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CONSERVATION LAW FOUNDATION v. EVANS

April 26, 2002

CONSERVATION LAW FOUNDATION, ET AL., PLAINTIFFS,
V.
DONALD EVANS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gladys Kessler, United States District Court Judge.

REMEDIAL ORDER OPINION

I. Background

On May 19, 2000, Plaintiffs Conservation Law Foundation ("CLF"), National Audubon Society ("NAS"), Natural Resources Defense Council ("NRDC"), and The Ocean Conservancy (collectively "Plaintiffs") brought suit against the United States Secretary of Commerce Donald Evans, the National Marine Fisheries Service ("NMFS"), and the National Oceanic and Atmospheric Administration ("NOAA") (collectively "Defendants"), charging that Defendants failed to prevent overfishing and minimize bycatch*fn1 along the New England coast.

Specifically, Plaintiffs alleged that Defendants violated the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson-Stevens Act"), 16 U.S.C. § 1801 et seq., as amended by the Sustainable Fisheries Act ("SFA"), Pub.L. No. 104-297, 110 Stat. 3559 (1996), and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706.

The Magnuson-Stevens Act, enacted in 1976, provides a complex, multi-layered statutory framework for the protection and management of the nation's marine fishery resources. It establishes eight Regional Fishery Management Councils, each of which has the authority and responsibility to govern conservation and management of the fisheries under its geographical jurisdiction by developing and implementing fishery management plans ("FMPs") and amendments thereto. See 16 U.S.C. § 1852.

In 1996, Congress enacted the SFA in order to prevent overfishing and to rebuild the New England groundfish stock, which had become severely depleted by the mid-1980s. See Conservation Law Foundation v. Mineta, No. 00-1718, slip op. at 5 (D.D.C. Feb. 1, 2001). The SFA strengthened the Magnuson-Stevens Act by requiring Defendants, inter alia, (1) to prevent overfishing and rebuild depleted fish populations; and (2) to report, assess, and minimize bycatch. See 16 U.S.C. § 1802 (28)-(29), 1853(a)(10)-11, 1854(e).

The New England Fishery Management Council ("NEFMC"), developed FMP Amendment 9, which became effective on November 15, 1999. See A.R. 834. Amendment 9 revised the maximum annual fishing mortality rates for 12 depleted groundfish species.*fn2

On December 28, 2001, the Court granted Plaintiffs' Motion for Summary Judgment. The Court determined that Defendants violated the Magnuson-Stevens Act, as amended by the SFA and the APA. Specifically, the Court found that Defendants violated the SFA and APA by failing to implement Amendment 9 of the Fishery Management Plan, thereby violating the overfishing, rebuilding, and bycatch provisions of the SFA. The Court further held that Amendment 9 violated the bycatch provisions of the SFA.

Subsequent to the Court's summary judgment ruling, the parties commenced briefing the remedial phase of the case. The following parties have intervened in these remedial proceedings: (1) Northeast Seafood Coalition; (2) Associated Fisheries of Maine, the Cities of Portland, Maine and New Bedford, Massachusetts, and the Trawlers Survival Fund; (3) the State of Maine; (4) the State of New Hampshire; (5) the State of Rhode Island; (6) the Commonwealth of Massachusetts; and (4) Paul Parker, Craig A. Pendelton, Northwest Atlantic Marine Alliance, Stonington Fisheries Alliance, Saco Bay Alliance, and Cape Cod Commercial Hook Fishermen's Association. In addition, many, many members of the public have written to the Court expressing their heartfelt views and concerns about the far-reaching consequences of whatever remedy is to be ultimately selected.*fn3

Recognizing the substantive complexity of the relief which had to be considered, as well as the enormous regional interest in the issue, the Court held a status conference on February 15, 2002, with the Plaintiffs, the Government, and the previously mentioned States, Cities, organizations, and individuals who were allowed to intervene. At that status, the Court urged the parties to consider mediation, discussed why it might prove particularly effective in this difficult case, introduced the parties to Ms. Nancy Stanley, the Director of the Court's Alternative Dispute Resolution Program, and directed them to have an initial conference/discussion with her since virtually all parties were personally present at the courthouse that day.

