Improving the Use of the "Best Scientific Information Available" Standard in Fisheries Management (2004)

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Appendix H Recent Case Law Support for Guidelines on “Best Scientific Information Available” The following provides several examples of recent case law that address the criteria on which the recommended guidelines are based: relevance, inclusiveness, objectivity, transparency and openness, timeli- ness, and peer review. RELEVANCE Natural Resources Defense Council v. Daley—studies of mobile gear effects on other habitats “not sufficiently analogous” to prove effects on tilefish habitat; views of the preparers of the fishery management plan upheld by the court (Natural Resources Defense Council v. Daley, 254 F. Supp. 2d 434, 440 [S.D. NY 2003]; Magnuson-Stevens Act). Midwater Trawlers Cooperative v. Department of Commerce—error to rely exclusively on political rather than scientific criteria in allocating the whiting fishery; “the best available politics does not equate to the best available science as required by the Act” (Midwater Trawlers Cooperative v. Department of Commerce, 282 F. 3d 710, 720 [9th Cir. 2002]; Magnuson-Stevens Act). National Coalition for Marine Conservation v. Evans—rejecting claim that a pelagic longline closure was a product not of scientific data but of legal and lobbying pressure from environmental groups (National Coalition for Marine Conservation v. Evans, 231 F. Supp. 2d 119, 129 [D. D.C. 2002]; Magnuson-Stevens Act). Maine v. Norton—rejecting allegations of improper motivation in the Endangered Species Act listing of Atlantic salmon (i.e., they did it to 99 

100 “BEST SCIENTIFIC INFORMATION AVAILABLE” STANDARD “settle a lawsuit”) (Maine v. Norton, 257 F. Supp. 2d 357, 389-400 [D. ME 2003]; Endangered Species Act). INCLUSIVENESS Brower v. Evans—error to act in contradiction of all known evidence (including abundance studies, stress literature, and discounting of alternative explanations) that the tuna purse seine fishery was having a significant adverse impact on dolphin stocks (Brower v. Evans, 257 F. 3d 1058, 1071 [9th Cir. 2001]; Marine Mammal Protection Act). American Oceans Campaign v. Daley—agency failed to prepare an impact statement taking a “hard look” at “how fishing practices and gear may damage corals, disrupt fish habitat, and destroy benthic life that helps support healthy fish populations” (American Oceans Campaign v. Daley, 183 F. Supp. 2d 1, 21 [D. D.C. 2000]; Magnuson-Stevens Act; National Environmental Policy Act). Parravano v. Evans—upholding secretarial emergency decision lowering ocean harvest rate to 14.5 percent; the fishery management plan had made conclusory assertions that a 22 percent ocean harvest rate for chinook salmon would ensure a sufficient escapement for the in-river Indian treaty fishery (Parravano v. Evans, 70 F. 3d 539 [9th Cir. 1995]; Magnuson-Stevens Act; Indian treaties). Natural Resources Defense Council v. Evans—improper for U.S. Navy to withhold a “highly relevant” Defense Research Agency study on “The Effects on Fish and Other Marine Mammals of High-Level Underwater Sound” (Turnpenny et al., 1994) from the National Marine Fisheries Service during consultation on peacetime use of low-frequency sonar; the study is “directly relevant” and is not “‘junk science’” (Natural Resources Defense Council v. Evans, 279 F. Supp. 2d 1129, 1179-80 [N.D. CA 2003]; Endangered Species Act; National Environmental Policy Act). Greenpeace, American Oceans Campaign, and Sierra Club v. National Marine Fisheries Service, Evans, At-Sea Processors Association, United Catcher Boats, Aleutians East Borough, and Westward Seafoods, Inc., et al.—deferring to use of telemetry data as the “best available evidence” for evaluating Steller sea lion foraging (Greenpeace, American Oceans Campaign, and Sierra Club v. National Marine Fisheries Service, Evans, At-Sea Processors Association, United Catcher Boats, Aleutians East Borough, and Westward Seafoods, Inc., et 

