GloucesterTimes.com, Gloucester, MA

February 7, 2011

Judge denies fishermen's 'discovery' bid

By Richard Gaines
Staff Writer

A federal judge has turned down a request from New England groundfishing interests who sought the right of discovery to show whether environmental activists unduly influenced government decisions that brought the imposition of the disputed catch share fishery management system.

U.S. District Judge Rya W. Zobel disposed of the discovery motion without explanation Friday while making a number of rulings that will shape the administrative hearing in her Boston courtroom weeks from now. The overall lawsuit looms as a pivotal event in the disintegrating relationship between the industry and the federal government.

Zobel has not yet set a date for the administrative law hearing.

The push for the rare opportunity to depose top officials of the National Oceanic and Atmospheric Administration and its sub agencies — the National Marine Fisheries Service and its New England Fishery Management Council — about the influence of imbedded agents and officers of the Environmental Defense Fund, the Pew Environment Group and other environmental organizations was led by New Bedford Mayor Scott Lang.

"Discovery in a case like this is unusual, and I respect (the judge's) ruling," Lang, who is an attorney, said Monday in a telephone interview. "But I see a flawed record.

"NOAA officials will be subjected to questioning by the (U.S. Commerce Department inspector general) or Congress on how these records were produced," Lang predicted.

Meanwhile, the Cape Cod Commercial Hook Fishermen's Association has filed a motion to join the lawsuit — filed by the cities of Gloucester and New Bedford and a wide array of fishing interests — as a co-defendant with the federal government and the Conservation Law Foundation.

The hook fishermen's association has become a pivotal entity in the case because of its hybrid status as a group of fishing interests closely allied with the environmental giants, which have been providing millions in grant funding to support the Cape Cod group,

The motion by the Chatham-based hook association, if granted, would reassemble the same basic sets of antagonists who fought fiercely in the courts early in the last decade over what became Amendment 13 — the previous groundfishing plan that regulated fishermen's effort by limiting their days at sea and access to specific grounds at various times of the year.

That system has now been all but abandoned for the catch share in Amendment 16, which grants fishermen "share" rights of an allocated catch limit for each fish stock. The system also, however, encourages fishermen and small boats to sell or trade their shares to larger companies or outside investors, consolidating the industry into fewer but bigger controlling corporate hands.

In the memorandum of the hook group's Georges Bank Fixed Gear Sector — or fishing cooperative — petition to join the case as a "friend of the court," attorney Roger Flemming and his associates at EarthJustice, a public interest law firm, argue that the Cape Cod fishermen need to be involved in the case because of "inaccurate" claims by the industry plaintiffs.

The cities of Gloucester and New Bedford as well as co-plaintiffs from Maine to North Carolina assert in their complaint that the New England Fishery Management Council violated the equal treatment requirements of the Magnsuson-Stevens Act by reducing the proportion of groundfish allocated to the rest of the commercial fleet in order to increase the size of the allocation of the hook fishermen.

At the time, John Pappalardo was on the staff of the Hook fishermen as its policy director while serving as chairman of the council. Since the completion of Amendment 16 in June 2009, Pappalardo has become CEO of the hook fishermen's group, while also continuing to serve as chairman of the council.

Flemming and his colleagues wrote to the judge that the allegations by the plaintiffs were drawn too broadly and misunderstand what the council had done in making allocations to the earliest sectors or cooperatives established on Cape Cod by "forward-looking fishermen" in 2004.

The New England council adapted the sector concept pioneered on Cape Cod for use by much larger boats in the bigger ports of Gloucester, New Bedford and Point Judith, RI.

Complaints in the suit that the council provided unfair advantage to the Cape Cod fishermen are unfounded, the memorandum states, countering that the Cape Cod fishermen were given the same baseline allocations they'd had for years.

The request for the Cape Cod fishermen to join the suit was filed on the same day Judge Zobel granted amicus status to an alliance of elected officials — including state Attorney General Martha Coakley for Gov. Deval Patrick and, from a separate filing, for Congressmen John Tierney and Barney Frank.

Zobel, however, disallowed the request of Food and Water Watch to join the suit on behalf of the fishing industry but she allowed the consumer group to file a brief.

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