Morro Bay Institute

The Morro Bay Institute is located in Morro Bay, CA. One of its first projects is to support small family owned commercial fishing boats, particularly those using traps, hook and line or diving. Support of the open access sablefishery is of special interest.

view Morrow Bay with boats

Sail Assisted Commercial Fishing Boat Such vessels sacrifice considerable capacity for environment-friendly fuel efficiency. Should they be granted a few extra feet of exemption with regard to the very expensive 'privatized' observer program or at least be measured at the waterline rather than further up? It is not exactly fair to include the prow in calculating the length of a sailing vessel.

THE PEN IS A MIGHTY WEAPON

What is a small fishing boat owner to do in a world where campaigning for election costs millions and public corporations, many of them dominated by foreign ownership, are both in control of the largest donations and of the media? Would you believe that writing a letter at the right moment will give you more power than voting to choose among an extremely limited selection of creatures whose only real occupation is getting reelected?

Some Letters Sent and Posted by Members of Our Informal Group

These are just a few of the letters. Not all of us agree on small details, but all of us are determined to preserve the small privately owned commercial fishing boat tradition along California's Central coast.

Mac's 2011 Letter regarding data collection

Mac's 2011 Letter regarding buy backs

John's 2010 Letter regarding Catch Share

John's 2009 Letter regarding Catch Share

Mac's 2008 Letter regarding Open Access needed

Mac's Letter regarding Catch Share

Mac's 2008 Letter regarding Open Access Sablefish

Mac's 2008 Letter regarding A.22 Sablefish OA

John's 2008 petition regarding lack consideration of community clause of MSA in A.22 This has collectd pages of signatures and been sent.

Where To LOOK FOR TROUBLE:

One of the best places to find out what the federal government is up to is to click on or go to:

http://www.regulations.gov/#!home

What to do when you get there:

1. Fill in a keyword such as fish, "open access", sablefish, etc. (use " " marks to group more than one word together).

2. You do not need to have anything in "Agency" (but you may sometimes wish to check "Department of Commerce").

3. Check and uncheck boxes under Document type. Checking Notice, Proposed Rule, and Rulemaking works for the author.

4. You almost always check Open under 'Comment Period'.

5. You can also experiment with the "From:"-"To:" if you do not wish to get a lot of out of date stuff in the way (use the little arrows to change month etc.). Author usually leaves this option alone; specifying dates may lead to eliminating what you seek.

When you click 'Search', everything may seem to be lost, but your results are a little way down the page.

If list is in the wrong date order you can reverse the order by clicking the "Posted Date" box.

MALFUNCTION: This government search engine can get confused. If it does (for instance, stops working) click the reload which looks like two little curved arrows near where you type in Internet Explorer address on your MS Explorer, or like a curved arrow if you are using Firefox.

What you may find handy to know when you comment:

A political device designed to reduce the annoyance bureaucrats suffer when dealing with the citizenry may be our greatest hope. Governments do not love their citizens, they love to grow. So everywhere governments have instituted something called Administrative Law. In the US it is often called the 'fourth branch of government' because it goes around the constitutional balance of powers between the three original branches: legislative, judicial, and executive.

At the end of the Great Depression the President of the US was frustrated by the limitations on the federal government and implied that the Supreme Court, what he called "the nine old men", was somehow a part of the nation's problems. Since then he and his successors, regardless of party, have appointed more pliable justices. By roughly the mid 1940s the Supreme Court allowed Congress to pass laws that authorized civil servants and appointed councils in government agencies to take over some of Congress's duties. They are assigned to pass regulations which are as a group called 'policies.' After a bit of bureaucratic ritual and a given waiting period these regulations have the the effect of law. The Fishery Management Councils, and NOAA itself, are examples of such agencies.

The executive branch (the president's office and cabinet) is the part of government intended to guide the bureaucracy and the military. However, this administrative law creation allows non-elected officials under the executive branch to, in effect, pass these 'regulations' or 'policies' through a process called 'rule making.' So, people who represent organizations and other persons with regard to policy are called policy analysts. The governors head the executive branches of states and, to a generally lesser degree, may use similar administrative law procedures. Although most publicly traded corporations are represented by policy analysts, only a small fraction of individual citizens have any such representation.

Administrative law has gotten terribly out of hand and Congress has gone so far as to allow departments in the executive branch to have their own 'administrative courts' to handle issues relating to these policies. That means that the part of government run by the president, the executive branch, is being given power taken not only from congress but also from the judicial branch of government, the court system.

