conservation-beneficial). Defs.' M.S.J. at 32-33; A.R. at 5740.
Defendants arrived at this conclusion for two reasons.
First, they determined that FA 13 would likely shift dredging away from
the areas where scallops had been intensely fished to the reopened
portions of the Closed Areas, where the scallops were much larger, and
consequently, required less bottom dredging time to catch. Defs.' M.S.J.
at 13; see also Amendment 7, A.R. at 582 (observing that "scallops grow
rapidly during their first several years of life with a 50-80% increase
in shell height and a quadrupling of meat weight between ages 3 and 5").
Second, the Framework Adjustment enacted a 10 DAS "trade-off": any vessel
fishing for scallops in the re-opened areas would automatically have 10
DAS subtracted from its 120 DAS quota, even if the trip was of a shorter
duration. FA 13, A.R. at 5658-59.
As a result of these two measures, FA 13 concluded, based on the best
estimates available, that "there will be a 22% reduction in bottom time
needed to harvest the same amount of sea scallops within the current
closed areas as compared to the status quo (i.e. no access to closed
areas)." A.R. at 5740. This reduction in dredging time would likely lead
to a lower "frequency and intensity of gear use," which has been
documented to result in a correspondingly lesser degree of "adverse
impact" to EFH. A.R. at 5741. In other words, the EA concluded, based on
the available scientific evidence, that because of FA 13 the Georges Bank
as a whole — including the numerous portions comprised of more
complex*fn22 ocean bottom — would experience less dredging and
less resulting damage to EFH and the groundfish population.*fn23
For the reasons stated, the Court concludes that Defendants' EFH
analysis satisfies NEPA. EA 13, almost nine pages in length, cited at
least six scientific studies which addressed various EFH-related issues,
most notably the interaction between fishing and ocean bottom habitat; in
fact, the EFH portion of the EA relied heavily on a study co-authored by
one of Plaintiffs' own declarants, Peter J. Auster.*fn24 See A.R. at
5739-5741 (citing to 1999 study by Auster and Langston six times, more
than any other study).
The EA acknowledged the severe impact that bottom-tending fishing
gear, such as scallop dredges, is likely to have on ocean bottoms of
higher complexity (i.e., ocean bottoms containing rock and gravel). See,
e.g., A.R. at 5740 ("In more complex habitats, such as rock and gravel
substrates, [bottom-tending mobile fishing] gear is associated with the
scraping and smoothing of gravel mounds and turning over of rocks and
boulders. Epifauna present in these habitats are often removed or
crushed.") (citations omitted)*fn25 For precisely this reason,
Defendants attempted to limit dredging in the Closed Areas, insofar as
they could do so based on the existing scientific literature, to areas
with sandy and less complex ocean bottoms.*fn26
Further, given that EA 13 projected that the two framework adjustments
would be conservation-neutral and would likely result in a net decrease
in dredging in the Georges Bank, see A.R. at 5740-41, the Court cannot
say that the EFH analysis Defendants undertook in EA 12 and EA 13 was
inadequate. While the EAs' discussion of EFH might be at times less than
comprehensive, the Court concludes that Defendants' decision to open
portions of the Closed Areas was not arbitrary or capricious in violation
Because the Court finds the EAs and FONSIs satisfactory for NEPA
purposes, it need not reach the separate issues of whether an EIS should
have been prepared and whether an injunction is warranted.
For the reasons stated above, the Court concludes that it has
jurisdiction to consider Plaintiffs' complaint. Accordingly, the Federal
Defendant's Motion to Dismiss is denied.
The Court also concludes that neither the environmental assessments
completed by Defendants for Framework Adjustments 12 hnd 13, nor the
decision to enact those Framework Adjustments, was arbitrary, capricious
or in violation of law. The Court finds that while the environmental
assessments might not have been ideally drafted, Defendants have complied
with the National Environmental Policy Act. Accordingly, 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.
An appropriate Order will accompany this Opinion.
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 in the accompanying
Opinion, it is this 1st day of February 2001
ORDERED, that the Federal Defendant's Motion to Dismiss [#8] is
denied; it is further
ORDERED, that Plaintiffs' Motion for Summary Judgment [#23] is denied;
it is further
ORDERED, that the Federal Defendants' Motion for Summary Judgment [#33]
is granted; it is further
ORDERED, that the Intervenor's Motion for Summary Judgment [#35] is
granted; and it is further
ORDERED, that this case is dismissed.
This Order constitutes a final adjudication on the merits.