Hired Skippers Lawsuit

Case 3:14-cv-05685-BHS Document 18 Filed 10/30/14 Page 1 of 40
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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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FAIRWEATHER FISH, INC., et al.,
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NO. 3:14-cv-05685-BHS
Plaintiffs,
FIRST AMENDED COMPLAINT
v.
PENNY PRITZKER, in her official capacity
as Secretary of Commerce, et al.,
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Defendants.
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I.
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1.
INTRODUCTION
Plaintiffs Fairweather Fish, Inc., a Washington corporation (Fairweather Fish)
20 and Captain Ray Welsh (Captain Welsh) (sometimes collectively referred to as Plaintiffs)
21 challenge a final rule entitled Fisheries of the Exclusive Economic Zone Off Alaska: Pacific
22 Halibut and Sablefish Individual Fishing Quota Program (Final Rule), 79 Fed. Reg. 43679
23 (July 28, 2014), promulgated on July 28, 2014, by Defendants Secretary of Commerce Penny
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Pritzker, National Oceanic and Atmospheric Administration (NOAA), Kathryn D. Sullivan,
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Smith & Hennessey
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1 Administrator of National Marine Fisheries Service (NMFS), and Eileen Sobeck, Assistant
2 Administrator for NMFS (collectively Defendants).
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2.
The Final Rule amends the hired master provisions of the Individual Fishing
Quota Program (IFQ Program) for the fixed-gear commercial halibut and sablefish fisheries
off the coast of Alaska at 679 C.F.R. 679.41 and 679.42.
3.
The Final Rule approves three amendments to the regulations that govern the IFQ
8 Program (the Amended Regulations). The first two amendments add regulations at 50 C.F.R.
9 679.42(i)(8) and (j)(10) to specify that a hired master (skipper) cannot be used to fish IFQ
10 halibut or sablefish derived from catcher vessel quota shares (QS) that were received by
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transfer after February 12, 2010, with a limited exception for small amounts of QS. The third
amendment adds regulations under 50 C.F.R. 679.41(c)(11) specifying that NMFS will not
approve a transfer of catcher vessel QS to a corporation, partnership, association, or other non-
15 individual entity at any time.

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4.
The Final Rule and Amended Regulations are unlawful because they violate the
17 Rehabilitation Act of 1973, 29 U.S.C. 701 et seq. (Rehabilitation Act); the Magnuson18
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Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801-1884 (MagnusonStevens Act); the Northern Pacific Halibut Act of 1982, 16 U.S.C. 773 et seq. (Halibut
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Act); the United States Constitution; and the Administrative Procedure Act 5 U.S.C. 701-706
(APA). The Final Rule and Amended Regulations violate the Rehabilitation Act by excluding
23 otherwise qualified individuals with a disability from participating in the IFQ Program. The
24 Final Rule and Amended Regulations violate the Magnuson-Stevens Act, the Halibut Act, and
25 the APA in that they are impermissibly retroactive and arbitrary and capricious. The Final Rule
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and Amended Regulations violate the Fifth Amendment of the United States Constitution by
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1 denying Plaintiffs due process of law.
The Final Rule and Amended Regulations violate
2 National Standard Four of the Magnuson-Stevens Act and the Halibut Act in that they are not
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fair and equitable. The Final Rule and Amended Regulations violate National Standard One of
the Magnuson-Stevens Act by failing to achieve optimum yield. The Final Rule and Amended
Regulations violate National Standard Two of the Magnuson-Stevens Act in that they are not
7 based on the best scientific information available. The Final Rule and Amended Regulations
8 violate National Standard Nine of the Magnuson-Stevens Act by failing to minimize bycatch.
9 The Final Rule and Amended Regulations violate National Standard Ten of the Magnuson10 Stevens Act by failing to promote the safety of human life at sea. The Magnuson-Stevens Act
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specifies that Defendants shall not approve a fishery management plan, an amendment thereto, or
any implementing regulations (sometimes collectively referred to herein as FMP) unless the
FMP is consistent with the Magnuson-Stevens Act and any other applicable law. The Final Rule
15 and Amended Regulations violate the Magnuson-Stevens Act by failing to comply with the
16 applicable law set forth above.
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5.
Defendants actions, omissions, and conduct in promulgating the Final Rule and
approving the Amended Regulations also result in damage to initial QS recipients who are
corporations, partnerships, associations and other entities, including Plaintiff Fairweather Fish,
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by prohibiting such entities from using a hired master to harvest IFQ derived from catcher vessel
QS received by transfer after February 12, 2010. As a corporation, Fairweather Fish is not able
23 to be on board its vessel when harvesting halibut or sablefish QS. Accordingly, Fairweather Fish
24 relies on a hired master to harvest its halibut and sablefish QS. If the Final Rule is upheld and
25 the Amended Regulations become effective, Fairweather Fish and others like it will not be able
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to harvest their QS received by transfer after February 12, 2010. Further, Fairweather Fish and
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1 others like it will be limited in their ability to participate in the IFQ Program going forward, as
2 Fairweather Fish and similar entities will not be able to acquire and harvest additional QS.
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Fairweather Fish and others like it will be limited and restricted to harvesting only the QS that
they acquired prior to February 12, 2010.
Fairweather Fish and others like it will suffer
additional economic harm if the Final Rule is upheld and the Amended Regulations are
7 implemented because they will be unable to obtain the same price for their QS as they would
8 otherwise receive due to the negative impact the Final Rule and Amended Regulations will have
9 on supply and demand. Fairweather Fish and others like it will also be forced to sell their QS
10 received by transfer after February 12, 2010, and thus will incur a capital gains tax.
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6.
Defendants actions, omissions, and conduct in promulgating the Final Rule and
approving the Amended Regulations result in damage to initial QS recipients, who are otherwise
qualified individuals with a disability, including Plaintiff Captain Welsh, by prohibiting such
15 individuals from using a hired master to harvest IFQ derived from catcher vessel QS received by
16 transfer after February 12, 2010. Specifically, the Final Rule and Amended Regulations exclude
17 otherwise qualified individuals with a disability from employing a hired master, which precludes
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those individuals from harvesting their allotted IFQ or, alternatively, require those individuals to
be present on board their vessel when doing so would be unsafe due to their disabilities. As a
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result of his disabilities, Captain Welsh is not able to be on board his vessel when harvesting
halibut or sablefish QS. Accordingly, Defendants actions and failures will harm Captain Welsh
23 by prohibiting him, and others like him, from using a hired master to harvest IFQ derived from
24 catcher vessel QS received by transfer after February 12, 2010. If the Final Rule is upheld and
25 the Amended Regulations become effective, Captain Welsh and others like him will not be able
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to harvest their QS received by transfer after February 12, 2010. Further, Captain Welsh and
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1 others like him will be limited in their ability to participate in the IFQ Program going forward, as
2 Captain Welsh and others like him will not be able to acquire and harvest additional QS. Captain
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Welsh and others like him will be limited and restricted to harvesting only the QS that they
acquired prior to February 12, 2010. Captain Welsh and others like him will suffer additional
economic harm if the Final Rule is upheld and the Amended Regulations are implemented
7 because they will be unable to obtain the same price for their QS as they would otherwise receive
8 due to the negative impact the Final Rule and Amended Regulations will have on supply and
9 demand. The Final Rule and Amended Regulations will drastically narrow the number of
10 eligible potential transferees of QS while increasing the number of transferors, thereby causing a
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reduction in the price of QS.

7.
Defendants misconstrue the fundamental purpose of the IFQ Program which was
to promote the conservation and management of halibut and sablefish resources by reducing
15 excessive fishing capacity in the commercial halibut and sablefish fixed-gear fisheries.
16 Defendants attempt to characterize/transform the fundamental purpose of the IFQ Program to an
17 accelerated owner on board standard violates the applicable laws referenced above. The Final
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Rule and Amended Regulations do not promote environmental conservation and will have no
effect on protecting halibut and sablefish resources. Instead, the Final Rule and Amended
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Regulations attempt to engage in social engineering by advancing an owner on board standard

which unlawfully impacts the economic welfare of corporations/entities and discriminates
23 against otherwise qualified disabled individuals.

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II.
8.
JURISDICTION AND VENUE
This action arises under the Rehabilitation Act, the Magnuson-Stevens Act, the
26 Halibut Act, the United States Constitution, and the APA.

