Federal Judge Timothy Burgess today declined to lift controversial commercial fishing restrictions the federal government imposed to protect endangered Steller sea lions in the Aleutians.
But the judge, in a 13-page ruling, gave the National Marine Fisheries Service a March 2, 2014, deadline to complete an environmental impact statement.
Burgess, as you might recall, in January held that NMFS should have done the EIS before imposing the fishing restrictions.
Showing posts with label Judge Burgess. Show all posts
Showing posts with label Judge Burgess. Show all posts
State, industry ask judge to lift Steller restrictions
We have a flurry of new filings in the Steller sea lion case.
As you'll recall, federal Judge Timothy Burgess last month upheld commercial fishing restrictions the National Marine Fisheries Service imposed to protect endangered Steller sea lions in the Aleutians.
However, the judge found that NMFS violated environmental law in taking the action.
He invited parties on all sides of the case to file further input on how to proceed.
The state of Alaska and industry groups want Burgess to lift the fishing restrictions while NMFS prepares an extensive environmental study. Read their filing here.
NMFS says the restrictions should stay in place while it does the study, which could take two years.
Well, sounds like we can look forward to another big ruling from Judge Burgess.
As you'll recall, federal Judge Timothy Burgess last month upheld commercial fishing restrictions the National Marine Fisheries Service imposed to protect endangered Steller sea lions in the Aleutians.
However, the judge found that NMFS violated environmental law in taking the action.
He invited parties on all sides of the case to file further input on how to proceed.
The state of Alaska and industry groups want Burgess to lift the fishing restrictions while NMFS prepares an extensive environmental study. Read their filing here.
NMFS says the restrictions should stay in place while it does the study, which could take two years.
Well, sounds like we can look forward to another big ruling from Judge Burgess.
Industry group sees silver lining in sea lion ruling
Here's a press release from the Marine Conservation Alliance:
Jan. 20, 2012
MCA applauds portion of ruling in Steller sea lion case
A victory for open, transparent fishery management process
The Marine Conservation Alliance applauds a judge's ruling in the Steller sea lion lawsuit as a victory for those seeking a more open decision-making process in application of the Endangered Species Act.
In his ruling Thursday, U.S. District Judge Timothy Burgess found that the National Marine Fisheries Service violated the National Environmental Policy Act by failing to prepare an environmental impact statement and provide the public with sufficient opportunity to comment when the agency determined additional fishery closures were required to protect endangered Steller sea lions.
"Although western Aleutian Islands fisheries involved in this lawsuit begin the season with fishing restrictions in place, we are pleased that the court acknowledged that there were flaws in the NMFS process which should now be corrected," said Merrick Burden, executive director of MCA, a coalition of harvesters, processors and communities involved in Alaska groundfish and crab fisheries.
The court deferred to the technical expertise of the federal agency in finding that it had properly applied Endangered Species Act standards in its determination that some of the fisheries conducted in the Aleutian Islands region of Alaska could jeopardize the recovery of endangered Steller sea lions.
The state of Alaska and affected fishing companies initiated legal action to halt additional fishery closures because endangered Steller sea lion populations overall have been increasing and are estimated to exceed 50,000 animals in the U.S. and another 25,000 animals in Russia. The legal action challenged the scientific basis for the agency determination and the process used to make that decision.
With regard to the NEPA violation, Judge Burgess has indicated he will enter an injunction requiring NMFS to prepare an EIS in compliance with NEPA procedures, allow for public comment and provide meaningful responses to comments on the draft EIS. The court will set a deadline for that action. All parties in the case have until Feb. 8 to file further briefs to address remedies in the case.
Considerable debate remains about the cause of the population decline, including predation by killer whales and nutritional stress caused by climate change or competition for prey with fisheries.
Jan. 20, 2012
MCA applauds portion of ruling in Steller sea lion case
A victory for open, transparent fishery management process
The Marine Conservation Alliance applauds a judge's ruling in the Steller sea lion lawsuit as a victory for those seeking a more open decision-making process in application of the Endangered Species Act.
In his ruling Thursday, U.S. District Judge Timothy Burgess found that the National Marine Fisheries Service violated the National Environmental Policy Act by failing to prepare an environmental impact statement and provide the public with sufficient opportunity to comment when the agency determined additional fishery closures were required to protect endangered Steller sea lions.
"Although western Aleutian Islands fisheries involved in this lawsuit begin the season with fishing restrictions in place, we are pleased that the court acknowledged that there were flaws in the NMFS process which should now be corrected," said Merrick Burden, executive director of MCA, a coalition of harvesters, processors and communities involved in Alaska groundfish and crab fisheries.
The court deferred to the technical expertise of the federal agency in finding that it had properly applied Endangered Species Act standards in its determination that some of the fisheries conducted in the Aleutian Islands region of Alaska could jeopardize the recovery of endangered Steller sea lions.
The state of Alaska and affected fishing companies initiated legal action to halt additional fishery closures because endangered Steller sea lion populations overall have been increasing and are estimated to exceed 50,000 animals in the U.S. and another 25,000 animals in Russia. The legal action challenged the scientific basis for the agency determination and the process used to make that decision.
