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Peter Van Tuyn (AK Bar No. 8911086) Rebecca L. Bernard (AK Bar No. 0105014) BESSENYEY & VAN TUYN, LLC 310 K St., Suite 200 Anchorage, AK 99501 Telephone: (907) 278-2000 Fax: (907) 278-2004 becca@bvt-law.com Paul Olson (AK Bar No. 0710062) 606 Merrill St. Sitka, AK 99835 Telephone: (907) 738-2400 polsonlaw@gmail.com Attorneys for Plaintiff The Boat Company IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯) THE BOAT COMPANY, ) ) Plaintiff, ) ) v. ) ) REBECCA BLANK, in her official capacity as ) Acting Secretary of the United States ) Department of Commerce; ) ) NATIONAL OCEANIC AND ) ATMOSPHERIC ADMINISTRATION; ) ) NATIONAL MARINE FISHERIES ) SERVICE; and ) ) JAMES W. BALSIGER, in his official ) Capacity as Regional Administrator, Alaska ) Regional Office, NATIONAL MARINE ) FISHERIES SERVICE, ) ) Defendants. ) _______________________________________)

Case No. 3:12-cv-00250-HRH

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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INTRODUCTION 1. The amount of bycatch (non-target and discarded catch) that results from the

deployment of non-selective trawl gear in the Gulf of Alaska trawl fisheries is massive. For example, the mortality of Pacific Halibut and Chinook salmon caused by bycatch in the trawl fishery exceeds the amount of fish harvested by many sport, subsistence and commercial fisheries that use selective gear to target these species. Data collected by at-sea observers “provides the best available scientific information for managing the fisheries and developing measures to minimize bycatch in furtherance of the purposes and national standards of the [Magnuson-Stevens Act].” NMFS, Groundfish Fisheries of the Exclusive Economic Zone Off Alaska and Pacific Halibut Fisheries, Observer Program, 77 FED. REG. 70062, 70062 (Nov. 21, 2012) (“Final Rule”). This case concerns the adequacy of the at-sea observer program used by the National Marine Fisheries Service (“Fisheries Service” or “NMFS”) as the primary means of complying with its legal mandate to monitor bycatch occurring in the groundfish fisheries of the Exclusive Economic Zone off Alaska, which in turn allows the Fisheries Service to comply with its legal mandate to minimize such bycatch. 2. Federal fisheries law requires the preparation of fishery management plans

(“FMPs”) for fisheries occurring in federal waters. FMPs must establish standardized bycatch reporting methodologies (“SBRMs”) to assess the amount and type of bycatch occurring in the fisheries, and must include conservation and management measures that, to the extent practicable, minimize bycatch and the mortality of bycatch. Information collected on the amount and type of bycatch is crucial to devising and implementing conservation policies mandated by law and critical to sustaining coastal communities and healthy ecosystems, recovering protected species, and minimizing the waste resulting from bycatch.

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3.

The Fisheries Service relies exclusively on observers to estimate bycatch of

species such as salmon and halibut by assessing the type and amount of bycatch from observed vessels. The Fisheries Service then uses this information to estimate bycatch for the entire fleet, including unobserved operations and vessels. NMFS, ALASKA GROUNDFISH FISHERIES FINAL PROGRAMMATIC SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT App. F at F-11-16, 17 (2004) (“GROUNDFISH PSEIS”). Where the Fisheries Service determines that observers are critical to bycatch assessment needs, the law requires that the Fisheries Service “establish a mandatory and adequate observer program” in the FMP. Pacific Marine Conservation Council v. Evans, 200 F.Supp.2d 1194, 1201 (N.D. Cal. 2002). 4. On November 21, 2012, the Fisheries Service published regulations implementing

Amendment 76 to the FMP for Groundfish of the Gulf of Alaska, adopted by the North Pacific Fishery Management Council, which restructured the existing observer program for the Gulf of Alaska groundfish fisheries. Final Rule, 77 FED. REG. at 70062 (“Final Rule”).1 The existing observer program required vessels longer than 125 feet to carry observers 100% of the time and vessels between 60 and 125 feet to carry observers at least 30% of the time, 50 C.F.R. § 679.50(c)(1)(iv), (v), and required vessel operators to contract directly with a company that provides the actual observers (“observer providers”). Id. § 679.50(h). 5. The Final Rule expands the existing observer program to cover vessels that are

less than 60 feet length overall and all halibut vessels, and it imposes a new 1.25% ex-vessel value fee on these fishery participants in order to fund this “partial coverage” program. Final Rule, 77 FED. REG. at 70064. Under the Final Rule, the Fisheries Service contracts with the observer providers and develops annual deployment plans to direct the assignment of observers
                                                                                                                        1 The Final Rule also implemented Amendment 86 to the FMP for Groundfish of the Bering Sea and Aleutian Islands Management Area, which similarly restructured the observer program for that area. Id. This Complaint addresses only Amendment 76.

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for partial coverage vessels. Id. at 70063. Vessels in the “full coverage” category continue to contract directly with an observer provider. Id. 6. The Fisheries Service concludes in its National Environmental Policy Act

