CONSERVATION LAW FOUNDATION
62 Summer Street
Boston, NU 02110?1016, and
AMERICAN OCEANS CANTAIGN
600 Pennsylvania Avenue, SE, Suite 2 10
Washington, D.C. 20003

Plaintiffs,

ROBERT L. MALLETT, in his official capacity as Acting Secretary of the United States Department of Commerce,
DATE STAMP: 07/20/2000

NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION
Department of Commerce
Room 5128
14th Street and Constitution Ave., NW
Washington, DC 20230, and
NATIONAL MARINE FISHERIES
SERVICE
Department of Commerce
Room 14555
1315 East?West Highway
Silver Spring, MD 20910

COMPLAINT FOR DECLARATORY,MANDATORY, AND INJUNCTIVE RELIEF

INTRODUCTION

1. This complaint challenges defendants' failure to prepare an adequate environmental analysis before approving management measures that would more than double the level of fishing allowed by the Atlantic sea scillop rebuilding plan for the 2000 fishing season and expose currently protected areas of essential fish habitat (EFH) to damaging scallop dredging. This failure to prepare an adequate environmental analysis violates the National Environmental Policy Act (NEPA).

2. In Framework Adjustment 12 and Framework Adjustment 13 to the Atlantic Sea Scallops Fishery Management Plan (Scallop FMP), defendants seek to inc;rase fishing on the overfished New England scallop population. Defendants would allow the catch of additional scallops by increasing the amount of time scallopers 'are allowed to fish while opening to scallop dredging certain areas of the ocean that have been closed to scallop dredges and other bottom?tending mobile fishing gear for more than five years.

3. Several important New England groundfish populations have been severely depleted or near collapse for many years. In fact, over half of the New England groundfish stocks whose stock size was known were listed as overfished in 1999. See National Marine Fisheries Service, Report to Congress: Status offisheries of the United States 9?10 (October 1999) (13 of 21 stocks whose size is known are overfished). The three closed areas that would be opened by defendants' actions protect groundfish by preserving their habitat, thereby affording juvenile groundfish shelter from predators and shielding them from bycatch (unintentional catch) from unselective gear such as scallop dredges.

4. Plaintiff Conservation Law Foundation (CLF) sued the defendants in 1991 to redress defendants' failure to prevent overfishing in the groundfish fishery. Defendants agreed to a consent decree that set a timetable for developing a plan to rebuild the overfished groundfish to a healthy population size. See Conservation Law Found ofNew England v. Mosbacher, 966 F.2d 39, 41 (1 st Cir. 1992). Because defendants' management efforts since 1991 have not yet succeeded in restoring groundfish populations to health, CLF has recently sued again to protect the groundfish populations, challenging the year 2000 suite of groundfish management measures in CLF v. Daley, No. l:00CV0 1134 (GK) (D.D.C. filed May 19, 2000).

5. Plaintiff American Oceans Campaign (AOC) has advocated for the protection of EFH in New England and across the country. AOC filed suit last year to protect the EFH in New England fisheries, including the EFH on Georges Bank. AOC v. Daley, No. 1:99CV00982 (GK) (D.D.C. filed April 26,1999).

6. Defendants' failure to conduct an adequate environmental analysis of the effects of Framework 12 and Framework 13 results in direct harm to the plaintiffs and ? their interests and is arbitrary and capricious and not in accordance with the law, in violation of the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA). Therefore, this Court should set Framework 12 and Framework 13 aside and require defendants to comply with NEPA before they decide whether to amend the Scallop FMP to allow increased fishing and access to the closed areas.

II. JURISDICTION AND VENUE

7. This action arises under NEPA, 42 U.S.C. § 4321 et seq., and the APA, 5 U.S.C. §701 et seq.

8. This Court has jurisdiction pursuant to 28 U.S.C. § 133 1, which grants the district courts "original jurisdiction of all civil actions arising under the ... laws ... of the United States" and 28 U.S.C. § 1361, which grants the district courts "original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff."

9. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e).

10. This Court may issue a declaratory judgment in this case pursuant to 28 U.S.C. §§ 2201?2202, and may grant relief pursuant to the APA, 5 U.S.C. § 706. 111.

III. DESCRIPTION OF PARTIES

11. Plaintiff CLF is a private, not?for?profit organization incorporated in Boston, Massachusetts. CLF is dedicated to protecting natural resources in New England, including marine wildlife and their habitats, and coastal and ocean resources. To further these goals, CLF undertakes litigation and other advocacy on behalf of its members' interests; promotes public awareness, education, and citizen involvement in the conservation of marine wildlife and resources; and supports programs for the conservation of marine wildlife and their habitats. CLF has approximately 15,000 members, located primarily in Massachusetts and the New England region. CLF's members consume local commercially?caught groundfish and use and enjoy fisheries located within 200 miles of the New England coasts for recreational, educational, and scientific purposes. CLF and its members have a direct interest in healthy fisheries and a healthy marine ecosystem. Members of CLF include fishers, scientists, consumers of local commercially?caught groundfish, and other concerned citizens who are directly injured by the failure of the defendants to protect EFH, prevent overfishing, and minimize bycatch in the important New England groundfish fisheries. By allowing continued habitat disruption, overfishing, and bycatch, defendants are reducing the populations of fish and other marine life in the New England fishery management region that are.relied upon by members of CLF for food consumption, fishing, collecting, photography, and research. These interests have been, and ?? unless the relief sought in this complaint is granted ?? will continue to be, adversely affected and irreparably injured by defendants' unlawful failure to analyze their proposed actions under NEPA.

