Conservation Law Foundation v. Evans

211 F. Supp. 2d 55, 2002 U.S. Dist. LEXIS 9719, 2002 WL 1035449

Opinion

ORDER

KESSLER, District Judge.

The Court has received the various motions for reconsideration of its Remedial Order, issued April 26, 2002, filed by the Conservation Law Foundation, the federal Defendants, Northeast Seafood Coalition, the State of New Hampshire, the State of Maine, the Commonwealth of Massachusetts, the State of Rhode Island, Stoning-ton Fisheries Alliance, Saco Bay Alliance, Northwest Atlantic Marine Alliance, Cape Cod Commercial Hook Fishermen’s Association, Craig A. Pendleton, Paul Parker, Associated Fisheries of Maine, Inc., the City of Portland, Maine, the City of New Bedford, Massachusetts, and the Trawlers Survival Fund.

An Opposition to these Motions has been filed by the National Audubon Society, Natural Resources Defense Council, and The Ocean Conservancy.

The Court has carefully considered all the arguments presented and has concluded that the motions for reconsideration should be granted. 1 Movants are indeed correct that the important changes made by the Court in the complex and carefully crafted Settlement Agreement Among Certain Parties (“Settlement Agreement”) would produce unintended consequences. Those changes would (1) not only fail to produce the results the Court was seeking to obtain, but might further imperil the particular vulnerable species for which the Court was trying to provide additional protection; (2) seriously unbalance the comprehensive partial Settlement Agreement which settling parties intended to be implemented as an integrated whole; and (3) cause grave economic and social hardship, as well as injustice to individuals, to families, to fishing communities, and to surrounding cities and states. 2

As Movants have noted in their papers, several of the changes made in the partial Settlement Agreement were never briefed or fully explored before the Court, even though some of them were advocated for by the government and other parties in the individual briefs filed during the lengthy process of briefing and mediation. The development of an appropriate remedy in this case is particularly complex given the vital interests that are at stake. The Court is mindfill, not only of the importance of protecting the New England groundfish species, but also of the very real impact any regulation has on those individuals and communities that depend, and have depended for generations, on such fishing. The experience of the litigants, the public, and the Court during these last three months of intense work on development of a remedial order demonstrates the need for a participatory, collaborative, deliberative process that will thoroughly and thoughtfully explore, on the basis of the most current and widely accepted scientific data, 3 the complexities of the issue and its many interrelated elements. The Court hopes that the experience with the mediation process, and the productive working relationships which developed during that process, can continue to motivate and guide the parties as. all of them focus on the development of Amendment 13.

Wherefore, it is this 23rd day of May 2002 hereby

ORDERED that the Court’s Remedial Order of April 26, 2002, and its Amended Remedial Order of May 1, 2002, are vacated; and it is , ,

FURTHER ORDERED that all motions for reconsideration are granted insofar as they request adoption of the provisions of the Settlement Agreement Among Certain Parties; and it is

FURTHER ORDERED that the Settlement Agreement Among Certain Parties, dated April 16, 2002, shall be implemented according to its terms, and this Court shall retain jurisdiction until promulgation of Amendment 13; and it is

FURTHER ORDERED that the Secretary shall, as was agreed in the Stipulated Order submitted to the Court on April 18, 2002, promulgate an Amended Interim Rule, to become effective no later than June 1, 2002, to reduce overfishing during the first quarter of the 2002-2003 fishing season; and it is

FURTHER ORDERED that the Secretary shall, as was agreed in the Stipulated Order submitted to the Court on April 18, 2002, promulgate an Amended Second Interim Rule, to become effective no later than August 1, 2002, to reduce overfishing beginning with the second quarter of the 2002-2003 fishing season, beginning August 1, 2002, and continuing until implementation of a Fishery Management Plan Amendment that complies with the overfishing, rebuilding, and bycatch provisions of the SFA; and it is

FURTHER ORDERED that the Secretary shall, as was agreed in the Stipulated Order submitted to the Court on April 18, 2002, promulgate, no later than August 22, 2003, a Fishery Management Plan Amendment that complies with the overfishing, rebuilding, and bycatch provisions of the SFA; and it is

FURTHER ORDERED that the Secretary shall, no later than December 1, 2002, develop, prepare, publicize, and make public the most current and reliable scientific information available to enable completion of the Fishery Management Plan Amendment referred to in the preceding paragraph no later than August 22, 2003; the Secretary shall, no later than December 1, 2002, calculate the TAC for all species governed by Amendment 9; and it is

