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COMPLAINT- 1
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT TACOMA
FAIRWEATHER FISH, INC., et al.,
Plaintiffs,
v.
PENNY PRITZKER, in her official capacity as Secretary of Commerce, et al.,
Defendants.
NO. 3:14-cv-05685-BHS
FIRST AMENDED COMPLAINT
I. INTRODUCTION
1. Plaintiffs Fairweather Fish, Inc., a Washington corporation (“Fairweather Fish”)
and Captain Ray Welsh (“Captain Welsh”) (sometimes collectively referred to as “Plaintiffs”)
challenge a final rule entitled “Fisheries of the Exclusive Economic Zone Off Alaska: Pacific
Halibut and Sablefish Individual Fishing Quota Program” (“Final Rule”), 79 Fed. Reg. 43679
(July 28, 2014), promulgated on July 28, 2014, by Defendants Secretary of Commerce Penny
Pritzker, National Oceanic and Atmospheric Administration (“NOAA”), Kathryn D. Sullivan,
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COMPLAINT- 2
Administrator of National Marine Fisheries Service (“NMFS”), and Eileen Sobeck, Assistant
Administrator for NMFS (collectively “Defendants”).
2. The Final Rule amends the hired master provisions of the Individual Fishing
Quota Program (“IFQ Program”) for the fixed-gear commercial halibut and sablefish fisheries
off the coast of Alaska at 679 C.F.R. §§ 679.41 and 679.42.
3. The Final Rule approves three amendments to the regulations that govern the IFQ
Program (the “Amended Regulations”). The first two amendments add regulations at 50 C.F.R.
§ 679.42(i)(8) and (j)(10) to specify that a hired master (skipper) cannot be used to fish IFQ
halibut or sablefish derived from catcher vessel quota shares (“QS”) that were received by
transfer after February 12, 2010, with a limited exception for small amounts of QS. The third
amendment adds regulations under 50 C.F.R. § 679.41(c)(11) specifying that NMFS will not
approve a transfer of catcher vessel QS to a corporation, partnership, association, or other non-
individual entity at any time.
4. The Final Rule and Amended Regulations are unlawful because they violate the
Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. (“Rehabilitation Act”); the Magnuson-
Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1884 (“Magnuson-
Stevens Act”); the Northern Pacific Halibut Act of 1982, 16 U.S.C. §§ 773 et seq. (“Halibut
Act”); the United States Constitution; and the Administrative Procedure Act 5 U.S.C. §§ 701-706
(“APA”). The Final Rule and Amended Regulations violate the Rehabilitation Act by excluding
otherwise qualified individuals with a disability from participating in the IFQ Program. The
Final Rule and Amended Regulations violate the Magnuson-Stevens Act, the Halibut Act, and
the APA in that they are impermissibly retroactive and arbitrary and capricious. The Final Rule
and Amended Regulations violate the Fifth Amendment of the United States Constitution by
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COMPLAINT- 3
denying Plaintiffs due process of law. The Final Rule and Amended Regulations violate
National Standard Four of the Magnuson-Stevens Act and the Halibut Act in that they are not
fair and equitable. The Final Rule and Amended Regulations violate National Standard One of
the Magnuson-Stevens Act by failing to achieve optimum yield. The Final Rule and Amended
Regulations violate National Standard Two of the Magnuson-Stevens Act in that they are not
based on the best scientific information available. The Final Rule and Amended Regulations
violate National Standard Nine of the Magnuson-Stevens Act by failing to minimize bycatch.
The Final Rule and Amended Regulations violate National Standard Ten of the Magnuson-
Stevens Act by failing to promote the safety of human life at sea. The Magnuson-Stevens Act
specifies that Defendants shall not approve a fishery management plan, an amendment thereto, or
any implementing regulations (sometimes collectively referred to herein as “FMP”) unless the
FMP is consistent with the Magnuson-Stevens Act and any other applicable law. The Final Rule
and Amended Regulations violate the Magnuson-Stevens Act by failing to comply with the
applicable law set forth above.
5. Defendants’ actions, omissions, and conduct in promulgating the Final Rule and
approving the Amended Regulations also result in damage to initial QS recipients who are
corporations, partnerships, associations and other entities, including Plaintiff Fairweather Fish,
by prohibiting such entities from using a hired master to harvest IFQ derived from catcher vessel
QS received by transfer after February 12, 2010. As a corporation, Fairweather Fish is not able
to be on board its vessel when harvesting halibut or sablefish QS. Accordingly, Fairweather Fish
relies on a hired master to harvest its halibut and sablefish QS. If the Final Rule is upheld and
the Amended Regulations become effective, Fairweather Fish and others like it will not be able
to harvest their QS received by transfer after February 12, 2010. Further, Fairweather Fish and
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COMPLAINT- 4
others like it will be limited in their ability to participate in the IFQ Program going forward, as
Fairweather Fish and similar entities will not be able to acquire and harvest additional QS.
Fairweather Fish and others like it will be limited and restricted to harvesting only the QS that
they acquired prior to February 12, 2010. Fairweather Fish and others like it will suffer
additional economic harm if the Final Rule is upheld and the Amended Regulations are
implemented because they will be unable to obtain the same price for their QS as they would
otherwise receive due to the negative impact the Final Rule and Amended Regulations will have
on supply and demand. Fairweather Fish and others like it will also be forced to sell their QS
received by transfer after February 12, 2010, and thus will incur a capital gains tax.
6. Defendants’ actions, omissions, and conduct in promulgating the Final Rule and
approving the Amended Regulations result in damage to initial QS recipients, who are otherwise
qualified individuals with a disability, including Plaintiff Captain Welsh, by prohibiting such
individuals from using a hired master to harvest IFQ derived from catcher vessel QS received by
transfer after February 12, 2010. Specifically, the Final Rule and Amended Regulations exclude
otherwise qualified individuals with a disability from employing a hired master, which precludes
those individuals from harvesting their allotted IFQ or, alternatively, require those individuals to
be present on board their vessel when doing so would be unsafe due to their disabilities. As a
result of his disabilities, Captain Welsh is not able to be on board his vessel when harvesting
halibut or sablefish QS. Accordingly, Defendants’ actions and failures will harm Captain Welsh
by prohibiting him, and others like him, from using a hired master to harvest IFQ derived from
catcher vessel QS received by transfer after February 12, 2010. If the Final Rule is upheld and
the Amended Regulations become effective, Captain Welsh and others like him will not be able
to harvest their QS received by transfer after February 12, 2010. Further, Captain Welsh and
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COMPLAINT- 5
others like him will be limited in their ability to participate in the IFQ Program going forward, as
Captain Welsh and others like him will not be able to acquire and harvest additional QS. Captain
Welsh and others like him will be limited and restricted to harvesting only the QS that they
acquired prior to February 12, 2010. Captain Welsh and others like him will suffer additional
economic harm if the Final Rule is upheld and the Amended Regulations are implemented
because they will be unable to obtain the same price for their QS as they would otherwise receive
due to the negative impact the Final Rule and Amended Regulations will have on supply and
demand. The Final Rule and Amended Regulations will drastically narrow the number of
eligible potential transferees of QS while increasing the number of transferors, thereby causing a
reduction in the price of QS.
7. Defendants misconstrue the fundamental purpose of the IFQ Program which was
to promote the conservation and management of halibut and sablefish resources by reducing
excessive fishing capacity in the commercial halibut and sablefish fixed-gear fisheries.
Defendants’ attempt to characterize/transform the fundamental purpose of the IFQ Program to an
accelerated owner on board standard violates the applicable laws referenced above. The Final
Rule and Amended Regulations do not promote environmental conservation and will have no
effect on protecting halibut and sablefish resources. Instead, the Final Rule and Amended
Regulations attempt to engage in social engineering by advancing an owner on board standard
which unlawfully impacts the economic welfare of corporations/entities and discriminates
against otherwise qualified disabled individuals.