At the same time, the Court made it clear that, because of the imminence of the opening of the fishing season on May 1, 2002, the parties would have to operate on parallel tracks: mediation or a variation thereof, if they so chose; and formal briefing of the issues so that the Court was not forced to decide the remedy under intense time pressures. Unfortunately, despite everyone's best efforts, the latter is precisely what happened.

On the mediation track, all the parties engaged in a truly Herculean effort. Under the expert guidance of Ms. Stanley and her co-mediator Dan Dozier (as well as his two hard-working assistants, Ms. Braden Sweet and Ms. Regan Maund), more than 40 people (representing all parties) engaged in a marathon five-day mediation. While the Court of course has no knowledge of the substance of any of those sessions, it has been assured that every single participant worked incredibly hard, in good faith, and with great flexibility and creativity, to achieve a resolution. When that could not be achieved after the end of five 14-hour days, the parties continued communicating and attempting to reach consensus even after they had separated and returned to their home jurisdictions. Ultimately, after expenditure of an incredible number of hours and intellectual and emotional energy, many of the parties were able to reach a proposed settlement which was formally filed on April 16, 2002, as a Settlement Agreement Among Certain Parties. The Court cannot give enough high praise to all the parties — and of course the mediators — who participated in this intense effort to craft a complex settlement which would meet the core needs of all concerned.

In addition to working with the parties on the substance of a settlement, the mediators were able to help the parties with another difficult project. The Court became convinced at an early point that access to a technical advisor would be necessary. As fully explained in the Court's Order of April 9, 2002, Dr. Wayne Getz was chosen for this position. Ultimately, minimal use was made of Dr. Getz' services. The Court and its law clerk held two lengthy conference calls with Dr. Getz (each of which was approximately one hour) in which many questions were asked, as anticipated, about the meaning of various scientific terms and descriptions of certain kinds of fishing gear and nets. The Court much appreciates the explanations provided by Dr. Getz and his ready accessibility, especially given his busy teaching schedule and the difference in time zones.

On the formal briefing track, the parties have submitted numerous and extensive memoranda regarding the scope and nature of the relief to be ordered. Briefing began with Defendants' submission of their proposed remedy on March 1, 2002. Responses followed, and at Plaintiffs' request, Defendants were ordered to submit, by April 1, 2002, appropriate Total Allowable Catch ("TAC") levels for the 2002-2003 fishing season for all fish species governed by Amendment 9, and the management measures that would secure compliance with Amendment 9 for the 2002-2003 fishing season. Thereafter, there were two additional rounds of briefing: one pertaining to the Defendants' April 1 submission, and one pertaining to the April 16 Settlement Agreement Among Certain Parties.*fn4 The last of many briefs was filed on April 22, 2002 — a mere 8 days before the opening of the fishing season.

II. Fashioning An Appropriate Remedy

Fashioning an appropriate remedy has been one of the hardest tasks this Court has ever undertaken. The livelihood — indeed the way of life — of many thousands of individuals, families, small businesses, and maritime communities will be affected.

The economy of state and local governments in the region will therefore undoubtedly be impacted in turn. The future of a precious natural resource — the once-rich, vibrant and healthy — and now severely depleted New England Northeast fishery — is at stake. All of these diverse interests must be respected and considered, as the ten National Standards set forth in the Magnuson-Stevens Act mandate.*fn5

To compound the difficulties of the task, we lack the rigorous, focused, scientific research, data, and understanding which are absolutely necessary to develop long-term strategies for rebuilding stocks, preventing overfishing, and minimizing bycatch and its mortality.*fn6 As recently as March 19, 2002 — a mere six weeks before the May 1 deadline — the Government filed the Final Report of the Working Group on Re-Evaluation of Biological Reference Points for New England Groundfish ("2002 Working Group Report"). That Report, virtually all parties concede, represents the best available scientific information (as mandated by National Standard Two) for the multispecies New England groundfish complex. Put starkly, it has completely changed the scientific landscape — or seascape — in this instance.*fn7

