Has fishery-related litigation affected catch share program management?
Litigation information presented here covers all federally managed fisheries, with a focus on the Northeast and West Coast catch share fisheries.
Our examination of the public costs (Northeast and West Coast) and management time (Northeast and West Coast) associated with the Northeast Multispecies Sector Program and the West Coast Shorebased Individual Fishing Quota (IFQ) Program raised the question of how litigation has affected these programs. Here we present an analysis of trends in litigation related to federally managed fisheries, with a focus on lawsuits concerning the West Coast and Northeast catch share programs. It describes the number and basis of lawsuits, who filed, who won, and how court decisions affected catch share program rules. This discussion draws on a more-detailed analysis that we published in Environmental Law of the court cases that preceded and followed implementation of the catch share programs and contributed to their evolution.
During the study’s baseline period, a number of statutes were used to initiate lawsuits against the National Marine Fisheries Service (NMFS), including several challenges to earlier catch share programs. Implementation of the Northeast Multispecies Sector Program and the West Coast Shorebased Individual Fishing Quota (IFQ) Program caused dissatisfaction—and ultimately litigation—among some parties. However, a look at the statistics reveals that while catch share cases were part of the litigation record for federal managers, they were an insignificant component. Catch share cases were a small subset of all the cases filed nationally between 2002 and 2014, and of all the cases challenging the Northeast multispecies and the West Coast shorebased trawl programs, only four raised catch share issues. Regardless of the issues argued in court, the two catch share programs—from their fundamental structure to the details of their implementation—have been shaped by litigation.
Baseline Years: Prior to Catch Share Program
The charts show the study’s baseline period (2002–2009) along with an extended baseline (1990–2009) that provides additional context. Charts include all litigation in federally managed fisheries, and cases specific to catch share programs.
Cases shown in the “Total Cases by Year” chart included litigation over whether Fishery Management Plan (FMP) measures met the Magnuson-Stevens Fishery Conservation and Management Act (MSA) National Standards, conformed with Endangered Species Act requirements, or comported with procedural laws such as the National Environmental Policy Act and Regulatory Flexibility Act. Among these cases was litigation challenging catch share programs. The chart does not include litigation over enforcement, penalties, fees, or fines.
With few exceptions, the catch share program cases—shown as a subset of total cases—centered on compliance with MSA provisions, particularly the National Standards. Among the salient issues addressed by lawsuits disputing early catch share programs were whether NMFS had the legal authority to impose a catch share program on a fishery, and whether a permit to participate in a catch share fishery created a property right, and if so, whether a regulatory takings claim was possible if a fishery participant did not receive a permit. The court held that NMFS had the statutory authority to implement a catch share program, noting that such a program differs only in degree from the system of aggregate quotas and transferable permits previously in use in federally managed fisheries. Moreover, the court held that allocating quota share based on catch history did not violate the National Standard Four requirement that fishing privileges be allocated in a fair and equitable manner. Regarding property rights, the court held that the NMFS administrative appeals process satisfied procedural requirements when harvesters were denied a catch share permit. Provisions included in the MSA Reauthorization Act of 2007 spelled out the requirements of catch share programs, eliminating many of the causes of action found in cases brought during the early baseline period.
The parties bringing lawsuits against NMFS during the baseline period included fishing industry interests, states, fishermen’s associations, agricultural interests, communities, and environmental non-government organizations (NGOs). From 1990 through 2001, the fishing industry filed 49 percent of the lawsuits, while environmental NGOs brought 32 percent. From 2002 through 2009, fishing industry plaintiffs filed 20 lawsuits and environmental NGO plaintiffs filed 19. The fishing industry accounted for all but one of the challenges to catch share programs implemented prior to 2010.
In the early to mid-1990s, the number of lawsuits facing NMFS was relatively small, and the agency’s success rate in court was high. This changed in the years immediately after the Sustainable Fisheries Act of 1996, as management reforms were implemented. In the late 1990s and early 2000s, the escalating costs of defending the agency’s fishery management decisions in the courts rose to the attention of Congress (Subcommittee on Oceans, Atmosphere, and Fisheries 2006). Following recommendations of internal and external reviews, budget increases, and regulatory streamlining efforts that increased the ability of NMFS to meet administrative and procedural requirements, the number of lawsuits declined and the agency’s record in court improved.
