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June 30, 2011

Ports lose in try to overturn fish law

A federal judge has sided with the government in a legal dispute over catch shares and fishing industry sectors brought by the state's two largest ports, Gloucester and New Bedford.

Judge Rya Zobel on Thursday threw out the suit against Amendment 16, which introduced the groundfishery regulatory regimen involving quasi-voluntary fishing cooperatives known as sectors and allocated tradeable catch shares.

The radical restructuring of the industry was supported by Conservation Law Foundation but opposed by a consensus of — but not all — fishing interests. In support too was the Cape Cod Commercial Hook Fishermen's Association, which pioneered the sector system and enjoyed the benefit of a specially large allocation of groundfish to trade in the regimen's first year, which ended April 30.

Filed by the cities of Gloucester and New Bedford for a widespread coalition of fishing interests, the suit was rejected in party because Zobel found that the New England Fishery Management Council and the National Oceanic and Atmospheric Administration had managed to avoid creating a true LAPP — a limited access privilege program — or an IFQ — an individual fishing quota system when the industry was allowed to work under catch share principles with the option to continue under a restricted days-at-sea system.

She described the distinction as a "close call," but sided with the federal government, which argued in a hearing last March that the option to continue under the old days-at-sea system in what was known as the common pool produced a real option and negated the requirement within Magnuson-Stephens Act that any LAPP or IFQ regimen would need to be approved by a stakeholder's referendum to make it legal.

The catch share approach linked to the sectors was instituted without such a referendum and drew complaints from the industry immediately. The litigation was first filed in May 2010 soon after the onset of the catch share sector system, which in many respects operates under commodification principles — and like most catch share systems has triggered a massive consolidation of the fishery, which brought complaints to NOAA administrator Jane Lubchenco from the ports along the New England and Mid-Atlantic coasts.

Zobel ruled further that the sectors did not receive equity shares of the allocated groundfishery but were instead "temporary, voluntary, fluid associations of vessels that are not issued permits."

Richard Gaines may be contacted at 978-283-7000 x3464 or rgaines@gloucestertimes.com.

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