A minority report raising questions about the fairness and legality of decisions by the New England Fishery Management Council to use differing formulas in splitting up the total allowable catch of groundfish next year has been filed with the U.S. Secretary of Commerce.

David Goethel, a commercial fishermen and a council member from New Hampshire, noted his dissent at the conclusion of the council meeting in Portland, Maine, last month, and has now released the text of his letter to Commerce Secretary Gary Locke

Formal, written minority reports are said to be relatively rare, and they have no statutory standing, according to Pat Fiorelli, a spokeswoman for the council, which is the part-time legislative and policy-making body for the federal fishery in New England.

Goethel, however, said he hoped Locke would intervene, and remand the legislation back to the council to eliminate the inequities and avoid future litigation.

In his letter, Goethel, a student of international fisheries, described two heavily debated and lobbied votes as violating the "non-discrimination" requirement of the Magnuson-Stevens Fishery Conservation and Management Act.

The first council vote gave what Goethel called an unfair allocation of Georges Bank cod to the two "sectors," or harvesting cooperatives on Cape Cod. The second vote gave the recreational fishery its historic five-year high allocation of Gulf of Maine cod and haddock, which was the period from 2002 to 2006.

The shift in quota to the sectors of Cape Cod will be worth about 2.5 percent of what would have been the allocation to the rest of the permit-holders in Georges Bank cod, according to fishing industry business creator Vito Giacalone of Gloucester. And because cod and haddock are often caught in a mix heavy in haddock, the losses will be greater, added Giacalone, who has worked in developing sectors through the Gloucester-based Northeast Seafood Coalition, and, at last week's Gloucester vigil, urged fellow fishermen to get in a position of "driving the bus" as the government advances its catch-share program.

Unless Locke remands the draft of Amendment 16, the future plan for managing the groundfishery, back to the council for corrections, Goethel predicted a lawsuit would "almost certainly" be filed.

He cited the two votes by the council in Portland as creating illegal and potentially "fatal" inequities that corrupt Amendment 16, the regulatory scheme that brings the fishery out of an era of effort controls limiting fishing areas and fishermen's days at sea, and more deeply into the new world of catch shares — with powerful statutory mechanics impelling the conversion of the industry to catch shares.

The amendment rewards fishermen who join sectors in various ways, including allowing them into areas closed to the common pool fishermen, who will continue to be regulated by effort controls. Only the sectors are freed of the past effort controls, and will be given catch shares to be caught as each sector chooses.

In his letter, Goethel quoted extensively from portions of the reauthorized Magnuson Act that bar discrimination among groups.

"Recent votes of the council, in my opinion, violated these specific provisions and fundamental statutory policy," he wrote. Those violations, he wrote, come through "allocating to the two existing commercial fishery sectors their best five-year period of Georges Bank cod, and to the recreational fishery its history five-year high allocation of Gulf of Maine cod and haddock.

"The remainder of the commercial fishery was allocated the period of 1996-2006 based on catch history," he continued. "Since two user groups received their historic high allocation of the most important New England groundfish species, then, effectively, all other fishermen received less.

"Such allocations," Goethel wrote, "are neither fair nor equitable."

He said the problem could have been remedied by putting all fishermen on the same formula or baseline.

"Although this point was made repeatedly by council members," Goethel wrote, "the message was lost in the din of special interest groups clamoring for more than their fair share of the allocation."

Council member Rip Cunningham, who carried the proposal from the groundfish committee into the full council, said he backed the different baseline for the Cape Cod sectors because the groups needed stability.

The retired publisher of Salt Water Sportsman Magazine said the recreational and commercial boats were "substantially different" user groups — "apples and oranges," in a manner of speaking, he said — so the different baselines did not represent an inequity.

He said he neither agreed or disagreed with Goethel's complaint about heavy lobbying, adding that, as decisions become more important, interest and arguments increase in intensity as a matter of human nature.

"Left in its present form," Goethel said he believed the allocation scheme "will almost certainly result in a lawsuit that could hold up implementation of Amendment 16."

Richard Gaines can be reached at rgaines@gloucestertimes.com