GloucesterTimes.com, Gloucester, MA

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December 29, 2011

Tierney, Frank back fishing lawsuit appeal

Underscoring and expanding on arguments made by fishing industry plaintiffs, two congressmen and a consumer advocacy group are pressing the case that the government ignored a statutory requirement for a participants' referendum to create a limited-access groundfishery that is driving out the weak and enriching the powerful among fishing boats and businesses.

The amicus briefs of Congressmen Barney Frank and John Tierney — written and filed by Eldon C.V. Greenberg, a Washington, D.C., lawyer and former chief counsel at NOAA, the defendant agency — and briefs from Food & Water Watch, were filed Tuesday and Wednesday with the U.S. First Circuit Court of Appeals in Boston.

The Court of Appeals has been asked to vacate a federal judge's ruling last summer upholding Amendment 16, the radical reorganization of the New England groundfishery into a catch share system that functions as a commodities market, with participants allocated tradeable "shares" of a government-limited catch.

Lead plaintiffs in a alliance that stretches from Maine to North Carolina are the hub port cities of Gloucester, represented by Tierney, and New Bedford, which is represented by Frank.

The Court of Appeals is being asked to nullify the federal Amendment 16 fishing regulatory framework that includes the National Oceanic and Atmospheric Administration's controversial catch share format, or to send the package of changes back to the industry for a referendum.

Justin Kenney, spokesman for the National Oceanic and Atmospheric Administration, told the Times in an email last week that agency policy is no comment on pleadings in pending litigation.

Like the initial plaintiffs, Frank and Tierney and Food & Water Watch attacked the government for misreading or even ignoring the Magnuson-Stevens Act's mandate to balance conservation with economic output from the fisheries.

"The goal of the Magnuson-Stevens Act is not to 'protect' fishery resources from use but rather to maximize food production — to achieve the 'full utilization' of fishery resources — as long as that is done within biological limits," the brief for Frank and Tierney argues.

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