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FRA SUES OVER SOUTH ATLANTIC
GROUPER RULES
The FRA has filed suit against National Marine Fisheries Service in federal court
in Jacksonville on July 24, 2009. The FRA hopes to receive relief from
certain measures of the Magnuson-Stevens Reauthorization Act (MSRA) that we contend were enacted
prematurely, while other requirements of the MSRA were ignored or not met as mandated. |
Craig Berman
FRA General Counsel
Berman Law Firm, P.A.
PLAZA TOWER
111 Second Avenue NE
Suite 706
St. Petersburg, FL 33701
727-550-8989 |
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Click here for the complaint in pdf
Click here for the complaint
in WORD
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PRESS
RELEASE
click here for
pdf
click here for
WORD
The Fishing Rights Alliance (FRA)
today filed a lawsuit in the Federal District in Jacksonville,
Florida against the National Marine Fisheries Service (NMFS)
challenging Amendment 16 to the Grouper Snapper Regulations in the
South Atlantic. Amendment 16 imposes a 4 month ban on Grouper
fishing each year from January through April. Amendment 16 also
reduces the number of grouper from 5 fish to 3 for the entire year.
The full complaint is attached as a pdf.
The action is based upon the
premise that the Amendment is based upon what has been described as
the “fatally flawed” Marine Recreational Fisheries Statistics Survey
(MRFSS) by the chairman of the National Research Council’s review of
MRFSS. Congress has mandated that this survey be revamped by January
2009, this still has not occurred.
The process involves the National
Marine Fisheries Service making a determination and the South
Atlantic Fishery Management Council (SAFMC) formulating a rule to
end the alleged overfishing.
The NMFS and the SAFMC have failed
to follow the Magnuson Stevens Act (MSA) in the in formulation
Amendment 16 by:
1.
Failing to conduct an MSA-required economic impact study.
2.
Refusing MSA-required consideration of a Mixed-Stock
Exception to the proposed amendment.
3.
Using the MRFSS to formulate Amendment 16 when they have been
required to revamp the system.
4.
Refusing to enact alternatives of venting tools and circle
hooks as a means to reduce bycatch as required by the MSA.
5.
Setting an allocation of 95% commercial 5% recreational for
Golden Tilefish and Snowy Grouper in violation of the MSA.
The following graph shows the
health of the Grouper stocks and the fallacy of the NMFS position
Source NOAA Fishwatch 2009
This
lawsuit was made necessary because NMFS failed to respect the
Congressional mandate to base its decisions on scientifically valid
information. The MRFSS program has been recognized as fatally flawed
for a number of years. - Dennis O’Hern, Executive Director of the
FRA.
We need to
break the cycle of “fishing regulations of, by and for the National
Marine Fisheries Service” explains Dennis O’Hern, Executive Director
of the Fishing Rights Alliance.
“It is apparent that the SAFMC and
NMFS have a predetermined agenda to impose unsupported regulations
and closures that are not supported by the “fatally flawed” MRFSS
system.”
“The MRFSS system has been stated
to be fatally flawed by the chairman of the National Research
Council in a Congressional review of the MRFSS system and to base
such draconian regulations on such a system is irresponsible on the
part of Dr. Roy Crabtree of NOAA, NMFS and the SAFMC.”
“We are confident that the Federal
Court will reject Amendment 16 and require the SAFMC and the NMFS to
revamp the data collection system, conduct an economic study of the
impact of the Amendment and follow the requirements of the Magnuson
Stevens Act in formulating regulations.”
“This is the first in what we
believe will be a series of legal challenges to present and future
Amendments to the regulations.”
The FRA is also committed to
challenging any closure of the Red Snapper fishery that is based
upon the fatally flawed MFRSS.
WHO WE ARE:
The FRA is an advocate for the
interests of recreational saltwater offshore anglers.
OUR MISSION:
To conserve and protect our marine
resources and our right to access those resources. The FRA promotes
reasonable and effective management policies primarily through
community and government activism and education.
The FRA seeks to enhance the
angler’s understanding of their marine resources and the scientific
practices and regulatory policies that dictate fishing rules.
For more
information contact:
Craig Berman
FRA General Counsel
Berman Law Firm, P.A.
PLAZA TOWERS
111 Second Avenue NE
Suite 706
St. Petersburg, FL 33701
727.550.8989
cberman@tampabay.rr.com
Dennis O’Hern
Executive Director
Fishing Rights Alliance , Inc.
