GloucesterTimes.com, Gloucester, MA

February 27, 2013

NOAA shielding key legal document

By Richard Gaines
Staff Writer

---- — 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.

Bullard wrote that the Magnuson-Stevens Act allows only one year’s interim action, and that is coming to an end April 30.

”Based on the advice of NOAA general counsel (Schiffer),” he wrote, “we have determined that there is no legal basis to change legal determination, meaning that an interim action for Gulf of Maine cod would not be justified at this time.”

He also rejected for different reasons a request for interim action “reducing rather than ending overfishing on Gulf of Maine haddock.”

The position Bullard took in the letter left the council with no choice but to vote to recommend reducing in shore cod landings for the 2013 fishing year beginning May 1 by 77 percent, on top of the 22 percent cut allowed under the interim action for 2012.

Most in industry or government believe the extreme constriction on cod landings represents the coup de gras for the small boat that have been intentionally marginalized during the four years of Jane Lubchenco’s tenure as NOAA administrator.

On April 10, 2009 soon after her Senate confirmation, a spokesman for Lubchenco responded in writing to questions by the Times. One question asked what her goal was for the size of the fleet.

“Dr. Lubchenco says the recent analysis suggests a significant fraction of the vessels will need to be removed to make the fishery sustainable and profitable,” the spokeswoman responded. “She thinks capacity reduction is necessary. She says the type of program to make that happen and any associated federal assistance will remain to be seen.”

Lubchenco’s last day in office is today. She announced her resignation in an internal email in December, citing “our notable progress ... ending overfishing, rebuilding depleted stocks and returning fishing to profitability.” President Obama who put Lubchenco in charge of oceans and atmosphere has not named a successor or commented on her resignation.

The groundfishery, showcase for Lubchenco’s re-engineering of the industry into a commodity market trading in catch shares, was declared a full-fledged “economic disaster” by the acting Commerce secretary in September — 11 months after the case for the declaration was submitted by Gov. Deval Patrick. Yet no congressional assistance has been appropriated to address the disaster finding.

Then-Sen. John Kerry (now the secretary of state) and Sen. Elizabeth Warren — as well as Reps. John Tierney, who represents Cape Ann, Bill Keating and Ed Markey — all challenged Bullard and Schiffer’s interpretation of Magnuson in writing the day after he submitted his letter to the council. But they have not appealed to the general counsel for the Commerce Department, Cameron Kerry, John’s brother, or the White House to reverse Schiffer’s and Bullard’s stand.

”The council and others have argued that the secretary may issue back-to-back interim actions to span the full two yeast the council may take to revise the rebuilding program,” Bullard wrote. “The argument relies, in part, on an assertion that back-to-back interim actions are not expressed prohibited ...”

But he added, “We are bound by what the law says, not what it does not say and (the section cited by industry and the council) is clear on its face that interim rules are limited to no more than 366 days.

”It continues to be our position, therefore, that to be consistent with the plain meaning of relevant provisions in the Magnuson-Stevens Act, and in light of the clear mandate to end overfishing, a second year of interim measures in the case of Gulf of Maine cod is not justified...”

The Gloucester based Northeast Seafood Coalition disagreed with its own legal brief to the council. There is nothing in (the section of Magnuson cited by Bullard) that prevents the Council from requesting, or the Agency from implementing, a second consecutive set of ‘interim measures’ that would apply to the next fishing year—that is, back-to-back Interim Rules.

“Indeed, the process ... very clearly and specifically contemplates up to a two-year process to ‘develop and implement’ new management measures,” the coalition argued.

Richard Gaines can be reached at 978-283-7000, x3464, or at rgaines@gloucestertimes.com.