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Commercial Fisheries News
Volume 33 Number 1
September 2005
Scallop Amendment 10 findings: What the court said
Case: Oceana Inc. vs. Donald Evans et al.
Court: US District Court for the District of Columbia
Judge: US District Judge Ellen Segal Huvelle
Decision date: Aug. 2, 2005
Charges: Oceana alleged that Amendment 10 and Framework Adjustment 16 to the federal scallop plan:
• Failed to protect loggerhead sea turtles under the Endangered Species Act (ESA);
• Failed to establish an adequate system for observing and reporting bycatch as required under the Magnuson-Stevens Fishery Conservation and Management Act;
• Failed to consider Oceana’s alternatives to protect essential fish habitat (EFH) “from the destructive effects of scallop dredges” as specified under the National Environmental Policy Act (NEPA);
• Unlawfully supplanted Amendment 10’s habitat closures with new ones in Framework 16 to match groundfish habitat closures; and
• Unlawfully deferred key Amendment 10 decisions to future frameworks.
Verdict: The court ruled in favor of Oceana on the bycatch reporting count and on supplanting Amendment 10’s habitat closures. The court ruled in favor of the defendants on the other counts, except for the one related to frameworks in general, which the judge said was not yet “ripe” for litigation. Here are excerpts from Judge Huvelle’s decision.
Oceana alleged: Amendment 10 unlawfully failed to establish an adequate standardized bycatch reporting program. The amendment also violated NEPA by failing to consider an adequate range of bycatch reporting methodology alternatives.
Court said: In Oceana I (the groundfish Amendment 13 lawsuit – see CFN May 2005 for details), this court found that the Magnuson-Stevens Act “makes perfectly clear that ‘the establishment of a standardized (bycatch) reporting methodology’ is a ‘required provision’ of ‘any fishery management plan (FMP) which is prepared by any council.’
“Amendment 13 did not satisfy (these) mandates. … Like Amendment 13, Amendment 10 fails to establish a bycatch reporting methodology but instead gives complete discretion to the regional administrator.
(T)hough (Amendment 10) proposes a one percent ‘set aside’ to provide funding for increased bycatch coverage, and provides great detail on the operation of the set-aside, Amendment 10 does not set forth the substance of a reporting methodology for the scallop fishery except in a vague and conclusory fashion.
“A methodology need not necessarily be detailed, but it must at the very least provide decision-makers and the public with a program of what actually will be done to improve bycatch reporting, and why these measures will be sufficient based on the best available science.
“For these reasons, the court will remand (these sections) of Amendment 10 (back to NMFS) … for revision. … Since these portions are severable from the rest of the FMP, no purpose would be served by the disruptive approach of vacating other parts of the plan.”
Oceana alleged: Framework 16 illegally nullified Amendment 10’s habitat protection measures by supplanting them with those in groundfish Amendment 13. Oceana fully participated in the development of habitat measures with respect to groundfish gear, but Framework 16 “undermined its participation with respect to habitat closures for scallop gear.”
Court said: “The question that must … be decided is whether the secretary has authority to invalidate closures established by Amendment 10 by framework action.
“(B)oth the statute and the agency’s own internal guidelines contemplate (framework) ‘actions’ that implement the FMP but do not fundamentally alter it.
“(T)he habitat measures in Framework 16 were not enacted in response to changing resource conditions or to achieve optimum yield ‘on an ongoing basis.’ They were enacted to correct an incongruity that resulted from the agency’s own decision to treat habitat closures for scallops and groundfish in separate plan amendments, and they overturn, rather than implement, the corresponding FMP provisions.
“Insofar as Framework 16’s habitat measures are inconsistent with the secretary’s authority under the Magnuson-Stevens Act, the court must vacate those provisions.”
Oceana alleged: NMFS used a 2001 model developed by the Southeast Fisheries Science Center (SEFSC) to determine that an annual take of 479 loggerhead sea turtles in the scallop fishery would not jeopardize their continued existence. The model may have represented the “best available science,” admitted Oceana, but it was “fraught with uncertainties,” “wholly disconnected from reality,” “too speculative,” and “so ill-suited” for its intended purposes that NMFS “could not rationally” conclude that continued scallop fishing, especially in the Mid-Atlantic, would not jeopardize loggerheads.
Court said: “Time and again courts have upheld agency action based on the ‘best available’ science, recognizing that some degree of speculation and uncertainty is inherent in agency decision-making, even in the precautionary context of the ESA.”
Citing a previous legal decision, the judge wrote, “the (fisheries) service must utilize the ‘best scientific … data available,’ not the best scientific data possible.
“Rather than quantitatively estimating the size of the loggerhead population, the (SEFSC 2001) model indicates whether the population trend is declining, stable, or increasing. …”
“In developing the biological opinion, NMFS determined that this population trend model represented the most reliable method for estimating whether scallop fishing would jeopardize the continued existence of loggerheads.
“(T)he court is unable to conclude in this case that the agency’s choice of methodology was irrational. Although experts have suggested that reliable take limits cannot be established without quantitative data gathered from “in-water” surveys, the regrettable fact is that the necessary data simply does not exist.
