By Richard Gaines
In converting the New England groundfishery to a virtual commodities market for members of fishing cooperatives, the federal government denied participants their right to a referendum while dispossessing small players and destabilizing fishing ports from Maine to North Carolina, industry lawyers argued in federal court Tuesday.
Further invalidating the rule-making process was the influence of the National Oceanic and Atmospheric Ainistration on its regional legislating arm, the New England Fishery Management Council, attorneys Patrick Flanigan and Stephen Ouellette contended in oral arguments. And together, these bodies saw to it that those with power and influence came out winners.
Representing dozens of Atlantic Coast fishing interests, including the cities of Gloucester and New Bedford, as plaintiffs, Flanigan and Ouellette urged U.S. District Judge Rya Zobel to invalidate or reopen the regulatory Amendment 16 for modification.
The two-hour hearing ended with Zobel taking the motions under advisement, giving no hint when she might rule.
But she pondered out loud remanding the process for a stakeholders' referendum, as required for "limited access" fishery programs, like NOAA's catch share regimen, under the Magnuson-Stevens Act.
The sides disagreed whether that was what the government had created.
Amendment 16, the regimen in place since last May 1, was defended by government lawyers as consistent with the requirements of Congress as written into the 2006 reauthorization of Magnuson Act, and a conscienctious effort to complete rebuilding depleted stocks within the required deadlines.
Allied with the government is the Conservation Law Foundation, whose attorney Peter Shelley scoffed at the suggestion of a "conspiracy."
"There are not hidden political agendas or a cabal," as some newspaper reports have implied, he advised the judge.
Amog those observing the proceedings was NOAA's national chief counsel. Lois Schiffer.
Zobel gave the industry side some reason for optimism when she asked whether Gloucester-based attorney Ouellette thought she had the right to remand Amendment 16 back for a referendum. Later, she also seemed to sweep aside the theory of a government lawyer that the preceding regimen, Amendment 13, had authorized the hook fishermen to organize fishing cooperatives, so the concept was "grandfathered."
Ouellette had described the approach to creating the "limited access privelege program" without the required referendum to be "shell game."
But the judge also caused consternation in the audience of mostly fishing interests — including Mayor Carolyn Kirk and New Bedford Mayor Scott Lang — when she asked why the option to join a sector didn't represent a form of referendum, and then when she interjected that the regulatory system was required to protect stocks that are being depleted.
Ouellette gently disagreed saying, "That's not the situation we're in."
"That's not what the briefs say," the judge said. "They're being depleted some."
The suit was filed last year, soon after Amendment 16 was finalized, and has grown into a pivotal clash, along with a similar lawsuit against the the catch share system in the Pacific, amid political resistance to the Obama administration's push to convert all of the nation's fisheries to catch shares.
Richard Gaines can be reached at 978-283-7000, x3464, or at firstname.lastname@example.org.