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Commercial Fisheries News
Volume 32 Number 9
May 2005
Amendment 13 findings:
What the court said
Case: Oceana Inc. et al. vs. Donald Evans et al.
Court: US District Court for the District of Columbia
Judge: US District Judge Ellen Segal Huvelle
Decision date: March 9, 2005
Footnotes: This decision was rendered on three, separately filed lawsuits that Judge Huvelle considered as a whole. The Conservation Law Foundation (CLF) and the Natural Resources Defense Council (NRDC) were co-plaintiffs in one suit and, in the case excerpts below, the court refers to these plaintiffs simply as CLF. Oceana filed another suit, and the Trawlers Survival Fund (TSF) filed the third. References to “the council” mean the New England Fishery Management Council. Donald Evans, then-secretary of commerce, was the lead defendant.
Acronyms:
F = fishing mortality;
MSY = maximum sustainable yield;
OY = optimum yield;
NEPA = National Environmental Policy Act;
EIS = environmental impact statement;
APA = Administrative Procedure Act;
SAPs = special access programs;
TMGC = Transboundary Management Guidance Committee, with joint
US/Canada membership;
EFH = essential fish habitat;
SFA = Sustainable Fisheries Act, which amended the Magnuson-Stevens Fishery Conservation and Management Act in 1996; and
HAPC = habitat area of particular concern.
Excerpts: Here are the court’s major findings.
CLF alleged: Amendment 13 violated the Magnuson-Stevens Act because it allowed overfishing to continue.
Court found: “Plaintiffs argue that the secretary acted unlawfully by authorizing the phased program, which temporarily allows continued overfishing for five species. ... In fact, the plain language of the statute makes clear that overfishing need not be ended instantaneously, and given this statutory framework, the court cannot conclude that a phased approach that permits overfishing in the early years contravenes the Magnuson-Stevens Act.
“Furthermore, it was permissible for the secretary to take into account ‘the needs of fishing communities’ in establishing the rebuilding framework and in setting the timetable for ending overfishing. ... Insofar as various plans achieve similar conservation results, the approach least economically disadvantageous for fishing communities is the preferable alternative.
“The secretary may therefore allow overfishing for a time in order to take account of fishing communities’ needs, so long as, inter alia (meaning “among other things”), the Magnuson-Stevens Act’s conservation goals are achieved and the MSY amount by weight is never exceeded and OY is achieved on average.
“It necessarily follows that the phased approach adopted by Amendment 13, which puts off for several years the greatest economic impact on fishing communities, is a proper means of achieving the conservation goal of ending overfishing and rebuilding stocks while simultaneously minimizing economic harm to fishermen and harvesting OY from other (not overfished) stocks.
“The court therefore concludes that it must defer to the secretary’s decision that the phased alternative is reasonable and that overfishing need not be immediately terminated.”
CLF alleged: Amendment 13’s management measures “are unlikely to limit fishing mortality to the target level.”
Court found: “In short, Fmsy is not, contrary to CLF’s argument, a statutory baseline; rather, MSY harvest amount is the cap established by statute. And the council has substantial discretion in estimating the MSY cap and OY target for any given stock.
“Since the legality of the actual MSY figures by weight that were adopted by Amendment 13 is not at issue, plaintiffs’ challenge to the Amendment 13 timetable for ending overfishing must fail because their challenge relies on the faulty premise that the Magnuson-Stevens Act applies to the Fmsy rate, when in fact it applies only to the MSY amounts.”
CLF alleged: The Amendment 13 rebuilding program for overfished stocks did not have at least a 50% chance of success. The closed area model (CAM) used by the council to assess the effectiveness of Amendment 13’s management measures had “no established degree of certainty.”
Court found: “(T)he fact that a given model has some imperfections does not prevent it from constituting the ‘best scientific information available.’ CLF, by failing to offer an alternative for evaluating the management measures, cannot show that CAM was not the best scientific evidence available.
