SalemNews.com, Salem, MA

April 11, 2014

Judge backs NOAA on state's fishing lawsuit

Ruling rejects state's challenges over science, impact

By Sean Horgan
Staff Writer

---- — U.S. District Court Judge Richard G. Stearns has ruled in favor of NOAA in the lawsuit Massachusetts filed last year charging that NOAA failed to utilize the best science available when instituting draconian cuts to groundfish catch limits and failed to consider the adverse economic impact of those cuts.

Stearns’ ruling for summary judgment on behalf of NOAA closes the case on the lawsuit initially filed last May by Massachusetts Attorney General Martha Coakley and joined by New Hampshire last fall as an intervening plaintiff.

The ruling stated that Massachusetts and New Hampshire failed to make a convincing case in any of their challenges under the current standards applied to NOAA’s National Marine Fisheries Service for the methodology and accuracy of the science employed in developing the stock assessments that led to the cuts.

“The Commonwealth has failed to clear the ‘high hurdle’ of proving that NMFS ignored ‘superior or contrary’ scientific information in performing its stock assessments as is required (for) a violation,” Stearns wrote in his opinion.

Fishing advocates yesterday said they found the ruling troubling on several fronts, saying it showed undue deference to the federal regulators on many of the scientific and technical issues and provides NOAA with extraordinary latitude in future applications of the “best science available” mandate.

“In our brief, we cited Justice (Antonin) Scalia’s view that an amount of deference is a permission slip for an arrogation of power,” said Brian Rothschild, president and chief executive officer of the Center for Sustainable Fisheries, which joined the state of Rhode Island in filing amicus briefs on behalf of the plaintiffs. “The problem is that in cases like this, judges are left with really difficult technical decisions. That’s the reason for the deference.”

The 33-page decision by Stearns included at least two passages that indicated the judge leaned heavily on the difference between the “best scientific data available” and the “best scientific data possible,” opting for a more practical embrace of the latter, particularly when considered against the regulatory imperative of urgency.

The judge specifically referenced the 2012 instance when NMFS refused to consider the offer of a fishing industry-supplied survey vessel to check the survey data collected by the government’s new survey vessel, the Bigelow, that served as the basis for the 2013 cuts.

Fishermen and fishing advocates believed that data to be highly flawed and offered to perform a side-by-side trawl with the Bigelow as a method of corroborating or countering the government data.

“The issue boils down to this: whether NMFS’ refusal to deploy an additional, fishing industry-supplied survey vessel as a check on the accuracy of the Bigelow amounted to a failure to resort to the “best scientific information available” in formulating the groundfish stock assessments,” Stearns wrote in his opinion. “Despite NMFS’ rejection of a side-by-side trawling, prior to undertaking the 2012 assessment, NOAA conducted extensive calibration experiments to detect any survey disparities between the results achieved by the Bigelow and [its predecessor] Albatross.”

While Stearns said the side-by-side trawl was “a proven methodology that NMFS could have deployed,” he added that NMFS was under no “affirmative obligation” to collect new data.

“Because the imperative imposed on the agency by Congress is one of urgent action, and not the achievement of fishery science perfection, the agency may — indeed must — act in times of perceived emergency on ‘incomplete or imperfect data’,” Stearns wrote. “Here, there is no record (of) evidence that more accurate stock assessments were obtained and ignored, nor any compelling evidence that the dismaying assessment results were the product of flawed data collection rather than an accurate science-based portrait of groundfish stocks in a state of imminent collapse.”

Rothschild said Stearns ruling also failed appropriately grasp that the plaintiffs clearly showed contrary evidence that called NOAA scientific method and results into question.

“I believe there was superior data that was based on a simpler science,” Rothschild said.

NOAA spokesman Scott Smullen said the agency would not comment on its legal victory.

Coakley, in a statement, said her office is reviewing its options for appeal of Stearns’ ruling.

“There is no question in my mind that our fishing communities have been subject to over-burdensome regulations and overzealous enforcement by the federal government and we will continue to fight for our fishing communities,” she stated, adding that the next fight will be over the reform of the Magnuson-Stevens Act “to make it more air for our fishing communities as it is considered for reauthorization.”