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9.
This Court has jurisdiction over the action pursuant to Section 504 of the
2 Rehabilitation Act, 29 U.S.C. 794; the Magnuson-Stevens Act, 16 U.S.C. 1861(d) ([t]he
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district courts of the United States shall have exclusive jurisdiction over any case or controversy
arising under [the Act]); the Halibut Act, 16 U.S.C. 773i(d) (district courts have exclusive
jurisdiction); the APA, 5 U.S.C. 701-706 (final agency actions are subject to judicial review);
7 28 U.S.C. 1331 (district courts have original jurisdiction of all civil actions arising under the
8 laws of the United States); and 28 U.S.C. 1361 (district courts have original jurisdiction
9 over any action in the nature of mandamus to compel an officer or employee of the United States
10 or any agency thereof to perform a duty owed to the plaintiff).
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10.
The Magnuson-Stevens Act provides that actions taken by the Secretary of
Commerce in issuing regulations to implement an FMP shall be subject to judicial review if a

petition for such review is filed within 30 days after the date on which the regulations are
15 promulgated or the action is published in the Federal Register, as applicable. 16 U.S.C.

16 1855(f)(1). Defendants published the Final Rule amending the hired master provisions of the
17 IFQ Program on July 28, 2014 in the Federal Register. Plaintiffs file this Complaint within 30
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days of the publication of the Final Rule.

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This Court has the authority to grant the relief sought in this action pursuant to the
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Declaratory Judgment Act (28 U.S.C. 2201-02), the Magnuson-Stevens Act (16 U.S.C.
1855(d) and (f)), the Halibut Act (16 U.S.C. 773i(d)), 42 U.S.C. 1983, and the APA
23 (5 U.S.C. 705, 706).

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12.
Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(e) because a
25 substantial part of the events and omissions giving rise to the claim occurred in this district and
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because Plaintiff Fairweather Fish has its corporate headquarters in this district.
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III.
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Fairweather Fish, Inc.
PARTIES
Plaintiff Fairweather Fish is a small, family-owned
3 business that has its corporate headquarters in Gig Harbor, Washington. At the inception of the
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IFQ Program in the early 1990s, Fairweather Fish was issued initial QS to harvest halibut and
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sablefish. Fairweather Fish received by transfer (purchased) five separate QS after February 12,
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2010. Fairweather Fish has a 20% or greater ownership interest in the vessel(s) that harvest its
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8 QS and currently is qualified to participate in the IFQ Program. If the Final Rule is made
9 effective and the Amended Regulations are implemented, Fairweather Fish will have been
10 qualified to participate fully in the IFQ Program up to and until that time. As a corporation,
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Fairweather Fish relies on a hired master to harvest its QS.

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Captain Ray Welsh. Plaintiff Captain Welsh is an individual residing in Anchor
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Point, Alaska, who received initial QS in his name when the IFQ Program was first
implemented. In July, 2010, Captain Welsh sold halibut QS and received by transfer (purchased)
16 sablefish QS. Captain Welsh has a 20% or greater ownership interest in the vessel(s) that harvest
17 his QS and currently is qualified to participate in the IFQ Program. If the Final Rule is made
18 effective and the Amended Regulations are implemented, Captain Welsh will have been
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qualified to participate fully in the IFQ Program up to and until that time. Captain Welsh has
physical and mental impairments that substantially limit several major life activities, including
his ability to perform manual tasks, lift, bend, read, concentrate, think, communicate, walk, learn,
23 and/or work. Captain Welsh is an otherwise qualified individual with a disability, as that term
24 is defined in 29 U.S.C. 705(20), and is a qualified individual with handicaps as that term is
25 defined in 15 C.F.R. 8c.3. Accordingly, Captain Welsh hires, relies on, and is entitled to a
26 skipper to harvest his QS.
Smith & Hennessey
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15.
Penny Pritzker. Defendant Penny Pritzker is sued in her official capacity as the
2 Secretary of the United States Department of Commerce (Secretary).

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Ms. Pritzker is
ultimately responsible for overseeing the proper administration and implementation of the
Magnuson-Stevens Act. She is also responsible for her Departments compliance with section
504 of the Rehabilitation Act.
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National Oceanic and Atmospheric Administration. NOAA is an agency of
8 the United States Department of Commerce with supervisory responsibility for NMFS. The
9 Secretary has delegated responsibility to ensure compliance with the Magnuson-Stevens Act to
10 NOAA which, in turn, has sub-delegated that responsibility to NMFS.
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Kathryn D. Sullivan.
Defendant Kathryn Sullivan is the Administrator of
NOAA, and thus is charged with the responsibility to ensure that the requirements of the
Magnuson-Stevens Act and other applicable law are followed and enforced.
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National Marine Fisheries Service.
Defendant NMFS is an agency of the
16 United States Department of Commerce that has been delegated the primary responsibility to
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and enforced.
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Eileen Sobeck. Defendant Eileen Sobeck is Assistant Administrator for NMFS,
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and is charged with administration of the Magnuson-Stevens Act and other applicable law with
respect to living marine resources.
IV.
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LEGAL BACKGROUND
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A.
The Rehabilitation Act.
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Section 504 of the Rehabilitation Act states, No otherwise qualified individual
26 with a disability in the United States ... shall, solely by reason of her or his disability, be
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1 excluded from the participation in, be denied the benefits of, or be subjected to discrimination
2 under any program or activity receiving Federal financial assistance or under any program or
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activity conducted by any Executive agency or by the United States Postal Service. 29 U.S.C.
794(a) (Section 504).
21.
Agencies may promulgate regulations that implement the requirements
7 concerning the treatment of individuals contained in Section 504.

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22.
The Department of Commerce published regulations implementing the
9 Rehabilitation Act and prohibiting discrimination in its programs on the basis of handicap at
10 15 C.F.R. pt. 8c (1988) (Department of Commerce Regulations).
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23.
The Rehabilitation Act and the Department of Commerce Regulations apply to
the IFQ Program. 15 C.F.R. 8c.2 (This part applies to all programs or activities conducted by
the agency except for programs or activities conducted outside the United States that do not
15 involve individuals with handicaps in the United States.).

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24.
The Department of Commerce Regulations provide that no qualified individual
17 with handicaps shall, on the basis of handicap, be excluded from participation in, be denied the
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benefits of, or otherwise be subjected to discrimination under any program or activity conducted
by the agency. 15 C.F.R. 8c.30.
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25.
An individual with handicaps means, any person who has a physical or mental
impairment that substantially limits one or more major life activities, has a record of such an
23 impairment, or is regarded as having such an impairment. 15 C.F.R. 8c.3.

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26.
A qualified individual with handicaps means (1) With respect to any agency
25 program or activity under which a person is required to perform services or to achieve a level of
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accomplishment, an individual with handicaps who meets the essential eligibility requirements
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1 and who can achieve the purpose of the program or activity without modifications in the program
2 or activity that the agency can demonstrate would result in a fundamental alteration in its nature;
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(2) With respect to any other program or activity, an individual with handicaps who meets the
essential eligibility requirements for participation in, or receipt of benefits from, that program or
activity; and (3) Qualified handicapped person as that term is defined for purposes of
7 employment in 29 CFR 1613.702(f), which is made applicable to this part by 8c.40.

8 15 C.F.R. 8c.3.
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B.
The Magnuson-Stevens Act.
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Congress enacted the Magnuson-Stevens Act, among other purposes, to conserve
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and manage the fishery resources found off the coasts of the United States, to promote
domestic commercial and recreational fishing under sound conservation and management
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principles, and to provide for the preparation and implementation, in accordance with national
standards, of fishery management plans which will achieve and maintain, on a continuing basis,
16 the optimum yield from each fishery. 16 U.S.C. 1801(b)(1), (3)-(4). The Act created eight
17 regional fishery management councils, including the North Pacific Fishery Management Council
18 (Council) that recommended the IFQ Program at issue this case. 16 U.S.C. 1852. These
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councils must develop, and submit to the Secretary for approval, FMPs and amendments to each
such plan that are necessary from time to time (and promptly whenever changes in conservation
and management measures in another fishery substantially affect the fishery for which such plan
23 was developed). 16 U.S.C. 1852(b), (h)(1).

