__________________________________________

CONSERVATION LAW FOUNDATION, et al.
Plaintiffs,

v. Civ. No. 1:00CV01718-GK

ROBERT L. MALLETT,  et. al.
Defendants.
__________________________________________

INTERVENOR’S MEMORANDUM  IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

Intervenor Fisheries Survival Fund (“FSF”) respectfully submits the following Memorandum of Points and Authorities opposing Plaintiffs’ Motion for a Preliminary Injunction that seeks to prevent Defendants’ implementation of a limited rotational scallop fishery in Georges Bank Groundfish Closed Area I and the Nantucket Lightship Groundfish  Closed Area:

I. FACTS
FSF and its full-time scallop fishery participants are vitally interested in the development and implementation of rotational scallop fishing measures.  See generally Orman Decl. (attached as Exh. 1 to the FSF’s Motion to Intervene); Bruce Decl.,  7-8 (attached as Exh. 1 to this Memorandum).  Incongruously, while Plaintiffs extol the development of rotational management for the scallop fishery (see Pl. Mem. at 7, 20-21), they have brought this action under the National Environmental Policy Act (“NEPA”) to immediately halt Defendants’ narrow and conservation-careful plan for a very limited, rotational, sequential scallop fishery in two Georges Bank Groundfish Closed Areas in the remaining months of this year only.

FSF has sought to intervene as a Defendant to prevent Plaintiffs from forcing scallop conservation and management to take a step backward.  The FSF has also specifically addressed the NEPA issue involved in this case during the Framework Adjustment 12 and 13 development process in a February 7, 2000, letter from its counsel to Mr. Thomas Hill, Chairman of the New England Fishery Management Council (“NEFMC”), and Ms. Penelope Dalton, the Assistant Administrator for Fisheries and thus head of the National Marine Fisheries Service (“NMFS”).  FSF’s letter is attached as an exhibit to Framework Adjustment 13, which, in turn, is attached as Exhibit 2 to Plaintiffs’ Memorandum Supporting their Motion for Preliminary Injunction (“Pl. Mem.”).

The intent of rotational fishing is relatively simple.  Somewhat akin to terrestrial farming, the goal is to rotate scallop fishing onto relatively large concentrations of large scallops.  The approach permits small scallops to grow and reproduce before they are harvested.  The approach increases yield per scallop recruit because the scallop weighs more when it is harvested.  In addition, the approach can lower the fishing mortality rate for scallops inasmuch as fewer larger scallops need to be harvested to achieve a certain poundage level of production.  Increasing scallop yield per recruit and decreasing scallop fishing mortality represent the principal rebuilding goals for the Atlantic sea scallop fishery, as set forth in Amendment 7 to the Atlantic Sea Scallop Fishery Management Plan (“Scallop FMP”).  See NEFMC, Amendment 7 to the Atlantic Sea Scallop Fishery Management Plan, Oct. 7, 1998, 4-5 (hereinafter “Amendment 7”).

A. REGULATORY BACKGROUND
 

1. The NMFS/Council Process
 

Defendants conserve and manage the relevant fisheries pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1883 ("Magnuson-Stevens Act").  Under the Magnuson-Stevens Act, regional fishery management councils recommend measures to the Secretary’s designees to conserve and manage fish stocks within each council’s respective jurisdiction.  See 16 U.S.C. § 1852.  Defendants are then charged to  evaluate a council’s recommendation; approve, disapprove, or take steps to modify a council’s recommendation; and then develop and promulgate regulations to implement the council’s recommendation, if approved.  See 16 U.S.C. § 1854.

The New England Fishery Management Council, comprised of representatives from the New England coastal states and NMFS, has primary authority for recommending measures to the Defendant Secretary to conserve and manage Northeast multispecies (groundfish) and Atlantic sea scallop stocks.

In that, over time, conservation and management needs change in a fishery, the Magnuson-Stevens Act and individual fishery management plans provide mechanisms to amend and modify a fishery management plan.  Most formally, a fishery management plan may be amended through a formal amendment process, which, under NEFMC processes, generally takes years to complete.

In addition, the implementing regulations for the Atlantic Sea Scallop and Northeast Multispecies (“Groundfish”) Fishery Management Plans provide for a more abbreviated “framework adjustment” process to more flexibility amend these plans, based on continually evolving circumstances in the fisheries.  Under this process, fisheries managers can adjust the FMP through a relatively expedited process in which meetings of the NEFMC, and its committees, working groups, and advisers are deemed to take the place of formal notice and comment proceedings under the Administrative Procedure Act (“APA”).  Framework adjustments can be developed and implemented in a matter of months.  See 50 C.F.R. §§ 648.90, 648.55 (setting forth framework adjustment procedures for groundfish and scallop fishery management plans, respectively).  Calling the process for Framework Adjustment 13 abbreviated is somewhat of a misnomer, however, because the NEFMC and its committees considered the measure at well over 20 (often multi-day) meetings Framework Adjustment 13, at 5.

For its part, a fishery management council, such as the NEFMC, functions essentially as a legislative body and relies on committees of its members, agency scientists, industry, and technical working groups, and input from the public generally in developing the conservation and management measures it recommends to the Defendant Secretary.  Pertinent to the case at bar, the NEFMC has constituted Scallop Oversight, Groundfish, and Habitat Committees, comprised of different subsets of its members, to assist in the development of scallop, groundfish, and habitat conservation and management measures.  The openings at issue in this action involve both the Scallop and Groundfish Committee processes because the Georges Bank Closed Areas were implemented pursuant to the Northeast Multispecies Fishery Management Plan, (“FMP”), so regulations implementing that FMP, as well as the Scallop FMP, had to be amended for the opening to proceed.

Among other functions, the Groundfish and Scallop Oversight Committees are responsible for reviewing scientific and economic information relating to the fisheries, obtaining input from the various working and technical groups, and developing and recommending alternatives to conserve and manage these stocks for the full NEFMC’s consideration.  Both the Groundfish and Scallop Oversight Committees are assisted by Plan Development Teams (“PDT”) and industry advisory panels.  A PDT is “a team of technical experts appointed by NEFMC.”  The PDT’s include federal and state scientists, university scientists, and other scientists.  It provides the relevant Council committee with technical and scientific advice in connection with the committee’s consideration, review, and development of groundfish conservation and management alternatives.   See 50 C.F.R. §§ 648.2 (defining “PDT”), 50 C.F.R § 648.55 (outlining PDT’s responsibilities).

The Habitat Committee addresses issues relating to, among others, the groundfish and scallop fisheries.   The Habitat Committee has constituted an Essential Fish Habitat Technical Team, which functions in a capacity similar to the Scallop or Groundfish PDT.  See generally Exh. 6, at i.

2. Magnuson-Stevens Act Decision-Making Standards
 

The Magnuson-Stevens Act imposes important parameters on the decision-making authority of fishery management councils and the Defendants. Each fishery conservation and management measure promulgated under the Magnuson-Stevens Act must comply with the ten National Standards enumerated in that Act.  See generally 16 U.S.C. § 1851(a) (setting out the National Standards).

National Standard One mandates that "[c]onservation and management measures shall prevent overfishing, while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry."  16 U.S.C. § 1851(a)(1).  The D.C. Circuit has recently held that National Standard One partakes of additional significance in the context of a rebuilding stock.  See Natural Resources Defense Council, Inc. v. Daley, 209 F.3d 747, 750 (D.C. Cir. 2000).

In addition, National Standard Two mandates that conservation and management measures shall be based on the "best scientific information available."  16 U.S.C. § 1851(a)(2).  "By requiring that decisions be made on the best scientific information available, the [Magnuson-Stevens] Act acknowledges that such information may not be exact or totally complete."  Parravano v. Babbitt, 837 F. Supp. 1034, 1046 (N.D. Cal. 1993), aff'd, 70 F.3d 539 (9th Cir. 1995), cert. denied, 518 U.S. 1016 (1996).  Moreover, "the [Magnuson-Stevens] Act permits the Secretary's designees to act on information that is incomplete or if there are differences in available information."  J.H. Miles & Co., Inc. v. Brown, 910 F. Supp. 1138, 1152 (E.D. Va. 1995).  Indeed, "[d]ifficulties with the data and the nature of the scientific method are expected in managing a resource as elusive as a fishery."  Southern Offshore Fishing Ass'n v. Daley, 995 F. Supp. 1411, 1432 (M.D. Fla. 1998).

