On Monday, the Ninth Circuit Court of Appeals supported Oceana's contention that citizens have a formal right to participate in annual fishery management decisions of the National Marine Fisheries Service (NMFS). The Court rejected the Bush Administration's attempt to circumvent a basic federal law that requires the government to provide citizens with an opportunity to comment on proposed federal regulations.
“The West Coast Pacific groundfish fishery is collapsing and the Bush Administration is failing in its duty to manage and conserve it,” said Sylvia Liu, senior attorney at Oceana, and counsel for plaintiffs in the case, the Natural Resources Defense Council (NRDC) and The Ocean Conservancy. Liu added, “The federal appeals court confirmed that concerned citizens who have a stake in environmental decisions - in this case the future of the fishery -- must be given the opportunity to provide their expertise and views.”
Each year, the National Marine Fisheries Service (NMFS) promulgates regulations governing the 82 species of Pacific groundfish. Under federal law, NMFS is required to provide at least two weeks of public “notice and comment” to allow the public to comment on the proposed rules. Each year since 1991, the government had claimed that it had “good cause” to exempt itself from this fundamental requirement. NMFS claimed that fishery management decisions are so complex and time-consuming that it could not provide a 2-week comment period in a year-long rulemaking process.
In August 2001, a federal district court soundly rejected this reasoning in a lawsuit filed by NRDC and The Ocean Conservancy. The judge agreed that the agency had both substantively failed to protect the Pacific groundfish and illegally shut out citizens from the regulatory process. The government appealed the procedural claim, arguing that it was not required to provide public comment because the fishery management councils provided adequate public hearings.
“The appellate court made clear that NMFS must comply with basic federal laws designed to ensure a democratic, participatory process,” said Phil Kline, fishery expert at Oceana. “The court victory makes it harder for the Administration to continue its blatant efforts to limit citizen input in environmental decision-making.”
In this particular case, the conservation groups had serious concerns about the 2001 measures, which had failed to take adequate account of bycatch mortality for seriously overfished bocaccio and lingcod populations, which had resulted in setting inflated fishing harvest levels. Bycatch - or fish species that are caught unintentionally and thrown out, usually dead or dying - is a serious problem for the Pacific groundfish fishery. When the conservation groups provided their comments after the regulations were put in place, NFMS acknowledged that it had set the wrong harvest level and reduced it. If the groups had had an opportunity to provide their comments before the harvest levels were set, they could have averted the mistake.