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North Carolina Fisheries Ass'n v. Evans

ELR Citation: 32 ELR 20349
Nos. No. 2:01cv149, 172 F. Supp. 2d 792/(E.D. Va., 11/13/2001)

The court dismisses on motions for summary judgment a fishing association's claims against the Secretary of Commerce challenging the National Marine Fisheries Service's (NMFS') 2001 summer flounder quotas and summer flounder fishery management plan (FMP) regulations. The court first holds that the association's challenge to regulations arising under Amendment 2 to the summer flounder FMP is barred by the 30-day statute of limitations. Similarly, its claim that NMFS failed to provide the association with a timely adjusted quota for the 2001 summer flounder fishing season is moot due to a previous court order.

The court next rejects the association's claim that by allowing recreational fishermen to land summer flounder without the consequence of an overage reduction or a pre-season closure, NMFS reduced the optimum yield for the commercial and recreational sectors in violation of National Standard One. Overages in a particular segment of the fishery from year to year, however, do not preclude attainment of optimum yield. The association also argued that because the new biomass target reduces the fishing mortality rate for 2001 below the level set in the flounder FMP, the 2001 quota does not provide the optimum yield for either the recreational or commercial sectors. NMFS' determination, however, that the lower biomass target will have the beneficial impact of getting the stock to a level that produces optimum yield by allowing the biomass to grow more quickly as a result of less fishing is supported by the evidence. The association also argued that the 2001 quota violated National Standard Two because it does not rely on the best scientific evidence and because NMFS failed to adequately explain its decision. But the fact that scientific information concerning a fishery is incomplete does not invalidate NMFS' decision to proceed based on existing scientific data.

Counsel for Plaintiffs
Derb S. Carter
Southern Environmental Law Center
200 W. Franklin St., Ste. 330, Chapel Hill NC 27516
(919) 967-1450

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

Friedman, J.