“NMFS does not deny that a thorough quantitative analysis based on empirical estimates of population size would be a superior way to analyze the impact of the scallop fishery on sea turtles but has reasoned that in the absence of the necessary data, the SEFSC 2001 model is the next best alternative.”
Oceana alleged: The mortality data utilized in the SEFSC 2001 model, which were from the 1970s and 1980s, were “so stale” that they “undermined the model’s utility.”
Court said: “The underlying assumption (by NMFS) is that the scallop fishery has not changed for the worse with respect to turtle fatalities since the 1970s and 1980s but rather has either remained the same or improved given the conservation measures implemented since that time.
“(W)hether an old estimate of loggerhead mortality is a good estimate for today’s threat from scallop fishing is an extremely complicated question, the answer to which necessarily involves specialized knowledge of the scallop fishery.
“Evaluation of the equivocal evidence pointed to by the parties is exactly the type of scientific debate that the court is not meant to wade into. Nor is it the court’s role to substitute its evaluation of the data for that of the agency.
“Mortality rates constructed from data in the 1970s and 1980s may not be perfect proxies for today’s loggerhead mortality rates, but especially as these rates are the only viable estimates, the court cannot conclude that the agency’s reliance on them is unreasoned. The court is not ‘writing a blank slate.’”
Oceana alleged: NMFS failed to reflect current loggerhead mortality by not taking into account the wide range of threats facing loggerheads apart from the Mid-Atlantic scallop fishery such as poaching, habitat loss, nesting predation on beaches, worldwide longline fisheries, and the Gulf of Mexico shrimp trawl fishery, “thereby undermining the ESA’s purpose to ‘insure’ that the action is not likely to jeopardize the continued existence of loggerheads.”
Court said: “Contrary to plaintiff’s contention … the biological opinion in fact includes a lengthy discussion of anthropogenic effects on loggerhead sea turtles and details the anticipated takes from other federally authorized fisheries both in its narrative discussion and in a table of anticipated takes attached as an appendix.”
Oceana alleged: NMFS violated NEPA by failing to consider Oceana’s proposals for habitat protection in Amendment 10.
Court said: “Amendment 10 … considered 17 alternatives (including sub-alternatives) for EFH protection, 11 of which proposed various long-term, year-round closures for scallop fishing.
“There is no doubt that the (New England) council devoted considerable energy to preparing this portion of the environmental impact statement (EIS) and, in fact, the discussion of EFH alternatives and their respective impacts spans hundreds of pages.
“The heart of an EIS is its analysis of a reasonable range of alternatives to the agency’s proposed action. The plaintiff is essentially arguing that the ‘reasonable range of alternatives’ required under NEPA must include Oceana’s proposals.
“The court cannot fault the agency for failing to incorporate Oceana’s exact proposals into its design of a feasible range of habitat alternatives. Because of the complexity of factors involved in effectively protecting habitat, the proper ‘range’ of alternatives is not obvious. … The agency did not overlook (Oceana’s) concerns, but merely weighted them differently than Oceana would have liked.”
Oceana alleged: Amendment 10 unlawfully transferred certain “fundamental policy decisions” from the realm of plan amendments to the abbreviated process of framework adjustments.
Court said: “Over the years, courts have implicitly accepted that many fishery management measures are commonly enacted by framework action. Despite a long history of this approach, the instant case appears to be the first time the very establishment of ‘frameworkable’ measures – rather than the lack of … notice and comment or the substance of a framework action itself – has been challenged as contrary to congressional intent.
“The parties do not dispute that framework actions are an appropriate tool for at least some types of management measures. Rather, the question is to what extent the secretary and NMFS may delegate their duties to the framework adjustment process.
“Plaintiff argues that only ‘minor’ or ‘ministerial’ changes may be effected through framework actions and that Amendment 10, in contrast, leaves core measures – “the heart of fisheries management” – to the framework adjustment process.
“According to defendants, the framework process is merely an ‘additional’ aspect of Amendment 10, which is necessary to manage fisheries ‘on an ongoing basis’ and to execute Amendment 10’s particularly time-sensitive approach.
“The court concludes that the spectrum of permissible framework actions falls somewhere between the plaintiff’s very narrow definition and the exceedingly broad one proposed by defendants.
“Congress’ desire that fisheries be managed on a continuing basis cannot be read to eviscerate the legislature’s equally strong desire that policy choices be determined with ample public participation … and its mandate that certain features of fisheries management regimes must be specified by FMP.
“It is also clear that Congress contemplated that non-FMP changes to a management regime would be initiated to ‘implement’ an FMP and its corresponding regulations, rather than to propose new management measures.
“The question is … does Amendment 10 contain the FMP components in sufficient detail to meet the requirements … or does it express mere ‘intent’ and defer the key decisions to the framework process?
“(T)he court concludes that plaintiff’s challenge to the framework process outlined in Amendment 10 is not yet fit for judicial review. Amendment 10 describes only a range of options by which the agency may respond to changes in the scallop resource and the procedure by which it must do so, and to date, very few of those options have been exercised.
“The court is simply not in a position to know if Amendment 10 has unlawfully delegated an excessive amount of authority to the framework process, especially where this authority has yet to be exercised, and may, for all we know, not be used for many of the listed measures.” /cfn/
Janice M. Plante
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