12. Plaintiff AOC is a national not?for?profit environmental organization, with members located throughout the country, that is dedicated to the restoration of marine ecosystems. AOC educates the public, leads national coalitions, and promotes programs that? improve ocean protection. It has been actively involved in efforts to protect New England fisheries. AOC and its members are concerned about damage to EFH on Georges Bank and damage to the overfished scallop and groundfish populations in New England. Members of AOC participate actively in the New England groundfish fisheries and are adversely affected by the failure of the defendants to prevent damage to habitat and fish populations. AOC and its members suffer direct and immediate injury as a result of defendants' failure to protect habitat and fish populations in the closed areas, since defendants are responsible for reducing the populations of fish and other marine life relied upon by members of AOC for fishing, collecting, photography, and research. These interests have been, and ?? unless the relief sought in this complaint is granted ?will continue to be, adversely affected and irreparably injured by defendants' unlawful failure to analyze their proposed actions under NEPA.

13. Defendant Robert L. Mallett is Acting Secretary of the United States Department of Commerce. He is sued in his official capacity as the chief officer of the Department charged with managing United States marine fisheries.

14. Defendant National Oceanic and Atmospheric Administration (NOAA) is an agency of the United States Department of Commerce with supervisory responsibility for the National Marine Fisheries Service (NMFS). The Secretary of the Department of Commerce has delegated responsibility to manage fisheries to NOAA, which in turn has sub?delegated that responsibility to NMFS.

15. Defendant NMFS is an agency of the United States Department of Commerce that has been delegated the responsibility to manage United States marine fisheries through FMPs and FMP amendments and regulations implementing those FMPs and FMP amendments. NMFS is the United States government agency with primary
responsibility to manage marine fisheries.

IV. FISHERIES MANAGEMENT

A.  Statutory Background

16. The Magnuson?Stevens Fishery Conservation and Management Act (FCMA) establishes an elaborate system for conserving and managing fish populations primarily in United States territorial waters and in the exclusive economic zone (EEZ), which extends from the boundaries of state waters (three miles from shore in New England) to 200 miles offshore or to an international boundary with neighboring countries. FCMA creates eight regional fishery management councils and charges them with preparing FMPs for all managed species.

17. Congress amended FCMA in 1996 with the Sustainable Fisheries Act (SFA). The SFA strengthened FCMA by adding new provisions defining overfishing, and requiring defendants to rebuild overfished fish stocks, prevent injury to EFH from fishing, and minimize bycatch.

18. In enacting the SFA, Congress specifically found that:

One of the greatest long?term threats to the viability of commercial and recreational fisheries is the continuing loss of marine, estuarine, and other aquatic habitats. Habitat considerations should receive increased attention for the conservation and management of fishery resources of the United States. 16 U.S.C. § 1801(a)(9).

19. Councils have the initial responsibility for developing FMPs and FMP amendments for each fishery "that requires conservation and management within the councils' respective geographic areas of authority. 16 U.S.C. § 1852(h)(1). Councils must include in their FMPs or FMP amendments the measures necessary to conserve and manage particular species of fish. See id at §1853(a)(1)(A).

20. "Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery." 16 U.S.C. § 1851(a)(1).

21. "Conservation and management measures shall be based upon the best scientific information available." 16 U.S.C. § 185 l(a)(2).

22. FMP, FMP amendments, and implementing regulations must comply with the requirements of FCNIA. Specifically, they must be consistent with all of the national standards set forth in 16 U.S.C. § .185 1 (a) and must also contain all of the "required provisions" set forth in 16 U.S.C. § 1853(a).

23. Am FMP must "assess and specify ... the maximum sustainable yield and optimum yield from ... the fishery," 16 U.S.C. § 1853(a)(3), and "the extent to which fishing vessels of the United States, on an annual basis, will harvest the optimum yield," id at § 1853(a)(4)(A).

24. Optimum yield "is prescribed ... on the basis of the maximum sustainable yield from the fishery, as reduced by any relevant economic, social, or ecological factor." 16 U.S.C. §1802(28)(B).

25. "Overfishing" is taking place or a fishery is "overfished" if the "rate or level of fishing mortality ... jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis." 16 U.S.C. § 180~(29).

26. The Secretary is required to make an annual report to Congress which identifies fisheries that are overfished. See 16 U.S.C. § 1854(e)(1). Within one year of the Secretary's identifying a stock as overfished, the appropriate Council must prepare an FMP or FMP amendment, called a rebuilding plan. See id at § 1854(e)(3).

27. A rebuilding plan specifies, as the optimum yield of the fishery, the yield that "provides for rebuilding to a level consistent with producing the maximum sustainable yield [MSY]." 16 U.S.C. § 1802(28)(C).

28. A rebuilding plan must specify a time period in which to rebuild the fishery that is "as short as possible, taking into account the status and biology of any overfished stocks of fish, the needs of fishing communities ... and the interaction.of the overfished stock of fish within the marine ecosytem," and is not to exceed ten years, unless biological factors or international agreements "dictate otherwise." 16 U.S.C. § 1854(e)(4)(A).

29. FCMA provides that FMPs and FMP amendments must (1) describe and identify EFH, (2) "minimize to the extent practicable adverse effects on such habitat caused by fishing," and (3) "identify other actions to encourage the conservation and enhancement of such habitat." 16 U.S.C. § 1853(a)(7).

30. National standard 9 of FCMA specifies that conservation and management measures must minimize bycatch and bycatch mortality. 16 U.S.C. § 185 1(a)(9).

31. FCMA defines "bycatch" as "fish which are harvested in a fishery, but which are not sold or kept for personal use . . . ." 16 U.S.C. § 1802(2).

32. FMPs must:

establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery, and include conservation and management measures that, to the extent practicable and in the following priority

(A) minimize bycatch; and

(B) minimize the mortality of bycatch which cannot be avoided[.]  16 U.S.C. § 1853(a)(I 1).
 

