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Case 1:20-cv-02415-TSC Document 1 Filed 08/28/20 Page 1 of 46
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Plaintiff,
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`v.
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`Civil Action No. ___________
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`CONSERVATION LAW FOUNDATION
`62 Summer Street
`Boston, Massachusetts 02110
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`WILBUR ROSS, in his official capacity
`as Secretary of Commerce,
`United States Department of Commerce
`1401 Constitution Avenue NW
`Washington, DC 20230
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`NATIONAL OCEANIC AND ATMOSPHERIC
`ADMINISTRATION
`United States Department of Commerce
`Room 5128
`1401 Constitution Avenue NW
`Washington, DC 20230
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`CHRIS OLIVER, in his official capacity
`as Assistant Administrator for Fisheries,
`National Marine Fisheries Service
`1315 East-West Highway
`Silver Spring, MD 20910
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`NATIONAL MARINE FISHERIES SERVICE
`United States Department of Commerce
`Room 14555
`1315 East-West Highway
`Silver Spring, MD 20910
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`Defendants.
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
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`1
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`Case 1:20-cv-02415-TSC Document 1 Filed 08/28/20 Page 2 of 46
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`1.
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`Plaintiff Conservation Law Foundation (“CLF”) on behalf of its
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`adversely affected members hereby challenges the unlawful decision of the National
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`Marine Fisheries Service (“NMFS”) to approve and implement Framework 59 to the
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`Northeast Multispecies Fishery Management Plan, because, among other things, it
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`failed to establish measures necessary to rebuild Atlantic cod stocks to healthy
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`levels as mandated by the Magnuson-Stevens Fishery Conservation and
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`Management Act, 16 U.S.C. §§ 1801-1884 (“Magnuson-Stevens Act” or “the Act”),
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`and violated the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (“APA”). CLF
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`requests this Court to remand Framework 59 and require NMFS to establish new
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`management measures that conform to the Magnuson-Stevens Act as expeditiously
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`as possible and by a date certain.
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`INTRODUCTION
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`2.
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`Massive shoals of Atlantic cod once inhabited the coastal waters off the
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`northeastern United States and Canada. Their abundance was legendary;
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`historical accounts describe being able to catch cod simply by dipping a basket in
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`the water.
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`3.
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`For centuries, cod was a major driver of the regional economy in New
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`England and Eastern Canada, and the stocks seemed limitless. Even as fishing
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`pressure increased through the 1800s, Thomas Huxley, a prominent fisheries
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`scientist famously declared the cod population to be “inexhaustible.”
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`2
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`Case 1:20-cv-02415-TSC Document 1 Filed 08/28/20 Page 3 of 46
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`4.
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`Ecologically, Atlantic cod (Gadus morhua) is a high level predatory fish
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`native to cold-water marine ecosystems in the North Atlantic. Atlantic cod was a
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`foundational species in North Atlantic coastal ecosystems for millennia, constituting
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`a substantial portion of the total biomass and playing a primary role in transferring
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`energy up the food chain.
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`5.
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`Today, the Gulf of Maine and Georges Bank cod stocks—the two stocks
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`of Atlantic cod under U.S. jurisdiction and management—are severely depleted and
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`persist at only a fraction of their former sizes, due primarily to unsustainable
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`fishing pressure.
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`6.
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`Under the Magnuson-Stevens Act, NMFS has a mandatory duty to
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`rebuild fisheries in a time period that is “as short as possible” taking into account
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`various factors and “not [to] exceed 10 years,” except where the biology of the stock,
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`environmental conditions or an international agreement dictate otherwise. 16
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`U.S.C. § 1854(e)(4)(A).
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`7.
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`Federal scientists for decades have found that both Atlantic cod stocks
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`are subject to overfishing (meaning the rate of removals is too high) and are
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`overfished (meaning the population abundance is at an excessively low level). Yet
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`NMFS has continued to approve actions that end up failing to stop overfishing and
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`failing to rebuild cod stocks as required by law. These failures have resulted in
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`continued harm to the species.
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`8.