(NEPA) Environmental Assessment (EA) for the Final Rule that 30% observer coverage is a “performance standard” and a “minimum requirement” to ensure adequate bycatch data collection. NMFS, ENVIRONMENTAL ASSESSMENT/REGULATORY IMPACT REVIEW/INITIAL REGULATORY FLEXIBILITY ANALYSIS FOR PROPOSED AMENDMENT 86 TO THE FISHERY MANAGEMENT PLAN FOR GROUNDFISH OF THE BERING SEA/ALEUTIAN ISLANDS MANAGEMENT AREA AND AMENDMENT 76 TO THE FISHERY MANAGEMENT PLAN FOR GROUNDFISH OF THE GULF
OF ALASKA

xx, 180 (2011) (“EA”). And the stated purpose of the Fisheries Service’s Final Rule

is to reduce statistical bias in observer-collected data and address cost inequities in the existing observer program. Id. at 70062-70063. Yet the Final Rule fails to ensure observer coverage adequate to generate statistically reliable bycatch estimates because, among other problems, it does not prescribe any minimum level of observer coverage and it allows the ex-vessel fee to dictate observer coverage, rather than the other way around. In its first Annual Deployment Plan (“ADP”), which it finalized before publishing the Final Rule which the ADP implements, the Fisheries Service implements an observer coverage rate for 2013 of only 13%, and observer coverage is shifted from larger, higher-impact trawl vessels to smaller, lower-impact selective gear vessels. NMFS, 2013 OBSERVER PROGRAM: NMFS ANNUAL DEPLOYMENT PLAN at 11, 22 (2012). 7. Further, the Fisheries Service has not provided for species-specific and fishery-

specific bycatch monitoring needs. For example, the FMP identifies halibut and salmon as prohibited species that must be avoided by groundfish fisheries at the risk of fishery closures.

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NORTH PACIFIC FISHERY MANAGEMENT COUNCIL, FISHERY MANAGEMENT PLAN FOR GROUNDFISH
OF THE GULF OF ALASKA 39-40 (2012) (“GOA FMP”).

To implement this mandate the FMP

places a strict limit on the amount of prohibited species that can be taken as bycatch -- once the limit is met the directed fishery must stop. Id., App. A at A-5, A-12. The Fisheries Service cannot manage the prohibited species catch without a well-founded observer program. EA at 138-139. 8. The Final Rule also contains a critical loophole; it allows the Fisheries Service to,

on its own initiative and without independent review, avoid deploying adequate levels of observer coverage in any year in which the ex-vessel fee does not provide adequate revenue. The amendment does not require the Fisheries Service to identify alternative methods of achieving adequate coverage levels. Neither does it establish a priority for bycatch data collection when funding shortfalls occur. 9. Without adequate observer coverage, the Fisheries Service will be unable to

acquire statistically reliable bycatch information for the groundfish fisheries. As a result, fisheries managers will not be able accurately to assess how trawl bycatch impacts Alaska’s declining populations of important fish resources targeted by subsistence, recreational, and commercial fishermen. Fisheries managers will not be able to enforce caps on bycatch of prohibited species because the managers will not have statistically reliable information as to the amount and type of the bycatch component of the overall catch in each fishery. Fishery managers also will not be able accurately to assess the impacts on protected species populations or to enforce caps on incidental take levels designed to prevent jeopardy of extinction and allow the recovery of protected species. Thus, the Final Rule restructuring of the observer program is arbitrary.

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10.

The arbitrary restructuring of the observer program also has implications for the

legally-mandated SBRM. In other regions, the Fisheries Service has established an SBRM through formal rulemaking or an amendment to the FMP. See, e.g., Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast Region Standardized Bycatch Reporting Methodology Omnibus Amendment, 73 FED. REG. 4736 (Jan. 28, 2008); Fisheries Off West Coast States, Pacific Coast Groundfish Fishery; Amendment 18, 71 FED. REG. 66122 (Nov. 13, 2006). The Fisheries Service has not, however, clearly established an SBRM for the Alaska Region. 11. In its Final Rule, the Fisheries Service asserted for the first time that the Catch

Accounting System (CAS) described in the FMP for the Alaska groundfish fisheries is the Alaska Region’s SBRM. Final Rule, 77 Fed. Reg. at 70068. The CAS describes a combination of observer data, landing reports and at-sea production reports for multiple management purposes. GOA FMP at 25. It does not, however, provide for fishery-specific or species-specific observer deployments for the purpose of bycatch reporting. 12. Neither the CAS nor the Final Rule, standing alone, establishes an adequate

SBRM. Indeed, if the CAS is the Alaska Region’s effort to comply with the SBRM requirement, which is not at all a given, the Final Rule eviscerates it by failing to ensure collection of statistically adequate bycatch data. Under any scenario, the Fisheries Service is thus in violation of the SBRM requirement of federal fisheries law. 13. An additional flaw in the funding mechanism established by the Final Rule is that

it is based on an EA that assumed observer contract costs of $467 per day. EA at 112. At that rate the 1.25% ex-vessel fee was estimated to generate $4.2 million per year, slightly exceeding the $4 million needed to fund observer coverage at the minimum 30% rate. Id. at 106.

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14.

Before publishing the Final Rule, however, the Fisheries Service entered into a

contract with an observer provider that greatly exceeded the costs estimated in the EA. The Fisheries Service acquired $4.4 million in federal funds for the first year of the program, about the same amount it estimated would be generated each year by the 1.25% ex-vessel fee. 77 FED. REG. at 70083. However, this funding was sufficient to provide for an observer coverage rate of only 13%, less than half the 30% coverage rate the Fisheries Service had determined to be necessary to produce statistically reliable data. ADP at 22. These increased contract costs and reduced observer coverage levels were not analyzed in the EA that formed the basis for the Fisheries Service’s Finding of No Significant Impact (FONSI), nor did the Fisheries Service prepare a supplemental analysis to consider the implications of the new information about the true contract costs. 15. Further, the Fisheries Service’s EA analyzed only those impacts attributable to the

expanded scope of the observer program and the new funding and deployment mechanism, EA at 203, 214, and it failed to analyze the environmental impacts of the specific level and quality of data that actually will be generated by the restructured observer program. The restructured program will generate statistically inadequate data, thus undermining fisheries managers’ efforts to make scientifically sound management and conservation decisions. Because the Fisheries Service’s decision has environmental implications that were not addressed in the EA, its FONSI based on that EA is arbitrary. 16. Because the indirect and cumulative impacts of the Final Rule on affected

fisheries and the marine environment are potentially significant, the Fisheries Service’s decision to prepare a FONSI and not to prepare an EIS was arbitrary.

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17.

