Feb 8, 201209:01 PMBlog: Fish Bytes
Feds tell judge 23 months for EIS on Steller sea lions
UPDATE: Below.
Still waiting on the State of Alaska and fishing industry brief due today in the Steller sea lion case, but so far the National Marine Fisheries Service and Aleut Corp. have filed.
NMFS told U.S. District Judge Timothy Burgess it will take 15 months to 23 months to prepare an environmental impact statement, or EIS, with the longer timeline indicated as its preference so as to, “insure more public involvement, and utilize more fully the knowledge and expertise of the Council.” (Here’s the NMFS brief, an exhibit from Robert Mecum of NMFS Alaska Region on timing, and their proposed order). The 15-month timeline would apply to a process without involving the council.
Of course, had NMFS followed its own preference for public comment and council involvement in the first place it’s likely a lot of time, legal fees and staff resources could have been saved. Burgess found the agency violated the National Environmental Policy Act by not preparing an EIS as it rushed to put fishing closures for Pacific cod and Atka mackerel in place for the Jan. 1 start of the 2011 seasons. The biological opinion and proposed closures were announced Aug. 2, 2010 with the interim final rule put in place four months later on Dec. 13.
It was certainly flagged early and often in those four months it was likely necessary for the agency to prepare an EIS, advice NMFS ignored and Burgess affirmed.
The agency proposed Burgess do no more than order it to publish a notice in the Federal Register of an intent to prepare an EIS, not to set a date certain for completion, and to allow it extensions to its timeline if it could show good cause.
Although Burgess wrote he intended to allow the fishing restrictions stand while NMFS prepared the EIS, the agency did offer arguments against any modifications of the rule as the State and fishing groups may request.
NMFS wrote that changing the interim final rule would impact existing harvest allocations, and would, “require regulatory changes that would affect the interests and expectations of fishermen who depend on the annual specifications to direct their activities.”
The sudden concern about impacts from regulatory action will probably go over well with Aleut Corp., which asked Burgess to ensure the EIS process was not a “box checking” exercise by the agency with a predetermined outcome:
“This includes “full and fair discussion of the impacts of all alternatives evaluated in the EIS on the Aleut Entities and the local Aleut people and communities, including Adak, which will feel severe, immediate, and irreparable crippling impacts from the Interim Final Rule.”
Here's the Aleut Corp. brief.
I'll post the State/fishing groups brief when I see it.
UPDATED: The State of Alaska and the fishing coalitions have filed their responses. Here's the brief, here's their proposed order asking for the interim final rule to be vacated, reverting to the prior Steller sea lion protections, laying out a specific timeline for the EIS that would require 3-month progress reports to the court that would allow for a new rule to take effect in 2014, and pointedly asks the Judge Burgess to stop NMFS from denying scientific research permits based on the commercial fishing closures.
The plaintiffs dropped more than 450 pages in their filing late today, I'll put the exhibits in a separate post, including those supporting Todd Loomis' declaration that NMFS isn't allowing recovering of tagged Atka mackerel in the closed Area 543, the farthest west regulatory area about half the size of Texas.
UPDATE NO. 2: Here's the brief from Earthjustice, intervenor in the case defending the closures on behalf of Greenpeace and Oceana. They concur on preparation of an EIS but state that any further injunctive relief is "neither warranted nor lawful." The groups also attach exhibits citing 2011 ariel survey data from NMFS indicating the decline in pup counts is continuing and may be increasing in the central Aleutians, in addition to noting the increasing cod quotas as evidence the economic harms cited by plaintiffs in support of injunctive relief have not materialized as predicted.
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