Science and Its Role in the National Marine Fisheries Service (2002) / Chapter Skim
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6. Legal Challenges Related to NMFS Science: A Sampling of the Litigation
6. Legal Challenges Related to NMFS Science: A Sampling of the Litigation
Pages 44-49
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From page 44... ...
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 sac r .
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From page 45... ...
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 fudge 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. fudge Doumar was also the first to remand a quota to NMFS on the grounds of the RFA of 1980.
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From page 46... ...
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)
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From page 47... ...
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.
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From page 48... ...
Greenpeace u NMFS, Federal District Court fudge 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.
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From page 49... ...
LEGAL CHALLENGES RELATED TO NMFS SCIENCE 49 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.
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