II. JURISDICTION AND VENUE
8. This action arises under the Rehabilitation Act, the Magnuson-Stevens Act, the
Halibut Act, the United States Constitution, and the APA.
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COMPLAINT- 6
9. This Court has jurisdiction over the action pursuant to Section 504 of the
Rehabilitation Act, 29 U.S.C. § 794; the Magnuson-Stevens Act, 16 U.S.C. § 1861(d) (“[t]he
district courts of the United States shall have exclusive jurisdiction over any case or controversy
arising under [the Act]”); the Halibut Act, 16 U.S.C. 773i(d) (district courts have exclusive
jurisdiction); the APA, 5 U.S.C. §§ 701-706 (final agency actions are subject to judicial review);
28 U.S.C. § 1331 (district courts have “original jurisdiction of all civil actions arising under the
… laws … of the United States”); and 28 U.S.C. § 1361 (district courts have original jurisdiction
over any action in the nature of mandamus to compel an officer or employee of the United States
or any agency thereof to perform a duty owed to the plaintiff).
10. The Magnuson-Stevens Act provides that actions taken by the Secretary of
Commerce in issuing regulations to implement an FMP shall be subject to judicial review “if a
petition for such review is filed within 30 days after the date on which the regulations are
promulgated or the action is published in the Federal Register, as applicable.” 16 U.S.C.
§ 1855(f)(1). Defendants published the Final Rule amending the hired master provisions of the
IFQ Program on July 28, 2014 in the Federal Register. Plaintiffs file this Complaint within 30
days of the publication of the Final Rule.
11. This Court has the authority to grant the relief sought in this action pursuant to the
Declaratory Judgment Act (28 U.S.C. §§2201-02), the Magnuson-Stevens Act (16 U.S.C.
§ 1855(d) and (f)), the Halibut Act (16 U.S.C. § 773i(d)), 42 U.S.C. § 1983, and the APA
(5 U.S.C. §§ 705, 706).
12. Venue is proper in this judicial district pursuant to 28 U.S.C. §1391(e) because a
substantial part of the events and omissions giving rise to the claim occurred in this district and
because Plaintiff Fairweather Fish has its corporate headquarters in this district.
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COMPLAINT- 7
III. PARTIES
13. Fairweather Fish, Inc. Plaintiff Fairweather Fish is a small, family-owned
business that has its corporate headquarters in Gig Harbor, Washington. At the inception of the
IFQ Program in the early 1990’s, Fairweather Fish was issued initial QS to harvest halibut and
sablefish. Fairweather Fish received by transfer (purchased) five separate QS after February 12,
2010. Fairweather Fish has a 20% or greater ownership interest in the vessel(s) that harvest its
QS and currently is qualified to participate in the IFQ Program. If the Final Rule is made
effective and the Amended Regulations are implemented, Fairweather Fish will have been
qualified to participate fully in the IFQ Program up to and until that time. As a corporation,
Fairweather Fish relies on a hired master to harvest its QS.
14. Captain Ray Welsh. Plaintiff Captain Welsh is an individual residing in Anchor
Point, Alaska, who received initial QS in his name when the IFQ Program was first
implemented. In July, 2010, Captain Welsh sold halibut QS and received by transfer (purchased)
sablefish QS. Captain Welsh has a 20% or greater ownership interest in the vessel(s) that harvest
his QS and currently is qualified to participate in the IFQ Program. If the Final Rule is made
effective and the Amended Regulations are implemented, Captain Welsh will have been
qualified to participate fully in the IFQ Program up to and until that time. Captain Welsh has
physical and mental impairments that substantially limit several major life activities, including
his ability to perform manual tasks, lift, bend, read, concentrate, think, communicate, walk, learn,
and/or work. Captain Welsh is an otherwise qualified “individual with a disability,” as that term
is defined in 29 U.S.C. § 705(20), and is a “qualified individual with handicaps” as that term is
defined in 15 C.F.R. § 8c.3. Accordingly, Captain Welsh hires, relies on, and is entitled to a
skipper to harvest his QS.
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COMPLAINT- 8
15. Penny Pritzker. Defendant Penny Pritzker is sued in her official capacity as the
Secretary of the United States Department of Commerce (“Secretary”). Ms. Pritzker is
ultimately responsible for overseeing the proper administration and implementation of the
Magnuson-Stevens Act. She is also responsible for her Department’s compliance with section
504 of the Rehabilitation Act.
16. National Oceanic and Atmospheric Administration. NOAA is an agency of
the United States Department of Commerce with supervisory responsibility for NMFS. The
Secretary has delegated responsibility to ensure compliance with the Magnuson-Stevens Act to
NOAA which, in turn, has sub-delegated that responsibility to NMFS.
17. Kathryn D. Sullivan. Defendant Kathryn Sullivan is the Administrator of
NOAA, and thus is charged with the responsibility to ensure that the requirements of the
Magnuson-Stevens Act and other applicable law are followed and enforced.
18. National Marine Fisheries Service. Defendant NMFS is an agency of the
United States Department of Commerce that has been delegated the primary responsibility to
ensure that the requirements of the Magnuson-Stevens Act and other applicable law are followed
and enforced.
19. Eileen Sobeck. Defendant Eileen Sobeck is Assistant Administrator for NMFS,
and is charged with administration of the Magnuson-Stevens Act and other applicable law with
respect to living marine resources.
IV. LEGAL BACKGROUND
A. The Rehabilitation Act.
20. Section 504 of the Rehabilitation Act states, “No otherwise qualified individual
with a disability in the United States ... shall, solely by reason of her or his disability, be
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COMPLAINT- 9
excluded from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance or under any program or
activity conducted by any Executive agency or by the United States Postal Service.” 29 U.S.C.
§ 794(a) (“Section 504”).
21. Agencies may promulgate regulations that implement the requirements
concerning the treatment of individuals contained in Section 504.
22. The Department of Commerce published regulations implementing the
Rehabilitation Act and prohibiting discrimination in its programs on the basis of handicap at
15 C.F.R. pt. 8c (1988) (“Department of Commerce Regulations”).
23. The Rehabilitation Act and the Department of Commerce Regulations apply to
the IFQ Program. 15 C.F.R. § 8c.2 (“This part applies to all programs or activities conducted by
the agency except for programs or activities conducted outside the United States that do not
involve individuals with handicaps in the United States.”).
24. The Department of Commerce Regulations provide that “no qualified individual
with handicaps shall, on the basis of handicap, be excluded from participation in, be denied the
benefits of, or otherwise be subjected to discrimination under any program or activity conducted
by the agency.” 15 C.F.R. § 8c.30.
25. An “individual with handicaps” means, “any person who has a physical or mental
impairment that substantially limits one or more major life activities, has a record of such an
impairment, or is regarded as having such an impairment.” 15 C.F.R. § 8c.3.
26. A “qualified individual with handicaps” means “(1) With respect to any agency
program or activity under which a person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential eligibility requirements
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and who can achieve the purpose of the program or activity without modifications in the program
or activity that the agency can demonstrate would result in a fundamental alteration in its nature;
(2) With respect to any other program or activity, an individual with handicaps who meets the
essential eligibility requirements for participation in, or receipt of benefits from, that program or
activity; and (3) ‘Qualified handicapped person’ as that term is defined for purposes of
employment in 29 CFR 1613.702(f), which is made applicable to this part by § 8c.40.”
15 C.F.R. § 8c.3.
B. The Magnuson-Stevens Act.
27. Congress enacted the Magnuson-Stevens Act, among other purposes, “to conserve
and manage the fishery resources found off the coasts of the United States,” “to promote
domestic commercial and recreational fishing under sound conservation and management
principles,” and “to provide for the preparation and implementation, in accordance with national
standards, of fishery management plans which will achieve and maintain, on a continuing basis,
the optimum yield from each fishery.” 16 U.S.C. § 1801(b)(1), (3)-(4). The Act created eight
regional fishery management councils, including the North Pacific Fishery Management Council
(“Council”) that recommended the IFQ Program at issue this case. 16 U.S.C. § 1852. These
councils must develop, and submit to the Secretary for approval, FMPs and “amendments to each
such plan that are necessary from time to time (and promptly whenever changes in conservation
and management measures in another fishery substantially affect the fishery for which such plan
was developed).” 16 U.S.C. § 1852(b), (h)(1).
