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United Catcher Boats motion to intervene

United Catcher Boats motion to intervene

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Published by Deckboss
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Honorable Marsha J. Pechman

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

TRIDENT SEAFOODS CORPORATION, et al., Plaintiffs, v. JOHN BRYSON, in his official capacity as Secretary Of Commerce, et al., Defendants. ______________________________________________) I. INTRODUCTION AND SUMMARY.

) ) ) ) ) ) ) ) ) ) )

Case No. 2:12-cv-00134-MJP UNITED CATCHER BOATS’ MOTION TO I
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Honorable Marsha J. Pechman

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

TRIDENT SEAFOODS CORPORATION, et al., Plaintiffs, v. JOHN BRYSON, in his official capacity as Secretary Of Commerce, et al., Defendants. ______________________________________________) I. INTRODUCTION AND SUMMARY.

) ) ) ) ) ) ) ) ) ) )

Case No. 2:12-cv-00134-MJP UNITED CATCHER BOATS’ MOTION TO I

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UCB MOTION TO INTERVENE – PAGE 1(No. 2:12-cv-00134-MJP)
ZIONTZ,CHESTNUT,VARNELL,BERLEY&SLONIM
2101FourthAve,Suite1230~Seattle,WA98121
Tel.2064481230;Fax2064480962
www.zcvbs.com
 Honorable Marsha J. Pechman
1
 
2
 
3
 
4
 
5
 
UNITED STATES DISTRICT COURT
6
 
WESTERN DISTRICT OF WASHINGTON
7
 
8
 
9
 
TRIDENT SEAFOODS CORPORATION,
et al.,
) Case No. 2:12-cv-00134-MJP
10
 
)
11
 
Plaintiffs, ) UNITED CATCHER
12
 
) BOATS’ MOTION TO
13
 
v. ) INTERVENE
14
 
)
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JOHN BRYSON, in his official capacity as Secretary ) Note on Motion Calendar:
16
 
Of Commerce,
et al.,
) Friday, May 4, 2012
17
 
)
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Defendants. )
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)
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______________________________________________)
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I. INTRODUCTION AND SUMMARY.
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United Catcher Boats (UCB) moves to intervene as a defendant in this case for two
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purposes: (1) to respond to plaintiffs’ claims regarding the effect of the challenged agency action
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on the relationship between catcher boats and onshore processors in the market for Central Gulf 
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of Alaska rockfish; and (2) to participate as a full party in any proceedings regarding the
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appropriate remedy should plaintiffs prevail on the merits of their claims. UCB seeks to
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intervene under either Fed.R.Civ.P. 24(a)(2) or 24(b). Counsel for plaintiffs has informed us that
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plaintiffs reserve the right to oppose this motion after careful review of it, while counsel for
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defendants has informed us that defendants will take no position on this motion.
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UCB MOTION TO INTERVENE – PAGE 2(No. 2:12-cv-00134-MJP)
ZIONTZ,CHESTNUT,VARNELL,BERLEY&SLONIM
2101FourthAve,Suite1230~Seattle,WA98121
Tel.2064481230;Fax2064480962
www.zcvbs.com
 UCB is a membership organization whose members (or their affiliates) own catcher boats
1
 
that participate in: (1) groundfish trawl fisheries in the Gulf of Alaska, Bering Sea and Aleutian
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Islands and off of the west coast of Washington, Oregon and California; and (2) crab fisheries in
3
 
the Eastern Bering Sea.
See
Declaration of Brent Paine at 1 (¶ 2). Although some of UCB’s
4
 
members also own onshore processing facilities,
1
UCB moves to intervene in this case to protect
5
 
the interests of its members (and their affiliates) who own independent catcher boats, that is,
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catcher boats that are not affiliated with onshore processors.
See id 
at 2 (¶ 2).
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In this case, plaintiffs, four owners of onshore processing facilities in Kodiak, Alaska,
2
 