B. Fisheries Management Concepts

33. "Maximum sustainable yield" (MSY) means "the largest long?term average catch or yield that can be taken from a stock or stock complex under prevailing ecological and environmental conditions." 50 C.F.R.§ 600.310(c)(1)(i).

34. Fish stock size is measured in terms of biomass, the aggregate mass of the fish in the stock.

35. The biomass "consistent with producing the maximum sustainable yield" 16 U.S.C. § 1802(28)(C) (optimum yield for a rebuilding stock), is referred to as Bmsy.

36. A fishing mortality rate, F, is a measure of the intensity of fishing, analogous to temperature as a measure of the intensity of heat. See Amendment 9 App. 1, Conceptual Basis of the Fishery Management Plan at 1?2.

37. The yearly fishing mortality (or exploitation rate) is the percentage of the entire fish population biomass that is killed by fishing during the year. See Amendment 9 App. I at 2.

38. At very low fishing mortality rates, the relationship between F and the yearly fishing mortality is close. As the yearly fishing mortality increases, F increases exponentially. See Amendment 9 App. I at 2. For example, when F = 0, the yearly mortality is 0; when F 0.5, the yearly mortality is 40%; when F = 1, the yearly mortality is over 60%; and when F = 1.5 the yearly mortality is almost 80%. See id.

39. The rate of fishing mortality consistent with producing the maximum sustainable yield is referred to as Fmsy.

40. Rather than control the fishing mortality rate by directly setting hard quotas (i.e., a quota such that the fishery is closed once the quota is reached) on landings, defendants rely on a combination of closed areas, limits on the total days at sea
(DAS) that a boat devotes to fishing, and trip limits (limits on the amount of fish a boat can land per day). Defendants assume that DAS are related to landings. DAS allocations for full?time commercial fishing vessels are commonly used for comparing suites of management measures. See, e.g., Amendment 7 to the Scallop FUT at 11.

V. NEPA BACKGROUND

41. Before federal agencies such as the defendants take a major action significantly affecting the quality of the human environment, NEPA requires that the agencies prepare a detailed statement evaluating "the environmental impact of the proposed action." 42 U.S.C. §4332(2)(C)(i).

42. NEPA further requires that agencies prepare environmental assessments (EAs) to determine whether an action constitutes a major federal action significantly affecting the quality of the human environment and thus necessitates an environmental impact statement (EIS).

VI. THE SEA SCALLOP FISHERY

43. Defendants manage fishing on Atlantic sea scallops under the Scallop FMP.

44. The Atlantic sea scallop fishery takes place off the coast of the Northeastern United States in areas known as Georges Bank and the Mid?Atlantic.

45. Scallops grow rapidly during their first several years of life and quadruple in meat weight between ages three and five. While sexual maturity may begin as early as age two, scallops less than four years old probably contribute little to total egg production. See Amendment 7 at 27.

46.Scallopers chiefly use fishing gear, known as a scallop dredge, that scrapes scallops off of the seafloor. Most vessels tow two 15?foot dredges or two 13?foot dredges. See Ronald Smolowitz, Bottom Tending Gear Used in New England, in Effects of Fishing Gear on the Sea Floor ofNew England 46 (Eleanor M. Dorsey and Judith Pederson eds., 1998).

47. "A dredge is a metal framed basket with a bottom of connected iron rings or wire netting, often with the top made of synthetic webbing. The lower edge of the frame has a raking bar ... The catch is lifted off or out of the sea bed by the raking bar and passes back into the basket or bag." John C. Sainsbury, Commercial Fishing Methods, An Introduction to Vessels and Gears 154 (3d ed. 1996).

48. In an offshore scallop dredge, the "rectangular mouth [of the dredge) is a heavily constructed steel framework to which the towing arms and brackets are attached. The bottom bar of the mouth is formed into a knife edge which scrapes the bottom, freeing and lifting the scallops which then pass into the bag. The bag is a constant width throughout its length, being held out at the rear by a steel angle, the clubstick. In order to ensure the knife edge tends hard on the bottom, a pressure plate may be fitted ... which uses hydrodynamic pressure on the plate resulting from the water flow as the dredge is towed forward." Sainsbury at 163?64. See also id at Figures 2.104 ? 2.106 (reproduced below). Frame

49. Scallop dredges also catch severely overfished groundfish such as cod, yellowtail flounder, monkfish, and skates.

50. Scallop dredging during the months of February through July may disrupt groundfish spawning aggregations. This disruption may result in injury to the groundfish populations even though the dredges do not actually catch the fish.

51. Scientific studies "indicate significant impact of bottom fishing gear on benthic habitats in New England, particularly habitats with three?dimensional structure. Hard bottoms (e.g. boulders on Jeffreys Bank and the gravel pavement on northern Georges Bank) support complex epifaunal communities that are removed by bottom fishing." Jeremy Collie, Studies in New England of Fishing Gear Impacts on the Sea Floor, in Effects of Fishing Gear 59. See also James B. Lindholm, et al., Complex Habitats Help Young Cod Survive, Marine Ecology Progress Series (March 17, 1999) (study reproducing ocean?bottom habitats in aquarium showed that habitat complexity increased young cods' survival time when predator entered tank).

52. The ecological consequences of disturbance such as that caused by scallop dredging include reductions in habitat complexity and biodiversity. See Collie at 60. Habitat disturbance affects juvenile stages of commercially important fish that depend on habitat for protection from predators and that themselves prey on epifaunal species. See id.; see also Peter J. Auster and Richard W. Langton, The Effects of Fishing on Habitat, 22 American Fisheries Society Symposium 150?87 (1999) (reviewing studies of impacts of bottom?tending gear, such as scallop dredges, on habitat; Figure I at 158?59, reproduced below shows effects of scallop dredging).

