By Richard Gaines
In its haste to convert the groundfishery of the northwest Atlantic into a catch share commodities market, the government ignored a statutory requirement to hold a referendum among participants in the New England fishery, a new federal lawsuit alleges.
And federal regulators committed an unconstitutional confiscation of property by opting to use admittedly erroneous catch histories in allocating the resource,
The suit, entered for New Jersey fisherman James Lovgren by suburban Philadelphia attorney Patrick Flanigan, was originally filed last May in U.S. District Court in Camden, N.J.
But it was been transferred to U.S. District Court in Boston and paired for a consolidated hearing with the higher-profile catch-share legal challenge filed by the cities of Gloucester and New Bedford and a large cohort of industry interests from Maine to North Carolina.
Lovgren's class action suit dovetails with the ports' suit in terms of named plaintiffs.
Gov. Deval Patrick is expected to file an amicus brief in support of the Gloucester-New Bedford suit, joining Congressmen. John Tierney, who represents Gloucester, and Barney Frank, whose district includes New Bedford.
The consumer group Food & Water Watch is also seeking permission of Judge Rya Zobel to join the suit. The cases are scheduled for hearing in March.
Also figuring in the legal tussle is the Conservation Law Foundation, which has filed a brief against a request — still pending before Zobel — by the cities and fishing interests for the right to conduct discovery into possible improper influence by environmental groups such as the Environmental Defense Fund and the Pew Environment Group on federal policy.
Filed by the environmental group Oceana, a separate suit on a separate track with a mostly different set of complaints about groundfish regulatory system was filed in U.S. District Court in Washington, D.C. last May.
All of the legal actions come during fierce resistance nationwide to the Obama administration's catch-share policy, which grants working cooperatives of fishermen "shares" of the total allowable catch for each fish stocks, but also encourages fishermen to buy, sell or trade their shares — including to outside corporate investors.
The policy was crafted by a working group of environmentally active scientists and political figures, including then-EDF board vice chairwoman Jane Lubchenco, who brought the program with her after being picked in 2009 by President Obama to head the National Oceanic and Atmospheric Administration.
Lovgren's suit argues that an admitted failure of NOAA to have and use accurate fishermen's landings-history data in allocating the catch in the groundfishery effectively rewarded some fishing businesses, but illegally and unconstitutionally penalized others.
"Defendants (NOAA) have publicly admitted that they knew of the errors, have admitted they have neither the expertise nor the time to correct the errors, and that fishermen are harmed," wrote Flanigan, who argues that the admissions constitute a violation of both due process and private property protections in the Fifth Amendment to the U.S. Constitution, and the Magnuson-Stevens Act's mandate that requires policies to be set based on the best scientific information available.
On a number of occasions, Patricia Kurkul, NOAA's northeast regional director at its Gloucester office, has admitted that her agency was using knowingly incorrect landings data — due to software and data collection failures — in setting allocations for the groundfishery.
Last June, the Times reported on the mistaken catch history found by Gloucester-based fisherman, Philip Powell, who has his own and dealer records confirming that he landed 1.2 million pounds of fish in a four-year period used by the government in its allocation.
NOAA's computer records, however, showed no fishing by Powell during the 1996-99, and fishermen from Cape Cod and Maine reported similar disparities.
NOAA agreed that its data was unreliable, but said there was too little time before the onset of catch shares to right the histories.
So the government pushed ahead with many participants denied what they claimed was their fair share of the catch.
Powell estimated the error on his landings cost him about $120,000 in lost allocation.
Gloucester-based NOAA spokeswoman Maggie Mooney-Seus said Tuesday the agency has rectified the catch histories of 139 fishermen based on their submissions to the agency. The corrected catch histories will be used in the second year of catch share allocations. The fishing year runs May 1-April 30.
Soon after Lubchenco's Senate confirmation in spring 2009, she pressured the New England Fishery Management Council to complete and ratify the catch share program immediately.
The council, an arm of NOAA's federal regulatory system, complied during a June meeting in Portland, Maine. But a number of defining acts of the council were reversed or modified in the succeeding months.
Key changes included cutting back the allocation to the small number of boats that opted out of the catch share system. The catch-share format, meanwhile, was welded to creating fishing business partnerships and made appealing with rights and opportunities denied to the common poolers.
Granting an opt-out option was cited by regulators as defining an "open" rather than a "limited access" system, and thus negated the federal mandate to put the regimen to a participants' referendum.
Kurkul released a letter during the writing of Amendment 16 — which includes the catch shares framework — arguing that the system did not meet the legal definition for limited access.
Lovgren's twin complaints — the use of faulty data and avoidance of a referendum — assert through Flanigan's memorandum that Amendment 16 was fatally weakened, and that the government made no effort to assess the social and economic harm the catch-share system would wreak on the region's port cultures.
The parallel Gloucester and New Bedford-based lawsuit, filed by fisheries attorneys Stephen Ouellette of Gloucester and Pamela Lafreniere of New Bedford, argue that the authors of Amendment 16 were under improper influences when they gave unfair, preferential treatment to some fishermen and designed a system to shift far more equity into the hands of the biggest boats and deepest pockets.
Richard Gaines can be reached at 978-283-7000, x3464, or at firstname.lastname@example.org.