## Facts

- The United States (through NOAA/NMFS enforcement) issued a Notice of Violation and Assessment (NOVA) alleging that Pesca Azteca, a Mexican company operating the Mexican-flag fishing vessel F/V *Azteca 1*, violated the Magnuson-Stevens Fishery Conservation and Management Act (MSA).
- The NOVA alleged that the vessel unlawfully engaged in fishing-related conduct within the U.S. Exclusive Economic Zone (EEZ) without required authorization.
- Pesca Azteca timely requested an administrative hearing before a NOAA Administrative Law Judge (ALJ) to contest the violation and penalty.
- The vessel conducted a purse-seine set near the U.S.–Mexico maritime boundary while targeting tuna.
- Pesca Azteca contended that it caught/encircled the fish in Mexican waters, but that the vessel and/or purse-seine net later drifted into the U.S. EEZ during the course of the operation.
- Rather than killing the fish, Pesca Azteca kept the fish in the purse-seine net and transferred them into a floating net pen located within U.S. waters/EEZ.
- NOAA treated the continued control of fish and gear in the EEZ—and the transfer and holding of fish in the net pen within the EEZ—as regulated conduct amounting to “fishing” and/or unlawful possession under the MSA.

## Issues

1. Whether a foreign-flag purse-seine vessel violates the MSA by engaging in “fishing” or regulated fish-handling conduct in the U.S. EEZ when the fish were initially encircled outside the EEZ but the net and fish drift into the EEZ during the operation.
2. Whether transferring and holding live fish in a floating net pen located in the U.S. EEZ constitutes “fishing” and/or unlawful possession in the EEZ without authorization, even if initial capture occurred in foreign waters.

## Decision

- The ALJ found Pesca Azteca liable for the charged MSA violation based on the vessel’s conduct within the U.S. EEZ.
- The ALJ rejected the argument that drift into the EEZ avoided liability where the vessel maintained control over the net and fish and then transferred the fish into a net pen located in U.S. waters.
- The ALJ concluded that keeping fish in a purse-seine net within the EEZ and transferring/holding them in a net pen in the EEZ fell within the MSA’s regulated scope (including “fishing” and related conduct/possession).
- The ALJ sustained NOAA’s civil penalty assessment; later agency materials indicate the ALJ decision was affirmed on administrative appeal by the NOAA Administrator in 2010.

## Legal Principles

- The MSA uses an expansive definition of “fishing,” reaching not only the initial act of capture but also connected conduct reasonably related to taking, retaining, and handling fish.
- For jurisdiction in the EEZ, the location of the fish and gear during the period of control and handling can matter, not solely the place where the fish were first encircled.
- A “drift” explanation does not bar liability when the vessel continues the operation in the EEZ by keeping fish confined in gear present in the EEZ and making operational choices (such as transferring fish to a net pen) while in U.S. waters.
- In setting civil penalties for commercial violations, NOAA may consider deterrence and the economic benefit of the violation; penalties may be set at levels intended to prevent unlawful conduct from being treated as a routine cost of business.

## Conclusion

In *In the Matter of Pesca Azteca (F/V Azteca 1)*, the NOAA ALJ held that a Mexican-flag purse-seine vessel engaged in regulated fishing-related conduct in the U.S. EEZ when, after drifting into the EEZ, it maintained control over fish in its net and transferred and held the live fish in a floating net pen located in U.S. waters without authorization, supporting NOAA’s liability finding and civil penalty.


In the Matter of Pesca Azteca (F/V Azteca 1), 2009 WL 3721029 (2009)