VII. SEA SCALLOP REBUILDING PLANS

53. Since 1994, defendants have approved two separate rebuilding plans for scallops, yet scallops have still not reached the rebuilding target of Bmsy. Moreover, defendants have delayed, through repeated "temporary" measures, the imposition of the significant reductions on scalloping called for in their rebuilding plans.

54. An overview of the last few years shows the following. The FUT (pursuant to Amendment 4) called for 80 full?time DAS for 1999 to be followed by 79 full?time DAS for 2000. Then, before the 1999 scalloping season, defendants amended the FMP (Amendment 7) to allow 120 full?time DAS for 1999, to be followed by a reduction to 51 full?time DAS for 2000. Now, however, with Framework 12, rather than reducing the DAS to 5 1, defendants have increased the allowed DAS for 2000 to 120 DAS.

55. In March 1994, Amendment 4 to the Scallop FMP was implemented. See Amendment 7 at 3. Its goal was to "restore[] adult stock abundance and age distribution" in the sea scallop population. Id. Amendment 4 defined scallop overfishing to occur when the fishing mortality rate (F) for scallops was greater than 0.64. Amendment 7 at 3. Defendants developed this 0.64 definition for F before the SFA was enacted. The 0.64 overfishing definition did not comply with the stricter requirements for overfishing definitions set forth in the SFA. Under the SFA, the F should be no higher than 0.24. See Amendment 7 at 4.

56. In October 1997, the Secretary of Commerce identified Atlantic sea scallops as overfished. See Amendment 7 at 2.

57. In March 1999, the Secretary approved Amendment 7 to the Scallop FMP. See 64 Fed. Reg. 14835 (1999) (Notice of Final Rule). Amendment 7 set forth a rebuilding plan to restore the biomass of Atlantic sea scallops to Bmsy by 2008. See id

58. Amendment 7 defined scallop overfishing such that the highest allowable fishing mortality rate under any circumstances would be 0.24. See Amendment 7 at 4.

59. Rather than prevent overfishing immediately, as required by FCMA, 16 U.S.C. § 185 1 (a)(1), the Amendment 7 rebuilding plan maintained fishing effort at the status quo level of 120 full?time DAS in its first year, and then decreased fishing effort to 51 DAS in 2000. See Amendment 7 at 12. This reduction in DAS would have resulted in a decrease in fishing mortality rate from the 1999 level of 0.83 to a 2000 level of 0.34. See id. at 11. Even at these reduced levels, the fishing mortality rates for both years would have constituted overfishing, as they would have exceeded the maximum allowed rate of 0.24.

60. Defendants have determined that restriction of scalloping fishing time through restriction of DAS "indirectly protects habitat by causing an overall reduction of fishing effort using some of the gears and methods likely to impact habitat." Amendment 11 to the Northeast Multispecies Fishery Management Plan for EFH (Omnibus EFH Amendment) at 184, 189. Invoking this theory, defendants relied on these DAS restrictions, in part, in determining not to take further steps to protect EFH in New England. See id at 181.

61. Amendment 7 justified delaying cuts in DAS in 1999 by stating that the delay would (a) "allow the scallop industry an additional year to develop a buyback program before further, more severe cuts in DAS would be implemented;" (b) allow the Council time to develop an "area management approach" that would rotate areas of scallop fishing to allow scallops in unfished areas to rebuild in population; and (c) allow the Council to obtain information from an experimental fishery in the closed areas. See Amendment 7 at 25.

62. On information and belief, neither defendants, nor the scallop industry, are currently considering a buyback program that would reduce the number of scallop dredging vessels.

63. Defendants have stated at Council meetings that they would prepare a rotational management plan, accompanied by a supplemental EIS, by March 2000. See, Summary of Draft Amendment 10 Alternatives at I (handed out at Council's Scallop Oversight Committee Meeting on April 21, 2000) (referring to DSEIS for rotational area management plan); see also Framework 11 at 18 ("The Council schedule calls for implementation of the [rotational area management] amendment by the beginning of the next fishing year, beginning March 1, 2000."). The Council has not yet implemented
such an "area management approach." On information and belief, the Council will not. implement any such scheme before May 2001.

VIII. FISHING IN THE CLOSED AREAS

64. New England groundfish populations, including cod, yellowtail flounder, haddock, monkfish, and skates, are overfished or depleted. Defendants closed three areas in and near Georges Bank in 1994: the Nantucket Lightship Closed Area, Closed Area I, and Closed Area II. See Framework 13 at 1. These areas are closed to fishing gear capable of catching groundfish, including scallop dredges, for the purpose of preventing overfishing and rebuilding groundfish stocks. See id

65. Defendants have determined that the three closed areas on Georges Bank "offer significant conservation benefit to the EFH within the areas by prohibiting all bottom?tending mobile fishing gears, the gear types most often associated with adverse impacts to benthic habitats." Omnibus EFH Amendment at 186. Invoking this theory, defendants relied on these closed areas, in part, in determining not to take further steps to protect EFH in New England.

A. Framework 11

66. In 1999, defendants allowed limited scalloping in a section of Closed Area II through Framework Adjustment 11 to the Scallop FMP. See 64 Fed. Reg. 31144 (1499) (Framework 11 Notice of Final Rule).*

67. Framework 11 allowed scallop fishers in a section of Closed Area II for one year only, and set forth mitigation measures to reduce groundfish bycatch. See 64 Fed. Reg. at 31144.

68. The stated purpose of Framework 11 was to "provide short?term economic relief to the scallop industry as it faces declining days at sea allocations, coupled with a depleted resource." Framework 11 at 18.