4604 49th Street N #34
St. Petersburg, FL
727.692.6902
Dennis@theFRA.org
WWW.THEFRA.ORG
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
THE FISHING RIGHTS ALLIANCE, INC.,
Plaintiff,
v.
THE NATIONAL MARINE FISHERIES SERVICE,
Defendant.
/
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiff, The Fishing Rights Alliance, Inc. (Plaintiff or “FRA”), by
and through its
undersigned counsel, brings this action against Defendant, National
Marine Fisheries
Service (“NMFS” or Defendant), and alleges:
INTRODUCTION AND JURISDICTION
1. This Court has subject-matter jurisdiction over this action and the
parties
under the Administrative Procedures Act, 5 U.S.C. §§ 701-706 (“APA”);
and the
Magnuson-Stevens Fishery Conservation and Management Reauthorization Act
of 2006,
16 U.S.C. § 1801 et seq. (hereafter referred to as the “MSA”). District
Courts of the
United States have exclusive jurisdiction over any case or controversy
arising under the
MSA, 16 U.S.C. §1861(d). The MSA provides that regulations promulgated
under the
statute shall be subject to judicial review “if a petition for such
review is filed within thirty
[30] days of the date on which the regulations are promulgated or action
is published in the Federal Register, as applicable.” 16 U.S.C. §
1855(f)(1). The APA provides that: “persons suffering legal wrong
because of agency action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is entitled to judicial
review thereof.” 5 U.S.C. §702. “Agency action made reviewable by
statute and final
agency action for which there is no other adequate remedy in 1 court are
subject to judicial review.” 5 U.S.C. §704. In an APA suit, the
reviewing court shall “hold unlawful and set aside agency actions,
findings, and conclusions to be found (A) arbitrary, capricious, and
abuse of discretion, or otherwise not in accordance with law . . . (C)
in excess of statutory jurisdiction, authority, or limitations or short
of statutory right; [or] (D) without observance of procedure required by
law. . . .” 5 U.S.C. § 706(2).
2. FRA is a Florida corporation with its headquarters in St. Petersburg,
Florida.
FRA is a marine conservation group with members throughout Florida,
Georgia,
Louisiana, Alabama and Mississippi, Georgia, South Carolina and North
Carolina. The FRA’s membership consists of recreational and commercial
fishermen, conservationists, bait and tackle store owners, dive shop
operators, fishing equipment manufacturers, marina owners, boat
retailers, boat repairmen, and divers. Many of FRA's members live along
the South Atlantis Ocean and fish its waters. Many of its members seek
to catch fish within the grouper complex, and FRA has been actively
involved in the management of various South Atlantic fisheries since its
inception. It has participated in the development of many of the
regulations and measures governing the Atlantic now in place and has
generally supported efforts to enact recovery plans for at-risk fish in
the Atlantic Ocean. FRA's members are directly and adversely affected by
the actions of which it complains.
3. Defendant NMFS is an agency of the United States government with
primary
responsibility for management of marine fisheries. NMFS manages those
fisheries by
administering the Magnuson-Stevens Act and performing NEPA compliance on
its
Magnuson-Stevens Act actions. NMFS, under the Magnuson-Stevens Act has
been
delegated the responsibility to manage the United States marine
fisheries through Fishery
Management Plans (“FMP”), FMP amendments and regulations implementing
those FMPs and FMP amendments. Since NMFS is responsibility for the Reef
Fish Fishery
Management Plan which governs the grouper complex, NMFS has final
management
authority over Snapper and Grouper fish in the Atlantic Ocean. NMFS is
the federal agency that approved the Amendment 16, which is the subject
of this Complaint. NMFS is a sub-agency of NOAA within the United States
Department of Commerce.
4. The grouper fishery is conducted off the South Eastern coast of the
United States. The grouper complex of fishes are fished for extensively
in the EEC. The grouper fishery is both a commercial and recreational
fishery. The grouper complex includes 17 species of groupers, including,
among others, Goliath, dwarf sand perch, sand perch, misty, snowy,
yellow edge, Nassau, Warsaw, speckled hind, black, gag, red, yellow fin,
scamp, yellow mouth, rock hind, speckled hind, and red hind groupers.
See 50 C.F.R. Part 622, Table 3, Annex A.
