6
Legal Challenges Related to NMFS Science: A Sampling of the Litigation

Under the Fishery Conservation and Management Act of 1976 (also known as Magnuson Fishery Conservation and Management Act), lawsuits challenging NMFS decisions focused on the allocation of TACs among competing sectors of the fishery (such as, the recreational and commercial sectors or different components of the commercial fishery).1 In reviewing these and other cases, Greenberg (1993) concluded that courts appeared unwilling “to delve into the intricacies of fishery management,” including whether the best available science is being used properly, and that “even relatively scant evidence may be enough to support management measures on judicial review.” In his view, that was unlikely to change without the adoption of a standard requiring management measures to be supported by a “preponderance of the scientific evidence.”

Shortly after that prediction was made, the courts began to consider more fishing-industry challenges to the scientific basis of commercial quotas that the industry believed were too low. A flood of litigation engulfed NMFS after passage of the Sustainable Fisheries Act (SFA) amendments to the MFCMA, and the Small Business Regulatory Enforcement Fairness Act (which amended the RFA) in 1996. The latter made compliance with the RFA’s economic-impact analytic requirements subject to judicial review.

1  

See, for example, American Factory Trawlers Assoc. v. Baldrige, 831 F.2d 1456 (9th Cir. 1987); C & W Fish Co., Inc. v. Fox, 931 F.2d 1556 (D.C. Cir. 1991).



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Science and Its Role in the National Marine Fisheries Service 6 Legal Challenges Related to NMFS Science: A Sampling of the Litigation Under the Fishery Conservation and Management Act of 1976 (also known as Magnuson Fishery Conservation and Management Act), lawsuits challenging NMFS decisions focused on the allocation of TACs among competing sectors of the fishery (such as, the recreational and commercial sectors or different components of the commercial fishery).1 In reviewing these and other cases, Greenberg (1993) concluded that courts appeared unwilling “to delve into the intricacies of fishery management,” including whether the best available science is being used properly, and that “even relatively scant evidence may be enough to support management measures on judicial review.” In his view, that was unlikely to change without the adoption of a standard requiring management measures to be supported by a “preponderance of the scientific evidence.” Shortly after that prediction was made, the courts began to consider more fishing-industry challenges to the scientific basis of commercial quotas that the industry believed were too low. A flood of litigation engulfed NMFS after passage of the Sustainable Fisheries Act (SFA) amendments to the MFCMA, and the Small Business Regulatory Enforcement Fairness Act (which amended the RFA) in 1996. The latter made compliance with the RFA’s economic-impact analytic requirements subject to judicial review. 1   See, for example, American Factory Trawlers Assoc. v. Baldrige, 831 F.2d 1456 (9th Cir. 1987); C & W Fish Co., Inc. v. Fox, 931 F.2d 1556 (D.C. Cir. 1991).

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Science and Its Role in the National Marine Fisheries Service Plaintiffs have used those laws and the requirements of the NEPA and the ESA to open the federal fishery management process to increased judicial scrutiny under a broader set of environmental and social policy goals than was probably anticipated by Congress in 1976. The ESA and the NEPA have also emerged as major legal levers for requiring an ecosystem-based approach to managing the fisheries of the U.S. EEZ. The committee did not have the time to complete thorough review of NMFS litigation. As a result, the committee decided to examine a sampling of the litigation that provided examples in which the court’s judgment was against NMFS and illustrated points of law concerning potential failures in science or in the application of science. In Fishermen’s Dock Cooperative, Inc. v. Brown, 867 F.Supp. 385, District Court Judge Robert Doumar invalidated the 1994 commercial fishing quota for summer flounder of 16 million pounds and ordered that it be reset to 19 million pounds. Judge Doumar found that the quota set by the council and approved by the Secretary of Commerce deviated downward from the figure reached by using the “best scientific information available” in that the scientific committee had used an estimate of recruitment that was one standard deviation below the geometric mean rather than the geometric mean itself. According to Judge Doumar, that led to a commercial quota that was too low. On appeal, the U.S. Court of Appeals for the Fourth Circuit reversed his decision, holding that the district court judge had overreached his authority in setting a new quota rather than remanding the decision to NMFS. The appeals court found that the district court had misapplied the “best scientific information available” standard for setting the quotas by giving insufficient weight to the requirement that the quota prevent overfishing and therefore had erred in invalidating the quota set by NMFS.2 The litigation surrounding the summer flounder FMP continued, however, as Judge Doumar proved receptive to industry criticism of the process by which NMFS deducted overages in one fishing year from the state’s allocation in the next year. Judge Doumar was also the first to remand a quota to NMFS on the grounds of the RFA of 1980. NMFS did not amend the quota-setting process for summer flounder until late 2001, when it proposed and then adopted a regulatory amend 2   Fishermen’s Dock Cooperative, Inc. v. Brown, 75 F.3d 164, 1996 (4th Cir. 1996).

