Herring Fishermen Sue Federal Agencies Over Prohibition to Fish Off GGNRA Land

As the federal government and the Drakes Bay Oyster Co. continue their standoff over former U.S. Interior Secretary Kenneth Salazar’s decision to force its closure in West Marin, the agency is facing off with another fishing entity on Marin’s southeastern tip.

The San Francisco Herring Association filed a lawsuit last week in U.S. District Court against the Deptartment of the Interior and the National Park Service to challenge new federal restrictions prohibiting fishermen from catching spawning herring in waters that abut protected Golden Gate National Recreation Area land.

GGNRA Superintendent Frank Dean, who informed the association of the restriction in November 2012, argued that since there is no federal law expressly permits fishing in waters off federal land, fishing is not allowed.
In its lawsuit, in which Dean, new U.S. Interior Secretary Sally Jewell and Park Service Director Jonathan Jarvis are also named, the association retorts that there is no federal law on the books that expressly gives the Interior Department the right to regulate fishing or other activities in the coastal areas in question. 

“For over 40 years, the San Francisco Bay herring fishery and the GGNRA have existed side-by-side,” Stuart Gross, attorney for the fishermen, said in a statement. “Now, inexplicably, the NPS has asserted jurisdiction over the waters abutting the GGNRA and prohibited fishing in those waters. Quite simply, the NPS has no legal authority to do so.”

National Park Service spokesperson Alexandra Picavet declined to comment on the lawsuit or the new restrictions placed upon herring fisherman.

The waters in Marin that are most at issue in the case are those adjacent to an area of land in southeastern Marin that runs from the southern edge of residential development in Sausalito down to the area known as Yellow Bluff and out to just beyond the Golden Gate Bridge.

The case appears to center on whether or not the federal government has the right to regulate the waters adjacent to its lands.

Gross argued that the GGNRA Enabling Act, which established the GGNRA in 1972, “explicitly confines the NPS’ authority in the San Francisco Bay to the ‘the lands, waters and interests therein acquired’ by the NPS’ parent, the DOI. The DOI never acquired any interests in the waters in question that would give the NPS the authority to prohibit commercial fishing or navigation in those waters.”

The complaint (attached at right) alleges that the park service has claimed authority over the waters based on two legislative grants of rights to bottom lands in the Bay made by the California legislature to the U.S. military in the 1800s and a lease from the state of California in the 1980s. 

Gross claims that California constitutional law does not grant the owner of property rights to “bottom lands,” or those at the bottom of a body of water, the right to exclude others from fishing or navigating in the waters above.

“By drawing these boundaries on a map, Congress did not, by fiat, seize rights over the waters and lands within those boundaries and give them to the DOI to administer,” Gross said.

The herring season in the Bay Area begins in January and ends in March, according to the California Department of Fish and Game. The fish spawn in shallow coastal waters in the winter, and fisherman catch pregnant herring with nets as they head into these areas to spawn.

Gross said the restriction could have a detrimental impact on the herring stock, claiming that a limit on the areas they can fish will force them to fish for longer periods of time, thereby increasing the likelihood that they will catch younger herring, which arrive in the Bay as the spawning season progresses.

The Golden Gate National Recreation Area runs from Tomales Bay near Point Reyes through the Marin Headlands and down to Fort Funston south of Ocean Beach. It encompasses most of  southwestern Marin, the southern tip of Marin and western San Francisco beginning at the Presidio.