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November 29, 2012

City loses bid to have catch share tossed

Finding the catch share trading system for groundfishermen working in voluntary cooperatives to be legal and proper, the U.S. First Circuit Court of Appeals in Boston has rejected “all” the challenges to the arrangement brought by a large group of industry plaintiffs led by Gloucester and New Bedford, New England’s major fishing ports.

But in its ruling the three-judge panel presumed the completion of a regulatory action, now in a formative stage, that would control excess consolidation of the fishery, which was a core concern of many of the plaintiffs, fishermen and businesses from Maine to North Carolina.

The plaintiffs included U.S. Congressmen John Tierney, whose district includes Gloucester, and Barney Frank, who represents New Bedford.

The Conservation Law Foundation was allowed to intervene, allied with the government.

The 68-page ruling effectively ends the legal assault on Amendment 16, which instituted a radical change to the Northeast fishing industry, based on an allocation of the allowable catch to a limited number of participants who, if members of a cooperative or sector, can trade from their portfolio with other sectors to increase the value and efficiency of their effort.

A core complaint by the plaintiffs, rejected by the court, was the adoption of the catch share system without putting the regimen to a binding referendum.

“Not allowing a referendum on such a measure effectively leaves the fishery up for grabs to the highest bidder,” said Tierney in an email. “This isn’t in the best interest of fishermen.”

One attorney on the team that brought the suit, speaking anonymously, said the plaintiffs had exhausted their resources, so an appeal to the U.S. Supreme Court was unlikely.

The court affirmed a lower ruling made in 2011 by U.S. District Court Judge Rya Zobel, who found that the National Oceanic and Atmospheric Administration had followed the dictates of Congress embedded in the re-authorization of the Magnuson-Stevens Fishery Conservation and Management Act. Both Zobel and the Court of Appeals found that NOAA’s interpretations of the act warranted legal deference as defined in the Administrative Practices Act.

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