Court Orders Better Protection for New England Groundfish

By Cat Lazaroff

WASHINGTON, DC, January 4, 2002 (ENS) - The nation's fisheries managers have defied Congressional mandates to conserve New England groundfish, a federal judge has ruled. The district court ruling in a case brought by five environmental groups could lead to new restrictions on the fishery, aimed at preventing overfishing and reducing bycatch.

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Trawler with haul of groundfish (Photo courtesy NOAA)
The groups are declaring victory in their battle to protect ocean life in the New England region and other federal waters from overfishing.

"This ruling is a strong victory for the environmental protection principles of the Sustainable Fisheries Act and for all New England fish populations," said Priscilla Brooks, marine project director at the Conservation Law Foundation (CLF).

"The National Marine Fisheries Service (NMFS) has been caught in the act of ignoring the law including regulations that they themselves approved to manage New England's struggling groundfish," added Brooks. "By doing so federal fishery managers have put the long term recovery of New England groundfish populations at risk along with the economic viability of New England's fishing communities."

In 1996, Congress enacted the federal Sustainable Fisheries Act (SFA), amending the Magnuson-Stevens Fishery Conservation and Management Act, in order to prevent overfishing and rebuild the nation's fish stocks. The Act required that by 1998, all regional fishery management councils including the New England Fishery Management Council, had to adopt stricter measures to control overfishing of groundfish and reduce bycatch.

The environmentalists' lawsuit charged that NMFS violated both of these requirements. The suit charged that groundfish catch levels, proposed by the New England Fishery Management Council and approved by NMFS, are too high and violate federal law by risking further depletion of New England groundfish populations.

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Fishers in Cape Cod Bay, Massachusetts, hold a large cod, a valuable groundfish (Photo by Commander John Bortniak, NOAA Corps)
"This ruling brings to light the sad fact that federal fisheries regulation has been derailed by short term commercial interests," said Oceana attorney Eric Bilsky. "It sends a message that ocean management must be based on sound science, not politics."

The court ruled in favor of the groups' on all counts, upholding their claim that by not taking action to stop overfishing and minimize bycatch as required by law, NMFS is jeopardizing the long term ecological and economic health of the fishery.

Judge Gladys Kessler ruled that by allowing overfishing of New England groundfish species, the agencies have violated the Sustainable Fisheries Act. The court found that as a result of years of overfishing, "it is beyond dispute that the New England groundfish population has been severely depleted."

Kessler held that the National Marine Fisheries Service is violating the Sustainable Fisheries Act by failing one of the agency's own regulations, known as Amendment 9 to the Multispecies Fishery Management Plan. Amendment 9 mandates the use of overfishing standards in order to rebuild fish populations and prevent overfishing of groundfish off the coast of New England.

In addition, the defendants' failure to minimize bycatch, or to adopt new measures to report and assess bycatch, are "arbitrary, capricious and contrary to law," wrote Kessler. Bycatch is the accidental catching and killing of non-targeted fish and other species, such as sea turtles.

bycatch

Bycatch occurs when fishers catch species other than those they are seeking. Here, a lobster is tangled in a gillnet intended to capture cod and other groundfish (Photo by P. Auster, courtesy OAR/National Undersea Research Program)
The court stated that "the record shows that, after the SFA was enacted, [NMFS] adopted no measures to minimize bycatch and bycatch mortality in the groundfish fishery. Such an approach both ignores and frustrates the will of Congress."

"The failure of the National Marine Fisheries Service to manage bycatch in the New England groundfish fishery has contributed significantly to the plight of groundfish stocks for years," said Brad Sewell, senior project attorney with the Natural Resources Defense Council. "This federal court ruling is unequivocal in its mandate to NMFS to take effective action to measure and minimize this wasteful practice."

In her opinion, Judge Kessler quoted statements by officials who support ending the mismanagement of New England's fisheries, including Massachusetts' Senator John Kerry and former Representative Gerry Studds, both Democrats.

"This victory sends a strong message to fishery mangers that business as usual in the New England fishery will not be tolerated," said John Phillips, The Ocean Conservancy's regional director. "Fishery managers must act now to accelerate the rebuilding of New England's groundfish stocks and ensure that other sea life caught in the process will no longer be disregarded."

In October 2001, the Marine Fish Conservation Network released a five year review of the Sustainable Fisheries Act, which found that most fisheries now operate virtually unaffected by any additional requirements, despite the Act's aim of reducing damaging fishing practices on essential fish habitat.

"NMFS must now stop making excuses and take action to stop the overfishing of New England groundfish stocks as Congress mandated in the Sustainable Fisheries Act", said Marilyn Twitchell, an attorney with the National Audubon Society. "NMFS must also manage bycatch which has contributed to overfishing."

trawlers

Fishers, like those who man these groundfish trawlers in Maine, may face new restrictions based on the court's decision (Photo by William B. Folsom, courtesy NMFS)
Citing the government's "record of inaction and delay," Kessler ordered federal fisheries managers to meet with the five environmental groups on January 25, to discuss measures to help rebuild depleted fish stocks. Those measures, which could include stricter catch limits or closures of critical fish habitat, may prove painful to the region's fishers.

Still, said Twitchell, "the court's ruling will ensure that New England's beleaguered groundfish stocks are put back on track toward sustainability."

The court's decision is available at: http://www.oceana.org/uploads/Framework_33_Decision.pdf