GloucesterTimes.com, Gloucester, MA

December 22, 2011

Fish appeal claims feds misled

By Richard Gaines
Staff Writer

An alliance of fishing interests led by the port cities of Gloucester and New Bedford filed briefs Wednesday arguing that the First U.S. District Court of Appeals should overturn a lower court ruling in June that upheld a radical reorganization of New England's fishing industry.

According to the appeal, the government intentionally circumvented requirements of the Magnuson-Stevens Act and camouflaged the changes in order to transform the groundfishery in a commodities market, trading in catch shares, the appellants argued.

Since the start of the new regimen in May 2010, Amendment 16 to the Magnuson-Stevens Act has concentrated control of the industry in a small number of hands while "disenfranchising" a larger number of smaller businesses, according to multiple studies.

Based on the socio-economic studies, Gov. Deval Patrick, along with U.S. Sen. John Kerry and Congressmen John Tierney and Barney Frank — all Democrats — as well as Republican Sen. Scott Brown have petitioned Commerce Secretary John Bryson to acknowledge that the policies have produced an economic disaster, job loss, enriching the industry's rich at the expense or the rest.

The appellants — a cross-section of fishing businesses and shoreside support services stretching from Maine to North Carolina — asked the Court of Appeals to compel Bryson to vacate Amendment 16, conduct required research into the impact of the changes and submit the program to an industry referendum. That is a prerequisite for so-called "limited access privilege" programs written into the 2006 reauthorization of Magnuson, the landmark commitment to sustainable fisheries.

The government successfully argued before U.S. District Court Judge Rya Zobel last spring that no referendum was required for the change because the system that had been created technically was not a limited access program.

"Thanks to word games and circular arguments," the plaintiffs wrote, the Amendment 16 management plans have all the attributes of limited-access programs, but none of their protections.

"The agency's wish to avoid a referendum and ensure the rapid implementation of a catch share program ... is no excuse for subverting the clearly stated intent of Congress," the plaintiffs wrote.

They also alleged that the government showed no real interest in determining the socio-economic impact of the policy.

"Since defendants did not gather and assess the requisite social data, they could not have properly evaluated the importance of fishing resources to particular fishing communities," one plaintiff's brief asserted. "This in turn precluded them from devising any measures to 'provide for the sustained participation of such communities' or to 'minimize economic impacts on such communities.

"Had they implemented such measures in conjunction with Amendment 16, New England's fishing communities and their families might not be suffering to the extent that they are today."

The effort to stop the catch share based regimen is a test for the Obama administration's fisheries policy under NOAA administrator Jane Lubchenco.

Her spokesman Justin Kenney declined comment on the filing of the appeal briefs Wednesday, saying, "We generally do not comment on pleadings in pending litigation."

Although she failed to mention catch shares at her confirmation hearing before the Senate Commerce Committee, one of Lubchenco's first acts as NOAA administrator was to push the New England Regional Fishery Management Council to sign off on the catch share regimen for New England's $70 million groundfishery.

The council did so — without including any accumulation caps or community protections.

Opposition to Amendment 16, however, is by no means universal.

In November, 109 New England fishermen, including about two dozen from Gloucester, wrote an open letter to the congressional delegation that somewhat cryptically appealed for stability.

Gloucester Mayor Carolyn Kirk told the Times the letter encouraged her to reconsider the city's co-sponsorship of the suit, which she did only to remain steadfast in support.

"The district court should be reversed," Kirk's city solicitor, Suzanne Egan, said Wednesday in an email to the Times. "Any other outcome lets traditional fishing communities go the way of the family farm, by administrative fiat."

On the other side, "turning the clock back on Amendment 16 would be an unmitigated disaster," said Peter Shelley, vice president of the Conservation Law Foundation, which intervened on the side of the government in the lawsuit. "As far as CLF is concerned, New England's fishermen lose if these appeals succeed — which is highly unlikely — and win if these appeals fail. CLF is going to do everything in our power to make sure these appeals fail."

Briefs were filed by lawyers for three sets of plaintiffs.

The primary brief, written in New Bedford on behalf of Mayor Scott Lang was by a team that included Jack Farrell Folan, Julie Peterson, Mikaela A. McDermott and Pamela Lafreniere. A second brief was filed by Patrick Flanigan of Swarthmore, Pa.

"Amendment 16," wrote Gloucester attorney Stephen Ouellette, "allows and makes inevitable, unlimited consolidation and the transition of a small business fishery to a new, large corporate structure. In doing so, a number of smaller vessels will be replaced by fewer, larger, more efficient ones employing fewer people.

"Coastal communities dependent on commercial fishing for their economies and from which their culture is derived" Ouellette wrote, "will lose connection to the fisheries which in many cases was the basis for their founding centuries ago."

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

The Plaintiffs

Plaintiffs in the appeal filed Wednesday with the First Circuit Court of Appeals challenging the federal government's creation of Amendment 16 include the cities of Gloucester and New Bedford, several fishing industry organizations, and a number of individual fishermen and business owners.

Those plaintiffs are:

City of Gloucester.

City of New Bedford.

James Lovgren.

New Hampshire Commercial Fishermen's Association.

Paul Theriault.

Chuck Weimer.

David Aripotch.

Tempest Fisheries, Ltd.

Grace Fishing Inc.

Richard Grachek.

Roanoke Fish Co. Inc.

American Alliance of Fishermen and their Communities.

New Bedford Fish Lumpers Pension Plan.

Atlantic Coast Seafood Inc.

Lydia and Mya Inc.

John & Nicholas Inc.

Bergies Seafood Inc.

Nordic Inc.

Lyman Fisheries Inc.

The Hope II Inc.

Reidars Manufacturing Inc.

Diamond Dog Fishing Corp.

Atlantic Enterprises, LLC.

Wanchese Fish Co.

Easter Joy Inc.

Local 1749 International Longshoremen's Association, AFL-CIO.