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`Framework 59 to the Northeast Multispecies Fishery Management
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`Plan is the most recent action by NMFS to set conservation and management
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`3
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`Case 1:20-cv-02415-TSC Document 1 Filed 08/28/20 Page 4 of 46
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`measures for Atlantic cod and implement the stocks’ rebuilding plans. See 85 Fed.
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`Reg. 45,794 (July 30, 2020) (final rule); New England Fishery Management Council,
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`Northeast Multispecies Fishery Management Plan Framework Adjustment 59 (Apr.
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`10, 2020) (“Framework 59”).
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`9.
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`Framework 59 provides an extraordinarily clear example of how
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`NMFS has implemented the rebuilding requirement in the Northeast region so as to
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`read it entirely out of the Act. Atlantic cod stocks have been under formal
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`rebuilding plans for decades, yet in Framework 59 NMFS authorized conservation
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`and management measures that undisputedly cannot rebuild Gulf of Maine cod by
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`the deadline of 2024. And for Georges Bank cod, there is nothing in the record and
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`no rational basis to support the conclusion that this stock will rebuild by its 2026
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`deadline if managed under the Framework 59 conservation and management
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`measures.
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`10. Framework 59, moreover, rests on arbitrary and capricious decision-
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`making that fails to comply with other requirements of the Magnuson-Stevens Act
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`and the relevant regulatory framework.
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`11. These violations of the Magnuson-Stevens Act and the APA harm CLF
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`and its members’ interests in healthy Atlantic cod populations and in protecting and
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`restoring the species’ role in the marine ecosystem. This harm will continue in the
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`absence of action by this Court.
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`12. Plaintiffs request that this matter be advanced for hearing at the
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`earliest opportunity, pursuant to 16 U.S.C. § 1855(f)(4).
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`4
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`Case 1:20-cv-02415-TSC Document 1 Filed 08/28/20 Page 5 of 46
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`JURISDICTION AND VENUE
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`13. The Court has jurisdiction over this case pursuant to the Magnuson-
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`Stevens Act, which provides that the “district courts of the United States shall have
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`exclusive jurisdiction over any case or controversy arising under” the Act, 16 U.S.C.
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`§ 1861(d), and explicitly anticipates judicial review of regulations and fishery
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`management actions, id. § 1855(f).
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`14. The Court also has jurisdiction over this case pursuant to the APA,
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`which allows courts to “hold unlawful and set aside agency action . . . found to be
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`arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the
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`law,” 5 U.S.C. § 706(2)(A), and to “compel agency action unlawfully withheld,” id.
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`§ 706(1).
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`15. The Court further has jurisdiction over this action pursuant to 28
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`U.S.C. § 1331, which grants the district courts “original jurisdiction of all civil
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`actions arising under the . . . laws . . . of the United States.”
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`16. The Court has authority to grant the requested relief pursuant to the
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`Magnuson-Stevens Act, 16 U.S.C. §§ 1855(f), 1861(d), and the APA, 5 U.S.C.
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`§ 706(1)-(2), as well as the provisions of 28 U.S.C. §§ 2201-2202 (providing for
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`declaratory and injunctive relief).
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`17. The Court has authority to award costs and attorneys’ fees under 28
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`U.S.C. § 2412.
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`18. Venue is proper in this court pursuant to 28 U.S.C. § 1391(e)(1)(A)-(B),
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`and 5 U.S.C. § 703, because Defendants reside in this judicial district, and because
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`Case 1:20-cv-02415-TSC Document 1 Filed 08/28/20 Page 6 of 46
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`a substantial part of the events or omissions giving rise to the claims occurred in
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`the District of Columbia.
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`PARTIES
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`19. Plaintiff CLF is a non-profit membership organization dedicated to,
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`among other things, protecting marine wildlife and their habitats as well as other
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`coastal and ocean resources in New England.
