COMMERCE
Subscriber Services
Classified Ads
Subscribe
Advertise
NEWS
This Month
Editorial
Letters
F/V Safety
Past Issues
ABOUT US
Contact Us
Latest Issue
Subscribe
History
MORE CONTENT
CFN Archives
Links
Each month exclusively in the PRINT edition of CFN
Along the Coast
Ask the Lobster Doc
Bearin’s
Classifieds
Coming Events
Editorial
Enforcement Report
FISH SAFE
Fleet Additions
Letters
Lobster Market Report
New Boats
News Catch
Quahog Market Report
|
Commercial Fisheries News
Volume 34 Number 12
August 2007
Parties agree to Oct. 1 whale rule deadline
WASHINGTON, DC – Lobstermen can expect to see a final rule with new regulations implementing the next phase of the Atlantic Large Whale Take Reduction Plan by Oct. 1.
On July 10, all parties involved in a lawsuit aimed at forcing the National Marine Fisheries Service (NMFS) to release a final rule signed a settlement agreement stipulating that NMFS must publish the rule by the negotiated deadline.
The lawsuit itself was filed Feb. 12 in US District Court for the District of Columbia by The Humane Society of the United States and The Ocean Conservancy, the suit’s plaintiffs. The suit is against Commerce Secretary Carlos Gutierrez and NMFS Director Bill Hogarth, who are the defendants.
This spring, the Maine Lobstermen’s Association (MLA) voluntarily joined the suit as a defendant intervenor in order to have a seat at the negotiating table. The MLA said this was particularly important because the final rule could have enormous impacts on thousands of Maine lobstermen if it implements – as initially proposed – a ban on floating groundline for much of the state’s prime inshore lobster bottom.
The settlement agreement does nothing more than commit NMFS to a deadline for putting out a final rule. Both the plaintiffs and defendants agreed that signing the agreement “does not limit NMFS’s authority with regard to the substantive outcome of the final rule.”
All parties involved are still free “to challenge any final rule issued in accordance with this agreement … (through) a separate action.” That means anyone unhappy with the final regulations, including the MLA, other industry associations, environmental groups, or even state agencies, can file another lawsuit if they think it is necessary.
As part of the settlement, the “federal defendants,” meaning NMFS and the Commerce Department, agreed to pay $40,000 to The Humane Society to cover the plaintiffs’ attorney fees and litigation costs.
MLA cites concerns
The MLA is being represented by well-known industry attorneys David Frulla and Shaun Gehan, along with Drew Minkiewicz, who are all part of the Washington, DC-based law firm Kelley Drye & Warren LLP.
While the MLA’s legal team did, in the end, sign the agreement, it also filed with the court a separate statement to “express its reservations and concerns regarding the settlement agreement.”
The MLA’s first issue was whether NMFS needed to agree to any deadline at all.
“The MLA strongly believes the defendants would have prevailed in this action had it proceeded to judgment,” wrote the association’s legal team, which then proceeded to explain the basis for this position.
Second, the legal team expressed serious concerns about what will happen to the final rule now that NMFS will be forced to publish it by Oct 1. The agency originally said it needed until the winter of 2008 to complete the action.
“While the settlement agreement does not specify how the federal government will meet the Oct. 1 deadline, MLA fears that the interagency review and public comment process will be what suffer,” wrote Frulla, Gehan, and Minkiewicz.
Despite these two very serious concerns, the legal team said it agreed to sign the settlement agreement and “will continue to work with all the parties of this litigation to produce regulations that properly protect whales from entanglement in lobster gear but do not prevent lobster fishing from occurring off the coast of Maine.”
Plaintiffs’ view
The Human Society and The Ocean Conservancy filed the lawsuit right when NMFS withdrew the final rule from review at the Office of Management and Budget (OMB). NMFS took this step in February to re-evaluate parts of the rule and address OMB concerns (see CFN March 2007 for details).
The two environmental groups argued in the resulting lawsuit that NMFS had failed to comply with “a strict statutory deadline” spelled out in the Marine Mammal Protection Act requiring it to publish an Atlantic Large Whale Take Reduction Plan final rule “not later than 60 days after the close of the proposed rule comment period.” NMFS published the proposed rule in June of 2005.
The plaintiffs further argued that NMFS had violated the Administrative Procedure Act.
In a statement announcing the early-July settlement agreement, Vicki Cornish, director of marine wildlife conservation at The Ocean Conservancy, said, “We are pleased that the agency has agreed on a date certain to issue new protective measures for endangered whales in the Atlantic.”
Sharon Young, marine issues field director for The Humane Society, said, “Because there are fewer than 350 North Atlantic right whales left in the wild, the issuance of new entanglement rules is absolutely critical.” /cfn/
Back to story list
|
|
Tell us what you think.