With regard to the NEPA violation, Judge Burgess has indicated he will enter an injunction requiring NMFS to prepare an EIS in compliance with NEPA procedures, allow for public comment and provide meaningful responses to comments on the draft EIS. The court will set a deadline for that action. All parties in the case have until Feb. 8 to file further briefs to address remedies in the case.
Considerable debate remains about the cause of the population decline, including predation by killer whales and nutritional stress caused by climate change or competition for prey with fisheries.
NMFS reacts to sea lion decision
Here is a statement from the National Marine Fisheries Service, Alaska Regional Office, on the Steller sea lion ruling:
"Overall, we are pleased with the court's decision, which supports the science-based foundations of the fishery management regulations we have worked to put in place to protect the western Steller sea lion," said Alaska Regional Administrator Jim Balsiger. "Going forward, NOAA Fisheries will work with the Department of Justice to comply with the Court's request for briefing on a remedy in regards for the need for an environmental impact statement."
"We are certainly most sympathetic to the plight of fishermen in these trying times," Alaska Fisheries Science Center Director Doug DeMaster added. "A healthy ecosystem is in the long-term interest of fishermen, who depend more than most industries on natural resources. We are looking forward to working with our partners and the North Pacific Fishery Management Council to maintain healthy, robust ecosystems for the long-term economic benefit of fishers in Alaska."
"Overall, we are pleased with the court's decision, which supports the science-based foundations of the fishery management regulations we have worked to put in place to protect the western Steller sea lion," said Alaska Regional Administrator Jim Balsiger. "Going forward, NOAA Fisheries will work with the Department of Justice to comply with the Court's request for briefing on a remedy in regards for the need for an environmental impact statement."
"We are certainly most sympathetic to the plight of fishermen in these trying times," Alaska Fisheries Science Center Director Doug DeMaster added. "A healthy ecosystem is in the long-term interest of fishermen, who depend more than most industries on natural resources. We are looking forward to working with our partners and the North Pacific Fishery Management Council to maintain healthy, robust ecosystems for the long-term economic benefit of fishers in Alaska."
Another note on the sea lion ruling
The judge indicates on page 54 of his decision that despite the failure of federal fishery regulators to prepare an environmental impact statement, he will not vacate, or lift, the fishing restrictions opposed by industry and the state.
The gist of the Steller sea lion ruling
Here is the judge's overall finding in the Steller sea lion case:
As discussed in detail below, although the Court sympathizes with the Plaintiffs and Amici Curiae, who stand to suffer large economic and other losses as a result of the fishery restrictions, "judges are not scientists." The Court must defer to the technical expertise of the agency as long as there is a rational connection between the evidence and its conclusions. In this case, the Court finds that NMFS did not apply improper ESA standards and that the evidence, although equivocal, was sufficient to support its conclusions that the fisheries were likely to jeopardize the continued existence of the WDPS and adversely modify its critical habitat. Additionally, although the procedures NMFS employed to comply with its obligations under the APA and MSA were far from ideal, the Court nonetheless concludes that they were adequate under the law. The Court does find, however, that NMFS violated NEPA by failing to prepare an environmental impact statement and provide the public with a sufficient opportunity to weigh in on its decision-making process.
Here's a mini-glossary for all those acronyms:
APA — Administrative Procedure Act
ESA — Endangered Species Act
MSA — Magnuson-Stevens Fishery Conservation and Management Act
NEPA — National Environmental Policy Act
NMFS — National Marine Fisheries Service
WDPS — Western Distinct Population Segment of Steller sea lions
As discussed in detail below, although the Court sympathizes with the Plaintiffs and Amici Curiae, who stand to suffer large economic and other losses as a result of the fishery restrictions, "judges are not scientists." The Court must defer to the technical expertise of the agency as long as there is a rational connection between the evidence and its conclusions. In this case, the Court finds that NMFS did not apply improper ESA standards and that the evidence, although equivocal, was sufficient to support its conclusions that the fisheries were likely to jeopardize the continued existence of the WDPS and adversely modify its critical habitat. Additionally, although the procedures NMFS employed to comply with its obligations under the APA and MSA were far from ideal, the Court nonetheless concludes that they were adequate under the law. The Court does find, however, that NMFS violated NEPA by failing to prepare an environmental impact statement and provide the public with a sufficient opportunity to weigh in on its decision-making process.
Here's a mini-glossary for all those acronyms:
APA — Administrative Procedure Act
ESA — Endangered Species Act
MSA — Magnuson-Stevens Fishery Conservation and Management Act
NEPA — National Environmental Policy Act
NMFS — National Marine Fisheries Service
WDPS — Western Distinct Population Segment of Steller sea lions
Judge sides with government in Steller case
A federal judge has ruled substantially in favor of the National Marine Fisheries Service, and against industry groups and the state, in a case involving commercial fishing restrictions the agency imposed to protect endangered Steller sea lions in the Aleutians.
Here is the 56-page ruling from Judge Timothy M. Burgess of Anchorage.
Here is the 56-page ruling from Judge Timothy M. Burgess of Anchorage.
