Gloucester Mayor Carolyn Kirk and New Bedford Mayor Scott Lang have filed notice of their intent to appeal U.S. District Court Judge Rya Zobel's June 30 ruling rejecting challenges to the Department of Commerce's "Amendment 16" fisheries regulatory framework and its controversial "catch shares" management system imposed for New England in May 2010.
The mayor and their cities are among 30 plaintiffs from the fishing community who are challenging Amendment 16, claiming the implementation of the current system violated the Magnuson-Stevens Act.
On appeal, the plaintiffs will continue to argue that, in drafting and implementing Amendment 16, NOAA improperly created a system that was — in all but name — a Limited Access Privilege permit system, but that ignored the Magnuson-Stevens Act's requirement of a referendum before the enactment of a quota system, according to SavingSeafood.Com, a leading online fisheries news service.
"We all know the saying 'a rose by any other name would smell as sweet' from Shakespeare. That's what NOAA and the Council did," said Kirk. "They built a system that would have triggered a referendum if they had called it what it is. But the Council knew they couldn't win a referendum. So they renamed it.
"Then the crafty NOAA lawyers wrote an interpretation of the law that tiptoed around the clear meaning of the Amendment Congressman Frank inserted requiring a referendum," she added. "That's how we ended up with this system, but this system does not smell like roses."
In her June 30 ruling, Judge Zobel rejected the plaintiffs' challenge based n large part on the premise that the New England version of "catch shares" — pushed through in 2009 by the New England Fishery Management Council — did not meet the definition that would force a referendum of fishery participants.
The cities, however, argue that the Amendment 16 system not only violates both the letter and the intent of the law, but also has led to great economic hardship among the fishing communities of New England, while Magnuson requires assessment and consideration of the impact of regulation on fishing communities.
In addition, Amendment 16 allowed certain fishermen on Cape Cod in Massachusetts and in Maine to have their catch histories calculated using a different time frame than all other fishermen. The cities and the private sector plaintiffs argue that this unequal allocation was inherently unfair.
"It is not enough for NOAA leadership to hold 'listening sessions' and attend meetings where they pretend to listen — but then go back to Washington and take actions that make it clear they listen more intently to environmental groups than fishing groups," said New Bedford Mayor Lang.
Many fishermen expressed the view that their voices were not heard during the Council rulemaking process, not only because the council put the catch shares regimen in place without a referendum, but also because council meetings are often held at times and locations that can be costly and difficult to reach.
"NOAA does not exist to create six-figure jobs for bureaucrats who impose the will of environmental (lobbyists) on the taxpaying working families," Lang continued. "It exists to protect our public resources, and to use good science to establish rules that balance the preservation of the fishing resources with the needs of citizens and communities."
The economic principles of catch shares, which encourage the buying, selling or trading of fishermen's "shares" of an assigned catch for each fish stock, are the stated national policy of the National Oceanic and Atmospheric Administration under chief administrator Jane Lubchenco, but have been pushed primarily by the nonprofit giant Environmental Defense Fund, where Lubchenco served as a board officer prior to being picked by President Obama to lead NOAA.
Mounting the legal challenge to the Amendment poses financial difficulties, as the cities did not and will not use municipal tax dollars in their effort to aid the fishing industry, the mayors said. The cities and other plaintiffs are, however, raising private funds for their appeal.
The appeal is not the only avenue the mayors are pursuing to seek redress and compensation for fishermen hurt by NOAA; they are also supporting bills filed by their representatives in Congress.
Massachusetts Sens. John Kerry and Scott Brown and Congressman Barney Frank, whose district includes New Bedford, have all called for an investigation of rulemaking by the Commerce Department Inspector General, while Brown is also seeking a Government Accountability Office inquiry.
In addition, state Attorney General Martha Coakley added her support Wednesday to measures filed by Frank and Kerry that call for reimbursing legal costs paid by fishermen and related businesses, including the Gloucester Seafood Display Auction, in challenging cases brought by NOAA enforcement that were deemed wrongful and excessive by a Commerce Inspector General's findings and the findings of a special judicial master who followed up on the IG's report.
Reports from the online news service SavingSeafood.com are included in this story.