Won: Federal judge sided with fishermen and struck down the “hard caps” rule

Swordfish is one of the most popular types of seafood. It is also a significant source of income for Gary Burke and his family. He runs a family fishing business that makes up 30% to 40% of his income. He is approaching retirement and wants to pass on the business to his son.

Gary is among approximately 20 active swordfish permit-holders in the state, many of whom also have run small, family-owned businesses for generations. And like his fellow fishermen, he loves and cares for the environment he works in and the life it supports. So, for years, these fishermen have worked tirelessly with regulators to reduce the number of other sea animals snagged in their nets.

Despite responsible efforts to sustain both sea life and fishing livelihoods, recent laws threatened to wipe out longtime family-owned businesses, as well as the entire domestic swordfish supply.

California recently passed a law to phase out the remaining permits for swordfish, or drift gill nets, which are the only viable method for commercial swordfishing. This would end swordfishing in the state, even though federal regulations clearly allow the practice.

And federal regulators implemented their own restrictions: so-called “hard caps” on the industry that automatically terminate an entire fishing season or more—for everybody—if the wrong type of animal gets tangled in the nets, even just twice. The new federal rule had big problems: it failed to minimize the negative economic impact on fishermen and their communities, as required by federal fishery law; and it was enacted by officials who were unconstitutionally appointed to their jobs as regulators.

These fishing restrictions supposedly aimed to prevent accidental captures of other animals. However, with plenty of longstanding protections, such as seasonal closures and equipment and observer mandates for boats, unwanted bycatch is minimal. The restrictions would, however, destroy the sustainably caught American swordfish supply. Demand would shift to foreign markets, where environmental accountability and oversight are less stringent. The unintended result: more animals accidentally killed or injured.

To preserve an industry that’s fed Californians and supported their livelihoods for generations, Gary Burke and Fred and Jeff Hepp fought back in federal court. On February 19, 2021, a federal judge sided with them, striking down the hard-caps rule as a violation of existing federal law, which requires that conservation measures must minimize the economic harm to fishermen.

What’s At Stake?

  • California fishermen should have the economic freedom to keep their longtime family businesses and not see their livelihoods forcibly ruined by unnecessary federal regulations.

Case Timeline

March 06, 2020