The U.S. District Court in Washington, DC has ruled that the current catch levels set in Amendment 50 to the Groundfish Fishery Management Plan, developed by the New England Fisheries Management Council and approved by the National Marine Fisheries Service in May 2013, violate federal law and fail to prevent overfishing. This ruling is good news for the recovery of cod, haddock, flounders and other groundfish populations, and the coastal fishing economy they help support.
The 2007 amendments to the Magnuson-Stevens Fishery Conservation and Management Act established a new science-based approach to setting fisheries catch levels to ensure that our nation’s waters are no longer drained of their fishery resources by overfishing.
In his decision in a case brought by Earthjustice on behalf of the Conservation Law Foundation, United States District Judge James E. Boasberg found that the “carryover rule” in Framework 50, which allowed fishermen to carry forward uncaught catch from the prior year, resulted in catch in excess of the limits recommended by the Council’s scientific advisors for fishing year 2013-14. Congress specifically mandated that fishery management councils and the Fisheries Service not set annual catch limits above the biologically-based recommendations of the Council’s scientific advisers. In vacating and remanding this carryover policy back to the agency, Judge Boasberg stated:
“Common sense would indicate that this procedure – which resulted in catch limits above the statutorily permissible levels – contravenes the plain language of the Act. But the Service contends that this is not so…. That’s right: According to the Service, the statutory limits on its authority apply only when it says the magic words. Express limits set by Congress are, under the Service’s theory, mere verbiage, easily circumvented through clever use of a marine thesaurus.”
Read the Framework 50 decision
“While overfishing is still being sanctioned in 2014 by the federal managers, it is encouraging to see the court upholding federal law that protects vulnerable, economically important fish populations,” said CLF’s Peter Shelley, attorney for that case. “We hope that this ruling will set a positive precedent and discourage future instances of overfishing.”
“We are relieved that judicial oversight exists to step in when a federal agency has lost its way,” said Roger Fleming, an attorney with Earthjustice who filed the challenge to Framework 50 on behalf of the Conservation Law Foundation. “Federal statutes cannot be undermined through creative interpretation to please commercial interests. The Magnuson-Stevens Act is very clear about the role of science in setting annual catch limits, and the Fisheries Service’s duty to prevent overfishing.”
A second ruling issued on the same day keeps door open, for now, to future trawling into historically protected New England fish habitat areas. In the second ruling, Judge Boasberg examined the legality of another new rule; known as Framework Adjustment 48 that created a process by which commercial fishermen could seek access to thousands of square miles off New England’s coast that have been protected from bottom trawling for decades. These closed areas are considered by many marine biologists fundamental to restoring the healthy diversity of fish for which New England waters were once known.
Read the Framework 48 decision
Judge Boasberg’s narrow scope of review held that the agency was within its discretion in allowing the access under an abbreviated framework adjustment process. He deferred making any decisions on the environmental analysis that accompanied the rule, concluding that the environmental impacts would have to be considered when the agency actually allowed particular commercial boats into the areas under the new rule.
“Judge Boasberg’s ruling does not diminish the critical role that habitat protection plays in the proper management of New England’s fish populations,” said Shelley. “While it is extremely disappointing to see NMFS moving in the direction of allowing trawling in protected areas at a time when many fish stocks are struggling with commercial extinction, the judge obviously felt it was within their power to do so in this way.”
CLF and Earthjustice have both been participating in a comprehensive process looking at ways that the impacts of fishing gears on the ocean can be minimized in practical ways. “What good is a process that is looking carefully and comprehensively at protecting the places in our ocean that are needed by the fish and marine animals to thrive if the agency is just going to make random decisions every year to allow commercial boats with their heavy bottom gears into the most protected areas before that process can be concluded?” asked Fleming.
CLF and Earthjustice are committed to rebuilding fishing stocks to sustainable levels throughout New England to protect the communities who have always depended on them. These groups are working to protect an ecosystem that was once thought to be unsinkable—the ocean.
Roger Fleming, Earthjustice, (978) 846-0612
Emily Dahl, Conservation Law Foundation, (978) 394-3506
Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.