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28.
All FMPs and implementing regulations prepared by the regional fishery
25 management councils are subject to final review and approval by NMFS. The Magnuson26 Stevens Act requires that an FMP, including FMP amendments, and any regulations promulgated
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1 to implement such plans or amendments, cannot be approved unless they are consistent with the
2 Magnuson-Stevens Act and other applicable law. 16 U.S.C. 1854(a) and (b).
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29.
The Rehabilitation Act, the Halibut Act, and the U.S. Constitution are other
applicable laws with which an FMP and FMP amendment, including their implementing
regulations, must be consistent.
30.
FMPs must comply with ten national standards under the Magnuson-Stevens Act,
8 including the following: (1) Conservation and management measures shall prevent overfishing
9 while achieving, on a continuing basis, the optimum yield from each fishery for the United States
10 fishing industry; (2) Conservation and management measures shall be based upon the best
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scientific information available; (4) Conservation and management measures shall not
discriminate between residents of different States. [If it becomes necessary to allocate or assign
fishing privileges among various United States fishermen, such allocation shall be (A) fair and
15 equitable to all such fishermen; (B) reasonably calculated to promote conservation; and
16 (C) carried out in such manner that no particular individual, corporation, or other entity acquires
17 an excessive share of such privileges.]; (9) conservation and management measures shall, to the
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extent practicable, minimize bycatch; and (10) Conservation and management measures shall, to
the extent practicable, promote the safety of human life at sea. 16 U.S.C. 1851(a)(1), (2), (4),
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(9) and (10). The national standards are designed to promote conservation, not the economic
welfare of individuals over that of corporations or entities.
31.
The Magnuson-Stevens Act provides that an FMP may establish a limited access
24 system for the fishery in order to achieve optimum yield if, in developing such system, the
25 Council and the Secretary take into account, (A) present participation in the fishery;
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(B) historical fishing practices in, and dependence on, the fishery; (C) the economics of the
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1 fishery; (D) the capability of fishing vessels used in the fishery to engage in other fisheries;
2 (E) the cultural and social framework relevant to the fishery and any affected fishing
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communities; (F) the fair and equitable distribution of access privileges in the fishery; and
(G) any other relevant considerations. 16 U.S.C. 1853(b)(6).
32.
In establishing a limited access privilege program, the Council is required, inter
7 alia, to establish a policy and criteria for the transferability of limited access privileges (through
8 sale or lease) that is consistent with the policies adopted by the Council for the fishery under [16
9 U.S.C. 1853a(c)(5)(A)], including but not limited to the requirement that the policies
10 establish procedures to ensure fair and equitable initial allocations, including consideration of,
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(i) current and historical harvests; (ii) employment in the harvesting and processing sectors;
(iii) investments in, and dependence upon, the fishery; and (iv) the current and historical
participation of fishing communities, and consider the basic cultural and social framework of
15 the fishery. 16 U.S.C. 1853a(c)(5)(A), (B).

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33.
The Magnuson-Stevens Act further provides that any limited access privilege
17 program to harvest fish shall promote fishing safety, fishery conservation and management; and
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social and economic benefits. 16 U.S.C. 1853a(c)(1)(C). By prohibiting otherwise qualified

disabled individuals from relying on a hired master to harvest their QS, the Final Rule and
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Amended Regulations fail to promote fishing safety. For these disabled individuals to harvest
their QS received after February 12, 2010, the Final Rule and Amended Regulations require that
23 they be on board their vessel in blatant disregard of National Standard Ten, which requires that
24 conservation and management measures promote the safety of human life at sea.
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34.
The Council is responsible for amending the FMP as necessary from time to time
2 (and promptly whenever changes in conservation and management measures in another fishery
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substantially affect the fishery for which such plan was developed). 16 U.S.C. 1852(h)(1).
C.
The Halibut Act.
35.
The Secretary of Commerce and the International Pacific Halibut Commission
(Commission) manage fishing for Pacific halibut through regulations established under the
8 authority of the Halibut Act, 16 U.S.C. 773-773k; 50 C.F.R. 300.60-300.66.
The
9 Commission recommends regulations governing the conservation of halibut stocks under the
10 Convention between the United States of America and Canada for the Preservation of the Halibut
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Fishery of the Northern Pacific Ocean and Bering Sea (the Convention).
36.
The Halibut Act provides the Secretary of Commerce with broad authority and
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discretion to adopt such regulations as may be necessary to carry out the purposes and
objectives of the Convention and [the Halibut Act]. 16 U.S.C. 773c(b)(1). The Halibut Act
16 also provides the Council with the authority to recommend regulations to the Secretary of
17 Commerce, including limited access regulations. 16 U.S.C. 773c(c). Any such regulations
18 shall be consistent with the limited entry criteria set forth in section 1853(b)(6) [of the
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Magnuson-Stevens Act]. Id.

37.
If the Secretary makes an allocation decision or assigns halibut fishing privileges
among U.S. fisherman, such allocation shall be fair and equitable to all such fishermen, based
23 upon the rights and obligations in existing Federal law, reasonably calculated to promote
24 conservation, and carried out in such manner that no particular individual, corporation, or other
25 entity acquires an excessive share of the halibut fishing privileges. 16 U.S.C. 773c(c).
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D.
The Administrative Procedure Act.
38.
The APA requires that courts hold unlawful and set aside agency action,
3 findings, and conclusions that are, inter alia, arbitrary, capricious, an abuse of discretion, or
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otherwise not in accordance with law; contrary to constitutional right, power, privilege, or
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immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
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[or] without observance of procedure required by law; . 5 U.S.C. 706(2)(A)-(D); 16 U.S.C.
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8 1855(f)(1)(B) (adopting the standards for judicial review under 5 U.S.C. 706(2)). Defendants
9 must have considered the relevant factors and articulated a rational connection between the
10 facts found and the choices made. Midwater Trawlers Coop. v. Dept. of Commerce, 282 F.3d
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710, 716 (9th Cir. 2002).
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V.
39.
FACTUAL ALLEGATIONS
In 1992, the Council recommended a limited access system for the fixed gear
halibut and sablefish fisheries off Alaska. The halibut and sablefish Individual Fishing Quota
16 (IFQ) plan was approved in January 1993 and implemented on November 9, 1993.
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17 Fed. Reg. 59375 (November 9, 1993). Fishing under the program began on March 15, 1995.
18 The central purpose of the IFQ Program was to resolve the conservation and management issues
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commonly associated with open access fisheries.

40.
Federal regulations at 50 C.F.R. part 679, established under the authority of the
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Magnuson-Stevens Act, implement the IFQ Program for the halibut and for sablefish fisheries.
Additional federal regulations at 50 C.F.R. part 300, subpart E, and 50 C.F.R. part 679,
24 established under the authority of the Halibut Act, also govern the halibut fishery.
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41.
The IFQ Program was intended primarily to reduce excessive fishing capacity in
26 the commercial halibut and sablefish fixed-gear fisheries.

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42.
Access to the halibut and sablefish fisheries is limited to those persons holding
2 catcher vessel QS in specific management areas. The QS holder is the person authorized to
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exercise the harvesting privilege in specific regulatory areas. NMFS initially issued QS to
qualified applicants (initial recipients) who owned or leased a vessel that made fixed-gear
landings of halibut or sablefish during the qualifying period from 1984 to 1990 for halibut, and
7 from 1985 to 1990 for sablefish. A person who received QS as an initial recipient was either
8 (1) an individual or natural person, or (2) a non-individual entity or person, such as a
9 corporation, partnership, or association. Initial recipients received QS allocations based on their
10 harvest during the qualifying period, the area of the harvest, and the type of vessel used to land
11
12
13
14
the harvest. QS are individual harvesting privileges that are given effect on an annual basis
through the issuance of individual fishing quota (IFQ) permits.
An annual IFQ permit
authorizes the permit holder to harvest a specified amount of halibut or sablefish in a regulatory
15 area.
16
43.
All QS are categorized according to the size of the vessel (category B, C, or D,
17 individually and collectively referred to as catcher vessel QS) from which halibut and sablefish
18
19
may be fished and whether that halibut or sablefish may be processed on board the vessel
(category A). The vessel categories were designed to ensure that the IFQ Program did not
20
21
22
radically change the structure of the fleet in place at the time the IFQ Program was implemented.
44.
QS is transferrable from one person to another. The Council recommended and
23 NMFS implemented limits on the transfer (sale and purchase) and use of QS to limit
24 consolidation and maintain diversity of the IFQ fleet. For example, the IFQ Program only allows
25 persons who were originally issued catcher vessel QS (category B, C, and D halibut QS and
26
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1 category B and C sablefish QS), or persons who qualify as IFQ crew members, to hold and
2 transfer catcher vessel QS.
3
4
5
6
45.
The regulations that govern the IFQ Program currently provide that individuals
and corporations, partnerships, or other non-individual entities in certain vessel categories who
received initial QS may rely on a hired master to harvest their QS if certain criteria are met,
7 including if the individual or entity owns a minimum 20-percent interest in the vessel on which
8 the IFQ species are harvested and if the individual or entity is represented on the vessel by an
9 employed hired master who is appropriately permitted.
10 679.42(j)(1).
11
12
13
14
15
See 50 C.F.R. 679.42(i)(1),
By limiting the hired master exception to initial QS recipients, the Council
intended that all initial recipients would eventually retire from fishing, at which time their QS
would be transferred to other qualified fishermen and the IFQ fisheries would become
predominantly owner-operated.
46.
In the preamble to the proposed rule implementing the IFQ Program, the
16 statement of the fundamental purpose of the IFQ Program includes no reference to any owner17 on-board (OOB) standard as a core reason for adopting the IFQ Program. 57 Fed. Reg. 57130
18
19
(Dec. 3, 1992) (1992 Proposed Rule) at 57130-31. By contrast, the objective of forcing
owners to be on board their respective vessels is the stated purpose of the Final Rule. See 79
20
21
22
23
Fed. Reg. 43680 (This final rule is necessary to maintain progress toward a predominately
owner-onboard fishery.).
47.
The 1992 Proposed Rule stated it was the Councils intention that persons
24 entering the fishery after adoption of the IFQ Program be individuals with commercial fishing
25 experience and be aboard the vessel when it was fishing. Id. at 57133. Thus, unlike the Final
26
Rule at issue herein, only new entrants to the fishery would be subject to an OOB requirement.
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48.
The 1992 Proposed Rule further stated that the purpose of the OOB standard was
2 to assure that catcher vessel QS would continue to be held by professional fishermen after the
3
4
5
6
initial allocation process.... 1992 Proposed Rule at 57138. (Emphasis added.)

