Judge rules NMFS made mistake in implementing observer program

A federal judge has ordered the National Marine Fisheries Service to prepare a supplemental environmental assessment for the revised marine observer program that was implemented in 2013.
No immediate changes to the program will be made, but Judge Russel Holland found that NMFS did not account for whether it would lose data quality after learning that higher costs would reduce the amount of observer days at sea by more than half compared to what was originally planned.
The Boat Company, a nonprofit that operates marine tours in Southeast, along with fishing opportunity and conservation education, sued federal fisheries managers in Alaska U.S. District Court in Anchorage over the revised at-sea observer program in December 2012.
Holland wrote in an Aug. 6 order that a new environmental assessment, or EA, was necessary to look at when observer coverage rates were too low to provide adequate information, and said that the federal defendants violated the National Environmental Policy Act and the Magnuson-Stevens Act by failing to consider that possibility.
Holland granted summary judgment in favor of The Boat Company on its Magnuson-Stevens Act, National Environmental Policy Act and Administrative Procedures Act claims.
“NMFS must prepare a supplemental EA that addresses the question of when data being gathered by the restructured Observer Program ceases to be reliable, or of high quality, because the rate of observer coverage is too low,” Holland wrote.
The revised observer program was implemented by the National Marine Fisheries Service, or NMFS, in 2013. It was intended to increase the statistical reliability of data collected through the observer program, address cost inequality among fishery participants and expand observer coverage to previously unobserved fisheries, such as halibut longline vessels, according to a summary from the agency.
The Boat Company asserted that the revised program does not provide adequate information about bycatch for federal managers to properly manage the fishery.
The disagreement largely revolves around the partial coverage category for vessels in fisheries that do not have a 100 percent observer coverage requirement and are instead split into two pools — vessel and trip selection.
Smaller boats, like halibut longliners are generally in the vessel selection pool, meaning that they’re randomly selected for 60 days of coverage at a time. Large boats, including Gulf of Alaska trawlers, are in the trip selection pool, where they must log each fishing trip and are randomly selected for coverage on one trip at a time. Previously, all of the halibut vessels and all other vessels less than 60 feet long were unobserved.
The Fixed Gear Alliance, which primarily represents commercial fishers using longline and pot gear, participated in the suit as an intervenor, but Holland dismissed their claims because they were time-barred.
An EA is a concise document that looks at a proposed action and its impact. In the case of the observer program, the EA is expected to look at the fee structure for the program. Originally, the agency estimated that a 1.25 percent observer fee (applied to the shoreside value of a vessel’s harvest) would fund about 9,000 observer days, or about 30 percent coverage.
However, the annual deployment plan for the first year of the program in 2013 wound up including about 11 percent coverage for the vessel selection pool and 14 percent to 15 percent coverage for the trip selection pool.
As a result, NMFS received less data than it had originally anticipated; the agency has said that the change was not statistically significant, but Holland wrote that the new EA is necessary to respond to the change in information.
 “NMFS could not ignore the fact that if costs of the observer program doubled without an offsetting change in the ex-vessel value fee, the quantity of data being collected would decrease, and that this decrease could lead to a reduction in the quality of the data being collected,” Holland wrote. “At some point, coverage rates will drop too low to generate quality data, but the EA is silent as to when this might occur.”
Holland ruled in favor of the federal defendants on other claims and did not grant The Boat Company’s request to overturn the program.
In an email, NMFS’ Gretchen Harrington wrote that the agency has begun preparing for the supplemental EA, but that a timeframe has not yet been set.
“Going forward, we will work with the court on a schedule,” Harrington wrote Aug. 11. “Once we have a schedule, we will share it with the public.”
The Boat Company praised Holland’s decision.
“Today’s decision is an important step toward conservation of salmon and halibut resources and a healthier ecosystem,” said Joel Hanson, TBC’s director of conservation programs.  “Sound fisheries management requires collecting the best available scientific information, and that means full observer coverage on the high-volume trawlers that account for the most catch and bycatch.”
In a formal statement, NMFS said it would work closely with the North Pacific Fishery Management Council and stakeholders to improve the observer program.

“We are pleased with the court’s decision to uphold the North Pacific Groundfish and Halibut Observer Program — a decision which ensures this critical fishery management program will stay in place,” said NMFS Alaska Regional Administrator Jim Balsiger in a formal statement. “While the judge upheld the program, he has asked the agency to prepare a supplemental Environmental Assessment to look at program costs and coverage levels. Going forward, we will work with the court on a schedule for development of that supplemental EA.”

NMFS is just now wrapping up its last court-ordered environmental impact statement, or EIS, which was required for fishery management changes intended to protect the western distinct population segment of Steller sea lions in the Aleutian Islands.

Alaska U.S. District Court Judge Timothy Burgess ruled in March 2012 that the agency violated NEPA by not preparing an EIS before implementing the wide-ranging fishing closures in 2011.

NMFS is now changing the management measures as a result of that new EIS.