Fisheries from the Bench or Business as Usual? The National Marine Fisheries Service and Federal Courts since 2000
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Around the turn of the 21st century, the National Marine Fisheries Service (NMFS) found itself embroiled in an unprecedented amount of litigation over its management of the nation's fisheries. Not only was NMFS finding itself in court more often, NMFS was losing in court more often than it was winning; the losses were often over procedural issues rather than substantive issues; and some people went so far as to say that the courts had taken over fisheries management from the agency. Fourteen years and one reauthorization of the Magnuson Stevens Act Fisheries Conservation and Management Act later, fisheries management in the U.S. is broadly considered successful. This paper assesses Magnuson Stevens Act litigation since 2000 using an empirical legal research method. The results of this analysis suggest that substantial revisions to the law coincide with subsequent spikes in litigation; that NMFS responded to internal procedural weaknesses with better administrative practices over time; and that NMFS improved its win-loss record over time. These findings collectively support the notion that litigation has played a role in shaping the MSA as we know it, and that substantial revisions to the law carry with them the risk of a new cycle of litigation.
- Marine affairs