FURTHER ORDERED that for all gear sectors, NMFS shall provide 5% observer coverage, or higher, if necessary to provide statistically reliable data. Effective May 1, 2003, NMFS shall provide 10% observer coverage for all gear sectors, unless it can establish by the most reliable and current scientific information available that such increase is not necessary; and it is

FURTHER ORDERED that the present action is temporarily stayed pending such further proceedings as may be required with respect to each of the three administrative actions set forth above; and it is

FURTHER ORDERED that the parties shall submit a Joint Praecipe no later than September 5, 2002, informing the Court of the steps that have been taken to comply with this Order and to meet the deadlines herein for December 1, 2002, and August 22, 2003.

APPENDIX A

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Boy A. Gavasso 50 Gibson, Road Orleans, MA 02653 April 12, 2002 Judge Gladys K'es-sler Ü.S. District Court Washington, D.C. 20500 Received Dear Judge Kessler: APR 3 0 2002 CHAMBERS OF As. a sport and recreational 'fisherman, here in the JUDGEKESSLER northeast; I am concerned, along with many of my peers, that certain fishing regulations presently being proposed and forwarded by special interests in the commercial fishing sector- not'only fail to consider sport/rec fishing interests in favor of their own but also seem to purposely ignore the overall impact of the preponderant-majority (i.e., sport/ rec fishermen).. We consider their proposals to be mostly self-serving and unfair to the sport/rec sector because: 1. Sport/rec fishermen would be disproportionately penalized because over-fishing, by-catch (incidental hilling of other species)- and habitat destruction, which are the main cause and effect of the present resource dilemma, was created only by commercial fishing methods, not by sport/ rec fishing methods. 2. Sport/rec fishermen would be penalized disproportionately because, as records prove, the methods, efficiency and motives of industrial-type fishing results in a far greater catch ratio and depletion of the resource thah sport/rec fishing methods. Furthermore, sport/rec fishermen- generally have a keener sensitivity and awareness for the resource than monetarily motivated commercial fishermen. 3. Commercial fishermen are being rewarded by receiving mitigating benefits despite their- apparent transgressions, whereas sport/rec fishermen who neither expect nor receive anything, must support them. 4.. Sport/rec fishermen and all the ancillary businesses associated with the sport/rec sector contributes far more to our overall economy than commercial fishing does. Therefore, any detrimental effect on the sport/rec sector would also impact a greater part of the economy. To be fair in imposing corrective regulations, ratiog^off

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nny-3-E002 09:33P FROM: Ta-.lBlm57133a2543i!Ma P:e--S good) that i had to shovel over. I shoveled over 5000 pounds of dead cod fish one day because i had no choice. I returned the next day and caught my limit of400 pounds.The price of flounder droped to a low of 25 cents a pound which forced me to target cod fish which i did not want to target because my primary goal is abundant marine resources. The Canadians were allowed to export yellow tail flounder from Georges Bank to the US due to the free trade act. 6, In 2002-2003 I will be allowed to fish 18 days as far as i can figure out the recipe.1 am not quite sure. I do know that 88 days were not enough for me to break even because of mechanical failure,gear loss,family issues and reduction in shrimp season. 7. Therefore, I plead with the court to DISHONOR the settlement agreement and disallow all parties and Put IFQ'S in place.Individual Boat Pish Quota's.! also encourage the court to mandate gear research that will address discards in all fisheries J also encourage the court to limit all vessels to 88 days at sea. FURTHER DECLARANT SAYETH NOT SIGNED UNDER THE PENALTIES OF PERJURY THIS 9TH DAY OF MAY 200^ .4iSl /Yftfioj °/j 3-°°£ DECLARATION OF George L Amarantides- Page 2

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1 . The Opposition is simply incorrect in arguing that Movants have failed to meet the standard for reconsideration under Fed.R.Civ.P. 59(e). As noted, infra, the moving parties have provided new evidence and have demonstrated manifest injustice, both of which provide more than sufficient justification for granting the motions for reconsideration.

2 . It would appear that some interests still went unrepresented in the mediation process despite efforts at involving all concerned. See, for example, the letter from the N.H. Hook Fishermen’s Association, in Appendix A, which includes all post-Remedial Order correspondence received by the Court.

3 . National Standard Two requires use of "the best scientific information available.” 16 U.S.C. § 1851(a)(2).