Congress passed the Sustainable Fisheries Act in 1996.  See S. 39, 104th Cong. (1996), Pub. L. No. 104-297, 110 Stat. 3559.  The SFA has several purposes.  First, it requires the imposition of conservation measures to provide for the accelerated rebuilding of stocks of fish that Defendants determine to be overfished.  See 16 U.S.C. § 1854(e).    The SFA added National Standard Eight, which requires Defendants to provide for the sustained participation of fishing communities and to minimize the adverse economic impacts on fishermen of conservation measures, to the extent consistent with the prevention of overfishing and the rebuilding of overfished stocks. 16 U.S.C. § 1851(a)(8).  In addition, the SFA added National Standard Nine, which requires management measures to minimize bycatch and bycatch mortality to the extent practicable. 16 U.S.C. § 1851(a)(9).  Finally, the SFA included for the first time provisions that required Defendants to identify essential fish habitat and minimize to the extent practicable adverse effects on such habitat caused by fishing. 16 U.S.C. § 1853(a)(7).

All told, the Georges Bank Groundfish Closed Areas (Georges Bank Groundfish Closed Area I, Georges Bank Groundfish Closed Area II, and the Nantucket Lightship Groundfish Closed Area) encompass over 5000 square nautical miles.  These large areas have historically represented some of the most important U.S. fishing grounds, including not only for scallops but the complex of fish known by the regulatory definition of “Northeast multispecies,” or groundfish.

Significantly, these closed areas represent renewable and much-renewed grounds critical to the U.S. Atlantic sea scallop fishery.  Indeed, Defendants have termed Georges Bank the “center” of the U.S. Atlantic sea scallop fishery.  See 47 Fed. Reg. 20776, 20777 (May 14, 1982) (Federal Register notice implementing original Atlantic Sea Scallop Fishery Management Plan).  See also Bruce Dec.,  10 (attached hereto as Exh. 1) (explaining historical reliance on closed areas).   The FSF has estimated, based on NMFS data, that the Georges Bank closed areas historically accounted for more than half of Georges Bank scallop landings.  See Orman Dec.,  21 (attached as Exhibit 1 to FSF Motion to Intervene).  Defendants have explained these areas represent “approximately half” of the historic Georges Bank scallop fishing area.  63 Fed. Reg. 15324, 15325 (Mar. 31, 1998).

Super-heated rhetoric aside, resumption of commercial fishing in these closed areas cannot reasonably be analogized to clear-cutting irreplaceable virgin old growth timber.    These areas have been fished with bottom tending mobile fishing gear for decades, if not centuries.  As evidenced by the rebuilding and regeneration occurring after only six years in these closed areas, the resources and habitat are not only renewable, but on the way to being renewed.  The Magnuson-Stevens Act specifically recognizes these resources are renewable. 16 U.S.C. § 1801 (a)(1).

The Georges Bank closures were designed to conserve groundfish, and they were not intended to be permanent.  On December 12, 1994, Defendants issued an emergency interim rule that amended the regulations implementing the Groundfish FMP to close the three areas to all fishing gear considered capable of catching groundfish for 90 days. See 59 Fed. Reg. 63926, 63927-28 (Dec. 12, 1994).  Scallopers were included in the closure on the basis that, “Scallopers have been known to catch significant amounts of yellowtail flounder, as well as other multispecies.  There have also been reports that scallop dredge gear disturbs the bottom and disrupts spawning activity . . . .”  Id. at 63928.  (As explained herein, Defendants’ analyses supporting the openings specifically address each of these considerations attending the closure of these areas to scallop fishing).

At the time of the closures, these measures were generally accepted.  First, the closures were initially to be of a short duration.  Second, scallopers were not fishing the closed areas very much at the time because the area had been heavily fished and yields were down there.  See NEFMC, Framework Adjustment 12 to the Atlantic Sea Scallop Fishery Management Plan, Nov. 17, 1999, 1 (herinafter “Adjustment 12”).  Defendants did not prepare an EIS in closing the areas, but used an EA instead.  After extending the temporary closure on March 10, 1995 (60 Fed. Reg. 13078), Defendants continued the closure indefinitely on April 18, 1995, pursuant to a Framework Adjustment to the Groundfish FMP.   60Fed. Reg. 19364.

Contrary to the illusion Plaintiffs would create, the Georges Bank closed areas do not represent a marine sanctuary.  Fishermen can set pots for lobster and hag fish, dredge for surf clams and ocean quahogs, and commercially fish using harpoons and hook lines, provided groundfish are not retained.  See 50 C.F.R. § 600.725.  The Georges Bank Groundfish Closed Areas do not, moreover, represent the only conservation-related closures of the Atlantic along the New England coast.  The Western Gulf of Maine Closed Area was implemented on May 1, 1998, to conserve groundfish, and it is scheduled to last until April 30, 2002.  See 50 C.F.R. § 648.81 (i).  The Gerry E. Studds Stellwagen Bank National Marine Sanctuary was created in 1991.  See 15 C.F.R. § 922.140.  Defendants have implemented a Cashes Ledge Closed Area that runs from July through August every year, to conserve groundfish, 50 C.F.R. § 648.81(h); as well as the Gulf of Maine rolling closures that include more than half of the months each year, 50 C.F.R. § 648.81(g).  In addition, mobile gear restricted areas that impose yet another series of closures on gear capable of catching groundfish are imposed in yet other areas of the Atlantic off New England. 50 C.F.R. § 648.81(j)-(m).

C. SCALLOP REBUILDING HAS THANKFULLY  BEGUN TO SUPERSEDE AMENDMENT 7’s DAS SCHEDULE
 

Defendants classified the Georges Bank and Mid-Atlantic scallop stocks as overfished in 1997.  Pursuant to that designation, Defendants developed Amendment 7 to the Scallop FMP.  Amendment 7 imposed utterly draconian reductions on scallop fishing effort.  The days-at-sea (“DAS”) schedule for Amendment 7 provided for 120 DAS for fishing year 1999-2000, with reductions to 51 DAS for fishing year 2000-01, and to levels as low as 34 DAS during its 10 year rebuilding period.  See 64 Fed. Reg. 14835, 14839 (implementing amended 50 C.F.R. § 648.53(b)).  Amendment 7 candidly recognized its impact on scallop fishing operations.  “Under these conditions, it is unlikely for many vessels to remain in the fishery since not only would they not earn any profits from their operations but also they would not pay for their expenses for many years.”  See Amendment 7, at 75.

Significantly, however, Amendment 7 did not, in projecting scallop stocks’ capacity to rebuild, take into account the degree of scallop rebuilding caused by the Georges Bank groundfish closures or by the 1998 closure of approximately 2000 square nautical miles in the Mid-Atlantic to permit the growth of beds of small scallops.  Defendants had to revise their projections because “Previous analyses for Amendment 7 did not account for the effect of closed areas on mortality and rebuilding.”  1999 SAFE Report, at first page of Executive Summary.    The 1999 SAFE Report went on to conclude that:

The accelerated rebuilding has occurred primarily because of an apparently strong year class in 1998 and because of the accumulated biomass in the closed areas.  Overall, the Amendment 7 mortality schedule is forecast to achieve the rebuilding targets by 2005 (7th year of the Amendment 7 rebuilding program) on Georges Bank and by 2004 (6th year of the Amendment 7 rebuilding program) in the Mid-Atlantic.SAFE Report, at 1.

Ultimately, Defendants revised Amendment 7’s rebuilding trajectory projections in Framework Adjustment 12 to the Scallop FMP and concluded that Mid-Atlantic scallop rebuilding was possible by 2003, while Georges Bank rebuilding could be completed by 2005, even with the maintenance of DAS at the 120 level set for fishing year 1999-2000.  See 65 Fed. Reg. 11478, 11479 (March 3, 2000) (promulgating regulatory amendments implementing Framework Adjustment 12).

D. THESE CLOSURES DESIGNED TO PROTECT THE GROUNDFISH FISHERY, AS WELL AS SUBSEQUENT CLOSURES TO PROTECT SCALLOPS IN THE MID-ATLANTIC,  HAVE HAD BOTH POSITIVE AND NEGATIVE IMPACTS FOR THE SCALLOP FISHERY OVERALL

Part of the reason why scallops have rebounded much quicker than expected was due to the Georges Bank Closed Areas.  But See Pl. Mem. at 5 (claiming Georges Bank closures are exclusive source of rebuilding).  As the SAFE Report 12 explains, another component was better than expected recruitment.   Notably, however, while Defendants may have “backed in” to scallop rebuilding on Georges Bank with the closures there, they deliberately sought scallop rebuilding when they implemented the 1998 Mid-Atlantic closures.  See 63 Fed. Reg. 15324 (Mar. 31, 1998).  Plaintiffs give Defendants no credit for the Mid-Atlantic closures, and erroneously claim instead that Defendants are monomaniacally focused on opening areas.  See Pl. Mem. at 7.