“And indeed, the CAM –- within the parameters the secretary set for it –- fulfilled its purpose, predicting that the combination of (area closures, days-at-sea restrictions, and trip limits) would achieve the desired F rates for all but one species in the FMP’s first year of implementation.
“Moreover, it predicted that the remaining species – witch flounder – would achieve its target F rate by 2006.
“Thus, the model’s admitted imperfections could lead to the opposite result from that predicted by plaintiffs: the measures adopted based upon the CAM may prove more effective than predicted by the model.”
CLF alleged: Amendment 13’s measures could not reasonably be expected to have a 50% probability of success because the new measures simply recycle old ones that have failed before.
Court found: “There are two problems with plaintiffs’ argument: first, their claim that past management efforts have been unsuccessful focuses too narrowly on a limited number of species to the exclusion of the significant improvements that have been accomplished in the fishery as a whole.
“Second, the past techniques that led to disappointing results have been substantially redesigned, and therefore, it cannot be assumed that the past failures will be repeated.”
CLF alleged: The defendants violated NEPA and the secretary’s own NEPA-implementing regulation by failing to consider sufficient alternative measures and for failing to adequately inform the public of significant environmental impacts of a major federal action.
Court found: “Particularly in light of the enormous regulatory undertaking that resulted in Amendment 13, it would have been nearly impossible to produce a ‘simple’ overview. ... Accordingly, the court will not ‘fly speck’ the EIS. Rather, the court assesses ‘whether there is a reasonable, good faith, objective presentation of the topics.’
“In the instant case, the secretary has met that standard. ... In short, the secretary took the required ‘hard look’ at the environmental consequences of his choices.”
Trawlers Survival Fund alleged: Amendment 13 violated the APA and the Magnuson-Stevens Act because the secretary “so materially changed the regulations from those approved by the council” that they were not subject to proper review procedures. The secretary deleted SAPs proposed by the council and the ability to fish inside and outside the Western US/Canada Management Area on the same trip, among other measures.
Court found: “Framework 40A implements the specific measures that plaintiff claims were improperly excluded from Amendment 13. Framework 40A has eliminated the economy injury ... and, therefore, these claims must be dismissed as moot.”
Trawlers Survival Fund alleged: The secretary illegally deviated from the policies proposed by the council in Amendment 13 by phasing in F rate reductions faster than proposed by the council and by applying the TMGC’s hard TAC for Georges Bank yellowtail flounder rather than the council’s.
Court found: “These arguments lack factual support. The record plainly shows that the secretary adopted the very recommendations made by the council.” TSF focused on the transcript of the council’s Nov. 6, 2003 meeting, which it viewed as the final discussion for Amendment 13. “This ignores the fact that the council’s actual proposal to the secretary came in the form of Amendment 13 itself, which was submitted on Dec. 1, 2003.
“The council clearly demonstrated its intent to leave the computation of various final figures (regarding F rate reductions) to its PDT. In the end, the F targets being phased in by the secretary are precisely those adopted by the council in its final version of the amendment as submitted to defendants.
“Similarly, plaintiff’s objection to the secretary’s implementation of a 6,000 mt hard TAC for yellowtail flounder must be rejected because the council adopted that very TAC (in lieu of its initial consideration of 11,713 mt) on Jan. 28, 2004. The secretary reasonably incorporated this revision into the version of Amendment 13 published for public notice and comment in the Federal Register the following day.”
Trawlers Survival Fund alleged: The secretary acted illegally by giving the regional administrator authority to implement the TMGC’s hard TACs in the event that the numbers differ from those recommended by the council. This was not part of Amendment 13.
Court found: “TSF’s objection is well taken. Amendment 13 ... made clear that the council had to approve the TMGC’s annual recommendations before they could be implemented. In effect, the challenged regulation allows the secretary to do an end run around the council.