The Final Rule thus failed to implement statutory provisions designed to facilitate

science-based management of fishery resources through the collection of statistically adequate data about bycatch. Without statistically adequate data about bycatch, fisheries managers cannot make scientifically sound decisions that will arrest the recent declines in the highly valuable halibut and Chinook populations – declines that have affected and will continue to affect The Boat Company’s recreational halibut and salmon fishing business and conservation programs. The Final Rule also harms The Boat Company’s mission is to develop programs to assist and support the natural environment of southeast Alaska by sponsoring programs aimed at natural resource conservation. In particular, The Boat Company focuses on efforts to stabilize and protect halibut and salmon populations and habitat. Accordingly, The Boat Company brings this lawsuit to compel the Fisheries Service to reconsider the Final Rule, to revise and supplement its environmental analysis, and to revise its restructured observer program to ensure at least 30% observer coverage, which the Fisheries Service has determined is the bare minimum required to generate statistically reliable information on the amount and type of bycatch in the Gulf of Alaska federal fisheries as required to manage them in compliance with controlling law. JURISDICTION AND VENUE   18. This court properly has jurisdiction over this action under 28 U.S.C. § 1331

(federal question) and 28 U.S.C. § 1346 (United States as a defendant). Judicial review is authorized by 16 U.S.C. 1855(f) and 5 U.S.C. § 706 because plaintiff is adversely affected within the meaning of the relevant statutes. 19. The decision giving rise to this complaint was made by the Fisheries Service’s

Alaska region. Venue is proper in this district court pursuant to 28 U.S.C. § 1391(e).

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20.

The Court may issue a declaratory judgment in this case pursuant to 28 U.S.C. §§

2201-2202, and may grant relief pursuant to the Magnuson-Stevens Act, 16 U.S.C. §§ 1861(d) and 1855(f), and the APA, 5 U.S.C. § 706. 21. This action asserts violations of legal mandates contained within the Magnuson-

Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1883; the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4270e; and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706. PARTIES   22. Plaintiff The Boat Company is a tax-exempt, 501(c)(3) charitable education

foundation and Alaska non-profit corporation that was established in 1979 and has operated its vessels in southeast Alaska since 1980. The Boat Company conducts multi-day tours in southeast Alaska aboard two vessels, the 145’ M/V Liseron and the 157’ M/V Mist Cove. Clients sport fish in nine nineteen-foot skiffs deployed from the larger boats. The Boat Company primarily caters to couples and families who have a wide range of interests, including recreational fishing for halibut, salmon and other species. The Boat Company enters into annual contracts with outdoor and fishing equipment company Orvis and is the only Orvis-endorsed cruise fishing operation in the Northern Hemisphere. A primary attraction of The Boat Company’s multi-day tours is that it provides the opportunity for clients whose primary interest is sport fishing to bring along individuals and families who can engage in sport fishing and a full range of other recreational experiences while accompanying the pure sport fisher. The Boat Company’s business cannot attract its targeted clientele without adequate opportunities for sport fishing.

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23.

The Boat Company is concerned about and directly affected by the environmental

consequences of unsustainable fishing practices in Gulf of Alaska trawl fisheries. The Boat Company’s business depends on the Fisheries Service’s ability to count and protect populations of migratory fish species such as halibut and Chinook salmon that are intercepted as bycatch in the trawl fisheries. The Boat Company is injured when fish populations that are targeted by recreational fishermen are depleted to a level that the allowable recreational catch of such fish is reduced, as has happened here. This depletion is caused, in part, by the Fisheries Service’s inadequate bycatch data collection and minimization efforts in the Gulf of Alaska commercial groundfish fisheries. 24. For example, halibut bycatch in trawl fisheries has considerable impact on the

availability of halibut to southeast Alaska target fisheries. NORTH PACIFIC FISHERY MANAGEMENT COUNCIL, PUBLIC REVIEW DRAFT ENVIRONMENTAL ASSESSMENT REGULATORY IMPACT REVIEW/INITIAL REGULATORY FLEXIBILITY ANALYSIS TO REVISE HALIBUT PROHIBITED SPECIES CATCH LIMITS, AMENDMENT 95 TO THE GULF OF ALASKA GROUNDFISH FISHERY MANAGEMENT PLAN 27-28 (2012) (AMENDMENT 95 EA). Over the past five years, the guideline harvest level for southeast Alaska charter fisheries had declined from 1,432,000 net pounds to 788,000 net pounds resulting in progressively more restrictive management measures. Id. at 2. Over a period of five years, regulations have reduced a two-fish bag limit of any size to a onefish limit of any size to a one-fish limit of less than 37 inches. Id. at 51. Meanwhile, the Fisheries Service authorizes trawl fisheries in the Gulf of Alaska to take 3,300,000 million net pounds per year. Id. at 7. The reduced size limit results in disappointed clients who prefer to catch larger fish and the reduced bag limit creates a competitive disadvantage because clients may choose other sport fishing opportunities. In fact, charter operators in other areas with higher

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bag limits aggressively pursue The Boat Company’s targeted clientele by marketing the higher bag limits. 25. The Boat Company advocates for better policies to conserve fishery resources

impacted by trawl bycatch. Its representatives participate in fishery council meetings, International Pacific Halibut Commission meetings and administrative processes related to bycatch minimization measures. Its directors also actively participate in international fishery conservation initiatives, including measures to reduce trawl bycatch. 26. The failure to collect statistically reliable data on the amount and type of bycatch

injures The Boat Company by undermining its ability to attract its targeted clientele, which also undermines its business stability. 27. The Boat Company’s charitable programs fund a broad array of conservation

interests. For over 30 years, The Boat Company has reinvested all residual income beyond its general overhead operating expenses back into conservation, education and other programs that benefit southeast Alaska’s coastal fishing communities. These investments include contributions to salmon enhancement programs that are affected, as the experts agree, by Gulf of Alaska trawl bycatch, albeit to an unknown degree. Consequently, the Fisheries Service’s observer program also injures The Boat Company’s ability to accomplish its broader mission of advocating for management measures that will sustain marine resources for all Alaskans and particularly southeast Alaska coastal fishing communities. 28. The Boat Company and its charitable programs will suffer direct and immediate

injury as a result of the Fisheries Service’s failure to establish an adequate observer program and adequate SBRM that generates statistically reliable data. These interests will continue to be impaired unless the court grants the relief requested herein.