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`20. To further these goals, CLF undertakes litigation and other advocacy
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`on behalf of its members’ interests; educates its members on conservation issues
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`and on threats, challenges, and solutions for New England’s oceans so that they can
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`exercise their rights and protect their interests in those resources; promotes public
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`awareness, education, and citizen involvement in the conservation of marine
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`wildlife and resources; and supports programs for the conservation of marine
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`wildlife and their habitats.
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`21. On behalf of its members, CLF has worked to prevent overfishing of
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`Atlantic cod stocks for more than 30 years, and it has advocated extensively on
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`behalf of its members for sustainable management of the species. CLF has
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`repeatedly and continuously urged NMFS to fulfill its statutory duty to sustainably
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`manage and rebuild overfished Atlantic cod stocks.
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`22. CLF first challenged NMFS’s failure to prevent overfishing and rebuild
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`several overfished groundfish stocks—including Atlantic cod—in 1991. See
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`Conservation Law Found. v. Mosbacher, 1991 WL 501640 (D. Mass. 1991), aff’d sub
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`6
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`Case 1:20-cv-02415-TSC Document 1 Filed 08/28/20 Page 7 of 46
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`nom. Conservation Law Found. v. Franklin, 989 F.2d 54 (1st Cir. 1993). CLF also
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`successfully challenged NMFS’s failure to implement the 1996 amendments to the
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`Magnuson-Stevens Act in Conservation Law Found. v. Evans, 209 F. Supp. 2d 1
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`(D.D.C. 2001), requiring the agency to give proper effect to the new legal mandates
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`for bycatch and rebuilding. More recently, CLF challenged certain catch limits for
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`Gulf of Maine cod, with the court again holding NMFS’s action violated the
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`Magnuson-Stevens Act. See Conservation Law Found. v. Pritzker, 37 F. Supp. 3d
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`254 (D.D.C. 2014).
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`23. CLF’s members use and enjoy the ocean for fishing, wildlife
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`observation, boating, research, and study. CLF’s members value and depend on
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`healthy Atlantic cod stocks for these activities. CLF’s members also consume
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`seafood, including Atlantic cod. CLF’s members are directly affected by
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`environmental injury caused by overfishing and unsustainable fishing of Atlantic
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`cod. Injuries to CLF’s members include injuries to their consumption and
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`recreational and commercial use of Atlantic cod populations.
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`24. For example, Gilbert Chase is a resident of Northborough,
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`Massachusetts. In his career, Mr. Chase worked as a fishery research biologist for
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`the U.S. Bureau of Commercial Fisheries (now NMFS), as a biological
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`oceanographer for the U.S. Naval Oceanographic Office, as a marine biologist and
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`division diving officer for the New England Division of the U.S. Army Corps of
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`Engineers, and as an advisor on the Stellwagen Bank National Marine Sanctuary
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`Advisory Board. As a member of CLF, Mr. Chase is particularly concerned with the
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`Case 1:20-cv-02415-TSC Document 1 Filed 08/28/20 Page 8 of 46
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`protection of our oceans and marine resources. As a former fishery research
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`biologist, environmental advocate, consumer of seafood products and citizen of the
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`United States it matters greatly to Mr. Chase how our trust resources are protected
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`and managed. He stands to be particularly injured if provisions of Framework 59
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`are allowed to proceed as those provisions will further deplete the already
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`overexploited Atlantic cod stocks. This harm can only be addressed by remanding
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`Framework 59 and ordering Defendants to stop directing fishing for Atlantic cod
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`and take action to rebuild this iconic species.
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`25. Captain William Redington Tower, III is the son of a commercial
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`fisherman and has been the Captain of a commercial fishing vessel and a
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`recreational fisherman for decades. Currently a resident of Ogunquit, Maine,
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`Captain Tower has worked as a marine biologist and consultant for NMFS and with
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`the Woods Hole Oceanographic Institution studying fish migratory patterns. A
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`member of CLF since 2013, Captain Tower has been an active supporter of the
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`organization’s oceans advocacy, particularly its recent efforts to stop the illegal and
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`unsound management actions being taken with Atlantic cod in Framework 59. For
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`at least forty years, Captain Tower has owned and operated a charter boat fishing
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`business that commercially fishes for tuna, lobster, and groundfish, including
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`Atlantic cod. Captain Tower’s continuing economic and recreational interests in
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`Atlantic cod stand to be particularly injured by the provisions of Framework 59 as
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`they will further deplete the already overexploited cod stocks in the Gulf of Maine
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`and on Georges Bank. Only through this Court vacating and remanding these
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`Case 1:20-cv-02415-TSC Document 1 Filed 08/28/20 Page 9 of 46
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`provisions of Framework 59 and directing Defendants to set annual catch limits to
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`rebuild these stocks, will Captain Tower’s injuries be redressed.