49.
Incorporating the stated intent and purpose of the 1992 Proposed Rule, the 1993
Final Rule confirmed that the Council had no fixed schedule or anticipated deadline for the
7 transition to an OOB fleet; rather, [e]ventually, as the individuals and firms that received initial
8 allocations are replaced by new ones, all catcher vessel QS will be transferred to individuals in
9 keeping with the Councils basic policy. 58 Fed. Reg. 59375 (Nov. 9, 1993) (1993 Final
10 Rule) at 59392. (Emphasis added.)
11
12
13
14
50.
In February 2010, the Council received public testimony and information that
caused it to be concerned about the apparent consolidation of QS and reduced opportunities for
new entrants (second generation) fishermen to enter the fishery. The Council approved a
15 Problem Statement and initiated an analysis to evaluate the economic and socioeconomic effects
16 of a proposed amendment to the IFQ Program which would restrict initial recipients use of a
17 hired master (skipper) to harvest IFQs transferred after February 12, 2010.
18
19
51.
In February 2011, the Council released a proposed amendment to the IFQ
Program that would prohibit the use of hired skippers for certain QS transferred after February
20
21
22
12, 2010 (Amendment). The effect of the Amendment would be to require the IFQ owners to
be aboard their respective vessels when fishing for halibut or sablefish QS acquired after
23 February 12, 2010.

24
52.
On April 26, 2013, NMFS published a proposed rule in the Federal Register
25 regarding the proposed Amendment, which would amend the hired master regulations for
26
management of the IFQ Program for the fixed-gear commercial fisheries for halibut and
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1 sablefish in waters off Alaska (Proposed Rule). 78 Fed. Reg. 24707 (Apr. 26, 2013). The 302 day comment period on the proposed rule ended May 28, 2013.
3
4
5
6
53.
On July 28, 2014, NMFS published the Final Rule amending the hired master
provisions of the IFQ Program for the fixed-gear commercial fisheries for halibut and sablefish
in waters off Alaska. 79 Fed. Reg. 43679 (July 28, 2014). The Final Rule prohibits an initial QS
7 recipient from using a hired master to harvest IFQ derived from catcher vessel QS received by a
8 transfer after February 12, 2010, with a limited exception for small amounts of QS. The Final
9 Rule approves the Amended Regulations, and will be effective on December 1, 2014.
10
11
12
13
14
15
54.
Other than the proposed rule in the Federal Register on April 26, 2013 and the
Final Rule in the Federal Register on July 28, 2014, no other Federal Register notices were
published regarding the proposed rule or the Final Rule, including any notice with respect to the
February 12, 2010 control date.
55.
The Final Rule and Amended Regulations prohibit all initial QS recipients,
16 including Plaintiffs Fairweather Fish and Captain Welsh, from using a hired master to harvest
17 IFQ derived from catcher vessel QS received by transfer after February 12, 2010. As a
18
19
corporation, Fairweather Fish can only harvest its halibut or sablefish QS by using a hired
master. As an otherwise qualified individual with a disability, Captain Welsh can only harvest
20
21
22
his halibut or sablefish QS by using a hired master or, alternatively, being present on board his
vessel when it would be unsafe due to his disability. If the Final Rule is upheld and the
23 Amended Regulations become effective, Plaintiffs Fairweather Fish and Captain Welsh and
24 others similarly situated will be limited and restricted to harvesting only the QS that they
25 acquired prior to February 12, 2010. As a direct result of such limitation and restriction,
26
Plaintiffs Fairweather Fish and Captain Welsh are damaged, inter alia, because they will not be
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1 able to harvest QS acquired after February 12, 2010, because they will not be able to acquire and
2 harvest additional QS, and because the value of QS that they acquired after February 12, 2010
3
will be substantially diminished.
VI.
FIRST CLAIM FOR RELIEF

VIOLATIONS OF THE REHABILITATION ACT
(29 U.S.C. 701 et seq.)
(Asserted by Captain Welsh)
(In the Alternative to the Second Claim for Relief)
6
7
8
9
CAUSES OF ACTION
56.
Plaintiff incorporates paragraphs 1 through 26 and 39 through 55 of this
10 Complaint as if expressly set forth herein.

11
12
13
14
15
57.
Plaintiff Captain Welsh suffers from a disability within the meaning of the
Rehabilitation Act. Captain Welsh is an individual with handicaps who meets the essential
eligibility requirements to participate in and receive the benefits from the IFQ Program, and
therefore he is a qualified individual with handicaps under the Rehabilitation Act and the
16 Department of Commerce Regulations. See 15 C.F.R. 8c.3.

17
58.
Captain Welsh currently is qualified to participate in the IFQ Program. If the
18 Amended Regulations are implemented and the Final Rule is effective, apart from his disability,
19
20
Plaintiff Captain Welsh will be otherwise qualified to participate in the IFQ Program.
59.
The Department of Commerce Regulations govern, inter alia, the IFQ Program.
21
22
23
The Department of Commerce Regulations provide that no qualified individual with handicaps
shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or
24 otherwise be subjected to discrimination under any program or activity conducted by the

25 agency. 15 C.F.R. 8c.30.
26
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60.
2 program or activity under which a person is required to perform services or to achieve a level of
3
4
5
6
accomplishment, an individual with handicaps who meets the essential eligibility requirements
and who can achieve the purpose of the program or activity without modifications in the program
or activity that the agency can demonstrate would result in a fundamental alteration in its nature;
7 (2) With respect to any other program or activity, an individual with handicaps who meets the
8 essential eligibility requirements for participation in, or receipt of benefits from, that program or
9 activity; and (3) Qualified handicapped person as that term is defined for purposes of
10 employment in 29 CFR 1613.702(f), which is made applicable to this part by 8c.40.
11
12
13
14
15 C.F.R. 8c.3.
61.
Defendants improperly apply subsection (1) of the definition of a qualified
individual with handicaps in 15 C.F.R. 8c.3 to exclude disabled individuals from hiring a
15 master to harvest their QS received by transfer after February 12, 2010, and therefore to exclude
16 disabled individuals from fully participating in and benefiting from the IFQ Program. See
17 79 Fed. Reg. 43685. However, the IFQ Program does not require a participant to perform
18
19
services to achieve a level of accomplishment, as provided in subsection (1) of the definition of

a qualified individual with handicaps in the Department of Commerce regulations. 15 C.F.R.
20
21
22
8c.3. The inclusion of qualified individuals with handicaps such as Captain Welsh would
not result in a fundamental alteration in the nature of the IFQ Program. Because the IFQ
23 Program does not fall within subsection (1), Defendants compliance with the Department of
24 Commerce Regulations must be in accordance with subsection (2) of the definition of qualified
25 individuals with handicaps in 15 C.F.R. 8c.3 which states (2) With respect to any other
26
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1 program or activity, an individual with handicaps who meets the essential eligibility
2 requirements for participation in, or receipt of benefits from, that program or activity.
3
4
5
6
62.
Plaintiff Captain Welsh will be denied the full benefit of participating in the IFQ
Program solely by reason of his disability, as a result of the Final Rule and Amended
Regulations, which prohibit him from using a hired master to harvest QS received by transfer
7 after February 12, 2010.

8
63.
Captain Welsh is a qualified individual with handicaps who, as a result of his
9 disabilities, is not able to be on board his vessel during fishing; accordingly, he is entitled to an
10 accommodation pursuant to the Rehabilitation Act by Defendants in the form of a hired master to
11
12
13
14
harvest his IFQ derived from catcher vessel QS.

64.
The Final Rule and Amended Regulations facially discriminate against Captain
Welsh by categorically excluding him and other otherwise qualified individuals with a disability
15 from fully participating in the IFQ Program.

16
65.
The Final Rule and Amended Regulations are discriminatory as applied to
17 Captain Welsh because they deny Captain Welsh the benefit of full participation in the IFQ
18
19
Program solely by reason of his disability as described above.

