Blue Water Fishermen's v. Nat'L Marine Fisheries

• Decision Date: 30 September 2002
• Docket Number: No. 00-12313-NG.,00-12313-NG.
• Parties: BLUE WATER FISHERMEN'S ASSOCIATION, et al., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE and Donald L. Evans, Secretary of Commerce, Defendants, and Turtle Island Restoration Network, et al., Defendant-Intervenors
• Court: U.S. District Court — District of Massachusetts

226 F.Supp.2d 330

BLUE WATER FISHERMEN'S ASSOCIATION, et al., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE and Donald L. Evans, Secretary of Commerce, Defendants, and Turtle Island Restoration Network, et al., Defendant-Intervenors

No. 00-12313-NG.

United States District Court, D. Massachusetts.

September 30, 2002.

COPYRIGHT MATERIAL OMITTED

Thomas J. Muzyka, Boston, MA, for Plaintiffs.

Samuel D. Rauch, III, U.S. Department of Justice, Environment & National Resources Div., Washington, DC, Anton P. Giedt, U.S. Attorney's Office, Boston, MA, for Defendants.

Bruce E. Falby, Hill & Barlow, Boston, MA, Stephen E. Roady, Monica B. Goldberg, Washington, DC, Sylvia F. Liu, Washington, DC, for Turtle Island Restoration Network, Center for Biological Diversity.

MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT

GERTNER, District Judge.

Pelagic longline fishermen target highly migratory species ("HMS"), primarily swordfish, tuna, and shark, from vessels on the open seas. Their modus operandi is to trail "longlines" — miles long, in fact — behind their vessels, from which floaters and hooks are suspended on "branch lines" into depths earmarked for HMS. At present, some 140 licensed pelagic longline vessels cruise the North Atlantic under the U.S. flag.

It is not uncommon, in the course of a longlining venture, for untargeted species to get caught up in the line and other gear trailing behind longline vessels, or even to hook themselves. The pelagic longliner must then disentangle and/or unhook the unwanted catch and discard it. At best, this largely unavoidable "bycatch" is a nuisance to the fishermen. But when the incidental haul of the pelagic longliner includes delicate and protected species such as the loggerhead or leatherback sea turtle, the issue of bycatch becomes a problem for regulators.

The plaintiffs in this action, vessel owners, operators, and personnel in the pelagic longline fishing industry, seek injunctive relief from regulations by the National Marine Fisheries Service ("NMFS") that close off their access to fisheries in the Northeast Distant Statistical Reporting Area of the Atlantic Ocean ("NED"). They underscore their legal arguments with the claim that the regulations wreak havoc on their very livelihood.

The regulations, which also impose certain restrictions in the deployment of pelagic longline gear elsewhere in the Atlantic, are directed at protecting leatherback and loggerhead sea turtle populations. Both sides have moved for summary judgment. While I sympathize with plaintiffs' concerns, the law seems clear. For the reasons set forth below, plaintiffs' motion for summary judgment [docket entry # 59] is DENIED in all respects, and the cross-motions of defendants [docket entries # 65 and 70] are GRANTED.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Facts and Statutory Scheme

1. The Magnuson-Stevens Act and NMFS

The Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson-Stevens Act"), 16 U.S.C. § 1801 et seq., vests in the Department of Commerce the authority to regulate fisheries and fishing activities in — and in certain instances beyond — U.S. federal waters. The statute articulates a number of policy objectives, two of which are pertinent to this case: with the Magnuson-Stevens Act Congress intends (1) "to support and encourage the implementation and enforcement of international fishery agreements for the conservation and management of highly migratory species," 16 U.S.C. § 1801(b)(2); and (2)

to assure that the national fishery conservation and management program utilizes, and is based upon, the best scientific information available; involves, and is responsive to the needs of, interested and affected States and citizens; considers efficiency; draws upon Federal, State, and academic capabilities in carrying out research, administration, management, and enforcement; considers the effects of fishing on immature fish and encourages development of practical measures that minimize bycatch and avoid unnecessary waste of fish; and is workable and effective,

id. § 1801(c)(3).

The task of pursuing these objectives by regulation has fallen to the NMFS, a federal agency under the purview of the National Oceanic and Atmospheric Administration within the Department of Commerce. The regulatory reach of the NMFS extends as far as 200 nautical miles from the U.S. coastal boundaries. 16 U.S.C. §§ 1811(a), 1802(11); 50 C.F.R. § 600.10. The U.S. claims exclusive sovereign right to manage fisheries within that 200-mile buffer, known as the Exclusive Economic Zone ("EEZ"). Limited circumstances permit the NMFS to reach beyond the EEZ; the Magnuson-Stevens Act provides that the U.S.

shall cooperate directly or through appropriate international organizations with those nations involved in fisheries for highly migratory species with a view to ensuring conservation and shall promote the achievement of optimum yield of such species throughout their range, both within and beyond the exclusive economic zone.

