Office of Administrative Law disapproves questionable 'marine protected areas'

author: 
Dan Bacher

The MLPA Initiative, strongly criticized by grassroots environmentalists, fishermen, Indian Tribes, human rights activists and civil liberties advocates, has violated an array of state, federal and international laws since the process was privately funded by the shadowy Resources Legacy Fund Foundation in 2004.

Office of Administrative Law disapproves questionable 'marine protected areas'

by Dan Bacher

In a victory for opponents of the controversial Marine Life Protection Act (MLPA) Initiative and champions of open and democratic process in California, the Office of Administrative Law on September 2 disapproved the so-called "marine protected areas" (MPAs) for the Southern California coast that were originally slated to go into effect on October 1, 2011.

The California Fish and Game Commission announced that it will discuss "alternative effective dates" for implementation of the marine protected areas at its September 15 meeting in Redding. The Commission delayed the implementation of the fishing closures after OAL informed the Commission that it had additional questions and requests for more information that will require a re-notice of the regulations.

OAL disapproved the regulatory action for the following reasons:

• failure to comply with notice requirements for modification of the regulatory text;

• failure to comply with the 'Necessity' standard of Government Code section 11349;

• failure to include all relied upon documents in the rulemaking file;

• failure to provide the reasons for rejecting alternatives that were considered; and

• failure to adequately respond to all of the public comments made regarding the proposed action.

The 9-page ruling details how each of these areas of state law were violated in the rush by the Commission and MLPA Initiative officials to create "marine protected areas" in a process chaired by Catherine Reheis-Boyd, president of the Western States Petroleum Association (WSPA). George G. Shaw, Senior Staff Council, and Debra N. Cornex, Assistant Chief Counsel Acting Director, for the Office of Administrative Law signed the document.

The ruling emphasizes that the Fish and Game Commission is not exempt from the requirements of the Administrative Procedures Act, regardless of what Commissioners may think.

"The amendment of regulations by the Commission must satisfy requirements established by the part of the APA that governs rulemaking by a state agency," according to the ruling. "Any rule or regulation adopted by a state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure, is subject to the APA unless a statute expressly exempts the regulation from APA compliance (Gov. Code, sec. 11346). No statute exempts the Commission's rulemaking from APA compliance."

The MLPA Initiative, strongly criticized by grassroots environmentalists, fishermen, Indian Tribes, human rights activists and civil liberties advocates, has violated an array of state, federal and international laws since the process was privately funded by the shadowy Resources Legacy Fund Foundation in 2004.

The complete OAL ruling is available at: http://www.oal.ca.gov/res/docs/pdf/disapproval_decisions/2011/2011-0722-04S-DisappDec.pdf.

The request for "Commission guidance" on the effective date of South Coast marine protected areas, due to the OAL decision, is listed as item 12 on the Commission meeting on September 15.

Lawsuit challenges North Central Coast and South Coast regulations

A pending lawsuit filed by members of the Partnership for Sustainable Oceans (PSO), a coalition representing the interests of California's recreational anglers and boaters in the MLPA process, adds further uncertainty to when, if ever, the South Coast regulations will go into effect.

The lawsuit seeks to set aside the MLPA regulations for the North Central and South Coast study regions, citing a "lack of statutory authority" for the Fish and Game Commission to adopt the regulations. In the case of the South Coast regulations, the litigation cites numerous violations of the California Environmental Quality Act (CEQA) in the Commission's environmental review of the regulations.

A hearing on the North Central Coast portion of the case has been set for September 26, 2011 in San Diego. The controversial North Central Coast marine protected areas have been in place since May 1, 2010.

"I'm very pleased that OAL has seen many of the same flaws that we've been seeing alll along in this process," said Bob Fletcher, former president of the Sportfishing Association of California and a plaintiff in the lawsuit. "I don't know what the length of the delay will be, but we're hearing from informed sources that the implementation of South Coast marine protected areas will be delayed until January 1, 2012."

He added that the outcome of their litigation could determine whether or not the fishing closures will ever go into effect.

"It is clear to us that these regulations are the result of a flawed process and should be overturned," said David Elm, chairman of United Anglers of Southern California (UASC), also a plaintiff. "I urge all anglers, and anyone who supports public access to public resources, to join our fight against the MLPA process in the courts by visiting http://www.OceanAccessProtectionFund.org and making a donation today."

Over the past year, recreational fishing groups have scored three court victories in a row against the MLPA Initiative. In June, a San Diego Superior Court judge ruled that two NGOs, the Natural Resources Defense Council and Ocean Conservancy, had no legal right to intervene in the lawsuit by Fletcher, UASC and the Coastside Fishing Club.

Grassroots environmental leaders, including John Lewallen, the co-founder of the Ocean Protection Coalition and the North Coast Seaweed Rebellion, strongly support the litigation against the MLPA Initiative.

“A California Superior Court lawsuit challenging the authority of the state to let the private Resources Legacy Fund Foundation operate a process of setting up Marine Protected Areas (MPAs) in violation of the 1999 Marine Life Protection Act, the California Environmental Quality Act, the Coastal Act, and other state laws deserves the support of all Californians,” said Lewallen.

The three court victories and the OAL decision prove that claims by MLPA Initiative officials and advocates that the process has been "open, transparent and inclusive" are without any basis in fact.

Commission still refuses to acknowledge tribal gathering rights

The privately funded MLPA process to create so-called "marine protected areas," in a classic example of institutional racism and elitism, completely excluded tribal scientists from the MLPA Science Advisory Team. Nor did state officials appointed any tribal representatives on the MLPA Blue Ribbon Task Force until 2010, six years after the privatized process began in 2004 under the direction of Governor Arnold Schwarzenegger, one was finally appointed.

To date, the California Fish and Game Commission has refused to acknowledge tribal gathering rights on the California coast under the MLPA Initiative, a process overseen by a big oil lobbyist, agribusiness hack, real estate executive, coastal developer and other corporate operatives.

“Any attempt to institutionally diminish our right to gather coastal resources is essentially an act of ethnic cleansing,” Yurok Tribal Chairman Thomas O’Rourke said in a news release on June 27. “We depend on these traditions to carry on our culture for the rest of time.”

Under "Option 1" of the preferred alternative for North Coast marine protected areas that the Fish and Game Commission accepted during the June 29 meeting, tribal members sixteen or older would have to show, on the request of a game warden, a state recreational fishing license in addition to a federally recognized Tribal ID - and be limited by state regulations.

The Yurok Tribe said this decision "failed to protect traditional gathering rights."

“I cannot accept the part about the fishing license," said O'Rourke. "The Fish and Game has taken an unjust and patronizing step. No one can separate these resources from our culture.”

Tribal proposals for marine protected areas on the North coast will be discussed at the Commission meeting on Thursday, September 15. The discussion is listed as item 4 on the agenda. The meeting will start at 8:30 a.m. at the Red Lion Hotel, Sierra Room, 11830 Hilltop Drive, Redding (http://www.fgc.ca.gov).

For more information about the Yurok Tribe, go to: http://www.yuroktribe.org.

MLPA Initiative Background:

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

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

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

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

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