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Commercial Fisheries News
Volume 32 Number 9
May 2005
Judge rules in groundfish Amd. 13 lawsuits
Decision upholds phased in rebuilding, consideration of fishing communities
WASHINGTON, DC – On March 9, US District Judge Ellen Segal Huvelle handed down a final verdict in three pending cases against Amendment 13 to the groundfish plan.
In a decisive ruling, the court upheld most of the challenged provisions, essentially putting to rest – barring appeals – years of litigation over groundfish stock rebuilding.
“Amendment 13 reflects the council’s and the secretary’s painstaking efforts to achieve a delicate balance that rebuilds stocks and ends overfishing while allowing fishermen to continue fishing those stocks that are healthy,” Huvelle wrote. “Given the complexity of this task, the court must conclude that Amendment 13 is, with limited exception, reasonable and in accordance with law.”
In one of her strongest statements, Huvelle wrote, “Congress clearly intended to protect endangered fisheries while simultaneously minimizing economic harm to fishing communities. The secretary may ... allow overfishing for a time in order to take account of fishing communities’ needs, so long as ... the Magnuson-Stevens Act’s conservation goals are achieved.”
Attorney Gene Martin of the National Oceanic and Atmospheric Administration Office of General Counsel indicated that, in his opinion, the judge’s ruling on this point was “the most fundamental” aspect of the decision.
“The issue really has national consequences,” he said.
Attorney David Frulla, representing the plaintiff Trawlers Survival Fund as well as several interveners, said, “In this case, the judge specifically acknowledged the need for fisheries management measures that make reasonable accommodation for fishing communities, as Congress intended.”
Bycatch reporting
The only major deficiency of Amendment 13 found by the court related to bycatch. Huvelle ruled that the amendment failed to establish a “standardized bycatch reporting methodology” and she remanded that aspect of Amendment 13 to the secretary of commerce for further action.
“We’re pleased about the bycatch decision,” said attorney Roger Fleming of the Conservation Law Foundation (CLF), a plaintiff in one of the suits.
“It’s clear that NMFS and the council don’t have an adequate program in place for monitoring bycatch. To not even include discard estimates that are occurring in the fishing industry or to not even know what they are is a fundamental problem from our view,” he said.
Attorney Eric Bilsky of Oceana, which filed a separate suit, said, “We appreciate the court’s recognition that controlling unintended catch is an essential fishery management tool. It’s tough to stop overfishing without accurate data about what is being caught.”
Plaintiffs
The court considered three separate cases simultaneously. Oceana filed one, primarily related to habitat and bycatch reporting. The Trawlers Survival Fund filed another relating to specific Amendment 13 management measures. The third was initiated by CLF and the Natural Resources Defense Council, which challenged several points related to overfishing and bycatch reporting.
A host of interested parties, including industry associations, cities, and states, intervened in these cases as defendants or filed amici curiae, or “friend of the court,” briefs.
Before ruling, the court considered the administrative record, which consisted of over 80 volumes of documents, including the three volumes totaling 1,800 pages that made up Amendment 13, as well as 400 pages of pleadings and the arguments of various counsels.
Huvelle said she made every attempt to “expedite this matter” in order to hand down a final ruling before the May 1 start of the 2005 fishing year.
While briefing the New England Fishery Management Council about the case’s verdict on March 29 in Newport, RI, Gene Martin said, “The court did a very admirable job of figuring out all of these very complicated issues.”
Is it over?
At press time in late April, CLF was still considering whether it would appeal the decision regarding the overfishing aspects of the case.
“We’re disappointed, “ said Fleming. “Frankly, Amendment 13 authorizes the highest levels of fishing on the most depleted fish stocks. We find it hard to believe that Congress intended this. We’re very concerned about the Georges Bank cod stock.”
He added, “We think overfishing needs to be eliminated immediately. This is going to slow down the rebuilding process and put cod at greater risk. A rebuilt cod fishery would allow two-to-three times more fishing.”
Oceana was also considering whether to take additional action, particularly regarding observer coverage and habitat protection.
“We are disappointed that the court failed to require the fisheries service to consider other alternatives to protect marine habitat for cod and other groundfish,” said Bilsky.
Snowe weighs in
US Sen. Olympia Snowe (R-ME) had a different take and strongly reiterated her stance that fishermen have paid an enormous price complying with groundfish regulations.
“I cannot say enough how difficult Amendment 13 continues to be on the fishermen of Maine and New England, placing difficult and inflexible regulations on a community that is struggling to survive,” she said.
The day Judge Huvelle handed down her decision, Snowe issued a statement saying, “I hope that today’s court ruling at the very least will provide an element of closure and certainty ... Now we must turn a new page to build a better framework that both works to increase our fish stocks while being more responsive to our fishermen’s needs.”
Janice M. Plante
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