New England Fisheries
Court Issues Decisions on NOAA’s Fishing Rules
On Friday, the U.S. District Court in Washington, DC issued a pair of rulings concerning NOAA’s proposals for allowing new fishing in long standing protected areas and increasing catch levels above legal limits. The rulings were in response to challenges brought by Conservation Law Foundation with Earthjustice.
The first ruling on Framework Adjustment 50 to the Northeast Multispecies Fisheries Management Plan was positive news for protecting the economic and environmental viability of New England groundfish populations. It held that the current fishing year’s groundfish catch levels violated federal law by allowing overfishing. You can read the decision here.
The second ruling left the future of currently protected areas in doubt by upholding the NMFS decision to allow fishing access into several ocean areas that have been closed to most commercial fishing for decades.
“While overfishing is still being sanctioned in 2014 by the federal managers, it is encouraging to see the court upholding federal law that protects vulnerable, economically important fish populations,” said CLF’s Peter Shelley, attorney for that case. “We hope that this ruling will set a positive precedent and discourage future instances of overfishing.”
“We are relieved that judicial oversight exists to step in when a federal agency has lost its way,” said Roger Fleming, an attorney with Earthjustice who filed the challenge to Framework 50 with the Conservation Law Foundation. “Federal statutes cannot be undermined through creative interpretation to please commercial interests. The Magnuson-Stevens Act is very clear about the role of science in setting annual catch limits, and the Fisheries Service’s duty to prevent overfishing.”
The 2007 amendments to the Magnuson-Stevens Fishery Conservation and Management Act established a new science-based approach to setting fisheries catch levels to ensure that our nation’s waters are no longer drained of their resources by overfishing. In his decision, United States District Judge James E. Boasberg found the “carry-over” rules approved by NMFS allowing fishermen to carry forward uncaught catch allowances from the prior year were plainly illegal, noting that Congress specifically mandated that fishery management councils and the Fisheries Service not set annual catch limits above the biologically-based recommendations of the Council’s scientific advisers.
In ruling against the agency’s carryover policy, Judge Boasberg stated:
“Common sense would indicate that this procedure – which resulted in catch limits above the statutorily permissible levels – contravenes the plain language of the Act. But the Service contends that this is not so…. That’s right: According to the Service, the statutory limits on its authority apply only when it says the magic words. Express limits set by Congress are, under the Service’s theory, mere verbiage, easily circumvented through clever use of a marine thesaurus.”
In the second ruling, Judge Boasberg examined the legality of another new rule; known as Framework Adjustment 48, that created a process by which commercial fishermen could seek access to thousands of square miles off New England’s coast that have been protected from bottom trawling. These closed areas are considered by many marine biologists to be fundamental to restoring the healthy diversity of fish for which New England waters were once known.
Judge Boasberg’s narrow scope of review held that the agency was within its discretion in allowing the access under an abbreviated framework adjustment process. However, he deferred making any decisions on the environmental analysis that accompanied the rule, concluding that the environmental impacts would have to be considered when the agency actually allowed particular commercial boats into the areas under the new rule.
“Judge Boasberg’s ruling does not diminish the critical role that habitat protection plays in the proper management of New England’s fish populations,” said Shelley. “While it is extremely disappointing to see NMFS moving in the direction of allowing trawling in protected areas at a time when many fish stocks are struggling with commercial extinction, the judge obviously felt it was within their power to do so in this way.”
CLF and Earthjustice are committed to rebuilding fishing stocks to sustainable levels throughout New England to protect the communities who have always depended on them. These groups are working to protect an ecosystem that was once thought to be unsinkable—the ocean.