In the modern world the real power does tend to lie with the immortal 'persons' created by incorporation (literally giving a corpus, a body) with all the rights of flesh and blood persons. Unfortunately the ability to do anything meaningful to protect yourself may seem to be beyond the reach of individual flesh and blood human beings. In addition to the right to potentially be under considerable foreign ownership, these persons (the corporations) created by law cannot be physically put in prison. They also offer their members freedom from liability beyond the value of the corporation's immediate resources.

These immortal legal persons have more rights as citizens than you or I. It is business as usual and a merciful lawyer could tell us to adapt and "LIVE WITH IT!" Rather than curling up and dying because not all persons are equal, the rest of us may still be included in the game as 'stakeholders.' All stakeholders, persons who hold a stake in some particular issue, need to work together to form our own corporations (as must NGOs etc.) to protect our stake.

All this, both the policies and the 'administrative courts,' are not quite a house built on rock, they are more like a maze on a slippery hill. If you sue for damages the case generally goes to a real court, but if you have difficulty over penalties, fees, licenses, etc. you must politely put up with the harassment of the administrative court. Then and only then, you can appeal the outcome to a real court. The real courts have ruled that, at each step you must 'exhaust administrative procedure' in order to have standing in [a real] court. However, when brought to a real court NOAA has tended to lose to fishermen, especially to groups of fishermen.

Despite the fact that courts are more about the wording of the law than fairness, the real courts tend to be the most honest and consistent part of any government. The author has even observed consistency in the court system while employed in a country whose government was being 'changed' by 'polling' war lords until a sufficient majority of the country's troops were pledged to support one side.

Let bureaucratic procedure be their problem, not yours.

The fact that the administrative agencies lose so often in court does not describe how letters pointing out injustice and folly are effective. Hang in there, we are closing in on that. Administrative procedure follows a now established pattern, considered to be part of our 'body' of law (politicians and lawyers are very Freudian). First Congress passes a law containing an organic (yes that word means living) statute that creates a new administrative agency. This organic statute outlines 'general' (notice this word is not 'specific') goals the agency is to pursue through its 'rulemaking' (regulations). Congress also passes laws prescribing similar general goals and rulemaking authority to preexisting agencies.

There was a recent scandal in which regulators escalated fishing fines and then sought to impose them for the tiniest infraction so that they could buy a yacht, more new cars than they had inspectors, and lots of extravagant trips. When such blatant abuses come to light, they are awkward for our elected officials. So, being as they can potentially be embarrassed, especially at election time, Congress had already been forced to pass such laws as the Administrative Procedure Act, 5 U.S.C.551, et seq., the APA. It is incidentally one of several laws in which Congress performs a kind of legal voodoo and authorizes itself to give away some of the authority restricted to it by the Constitution. However, it also limits the process by specifying that:

An agency shall publish the actual proposed regulatory language in the Federal Register, in which a discussion of the justification and analysis behind the rule is included. The Federal Register is a vast thing like a telephone book with hundreds of new notices and proposals every day. Any bureaucrat will tell you that it's right out there and that it is your own fault if you do not sit at home reading proposed policy all day. However, bless someone, the above (Where to Look...) link will take you to a webpage that will search it for you.

The Fishery Councils have their own postings, on web pages called 'briefing books,' and they have their own commenting periods before their regulations go to the Secretary of Commerce for posting to the Federal Register. When we can catch the proposed policies or regulations in the Fishery Management Council's drafting stage we can often cause these fishery proposals to be drastically modified during the Council's own pre-Federal Register commenting period. This period is often in addition to the APA requirements for publication in the Federal Register and it has to do with the legislation establishing the Fishery Councils themselves.

Unfortunately it is difficult to keep up with changing Internet addresses (URLs) and messy complexity of the Councils website, http://www.pcouncil.org Parts of the most recent meeting decisions are in the NEWS below and are a clue to the tentative agenda for the coming meeting (see below). Not commenting (or not being able to comment) as soon as possible and at the earliest stages may result in you needing an expensive legal action where a simple letter might have served the purpose. The briefing books should be made available to us before the part of the public comments to be posted with it are closed. Often there is little (if any) time between the appearance of the briefing book and the period in which the comments only get sent to (and also included in the official record of) the meetings. We might wish to comment asking them to post the agenda items sooner. However, if we figure out, or see, what is coming up we can comment at any time pointing out that 'this is a comment for the next meeting of the Pacific Council.

Once a proposed rule is published in the Federal Register, or on the Pacific Fishery Management Council site, a 'public comment period' begins in order to allow the public to submit written comments to the agency. So you need to frequently search for open comments in the Register and on the Fishery Council sites in order to get the comments in on time.