Although this Court ruled in its Memorandum Opinion of December 28, 2001, that the Government "can, and must, give effect to Amendment 9," slip op. p. 17, it is clear that that course of action is now impossible. Not only would it produce absurd and damaging results in terms of statutory objectives,*fn8 but the scientific basis on which it rests has become invalid, even though it may have been the best available back in 1999 when the Amendment was approved. For example, two of the most basic and significant scientific parameters, Bmsy goals and fishing mortality rates which will achieve and maintain those goals for the Fishery's 12 groundfish species, have been newly calculated and established in the 2002 Working Group Report. Because of these new calculations, other provisions in Amendment 9, such as the all-important control rules, need to be re-evaluated.

In short, given the completion on March 19 of the 2002 Working Group Report, which now represents the "best scientific information available," it cannot be said that either the Settlement Agreement Among Certain Parties or the Order the Court is now entering complies with Amendment 9, based as it is on outmoded and no longer valid scientific underpinnings.

What the Settlement Agreement Among Certain Parties does represent is an extraordinary degree of consensus — after much give and take — amongst a broad coalition of parties ranging from the lead Plaintiff Conservation Law Foundation (with a long history of dedicated advocacy on behalf of fishery management issues in New England) to the Government (with its attendant statutory responsibilities) to individual States including Maine, Massachusetts, New Hampshire, and Rhode Island to individual Cities such as Portland, Maine and New Bedford, Massachusetts, to fishing groups with diverse interests such as the Associated Fisheries of Maine, the Trawlers Survival Fund, Northwest Atlantic Marine Alliance, and the Cape Cod Commercial Hook Fisherman's Association.

These parties have reached a consensus on what is both necessary and achievable in the short-term and the long-term to preserve and enhance the multispecies groundfish complex in New England, while the Government — under the Court's watchful continuing jurisdiction — develops and then uses the best scientific information available to design, publicly air, and then adopt, a multispecies groundfish management plan that will comply with Amendment 9 and the National Standards set forth in the Magnuson-Stevens Act.*fn9

Thus, the Court has concluded, after careful examination and study of the many documents submitted and, in particular the objections of the three non-settling Plaintiffs (National Audubon Society, Natural Resources Defense Council, and The Ocean Conservancy*fn10) and the Northeast Seafood Coalition, that it is appropriate to use the Settlement Agreement Among Certain Parties as a baseline remedy.

As more fully explained, infra, that Agreement provides, until adoption of Amendment 13, significant new restrictions on DAS, on the larger trawl vessels which account for much of the groundfish mortality, and on mesh sizes and gear to reduce bycatch and fish mortality; it provides for significant area closures designed to protect the vulnerable Gulf of Maine cod and Georges Bank cod; it increases the minimum size of cod that can be landed and reduces the possession limits; it greatly limits the unused DAS or "latent effort" which can be legally activated at any time; it increases observer coverage; it provides for the collection and analysis of timely and accurate fishing and bycatch information without which no long-term fishery management plan can be adopted; and it provides a firm schedule for adoption of Amendment 13.*fn11

Some additions, as explained infra, have been made to the terms of the Settlement Agreement where the Court felt that certain provisions could be strengthened in terms of reducing overfishing and minimizing bycatch without risking the lives of fishermen or endangering the future of their communities and their way of life.

The Court recognizes that none of the interests involved in this litigation will be unaffected by this Order. By the same token, every one of those interests will undoubtedly be unhappy about some provision in the Order. The Court has done its best, in exercising its equitable jurisdiction, to reconcile and comply with Congress' directives.

It is now time for all parties to move forward with the enormous and challenging — but gratifying — task of rebuilding the New England multispecies groundfish fishery to the glory of Nature it once was.

