The day after the Mass. AG announced a lawsuit against NOAA, CLF filed two lawsuits against NOAA over Framework 48, implemented to provide some relief to the struggling fishery while still conserving fish habitats.
The first lawsuit aims to prevent fishermen from applying for limited access into areas that were previously closed to groundfishing, even though NOAA will perform a full environmental assessment for each application before granting access.
In their lawsuit, CLF makes several false or unsubstantiated claims.
CLAIM: "Defendants closed five large areas of the ocean on a year-round basis because they determined these areas to be critical to groundfish recovery." (pg.2)
CLF conflates mortality closures, the areas partially opened (on an application basis) to fishermen via Framework 48, with habitat closures, which are not affected under the new rule. Habitat closures are officially designated areas called such because of their value or unique habitat. Mortality closures, on the other hand, are part of a system of fisheries management replaced in 2010 that limited catch by determining when, where and with what gear fishermen could operate. Nearly 20 year ago, when the mortality closures were designated, scant information existed to assist scientists in their determinations about the New England seafloor. At the time, they relied on hand drawn images of the seabed. Today, scientists have a lot more to work with. For instance, a 2010 study providing over 70,000 video sample points of the seabed shows that the mortality closures are geographically arbitrary and do not protect important fish habitat. Even NOAA has acknowledged that these closures are now outdated.
CLAIM: "Defendants now propose to re-open these groundfish closed areas through a hastily prepared administrative action…" (pg. 2)
Framework 48 does not "re-open" groundfish closed areas. The action affords fishermen an opportunity to apply for access. NOAA will then review each application and perform an environmental assessment before granting access. They'll also require that all fishing within the mortality closures be monitored, and the agency retains the right to revoke access should any negative impacts occur.
CLAIM: "…closed areas directly benefit the severely depleted groundfish stocks that gave rise to the fisheries disaster declaration." (pg. 2)
Little evidence suggests that these closures have benefitted groundfish stocks. Unlike habitat closures, the mortality closures were not designed to protect important habitat areas. These mortality closures are composed mostly of sandy, gravelly areas of the seabed that are highly affected by currents and inhospitable to many marine species.
Currently, these areas are not even entirely closed to fishing. Many gear types — including dredge gear, longlines, gill nets and mid-level trawls — can already access the mortality closures. Habitat closures, areas unaffected by Framework 48, are the only closures that prohibit all fishing year-round. Seasonal closures that protect spawning will also remain intact.
CLAIM: "…this "framework adjustment" to an existing fishery management plan purports to authorize fishermen to access approximately 5,000 square miles of ocean habitat" (pg. 2) "…to receive approval to fish in areas greater than 5,000 square miles…" (pg.16) "Opening 5,000 square miles of closed groundfish fishing areas…" (pg. 17)
Throughout the lawsuit, CLF incorrectly asserts that 5,000 square miles will be opened. 5,000 square miles is an estimate for the total size of the areas encompassed by mortality closures, not the area into which fishermen will gain access. John Bullard, NOAA Fisheries Northeast Regional Administrator, said in April that, "sensitive areas such as the western Gulf of Maine closure and Cashes Ledge probably won't be viable." The agency has been clear: fishing will not be permitted in essential habitat areas, seasonal closures, and spawning closures. Access will only be granted to limited areas after NOAA performs environmental assessments per each individual application.
CLAIM: "All of these closed areas are identified as EFH [essential fish habitat] and are important for many of the groundfish stocks that continue to be overfished or are subject to overfishing." (pg. 13)
CLF falsely claims that all of New England's area closures are identified as EFH. NOAA clearly distinguishes between the mortality "closed areas" and "habitat closure areas" in their regulation information, which CLF cites. These mortality closures were not designated to protect habitat. The aforementioned 2010 study mapping the Georges Bank seabed demonstrated that these large closures likely yield adverse effects to the seabed by limiting fishing activity to areas that lay outside the boundaries, some of which actually contain sensitive habitat areas.
