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Appendix H Recent Case Law Support for Guidelines on âBest Scientific Information Availableâ The following provides several examples of recent case law that address the criteria on which the recommended guidelines are based: relevance, inclusiveness, objectivity, transparency and openness, timeli- ness, and peer review. RELEVANCE Natural Resources Defense Council v. Daleyâstudies of mobile gear effects on other habitats ânot sufficiently analogousâ to prove effects on tilefish habitat; views of the preparers of the fishery management plan upheld by the court (Natural Resources Defense Council v. Daley, 254 F. Supp. 2d 434, 440 [S.D. NY 2003]; Magnuson-Stevens Act). Midwater Trawlers Cooperative v. Department of Commerceâerror to rely exclusively on political rather than scientific criteria in allocating the whiting fishery; âthe best available politics does not equate to the best available science as required by the Actâ (Midwater Trawlers Cooperative v. Department of Commerce, 282 F. 3d 710, 720 [9th Cir. 2002]; Magnuson-Stevens Act). National Coalition for Marine Conservation v. Evansârejecting claim that a pelagic longline closure was a product not of scientific data but of legal and lobbying pressure from environmental groups (National Coalition for Marine Conservation v. Evans, 231 F. Supp. 2d 119, 129 [D. D.C. 2002]; Magnuson-Stevens Act). Maine v. Nortonârejecting allegations of improper motivation in the Endangered Species Act listing of Atlantic salmon (i.e., they did it to 99
100 âBEST SCIENTIFIC INFORMATION AVAILABLEâ STANDARD âsettle a lawsuitâ) (Maine v. Norton, 257 F. Supp. 2d 357, 389-400 [D. ME 2003]; Endangered Species Act). INCLUSIVENESS Brower v. Evansâerror to act in contradiction of all known evidence (including abundance studies, stress literature, and discounting of alternative explanations) that the tuna purse seine fishery was having a significant adverse impact on dolphin stocks (Brower v. Evans, 257 F. 3d 1058, 1071 [9th Cir. 2001]; Marine Mammal Protection Act). American Oceans Campaign v. Daleyâagency failed to prepare an impact statement taking a âhard lookâ at âhow fishing practices and gear may damage corals, disrupt fish habitat, and destroy benthic life that helps support healthy fish populationsâ (American Oceans Campaign v. Daley, 183 F. Supp. 2d 1, 21 [D. D.C. 2000]; Magnuson-Stevens Act; National Environmental Policy Act). Parravano v. Evansâupholding secretarial emergency decision lowering ocean harvest rate to 14.5 percent; the fishery management plan had made conclusory assertions that a 22 percent ocean harvest rate for chinook salmon would ensure a sufficient escapement for the in-river Indian treaty fishery (Parravano v. Evans, 70 F. 3d 539 [9th Cir. 1995]; Magnuson-Stevens Act; Indian treaties). Natural Resources Defense Council v. Evansâimproper for U.S. Navy to withhold a âhighly relevantâ Defense Research Agency study on âThe Effects on Fish and Other Marine Mammals of High-Level Underwater Soundâ (Turnpenny et al., 1994) from the National Marine Fisheries Service during consultation on peacetime use of low-frequency sonar; the study is âdirectly relevantâ and is not ââjunk scienceââ (Natural Resources Defense Council v. Evans, 279 F. Supp. 2d 1129, 1179-80 [N.D. CA 2003]; Endangered Species Act; National Environmental Policy Act). Greenpeace, American Oceans Campaign, and Sierra Club v. National Marine Fisheries Service, Evans, At-Sea Processors Association, United Catcher Boats, Aleutians East Borough, and Westward Seafoods, Inc., et al.âdeferring to use of telemetry data as the âbest available evidenceâ for evaluating Steller sea lion foraging (Greenpeace, American Oceans Campaign, and Sierra Club v. National Marine Fisheries Service, Evans, At-Sea Processors Association, United Catcher Boats, Aleutians East Borough, and Westward Seafoods, Inc., et