Id. § 1812 (emphasis added).

It is the business of the NMFS under the Magnuson-Stevens Act to prepare Fishery Management Plans ("FMPs") for the fisheries within its jurisdiction. Through FMPs, the NMFS establishes the rules by which fisheries are sustainably harvested, but in crafting its FMPs the NMFS must itself conform to National Standards set down by Congress. These National Standards require, inter alia, that conservation and management measures "be based upon the best scientific information available," 16 U.S.C. § 1851(a)(2), and that they "take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities," id. § 1851(a)(8).

2. The Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks

At issue in this case is the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks ("HMS FMP"), instituted and maintained by the NMFS on the authority of both the Magnuson-Stevens Act and the Atlantic Tunas Convention Act ("ATCA"), 16 U.S.C. §§ 971 et seq. Congress enacted the ATCA in 1975 to enable the U.S.'s participation in the International Convention for the Conservation of Atlantic Tunas, the purpose of which "is to protect Atlantic tuna species through international cooperation." Blue Water Fisherman's Ass'n v. Mineta, 122 F.Supp.2d 150, 157-58. (D.D.C.2000). The HMS FMP governs the harvesting of swordfish, Atlantic tuna, bluefin tuna, shark, and billfish, i.e., the primary target species of the plaintiffs in their North Atlantic longline fishing efforts. Finalized in April 1999, the HMS FMP authorized a regulated sphere of pelagic longline fishing activity in the NED, a region that stretches from 20 to 60°W and 35 to 55°N and encompasses 2,631,000 square nautical miles of international waters.

Regulations promulgated under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq., require that any agency acting "in the United States or upon the high seas" consult with the Fish and Wildlife Service or (as in this case) the NMFS "to insure that [its] action . . . is not likely to jeopardize the continued existence" of listed species.¹ 16 U.S.C. § 1536(a)(2); 50 C.F.R. §§ 402.01(a), 402.14(a). The consultation process culminates in the issuance of a biological opinion. 50 C.F.R. § 402.14(g)(4). It is crucial that the NMFS have the "best scientific and commercial data available" to inform its opinion. Id. § 402.14(d). It is the duty of the consulting agency to provide it. Id. The biological opinion must include a summary of the data supporting the NMFS's conclusions, a "detailed discussion" of the projected effect of the agency action on listed species, and a determination as to whether the proposed agency action will "jeopardize the continued existence of a listed species." Id. § 402.14(h). Should the NMFS reach a "jeopardy" conclusion, it is obligated to list in its opinion, if possible, any "reasonable and prudent alternatives" ("RPAs") to the proposed action. Id. § 402.14(h)(3).

The conservation efforts of NMFS are themselves subject to the consultation requirement. In this instance, the Office of Sustainable Fisheries ("OSF"), the subdivision of NMFS charged with developing the HMS FMP, discharged this obligation through internal consultation with the agency's Office of Protected Resources ("OPR"). The OPR approved pelagic longline fishing in the NED provided that the industry's incidental harm to leatherback and loggerhead turtles — which the NMFS has listed as endangered and threatened, respectively, 50 C.F.R. §§ 224.101(c) (leatherbacks), 223.102(d) (loggerheads) — remained within certain specified limits. In November 1999 the OSF reinitiated consultation with the OPR, based upon preliminary data that longliners' "incidental take"² of these species would exceed what OPR had deemed allowable.

OPR reviewed the new data and issued a biological opinion in June 2000 ("First BiOp"). A.R. Vol. 3, Doc. 51. In its analysis OPR observed that "[w]ith respect to loggerhead sea turtles, NMFS currently believes that the continued operation of [pelagic longline] fisheries at current levels of take is not likely to appreciably reduce the likelihood of survival and recovery of the entire species in the wild." Id. at 69. The BiOp then reversed course and observed that the present rate of longline activity could result in considerable diminution in the "numbers, reproduction and distribution" of the leatherback turtle and the northern subpopulation of loggerheads, if not the entire loggerhead species. Id. More research would be necessary to establish the species-wide effect of harm to that northern subpopulation.

The BiOp concluded that "continued operation of the Atlantic pelagic longline fishery is likely to jeopardize the continued existence of the leatherback sea turtle and loggerhead sea...