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Midcoast Fishermen's Association v. Gutierrez

December 30, 2008

MIDCOAST FISHERMEN'S ASSOCIATION, ET AL., PLAINTIFFS,
v.
CARLOS M. GUTIERREZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola U.S. Magistrate Judge

MEMORANDUM OPINION

This case was referred to me by Judge Kennedy for the resolution of the instant Motion to Compel Completion of the Administrative Record [#22].

I. Background

On October 12, 2007, plaintiffs, the Midcoast Fishermen's Association and the Northwest Atlantic Marine Alliance, petitioned the Secretary of Commerce "to take emergency action to address continued overfishing in the Northeastern multispecies fisheries by excluding midwater trawl vessels from groundfish closed areas." Administrative Record ("AR") at 700. Specifically, they demanded that the Secretary

(1) exercise his authority under 16 U.S.C. § 1855(c) to promulgate emergency regulations and interim measures necessary to exclude midwater trawl vessels from all year round and seasonal groundfish closed areas implemented beginning in 1994 to reduce groundfish mortality and protect juvenile and spawning ground fish; and

(2) exercise his authority under 16 U.S.C. § 1855(d) to initiate rulemaking designed to make such protections permanent.

AR at 695-96.

On November 1, 2007, Patricia Kurkut, Regional Administrator, National Marine Fisheries Service, transmitted a memorandum to William T. Hogarth, Assistant Administrator for Fisheries, in which she concluded:

Recent reports of haddock bycatch in the herring fishery prompted renewed analysis of the fishery and resulted with the Council developing Framework Adjustment 43 (FW43) to the NE Multispecies Fishery Management Plan in 2006. This framework, which was implemented on August 15, 2006, created a herring exempted fishery and established an incidental catch cap for haddock and a bycatch allowance for other regulated groundfish when fishing under this exemption. To date, there have been no indications that this cap has been caught. Although observer coverage in this fishery is not as high as the Council requested in FW43 (20% or more), reports have not indicated an increase in bycatch in this fishery over levels previously considered. The Petitioners provide no significant new information to justify emergency action at this time.

Note that we have reviewed the most recent observer data and found no cause for concern or belief that an emergency exists.

AR at 911.

Kurkut also indicated that her recommendation to deny the petition would be controversial because members of the fishing industry would "contend, despite absence of supporting data, that continued access to the closed areas allows midwater trawl vessels to have a significant negative impact on the recovery of groundfish stocks." AR at 912. Nevertheless, she concluded that the "substance of the petition" is not sufficient and recommended its denial. Id. The Regional Administrator concurred. Id.

Plaintiffs filed suit in this Court on December 28, 2007 seeking review of the agency's decision. On April 16, 2008, George Darcy, Ms. Kurkut's Deputy, filed the administrative record, certifying that it was the administrative record for the decision "denying petition for rulemaking to prohibit midwater trawl fishing in Northeastern (NE) multispecies closed areas." AR at 2. With the exception of the initial documents, listed in the Main Index to the Administrative Record, which are regulatory materials pertaining to Framework Adjustments 18 and 43, all the documents that are in the record were created after June 22, 2006 and before Kurkut's decision of November 1, 2007. This is consistent with Kurkut's ...


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