Swordfish fleet vindicated by court ruling - November 2005 Commercial Fisheries News

Commercial Fisheries News
Volume 33 Number 3
November 2005

Swordfish fleet vindicated by court ruling

Sword boats wrapped up their last Grand Banks trip of the season and were offloading fish in Gloucester on Oct. 23. Tim Malley, left, and Stephen Scola, partners in Boston Sword and Tuna, handle fish from the Eagle Eye II. The 110' vessel is one of only seven remaining Grand Banks longliners in the US fleet.

Guest Column by Nelson Beideman
YES!!!! After years of court cases, this judge “got it.” Finally, we heard from a judge who understands the realities of working fishermen.

And at last, the National Marine Fisheries Service (NMFS) had legal advocates who were willing to stand up and vigorously defend the agency’s actions to manage our Atlantic swordfish and tuna fisheries in recognition of the huge conservation steps industry has made to protect Atlantic sea turtles.

If we could always rely on the government to fight as hard in defense of its actions, rather than make settlements that hurt commercial fishermen when sued by the environmental industry, we would not always be compelled to intervene to protect our interests.

The US Atlantic pelagic longline fishery has been the target of more than its fair share of lawsuits over the past six years. The remaining fishery is only a shadow of its former self, but those who endure are strong, independent souls, who still stand on principle.

Over the last decade, we have done a great deal to conserve Atlantic resources. We have supported regulations that reduced our catches for the sake of conservation, but we will not be sacrificed just because the activist groups want it so.

Because a loss in this case would have reinstated the Grand Banks closure and led to even more restrictions on the coastal fleet, plus set terrible precedents for all managed fisheries, we intervened.

Enviro claims rejected

After more than a year involving three consolidated cases, defendants NMFS and the Blue Water Fishermen’s Association (BWFA) were vindicated by US District Court Judge Richard J. Leon’s memorandum opinion and final judgment in The Ocean Conservancy vs. Gutierrez case entered on Oct. 6, 2005.

Judge Leon solidly rejected every claim made by The Ocean Conservancy and Oceana in his flat denial of their arguments.

Among several issues included in the ruling, he confirmed that the Magnuson-Stevens Fishery Conservation and Management Act (MSA) does not require NMFS to adopt the most restrictive conservation measures and that bycatch reduction is not the top MSA priority.

Fishermen save turtles

The challenged regulation contains substantial sea turtle conservation actions for hook and line fisheries, including a shift to the exclusive use of circle hooks and specific baits by US Atlantic pelagic longline fishermen.

Although the circle hooks can result in a 30 percent reduction in swordfish catches, American fishermen have readily accepted their use after experiencing the benefits to all incidental catches and are working to encourage foreign fleets to use them as well.

This is critical for the future of Atlantic sea turtles because, as Judge Leon correctly noted, “… The US fleet represents only a small fraction of the total activity in the fishery.”

The judge concurred that the MSA’s National Standard 2 does not require NMFS to adopt the most protective measure throughout the fishery and NMFS’s decision to allow the use of 16/0 circle hooks in certain fishing areas “reflects a balanced and rational decision-making process with fully informed public comment.”

The court also confirmed that National Standard 9 “only requires NMFS to minimize bycatch to the extent practicable” and does not require the NMFS to adopt the most protective measures available.
The opinion stated, “In this court’s judgment, NMFS’s 2004 final rule balanced competing interests by reconciling the economic needs of fishermen with the conservation goal of reducing bycatch to the lowest level possible.

“In doing so, it thoroughly reviewed the relevant scientific data on bycatch and consulted with participants in the fishery to determine whether the proposed regulations would be effective and practical …. Although the NMFS might have done more to reduce bycatch, ‘more’ is not the standard that NMFS must follow.”

Devastating costs

The environmental industry, whose deep pockets are continually replenished by activist groups and foundations, continues its strategy to litigate every decision in which NMFS fails to do what it wants.

There should be a law that allows the working man to recoup the legal costs incurred to defend his livelihood from these baseless yet potentially devastating lawsuits designed to take him off the water and put him out of business.

The costs of legal defense can just as decisively put fishermen out of business.

Although we are very pleased with Judge Leon’s opinion, too many resources are spent on these types of lawsuits.

BWFA needs help

Our attorney, George Mannina of O’Connor & Hannan in Washington, DC, made concise arguments that were easy for the judge to grasp and deserves the credit for our victory.

Unfortunately, the majority of the pelagic longline fleet is still reeling from the impacts of Hurricanes Katrina and Rita. Our fishermen are struggling to make their fishing trip expenses and our legal bills, although completely justified, are hard to cover.

We appreciate any donations to BWFA’s Legal Defense Fund from forward-looking individuals who recognize that this industry victory was sorely needed. This ruling will help many other fishermen deal with these issues in future lawsuits.

Nelson Beideman

Nelson Beideman is the executive director of Blue Water Fishermen’s Association. BWFA represents the US Atlantic and Gulf of Mexico pelagic longline fishery that provides fresh Atlantic swordfish, tunas, sharks, and mahi-mahi for American seafood consumers.

For an electronic copy of the judge’s ruling, contact Beideman at (609) 361-9229 or <nelson@bwfa.org>.

Donations to the BWFA Legal Defense Fund will be gratefully accepted at the following address: BWFA, c/o Viking Village Dock, PO Box 458, Barnegat Light, NJ 08006.

When is enough ENOUGH?

Preliminary estimates show effective reductions of 88.6 percent for leatherback and 61.4 percent for loggerhead sea turtle avoidance and mortality since the US pelagic longline fleet’s conversion to 100 percent circle-style hooks in August 2004.

Eighty percent of the active captains have voluntarily taken a course to be certified in the careful handling and release of bycatch. The goal is to export these astounding accomplishments to foreign fleets that account for over 95 percent of bycatch in the Atlantic and worldwide.

Isn’t it time for the US environmental industry to refocus its efforts on the global reality rather than continue its endless campaign to put responsible US fishermen out of business?

Nelson Beideman

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