The federal government has filed its answer to arguments by the cities of Gloucester and New Bedford and an industry coalition that the catch share regimen governing the groundfishery for nearly two years now was adopted illegally, intentionally circumvented congressional intent, and is now operating as planned to steer control of fishing quota into a small number of hands.
The "word games," "twist of meaning" and manufactured "ambiguity" had the effect, the city and other plaintiffs contend, of denying fishermen a referendum vote to approve the re-engineering of the nation's oldest continuous industry, instead fitting it into the global commodities market by NOAA fisheries council action and fiat.
The introduction of the catch share system to the groundfishery has engendered deep anger in some circles and triggered a resistance along the entire Atlantic coast to Obama administration fisheries policies that sparked a national rally in February 2010, with another scheduled for the U.S. Capitol on March 21.
The legal dispute, which traces to 2009 when Amendment 16, the catch share regimen, was finalized, is before the First Circuit Court of Appeals in Boston after the government won a preliminary victory before U.S. District Court Rya Zobel last June.
Zobel concluded that deference was due the administration of congressional mandates, and that this administration had dotted its i's and crossed its t's.
The plaintiffs' appeal package was filed in December, and they will have 15 days to file a response to the government argument that the new system had unique features that allowed its introduction without industry's voted support by two-thirds majority.
The three-judge panel that will hear oral arguments and render a decision has not been selected from the eight judges who make up the First Circuit, which serves Massachusetts, New Hampshire, Rhode Island, Maine and Puerto Rico.
The decision to pursue the case — which could overturn the evolving economic system for the groundfishery — is far from universally popular.
Lead plaintiffs, Gloucester Mayor Carolyn Kirk and former New Bedford Mayor Scott Lang, have reported being lobbied by fishing interests thriving under the new system to abandon the challenge and allow the unregulated trading system continue to continue developing without caps on equity accumulation or protection of fleet diversity.
The government, meanwhile, argues in a brief filed Wednesday by Justice Department lawyer Joan M. Pepin that the New England system that offered catch share fishing to members of nonprofit business cooperatives known as sectors was sufficiently different from the classical catch share models to obviate the need for a two-thirds referendum vote.
Congress has required such unequivocal support by fishermen before the government can impose limited access privilege programs or individual fishing quota programs.
The New England program, now including 17 sectors whose members account for about 98 percent of the groundfish landed in the region, was modeled on two small sectors created in 2003 on Cape Cod.
The government brief, which echoes the arguments that won over Judge Zobel last summer, contends that the growth of the catch share system that exists today traces in an unbroken line to the small sectors set up on Cape Cod, and that Congress was "explicit" that setting up sectors did not require a referendum.
The government brief also contends the sectors "are voluntary, temporary contractual organizations of individual permit-holding fishermen," who opted and can opt out at any time into the so-called common pool, to fish at intentional disadvantages to the volunteers for catch share sector fishing.
Zobel, which summarily dispensed with all other arguments in the combined industry cases she heard, described the decision on the referendum as "a close call but concluded that "Amendment 16 implements neither a LAPP nor an ITQ ... manifestly contrary to statute."
In his brief for the plaintiffs, New Bedford attorney John F. Folan noted the historic "small boat fishery" in New England and said that the government's wordsmithing could not hide the fact that the sector system was a catch share system that met congressional standards for a referendum.
"Congress was concerned," the plaintiffs' attorney wrote, "about the potential adverse effects of catch share type programs, such as excessive accumulation and industry consolidation, fairness in allocating privileges, loss of employment, windfall profits, monopolization, ownership of the nation's fisheries by foreign interests and loss of access to the fishery by small owner-operated boats and fishing communities,"
The Northeast Seafood Coalition, which has sponsored 12 of the 17 sectors after losing battles against the catch share sector approach, has kept out of the federal lawsuit and has announced its opposition to future efforts to institute controls, while echoing the government's argument that the groundfishery should not be subject to LAPP and ITQ requirements.
Richard Gaines can be reached at 978-283-7000, x3464, or at firstname.lastname@example.org.