28. All FMPs and implementing regulations prepared by the regional fishery
management councils are subject to final review and approval by NMFS. The Magnuson-
Stevens Act requires that an FMP, including FMP amendments, and any regulations promulgated
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COMPLAINT- 11
to implement such plans or amendments, cannot be approved unless they are consistent with the
Magnuson-Stevens Act and “other applicable law.” 16 U.S.C. § 1854(a) and (b).
29. The Rehabilitation Act, the Halibut Act, and the U.S. Constitution are other
“applicable laws” with which an FMP and FMP amendment, including their implementing
regulations, must be consistent.
30. FMPs must comply with ten national standards under the Magnuson-Stevens Act,
including the following: (1) Conservation and management measures shall prevent overfishing
while achieving, on a continuing basis, the optimum yield from each fishery for the United States
fishing industry; (2) Conservation and management measures shall be based upon the best
scientific information available; (4) Conservation and management measures shall not
discriminate between residents of different States. [“If it becomes necessary to allocate or assign
fishing privileges among various United States fishermen, such allocation shall be (A) fair and
equitable to all such fishermen; (B) reasonably calculated to promote conservation; and
(C) carried out in such manner that no particular individual, corporation, or other entity acquires
an excessive share of such privileges.”]; (9) conservation and management measures shall, to the
extent practicable, minimize bycatch; and (10) Conservation and management measures shall, to
the extent practicable, promote the safety of human life at sea.” 16 U.S.C. § 1851(a)(1), (2), (4),
(9) and (10). The national standards are designed to promote conservation, not the economic
welfare of individuals over that of corporations or entities.
31. The Magnuson-Stevens Act provides that an FMP may “establish a limited access
system for the fishery in order to achieve optimum yield if, in developing such system, the
Council and the Secretary take into account, (A) present participation in the fishery;
(B) historical fishing practices in, and dependence on, the fishery; (C) the economics of the
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fishery; (D) the capability of fishing vessels used in the fishery to engage in other fisheries;
(E) the cultural and social framework relevant to the fishery and any affected fishing
communities; (F) the fair and equitable distribution of access privileges in the fishery; and
(G) any other relevant considerations.” 16 U.S.C. § 1853(b)(6).
32. In establishing a limited access privilege program, the Council is required, inter
alia, to “establish a policy and criteria for the transferability of limited access privileges (through
sale or lease) that is consistent with the policies adopted by the Council for the fishery under [16
U.S.C. § 1853a(c)(5)(A)],” including but not limited to the requirement that the policies
“establish procedures to ensure fair and equitable initial allocations, including consideration of,
(i) current and historical harvests; (ii) employment in the harvesting and processing sectors;
(iii) investments in, and dependence upon, the fishery; and (iv) the current and historical
participation of fishing communities,” and “consider the basic cultural and social framework of
the fishery.” 16 U.S.C. §§ 1853a(c)(5)(A), (B).
33. The Magnuson-Stevens Act further provides that any limited access privilege
program to harvest fish shall promote fishing safety, fishery conservation and management; and
social and economic benefits. 16 U.S.C. § 1853a(c)(1)(C). By prohibiting otherwise qualified
disabled individuals from relying on a hired master to harvest their QS, the Final Rule and
Amended Regulations fail to promote fishing safety. For these disabled individuals to harvest
their QS received after February 12, 2010, the Final Rule and Amended Regulations require that
they be on board their vessel in blatant disregard of National Standard Ten, which requires that
conservation and management measures promote the safety of human life at sea.
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34. The Council is responsible for amending the FMP “as necessary from time to time
(and promptly whenever changes in conservation and management measures in another fishery
substantially affect the fishery for which such plan was developed).” 16 U.S.C. § 1852(h)(1).
C. The Halibut Act.
35. The Secretary of Commerce and the International Pacific Halibut Commission
(“Commission”) manage fishing for Pacific halibut through regulations established under the
authority of the Halibut Act, 16 U.S.C. §§ 773-773k; 50 C.F.R. §§ 300.60-300.66. The
Commission recommends regulations governing the conservation of halibut stocks under the
Convention between the United States of America and Canada for the Preservation of the Halibut
Fishery of the Northern Pacific Ocean and Bering Sea (the “Convention”).
36. The Halibut Act provides the Secretary of Commerce with broad authority and
discretion to “adopt such regulations as may be necessary to carry out the purposes and
objectives of the Convention and [the Halibut Act].” 16 U.S.C. § 773c(b)(1). The Halibut Act
also provides the Council with the authority to recommend regulations to the Secretary of
Commerce, including limited access regulations. 16 U.S.C. § 773c(c). Any such regulations
“shall be consistent with the limited entry criteria set forth in section 1853(b)(6) [of the
Magnuson-Stevens Act].” Id.
37. If the Secretary makes an allocation decision or assigns halibut fishing privileges
among U.S. fisherman, “such allocation shall be fair and equitable to all such fishermen, based
upon the rights and obligations in existing Federal law, reasonably calculated to promote
conservation, and carried out in such manner that no particular individual, corporation, or other
entity acquires an excessive share of the halibut fishing privileges….” 16 U.S.C. § 773c(c).
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COMPLAINT- 14
D. The Administrative Procedure Act.
38. The APA requires that courts “hold unlawful and set aside agency action,
findings, and conclusions” that are, inter alia, “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; contrary to constitutional right, power, privilege, or
immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
[or] without observance of procedure required by law; ….” 5 U.S.C. § 706(2)(A)-(D); 16 U.S.C.
§ 1855(f)(1)(B) (adopting the standards for judicial review under 5 U.S.C. § 706(2)). Defendants
must have “considered the relevant factors and articulated a rational connection between the
facts found and the choices made.” Midwater Trawlers Coop. v. Dept. of Commerce, 282 F.3d
710, 716 (9th Cir. 2002).
V. FACTUAL ALLEGATIONS
39. In 1992, the Council recommended a limited access system for the fixed gear
halibut and sablefish fisheries off Alaska. The halibut and sablefish Individual Fishing Quota
(“IFQ”) plan was approved in January 1993 and implemented on November 9, 1993. 58
Fed. Reg. 59375 (November 9, 1993). Fishing under the program began on March 15, 1995.
The central purpose of the IFQ Program was to resolve the conservation and management issues
commonly associated with open access fisheries.
40. Federal regulations at 50 C.F.R. part 679, established under the authority of the
Magnuson-Stevens Act, implement the IFQ Program for the halibut and for sablefish fisheries.
Additional federal regulations at 50 C.F.R. part 300, subpart E, and 50 C.F.R. part 679,
established under the authority of the Halibut Act, also govern the halibut fishery.
41. The IFQ Program was intended primarily to reduce excessive fishing capacity in
the commercial halibut and sablefish fixed-gear fisheries.
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42. Access to the halibut and sablefish fisheries is limited to those persons holding
catcher vessel QS in specific management areas. The QS holder is the person authorized to
exercise the harvesting privilege in specific regulatory areas. NMFS initially issued QS to
qualified applicants (initial recipients) who owned or leased a vessel that made fixed-gear
landings of halibut or sablefish during the qualifying period from 1984 to 1990 for halibut, and
from 1985 to 1990 for sablefish. A person who received QS as an initial recipient was either
(1) an individual or natural person, or (2) a non-individual entity or person, such as a
corporation, partnership, or association. Initial recipients received QS allocations based on their
harvest during the qualifying period, the area of the harvest, and the type of vessel used to land
the harvest. QS are individual harvesting privileges that are given effect on an annual basis
through the issuance of individual fishing quota (“IFQ”) permits. An annual IFQ permit
authorizes the permit holder to harvest a specified amount of halibut or sablefish in a regulatory
area.