FACTUAL BACKGROUND
5. The recreational take of Grouper and Vermillion Snapper in the
Atlantic Ocean in federal waters (beyond 3 nautical miles) is governed
by a Fishery Management Plan (“FMP”), which is amended from time to time
based in part on stock assessments. FMPs must balance the needs of
fishery users against conservation principles by reference to ten
national standards (“National Standards”). 16 U.S.C. §1851(a). Regional
councils submit FMPs to the Secretary of Commerce, who acts through
NMFS. NMFS solicits public comment and reviews the FMPs to ensure they
are consistent with the National Standards and other applicable laws. 16
U.S.C. §§1852(h)(1), 1854(a)(1)-(2). The National Standard guidelines
promulgated to assist in development of FMPs and
amendments to FMPs state that “[t]he national standards are statutory
principles that must be followed in any [fishery management plan].” 50
C.F.R. §600.305. If a FMP plan is consistent with applicable law, NMFS
must approve it. 16 U.S.C. §1854(a)(3).
6. The present controversy arises in connection with Amendment 16 to the
Snapper/Grouper FMP (Amendment 16) for the South Atlantic, a document
which spans 608 pages. See
http://safmc.net/Portals/6/Library/FMP/SnapGroup/SnapGroupAmend16FINAL.pdf
S/G 16 purports to implement some of the 2006 amendments to the MSA
which were enacted January 12, 2007. Some of the MSA requirements at
issue in this action are Annual Catch Limits (“ACLs”) and Accountability
Measures (“AMs”).
7. Amendment 16 has attempted to prematurely institute ACLs and AMs
before 2010 when they are mandatory, stating:
The Magnuson-Stevens Reauthorization Act of 2006 requires that Councils
develop Annual Catch Limits (ACLs) and Accountability Measures (AMs) for
all stocks, with stocks that are overfished or undergoing overfishing
requiring such measures by 2010. While the final NMFS guidelines for
ACLs and AMs have not yet been published, implementing interim ACLs and
AMs allows the Council to have greater flexibility in proposing short
term management measures by providing a means to assure that overfishing
will not occur, and that corrective action will be taken if it does
occur.
8. Amendment 16 will reduce the recreational bag limit from 5 to 3
grouper aggregate (Misty grouper, red grouper, scamp, tiger grouper,
yellowedge grouper, yellowfin grouper, blueline tilefish, sand tilefish,
coney, graysby, red hind and rock hind) it
would reduce the bag limit from 2 to 1 Gag or Black grouper within the
aggregate. It would also establish a closed season from January 1
through April 30 of each year for what is defined as shallow water
grouper including Gag, Black and Red Groupers, scamp, red hind. Rock
hind, coney graysby, yellowfin grouper, yellowmouth grouper and tiger
grouper.
9. ACLs and AMs are required by the MSA for any species undergoing
overfishing as of 2010. ACLs are catch levels intended to reduce the
likelihood of
overfishing. If ACLs are met or exceeded, AMs are triggered. AMs are
intended to prevent
ACLs from being exceeded, and correct or mitigate overages in landings
if they occur.
10. The fundamental flaw in 16 is that NMFS wants the power and
flexibility
to close fisheries when an ACL is reached without meeting the
preconditions Congress has imposed on such an expansive power. In the
MSA, Congress delayed the requirements for ACLs and AMs until 2010 based
on the notion that NMFS would be basing decisions on vastly-improved
sources of data by January 1, 2009. NMFS is attempting to cherry-pick
those portions of the MSA it likes while ignoring the burdens it has
failed to implement. This a la carte usage of the MSA is another clear
example of the arbitrary and capricious methods used by NMFS in the
management of the fisheries.
11. The MSA was signed into law and went into effect on January 12,
2007. See
Public Law 100–479, 120 Stat. 3575. The MSA, in the form as originally
enacted in 1976,
required that NMFS collect statistics for measuring effort and total
catch. NMFS
commenced the Marine Recreational Fishing Statistical Survey (“MRFSS”)
program in
1979, which relies on dock intercepts and random telephone surveys.
12. The MRFSS was not designed to provide real-time data to determine
whether a quota is exceeded or an ACL is reached. NMFS acknowledges that
the MRFSS
system is fatally flawed.
13. In 2006, Congress found that MRFSS was flawed and required NMFS
to take very specific actions to correct it by January 1, 2009. See 16
U.S.C. § 1881(g)
(“The Secretary shall complete the program under this paragraph and
implement the
improved Marine Recreational Fishery Statistics Survey not later than
January 1, 2009")
(bolding added). The MSA requires in pertinent part:
(A) Improvement of the Marine Recreational Fishery Statistics Survey.
