Just wanted to thank anyone and everyone who sent in a message opposing the IFQ halibut quota in Alaska. Unfortunately, we could not swing the vote our way as is passed 8 to 3 in the North Pacific Fisheries Management Council meeting today. This is not unexpected as we got a late start. The majority of people outside Alaska had not even heard of this program until a couple months ago.

But it is not over, it just becomes more expensive. Expect RFA to add to the 15K already spent fighting this to pursue legal action. I paste the text of a letter written to the NPFMC by an anchorage based layer. It can give you some idea of how this decision will be fought and after reading it, I am optimistic that we can prevail.

Mike Gilchrist
________________________________________________________________


Dear Mr. Benton:

I have prepared comments for the Anchorage Fish and Game Advisory Committee, but I am uncertain if they will be filed in time, or in the requisite number of copies, so I am filing these under my own name.

I. IMPOSITION OF CHARTER IFQ'S AT THIS TIME LACKS A SUFFICIENT RATIONAL BASIS AND WOULD BE AN ABUSE OF DISCRETION, REVIEWABLE UNDER THE FEDERAL ADMINISTRATIVE PROCEDURE ACT .

As I read the record, I do not believe that imposition of IFQs at this time will pass muster under the federal Administrative Procedure Act, 5 USC ?00 et seq. The scope of judicial review of any rule adopted by the Council is at least that the rule may not be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 USC ?6.

Generally, the arbitrary and capricious standard is a test of reasonableness, and that there must be a rational basis for the agency action. So, I first looked at whether the proposal appears well-reasoned and rationally based.

I began by examining the Council's reasons for proposing IFQs. I looked first to the Council's "Revised Charter IFQ Problem Statement", issued in February 2001, and reiterated in the draft environmental assessment (EA) at p. 10, issued under the National Environmental Policy Act (NEPA) on March 12, 2001. Then I examined the remainder of the draft EA.

A. Reduced to essentials, the Problem Statement amounts to an assertion that IFQs are "necessary because they are unnecessary", is an oxymoron, and is not a basis for lawful, well-reasoned rule-making.

At the threshold, the problem statement fails to identify a "problem". It does not even use the word "problem". It therefore lacks clarity. If scrutinized, it is an oxymoron, as I will demonstrate.

Reading the problem statement, I was forced to deduce - rather than read - what the "problem" is. It appears to be two concerns by the Council - i.e., that allocation conflicts "may resurface" and that overcapitalization "may have a negative impact". I reached this deduction because, reduced to essentials, the "problem statement" is this:

(A) the resource is fully utilized;
(B) the recently adopted guideline harvest level (GHL) is intended to stop open-ended reallocation between commercial and sport sectors;
(C) the Council remains concerned that allocation conflicts may resurface, and that overcapitalization in the charter industry may have a negative impact on charter operators and sport anglers; and
(D) that the Council "is developing a management plan for the guided sport sector to address these concerns while:
(1) recognizing the unique nature of the guided sport sector,
(2) controlling consolidation;
(3) providing entry level opportunities for guided sport operators, and
(4) encouraging diversity of opportunities for anglers."

See Draft EA at 10.

Thus, the "problem" appears to be the two concerns stated in (C) -- i.e. that allocation conflicts may resurface and that overcapitalization may have negative impacts.1

One would think that because the Council's problem statement acknowledges that the management plan will "address these concerns", then IFQs are not necessary to do the same job. That is a rather simple point, which I do not see addressed in the record, including the draft EA.

At best, the Council has failed to state why its management plan will be insufficient to address the concerns stated in the Problem Statement, and therefore why IFQs will be still be necessary despite the insufficiency. At worst (or at best depending on one's point of view), the Council has conceded that IFQs are unnecessary. That is because the Council concedes that those concerns which the Council claims justify IFQs are in fact actually to be addressed by the management plan, according to the Council. One is left wondering why the Council is proposing IFQs.

