33 



within the limits of law and our physical ability, to carry them out, 

 to get there. 



Mr. KoPETSKi. I was warned. I am learning about this stuff. But I 

 was told what would happen before it happened by people on the 

 west coast, not in Washington, DC, who know this and said. 



Look, the trawlers are out there. They're going to get a head start. They're going 

 to scoop all this stuff up. There's no way that onshore people are going to get their 

 allocation. It will be gone before they even have a chance to get their nets in the 

 water. 



Mr. KoPETSKi. It happened. 



Mr. Johnson. No; it didn't happen. We stopped them at the 

 100,000 metric tons we intended for them to harvest. 



Mr. KoPETSKi. Because of a technical error? 



Mr. Johnson. Not because of a technical error, but because we 

 took an action to correct a regulation to prevent it from happening. 



Mr. KoPETSKi. But nobody warned you in advance that this 

 would happen? Nobody in Washington, DC or Oregon? 



Mr. Johnson. Congressman, I have to rely on the information 

 that I get from the professional staff. 



Mr. KoPETSKi. The professional staff in this management council 

 don't count, or is it only the professionals inside the Beltway that 

 count? 



Mr. Johnson. The professionals inside the Beltway in this case 

 were in conference with the people in the State of Washington in 

 our regional office about what would happen. 



Mr. KoPETSKi. I'm sorry, Mr. Chairman. 



Chairman Wyden. Just a couple of others. I understood you to 

 say, Mr. Johnson, that if you hadn't made the decision you finally 

 made, you would have been sued, you would have been legally vul- 

 nerable; is that correct? 



Mr. Johnson. I don't know whether we would have been sued. I 

 feel that we would have been legally vulnerable on the record that 

 we have. 



Chairman Wyden. Could you give the subcommittee that legal 

 analysis that was done to justify that point? 



Mr. Johnson. We didn't prepare a legal opinion on that point. 



Chairman Wyden. So, the justification was you would have been 

 legally vulnerable. We're talking about an issue of enormous eco- 

 nomic impact, but no legal analysis was done? You just said, "Well, 

 we're going to get sued, so, we had better make this decision and 

 that's the way it is?" 



Mr. Johnson. Mr. Congressman, our legal office, the NOAA Gen- 

 eral Counsel's Office, has been dealing with issues arising under 

 the Magnuson Act since 1976. 



We have a reasonably good record in defending the actions of the 

 Pacific Fishery Management Council. In fact, we are now engaged 

 in litigation involving the Limited Access Plan. We make a lot of 

 decisions without producing formal written legal opinions, as I am 

 sure almost any Federal agency does. 



It was our judgment that when you have in your own record a 

 statement that undercuts the rationale that must be provided to 

 meet your own regulations, that you are vulnerable in litigation. I 

 am not saying we would have lost, but I felt we would have. 