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`26. Peter Shelley is Senior Counsel and a Vice President at CLF. He has
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`been a member of the organization since 1983. As an attorney he has worked to
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`protect New England groundfish stocks, including Atlantic cod for more than 30
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`years. Mr. Shelley resides in Marblehead, Massachusetts and has been an active
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`recreational fisherman for decades, fishing in the Gulf of Maine and southern New
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`England at least five to six times a year. Due to NMFS’s failure to effectively
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`control the overexploitation of Atlantic cod, the quality and quantity of his saltwater
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`fishing has decreased. Mr. Shelley’s interest in healthy populations of Atlantic cod
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`so that he and his grandchildren can continue to fish for Atlantic cod is injured by
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`Framework 59 because the action will not rebuild the population in as short a time
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`period as possible. If this Court vacates and remands those portions of Framework
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`59 that apply to the Gulf of Maine and Georges Bank cod stocks, and orders
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`Defendants to set catch limits consistent with established mechanisms to rebuild
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`these stocks, Mr. Shelley will be able to fish for and catch a healthier and more
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`bountiful supply of Atlantic cod when they are rebuilt.
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`27. The aesthetic, conservation, recreational, commercial, cultural,
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`scientific, educational, and other interests of CLF and its members have been, are
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`being, and, unless the relief prayed for in this Complaint is granted, will continue to
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`be adversely affected and irreparably injured by Defendants’ failure to comply with
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`the law in its management of Atlantic cod. These injuries are actual and concrete
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`Case 1:20-cv-02415-TSC Document 1 Filed 08/28/20 Page 10 of 46
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`and would be redressed by the relief CLF seeks here. CLF has no adequate remedy
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`at law.
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`28. Defendant Wilbur Ross, United States Secretary of Commerce, is the
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`highest-ranking official within the Department of Commerce and, in that capacity,
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`has formal responsibility for the administration and implementation of the
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`Magnuson-Stevens Act, as well as for compliance with all other federal laws
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`applicable to the Department of Commerce. He is sued in his official capacity.
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`29. Defendant NOAA is an agency of the United States Department of
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`Commerce with supervisory responsibility for NMFS. The Secretary of Commerce
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`has delegated responsibility to implement and enforce compliance with the
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`Magnuson-Stevens Act to NOAA, which in turn has sub-delegated that
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`responsibility to NMFS.
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`30. Defendant Chris Oliver, Assistant Administrator for Fisheries, is the
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`highest-ranking official within NMFS and, in that capacity, has direct responsibility
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`for the administration and implementation of the Magnuson-Stevens Act with
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`regard to Atlantic cod, and for compliance with all other federal laws applicable to
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`the agency. He is sued in his official capacity.
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`31. Defendant NMFS is a federal agency within NOAA, in the U.S.
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`Department of Commerce, with the responsibility of protecting and managing the
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`fish, marine mammals, and other marine resources of the United States. NMFS
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`has been delegated authority by the Secretary of Commerce to implement and
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`enforce the Magnuson-Stevens Act, including approving fishery management plans
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`Case 1:20-cv-02415-TSC Document 1 Filed 08/28/20 Page 11 of 46
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`and amendments to those plans, and promulgating implementing regulations.
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`NMFS is the government agency primarily responsible for ensuring the
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`requirements of the Magnuson-Stevens Act are followed and enforced, including the
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`requirements to determine the status of managed stocks, identify and rebuild
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`overfished populations of fish, and set annual catch limits to end and prevent
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`overfishing.