In short, the problem statement is so poorly drafted that it defies useful public comment. If this were a presidential debate, one would expect hear someone say that the Council is engaged in fuzzy logic - essentially that the Council states that "IFQs are necessary because they are unnecessary." That is an oxymoron. It is no basis for lawful, reasoned decision-making. That was our first observation.

Nevertheless, I continued. I did so because, in our view, the Council should reach a decision only if it has first provided a clear, legally sufficient - i.e. informative -- statement of the "problem" to the public, so that the public may comment appropriately. Otherwise, it is difficult to have a lawful process under the federal APA.

B. The two concerns stated in the Problem Statement do not rise to a rational basis for IFQs.

Turning to the content of the Problem Statement, rather than its lack of clarity and cohesiveness, it expresses concern that allocation conflicts "may resurface" and that capitalization may have unspecified "negative impacts" on operators and anglers.

The attached graphs provide data on guided effort and harvest in Area 3A and Area 2C. These graphs indicate that the effort and harvest have been stable in these areas since 1996. Therefore, the data undermine the alleged concern that allocation conflicts "may resurface".2 Furthermore, if effort and harvest are stable, then the likelihood of overcapitalization seems low.

Based on these data, I conclude that the concerns that allocation conflicts will resurface and that overcapitalization may occur lack factual support. In the light of these data and the Council's stated concerns, I conclude that any decision to impose IFQs at this time would be unreasonable, and therefore unsustainable, under the federal APA.

C. The issues of conservation, safety, and economic efficiency militate against charter IFQs although they militated for commercial IFQs.

Wisely, the Problem Statement does not venture into the matters of conservation, safety, and economic efficiency.

However, the Council's draft environmental assessment (EA), under the National Environmental Policy Act (NEPA), does. Therefore, I next examined the draft EA. It states three other rationales for IFQs: (1) economic efficiency, (2) conservation, and (3) safety. Draft EA at 19-21.

1. Conservation

Conservation is always our first concern. I will address it first, even though the Council's draft EA did not so dignify it and addressed it (at p. 20) after economic efficiency (at p. 19).

I have three concerns about how conservation is addressed, or not addressed, in the draft EA.

First, addressing any conservation concern must start with the observation that in Areas 2C and 3A approximately 86 percent of the removals of halibut occur in the commercial harvest, and not in the sport/charter and sport/private harvest. See attached graphs. Unfortunately, that portion of the draft EA which purports to address conservation does not address this point. See Draft EA at 20-21. It is a telling omission - one that tells of bias at best and lack of thought at worst.

Second, the text of that portion of the draft EA, at pp. 20-21, which purports to address conservation appears to be lifted from, or originate from, a prior environmental assessment that had addressed commercial IFQs, not sport guided IFQs.

For example, the draft EA on charter IFQs claims that with IFQs "less gear may be set (and lost) reducing both ghost fishing and reducing the potential damage that lost gear may cause to the marine environment." Draft EA at 20. If Council believes that charters operate set gear, then the Council should be embarrassed. I was. Next, the draft EA claims that "[t]he added time available to the IFQ fisherman (sic) may also reduce the bycatch of nontarget species since operations can be moved to target more favorable harvesting conditions . . . ." Id. Next, the draft EA claims that this added time in a charter operation "might allow the opportunity to develop practices that could reduce bycatch". Id. This claim, besides nonsense, is a nonsequitur. It, in effect, claims that added time in a season creates added time in a charter day. This is absurd. Commercial IFQs allowed longer commercial seasons, but charter IFQs will not create longer charter days. Next, the draft EA on charter IFQs claims that "[b]ecause IFQs allow more time to harvest and process fish, the amount of product recovered from the individual fish can be higher, reducing discard product." Id. This stretches credulity.