APPENDIX H 101 al., 237 F. Supp. 2d 1181, 1196-97 [W.D. WA 2002]; Marine Mammal Protection Act). OBJECTIVITY Natural Resources Defense Council v. Evansâtilefish; agency cannot use unsupported inference to override contradictory empirical evidence (Natural Resources Defense Council v. Evans, 254 F. Supp. 2d 434, 441-442 [S.D. NY 2003]; Magnuson-Stevens Act). Greenpeace, American Oceans Campaign v. National Marine Fisheries Serviceâmisuse of telemetry data on foraging Steller sea lions to develop a âzonal approachâ to critical habitat not ârationally relatedâ to the data (Greenpeace, American Oceans Campaign v. National Marine Fisheries Service, 237 F. Supp. 2d 1181, 1198 [W.D. WA 2002]; Marine Mammal Protection Act). Hall v. Evansâalso a violation of National Standards 4 and 5; error to resort to gear differentials (between trawl gear and gillnetters) for monkfish divorced from a scientific rationale; âthere is no discernible, substantive scientific evidenceâ in the record that supports âgear differential regulationsâ (Hall v. Evans, 165 F. Supp. 2d 114, 134 [D. RI 2001]; Magnuson-Stevens Act). TRANSPARENCY AND OPENNESS Fishermenâs Dock Cooperative, Inc. v. Brownâsummer flounder; âagencyâs process of setting the 1994 quota was conducted in good faith, pursued with a proper understanding of the law, based on the best scientific information available, and adequately justified by the agencyâ (Fishermenâs Dock Cooperative, Inc. v. Brown, 75 F. 3d 164, 173 [4th Cir. 1996]; Magnuson-Stevens Act). Natural Resources Defense Council v. National Marine Fisheries Serviceâgroundfish rebuilding; court defers to agency: âFaced with a choice between an interpretation of the Sustainable Fisheries Act that requires a moratorium on harvesting of fish species that take more than ten years to regenerate naturally, and an interpretation that permits limited harvesting over the course of a longer rebuilding period, [the National Marine Fisheries Service] selectedâafter public notice and commentâthe latter interpretationâ (Natural Resources Defense Council
102 âBEST SCIENTIFIC INFORMATION AVAILABLEâ STANDARD v. National Marine Fisheries Service, 280 F. Supp. 2d 1007, 1014 [N.D. CA 2003]; Magnuson-Stevens Act). TIMELINESS Natural Resources Defense Council v. Evansâordering defendants to prepare and adopt rebuilding amendments for darkblotched rockfish, canary rockfish, lingcod, and Pacific Ocean perch by January 31, 2004, and for bocaccio rockfish, cowcod, yelloweye rockfish, and widow rockfish by April 15, 2004; âthere is evidence in the legislative historyâ¦that the Councils could be a source of delay and accordingly provided that where a council fails to prepare and complete a rebuilding plan in the statutorily mandated time period, the [National Marine Fisheries Service] itself should take over and complete the plan within the allotted timeâ (Natural Resource Defense Council v. Evans, 290 F. Supp. 2d 1051, 1056 [N.D. CA 2003]; Magnuson-Stevens Act). Center for Biological Diversity v. Lohnâremanding for determination of whether âSouthern Residentâ orca whales should be listed as a âdistinct population segmentâ; a violation of the âbest scientificâ standard to rely upon an âoutdated and discredited global Orsinus orca taxonâ; to rely upon âscience it knows is inaccurateâ; to heed a formal taxonomic process that lags behind current knowledge; and to defer to âchanges to taxonomic classification that are time consuming, slow, and may be controversialâ; âto deny listing of a species simply because one scientific field has not caught up with the knowledge in other fields does not give the benefit of the doubt to the species and fails to meet the best available science requirementâ (Center for Biological Diversity v. Lohn, 296 F. Supp. 2d 1223, 1236-1241 [W.D. WA 2003]; Endangered Species Act). Natural Resources Defense Council v. Evansâdiscredits use of 15- year-old âstaleâ data to set bycatch rates for bocaccio and lingcod that almost certainly are not operative now (Natural Resources Defense Council v. Evans, 168 F. Supp. 2d 1149, 1153-1155 [N.C. CA 2001]; Magnuson-Stevens Act). Massachusetts ex rel. Division of Marine Fisheries v. Daleyâ improper to use historical data known to undercount seriously scup recoveries (Massachusetts ex rel. Division of Marine Fisheries v. Daley, 170 F. 3d 23, 27 [1st Cir. 1999]; Magnuson-Stevens Act).