69. The mitigation measures in Framework 11 included the creation of a buffer zone around the part of Closed Area II opened to scalloping, which scallop vessels not on a trip into Closed Area II could not transit. See id. at 31445, 31150 (promulgating 50 C.F.R. §648.58(b)).

B. Frameworks 12 and 13

70. In September 1999, the Council began developing a framework to change the rules governing the 2000 scallop fishing season. Originally, the Council considered taking measures in one framework to (a) increase the total full?time DAS for 2000 from 51 DAS to 120 DAS and (b) open the three groundfish closed areas in Georges Bank to scallop fishing for the year 2000. See Framework 13 at 4?5, 32 (explaining framework development process).

71.The proposal to increase DAS from 51 DAS to 120 DAS, while opening the three closed areas, was separated into two different frameworks at the November 17, 1999, Council meeting. Framework 12 increased the full?time DAS from 51 to 120, while Framework 13 opened the three closed areas.

1. Framework 12

72. Defendants stated that the purpose of Framework 12 was "to make the primary control of fishing mortality consistent with current resource conditions and management policy." Framework 12 at 9.

73.Defendants contended in Framework 12 that the 1997 survey data and stock assessment relied on by Amendment 7 "may" have underestimated "the large increase of scallop biomass in the Georges Bank closed areas." Framework 12 at 9.

74. One of the justifications given in Framework 12 for increasing the Amendment 7 rebuilding plan D AS for the year 2000 was that the 1998 scallop year?class (scallops hatched in 1998) was strong. Nevertheless, the Framework cautioned that "[t]here is considerable uncertainty in the strength of the 1998 year?class." Framework 12 at 23.

75. Based on the 1999 survey data and stock assessment, defendants contended that they might allow more DAS for the 2000 fishing year than were provided for in the Amendment 7 rebuilding plan, so long as "scallops in the closed areas remain protected or that access to the closed areas is conservation?neutral (i.e. does not increase total fishing mortality)." Framework 12 at 9.

76. Defendants recognized that the 51 DAS allowed for full?time scallop vessels in the Amendment 7 rebuilding plan would achieve the rebuilding plan's year 2000 fishing mortality target in the open areas. See Framework 12 at 2 ("The conservation of scallops in the closed areas was not yet estimated in the existing assessments . . .

77. Defendants nevertheless maintained that if the amount of scallops caught were to be considered in comparison to the total biomass in all of the fishery, including the closed areas, fishing effort could be increased. According to defendants, even with the increased fishing effort allowed by Framework 12, the fishing mortality rate on this larger pool of scallops, including the closed area scallops, would be the same as the rate Amendment 7 called for when it considered scalloping only in the open areas. See Framework 12 at 20.

78. Defendants stated that "the disparity between fishing effort in the closed areas and that in the open areas increases cost and will, if continued, decrease yield below OY [optimum yield]. Fishing mortality in the open areas is well above threshold reference points [overfishing limits, set in Amendment 7] and scallops in these areas are therefore less abundant and small, compared to the scallops in the closed areas." Framework 12 at 10.

79. Defendants stated that "[o]verharvesting in the open areas is therefore occurring. Scallops are being caught before reaching optimum size and stock rebuilding is stymied." Framework 12 at 10.

80. On information and belief, the Council's Plan Development Team convened a meeting of the Council's Scientific and Statistical Committee (SSC) to consider the Framework 12 DAS proposal, in September 1999, when less than half the SSC members were able to attend.

81. The SSC members that did attend the September 1999 meeting advised the Council that the model the Council relied on in evaluating the increase in, DAS was flawed. ?See Framework 12 at 20.

82. The Council disregarded the advice of its SSC concerning the DAS model. See Framework 12 at 20.

83. Defendants issued Framework 12 as a final rule on March 3, 2000. See 65 Fed. Reg. 11478 (2000). There was no prior notice of a proposed rule in the Federal Register.

84. Plaintiffs were not given the opportunity to comment to the Secretary on the final Framework 12 proposal, because it was not published first as a proposed rule and because no comments were ?taken after it was noticed as a final rule.

2. Framework 13

85. Framework 13 allows scallopers access to a section of Closed Area II from June 15, 2000, to August 14, 2060; allows scallopers access to a section of the Nantucket Lightship Closed Area from August 15, 2000, to September 30, 2000; and allows scallopers access to a section of Closed Area I from October 1, 2000, to December 3 1, 2000. See Framework 13 at 3 1.

86. Framework 13 sets target catch levels for each closed area. For each closed area, the target catch level is based on the biomass in the entire closed area, see Framework 13 at 40, 110?112, although only a section of the closed area is open to
scalloping, see id at 31. Hence, Framework 13 would allow localized overfishing in those sections of the closed areas that are open. Compare Framework 11 at 7 the exploitation rate within portions of the three closed areas may be locally higher than Fmax [the maximum fishing mortality rate allowed]").

87. Framework 13 does not create buffer zones around any of the closed?area fisheries to help enforce limits on scallops caught per vessel and per trip. See Framework 13 at 39.

88. A draft of Framework 13 was available to the public only seven days before the Council approved the Framework. To the extent they were able, plaintiffs CLF and AOC participated in the fi?amework process, including attending Council meetings and submitting proposals for conservation and management of the scallop res~urce during the scoping period for Frameworks 12 and 13 and during the preparation of the 1999 Scallop Stock Assessment and Fishery Evaluation Report.

89. A coalition of conservation groups, including plaintiffs, commented on the changes proposed in Frameworks 12 and 13 in a letter dated January 14, 2000.

90. The United States Coast Guard commented on the changes proposed in Frameworks 12 and 13 in a letter dated October 28, 1999. It stated that the Coast Guard was not able effectively to enforce restrictions on scalloping in Closed Area II during the 1999 fishing season because "illegal transfers at sea of scallops caught in the southern portion of Closed Area II [the portion to be opened to scalloping in Framework 13] are occurring with regularity," and the Coast Guard did not have the resources to effectively patrol the area.

