COVER SHEET for PLAINTIFFS REPLY BRIEF FILED FEBRUARY 13, 2012 IN THE PACIFIC DAWN CASE

Transcription

1 Agenda Item F.1.d Supplemental Public Comment 2 March 2012 COVER SHEET for PLAINTIFFS REPLY BRIEF FILED FEBRUARY 13, 2012 IN THE PACIFIC DAWN CASE This supplemental public comment is provided in its entirety on the Council website under the March Briefing Book ( briefing-book/#march2012). The table below lists the parts of the submission provided by the plaintiffs and identifies which have been printed for display in this supplemental public comment. Exhibit Cover Letter of February 14, 2012 from Davis Wright Tremaine, LLP 1 page Plaintiffs Reply in Support of Supplemental Memorandum in Support of Request for Relief 9 pages Exhibit 1: Declaration of Pierre Marchand, Jr. in Support of Plaintiffs Supplemental Memorandum in Support of Request for Relief 3 pages Exhibit 2: Natural Resources Defense Council, et al v. Gary Locke, et al -- Order Granting in Part and Denying in Part Parties Cross-Motions for Summary Judgment 49 pages Exhibit 3: Order of Remedy (NRDC v. Gary Locke) 3 pages Exhibit 4: 212 th Session of the Pacific Fishery Management Council (Proposed March Council Meeting Agenda) 9 pages Exhibit 5: Council Operating Procedure 1 8 pages Exhibit 6: National Marine Fisheries Service Policy Guidelines for Use of Emergency Rules 6 pages Exhibit 7: Federal Register/Vol. 76, No.91/Wednesday, May 11, 2011 (Final Rule for groundfish harvest specifications and management measures) 56 pages [Proposed] Order on Remedy [Alternative 1] 2 pages [Proposed] Order on Remedy [Alternative 2] 2 pages Hardcopy Provided Yes Yes Yes Only pages 1-3. Yes Yes; however, it is contained in Agenda Item A.4 No Yes Only Pages 1-3. Yes Yes PFMC 02/22/12 Z:\!PFMC\MEETING\2012\March\Groundfish\F1d_SuppPubCom2_CoverSheet_Plaintiffs Reply_Feb13_PacDawn.doc

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3 Case3:10-cv TEH Document58 Filed02/13/12 Page1 of 9 DAVIS WRIGHT TREMAINE LLP James P. Walsh (CA State bar No ) Gwen Fanger (CA State bar No ) DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800 San Francisco, California Telephone: (415) Facsimile: (415) budwalsh@dwt.com gwenfanger@dwt.com Attorneys for Plaintiffs PACIFIC DAWN LLC, CHELLISSA LLC, JAMES and SANDRA SCHONES, DA YANG SEAFOOD INC. and JESSIE S ILWACO FISH COMPANY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION PACIFIC DAWN LLC, CHELLISSA LLC, JAMES AND SANDRA SCHONES, DA YANG SEAFOOD INC., and JESSIE S ILWACO FISH COMPANY, v. Plaintiffs, JOHN BRYSON 1, Secretary of Commerce, in his official capacity as Secretary of the United States, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, and NATIONAL MARINE FISHERIES SERVICE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV TEH PLAINTIFFS REPLY IN SUPPORT OF SUPPLEMENTAL MEMORANDUM IN SUPPORT OF REQUEST FOR RELIEF The only rational and fair way for defendants John Bryson, National Oceanic and Atmospheric Administration ( NOAA ) and National Marine Fisheries Service ( NMFS ) (collectively, defendants ) to comply with the Magnuson-Stevens Fishery Conservation and Management Act ( MSA ) and the Court s summary judgment order ( MSJ Order ) is to base the individual fishing quota ( IFQ ) allocations for the Pacific whiting fishery (the IFQ Regulations) on all relevant (i.e., historical and current) fishing history. Defendants, however, are reluctant to do this in a timely manner, which exemplifies their intent to defy the MSJ Order. By leaving the existing regulations in place for the next two years (per defendants estimation), defendants will be making ongoing allocations under regulations that the Court has already deemed a violation of the 1 John Bryson is substituted for defendant Gary Locke pursuant to Fed. R. Civ. Proc. 25(d). -1- PLAINTIFFS REPLY IN SUPPORT OF MEM. IN SUPPORT OF REQUEST FOR RELIF DWT v Case No.CV TEH