Within 24 months after the date of enactment of the Magnuson-Stevens
Fishery Conservation and Management Reauthorization Act of 2006 [enacted
Jan. 12, 2007], the Secretary, in consultation with representatives of
the recreational fishing industry and experts in statistics, technology,
and other appropriate fields, shall establish a
program to improve the quality and accuracy of information generated by
the Marine Recreational Fishery Statistics Survey, with a goal of
achieving acceptable accuracy and utility for each individual fishery.
(B) The NRC concluded that:
The designs, sampling strategies, and collection methods of recreational
fishing surveys do not provide adequate data for management and policy
decisions. Unknown biases in the estimators from these surveys arise
from reliance on unverified assumptions. Unless these assumptions are
tested and the degree and direction of bias reasonably estimated, the
extent to
which the biases affect final estimates will remain unknown. The
statistical properties associated with data collected through different
survey techniques differ and are often unknown. The current estimators
of error associated with various surveys products are likely to be
biased and too low. It is necessary at a minimum to determine how those
differences affect survey results that use differing methods.
(National Research Council, Review of Recreational Fisheries Survey
Methods (2006))
(C) NRC report recommendations. The program shall take into
consideration and,
to the extent feasible, implement the recommendations of the National
Research Council in its report Review of Recreational Fisheries Survey
Methods
(2006), including–
(i) redesigning the Survey to improve the effectiveness and
appropriateness of sampling and estimation procedures, its applicability
to various kinds of management decisions, and its usefulness for social
and economic analyses; and
(ii) providing for ongoing technical evaluation and modification as
needed to meet emerging management needs
16 U.S.C. 1881(g)(3)
14. This requirement to fix the broken problem has not been accomplished
as required. A proposed system called the marine Recreational
Information Program (MRIP) is the NMFS response to this and was released
by NMFS on December 23, 2009. The
implementation will not be effective until at least January 1, 2010 and
data from the system will not be available for a considerable time after
that date.
15. The requirement of a system that provides reliable data is central
to the time requirements of the MSA for the implementation of new
regulations and the deadlines imposed. In ignoring the deadlines imposed
by Congress, NMFS has shown its contempt for the requirements of the MSA
and it has acted arbitrarily and capriciously in continuing to implement
regulations based upon what has been proven to be incomplete and
incorrect data. These regulations will force businesses to close and
cost thousands of Americans who rely on those businesses for their
livelihood their jobs and cripple communities.
16. NMFS is not in compliance with section 1881(g) and should be
foreclosed from implementing an accountability measure devised in
Amendment 16 unless the data
on which it is based meets the standards set forth under the MSA.
17. The data improvements mandated by the MSA are clear:
Unless the Secretary determines that alternate methods will achieve this
goal more efficiently and effectively, the program shall, to the extent
possible, include—
(i) an adequate number of intercepts to accurately estimate recreational
catch and effort;
(ii) use of surveys that target anglers registered or licensed at the
State or Federal level to collect participation and effort data;
(iii) collection and analysis of vessel trip report data from charter
fishing vessels;
(iv) development of a weather corrective factor that can be applied to
recreational catch and effort estimates; and
(v) an independent committee composed of recreational fishermen,
academics, persons with expertise in stock assessments and survey
design, and appropriate personnel from the National Marine Fisheries
Service to review the collection estimates, geographic, and other
variables related to dockside intercepts and to identify deficiencies in
recreational data collection, and possible correction measures.
16 U.S.C. § 1881.
18. Even without the mandate of the MSA to improve the quality of the
data on which FMPs are based, Amendment 16 and the underlying Gag
Grouper and Vermillion Snapper stock assessment are not based on the
best available science.
19. The existing National Standards in the MSA required that that
“conservation and management measures . . . be based upon the best
scientific information available.”
16 U.S.C. §1851(a)(2).
20. On January 1, 1992 NMFS issued regulations set forth in Amendment 4
setting a 20” minimum size limit and included Gag Grouper in the 5
grouper aggregate bag limit.
21. On February 24, 1999 NMFS issued regulations set forth in Amendment
9 increasing the minimum size from 20” to 24”. The regulation also set a
bag limit of 2 Gag Grouper to be included within the 5 grouper aggregate
limit.
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22. These prior regulatory measures have provided the desired results
and the graphs below show that the biomass of Gag Grouper has had a
sharp rebound as a result of the current regulations. These charts
conclusively prove that the Grouper complex is no undergoing overfishing
as per the definition of
Source: NMFS Fishwatch
Source: NMFS Fishwatch
These NMFS charts conclusively prove that the Grouper complex is no
undergoing overfishing as per the definition of over fishing contained
in 50 C.F.R. 600.310(d)
(d)Overfishing – (1) Definitions. (i) “To overfish” means to fish at a
rate or level that jeopardizes the capacity of a stock or stock complex
to produce MSY on a continuing basis.