Plaintiffs also fail to acknowledge that, as the record indicates, these five closures of such significant scallop fishing grounds -- often for a long period of time -- have had certain negative ramifications for scallop stocks as a whole. The December 1994 closure of the Georges Bank Groundfish Closed Areas to scallop fishing placed some of the most historically bountiful scallop fishing grounds wholly off limits to scallopers.  In order to cover their costs and provide for even a modest economic return, the New England scallop fleet was forced to concentrate its effort on the open portions of Georges Bank and to steam to scallop beds off the coast of Virginia and the Mid-Atlantic states, where a strong 1994 year class was located.  The 1994 year class has long since been fished.  See Framework Adjustment 13, at 8 (attached as Exh. 2 to Pl. Mem).  And, the regulatory funneling of scallop fishing effort onto those portions of Georges Bank that remain open had negative impacts on scallops in these open areas.  Figure 8 of Framework Adjustment 13, at page 11, shows the difference in abundance of Georges Bank scallops of various sizes (shell height) inside and outside the Georges Bank closed areas based on the NMFS 1998 annual survey. The difference is tangible.  See also Bruce Dec.,  15 (explaining impacts of the regulatory funneling of effort) (attached hereto as Exh. 1).

Now for the good news:  According to Defendants, scallop stocks in the Georges Bank Closed Areas are effectively rebuilt.  According to Defendants’ annual survey, scallops in the Georges Bank closed areas, where the fishing at issue herein is to be conducted, are “near MSY conditions.”  Framework Adjustment 13, at 10 (attached as Exh. 2 to Pl. Mem.)  The Magnuson-Stevens Act requires the rebuilding of fish stocks to conditions associated with maximum sustainable yield.  See 16 U.S.C. §§ 1851 (a)(1) and 1802(28) (optimum yield goal defined in terms of maximum sustainable yield).  When a stock is at or near MSY conditions, it can generally be fished at a higher level than it was during the rebuilding, while continuing to maintain its stock size or biomass.  See Myers Dec.  21 (attached as Exh. 5 to Pl. Mem.).  For instance, scallopers harvested 5.3 million pounds from Closed Area II in 1999, yet Defendants project that the stock actually increased in size.  Framework Adjustment 13, at 111 (attached as Exh. 3 to Pl. Mem.)

A potential dark lining to the silver cloud exists in the Mid-Atlantic, however.  It is a dark lining that Framework Adjustment 13 hopes to address.  More specifically, Framework Adjustment 13 reports that “Fishermen are again reporting many small scallops in the Mid-Atlantic which are also at risk of heavy fishing pressure, unless some of the effort can be transferred to areas of large scallops.”  Id. at 8; See also id. (“This action is also intended to reduce fishing effort in other scallops areas where the stock is dominated by small scallops.”); id. at 95 (noting the closure can promote rebuilding in the Delmarva, New York Bight, and Great South Channel areas)

The increasing incidence of concentrations of small scallops in open areas represents an opportunity to begin to rebalance scallop stocks that must not be wasted.  Scallopers from the Mid-Atlantic diverted effort to the limited Closed Area II fishery last summer, and the two closed areas at issue in this litigation are much closer to the Mid-Atlantic than Closed Area II.  Id. at 154-56.  As we will explain, the goal of rotational fishing – which all parties to this litigation advocate – is to work to move scallop fishing from concentrations of smaller scallops to concentrations of large scallops.  A “rotational management system could prevent the overishing that currently plagues the scallop” areas.  See Pl. Memo. at 20.  But, Plaintiffs are attempting to stall the very rotational regime that they advocate creating.

The Fisheries Survival Fund was organized in March of 1998.  At that time, Defendants and the NEFMC were in the process of developing Amendment 7, complete with its bankrupting DAS reductions through 2008, if not beyond.  Intervenor filed a Petition for Rulemaking pursuant to the Administrative Procedure Act that sought the rebalancing of scallop fishing effort, through the implementation of rotational fishing techniques that concentrated fishing effort on large scallops.  FSF’s Petition for Rulemaking is attached hereto as Exh. 5 (FSF has not included the voluminous exhibits to its Petition, but they are available, if the Court wishes.).

Ultimately, Defendants denied the FSF’s Petition for Rulemaking, 64 Fed. Reg. 11431 (Mar. 9, 1999), but undertook the two steps that the FSF advocated in its Petition.   More specifically, in the summer of 1998, scallopers, scientists from prominent academic institutions, and scientists affiliated with the Defendants worked together to develop and implement a fine-scale systematic, transect-based sampling of the scallop stocks in Georges Bank Closed Area II using commercial fishing gear and accepted scientific methods.  The sampling not only counted gross numbers of scallops per standardized commercial tow, it was able to delineate with relative precision where there were concentrations of large scallops ready to harvest in Closed Area II.  See Framework Adjustment 11, at 9.  In addition, the systematic sampling delineated the incidence of bycatch of various species with the similar resolution.  See, e.g., id. at 11.  Finally, Defendants and the university scientists undertook work to seek to harmonize the cooperative scallop vessel sampling with the Defendants’ research methods and protocols.
Based on the accumulation of scientific data and information, in the beginning of 1999, Defendants and the NEFMC initiated a framework adjustment under both the scallop and groundfish FMPs (Scallop Framework Adjustment 11 and Groundfish Framework Adjustment 29), for the development and implementation of a limited fishery in Closed Area II during the summer and fall of 1999.  Framework Adjustment 13 explained:

Access to Closed Area II for vessels fishing for scallops was highly successful and realized the benefits predicted by Framework Adjustment 11. . . .  At this time, 185 out of a potential 328 vessels with limited access scallop permits made 580 out of a potential 965 trips into Closed Area II to catch large scallops.  As anticipated by Framework Adjustment 11, trips averaged 6 days-at-sea, ranging from one to fourteen days . . . .  NMFS program to place observers on board scallop vessels in Closed Area II was highly successful and over 25 percent of the trips were observed . . . .

During these trips, the vessels caught 5.3 million lbs. of scallops worth approximately $32 million. . . .  They also caught 746,000 lbs. of yellowtail flounder. . . . The ratio of yellowtail flounder to scallop catch was 0.14 pounds of flounder for each pound of scallops.  The ratio is much lower than that predicted in Framework Adjustment 11, allowing the season to last longer than expected and allowing the allocation of three additional trips to 178 vessels that fished before the September 30, 1999 deadline to be eligible for a mid-season adjustment. Framework Adjustment 13, at 1-2.

Notably, Framework Adjustment 13 explained that scallopers were charged, on average, 10 DAS for every 6 DAS they used in the Closed Area II fishery.  Intervenor FSF had proposed a trade-off for access to the closed area fishery, whereby a scalloper would be charged 10 DAS for the opportunity to harvest 10,000 pounds of scallops from the Closed Area II, no matter how many DAS the trip actually consumed.  See Orman Dec.  88 (attached as Exhibit 1 to Memorandum supporting FSF's Motion to Intervene).

Significantly, the trade-off had benefits for habitat overall because the scallop fishermen actually forfeited DAS (on average, 4 per trip) in exchange for access to Closed Areas II.  The Closed Area II program thus removed 2,330 days at sea from scallopers’ 1999 total DAS allocations.  Framework Adjustment 13, at 2.  DAS forfeiture is not the only habitat benefit Framework Adjustment 13 provides. Because of the high abundance of scallops in the closed areas, Framework Adjustment 13 predicts a 22% reduction in scallop dredge bottom time in the 2000 Georges Bank Closed Area Fishery, as compared to the time needed to harvest the same number of scallops in the presently open areas. Id. at 127-28.

Framework Adjustment 11 not only provided for a trip limit capping the harvest on an individual trip, it also established a overall scallop total allowable catch quota specifically for the Closed Area II fishery.  These measures provided for the level of precision in the monitoring of harvest levels for which Plaintiffs advocate, as they criticize the Scallop FMP's generalized reliance on DAS as the primary control of fishing effort.  See Pl. Mem. at 14.

