, Gloucester, MA

December 26, 2010

Enviro group sues NOAA from opposite angle

By Richard Gaines
Staff Writer

The environmental advocacy group Oceana has urged the federal courts to force the National Oceanic and Atmospheric Administration to plug what the organization contends are gaping holes in the groundfish management regimen that includes the "catch shares" format now being used in New England.

But, unlike legal challenges filed by the cities of Gloucester, New Bedford and other fishing interests, Oceana is charging the NOAA system is too lax, allowing bycatch to go unrecorded and overfishing unpenalized.

Bycatch, a byproduct of commercial fishing in a mixed stock system such as the groundfishery of the Northwest Atlantic, represents fish accidentally brought up by fishermen targeting another species, and is one of Oceana's hot button issues; another is trawling.

In a complaint filed with the U.S. District Court in Washington, D.C., Oceana alleges that NOAA has failed to meet the requirements of the Magnuson-Stevens Act's 2006 reauthorization which, for the first time, required hard catch limits and "accountability measures" when limits are exceeded.

The complaint was filed soon after the NOAA and its New England Fishery Management Council completed work on Amendment 16, the polarizing management scheme that has merged the catch share system with tight catch limits.

Under the new system, which began May 1, fishermen are allocated "shares" of a total allowable catch for each stock, but are encouraged to buy, sell of trade their shares among themselves or with larger corporations or outside investment interests.

The system has a track record of shifting economic clout into the most powerful hands, while driving out many of the smaller boat businesses. And that system, coupled with many catch limits set well below last year's landings, triggered calls for the Obama administration to acknowledge the crisis and provide additional fish to catch as a form of relief.

Two industry suits unrelated to the Oceana suit, have challenged the government's motives in approving Amendment 16, arguing the system was designed to provide windfalls for the biggest businesses, while converting the fishery into a commodities market that benefits favored and politically influential groups. One of those lawsuits is the one that includes Gloucester and New Bedford as plaintiffs and challenges the legality and constitutionality of Amendment 16

Oceana has remained outside the fight over catch shares and focused on what Dave Allison, its senior campaign director, described as the essential need to "count, cap and control" harvesting of still recovering stocks.

Oceana's complaint contends, "the flawed management plan fails to establish a bycatch monitoring system adequate to track catch for the purpose of complying with catch limits during the fishing season, and fails to impose accountability measures on certain fishing vessels ... so that fishing enterprises have no incentive to stay within the catch limits set for her stocks."

The suit alleges that the bycatch reporting methodology was "not designed for use in a system with enforceable catch limits and accountability measures."

Oceana's complaint focuses on the problems with bycatch of yellowtail flounder in the scallop fishery; the flatfish and the scallops live together, so fishery management plans for scallop assume some degree of bycatch.

The suit notes that the three separate stocks of yellowtail are "seriously depleted" with none of the three — Georges Bank, Southern New England/Massachusetts and Cape Cod/Gulf of Maine — showing a biomass greater than 25 percent of what government science believes is needed to achieve "maximum sustainable yield."

Industry backers have countered that the maximum sustainable yield biomass is unknowable. But Oceana then contends that Amendment 16 fails to even attempt achieving the required control of overfishing by deferring the creation of "accountability measures" for yellowtail flounder bycatch in the scallop fishery "until 2011 and possibly later."

The suit was assigned to Judge Henry H. Kennedy Jr. in U.S. District Court in Washington, D.C. A government motion to shift the case to Boston was opposed by Oceana and rejected by the judge.

The two suits from the industry side have been consolidated in the court of Boston U.S. District Judge Rya Zobel, and are scheduled for a hearing in March.

Oceana's celebrity face — on its Web site — is that of the actor Ted Danson, who is a director of the group, along with fellow actor/director Sam Waterston, The organization has been around for less than 10 years, and according to the Form 990 public filing that all 501 (c) 3 non-profits must submit and make public, had assets and liabilities of $23 million in 2008, the most recent year for which its financial information is available.

Oceana was gained visibility via its association and co-sponsorship of the documentary film, "The End of the Line." The film conveys the challenge of sustaining fisheries in apocalyptic terms, with extensive fish blood and slaughter and a dark perspective on commercial interests. Much of the focus was outside the U.S., which has been a leader in effective fisheries management for many years.

"We looked at issues the other enviros weren't focused on," said Allison. "Bycatch and habitat damage are not very sexy but are essential for longterm sustainability."

Although originally launched with money from the Pew Charitable Trusts among other non-profit funders, including the Rockefeller Brothers Fund, Allison said Oceana, which has 24,000 members around the world and 6,000 in the states along the Atlantic coast, no longer receives Pew financial support.

"It's good to become less dependent," Allison said.

Oceana also objected publically last fall to the business practices of the Cape Cod Commercial Hook Fishermen's Association, a small group that argued against trawling, yet in a transactions report on the start of the Amendment 16 regimen based on commodity market principles, was shown to have been leasing quota to big trawlers, largely based in Maine.

Richard Gaines can be reached at 978-283-7000, x3464, or at