Clearly, the Council's draft EA has plagiarized all these alleged conservation-related claims from some other environmental document on commercial IFQs. It has done so without giving these claims an iota of thought. They simply do not apply to charter IFQs. Unfortunately, by so doing, the Council is well down the road to irrational rule-making and violation of the federal APA.

But that is not the end of the matter. Also, by thoughtlessly plagiarizing from some other document, the Council's draft EA trespasses upon the requirement of the President's Council on Environmental Quality that NEPA documents demand "high quality information", not plagiarism of irrelevant material.3 See 40 CFR 1500.1(b). So, the Council's work is vulnerable under both the federal APA and NEPA, because plagiarism does not pass muster with either statute.

Third, recreational fishing is somewhat like a water bal**** - if the Council pushes down on it in some form or place on some stock, the recreational fishing demand pushes back in some other form, place or stock. This has been our experience. The current halibut charter fishery relieves pressure on that would otherwise be placed on stocks and locales for which there are substantial conservation concerns in the lower Kenai Peninsula, such as steelhead and the riparian zones of steelhead systems, king salmon and their riparian zones, coho and their riparian zones, etc. I am very concerned that the Council appears to have failed to address the effect of dislocating some sport demand from the halibut fisheries to other fisheries and habitats. The effects of dislocation of recreational demand must be addressed in the EA.

I believe those effects will be significant and warrant an EIS.

The southern Kenai Peninsula steelhead streams are the only road accessible steelhead streams in North America that produce daily catch rates comparable to the better steelhead systems in British Columbia. Our Committee served on the Southern Kenai Peninsula Steelhead Planning Team in the late 1980's and fought successfully for wild stock management. That effort resulted in the high-quality fishery that exists today. The Council jeopardizes it by increasing pressure, increasing mortality on the release, increasing trespass on private land which is already becoming a problem, increasing trampling of river banks, and diminishing the overall experience of popular fishery.

I have similar concerns for king fisheries, coho fisheries, trout fisheries, and sockeye fisheries, and for the habitats of all these species and runs throughout the southern Kenai Peninsula.

2. Economic Efficiency

Regarding economic efficiency, the draft EA again appears to plagiarize some other environmental assessment on commercial IFQs. It refers to the "race for fish", which occurred under the pre-IFQ commercial fishery. See Draft EA at p. 19. The draft EA claims that this "race for fish" - supposedly in the charter fleet -- leads to "more intensive fishing, more gear being deployed", and that without IFQs "processors expand their facilities and distribution chains to handle large pulses of fish and compete with each other to handle landings." Draft EA at p. 19. (Jeez, Louise, I really did not know all this was going on as a result of the charter operators!)

3. Safety

Along with conservation, I place a high priority on safety.

Briefly, the draft EA acknowledges that proponents of IFQs assert that IFQ programs allow greater freedom of choose when to fish and avoid hazardous conditions; but the draft EA also acknowledges that safety does not always improve. Draft EA at p. 21. Although this may or may not be extracted from some other document, the draft EA seems to assume, without serious thought, that safety is an issue. So, I address it.

I conclude that although public safety may have been a legitimate rationale for imposing commercial halibut IFQs, where the prior management had involved short 3-day seasons that forced many commercial fishers to fish unsafe days, the opposite is true with charter IFQs.

Imposing charter IFQs will create some situations where a sport fisher, with a limited amount of time, will be looking at a limited number of vessels with a limited number of unbooked days and seats, and will be forced to accept marginal weather conditions, thereby threatening his or her safety and all those involved. This is less likely to happen in the present circumstance than with charter IFQs.

In our view, public safety concerns in the context of halibut management amount to flexibility. That is, public safety militated for commercial IFQs because without IFQs, the system was rigid and forced commercial fishers to engage in unsafe opportunities to fish. However, the converse seems true for charter halibut. There, public safety militates against charter IFQs because with IFQs, the system will be more rigid and force some sport fishers to charter during unsafe opportunities to fish because they will be faced with a limited number of seats, charters and fish.

