Environmental – Administrative – Fishing Regulations – Bluefin Tuna

Willie R. Etheridge Seafood Co. v. Pritzker (Lawyers Weekly No. 002-015-16, 20 pp.) (Terrence Boyle, J.) 2:14-cv-00073; E.D.N.C.

Holding: The National Marine Fisheries Service’s Amendment 7 to the 2006 Consolidated Highly Migratory Species Fishery Management Plan was designed to protect the overfished Atlantic Bluefin tuna. Although Amendment 7 curtails plaintiffs’ take of healthy stocks like swordfish, plaintiffs point to no authority which would suggest that the U.S. Secretary of Commerce acts arbitrarily by implementing rules designed to prevent overfishing of one species when such rules may have a collateral effect on targeting other species.

Plaintiffs’ motion for summary judgment is denied. Defendants’ motion for summary judgment is granted.

Plaintiffs argue that the optimum yield of a fishery must be more fish, so long as catching more fish is consistent with other factors such as rebuilding or conservation; however, optimum yield has been consistently defined not to be synonymous with maximum yield. The National Marine Fisheries Service (NMFS) afforded proper weight to these “other factors” when determining how best to manage and the optimum yield for the Bluefin tuna fishery.

Plaintiffs argue that “nothing in the Amendment 7 materials shows that the Agency weighed community impact based on the lack of necessary quota to achieve optimum yield on [highly migratory species] stocks other than [Bluefin tuna].” Contrary to plaintiffs’ assertion, NMFS considered the community impacts of its actions when formulating Amendment 7. NMFS specifically considered that the closure of the pelagic longline (PLL) fishery due to the fleet reaching its quota would result in adverse effects to shore-based businesses, and that use of an individual Bluefin quota (IBQ) program would mean that closure of the PLL fishery as a whole is less likely, thereby mitigating impacts on the community.

Though plaintiffs would like to see a vessel-by-vessel analysis of the impact of the IBQ program and reallocation of Bluefin tuna quota, there is no requirement that the agency undertake such an in-depth look at each harbor or the impact of the failure or success of one vessel. Bluefin fisheries are widely distributed and highly variable. Because of this variability, NMFS analyzed fishery-wide and permit-category impacts. The record supports that NMFS examined the impacts of its plan on fishing communities and that it considered alternatives to the measures included in Amendment 7.

Plaintiffs have failed to demonstrate that the Commerce Secretary did not properly balance competing conservation and economic interests.

Summary judgment for defendants.