4 Case3:10-cv TEH Document58 Filed02/13/12 Page2 of 9 DAVIS WRIGHT TREMAINE LLP MSA. Thus, plaintiffs request relief directing defendants to act by the start of the Pacific whiting fishing season on May 15 or to suspend the IFQ Regulations pending review by defendants. I. ARGUMENT Plaintiffs only seek to have the IFQ Regulations include the recent fishing history years as ordered by the Court. This is a simple allocation issue among Pacific whiting fishery participants that can be revised in a timely manner. There is no other conservation or management issue here; nevertheless, defendants are reluctant to take action to timely comply with the MSA and the MSJ Order. On February 8, 2012, plaintiffs and their counsel met with defendants, including Will Stelle, Northwest Region Administrator for the National Marine Fisheries Service at NOAA s offices in Seattle, Washington. Declaration of Pierre Marchand in Support of Plaintiffs Supplemental Memorandum in Support of Request for Relief, dated February 9, 2012 ( Marchand Decl. ) at 3. 2 At the meeting, plaintiffs presented their recommendations regarding the revision of the IFQ allocations for the 2012 Pacific whiting season in light of the MSJ Order and defendants failure to include current fishing history for processors and harvesters. Id. The agency informed plaintiffs that would take two years to revise the IFQ allocations to comply with the Court s order. The agency suggested that it wanted to leave the existing allocations in place while they revised the IFQ allocations. Id. Contrary to defendants position, it is feasible for the IFQ Regulations to be revised in time for the start of the Pacific whiting fishing season on May 15, Defendants proposed timetable is irrational and incorrect. This Court has already found that the IFQ Regulations are unlawful under the MSA. Nevertheless, under defendants two year timetable, they would continue to make illegal allocations under the existing IFQ Regulations for the next two years to the plaintiffs detriment while the quotas are recalculated to include current fishing history consistent with the MSA. Leaving the existing allocations in place will cause economic harm to plaintiffs and therefore a remedy that either compels defendants to take timely action or suspends the IFQ 2 A copy of the Marchand Decl. is attached hereto as Exhibit PLAINTIFFS REPLY IN SUPPORT OF MEM. IN SUPPORT OF REQUEST FOR RELIEF DWT v Case No.CV TEH

5 Case3:10-cv TEH Document58 Filed02/13/12 Page3 of Regulations pending their revision is necessary. Defendants reticence to move quickly to revise the IFQ Regulations signifies their intent to defy the Court s MSJ Order and leave the existing IFQ Regulations in place for the next two years, during which time they will continue to make illegal allocations. The ongoing implementation of unlawful allocations contravenes the public interest. Thus, plaintiffs now propose two alternative remedies that would avoid the ongoing, 6 unlawful allocation of Pacific whiting quota under the existing regulations. 3 Under Alternative DAVIS WRIGHT TREMAINE LLP , the Court would suspend the existing IFQ Regulations while defendants review and revise the quotas to include all current fishing history. Under Alternative 2, the Court would remand the IFQ Regulations to defendants to revise by May 15, 2012, in time for the start of the Pacific whiting season. The Court, however, would retain jurisdiction over the matter and require regular reports from defendants on their efforts to comply with the remedy order under either alternative. A. Plaintiffs Propose that the Court Suspend the IFQ Regulations Pending Defendants Review to Avoid Unlawful Allocations for the Next Two Years (Alternative 1). Plaintiffs contend that defendants have misrepresented the length of time it should take to review and revise the IFQ Regulations. Assuming arguendo, that it would take up to two years to revise the regulations, the existing IFQ Regulations should be suspended during this time. Specifically, plaintiffs propose that the Court: 1. Direct defendants to suspend the IFQ Regulations for the mothership and shoreside sectors of the Pacific whiting fishery and make no allocations based on the existing IFQ Regulations to any entity operating in those sectors until further order of this Court; and 2. Order that the existing IFQ Regulations with respect to IFQ allocations to the mothership and shoreside sectors of the Pacific whiting fishery shall remain suspended pending the implementation of revised, final IFQ Regulations for Pacific 3 When plaintiffs filed their Supplemental Memorandum in Support of Order Request for Relief ( Supp. Brief ), they believed in good faith that defendants would use their best efforts to revise the IFQ Regulations in a timely manner. However, based on defendants supplement brief on remedy and conversations with them last week, it is apparent that a more stringent order is necessary and appropriate, which would require the vacatur of the IFQ Regulations if defendants fail to act by May 15. See e.g., Hall v. E.P.A., 273 F.3d 1146, 1161 (if the decision of the agency is not sustainable on the administrative record made, then the... decision must be vacated and the matter remanded for further consideration. ) (internal quotations and citations omitted). Thus, plaintiffs request that the proposed order on remedy that they submitted with their Supplemental Brief is withdrawn and the Court consider the two alternative proposed orders submitted with this Reply instead. -3- PLAINTIFFS REPLY IN SUPPORT OF MEM. IN SUPPORT OF REQUEST FOR RELIEF DWT v Case No.CV TEH