43. All QS are categorized according to the size of the vessel (category B, C, or D,
individually and collectively referred to as “catcher vessel QS”) from which halibut and sablefish
may be fished and whether that halibut or sablefish may be processed on board the vessel
(category A). The vessel categories were designed to ensure that the IFQ Program did not
radically change the structure of the fleet in place at the time the IFQ Program was implemented.
44. QS is transferrable from one person to another. The Council recommended and
NMFS implemented limits on the transfer (sale and purchase) and use of QS to limit
consolidation and maintain diversity of the IFQ fleet. For example, the IFQ Program only allows
persons who were originally issued catcher vessel QS (category B, C, and D halibut QS and
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COMPLAINT- 16
category B and C sablefish QS), or persons who qualify as IFQ crew members, to hold and
transfer catcher vessel QS.
45. The regulations that govern the IFQ Program currently provide that individuals
and corporations, partnerships, or other non-individual entities in certain vessel categories who
received initial QS may rely on a hired master to harvest their QS if certain criteria are met,
including if the individual or entity owns a minimum 20-percent interest in the vessel on which
the IFQ species are harvested and if the individual or entity is represented on the vessel by an
employed hired master who is appropriately permitted. See 50 C.F.R. §§ 679.42(i)(1),
679.42(j)(1). By limiting the hired master exception to initial QS recipients, the Council
intended that all initial recipients would eventually retire from fishing, at which time their QS
would be transferred to other qualified fishermen and the IFQ fisheries would become
predominantly owner-operated.
46. In the preamble to the proposed rule implementing the IFQ Program, the
statement of the fundamental purpose of the IFQ Program includes no reference to any owner-
on-board (“OOB”) standard as a core reason for adopting the IFQ Program. 57 Fed. Reg. 57130
(Dec. 3, 1992) (“1992 Proposed Rule”) at 57130-31. By contrast, the objective of forcing
owners to be on board their respective vessels is the stated purpose of the Final Rule. See 79
Fed. Reg. 43680 (“This final rule is necessary to maintain progress toward a predominately
owner-onboard fishery.”).
47. The 1992 Proposed Rule stated it was the Council’s “intention” that persons
entering the fishery after adoption of the IFQ Program be individuals with commercial fishing
experience and be aboard the vessel when it was fishing. Id. at 57133. Thus, unlike the Final
Rule at issue herein, only new entrants to the fishery would be subject to an OOB requirement.
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48. The 1992 Proposed Rule further stated that the purpose of the OOB standard was
“to assure that catcher vessel QS would continue to be held by professional fishermen after the
initial allocation process....” 1992 Proposed Rule at 57138. (Emphasis added.)
49. Incorporating the stated intent and purpose of the 1992 Proposed Rule, the 1993
Final Rule confirmed that the Council had no fixed schedule or anticipated deadline for the
transition to an OOB fleet; rather, “[e]ventually, as the individuals and firms that received initial
allocations are replaced by new ones, all catcher vessel QS will be transferred to individuals in
keeping with the Council’s basic policy.” 58 Fed. Reg. 59375 (Nov. 9, 1993) (“1993 Final
Rule”) at 59392. (Emphasis added.)
50. In February 2010, the Council received public testimony and information that
caused it to be concerned about the apparent consolidation of QS and reduced opportunities for
new entrants (“second generation”) fishermen to enter the fishery. The Council approved a
Problem Statement and initiated an analysis to evaluate the economic and socioeconomic effects
of a proposed amendment to the IFQ Program which would restrict initial recipients use of a
hired master (skipper) to harvest IFQs transferred after February 12, 2010.
51. In February 2011, the Council released a proposed amendment to the IFQ
Program that would prohibit the use of hired skippers for certain QS transferred after February
12, 2010 (“Amendment”). The effect of the Amendment would be to require the IFQ owners to
be aboard their respective vessels when fishing for halibut or sablefish QS acquired after
February 12, 2010.
52. On April 26, 2013, NMFS published a proposed rule in the Federal Register
regarding the proposed Amendment, which would amend the hired master regulations for
management of the IFQ Program for the fixed-gear commercial fisheries for halibut and
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sablefish in waters off Alaska (“Proposed Rule”). 78 Fed. Reg. 24707 (Apr. 26, 2013). The 30-
day comment period on the proposed rule ended May 28, 2013.
53. On July 28, 2014, NMFS published the Final Rule amending the hired master
provisions of the IFQ Program for the fixed-gear commercial fisheries for halibut and sablefish
in waters off Alaska. 79 Fed. Reg. 43679 (July 28, 2014). The Final Rule prohibits an initial QS
recipient from using a hired master to harvest IFQ derived from catcher vessel QS received by a
transfer after February 12, 2010, with a limited exception for small amounts of QS. The Final
Rule approves the Amended Regulations, and will be effective on December 1, 2014.
54. Other than the proposed rule in the Federal Register on April 26, 2013 and the
Final Rule in the Federal Register on July 28, 2014, no other Federal Register notices were
published regarding the proposed rule or the Final Rule, including any notice with respect to the
February 12, 2010 control date.
55. The Final Rule and Amended Regulations prohibit all initial QS recipients,
including Plaintiffs Fairweather Fish and Captain Welsh, from using a hired master to harvest
IFQ derived from catcher vessel QS received by transfer after February 12, 2010. As a
corporation, Fairweather Fish can only harvest its halibut or sablefish QS by using a hired
master. As an otherwise qualified individual with a disability, Captain Welsh can only harvest
his halibut or sablefish QS by using a hired master or, alternatively, being present on board his
vessel when it would be unsafe due to his disability. If the Final Rule is upheld and the
Amended Regulations become effective, Plaintiffs Fairweather Fish and Captain Welsh and
others similarly situated will be limited and restricted to harvesting only the QS that they
acquired prior to February 12, 2010. As a direct result of such limitation and restriction,
Plaintiffs Fairweather Fish and Captain Welsh are damaged, inter alia, because they will not be
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able to harvest QS acquired after February 12, 2010, because they will not be able to acquire and
harvest additional QS, and because the value of QS that they acquired after February 12, 2010
will be substantially diminished.
VI. CAUSES OF ACTION
FIRST CLAIM FOR RELIEF VIOLATIONS OF THE REHABILITATION ACT
(29 U.S.C. §§ 701 et seq.) (Asserted by Captain Welsh)
(In the Alternative to the Second Claim for Relief)
56. Plaintiff incorporates paragraphs 1 through 26 and 39 through 55 of this
Complaint as if expressly set forth herein.
57. Plaintiff Captain Welsh suffers from a disability within the meaning of the
Rehabilitation Act. Captain Welsh is an individual with handicaps who meets the essential
eligibility requirements to participate in and receive the benefits from the IFQ Program, and
therefore he is a “qualified individual with handicaps” under the Rehabilitation Act and the
Department of Commerce Regulations. See 15 C.F.R. § 8c.3.
58. Captain Welsh currently is qualified to participate in the IFQ Program. If the
Amended Regulations are implemented and the Final Rule is effective, apart from his disability,
Plaintiff Captain Welsh will be otherwise qualified to participate in the IFQ Program.
59. The Department of Commerce Regulations govern, inter alia, the IFQ Program.
The Department of Commerce Regulations provide that “no qualified individual with handicaps
shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination under any program or activity conducted by the
agency.” 15 C.F.R. § 8c.30.
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60. A “qualified individual with handicaps” means “(1) With respect to any agency
program or activity under which a person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential eligibility requirements
and who can achieve the purpose of the program or activity without modifications in the program
or activity that the agency can demonstrate would result in a fundamental alteration in its nature;
(2) With respect to any other program or activity, an individual with handicaps who meets the
essential eligibility requirements for participation in, or receipt of benefits from, that program or
activity; and (3) ‘Qualified handicapped person’ as that term is defined for purposes of
employment in 29 CFR 1613.702(f), which is made applicable to this part by § 8c.40.”