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`The Magnuson-Stevens Act
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`LEGAL BACKGROUND
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`32. Congress enacted the Magnuson-Stevens Act in 1976, in order “to
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`conserve and manage the fishery resources found off the coasts of the United
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`States.” 16 U.S.C. § 1801(b)(1).
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`33. The Magnuson-Stevens Act establishes eight Regional Fishery
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`Management Councils, including the New England Fishery Management Council
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`(“New England Council”), and tasks them with preparing fishery management
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`plans and recommending regulations to implement the plans. Id. § 1852.
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`34. The Secretary of Commerce, acting through NMFS, reviews all
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`submitted plans, plan amendments, and regulations, id. § 1854(a)-(b), and upon
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`approval, promulgates regulations and otherwise implements the plans and plan
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`amendments, id. §§ 1854(b)(3), 1855(d).
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`35. The Magnuson-Stevens Act also provides authority for NMFS to enact
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`emergency regulations, independent of the regular fishery management plan
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`process. Id. § 1855(c).
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`36. The Act requires that all fishery management plans, plan
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`amendments, and implementing regulations must be consistent with ten “National
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`Standards” for fishery conservation and management. Id. § 1851(a).
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`37. National Standard 1 requires that “[c]onservation and management
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`measures shall prevent overfishing while achieving, on a continuing basis, the
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`optimum yield from each fishery . . . .” Id. § 1851(a)(1). Optimum yield in turn is
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`defined by the Act as the amount of fish that, “in the case of an overfished fishery,
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`provides for rebuilding to a level consistent with producing the maximum
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`sustainable yield in such fishery.” Id. § 1802(33)(C).
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`38. The Act defines the terms “overfishing” and “overfished” to mean “a
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`rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce
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`the maximum sustainable yield on a continuing basis.” Id. § 1802(34). Regulatory
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`guidelines clarify that “overfishing” refers to the rate of removals from a stock (i.e.,
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`the act of fishing at an unsustainable rate), whereas “overfished” refers to a stock
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`having a biomass below which it can produce maximum sustainable yield on a
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`continuing basis. See 50 C.F.R. § 600.310(e)(2)(i).
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`39. National Standard 2 requires that “[c]onservation and management
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`measures shall be based upon the best scientific information available.” 16 U.S.C.
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`§ 1851(a)(2). Other National Standards address coordination, equity, efficiency,
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`Case 1:20-cv-02415-TSC Document 1 Filed 08/28/20 Page 13 of 46
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`contingency planning, costs, fishing communities, bycatch, and safety of human life
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`at sea. Id. § 1851(a)(3)-(10).
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`40.
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`In addition to the National Standards, the Magnuson-Stevens Act
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`provides direct requirements for fishery management plans. The first and central
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`requirement is that fishery management plans must “contain the conservation and
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`management measures . . . necessary . . . to prevent overfishing and rebuild
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`overfished stocks, and to protect, restore, and promote the long-term health and
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`stability of the fishery.” Id. § 1853(a)(1)(A). Fishery management plans also must
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`“specify objective and measurable criteria for identifying when the fishery to which
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`the plan applies is overfished (with an analysis of how the criteria were determined
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`and the relationship of the criteria to the reproductive potential of stocks of fish in
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`that fishery).” Id. § 1853(a)(10).
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`41.
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` The Magnuson-Stevens Act also requires the Secretary to take specific
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`actions to rebuild overfished stocks. NMFS must identify fish stocks that are
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`overfished and notify the respective council, as well as publish an annual report
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`listing stocks with an overfished status. Id. § 1854(e)(1)-(2). Upon notification,
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`NMFS becomes subject to a mandatory duty to “end overfishing immediately in the
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`fishery and to rebuild affected stocks of fish,” which is to be achieved by “prepar[ing]
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`and implement[ing] a fishery management plan, plan amendment, or proposed
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`regulations for the fishery.” Id. § 1854(e)(3).