When you see an objectionable proposal, say, one that threatens to close down your business, you need to 'comment', meaning compose (write) a letter. Most agencies are legally required to respond [in public meetings and on the record] to every issue raised in the comments. If they do not do so and the issue goes to court that will be all the better for us (should we become their adversaries). This commenting is where you, even a single individual, can flex some muscle. Along with various objections and suggestions, most comments should point out that your fishing is a small business and that you (and your family) are part of, or benefit from, the fishing community where you live.

Some bureaucrats will tell you that, after the commenting period, the agency publishes a full response to issues raised by public comments and an updated analysis and justification for the rule, including an analysis of any new data submitted by the public. However, at best, the Council will hold public meetings at various ever changing venues which would require you to lose a lot of fishing time to attend. However, studying the previous Briefing Book may (at least partially) give you some insight into the future subjects which need comments (letters from you) in order to get into the coming Briefing Book and posted online before their public meeting. Such well timed letters are especially effective.

Depending on the complexity of the rule, comment periods may last for 30 to even 180 days (30 days is more common). Unfortunately they have usually been around for a while by the time you come across them. So, you must comment promptly. Bureaucrats also claim that the proposed rule usually becomes the final rule with 'some minor modifications.' Do not buy that 'minor modifications' part. For instance, see the next paragraph:

If an agency, such as NOAA or one of its Fishery Management Councils, finds that it must substantially change the draft proposal so much that it raises new issues that have not been submitted to public comment, the agency must submit a new draft for public comment. For instance, some such error seems to loom as a very large potential problem for the Pacific Council regarding the recent sablefish lawsuit. Note that the Fishery Councils and many other agencies must always include a no action option in their proposals. However, they often provide a 'no action' option that is really an action option in disguise. When this comes to court they find they have pre-doomed their whole proposal. But they are not prone to learn. It is best to point out false no action options in your comments rather than causing someone to have to go to court.

Why Letter Writing (Commenting) is So Often Effective.

If no further steps are taken by the public or interested parties, the new regulation is codified into the Code of Federal Regulations. This again appears in the Federal Register and is intended to be final. It used to be the end of the road for anything that was not commented upon. If you had not commented regarding that issue you had no standing in court regarding that regulation. Even though the courts have since ruled that you can still have standing in court (to sue the agency or whatever) without commenting, this still highlights that commenting gives you a better footing. Commenting also implies that if the agency does not listen to you now they might have to hear your comment later in court from someone's lawyer.

Some authors say that, except in extraordinary circumstances, the rule does not become effective for some time after its initial publication to allow regulated parties to come into compliance. They claim that some rules provide several years for compliance. This has not at all been the case in fisheries (another potential opportunity for litigation).

Your comments will become and remain part of the process and will forever be right there for the court, an interested Congressman, or an investigative reporter to review. The agencies are very aware of this. If your letter really makes a point, then that issue may be dropped, and often issues are dropped. They are dropped at least until the bureaucrat may come at them from a different direction later. That will take many months and may even take years. In the meantime you are fishing and government is changing.

Without ever being so rude as to go into the details of the bureaucrats' linage, the letters (polite letters) do sufficiently discourage wrongdoers. They may even point out folly to the merely foolish and to the dupes on the Councils. Thanking the Council for real contribution is both fair and plain good manners. However, be certain to be aware that 'Everything you say, or write will be taken down and may used against you and against the rest of us.' For instance do not thank them for serving on the council if you may someday end up in court regarding alleged motives and manipulations which put them on said Council. Likewise I suggest that you do not comment while relaxing with a beer. Commenting and alcohol do not mix.

When our fishing groups hire lawyers we get people who may know a little more about fishing than the average citizen, but not as much as you do. What they do know is magic words which are more effective in court than the ones you say when you get your thumb caught in the puller. The lawyers representing your commercial fishing interests will draw knowledge of the fishing part of the issue from, and will build a lot of their case on, your written comments (your letters). NOAA and your opponents on the Councils know this and they may back off before an issue that you have commented on, and which could hurt you, must go to litigation.

Where To LOOK FOR MORE TROUBLE:

To find out what the your Fisheries Council is up to is to click on it's link:

Pacific Fishery Management Council

Western Pacific Fishery Management Council

North Pacific Fishery Management Council

Mid-Atlantic Fishery Management Council

Gulf of Mexico Fishery Management Counci

New England Fishery Management Council

South Atlantic Fishery Management Council

Caribbean Fishery Management Council

You may have to look for Current Briefing Book, but browse a little while you are at it.

