GloucesterTimes.com, Gloucester, MA

December 29, 2011

Tierney, Frank back fishing lawsuit appeal

By Richard Gaines
Staff Writer

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.

They also noted that the new system has yielded its signature results, with a documented shifting of equity — creating a consolidated industry that needs and uses fewer boats, crew members, shoreside businesses and is therefore killing industry jobs.

Legal tag-team match

The challenge will revive the legal tag-team match pitting the plaintiffs and their allies against the Obama administration and the Conservation Law Foundation, on behalf of an alliance of environmental nonprofit corporations and foundation backers — including the Walton Foundation, founded by the heirs to Wal-Mart.

Foundations have poured hundreds of millions into environmental groups advocating catch shares, marine protected areas and other means of constraining fishing.

President Obama's choice to head NOAA, Jane Lubchenco, came to office as an officer of Environmental Defense Fund, which has been lead advocate for both the catch share fishery management system and the so-called "cap and trade" approach to tackling air pollution.

NOAA's own socio-economic report on the performance of the fishery in the first year of the catch share regimen was a basis of the governor's disaster request. In 2007, the highest earning 20 percent of boats accounted for 67 percent of revenues, but in the first year of catch shares, the same percentage of boats upped their control to 80 percent.

Simultaneously, the industry continued to shed jobs.

Frank was "instrumental in including language in (the 2006 reauthorization of Magnuson) requiring a referendum before any individual fishing quota program could be adopted in New England," Greenberg wrote for the congressmen.

"He did so because (catch share) programs, which allow the transfer of quota from one permit holder to another, tend to create consolidation through the transfer of effort from one or several vessels, thus transforming the structure of the industry and resulting in a significant loss of jobs."

Argument with judge

Food & Water Watch, which has been reporting on the global experiments in fisheries commodification, argued that U.S. District Court Judge Rya Zobel, who rejected the plaintiffs' case last June, wrongly granted the government deference it had not earned in its declaration that what had been created in New England differed sufficiently from what Congress had in mind when it required a participants' referendum.

"The National Marine Fisheries Service's interpretation was not the product of thorough consideration because there was no meaningful deliberation between opposing viewpoints," the consumer group wrote. "The decision-making process also includes none of the usual indicia of valid reasoning ..."

The original plaintiffs' brief hammers at the government's determination to convert the fishery into a de facto catch share system while playing with subtleties in the law.

The brief, on behalf of Gloucester, New Bedford, and others, notes that the government paid lip service at best to a Magnuson requirement of bona fide social and economic studies of the impacts of fishery management plans before they are approved.

"Although there is 'no mechanical way to say when enough is enough," the plaintiffs stated, "there can be no dispute that in this case, defendants did not do enough."

The argument then shifts to 43 pages in an Environmental Impact Statement cited by the government in a footnote as evidence that it followed Magnuson, noting that much of it was a cut-and-paste job, taken from the shelf.

Sixteen of the 43 pages are copied "almost verbatim" from a 2003 environmental impact statement prepared for the previous amendment to the groundfish management plan, known as Amendment 13, the brief indicates.

"Indeed, in these 16 pages," the plaintiffs' brief notes, "defendants mistakenly refer to Amendment 16 as Amendment 13."

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