Story last updated at 7/15/2009 - 11:33 am
The one-fish bag limit for guided halibut anglers in Southeast Alaska will remain in effect through the 2009 summer tourism season, based on the schedule for future court filings approved June 25 by the Washington DC judge hearing the case.
US District Judge Rosemary Collyer's 17-page opinion, explaining her decision refusing to grant a preliminary injunction that would have kept a two-fish bag limit, also rejects in sometime strong language, the claims of the six lodge and charter businesses challenging the lower limit. Collyer called many of their arguments "without merit" and endorsed the deliberative process used to set the lower charter catch limit and its allocative aspects.
The plaintiffs include two Juneau businessmen, Richard Yamada, of the Shelter Lodge, and Rick Bierman, of The Whale's Eye Lodge, both on Shelter Island. The others are Waterfall Resort and El Capitan Lodge, both on Prince of Wales Island, Alaska Premier charters and Wild Strawberry Lodge, near Sitka and Silver King Charters, of Ketchikan.
Defendants are the US Commerce Sec. Gary Locke, Janet Lubchenco, head of the National Oceanic and Atmospheric Administration and Jim Balsinger, chief of the National Marine Fisheries Service for Alaska.
Collyer also allowed the "Halibut Coalition" of commercial halibut harvesters, processors, two Native organizations and the Southeast communities of Pelican and Port Alexander supporting the lower sport bag to intervene in the case "on the merits" but not the question of a preliminary injunction.
In a June 4 ruling from the bench Collyer refused to grant an injunction to block imposition of a National Marine Fisheries Service rule cutting the halibut bag limit for guided anglers in Southeast, to one fish per day. The rule took effect June 5. The limit for non-guided anglers remains two halibut per day throughout the state.
The case schedule gives the tourism businesses until July 17 to file their motion for summary judgment. Replies and cross motion for summary judgment from the federal government and intervenors are due by July 28. The plaintiffs have until Aug. 10 to file their reply and the final response from the feds and commercial industry is due by Aug. 17. Court hearings for oral arguments are expected, but unlikely to be scheduled until sometime in September at the earliest. A final decision from Collyer is highly unlikely before Labor Day, and potentially much later.
The judge, who blocked imposition of the one-fish limit for the 2008 tourist season on procedural grounds, agreed that the charter companies "made a clear showing of irreparable harm ... threatening the very existence of their businesses" because of fewer 2009 bookings due to the lower bag limit.
She also noted that the Secretary of Commerce acknowledged as much, but emphasized that federal law allows the imposition of economic pain for conservation of natural resources and said, in effect, that it is the charter industry's turn to shoulder part of that burden created by reduced halibut stock levels.
After losing the procedural argument charter business attorney Earl Comstock complained that the core of the dispute was an unfair allocation of halibut to the commercial fishing industry. Collyer wrote that the one-fish rule "was promulgated specifically due to the Secretary's concern regarding allocation." She noted that guided anglers have exceeded the guideline harvest limit for Southeast every year from 2004 through '07 and were expected to have done so in 2008, while commercial harvesters have absorbed substantial harvest reductions to protect halibut stocks from overfishing.
"The Secretary promulgated the Final Rule for the very purpose of addressing fairness and equity in order to address the imbalance caused by the de facto reallocation from the commercial industry to the charter industry," Collyer declared in the opinion.
Collyer also said the secretary did not violate the requirement of the federal Administrative Procedures Act to complete an analysis on the fairness of the new rule. "It appears that the secretary considered the relevant factors and made a rational determination based on those factors," she wrote.