91. Defendants issued Framework 13 as a final rule on June 19, 2000, making it effective, retroactively, on June 15, 2000. See 65 Fed. Reg. 37903?04 (2000). There was no prior notice of a proposed rule in the Federal Register.

92. Plaintiffs were not given the opportunity to comment to the Secretary on the final Framework 13 proposal, because it was not published first as a proposed rule and because no comments were taken after it was noticed as a final rule.

IX. THE FRAMEWORK 12 EA

93. Framework 12 was the subject of an EA prepared by the defendants. See Framework 12 at 19.

94. The Framework 12 EA concluded that the framework was not a major federal action that would have a significant effect on the quality of the human environment. Accordingly, defendants did not prepare an EIS for Framework 12. See
Framework 12 at 52?53.

95. The Framework 12 EA considered the impact of the increase in DAS on the scallop stock by treating the scallop stock as including the biomass of scallops in the three closed areas, as well as the open areas. See Framework 12 at 20?21. Nevertheless, Framework 12 did not open the three closed areas. Yet the Framework 12 EA did not consider what the impact of the increase in DAS would be under the assumption that ail the DAS were to be used only in open areas, not the closed areas.

96. The Framework 12 EA stated that "scallop dredges has [sic] been shown to be associated with adverse impacts to some types of bottom habitat." Framework 12 at 37.

97. The Framework 12 EA stated that endangered sea turtles inhabit the action area and "are susceptible to entanglement in gear used in the sea scallop fishery." Framework 12 at 39. Nonetheless, the EA did not adequately analyze the probable adverse effects on sea turtles of opening these areas.

98. The Framework 12 EA stated that the barndoor skate population has "demonstrated a distinct decline over the last 30 years" and that "a relatively large number of barndoor skates" were taken as bycatch in 1998 (and 1999) surveys of scallop abundance in closed areas. Framework 12 at 39. Nonetheless, the EA did not adequately analyze the probable adverse effects on barndoor skates of opening these areas.

X. THE FRAMEWORK 13 EA

99.Framework 13 was also the subject of an EA. See Framework 13 at 94.

100. The Framework 13 EA concluded that the framework was not a major federal action that would have a significant effect on the quality of the human environment. See Framework 13 at 159. Accordingly, defendants did not prepare an EIS for Framework 13.

101. The Framework 13 EA relied, in part, for its description of the physical environment affected by the action, on a reference to an EIS that it purported had been prepared for Amendment 9 to the Northeast Multispecies FNIP. See Framework 13 at 95. Yet no EIS was prepared for Amendment 9.

102. The Framework 13 EA relied, in part, for its description of the biological environment affected by the action, on a reference to an EIS that it purported had been prepared for Amendment 9 to the Northeast Multispecies FNIP. See Framework 13 at 95. Yet no EIS was prepared for Amendment 9.

103. The Framework 13 EA relied, in part, for its description of the human environment affected by the action, on a reference to an EIS that it purported had been prepared for Amendment 9 to the Northeast Multispecies FUT. See Framework 13 at 95. Yet no EIS was prepared for Amendment 9.

104. The Framework 13 EA stated that data from the Center for Marine Science and Technology (CMAST) video survey of portions of the scallop population within closed areas of Georges Bank are "critical for managing and enhancing the scallop resource." Framework 13 at 98. Nevertheless, the EA stated that the only results available for review during the preparation of Framework 13 were from a "preliminary survey" and that the results from the full?scale survey were not yet available when Framework 13 was prepared. See id at 98?99.

105. The Framework 13 EA stated that an experimental fishery in the Nantucket Lightship Area and Closed Area I gathered data on bycatch from scallop dredges in the closed areas. See Framework 13 at 114. Nevertheless, the EA stated that, at the time Framework 13 was prepared, "there hasn't been sufficient time to rigorously examine the experimental fishery data for all bycatch species." Id.

106. The Framework 13 EA stated that catch and bycatch of all species was monitored during the 1999 Closed Area H scallop fishery. See Framework 13 at 114. Nevertheless, the EA stated that only yellowtail flounder and scallop catch was analyzed in detail in preparing Framework 13. See id.

107. The Framework 13 EA relied on the wrong fishing effort baseline. It treated the status quo fishing effort level as being 120 full?time DAS, see Framework 13 at 122, even though the status quo ante for the combined Framework 12/Framework 13 action is the 51 full?time DAS required by Amendment 7.

108. The Framework 13 EA stated that the ocean floor of the section of Closed Area II to be opened to fishing is "mostly comprised of relatively flat sand," and that it is "thought" to recover "relatively" quickly from disturbance from fishing. See Framework 13 at 129.

109. The Framework 13 EA stated there was little data about the habitat in the sections of Closed Area I and the Nantucket Lightship Area that are proposed to be opened to scallop dredges. See id. at 129 ("There is very little information available as to the substrate composition in this portion of Closed Area I. . . ."), 130 ("There are reports of some small, patchily distributed areas of hard?bottom in this comer of the [Nantucket Lightship Area], but these are not mapped accurately and reports vary widely as to their extent and location.").

110. The Framework 13 EA stated that "scallop dredges have been shown to be associated with adverse impacts to some types of bottom habitat." Framework 13 at 134. Despite the increase in DAS in Framework 12, the Framework 13 EA stated that the "proposed action" would decrease current levels of scallop fishing. See Framework 13 at 134. The EA did not mention the combined effect of the Framework 12 and Framework 13 actions. The EA stated that opening the three closed areas would have an adverse effect on habitat in the closed areas. Id. Nevertheless, relying on the alleged reduction in fishing effort caused by the "proposed action," the EA stated that the reduction in fishing effort outside the closed areas should "more than offset" the "limited increase in fishing effort in the closed areas." Id.