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`42. Rebuilding, in turn, must take place within a time period that is “as
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`short as possible,” generally not exceeding ten years. Id. § 1854(e)(4). When
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`Case 1:20-cv-02415-TSC Document 1 Filed 08/28/20 Page 14 of 46
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`rebuilding is underway, NMFS must review progress “at routine intervals that may
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`not exceed two years,” to determine whether rebuilding is progressing adequately.
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`Id. § 1854(e)(7).
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`43. The Act’s requirements for fishery management plans reflect the
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`rebuilding mandate, stating that for overfished stocks, plans must “contain
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`conservation and management measures to prevent overfishing or end overfishing
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`and rebuild the fishery.” Id. § 1853(a)(10).
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`44.
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`In 2006, Congress amended the Magnuson-Stevens Act to require all
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`fishery management plans to “establish a mechanism for specifying annual catch
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`limits . . . at a level such that overfishing does not occur in the fishery, including
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`measures to ensure accountability.” Pub. L. No. 109-479, § 104(a)(10), 120 Stat.
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`3575, 3584 (Jan. 12, 2007); 16 U.S.C. § 1853(a)(15).
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`45.
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`In regulatory guidelines promulgated under the Act, see 16 U.S.C.
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`§ 1851(b), NMFS reiterates that mechanisms for specifying annual catch limits
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`must use an “ABC control rule,” which is a defined “policy for establishing a limit or
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`target catch level that is based on the best scientific information available,” 50
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`C.F.R. § 600.310(f)(1)(iv). See also id. § 600.310(f)(2) (“The ABC control rule must
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`articulate how ABC [acceptable biological catch] will be set compared to the OFL
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`[overfishing limit] based on the scientific knowledge about the stock or stock
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`complex and taking into account scientific uncertainty.”). The resulting ABC value
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`must account for scientific uncertainty. See id. § 600.310(f)(ii). Because of their
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`essential purpose, control rules should yield more conservative catch limits as
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`Case 1:20-cv-02415-TSC Document 1 Filed 08/28/20 Page 15 of 46
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`biomass estimates, or other proxies, for a stock or stock complex decline and as
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`scientific and management uncertainty increase. 50 C.F.R. § 600.310(f)(1).
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`46. NMFS’s regulatory guidelines also elaborate on the statutory
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`requirement for fishery management plans to include objective and measurable
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`status determination criteria. Id. § 600.310(e)(2). Annual catch limits and
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`accountability measures, in turn, “must prevent overfishing” when measured
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`against the stock’s status determination criteria. Id. § 600.310(f)(4)(i). More
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`broadly, the agency states that “[t]he system of [annual catch limits] and
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`[accountability measures] designed must be effective in protecting the stock or stock
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`complex as a whole.” Id. § 600.310(f)(4)(ii).
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`The Northeast Multispecies Fishery Management Plan
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`47. The fishery management plan governing the two U.S. stocks of
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`Atlantic cod is the Northeast Multispecies Fishery Management Plan. See New
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`England Fishery Management Council: Management Plans: Northeast
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`Multispecies, https://www.nefmc.org/management-plans/northeast-multispecies.
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`48. The Northeast Multispecies Fishery Management Plan was first
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`promulgated in 1986 and it has been amended twenty-one times since its adoption.
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`See id. Plan amendments are generally integrated with environmental review
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`documentation (environmental impact statements or environmental assessments)
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`and are posted on the New England Council’s website. Id.
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`Case 1:20-cv-02415-TSC Document 1 Filed 08/28/20 Page 16 of 46
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`49. The New England Council takes certain types of actions through
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`“framework adjustments,” rather than full plan amendments. Sixty framework
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`adjustments to the Northeast Multispecies Fishery Management Plan have been
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`made by the Council, including Framework 59, the subject of this lawsuit. See id.
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`50. After the plan, plan amendments, and framework adjustments are
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`approved by NMFS, the agency promulgates implementing regulations via the
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`Federal Register. Implementing regulations for the Northeast Multispecies Fishery
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`Management Plan are codified at 50 C.F.R. Part 648, Subpart F.
