Fishing Bycatch Regulations Pass Judge’s Sniff Test

WASHINGTON (CN) - Federal regulators ducked a conservation-minded challenge Thursday concerning rules meant to minimize fishing bycatch.

The National Marine Fisheries Service adopted the rules in question two years ago, with approval from the D.C. Circuit.

Though the rules requires fishing vessels to occasionally have a biologist document the amount of fish caught and discarded, the group Ocean complained in a federal complaint that the infrequency of such observation undermines its efficacy as a serious check on fishing abuses.

U.S. District Judge Ellen Segal Huvelle sided with the agency Thursday at summary judgment, saying the issue comes down to how the Fisheries Service allocates its funding for NMFS, short for standardized bycatch reporting methodology.

"There is no funding trigger that needs to be adequately defined, nor a discretionary procedure for which the agency must set out an identifiable standard," the ruling states. "Since there is no impermissibly vague funding trigger, the agency’s funding allocations to the SBRM are not reviewable.”

Huvelle said the 30 percent bycatch standard the NMFS adopted, which was taken from a report from the National Working Group on Bycatch, fell within the working group’s recommended standard of 20 percent to 30 percent. The agency adopted the higher end of that recommendation, but Huvelle deferred to the agency’s discretion on that.

"The SBRM applies its CV standard to individual combinations of fishing mode and species, whereas the working group recommendation was for total discards in a fishery,” the ruling states, using the abbreviation for coefficient of variation. “This is the kind of technical judgment to which the Court must defer.”

Oceana likewise failed to persuade Huvelle that the NMFS had ignored new evidence.

"The 2015 SBRM clearly states that NMFS considered making electronic monitoring an 'additional bycatch information collection mechanism,'" the ruling states. "Oceana does not and cannot seriously argue that electronic monitoring would be a useful supplement even if it could not replace observers on any trips, so trips would have to use (and pay for) both mechanisms at the same time."

The National Marine Fisheries Service did not immediately respond to a phone call seeking comment on the ruling.

Oceana’s assistant general counsel Eric Bilsky said the group is disappointed with the ruling. “Adequate fisheries monitoring is the foundation to sustainable fisheries,” he said in an email. “We are dedicated to improving fisheries monitoring to protect the resource and protect and sustain fishing communities. We are studying the opinion closely and evaluating next steps.”

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