15 C.F.R. § 8c.3.
61. Defendants improperly apply subsection (1) of the definition of a “qualified
individual with handicaps” in 15 C.F.R. § 8c.3 to exclude disabled individuals from hiring a
master to harvest their QS received by transfer after February 12, 2010, and therefore to exclude
disabled individuals from fully participating in and benefiting from the IFQ Program. See
79 Fed. Reg. 43685. However, the IFQ Program does not require a participant to “perform
services to achieve a level of accomplishment,” as provided in subsection (1) of the definition of
a “qualified individual with handicaps” in the Department of Commerce regulations. 15 C.F.R.
§ 8c.3. The inclusion of “qualified individuals with handicaps” such as Captain Welsh would
not result in a fundamental alteration in the nature of the IFQ Program. Because the IFQ
Program does not fall within subsection (1), Defendants’ compliance with the Department of
Commerce Regulations must be in accordance with subsection (2) of the definition of “qualified
individuals with handicaps” in 15 C.F.R. § 8c.3 which states “(2) With respect to any other
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program or activity, an individual with handicaps who meets the essential eligibility
requirements for participation in, or receipt of benefits from, that program or activity.”
62. Plaintiff Captain Welsh will be denied the full benefit of participating in the IFQ
Program solely by reason of his disability, as a result of the Final Rule and Amended
Regulations, which prohibit him from using a hired master to harvest QS received by transfer
after February 12, 2010.
63. Captain Welsh is a “qualified individual with handicaps” who, as a result of his
disabilities, is not able to be on board his vessel during fishing; accordingly, he is entitled to an
accommodation pursuant to the Rehabilitation Act by Defendants in the form of a hired master to
harvest his IFQ derived from catcher vessel QS.
64. The Final Rule and Amended Regulations facially discriminate against Captain
Welsh by categorically excluding him and other otherwise qualified individuals with a disability
from fully participating in the IFQ Program.
65. The Final Rule and Amended Regulations are discriminatory as applied to
Captain Welsh because they deny Captain Welsh the benefit of full participation in the IFQ
Program solely by reason of his disability as described above.
66. The IFQ Program is conducted by an Executive agency, namely, NMFS within
NOAA, which is a part of the Department of Commerce. The Rehabilitation Act applies to the
IFQ Program and the Amended Regulations.
67. Captain Welsh was not required to exhaust administrative remedies in this case.
Exhaustion of the compliance procedures would be futile in this case because Defendants have
already made a final decision. Moreover, judicial economy is best served by proceeding with all
claims before a district court.
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68. The Rehabilitation Act provides a more efficient and fair means to resolve this
claim than the APA. The primary issue in this claim is whether Captain Welsh is otherwise
qualified and excluded from harvesting QS received by transfer after February 12, 2010, because
of his disability – a claim that the Department of Commerce is not uniquely qualified to interpret.
Captain Welsh primarily seeks a reasonable accommodation.
69. Accommodating Captain Welsh, by allowing him to hire a master to harvest his
IFQ derived from catcher vessel QS will not be overly burdensome because it will not require
significant or fundamental alterations of the IFQ Program.
70. By promulgating the Final Rule and approving the Amended Regulations, which
have the net effect of excluding Captain Welsh and otherwise qualified individuals with a
disability from participating in the IFQ Program, Defendants violated the Rehabilitation Act.
71. By violating Captain Welsh’s and other qualified individuals’ rights under the
Rehabilitation Act, Defendants are causing substantial harm and irreparable injury for which
Captain Welsh and other qualified individuals with a disability have no adequate remedy at law.
SECOND CLAIM FOR RELIEF VIOLATIONS OF THE REHABILITATION ACT AND THE APA
(29 U.S.C. §§ 701 et seq.) (Asserted by Captain Welsh)
(In the Alternative to the First Claim for Relief)
72. Plaintiff incorporates paragraphs 1 through 55 of this Complaint as if expressly
set forth herein.
73. Plaintiff Captain Welsh suffers from a disability within the meaning of the
Rehabilitation Act. Captain Welsh is an individual with handicaps who meets the essential
eligibility requirements to participate in and receive the benefits from the IFQ Program, and
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therefore he is a “qualified individual with handicaps” under the Rehabilitation Act and
Department of Commerce Regulations. See 15 C.F.R. § 8.c.3.
74. Captain Welsh currently is qualified to participate in the IFQ Program. If the
Amended Regulations are implemented and the Final Rule is effective, apart from his disability,
Plaintiff Captain Welsh will be otherwise qualified to participate in the IFQ Program.
75. The Department of Commerce Regulations govern, inter alia, the IFQ Program.
The Department of Commerce Regulations provide that “no qualified individual with handicaps
shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination under any program or activity conducted by the
agency.” 15 C.F.R. § 8c.30.
76. A “qualified individual with handicaps” means “(1) With respect to any agency
program or activity under which a person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential eligibility requirements
and who can achieve the purpose of the program or activity without modifications in the program
or activity that the agency can demonstrate would result in a fundamental alteration in its nature;
(2) With respect to any other program or activity, an individual with handicaps who meets the
essential eligibility requirements for participation in, or receipt of benefits from, that program or
activity; and (3) ‘Qualified handicapped person’ as that term is defined for purposes of
employment in 29 CFR 1613.702(f), which is made applicable to this part by § 8c.40.”
15 C.F.R. § 8c.3.
77. Defendants improperly apply subsection (1) of the definition of a “qualified
individual with handicaps” in 15 C.F.R. § 8c.3 to exclude disabled individuals from hiring a
master to harvest their QS received by transfer after February 12, 2010, and therefore to exclude
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disabled individuals from fully participating in and benefiting from the IFQ Program. See
79 Fed. Reg. 43685. However, the IFQ Program does not require a participant to “perform
services to achieve a level of accomplishment,” as provided in subsection (1) of the definition of
a “qualified individual with handicaps” in the Department of Commerce regulations. 15 C.F.R.
§ 8c.3. The inclusion of “qualified individuals with handicaps” such as Captain Welsh would
not result in a fundamental alteration in the nature of the IFQ Program. Because the IFQ
Program does not fall within subsection (1), Defendants’ compliance with the Department of
Commerce Regulations must be in accordance with subsection (2) of the definition of “qualified
individuals with handicaps” in 15 C.F.R. § 8c.3 which states “(2) With respect to any other
program or activity, an individual with handicaps who meets the essential eligibility
requirements for participation in, or receipt of benefits from, that program or activity.”
78. Plaintiff Captain Welsh will be denied the full benefit of participating in the IFQ
Program solely by reason of his disability, as a result of the Final Rule and Amended
Regulations, which prohibit him from using a hired master to harvest QS received by transfer
after February 12, 2010.
79. Captain Welsh is a “qualified individuals with handicaps” who, as a result of his
disabilities, is not able to be on board his vessel during fishing; accordingly, he is entitled to an
accommodation pursuant to the Rehabilitation Act by Defendants in the form of a hired master to
harvest his IFQ derived from catcher vessel QS.
80. The Final Rule and Amended Regulations facially discriminate against Captain
Welsh by categorically excluding him and other otherwise qualified individuals with a disability
from fully participating in the IFQ Program.
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81. The Final Rule and Amended Regulations are discriminatory as applied to
Captain Welsh because they deny Captain Welsh the benefit of full participation in the IFQ
Program solely by reason of his disability as described above.
82. The IFQ Program is conducted by an Executive agency, namely, NMFS within
NOAA, which is a part of the Department of Commerce. The Rehabilitation Act applies to the
IFQ Program and the Amended Regulations.
83. Defendants are required to disapprove an FMP to the extent it is inconsistent with
other applicable law. 16 U.S.C. §§ 1854(a), (b). Defendants approved the Final Rule and
promulgated the Amended Regulations.