Counsel, I have a few questions...
On Wednesday afternoon, a bunch of attorneys met in a federal courtroom in Anchorage to argue the lawsuit over fishing restrictions imposed in the Aleutians to protect endangered Steller sea lions.
Deckboss, somewhat thankfully, was unable to attend the hearing.
While the case involves mountains of scientific data and legal briefs, the essential conflict really is very simple. The state and the industry don't feel the costly fishing restrictions are justified. The National Marine Fisheries Service, which is being sued, feels otherwise.
Shortly before Wednesday's proceedings began, something unusual happened. Judge Timothy Burgess filed a list of questions for lawyers to address during the hearing.
Here are some examples, and I paraphrase somewhat:
• Doesn't the plain language of the Endangered Species Act suggest that, if anything, NMFS has to err on the side of assuming a causal relationship exists between the fisheries and the sea lion population?
• Although it took five years for NMFS to determine the fisheries jeopardized sea lions in the Aleutians, the agency skirted the normal public notice and comment process and hurriedly imposed the fishing restrictions. What was the emergency? Why couldn't NMFS have taken another few months to collect comments given that it had already taken five years?
• Why didn't NMFS issue a full environmental impact statement, as it had done on past occasions? Was it just rushing to complete the process in order to protect itself against litigation from Oceana and Greenpeace?
Of course, one must be careful not to read too much into the judge's questions. But they are fascinating, no?
Deckboss, somewhat thankfully, was unable to attend the hearing.
While the case involves mountains of scientific data and legal briefs, the essential conflict really is very simple. The state and the industry don't feel the costly fishing restrictions are justified. The National Marine Fisheries Service, which is being sued, feels otherwise.
Shortly before Wednesday's proceedings began, something unusual happened. Judge Timothy Burgess filed a list of questions for lawyers to address during the hearing.
Here are some examples, and I paraphrase somewhat:
• Doesn't the plain language of the Endangered Species Act suggest that, if anything, NMFS has to err on the side of assuming a causal relationship exists between the fisheries and the sea lion population?
• Although it took five years for NMFS to determine the fisheries jeopardized sea lions in the Aleutians, the agency skirted the normal public notice and comment process and hurriedly imposed the fishing restrictions. What was the emergency? Why couldn't NMFS have taken another few months to collect comments given that it had already taken five years?
• Why didn't NMFS issue a full environmental impact statement, as it had done on past occasions? Was it just rushing to complete the process in order to protect itself against litigation from Oceana and Greenpeace?
Of course, one must be careful not to read too much into the judge's questions. But they are fascinating, no?
Courtroom showdown coming in Steller case
Deckboss is sure you've not forgotten that the state as well as a big segment of the Alaska fishing industry are suing the National Marine Fisheries Service.
At issue are commercial fishing restrictions NMFS put into place this year along the Aleutian chain to protect the endangered Steller sea lion.
The state and the industry argue the restrictions are unnecessary, and don't reflect sound science.
Each side has filed reams of paper arguments in the case.
Now opposing lawyers are preparing to duel in person before federal Judge Timothy Burgess of Anchorage. According to this order from the judge, oral argument will begin at 1 p.m. Dec. 21.
This hearing could be crucial in deciding a case in which fish harvests worth millions of dollars are at stake — not to mention the credibility of NMFS and the well-being of the Stellers.
At issue are commercial fishing restrictions NMFS put into place this year along the Aleutian chain to protect the endangered Steller sea lion.
The state and the industry argue the restrictions are unnecessary, and don't reflect sound science.
Each side has filed reams of paper arguments in the case.
Now opposing lawyers are preparing to duel in person before federal Judge Timothy Burgess of Anchorage. According to this order from the judge, oral argument will begin at 1 p.m. Dec. 21.
This hearing could be crucial in deciding a case in which fish harvests worth millions of dollars are at stake — not to mention the credibility of NMFS and the well-being of the Stellers.
Parties in Steller conflict seek ruling by September
As I'm sure you recall, the state and commercial fishing groups are suing the federal government over its recent closure of some Aleutian waters to reserve more food fish for endangered Steller sea lions.
While they disagree on the science behind the closures, the parties see eye to eye on this much: They want a quick ruling from federal Judge Tim Burgess.
Lawyers for the feds, the state and industry jointly filed this proposed case schedule under which they would move along the proceedings so the judge could render a decision by the first week of September.
This would allow enough time to make appropriate plans for the 2012 groundfish season, the court filing says.
The judge has not yet agreed to this expedited schedule, but a conference is set for 3 p.m. Thursday in his Anchorage courtroom.
While they disagree on the science behind the closures, the parties see eye to eye on this much: They want a quick ruling from federal Judge Tim Burgess.
Lawyers for the feds, the state and industry jointly filed this proposed case schedule under which they would move along the proceedings so the judge could render a decision by the first week of September.
This would allow enough time to make appropriate plans for the 2012 groundfish season, the court filing says.
The judge has not yet agreed to this expedited schedule, but a conference is set for 3 p.m. Thursday in his Anchorage courtroom.
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