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`51. The Northeast Multispecies Fishery Management Plan, its
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`amendments and framework adjustments, and the regulations in the Code of
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`Federal Regulations, together create the regulatory structure for management of
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`Atlantic cod and the other groundfish off New England.
`
`
`The Administrative Procedure Act
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`52. The APA sets forth basic requirements for federal rulemaking
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`processes, including public notice and opportunity to comment on a proposed rule
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`and required timelines for making a final rule effective. See 5 U.S.C. § 553.
`
`53. The APA grants the right of judicial review to “[a] person suffering
`
`legal wrong because of agency action, or adversely affected or aggrieved by agency
`
`action.” Id. § 702. Under the APA, a court must “hold unlawful and set aside
`
`agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or
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`otherwise not in accordance with law.” Id. § 706(2)(A).
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`
`
`16
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`Case 1:20-cv-02415-TSC Document 1 Filed 08/28/20 Page 17 of 46
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`54. An agency action is arbitrary and capricious under the APA “if the
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`
`
`
`
`agency has relied on factors which Congress has not intended it to consider, entirely
`
`failed to consider an important aspect of the problem, offered an explanation for its
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`decision that runs counter to the evidence before the agency, or is so implausible
`
`that it could not be ascribed to a difference in view or the product of agency
`
`expertise.” Motor Vehicle Mfrs. Ass’n. v. State Farm Mutual Auto. Ins. Co., 463 U.S.
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`29, 43 (1983).
`
`55. The APA also instructs courts to “hold unlawful and set aside” any
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`agency action that is taken “in excess of statutory jurisdiction, authority, or
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`limitations, or short of statutory right.” 5 U.S.C. § 706(2)(C).
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`56. The APA further states that courts shall “compel agency action
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`unlawfully withheld or unreasonably delayed.” Id. § 706(1).
`
`
`
`
`History of the Cod Fishery
`
`FACTUAL BACKGROUND
`
`57. Humans have fished for Atlantic cod for millennia. Cod are believed to
`
`have driven the expansion of European colonial settlement around the North
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`Atlantic, eventually leading to the Massachusetts Bay Colony and, subsequently,
`
`the states of New England. See, e.g., Mark Kurlansky, Cod: A Biography of a Fish
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`that Changed the World, at 19-29 (1997).
`
`58. Atlantic cod was a major driver of the regional economy in New
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`England and Eastern Canada. Early colonial economies depended heavily on cod
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`
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`17
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`Case 1:20-cv-02415-TSC Document 1 Filed 08/28/20 Page 18 of 46
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`
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`exports, with important trade routes to Europe and the Caribbean. See, e.g.,
`
`
`
`
`
`Kurlansky, supra, at 63-89.
`
`59.
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`In addition to economic value, the cod fishery has been an enduring
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`source of cultural and historical identity in New England. Atlantic cod was so
`
`important that some of the newly-independent colonies featured cod imagery on
`
`their state seals and currencies; a carved wooden cod effigy has hung in the
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`Massachusetts State House for over two centuries.
`
`60. Atlantic cod also played a key role in the marine ecosystems of the
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`North Atlantic, as a wide-ranging generalist predator. Present in tremendous
`
`numbers, cod provided a major vector for energy transfer from lower to upper
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`trophic levels in benthic ecosystems. Cf. Jason S. Link et al., Trophic Role of
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`Atlantic Cod in the Ecosystem, 9 Fish & Fisheries 1 (2008).
`
`61. The fishery for Atlantic cod off North America has been prosecuted
`
`over the centuries with a variety of fishing technologies—from simple sailing
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`vessels with baited hooks dangling over the sides, to modern steel-hulled and diesel-
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`powered fishing boats that drag large nets across the ocean and use modern
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`electronic technologies to find fish. See, e.g., W.H. Lear, History of Fisheries in the
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`Northwest Atlantic: The 500-Year Perspective, 23 J. Nw. Atl. Fish. Sci. 41, 44-63
`
`(1998).