84. Because the Final Rule has been approved and the Amended Regulations have
been promulgated by Defendants, they are subject to judicial review. 16 U.S.C. § 1855(f);
5 U.S.C. § 704. Exhaustion of the compliance procedures would be futile in this case because
Defendants’ have already made a final decision. Furthermore, judicial economy is best served
by proceeding with all claims before a district court.
85. Accommodating Captain Welsh by allowing him to hire a master to harvest his
IFQ derived from catcher vessel QS will not be overly burdensome because it will not require
significant or fundamental alterations of the IFQ Program.
86. By promulgating the Final Rule and approving the Amended Regulations, which
have the net effect of excluding Captain Welsh and otherwise qualified individuals with a
disability from participating in the IFQ Program, Defendants’ actions and failures to act are
arbitrary and capricious, and violate the Rehabilitation Act and the APA.
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87. Defendants are causing substantial harm and irreparable injury to Captain Welsh
and other otherwise qualified individuals with a disability for which they have no adequate
remedy at law.
THIRD CLAIM FOR RELIEF VIOLATIONS OF THE MAGNUSON–STEVENS ACT, THE HALIBUT ACT, AND THE
APA – IMPERMISSIBLE RETROACTIVE APPLICATION (Asserted by All Plaintiffs)
88. Plaintiffs incorporate paragraphs 1 through 55 of this Complaint as if expressly
set forth herein.
89. Most agencies are precluded from issuing legislative rules with retroactive effect.
A statutory grant of legislative rulemaking authority will not, as a general matter, be understood
to encompass the power to promulgate retroactive rules unless that power is conveyed by
Congress in express terms. Bowen v. Georgetown, 488 U.S. 204, 208 (1988). In other words, an
agency is prohibited from issuing a retroactive legislative rule except in the event that Congress
has expressly authorized the agency to issue such retroactive legislative rules.
90. Neither the Magnuson-Stevens Act nor the Halibut Act expressly authorizes the
retroactive application of rules.
91. The effective date for the Final Rule is December 1, 2014. However, the Final
Rule contains a control date of February 12, 2010. This means that, once in effect, the Final
Rule retroactively applies to activities that have occurred since February 12, 2010.
92. Plaintiffs are initial QS recipients under the IFQ Program. Plaintiffs entered into
contracts for the sale and/or purchase of QS after February 12, 2010 and before July 28, 2014,
with the intention of relying on hired skippers to harvest the QS. Due to the retroactive
application of the Final Rule and Amended Regulations, Plaintiffs are prohibited from using
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hired skippers to fulfill the QS they acquired during the February 12, 2010 to July 28, 2014
period. As a result of Defendants’ actions, omissions, and conduct, Plaintiffs will suffer
substantial harm.
93. By including a control date in the Final Rule that pre-dates the effective date by
more than four years, and by failing to provide any notice in the Federal Register of the control
date prior to July 28, 2014, Defendants have arbitrarily and capriciously engaged in
impermissible retroactive rulemaking in violation of the Magnuson-Stevens Act, the Halibut Act,
and the APA. Defendants are causing substantial harm and irreparable injury to Plaintiffs for
which they have no adequate remedy at law.
FOURTH CLAIM FOR RELIEF VIOLATIONS OF THE UNITED STATES CONSTITUTION –
PROCEDURAL DUE PROCESS (Asserted by All Plaintiffs)
94. Plaintiffs incorporate paragraphs 1 through 55 and paragraphs 84 through 93 of
this Complaint as if expressly set forth herein.
95. The Fifth Amendment to the Constitution of the United States provides, in
pertinent part, that no person shall “be deprived of life, liberty, or property, without due process
of law.” Due process requires reasonable notice and opportunity to be heard before
governmental deprivation of a significant property interest. At a minimum, the notice must be
reasonably calculated to afford the affected persons the realistic opportunity to protect their
interests.
96. Plaintiffs have a significant, protectable property interest in QS acquired pursuant
to the IFQ Program. See Foss v. National Marine Fisheries Service, 161 F.3d 584, 588 (1998).
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97. The Final Rule contains a control date of February 12, 2010, which means that the
Final Rule retroactively applies to activities that have occurred since that date.
98. Plaintiffs are initial QS recipients under the IFQ Program. Plaintiffs entered into
contracts for the sale and/or purchase of QS after February 12, 2010 and before April 26, 2013,
with the intention of relying on hired skippers to harvest the QS. Because Plaintiffs were not
provided reasonable notice of the February 12, 2010 control date, the Final Rule unlawfully
deprives Plaintiffs of their protectable QS interests and will otherwise cause Plaintiffs substantial
harm.
99. As a result of Defendants’ actions, omissions, and conduct, Plaintiffs have been
denied due process of law in violation of the Fifth Amendment of the Constitution of the United
States.
100. Defendants’ actions and failures to act are arbitrary and capricious, violate the
United States Constitution and the APA, and are causing irreparable injury to Plaintiffs for which
there is no adequate remedy at law.
FIFTH CLAIM FOR RELIEF VIOLATIONS OF THE MAGNUSON–STEVENS ACT, THE HALIBUT ACT,
AND THE APA – ARBITRARY AND CAPRICIOUS (16 U.S.C. § 773c(b), (c); 16 U.S.C. §§ 1851(a), 1852(h), 1853(a)(1); 1853a(c); 1854(a), (b))
(Asserted by All Plaintiffs)
101. Plaintiffs incorporate paragraphs 1 through 55 and paragraphs 84 through 100 of
this Complaint as if expressly set forth herein.
102. The Magnuson-Stevens Act requires that any FMP be consistent with the
Magnuson-Stevens Act. 16 U.S.C. § 1854(a) and (b).
103. The Magnuson-Stevens Act requires, inter alia, that any FMP amendment “shall
contain the conservation and management measures . . . which are necessary and appropriate for
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COMPLAINT- 29
the conservation and management of the fishery, to prevent overfishing and rebuild overfished
stocks, and to protect, restore, and promote the long-term health and stability of the fishery. . . .”
16 U.S.C. § 1853(a)(1); see also 16 U.S.C. §§ 1852(h)(1), 1853a(c)(1)(C).
104. The Magnuson-Stevens Act further requires that any FMP amendment comply
with national standards, including that conservation and management measures shall be based
upon the best scientific information available (National Standard Two) and shall minimize
bycatch and, to the extent bycatch cannot be avoided, minimize the mortality of such bycatch
(National Standard Nine), and that if it becomes necessary to allocate or assign fishing privileges
among various United States fishermen, such allocation shall be fair and equitable and
reasonably calculated to promote conservation (National Standard Four). 16 U.S.C. § 1851(a).
105. The Halibut Act requires that regulation of halibut fishing privileges be limited to
what is necessary and “reasonably calculated to promote conservation.” 16 U.S.C. § 773c(b)(1)
and (c).
106. Defendants’ stated justification for the Final Rule is that the transition to an OOB
fleet is not occurring with sufficient rapidity. However, transitioning to an OOB fleet does not
promote conservation and will, among other things, result in increased bycatch because fish
which could be harvested if additional QS could be transferred must now be discarded as
bycatch. Moreover, Defendants fail to explain and support with substantial evidence how an
accelerated transition constitutes a “conservation and management measure,” how it is
“necessary and appropriate,” or how it is reasonably calculated to promote conservation, as
required by the Magnuson-Stevens Act and the Halibut Act. For example, there is no
identifiable standard against which the transition to an OOB fleet can be measured, as the IFQ
Program did not specify a desired time frame or milestones or standards to be met. There is also
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COMPLAINT- 30
no rational connection between the facts found and the conclusions Defendants reached. Thus,
Defendants’ assertion that the IFQ Program is failing to meet a non-existent standard is not
supported by the necessary evidence, in violation of the Magnuson-Stevens Act and the Halibut
Act, and is arbitrary, capricious, and in excess of statutory authority, in violation of the APA.