Finally, at the urging of the scallop industry, Framework Adjustment 11 contained a research set-aside whereby scallop fishermen would be permitted extra catch to fund their assistance in cooperative research efforts.  The research set-aside comprised 1% of the total allowable catch of scallops and yellowtail flounder.  See 64 Fed. Reg. at 31150 (50 C.F.R. § 648.58 (e)).  Appendix IV to Framework Adjustment 13 details industry closed areas bycatch reduction experiments conducted in the summer of 1999.  On this record, it is little wonder that Plaintiffs are embracing the concept of rotational fishing,  Pl. Mem. at 20-21; see also Myers Dec.  24-38  (attached as Exh. 5 to Pl. Mem.)

The extensive information gathering efforts undertaken in 1998 to support Framework Adjustment 11 were continued in 1999 to support Framework Adjustment 12 and 13.  Defendants continued a similar systematic sampling program using commercial vessels in Closed Area I and the Nantucket Lightship Closed Area in 1999.  The sampling again provided high-resolution information on scallop abundance and bycatch from the experimental fishery in these two closed areas.  See Framework Adjustment 13, at 103-08, and Appendix I (attached as Exh. 2 to Pl. Mem.)  This information exceeds, yet complements, NMFS’s standard annual survey.  Id. at 97, 108-09.  Indeed, these cooperative efforts were especially important in 1999 because the NMFS annual survey experienced some mechanical problems. Id. at 108.

The Center for Marine Science and Technology, also assisted by FSF participants, conducted a video sampling in all three of the Georges Bank Closed Areas.  The video survey provides information not only about scallop abundance, but bottom habitat.  See id. at 98-108.

F. FRAMEWORK ADJUSTMENT 13 BUILDS ON THE EXPERIENCE OF FRAMEWORK ADJUSTMENT 11 AND CAREFULLY ADDRESSES POTENTIAL SCALLOP REBUILDING, GROUNDFISH, BYCATCH, ENFORCEMENT, AND RESEARCH CONCERNS

The Georges Bank Closed Area fisheries are based on a series of important choices that consciously and expressly limit any potential environmental impact from these limited fisheries.

Framework Adjustment 13 continues the successful 10,000 pound-10 DAS trade-off.  As explained above, the trade off caps scallop catch (for scallop rebuilding purposes) and, more importantly for present purposes, reduces the potential for scallop dredge habitat interactions coast-wide.  In addition, as explained in more depth in the next section, the opening carefully avoids areas where fishing might cause significant habitat effects.

Framework Adjustment 13 establishes a total allowable catch for both scallops and yellowtail flounder that is consistent with the rebuilding plans and most recent statistics of abundance in these cases.   See Framework Adjustment 13, at 40, 43-44.  (We note that Framework Adjustment 13 explains that the biomass of Georges Bank yellowtail flounder is expected to be rebuilt by 2002, and thus ahead of initial rebuilding projections, even with closed area access. Id. at 8.  The yellowtail flounder TAC represent real limits that Defendants enforce. They terminated last year’s Closed Area II fishery whrn the yellowtail TAC was met. Defendants plan to maintain sufficient observer coverage (25%) to monitor these total allowable catch levels.  Id. at 56.

Moreover, Defendants have configured the openings in time and space to minimize the potential for bycatch.  The Nantucket Lightship Area was specifically shaped to avoid potential barndoor skate bycatch and specifically tried to avoid depleted Southern New England yellowtail flounder.  Id. at 36-38, 115.  The same choice as to the skate was made for Closed Area I. Id.  The Closed Area I opening was also shaped to avoid groundfish and monkfish bycatch.  Id. at 38-39. Closed Area I’s borders were, moreover, deliberately modified to avoid an area that the U.S. Geological Survey’s side-scan sonar survey showed might contain hard bottom and complex habitats, even though that area contained significant concentrations of large scallops.  Id. at 39;  But see Watling Dec.,  8 (attached as Exh. 4 to Pl. Mem.) (alleging Framework 13 ignored available USGS survey information).

Defendants have implemented a TAC set-aside to fund research in each of the three closed areas opened in Framework Adjustment 13.  Incongruously, Plaintiffs claim Defendants are retarding Closed Area research projects,  whereas their lawsuit could halt the set-aside program for Closed Area I and the Nantucket Lightship Closed Area.

Defendants have doubled scallop vessel monitoring system (“VMS”) polling to two times per hour to facilitate enforcement.  Framework Adjustment 13, at 54. Scallopers’ VMS units report their precise location to NMFS Enforcement.  External closed buffer zones, such as those used to facilitate enforcement in Closed Area II in 1999, were found to be too costly for Closed Area I and the Nantucket Lightship Closed Area.  Id. at 39.  These latter areas are heavily transited, and include major shipping lanes, whereas Closed Area II does not.  Also, to facilitate enforcement, the closed areas are not opened simultaneously, even though conservation-based reasons did not support the openings’ foreshortened.  Id. at 37.

The 2000 Closed Area fisheries continue the requirement for the use of 10” twine mesh on the top of scallop dredges to facilitate the escapement of fish that could otherwise be inadvertently retained as bycatch.  Id. at 49.  Framework Adjustment 11 had also increased the twine top requirement outside the Georges Bank Closed Areas to 8,” from 5-1/2,” as part of the trade-off that resulted in limited scallop access to Closed Area II pursuant to Framework Adjustment 11. Framework Adjustment 11, at 26-27.  Use of larger mesh twine tops represents a conservation sacrifice by scallopers because the larger mesh also allows scallops to escape.  Also, to prevent bycatch and interactions with groundfish, the openings are timed to avoid potential scalloper disruption of groundfish spawning aggregations and activity.  Groundfish bycatch and scalloper disruption of groundfish spawning ­­ two matters specifically addressed in Framework Adjustment 11 and 13 ­­ represented two reasons for the closure of these areas to scallops in the first place.

Defendants have carefully tailored the openings to address potential reasonable habitat concerns.  In summary, the Closed Area fishing will take place in areas containing mostly sandy and soft bottom habitats.  Plaintiffs’ own analyses conclude these less complex bottom types generally have a lower habitat value and that they are less susceptible to damage by mobile fishing gear than more complex habitats.  See Watling Dec.  6 (attached as Exh. 4 to Plaintiffs’ Memorandum).
Before turning to the specifics of all that Defendants did to address potential habitat concerns, it is important to address one threshold claim that Plaintiffs have made.  Plaintiffs claim that the Closed Area fisheries set forth in Framework Adjustment 13 represent major federal action under NEPA simply because it permits fishing in areas that have been designated “essential fish habitat.”  Pl. Mem. at 30.  The argument cuts too far because it would apply to fishing in basically any area of U.S. waters from Maine to North Carolina.

More specifically, the New England Fishery Management Council issued its Habitat Report in April 1999, which was prepared for it pursuant to the Omnibus Habitat Amendment.  See Pl. Mem. at Habitat Annual Review Report, April 1999, i.  The Habitat Report was prepared by the NEFMC’s EFH Technical Team.  Relevant portions of the Habitat Report are attached hereto as Exh. 6.  A brief discussion of the Report’s purposes as set forth at page i of its Executive Summary.
The April 1999 Habitat Report specifically addresses designations of essential fish habitat which the SFA required the NEFMC to make.  The Habitat Report explains the extremely limited utility of the NEFMC’s EFH designations, in the following terms:

One of the apparent problems with designating EFH on a species-by-species basis, as was directed by NMFS and done by the Council, is that many species occur in different places, utilize different types of habitat, migrate, and have different spatial concentrations depending on life history stage.  Combined with the relatively conservative designations encouraged by NMFS, these factors contributed to very large areas designated as EFH.  In fact, when the 64 individual EFH designations (for the eighteen Council-managed species addressed in the omnibus EFH amendment) are combined into one map, it becomes clear that almost the entire exclusive economic zone (EEZ),  from the northern border of Maine to North Carolina, has been designated as EFH for at least one species (see Figure 3.1).  The only areas not designated EFH within the EEZ are the deep water areas far offshore where NMFS does not conduct surveys. NEFMC Habitat Report, at 34 (emphasis added).

And, these habitat designations involve only those fish species primarily regulated by the New England Fishery Management Council.  The range of species primarily regulated by the Mid-Atlantic and South Atlantic Fishery Management Councils also extend into areas designated as essential fish habitat by the New England Council.  It is an understatement when the NEFMC Habitat Report concludes that, “For the designation of EFH to be meaningful in an ecological sense, and useful in a management sense, some further refinements are needed.”  Id. at 34.  Plaintiffs’ contentions about EFH must be judged in this light.  Obviously, more precision is required to identify habitat areas if targeted habitat conservation efforts are to take place.