111. The Framework 13 EA did not analyze the relationship between the proposed action and the discussion in the Omnibus EFH Amendment, at 269?71, concerning the need for research on the effects of fishing on EFH.

112. The Framework 13 EA stated that endangered sea turtles inhabit the action area and "are susceptible to entanglement in dredges used in the sea scallop fishery." Framework 13 at 135,

113. The Framework 13 EA stated that the barndoor skate population has "demonstrated a distinct decline over the last 3 0 years" and that "a relatively large number of barndoor skates" were taken as bycatch in 1998 (and 1999) surveys of scallop abundance in closed areas. Framework 13 at 135?36.*

CLAIM FOR RELIEF

FRAMEWORKS 12 AND 13 VIOLATE NEPA

114. The plaintiffs reallege and incorporate by reference the allegations of paragraphs 1 ? I 13 in this Claim for Relief

115, Before federal agencies such as the defendants take a major action significantly affecting the quality of the human environment, NEPA requires that the agencies prepare a detailed statement evaluating "the environmental impact of the proposed action." 42 U.S.C, §4332(2)(C)(i).

116. NEPA further requires that agencies prepare EAs to determine whether an action constitutes a major federal action significantly affecting the quality of the human environment and thus necessitates an EIS.

117. Council on Environmental Quality (CEQ) and NOAA guidelines in turn require That in order to make that determination, the EA must evaluate the direct, indirect, and cumulative impacts of the proposed action. See 40 C.F.R. § 1508.8 ?.9?3 NOAA Administrative Order 216?6 at 5.03b.

118. CEQ regulations identify several factors that indicate an EIS is necessary, including "proximity to ... ecologically critical areas," "the degree to which the effects on the environment are likely to be highly controversial," or "are highly uncertain or involve unique or unknown risks," "the degree to which the action may establish a precedent", and the likelihood that the decision may result in a violation of federal environmental laws. 40 C.F.R. §1508.27(b).

119. For purposes of determining whether to prepare an EIS, "Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts." 40 C.F.R. § 1508.27(b)(7).

120. The EA or EIS must also consider reasonable alternatives to the proposed action that have the potential to mitigate the potential negative impacts of the action. See 42 &S.C. §4332(2)(C)(iii); 40 C.F.R. § 1500.2(e).

A. Impacts on Habitat

121. Neither the Framework 12 EA nor the Framework 13 EA adequately considered the risk of allowing scalloping in the closed areas given the uncertainty about the ability of sandy bottom habitats to recover from disturbance from fishing.

122. Neither the Framework 12 EA nor the Framework 13 EA adequately considered the risk of allowing scalloping in the closed areas given the lack of data about habitats in those areas and the corresponding risk posed by uncertainty as to the type of bottom habitat that would be dredged in the opened sections of the Nantucket Lightship Closed Area and Closed Area L.

123. Neither the Framework 12 EA nor the Framework 13 EA adequately considered the long?term impact of scallop dredges on gravel beds and other glacial alluvial topographical features, including recovery rates of such topographical formations.

124. Neither the Framework 12 EA nor the Framework 13 EA adequately considered the extent to which the scalloping authorized by Frameworks 12 and 13 will affect areas designated for protection as EFH, including areas of EFH in the three Georges Bank closed areas.

125. Neither the Framework 12 EA nor the Framework 13 EA adequately considered the effect of the scalloping on the various different fish species and life stages that rely on the EFH in the closed areas.

126. Neither the Framework 12 EA nor the Framework 13 EA adequately considered the effect of shifting effort of habitat?impacting gear from open areas that will continue to be affected by bottom?tending mobile gears to areas that have not been exposed to bottom?tending mobile gears for over five years.

127. Neither the Framework 12 EA nor the Framework 13 EA adequately considered the effect of increased effort on EFH in areas outside the closed areas if scallopers choose to use most of their DAS outside the closed areas.

128. Neither the Framework 12 EA nor the Framework 13 EA adequately considered the risk of allowing scalloping in the closed areas given the need to use areas that have not been subjected to bottom?tending mobile gear as controls in experiments concerning the effects of bottom?tending mobile gear on habitat.

B. Impacts of Increasing the Scallop DAS and Delaying Stock Rebuilding

129. Neither the Framework 12 EA nor the Framework 13 EA documented whether increasing the DAS for 2000 from 51 under Amendment 7 to 120 under Framework 12 is consistent with the Amendment 7 rebuilding plan, including documenting whether the Amendment 7 rebuilding plan presupposed that the closed areas would remain closed.

130. Neither the Framework 12 EA nor the Framework 13 EA analyzed whether it is consistent with the Act's prohibition on overfishing to allow fishing during the year 2000 at a fishing mortality rate of 0.34 when the FMP defines overfishing as any fishing mortality rate that exceeds 0.24.

131. Neither the Framework 12 EA nor the Framework 13 EA analyzed whether, if scalloping is allowed in the three Georges Bank closed areas, there will be localized overfishing because only portions of the closed areas would be opened under proposed Framework 13.

132. Neither the Framework 12 EA nor the Framework 13 EA analyzed whether, if scalloping is allowed in the three Georges Bank closed areas, overfishing will result because the most fecund scallops, age 4 and older, will be removed from the scallop population.

133. Neither the Framework 12 EA nor the Framework 13 EA analyzed the cumulative and long?term impacts of defendants' practice, in 1999 and 2000, of delaying scallop rebuilding by issuing ad hoc one?year measures to open closed areas and one?year measures to delay reductions in scallop landings.

134. Neither the Framework 12 EA nor the Framework 13 EA adequately considered the risk of increasing the allowed DAS given the uncertainty about the strength of the 1998 year class.

