Groundfish
Management Proves Daunting to Court, Fishers
Conservation
Law Foundation v. Evans, 211 F. Supp. 2d 55 (D. D.C. 2002).
Kristen
M. Fletcher, J.D., LL.M.
Sarah
Elizabeth Gardner, J.D.
Since
the passage of the Sustainable Fisheries Act1 in
1996 and dwindling fish stocks across the nation, litigation
over the management of U.S. fisheries has increased dramatically.
In the spring of 2002, Judge Gladys Kessler of the U.S. District
Court for the District of Columbia issued a decision that greatly
reduced the fishing effort in the New England groundfish fishery.
Since the decision, negotiations between the parties and doubts
regarding the science of groundfish management have resulted
in a daunting challenge to stabilize the fish stocks and the
fishing industry.
The
New England Fishery Management Council is mandated by the
Magnuson-Stevens Act to develop a fishery management plan
(FMP) for the groundfish fishery which had seen severe depletion
in the last two decades. By law, the Council is required to
prevent overfishing and rebuild depleted fish populations,
and to report, assess, and minimize bycatch.2 Amendment
9 to the FMP revised the maximum annual fishing mortality
rates for 12 depleted groundfish species.3
A
coalition of environmental groups, led by the Conservation Law
Foundation, alleged that by approving Amendment 9, the Secretary
of Commerce and National Marine Fisheries Service (NMFS) failed
to minimize bycatch and failed to comply with the overfishing
and fishery rebuilding provisions of federal law. In December
2001, Judge Kessler granted the summary judgment motion made
by the Conservation Law Foundation, finding that the agency
had not complied with the overfishing and rebuilding provisions
of the Magnuson-Stevens Act. Kessler found that the record did
not show that the agency had properly reviewed the fishery and
their management measures and disregarded the agency’s
argument that the required reporting measures under federal
law are “impractical and unnecessary.”
The agency admitted it had not complied with the overfishing
and rebuilding provisions in Amendment 9 but claimed that “Framework
33,” a separate provision implementing fishing mortality
targets, provided adequate protection for the groundfish fishery
until a new amendment could be completed.4 Judge
Kessler found for the plaintiffs because neither Framework 33
nor Amendment 9 met federal requirements.
Following
the December 28, 2001 issuance of a Summary Judgment, the
remedial phase began and seven additional parties intervened
on behalf of the agency, along with many interested parties
who wrote the court to express their concern about the impact
of the court’s remedy. On February 15, 2002, a status
conference was held between the parties where Judge Kessler,
due to the far reaching impacts and complexity of the case
and the relief it demanded, encouraged the two sides to enter
into mediation.5 Because the fishing season was
quickly approaching and the case had to be decided within
serious time constraints, the parties entered into a five-day
mediation and a “Settlement Agreement Among Certain
Parties” was proposed and filed on April 16, 2002.
In
the meantime, in March of 2002, the agency filed its “2002
Working Group Report” regarding the status of New England
groundfish. According to the report, many New England groundfish
were not rebuilding fast enough after years of overfishing.
This finding, according to the court, “changed the seascape”
for groundfish management.
With the opening of fishing season lingering only eight days
away, the court began the painstaking task of developing a
remedy. In analyzing the evidence, briefs, and the technical
information, Kessler stated “[m]uch of the blame for
this situation can be laid at the feet of NMFS [National Marine
Fisheries Service]. The very fact that this Court is in the
unenviable position of having to decide such an important
issue . . . reflects the failure of NMFS to comply with the
statute in a timely fashion.6
The court reexamined its mandate that the Government has a
duty to enforce Amendment 9, claiming that “such course
of action is now impossible. . . the scientific basis on which
it relies has become invalid even though it may have been
the best available . . . when the amendment was adopted7 and therefore, neither “the Settlement Agreement Among
Certain Parties or the order the Court is now entering complies
with Amendment 9.8 Thus, the court concluded it
was suitable to use the settlement agreement as a starting
point for the remedy, which provided that, until adoption
of Amendment 13, significant restrictions would be imposed
on days at sea, on the larger trawl vessels which account
for much of the groundfish mortality, and on mesh sizes and
gear to reduce bycatch and fish mortality. In addition, the
court ordered significant area closures designed to protect
the vulnerable Gulf of Maine cod and Georges Bank cod, an
increase in the minimum size of cod that can be landed and
possession limits. Finally, the court mandated increased observer
coverage, the collection and analysis of timely and accurate
fishing and bycatch information and a firm schedule for the
adoption of Amendment 13.
