GloucesterTimes.com, Gloucester, MA

July 7, 2011

Fishing advocates eye appeal of judge's ruling

By Richard Gaines
Staff Writer

In crisis mode, angry and worried, as many as 40 parties — fishing industry plaintiffs and their attorneys from North Carolina to Maine — are scheduled to participate in a conference call Friday to discuss whether to appeal a federal judge's decision upholding a radical reorganization of the groundfishery.

Although the action has been described as climaxing the final chapter in the 400-year history of traditional Atlantic groundfishing by a fleet of small owner- operated boats — and reflects what has been described as an extreme sense of deference by the judge to the National Oceanic and Atmospheric Administration — a decision to take an appeal is not considered a foregone conclusion.

"The standards of appeal are high," said New Bedford Mayor Scott Lang, a former prosecutor and leader of the city that, like Gloucester, was among the lawsuit's plaintiffs. "We'll air out the possible grounds for appeal from this tremendous injustice."

"Looking at the list of people involved in the call, it is so large as to be unwieldy," said Gloucester Mayor Carolyn Kirk. "Our best bet may be to craft legislation.

"If we can get bipartisan support," she said, "if Sen. (John) Kerry (a Democrat) is working together with Sen. (Scott) Brown (a Republican) on a legislative solution, that might be our best bet. That's my take."

On a parallel track, Lang has asked Commerce Department Inspector General Todd Zinser to open an investigation into the rule-making process that produced Amendment 16, which houses the catch share regulatory scheme being blamed for devastating small, independent fishermen and their communities. Amendment 16 and its implementation was the focus of the lawsuit.

Lang has also asked both houses of Congress to call subcommittee hearings to put witnesses under oath to illuminate what he has asserted to be improper influence on the federal government by the non-government organizations, including the Environmental Defense Fund.

Zobel refused to allow the plaintiffs to conduct discovery.

The plaintiffs, led by the hub groundfishing port cities of Gloucester and New Bedford, have 60 days from last Thursday — when U.S. District Judge Rya Zobel dealt the industry what attorney Stephen Ouellette has described as a "death knell" — to file notice of appeal.

Amendment 16 and its catch share program have accelerated the consolidation that NOAA administrator Jane Lubchenco described as her goal for the groundfishery, with permits changing hands from Pt. Judith, R.I. to Maine.

Ouellette said four groundfishing clients of his were in the process of selling out, with prices rising quickly now that the uncertainty about the future was, in the eyes of many, removed by the Zobel ruling.

Zobel ruled that, since the NOAA and its agencies — including the New England Fishery Management Council — followed the appropriate administrative process and adhered to the letter of the law, the court was powerless even in the face of a plan that brought economic hardships to fishing communities, something that the Magnuson-Stevens Act explicitly requires the government to attempt to avoid while achieving conservation ends.

"An administrative agency can do whatever they want even if it causing harm as long as they dot their 'i's and cross their 't's," said Ouellette in an email.

Pamela Lafreniere, co-counsel with Ouellette, said she has been looking closely at a section of the ruling in which Zobel seemed to be saying that the sector system which was created to allow the fishing cooperatives to work with group allocations of catch shares, while acknowledging the regimen, which would cause "a negative short-term economic effect on the (industry)," was not a "conservation measure."

"If it's not a conservation measure, and it has adverse impacts, then I don't see how it can be allowed to proceed," Lafreniere said in a telephone interview. "Under Magnuson, there can be adverse impacts in a conservation measure, but if it's a not conservation measure, why are you causing harm?"

Ouellette said he agreed.

"They (catch share sectors, or fishing cooperatives) are an economic allocation tool, which for some will ameliorate the effect of the "conservation measures" by forcing enough people out of the industry that the remaining few will have large enough allocations to survive economically, despite measures that limit landings and dramatically increase costs.

"The judge ignores the fact that the agency had other alternatives to ameliorate the economic loss such as ending chronic underfishing by letting the fleet land the 140 million pounds of quota left in the sea every year," Ouellette said.

State Rep. Ann-Margaret Ferrante, D-Gloucester, said Wednesday the ruling redirected attention from the courts to Congress.

"Undoubtedly, as stated by Judge Zobel herself in her decision, the standard of review in these types of cases calls for the judge to give extraordinary deference to the government," Ferrante wrote in an email. "Therefore, the judge has now placed our community's fate in the hands of Congress to more definitively and explicitly state its intention and vision for our fishery, industry and community.

"The time for theorizing and appealing is over. We do not have years to wait for appeals to be decided.

"In the coming months, the fate of our community will be forever decided by market forces created, inspired and unequivocally directed by Jane Lubchenco and her alliance with Wall Street influenced environmental organizations, unless our Congressional leaders decide otherwise.

"The fate of our fishery clearly lies solely within the hands of our congressional lawmakers," Ferrante wrote.

Richard Gaines can be reached at 978-283-7000, x3464, or at rgaines@gloucestertimes.com.