“Given the council’s broad endorsement of the US/Canada Understanding, as well as the council’s demonstrated track record of adopting the TMGC’s proposed TACs, it may be true that the regional administrator would not have cause to overrule the council. ... This improbability, however, does not cure the problem. Therefore, the court grants summary judgment in favor of TSF.”
Oceana alleged: The secretary violated the Magnuson-Stevens Act, NEPA, and the APA by “not adequately evaluating sufficiently large geographic areas for closure to fishing in order to protect EFH.”
Court found: “(T)he record establishes that closing areas is indeed an effective means of protecting EFH, but it cannot be read to support the conclusion that such measures must be the primary focus of such efforts.
“While it is true, as argued by Oceana, that a report of a NMFS-sponsored conference found that spatial closures are ‘an important tool to minimize gear impacts on habitat ... the report also recognized that other methods are likewise important, including effort reduction ... and gear modification.
“Furthermore, plaintiff’s contention that area closures must be the focal point of EFH protection measures is contradicted by the findings of the National Research Council, which concluded that effort reduction, not area closures, is the ‘cornerstone’ for mitigating the adverse effects of trawls and dredges on seafloor habitat.
“Therefore, the court cannot conclude that the range of alternatives should be limited to a spectrum of closures.”
Oceana alleged: The secretary did not look at an adequate range of alternatives to protect EFH.
Court found: “In stark contrast to the three options considered in (a previous EFH lawsuit led by the American Oceans Campaign, which later merged with Oceana), defendants in this case evaluated 23 separate EFH protection alternatives, many with numerous sub-options. Among these were 10 different closure alternatives.
“Based on this record, the court must conclude that the secretary considered adequate alternatives that included area closures as a constituent part of a comprehensive solution for protecting EFH.”
Oceana alleged: Amendment 13 unlawfully failed to create any additional HAPCs.
Court found: “HAPCs are not even addressed by the SFA; rather, they are a creature of the secretary’s regulations. The secretary did not act arbitrarily in failing to designate HAPCs in Amendment 13 because such designations are discretionary, not obligatory.”
Oceana and CLF alleged: Amendment 13 violated the law by failing to consider an adequate range of bycatch reporting methodology alternatives.
CLF contended that Amendment 13 did not establish a bycatch reporting methodology because it contained no mandatory provisions.
Oceana’s complaint was “more particularized.” It argued that Amendment 13 violated the SFA because it did not establish a mandatory level of observer coverage.
Court found: “In the final rule as promulgated, the secretary did not specify a particular bycatch reporting methodology in any of the 23 items labeled as ‘approved measures.’ ... (Rather), the secretary stated that ‘NMFS intends to maintain its observer coverage in the groundfish fishery at a minimum level of five percent.’
“The statute makes perfectly clear that the ‘establish(ment) of a standardized (bycatch) reporting methodology’ is a ‘required provision’ of ‘any fishery management plan which is prepared by any council.’
“Indeed, there is no dispute that, given the inadequacy of other reporting methods, live observers are an essential component of an adequate bycatch reporting methodology.
“Scientists hired by Oceana purported to do what defendants claimed could not be done: design a program that would be both precise and accurate. They determined that for rare bycatch species, coverage should be set at a 50 percent level, and for common bycatch species, 20 percent would suffice. Oceana submitted this study to the secretary in conjunction with the notice and comment process for Amendment 13, contending that the amendment must be revised in light of this evidence.
“In light of the secretary’s failure to adequately respond to Oceana’s study ... the secretary’s ‘inten(tion)’ to adopt a five percent observer coverage is arbitrary and capricious in violation of the Magnuson-Stevens Act and APA.
“As to CLF’s more general contention that Amendment 13 fails to spell out a standardized bycatch reporting methodology, plaintiffs’ point is well taken.
“The court concludes that the bycatch monitoring provisions of Amendment 13 do not satisfy the SFA, and plaintiffs’ motions for summary judgment with respect to this claim are granted.”
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