6 Case3:10-cv TEH Document58 Filed02/13/12 Page4 of 9 DAVIS WRIGHT TREMAINE LLP whiting that are consistent with the MSA and the MSJ Order; provided, however, that all other fishery management measures for the Pacific whiting fishery that have been issued in accordance with the MSA will remain in effect during this time. Under this alternative, defendants would cease any further unlawful IFQ allocations, while they revised the regulations. 4 All other fishery management measures would remain in place. The fishery would still operate under the restrictive quotas for bycatch that are in place under the existing regulations. Thus, there would be no economic or conservation impact on the Pacific whiting fishery if the IFQ Regulations were suspended. The fishery would continue to operate for as long as it would take defendants to revise the IFQ Regulations. The Court has authority to shape an equitable remedy and therefore order defendants to suspend the IFQ Regulations pending review and revision. Plaintiffs here contend that (1) they are likely to suffer irreparable harm if defendants continue to make unlawful allocations under the existing IFQ Regulations; (2) the balance of equities tips in their favor; and (3) suspension of the IFQ Regulations pending review is in the public interest. See generally, M.R. v. Dreyfus, 663 F.3d 1100, (9 th Cir. 2011) (setting out test for injunctive relief and holding preliminary injunction justified where Department of Social and Health Services promulgated regulations that would reduce hours of covered in-home personal care services.) First, Plaintiffs have already succeeded on the merits as to the legality of the IFQ Regulations under the MSA. Second, defendants have expressed their intent to continue to leave the existing regulations in place for the next two years while they revise the IFQ allocations. During this time, they would continue to make allocations that would not comply with the Court s order. Thus, plaintiffs would likely suffer irreparable harm to their businesses by continuing to receive an unfair allocation of their quota share than they are otherwise entitled to under a standard that includes all recent fishing history. See Marchand Decl. at 4 (Exh. 1). Third, the only fair and rational way to allocate Pacific whiting quota is to include all fishing history so that one group of fishermen does not receive an unfair advantage over another while defendants revise the rules to comply with the law. Lastly, it is in the public interest for the IFQ Regulations to be suspended 4 Plaintiffs recently contacted defendants to offer this alternative as a remedy; however, defendants were not receptive to the idea. -4- PLAINTIFFS REPLY IN SUPPORT OF MEM. IN SUPPORT OF REQUEST FOR RELIEF DWT v Case No.CV TEH

