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Commercial Fisheries News
Volume 33 Number 1
September 2005
Court rules on scallop bycatch, turtles lawsuit
WASHINGTON, DC – In addition to her ruling on essential fish habitat (EFH), US District Judge Ellen Segal Huvelle handed down several other significant decisions in Oceana’s lawsuit challenging to Amendment 10 and Framework Adjustment 16 to the fishery management plan (FMP) for Atlantic sea scallops.
The judge agreed with Oceana that neither Amendment 10 nor Framework 16 contained an adequate methodology for monitoring and reporting bycatch, which came as little surprise to industry members given that the same judge had handed down the same decision in groundfish Amendment 13.
On the other hand, Huvelle dismissed all of Oceana’s allegations relating to turtles, as well as the claim that the New England Fishery Management Council and National Marine Fisheries Service (NMFS) had failed to adequately consider Oceana’s habitat alternatives as required under the National Environmental Policy Act (NEPA).
In another aspect of this extremely complicated case, Oceana had challenged a number of measures on the list of potential frameworkable items outlined in Amendment 10.
The judge called this grievance premature. She said the court could not determine whether a framework was legal or not until the action was actually developed.
However, fishery managers and industry members who were studying the decision at press time indicated that the case might prompt everyone to rethink how councils use the framework process.
For detailed excerpts from the decision on each of these counts, see related story beginning on page 11A.
Bycatch reporting
Chris Zeman, Oceana’s Northeast fisheries program counsel, said his organization was extremely pleased with the judge’s ruling on the bycatch reporting count.
“The court found that there was nothing in the scallop amendment that met the legal requirements of a bycatch reporting methodology. The New England council basically punted this decision to the (NMFS) regional administrator,” said Zeman.
“The judge said, ‘You can’t do that.’ The FMP needs to at least say what the goals should be and what the levels of monitoring and reporting should be. It’s something the councils have to do,’” Zeman said.
However, David Frulla, attorney for the Fisheries Survival Fund (FSF), which intervened in the case, did not view this as a significant setback.
According to Frulla, the New England council did substantially more work on bycatch reporting methodology in Amendment 10 than it did in Amendment 13.
“The judge didn’t think it was enough,” he said, “but we’re already working on this in Framework 18.”
Framework 18 is the next major regulatory action that will impact scallopers in 2006 and 2007.
Turtles
Oceana challenged NMFS on three different facets of its turtle decisions and lost on all three – not because the judge believed the “best scientific information available” was very good but because she concluded that nothing better existed.
“I was actually very happy that this was such a detailed opinion,” said Zeman. “It really shines a spotlight on a lot of these other issues that need to be addressed. The discussion about what is the best available science raises a lot of issues that are far reaching.”
Oceana’s argument went back to NMFS’s Dec. 15, 2004 biological opinion, which concluded that the continued existence of loggerhead sea turtles would not be jeopardized if the scallop fishery took up to 479 of these turtles annually.
The organization charged that NMFS’s use of the Southeast Fisheries Science Center’s 2001 model was “so fraught with uncertainties that it was not rational to rely on it to justify a no-jeopardy conclusion.”
Furthermore, Oceana charged that the model became even more unreliable after NMFS used data from the 1970s and 1980s to determine mortality rates. The group further alleged that NMFS too narrowly defined the scope of harmful human-caused effects on turtles.
Oceana sought a shutdown of the Mid-Atlantic scallop fishery during the peak summer and fall turtle activity period.
But in the end, the court said that no one, not even Oceana’s own expert witness, had offered up any other alternative model for analyzing whether turtles would be at jeopardy due to continued scallop fishing.
Therefore, wrote Huvelle, “The court cannot agree that the agency’s use of the (2001) model, despite its uncertainties, was inherently irrational.”
For Oceana, one of the most dismaying decisions in the case involved Huvelle’s ruling that NMFS and the council had met their NEPA obligations and had analyzed an adequate range of EFH alternatives in Amendment 10. These Amendment 10 closures are the ones now in question since the court vacated the Framework 16 closures.
“We’re definitely frustrated by that ruling,” said Zeman. “At best they (the Amendment 10 EFH closures) protected only 30 percent of gravel habitat.”
Oceana claimed NMFS violated NEPA by failing to fully consider the organization’s own EFH alternatives as presented to the New England council.
However, Huvelle wrote, “The court cannot fault the agency for failing to incorporate Oceana’s exact proposals into its design of a feasible range of habitat alternatives. … Oceana emphasized protection of hard-bottom habitats and EFH for overfished species, both relevant variables. The agency did not overlook these concerns, but merely weighted them differently than Oceana would have liked.”
Industry’s take
Aside from the “quirky” decision about the Amendment 10 and Framework 16 EFH closures, which could potentially impact the fleet’s fishing bottom in Closed Area I this year, industry members were viewing the case as a “big win” overall, according to the FSF.
“I think it’s significant that they tried to shut down scalloping in the Mid-Atlantic from June through November, and they did not get that,” said Frulla. “They tried to invalidate all of Framework 16 and they did not get that either. They tried to say the council failed to meet its NEPA obligations. They failed on that as well.
“That was a pretty vicious lawsuit when you get right down to it,” Frulla said.
Janice M. Plante
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