Fish allocations seen opening door to lawsuit

The Obama administration has rejected a challenge to the legality and fairness of the 2009 New England Fishery Management Council votes that created an unlevel playing field in the allocation of fishermen's catch shares.

The reaction to a formal complaint filed by a member of the regional council could lead to a lawsuit aimed at blocking the May 1 rollout of a radical reorganization of the groundfishery with hard catch limits, severe conservation restrictions and a new business model based on fishing cooperatives.

The dispute resurfaced Wednesday just after the administration announced it had approved a final rule, the so-called Amendment 16, which reinvents the way groundfishing is managed, organized and regulated.

The new system poses survival challenges to many fishermen who have expressed certainty that reduced cash flow from lower catch limits will render their jobs and businesses no longer viable.

In a letter, the new national director of the National Marine Fisheries Service found no legal fault in the decision of the council to employ different criteria in setting allocations within the groundfishery.

These effectively shift about 700 metric tons of cod and haddock, worth roughly $1 million, from the commercial sector to the recreational sector. Another disputed vote moved a smaller additional volume and value away from the general commercial sector to a small commercial cooperative based in Chatham on Cape Cod.

The letter from NMFS director Eric Schwaab to David Goethel — a member of the New England Council who voted against the unlevel playing field and filed a formal objection last August, weeks after the disputed votes — arrived within hours of the announcement by Schwaab that the new management system, more than three years in the making, had been formally and finally approved.

It introduces catch shares, hard catch limits, and tight allocations in aggressive conservation restrictions beginning May 1, unless it is short-circuited by legal action.

A court challenge to the decision by Goethel and the industry is considered likely.

"Now, we have a final rule and we have something to shoot at," said Goethel in a telephone interview with the Times.

The Gloucester-based Northeast Seafood Coalition, like Goethel, also objected to the "inequity" of the allocation.

Jackie Odell, executive director of the coalition, the region's largest trade organization, said yesterday the board has "not yet met to discuss legal options."

The coalition bitterly protested the constricted catch limits and warned that the entire experiment in catch shares used in the fishing cooperatives known as "sectors" would fail if the boats were not allowed more fish to catch.

A longtime commercial fisherman in New Hampshire, Goethel bemoaned the council's decisions to use different criteria to determine catch allocations or shares that favored alleged special interests over the general body of commercial fishermen.

"I fought my entire life for the survival of the community-based fishing industry," he said, "and this (Amendment 16) destroys it."

In his June 27, 2009, letter to Secretary of Commerce Gary Locke, Goethel argued that the Magnuson-Stevens Act "clearly and repeatedly established that making fair and equitable allocations among various user groups is a fundamental priority of U.S. fishery management policy.

"It is also clear," Goethel continued, "they anticipated that different sectors of the fishery might try to use the council political process to secure unfair allocations that could be highly disruptive. ..."

Goethel pointed to National Standard 4, one of 10 standards within the act that lay out the values intended to guide policy.

It states that, in assigning fishing privileges, allocations "shall be fair and equitable to all fishermen ... and carried out in such manner that no particular individual, corporation or other entity acquires an excessive share of such privileges."

In violation of these standards, Goethel wrote, the council gave in to "special interest groups clamoring for more of their fair share of the allocation."

The council decided to use catch histories from 1996 to 2006 for the mass of commercial boats, but voted to use a five-year history, based on more fruitful times, to give the recreational sector and the Cape Cod cooperative a larger share of the whole than a universally applied measure would have produced.

"Left in its present form, I believe this allocation scheme will almost certainly result in a lawsuit that could hold up implementation of Amendment 16," he wrote.

Schwaab disagreed completely. He wrote that, in his view, the Magnuson-Stevens Act allowed for "the possibility that one group will be advantaged to the detriment of another."

As a result, what Schwaab said he saw in Magnuson was the requirement that the "allocation be justified in terms of the objectives of the Fishery Management Plan (Amendment 16 in this case) in order to ensure that the disadvantaged user groups or individuals (not) suffer without cause."

He added that the council chose to use different baseline histories because it complies with Standard 2, which makes requires use of best available data.

The New England fishery council is made up of state government officials and appointees selected by the U.S. Secretary of Commerce from short lists of gubernatorial nominees.

The votes by the New England council last summer were made during a marathon session that culminated years of work to create Amendment 16, which introduces catch share fishing in a partial form and required the catch share option to be conducted only by voluntary fishing cooperatives known as sectors.

The two special interests that won overwhelming votes, the recreational fishing businesses and the Cape Cod Commercial Hook Fishermen's Association, were informally represented on the council, though in a minority compared to commercial fishing interests.

The council chairman, John Pappalardo, is policy director for the Cape Cod association, which began as a group that fished with hooks and asserted that system was less wasteful and environmentally wiser, but in recent years, has largely given up that technology for gillnetting.

The vice chairman, Rip Cunningham of Dover, N.H., is the retired publisher and editor-in-chief of Salt Water Sportsman magazine, the world's best-selling magazine on recreational fishing.

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