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Commercial Fisheries News
Volume 33 Number 1
September 2005
Judge rules on scallop EFH; access in question
WASHINGTON, DC – A US District Court has thrown out the essential fish habitat (EFH) closures established by Framework Adjustment 16 to the federal scallop plan, triggering concern among scallopers who have yet to take their 2005 access trip in Closed Area I.
On Aug. 2, US District Judge Ellen Segal Huvelle handed down a lengthy decision regarding Oceana’s challenge to scallop Amendment 10 and Framework 16.
While the repercussions from the findings on bycatch reporting and turtles were less immediate, the ruling raised a more pressing question about whether the boundaries of the scallop-access portions of Closed Area I were altered by the decision.
“It would be funny if it weren’t so serious,” said vessel owner Herman Bruce of New Bedford, a board member of the Fisheries Survival Fund (FSF).
“The result is that after years of lawsuits, Oceana has got a court to close part of the very areas where we can fish in the most environmentally friendly way,” he said.
In short, Oceana sued the National Marine Fisheries Service (NMFS) for replacing Amendment 10’s EFH closures with new ones implemented through Framework 16 that mirrored those in place for groundfish under Amendment 13.
The New England Fishery Management Council, which developed the framework, took this action so scallopers wouldn’t be restricted by two different sets of EFH closures – one for scallops and one for groundfish. According to the FSF, such a double closure would result in “the loss of yield from large masses of scallops.”
The judge didn’t question whether the new EFH closures were right or wrong. Rather, she said the process used to replace the Amendment 10 closures pushed the limits of what could be done through a framework action and short-circuited the public process.
As a result, she “vacated” the scallop EFH closures in Framework 16, wiping them off the books.
“The practical result of the court’s holding is that, for the time being, both the habitat closures in Amendment 10 and the habitat closures in Amendment 13 will remain in place,” wrote the judge. “If the agency still deems it necessary to resolve this inconsistency, it must do so through lawful procedures.”
Back to the judge
On Aug. 16, the Fisheries Survival Fund, which had intervened in the original case on behalf of the defendants, filed a motion asking the court to reconsider this decision, arguing that the judge appeared to have a “factual misunderstanding of the extensive (and repeated) notice and comment process” that accompanied the EFH habitat refinements.
Furthermore, given the harmful economic consequences to industry, the FSF asked the court to “stay” the re-installation of the Amendment 10 EFH closures while it reviewed the request.
The US Justice Department, which argued the case on behalf of defendants NMFS and the Commerce Department, also approached the court. On Aug. 15, it filed a “motion for clarification” to ask the judge what she really meant by the order.
Did she want NMFS to simply remove the Framework 16 scallop EFH closures from regulation, or did she want the agency to replace those closures with those originally implemented through Amendment 10?
As it turns out, NMFS might not be able to simply “reinstate” the Amendment 10 closures without a specific order from the judge.
The Justice Department wrote, “Circuit case law suggests that NMFS cannot automatically revert back to superseded regulations but instead is left with a regulatory vacuum which it must fill through proper rule-making procedures.”
A reinstatement of the Amendment 10 EFH closures wouldn’t completely bar scallopers from fishing in Closed Area I. However, those closures, when coupled with the Amendment 13 EFH closures, would reduce the available scallop-access bottom in Closed Area I to a relatively narrow strip.
In a declaration to the court, NMFS Northeast Regional Administrator Pat Kurkul explained to the judge the “practical consequences” of the situation.
“Based on preliminary data, it appears that only about half of the allocated (2005) trips for Closed Area I have been taken and of those trips (about) half were taken in the portion of the zone that would be closed through the reinstatement of Amendment 10 closures,” Kurkul said.
“Although scallopers could reposition where they fish, they may have a harder time catching scallops in the smaller area, which could lead to unanticipated negative economic impacts on the scallopers that have not yet taken their one trip into this area,” she said.
Will judge reconsider?
At press time, fishery managers and industry members were still trying to decipher the decision, which made the government’s motion for a clarification rather essential.
However, the FSF was adamant that Judge Huvelle should flat-out reconsider rather than clarify the order, and FSF attorney David Frulla of the Washington, DC law firm Collier Shannon Scott thought industry had a solid case.
The court faulted NMFS for using an abbreviated public process to change Amendment 10’s habitat closures, but Frulla said the New England council clearly stated during the development of Amendment 10 that it intended to put new habitat closures in place through Framework 16 and even asked for public comment on them.
Furthermore, Framework 16 was developed over the course of nine public meetings, including three full council meetings, and was first published by NMFS as a proposed rule with an additional 15-day comment period.
“The council did all of the required elements of putting together an amendment in that framework,” said Frulla. “We think there was more than enough process and public comment.”
No one could predict how quickly the judge would act on any of the new developments, which put the industry in somewhat of a state of limbo.
Herman Bruce called it “very unfortunate” that Oceana was attempting to “compromise” the “years of hard work by the council, industry, and environmental community” to develop a rotational management program for scallops while protecting EFH.
“The industry has harvested major amounts of scallops from Closed Area I with very little tow time, which is the goal of the area management program we’ve worked hard to put in place,” he said.
Oceana’s take
Chris Zeman, Oceana’s Northeast fisheries program counsel, saw it differently, saying that the court’s ruling put the framework process “back on track.”
“It’s very easy for frameworks to gobble up the process that was intended in the Magnuson-Stevens Act,” said Zeman. “You might have been following the process for two years through an amendment and then it all changes in two months because of a framework.
“People were just throwing in alternatives left and right into frameworks, and it interrupts the council’s ability to work on amendments. Or the council would defer decisions to future frameworks and then never get around to them,” he said.
“I think the judge’s ruling is a huge step forward in terms of improving this process and actually reducing workload by speeding up the development of amendments,” Zeman concluded.
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