GloucesterTimes.com, Gloucester, MA

December 20, 2011

City stands by fishing suit appeal

By Richard Gaines
Staff Writer

The formal appeals from fishing industry plaintiffs seeking to overturn a federal judge's June ruling upholding the framework for the controversial catch share management system are due and expected Wednesday in the U.S. First Circuit Court of Appeals.

The hub port cities of Gloucester and New Bedford remain as lead plaintiffs, which also include boat- and shore-based businesses ranging along the East Coast from Maine to North Carolina.

In response to questions by the Times, Gloucester Mayor Carolyn Kirk said Monday she recently considered dropping the city from the coalition appealing U.S. District Judge Rya Zobel's July dismissal of the lawsuit targeting the regulatory framework known as Amendment 16.

Kirk said she was moved to reconsider the city's involvement in the suit by a letter signed by 109 commercial fishermen, including about two dozen whose boats are based in Gloucester, that was emailed last month to members of the congressional delegation and the New England Fishery Management Council.

Advocating management stability, the letter writers warned that "a few voices calling for the overturn of the entire sector system have been amplified in the media, and we understand that our elected officials are trying to respond to their constituent concerns."

The letter went on to note that, while the Amendment 16 system has brought hardship for "some," it was unavoidable.

"The letter signed by 109 fisherman asking for management stability, profitability and flexibility for the fishery caused the administration to question whether or not we are acting in the city's best interests in pursuing the lawsuit," Kirk said in an email Monday.

"First and foremost," she said, "our job is to advance the best interests of the city, and we have concluded that at this time, it continues to be in the city's best interests to remain involved and have a seat at the table on the important issue of fisheries management."

A plurality of the signers of the letters to Congress listed Cape Cod addresses, and U.S. Sen. John Kerry's office identified Tom Dempsey, policy director of the Cape Cod Commercial Hook Fishermen's Association, as having sent it to the senator's office. Dempsey is also a member of the New England Fishery Management Council.

The Hook Fishermen's Association pioneered the catch share and sector cooperative approach, and is in a financial and political alliance with the Environmental Defense Fund, other so-called "green" nonprofit organizations and grant-generating foundations, to help facilitate the catch share system that has become the Obama administration's fisheries policy.

In her written summer ruling, Zobel gave generally short shrift to virtually all arguments against the legality or constitutionality of Amendment 16 except one — the allegation that the government worked its way cleverly to bring about in the groundfishery beginning in May 2010 without affording industry participants a referendum the 2006 reauthorization of the Magnuson-Stevens Act requires. Acknowledging it was a "close call," Zobel found that the way the New England fishery's model is structured does not constitute a limited-access catch share fishery, and therefore does not require the a stakeholders' referendum.

NOAA argued successfully that Amendment 16 to the Magnuson-Stevens Act legally avoided the referendum requirement for a true limited access system by allocating quota not directly to fishermen, but on their behalf to the fishermen's sector of choice.

In addition, fishermen were given the option to remain outside the sector system by choosing to continue as independent operators, although the fishing opportunities afforded them by the National Oceanic and Atmosopheric Administration were paltry.

Since the judge's ruling last summer, a number of socioeconomic studies have documented a dramatic shift of revenues to fewer boats and a loss of fishing jobs and active independent, family-owned boats — just as the initial lawsuit had projected. Among the allegations in the district court challenge to Amendment 16 was the contention that the government had misinterpreted the Magnuson-Stevens Act.

Congressmen John Tierney and Barney Frank wrote in an amicus brief for the case that "the (New England) council and the National Marine Fisheries Service lost their way and failed to achieve balanced regulation ... constraining the operation of the groundfish fishery at the unnecessary expense of participants and dependent communities."

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