and that is part of the term, “fishing industry.” The COA then upheld the WDFW conclusion that the rule changes maintained the economic well-being and stability of the fishing industry.

It is clear that the upshot of this “reasoning” by the Court of Appeals is that the future of the fishing industry and commercial fishing in the State of Washington is facing an existential threat.

There will always be more recreational harvesters, and if one “balances” their numbers or demands against those of the relatively puny numbers of commercial operators, as if they are all equally part of the same “fishing industry” then the recreational group will win every time.

Amazingly, the COA recognized the implications of its decision, saying despite its ruling WDFW may not “completely divest the commercial harvesters of their allocation.” But this statement indicates the COA view is that legally, WDFW can come just short of completely eliminating any allocation for commercial fishing. And the COA did not say whether its logic means WDFW may “only” cut the commercial allocation in the Puget Sound Dungeness crab fishery down to 30 percent next time, or down to 20 percent or ten percent – or down to one crab per commercial license. After all, all those cuts would still not “completely divest” the commercial harvesters of allocation.

The COA decision in effect re-wrote the language in RCW 77.04.012 to read, “WDFW may improve recreational or commercial fishing, at its discretion, and it may improve recreational fishing by harming commercial fishing” The COA decision re-writes the “fishing industry” part of RCW 77.04012 to read, in effect, “WDFW may harm the part of the fishing industry composed of commercial fishing and wholesalers and processors, as long as it does so in shifting allocation to recreational fishing since both recreational and commercial fishing are by law deemed part of the fishing industry – even though recreational fishers legally may not sell their catch, report no income, revenue or profit, pay no tax on their earnings and pay nothing for premiums to the department of labor and industries.”

If one equates recreational with commercial fishing, lumping them together in the same pot, then 236,000 sports crabbers’ satisfaction and numbers will outweigh the needs of 160 commercial crabbers every time. The end result of the WDFW and COA actions is at present, the real fishing industry – commercial fishers and wholesalers and processors – is equated to and submerged in a sea of recreational participants, and is unprotected. WDFW may cut commercial share at will, as long as there are recreational users to take more – unless the Court of Appeals decision is overturned or the Legislature corrects its mis-application of RCW 77.04.012.

The PSCA Fight Goes to the Next Level – the State Supreme Court

The May 23, 2013 petition for review filed by PSCA seeks to have the Washington Supreme Court hear PSCA’s appeal and reverse the Court of Appeals decision – by properly reading RCW 77.04.012 to actually protect the fishing industry and commercial fishing instead of reading RCW 77.04.012 as a permit to reduce and “nearly completely divest” allocation from commercial fishing, harming and destabilizing the fishing industry.

The Supreme Court will decide whether to take the case in a few months – but any member of the fishing industry can help make that happen, by filing a friend of the court brief asking the Supreme Court to take this case.

One commercial fishing group, the Puget Sound Shrimp Association, has decided to file a friend of the court brief. But any other commercial fisher, association, or really anyone affected by harm to the fishing industry whether such as buyers, wholesalers and processors can also ask the Supreme Court to take this case.

The deadline for a friend of the court brief asking the Supreme Court to take the appeal case is July 22, 2013.

If you or your group wants to consider filing such a brief, contact PSCA or me at 206-419-4385 or cleve@clevelandstockmeyer.com – but please, act quickly.

A friend of the court brief is not a major legal expense. It would merely cover one’s position or investment in the fishing industry, then tell the Supreme Court why this case is of great public importance. The Supreme Court takes only about 100 cases a year, out of thousands of requests. A friend of the court brief would say why taking the case is important to whoever is filing the brief, and that this case is the first one setting the duties of WDFW to commercial fishing and the fishing industry generally, and all commercial fishing in the State is affected. Thousands of jobs are at stake, plus hundreds of millions of dollars of investment. And more: the Legislature has often limited commercial licenses, which also indicates that preserving commercial fisheries is a matter of great public importance. Indeed, where WDFW may not legally issue one more Puget Sound Dungeness crab commercial license over the 250 allowed, the decision to open doors of competition to 236,000 recreational crabbers is not just bizarre, but is plainly an issue of public importance as it undermines the legislative plan to maintain and preserve the commercial fleet. The same can be said of shrimp and salmon and other fisheries, too.

The bottom line is PSCA v. WDFW is going to be a foundational precedent governing WDFW and its duties to all commercial fishing in the State where commercial and recreational groups contend for allocation. It is about protecting commercial fishing versus WDFW being told it may nearly completely destroy it. Harm to commercial fishing or shellfish harvests also means harm to downstream buyers, processors, wholesalers, groceries and restaurants – as well to as all industries supporting or selling goods and services to commercial fishing and the fishing industry.

The PSCA v. WDFW case appears to be a legalistic fight about the meaning of words in a statute, but in reality it is about the fate of the fishing industry in Washington State. No WDFW commissioner represents commercial fishing. WDFW seems poised to cut commercial fishing in the years to come to satisfy ever-growing numbers of recreational users. The Court of Appeals decision in effect took the word “industry” out of RCW 77.04.012 when it said recreational crabbers are part of the “fishing industry.” It is vitally important for the entire fishing industry to step forward and tell the Washington Supreme Court this is wrong, and it should take this case and say so – because merging recreational with commercial fishing means severe harm to, if not near complete elimination of commercial fishing in the State.

In effect, the Court of Appeals said commercial fishing is the same as recreational fishing. The fishing industry should step forward to help PSCA tell the Supreme Court this is wrong: the “fishing industry” in Washington State is no sporting matter.

Cleveland Stockmeyer is the attorney for PSCA in PSCA v. WDFW. He can be contacted at 206-419-4385 or cleve@clevelandstockmeyer.com.

 
 
 
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