Has fishery-related litigation affected catch share program management?
Short Answer: Yes. Litigation settled big questions about catch shares in the 1990s: Were they allowable? Who got shares? Were shares a property right? Subsequent cases challenging aspects of the Northeast and West Coast groundfish programs answered questions such as: What constitutes a catch share? What is fair in setting the time period to qualify for shares? What makes a fair allocation of shares? Who pays for the cost of the program?
- Litigation was one of several forces that shaped U.S. catch share policy.
- Most of the lawsuits against catch share programs were brought by fishing interests.
- Over time, as policy related to the programs gained specificity, managers’ win/loss record improved substantially.
Interactive Chart Story
The metrics for this indicator were
the number of cases filed by type of case, number of cases filed by type of entity filing the case (plaintiff), and the number of cases won or lost by the National Marine Fisheries Service (NMFS).
Litigation information presented here covers all federally managed fisheries, with a focus on the Northeast and West Coast catch share fisheries.
Baseline: Before Catch Share Program
Extended Baseline Period: The extended baseline period provides context regarding the history of litigation in fisheries, and the data include other types of fisheries lawsuits beyond those about catch shares. This period included cases disputing early catch share programs, including whether NMFS had the authority to impose such measures. In the years following the enactment of the Sustainable Fisheries Act, litigation escalated. By the late 1990s and early 2000s, the 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). From 1990 through 2001, the fishing industry filed 49 percent of the lawsuits, while environmental NGOs brought 32 percent. Internal and external reviews recommending changes, budget increases, and regulatory streamlining efforts increased NMFS’s ability to meet requirements. Subsequently, the number of lawsuits declined, and the agency’s record in court improved.
Baseline Period: The charts show the study’s baseline period (2002–2009). Charts include all litigation in federally managed fisheries, including 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 them was litigation challenging catch share programs. The chart does not include litigation over enforcement, penalties, fees, or fines; cases of that type, of which there were few, were not illustrative or informative regarding catch share policy.
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 was 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. Court decisions held that allocating quota shares based on catch history did not violate the National Standards. Provisions added by 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 baseline. The issues that brought challenges to programs thereafter focused on the structure of the programs, time period to establish catch history, allocations among shareholders, and similar topics affecting fishery participants.
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 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.
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, five lawsuits challenged proposed or implemented management measures in the two 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.
During Catch Share Program
The period from 2010 through 2017 saw a total of 66 lawsuits in federally managed fisheries. Of these cases, six were specific to the Northeast Sector Program and the West Coast Shore-based ITQ.
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 37 of the 66 cases. (Four cases were still pending as of May 1, 2018.) Seventeen cases during the period 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 a lawsuit challenging the agency’s standard bycatch reporting methodology, the court found in favor of the agency’s authority to allocate budget to the program. In a case that went all the way to the Supreme Court, which refused to hear the appeal, NMFS won over a fishing industry challenge to the imposition of monitoring costs in the sector program.
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 shore-based 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. A subsequent proceeding on the same matter upheld the agency’s decision. Fishing industry plaintiffs also challenged a measure in the ITQ program that capped quota shares held by permittees. The court found that the program, “including the aggregate limit, was the product of a reasoned, iterative process” and held in favor of NMFS.
Document available for download. This update expands on the publication of the detailed research by expanding the analysis to include cases filed between 2014 and 2017.
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. Our research was completed in 2014 and published in 2016. In the Northeast and West Coast groundfish catch share programs, an additional four cases were filed between August 2014 and December 2016, and are discussed briefly in the above analysis.
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: May 2018
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