??
Partnership??for??Sustainable??Oceans??Governing??Group:??American??Sportfishing??Association,??Coastside??Fishing??Club,??Southern??
California??Marine??Association,??Sportfishing??Association??of??California??and??United??Anglers??of??Southern??California??
Members:??Berkley??Conservation??Institute,??International??Game??Fish??Association,??Kayak??Fishing??Association??of??
California,??National??Marine??Manufacturers??Association,??Nor???Cal??Kayak??Anglers????
and??Shimano??Sport??Fisheries??Initiative??
??

April 8, 2009

Ms. Cindy Gustafson, President
California Fish and Game Commission
1416 Ninth Street
P.O. Box 944209
Sacramento, CA 94244-2090

Dear President Gustafson:

The Partnership for Sustainable Oceans (PSO) appreciates this opportunity to express our views.
Members of the PSO include the American Sportfishing Association, Coastside Fishing Club,
Sportfishing Association of California, Southern California Marine Association, National Marine
Manufacturers Association, Berkeley Conservation Institute, International Game Fish
Association, Kayak Fishing Association of California, Nor-Cal Kayak Anglers, Shimano Sport
Fisheries Initiative, United Anglers of Southern California and thousands of individual
recreational anglers in the Central Coast and North Central Coast study areas of the MLPA and
throughout California.

As you know, at the request of Gov. Schwarzenegger's Administration, the Partnership for
Sustainable Oceans has been actively and constructively engaged in the implementation of the
Marine Life Protection Act (MLPA). However, we have expressed by letter to Governor
Schwarzenegger and personally to Natural Resources Secretary Mike Chrisman and to you, that
the PSO is very concerned about the availability of financial resources necessary for the Fish &
Game Commission (Commission) and the Department of Fish & Game (DFG) to comply with
the statutory requirements of the MLPA.

Recent meetings with Administration officials have only heightened those concerns. The official
position of the Administration as it has been articulated to us is that no one in the Administration
knows from where the statutorily required funding for scientific monitoring and enforcement will
come, but the process will move ahead at full steam nonetheless.

We remind the Commission of the Administration's actions in 2004 when the MLPA effort was
canceled because of a funding shortfall of $2 million. Secretary Chrisman was quoted then by
the San Jose Mercury News as saying, "This is not about supporting the program,'' Chrisman
said. ``It is about simply not having enough staff or money to do the job right.''

Ms. Cindy Gustafson
April 8, 2009
Page 2
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We suggest to the Commission that California's finances and economy were better in 2005 than
today. We agree with Secretary Chrisman that we need ??? the Commission needs ??? "to do the job
right." Respectfully, we submit to you that we still do not have enough staff or money to do the
job right and this is too important to too many to get wrong.

And that brings us to the Commission's action when you approved the Draft Master Plan
Framework, even while expressing concern about the lack of funding necessary to do the job
right. The following quotes are from the Commission meeting on August 18, 2005 taken directly
from the video recording of the meeting of agenda item # 9. These quotes are intended as a
timely reminder of the Commission's concerns in 2005 and DFG understanding, intent and
commitment regarding the MLPA.

DFG John Ugoretz ??? "The Department is being very clear that at a minimum that [statewide]
network [of MPAs] is one that has equal process, equal implementation, equal enforcement."

Here the meaning is clear: DFG will take the necessary actions to accomplish the scientific
monitoring as recommended by the BRTF in the Draft Master Plan and approved (twice) by the
Commission, and enforcement of all MPAs created. But, to date, some two years after the
Commission adopted the Central Coast MPAs, the science and adequate enforcement is not in
place.

Commissioner Rogers ??? "I have some significant concerns about the framework. I talked to John
Ugoretz about them and other Commissioners. For example, the socioeconomics."

Commissioner Gustafson ??? "Related to the socioeconomics, I have heard through all the public
hearings as well as many of you today talk about the socioeconomic impacts. Working in local
government for the last 25 years of my life I would have to say the regional stakeholders group
are [sic] the best place to identify the goals and specific measurements that need to be looked at
in regards to the socioeconomics. The framework allows for that. I feel comfortable that that is a
huge amount of that process that will happen on the individual areas so I am very comfortable
that you will have stakeholders on those groups that will be articulate spokespeople for those
issues and that when you come back to us for those MPA adoptions that those will be
specifically identified so I am comfortable with that process through the framework."

