The opinion of the court was delivered by: D. LOWELL JENSEN
This case requires the Court to revisit issues of gill nets, rockfish, and preemption in deciding whether to permanently enjoin a particular aspect of California Proposition 132. On January 13, 1993, the Court heard plaintiffs' motion for summary judgment. Alan W. Sparer and Anne E. Mudge of Howard, Rice, Nemerovski, Canady, Robertson & Falk and Mary L. Hudson appeared for plaintiffs. California Deputy Attorney General John Dratz, Jr. appeared for defendants. Lawrence E. Goldenhersh and Jeremy J. F. Gray of Irell & Manella appeared for intervenors. Having considered the papers submitted, the arguments of counsel, the applicable law, and the entire record herein, the Court GRANTS plaintiffs' motion for summary judgment.
This is an action brought by plaintiff fishermen and a representative association, the Vietnamese Fishermen Association of America ("VFAA"), against defendants California Department of Fish and Game and Director Pete Bontadelli (collectively the "Department") to enjoin regulations forbidding the use of gill or trammel nets to take rockfish in federal waters off the coast of California.
On November 6, 1990, Proposition 132 was adopted by the people of California at a general election, amending the California Constitution. See Marine Resources Protection Act of 1990 ("MRPA" or "Proposition 132"), Cal. Const. art. XB. Proposition 132 seeks in part to preserve California's marine resources through the regulation and eventual banning of gill and trammel nets in California coastal waters. Such forms of fishing gear have been found to entangle sea lions, birds, porpoises, non-target fish, and other non-commercial marine life, causing injury and death to those unfortunate enough to be caught up in the nets.
At the time Proposition 132 was passed at the November 1990 election, an immediate prohibition on the use of gill and trammel nets to take rockfish in state waters from 0 to 3 miles offshore was imposed; meanwhile, use of such nets continued to be permitted in waters more than 3 miles offshore. However, as of March 1, 1991, defendants have sought to enforce this absolute ban in federal waters up to 200 miles offshore.
Plaintiffs represent a group of boat owners, pilots, and/or crewmen from the greater San Francisco and Monterey Bay areas, most of whom were refugees from South Vietnam, and who are presently either permanent resident aliens or U.S. citizens. Plaintiffs use special gill nets to take only rockfish, a specialty sold primarily to Asian American markets and restaurants. Members of the VFAA sell their rockfish catch solely for local consumption. As the Vietnamese fishing community of Northern California is the group principally associated with fishing for rockfish, any absolute ban on the use of gill nets will presumably impact this community most adversely. The individual plaintiffs have also submitted declarations stating that the only form of livelihood available to them is fishing, and the only means of catching rockfish for which they are trained is through the use of gill nets.
As noted above, Proposition 132 clearly prohibits the use of gill and trammel nets to take rockfish within the state's coastal waters, i.e., from 0 to 3 miles offshore. See MRPA §§ 2(d), 4(a). Not only is the capture of rockfish with these nets strictly prohibited, id. § 4(a), but Proposition 132 prohibits the possession or receipt of rockfish caught by such nets. Id. § 11.
Proposition 132 also provides for a three-year phasing out of the use of such nets to take species of fish other than rockfish, id. § 4(b), and also provides a compensatory scheme for non-rockfish-fishermen adversely affected by this prohibition. Id. § 7(b).
Prior to the passage of Proposition 132, use of gill and trammel nets to take rockfish was already prohibited in state waters north of 38 degrees latitude, i.e., north of Point Reyes, California. In Northern California waters south of Point Reyes the use of gill and trammel nets had been prohibited in state waters from 0 to 3 miles offshore, but individuals like plaintiffs had until recently continued to fish for rockfish in federal waters from 3 to 200 miles offshore under gill and trammel net licenses issued by the State. In Southern California, however, rockfish continued to be taken by use of such nets in both state and federal waters. Thus both the arguments supporting Proposition 132 and a facial reading of its provisions establish that one of the main purposes behind the Proposition was to create a uniform ban in all state waters on the use of such nets to catch rockfish.
Moreover, the text of Proposition 132 makes no reference to federal waters, nor to any other waters other than those traditionally viewed as being under the authority of the State. See MRPA § 2(d). Thus the initial impression is that the provisions of the MRPA are to be enforced only within state waters, i.e., within those areas from 0 to 3 miles offshore.
B. Federal Regulation of Marine Resources
Under the Magnuson Fishery Conservation and Management Act of 1976 ("MFCMA" or "Magnuson Act"), 16 U.S.C. §§ 1801-82, Congress established a regulatory program conserving and managing the fishery resources of the United States. Through the MFCMA, the United States asserts its "sovereign rights and exclusive fishery management authority over all fish, and all Continental Shelf fishery resources, within the exclusive economic zone ["EEZ"]." 16 U.S.C. § 1811(b). The EEZ extends from the seaward boundary of each of the coastal States to 200 miles offshore. Id. § 1802(6). In California, such "seaward boundary" is at 3 miles offshore.
In California, the Pacific Fishery Management Council ("Pacific Council") governs implementation of plans under the MFCMA, and for the waters offshore of California, Oregon, and Washington, the Pacific Council has specifically adopted the Pacific Coast Groundfish Plan (the "Plan"), 50 C.F.R. §§ 663.1-663.29 (1990). The Plan also encompasses rockfish in the EEZ. Id. § 663.2. There is also a review procedure in place whereby a state may petition the Pacific Council for a determination that a state regulation is consistent with the goals and objectives of the Plan, thus enabling enforcement of the state regulation in the EEZ following completion of specified notice and comment procedures. See Procedure for Reviewing State Regulations, 56 FR 753 (Jan. 8, 1991).
Moreover, the Plan authorizes the use of gill and trammel nets for the taking of groundfish, including rockfish, in certain areas of the EEZ: "This plan authorizes the use of . . . set nets (gill nets and trammel nets) as legal gear for commercial harvest of groundfish. The use of set nets is prohibited in all areas north of 38 [degrees] N. latitude." Plan § 220.127.116.11 (attached as ex. 1 to Sparer Declaration). Section 663.22 of the regulations implementing the Plan provides, in part:
Set nets. (1) Fishing for groundfish with set nets is prohibited in the fishery management areas north of 38.00 [degrees] N. latitude." 50 C.F.R. § 663.22(d).
Set net[s] . . . must be . . . marked at the surface, at each terminal end, with a pole, flag, light, radar reflector, and a buoy displaying clear identification of the owner." Id. § 663.22(c)(1).
C. Proceedings Following Passage of Proposition 132
After adoption of Proposition 132 in the November 1990 general election, the Department was apparently uncertain just how far geographically the provisions banning the use of gill and trammel nets to take rockfish could be enforced. In a letter dated November 21, 1990, gill and trammel net permittees were informed that, effective immediately, use of such nets in catching rockfish within state waters -- i.e., from 0 to 3 miles offshore -- was absolutely prohibited, but that such ban would not be enforced in federal waters in the EEZ -- i.e., from 3 to 200 miles offshore. See Sparer Declaration, Oct. 28, 1992, Ex. 5; Van Der Naillen Declaration, Mar. 15, 1991, Ex. 2.
This conclusion was apparently based at least in part on the original opinion of the Office of the Attorney General concluding that Proposition 132 could not be enforced in federal waters as well as a memorandum and letter dated December 21, 1990, from the Department's Chief Legal Advisor Eugene V. Toffoli, indicating that although the absolute ban on use of gill and trammel nets to take rockfish could be immediately imposed in state waters, there was "substantial question" as to ...