23. Amendment 16 also prohibits landings of black grouper, red grouper,
scamp, rock hind, red hind, coney, graysby, yellowfin grouper,
yellowmouth grouper, and tiger grouper in addition to Gag Grouper. Of
this group, only Red Grouper is listed as experiencing overfishing but
is not included as a targeted species for regulation, but is only an
incidental addition.
24. In 2005 in another action against the NMFS for acting once again
exceeding its powers, Judge Steele ruled that NMFS could not close the
entire grouper fishery to protect one species. Although this ruling is
not directly applicable to the instant matter as it construed the
limited power of NMFS relative to regulations, it recognized that the
entire grouper complex should not be closed just because one or more
species are undergoing overfishing. Judge Steele recognized that
avoiding by-catch is not sufficient to close the entire fishery.
25. Recreational fishing effort has declined since 2004. The gag stock
assessment completed in 2006 was based on MRFSS’ estimate of fishing
effort from 2004.
26. NMFS ignored evidence that the reduction in take for gag grouper had
already been achieved before Amendment 16 was finalized in October 2008:
27. During public hearings, the Council received testimony that a
portion of the large percent of reduction has already been achieved
through reductions in recreational effort due to high fuel prices or
other factors, but a reliable value to assign to this reduction could
not be determined.
28. The gag grouper stock assessment is erroneous in part because it
overestimates dead discards and release mortality by the recreational
sector. The NMFS has arbitrarily set a 40% release mortality figure
without any scientific basis , this method has was criticized by the NRC
when it stated “Unknown biases in the estimators from these surveys
arise from reliance on unverified assumptions”
29. There is not a scheduled stock reassessment for gag grouper. Yet,
NMFS has failed to comply with the MSA’s requirements to generate and
utilize better data that do not produce fatally flawed results. NMFS
should not be permitted to pass regulations until such time as it has
complied with the MSA requirements.
30. The Golden Tilefish bag limits are set using an allocation that has
been set using a 95% commercial 5% recreational allocation. This is in
direct violation of National Standard 4:
(4) Conservation and management measures shall not discriminate between
residents of different States. If it becomes necessary to allocate or
assign fishing privileges among various United States fishermen, such
allocation shall be (A) fair and equitable to all such fishermen; (B)
reasonably calculated to promote conservation; and (C) carried out in
such manner that no particular individual, corporation, or other entity
acquires an excessive share of such privileges.
31. The 95% commercial/5% recreational allocation of Golden Tilefish
violates 4(a) in that it is not either “fair or equitable” and 4(c)
allows the commercial fishermen to acquire an excessive share of the
fishery.
32. The Snowy Grouper bag limits are set using an allocation that has
been set using a 95% commercial 5% recreational allocation. This is in
direct violation of National Standard 4:
(4) Conservation and management measures shall not discriminate between
residents of different States. If it becomes necessary to allocate or
assign fishing privileges among various United States fishermen, such
allocation shall be (A) fair and equitable to all such fishermen; (B)
reasonably calculated to promote conservation; and (C) carried out in
such manner that no particular individual, corporation, or other entity
acquires an excessive share of such privileges.
33. The 95%commercial /5% recreational allocation of Snowy Grouper
violates 4(a) in that it is not either “fair or equitable” and 4(c)
allows the commercial fishermen to acquire an excessive share of the
fishery.
34. The methodology of the NMFS is inherently flawed in that it is a
designed closed system with little to no oversight.
1.NMFS screens council nominees submitted by Governor’s 2. NMFS
recommends appointments to the Secretary of Commerce 3. NMFS conducts or
pays selected grantees for desired research 4. NMFS interprets the
research submitted to them 5. NMFS helps draft proposed regulations 6.
NMFS interprets the regulations
7. NMFS recommends regulations through the council process 8. NMFS
approves or rejects council proposed regulations 9. NMFS enforces the
regulations 10. NMFS Administrative Judges sentence violators of NMFS
regulation.
35. The NMFS and the SAFMC failed to conduct any economic studies or
assessment to determine the economic impact in the South Atlantic area
on communities from the possible alternatives to the enacted regulations
as required by the Magnusson Stevens Act.
