Judge upholds fishing closures while finding feds violated NEPA

Alaska U.S. District Court Judge Timothy Burgess has handed down his ruling in the case brought against National Marine Fisheries Service by the state and a coalition of fishing groups.

Burgess found that NMFS violated the National Environmental Policy Act by not preparing an environmental impact statement, or EIS, and for not adequately informing the public or allowing for comment before implementing its wide-ranging fishing closures for Pacific cod and Atka mackerel in the western Aleutian Islands.

Burgess denies all other claims brought by the state and fishing groups, which included allegations the Steller sea lion regulations violated Magnuson-Stevens Act, the Administrative Procedures Act and the Endangered Species Act, and wrote that he does not intend to vacate the biological opinion or the interim final rule that put the fishing closures in place.

“It does appear to the court, however, that some degree of injunctive relief is appropriate to remedy the NEPA violations given that the restrictions at issue are expected to continue into the future indefinitely,” Burgess wrote. “Accordingly, the Court intends to remand the matter to NMFS to prepare an EIS in compliance with NEPA procedures. … The Court also intends to set a reasonable, but definite, deadline for NMFS to complete this process.”

The state and fishing groups had hoped Burgess would agree with their contention that NMFS exceeded its mandate under the ESA by applying recovery standards to subunits of Steller sea lions smaller than the distinct population segment, or DPS.

Burgess did not announce a remedy in his 56-page order, and will take briefings from both sides up until Feb. 8.

The affected fishing seasons began this month.

Earthjustice attorney Colin O'Brien, who intervened in the case, praised Burgess' decision.

"We are pleased the court upheld measures required by the Endangered Species Act to protect Steller sea lions," O'Brien wrote in an emailed statement. "Still, there is significant concern about whether the protection measures are enough. We are hopeful that authorities will move quickly to adopt additional protections if the endangered Steller sea lion population continues to falter.”

Michael LeVine of Oceana was similarly pleased.

"Overall, today is a good day for the oceans," he said.

Freezer Longline Coalition Executive Director Kenny Down said the plaintiffs are in discussions about next steps, including whether they will appeal the ruling.

"We’re extremely happy the judge ruled in our favor on the NEPA grounds," Down said. "We’re happy he agreed with us that NMFS did not prepare an EIS as they should have. At the same time, we’re disappointed the judge did not vacate the rule. We want to make it clear that finding in our favor on NEPA grounds is no small victory. This is a favorable outcome. The judge did agree with us that NMFS did not follow the procedures laid out by law."


Andrew Jensen can be reached at [email protected].

01/20/2012 - 5:00pm