APPENDIX H 101 al., 237 F. Supp. 2d 1181, 1196-97 [W.D. WA 2002]; Marine Mammal Protection Act). OBJECTIVITY Natural Resources Defense Council v. Evans—tilefish; agency cannot use unsupported inference to override contradictory empirical evidence (Natural Resources Defense Council v. Evans, 254 F. Supp. 2d 434, 441-442 [S.D. NY 2003]; Magnuson-Stevens Act). Greenpeace, American Oceans Campaign v. National Marine Fisheries Service—misuse of telemetry data on foraging Steller sea lions to develop a “zonal approach” to critical habitat not “rationally related” to the data (Greenpeace, American Oceans Campaign v. National Marine Fisheries Service, 237 F. Supp. 2d 1181, 1198 [W.D. WA 2002]; Marine Mammal Protection Act). Hall v. Evans—also a violation of National Standards 4 and 5; error to resort to gear differentials (between trawl gear and gillnetters) for monkfish divorced from a scientific rationale; “there is no discernible, substantive scientific evidence” in the record that supports “gear differential regulations” (Hall v. Evans, 165 F. Supp. 2d 114, 134 [D. RI 2001]; Magnuson-Stevens Act). TRANSPARENCY AND OPENNESS Fishermen’s Dock Cooperative, Inc. v. Brown—summer flounder; “agency’s process of setting the 1994 quota was conducted in good faith, pursued with a proper understanding of the law, based on the best scientific information available, and adequately justified by the agency” (Fishermen’s Dock Cooperative, Inc. v. Brown, 75 F. 3d 164, 173 [4th Cir. 1996]; Magnuson-Stevens Act). Natural Resources Defense Council v. National Marine Fisheries Service—groundfish rebuilding; court defers to agency: “Faced with a choice between an interpretation of the Sustainable Fisheries Act that requires a moratorium on harvesting of fish species that take more than ten years to regenerate naturally, and an interpretation that permits limited harvesting over the course of a longer rebuilding period, [the National Marine Fisheries Service] selected—after public notice and comment—the latter interpretation” (Natural Resources Defense Council 

102 “BEST SCIENTIFIC INFORMATION AVAILABLE” STANDARD v. National Marine Fisheries Service, 280 F. Supp. 2d 1007, 1014 [N.D. CA 2003]; Magnuson-Stevens Act). TIMELINESS Natural Resources Defense Council v. Evans—ordering defendants to prepare and adopt rebuilding amendments for darkblotched rockfish, canary rockfish, lingcod, and Pacific Ocean perch by January 31, 2004, and for bocaccio rockfish, cowcod, yelloweye rockfish, and widow rockfish by April 15, 2004; “there is evidence in the legislative history…that the Councils could be a source of delay and accordingly provided that where a council fails to prepare and complete a rebuilding plan in the statutorily mandated time period, the [National Marine Fisheries Service] itself should take over and complete the plan within the allotted time” (Natural Resource Defense Council v. Evans, 290 F. Supp. 2d 1051, 1056 [N.D. CA 2003]; Magnuson-Stevens Act). Center for Biological Diversity v. Lohn—remanding for determination of whether “Southern Resident” orca whales should be listed as a “distinct population segment”; a violation of the “best scientific” standard to rely upon an “outdated and discredited global Orsinus orca taxon”; to rely upon “science it knows is inaccurate”; to heed a formal taxonomic process that lags behind current knowledge; and to defer to “changes to taxonomic classification that are time consuming, slow, and may be controversial”; “to deny listing of a species simply because one scientific field has not caught up with the knowledge in other fields does not give the benefit of the doubt to the species and fails to meet the best available science requirement” (Center for Biological Diversity v. Lohn, 296 F. Supp. 2d 1223, 1236-1241 [W.D. WA 2003]; Endangered Species Act). Natural Resources Defense Council v. Evans—discredits use of 15- year-old “stale” data to set bycatch rates for bocaccio and lingcod that almost certainly are not operative now (Natural Resources Defense Council v. Evans, 168 F. Supp. 2d 1149, 1153-1155 [N.C. CA 2001]; Magnuson-Stevens Act). Massachusetts ex rel. Division of Marine Fisheries v. Daley— improper to use historical data known to undercount seriously scup recoveries (Massachusetts ex rel. Division of Marine Fisheries v. Daley, 170 F. 3d 23, 27 [1st Cir. 1999]; Magnuson-Stevens Act). 