Both Commissioner Rogers' and President Gustafson's comments indicate that they understood
that adoption of MPAs would negatively impact the economy of California. And without the
science and enforcement, the economic losses are for naught, as they have been thus far on the
Central Coast.

Commissioner Flores ??? "I'm going to support this framework. But beyond that I don't know that
I will support it until either the legislature or the Governor comes up with some funding for this
Department. I think dramatically if you look at today's hearing you've heard over and over
where this Department doesn't have the money. We need people ?Ķ biologists, to collect data,
baseline data so we know whether or not these reserves are working. We don't have that folks."

Ms. Cindy Gustafson
April 8, 2009
Page 3
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Commissioner Rogers ??? "Once again Commissioner Flores has made some very, very fine points
and I strongly suggest to the Department that they take his points to heart, that going forward we
consider very, very carefully his concerns."

Commissioner Flores, supported by Commissioner Rogers, understood then that there were not
the financial resources available to DFG for science and enforcement. Again, at the risk of
recounting the obvious, California's financial picture is exponentially worse today than in 2005.

DFG Ugoretz ??? "We do not have direct costs at this point for science and monitoring. I think ?Ķ
part of the framework includes monitoring plans that will come to you with the
recommendations. And in those monitoring plans there will be cost estimates as well. The
department has added to the process that we will look at the cost of monitoring any proposal and
that will go into the decision making as to whether we even bring it before you."

DFG promised the Commission that you will see detailed monitoring plans and the costs of that
monitoring when you receive MPA proposals and that those proposals bearing prohibitive costs
would not even reach the Commission. That promise has been broken.

Three significant issues are raised by Commissioners in the quotes cited above:

1. Costs for science monitoring and enforcement for each alternative proposal.
2. Detailed monitoring plans for each alternative proposal.
3. Socioeconomic impacts of the alternative proposals.

These matters have not been resolved, yet the Commission adopted the regulations implementing
the Central Coast MPAs. To date, you have not been presented with a detailed monitoring plan ???
and the costs therefore ??? or socioeconomic data for the North Central Coast MPA alternatives.
While you may have been provided the Ecotrust report on the relative impacts of the various
NCC alternative proposals, the Ecotrust report is not, as the report itself declares, a report on
economic impacts on local communities. It is a report on the impact to fishing.

We request that the Fish & Game Commission (FGC) take notice of the history of the MLPA
both in the Legislature and DFG and have an open and candid discussion regarding funding for
MLPA implementation. Being mindful that the Assembly Appropriations Committee in 1999
estimated an ongoing cost of $250,000 per year, the PSO asks how the state got to a program that
will cost at least $34 million per year in perpetuity. As several legislators have requested by way
of letters to the FGC (copies attached), such a discussion should include:

??? Why has the program and associated costs grown well beyond the Legislature's
original intent in 1999?
??? Given the unprecedented structural deficit of California, from where will the financial
resources come that are statutorily required for implementation of the MLPA?

The MLPA requires adaptive management of MPAs and a scientific baseline study and continual
monitoring and enforcement of each MPA is required to achieve that adaptive management.
Ms. Cindy Gustafson
April 8, 2009
Page 4
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Absent such scientific monitoring and enforcement, scientists will not have the data to analyze
the success (or failure) of an MPA to achieve its stated purpose. Without such knowledge, we
believe the implementation of the MLPA will result in the permanent placement of MPAs that
either restrict recreational angling or prohibit it entirely. Not only does that not comply with the
requirements of the MLPA, it arbitrarily and unnecessarily creates additional economic hardship
in California where the current unemployment rate is the highest in the nation at 10.5% and is
expected to rise to 14% by next year according to UC Santa Barbara economists.

Some have suggested to the PSO that if we disagree with the MLPA, then we should change the
law. On the contrary, facts are stubborn things and all we ask is that the statute be implemented
as it is written ??? not on an arbitrary "pick and choose" selective basis as has occurred in the
Central Coast study area.

The Commission has previously adopted regulations implementing MPAs in the Central Coast
study area of the MLPA and currently has before it consideration of adoption of regulations to
implement MPAs in the North Central Coast study area.