What Plaintiffs do not inform the Court, moreover, is that more precise habitat delineations, involving areas specifically singled out as representing critical habitat, were expressly excluded from the Georges Bank closed area openings at issue in this action.  The NEFMC Habitat Report explains how it sought to prioritize areas to protect within the over-inclusive EFH designation:

According to the language of the NMFS guidelines, EFH that is judged to be particularly important to the long-term productivity of populations of one or more management species, or to be particularly vulnerable to degradation, should be identified as “habitat area of particular concern” (HAPC) to help provide additional focus for conservation efforts. * * *

The intent of the HAPC designation is to identify those areas that are known to be important to species which are in need of additional levels of protection from adverse impacts (fishing or non-fishing).  Designation of habitat areas of particular concern is intended to determine what areas within EFH should receive more of the Council’s and NMFS’s attention when providing comments on federal and state actions, and in establishing higher standards to protect and/or restore such habitat

In the EFH amendment, the Council made two HAPC designations.  One, for juvenile cod, designated a small portion of the northeastern Georges Bank, within the boundaries of Closed Area II, based on the identification of gravel habitat with an increasing biomass of emergent epifauna.  Current scientific studies identify these types of habitat as important for recently settled juvenile cod, serving to provide shelter from predation and possibly an increased food supply.  The second HAPC includes eleven rivers in Maine that support the only remaining U.S. populations of naturally spawning Atlantic salmon that have river-specific characteristics. NEFMC Habitat Report, at 33.

Defendants’ actions with respect to the Georges Bank openings are scrupulously solicitous of the juvenile cod HAPC.  The juvenile cod HAPC is located in the northern third of Groundfish Closed Area II.  See Framework Adjustment 13, at 33-36, 70-71.  To be extra-cautious, the NEFMC and Defendants did not permit the opening of the northern half of Closed Area II, not only to avoid potential interactions with the HAPC, but to address other potential habitat concerns about “sand waves” in those areas.  Id. at 34-35; see also Watling Dec.  11 (attached as Exh. 4 to Pl. Mem.)(expressing concerns about sand waves).  In fact, Defendants did not allow scallop fishing anywhere near the HAPC for juvenile cod, even though the survey activities showed substantial concentrations of large, harvestable scallops in these areas.  See Framework 13, at 33-35.
 Furthermore, the openings are again consistent with recommendations by the NEFMC’s EFH Technical Team.  These recommendations are set forth in Framework Adjustment 12, at 18-22.  These recommendations are repeated and re-addressed in Framework Adjustment 13, at 19-22.  These recommendations and applicable scientific literature are again considered and demonstrated to have been met in Framework Adjustment 13 in its NEPA analyses section, at pages 126-128 of that document.

More specifically, the EFH Technical Team’s habitat recommendations can be distilled to the following points: (1) bottom types of higher complexity (such as cobble and boulder bottoms) are generally believed to have a higher habitat value than areas with lesser complexity (such as sandier bottoms); (2) different habitat areas respond in different ways to bottom disturbances from mobile fishing gear, with areas of sandier bottom being subject to the least impact; (3) high energy ocean areas (shallow areas with relatively strong currents and wave action) are thought to recover more quickly from fishing and other disturbances than low energy areas (deep areas with relatively mild currents and little wave action).  See Framework Adjustment 13, at 19-20.  These recommendations are essentially consistent with Plaintiffs’ voluminous extra-record declarations.

Based on and because of these EFH Technical Team recommendations, Defendants were very careful to ensure that the openings were limited to areas believed to contain mostly sandy bottom that is less complex and less subject to habitat disturbance for fishing gear.  For Closed Area I, Defendants choose to avoid access to areas known to have “hard and complex substrates such as gravel and rock.”  They instead located the opening in an area considered to be comprised of predominantly sandy bottom similar to that in the southern portion of Closed Area II (which had previously been opened).  Framework Adjustment 13, at 129.

Further, Framework Adjustment 13 explained that the Nantucket Lightship Closed Area is almost exclusively comprised of relatively flat and sandy or relatively soft bottom habitats.  Moreover, it concluded that any potential for interaction with any harder bottom in the area to be opened area is limited because the Framework allocates only one trip to each scalloper.  Id.  at 129-30.

Finally, the Georges Bank and Nantucket Shoals areas are banks created by glacial action, and are thus higher and shallower than surrounding areas.  Because these banks are shallower and in a volatile weather area in the North Atlantic, they represent high energy environments as to which the EFH Technical Team found that any habitat disturbance from fishing would be lessened.

Ironically, the Coast Guard expressed its concern about enforcing the closed areas that were drawn (especially in Closed Area I) because the areas were configured to correspond to the composition of the bottom rather then to geographical coordinates.  See Appendix V to Framework Adjustment 13.

Finally, as explained above, Framework Adjustment 13 analyses show that the Georges Bank Closed Area scallop fisheries are having positive ramifications for habitat overall because they significantly reduce scallop dredge bottom time and result in forfeiture of DAS to fish by active scallop permit holders.  See Framework Adjustment 13, at 2, 127-28.  These effective reductions of fishing time are no less tangible then those that could be occasioned from Amendment 7’s reduction of DAS.   See Pl. Mem. at 11.

Moreover, it is also critical to keep in mind, when considering Plaintiffs’ and their declarants’ contentions relating to habitat issues, that Framework 13 kept most of the Groundfish Closed Areas closed to scallop fishing.  More than ample experimental control areas still exist to be able to assess the habitat impacts from the 1994 cessation of fishing activity in the Georges Bank Closed Areas.  But see Pl. Mem. at 21.  After all, the closed areas are more than 5,000 square nautical miles in size, and far less than half these areas would be opened.  Extant experimental activity was respected.  Professor Collie, from the University of Rhode Island, has an experiment near the juvenile cod HAPC in the northern edge of Closed Area II.  Fishing has not been permitted anywhere near Dr. Collie’s experiment.  Moreover, plenty of area exists for additional experimental activity outside the vast remaining closed expanses within the Georges Bank Closed areas, should the need arise.  As explained, supra, there are also other closures spread along the New England Coast that used to be subject to fishing activity (e.g., the Studds-Stellwagen Sanctuary, the Western Gulf of Maine Closed Area), and now are not.  But see Watling Dec.  27A, B (attached as Exh.4 to Pl. Mem.).  In addition, bottom areas that provide small fish with better cover from predation and a better potential food supply were also left closed, inasmuch as these type areas consist of the more complex habitat that Defendants consciously and expressly left closed. Indeed, even the “sand wave” formations, identified as potentially relevant by Dr. Watling  (id. at  27D), and found in Closed Area II, were not opened, despite the significant concentrations of harvestable scallops there.  Framework Adjustment 13, at 131.

Plaintiffs criticize the degree and nature of the NEPA analyses performed to support Framework Adjustment 13.  Plaintiffs neither recognize the degree of NEPA analysis supporting Framework Adjustment 13, nor do they recognize the context in which Framework 13 was developed .

First, Plaintiffs act as if the Environmental Assessment for Framework Adjustment 13 was very brief and then quote a portion of that analysis that addressed habitat, as if that portion of that section represented the metes and bounds of the NEPA assessment contained in Framework 13.  Pl. Mem. at 13-14.   The tactic is simply misleading.  The NEPA Environmental Assessment for Framework Adjustment 13 spans a full 68 pages.  It is the longest section of the Framework Adjustment document. Its EFH analysis spans 9 single-spaced pages.  The EA contains a discussion of aggregate potential habitat impacts of each opening individually, and then proceeds to consider the potential habitat impacts of each of the many Framework 13 regulatory provisions and safeguards (many of which are discussed herein) that attend the openings.  Id at 126-134.  The EA addresses very recent scientific literature on habitat issues throughout the EFH section.  In addition, analyses from throughout the Framework Adjustment document and its appendices provide supporting data and analyses for the NEPA analyses.

