, Gloucester, MA

July 1, 2011

Judge: System not clear-cut enough to force referendum

By Richard Gaines
Staff Writer

U.S. District Judge Rya Zobel rejected a dozen challenges to the legality or propriety of Amendment 16, the radical reorganization of the New England groundfishery into a hybridized system based on business cooperatives.

The system allocated fish to those who work with negotiable catch shares, while the less fortunate within the fleet who "chose" to remain independent operators were marginalized in the common pool using the old-fashioned days-at-sea system.

In acts of deep judicial deference, Zobel discounted or dismissed plaintiffs' insistence that the system was fatally flawed by the government's biasing the allocation to favor special groups and failure to heed a national standard requiring assessment of social and economic impacts of the regimen, and other steps the plaintiffs asserted the government skipped or took too lightly.

But arguments by the National Oceanic and Atmospheric Administration and Conservation Law Foundation that the government did its due diligence were convincing to the judge on these secondary issues.

Only the pivotal matter of the nature of the program — was it really a catch share commodity system or something just short of that? — seemed to cause the judge difficulty.

If a true Limited Access Privilege Program, a LAPP, or an Individual Fishing Quota, an IFQ, then by an amendment sponsored by Congressman Barney Frank to the 2006 reauthorization of the Magnuson-Stevens Act, the system would need to go to a referendum before going into effect.

Frank wrote the amendment to prevent back-door introduction of catch shares.

Catch shares almost always produce a small number of big winners and a large number of losers as the equity in the fishery is commodified, distributed according to some formula referencing past fishing history and at times other considerations, and then traded to create a more efficient economic model.

From Sen. John Kerry and others have come complaints about the mal-distribution of wealth from the kind of catch share transformation introduced to the groundfishery in 2010.

The judge rejected claims that the system was rigged by power to enrich power and deals to skim from the main body of permit-holding fishermen.

"While it is a close call," the judge wrote, "I do not find the agency's conclusion that Amendment 16 implements neither a LAPP nor an ITQ, reached as part of the rule-making process, is manifestly contrary to statute."

Instead, Zobel bought the government's argument that the grouping of fishermen in cooperatives somehow altered just enough the nature of the allocation of the fishery because technically the rights are assigned to the groups rather than the individuals.

"It is not manifestly contrary to law to construe the 'sector' exclusion as a reference to the quota like limits applicable to these sectors," she wrote.

Richard Gaines may be contacted at 978-283-7000 x3464 or