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Science and Its Role in the National Marine Fisheries Service ment to allow the agency to set the cutoff date at October 31 for landings data that would be used in calculating overage deductions in the following year’s specifications. Had the agency taken that action earlier, it might have deprived the industry plaintiffs of a major legal point of their case. The decision in Natural Resources Defense Council (NRDC) v. Daley illustrates the difficult position into which the council process puts NMFS with respect to applying scientific advice to basic fishery management decisions. The court of appeals found that the 1999 summer flounder quota that NMFS set was unreasonable in that it had only an 18 percent chance of meeting the conservation requirements (the target fishing mortality rate) of the MSFCMA. By adopting that quota, NMFS may have opted for a middle ground between the scientific monitoring committee’s quota recommendation (representing a 50 percent chance) and the full Mid-Atlantic Council’s decision (a 3 percent chance). One may speculate that NMFS decision-makers believed they could not adopt the scientific committee’s recommended quota because it would be too low, perhaps reasoning that as long as the final quota was not as high as that recommended by the Mid-Atlantic Council, it was meeting the requirement of MSFCMA to end overfishing. Whatever NMFS’s reasoning, the court was critical of the agency, noting that “only in the Superman Comics’ Bizarro world, where reality is turned upside down, could the Service reasonably conclude that a measure that is at least four times as likely to fail as to succeed offers a fairly high degree of confidence.” This case suggests that NMFS interpreted the MSFCMA requirements to prevent overfishing leniently because of pressure from the councils and the states and because a valuable fishery was involved, even though very good stock assessment information supported a stricter interpretation (for example, see NRC, 2000a). It illustrates the councils’ risk-prone management decisions and NMFS’s reluctance to require more stringent measures from the councils to rebuild overfished stocks. Those are two of the most serious and persistent problems that NMFS has had in using fishery scientific information. The councils have the discretion to reject the advice of scientific advisory committees, and NMFS has in many instances been unwilling to require greater fidelity to the scientific advice (J. Eagle and B. H. Thompson, Jr., personal communication). The above case and criticisms suggest that Congress should give much more explicit guidance on how NMFS and the councils should proceed in the face of uncertain information. The National Standard 2 directive to use the best scientific information available has not provided sufficient