With
the groundfish industry alarmed at the severe restrictions,
the court granted a motion for reconsideration in May, noting
that “the important changes made by the Court in the complex
and carefully crafted Settlement Agreement. . . would produce
unintended consequences” including the potential to further
imperil the species and cause “grave economic and social
hardship.9 The May decision vacated the April 26 order
and called for an amended interim rule to be effective June
1, 2002, and an FMP amendment that complies with overfishing,
rebuilding, and bycatch provisions of federal law to be submitted
by August 22, 2003. The ultimate result was closing certain
areas to groundfishing and cutting the numbers of days at sea.
Aftermath
of the Decision
Federal
Funding. Following the decision,
members of Congress from the region called for federal assistance
for fishermen harmed by the ruling.10 Congress appropriated
funds for the cause; for example, the core of Maine’s
groundfishing fleet is to receive $1.7 million designed to
assist the industry in surviving the more stringent regulations.
The Maine Department of Marine Resources plans to divide the
money among over a hundred vessels that actively land groundfish
in Maine.11 The payment, however, is a one-time
payment and will not change the fact that the cut in days
at sea will remain in place for the foreseeable future.
Scientific
Uncertainty. In its May decision,
the court also ordered the Secretary to make public the most
current and reliable scientific information available to further
the development of Amendment 13 and calculate the total allowable
catch for the groundfish species. The scientific information
that the Secretary, agencies, and Councils rely upon remains
a source of dispute. In the fall of 2002, the NMFS announced
that a net set inaccurately on a research vessel may have affected
the agency’s estimation of the stocks’ health. The
net was part of a trawl survey that provides stock assessment
data to the agency and, in part, helps to determine if regulations
are working to restore depleted fish stocks.12 As a result,
Congressional members called for a delay in applying Kessler’s
fishing restrictions in order to correct the faulty scientific
data.13
NMFS
2003 Proposal. In the latest chapter of the New England groundfish
story, the NMFS announced in January that Amendment 13, now
scheduled to start in May 2004, will give fishermen until 2014
(instead of 2009) to rebuild stocks of New England groundfish.
While the groundfishing industry applauds the proposal, the
environmental community that originally sued federal regulators
to win faster rebuilding, see the move as a way to “get
around the law.”14
The
New England groundfish industry is not alone. Groundfish controversies
are simmering in Alaska and on the west coast. With congressional
members weighing in and the likelihood that future delays will
be challenged in court, it may be many years before an appropriate
remedy is fashioned and before a model for addressing fisheries
management controversy is developed.
1.
Pub.L. No. 104-297, 110 Stat. 3559 (1996).
2.
16 U.S.C. §§ 1802 (28)-(29), 1853 (a)(10)-(11),
1854(e) (2002).
3.
The 12 species are: cod, haddock, yellowtail flounder,
American plaice, witch flounder, winter flounder, redfish, white
hake, pollock, windowpane flounder, ocean pout, and Atlantic
halibut.
4. 209 F. Supp. 2d 1 (D. D.C. 2001).
5.
On April 8, 2002, due to the technical and scientific
issues of the case, Kessler appointed a technical advisor to
assist in deciding the remedy appropriate for the case. The
technical advisor does not testify before the court but instead
answers the court’s questions about terms, phrases, theories,
and rationales.
6.
195 F. Supp. 2d 186, 191 at note 6 (D. D.C. 2002).
10. See Susan Young, Federal
Judge Reverses Groundfishing Decision, Bangor Daily News, May 24, 2002, A1.
11. See John Richardson, Maine
Fishermen to Share $1.7 Million in Federal Assistance, Portland Press Herald, January 8, 2003, 9B.
12. See Doug Fraser, U.S.
Lawmakers Call for Delay of New Fishing Regulations, Cape Cod Times, October 24, 2002.
14. See Kay Lazar, Fishermen
Catch Break on Federal Restrictions,
The Boston Herald, January 15, 2003, News 2.
Editor’s
Note
The groundfish decisions can be found at:
• The December 28, 2001 decision granting summary judgment
and finding that the federal agency failed to prevent overfishing
and minimize bycatch is at 209 F. Supp. 2d 1 (D. D.C. 2001).
•
The April 8, 2002 decision appointing a technical advisor
to assist the court in deciding the case is at 203 F. Supp.
2d 27 (D. D.C. 2002).
•
The April 26, 2002 decision granting plaintiff’s motion
for summary judgment on the remedial issues and issuing an
order with detailed provisions governing fishing in the multispecies
New England groundfish until promulgation of a new amendment
is at 195 F. Supp. 2d 186 (D. D.C. 2002).
•
The May 23, 2002 decision granting reconsideration, vacating
the April 26 decision, is at 211 F. Supp. 2d 55 (D. D.C. 2002).