Make no mistake here. I do not advocate unlimited fish, unlimited charters, unlimited days, or unlimited charter fishing. I am saying that the public safety concerns militate against charter IFQs.

D. Adopting Charter IFQs at this time may violate one or more of the national standards of the Magnuson-Stevens Act and constitute an abuse of discretion reviewable under the federal APA, given the insufficiencies of the Problem Statement and the draft EA.

The Magnuson-Stevens Act, at 16 USC 1851(a), provides ten "national standards" for conservation and management of fisheries. Although the draft EA attempts to come within several of the standards (such as safety at sea, addressed elsewhere here), one standard remains to be addressed. It is that --

(5) Conservation and management measures shall, where practicable, consider efficiency in the utilization of fishery resources, except that no such measure shall have economic allocation as its sole purpose.

16 USC 1851(a)(5) (emphasis added).

Because the discussion in the draft EA of conservation, economic efficiency and safety is malignant with plagiarism and thoughtlessness, I am left with the impression that, at this time, the proposed IFQ measures have economic allocation as their sole purpose.

That would be legally improper and an abuse of discretion under the federal APA.

The only other concern is for overcapitalization. There, the Council and the public are confronted with the Council's failure to specify what "negative impacts" may occur to operators and anglers. Increased safety for anglers can't be a negative impact. Free market prices and economic efficiency, instead of higher prices and reduced efficiency due to limited time and opportunity or due to the costs of buying IFQs, can't be a negative impact. The concern for overcapitalization seems to be a make-weight, nothing more.

II. MY RECOMMENDATIONS

Having found the Problem Statement and the portion of the draft EA that relates to it insufficient to sustain lawful action, I'll turn to what I recommend.

I recommend the position of the State of Alaska, with supplementation arising out of the hurried nature of the current process, the inadequate problem statement and an obviously inadequate draft EA.

The State opposes charter IFQs. I agree, at this time. I do so for these reasons.

Furthermore, I believe that given the stable status of the charter industry, the Council would be wise to look at tools other than IFQs. For example, it should look at the process for establishing local area management plans (LAMPs). I understand that LAMPs have not been established in Areas 2C and 3A. I therefore suggest that the Council consider some trigger, or deadlines, to make the LAMP process produce local area management plans that address valid (not plagiarized) concerns for overcapitalization, local conservation issues, and local user conflicts.

I also support a moratorium when the GHL becomes a constraint in Areas 3A or 2C, as the State recommends, and a smaller area moratorium as a tool of a LAMP.

Finally, I encourage the Council to recognize that its problem statement and it draft EA need substantial work. Toward that end I would be pleased to help. You should slow this process down and produce credible work.

I appreciate the opportunity to provide these comments.

Sincerely yours,


____________________________
Geoffrey Y. Parker

1 Obviously, the undisputed fact that the resource is fully utilized is not a "problem" per se being addressed by charter IFQs, but allocation of a fully utilized resource is a different matter. Similarly, the statement that GHLs are intended to stop open-ended allocation is a statement of intent and not of a problem. Finally, the statement that the Council will develop a "management plan for the guided sport sector" is not a statement of a problem.
2 The stable situation in 1996-2001 is in fact to be inferred from comparing the "1995-2000 Halibut Charter Management Problem Statement" (Draft EA at 4) to the Revised Problem Statement (Draft EA 10). What had been perceived in the prior statement as an actual problem becomes a speculative possible future problem in the revised statement.
3 The draft also refers to "testimony to the committee", but we did not see where "the committee" was identified. See draft EA at p. 20. We suspect it was some other committee irrelevant to this issue.


Letter to NPFMC
April 14, 2001
Page 8

T H E L A W O F F I C E O F

GEOFFREY Y. PARKER
Phone: (907) 222-6859 __________________ E-mail: gparker@gci.net
Fax: (907) 277-7126
730 I Street, Suite 226
Anchorage, Alaska 99501