Fishing industry plaintiffs have formally urged the First Circuit Court of Appeals in Boston to overturn last June's lower court and invalidate the two-year-old catch share system used to manage the New England groundfishery.
In searing language, the 31-page "reply brief" — filed with the court late Wednesday — will be the final written word before oral arguments later this year, projected as soon as June, but if not, by next fall.
"In the defendants' world," wrote the plaintiffs' New Bedford-based legal team — representing that city, Gloucester, and fishermen and organizations along more than 1,000 miles of coastline — "the rule of law is whatever the government says next." It is an approach that treats the law as a "moving target," plaintiffs said.
Not all Northeast fishing interests wanted to fight the government and overturn the system. More than 100 fishermen last fall urged stability over reform last fall in a letter crafted at least in part by leaders of the Gloucester-based Northeast Seafood Coalition, the region's largest industry group.
Litigants, however, read the letter as the act of a minority of winners in an industry hemorrhaging jobs and consolidating since before the catch share system was imposed — without giving affected permit holders the opportunity to vote in the radical regimen.
Whether NOAA was obligated to win a two-thirds vote among fishery stakeholders before converting to the catch share system and its leasing, buying and selling of quota is a central point of dispute.
Congress put language in the 2006 reauthorization of the Magnuson-Stevens Act, the foundational fisheries conservation and management law, that decreed any kind of "new" limited access allocation program for a fishery in the Northeast region could not be imposed without the approval of two thirds of the participants.
But NOAA insists that Amendment 16, which covers all 20 groundfish stocks fished from Maine to North Carolina, was not a "new" program, but instead an expansion of a small pilot program for hook-and-line Cape Cod fishermen that was launched in 2004 and was therefore exempt from the referendum mandate.
Also, because fishermen were not required to join sectors — coordinated fishing cooperatives — under the program was given as a reason Amendment 16 did not meet the criteria for a referendum. District Judge Rya Zobel called that question the iffyiest to resolve, but in the end gave the government deference.
Government arguments, which were enough for U.S. District Judge Zobel last summer, centered on NOAA's right to deference in implementing the intentions of Congress as expressed in the Maguson-Stevens Act.
But the plaintiffs accused NOAA of gaming the system — acting arbitrarily and capriciously, the standard for an overturn — and deceitfully avoiding a referendum to extend the web of catch share programs, the signature fisheries policy of the Obama administration.
Inevitably, the clash reduces to excruciating disputes over the definition of words, congressional intent and the nature of what the government created to manage the nation's oldest fishery.
"In the defendants' proposed world," wrote the plaintiffs, "the only certainty is that what the agency says next is right, even if it contravenes the plain language of the statute, the intent of Congress, the agency's prior guidance and the dictionary. Defendants' attitude (is) that the agency is the sole source of authority and automatically entitled to deference."
To uphold Zobel's ruling, the plaintiffs argued, "would strike a blow to the rule of law and the separation of power."
Underscoring that argument, the plaintiffs noted that NOAA discounted as effectively unofficial and insignificant, a 160-page technical memorandum by NOAA that used the original Cape Cod hook program as a model for how to build limited access allocation program.
Later in the brief, the plaintiffs ridiculed NOAA's rebuttal brief filed in March for misinterpreting "and" to mean "or" to relieve itself of the burden of conducting economic "and" social impact studies to shape the nature of the new management regimen.
The U.S. House Natural Resources Committee staff is now struggling to write more precise language into the Magnuson Act to fix "misinterpretations" by NOAA.
Because the problems are not inherent in the statute they are more difficult to fix, committee press secretary Crystal Feldman told the Times.
Richard Gaines can be reached at 978-283-7000, x3464, or at email@example.com.