America’s Fish Need NEPA

America's fish need NEPA

The National Environmental Policy Act, informally referred to as “NEPA,” has been called “the Magna Carta of environmental law.”

Mid-Atlantic Bluefish

Mid-Atlantic Bluefish

It assures that the public interest in maintaining a healthy environment is protected, by requiring all federal agencies “to incorporate environmental considerations in their planning and decision making,” and compels such agencies to prepare “environmental assessments” and/or “environmental impact statements,” which consider a range of alternative agency actions and assess the environmental impacts of each, before taking any significant actions.

Predictably, industries that profit by extracting natural resources from publicly-owned land, as well as the politicians who support them, have frequently attacked NEPA as being overly burdensome, as its requirements, which include an opportunity for public input, can slow down, and sometimes prevent, the removal and sale of timber, minerals, hydrocarbons and other resources from public lands.

NEPA has been attacked for hindering the removal of fish from the ocean as well.

When Representative Don Young (R-AK) introduced H.R. 1335, the so-called Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act, which would weaken the conservation and stock rebuilding provisions of federal fisheries law, he included language that would free federal fisheries managers from the need to comply with NEPA.

Instead of environmental impact statements, the bill would require “fisheries impact statements,” which would place far more emphasis on the social and economic impact that fisheries management measures would have on fishermen. Such emphasis runs counter to NEPA’s mandate that an environmental impact statement

“insure that presently unquantified environmental amenities and values…be given appropriate consideration in decisionmaking along with economic and technical considerations.”

Why does that matter?
An example can be found in a recent court decision in the case of Anglers Conservation Network v. Pritzker. That lawsuit was brought by plaintiffs representing angling and conservation interests, who objected to the National Marine Fisheries Service’s (NMFS) failure to include four members of the herring family—alewives, blueback herring, American shad and hickory shad—in the Mid-Atlantic Fishery Management Council’s Atlantic Mackerel, Squid and Butterfish Fishery Management Plan.

The plaintiffs also objected to NMFS’ refusal to require fisheries observers, who could quantify the bycatch of the four species, on trawlers pulling small-mesh nets for Atlantic mackerel, and to the agency’s failure to adequately consider the environmental impact of not managing the species in question.

Concern for alewives and blueback herring (collectively known as “river herring”) and shad arose after spring spawning runs in many East Coast rivers declined sharply, and in many rivers threatened to cease altogether.

That was troubling news, for river herring and shad not only supported once-thriving commercial and recreational fisheries, but are important “forage fish” that are preyed upon by many other recreationally and commercially important species, which could only decline if their forage grew scarce.

In response, state fisheries managers restricted, or completely shut down, coastal and in-river fisheries. But that provided no protection for shad and river herring in the open sea, where they spend most of their lives. Conservationists began to push federal fisheries managers to impose at-sea protections as well.

The Mid-Atlantic Fisheries Management Council responded, placing bycatch limits on the mackerel fishery and initiating an amendment to actively manage anadromous shad and herring stocks. That amendment was given enthusiastic support by the angling and conservation and communities; the council received tens of thousands of comments in support.

However, it was opposed by representatives of the big mackerel boats. Comments made by the Garden State Seafood Association were typical. It argued that alewife and blueback herring stocks to be “stable or significantly increasing” off North America and claimed that the Council’s

“catch cap on river herring species, as part of the Atlantic mackerel fishing specifications for the 2014 fishing year…already threatens the industry’s ability to realize the Optimum Yield from the Atlantic mackerel resource, on a continuing basis, as required by National Standard 1 of the [Magnuson-Stevens Fishery Conservation and Management] Act.”

When you think about it, such comments were a tacit admission that the Atlantic mackerel fishery can’t be prosecuted without substantial alewife and blueback herring bycatch, and actually demonstrated why the proposed amendment was needed.

However, the Council voted otherwise, and merely established an interagency working group to address the bycatch issue.

A lawsuit brought to challenge that decision was dismissed, because a decision by a regional fishery management council is not a final agency action subject to judicial review.

So the plaintiffs went back to the previous council action, known as “Amendment 14,” which had established the bycatch cap in the mackerel fishery. NMFS had issued final regulations based on that document, which did not include two points that had been requested by the conservation community: actively managing shad and river herring stocks, and requiring 100% observer coverage on any vessel intending to land at least 20,000 pounds of Atlantic mackerel.

Those failures gave rise to Anglers Conservation Network v. Pritzker.

The plaintiffs argued that river herring and shad were both caught in the Atlantic mackerel fishery, that such fish were in need of conservation and management and that, as a result, they should be included as “stocks in the fishery,” through the Atlantic mackerel management plan.

NMFS did not dispute the fact that river herring and shad were, in fact, caught in the mackerel fishery, and conceded that NMFS could include them in the management plan, but that based on the available data, such inclusion was not necessary.

Plaintiffs also challenged NMFS’ failure to require 100% observer coverage, noting that it was contrary to the Mid-Atlantic Council’s recommendation and that it prevented NMFS from obtaining the best available scientific information.

In deciding the matter, the court addressed the standard of review for agency actions taken pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), noting that

“a court [must] hold agency action unlawful if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law…'”

“It is well established…that the ‘court’s review is…highly deferential’ and ‘we are not to substitute [our] judgment for that of the agency’ but must ‘consider whether the decision was based on the relevant factors and whether there has been a clear error in judgment.'”

The court then held that the plaintiffs failed to prove that the NMFS’ actions were arbitrary, capricious or contrary to law, and found for NMFS on both counts.

However, the court also had to rule on a NEPA-based claim, which alleged that NMFS failed to consider the environmental impacts of not including river herring and shad in the Atlantic mackerel management plan. There, the court found for the plaintiffs, deciding that

“NEPA requires agencies to ‘take a hard look at the environmental consequences before taking a major action…’

“Amendment 14 fails to take a hard look at the environmental impacts…by failing to analyze a reasonable range of alternatives. Those alternatives should have included the immediate addition of river herring and shad as stocks with temporary conservation and management measures as proxies for status determination criteria and other measures necessary to prevent overfishing…

“Moreover, it is striking that NMFS never provided an explanation of why it did not consider the alternative of adding river herring and shad when such consideration would clearly have brought about the ‘ends of the federal action…’

“Consequently, the Court concludes that the final Rule 14 violates NEPA…by failing to take a ‘hard look’ at the environmental impacts of its definition of the fishery, by failing to analyze the reasonable alternative of examining the environmental impact of not adding the river herring and shad to the fishery, and by failing to consider the direct, indirect, and cumulative impacts of its decision in the accompanying [Environmental Impact Statement].”

Had NEPA not been applicable to NMFS’ management actions, the agency’s refusal to manage shad and river herring in federal waters could not have been overturned. Thanks to the law, NEPA required that the agency analyze the environmental impacts of a range of alternatives, and not only those it prefers.

There is still a possibility that NMFS might actively manage river herring and shad.

If people such as Representative Young get their way and exempt NMFS from NEPA’s mandates, that possibility will be erased. And no other stock managed by NMFS would receive NEPA’s protections.

That would not be a good thing, for the environmental consequences of NMFS decisions matter, both to the species that it manages and to the ecosystem at large.

Anglers Conservation Network v. Pritzger makes it clear that, while Magnuson-Stevens is a very good law, it can use some help from time to time.

America’s fish also need NEPA.

About Charles Witek

Charles Witek is an attorney, salt water angler and blogger. Read his work at One Angler’s Voyage.

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