66.
The IFQ Program is conducted by an Executive agency, namely, NMFS within
20
21
22
23
NOAA, which is a part of the Department of Commerce. The Rehabilitation Act applies to the
IFQ Program and the Amended Regulations.
67.
Captain Welsh was not required to exhaust administrative remedies in this case.
24 Exhaustion of the compliance procedures would be futile in this case because Defendants have
25 already made a final decision. Moreover, judicial economy is best served by proceeding with all
26
claims before a district court.

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68.
The Rehabilitation Act provides a more efficient and fair means to resolve this
2 claim than the APA. The primary issue in this claim is whether Captain Welsh is otherwise
3
4
5
6
7
qualified and excluded from harvesting QS received by transfer after February 12, 2010, because
of his disability a claim that the Department of Commerce is not uniquely qualified to interpret.
Captain Welsh primarily seeks a reasonable accommodation.
69.
Accommodating Captain Welsh, by allowing him to hire a master to harvest his
8 IFQ derived from catcher vessel QS will not be overly burdensome because it will not require
9 significant or fundamental alterations of the IFQ Program.
10
11
12
13
14
70.
By promulgating the Final Rule and approving the Amended Regulations, which
have the net effect of excluding Captain Welsh and otherwise qualified individuals with a
disability from participating in the IFQ Program, Defendants violated the Rehabilitation Act.
71.
By violating Captain Welshs and other qualified individuals rights under the
15 Rehabilitation Act, Defendants are causing substantial harm and irreparable injury for which
16 Captain Welsh and other qualified individuals with a disability have no adequate remedy at law.
17
SECOND CLAIM FOR RELIEF

VIOLATIONS OF THE REHABILITATION ACT AND THE APA
(29 U.S.C. 701 et seq.)
(In the Alternative to the First Claim for Relief)
18
19
20
21
22
23
72.
Plaintiff incorporates paragraphs 1 through 55 of this Complaint as if expressly
set forth herein.

73.
Plaintiff Captain Welsh suffers from a disability within the meaning of the
24 Rehabilitation Act. Captain Welsh is an individual with handicaps who meets the essential
25 eligibility requirements to participate in and receive the benefits from the IFQ Program, and
26
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1 therefore he is a qualified individual with handicaps under the Rehabilitation Act and
2 Department of Commerce Regulations. See 15 C.F.R. 8.c.3.
3
4
5
6
7
74.
Captain Welsh currently is qualified to participate in the IFQ Program. If the
Amended Regulations are implemented and the Final Rule is effective, apart from his disability,
Plaintiff Captain Welsh will be otherwise qualified to participate in the IFQ Program.
75.
The Department of Commerce Regulations govern, inter alia, the IFQ Program.
8 The Department of Commerce Regulations provide that no qualified individual with handicaps
9 shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or
10 otherwise be subjected to discrimination under any program or activity conducted by the
11
12
13
14
agency. 15 C.F.R. 8c.30.

76.
program or activity under which a person is required to perform services or to achieve a level of
15 accomplishment, an individual with handicaps who meets the essential eligibility requirements
16 and who can achieve the purpose of the program or activity without modifications in the program
17 or activity that the agency can demonstrate would result in a fundamental alteration in its nature;
18
19
(2) With respect to any other program or activity, an individual with handicaps who meets the
essential eligibility requirements for participation in, or receipt of benefits from, that program or
20
21
22
activity; and (3) Qualified handicapped person as that term is defined for purposes of
employment in 29 CFR 1613.702(f), which is made applicable to this part by 8c.40.
23 15 C.F.R. 8c.3.
24
77.
Defendants improperly apply subsection (1) of the definition of a qualified
25 individual with handicaps in 15 C.F.R. 8c.3 to exclude disabled individuals from hiring a
26
master to harvest their QS received by transfer after February 12, 2010, and therefore to exclude
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1 disabled individuals from fully participating in and benefiting from the IFQ Program. See
2 79 Fed. Reg. 43685. However, the IFQ Program does not require a participant to perform
3
4
5
6
services to achieve a level of accomplishment, as provided in subsection (1) of the definition of

a qualified individual with handicaps in the Department of Commerce regulations. 15 C.F.R.
8c.3. The inclusion of qualified individuals with handicaps such as Captain Welsh would
7 not result in a fundamental alteration in the nature of the IFQ Program. Because the IFQ
8 Program does not fall within subsection (1), Defendants compliance with the Department of
9 Commerce Regulations must be in accordance with subsection (2) of the definition of qualified
10 individuals with handicaps in 15 C.F.R. 8c.3 which states (2) With respect to any other
11
12
13
14
program or activity, an individual with handicaps who meets the essential eligibility
requirements for participation in, or receipt of benefits from, that program or activity.
78.
Plaintiff Captain Welsh will be denied the full benefit of participating in the IFQ
15 Program solely by reason of his disability, as a result of the Final Rule and Amended
16 Regulations, which prohibit him from using a hired master to harvest QS received by transfer
17 after February 12, 2010.
18
19
79.
Captain Welsh is a qualified individuals with handicaps who, as a result of his
disabilities, is not able to be on board his vessel during fishing; accordingly, he is entitled to an
20
21
22
23
accommodation pursuant to the Rehabilitation Act by Defendants in the form of a hired master to
harvest his IFQ derived from catcher vessel QS.
80.
The Final Rule and Amended Regulations facially discriminate against Captain
24 Welsh by categorically excluding him and other otherwise qualified individuals with a disability
25 from fully participating in the IFQ Program.
26
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81.
The Final Rule and Amended Regulations are discriminatory as applied to
2 Captain Welsh because they deny Captain Welsh the benefit of full participation in the IFQ
3
4
5
6
Program solely by reason of his disability as described above.

82.
The IFQ Program is conducted by an Executive agency, namely, NMFS within
NOAA, which is a part of the Department of Commerce. The Rehabilitation Act applies to the
7 IFQ Program and the Amended Regulations.

8
83.
Defendants are required to disapprove an FMP to the extent it is inconsistent with
9 other applicable law. 16 U.S.C. 1854(a), (b). Defendants approved the Final Rule and
10 promulgated the Amended Regulations.
11
12
13
14
84.
Because the Final Rule has been approved and the Amended Regulations have
been promulgated by Defendants, they are subject to judicial review. 16 U.S.C. 1855(f);
5 U.S.C. 704. Exhaustion of the compliance procedures would be futile in this case because
15 Defendants have already made a final decision. Furthermore, judicial economy is best served
16 by proceeding with all claims before a district court.
17
18
19
85.
Accommodating Captain Welsh by allowing him to hire a master to harvest his
IFQ derived from catcher vessel QS will not be overly burdensome because it will not require
significant or fundamental alterations of the IFQ Program.
20
21
22
86.
By promulgating the Final Rule and approving the Amended Regulations, which
have the net effect of excluding Captain Welsh and otherwise qualified individuals with a
23 disability from participating in the IFQ Program, Defendants actions and failures to act are
24 arbitrary and capricious, and violate the Rehabilitation Act and the APA.
25
26
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87.
Defendants are causing substantial harm and irreparable injury to Captain Welsh
2 and other otherwise qualified individuals with a disability for which they have no adequate
3
remedy at law.
THIRD CLAIM FOR RELIEF

5 VIOLATIONS OF THE MAGNUSONSTEVENS ACT, THE HALIBUT ACT, AND THE
APA IMPERMISSIBLE RETROACTIVE APPLICATION
6
(Asserted by All Plaintiffs)
7
8
88.
Plaintiffs incorporate paragraphs 1 through 55 of this Complaint as if expressly
set forth herein.
9
10
11
89.
Most agencies are precluded from issuing legislative rules with retroactive effect.
A statutory grant of legislative rulemaking authority will not, as a general matter, be understood
12 to encompass the power to promulgate retroactive rules unless that power is conveyed by
13 Congress in express terms. Bowen v. Georgetown, 488 U.S. 204, 208 (1988). In other words, an
14 agency is prohibited from issuing a retroactive legislative rule except in the event that Congress
15
16
17
18
19
has expressly authorized the agency to issue such retroactive legislative rules.
90.
Neither the Magnuson-Stevens Act nor the Halibut Act expressly authorizes the
retroactive application of rules.