`
`62. Annual removals of Northwest Atlantic groundfish were relatively
`
`stable for approximately three centuries, then started increasing toward the late
`
`1800s. Industrialization of the fleet in the early 20th Century led to a sharp
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`
`
`18
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`

`

`Case 1:20-cv-02415-TSC Document 1 Filed 08/28/20 Page 19 of 46
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`increase in catches, which became even steeper in the late 1950s with the advent of
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`
`
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`foreign distant-water fleets. These large factory ships were capable of catching,
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`processing, and freezing at sea tremendous amounts of fish, and they operated just
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`a few miles off the U.S. coastline. At the peak of foreign fishing in the 1960s,
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`Northwest Atlantic groundfish removals reached around 2.5 million metric tons per
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`year, much of which was Atlantic cod. See Lear, supra, at 62-67.
`
`
`Passage of the Magnuson-Stevens Act
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`63. After several years of debate and draft legislation, Congress passed the
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`Fisheries Conservation and Management Act (later renamed the Magnuson-Stevens
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`Act) in 1976. See Pub. L. No. 94-265, 90 Stat. 331 (Apr. 13, 1976).
`
`64. The law, among other things, declared the United States’ sovereignty
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`over a 200-mile offshore zone, and established management authority over all
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`fishery resources within that area. See 16 U.S.C. §§ 1811-1812. In combination
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`with this jurisdictional expansion, the law contained a regulatory structure
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`designed to push out foreign fishing vessels. See id. §§ 1821-1825.
`
`65. To manage domestic fisheries within the newly-established 200-mile
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`zone, the law established a regional regulatory structure, in which eight regional
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`fishery management councils act as the first movers for management actions, and
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`the Secretary of Commerce (in the form of NMFS) reviews, approves, and
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`implements the actions. See id. §§ 1852, 1854.
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`19
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`

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`Case 1:20-cv-02415-TSC Document 1 Filed 08/28/20 Page 20 of 46
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`66. The New England Council is one of the eight regional councils and was
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`
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`given responsibility for managing fish stocks in federal waters off Connecticut,
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`Rhode Island, Massachusetts, New Hampshire, and Maine. Id. § 1852(a)(1). This
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`management responsibility includes the two U.S. stocks of Atlantic cod at issue in
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`this matter.
`
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`Atlantic Cod Collapse
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`67. Following passage of the Magnuson-Stevens Act in 1976, domestic
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`investment in fishing fleets increased, and U.S. fishing capacity skyrocketed. The
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`domestic fleet, eager to exercise its new capacity, effectively picked up where the
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`foreign fleets left off. Fishing pressure on Atlantic cod and other groundfish stocks
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`resumed at high levels, and cod landings in New England reached all-time highs in
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`the late 1970s and early 1980s. See, e.g., Vaughn C. Anthony, The New England
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`Groundfish Fishery after 10 Years under the Magnuson Fishery Conservation and
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`Management Act, 10 N. Am. J. Fish. Mgmt. 175 (1990) (noting a doubling of fishing
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`effort between 1976 and 1983).
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`68. The first stock assessment of Atlantic cod under the Magnuson-
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`Stevens Act took place in 1977. It determined that both the Gulf of Maine and
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`Georges Bank cod stocks already were subject to overfishing. See Fredric M.
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`Serchuk, Analysis of the Georges Bank and Gulf of Maine Cod Stocks, Woods Hole
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`Lab. Ref. No. 77-24 (Dec. 1977).
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`20
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`Case 1:20-cv-02415-TSC Document 1 Filed 08/28/20 Page 21 of 46
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`69. NMFS briefly adopted an Interim Groundfish Management Plan for
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`
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`Atlantic cod and other species in 1982, which was replaced by the permanent
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`Northeast Multispecies Fishery Management Plan in 1986. See 51 Fed. Reg. 29,642
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`(Aug. 20, 1986).
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`70. Management efforts for Atlantic cod in the 1970s and 1980s were
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`ineffective in the face of a burgeoning U.S. fishing fleet, with their new electronic

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