Appeals court sides with Wards Cove in sablefish case

Posted: Wednesday, October 16, 2002

ANCHORAGE - An appeals court sided Tuesday with a Seattle-based commercial fishing company that argued it was eligible under federal regulations to harvest both sablefish and halibut.

The Ninth Circuit Court of Appeals was asked whether federal regulations permit a commercial fishing company to qualify to participate in both sablefish and halibut fisheries near Alaska if it fished for only one species during the qualifying time period.

Wards Cove Packing Corp. argued that a lower court erred last March in a ruling favoring the National Marine Fisheries Service.

The district court found that the regulation concerning sablefish and halibut eligibility was ambiguous. Given the ambiguity, the district court found it was appropriate to go with NMFS's interpretation of the regulation.

NMFS had found Wards Cove ineligible to harvest sablefish in the regulated area because during the qualifying period it harvested only halibut. At issue is language in the regulation that describes a qualified person as someone who had "harvested halibut or sablefish," also known as black cod.

In its application, Wards Cove said it made landings for halibut during 1988, 1989 and 1990 - the qualifying years in the regulation - and for sablefish during 1985, 1986 and 1987.

The agency argued in November 1995 that it had used an interpretive rule, adopted since in two other decisions, that clarified that the regulations do not permit a person landing only one type of fish during the qualifying period to later harvest both.

The appeals court noted that the regulation defines a qualified person as someone "that owned a vessel that made legal landings of halibut or sablefish, harvested with fixed gear, from any IFQ (individual fishing quota) regulatory area in any ... qualifying year."

"This language is clear and unambiguous," the court said.

Wards Cove has numerous operations in Southeast, as well as Kodiak and Bristol Bay. David Forbush Jr., vice president for Southeast operations, said this year's season is nearly at an end.

The ruling's impact on next year is uncertain.

The North Pacific Management Council in December 1988 began exploring ways to limit access to the sablefish harvest. It did the same thing for halibut in 1991, recommending the IFQ system the same year.

James Balsiger, NMFS's administrator for the Alaska region, said the agency respects the court's decision.

The decision means an increase of one-quarter of 1 percent in the sablefish quota.

"Although the decision will result in additional quota shares being issued it does not weaken the protections provided to the fishery and the fishermen by the IFQ program," Balsiger said.

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