Moreover, Defendants have prepared supplemental environmental impact statements for Amendment 7 to the Scallop FMP and Amendment 7 to the Groundfish FMP.  See 61 Fed. Reg. 27710, 27730 (May 31, 1996) (Groundfish FMP Amendment 7 references SEIS); 64 Fed. Reg. 14835,14838, (March 29, 1999) (Scallop FMP Amendment 7 references SEIS).  Moreover, Amendment 7's framework adjustment provisions, implemented pursuant to the SEIS, specifically contemplate the use of rotational closures and the modification of closed area opening dates to assist in and hasten scallop rebuilding.  See 50 C.F.R. § 648.55(d)(18-20).   In addition, Defendants’ Omnibus Habitat Amendment was devoted in significant part to considering the effects of fishing gear and to developing a program to consider and address these issues.  See Pl. Mem. at 15.  It is no sin to reference these documents in a regulatory package, such as Framework Adjustment 13,that span 179 pages, plus supporting appendices.  But see Pl. Mem. at14.

Finally, it is not surprising -- and hardly arbitrary and capricious -- that habitat issues do not represent the bulk of EA analyses, as Plaintiffs seem to demand.  NEPA  is broader than that.  In addition, habitat considerations represent only one of a constellation of factors the Magnuson-Stevens Act requires Defendants to consider.  See id.  Moreover, cases Plaintiffs cite hold that habitat is not the primary consideration that Defendants must address.  Rather, the Magnuson-Stevens Act places the accelerated rebuilding of overfished species, through the rationalization of fishing efforts to stock conditions, pursuant to Magnuson-Stevens National Standard One, at the top of the priority list.  See Natural Resources Defense Council, Inc. v. Daley, 209 F.3d at 749. (quoted in Pl. Mem. at 11).  For its part, Framework Adjustment 13 is intended to hasten scallop rebuilding pursuant to Magnuson-Stevens Act National Standard One.  See e.g. Framework Adjustment 13, at 8.  (Purpose and need section explains in summary.  “The net effect will be to reduce the number of scallops caught by the fishery and therefore reduce mortality, promoting the rebuilding potential of faster-growing small scallops.”)

The bottom line demonstrated from Framework Adjustment 13 is that Defendants considered potential habitat impacts and new habitat literature, they took  advice from their habitat technical advisors, and they tailored the openings consistent with literature and the advice.  Nor does this case present a situation where Defendants’ NEPA analyses are static.  Defendants have already begun the NEPA process for Scallop FMP Amendment 10, which will provide for a comprehensive rotational area management plan for the scallop fishery.  See 65 Fed. Reg. 20940 (Apr. 19, 2000) (NEFMC meeting announcement detailing steps pursuant to which scallop rotational proposals will be taken through the NEPA public hearing process).  Thus, Defendants conducted a scallop-related EIS process in 1998-1999, and they are already doing another one again in 2000.  These activities hardly represent arbitrary and capricious inattention to NEPA.

II.      ARGUMENT

A. Standards for Preliminary Injunction

In this Circuit, a court must consider four factors in determining whether to grant a preliminary injunction: (1) the likelihood of success on the merits; (2) the potential for irreparable harm if the motion is not granted; (3) whether the injunction would harm other interested parties; and (4) whether the injunction will further the public interest. See Mova Pharmaceutical Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998); Cityfed Financial Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995); Humane Society of the United States v. Clark, 1999 U.S. Dist. LEXIS 3686 (D.D.C. 1999) (stating the four factors and finding no irreparable harm or public interest gain); Natural Resources Defense Council, Inc. v. Pena, 972 F Supp 9, 15 (D.D.C. 1997) (stating the four factors and finding a lack of evidence to support an injunction); Calderon v. Jefferson-Pilot Communications Co., 1996 U.S. Dist. LEXIS 10622 (D.D.C. 1996).  The four preliminary injunction factors “interrelate on a sliding scale and must be balanced against each other.”  Davenport v. International Brotherhood of Teamsters, AFL-CIO, 166 F.3d 356, 360 (D.C. Cir. 1999).  In this case, Plaintiffs are not entitled to the relief sought when the factors are considered individually, and certainly not when they are balanced together.

As to the first prong of the preliminary injunction analysis, Plaintiffs are unlikely to succeed on the merits because they are unlikely to establish that Defendant’s decision not to prepare an EIS in connection with Framework Adjustment 13, and to instead issue a Finding of No Significant Impact (“FONSI”), was arbitrary and capricious.  In this Circuit, “a federal court can overturn an agency decision not to prepare an EIS [only] if the decision is arbitrary, capricious, or an abuse of discretion.”  Humane Society, 1999 U.S. Dist. LEXIS 3686, *13 (D.D.C. 1999) (citing Public Citizen v. NHTSA, 848 F.2d 256, 266 (D.C. Cir. 1988)).  See also NRDC  v. Pena, 972 F. Supp. at 15 (citing the “arbitrary and capricious” standard under the Administrative Procedure Act, 5 U.S. C. § 706(2)(A),(C)).

In reviewing agency decisions in an APA review case such as this one, courts are instructed that, “the ultimate standard of review is a narrow one:  the court is not empowered to substitute its judgment for the agency’s.”  NRDC v. Pena, 972 F.Supp. at 15 (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971)).  In fact, “[w]here an agency’s particular technical expertise is involved, a reviewing court should be especially careful in guarding the agency’s discretion.”  Id. (citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376-77, 104 L. Ed. 2d 377, 109 S. Ct. 1851 (1989); Baltimore Gas & Electric Co. v. NRDC, 462 U.S. 87, 103, 76 L. Ed. 2d 437, 103 S. Ct. 2246 (1983) (“[A] reviewing court must remember that the Commission is making predictions, within its area of special expertise, at the frontiers of science.  When examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must be at its most deferential.”).  Thus, “[t]he question for reviewing courts is not whether an agency decision is ‘correct,’ but rather whether the decision reflects sufficient attention to environmental concerns and is adequately reasoned and explained.”  Hester v. National Audobon Society, 801 F.2d 405, 407 (D.C. Cir. 1986) (citations omitted).

Under NEPA, “agencies must prepare an Environmental Impact Statement (“EIS”) whenever a proposed major federal action will significantly affect the quality of the human environment.”  Hester, 801 F.2d at 407 (citing 42 U.S.C. § 4332(2)(C)).  In City of Klamath Falls, Oregon v. Babbitt, 947 F. Supp. 1 (D.D.C. 1996), the district court set forth the procedural steps that comprise the EIS determination as follows:

An agency first prepares an environmental assessment (“EA”), and based on that assessment, determines if it is necessary to prepare an environmental impact statement.  An EA is a ‘concise public document’ that ‘briefly provides sufficient evidence for determining whether to prepare’ an EIS.  An EA must discuss only ‘appropriate alternatives,’ and include a ‘brief discussion of. . . environmental impacts.”  In preparing an EA, an agency must take a “hard look” at the environmental impact of the proposed action and alternatives.  After preparing an EA, if an agency determines that an EIS is necessary, it will begin to prepare the EIS.  If the agency determines on the basis of the EA that an EIS is not necessary because the implementation of the proposed agency action will not significantly affect the quality of the human environment, the agency will prepare a Finding of No Significant Impact (“FONSI”) and will not prepare an EIS.
947 F. Supp. at 5 (internal citations omitted).

In this case, Plaintiffs essentially contend that they are likely to succeed on the merits because Defendants’ failure to prepare an EIS in connection with Framework Adjustment 13 was arbitrary and capricious. See Pl. Mem. at 28.  In addition, Plaintiffs contend that they are likely to succeed in showing that the Defendants’ decision-making with respect to the preparation and execution of an EA and FONSI in connection with Framework Adjustment 13 also was arbitrary and capricious, in that these decisions “did not contain sufficient analysis of the environmental effects of the frameworks they accompany, [and] they [did not] adequately analyze alternatives to the actions.”   See Pl. Mem. at 33.

Specifically, Plaintiffs allege that Defendants did not take a “hard look” at the environmental impacts of increasing scalloping DAS and opening the closed areas under Frameworks 12 and 13.  Pl. Mem. at 34.  For instance, Plaintiffs argue that Defendants:  “did not consider all the evidence available to the agency considering the impacts of the action;” “ignored major issues like the effect of the action on nursery and feeding habitat for groundfish, the need for experimental controls to study EFH and the effects of fishing gear on EFH, the indirect mortality from scallop dredging, and the necessity of a rotational area management plan for the scallop fishery.”  Pl. Mem. at 34 (internal citations omitted).

As an initial matter, although Plaintiffs appear to challenge Defendants’ decisions with respect to Framework Adjustments 12 and 13 in the body of their Memorandum, the preliminary relief they ultimately request from this Court – enjoining the opening of Closed Area I and the Nantucket Lightship Area to scallop dredging – is covered in Framework Adjustment 13 only.  Framework Adjustment 12 involved increasing fishing year 2000-01 DAS requirements from 51 DAS to 120 DAS.  Since Plaintiffs do not seek relief from this Court as to Framework Adjustment 12’s DAS allocations, these arguments are directed solely to the decision-making accompanying Framework Adjustment 13.