While some groundfish stocks are experiencing overfishing, according to Dr. Steve Cadrin, professor at the University of Massachusetts School for Marine Science and Technology, president of the American Institute of Fishery Research Biologists, and member of the New England Fishery Management Council's (NEFMC) Scientific and Statistical Committee, "most groundfish stocks are increasing and are at moderate stock sizes relative to historical estimates." A 2012 analysis of NOAA's rebuilding plans shows that 69 percent of New England's recovering stocks are not subject to overfishing, and biomass is increasing in 50 percent of Northeast stocks.
CLAIM: "Best available science shows that fishing in these areas with groundfish gear will have adverse effects on this essential fish habitat." (pg. 15)
Disturbances from groundfish gear have minimal lasting effects on the sandy, gravelly seabed ecosystem that composes most of the mortality closures. This environment is considered "highly dynamic," meaning it is accustomed to natural disturbances. To that end, a 2001-2002 federal survey concluded that the effects of trawls were comparable to the effects of natural disturbances. The study found no significant ecological or physiological difference between the seabed communities in areas that have been trawled for over 50 years and areas that have been disturbed only by natural events. A more recent academic study concludes that the effects of dredging are even less than those from natural events.
In fact, allowing fishermen to access these closed areas could benefit the overall marine habitat. The NEFMC's Science and Statistical Committee concluded in a separate analysis that keeping the areas closed is more harmful for the region than amending them:
"...allowing fishing in almost any portion of the area closures on Georges Bank is estimated to substantially decrease total adverse effects from fishing." (pg. 16)
In 2010, when fisheries managers implemented a catch-share system for New England groundfisheries, a hard cap was enacted to limit how many fish can be landed. Since a given amount of fish will be taken from the stock, it is better for fish and fishermen if the sectors can reach their quota quickly, and with less fishing effort. These mortality closures, however, require fishermen to work in less productive areas of sea, causing more fishing disturbances and affecting more habitat.
What CLF Doesn't Say
Severe allocation cuts, that have already forced many fishermen to tie up their vessels for the season, prompted the need for Framework 48. Massachusetts Attorney General Martha Coakley recently filed a lawsuit against NOAA saying the new regulations will be a "death sentence" for the fishing industry.
Most groundfish fishermen — from large to small operations — run family businesses with self-owned and self-operated vessels. The New England groundfish fleet has shrunk, from about 1,200 active vessels down to less than 400. For many, assistance from proposals, such as those included in Framework 48, is their only chance at staying in business.
Read the Conservation Law Foundation's press release on the dual lawsuits
Read the Conservation Law Foundation's first lawsuit
Read the Conservation Law Foundation's second lawsuit
Bibliography
Harris, Bradley; Cowles, Geoffrey; Stokesbury, Kevin, "Surficial sediment stability on Georges Bank, in the Great South Channel and on eastern Nantucket Shoals," Continental Shelf Research, Volume 49, September 23, 2012, p. 65-72
Harris, Bradley; Stokesbury, Kevin, "The spatial structure of local surficial sediment characteristics on Georges Bank, USA," Continental Shelf Research, Volume 30, Issue 17, October 15, 2010, p. 1840-1853
New England Fishery Management Council, "The Swept Area Seabed Impact (SASI) Model: A Tool For Analyzing The Effects of Fishing On Essential Fish Habitat," January 21, 2011
NOAA Fisheries "Fish Stocks in Rebuilding Plans: A Trend Analysis" 2012
NOAA Fisheries "Northeast (NE) Multispecies Information Sheet: Closed Area Regulations"
NOAA Fisheries Unallied Science Project, Cooperative Agreement, "Bottom Net Trawl Fishing Gear Effect on the Seabed: Investigation of Temporal and Cumulative Effects." December 2005
Stokesbury, Kevin; Harris, Bradley, "Impact of limited short-term sea scallop fishery on epibenthic community of Georges Bank closed areas," Marine Ecology Progress Series, Volume 307, January 24, 2006, p. 85-100