7 Case3:10-cv TEH Document58 Filed02/13/12 Page5 of pending review by defendants to avoid unlawful allocations of quota share for Pacific whiting for, as defendants claim, the next two years while they recalculate the quota shares. An order with instructions to defendants is appropriate. In fact, courts have taken similar action in comparable circumstances involving NMFS. In NRDC v. Locke, C (N.D. Cal. 2010) (Docket No. 340, April 23, 2010, the NRDC MSJ Order ), the Natural Resources Defense Council sued NMFS and NOAA for violations of the MSA related to fishing specifications for certain groundfish species. The Court held that the specifications violated the MSA and ordered NMFS to publish new specifications in light of the Court s ruling within one 9 year of the remedy order. See NRDC MSJ Order at The Court vacated the specifications but DAVIS WRIGHT TREMAINE LLP ordered that prior specifications to be reinstated while NMFS established new specifications. See NRDC Order on Remedy at 4. (Docket No. 342, April 29, 2010, NRDC Remedy Order ). 6 Thus, the fishery management was returned to the status quo measures in effect before the unlawful specifications were implemented. A similar order is requested and appropriate here PLAINTIFFS REPLY IN SUPPORT OF MEM. IN SUPPORT OF REQUEST FOR RELIEF DWT v Because the 2011 IFQ Regulations were a new program, a return to the status quo would simply mean that the Court suspend the IFQ Regulations for the mothership and shoreside sectors but leave all other fishery management measures that were in effect prior to the IFQ program. If, as defendants claim, it will take up to two years to recalculate the IFQ shares, then no further allocations should be made until defendants are able to comply with the MSA and the MSJ Order. B. Plaintiffs Propose that Defendants be Ordered to Review and Revise the IFQ Regulations by the Start of the 2012 Pacific Whiting Season (Alterative 2). Defendants have misled the Court regarding their ability to reconsider the IFQ Regulations in time for the start of the 2012 Pacific whiting season. Defendants assert that the season starts as 5 A copy of the NRDC MSJ Order is attached hereto as Exhibit 2. 6 A copy of the NRDC Remedy Order is attached hereto as Exhibit 3. 7 North Carolina Fisheries is distinguishable and defendants rely on dicta to support their argument that the Court should not impose a remedial order. The focus in that case was not about the timing required for defendants to comply with an order, which is all that plaintiffs seek here. Rather, the Court dismissed the appeal for lack of jurisdiction and did not rule on the merits of the order. North Carolina Fisheries Ass n v. Gutierrez, 550 F.3d 16, 21 (D.C. Cir. 2008). The Court in NRDC was also not swayed by the government s same argument that they use here. See NRDC MSJ Order at 48. Case No.CV TEH

8 Case3:10-cv TEH Document58 Filed02/13/12 Page6 of 9 DAVIS WRIGHT TREMAINE LLP early as April; however, the statutory start of the Pacific whiting season starts on May 15 for harvesters and processors in the mothership sector. 50 C.F.R (b)(1)(iii)(B). Revising the IFQ Regulations in time for the start of the Pacific whiting season is entirely feasible. Thus, plaintiffs propose as a second alternative an order that requires defendants to remand and revise by May 15, 2012 and if they fail to do so, the IFQ Regulations will be vacated. Specifically, the order would require that: 1. The IFQ Regulations are remanded to NMFS for reconsideration and revision based on current and historical harvest for harvesters and processors for Pacific whiting within the meaning of 16 U.S.C. 1853a(c)(5)(A)(i) and consistent with the MSA and the MSJ Order; 2. Defendants use their best efforts and all available authority, including taking emergency action and interim measures pursuant to 16 U.S.C. 1855(c) as appropriate, to implement revised, final IFQ Regulations for the 2012 Pacific whiting season by May 15, 2012; and 3. The existing IFQ Regulations remain in effect pending the implementation of revised, final IFQ Regulations for the 2012 Pacific whiting; provided, however, that if Defendants fail to implement revised IFQ Regulations for the 2012 Pacific whiting season by May 15, 2012, the existing IFQ Regulations will be vacated. Defendants claim that they cannot act by May 15 is disingenuous. First, defendants glossed over the fact that the earliest of the Pacific Fishery Management Council (the Council ) meetings at which the Pacific whiting quotas can be addressed is in March and not April. (Defs. Brief at 6:14-16); see Proposed March 2012 Council Meeting Agenda at p. 3 (Part F.1). 8 In fact, the Council has put [p]lanning and necessary actions for the Pacific whiting fishing season, including potential impacts from the Pacific Dawn litigation on its agenda for the March 2-7, 2012 meeting. See Exh. 4 at p. 3 (Item F.1). Moreover, public comments are accepted up to the week before the Council meeting to be distributed at the meeting and to give the Council sufficient time to consider all positions. See Council Operating Procedure (revised 9/12/08) at p Further, defendants implemented the 2011 IFQ Regulations on an abbreviated timetable, which shows that they can move quickly when necessary. On April 5, 2011, NMFS issued a 8 A copy of the Council s proposed agenda is attached hereto as Exhibit 4. 9 A copy of the Council Operating Procedure is attached hereto as Exhibit PLAINTIFFS REPLY IN SUPPORT OF MEM. IN SUPPORT OF REQUEST FOR RELIEF DWT v Case No.CV TEH

