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Commercial Fisheries News
Volume 36 Number 7
March 2009
Groundfish: Did Congress intend this?
PORTSMOUTH, NH – Responding to a federal judge’s Jan. 26 order to give “serious consideration and analysis of the mixed-stock exception,” the National Marine Fisheries Service (NMFS) acted quickly to prepare an 11-page report outlining why this exception does not apply to groundfish stocks under Framework 42.
National Oceanic and Atmospheric Administration (NOAA) Office of General Counsel attorney Gene Martin, who advises both NMFS and the New England Fishery Management Council, presented the report to the council during its Feb. 9-11 meeting.
Martin said NMFS hoped the council would concur with the report so it and NMFS could present a united position to US Senior District Judge Edward Harrington. NMFS’s goal was to have Harrington reverse or revise his order suspending all Framework 42 regulations pending the analysis.
But the council, in an 11-6 vote, disagreed with the report, arguing that it did not believe NMFS’s assertion that the mixed-stock exception could not be applied to groundfish.
Instead, the council voted to request that NMFS “reconsider its position and make it consistent with congressional intent.”
Congressional “intent,” according to the council, was that:
“Optimum yield should be from the fishery as a whole;” and
“One stock should not dictate severe constraints on the fishery as a whole while that stock is being rebuilt.”
New Hampshire council member Doug Grout, whose state joined with Massachusetts to become plaintiffs and file the Framework 42 lawsuit two years ago, was particularly disappointed with NMFS’s analysis.
“I feel this document expresses the opinion of the service, but it is not a serious analysis of the mixed-stock exception,” he said.
The court’s Jan. 26 order to suspend all of Framework 42 pending the analysis immediately resulted in virtual mayhem for all involved, especially fishermen.
After receiving requests in mid-February from both the defendants and plaintiffs seeking modifications to the suspension, the judge revised his order on Feb. 17.
What’s the exception?
According to Martin, the mixed-stock exception was created by NMFS – not Congress – after Congress passed the 1996 Sustainable Fisheries Act (SFA), which amended the Magnuson-Stevens Fishery Conservation and Management Act (MSA).
The SFA significantly tightened federal rules and mandated that overfished stocks, except under special circumstances, be rebuilt within 10 years.
In response to the heightened rigidity of the law, NMFS created the mixed-stock exception to give councils a little flexibility in making management decisions about stock complexes – like groundfish – where optimum yield on several healthy species would have to be sacrificed to account for an “overfishing” on intermingled stock.
However, Martin said the mixed-stock exception could not apply to “overfished” stocks because NMFS’s guidelines could not trump the actual language in the law, which is the MSA as amended by the SFA.
Guidelines aside, Martin emphasized that the law was clear: overfished stocks must be rebuilt within 10 years.
Because several stocks under Framework 42 were overfished, the MSA “plainly” did not allow use of the mixed-stock exception in the framework, he said.
2006 reauthorization
Congress again reauthorized the MSA in 2006 and made the act even stricter, requiring that fishery management councils and NMFS end overfishing “immediately” on all overfished stocks.
This provision by itself has made it almost impossible to use the mixed-stock exception under any circumstance.
To ensure that NMFS fully complied with the court’s order, Martin said the agency analyzed the mixed-stock exception for Framework 42 under both the 1996 SFA and the 2006 MSA reauthorization, along with their respective revised National Standard guidelines.
In both cases, NMFS determined that it and the council had “no viable alternative under the mixed-stock exception at the time Framework 42 was passed.” Some stocks were “overfished,” prohibiting any flexibility in stock rebuilding.
Regarding the latest MSA reauthorization and its unequivocal requirement to end overfishing immediately on overfished stocks, Martin said, “There’s no room for the mixed-stock exception.”
Intent of Congress?
Massachusetts council member David Pierce remained unconvinced that Congress meant for things to turn out this way.
“I am very sympathetic to the NMFS perspective. There is a mixed message sent by Congress,” he said.
“However, I believe the service is acting contrary to congressional intent. There’s no way Congress’ intent was that one stock would completely shut down an entire industry,” said Pierce. “I continue to believe that sacrificing very large amounts of yield for the sake of one stock is not to the best benefit of the nation.”
The law is the law
The discussion that ensued clearly frustrated NMFS and NOAA officials.
NMFS Northeast Regional Administrator Pat Kurkul said the fisheries service felt the intent of Congress was very clear.
“Congress set a 10-year timeline for rebuilding. The agency may not agree with the 10-year requirement, but that’s what’s in the law,” she said. “Congress went even further in the latest reauthorization to say overfishing must end immediately on overfished stocks.”
Martin added, “Fundamentally, the plain language of the statute overrides anything in the guidelines and is now clearly at odds with the mixed-stock exception.”
He said the MSA no longer contained any latitude.
“With the 2006 reauthorization, any ambiguity that used to exist was cleared up by Congress. They added that overfishing on any overfished stock must end immediately. There is not any other interpretation of that plain language. Congress has imposed these requirements on us and we must abide by them,” he said.
Rebuilding to MSY
Council member Sally McGee of Connecticut opposed the council’s motion to “disagree” with the NMFS report.
McGee said she did not believe the council was going to impossible lengths by rebuilding stocks to maximum sustainable yield (MSY). She worried that the council was “constantly trying to lower the bar.”
“Biomass at MSY is not biomass at virgin stocks,” McGee said. “Often, MSY is much, much less than that.”
Rhode Island council member Mark Gibson also did not support the motion, saying it was clear the mixed-stock exception would not apply to Southern New England winter flounder, for example, which is considered to be overfished and in very poor shape.
New Hampshire council member David Goethel, on the other hand, strongly opposed endorsing NMFS’s report.
“If we use the rationale in that document, we will never, ever be able to move off single-species management,” he said.
“We’re under a man-made timeline here,” he said. “Nature didn’t set these timelines. We did. I think we have to have a mixed-stock exception to deal with minor stocks that under perform.”
Vote
At the end of this difficult discussion, the council took a roll call vote to: “disagree” with the NMFS conclusion that the mixed-stock exception did not apply; and request that NMFS reconsider its position based on congressional intent.
Voting “yes,” meaning they disagreed with the NMFS conclusion, were: Rodney Avila, David Pierce, and Jim Fair of Massachusetts; David Goethel, Mike Leary, and Doug Grout of New Hampshire; Terry Stockwell, Dana Rice, Mary Beth Tooley, and Jim Odlin of Maine; and Mark Alexander of Connecticut.
Voting “no” were: Frank Blount, Dave Preble, and Mark Gibson of Rhode Island; Sally McGee of Connecticut; Rip Cunningham of Massachusetts; and Pat Kurkul of NMFS.
What happened next
On Feb. 19, NMFS submitted its mixed-stock exception analysis to the court, along with an addendum.
In the addendum, NMFS concluded “that the premise of the council’s motion – i.e. the council’s interpretation of congressional intent – was not correct” and that the analysis contained in the revised report justified NMFS’s determination “that the mixed-stock exception cannot apply to this fishery” and was “not an appropriate or viable alternative for Framework 42.”
On Feb. 23, Judge Harrington handed down yet another order, saying he wanted the council, which “plays an integral role in passing and amending fisheries regulations,” to have a chance to respond to NMFS’s analysis, specifically as it applies to 2-for-1 days-at-sea counting under Framework 42.
Harrington further ordered NMFS to file another report with the court on April 10 “after considering the council’s findings.”
Janice M. Plante
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