The Commission undertakes the adoption of these regulations pursuant to powers delegated by
the Legislature in the Marine Life Protection Act, codified at Fish and Game Code ?? 2850 et seq.
A court would agree that the Commission's MLPA regulatory power arises from, and is
necessarily constrained, by the language of the Act. The MLPA contains express requirements
that limit the Commission's regulatory powers.
?Ģ The Act requires that the reach of regulations to be concomitant with the available
scientific and enforcement resources.
?Ģ The Act requires that the Commission regularly consider changes to the MPAs, an
obligation that cannot be fulfilled in the absence of adequate scientific
monitoring.
The Legislature commanded the Commission to "ensure that California's MPAs have clearly
defined objectives, effective management measures, and adequate enforcement, and are based on
sound scientific guidelines." Fish and Game Code ?? 2853(b)(5). Moreover, implementation was
to be limited "to the extent funds are available." Id., ?? 2859(b). The Commission is without legal
authority under the Act to implement restrictions and closures unless the Commission also
commands the resources to fairly enforce its regulations and, equally important, scientifically
monitor the effect of its regulations. Otherwise, the Commission acts to the detriment of
recreational opportunities and contrary to statute. A court would not permit this.
The Legislature commanded that the Commission "annually until the master plan is adopted ?Ķ
promptly act upon petitions ?Ķ to add, delete, or modify MPAs, favoring those petitions that are
compatible with the goals and guidelines" of the Act. Fish and Game Code ?? 2861(a). Inherent in
the Commission's obligation is its ability to evaluate the performance of MPAs in view of the
Act's goals and guidelines. Yet the Commission lacks the legal competence to evaluate the
MPAs it has already designated because the State lacks sufficient monitoring resources. This is
Ms. Cindy Gustafson
April 8, 2009
Page 5
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because the Commission's regulatory reach has exceeded its grasp of scientific and enforcement
resources.
By pursuing the current course of action with regard to the MLPA, the Commission is exposing
itself to litigation and, frankly, invites such litigation.
Now we have been accused of trying to abruptly end this program. On the contrary, we're just
trying to ensure that the state fulfills a commitment to us that the MLPA would be implemented
in a fair, transparent, science-based fashion. We've always known that our membership would
bear the brunt of the financial losses caused by fishing prohibitions, but we agreed to engage in
the process based on the promise of scientific research and knowledge that would benefit our
natural ocean resources. We have not reneged on our commitment to the process ??? the state has.

Further, it's been suggested that MPAs are needed immediately in order to protect ailing fish
populations. However, in the decade since the MLPA was enacted, California's fisheries have
been recovering without marine protected areas, as is evidenced in groundfish stock assessments.
As a matter of fact, according to the National Marine Fisheries Service, as of the end of 2008
overfishing has ended in all but two Pacific stocks ??? Yellowfin and Bigeye tuna, which would
not benefit from MPAs. And the efforts of the Pacific Fishery Management Council and the CA
Department of Fish and Game to protect and rebuild various groundfish stocks are working.
With the exception of salmon, which has its own set of challenges and have been deemed to not
benefit from MPAs, we are no longer in danger of a fisheries crisis in California. Specifically,
among those fishes likely to benefit from MPAs, none of the Pacific Coast groundfish stocks are
experiencing overfishing in accordance with the Magnuson Stevens National Standard 1
requirement that "conservation and management measures shall prevent overfishing."
Consequently all of the Pacific Fishery Management Council's groundfish management measures
"reflect harvest rates below the overfishing threshold and include precautionary reductions to
rebuild overfished stocks as soon as practicable .."

In closing, we urge the Commission's compliance with statute. In keeping with Secretary
Chrisman's requirement, the Commission must "do the job right."

Thank you for considering our views.

Sincerely,

Gordon Robertson, Vice President Bob Franko, Chairman
American Sportfishing Association Coastside Fishing Club

Doug Knecht, Board of Directors Ken Franke, President
Southern California Marine Association Sportfishing Association of California

Steve Fukuto, President
United Anglers of Southern California

cc: Governor Arnold Schwarzenegger
Ms. Cindy Gustafson
April 8, 2009
Page 6
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Secretary Mike Chrisman, Natural Resources Agency
Director Don Koch, Department of Fish & Game
Members of the California Assembly and Senate
Members, California Fish & Game Commission
Members, MLPA Blue Ribbon Task Force
Executive Director John Carlson, Fish & Game Commission
Executive Director Ken Wiseman, MLPA Initiative??