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29.

Defendant Rebecca Blank is Acting Secretary of the United States Department of

Commerce. She is sued in her official capacity as the chief officer of the federal department charged by the United States Congress with managing United States marine fisheries. 30. Defendant National Oceanic and Atmospheric Administration (“NOAA”) is an

agency of the United States Department of Commerce with supervisory responsibility for the National Marine Fisheries Service. The Secretary of Commerce has delegated responsibility for managing United States marine fisheries to NOAA, which in turn has sub-delegated that responsibility to the National Marine Fisheries Service. 31. Defendant National Marine Fisheries Service (“Fisheries Service” or “NMFS”) is

an agency of the United States Department of Commerce that has been delegated the responsibility to manage United States marine fisheries through fishery management plans, plan amendments and regulations implementing those plans and plan amendments. 32. Defendant James W. Balsiger is Regional Administrator for the Alaska Regional

Office of NMFS, which adopted the Final Rule. He is sued in his official capacity. STATUTORY AND REGULATORY BACKGROUND   I. THE ADMINISTRATIVE PROCEDURE ACT   33. The Administrative Procedure Act provides that “[a] person suffering legal wrong

because of agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statue, is entitled to judicial relief thereof.” 5 U.S.C. § 702. “Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to a judicial review.” Id. § 704.

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34.

In an APA suit, the reviewing court shall “hold unlawful and set aside agency

action, findings and conclusions found to be – (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2). II. THE MAGNUSON-STEVENS ACT   35. The Magnuson-Stevens Act established a system for conserving and managing

fishery resources primarily in United States territorial waters and in the exclusive economic zone, which extends from the boundaries of state waters (three miles from shore in Alaska) to 200 miles offshore or to an international boundary with neighboring countries. 36. The Magnuson-Stevens Act created eight regional fishery management councils

and charged them with preparing fishery management plans for all managed species. The North Pacific Fishery Management Council has jurisdiction over federal fisheries in the Gulf of Alaska. 16 U.S.C. § 1852(a)(1)(G). 37. Councils are initially responsible for developing plans and plan amendments for

each fishery “that requires conservation and management” within the councils’ respective geographic areas of authority. Id. § 1852(h)(1). 38. Councils must include in their FMPs or FMP amendments the measures necessary

to conserve and manage particular species of fish. Id. § 1853(a)(1)(A). 39. After developing a plan or plan amendment, the council submits the rule to the

Secretary of Commerce, who, acting through the Fisheries Service, evaluates the rule for consistency with the national standards set forth in 16 U.S.C. § 1851(a), other provisions of the Magnuson-Stevens Act, and any other applicable law. If the Secretary determines that the rule is consistent with all applicable law, the Secretary approves the rule. Otherwise the Secretary may completely, or partially, disapprove the rule. Id. § 1854(a).

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40.

The Magnuson-Stevens Act sets deadlines for the Secretary to approve,

disapprove, or partially approve amendments and promulgate implementing regulations. Id. § 1854(a), (b). 41. The Magnuson-Stevens Act defines “bycatch” as “fish which are harvested in a

fishery, but which are not sold or kept for personal use and includes economic and regulatory discards …” 16 U.S.C. § 1802(2). “Fish” is defined to include all marine life except marine mammals and birds. 16 U.S.C. § 1802(12). 42. Concerned about the significant amount of bycatch and waste occurring in federal

fisheries and recognized that existing measures were not sufficient to address the bycatch problem, Congress amended the Magnuson-Stevens Act in 1996 to add new provisions requiring the Fisheries Service to monitor and minimize bycatch and bycatch mortality. Congress specifically intended for the new measures to apply to North Pacific federal fisheries and imposed additional requirements to lower total discards in Alaska’s fisheries. 16 U.S.C. § 1862(f); S. Rep. No. 104-276, 104th Cong., 2d Sess., 33 (1996). Principal sponsor Senator Ted Stevens stated that the intent of the amendments was to “bring a stop to this inexcusable amount of waste.” 142 Cong. Rec. S10810 (daily ed. September 18, 1996) (statement of Sen. Stevens). 43. The 1996 amendments specifically required that each FMP “establish a

standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery.” 16 U.S.C. § 1853(a)(11). The amendments also required that each Council prepare FMP amendments “[n]ot later than 24 months after the date of the enactment of” the SFA in order to address the bycatch reporting methodology and other new requirements. Section 108(a), (b), Pub. L. 104-297, codified at 16 U.S.C. § 1853 note.

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44.

After the passage of the 1996 amendments, the Fisheries Service prepared,

pursuant to 16 U.S.C. § 1851(b), guidelines to assist regional fishery management councils in developing fishery management plans and promulgated the guidelines as a final rule. 63 FED. REG. 24,212 (May 1, 1998). 45. The guidelines state that bycatch may “impede efforts to protect marine

ecosystems and achieve sustainable fisheries” by increasing the uncertainty as to the amount of removals and by precluding “more productive uses of fishery resources.” 50 C.F.R. § 600.350(2)(b). 46. The guidelines further state that: Councils must – (1) Promote development of a database on bycatch and bycatch mortality to the extent practicable. A review, and where necessary, improvement of data collection methods, data sources, and applications of data must be initiated for each fishery to determine the amount, type, disposition, and other characteristics of bycatch and bycatch mortality for purposes of this standard and of section 303(a)(11) [16 U.S.C. § 1853(a)(11)] and (12) of the Magnuson-Stevens Act. Bycatch should be categorized to focus on management responses necessary to minimize bycatch and bycatch mortality to the extent practicable. When appropriate, management measures, such as at-sea monitoring programs, should be developed to meet these information needs. Id. § 600.350(d). 47. When the Fisheries Service determines that observers are critical to bycatch

assessment needs, it must “establish a mandatory and adequate observer program” in the FMP. Pacific Marine Conservation Council, 200 F.Supp.2d at 1201. III. THE NATIONAL ENVIRONMENTAL POLICY ACT   48. The National Environmental Policy Act (NEPA) requires federal agencies to

analyze the foreseeable environmental impacts, including direct, indirect, and cumulative impacts, of “major Federal actions.” 42 U.S.C. § 4332(2)(C). NEPA requires the analysis and

