, Gloucester, MA

November 26, 2012

Lawyer blasts NOAA 'failure' on fishing

By Richard Gaines
Staff Writer

---- — The senior attorney for the Conservation Law Foundation — the only intervenor allowed by the U.S. First Circuit Court of Appeals in Gloucester’s, New Bedford’s and other plaintiffs’ fishing industry lawsuit challenging the legality of NOAA’s and the New England Fishery Management Council’s radical restructuring of the Northeast groundfishery based on assigned fishermen’s catch shares — has posted an angry condemnation of the government’s fishery management.

Peter Shelley’s denunciation, which portrays the government’s management of the Northeast groundfishery as an abject failure, is notable because he is allied legally with NOAA in opposition to the fishing industry’s lawsuit. His posting last Wednesday, however, will not become part of the legal public record on which the court will base its decision, expected by the end of January.

Shelley’s argument faults the government for caving to industry pressure to allow too much fishing and, in the long run, has done a disservice to fishermen, especially the small day boat operators. Many associated with industry have faulted the government for the opposite – caving to conservation interests, setting limits too low, managing the fishery based on the weakest stock, and tolerating mistreatment of fishermen by NOAA law enforcers.

The acting secretary or commerce last September conceded the legal point that the fishery has declined into a disaster, acceding to filings for a disaster dating to November 2011 by Massachusetts and January 2012 by New Hampshire and Maine. Connecticut, Rhode Island and New York also filed for a disaster declaration. Yet no funds have been made available by the Commerce Department for relief, leaving it to Congress, which has made no apparent progress with a month to go before the 112th Congress expires.

“This Thanksgiving, I want to give an overdue thanks to the region’s remaining fishermen who brave the elements and bring my family fish and seafood products to eat,” Shelley wrote. “All of us have failed to provide you with a rational, predictable and equitable business environment in which to nourish your hopes of being part of the American dream.

“The system has failed you and will continue to fail you as long as it continues to give each of you what you individually demand.”

Shelley’s harsh judgment comes as a time when NOAA, led by Jane Lubchenco, is under fire from industry groups and congressional figures from both parties for its policies.

The re-engineering of the Northeast groundfishery has been disputed legally fro the start, and, since it was imposed on May, 2010, the industry has fallen into a chaotic crisis — traced by many to erratic science of diminishing credibility.

The National Oceanic and Atmospheric Administration has also become known for protecting discredited law enforcers, especially the team in Gloucester and the former national director Dale Jones, who were guilty of imposing illegal fines on fishermen and businesses, according to the Commerce Department inspector general and a special judicial master. None were disciplined, all were reassigned, and, even after paying more than $650,000 in reparations, the Commerce Department has withheld for more than eight months the second volume of 66 alleged cases probed by special invdstigator, Charles B. Swartwood III, commissioned by the Inspector General’s office.

The lawsuit, led by the lead port cities of Gloucester and New Bedford contends the groundfishery was converted illegally into a limited access privilege program. The transformation featured an allocation of the allowable catch based on catch history. But with the abrupt and arbitrary change in the currency, which had been days at sea, many fishermen found their permits rendered worthless.

The government and CLF’s Shelley have countered that the system was legally developed, approved by the New England Fishery Management Council and NOAA and is not a limited access program because fishermen were given an option to fish under the old system of effort controls using days at sea. Yet few, if any, did so successfully.

In his posting, Shelley said that, despite the signs of a decline in the health of fish stocks, government again is caving in to industry.

“They want to open up more areas to fishing, even though they only have a vague sense of the benefits those closed areas are providing to fish,” Shelley wrote. “The resource sharing agreements with Canada cramping this expanded harvest? To hell with the Canadians.

“Now they are charging their science advisors, who are supposed to provide objective science advice, with developing rationales for continuing to fish at high mortality levels,” he added. “The science models for some of these species are now so rotten that the scientists can’t seem to figure out whether some stocks are fully rebuilt or completely overfished.

“An overfished population or stock is one that has been depleted so much that the yield to the fishery is compromised, possibly jeopardizing the future of the stock,” Sheley wrote. “The abundance of an overfished stock is too low to ensure safe reproduction and to support optimal levels of fishing. In the U.S., law dictates that a rebuilding plan is required for stocks that are deemed overfished. Populations usually rebuild, or grow, when fishing is reduced sufficiently,” Shelley wrote.

An immediate rebuttal to Shelley’s posting on the CLF website came from journalist, researcher and consultant Nils Stolpe.

To Stolpe and other influential figures associated with the industry, the failure of the government is its policies — influenced by foundations and non-government organizations such as Shelley’s, that prevent harvesting of available stocks — and invariably create interpretative polices that devalue the fishing industry while contorting to protect the resource.

Stolpe wrote to CLF that the government has failed by misreading the Magnuson Act and developing controls that prevent fishermen from getting at enormous quantities of abundant fish as a result of attempting to protect the most vulnerable stocks in the groundfish mix.

This criticism has also been levied by Brian Rothschild, the respected marine scientist at Univesity of Massachusetts-Dartmouth, and Stephen Ouellette, the leading industry attorney in Gloucester.

“There are approximately a million metric tons – that’s 2.2 billion pounds – of three species of catchable and marketable fish ‘available’ off our Northeast,” Stolpe wrote, referring to research posted on his website, “Fishing isn’t a four letter word.”

“These three species – Acadian redfish, spiny dogfish and haddock – could sustainably support the entire out-of-work groundfish industry, and then some,” Shelley added. “What has the Conservation Law Foundation (or the mega-foundations that support it), with all of your eloquently phrased gratitude for those fishermen, done to help them to harvest any of those fish?”

Richard Gaines can be reached at 978-283-7000, x3464, or at