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Thursday, May 30, 2024 | Back issues
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Enviros Win One, Lose One in Fishing Rulings

(CN) - Environmentalists prevailed in one of two rulings on commercial fishing in New England, with a federal judge rejecting a regulation that effectively allowed fishermen to exceed their annual catch limit.

In the first of two of related decisions, U.S. District Judge James Boasberg in Washington, D.C., dismissed the Conservation Law Foundation's claims that the New England Fishery Management Council and other federal agencies violated their own statutes with a decision that abandoned environmental protection in favor of short-term commercial gains.

The dispute between the Boston-based environmentalists and the federal agencies began in 2013, after the council sought to amend its earlier reduction in the allowable annual catch for local fishermen.

The agency's intent in adopting that restriction was to prevent devastating overfishing in the region, but it soon came to believe that the regulation might be overly burdensome on the local fishing industry.

To ease that burden, the council proposed "Framework 48," an adjustment that would allow local fishermen to apply for permission to enter areas that had previously been closed to commercial fishing, subject to certain limitations.

The Conservation Law Foundation sued the council, the U.S. Department of Commerce, the National Oceanic and Atmospheric Administration and the National Marine Fisheries Service, claiming the action violated the Magnuson-Stevens Fishery Conservation and Management Act (MSA), and the National Environmental Policy Act (NEPA).

In the case of the former, the environmentalists argued that the agencies should have used a more formal process to open the protected areas to commercial fishing.

They also argued that the NEPA requires the defendants to produce a more detailed environmental analysis before they implemented Framework 48.

The agencies countered that because no fisherman had applied for an exemption before the lawsuit was filed, the case simply isn't ripe for judicial review. They further argued that even if it is, they have fulfilled their obligations under both statutes.

Both sides file motions for summary judgment.

Judge Boasberg found that while the environmentalists had made some interesting arguments, "they ultimately fall short."

"While the court agrees that the group's MSA claim is ripe, the process defendants used to promulgate Framework 48 and the supporting analyses were perfectly sufficient under the requirements of that law," Boasberg wrote.

He said the agencies were well within their power to approve the measure and, as a result, the foundation's arguments for why Framework 48 violated the MSA "all come up empty."

Boasberg said the NEPA claim "is not yet ripe for review."

The Conservation Law Foundation fared better in Boasberg's second opinion, this one concerning what the judge described as the "complicated" matter of setting annual catch limits for U.S. coastal waters.

Under the MSA, regional fishery management councils set the annual catch limits based on the recommendations of their respective scientific and statistical committee as to what constitutes an "acceptable biological catch."

While in theory a council can adopt tighter restrictions than its committee recommends, it cannot set catch limits that exceed the expert recommendations.

In the case of Framework 50, a suite of measures that tweaked New England's Multispecies Fishery Management Plan, the Conservation Law Foundation argued that federal regulators did just that.

The foundation claimed that the National Marine Fisheries Service exceeded the committee's recommended catch limits by tacking on the "carryover" catch from the previous year.

Carryover is essentially catch that was allocated to fishers but remained uncaught in the prior fishing year.

Boasberg agreed that "the service's choice to establish de facto [annual catch limits] in excess of the committee's recommendations was plainly illegal under the language of the statute," referring to the Magnuson-Stevens Act.

He acknowledged that vacating Framework 50's carryover provisions would disrupt some commercial fishing, but said "the court should not turn a blind eye to the danger of leaving the current rule in place."

"Permitting carryover to remain intact increases the likelihood that additional environmental harm, in the form of excessive fishing, will take place over the course of the next month," Boasberg wrote. "And this is exactly the sort of harm Congress sought to avoid when it cabined the council and the service's discretion in setting [annual catch limits] in the first place."

He vacated the provisions in Framework 50 and its implementing rule, and remanded for reformulation by the defendant agencies.

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