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consideration of cumulative effects that result from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions. 40 C.F.R. § 1508.25(a). 49. An amendment to an FMP is a major federal action as defined by NEPA. 40

C.F.R. § 1508.18; NOAA Administrative Order 216-6 § 6.01.   50. A federal agency may develop an environmental assessment (EA) in order to

determine whether it is necessary to develop a more detailed environmental impact statement (EIS). 40 C.F.R. § 1501.4. If the agency finds as a result of preparing the EA that there are no significant impacts from the proposed action, it prepares and signs a Finding of No Significant Impact (FONSI). If the agency finds a likelihood of significant impact, it goes on to prepare an EIS.   51. An EA must “provide sufficient evidence and analysis for determining whether”

the project will have a significant impact on the environment. 40 C.F.R. § 1508.9(a)(1). NEPA regulations identify several factors to consider in determining whether an EIS is necessary, including “[t]he degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks[,] … [t]he degree to which the action may establish a precedent … or represents a decision in principle about a future consideration[,] … [w]hether the action is related to other actions with individually insignificant but cumulatively significant impacts,” and whether the action may violate federal environmental laws. 40 C.F.R. § 1508.27(b).   52. For purposes of determining whether to prepare an EIS, “[s]ignificance cannot be

avoided by terming an action temporary or by breaking it down into small component parts.” 40 C.F.R. § 1508.27(b)(7).  

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53.

NOAA guidelines establish more specific guidance for determining whether an

EIS is necessary, including whether the action jeopardizes the sustainability of a target or nontarget species, whether the action may be reasonably expected to adversely affect endangered or threatened species; and whether the action may have substantial cumulative adverse effects. NOAA Administrative Order 216-6 § 6.02. 54. NEPA regulations require that a federal agency prepare a supplemental NEPA

analysis if “[t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns” or if “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c). SUMMARY OF FACTS AND GENERAL ALLEGATIONS   I. THE GULF OF ALASKA FISHERY AND BYCATCH OF HALIBUT AND CHINOOK 55. Halibut is a highly valuable subsistence, recreational, and commercial fish species

that has experienced significant population declines over the past decade. In southeast Alaska, Area 2C, the guideline harvest level for the charter sector has declined from 1,432,000 net pounds to 788,000 net pounds in the past five years and fishery managers have implemented restrictive management measures to keep the sector within its allocation. Amendment 95 EA at 2. According to a recent Council problem statement on halibut bycatch: [T]he total biomass and abundance of Pacific halibut has varied and in recent years the stock has experienced an ongoing decline in size at age for all ages in all areas. Exploitable biomass has decreased 50 percent over the past decade. In recent years, the directed halibut catch limits in the GOA regulatory areas 2C, 3A and 3B have declined steadily. From 2002 to 2011 the catch limit for the combined areas 2C, 3A, and 3B declined by almost 50 percent. Id.

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56.

The Gulf of Alaska is currently the center of halibut distribution. Id. at 18.

Halibut are a highly migratory stock, however, and in general, juvenile and adult halibut migrate southeast along the Alaska coast and beyond to spawn. Id. 57. Despite recent declines in the halibut population, the Fisheries Service has

authorized GOA trawl fisheries to take 3,300,000 net pounds of halibut as bycatch every year since 1990. Id. at 7; GOA FMP, App. A at A-5. 58. Trawl fisheries take three-fourths of the halibut bycatch in the Gulf of Alaska.

INTERNATIONAL PACIFIC HALIBUT COMMISSION, REPORT OF ASSESSMENT AND RESEARCH ACTIVITIES 384 (2011). The International Pacific Halibut Commission (IPHC) scientists believe that bycatch estimates for the Gulf of Alaska are minimum estimates. Id. at 381. The IPHC experts also conclude that low levels of observer coverage undermine the accuracy of the estimates. Id. The Fisheries Service acknowledges current levels of halibut prohibited species catch in the Gulf of Alaska “are poorly understood.” AMENDMENT 95 EA at 114. 59. Alaska’s Chinook (king) salmon fisheries are also troubled. Average sport and

commercial harvestable numbers of Chinook have consistently declined in state targeted fisheries. NORTH PACIFIC FISHERY MANAGEMENT COUNCIL, FINAL ENVIRONMENTAL ASSESSMENT REGULATORY IMPACT REVIEW/INITIAL REGULATORY FLEXIBILITY ANALYSIS TO REVISE CHINOOK PROHIBITED SPECIES CATCH LIMITS IN THE GULF OF ALASKA POLLOCK FISHERY, AMENDMENT 93 TO THE GULF OF ALASKA GROUNDFISH FISHERY MANAGEMENT PLAN 42-43 (2012) (“AMENDMENT 93 EA”). On September 13, 2012, acting Secretary of Commerce Rebecca Blank announced a Chinook salmon fishery disaster for portions of the state of Alaska. 60. The scarce information available indicates that some number of southeast Alaska

Chinook are taken in Gulf of Alaska trawl fisheries. Id. at 123. The Fisheries Service does not

