CONSERVATION LAW FOUNDATION,

Plaintiff

Civil Action No. 00-1718 (GK)

v.
ROBERT L. MALLETT, at al.
Defendant

MEMORANDUM-ORDER

This case comes before the Court on Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs seek to enjoin the Defendants, relevant officials at the Department of Commerce, the National Marine and Fishery Service (“NMFS”), and the National Ocean and Atmospheric Administration (“NOAA”), from re-opening portions of specifically defined areas in the Georges Bank, off the New England Coast, which have been closed for the past 5 1/2 years to all commercial fishing.

In particular, Plaintiffs argue that to now allow scallop dredging with mobile fishing gear that disturbs the ocean floor and destroys sea floor structure essential to groundfish amounts to a major federal action with significant effects on the environment. Consequently, Plaintiffs contend, that the defendants have violated the National Environmental Policy Act, (“NEPA”), 42 U.S.C. § 4332, by failing to prepare an Environmental Impact Statement (“EIS”) and by preparing an Environmental Assessment (“EA”) which fails to adequately analyze and evaluate the effects of scallop dredging in the closed areas on benthic organisms, the groundfish food chain, and groundfish nursery habitat.

As Plaintiff m have Stated in their opening Memorandum of Points and Authoritie1, “[t]ime is of the essence” . The Nantucket Lightship Area is scheduled to be opened on August 15, 2000, and Closed Area I on October 1, 2000. Briefing was not completed on this Motion until August 9, 2000, and oral argument was held August 11., 2000. (Of course it should be noted that Plaintiffs did not even file their complaint until July 20, 2000, despite promulgation of the relevant rule by Defendants on June 19, 2000.) Because of these time constraints, this Memorandum order must be extremely brief. Its brevity should not be construed as a lack of concern and consideration by the Court.

Having now had an opportunity to consider the lengthy briefs of all parties, the supporting exhibits, the applicable case law, and the two-hour oral argument of counsel, the Court concludes that the Motion for Preliminary Injunction must be denied for failure to establish irreparable harm.

The law is well established in this Circuit that, in order to prevail on a motion for preliminary injunction, the plaintiff must show that it will suffer irreparable harm in the absence of such relief, that there is a substantial likelihood of success on the merits of the substantive claim, that, on balance, granting the injunction will cause less harm than denying it, and that the public interest will be served by granting it. See Mova Pharmaceutical Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998) Washington Metropolitan Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977).

Initially, it should be remembered that the granting of a preliminary injunction constitutes “extraordinary relief” Fund for Animals v. Frizzell, 530 F 2d, 982, 986 (D.C. Cir. 1975). Plaintiffs bear a heavy burden of proving their need by a clear showing that such a drastic remedy is warranted, particularly where, as here, they seek to restrain a. governmental program intended to serve the public interest. Yakua v. United States, 321 U.S. 414, 440 (1944). Finally, the showing of irreparable harm is the sina qua non for granting ouch relief.

For the following reasons, the Court concludes that Plaintiffs have failed to make that showing.

1. The re-openings are extremely limited in duration. Closed Area I will be re-opened for only 90 days from October 1 to December 31, and Nantucket Lightship Closed Area will be re-opened for only 45 days from August 15 to September 30.

2. The areas to be re-opened comprise only a small portion of the Georges Bank Groundfish Closed Areas (which include closed Area I and II and the Nantucket Lightship Area). The entire Georges Bank Groundfish Closed Areas encompass over 5000 square nautical miles; the two area re-openings which are being challenged comprise less than one-third of Closed Area I and a very small section of the Nantucket Lightship Closed Area.

3. Fishing activity, although of a limited variety, has been allowed in the Georges Bank Closed Areas all during their closure. Fishers 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. While these forms of fishing do not involve the same dangers to groundfish, the ocean floor,  and benthic organisms as does scallop dredging, it is important to remember that even the Closed Areas have not been totally devoid of commercial fishing activity.

4. NMFS has imposed various restrictions on scallop vessels, all designed to minimize the impact of limited re-opening of the Closed Areas, For example, days at sea (“DAS”) are limited to 120; moreover, each vessel making a trip of ten DAS or less into the Closed Areas automatically loses ten DAS from the total allocated to that vessel. No fisher can make more than three trips per vessel in the Closed Areas. On each of these three trips there is a maximum landing limit of 10,000 pounds of scallops. Finally, NMFS is requiring the use of larger size mesh nets on the dredges, so as to significantly reduce bycatch for yellowtail flounder, winter flounder, and windowpane flounder and possibly reduce bycatch for summer flounder and skates.

5. NMFS carefully chose to re-open only those less sensitive portions of the Closed Areas, namely those with relatively flat and sandy bottoms, which include the kind of habitat that best recovers from scallop fishing, and to exclude from re-opening those portions which are ecologically complex, namely those that are hard and rocky.

6. Last--but perhaps most significantly--the 5 1/2-year moratorium on commercial fishing in these closed Areas has in fact produced the desired results. Whereas the areas were so degraded that they had to be closed on an emergency basis to all bottom tending mobile gear in 1994 because of severe overfishing and depletion of the New England groundfish stock, after only 5 1/2 years the scallop and groundfish stock rebounded far, far quicker than was expected; there is now an abundance of these species,* and scallops in the Georges Bank Closed Areas are “near maximum sustainable yield conditions.” Framework Adjustment 13, at 10.
 

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*See SAFE Report, dated September 1, 1999, which is the annual Stock Assessment and Fishery Evaluation Report prepared for the New England Fishery Management Council and Defendants. See also 50 C.F.R. §600.315(e).

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For all these reasons, the Court concludes that Plaintiffs have failed to make the requisite showing of “imminent and great” irreparable harm creating a “clear and present need for equitable relief.” See Varicon Int’l. v. Office of Personnel Management, 934 F. Supp. 440, 447 (D.D.C. 1996). In reaching this judgment, the Court must, of necessity, look at complex scientific data and conclusions. When reviewing agency determinations of this nature, which are in a real sense “at the frontiers of science” and are particularly within its own area of expertise, “a reviewing Court must generally be at its most deferential”. Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1989) (internal citations omitted)
 
 
 
 

Wherefore, it is this 11th day of August 2000,

ORDERD, that Plaintiffs Motion for Preliminary Injunction is denied.
 

Gladys Kessler
U.S. District Judge

Stephen E. Roady
Eric Bilsky
Monica B. Goldberg
Earthjustice Legal Defense Fund
Ocean Law Project

Lori Caramanian
Geoffrey Carver
U.S. Department of Justice
Environmental and Natural Resources Division
General Litigation Section

David E. Frulla
Brand & Frulla, P.C.