December 2, 2002

Robert Treanor Executive Director California Fish and Game Commission P.O. Box 944209 Sacramento, CA 94244-2090

Dear Mr. Treanor and Commissioners:

Re: December 6, 2002 Agenda Item 21: REQUEST OF STEPHEN BENAVIDES, ON BEHALF OF THE KELP FOREST COALITION, INC. FOR THE COMMISSION TO ADOPT A RECREATIONAL PREFERENCE FOR THE NEARSHORE MARINE RESOURCES.

The Recreational Fishing Alliance believes there exists within the law a legislatively mandated preference in favor of recreation users of the nearshore marine resources over the commercial exploitation of same. We believe that at the present time there is insufficient resource to assure a satisfying recreational fishery. As a quasi-judicial body we ask that you take Judicial Notice of the scarcity of resources and the considerable conflict that is highlighted at virtually every Commission meeting. Our request is for clarification and acknowledgement that there exists within the law of the State of California a resource management preference in favor of recreational use of the nearshore resources over the for-profit, commercial exploitation of the public trust marine fishery resources.

Rule of Law:

All statutory numerical references are to the California Fish & Game Code unless otherwise indicated.

"JANUARY 1, 1966 CALIFORNIA FISH AND WILDLIFE PLAN VOLUME I

Summary Chapter 1, major recommendations, page 28, Number 4

4. To give priority to recreational uses where a species or species-group under State jurisdiction is incapable of supporting both the reasonable requirements of the sport fishery and the existing or potential commercial harvest. Where the optimum sustainable harvest of a species or species-group is insufficient to support both the recreational and commercial demands, first priority should be given to satisfying the reasonable and legitimate demands of the recreational fishery; the commercial fishery should be encouraged to use any harvestable surplus remaining after the recreational demand is satisfied;" End quote.

CALIFORNIA FISH AND GAME CODE – MARINE LIFE MANAGEMENT ACT (“MLMA”)

The MLMA, section 7055(c) states,

"Where a species is the object of sport fishing, a sufficient resource shall be maintained to support a reasonable sport use, taking into consideration the necessity of regulating individual sport fishery bag limits to the quantity that is sufficient to provide a satisfying sport."

The MLMA, section 7055(d) states,

"The growth of commercial fisheries, including distant water fisheries, shall be encouraged".

A review of existing research sources indicate no additional regulations or case law has been promulgated with reference to Section 7055.

Application of Current Facts to Existing Law:

The MLMA was passed in response to overwhelming sentiment that the marine resources under State control were in serious peril. When the Legislature added 7055(c) to law it was done with an obvious purpose borrowing extensively from the language of the Fish and Wildlife Plan quoted above. Plain language construction is the fundamental cornerstone of legal interpretation. The language of the Fish and Wildlife Plan and Section 7055(c) are plain and simple and clear. Read at face value they clearly establish that the existence of a commercial business presence in the nearshore may exist only on the surplus bounty in excess of the recreational needs of the public. There is a long history of this preference already evident on the terrestrial portions of public lands where market hunting for virtually all species is proscribed in favor of reserving the resource for exclusively conservation and recreational uses.

Examination of the Legislative History of the statute in question is the second level of inquiry in determining the Legislative intent. Research into the Legislative Digests and Summaries and the preamble of the MLMA show a clear acknowledgement of the danger to the marine environment and the imperative need for the MLMA. The overwhelming value of the marine recreational opportunities for the public is repeated again and again in source documentation. We ask that the Commission take Judicial Notice of these Legislative histories as well.

Commercial fishing interests and the Department of Fish and Game managers have pointed out that Section 7055 (d), directing the encouragement of commercial fisheries, acts as a directive in opposition to the recreational preference we now ask you to confirm. We respectfully submit that there is absolutely no conflict between 7055 (c) and (d). We believe, and the plain reading and Legislative History of the Wildlife Protection Act and the MLMA clearly indicate, that commercial extractive enterprise should be allowed, but only in the presence of a satisfying recreational use of that resource and a clearly identified surplus.

The written and oral evidence you have received in the last few years indicates a profound public dissatisfaction with the current state of the nearshore recreational fisheries. The commercial exploitation of this resource continues despite clearly overwhelming evidence to the fact that there are far too many fishermen and far too few fish. A startlingly clear example of a violation of public trust happened last December when the DFG and the Commission took a portion of the recreational allocation of Cabezon which DFG reported to be unused, and reallocated that unused portion to the commercial businesses who had already fully utilized their initial allocation. Even more disheartening was the subsequent announcement by Commission marine advisor on the CAnearshore listserve, that F&G managers had severely underestimated the extent of both the recreation and commercial take. Both the commercial and the recreational fishermen each took 200% of their initial allocation. Because of this, and other instances of inappropriate action by DFG managers that we ask you to take Judicial Notice that the resource managers do not have the raw, basic information sufficient for them to responsibly discharge their responsibilities.