107. Even if accelerated and forced achievement of an OOB standard were a legitimate
objective, which it is not, Defendants have conducted no analysis of how, and at what rate, the
Final Rule will increase the pace of the transition to an OOB fleet. Defendants’ explanation for
the Final Rule is justified only by speculation and surmise, unsupported by actual facts or
analysis, and therefore is likewise in violation of the APA, the Magnuson-Stevens Act, and the
Halibut Act.
108. Defendants’ purported justification also fails because they have provided no
explanation of how initial IFQ recipients, who were deemed part of the professional fishermen
community when they hired skippers to fish initial and subsequently acquired QS, now fall
outside that community when they acquire QS after February 12, 2010. Thus, as there is no
stated rational connection, supported by substantial evidence, of how these initial IFQ recipients
suddenly changed status on February 12, 2010, the Final Rule violates the APA, the Magnuson-
Stevens Act, and the Halibut Act.
109. The Final Rule also violates the Magnuson-Stevens Act, the Halibut Act,
and the APA because it retroactively terminates the existing provisions which allow fishing
family corporations to acquire QS and to hire a skipper to fish the QS. See 50 C.F.R. §
679.42(j)(1).
110. Halibut is a bycatch in the sablefish fishery and vice versa. Without the ability to
transfer QS, fishermen must discard otherwise harvestable fish as bycatch. Therefore, contrary
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COMPLAINT- 31
to the Magnuson-Stevens Act and National Standard Nine, the Final Rule does not minimize
bycatch or, to the extent bycatch cannot be avoided, minimize the mortality of such bycatch.
111. Contrary to the Magnuson-Stevens Act and National Standard Two, Defendants
have not performed an analysis of the economic impact of the Final Rule on initial QS recipients,
or other fishery participants. Accordingly, the Final Rule is arbitrary, capricious, an abuse of
discretion, and in excess of statutory authority, in violation of the APA.
112. Defendants are required to disapprove an FMP to the extent it is inconsistent with
the Magnuson-Stevens Act, the National Standards, the Halibut Act, or other applicable law.
16 U.S.C. §§ 1851(a), 1854(a), (b). By promulgating the Final Rule and approving the Amended
Regulations, Defendants violated the Magnuson-Stevens Act, the Halibut Act, and the APA.
Defendants are causing substantial harm and irreparable injury to Plaintiffs for which they have
no adequate remedy at law.
SIXTH CLAIM FOR RELIEF VIOLATIONS OF NATIONAL STANDARD FOUR OF THE MAGNUSON–STEVENS
ACT, THE HALIBUT ACT, AND THE APA – FISHING PRIVILEGE ALLOCATION NOT FAIR AND EQUITABLE
(16 U.S.C. § 1851(a)(4); 16 U.S.C. § 773c(c)) (Asserted by All Plaintiffs)
113. Plaintiffs incorporate paragraphs 1 through 55 and paragraphs 84 through 112 of
this Complaint as if expressly set forth herein.
114. National Standard Four of the Magnuson-Stevens Act requires that
“[c]onservation and management measures shall not discriminate between residents of different
States. If it becomes necessary to allocate or assign fishing privileges among various United
States fishermen, such allocation shall be (A) fair and equitable to all such fishermen;
(B) reasonably calculated to promote conservation; and (C) carried out in such manner that no
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COMPLAINT- 32
particular individual, corporation, or other entity acquires an excessive share of such privileges.”
16 U.S.C. § 1851(a)(4).
115. The Halibut Act likewise provides that “[i]f it becomes necessary to allocate or
assign halibut fishing privileges among various United States fishermen, such allocation shall be
fair and equitable to all such fishermen, based upon the rights and obligations in existing Federal
law, reasonably calculated to promote conservation, and carried out in such manner that no
particular individual, corporation, or other entity acquires an excessive share of the halibut
fishing privileges….” 16 U.S.C. § 773c(c).
116. The IFQ Program is required to comply with the Halibut Act and National
Standard Four of the Magnuson-Stevens Act.
117. The applicable regulations define an “allocation” as a “direct and deliberate
distribution of the opportunity to participate in a fishery among identifiable, discrete user groups
or individuals.” 50 C.F.R. § 600.325(c)(1).
118. The Final Rule and Amended Regulations constitute an “allocation.”
119. The Final Rule and Amended Regulations prohibit corporations, partnerships,
associations, and other entities, including Fairweather Fish, from harvesting QS acquired after
February 12, 2010, and from acquiring and harvesting additional QS after February 12, 2010.
Fairweather Fish and similar non-individual entities are unfairly and inequitably excluded from
full participation in the IFQ Program.
120. By refusing to permit otherwise qualified disabled individuals to hire a master to
harvest their QS received by transfer after February 12, 2010, the Final Rule and Amended
Regulations exclude otherwise qualified disabled individuals, including Captain Welsh, from
harvesting their allotted IFQ and from acquiring and harvesting additional QS. Accordingly,
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COMPLAINT- 33
Captain Welsh and similar otherwise qualified disabled individuals are unfairly and inequitably
excluded from full participation in the IFQ Program.
121. The Final Rule and Amended Regulations violate the fair and equitable
requirement of National Standard Four of the Magnuson-Stevens Act and the Halibut Act
because they impose significant disadvantages and hardships on non-individual initial IFQ
recipients without offsetting positive benefits and fail to accommodate and discriminate against
the disabled.
122. Defendants are required to disapprove an FMP to the extent it is inconsistent with
the National Standards or other applicable law. 16 U.S.C. §§ 1851(a), 1854(a)(1)(A), 1854(a)(3).
123. By promulgating the Final Rule and approving the Amended Regulations,
Defendants violated National Standard Four of the Magnuson-Stevens Act, the Halibut Act, and
the Administrative Procedure Act.
124. These actions and failures to act by the Defendants are arbitrary and capricious
and violate National Standard Four of the Magnuson-Stevens Act, the Halibut Act, and the
Administrative Procedure Act. Defendants are causing substantial harm and irreparable injury to
Plaintiffs for which they have no adequate remedy at law.
SEVENTH CLAIM FOR RELIEF VIOLATIONS OF NATIONAL STANDARD ONE OF THE MAGNUSON–STEVENS
ACT AND THE APA – FAILURE TO ACHIEVE OPTIMUM YIELD (16 U.S.C. §§ 1851(a)(1), 1853(a)(3))
(Asserted by All Plaintiffs)
125. Plaintiffs incorporate paragraphs 1 through 55 and paragraphs 84 through 124 of
this Complaint as if expressly set forth herein.
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COMPLAINT- 34
126. National Standard One of the Magnuson-Stevens Act requires that
“[c]onservation and management measures shall prevent overfishing while achieving on a
continuing basis, the optimum yield from each fishery.…” 16 U.S.C. 1851(a)(1).
127. The Magnuson-Stevens Act defines “optimum yield” as the amount of fish which
“will provide the greatest overall benefit to the Nation, particularly with respect to food
production and recreational opportunities, and taking into account the protection of marine
ecosystems,” and “is prescribed as such on the basis of the maximum sustainable yield from the
fishery, as reduced by any relevant economic, social, or ecological factor.” 16 U.S.C.
§ 1802(33)(A)-(B).
128. The IFQ Program is required to comply with the Magnuson-Stevens Act
requirements and National Standard One.
129. Under the IFQ Program, QS are allotted by geographic area. Fishermen with QS
in one area must harvest their QS in that area and may not operate in another area without
acquiring QS in that area. In the halibut and sablefish fisheries, it is typical for QS holders to
transfer QS so that vessels can be deployed efficiently in various geographic areas. Further, if a
vessel owner has a crew member aboard who owns QS, it often happens that the combined QS of
the vessel owner and crew members exceeds the harvest cap for the vessel established under the
regulations. In these circumstances, unless the QS can be transferred, it goes unharvested.