91.
The effective date for the Final Rule is December 1, 2014. However, the Final
20 Rule contains a control date of February 12, 2010. This means that, once in effect, the Final
21 Rule retroactively applies to activities that have occurred since February 12, 2010.
22
23
24
25
26
92.
Plaintiffs are initial QS recipients under the IFQ Program. Plaintiffs entered into
contracts for the sale and/or purchase of QS after February 12, 2010 and before July 28, 2014,
with the intention of relying on hired skippers to harvest the QS.
Due to the retroactive
application of the Final Rule and Amended Regulations, Plaintiffs are prohibited from using
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1 hired skippers to fulfill the QS they acquired during the February 12, 2010 to July 28, 2014
2 period.
3
4
5
6
As a result of Defendants actions, omissions, and conduct, Plaintiffs will suffer
substantial harm.
93.
By including a control date in the Final Rule that pre-dates the effective date by
more than four years, and by failing to provide any notice in the Federal Register of the control
7 date prior to July 28, 2014, Defendants have arbitrarily and capriciously engaged in
8 impermissible retroactive rulemaking in violation of the Magnuson-Stevens Act, the Halibut Act,
9 and the APA. Defendants are causing substantial harm and irreparable injury to Plaintiffs for
10 which they have no adequate remedy at law.
11
FOURTH CLAIM FOR RELIEF

VIOLATIONS OF THE UNITED STATES CONSTITUTION
PROCEDURAL DUE PROCESS
12
13
14
15
16
17
18
94.
Plaintiffs incorporate paragraphs 1 through 55 and paragraphs 84 through 93 of
this Complaint as if expressly set forth herein.

95.
The Fifth Amendment to the Constitution of the United States provides, in
pertinent part, that no person shall be deprived of life, liberty, or property, without due process
19 of law.
Due process requires reasonable notice and opportunity to be heard before
20 governmental deprivation of a significant property interest. At a minimum, the notice must be

21 reasonably calculated to afford the affected persons the realistic opportunity to protect their
22 interests.
23
24
25
96.
Plaintiffs have a significant, protectable property interest in QS acquired pursuant
to the IFQ Program. See Foss v. National Marine Fisheries Service, 161 F.3d 584, 588 (1998).
26
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97.
The Final Rule contains a control date of February 12, 2010, which means that the
2 Final Rule retroactively applies to activities that have occurred since that date.
3
4
5
6
98.
Plaintiffs are initial QS recipients under the IFQ Program. Plaintiffs entered into
contracts for the sale and/or purchase of QS after February 12, 2010 and before April 26, 2013,
with the intention of relying on hired skippers to harvest the QS. Because Plaintiffs were not
7 provided reasonable notice of the February 12, 2010 control date, the Final Rule unlawfully
8 deprives Plaintiffs of their protectable QS interests and will otherwise cause Plaintiffs substantial
9 harm.
10
11
12
13
14
99.
As a result of Defendants actions, omissions, and conduct, Plaintiffs have been
denied due process of law in violation of the Fifth Amendment of the Constitution of the United
States.
100.
Defendants actions and failures to act are arbitrary and capricious, violate the
15 United States Constitution and the APA, and are causing irreparable injury to Plaintiffs for which
16 there is no adequate remedy at law.
17
18
19
20
21
22
23
FIFTH CLAIM FOR RELIEF

VIOLATIONS OF THE MAGNUSONSTEVENS ACT, THE HALIBUT ACT,
AND THE APA ARBITRARY AND CAPRICIOUS
(16 U.S.C. 773c(b), (c); 16 U.S.C. 1851(a), 1852(h), 1853(a)(1); 1853a(c); 1854(a), (b))
101.

102.
The Magnuson-Stevens Act requires that any FMP be consistent with the
24 Magnuson-Stevens Act. 16 U.S.C. 1854(a) and (b).

25
103.
The Magnuson-Stevens Act requires, inter alia, that any FMP amendment shall
26 contain the conservation and management measures . . . which are necessary and appropriate for
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1 the conservation and management of the fishery, to prevent overfishing and rebuild overfished
2 stocks, and to protect, restore, and promote the long-term health and stability of the fishery. . . .
3
4
5
6
16 U.S.C. 1853(a)(1); see also 16 U.S.C. 1852(h)(1), 1853a(c)(1)(C).

104.
The Magnuson-Stevens Act further requires that any FMP amendment comply
with national standards, including that conservation and management measures shall be based
7 upon the best scientific information available (National Standard Two) and shall minimize
8 bycatch and, to the extent bycatch cannot be avoided, minimize the mortality of such bycatch
9 (National Standard Nine), and that if it becomes necessary to allocate or assign fishing privileges
10 among various United States fishermen, such allocation shall be fair and equitable and
11
12
13
14
reasonably calculated to promote conservation (National Standard Four). 16 U.S.C. 1851(a).

105.
The Halibut Act requires that regulation of halibut fishing privileges be limited to
what is necessary and reasonably calculated to promote conservation. 16 U.S.C. 773c(b)(1)
15 and (c).
16
106.
Defendants stated justification for the Final Rule is that the transition to an OOB
17 fleet is not occurring with sufficient rapidity. However, transitioning to an OOB fleet does not
18
19
promote conservation and will, among other things, result in increased bycatch because fish
which could be harvested if additional QS could be transferred must now be discarded as
20
21
22
bycatch. Moreover, Defendants fail to explain and support with substantial evidence how an
accelerated transition constitutes a conservation and management measure, how it is
23 necessary and appropriate, or how it is reasonably calculated to promote conservation, as

24 required by the Magnuson-Stevens Act and the Halibut Act.
For example, there is no
25 identifiable standard against which the transition to an OOB fleet can be measured, as the IFQ
26
Program did not specify a desired time frame or milestones or standards to be met. There is also
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1 no rational connection between the facts found and the conclusions Defendants reached. Thus,
2 Defendants assertion that the IFQ Program is failing to meet a non-existent standard is not
3
4
5
6
supported by the necessary evidence, in violation of the Magnuson-Stevens Act and the Halibut
Act, and is arbitrary, capricious, and in excess of statutory authority, in violation of the APA.
107.
Even if accelerated and forced achievement of an OOB standard were a legitimate
7 objective, which it is not, Defendants have conducted no analysis of how, and at what rate, the
8 Final Rule will increase the pace of the transition to an OOB fleet. Defendants explanation for
9 the Final Rule is justified only by speculation and surmise, unsupported by actual facts or
10 analysis, and therefore is likewise in violation of the APA, the Magnuson-Stevens Act, and the
11
12
13
14
Halibut Act.
108.
Defendants purported justification also fails because they have provided no
explanation of how initial IFQ recipients, who were deemed part of the professional fishermen
15 community when they hired skippers to fish initial and subsequently acquired QS, now fall
16 outside that community when they acquire QS after February 12, 2010. Thus, as there is no
17 stated rational connection, supported by substantial evidence, of how these initial IFQ recipients
18
19
suddenly changed status on February 12, 2010, the Final Rule violates the APA, the MagnusonStevens Act, and the Halibut Act.
20
21
22
109.
The Final Rule also violates the Magnuson-Stevens Act, the Halibut Act,
and the APA because it retroactively terminates the existing provisions which allow fishing
23 family corporations to acquire QS and to hire a skipper to fish the QS. See 50 C.F.R.
24 679.42(j)(1).
25
26
110.
Halibut is a bycatch in the sablefish fishery and vice versa. Without the ability to
transfer QS, fishermen must discard otherwise harvestable fish as bycatch. Therefore, contrary
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1 to the Magnuson-Stevens Act and National Standard Nine, the Final Rule does not minimize
2 bycatch or, to the extent bycatch cannot be avoided, minimize the mortality of such bycatch.
3
4
5
6
111.
Contrary to the Magnuson-Stevens Act and National Standard Two, Defendants
have not performed an analysis of the economic impact of the Final Rule on initial QS recipients,
or other fishery participants. Accordingly, the Final Rule is arbitrary, capricious, an abuse of
7 discretion, and in excess of statutory authority, in violation of the APA.

8
112.
9 the Magnuson-Stevens Act, the National Standards, the Halibut Act, or other applicable law.
10 16 U.S.C. 1851(a), 1854(a), (b). By promulgating the Final Rule and approving the Amended
11
12
13
14
15
16
17
18
19
Regulations, Defendants violated the Magnuson-Stevens Act, the Halibut Act, and the APA.
Defendants are causing substantial harm and irreparable injury to Plaintiffs for which they have
no adequate remedy at law.
SIXTH CLAIM FOR RELIEF
VIOLATIONS OF NATIONAL STANDARD FOUR OF THE MAGNUSONSTEVENS
ACT, THE HALIBUT ACT, AND THE APA
FISHING PRIVILEGE ALLOCATION NOT FAIR AND EQUITABLE
(16 U.S.C. 1851(a)(4); 16 U.S.C. 773c(c))
113.
20 this Complaint as if expressly set forth herein.

