On Friday, the Conservation Law Foundation (CLS), a environmental advocacy group that seeks to protect endangered fish species in federally owned waters, sued the National Oceanic and Atmospheric Administration (NOAA) and the National Marine Fisheries Service (NMFS) in the District Court for the District of Columbia. CLS alleged that the defendants violated the Magnuson Stevens Fishery Conservation and Management Act (Act) and the Administrative Procedures Act (APA) by failing to prevent overfishing of Atlantic cod in the northeastern United States.
The Act requires that NOAA develop regional councils that ensure that no overfishing of any fish species occurs. If fishing of any certain species results in the depletion of the fish at a rate higher than said species can re-emerge via reproduction, then the regional council must develop a plan (or modify an existing plan) to replenish the endangered fish species within 10 years (or longer as determined by the reproductive factors of the fish at issue).
Replenishment plans “consist of three elements: a time frame for rebuilding (i.e., a number of years), a probability of success (i.e., a likelihood that the stock will actually be rebuilt by the deadline)…and a fishing mortality rate for rebuilding…(i.e., a rate of catching fish that, when applied across the rebuilding time frame, should result in (the overfished species) rebuilding to the target level by the end of the time frame).” To put it a different way, a replenishment plan places an annual cap on allowed fishing of endangered fish species that is low enough to ensure that reproductive behaviors of said species would replenish the population of the fish to a healthy level, where in a year fish replenished via reproduction equalled stock removed by fishing, by the end date designated by the plan, but not beyond the statutorily allowed maximum time period.
The NMFS approved the council’s proposed replenishment framework following a period of public review as mandated by the APA. Subsequent to approval, the regional council must provide the NMFS with updates of the plan’s progression every two years.
In the present legal action, the plaintiff claimed issue with diminishment of two types of Atlantic cod due to overfishing: the Gulf of Maine cod and Georges Bank cod. The regional council responsible for overseeing and preventing the overfishing of the Atlantic cod is the New England Council, responsible for preventing fish species endangerment in federal waters off Connecticut, Rhode Island, Massachusetts, New Hampshire, and Maine. According to the associated complaint, the first assessment that Atlantic cod was being overfished in waters managed by the New England Council took place in 1977. Since that date, averred CLS, overfishing of cod continued at such a high rate that by 2020, the cods’ reproduction activities stood to replenish only about 10% of the fish population despite a replenishment plan being in place since 1982.
CLS argued that the shortcomings in the approved replenishment plans existed in the singular idea that despite the best scientific evidence available, usually in the form of biennial assessments of the Atlantic cod population, the Council proposed and the NMFS approved replenishment plans lasting for the maximum statutorily allowed period, with the latest plans being at 10 years (ending in 2024) for Gulf of Maine cod and 22 years (ending in 2026) for Georges Bank cod, that placed a fishing cap at a level suitable for a fish species with a healthy rebuilding rate and not one that is endangered. As a result, CLS asseverated that the replenishment plan for the Gulf of Maine cod had less than a 1% chance of replenishing the fish species, while the replenishment plan for the Georges Bank cod would actually result in an increase of overfishing of the fish species by up to 25% by plan’s end. Given these outcomes of both replenishment plans, the plaintiff concluded that the defendants violated the Act by failing to meet the Act’s mandate to replenish overfished species using fishing caps developed by consulting the “best available science.”
The plaintiff further proffered that the failure by the defendants to consider the best available science before approving the replenishment plans resulted in a violation of the APA. The APA prohibits agency action when said action was an “abuse of discretion.” “(I)t (is) an abuse of discretion for [an agency] to act if there is no evidence to support the decision or if the decision was based on an improper understanding of the law.” CLS averred that such an abuse of discretion existed since the evidence presented by the best available science should have been a fishing cap that prevents all fishing of both types of cod stock except for “bycatch,” which is cod unintentionally caught by fishermen attempting to catch other types of fish.
This is the plaintiff’s fourth legal action brought to prevent overfishing of Atlantic cod since 1991. The plaintiff requested that the court issue an injunction to modify the existing plans to ensure successful fish replenishment by the plan’s end, or a newly determined plan expiration date and immediately prevent all fishing of the cod stocks with an exception for bycatch, until such time as the modified plan is developed and approved. CLS also requested attorney’s fees and court costs.