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have enough information, however, on the origins of Chinook taken in its trawl fisheries and cannot estimate the impacts of bycatch on Chinook user groups and stocks. Fisheries of the Exclusive Economic Zone Off Alaska: Chinook Salmon Bycatch Management in the Gulf of Alaska Pollock Fishery; Amendment 93, 77 FED. REG. 42629, 42632 (July 20, 2012). 61. Because some Chinook stocks that traverse through southeast Alaska and are

taken as trawl bycatch in the GOA are listed species under the federal Endangered Species Act, Chinook bycatch in the GOA groundfish trawl fisheries is subject to an incidental take limit of 40,000 Chinook. NMFS, Endangered Species Act Section 7(a)(2) Supplemental Biological Opinion: Supplemental Biological Opinion Reinitiating Consultation on the January 11, 2007 Supplemental Biological Opinion Regarding Authorization of the Gulf of Alaska (GOA) Groundfish Fisheries 3 (January 9, 2012). The trawl fisheries exceeded this limit in at least 2007 and 2010. Id. 62. The Fisheries Service’s most recent supplemental biological opinion on Chinook

take in the groundfish trawl fisheries stated that overall low observer coverage levels were problematic because bycatch estimates were based on extrapolations from observed vessels. Id. at 4. The Fisheries Service anticipated that the restructured program would improve rather than diminish coverage levels under the pre-existing program. Id. at 4-5. II. HISTORY OF THE GOA GROUNDFISH OBSERVER PROGRAM 63. The Fisheries Service implemented an observer program in 1990 with

Amendment 18. 77 FED. REG. at 23328. Amendment 18 required vessels longer than 60 feet to carry observers for a portion of their fishing time and vessels longer than 125 feet to carry observers 100% of the time. GOA FMP at 24 § 3.2.4.1 (2011).

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64.

As the Fisheries Service has found, the quality of the data obtained for the partial

coverage fleet under the 1990 observer program is deficient and of limited utility. NMFS, Groundfish Fisheries of the Exclusive Economic Zone off Alaska and Pacific Halibut Fisheries; Observer Program, 77 FED. REG. 23326, 23328 (Proposed Rule, April 18, 2012). One of the more significant problems is that the partial coverage sector controls when and where to carry observers. Id. at 23328. This means that vessels can engage in non-representative fishing when carrying observers. Stated another way, the non-randomized placement of observers undermines the statistical reliability of the Fisheries Service’s bycatch estimates. Id. at 23330. 65. In October 2010, the North Pacific Fishery Management Council adopted

Amendment 76 to restructure the observer program. 77 FED. REG. 15020. Amendment 76 expanded the partial coverage program to include vessels less than 60 feet in length and all halibut vessels and changed the funding and deployment system for observer coverage under the existing program. 77 FED. REG. at 70063. Amendment 76 provides that “[a]ll vessels fishing for groundfish … may be required to carry one or more observers, for at least a portion of their fishing time.” FMP at 24. The vessels will be “required to carry an observer as determined by NMFS, according to an annual sampling and deployment plan.” Id. 66. On November 21, 2012, the Fisheries Service adopted its Final Rule

implementing Amendment 76. 77 FED. REG. at 70062. 67. The Fisheries Service’s analysis indicated that the agency would implement a

30% coverage level as a “requirement” and a “minimum standard” for the randomized, restructured program. EA at 180. The 30% coverage level was the “least conservative” rate based on previous variance estimates produced by the agency in Bering Sea studies during the 1990s and was below recommended coverage rates defined from past optimization analyses. Id.

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68.

The Final Rule also imposed a new funding mechanism for the partial coverage

fleet, which will now pay an ex-vessel value based fee of 1.25%. 77 FED. REG. at 70064. The Fisheries Service recognized that this approach could yield revenue shortfalls relative to desired amounts of observer coverage. EA at xxi. The Fisheries Service estimated that the 1.25% fee would generate $4.2 million and fund 9,027 days of observer coverage at $467 per day, thus achieving the 30% observer coverage level. Id. at 106, 112. 69. The Fisheries Service finalized its contract with the observer provider nearly two

months before releasing the final rule. NMFS, 2013 OBSERVER PROGRAM: NMFS ANNUAL DEPLOYMENT PLAN, DRAFT VERSION at 3 (2012). The Fisheries Service used $4.4 million in federal start-up funding for the initial contract. 77 FED. REG. at 70083. The funds were sufficient to purchase only 4,134 observer days. ADP at 22. As a result, the observer coverage rate was 13% instead of the required minimum rate of 30%. Id. at 10. In addition, the proposed deployments reduce coverage in the large-volume trawl fisheries and substantially reduce the amount of observed catch from previous levels. Id. at 11, 22. 70. The Fisheries Service explicitly stated that it will “adjust coverage levels for

specific sectors as needed, and within budgetary constraints.” 77 FED. REG. at 60066. The Fisheries Service anticipated that it would reduce coverage levels due to declining prices or fishery harvests. EA at xxi, 70. Consequently, the Final Rule fails to ensure the statistical adequacy of bycatch data because the amount of observer coverage depends on the amount of revenue generated by the ex-vessel value fee, which the Fisheries Service itself recognized would be inadequate.

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71.

Further, the Fisheries Service acknowledged that it would have to prioritize

available observer days based on funding levels but then failed to develop a prioritization process. EA at 70. 72. The Fisheries Service has found that for the GOA groundfish fishery, data

collected by at-sea observers “provides the best available scientific information for managing the fisheries and developing measures to minimize bycatch in furtherance of the purposes and national standards of the [Magnuson-Stevens Act].” 77 FED. REG. at 70062. The Fisheries Service relies exclusively on observers to estimate overall bycatch by observing types and amounts of bycatch from observed vessels, thus allowing Fisheries Service experts to extrapolate this data to estimate bycatch amounts and types for the fishery as a whole. GROUNDFISH PSEIS App. F at F-11-16, 17. Thus, by approving a restructured observer program that fails to ensure the collection of statistically reliable bycatch data, the Fisheries Service has severely impaired its primary means of acquiring such data as federal fisheries law requires it to do. 73. As required by NEPA, the Fisheries Service prepared an environmental analysis

of the restructured observer program before approving the Final Rule. The EA, however, analyzed only those impacts attributable to the expanded observer program and its new funding and deployment mechanism. Id. at 203. The EA did not consider the direct and indirect impacts of this action as they pertain to the effects of the groundfish fisheries on marine resources. Id. The EA also did not consider reasonably foreseeable cumulative negative impacts to marine resources that would result from data deficiencies. Id. at 214-215. In particular, the EA did not assess the statistical reliability of observer data collected at a 13% deployment rate, and the Fisheries Service failed to supplement its environmental analysis to account for the environmental and economic effects of the significant increase in observer contract costs. The

