Fishermen Against Irresponsible Reallocation, Inc. v. Fish & Wildlife Commission, 2008 Ore. App. LEXIS 1296 (Or. Ct. App. Sept. 24, 2008).

Terra Bowling, J.D.

The Court of Appeals of Oregon upheld two administrative rules limiting the number of crab pots that could be used by commercial fishing vessels. The court held that the Oregon Fish and Wildlife Commission acted within its statutory authority when adopting the rules, because the allocation system was consistent with the legislature’s goal of promoting equitable allocation of available food fish.

Background
The Commission adopted two rules limiting the number of crab pots that could be used in the fishery. Under the rules, the number of crab pots allocated to each permit holder depended on documented landings of Dungeness crab. The rules initially gave operators of small vessels a competitive advantage over larger vessels.
   Commercial fishermen challenged the rules, contending that the Commission was not authorized to implement its own regulatory system for crab pots, because the legislature had its own regulatory system in place. The court had to determine whether the Com­ mission had in fact exceeded its statutory authority in adopting the rules.

Commission’s Authority
The court first examined the legislature’s grant of authority to the Commission. The legislature established the “equitable utilization of available food fish” as one of the food fish management goals of the state.1 The court found that that the crab pot allocation system was consistent with this statutory goal.
   Furthermore, under Ore. Rev. Stat. A7 506.119, the legislature granted the Com­ mission the authority to implement policies and plans for the management of food fish and to promulgate rules to carry out commercial fishing laws. Another statute, Ore. Rev. Stat. A7 508.921 specifically charged the Commission to “establish a system for restricting participation in the Oregon ocean Dungeness crab fishery.”                      Given these statutory grants of authority, the court found that the Commission acted well within its authority in promulgating the rules. “It is not our role to second-guess the quasi-legislative policy decisions of an agency where, as here, such decisions are clearly authorized by the legislature.”2
      The court next looked at the plaintiffs’ contention that the legislature occupied the field of regulating the fishery. The legislature had adopted statutes for the fishery that required individuals to obtain entry permits, established eligibility requirements, and set forth limits on the transfer of vessel permits. Although the legislature had regulated the fishery to some extent, the court found that the regulations were not in conflict. Furthermore, the legislature’s explicit grant of authority to the Commission to establish a system to restrict the fishery was broad enough to allow the Commission to promulgate regulations outside the statutory provisions implemented by the legislature. For these reasons, the court upheld the regulations.

Endnotes
1. Ore. Rev. Stat. A7 506.109(3).
2. Fishermen Against Irresponsible Reallocation, Inc. v. Fish & Wildlife Comm’n, 2008 Ore. App. LEXIS 1296 at *9 (Or. Ct. App. Sept. 24, 2008).