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