APPENDIX H 103 Pacific Coast Federation of Fishermen’s Associations, et al. v. U.S. Bureau of Reclamation, et al.—Klamath River dispute; report of a consultant is the “best science currently available,” but a later decision (Pacific Coast Federation of Fishermen’s Associations, et al. v. U.S. Bureau of Reclamation, et al., 2003 U.S. Dist. LEXIS 13745 [N.D. CA 2003]) recognizes that “best science” changes over time and now includes a National Research Council (2002b) interim report (Pacific Coast Federation of Fishermen’s Associations v. U.S. Bureau of Reclamation and Klamath Water Users Association, 138 F. Supp. 2d 1228, 1249-1250 [N.D. CA 2001]; Endangered Species Act). Natural Resources Defense Council v. Evans—groundfish; rejecting a request that the court “light a fire” under the agency to move more aggressively to correct “overfishing”; “where is the science to support a shorter timeline than the agency proposes?” (Natural Resources Defense Council v. Evans, 243 F. Supp. 2d 1046, 1050, 1059 [N.D. CA 2003]; Magnuson-Stevens Act). PEER REVIEW Ocean Conservancy v. Evans—no violation of National Standard 2 to delegate stock assessment duties for sharks to an “independent scientific review panel” (Ocean Conservancy v. Evans, 260 F. Supp. 2d 1162, 1174 [M.D. FL 2003]; Magnuson-Stevens Act; National Environmental Policy Act). ACCOUNTING FOR UNCERTAINTY Natural Resources Defense Council v. Daley—questionable use of a methodology to fix a quota for summer flounder that has “at most an 18 [percent] likelihood” of achieving the targeted mortality (“Only in Superman Comics’ Bizzaro 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 level of confidence’”) (Natural Resources Defense Council v. Daley 209 F. 3d 747, 754 [D.C. Cir. 2000]; Magnuson-Stevens Act). Natural Resources Defense Council v. Evans—tilefish; quoting final fishery management plan approvingly; it is improper to posit habitat damage when impacts are “completely unknown” and “unquantifiable” 

104 “BEST SCIENTIFIC INFORMATION AVAILABLE” STANDARD at this time (Natural Resources Defense Council v. Evans 254 F. Supp. 2d 434, 438 [S.D. NY 2003]; Magnuson-Stevens Act). Fishermen’s Dock Cooperative, Inc. v. Brown—summer flounder; rejecting selection of a methodology to fix a quota that has only a 59 percent probability of not exceeding the mortality goal (Fishermen’s Dock Cooperative, Inc. v. Brown,75 F. 3d 164, 171-172 [4th Cir. 1996]; Magnuson-Stevens Act). Greenpeace v. Mineta—error to open a lobster fishery without correcting a long-tolerated ignorance of its effects on the monk seal: “If, in the 1981 opinion [the National Marine Fisheries Service] was uncertain of the impact of the [fishery management plan] because it knew too little about the monk seal diet, by 1996 it was emboldened by its ignorance to draw definitive conclusions about the impact” (Greenpeace v. Mineta, 122 F. Supp. 2d 1123, 1132 [D. HI 2000]; National Environmental Policy Act). Blue Water Fishermen’s Association v. National Marine Fisheries Service—deferring to agency choice of “high” or “low” mortality data in assessing impact of longliners on leatherback turtles; the National Marine Fisheries Service chooses the “low” and thus more “fishing- friendly” figure (Blue Water Fishermen’s Association v. National Marine Fisheries Service, 226 F. Supp. 2d 330, 339 [D. MA 2002]; Magnuson- Stevens Act; Endangered Species Act). Blue Water Fishermen’s Association v. National Marine Fisheries Service—upholding the use of scientific judgment to close 2.6 million square nautical miles of ocean to longliners to protect endangered loggerhead and leatherback sea turtles (conclusions need not be “airtight and indisputable”) (Blue Water Fishermen’s Association v. National Marine Fisheries Service, 226 F. Supp. 2d 330, 338 [D. MA 2002]; Magnuson-Stevens Act; Endangered Species Act). American Oceans Campaign v. Daley—approving the establishment of essential fish habitat amendments that lacked site-specific scientific information; “review of the Secretary’s action must be especially deferential, given the highly complicated scientific data that the agency must interpret” (American Oceans Campaign v. Daley, 183 F. Supp. 2d 1, 21 [D. D.C. 2000]; Magnuson-Stevens Act; National Environmental Policy Act). Recreational Fishing Alliance v. Evans—deferring to the use of “aggregated” and “incomplete” data in setting retention limits for highly migratory species; courts can not “sidestep responsibility by imposing an obligation on the Secretary to find better data” (Recreational Fishing 

APPENDIX H 105 Alliance v. Evans, 172 F. Supp. 2d 35, 43, 44 [D. D.C. 2001]; Magnuson- Stevens Act). Blue Water Fishermen’s Association v. Mineta—approving imposition of shark quotas over objections that they were unsupported by catch-rate data and insufficient for stock evaluation purposes; “regulation is permissible even if the agency lacks complete information” (Blue Water Fishermen’s Association v. Mineta, 122 F. Supp. 2d 150, 166 [D. D.C. 2000]; Magnuson-Stevens Act).