The U.S. District Court for the District of Columbia released a decision today in Oceana's long-running challenge to National Marine Fishery Service (NMFS) Biological Opinion for the scallop fishery.
WASHINGTON — December 17, 2014 — The following was released by the Fisheries Survival Fund:
The U.S. District Court for the District of Columbia released a decision today in Oceana's long-running challenge to National Marine Fishery Service (NMFS) Biological Opinion for the scallop fishery, in which the Fisheries Survival Fund (FSF) participated as a Defendant-Intervenor. This was the seventh challenge by Oceana under the Endangered Species Act (ESA) to NMFS' assessment of the Atlantic sea scallop fishery in which FSF has intervened. As previously, in the present lawsuit, captioned OCEANA, INC. v. PRITZKER et al, NMFS and FSF prevailed on every major challenge.
The only issues on which the court found for Oceana relate to inadequate explanations provided by NMFS for how takes of sea turtles in the dredge and trawl sectors were monitored. To remedy this, the court has required that NMFS provide more detailed explanations, but the biological opinion – which allows the fishery to operate – will continue in force.
In the case, Oceana raised three claims:
1. That NMFS used the wrong Endangered Species Act "jeopardy" standard: Oceana argued that any level of loggerhead sea turtle take that "measurably" or "perceptibly" reduces chances for recovery or survival must lead to a finding that the fishery "jeopardizes" the species. Oceana also argued NMFS failed to consider takes in other fisheries and that it inappropriately used a statistical technique to measure the scallop fishery's impact (which found that over 100 years, there was a 1% chance scallop fishery would cause loggerhead extinction). A jeopardy finding would require new, mandatory constraints on the scallop fishery;
2. That NMFS failed to reasonably consider the impacts of climate change. In particular, Oceana complained that assessing climate change over only a ten-year period (the maximum NMFS said it could reasonably anticipate such impacts) was unreasonable;
3. That the use of the dredge hour surrogate to determine if the scallop fishery exceeds its estimate of 161 sea turtle takes in a given year was unlawful. NMFS established this surrogate given that use of turtle-protecting chain mats and the turtle deflector dredge – each developed with FSF support to protect sea turtles – prevent turtles from coming aboard a vessel and counted by observers. Instead, the agency employed a "surrogate" which assumes that 161 turtles would be taken if total dredge hours used in the mid-Atlantic exceeds 252,353 hours between May and October. Oceana argued that cameras should be used, or that chain mats should be removed on observed trips, characterized by FSF as the "kill them to count them" alternative.
United States District Judge Paul Freidman found against Oceana all major claims. As to the key issue of the jeopardy finding, he found NMFS' interpretation of the law and its regulations to be reasonable and lawful. Specifically, he found that in order to find that an action jeopardizes the continued existence of a species – defined in regulation as meaning to "reduce appreciably" its chances for survival and recovery – such a reduction must be "considerable" or "material," not merely measurable or perceptible. In arriving at this decision, the judge followed the argument made by FSF that "appreciable" can be and is used to mean considerable or significant, and that Oceana's preferred definition would require a finding of jeopardy in any instance where a take is observed.
The court also found that NMFS adequately accounted for other fisheries and actions that impact sea turtles. In particular, Judge Freidman cited increased nesting trends provided by FSF as supportive of NMFS' "no jeopardy" finding. He also rejected the claim that the statistical test used to measure the scallop fishery's impact – which, using an assumption of a declining trend in the fishery, found loggerhead turtles would reach a 50% chance of "quasi-extinction" in 213 years with the fishery and 240 without – proved that the scallop industry would cause sea turtle extinctions in a "substantial" way. The court agreed with NMFS' conclusion that an increase in the chances the fishery would cause loggerhead extinction from 0% to 1% over 100 years was a rational basis for the no jeopardy conclusion and it was reasonable to discount speculative events 200+ years down the road.
In the second count, the court found that NMFS adequately discussed climate change impacts and was reasonable in limiting its projections to 10 years.
Finally, Judge Freidman upheld the use of a dredge hour surrogate, meaning that scallopers will not have to place cameras on dredges. If cameras were required, scallopers could face trip terminations if the equipment were damaged by rocks or during dumping operations. They would also face onerous operating constraints to protect the cameras. FSF cited Capt. Ron Smolowitz's reports on experiences and difficulties presented by use of cameras to monitor the fishery.
The only finding in Oceana's favor related to the dredge sector is the conclusion that NMFS never provided a clear explanation as to how it determined that 250,000+ dredge hours (an average from 2007 and 2008) equates to an estimate of 161 takes. The parties are required to confer and report back to the court on January 16, 2015, as to a timeline for providing such an explanation.
This is a significant victory for the industry.