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CONSERVATION LAW FOUNDATION v. MINETA

February 1, 2001

CONSERVATION LAW FOUNDATION, ET AL., PLAINTIFFS,
v.
NORMAN Y. MINETA, ET AL., DEFENDANTS, AND FISHERIES SURVIVAL FUND, DEFENDANT-INTERVENOR.



The opinion of the court was delivered by: Kessler, District Judge.

MEMORANDUM OPINION

Plaintiff's Conservation Law Foundation and American Oceans Campaign bring this action against Norman Y. Mineta in his capacity as Secretary of the Department of Commerce ("Secretary"), the National Oceanic and Atmospheric Administration ("NOAA") and the National Marine Fisheries Service ("NMFS") (collectively "Federal Defendants"), alleging that they violated the National Environmental Policy Act, 42 U.S.C. § 4332, for taking certain actions relating to scallop dredging*fn1 in the waters off the coast of New England. Fisheries Survival Fund ("Intervenor") has intervened in this case as a Defendant.

This matter is before the Court on the Federal Defendants' Motion to Dismiss [#8], Plaintiffs' Motion for Summary Judgment [#23], the Federal Defendants' Motion for Summary Judgment [#33], and Intervenor's Motion for Summary Judgment [#35]. Upon consideration of the motions, oppositions, replies, the arguments made at the motions hearing, and the entire record herein, for the reasons discussed below, the Federal Defendant's Motion to Dismiss is denied, Plaintiffs' Motion for Summary Judgment is denied, the Federal Defendants' Motion for Summary Judgment is granted, and the Intervenor's Motion for Summary Judgment is granted.

I. Statutory Framework

A. The Fishery Conservation and Management Act

The Fishery Conservation and Management Act ("FCMA" or the "Magnuson-Stevens Act"), enacted in 1976, 16 U.S.C. § 1801 et seq., provides the statutory framework for the protection and management of the nation's marine fishery resources. FCMA establishes eight Regional Fishery Management Councils ("FMCs" or "Councils"), each of which has the authority and responsibility to govern conservation and management of the fisheries under its geographical jurisdiction. 16 U.S.C. § 1852. The Councils perform this function by developing and implementing fishery management plans ("FMPs"). After a Council develops an FMP, the National Marine and Fishery Service ("NMFS") and/or the National Ocean and Atmospheric Administration ("NOAA"), acting on behalf of the Secretary of Commerce, evaluate the plans and determine whether they comply with the FCMA, and may approve, disapprove, or partially approve them. 16 U.S.C. § 1854. The Council relevant to the instant case is the New England Fishery Management Council ("NEFMC" or "the Council").

The approval of an FMP requires several steps: first, an immediate review of the FMP, to ensure it is consistent with the FCMA; second, the publishing of the FMP in the Federal Register, followed by the commencement of a 60-day public comment period; and third, the approval, disapproval, or partial approval of the FMP within 30 days of the end of the comment period. The Secretary may refuse to adopt an FMP recommended by a Council if it violates any of the ten "National Standards" established for FMPs by the statute. 16 U.S.C. § 1853 (a)(1-10).*fn2

In 1996, the Mangnuson-Stevens Act was amended by the Sustainable Fisheries Act ("SFA") to, among other things, add a new provision which required Defendants to

describe and identify essential fish habitat for the fishery based on the guidelines established by the Secretary . . ., minimize to the extent practicable adverse effects on such habitat caused by fishing, and identify other actions to encourage the conservation and enhancement of such habitat.

16 U.S.C. § 1853 (a)(7), as amended by Pub.L. 104-297, § 108(a)(3).

Once an FMP has been approved, a Council may adopt amendments to the FMP, but approval of the amendments must undergo the same review process required of FMPs (i.e., notice-and-comment rulemaking). However, a Council may modify an FMP without satisfying the full review process. All amendments adopted by the NEFMC include "framework regulatory adjustment provisions" which allow the Council to "make periodic changes in certain fishing limitations (e.g., size limits, DAS [days-at-sea] limits, trip limits, areas restrictions, etc.)" more quickly than the Council would be able to using the standard notice-and-comment procedures. Defs.' Opp'n to Pls.' Mot. for P.I. at 3. These non-amendment modifications are referred to as "framework adjustments" ("FAs"), and they are particularly relevant to the instant case, as the measures that Plaintiffs challenge were both enacted via framework adjustments.