This same incident also provides a startling example of allocations of finite resources without a clear understanding to the biologic mass and population dynamics, now referred to as Essential Fishery Information under the MLMA. There is overwhelming evidence that the DFG managers do not have the necessary EFI to do the job required by the MLMA. By their own admission, the DFG managers admit they are in the lowest (worst?) Stage level of EFI for many if not all of the nearshore marine species. We believe the MLMA mandates a precautionary approach to resource allocations when EFI is low. With a critical shortage of EFI the reallocation in this instance was a violation of the spirit, if not the law, of the MLMA and a clear example of what some recreational advocates refer to as evidence of a commercial bias on the decision process. Subsequent communications with DFG managers and Commission staff clearly indicate almost complete ignorance or bewilderment of the reasons and circumstances that precipitated this reallocation from unused recreation to commercial extirpation of the balance of the sport allotment. DFG managers do not recognize the concept of a recreational preference and point to a lack of direction and a seeming conflict with the perceived need to perpetuate the business of commercial fishing in the nearshore. This instance is just the most recent of a seemingly long string of similar dissatisfactions with the current allocation process.

Summary

Our concern is clear. Portions of the recreational fishery are in peril and cannot sustain continued use by both the commercial and recreation sectors. The resource continues to suffer from serial depletion of species, especially nearshore finfish species. There is a real and growing danger that the fallout in recreational cutbacks made to keep the commercial industry in place will cause much greater harm to the State than a reduction in commercial fishing. The sportfishing public spends hundreds of millions of dollars. The public continues to endure forced contractions in bag limits and season while a small group of businessmen with a disparate allocation is allowed to deplete the resources and pay little compensation, a real pittance, as its share of the stock assessments and management.

The state of EFI is at the lowest level leaving decisions on some species dependent on a level of information described as speculative, at best. Immediate conservation actions may be necessary for an unknown number of species. Most importantly, there is a great sense of public dissatisfaction with the current state of the recreational fisheries in the California nearshore.

In order to provide clear and unequivocal evidence and direction to the DFG managers and staff and to resolve a critical understanding of the application of Section 7055(c) and the MLMA to allocations between commercial enterprise and recreational uses of our marine resources we respectfully request the following actions by the California Fish and Game Commission:

1. Acknowledge that there exists within the law of the State of California as evidenced by the cited language of the California State Wildlife Plan and more recently codified in F&G Section 7055(c), a resource management preference in favor of recreational use of the nearshore resources over the for-profit, commercial exploitation of the public trust marine fishery resources. 2. Take Judicial Notice of the fact that the fishing public is not enjoying a satisfying recreational share of the marine resources. We ask that you provide guidance and explanation of what the Commission will use as a standard to make this determination in the future. 3. Direct the Department of Fish and Game to prepare options for Commission action in connection with the Nearshore Fishery Management Act regulations which would suspend all commercial nearshore finfish operations as a precautionary measure pending receipt of EFI which shows that a reasonable surplus exists, in excess of that needed to ensure a satisfying recreational fishery. This action to be effective immediately. This has been referred to as “The Washington Alternative”, after the actions taken by fishery managers in Washington State in response to an abrupt decline in nearshore finfish stocks and has been presented for your consideration as Section 2.3;2 of the Draft Nearshore Fishery Management Plan. 4. In the alternative, adopt the compromise position advocated by The Kelp Forest Coalition, Inc. for the past several years. This measure would require the commercial nearshore fishing interests to suspend operations (sunset provision) within two years from enactment unless the commercial businesses can prove by presentation of peer reviewed science that they have paid for, that a harvestable excess over the uses of the recreational uses exists. In addition, under this compromise alternative, the commercial industry would be allocated, and must agree to pay, their fair share of the costs of marine enforcement and resource assessment done by the DFG for the benefit of the for-profit commercial enterprise.

Answers to the above inquiries will go a long way to bridging the current misunderstanding that exists between the commercial, recreation and Department representatives. Direction as to the priorities applied in constructing solutions to the current problems will greatly facilitate communication between all parties. Failing to resolve the conflict between the positions of the various advocate groups can only remain provocative and counterproductive. We think the wishes of the people are clear and await the opportunity to address the Commission and state our case for your action and decision

Sincerely, The Recreational Fishing Alliance, Northern California Chapter

Randy Fry Chairman

The Recreational Fishing Alliance, Southern California Chapter

Joel Greenberg Co-Chairman