GloucesterTimes.com, Gloucester, MA

January 23, 2011

Enviro seeks to halt state from backing fish suit

By Richard Gaines
Staff Writer

One of the major environmental groups battling the fishing industry has filed a critique — short of a formal objection — to the Commonwealth of Massachusetts' request to join the federal lawsuit filed by the cities of Gloucester and New Bedford and industry plaintiffs, all of whom are challenging the catch share regulatory regimen now governing New England's groundfishery.

The Conservation Law Foundation, which previously entered the case, joining the federal government in opposition to the fishing interests — and has opposed a motion for discovery into alleged improper influences from Environmental Defense Fund and other non-government organizations — stopped short of asking U.S. District Court Judge Rya Zobel to bar the commonwealth from joining the suit as a co-plaintiff.

Instead, CLF lawyers Peter Shelley and Greg Cunningham pointed out that the commonwealth had asked to join a suit against the same regulatory document — Amendment 16 as it's called — the state's own representative on the New England Fishery Management Council had voted for in June 2009.

Attorney General Martha Coakley two weeks ago filed a lengthy amicus brief and request for permission to join the suit on behalf of Gov. Deval Patrick.

Similar amicus requests from Reps. Barney Frank and John Tierney and the consumers' group Food & Water Watch are also pending. The lawsuit itself includes both Gloucester and New Bedford as plaintiffs, along with a variety of fishing interests who claim that Amendment 16 and the catch-share system were wrongly put in place.

The final vote on the package — a landmark transition for the groundfishery into what amounts to a limited access commodities market, with outside investors and corporations acquiring fishing "shares" from smaller, independent boat owners — was the product of years of intense debate.

In the final 16-1 tally, David Pierce, the deputy director of marine fisheries for the commonwealth and its voting representative on the council, voted with the majority in approving the Amendment 16 package.

But Pamela Lafreniere, co-lead attorney for the plaintiffs, described the CLF motion as typically disingenuous for the environmental groups opposing the efforts of the fishing industry.

"The CLF motion cast as a reply when in truth it is an objection," said Lafreniere who practices in New Bedford. "This is really pro forma for the environmental groups, they do what they want to do without actually saying that they're doing it."

After telling the judge that CLF did not oppose the motion by the commonwealth to join the suit, CLF went on to attempt to discredit the commonwealth's case, arguing that the request was not made in a timely fashion, that the governor's request was simply too long, and that it introduced material that was not part of the original suit, which was filed in May 2009 and supplemented with arguments in November.

The National Oceanic and Atmospheric Administration, the lead defendant, has not filed responses yet.

The plaintiffs — organized by Lafreniere and Gloucester-based fishing industry attorney Stephen Ouellette — range from North Carolina to Maine and object to the qualities of Amendment 16 that steer control of the fishery's resources into a small number of corporate hands.

The vote for catch shares and its related system of fishermen's sectors - essentially cooperatives fishing for shares of a federally-allocated catch — has also been challenged as violating elements of the Magnuson-Stevens Act that direct the government to consider communities that rely on a commercial fishing economy, while restoring the fish stocks.

The case was scheduled for a hearing — the equivalent of a trial in administrative law — in March before Judge Zobel, who has not indicated when she will rule on the accumulating motions.

CLF argued in its filing that the case should be adjudicated on narrow grounds of whether the fishery management council followed the administrative law requirements.

The organization has also argued against allowing the discovery motion that would open the gates for plaintiffs to depose officials and environmental group members about undue influence on the process.

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