Monday, March 21, 2011

General Category Scallop Fishermen v. US Commerce Department

Mar 16: In the U.S. Court of Appeals, Third Circuit, Case No. 10-2341. According to the Appeals Court, the appeal arises from a dispute over the right of fishermen to access the Atlantic Sea Scallop Fishery. At issue is an order of the United States District Court for the District of New Jersey denying summary judgment on all claims by Appellants, who are former general category scallop permit holders, while granting summary judgment on all claims to Appellees Gary Locke, in his capacity as Secretary of the United States Department of Commerce, National Oceanic and Atmospheric Administration (NOAA), and National Marine Fisheries Service (NMFS).
    The Appeals Court outlines that it is asked to resolve: (1) whether NMFS complied with the Administrative Procedures Act (APA), and the Magnuson-Stevens Fishery Conservation and Management Act of 1976 (Magnuson-Stevens Act), when it promulgated regulations implementing Amendment 11 to the Atlantic Sea Scallop Fishery Management Plan, including a "control date" that effectively terminated the access rights of general scallop fishermen who were not established in the fishery prior to November 1, 2004; (2) whether the process by which Amendment 11 was adopted complied with the Magnuson-Stevens Act requirement that public hearings be held in "appropriate locations in the geographical area" that will be affected by changes to a Fishery Management Plan (FMP); (3) whether NMFS reasonably concluded that Amendment 11's reliance on NMFS internal dataset to determine permit eligibility complied with the Magnuson-Stevens Act's National Standard 2, which requires the use of the "best scientific information available"; and (4) whether NMFS reasonably concluded that Amendment 11's limitations on the general category scallop fishery were consistent with the Magnuson-Stevens Act's National Standard 5, which prohibits the implementation of any fishery management measure that has "economic allocation as its sole purpose."
    The Appeals Court affirmed the judgment of the District Court.
    Access the complete opinion (click here).