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Fisheries Service also failed to prepare a full environmental impact statement (EIS) despite the potentially significant environmental impacts of failing to collect statistically adequate data on the amount and type of bycatch occurring in the GOA trawl fisheries. FIRST CLAIM FOR RELIEF: THE FISHERIES SERVICE’S PURPORTED STATISTICAL BYCATCH REPORTING METHODOLOGY FOR THE ALASKA REGION IS INCONSISTENT WITH THE REQUIREMENTS OF THE MAGNUSON-STEVENS ACT, IN VIOLATION OF THE MAGNUSON-STEVENS ACT AND THE APA 74. Plaintiff realleges and incorporates by reference the allegations of paragraphs 1-

73 in this First Claim for Relief. 75. In the Federal Register notice adopting the Final Rule, the Fisheries Service stated

in response to comments that “the [Catch Accounting System], which is described in Section 3.2.4.2 … of the GOA FMP … is the NMFS Alaska region’s standardized bycatch reporting methodology.” 77 FED. REG. at 70068. To plaintiff’s knowledge and belief, the Fisheries Service has never before identified the Catch Accounting System (CAS) as the Alaska Region’s SBRM. 76. Section 3.2.4.2 of the GOA FMP covers “catch reporting from multiple data

sources” but neither categorizes bycatch nor initiates data collection methods, sources and applications for each fishery to determine the amount, type and other characteristics of bycatch. 77. Accordingly, the CAS is not an adequate SBRM, and the Fisheries Service is thus

in violation of the Magnuson-Stevens Act and the APA. Oceana v. Locke, 670 F.3d 1238, 12411242 (D.C. Cir. 2011); Oceana v. Evans, 384 F.Supp.2d 203, 232-234 (D.D.C. 2005). SECOND CLAIM FOR RELIEF: THE FINAL RULE FAILS TO ESTABLISH AN ADEQUATE STATISTICAL BYCATCH REPORTING MECHANISM, IN VIOLATION OF THE MAGNUSONSTEVENS ACT AND THE APA

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78.

Plaintiff realleges and incorporates by reference the allegations of paragraphs 1–

77 in this Second Claim for Relief. 79. The Final Rule restructures the existing observer program by adopting a funding

and deployment mechanism that fails to achieve the Fisheries Service’s own performance standard and minimum requirement of 30% observer coverage. 80. Whether standing alone, or as one component of the CAS, which the Fisheries

Service has identified as its Alaska Region SBRM, the observer program is the only measure that strives to characterize bycatch. GROUNDFISH PSEIS, App. F at F-11-16-17; EA at 138-139; Jennifer Cahalan et al., Catch Sampling and Estimation in the Federal Groundfish Fisheries off Alaska, U.S. DEP’T COMM., NOAA TECH. MEMO. NMFS-AFSC-205 at 39 (2010) (“ NOAA TECH. MEMO. NMFS-AFSC-205”). Without this information NMFS cannot estimate bycatch in the Gulf of Alaska groundfish fishery. Id. 81. The Final Rule effectively either creates or amends the Alaska Region SBRM,

and it does so in a manner that is arbitrary and contradicted by the Fisheries Service’s own analyses. 82. The Final Rule links the level of observer coverage to a funding mechanism rather

than coverage levels necessary to generate reliable estimates. The Final Rule is only a funding and deployment mechanism, which is not an adequate SBRM. Oceana v. Locke, 670 F.3d 1238, 1241-1242 (D.C. Cir. 2011); Oceana v. Evans, 384 F.Supp.2d 203, 232-234 (D.D.C. 2005). There is no prioritization process or identifiable standard to guide the Fisheries Service’s judgment when revenue shortfalls occur. 83. Accordingly, the Final Rule fails to establish an adequate SBRM, in violation of

the Magnuson-Stevens Act and the APA.

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THIRD CLAIM FOR RELIEF: THE FINAL RULE AND THE ADP EVISCERATE THE FISHERIES SERVICE’S STATISTICAL BYCATCH REPORTING METHODOLOGY FOR THE ALASKA REGION, IN VIOLATION OF THE MAGNUSON-STEVENS ACT AND THE APA 84. Plaintiff realleges and incorporates by reference the allegations of paragraphs 1-

83 in this Third Claim for Relief. 85. Jointly and separately, the Final Rule and the ADP restructured the existing

observer program by adding a funding and deployment mechanism that fails to achieve the Fisheries Service’s own performance standard and minimum requirement of 30% observer coverage. EA at 180; ADP at 10, 22. 86. To the extent that the CAS is the SBRM, the observer program is the only

component that seeks to characterize bycatch. GROUNDFISH PSEIS, App. F at F-11-16-17; EA at 138-139; NOAA TECH. MEMO. NMFS-AFSC-205 at 39; see Oceana v. Evans, Civ. No. 04-0811, 2005 U.S. Dist. LEXIS 3959 32 (D.D.C. 2005) (observer programs “are an essential component of an adequate bycatch reporting methodology.”). 87. By approving a restructured observer program that fails to meet its own minimum

requirement for adequate observer coverage, the Fisheries Service has rendered a key component of the SBRM inadequate, thereby eviscerating the CAS SBRM. 88. Accordingly, by approving the Final Rule, the Fisheries Service violated the

Magnuson-Stevens Act and the APA. FOURTH CLAIM FOR RELIEF: THE FINAL RULE IS ARBITRARY AND CAPRICIOUS, IN VIOLATION OF THE MAGNUSON-STEVENS ACT AND THE APA 89. Plaintiff realleges and incorporates by reference the allegations of paragraphs 1-

88 in this Fourth Claim for Relief.

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90.

The Final Rule adopts a funding and deployment mechanism for the North Pacific

Groundfish Fishery Observer Program that fails to achieve the Fisheries Service’s own performance standard and minimum requirement of 30% observer coverage. EA at 180; ADP at 22. 91. Accordingly, by adopting the Final Rule, the Fisheries Service acted arbitrarily

and capriciously, in violation of the Magnuson-Stevens Act and the APA. FIFTH CLAIM FOR RELIEF: THE FISHERIES SERVICE FAILED TO ADEQUATELY DISCLOSE AND ANALYZE ENVIRONMENTAL IMPACTS, IN VIOLATION OF NEPA AND THE APA 92. Plaintiff realleges and incorporates by reference the allegations of paragraphs 1-

91 in this Fifth Claim for Relief. 93. The EA analyzed only those environmental impacts attributable to the expanded

scope of the observer program and the new funding and deployment mechanism. EA at 203. It did not specifically consider impacts to fishery resources under the assumption that the effects of fisheries have previously been evaluated. Id. The cumulative effects analysis also failed to consider reasonably foreseeable negative impacts that could accrue from the inadequate level and quality of data. EA at 214. The restructured observer program will generate statistically inadequate data, thus undermining fisheries managers’ efforts to make scientifically sound management and conservation decisions. The Fisheries Service’s decision therefore has environmental impacts that should have been addressed in the environmental analysis. 94. Further, the EA concluded that the new funding mechanism would generate

enough revenue to increase the amount of observer days and enable the Fisheries Service to fund observer coverage at the required minimum 30% rate. EA at 213. The EA failed to analyze the environmental implications of the increased contract costs, which will provide for a decreased

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number of observer days and an observer coverage rate of only 13%. The EA did not assess the statistical reliability of observer data collected at a 13% deployment rate. 95. Accordingly, the EA and FONSI are arbitrary and capricious, in violation of

NEPA and the APA. SIXTH CLAIM FOR RELIEF: THE FISHERIES SERVICE FAILED TO PREPARE A SUPPLEMENTAL ENVIRONMENTAL ANALYSIS, IN VIOLATION OF NEPA AND THE APA 96. Plaintiff realleges and incorporates by reference the allegations of paragraphs 1-

95 in this Sixth Claim for Relief. 97. NEPA regulations require that federal agencies prepare supplemental NEPA

documents if “[t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns” or if “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c). 98. The observer contract cost increase was significant new information that was

more than a minor variation from the cost figures used in the EA. The resulting decrease in proposed coverage levels from a 30% to a 13% actual deployment rate substantially changed the proposed action. The change was not merely a reduced version of previously considered alternatives in terms of the quantity of data. Instead, the change directly bears on the substantive quality of the data acquired through the observer program. 99. The significant decrease in proposed coverage levels will have direct

consequences on the adequacy of the data on which fisheries managers rely to make scientifically sound management decisions, and it is therefore relevant to environmental concerns.

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100.

Accordingly, the Fisheries Service’s failure to supplement its environmental

analysis for the Final Rule was arbitrary and capricious, in violation of NEPA and the APA. SEVENTH CLAIM FOR RELIEF: THE FISHERIES SERVICE FAILED TO PREPARE AN EIS, IN VIOLATION OF NEPA AND THE APA
 

101.

Plaintiff realleges and incorporates by reference the allegations of paragraphs 1-

100 in this Seventh Claim for Relief. 102. The Final Rule will have significant and fundamental indirect and cumulative

impacts on the environment because the data collected by observers will form the scientific basis for major conservation and management decisions for all Gulf of Alaska groundfish fisheries. By failing to ensure the collection of statistically reliable data, the amendment undermines the ability of fisheries managers to make scientifically sound management and conservation decisions, with potentially significant impacts on affected fisheries, ESA-listed Chinook salmon, and the marine environment. 103. Accordingly, the Fisheries Service’s decision not to prepare an EIS was arbitrary

and capricious, in violation of NEPA and the APA. EIGHTH CLAIM FOR RELIEF: THE FISHERIES SERVICE’S APPROVAL OF THE ADP VIOLATES THE APA 104. Plaintiff realleges and incorporates by reference the allegations of paragraphs 1-

103 in this Eighth Claim for Relief. 105. The Fisheries Service finalized the ADP before publishing the Final Rule which

the ADP was intended to implement. 106. It is arbitrary, capricious and contrary to law for the Fisheries Service to

implement a rule before that rule is finalized.

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107.

The Fisheries Service thus violated the APA in approving the ADP. PRAYER FOR RELIEF

WHEREFORE, The Boat Company respectfully requests that the Court:   1. Enter a declaratory judgment that the Final Rule and the ADP violated the MagnusonStevens Act and the APA and that the EA/FONSI violated NEPA and the APA. 2. Remand the Final Rule and the EA/FONSI to the Fisheries Service to develop a standardized bycatch reporting methodology, an adequate funding mechanism for the observer program, and a NEPA analysis that complies with the court’s order. 3. Enter an order awarding The Boat Company its fees, expenses, and costs. 4. Provide such other and further relief as the Court deems necessary, just and proper.

Respectfully submitted,

______________________________________ Rebecca L. Bernard (AK Bar No. 0105014) Peter Van Tuyn (AK Bar No. 8911086) BESSENYEY & VAN TUYN, LLC 310 K St., Suite 200 Anchorage, AK 99501 Telephone: (907) 278-2000 Fax: (907) 278-2004 becca@bvt-law.com Paul Olson (AK Bar No. 0710062) 606 Merrill St. Sitka, AK 99835 Telephone: (907) 738-2400 polsonlaw@gmail.com Attorneys for The Boat Company DATE: December 26, 2012
 

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