A three-judge panel of the First U.S. Circuit Court of Appeals in Boston is due to hear arguments today in a suit alleging the federal government’s re-engineering of the Northeast groundfishery into a quasi commodity market trading in catch shares beginning in 2010 was illegally introduced by denying industry the referendum promised by federal law.
Led by the cities of New Bedford and Gloucester — and including industry groups and fishermen as far away as North Carolina — the plaintiffs filed suit immediately after the catch share system took effect, arguing the approach, pushed by NOAA Administrator Jane Lubchenco, met the statutory definition of a limited-access program with individual fishing quota.
The 2006 re-authorization of the Magnuson-Stevens Act included a provision insuring that industries not be drawn unwillingly into so-called LAPPS or IFQs, which use formulas to distribute catching rights — or catch shares — among fishermen and fishing companies who trade, lease, buy and sell among themselves while the dispossessed or marginalized in the allocation of the fishery disappear.
NOAA insists in its response that what it created for New England was a system that allowed fishermen to continue working the old way, if they wished, obviating the need for referendum.
Magnuson-Stevens requires a two-thirds majority vote of permit-holders within the existing fishery to unlock the gears that can transform traditional fisheries into catch share formats.
The groundfishery had most recently been governed by a system of effort controls, that limited fishermen’s days at sea, but gave all permit holders equal access to the resource, a mix of 20 in- and off-shore stocks.
But in June 2011, U.S. District Judge Rya Zobel granted Lubchenco and the government summary judgment, sweeping aside a complaint of many facets, including the argument that fishermen were owed a referendum without which their statutory and constitutional rights were violated.
Zobel conceded the government’s case for skipping the referendum was iffy.
“While it is a close call,” she wrote, “I do not find the agency’s conclusion that Amendment 16 implements neither a LAPP nor an ITQ, reached as part of the rule-making process, is manifestly contrary to statute.”
Today’s arguments – typically 20 minutes for each side – will tumble out before the panel of Chief Judge Sandra L. Lynch and Judges Juan R. Torruella and Michael Boudin against the backdrop frenzied action behind closed congressional door over terms of a proposed $200 million bailout and buyout request for the Northeast groundfishery that is rapidly consolidating and facing a wall of 2013 catch restrictions that all agree will drive more boats off the water.
The judges will take the matter under advisement and issue a finding at a later, typically unscheduled date.
U.S. Sen. John Kerry, meanwhile, instigated the bailout/buyout effort circulating a draft letter to New England senators and members of Congress with coastal districts with fishing ports.
He said his effort anticipates an imminent concession from NOAA that in the three years since the advent of the catch share program, the groundfishery has collapsed under ever stricter landing limits and has met the statutory standard for a fishery failure.
The Magnsuon Act “authorized” the secretary of commerce to “make sums available” to relieve “disasters.”
Massachusetts Gov. Deval Patrick led the call for a disaster declaration with the filing last November of two research studies – one done jointly with NOAA – that showed the industry consolidating rapidly with the number of active vessels dropping by 24 percent from 2009 to 2010. Of the boats still fishing, 45 percent failed to break even, statistics also showed.
The other report, a case study of a small fishing cooperative of boats from ports along Massachusetts Bay, found the day boats in financial free fall — with landings off by 49 percent in the first year of catch share fishing.
Congressmen John Tierney and Barney Frank filed briefs in support of the case against Amendment 16, which contains the catch share system’s framework.
Lubchenco has defined consolidation as a goal of catch shares. And the plaintiffs’ brief to the Court of Appeals argued the catch share system in dispute was “engineered to promote the consolidation” of the industry.
“Since Amendment 16’s implementation consolidation has accelerated, making it impossible for small vessels to survive and decimating traditional fishing communities,” it reads. “The District Court should be reversed. Any other outcome lets traditional fishing communities go the way of the American family farm by administrative fiat.”
Mayors Carolyn Kirk of Gloucester and Jon Mitchell of New Bedford are expected to be observers in the Moakley Federal Courthouse. The fisheries case was fourth on the docket. First case hearing was set for 9:30 a.m.
Gloucester and New Bedford will be represented in the oral arguments by experienced advocates Attorney James F. Kavanaugh, Jr. and Attorney Eldon Greenberg.
Kavanaugh is from New Bedford and an experienced appellate lawyer, Greenberg is a former chief counsel at NOAA and the author of the Tierney-Frank amicus brief.
Also scheduled to speak are Gloucester fisheries attorney Stephen Ouellette and Patrick Flanagan of suburban Pennsylvania. Arguing the other side are Joan Pepin from the Justice Department’s litigation section, and Peter Shelley for the Conservation Law Foundation.
Richard Gaines can be reached at 9780-283-7000, x3464, or at email@example.com.