The fishing industry, together with state governments on behalf of the industry, filed the most cases challenging management measures implemented in the Northeast and West Coast groundfish fisheries. Of the total cases decided from 1991 through 2009, ten related to the Northeast groundfish fishery, and nine challenged various measures in the West Coast groundfish fishery. Most of the cases argued that the FMPs failed to meet MSA requirements. In four instances, FMP measures in the Northeast groundfish fishery were revised to comply with court decisions; four of the West Coast groundfish fishery cases resulted in remands and court-imposed deadlines for new rulemaking. From 2002 through 2009, a total of five lawsuits challenged proposed or implemented management measures in the two groundfish fisheries. NMFS prevailed in one of the four challenges to West Coast groundfish fishery measures, while the fishing industry won one and environmental NGOs prevailed in three cases. The case brought against measures in the Northeast groundfish fishery was concluded in a settlement agreement with the environmental NGO plaintiff.
Catch Share Program
The period from 2010 through 2014 saw a total of 33 lawsuits in federally managed fisheries. The proportion of court cases brought by environmental NGOs and the fishing industry was similar to that during the baseline period. NMFS was successful in defending its management measures in 26 of the 33 cases. Seven of the total cases were challenges specific to provisions of catch share programs developed by the Gulf of Mexico, Mid-Atlantic, New England, Pacific, and North Pacific regional fishery management councils and approved by NMFS.
Upon implementation of the Northeast Multispecies Sector Program, which coincided with implementation of annual catch limits (ACLs), two unsuccessful cases were brought against Amendment 16 (implementing the catch share program). An environmental NGO filed suit on the grounds that the bycatch monitoring provisions of the catch share program were inadequate under the MSA. The court agreed that the program failed to establish sufficient accountability measures for five stocks, and ordered NMFS to develop measures consistent with its ruling. In addition, the fishing industry challenged the Northeast Multispecies Sector Program on the grounds that it violated various MSA National Standards and that the program was established without meeting the referendum requirement of a LAPP set forth in the MSA. The court concluded that the Northeast Multispecies Sector Program was not a LAPP because the sectors—and not the individual harvesters—would control catch allocations. Further, the court held that the catch share program was consistent with the National Standards.
Plaintiffs also challenged management measures in the Northeast groundfish fishery that affected the catch share program, but were based on provisions of the MSA unrelated to catch shares: one case was brought against Framework Adjustment 44 (setting specific catch limits), two against Amendment 48 (revising status determination criteria for some stocks, modifying the sub-ACL system, adjusting monitoring measures, and implementing several accountability measures), one against Amendment 50 (setting specifications for many groundfish stocks), and one against both Amendments 48 and 50. Plaintiffs included states, environmental NGOs, and the fishing industry.
In the West Coast groundfish fishery, fishing industry plaintiffs filed three suits against measures in Amendment 20 (implementing the trawl rationalization program, including the Shorebased IFQ Program). The first case argued unsuccessfully that the initial allocation of quota share did not meet National Standard 8 and other MSA requirements to protect the interests of fishing communities. The court concluded that NMFS complied with the terms of the MSA because while the law requires the agency to consider fishing communities when it develops a catch share program, it does not require managers to actually provide a role for those communities in the final program. The fishing industry plaintiffs prevailed in the second case, which challenged the qualifying period NMFS used to make initial allocations of quota share within the shorebased Pacific whiting sector. The court concluded that NMFS failed to meet the MSA’s procedural requirements and ruled that the agency must revise the initial allocation regulations. When NMFS promulgated a rule with the same qualifying period, the industry plaintiffs sued again, but in that case the court found that agency procedures for rulemaking were sufficient, and the case was dismissed.
Data Gaps and Limitations
We aligned our case research analysis with the methodology of the National Academy of Public Administration (NAPA) (2002) for cases per year, by plaintiffs, and cases won/lost by NMFS. The cases examined in the NAPA report for the extended baseline did not include several significant catch share program cases discussed in this analysis, nor did the NAPA report identify catch share program cases per se; therefore our analysis considers and presents these cases separately. In addition, the NAPA report provided data for extended baseline cases from all statutory bases raised in a case, while our analysis only reports the statute upon which the decision was based. In order to present the data from the extended baseline period, catch share program cases identified in our analysis are shown by year, and added to the NAPA data regarding the legal basis according to the statute underlying the decision.
Iudicello, S. and S. B. Lueders. 2016. A survey of litigation over catch shares and groundfish management in the Pacific Coast and Northeast Multispecies Fisheries. Environmental Law, Lewis & Clark Law School.
National Academy of Public Administration. 2002. Courts, Congress and Constituents: Managing Fisheries by Default. Washington, D.C.
National Research Council. 2002. Science and Its Role in the National Marine Fisheries Service. National Academy Press, Washington, D.C.
Subcommittee on Oceans, Atmosphere and Fisheries of the Committee on Commerce, Science, and Transportation. 2006. Oversight on Management Issues at the National Marine Fisheries Service, Hearing May 9, 2002 (Serial No. 107-1132). Government Printing Office, Washington, D.C.
WestlawNext online legal research database.
Updated: June 2016
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