8
 
challenge a final rule promulgated by defendants to implement Amendment 88 to the Fishery
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Management Plan for Groundfish of the Gulf of Alaska.
See
First Amended Complaint (Doc.
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14) at 1 (¶ 1), 5-8 (¶¶ 11-14). Amendment 88, the Central Gulf of Alaska Rockfish Program,
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allocates exclusive harvesting privileges for specified rockfish species harvested near Kodiak,
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Alaska, to cooperatives comprised of either certain catcher boats (vessels that deliver their catch
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to onshore processors) or catcher-processors (vessels that process their catch at sea) holding
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licenses issued under the Central Gulf of Alaska License Limitation Program (LLP).
See
76 Fed.
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Reg. 81428, 81251 (Dec. 27, 2011) (Notice of Adoption of Final Rule). It replaces the Rockfish
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Pilot Program, which had been in effect since 2007.
See id.
at 81248. Two the changes made by
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Amendment 88 were to change the manner in which quota shares are calculated for LLP
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licensees and to remove the requirement that harvesters in a catcher vessel cooperative deliver
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their fish to a specific onshore processor.
 Id 
. at 81249;
see also
Paine Decl.
 
at 3 (¶¶ 5-6).
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1
 
For example, plaintiff Trident Seafoods Corporation is a member of UCB by virtue of its ownership of catcherboats that participate in groundfish trawl and crab fisheries, even though Trident is also an owner of on and offshoreprocessing facilities.
2
 
Plaintiffs are Trident Seafoods Corporation, Westward Seafoods, Inc., North Pacific Seafoods, Inc., and OceanBeauty Seafoods LLC.
 
UCB MOTION TO INTERVENE – PAGE 3(No. 2:12-cv-00134-MJP)
ZIONTZ,CHESTNUT,VARNELL,BERLEY&SLONIM
2101FourthAve,Suite1230~Seattle,WA98121
Tel.2064481230;Fax2064480962
www.zcvbs.com
 Plaintiffs allege that defendants (the Secretary of Commerce, the National Oceanic and
1
 
Atmospheric Administration (NOAA) and the National Marine Fisheries Service) violated the
2
 
National Environmental Policy Act (NEPA) and the Magnuson-Stevens Fishery Conservation
3
 
and Management Act (MSA) in promulgating a final rule to implement Amendment 88.
See
4
 
Plaintiffs’ First Amended Complaint (Doc. 14) at 1 (¶ 1). In particular, plaintiffs claim that
5
 
defendants violated NEPA by failing to analyze a reasonable range of alternatives to Amendment
6
 
88, failing to prepare an environmental impact statement, and failing to properly examine the
7
 
effects of the proposed action and its alternatives on the physical, natural and socio-economic
8
 
environment.
 Id 
. at 2 (¶ 3). In addition, plaintiffs claim defendants violated the MSA because
9
 
“Defendants’ rationale for not examining a reasonable range of alternatives . . . was based on the
10
 
incorrect interpretation of the [MSA] that a) on-shore processing is not included in the definition
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of the terms ‘fishery’ and ‘fishing,’ and b) the [MSA] does not authorize continuation of the
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rockfish management program existing before the adoption of Amendment 88.”
 Id.
13
 
Plaintiffs’ claims are specifically focused on defendants’ alleged failure to consider
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alternatives to Amendment 88 that would have continued the requirement that catcher boat
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cooperatives deliver their catch to specific onshore processors. Indeed, in their First Amended
16
 
Complaint, plaintiffs identify only one specific “alternative” that they believe defendants should
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have but did not consider – “the alternative of extending the Rockfish Pilot Program” – and then
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identify only one element of the Rockfish Pilot Program that should have been, but allegedly was
19
 
not, considered – the “requirement that harvesters deliver their catch to the same processors to
20
 
whom they historically delivered.”
See id.
at 13 (¶ 36). According to plaintiffs, by allowing
21
 
catcher boats to market their catch to more than one processor, Amendment 88 allocated “100%
22
 
of the rents (
i.e.
, the difference between total revenues from the fishery and the total costs of the
23
 

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