By Aaron Porter

Cundy’s Harbor-based dragger Jocka is one of the few Maine groundfishing boats still working under the tight restrictions of Amendment 13. FILE PHOTO

But it wasn’t entirely smooth sailing for the National Marine Fisheries Service, the federal agency charged with overseeing American fisheries.

Huvelle found the service had not implemented strict enough provisions to monitor and assess the bycatch in the New England fisheries. She accepted the arguments of plaintiffs, Conservation Law Foundation and Oceana, that Amendment 13 to the Northeast Multispecies Fisheries Management Plan does not require a specific level of fisheries observer coverage; doesn’t fully evaluate methods of assessing bycatch; and doesn’t respond to an Oceana study that points to a need for at least 20-percent observer coverage.

She sent the bycatch and fisheries observer coverage provisions back to the National Marine Fisheries Service drawing board to be brought into compliance with the federal Sustainable Fisheries Act.

What Huvelle rejected were assertions by Conservation Law Foundation and Oceana that Amendment 13 failed to adequately reduce fishing of some depleted groundfish stocks, such as Georges Bank cod, and that the stock rebuilding plans have an unacceptably low likelihood of success.

In addition, she rejected a charge from the Trawler Survival Fund that the management plan allowed too little fishing because it differed from the one approved by the New England Fisheries Management Council. She also rejected Oceana’s charge that Amendment 13 failed to increase protection of essential fish habitat.

Although she didn’t find universally in support of the fisheries service, her concluding statements indicate her understanding of the difficult circumstances surrounding the drafting of Amendment 13.

“Amendment 13 reflects the Council’s and the Secretary’s painstaking efforts to achieve a delicate balance that rebuilds stocks and ends overfishing while allowing fishermen to continue fishing those stocks that are healthy. Given the complexity of this task, the Court must conclude that Amendment 13 is, with limited exception, reasonable and in accordance with law,” she wrote.

Last week, Roger Fleming, an attorney for the Conservation Law Foundation, said he was pleased with the bycatch decision. “Huvelle makes it pretty clear that what the agency is doing is not adequate,” he said, stressing that the importance of bycatch monitoring is to allow for improved management by the fisheries service. “These guys don’t know how many fish are being caught.”

But Fleming said he was dismayed at Huvelle’s rejection of his assertion that overfishing was continuing on some species. “We find it unfathomable that Congress intended that overfishing could continue on overfished stocks,” he said.

Huvelle, through an analysis of the Byzantine regulations governing fisheries management efforts, finds that Amendment 13’s strategies to meet target fishing mortality rates are adequate. She criticizes plaintiffs for attacking individual components of the Amendment 13 strategy to reduce fish mortality while ignoring the combined impacts of those individual components. She also accepts a distinction between fishing mortality rates and amounts that support the validity of Amendment 13.

“In fact, the plain language of the statute makes it clear that overfishing need not be ended instantaneously, and given this statutory framework, the Court cannot conclude that a phased approach that permits overfishing in the early years contravenes the MSA [Magnuson Stevens Act],” Huvelle wrote.

For fishermen, last week’s decision means there will be little change from the rules they have become grudgingly accustomed to since the formal implementation of Amendment 13 last May.  Those rules significantly reduced the number of days licensed groundfishing vessels could fish during the year. They also implemented a variety of closed areas and special access programs intended to allow fishing of recovering stocks, while preventing the catch of still struggling wild stocks.

As unwelcome as the particulars of Amendment 13 were to many fishermen, the stability it represented after three years of uncertainty was welcome. Amendment 13 was created as the result of a court order after the National Marine Fisheries Service was found to have violated federal fisheries law by allowing overfishing and not meeting stock rebuilding goals. That lawsuit was brought by a coalition of environmental and conservation organizations including the Conservation Law Foundation and Oceana. Fishermen worked under interim rules included in a 2002 remedial order from the court. Those regulations were replaced by Amendment 13 last spring. But as soon as the new regulations were in place, the latest round of legal challenges started.

Maine’s Commissioner of Marine Resources George Lapointe said he’s pleased with Huvelle’s decision in the case mostly because it allows fishermen to keep fishing under the same rules for the immediate future, and that will allow fisheries managers to see what effect those rules are having in the ocean.

U.S. Senator Olympia Snowe (R-Maine) made a statement supporting Huvelle’s decision, although she continued to chafe at some particular provisions of Amendment 13.

“I hope that today’s federal court ruling, at the very least, will provide an element of closure and certainty to New England fishermen. … They now know these rules will not be further tightened,” she wrote.

Fleming said his organization is looking at the legal avenues still open for them to challenge the fishing mortality levels permitted under Amendment 13. He said there has been no decision to mount another challenge.