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February 27, 2013

NOAA shielding key legal document

The legal document underpinning the decision of NOAA’s regional administrator against easing the 77 percent cod limit cuts seen as a death knell for the industry starting May 1 will not be shared with the public, the agency has advised the Times.

According to NOAA officials, the office of NOAA General Counsel Lois Schiffer submitted a legal brief to Gloucester-based Northeast Regional Administrator John Bullard last month that gave the legal reasoning behind his decision against allowing the Northeast groundfishery, declared a disaster in September by the acting commerce secretary, to be allowed a second year of interim emergency relief from extreme cutbacks in Gulf of Maine cod.

The fierce legal dispute about the intent of Congress in rewriting the Magnuson-Stevens Act in 2006 arose in the aftermath of a ruling by the First U.S. Circuit Court of Appeals in November striking down an industry lawsuit against the catch share system that converted the groundfishery to a commodity market in 2010. The court reasoned that NOAA should be granted extreme deference in interpreting the intent of Congress, and the law. And the advisory opinion by NOAA’s Schiffer to Bullard provided him with the legal reasoning against allowing a second year of interim limits.

But Ciaran Clayton, NOAA’s director of communications, said the defining document that Bullard, a non-lawyer, relied upon, was not in the public domain.

“That information is attorney-client privileged, so I’m not able to share it with you.” In an email to the Times, Clayton said, “The essence of the legal advice is contained in the letter that was sent to the (New England Fishery Management) Council” on Jan. 24.

In taking the hard-line position that Magnuson does not specifically allow a second year of interim limits, Bullard and Schiffer rejecting the legal theories of the fishery council — an arm of NOAA made up of coastal state officials, industry representatives and appointees of the Secretary of Commerce as well as the regional administrator —as well as members of the Massachusetts congressional delegation and the Northeast Seafood Coalition, the region’s largest industry group.

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