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Commercial Fisheries News
Volume 33 Number 10
June 2006
MA sues NMFS over DAS counting scheme
BOSTON, MA - The commonwealth of Massachusetts is asking a federal district court to grant a permanent injunction on the groundfish 1.4-to-1 differential days-at-sea counting scheme mandated by the emergency rule the National Marine Fisheries Service (NMFS) published in mid-April.
State Attorney General Tom Reilly said the complaint alleges that the emergency rule needlessly denies fishermen access to more than a dozen healthy species of fish, creating a situation that threatens the future of the Massachusetts industry.
“We have learned much from the fishing industry about the potentially devastating impacts the permanent and emergency regulations will have on Massachusetts fishermen,” Reilly said in a May 15 statement. “We are determined to do all we can to ensure that the Massachusetts fishing industry is treated fairly.”
NMFS promulgated the emergency rule as a stopgap measure when it determined that Framework 42 to the federal groundfish plan would not be ready for implementation by the May 1 start of the 2006 fishing year. The agency intends for emergency action to stay in place until the framework is implemented sometime this summer or early fall.
The emergency rule initially proposed 1.4-to-1 days-at-sea counting in all fishing areas. However, in response to strenuous protests from industry, NMFS made a change in the final version of the emergency rule to require differential counting only in the Gulf of Maine and Southern New England/Mid-Atlantic Regulated Mesh Areas – encompassing important fishing grounds right off the Massachusetts coast.
Displaced effort
The 1.4-to-1 differential counting ratio translates into a 38% cut in days-at-sea that won’t do anything to reduce fishing effort on Gulf of Maine and Cape Cod yellowtail flounder or Gulf of Maine cod stocks, according to Massachusetts Division of Marine Fisheries (DMF) Deputy Director David Pierce.
“Fishermen strive to survive. If you know your days-at-sea are cut, you’re going to take the most valuable fish you can,” he said. “Fishermen will target cod, so we won’t get the big cut on cod, the species that is most valuable and needs the most protection.”
And inshore fishermen facing 2-to1 counting in the Gulf of Maine once Framework 42 takes effect have even more incentive to fish aggressively under the emergency rule’s 1.4-to-1 counting once rolling closures off the Massachusetts coast are lifted on June 1.
Pierce said the way the emergency rule is set up, fishermen will wind up draining their days-at-sea and creating a derby fishery, which will only depress prices.
“This has an enormous impact on people’s thinking. They feel they won’t be able to save their days until fall or winter. Once that gun is shot and the area south of 42°30’ all opens up – Stellwagen, off Cape Cod, and inshore – they’re going to blow their days,” Pierce predicted.
“The inshore fleet says this will devastate them,” he said. “They’re barely making it on the days they have now.”
DMF approached the Attorney General’s Office with these concerns and Reilly agreed to file the civil action for the commonwealth “by and through its DMF.”
Magnuson violations
In the complaint, the commonwealth alleges that the commerce secretary “arbitrarily refused to preserve reasonable access” to 13 stocks on which overfishing is not occurring.
The secretary further “failed to give meaningful consideration to the social and economic effects the proposed regime would have upon Massachusetts fishermen and fishing communities.”
In doing so, the emergency rule violates National Standards 1, 8, and 10 of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), the complaint charges.
National Standard 1
Specifically, the complaint alleges that the emergency rule violates National Standard 1, which requires management measures to prevent overfishing while achieving “optimum yield,” because it:
Was “not reasonably calculated to prevent overfishing of the six stocks found to have fallen short of their fishing mortality reduction targets – Gulf of Maine cod, Cape Cod/Gulf of Maine yellowtail flounder, Southern New England/Mid-Atlantic yellowtail and winter flounder, white hake, and Georges Bank winter flounder;” and
“Fails to achieve the optimum yield for each of the species within the Northeast multispecies fishery found to have met their fishing mortality reduction targets.”
National Standards 8, 10
The complaint alleges the emergency rule violates National Standard 8 because it “fails to provide for the sustained participation of Massachusetts fishing communities in the Northeast multispecies fishery and to minimize adverse economic impacts on such communities.”
And, the complaint alleges the emergency rule violates National Standard 10 because it “fails to promote the safety of human life at sea” by encouraging fishermen to fish beyond the differential counting area and, “thusly, to put at risk their lives, vessels, and gear.”
Finally, the complaint alleges the emergency rule violates the requirements of the National Environmental Policy Act of 1969, commonly known as NEPA, charging that it failed to consider alternative regimes or conduct obligatory analyses.
Case facts
In listing the facts of the case, the complaint notes that “despite the short comment period” on the emergency rule, 45 parties, including DMF and a variety of industry groups, filed comments, and at least 20 of them “identified the same fundamental objection” to the proposed emergency rule.
“That by reducing access to the multispecies fishery on an across-the-board basis, the emergency rule restricted fishermen’s access to numerous healthy stocks, as a consequence of the proposed rule’s attempt to reduce access to the six stocks where overfishing was probably occurring,” the complaint states.
It further states that the secretary didn’t follow the agency’s own regulations that direct him to consider “alternative regimes” that might have lessened the impacts on fishermen.
“Indeed, by way of example, the secretary’s regulations allow him to permit overfishing of one species if that species is part of a mixed-stock complex, if it is demonstrated by analysis that, among other things, allowing such overfishing will ‘result in long-term net benefits to the nation’ and that mitigating measures have been considered,” the complaint continued.
The complaint further states that “by the secretary’s own calculation, the emergency rule will effect an aggregate 21% reduction in total revenue earned by fishermen from groundfish landings throughout the affected region …” and “will more seriously affect vessels from Massachusetts, New Hampshire, and Maine.”
At press time, there was no word yet on when the state would have the opportunity to present its case to a judge.
When it does, it will ask the court to permanently enjoin the federal government from enforcing the 1.4-to-1 differential counting scheme and declare the emergency rule, “to the extent that it implements the 1.4-to-1 differential counting days-at-sea regime,” to be invalid under the MSA.
Lorelei Stevens
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