GloucesterTimes.com, Gloucester, MA

January 3, 2012

Judge tosses enviro group's claim on fishing limits

By Richard Gaines
Staff Writer

A federal judge has issued a mixed ruling in a suit brought by the environmental nonprofit group Oceana challenging the adequacy of the government's response in the New England groundfishery to requirements written into the Magnuson-Stevens Act in 2006 for annual catch limits and accountability measures.

Washington, D.C., District Judge James E. Boesberg last week dismissed Oceana's claims that Amendment 16 — the regulatory framework that includes the catch share management system blamed by many for the loss of jobs in the fishery over the last 19 months — failed to establish "an adequate system" for monitoring compliance with catch limits and did not take into account the environmental impacts of the management regimen.

The organization's suit was partially based on the argument that NOAA's National Marine Fisheries Service did not have a handle on bycatch — fish that are unintentionally scooped up in nets of fishermen who are targeting other species.

At the same time, Boesberg agreed with Oceana's claim that Amendment 16 failed to establish viable "accountability measures" or penalties for overfishing five of the stocks in the 20 in the groundfishery.

He directed the National Marine Fisheries Service and the New England Fishery Management Council to develop accountability measures — penalties for exceeding catch limits — on the five stocks cited by Oceana: Atlantic halibut, ocean pout, windowpane flounder, Southern New England winter flounder and Atlantic wolf fish.

"Given the nature of this deficiency," the judge concluded Dec. 20, "the court perceives no reason why any part of Amendment 16 should be vacated."

The case pivoted on Oceana's argument on the legal need for greater at sea monitoring of commercial fishing.

The federal government has underwritten the monitoring program which has put monitors on about one third of the trips since Amendment 16 went into effect in May 2010.

The government has announced plans to continue the subsidy through the 2012 fishing year that begins May 1.

The monitoring program is linked to the provisions added to Magnuson in 2006 that require hard catch limits on all overfished species along with accountability measures.

The suit does not bear on a separate industry-instigated suit alleging that the government wrote Amendment 16 as a limited access privileged program but failed to put the regimen to an industry referendum as required by the Magnuson Act.

The industry case was rejected last summer by U.S. District Court Judge Rya Zobel, but was appealed last month to the First District Court of Appeals in Boston.

The plaintiffs, led by the port cities of New Bedford and Gloucester, filed briefs last December, and have been supported through amicus briefs also filed by Congressmen Barney Frank and John Tierney and the consumer group Food & Water Watch.

The briefs argued that the referendum was required because the system constructed was meant to function as a limited access catch share program whose signature impact is to concentrate allocation in the hands of the wealthiest participants and indirectly if inevitably dispossess participants without the capital to compete.

NOAA and independent studies have found consolidation accelerating within the groundfishery, with Gloucester's fleet having lost more than 20 of its estimated 95 groundfish boats last year.

NOAA has not ruled on a formal application by Gov. Deval Patrick for a declaration that Amendment 16 has produced an economic disaster in the groundfishery and its ports.

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