Federal Judge Flip Flops on Groundfish Decision

WASHINGTON, DC, May 28, 2002 (ENS) - A federal judge in the District of Columbia has overturned her own ruling covering the steps required to protect New England groundfish populations and habitat in answer to a flood of motions for reconsideration. Groundfish are such species as cod, haddock, flounder that feed close to the bottom of the ocean from the Canadian border to Cape Hatteras.

On Friday, U.S. District Judge Gladys Kessler vacated her original groundfishery order and has instead ordered the implementation of a settlement agreement submitted to the court by dozens of participants in an ongoing lawsuit brought by the Conservation Law Foundation.

U.S. District Judge Gladys Kessler (Photo courtesy Justice Department)

In Friday's ruling, Judge Kessler said the changes that her previous decision would have made to the settlement agreement "would produce unintended consequences."

"Those changes would (1) not only fail to produce the results the Court was seeking to obtain, but might further imperil the particular vulnerable species for which the Court was trying to provide additional protection; (2) seriously unbalance the comprehensive partial Settlement Agreement which settling parties intended to be implemented as an integrated whole; and (3) cause grave economic and social hardship, as well as injustice to individuals, to families, to fishing communities, and to surrounding cities and states," Kessler wrote.

Commercial fisherman David Dowdell of South Kingstown, Rhode Island, in an opinion article for the "Providence Journal" newspaper, called Judge Kessler's April 26 ruling "draconian, unnecessary, grossly unfair." He said that the overfishing alleged by environmental groups in their lawsuit "is no longer occurring."

Catch is dumped on deck for sorting. (Photo Allen Shimada, NOAA)

"Some of the groundfish stocks have already been rebuilt to sustainable levels, and there is not a one that is in decline. What we have in place right now is working and should only be tweaked to fine-tune management for the few species that still need a little more help," he wrote.

The settlement, which was reached April 17, represents an array of fishing regulations dictating how, when and where groundfish can be harvested. It is the culmination of a series of intensive negotiations between fishing groups, the states of Maine, New Hampshire, Massachusetts and Rhode Island, the federal government, the cities of Portland, Maine, and New Bedford, Massachusetts, and the Conservation Law Foundation, the lead plaintiff in the lawsuit.

The Conservation Law Foundation (CLF) hailed Judge Kessler's reversal as courageous. "This is a gutsy decision," said Dr. Priscilla Brooks, director of CLF's Marine Resources Project. "Judge Kessler's acceptance of this agreement signals a bright future in fisheries management."

CLF filed a motion for reconsideration after Judge Kessler issued her original ruling April 26. CLF and others objected to the judge's decision to expand the restrictions of the agreement by including additional year round closed areas and relying on a different calculation in the days at sea that fishermen would be allowed to use during this fishing season.

Mates filet Atlantic cod after an offshore bottom fishing trip to Georges Bank aboard the Yankee Captain out of Gloucester, Massachusetts (Photo by Guliz Irtez-Gillis courtesy NOAA)

Senator Olympia Snowe of Maine called Judge Kessler's decision to support the settlement a "common sense and more equitable ruling that reflects the challenges facing our fisheries today."

"This is very good news, and offers a reprieve from the overly burdensome ruling - but there will still be considerable hardship in the fishery," said Snowe, the senior Republican on the Senate Commerce subcommittee on Oceans, Atmosphere and Fisheries.

"The settlement that underlies her ruling represents an elusive balance between preserving fish and preserving fishermen, and probably offers the best hope for restoring the fishery and the New England fishing industry to good health," said Senator Snowe.

The first step of the settlement agreement went into effect on May 1 and will last until August 1. This includes measures to safeguard the fish during the months of highest landings, and additional area closures in the Gulf of Maine where discard of cod has occurred in the past.

The second step will begin August 1, and will rule the fishery until August 22, 2003, when a Fishery Management Plan Amendment that complies with the overfishing, rebuilding, and bycatch provisions of the agreement must be in place.

The agreement includes a 20 percent reduction in the number of days fishermen are allowed to fish, new fishing ground closures, reductions in the number of fish nets, increases in the mesh size of fish nets to allow more fish to escape, increases in the minimum size of cod that can be landed, and mandatory observer coverage on fishing boats in order to monitor bycatch. The agreement also limits the reactivation of unused fishing days.

"This agreement makes fisheries management work for the fish, environmentalists, and the fishing industry," said Dr. Brooks. "By working together, we will put in place a structure that will protect our oceans for generations to come."