9 Case3:10-cv TEH Document58 Filed02/13/12 Page7 of 9 DAVIS WRIGHT TREMAINE LLP proposed rule for Pacific whiting and accepted comments until April 19, Fed. Reg (April 5, 2011) (see Exhibit 2 to Plaintiff s Supplemental Memorandum in Support of Request for Relief Supp. Brief ). NMFS then published the final rule weeks later on May 19, 2011 made applicable to May Fed. Reg (May 19, 2011) (see Exhibit 3 to Supp. Brief). Thus, under the existing timetable, it is possible for defendants to review and revise the IFQ Regulations to comply with the MSJ Order by the start of the 2012 Pacific whiting season. Second, defendants are also vested with authority to take emergency and interim action, which would allow them to move quickly to implement the revised IFQ Allocations that include all recent fishing history. If the Secretary finds that an emergency exists or that interim measures are needed to reduce overfishing for any fishery, he may promulgate emergency regulations or interim measures necessary to address the emergency or overfishing, without regard to whether a fishery management plan exists for such fishery. 16 U.S.C. 1855(c). NMFS Policy Guidelines for the Use of Emergency Rules describe the criteria for implementing emergency authority. 10 NMFS defines an emergency situation as one that [r]esults from recent, unforeseen events or recently discovered circumstances; [p]resents serious management problems in the fishery; and [c]an be addressed through emergency regulations for which the immediate benefits outweigh the value of advance notice, public comment, and deliberative consideration of the impacts on participants to the same extent as would be expected under the normal rulemaking process. Id. at p. 2. An important justification for taking emergency action is economic to prevent significant direct economic loss or preserve a significant economic opportunity that otherwise might be foregone. Id. An economic justification surely exists for defendants to take emergency action to comply with the MSA and the Court s order. When the IFQs are revised to include all recent fishing history, the allocations will be made fairly and without giving one group of participants an unfair advantage over another. Whiting fishermen who have consistently participated in the whiting fishery with a reasonably consistent level of fishing effort during the initial years of A copy of National Marine Fisheries Service Instruction , Policy Guidelines for the use of Emergency Rules, is attached hereto as Exhibit PLAINTIFFS REPLY IN SUPPORT OF MEM. IN SUPPORT OF REQUEST FOR RELIEF DWT v Case No.CV TEH

10 Case3:10-cv TEH Document58 Filed02/13/12 Page8 of 9 DAVIS WRIGHT TREMAINE LLP and the recent period of , will maintain their IFQ quota share with little or no change. Those who had strong participation or whiting landings in the initial period of but have weak history or no history in the recent period of will experience a reduction in their IFQ quota share. Those who have a stronger history of landings during the recent period of due to changes in whiting distribution, changes in by-catch management or changes in community participation in the fishery, including markets at shoreside processing plants, will experience an increase in their IFQ quota share. However, until this happens, certain fishery participants who received a quota share based on the unlawful allocations will continue to be unfairly affected until the regulations are revised to include all recent fishing history. If the agency leaves the existing allocations in place pending their review for the next two years, these fishermen will be harmed. Marchand Decl. at 4 (Exh. 1). Under the existing allocations, the quota share for these fishermen is lower than what they would be entitled to if the agency revised the allocations to comply with the law. Fishermen who participated most actively and recently in the fishery, however, would have have a higher initial allocation of IFQ if the current fishing history were taken into account. Thus, by leaving the existing allocations in place, these fishermen will lose business because of the failure of the agency to timely revise the allocations to comply with the law. Waiting two years for the revised allocations would therefore mean another two years of a lower quota share, which would have a negative financial impact on certain businesses. Id. Leaving the existing allocations in place for the next two years will also have an unfair and disproportionate effect across participants in the Pacific whiting fishery. Under the agency s timetable, the allocations for certain other Pacific whiting fishery participants will continue to be higher than what they would receive if the current fishing history years were included in the allocations. It will therefore benefit some participants, who will continue to receive a higher allocation under the existing, illegal program than they would be entitled to if all current fishing history was included in the allocations. It will at the same time, harm others who will then continue to receive a lower allocation by leaving the illegal program in place. Thus, the agency s unnecessary delay in revising the allocations to include all current fishing history will cause -8- PLAINTIFFS REPLY IN SUPPORT OF MEM. IN SUPPORT OF REQUEST FOR RELIEF DWT v Case No.CV TEH

