Wednesday, August 31, 2011

Today's Catch: Conflict of Interest

September 2011

In a strongly worded opinion, US District Court Judge James Redden ruled last month that the National Oceanic and Atmospheric Administration (NOAA) Fisheries Service failed for the third time in ten years to produce a legal and scientifically sound plan to protect endangered Columbia and Snake river salmon from the lethal impacts of federal dams on the Columbia and Snake rivers. This is the fourth NOAA salmon plan overturned in 20 years.

More than 50 fishing and conservation groups, including the Pacific Coast Federation of Fishermen’s Associations (PCFFA), had challenged the plan in court.

In his decision, Redden called on NOAA to produce a new or supplemental plan that corrects the current one’s reliance on unidentified mitigation measures for populations that have been on the fence for decades.

“It is one thing to identify a list of actions, or combination of potential actions, to produce an expected survival improvement and then modify those actions through adaptive management to reflect changed circumstances,” Redden wrote on page 16 of the decision. “It is another to simply promise to figure it all out in the future. Federal Defendants need not articulate every detail of a habitat mitigation plan. They must do more than they have here.”

Representing the fishing and conservation groups was Earthjustice attorney Steve Mashuda.

Also last month, in a different case, in a different courtroom, Judge Charles Breyer of the US District Court, Northern District of California, dismissed a lawsuit that sought to halt the recently enacted West Coast groundfish trawl rationalization program. PCFFA and a handful of other groups had brought that lawsuit against the Secretary of Commerce, the National Marine Fisheries Service (NMFS) and the National Oceanic and Atmospheric Administration (NOAA).

Under development since 2003, the trawl rationalization program was designed to reduce bycatch of overfished and other sensitive stocks, while enabling the fishery to recover economically from a federal disaster declaration in 2000. PCFFA’s lawsuit alleged, among other things, that the fishery rationalization program violates national standards requiring management measures to prevent overfishing and to minimize bycatch and bycatch mortality to the extent possible.

Stakeholders that supported NOAA and NMFS included the Midwater Trawlers Cooperative, the United Catcher Boats and the Environmental Defense Fund (EDF), which is a client of the aforementioned Earthjustice, whose tagline, “because the earth needs a good lawyer” should send chills down the spine of any commercial harvester in the country.

In two recent but separate rulings, PCFFA won one and lost one, but big environment won both.

Without commenting on the soundness of either of the decisions, this columnist questions the wisdom of siding with Earthjustice or its clients/subsidiaries on any plan that involves the fate of commercial fishing.

Chris Philips

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