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Campanale & Sons, Inc. v. Evans

Citation: 33 ELR 20111
No. No. 01-2282, 311 F.3d 109/(1st Cir., 11/22/2002)

The court holds that the National Marine Fisheries Service (NMFS) failed to satisfy the Atlantic Coastal Fisheries Management Act's (Atlantic Coastal Act's) consultation requirement before promulgating a final rule governing lobster fishing in the exclusive economic zone (EEZ) off the U.S. Atlantic Coast. Under the Magnuson-Stevens Act, the NMFS has fishery management authority over all fish and fishing activities in the EEZ. Under the Atlantic Coastal Act, in the absence of an improved and implemented fishery management plan (FMP), and after consultation with the appropriate regional councils, the NMFS may implement regulations to govern fishing in the EEZ provided that such regulations are compatible with the coastal FMP and are consistent with the national standards of the Magnuson-Stevens Act. Federal management of the lobster began in 1978 when the NMFS and a number of states developed an FMP pursuant to the Magnuson-Stevens Act. Over the years, studies showed that the lobster was overfished. In 1999, the NMFS withdrew the lobster FMP and promulgated regulations under the Atlantic Coastal Act that, inter alia, limited the number of lobster traps permitted per fishing vessel. A group of lobster fishermen brought suit against the NMFS challenging the rule, but the district court granted summary judgment to the government. The court first holds that the district court erred in concluding that the NMFS satisfied the consultation requirement of the Atlantic Coastal Act. Under the Act, the NMFS is required to consult with the relevant regional councils and commissions before implementing regulations affecting the EEZ. Here, the only correspondence that occurred between the NMFS and the regional authority was part of a general public comment process statutorily required by the National Environmental Policy Act (NEPA) rather than by the Atlantic Coastal Act. Consultation, within the parameters of the Atlantic Coastal Act, must mean something more than general participation in the public comment process on environmental impact statements (EIS), otherwise the consultation requirement would be rendered nugatory. Public comments made by a regional authority in response to an EIS under NEPA may not raise the same issues that the same council would raise when consulting the NMFS under the Atlantic Coastal Act about proposed regulations governing fishing in the EEZ. Additionally, there is no evidence in the record that the NMFS affirmatively solicited advice or opinion from any regional authority regarding the NMFS' proposed regulation. Thus, the comments made under NEPA and upon which the district court relied are insufficient to satisfy the Atlantic Coastal Act's consultation requirement.

Counsel for Plaintiffs
Mark A. McSally
Kelly, Kelleher, Reilly & Simpson
146 Westminster St., Ste. 500, Providence RI 02903
(401) 272-1312

Counsel for Defendant
David J. Lazerwitz
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000