[env-trinity] Office of Administrative Law disapproves questionable 'marine protected areas'

[Dan Bacher]

http://blogs.alternet.org/danbacher/2011/09/11/office-of- 
administrative-law-disapproves-questionable-marine-reserves/

http://www.fishsniffer.com/content/1399-office-administrative-law- 
disapproves-questionable-marine-protected-areas.html

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.





640_mlpa_f1.jpg

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.pdfwww.oal.ca.gov.

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 ares 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. 
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://www2.dcn.org/pipermail/env-trinity/attachments/20110911/f557a3ea/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: unknown.jpg
Type: image/jpeg
Size: 212602 bytes
Desc: not available
URL: <http://www2.dcn.org/pipermail/env-trinity/attachments/20110911/f557a3ea/attachment.jpg>