B. The National Environmental Policy Act

The National Environmental Policy Act ("NEPA") requires all federal agencies to prepare an Environmental Impact Statement ("EIS") whenever they propose "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332 (2)(C). To determine whether an EIS must be prepared, the agency must first submit an environmental assessment ("EA"). 40 C.F.R. § 1501.3. An EA must "briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact [FONSI]." 40 C.F.R. § 1508.9 (a). Even if the agency performs only an EA, it must still briefly discuss the need for the proposal, the alternatives, and the environmental impacts of the proposed action and the alternatives. 40 C.F.R. § 1508.9 (b). If the agency determines, after preparing an EA, that a full EIS is not necessary, it must prepare a Finding of No Significant Impact ("FONSI") setting forth the reasons why the action will not have a significant impact on the environment. 40 C.F.R. § 1501.4, 1508.13.

II. Factual Background*fn3

The New England groundfish stock became severely depleted by the mid-1980s, although the parties disagree on the extent of that severity. As a result, in March 1994, the NEFMC adopted Amendment 5 to the Northeast Multispecies FMP (also known as the Groundfish FMP) in order to help rebuild the groundfish population. In December 1994, with several groundfish species at or near the point of collapse, Defendants issued an emergency rule which prohibited the use of bottom-tending mobile gear, including scallop dredges, in three areas designated as Closed Area I, Closed Area II, and the Nantucket Lightship Area (collectively the "Closed Areas"). The reason for this prohibition was that dredging results in certain amounts of groundfish bycatch*fn4 and disrupts certain types of ocean bottom. The closures were initially to be of short duration. However, pursuant to a subsequent framework adjustment, the closures were continued indefinitely.*fn5

In 1998, NMFS adopted Amendment 7 to the Atlantic Sea Scallop FMP ("Amendment 7"), which was meant to eliminate overfishing and rebuild the scallop population to a level that would produce the maximum sustainable yield. To this end, Amendment 7 permitted scallop fishers to spend 120 days-at-sea ("DAS")*fn6 in 1999, 51 DAS in 2000, and 49 DAS in 2001. In subsequent years, the DAS would decrease even further, to a low of 34 DAS in 2004. Amendment 7 also established fishing mortality levels as a further means of rebuilding the scallop population.*fn7 With the objective of maintaining optimum yield,*fn8 the fishing mortality levels were set at .34 for 2000, .28 for 2001, and to .15 for 2004-2007. Defs.' Statement of Material Facts ¶ 8.

According to Defendants, NMFS subsequently determined that it could maintain the 1999 DAS (120) for the 2000 fishing season while achieving the mortality levels established in Amendment 7. Accordingly, it proposed a framework adjustment ("FA"), FA 12, to modify the DAS for the year 2000. FA 12 was discussed by NEFMC members during the course of two "framework meetings," on September 22, 1999 and November 17, 1999. The FA was submitted by NEFMC to NMFS on December 9, 1999. An EA/FONSI was completed and on March 1, 2000, NMFS approved it. On March 3, 2000, a final rule was published in the Federal Register.

NEFMC also determined, based primarily on information provided in the 1999 Scallop Fishery Management Plan Stock Assessment and Fishery Evaluation ("SAFE") Report, that the scallop resource had been rebuilt far more quickly than expected. Therefore, it considered reopening portions of the three Closed Areas on a limited basis, areas which at that point had been closed for over four years. The Council proposed FA 13, which, among other things, would permit dredging in portions of the Closed Areas for limited periods in 2000: Closed Area II from June 15 through August 14; Nantucket Lightship Area from August 15 to September 30; and Closed Area I from October 1 to December 31.*fn9 lt is undisputed that opening these areas would permit thousands of tows of scallop dredges to occur therein.

FA 13 was discussed by NEFMC members during a series of framework meetings in September 1999, November 1999 and January 2000. It was submitted by the NEFMC to NMFS on March 7, 2000. On June 15, 2000, the Council approved a revised FA 13 (after disapproving one proposed measure); an EA/FONSI was ...


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