National Standard (8) Conservation and management measures shall,
consistent with the conservation requirements of this Act (including the
prevention of overfishing and rebuilding of overfished stocks), take
into account the importance of fishery resources to fishing communities
in order to (A) provide for the sustained participation of such
communities, and (B) to the extent practicable, minimize adverse
economic impacts on such communities.
36. In a study done by the Gentner Consulting Group, Gag Grouper in the
Gulf of Mexico generated $107 million in added value, $60.8 million in
income and supported 1,523 jobs. The closure of the fishery when
combined with the upcoming Red Snapper closure will close the for hire
sector for 4 months of the year which will cause the closure of
businesses such as charter boats, bait and tackle stores, marinas
permanently.
37. The NMFS has ignored National Standard (8) in selecting the
alternative that maximizes the adverse economic impact on the
communities that rely upon fishing for
their livelihoods, instead of selecting an alternative that would
minimize the economic impact.
38. The NMFS has failed to consider the “Mixed-Stock Exception” as
required by 50 C.F.R. 600.310(d)(6)(i-iii). The stocks of the other fish
within the grouper complex included in Amendment 16 are healthy stocks
and not declared to be undergoing overfishing, The angler’s ability to
fish for these fish would be limited and/or prevented by this amendment.
39. The NMFS has failed to implement two alternatives that would produce
a substantial reduction in mortality by declining to require the use of
venting tools and circle hooks. This is in violation of National
Standard (9)
(9) Conservation and management measures shall, to the extent
practicable, (A) minimize bycatch and (B) to the extent bycatch cannot
be avoided, minimize the mortality of such bycatch.
CLAIMS FOR RELIEF
40. Plaintiff realleges paragraphs 1 through 39.
41. The accountability measures permitted in Amendment 16 should be
enjoined from implementation until and unless The National Marine
Fisheries Service complies with its duties under the MSA to collect
relevant data to manage the grouper fishery as required by Congress.
Legal error is an abuse of discretion under the MSA.
42. The implementation of Amendment 16 should be enjoined until such
time as the NMFS has complied with the consideration and application of
the “Mixed-Stock Exception” to Amendment 16.
43. The gag grouper stock assessment completed in 2006 and amended
through 2008 should be rejected as the product of the fatally flawed
MRFSS program and agency predisposition and bias. The 2006 assessment
did not employ BAS and improperly rejected better and available
information that the desired reduction in gag take was achieved without
any action by the NMFS.
44. The individual one-fish per person bag limits for black grouper and
gag grouper should be rejected as conducive to excessive by-catch and
replaced with a single five grouper aggregate limit because
specie-specific limits create bycatch which is contrary to the National
Standards mandating elimination of by-catch.
45. The one -fish bag limit on Golden Tilefish and Snowy Grouper is
arbitrary and capricious because recreational fishermen are allotted a
small percentage (5%) of the catch, the bag limit should be rejected
unless the allocation is set at 50% recreational as required by National
Standard 4 of the MSA.
46. The seasonal closures for red and gag grouper are an abuse of
discretion.
NMFS has failed to factor weather conditions into its assessments. The
closures for 2010
and beyond should be rejected until and unless weather-adjusted data
mandated by the
MSA is collected, analyzed and factored into the decision making process
for Amendment 16.
47. Black grouper, red grouper, scamp, rock hind, red hind, coney,
graysby, yellowfin grouper, yellowmouth grouper, and tiger grouper
cannot be closed simply to avoid by-catch of gag grouper during the
closure. One species cannot be used as a hostage to stop fishing for
stocks which are healthy. Any closure should be narrowly-tailored to
achieve its underlying purpose.
48. The 2011 assessment should not be conducted using the discredited
MRFSS system; rather, any assessment after January 1, 2009 must be
conducted under the provisions of the MSA, utilizing data generated in
compliance with the MSA.
49. Plaintiff should be permitted to engage in discovery regarding the
claim that NMFS was predisposed to reduce the recreational take of gag
grouper regardless of the state of the fishery in 2005 and permitted
this bias to infect the 2006 stock assessment and the content of 30B.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that this Court enter an
Order granting
such relief as the Court deems equitable, just and proper under the
circumstances as
required by the APA and the MSA.
Respectfully submitted,
/s/ David R. Heil
David R. Heil, Esquire
David R. Heil, P.A.
2324 Lee Road
Winter Park, Florida 32789
(407)599-2100 (p)
(407)599-7733 (f)
Florida Bar # 453422
david@heil-law.com
ATTORNEY FOR PLAINTIFF FRA |
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