APPENDIX H 103 Pacific Coast Federation of Fishermenâs Associations, et al. v. U.S. Bureau of Reclamation, et al.âKlamath River dispute; report of a consultant is the âbest science currently available,â but a later decision (Pacific Coast Federation of Fishermenâs Associations, et al. v. U.S. Bureau of Reclamation, et al., 2003 U.S. Dist. LEXIS 13745 [N.D. CA 2003]) recognizes that âbest scienceâ changes over time and now includes a National Research Council (2002b) interim report (Pacific Coast Federation of Fishermenâs Associations v. U.S. Bureau of Reclamation and Klamath Water Users Association, 138 F. Supp. 2d 1228, 1249-1250 [N.D. CA 2001]; Endangered Species Act). Natural Resources Defense Council v. Evansâgroundfish; rejecting a request that the court âlight a fireâ under the agency to move more aggressively to correct âoverfishingâ; âwhere is the science to support a shorter timeline than the agency proposes?â (Natural Resources Defense Council v. Evans, 243 F. Supp. 2d 1046, 1050, 1059 [N.D. CA 2003]; Magnuson-Stevens Act). PEER REVIEW Ocean Conservancy v. Evansâno violation of National Standard 2 to delegate stock assessment duties for sharks to an âindependent scientific review panelâ (Ocean Conservancy v. Evans, 260 F. Supp. 2d 1162, 1174 [M.D. FL 2003]; Magnuson-Stevens Act; National Environmental Policy Act). ACCOUNTING FOR UNCERTAINTY Natural Resources Defense Council v. Daleyâquestionable use of a methodology to fix a quota for summer flounder that has âat most an 18 [percent] likelihoodâ of achieving the targeted mortality (âOnly in Superman Comicsâ Bizzaro World, where reality is turned upside down, could the Service reasonably conclude that a measure that is at least four times as likely to fail as to succeed offers a âfairly high level of confidenceââ) (Natural Resources Defense Council v. Daley 209 F. 3d 747, 754 [D.C. Cir. 2000]; Magnuson-Stevens Act). Natural Resources Defense Council v. Evansâtilefish; quoting final fishery management plan approvingly; it is improper to posit habitat damage when impacts are âcompletely unknownâ and âunquantifiableâ
104 âBEST SCIENTIFIC INFORMATION AVAILABLEâ STANDARD at this time (Natural Resources Defense Council v. Evans 254 F. Supp. 2d 434, 438 [S.D. NY 2003]; Magnuson-Stevens Act). Fishermenâs Dock Cooperative, Inc. v. Brownâsummer flounder; rejecting selection of a methodology to fix a quota that has only a 59 percent probability of not exceeding the mortality goal (Fishermenâs Dock Cooperative, Inc. v. Brown,75 F. 3d 164, 171-172 [4th Cir. 1996]; Magnuson-Stevens Act). Greenpeace v. Minetaâerror to open a lobster fishery without correcting a long-tolerated ignorance of its effects on the monk seal: âIf, in the 1981 opinion [the National Marine Fisheries Service] was uncertain of the impact of the [fishery management plan] because it knew too little about the monk seal diet, by 1996 it was emboldened by its ignorance to draw definitive conclusions about the impactâ (Greenpeace v. Mineta, 122 F. Supp. 2d 1123, 1132 [D. HI 2000]; National Environmental Policy Act). Blue Water Fishermenâs Association v. National Marine Fisheries Serviceâdeferring to agency choice of âhighâ or âlowâ mortality data in assessing impact of longliners on leatherback turtles; the National Marine Fisheries Service chooses the âlowâ and thus more âfishing- friendlyâ figure (Blue Water Fishermenâs Association v. National Marine Fisheries Service, 226 F. Supp. 2d 330, 339 [D. MA 2002]; Magnuson- Stevens Act; Endangered Species Act). Blue Water Fishermenâs Association v. National Marine Fisheries Serviceâupholding the use of scientific judgment to close 2.6 million square nautical miles of ocean to longliners to protect endangered loggerhead and leatherback sea turtles (conclusions need not be âairtight and indisputableâ) (Blue Water Fishermenâs Association v. National Marine Fisheries Service, 226 F. Supp. 2d 330, 338 [D. MA 2002]; Magnuson-Stevens Act; Endangered Species Act). American Oceans Campaign v. Daleyâapproving the establishment of essential fish habitat amendments that lacked site-specific scientific information; âreview of the Secretaryâs action must be especially deferential, given the highly complicated scientific data that the agency must interpretâ (American Oceans Campaign v. Daley, 183 F. Supp. 2d 1, 21 [D. D.C. 2000]; Magnuson-Stevens Act; National Environmental Policy Act). Recreational Fishing Alliance v. Evansâdeferring to the use of âaggregatedâ and âincompleteâ data in setting retention limits for highly migratory species; courts can not âsidestep responsibility by imposing an obligation on the Secretary to find better dataâ (Recreational Fishing
APPENDIX H 105 Alliance v. Evans, 172 F. Supp. 2d 35, 43, 44 [D. D.C. 2001]; Magnuson- Stevens Act). Blue Water Fishermenâs Association v. Minetaâapproving imposition of shark quotas over objections that they were unsupported by catch-rate data and insufficient for stock evaluation purposes; âregulation is permissible even if the agency lacks complete informationâ (Blue Water Fishermenâs Association v. Mineta, 122 F. Supp. 2d 150, 166 [D. D.C. 2000]; Magnuson-Stevens Act).