This is about the NT Net Commercial fishers challenge to the 2015 season which was really a challenge to the Willapa Policy. They loose.



From: Grossmann, Mike (ATG) [MikeG1@ATG.WA.GOV]
Received: May 19, 17:26
To: Unsworth, James W (DFW) [Jim.Unsworth@dfw.wa.gov]
CC: Scott, James B (DFW) [James.Scott@dfw.wa.gov]; Hoffmann, Annette (DFW) [Annette.Hoffmann@dfw.wa.gov]; Herring, Chad J (DFW) [Chad.Herring@dfw.wa.gov]; Thiesfeld, Steven L (DFW) [Steven.Thiesfeld@dfw.wa.gov]; Mcclellan, Barbara A (DFW) [Barbara.Mcclellan@dfw.wa.gov]; Lininger, Tami L (DFW) [Tami.Lininger@dfw.wa.gov]; Frymire, Bill (ATG) [BillF@ATG.WA.GOV]; Shorin III, Joseph (ATG) [JosephS@ATG.WA.GOV]
Subject: WBGA v. WDFW - Judge Dixon rejects all claims and affirms WDFW's actions



Jim,

Just a quick heads up on the litigation brought by the Willapa Bay Gillnetters’ Assn. challenging the Willapa Bay Salmon management policy and the 2015 commercial fishery rules. Bill Frymire and I spent the afternoon in Judge Dixon’s courtroom arguing the merits of their legal challenge. Judge Dixon agreed with the State’s arguments and dismissed all their claims.

In summary:

1. The claims arguing the WB policy looks too much like a rule and is not flexible to accommodate new information that might be provided in rule-making were dismissed on alternate grounds – that we had already litigated this to success in Pacific County; and that, even if the merits of their arguments are considered anew, the Commission and WDFW were acting within their statutory authority to engage in policy and rule-making.

2. The claim WDFW failed to properly consider economic impacts was dismissed on the grounds that conservation trumps economic considerations; that the agency worked hard to consider economic issues where they could do so consistent with conservation; and that general concerns about ways to possibly conduct alternate economic analysis presented by their expert were not sufficient to displace the reasoned economic analysis undertaken by the Department.

3. The claim WDFW improperly reduced the harvest rate on Chinook was rejected on the basis that the Department’s analysis of conservation was thoroughly and well-reasoned, and thus cannot be characterized as arbitrary and capricious.

4. The claim WDFW improperly used emergency regulations to undertake in-season management was dismissed on the basis that WDFW’s actions were consistent with APA requirements on emergency rule-making, were well supported by in-season data collection and analysis, and were thus both lawful and well-reasoned.

Some of the gillnetters were pretty angry. I expect an appeal, but we will see. Judge Dixon was well-prepared and outlined his decision-making in a way that will make success on any appeal a heavy lift for the WB gillnetters.

As always, this was a great team effort. Jim Scott (!!), Chad Herring, and Steve Thiesfeld were huge amounts of help, and the work we/they did with the Commission and DFW staff to anticipate each and every possible argument – from the policy phase to rule formulation - made this case a compelling story of conservation and responsible agency action that considered all interests and made tough but well–reasoned decisions. The story was easy to tell and obviously persuasive to the court.

Tami, please pass along to members of the Commission.

Mike

Michael S. Grossmann
Assistant Attorney General
Fish, Wildlife and Parks Division
P.O. Box 40100
Olympia WA 98504-0100
(360) 586-3550
(360) 586-3454 fax
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