11 Case3:10-cv TEH Document58 Filed02/13/12 Page9 of financial harm to fishing companies who receive a lower than their fair share of the quota. Marchand Decl. at 5 (Exh. 1). Third, defendants have used this emergency authority in similar circumstances to revise regulations to comply with a court order. In the NRDC case described above, NMFS took emergency action to establish new specifications for certain overfished species to meet a one year deadline set by the court. See 76 Fed. Reg at (May 11, 2011) (describing 7 justification for provisions implemented through emergency rule). 11 The Court in the NRDC case DAVIS WRIGHT TREMAINE LLP ordered defendants to comply with its order within one year, finding the Agency has been able to meet a one-year deadline before and should be able to now. See NRDC MSJ Order at 48 (Exh. 2); NRDC Remedy Order at 5 (Exh. 3). There is no reason that defendants could not take emergency action in this case to comply with the MSJ Order. It defies logic why they insist on an unnecessary delay that will do nothing but cause ongoing unlawful allocations to be made in defiance of the Court s order. II. CONCLUSION Plaintiffs respectfully request that the Court grant the above-described relief to remedy the violations of law while defendants take legally required corrective action. DATED: February 13, Respectfully submitted, /s/ James P. Walsh James P. Walsh DAVIS WRIGHT TREMAINE LLP Attorneys for Plaintiffs, Pacific Dawn LLC, Chellissa LLC, James and Sandra Schones, Da Yang Seafood, Inc. and Jessie s Ilwaco Fish Company 11 A copy of 76 Fed. Reg (May 11, 2011) is attached hereto as Exhibit PLAINTIFFS REPLY IN SUPPORT OF MEM. IN SUPPORT OF REQUEST FOR RELIEF DWT v Case No.CV TEH

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151 Case3:10-cv TEH Document58-8 Filed02/13/12 Page1 of James P. Walsh (CA State bar No ) Gwen Fanger (CA State bar No ) DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800 San Francisco, California Telephone: (415) Facsimile: (415) budwalsh@dwt.com gwenfanger@dwt.com Attorneys for Plaintiffs PACIFIC DAWN LLC, CHELLISSA LLC, JAMES and SANDRA SCHONES, DA YANG SEAFOOD INC. and JESSIE S ILWACO FISH COMPANY 8 DAVIS WRIGHT TREMAINE LLP UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION PACIFIC DAWN LLC, CHELLISSA LLC, JAMES AND SANDRA SCHONES, DA YANG SEAFOOD INC., and JESSIE S ILWACO FISH COMPANY, v. Plaintiffs, JOHN BRYSON 1, Secretary of Commerce, in his official capacity as Secretary of the United States, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, and NATIONAL MARINE FISHERIES SERVICE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV TEH [PROPOSED] ORDER ON REMEDY [ALTERNATIVE 1 ] After consideration of the parties cross-motions for summary judgment, supplemental briefings on remedy, and the record in this case, and for the reasons set forth in its December 22, 2011 Order (Docket No. 49) (the MSJ Order ), the Court hereby declares and orders: 1. Defendants John Bryson, National Oceanic and Atmospheric Administration ( NOAA ) and National Marine Fisheries Service ( NMFS ) (collectively, Defendants ) violated the Magnuson-Stevens Fishery Management and Conservation Act ( MSA ), 16 U.S.C. 1853a(c)(5)(A)(i), by failing to consider the fishing history beyond 2003 for harvesters and John Bryson is substituted for defendant Gary Locke pursuant to Fed. R. Civ. Proc. 25(d). [AMENDED PROPOSED] ORDER ON REMEDY DWT v Case No.CV TEH