135. Neither the Framework 12 EA nor the Framework 13 EA adequately considered the likelihood that, once the closed areas have been opened to scallop fishing for two years in a row, the scallop fleet will come to depend on increased DAS and continued access to the closed areas.

136. Neither the Framework 12 EA nor the Framework 13 EA adequately considered the impact the partial openings in the closed area would have in creating opportunities to harvest scallops and groundfish above allowed levels.

C. Impacts on Groundfish and Other Species

137. Neither the Framework 12 EA nor the Framework 13 EA adequately considered the short? and long?term biological and economic impact on groundfish and lobster rebuilding of removing the estimate d amount of regulated species bycatch that is likely to be killed by increasing the scalloping DAS and allowing scalloping in the closed area (for example yellowtail flounder and monkfish, species known to be frequently caught as bycatch).

138. Neither the Framework 12 EA nor the Framework 13 EA adequately considered the short? and long?term biological and economic impact of disrupting groundfish spawning aggregations and associated habitat through scallop dredging.

139. Neither the Framework 12 EA nor the Framework 13 EA documented the extent of endangered sea turtle bycatch and mortality in the scallop fishery or the degree, to which endangered sea turtle populations may sustain such killing given other sources of mortality.

140. Neither the Framework 12 EA nor the Framework 13 EA adequately considered the short? and long?term impact of bycatch of bamdoor skate in light of recent data showing high bycatch of barndoor skate in the Georges Bank closed areas.

D. Failure to Consider Alternatives

141. Neither the Framework 12 EA nor the Framework 13 EA adequately considered the alternatives of closing additional areas to scalloping, and other bottom tending mobile gear, or imposing other measures with equivalent benefits to habitat in areas outside the closed areas.

142. Neither the Framework 12 EA nor the Framework 13 EA adequately considered the alternative of allowing fishing at a rate no greater than the overfishing threshold of 0.24.

143. Neither the Framework 12 EA nor the Framework 13 EA adequately considered the alternative of allowing scallopers to fish only in certain closed areas instead of all the closed areas, for example allowing scallop fishing only in areas where sufficient data exists to demonstrate that they contain EFH that is less severely affected by scallop dredging (such as soft sediments and high energy environments).

144. Neither the Framework 12 EA nor the Framework 13 EA adequately considered the alternative of postponing scallopers' access into the closed areas until the Council and NMFS can (1) collect and analyze reliable and accurate geological surveys and habitat impact data obtained from NMFS' habitat surveys and experimental studies in Closed Area II and Closed Area I to determine whether important habitats exist that may be affected by scalloping; and (2) conduct a thorough analysis of the feasibility and environmental impacts of a rotational area management plan for scallops.

145. Neither the Framework 12 EA nor the Framework 13 EA adequately considered the alternative of requiring at least 25% observer coverage (for each closed area) on scallop trips inside the closed areas to monitor bycatch and compliance with other limitations.

146. Neither the Framework 12 EA nor the Framework 13 EA adequately considered the alternatives to scallop management proposed by plaintiff AOC during the preparation of the 1999 Scallop Stock Assessment and Fishery Evaluation Report.

E. Conclusion

147. Neither the EA for Framework 12 nor the EA for Framework 13 adequately analyzed the environmental impacts of the combined proposed action to more than double fishing effort over the Amendment 7 DAS level while opening the three closed areas to scalloping, nor do the EAs consider reasonable alternatives to the proposed action. Therefore, the EAs erroneously concluded that an EIS was not necessary.

148. Therefore, defendants violated NEPA by proceeding with the Framework 12/Framework 13 action on the basis of inadequate EAs

149. By taking action on the basis of inadequate EAs defendants also engaged in an arbitrary and capricious action that is contrary to law in violation of the APA.

150. By violating the law in the manner described in this Claim for Relief, the~ defendants are causing irreparable injury to the plaintiffs for which the plaintiffs have no adequate remedy at law.

PRAYERS FOR RELIEF

WHEREFORE, the plaintiffs respectfully request this Court to enter the following relief

I . Enter a declaratory judgment that the defendants violated NEPA and the APA by approving Framework Adjustments 12 and 13 to the Scallop FMP.

2. Set aside Frameworks 12 and 13 and prohibit defendants from deciding whether to increase fishing effort above the levels provided for in the Amendment 7 rebuilding plan to the Scallop FMP until they first comply fully with NEPA and the APA.

3. Prohibit defendants from deciding whether to allow scalloping in the closed areas until they first comply fully with NEPA and the A?PA.

4. Enter an order awarding plaintiffs their attorney fees and costs.
5. Provide such other and further relief as this Court deems just and proper.

DATED this  day of July, 2000.

Respectfully submitted,

STEPHEN E. ROADY
D.C. Bar No. 9264

MONICA B. GOLDBERG
D.C. Bar No. 459733

ERIC A. BELSKY
D.C. Bar No. 433612
Ocean Law Project
Earthjustice Legal Defense Fund
1625 Massachusetts Ave., NW
Suite 702
Washington, DC 20036
 (202) 667?4500 phone
 (202) 667?1925 fax ?
Attorneys for the Plaintiffs
Co?Counsel:

PETER SHELLEY
ME Bar No. 8904
MA Bar No. 544334

KIMBERLY A. OWENS
Conservation Law Foundation
120 Tillson Avenue
Rockland, ME 04841
(207) 594?8107 phone
(207) 594?7706 fax

CHRISTOPHER J. ZEMAN
CT Bar No. 415871
NY Bar
American Oceans Campaign
Suite 600 Pennsylvania Ave., SE 201
Washington, D.C. 20003
(202) 544?3526 phone
(202) 544?5625 fax