Alaskan fishing management on the hook in Ninth Circuit

Oceana challenged five amendments the National Marine Fisheries Service made to management plans for fish offshore Alaska.(CN) — An ocean conservation group asked a Ninth Circuit panel on Monday to make the National Fisheries Management Service take another look at the impact of fishing on essential fish habitat offshore of Alaska.“All the court needs to decide is a straightforward legal question: Can the Fisheries Service meet its obligation to minimize all adverse effects on all designated essential fish habitat by using only two tests to identify those adverse effects?” posited Katherine Glover, Earthjustice attorney representing Oceana.Oceana, an advocacy organization focused on ocean conservation, sued the National Marine Fisheries Service in 2024. It accused the service of using the wrong criteria when looking at the effects of fishing on essential fish habitat offshore of Alaska.Under the Magnuson-Stevens Fishery Conservation and Management Act, the service is required to identify and protect “essential fish habitat” necessary to sustain healthy fish populations. As part of that, the service is obligated to minimize adverse impacts on essential fish habitats caused by fishing.The service approved five amendments to management plans for federally managed groundfish, crab and salmon fisheries in the waters near Alaska, and Oceana accused the service of relying on only two flawed tests to make its decision. One is the core essential fish habitat test and the other is the minimum stock size threshold test.“These are the only two required tests in the Fisheries Services process, and they’re both unlawful, alone or in combination, because neither test cures the flaws of the other,” Glover said.But U.S. Circuit Judge Patrick Bumatay, a Donald Trump appointee, questioned whether the group had standing to bring the challenge in the first place, noting Oceana had not claimed the area had been overfished.“What’s the injury here if you’re saying it’s the right amount of fishing, how are you being injured?” Bumatay asked.To Oceana, it’s the fishing itself and the techniques that damage the habitat and therefore impact the fish, which some group members rely on for subsistence.“I’m still not seeing it traceable to the amendments here,” Bumatay said, also noting that the group had not claimed that the amendments led to any concrete adverse effects, but instead claimed that the service hadn’t properly looked for any. “Even if they were to adopt what you would consider analysis that is compliant with the law, they might not find any adverse effect, and so there’d be no change in the amount of fishing.”“I don’t think the court needs to decide whether there is long-term permanent harm to essential fish habitat in order to find that there’s standing here,” Glover said. “It simply needs to find that there is a plausible chain of causation.”U.S. Circuit Judge Consuela Callahan, a George W. Bush appointee, questioned whether the Magnuson-Stevens Act required the service to use specific evaluation methods.“All it needs to decide is the legal question of whether they can take the shortcut they’re taking and only look at half of the habitat and some of the adverse effects rather than meeting the terms of the statute to evaluate all of it,” Glover said.The National Marine Fisheries Service argued that Oceana misplaced its challenge.“Oceana’s claimed injury is from this ‘continued trawling’ in this area, but the actual agency action that they’re challenging are these minor amendments to the fishery management plan that don’t authorize any continued trawling and instead are non-regulatory efforts to update the essential fish habitat information,” said Amy Collier, Justice Department attorney.Plus, the service said it is already in the process of conducting its next regular five-year update to the essential fish habitat information, and Oceana is participating in that open process. The service also noted the Magnuson-Stevens Act doesn’t require it to use a specific methodology.“The service is coming at this looking at the species at a population level, and it’s done this since 2005; it’s looked at whether the species is above or below this threshold in doing so,” Collier said. “And I don’t think there’s anything unreasonable about that.”A trio of industry trade groups intervened as defendants in the original lawsuit, and on appeal they argued the service complied with the act’s requirements that it minimize to the extent practicable the adverse impacts caused by fishing, especially since Congress afforded the service the discretion to assess the effects.“The service has the technical and the scientific expertise to determine what is practicable when it comes to minimizing adverse effects,” said James Feldman, attorney representing the intervenors.Still, Oceana argued the service had neglected to follow the plain language of the statute and urged the appeals court to make it take another look.The Ninth Circuit panel, which also included George W. Bush appointee U.S. Circuit Judge Carlos Bea, did not indicate when it would rule.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads