Judge extends eased regs for fishing

Reminding federal fishery regulators once again of the need for due process, U.S. District Court Judge Edward Harrington yesterday extended for two weeks his previous ruling that lifted the commercial fishing regulations that count one day at sea as two in fish-rich waters.

The action was another clear slap at the National Marine Fisheries Service, which is in a fierce legal struggle with two states and a broad-based, policy-making council of industry and state officials that advises NMFS and has broken with the agency over regulatory policy.

It also comes in the shadow of a stepped-up enforcement move by NMFS charging the Gloucester Seafood Auction with a series of violations that carry penalties of a $335,200 fine and a 120-day shutdown — actions that take away many fishermen's primary port for selling their catch.

In yesterday's ruling, the judge effectively notified NMFS that it could not pretend to have given "prudent and thorough" consideration to making or changing regulatory policy without the "integral" involvement of the New England Fishery Management Council.

The council has repeatedly and overwhelmingly opposed the increasingly constricting regulatory schemes devised by NMFS to bring about a full recovery of the fishery by 2014 as mandated by Congress.

Harrington's ruling came late in the afternoon in response to a NMFS' filing that renewed its request that the judge end his Jan. 26 suspension of the agency's regulatory scheme, Framework 42.

The judge's action underscored NMFS' growing legal isolation. Efforts to contact NMFS officials for reaction to the ruling late yesterday were unsuccessful.

Stephen Ouellette, an attorney specializing in fishery law, called Harrington's latest ruling "refreshing and insightful."

With its last comprehensive regulatory system suspended by the judge, NMFS is preparing to announce an interim rule to govern the fishery and industry for one year beginning May 1, bridging to an entirely different approach to the fishery in May 2010. That's when the current system, based on effort control — with fishermen limited in the number of days at seas they can fish and to specifically targeted areas — will give way to catch control, with hard numbers on the amount of fish caught.

The practical effect of yesterday's ruling, however, is to extend from March 27 through April 10 the period in which commercial fishermen with federal multispecies permits can work the inshore waters of the Gulf of Maine without having each day count for two.

The area the judge exempted from the 2-for-1 differential counting provision of Framework 42 is a large block of the Gulf of Maine centered off Gloucester. Boats based here, along with those from New Hampshire and Maine, depend on fishing the waters affected by the judge's brief order.

In a bit more than a page, Harrington rejected NMFS' contention that it had followed an earlier order of his and had given serious consideration to a regulatory approach, known as the "mixed stock exemption," that might afford the fishing fleet some relief from the Framework 42 approach chosen by NMFS.

The agency has argued that the mixed stock exemption, an option written into the 2006 reauthorization of Magnuson-Stevens Act, cannot apply to the intricately interrelated 19 species' fishery because its reading of Magnuson is that the imperative is recovery for all species, notwithstanding the impact on industry. The mixed-stock exemption would provide strict limits for harvesting species that are slow to recover, but would allow fishermen more access to stocks that have made strong recovery strides; NMFS regulates the entire fishery based on the status of the weakest species.

Harrington's ruling yesterday builds on two earlier rulings.

In the first, on Jan. 26, Harrington suspended Framework 42 and chastised NMFS for imposing it after giving only lip service to the mixed-stock exemption.

When NMFS' responded by suspending the mitigating provision in the framework that allowed fishermen to lease — or purchase — additional days at sea from permits held for barter, Harrington again stepped in, this time to reinstate the leasing program and suspend the two-for-one days-at-sea counting provision.

Yesterday, he wrote that the extra two weeks grace for the fishing fleet would allow the council at its April 7 to 9 meeting to review NMFS' report on why it believes the mixed use exception cannot apply to the New England fishery.

The arrangement created by Harrington clearly gives clout to the council, which is made up of gubernatorial appointees from the New England coastal states and operates independently of Gloucester-based NMFS from offices in Newburyport.

In recent months, the council has been speaking with a single voice, urging NMFS to find a balance between its protection of the fishery and the need of the industry to survive.

The proposed interim rule was opposed by 15 council members last fall. But the sole vote for it was by NMFS' regional administrator Patricia Kurkul — who, despite the 15-1 vote, then published it for comment in the Federal Register.

The interim rule would extend the differential 2-for-1 days at sea counting system throughout nearly all of the Gulf of Maine and would also bar all but hook fishing along the region's entire southern coast.

Richard Gaines can be reached at rgaines@gloucestertimes.com

Fishing Industry Stories

Search Results

Discussion

Site Map

Contact Us