21
114.
National
Standard
Four
of
the
Magnuson-Stevens
Act
requires
that
22 [c]onservation and management measures shall not discriminate between residents of different
23
24
25
26
States. If it becomes necessary to allocate or assign fishing privileges among various United
States fishermen, such allocation shall be (A) fair and equitable to all such fishermen;
(B) reasonably calculated to promote conservation; and (C) carried out in such manner that no
Smith & Hennessey
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1 particular individual, corporation, or other entity acquires an excessive share of such privileges.
2 16 U.S.C. 1851(a)(4).
3
4
5
6
115.
The Halibut Act likewise provides that [i]f it becomes necessary to allocate or
assign halibut fishing privileges among various United States fishermen, such allocation shall be
fair and equitable to all such fishermen, based upon the rights and obligations in existing Federal
7 law, reasonably calculated to promote conservation, and carried out in such manner that no
8 particular individual, corporation, or other entity acquires an excessive share of the halibut
9 fishing privileges. 16 U.S.C. 773c(c).
10
11
12
13
14
116.
The IFQ Program is required to comply with the Halibut Act and National
Standard Four of the Magnuson-Stevens Act.

117.
The applicable regulations define an allocation as a direct and deliberate
distribution of the opportunity to participate in a fishery among identifiable, discrete user groups
15 or individuals. 50 C.F.R. 600.325(c)(1).

16
118.
The Final Rule and Amended Regulations constitute an allocation.
17
119.
The Final Rule and Amended Regulations prohibit corporations, partnerships,
18
19
associations, and other entities, including Fairweather Fish, from harvesting QS acquired after
February 12, 2010, and from acquiring and harvesting additional QS after February 12, 2010.
20
21
22
23
Fairweather Fish and similar non-individual entities are unfairly and inequitably excluded from
full participation in the IFQ Program.
120.
By refusing to permit otherwise qualified disabled individuals to hire a master to
24 harvest their QS received by transfer after February 12, 2010, the Final Rule and Amended
25 Regulations exclude otherwise qualified disabled individuals, including Captain Welsh, from
26
harvesting their allotted IFQ and from acquiring and harvesting additional QS. Accordingly,
Smith & Hennessey
COMPLAINT- 32
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1 Captain Welsh and similar otherwise qualified disabled individuals are unfairly and inequitably
2 excluded from full participation in the IFQ Program.
3
4
5
6
121.
The Final Rule and Amended Regulations violate the fair and equitable
requirement of National Standard Four of the Magnuson-Stevens Act and the Halibut Act
because they impose significant disadvantages and hardships on non-individual initial IFQ
7 recipients without offsetting positive benefits and fail to accommodate and discriminate against
8 the disabled.
9
122.
10 the National Standards or other applicable law. 16 U.S.C. 1851(a), 1854(a)(1)(A), 1854(a)(3).
11
12
13
14
15
123.
By promulgating the Final Rule and approving the Amended Regulations,
Defendants violated National Standard Four of the Magnuson-Stevens Act, the Halibut Act, and
the Administrative Procedure Act.
124.
These actions and failures to act by the Defendants are arbitrary and capricious
16 and violate National Standard Four of the Magnuson-Stevens Act, the Halibut Act, and the
17 Administrative Procedure Act. Defendants are causing substantial harm and irreparable injury to
18
19
20
21
22
23
Plaintiffs for which they have no adequate remedy at law.

SEVENTH CLAIM FOR RELIEF
VIOLATIONS OF NATIONAL STANDARD ONE OF THE MAGNUSONSTEVENS
ACT AND THE APA FAILURE TO ACHIEVE OPTIMUM YIELD
(16 U.S.C. 1851(a)(1), 1853(a)(3))
125.

25
26
Smith & Hennessey
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126.
National
Standard
One
of
the
Magnuson-Stevens
Act
requires
that
2 [c]onservation and management measures shall prevent overfishing while achieving on a

3
4
5
6
continuing basis, the optimum yield from each fishery. 16 U.S.C. 1851(a)(1).
127.
The Magnuson-Stevens Act defines optimum yield as the amount of fish which
will provide the greatest overall benefit to the Nation, particularly with respect to food
7 production and recreational opportunities, and taking into account the protection of marine
8 ecosystems, and is prescribed as such on the basis of the maximum sustainable yield from the
9 fishery, as reduced by any relevant economic, social, or ecological factor. 16 U.S.C.
10 1802(33)(A)-(B).
11
12
13
14
128.
The IFQ Program is required to comply with the Magnuson-Stevens Act
requirements and National Standard One.

129.
Under the IFQ Program, QS are allotted by geographic area. Fishermen with QS
15 in one area must harvest their QS in that area and may not operate in another area without
16 acquiring QS in that area. In the halibut and sablefish fisheries, it is typical for QS holders to
17 transfer QS so that vessels can be deployed efficiently in various geographic areas. Further, if a
18
19
vessel owner has a crew member aboard who owns QS, it often happens that the combined QS of
the vessel owner and crew members exceeds the harvest cap for the vessel established under the
20
21
22
regulations. In these circumstances, unless the QS can be transferred, it goes unharvested.

Moreover, without the ability to transfer quota, fishermen will not be able to fully harvest halibut
23 and sablefish QS. Halibut is a bycatch in the sablefish fishery and vice versa. This means
24 fishermen unable to obtain QS via transfer must discard the bycatch which they could otherwise
25 retain with transferred quota.
26
Smith & Hennessey
COMPLAINT- 34
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130.
The Final Rule and Amended Regulations will prevent initial QS recipients
2 including Fairweather Fish, Captain Welsh, and other similar entities and/or individuals from
3
4
5
6
transferring QS in order to address vessel cap, geographic, and bycatch issues, which will
prevent the achievement of optimum yield, in contravention of National Standard One.
131.
7 the National Standards or other applicable law. 16 U.S.C. 1851(a), 1854(a), (b).
8
132.
9 Defendants violated National Standard One of the Magnuson-Stevens Act and the
10 Administrative Procedure Act.
11
12
13
14
133.
and violate National Standard One of the Magnuson-Stevens Act and the Administrative
Procedure Act. Defendants are causing substantial harm and irreparable injury to Plaintiffs for

16
17
18
19
20
21
22
EIGHTH CLAIM FOR RELIEF

VIOLATIONS OF NATIONAL STANDARD TEN OF THE MAGNUSON-STEVENS
ACT AND THE APA FAILURE TO PROMOTE SAFETY OF HUMAN LIFE AT SEA
(16 U.S.C. 1851(a)(10), 1853(a)(3))
134.

135.
National Standard Ten of the Magnuson-Stevens Act requires that [c]onservation
23 and management measures shall, to the extent practicable, promote the safety of human life at
24 sea. 16 U.S.C. 1851(a)(10).
25
136.
The IFQ Program is required to comply with the Magnuson-Stevens Act
26 requirements and National Standard Ten.

Smith & Hennessey
COMPLAINT- 35
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137.
By prohibiting Captain Welsh and similar otherwise qualified disabled individuals
2 from employing a hired master to harvest their IFQ received by transfer after February 12, 2010,
3
4
5
6
the Final Rule and Amended Regulations unlawfully fail to promote the safety of human life at
sea. For these disabled individuals to harvest their QS received after February 12, 2010, the
Final Rule and Amended Regulations require that they be on board their vessel in blatant
7 disregard of National Standard Ten.

8
138.
9 the National Standards and other applicable law. 16 U.S.C. 1851(a), 1854(a), (b).
10
11
12
13
14
139.
Defendants violated National Standard Ten of the Magnuson-Stevens Act and the Administrative
Procedure Act.
140.
15 and violate National Standard Ten of the Magnuson-Stevens Act and the Administrative
16 Procedure Act. Defendants are causing substantial harm and irreparable injury to Plaintiffs for
18
NINTH CLAIM FOR RELIEF

VIOLATIONS OF THE MAGNUSONSTEVENS ACT AND THE APA
FAILURE TO COMPLY WITH APPLICABLE LAW
(16 U.S.C. 1854(a), (b))
19
20
21
22
141.

24
142.
Pursuant to the Magnuson-Stevens Act, the Final Rule and Amended Regulations
25 are required to be consistent with applicable law. 16 U.S.C. 1854(a), (b).