III. The Remedy

The management measures contained in the Court's Remedial Order, and derived in substantial part from the Settlement Agreement Among Certain Parties, represent significant conservation steps to reduce overfishing and bycatch in the New England groundfish fishery, while minimizing, to the extent possible, the adverse economic impact on the fishing industry and communities. The National Standards contained in the Magnuson-Stevens Act served as a guide to the development of these remedial measures. Fishing mortality and bycatch are reduced through reductions in fishing effort such as significant decreases in DAS and the preclusion of new fishing effort from entering the fishery, increased area water closures, changes in mesh sizes and the amount of gear that can be fished, and increased observer coverage.

The Remedial Order provides for implementation in three stages: the Amended Interim Rule, effective May 1, 2002; the Second Amended Interim Rule, effective August 1, 2002, until implementation of Amendment 13; and the long-term Fishery Management Plan Amendment 13. The distinction between the first and Second Amended Interim Rule is necessary to provide a transitional period that affords sufficient notice and opportunity for compliance with the more detailed and, in the case of some measures, more stringent requirements imposed in the latter Rule. Further, the present procedural approach defers to the discretion and expertise of the Executive Branch agency in developing the appropriate scientific methodology that is necessary for long-term management of the Fishery and in developing the long-term management measures mandated by that methodology. If the agency carries out its responsibilities, it will develop and promulgate, no later than August 22, 2003, a Fishery Management Plan — Amendment 13 — that complies with the overfishing, rebuilding, and bycatch provisions of the SFA. NMFS' history demonstrates the necessity of judicial monitoring, and the Court will therefore retain jurisdiction until promulgation of Amendment 13 to ensure adequate and timely compliance by the agency.

As noted earlier, the Court is aware of the substantial negotiations and compromises underlying the Settlement Agreement Among Certain Parties, and has honored that agreement to the extent possible. Nonetheless, changes have been made in areas where the Court has concluded, in light of the entire record, that the negotiated Agreement fails to provide sufficient protection for the most vulnerable species. Such changes include modified DAS restrictions, increased area closures, accelerated implementation dates for some measures, elimination of the increase in poundage limits for Gulf of Maine Cod, and increased observer coverage.

The central component of the proposal for relief originally advanced by the majority of Plaintiffs*fn12 is implementation of a so-called "hard TAC" system.*fn13 Plaintiffs National Audubon Society, Natural Resources Defense Council, and The Ocean Conservancy advocate the importance of hard TACs as a backstop to the "indirect" management measures generally employed by NMFS to prevent overfishing.*fn14 The immediate implementation of a hard TAC system is vigorously opposed by the Defendants, Intervenors, and by Plaintiff Conservation Law Foundation in its most recent submission. It is the determination of this Court that implementation of a hard TAC program beginning in May 2002 will not achieve the desired results and may result in extremely negative, though unintended, consequences for the groundfish stocks, the fishermen, and the fishing industry as a whole.

First, the data necessary to effectively implement a hard TAC system simply does not exist at this time. To implement a hard quota system, a total allowable catch amount must be determined at the beginning of a fishing season, and fishing for that species must be prohibited as soon as that quota has been caught. To be successful, the TAC program must have access to real time catch data, not just landings data, so that bycatch mortality can be accurately measured. The New England groundfish fishery does not presently possess the necessary information (or information collection capacity), including data on the amount and type of bycatch in the fishery. See Conservation Law Foundation's Reply to Responses of National Audubon Society et al. and Northeast Seafood Coalition to the Proposed Settlement Agreement and Stipulated Order, Ex. 1, Chatwin Decl. ¶ 31 ("CLF Reply").

Moreover, as discussed supra, there is presently a lack of consensus regarding the best scientific information available as to the current status of the groundfish stocks and the biological reference points and population projection models that serve as the basis for fishery management. See Federal Defendants' Reply with Respect to Remedy and Response to March 18, 2002 Order at 21-25. Such scientific information is necessary to develop appropriate TAC levels. Absent agreement upon the scientific methodology to derive the TAC levels, any hard TAC system would contravene National Standard Two, which requires that fisheries be managed "based upon the best scientific ...


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