Where To GET NOAA FORMS

Various NOAA forms

NEWS:

The National Marine Fisheries Service announces the publication of several Federal Register notices related to the trawl catch share program:

 

(1) a notice of availability of Amendment 21-1 to the Pacific Coast Groundfish Fishery Management Plan (FMP);

(2) a proposed program improvement and enhancement (PIE) rule; and

(3) a final rule correcting inadvertent non-substantive errors that resulted with implementation of the regulations for Amendments 20 and 21.

 

Public comments on the Amendment 21-1 and on the proposed PIE rule must be received no later than October 14, 2011.

You may submit comments, identified by ''0648-BA74'', by any one of the following methods:

Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal: http://www.regulations.gov.

Fax: 301-713-1193, Attn: Debra Lambert.

Mail:

Debra Lambert; National

Marine Fisheries Service, NOAA; 1315

East-West Highway, Room 13403;

Silver Spring, MD 20910.

All comments received are part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

Future Council Meeting Agenda

The Briefing Book for the September 2011 Council meeting has been posted to the Council's website http://www.pcouncil.org on the "Current Briefing Book" webpage. The Briefing Book contains "situation summaries" (brief summaries that provide background for each agenda item), reports and materials for each agenda item, and written public comment.

If you need assistance downloading files, contact Sandra at 503-820-2419 or toll free 1-866-806-7204.

OTHER ACTIVITIES by Central Coast open access share holders: (History but not really settled)

Major problems with the VMS based attempt at enforcement monitoring:

The vessel monitoring system, VMS, requirements implemented by the Fishery Management Councils (under authority of the Secretary of Commerce by the Magnuson-Stevens Fishery Conservation and Management Act (MSA)) require any boat even occasionally fishing in certain fisheries, such as the albacore fishery, to have a VMS tracking unit (a long range technology analogous to the ankle units for criminals under house arrest) which must be turned on at all times whether in port or at sea and whether or not fishing in the targeted fishery or fishing at all. Small and medium size family owned commercial boats are dependent on access to diverse fisheries and cannot sustain additional encumbrances such as this.

If the VMS unit breaks down, the vessel cannot be moved until some outside repair person comes and successfully repairs it. This has happened to a number of vessels.

The smaller boats cannot conveniently maintain the electric draw of the VMS on their battery when they are in port as is required by these regulations. This has been a problem where owners were, for instance, intermittently and necessarily (due to previous exclusion from various traditional fisheries) employed elsewhere and therefore absent from their boats.

'Evidence' of fishing includes such things as stopping, changing directions or slowing to three miles an hour or less. For instance, the captain might be passing through a no fishing area and change direction to head for a likely fishing area because of finally spotting a warm current on the infrared satellite images (certain fish congregate along the edges). This would make it look to the VMS like fishing is occurring in the no fishing area and could result in a $25,000 fine.

The VMS data may be being recorded, but it is poorly monitored by the monitoring service. Allegedly there are only two employees involved and they have to also maintain the receiving and computer equipment (for the West Coast, or for the whole country?). There is a need to verify this assertion, but the vessel operators feel they have reason to believe it.

If the VMS breaks down, or loses contact with the satellites at while at sea, a red light comes on, and the vessel is required by law to return to port immediately and wait there until repair may be arranged. Even small boats use enormous amounts of fuel and no one, owner included, gets paid for all this time and lost fishing. This has happened to numerous vessels, many of which remain under a threat of $25,000 fines, because, in many cases, due to weather, etc. (maybe even financial desperation) it was not practical to return directly to port.

This last difficulty may be financially devastating, even when not involving a fine, whether a vessel has to stop fishing, after finally finding some fish, or whether it simply has to return to port (often several hundred miles) and be stranded there waiting for this police device to be repaired. Times are hard and some vessels have to borrow money for fuel just to get out to sea to fish in the first place. These devices are expected to soon extend to all commercial fishing boats in all fisheries, including charter boats as well as long liners, etc.

The fear about being put out of business by enormous fines has many fishermen and women afraid to oppose or otherwise offend the Councils or associated agencies, because they may have their VMS records searched for something to be used in reprisal. Under the MSA, the Fishing Councils are supposed to protect the human fishing community, not terrorize it.

Therefore concerned community members created a petition. It sought to:

Discontinue this particular (apparently chaotic and unmanageable) program in favor of existing, less technologically impractical options,

OR

Make the enforcement agencies completely responsible for the cost and for the maintenance of the units at the reasonable convenience of the operation of the vessels (with no more returning directly to port, or being trapped in port).

The petition signed by fishermen in the Morro Bay, greater San Luis Obispo County, and Sta. Barbara was presented by Representative Lois Capps to the Congressional Committee on Natural Resources: Subcommittee on Insular Affairs, Oceans and Wildlife 27 Oct 2009.