No record or other basis exists to support Defendants’ claims regarding Framework Adjustment 13’s decision-making.  Plaintiffs demonstrated in the Facts section of this Opposition Memorandum that Defendants did not ignore groundfish or habitat issues.  They analyzed a series of alternatives on this score.  Framework Adjustment 13, at 62-75. They steered the openings away from relatively more complex habitat found in the Georges Bank Closed Areas, at the expense of considerable scallop yield.  In fact, habitat considerations essentially dictated Defendants’ policy as to the choice of areas to open.  Defendants also delayed and shortened openings in time to avoid disrupting groundfish spawning.  In addition, they set a firm yellowtail flounder bycatch quotas.

Moreover, thousands of square miles of recently unfished ocean bottom remain available for experimental controls, both inside the Georges Bank Closed Areas and in other New England closed areas.  Existing experiments were respected.  Finally, the thrust of the relief Plaitiffs seek is contrary to their stated concerns and allegations about what Defendants ignored.  Plaintiffs’ actions would demonstrably promote incidental fishing mortality, as Mr. Bruce has explained.  Defendants are effectuating rotational management in incremental, environmentally minimal ways, while proceeding to develop a comprehensive rotational plan with an accompanying EIS.  Framework Adjustment 13’s 68-page EA, in context of all the ongoing environmental analyses, goes far beyond a “hard look.”  On this record, the resulting FONSI “considered the relevant factors in a rational way,”  City of Klamata Falls, 947 F. Supp. at 7, which is what NEPA and the APA require.

Plaintiffs also fail to provide adequate recognition of the recent NEP EIS-level analyses Defendants have performed in connection with Amendments 7 to the Scallop and Groundfish FMP’s.  They also ignore the extensive analyses supporting the Omnibus Habitat Amendment.  And, NMFS is already starting a new EIS analysis for comprehensive rotational management.  See Center for Marine Conservation v. Brown, 917 F. Supp. 1128 (claim regarding NMFS’ failure to prepare environmental impact statement for shrimp FMP and subsequent amendments ruled not actionable when NMFS was undertaking the development of a subsequent FMP amendment that would contain a more detailed environmental analysis); compare Greenpeace v. National Marine Fisheries Service, 55 F. Supp.2d 1248, 1270-71 (W.D. Wash. 1999) (20-year lag between NMFS preparation of environmental impact statements and supplements as to Alaska pollock fishery take of Steller sea lions is actionable).

Plaintiffs also ignore that Defendants specifically tailored Framework Adjustment 13 to address and minimize potential environmental considerations.  The openings have been tailored in space to avoid not only potentially important habitat, but also areas where monkfish and barndoor skate were specifically found by the detailed cooperative survey work.  Further, the openings have been tailored in space and time to avoid disrupting groundfish spawning.  Moreover, all of these decisions were based upon a revolutionary level of cooperative science, involving Defendants, academics, and fisherman working together for a change.  In addition, Framework 13 implemented a bycatch TAC for Georges Bank yellowtail flounder and southern New England yellowtail flounder.  Further, Framework 13 increased the mesh size for dredges used in the closed areas, from 8” in the open areas to 10” in the closed areas, so as to allow groundfish to avoid capture.  Framework 13 also doubled VMS polling to assist in vessel monitoring and enforcement, ad hominen aspesions on scallopers notwithstanding.  Moreover, in order to assist in enforcement, Framework 13 does not simultaneously open all closed areas.  And, for all of Plaintiffs’ claims about the need for research, it is Framework 13 that includes a regulatory vehicle to fund it, via the TAC set-aside.  Cf.  “Coalition of Sensible Transportation, Inc. v. Dole, 826 F. 2d 60, 66-67 (D.C. Cir. 1987) (“where an agency finds an impact of true significance, the agency can avoid preparing an EIS if the agency finds that changes or safeguards, in the project “sufficiently reduce the impact to a minimum.”)

Accordingly, Defendants’ decision not to prepare an EIS in connection with Framework Adjustment 13 was not “arbitrary and capricious.”  Similarly, Defendants’ decision to issue a FONSI based upon the EA prepared in connection with Framework 13 also was not “arbitrary and capricious.”  Instead, Defendants’ decision-making for both actions constitutes the necessary – actually exemplary -- “hard look” that NEPA requires.  Plaintiffs cannot manufacture a post hoc record to discrdit the EA. See, e.g.  Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 67 (D.C. Cir. 1987) (concluding that “technical disputes” amounting to disagreements between experts, alone, does not suggest arbitrariness).

C. Plaintiffs Will Not Suffer Irreparable Harm If An Injunction Does Not Issue

The second factor that Plaintiffs must demonstrate to obtain a preliminary injunction is that they will suffer irreparable harm if, pursuant to Framework Adjustment 13, the Georges Bank Closed Area I and the Nantucket Lightship Closed Area are opened to scallop fishing in the limited way that the challenged measures prescribe.  See Humane Society, 1999 U.S. Dist. LEXIS at *17 (citing Davenport, 166 F.3d at 360).  “The irreparable harm must be imminent and great, creating a ‘clear and present need for equitable relief.’” Id. (quoting Varicon Int’l v. Office of Personnel Management, 934 F. Supp. 440, 447 (D.D.C. 1996); see also Milk Industry Foundation v. Glickman, 949 F. Supp. 882, 896 (D.D.C. 1996) (concluding that an injunction should be denied unless “the injury complained of [is] of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.”).

Plaintiffs allege that Framework 13 will cause them irreparable harm because scallop dredging in the closed areas will inflict harm: (1) on essential groundfish habitat that could take 25 to 50 years to heal; (2) on New England groundfish populations that already may not be rebuilt for many years; (3) in the loss of scientific research opportunities; and (4) to other depleted species such as the barndoor skate.  Pl. Mem. at 36.

Plaintiffs’ arguments lack support in the record.  First, the Nantucket Lightship and Closed Area I openings specifically avoid those areas of hard bottom known to contain habitat that is believed to be most susceptible to impact from fishing activity and to require longer to recover from any fishing activity.   The record shows Defendants considered a representative cross-section of habitat-related information and based their action on that information.  The law (the APA, the Magnuson-Stevens Act, National Standard Two, and NEPA) requires no more.  Moreover, it is not likely that the effects of only fishing would take 25 to 50 years to heal.  After all, Plaintiffs’ declarant already analogizes the closed areas to “virgin,” rain forest-like conditions (see Meyers Dec., at 22 ), after only a six-year closure that follows decades, if not a century, of intensive mobile gear fishing effort quantum levels beyond that which Framework 13 would allow.
Second, Framework Adjustment 13, including its extensive NEPA analyses of bycatch issues, carefully addresses and limits any potential impact on groundfish stocks and rebuilding.  Defendants have established Southern New England and Georges Bank yellowtail flounder total allowable catches, and the latter-referenced stock component is almost rebuilt.  If past experience with Framework Adjustment 11 is prologue, Defendants will close the scallop fishery if and when these groundfish TACs are met.  Moreover, experimental sampling caught very few cod or haddock at all during the 1998 and 1999 experimental fisheries.  If the Framework Adjustment 11 experience is a guide, bycatch in the actual Framework Adjustment 13 scallop fishery will, moreover, be less than in the experimental sampling fishery.  Also, the openings are designed to occur when aggregations of spawning groundfish are not found in these closed areas.  The areas are tailored to avoid monkfish and barndoor skate.  The same is true for potential turtle interactions, the likelihood of which is demonstrably minimal in any event.  See Framework Adjustment 13, at 135.

Third, Defendants have provided more than ample opportunity for areas to conduct research.  Most of the 5,000-plus square nautical miles of Georges Bank Closed Areas remain closed, and extant research projects were not disturbed.  There are also other closed areas (e.g., Studds Stellwagen Marine Sanctuary, Western Gulf of Maine Closed Area) that can also be used for research purposes.

Fourth, to the extent that the Georges Bank Closed Area fishery reduces overall scallop dredge bottom time coast-wide, the potential for scallop dredges to interact with other species such as barndoor skate or monkfish or any other species for the matter, is reduced.  Finally, parts of the Georges Bank Closed Areas where the sampling showed potential concentrations of these species were not opened.

