Oceana Challenge to Fishery Rules Defeated

(CN) - The government need not face claims that its amended guidelines for mid-Atlantic fisheries do not protect vulnerable species from overfishing, a federal judge ruled.

While overfishing limits estimate the catch level above which overfishing is occurring, regulators account for scientific uncertainty in such estimates by reducing levels in computing a stock's acceptable biological catch, or ABC.

In 2007, Congress required all fishery management plans to establish annual catch limits, at or below the ABC, and accountability measures to ensure compliance. Bycatch, fish that are caught but not sold or kept, remains a source of management uncertainty.

The Mid-Atlantic Council included annual catch targets in an October 2011 omnibus amendment to six of its fishery management plans: the Atlantic Mackerel, Squids, and Butterfish Fishery; the Atlantic Bluefish Fishery; the Spiny Dogfish Fishery; the Summer Flounder, Scup, and Black Sea Bass Fishery; the Surfclam and Ocean Quahog Fishery; and the Tilefish Fishery.

Oceana challenged the rule in a federal complaint against Secretary of Commerce Penny Pritzker, arguing, among other things, that overfishing could still occur since the service did not consider bycatch of non-target stocks. These fish caught while fishing for other species would, for example, include river herring caught in the Atlantic Mackeral fishery.

U.S. District Judge Rudolph Contreras in Washington granted the government summary judgment Monday, despite doubting its claim that the new regulations did not require it to consider including additional stocks in the fisheries.

Since the regulations require the service to do all it can to prevent overfishing, failing to address whether to include non-target stocks in the fisheries means the service failed to address an important piece of the problem, the court found.

On this point, however, the service sufficiently demonstrated that it assessed how the omnibus amendment would affect non-target stock.

Since the amendment set annual catch limits as equal to acceptable biological catch for all stocks in the fishery, it concluded that changes to the current fishery management plans would not harm non-target species.

Oceana simply lacks evidence to contradict the finding, the court found.

It would also be "absurd" to have the service consider every single species in the fishery when modifying a management plan, according to the ruling.

"As noted above, neither the MSA nor the guidelines required that the composition of the fishery be reevaluated during the promulgation of the omnibus amendment," Contreras wrote, abbreviating Magnuson-Stevens Fishery Conservation Management Act. "Where an issue is particularly complex, the scope of reasonable alternatives is necessarily limited. This is particularly true of fishery management, which courts have recognized is 'exceedingly complex.' This is especially so in light of the time constraints NMFS faced, as it was required to implement the new MSA provisions by 2011."

Contreras also pointed out that the Magnuson-Stevens Act requires the service to curb bycatch as much as possible, not limit it entirely.

"If bycatch in non-directed fisheries is accounted for in a stock's overall ACL [annual catch limit], which in turn has its own AMs [accountability measures], it seems that those measures would serve to prevent overfishing," the ruling states. "Oceana has not demonstrated otherwise."

It is furthermore of note that annual catch targets are discretionary accountability measures used alongside other measures like limiting the number of fish commercial fishermen can possess and fining them for going over that number, the court found.

By focusing on the lack of control rules for annual catch targets and ignoring these other measures, Oceana failed to case these accountability measures as insufficient, the court ruled.

Another section of the 39-page dismissal upends Oceana's claim that the service was required to develop in-season bycatch monitoring programs.

Though it may be imprecise to estimate bycatch after each fishing year, rather than counting them in the season, regulators accounted for this in setting the annual catch target, the court found.

"While near-real-time bycatch monitoring may lead to more reliable data in theory, NMFS explained that it lacked the resources to undertake such a measure," Contreras wrote, abbreviating the service's name. "Oceana does not directly challenge this reasoning, but instead asserts that its own [accountability measure] is superior."

Since the service relied on "scientific and technical expertise" in reaching its decision, the court has no right to "reweigh the conflicting evidence or otherwise substitute [its] judgment for that" of the agency, the court ruled.

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