Moreover, without the ability to transfer quota, fishermen will not be able to fully harvest halibut
and sablefish QS. Halibut is a bycatch in the sablefish fishery and vice versa. This means
fishermen unable to obtain QS via transfer must discard the bycatch which they could otherwise
retain with transferred quota.
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130. The Final Rule and Amended Regulations will prevent initial QS recipients
including Fairweather Fish, Captain Welsh, and other similar entities and/or individuals from
transferring QS in order to address vessel cap, geographic, and bycatch issues, which will
prevent the achievement of optimum yield, in contravention of National Standard One.
131. Defendants are required to disapprove an FMP to the extent it is inconsistent with
the National Standards or other applicable law. 16 U.S.C. §§ 1851(a), 1854(a), (b).
132. By promulgating the Final Rule and approving the Amended Regulations,
Defendants violated National Standard One of the Magnuson-Stevens Act and the
Administrative Procedure Act.
133. These actions and failures to act by the Defendants are arbitrary and capricious
and violate National Standard One of the Magnuson-Stevens Act and the Administrative
Procedure Act. Defendants are causing substantial harm and irreparable injury to Plaintiffs for
which they have no adequate remedy at law.
EIGHTH CLAIM FOR RELIEF VIOLATIONS OF NATIONAL STANDARD TEN OF THE MAGNUSON-STEVENS
ACT AND THE APA – FAILURE TO PROMOTE SAFETY OF HUMAN LIFE AT SEA (16 U.S.C. §§ 1851(a)(10), 1853(a)(3))
(Asserted by Captain Welsh)
134. Plaintiffs incorporate paragraphs 1 through 55 and paragraphs 84 through 133 of
this Complaint as if expressly set forth herein.
135. National Standard Ten of the Magnuson-Stevens Act requires that “[c]onservation
and management measures shall, to the extent practicable, promote the safety of human life at
sea.” 16 U.S.C. 1851(a)(10).
136. The IFQ Program is required to comply with the Magnuson-Stevens Act
requirements and National Standard Ten.
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137. By prohibiting Captain Welsh and similar otherwise qualified disabled individuals
from employing a hired master to harvest their IFQ received by transfer after February 12, 2010,
the Final Rule and Amended Regulations unlawfully fail to promote the safety of human life at
sea. For these disabled individuals to harvest their QS received after February 12, 2010, the
Final Rule and Amended Regulations require that they be on board their vessel in blatant
disregard of National Standard Ten.
138. Defendants are required to disapprove an FMP to the extent it is inconsistent with
the National Standards and other applicable law. 16 U.S.C. §§ 1851(a), 1854(a), (b).
139. By promulgating the Final Rule and approving the Amended Regulations,
Defendants violated National Standard Ten of the Magnuson-Stevens Act and the Administrative
Procedure Act.
140. These actions and failures to act by the Defendants are arbitrary and capricious
and violate National Standard Ten of the Magnuson-Stevens Act and the Administrative
Procedure Act. Defendants are causing substantial harm and irreparable injury to Plaintiffs for
which they have no adequate remedy at law.
NINTH CLAIM FOR RELIEF VIOLATIONS OF THE MAGNUSON–STEVENS ACT AND THE APA –
FAILURE TO COMPLY WITH APPLICABLE LAW (16 U.S.C. §§ 1854(a), (b)) (Asserted by All Plaintiffs)
141. Plaintiffs incorporate paragraphs 1 through 55 and paragraphs 84 through 140 of
this Complaint as if expressly set forth herein.
142. Pursuant to the Magnuson-Stevens Act, the Final Rule and Amended Regulations
are required to be consistent with applicable law. 16 U.S.C. § 1854(a), (b).
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143. For each of the reasons set forth above, and in each of the above outlined claims,
the Final Rule and Amended Regulations are inconsistent with applicable law, particularly the
Rehabilitation Act and the United States Constitution, and therefore violate the Magnuson-
Stevens Act.
144. Defendants’ decision to promulgate the Final Rule and approve the Amended
Regulations is arbitrary, capricious, an abuse of discretion, and/or otherwise not in accordance
with law in violation of the APA.
VII. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that the Court:
a. With respect to Plaintiff Captain Welsh, declare that he is entitled to hire a
master to harvest IFQ derived from catcher vessel QS received by transfer after February 12,
2010;
b. Declare that Defendants have violated the Rehabilitation Act as described
above by excluding otherwise qualified individuals with a disability from participating in the
IFQ Program with respect to the Final Rule and Amended Regulations;
c. Declare that Defendants have violated the Rehabilitation Act and the APA
as described above by excluding otherwise qualified individuals with a disability from
participating in the IFQ Program with respect to the Final Rule and Amended Regulations;
d. Declare that Defendants have violated the Magnuson-Stevens Act, the
Halibut Act, and the APA in the Final Rule and Amended Regulations based on their
impermissible retroactive application as described above;
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e. Declare that Defendants have violated the United States Constitution and
the APA by failing to comply with Procedural Due Process requirements when promulgating the
Final Rule as described above;
f. Declare that Defendants have violated the Magnuson-Stevens Act,
including National Standard Two, the Halibut Act, and the APA as described above by
employing an incorrect interpretation of the Magnuson-Stevens Act and the Halibut Act that
foreclosed the required analysis and consideration of issues and alternatives, and otherwise failed
to comply with applicable law, with respect to the Final Rule and Amended Regulations;
g. Declare that Defendants have violated National Standard Nine of the
Magnuson-Stevens Act as described above by failing to minimize bycatch with respect to the
Final Rule and Amended Regulations;
h. Declare that Defendants have violated National Standard Four of the
Magnuson-Stevens Act, the Halibut Act, and the APA as described above by allocating an unfair
and inequitable fishing privilege in the Final Rule and Amended Regulations;
i. Declare that Defendants have violated National Standard One of the
Magnuson-Stevens Act as described above by failing to achieve optimum yield with respect to
the Final Rule and Amended Regulations;
j. Declare that Defendants have violated National Standard Ten of the
Magnuson-Stevens Act as described above by failing to promote the safety of human life at sea.
k. Declare the Defendants have violated the Magnuson-Stevens Act and the
APA, as described above, by failing to comply with applicable law;
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l. Enjoin Defendants from implementing the Amended Regulations and
making effective the Final Rule in violation of the Rehabilitation Act, the Halibut Act, the
United States Constitution, and the APA;
m. Vacate the Final Rule implementing the Amended Regulations;
n. Remand the Final Rule and the Amended Regulations to NMFS for
reconsideration and compliance with the Rehabilitation Act, the Magnuson-Stevens Act, the
Halibut Act, the United States Constitution, and the APA;
o. Maintain jurisdiction over this action until Defendants are in compliance
with the Rehabilitation Act, the Magnuson-Stevens Act, the Halibut Act, the United States
Constitution, the APA, and every order of this Court;
p. Award Plaintiffs their costs of litigation, including reasonable attorney and
expert witness fees; and
q. Grant Plaintiffs other such relief as this Court deems proper and just.
RESPECTFULLY SUBMITTED this 30th day of October, 2014.
/s/ James A. Smith, Jr. James A. Smith, Jr., WSBA #5444
/s/ Geoffrey P. Knudsen Geoffrey P. Knudsen, WSBA #1324
/s/ Julia K. Doyle Julia K. Doyle, WSBA #43993 SMITH & HENNESSEY PLLC 316 Occidental Avenue South, Suite 500 Seattle WA 98104 Telephone: (206) 292-1770 Facsimile: (206) 292-1790 [email protected] [email protected] [email protected]
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/s/ George J. Mannina, Jr. George J. Mannina, Jr., Pro Hac Vice
/s/ Veronica M. Gray Veronica M. Gray, Pro Hac Vice
/s/ Jennifer R. Darling Jennifer R. Darling, Pro Hac Vice NOSSAMAN LLP 1666 K Street, N.W., Suite 500 Washington, D.C. 20006 Telephone: (202) 887-1400 Facsimile: (202) 366-4215 [email protected] [email protected] [email protected] Attorneys for Plaintiffs
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