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Science and Its Role in the National Marine Fisheries Service guidance. Instead, it appears to have served as an invitation to challenge the validity of the scientific information used for stock assessments and for decisions on ecosystem aspects of management. The result is a long list of requests for independent peer review of NMFS science. After the 1996 MSFCMA amendments, the pace and intensity of judicial review of fishery management decisions increased dramatically. A good proportion of these cases reflect the resistance of the fishing industry to reductions in council discretion and the requirements to prevent and end overfishing. The increasing interest of environmental groups in the management and protection of marine fish populations has also resulted in increased litigation. Those groups have used litigation to push NMFS and the councils to adopt a more ecosystem-based approach. Reinvigoration of the MSFCMA’s conservation goal by the SFA provided the basis of such intervention. While advisory panels were preparing reports and recommendations on how to apply ecosystem-based approaches, environmental groups sought to force fishery managers, through litigation, to adopt such approaches now rather than after further study. One of the legal levers they have chosen to use is the NEPA. Failure to follow NEPA has been a central claim in their challenges to NMFS and council decisions since the 1996 amendments to the MSFCMA. Over the years, the councils and NMFS have developed the practice of avoiding the preparation of full environmental impact statements by making a “finding of no significant impact” (FONSI) after a more limited environmental assessment to accompany framework adjustments and amendments to FMPs, even for those implementing the new requirements of the SFA.3 Environmental group plaintiffs have successfully argued that that approach is inadequate. The environmental groups’ challenge to the councils’ EFH amendments adopted after 1996 argued that NMFS has analyzed a limited set of alternatives in its environmental assessments on the EFH amendments. In most cases, one alternative was the status quo (no EFH identification or habitat-protective measures), while the other alternative considered was a broad identification of EFH but no additional habitat-protective measures. The latter was usually the preferred alternative of the councils. In American Oceans Campaign v. Daley, the court held that although the five councils’ EFH amendments were adequate under the MSFCMA, their NEPA assess 3   See 40 C.F.R. §§ 1501.4, 1508.9, 1508.13.

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Science and Its Role in the National Marine Fisheries Service ments were insufficient and violated the mandates and principles underlying NEPA. The EFH amendments included little or no assessment of fishing gear impacts on EFH.4 The court enjoined the enforcement of the amendments and ordered NMFS “to perform a new and thorough environmental assessment (EA) or environmental impact statement (EIS) with respect to each EFH amendment.”5 In exchange for the plaintiffs’ dropping their appeal of the MSFCMA part of the court’s ruling, NMFS entered into a court-approved joint stipulation and order. NMFS agreed to prepare full EISs for all the FMPs challenged in the lawsuits, including an analysis of the effects of fishing on EFH, which included both direct and indirect effects; an analysis of the effects of a full range of reasonable alternatives for meeting the act’s requirement to “minimize, to the extent practicable, adverse effects on [EFH] caused by fishing”; and a decision on whether action is needed to meet that requirement.6 In guidance to his regional administrators, the NMFS assistant administrator encouraged them to prepare the EISs “in the context of the best scientific information that is available today” even though the EFH amendments were completed in 1998.7 In a case that was a major victory for environmental plaintiffs, Greenpeace v. NMFS, Federal District Court Judge Thomas Zilly agreed that the NEPA effectively enlarges the scope of fisheries management to require consideration of the entire marine ecosystem, specifically the North Pacific Ocean, home of the largest single-species U.S. fishery, for Alaskan pollock.8 NMFS was ordered to prepare a programmatic EIS that considers a full range of potential management regimes and the combined effects of all the fisheries in the Bering Sea-Aleutian Islands ecosystem. Meeting that order will entail consideration of the cumulative impact of successive years of fishing under a particular management regime. It will also require consideration of the impact of alternative management strategies that use the full range of management measures to influence the timing and place of 4   No. 99-982 slip opinion (D.D.C. 2000). 5   Id. at 42-43. 6   AOC v. Daley, No. 99-982, Joint Stipulation and Order (Dec. 2001). 7   Memorandum from W.T. Hogarth, Ph.D., Director, NMFS, to Regional Administrators, Guidance for Developing Environmental Impact Statements for Essential Fish Habitat per the AOC v. Daley Court Order, Jan. 22, 2001. 8   Greenpeace v. NMFS, 55 F.Supp.2d 1248 (W.D. 1999).

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Science and Its Role in the National Marine Fisheries Service fishing, not merely the overall catch levels. Circumstances that warrant the same kind of analyses are likely to be found in several other marine ecosystems: major changes in the sizes of exploited and non-target populations, the presence of an endangered or threatened species, and major changes in the marine ecosystem since the preparation of the last, full EIS on FMP.