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Judge issues tentative ruling on North Central Coast marine reserves
by Dan Bacher
Thursday Oct 6th, 2011 4:50 PM
In a phone interview after the hearing, Bob Fletcher told me, "We were not pleased with his tentative ruling, but were encouraged after the hearing over the lively disccussion the judge had with our attorneys over our arguments in the case. We're now waiting for the final ruling."
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Judge issues tentative ruling on North Central Coast marine reserves

by Dan Bacher

Representatives of the Coastside Fishing Club and United Anglers of Southern California and Bob Fletcher are awaiting the final decision of Judge Ronald Prager in San Diego Superior Court regarding their lawsuit contesting the legality of the Marine Life Protection Act (MLPA) Initiative process on the North Central Coast.

During a hearing on the litigation on October 6, the judge issued a tentative ruling that appeared to rebuff the effort by the coalition of recreational fishing groups to overturn controversial marine protected area regulations on the region stretching from Pigeon Point in San Mateo County to Point Arena in Mendocino County.

Lawyers for the fishing groups argued that the state required a development permit from the Coastal Commission to create the reserves, but the judge said the permit wasn't required, since it fell within an exemption under the Coastal Act.

Prager wrote, "The designation of MPAs falls within an exemption in the Coastal Act for 'establishment and control of wildlife and fishery programs.' (Pub. Resources Code §30411(a).) Under this statute, the Coastal Commission is statutorily obligated to defer to Respondent where the MPA is concerned. Living marine resources fall within the definition of wildlife. Thus, no permit was required by statute."

"Finally, adoption of the MPAs did not constitute 'development' as reasonably interpreted to require a permit and
even if it did, it was not within the purview of the Coastal Commission's control," concluded Prager. (Pub. Resources Code §§30600, 30411.)

According to Mike Lee in the San Diego Union-Tribune, "Prager also appeared to side with the state in the other major question -- whether wildlife officials overstepped their authority by creating the North Central Coast reserves under the process they used. He said the state's interpretation of the law is 'entitled to great weight.'" (http://www.signonsandiego.com/news/2011/oct/06/marine-protected-areas-withstand-court-challenge).

"But during Thursday's hearing, he seemed compelled to rethink the question. 'These arguments are not easily brushed aside by the court,' he said after hearing from anglers' attorney David Cooke," according to Lee.

In a phone interview after the hearing, Bob Fletcher told me, "We were not pleased with his tentative ruling, but were encouraged after the hearing over the lively discussion the judge had with our attorneys over our arguments in the case. We're now waiting for the final ruling."

Prager did not indicate when he would issue a final ruling on the North Coast MLPA case, nor has he set a date for the fishing groups' legal challenge of marine reserves on the Southern California coast.

The lawsuit seeks to set aside the MLPA regulations for the North Central and South Coast study regions, citing a "lack of statutory authority" for the Fish and Game Commission to adopt the regulations, and, in the case of the South Coast regulations, numerous violations of the California Environmental Quality Act (CEQA) in the commission's environmental review of the regulations. The fishing groups have won three court rulings to date.

Regulations for so-called “marine protected areas" are currently in effect on the Central Coast and North Central Coast, while a plan for new MPAs on the North Coast is in process. Fishermen and grassroots environmentalists argue that these marine protected areas fail to protect the ocean from oil drilling and spills, water pollution, military testing, wave and wind energy projects, corporate aquaculture and all human impacts on the marine ecosystem other than fishing and gathering.

You can read the tentative ruling at: http://www.sandiego.courts.ca.gov/v3tr/ViewRulings.aspx?CaseNo=37-2011-00084611-CU-WM-CTL&SelDates=10/06/2011&EventId=945242.

For information on how to contribute to the legal effort, please visit http://www.OceanAccessProtectionFund.org.

In other MLPA Initiative news, the California Fish and Game Commission on October 3 opened a 15-day public comment period for revised proposed regulations for the South Coast marine protected areas (MPAs) developed under the controversial Marine Life Protection Act (MLPA) Initiative.

Revisions were made because the California Office of Administrative Law (OAL), which must first review and approve the regulations before they go into effect, rejected the regulatory package previously provided by the commission.

In a 9 page ruling on September 2, the OAL disapproved the regulatory package for the failure to comply with notice requirements for modification of the regulatory text; failure to comply with the Necessity standard of Government Code section 11349; failure to include all relied upon documents in the rulemaking file; failure to provide the reasons for rejecting alternatives that were considered; and failure to adequately respond to all of the public comments made regarding the proposed action."

Written comments regarding the revised marine protected area regulations must be received in the Fish and Game Commission office by 5:00 pm on October 18, 2011. Interested persons may attend the October 19, 2011 hearing in Monterey and offer testimony.

"It is important that anglers respond to the revised marine protected area regulations since they may significantly affect their ability to access the ocean," advised Fletcher.

The continuation notice, including an updated informative digest, and the modified proposed regulatory language are posted at:http://www.fgc.ca.gov/regulations/2010/#632sc.

MLPA Initiative Background:

The Marine Life Protection Act (MLPA) is a law, signed by Governor Gray Davis in 1999, designed to create a network of marine protected areas off the California Coast. However, Governor Arnold Schwarzenegger in 2004 created the privately-funded MLPA “Initiative” to “implement” the law, effectively eviscerating the MLPA.

The “marine protected areas” created under the MLPA Initiative fail to protect the ocean from oil spills and drilling, water pollution, military testing, wave and wind energy projects, corporate aquaculture and all other uses of the ocean other than fishing and gathering.

The MLPA Blue Ribbon Task Forces that oversaw the implementation of “marine protected areas” included a big oil lobbyist, marina developer, real estate executive and other individuals with numerous conflicts of interest. Catherine Reheis Boyd, the president of the Western States Petroleum Association who is pushing for new oil drilling off the California coast, served as the chair of the MLPA Blue Ribbon Task Force for the South Coast.

The MLPA Initiative operated through a controversial private/public “partnership funded by the shadowy Resources Legacy Fund Foundation. The Schwarzenegger administration, under intense criticism by grassroots environmentalists, fishermen and Tribal members, authorized the implementation of marine protected areas under the initiative through a Memorandum of Understanding (MOU) between the foundation and the California Department of Fish and Game (DFG).

Tribal members, fishermen, grassroots environmentalists, human rights advocates and civil liberties activists have criticized the MLPA Initiative for the violation of numerous state, federal and international laws. Critics charge that the initiative, privatized by Governor Arnold Schwarzenegger in 2004, has violated the Bagley-Keene Open Meetings Act, Brown Act, California Administrative Procedures Act, Coastal Act, California Environmental Quality Act (CEQA), American Indian Religious Freedom Act and UN Declaration on the Rights of Indigenous Peoples.

MLPA and state officials refused to appoint any tribal scientists to the MLPA Science Advisory Team (SAT), in spite of the fact that the Yurok Tribe alone has a Fisheries Department with over 70 staff members during the peak fishing season, including many scientists. The MLPA Blue Ribbon Task Force also didn’t include any tribal representatives until 2010 when one was finally appointed to the panel.