Consequently, Plaintiffs’ allegations of irreparable harm occasioned by the opening of the Closed Areas are contrary to the administrative record.  Further, NEPA provides no substantive restriction on fishing effort, but rather a guarantee of the agency making an informed decision.  See Marsh, 490 U.S. at 371.  As explained above, Defendants took a “hard look” at the impacts of the very narrow scallop fishing operations to be permitted in the two closed areas at issue.  On this record, the practical effect of the granting of this injunction would impermissibly force a substantive result.  Because the openings will expire at the end of September (Nantucket Lightship) and the end of December (Closed Area I), the granting of the preliminary injunction will effectively vitiate the opportunity to fish in these areas.

The Magnuson-Stevens Fishery Conservation and Management Act provides the substantive standard for reviewing the openings, and Plaintiffs have not brought their case thereunder.  Nor could they.  The openings are specifically designed to promote scallop yield and move it toward optimum, as National Standard One requires.  16 U.S.C. § 1851(a)(1).  Indeed, Framework Adjustment 13 projects it will result in a 17% increase in scallop yield, at the same ­­ Amendment 7 prescribed -- fishing mortality rate.  Framework Adjustment 13, at 96.  The openings are cognizant of, and not inconsistent with, efforts to rebuild groundfish stocks to levels that can produce optimum yield.

In addition, the closures are configured based upon reasonable interpretations of the available scientific information, as National Standard Two requires.  16 U.S.C. § 1851(a)(2).  The measure reduces costs, as National Standard Seven, 16 U.S.C. § 1851(a)(7), requires, because it enables increased yield with decreased effort (which is very important given escalated fuel prices). Dredge twine top increases, tailoring of the area and time of openings, and strict yellowtail bycatch TAC all contribute to satisfying National Standard Nine’s requirement of bycatch reduction to the extent practicable.  16 U.S.C. § 1851(a)(9).  For the many reasons stated herein, Framework Adjustment 13 addresses habitat concerns.  16 U.S.C. § 1853(a)(7).

D. Scallop Rebuilding and Scallop Fishing Communities Will Be Substantially Harmed If An Injunction Issues
 

Plaintiffs must also establish that other interested parties will not be harmed by the issuance of an injunction.  See Humane Society, 1999 U.S. Dist. LEXIS at *23.  They cannot do so.  Plaintiffs claim that an injunction will not substantially harm other interested parties, such as scallop fishermen, because an injunction will only continue the “status quo” – prohibiting access by scallop fisherman to the closed areas from which they have been barred since 1994.  Pl. Mem. at 40.  Plaintiffs’ argument, however, ignores Framework Adjustment 13’s fundamental rationale.  Scallop fishing is currently concentrated in the open areas where scallops are either relatively scarce or relatively small in areas where they are relatively abundant, and Plaintiffs themselves claim as much.

Accordingly, continuation of the status quo harms scallop fisherman because it slows rebuilding and thus lengthens the scallop rebuilding period under the SFA, during which time draconian measures are in place.  Retarding scallop rebuilding also harms the public, to the extent, as Plaintiffs argue, that the public has an interest in timely effectuation of the Magnuson-Stevens Act’s rebuilding requirements.  Finally, the public has an interest in being provided with quality U.S. seafood, an interest the Act also specifically recognizes.  16 U.S.C. § 1801(a)(1).

On this record, the primary motivating factor, from Defendants’ perspective, is not to open the areas to provide a temporary and fleeting economic bonanza for scallopers, as Plaintiffs suggest.  Such gratuitous beneficence is not in Defendant’s nature in any event.  Defendants recently totally eliminated the very valuable directed spiny dogfish fishery.  They then withstood a legal challenge that claimed they could not, under the law, bankrupt an entire fishery.  Defendants explained that such draconian measures where within their authority and legal obligations.  See A.M.L. Int’l, Inc. v. Daley, Civ. No. 00-10241-EFH (D.Mass, July 28, 2000) (slip op.) (attached as Ex.7).  Turning back to the case at bar, Framework Adjustment 13 specifically avoids creating the limitless economic bonanza to which Plaintiffs erroneously allude. Intervenor proposed the 10,000 pound-10 DAS trade-off.  As Defendants have emphasized, the trade-off fosters positive habitat benefits.  Equally important in this context, the trade-off is also serving as a substantive limit on scallop fishing, now that there have been recruitment events of significance in the open areas on Georges Bank and in the Mid-Atlantic.  See, e.g., Framework Adjustment 13, at 2, 8, and 127-28.  It is possible to harvest for more than 10,000 pounds in 10 DAS in areas outside the Georges Bank Closed Areas.

That said, National Standard 8 of the Magnuson-Stevens Fishery Management and Conservation Act does require Defendants to seek to provide for the sustained participation of fishing communities.  16 U.S.C. S 1851(a)(8).  As explained above, Framework Adjustment 11 provided for $35 million in high value, high quality scallops from Closed Area II last year.  When subjected to the multiplier effect as each dollar of ex vessel scallop product works its way through the regional fishing economy, the scalloping communities of which the scallopers are a part will be harmed if they are denied the opportunity to deal in the quality product available from these two closed areas.  The multiplier effect and the dependence of regional economies on scalloping is discussed in detail in FSF’s Petition for Rulemaking.  See Exhibit 5, at 44 (general effects set out at 23-34; 42-46).  Obviously, scallopers and communities they help to support will and should fare better economically as stocks rebuild.  The potential to realize some economic benefit in return for past conservation sacrifice is no reason, however, to deny them access to a rebuilding stock in a manner that also benefits them economically.

E. The Public Interest Weighs In Favor Of Denying An Injunction
 

“In weighing whether to grant a preliminary injunction, the Court must also consider whether the proposed injunction will further the public interest.”  Humane Society, 1999 U.S. Dist. LEXIS, at *23.  In this regard, the Court must look not only to the public interest in insuring compliance with the law, but also to “the public interest with an eye towards the government’s course of conduct in devising the program, as well as the actual consequences of issuing the preliminary injunction.”  Id.
Plaintiffs allege that enjoining the opening of the closed areas would serve the public interest by: (1) enforcing NEPA; (2) preserving EFH; (3) conserving marine fish populations; and (4) protecting the long-term economic well-being of the scallops and groundfish fisheries.  Pl. Mem., at 41.

Contrary to Plaintiffs’ assertions, the balance of public interest weighs against enjoining the opening of the closed areas.  NEPA has been observed.  Moreover, the injunction sought would run counter to the law.  According to Magnuson-Stevens Act National Standard One, conservation and management measures, while preventing overfishing, also are to achieve “the optimum yield from each fishery for the United States fishing industry.”  16 U.S.C. § 1851(1).   In this case, because sea scallop stocks in the Closed Areas are near maximum sustainable yield levels, Defendants, in order to follow the edict of National Standard One, should open those areas in order to achieve the optimum yield for the United States fishing industry, as the law requires.  The seafood consuming public and the affected regional fishing communities should not, moreover, be denied the win-win of increased yield, coupled with enhanced scallop rebuilding.

Also, the public interest is furthered by the denial of an injunction because opening the closed areas will reduce the amount of bottom time for scallop dredges.  Therefore to the extent the entire relevant ocean bottom is classified as EFH (it is), Framework Adjustment 13 protects EFH.  Moreover, reduced bottom time equates with a reduced potential for interaction with non-targeted species, such as the monkfish and barndoor skate regarding which Plaintiffs profess concern.  In this regard, the Framework Adjustment will also divert effort from potentially complex habitat that may exist outside the Closed Areas.  See Framework Adjustment 13, at 128.

Third, the openings will rebalance scallop fishing from areas that are overly fished to areas where larger scallops are available. The openings will thus help the small scallops that are becoming increasingly abundant outside of closed areas to recover and grow.  Contrary to the rationale Plaintiffs assert to support their Motion, protecting juvenile scallops protects scallop fishermen.  The Court should not fall prey to Plaintiffs’ efforts to stall rotational scallop fishing and re-direct fishing effort onto concentrations of small scallops.

III. CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion for a Preliminary Injunction should be denied.
Dated:  August 2, 2000    Respectfully Submitted,

       _______________________________
       David E. Frulla (D.C. Bar # 414170)
       Brand & Frulla, P.C.
       923 Fifteenth Street, N.W.
       Washington, D.C.  20005
       Telephone: (202) 662-9700
       Facsimile: (202) 737-7565
       Attorney for Intervenor FSF