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Vietnamese Fishermen Ass'n of Am. v. California Dep't of Fish & Game

ELR Citation: 23 ELR 21273
Nos. No. C 91-0778 DLJ, 816 F. Supp. 1468/(N.D. Cal., 02/25/1993)

The court holds that the Magnuson Fishery Conservation and Management Act (MFCMA) preempts a California constitutional amendment prohibiting the use of gill nets for harvesting groundfish south of 38 degrees N. latitude in the federal exclusive economic zone (EEZ) off the coast of California, because the amendment conflicts with the MFCMA which prohibits such equipment only north of that latitude. The MFCMA has been interpreted to allow state regulation of federal waters only where the state law does not conflict with federal law. The Pacific Fisheries Management Council (Council), which governs implementation of the MFCMA in California, made a determination that the amendment in question was not consistent with the MFCMA and a fishermen's association seeks permanent injunction of the regulation. The court holds that where state law directly conflicts with federal law, the state law is preempted. The court holds that the MFCMA expressly prohibits the use of gill nets in the EEZ north of 38 degrees N. latitude and, by its silence, implies that the use of gill nets south of 38 degrees N. latitude is authorized. The court goes on to hold that the portion of the amendment that forbids gill-net fishing in the federal EEZ is preempted, but controls the three-mile state zone in which the MFCMA does not apply. The court holds that the Council's finding is entitled to deference, but does not decide whether it is entitled to res judicata.

Counsel for Plaintiffs
Alan W. Sparer, Anne E. Mudge
Howard, Rice, Nemerovski, Canady, Robertson & Falk
Three Embarcadero Ctr., 7th Fl., San Francisco CA 94111
(415) 434-1600

Counsel for Defendants
John Dratz Jr., Deputy Attorney General
Attorney General's Office
1515 K St., Ste. 511, Sacramento CA 95814
(916) 324-5437