152 Case3:10-cv TEH Document58-8 Filed02/13/12 Page2 of 2 DAVIS WRIGHT TREMAINE LLP for processors in issuing their initial 2011 individual fishing quotas ( IFQs ) as part of the implementing regulations for the fishery management plan for Pacific Whiting levels for 2011 (the IFQ Regulations ). 2. Defendants are directed to SUSPEND the IFQ Regulations for the mothership and shoreside sectors of the Pacific whiting fishery and make no allocations based on the existing IFQ Regulations to any entity operating in those sectors until further order of this Court. 3. The existing IFQ Regulations with respect to IFQ allocations to the mothership and shoreside sectors of the Pacific whiting fishery shall remain suspended pending the implementation of revised, final IFQ Regulations for Pacific whiting that are consistent with the MSA and the MSJ Order; provided, however, that all other fishery management measures for the Pacific whiting fishery that have been issued in accordance with the MSA will remain in effect during this time. 4. The Court will retain jurisdiction over Defendants actions on remand. 5. Defendants will report regularly to this Court on their progress to meet the requirements of this Order on Remedy. Within three months of the date of issuance of this Order on Remedy, and every three months after that until the adoption of revised, final IFQ Regulations, Defendants will submit a report to the Court regarding their efforts to comply with the Order on Remedy. IT IS SO ORDERED. DATED: THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT [AMENDED PROPOSED] ORDER ON REMEDY DWT v Case No.CV TEH

153 Case3:10-cv TEH Document58-9 Filed02/13/12 Page1 of James P. Walsh (CA State bar No ) Gwen Fanger (CA State bar No ) DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800 San Francisco, California Telephone: (415) Facsimile: (415) budwalsh@dwt.com gwenfanger@dwt.com Attorneys for Plaintiffs PACIFIC DAWN LLC, CHELLISSA LLC, JAMES and SANDRA SCHONES, DA YANG SEAFOOD INC. and JESSIE S ILWACO FISH COMPANY 8 DAVIS WRIGHT TREMAINE LLP UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION PACIFIC DAWN LLC, CHELLISSA LLC, JAMES AND SANDRA SCHONES, DA YANG SEAFOOD INC., and JESSIE S ILWACO FISH COMPANY, v. Plaintiffs, JOHN BRYSON 1, Secretary of Commerce, in his official capacity as Secretary of the United States, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, and NATIONAL MARINE FISHERIES SERVICE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV TEH [PROPOSED] ORDER ON REMEDY [ALTERNATIVE 2] After consideration of the parties cross-motions for summary judgment, supplemental briefings on remedy, and the record in this case, and for the reasons set forth in its December 22, 2011 Order (Docket No. 49) (the MSJ Order ), the Court hereby declares and orders: 1. Defendants John Bryson, National Oceanic and Atmospheric Administration ( NOAA ) and National Marine Fisheries Service ( NMFS ) (collectively, Defendants ) violated the Magnuson-Stevens Fishery Management and Conservation Act ( MSA ), 16 U.S.C. 1853a(c)(5)(A)(i), by failing to consider the fishing history beyond 2003 for harvesters and John Bryson is substituted for defendant Gary Locke pursuant to Fed. R. Civ. Proc. 25(d). [PROPOSED] ORDER ON REMEDY DWT v Case No.CV TEH

154 Case3:10-cv TEH Document58-9 Filed02/13/12 Page2 of 2 DAVIS WRIGHT TREMAINE LLP for processors in issuing their initial 2011 individual fishing quotas ( IFQs ) as part of the implementing regulations for the fishery management plan for Pacific Whiting levels for 2011 (the IFQ Regulations ). 2. The IFQ Regulations are hereby REMANDED to NMFS for reconsideration and revision based on current and historical harvest for harvesters and processors for Pacific whiting within the meaning of 16 U.S.C. 1853a(c)(5)(A)(i) and consistent with the MSA and the MSJ Order. 3. Defendants shall use their best efforts and all available authority, including taking emergency action and interim measures pursuant to 16 U.S.C. 1855(c) as appropriate, to implement revised, final IFQ Regulations for the 2012 Pacific whiting season by May 15, The existing IFQ Regulations shall remain in effect pending the implementation of revised, final IFQ Regulations for the 2012 Pacific whiting season; provided, however, that if Defendants fail to implement revised IFQ Regulations for the 2012 Pacific whiting season by May 15, 2012, the existing IFQ Regulations will be vacated. 5. The Court will retain jurisdiction over Defendants actions on remand. 6. Defendants will report regularly to this Court on their progress to meet the requirements of this Order on Remedy. IT IS SO ORDERED. DATED: THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT [PROPOSED] ORDER ON REMEDY DWT v Case No.CV TEH