26
Smith & Hennessey
COMPLAINT- 36
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143.
For each of the reasons set forth above, and in each of the above outlined claims,
2 the Final Rule and Amended Regulations are inconsistent with applicable law, particularly the
3
4
5
Rehabilitation Act and the United States Constitution, and therefore violate the MagnusonStevens Act.
144.
Defendants decision to promulgate the Final Rule and approve the Amended
7 Regulations is arbitrary, capricious, an abuse of discretion, and/or otherwise not in accordance

8 with law in violation of the APA.
9
VII.
10
WHEREFORE, Plaintiffs respectfully request that the Court:
11
12
PRAYER FOR RELIEF
a.
With respect to Plaintiff Captain Welsh, declare that he is entitled to hire a
master to harvest IFQ derived from catcher vessel QS received by transfer after February 12,
13
14
2010;
b.
15
Declare that Defendants have violated the Rehabilitation Act as described
16 above by excluding otherwise qualified individuals with a disability from participating in the
17 IFQ Program with respect to the Final Rule and Amended Regulations;
18
19
20
21
c.
Declare that Defendants have violated the Rehabilitation Act and the APA
as described above by excluding otherwise qualified individuals with a disability from

participating in the IFQ Program with respect to the Final Rule and Amended Regulations;
d.
22
Declare that Defendants have violated the Magnuson-Stevens Act, the
23 Halibut Act, and the APA in the Final Rule and Amended Regulations based on their
24 impermissible retroactive application as described above;
25
26
Smith & Hennessey
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e.
Declare that Defendants have violated the United States Constitution and
2 the APA by failing to comply with Procedural Due Process requirements when promulgating the
3
Final Rule as described above;
f.
5
6
Declare that Defendants have violated the Magnuson-Stevens Act,
including National Standard Two, the Halibut Act, and the APA as described above by
7 employing an incorrect interpretation of the Magnuson-Stevens Act and the Halibut Act that
8 foreclosed the required analysis and consideration of issues and alternatives, and otherwise failed
9 to comply with applicable law, with respect to the Final Rule and Amended Regulations;
10
11
12
13
g.
Declare that Defendants have violated National Standard Nine of the
Magnuson-Stevens Act as described above by failing to minimize bycatch with respect to the
Final Rule and Amended Regulations;
h.
14
Declare that Defendants have violated National Standard Four of the
15 Magnuson-Stevens Act, the Halibut Act, and the APA as described above by allocating an unfair
16 and inequitable fishing privilege in the Final Rule and Amended Regulations;
17
18
19
i.
Declare that Defendants have violated National Standard One of the
Magnuson-Stevens Act as described above by failing to achieve optimum yield with respect to
the Final Rule and Amended Regulations;
20
j.
21
22
Declare that Defendants have violated National Standard Ten of the
Magnuson-Stevens Act as described above by failing to promote the safety of human life at sea.
k.
23
Declare the Defendants have violated the Magnuson-Stevens Act and the
24 APA, as described above, by failing to comply with applicable law;

25
26
Smith & Hennessey
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l.
Enjoin Defendants from implementing the Amended Regulations and
2 making effective the Final Rule in violation of the Rehabilitation Act, the Halibut Act, the
3
United States Constitution, and the APA;
4
5
6
m.
Vacate the Final Rule implementing the Amended Regulations;
n.
Remand the Final Rule and the Amended Regulations to NMFS for
7 reconsideration and compliance with the Rehabilitation Act, the Magnuson-Stevens Act, the
8 Halibut Act, the United States Constitution, and the APA;
9
o.
Maintain jurisdiction over this action until Defendants are in compliance
10 with the Rehabilitation Act, the Magnuson-Stevens Act, the Halibut Act, the United States
11
Constitution, the APA, and every order of this Court;
12
p.
13
14
expert witness fees; and

q.
15
16
Award Plaintiffs their costs of litigation, including reasonable attorney and
Grant Plaintiffs other such relief as this Court deems proper and just.
RESPECTFULLY SUBMITTED this 30th day of October, 2014.
17
/s/ James A. Smith, Jr.

James A. Smith, Jr., WSBA #5444
18
/s/ Geoffrey P. Knudsen

Geoffrey P. Knudsen, WSBA #1324
19
20
/s/ Julia K. Doyle

Julia K. Doyle, WSBA #43993
SMITH & HENNESSEY PLLC
Seattle WA 98104
Telephone: (206) 292-1770
Facsimile: (206) 292-1790
jas@smithhennessey.com
gknudsen@smithhennessey.com
jdoyle@smithhennessey.com
21
22
23
24
25
26
Smith & Hennessey
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Attorneys at Law
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/s/ George J. Mannina, Jr.

George J. Mannina, Jr., Pro Hac Vice
/s/ Veronica M. Gray

Veronica M. Gray, Pro Hac Vice
3
4
/s/ Jennifer R. Darling

Jennifer R. Darling, Pro Hac Vice
NOSSAMAN LLP
1666 K Street, N.W., Suite 500
Washington, D.C. 20006
Telephone: (202) 887-1400
Facsimile: (202) 366-4215
gmannina@nossaman.com
vgray@nossaman.com
jdarling@nossaman.com
Attorneys for Plaintiffs
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Smith & Hennessey
COMPLAINT- 40
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Attorneys at Law
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Hired Skippers Lawsuit

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Case 3:14-cv-05685-BHS Document 18 Filed 10/30/14 Page 1 of 40

UNITED STATES DISTRICT COURT

FAIRWEATHER FISH, INC., et al.,

FIRST AMENDED COMPLAINT

Plaintiffs Fairweather Fish, Inc., a Washington corporation (Fairweather Fish)

Pritzker, National Oceanic and Atmospheric Administration (NOAA), Kathryn D. Sullivan,

Case 3:14-cv-05685-BHS Document 18 Filed 10/30/14 Page 2 of 40

15 individual entity at any time.

Case 3:14-cv-05685-BHS Document 18 Filed 10/30/14 Page 3 of 40

1 denying Plaintiffs due process of law.

The Final Rule and Amended Regulations violate

Case 3:14-cv-05685-BHS Document 18 Filed 10/30/14 Page 4 of 40

Fairweather Fish and others like it will suffer

Case 3:14-cv-05685-BHS Document 18 Filed 10/30/14 Page 5 of 40

reduction in the price of QS.

Regulations attempt to engage in social engineering by advancing an owner on board standard

23 against otherwise qualified disabled individuals.

JURISDICTION AND VENUE

26 Halibut Act, the United States Constitution, and the APA.

Case 3:14-cv-05685-BHS Document 18 Filed 10/30/14 Page 6 of 40

The Magnuson-Stevens Act provides that actions taken by the Secretary of

Commerce in issuing regulations to implement an FMP shall be subject to judicial review if a

15 promulgated or the action is published in the Federal Register, as applicable. 16 U.S.C.

days of the publication of the Final Rule.

23 (5 U.S.C. 705, 706).

Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(e) because a

Case 3:14-cv-05685-BHS Document 18 Filed 10/30/14 Page 7 of 40

Fairweather Fish, Inc.

Plaintiff Fairweather Fish is a small, family-owned

Fairweather Fish relies on a hired master to harvest its QS.

Captain Ray Welsh. Plaintiff Captain Welsh is an individual residing in Anchor

Case 3:14-cv-05685-BHS Document 18 Filed 10/30/14 Page 8 of 40

2 Secretary of the United States Department of Commerce (Secretary).

National Oceanic and Atmospheric Administration. NOAA is an agency of

Defendant Kathryn Sullivan is the Administrator of

National Marine Fisheries Service.

Defendant NMFS is an agency of the

Eileen Sobeck. Defendant Eileen Sobeck is Assistant Administrator for NMFS,

The Rehabilitation Act.

Section 504 of the Rehabilitation Act states, No otherwise qualified individual

Case 3:14-cv-05685-BHS Document 18 Filed 10/30/14 Page 9 of 40

Agencies may promulgate regulations that implement the requirements

7 concerning the treatment of individuals contained in Section 504.

The Department of Commerce published regulations implementing the

The Rehabilitation Act and the Department of Commerce Regulations apply to

15 involve individuals with handicaps in the United States.).

The Department of Commerce Regulations provide that no qualified individual

23 impairment, or is regarded as having such an impairment. 15 C.F.R. 8c.3.

Case 3:14-cv-05685-BHS Document 18 Filed 10/30/14 Page 10 of 40

7 employment in 29 CFR 1613.702(f), which is made applicable to this part by 8c.40.

The Magnuson-Stevens Act.

Congress enacted the Magnuson-Stevens Act, among other purposes, to conserve

23 was developed). 16 U.S.C. 1852(b), (h)(1).

All FMPs and implementing regulations prepared by the regional fishery

Case 3:14-cv-05685-BHS Document 18 Filed 10/30/14 Page 11 of 40

Case 3:14-cv-05685-BHS Document 18 Filed 10/30/14 Page 12 of 40

In establishing a limited access privilege program, the Council is required, inter

15 the fishery. 16 U.S.C. 1853a(c)(5)(A), (B).

social and economic benefits. 16 U.S.C. 1853a(c)(1)(C). By prohibiting otherwise qualified

Case 3:14-cv-05685-BHS Document 18 Filed 10/30/14 Page 13 of 40

The Halibut Act.

The Secretary of Commerce and the International Pacific Halibut Commission

8 authority of the Halibut Act, 16 U.S.C. 773-773k; 50 C.F.R. 300.60-300.66.