Catch share challenge assigned to judge, may be fast-tracked

The New England fishing industry's struggle with Obama administration fisheries policy shifted focus Wednesday from the political to the legal arena.

Gloucester and New Bedford — the nation's legendary fishing ports which are represented by core members of the Obama congressional majority — together with a broad coalition of business interests from New Hampshire to North Carolina have filed suit against the federal government.

At a briefing Wednesday for about 30 industry representatives in New Bedford, co-litigators Stephen Ouellette of Gloucester and Pamela LaFreniere for New Bedford announced that U.S. District Judge Rya Zobel had been assigned the case filed earlier this month; they said the case will be proposed for fast-tracking.

The suit asserts that the government — Commerce Secretary Gary Locke and National Oceanic and Atmospheric Administration head Jane Lubchenco are named — wrote a new fishing regimen for the groundfishery that unnecessarily and illegally will "bankrupt the fleet" even though two decades of conservation policies have produced a "substantially recovered" ecosystem.

Lafreniere and Ouellette said the suit will be briefed — fleshing out the claims — this summer, but the theory of the case contained in the filing asserts that the government's interpretation of the Magnuson-Stevens Act and its choice of catch shares, an allocative system offered to joiners of sectors, guild-like companies, have combined to erode earning power, denying the fleet access to healthy stocks while forcing on them confiscatory overhead costs.

Ouellette and New Bedford Mayor Scott Lang told the Times in separate interviews that accusations of "improper influence on the government" by the Environmental Defense Fund and possibly other non-government organizations could be fused to the litigation.

Lang said he intended to challenge NOAA's effort to protect from release more than 3,000 pages of files in a Freedom of Information Act action the mayor initiated last December.

Lang sought all files and records of contacts by EDF and other unofficial sources to Lubchenco and underlings in the federal fisheries system during the development of a cutback in scallop allocations. At the time, Lang said it was time to "open up the hood" to expose the extra legal influences on policy making at the New England Fisheries Management Council, a federal regional agency.

As early as 2005, according to an internal document obtained by the Times, EDF was plotting to maximize influence on fisheries policy by a bottom-up/top-down strategy. "The most important element of our strategy is to work the regulatory process from the inside," EDF wrote.

The document, which EDF has shrugged off as an embellished fundraising initiative that failed, identified as key achievements the appointment of an employee, Sally McGee, to the New England Fisheries Management Council, in 2003, and the work of an official, David Festa, using his connections in Washington gained during service in the Clinton administration.

A third path, discussed in EDF's New England Oceans Program paper, was maximizing to the allowed limit the financial investment in the Cape Cod Commercial Hook Fishermen's Association, a small group that fishes but also serves as a political action and public information platform for values and beliefs.

EDF is publicly identified as an advisor to the Cape Cod association's division that acts as a permit acquisition bank.

The catch share system the EDF tirelessly promoted presumes to encourage outside investment in the bartering of fishing permits, and is on record as advising investors of the opportunities for windfall profits.

The suit cited the New England Fisheries Management Council's decision to give "preferential" allocations of fish in the new regimen to two groups. One was the hook fishermen's association and the other was the recreational sector.

In doing so, the suit asserts, the new system "disenfranchises longtime fishermen including those who have borne the greatest burden of conservation in violation of the Magnuson Act."

Lang, who is an attorney, said NOAA's refusal to release the more than 3,000 documents that reflected discussion of the scallop allocation typically is not made by the agency but by a judge.

"We're going to challenge it, and go through the appeals process, and after appeal to the agency, then bring this into the lawsuit in federal court," he said.

The initial refusal of the council chairman, John Pappalardo, to allow the council to reconsider the allocation was reversed. The council expanded the allocation in January, but only after Gov. Deval Patrick intervened directly with Pappalardo, who is employed by the Cape Cod Hook Fishermen's Association.

"We'll brief it and research it," said Lang of NOAA's refusal to release the mass of documents. The letter to Lang announcing the decision to withhold the requested documents asserted an exemption from the Freedom of Information Act for 2,880 of the documents "reserved for inter-agency or intra-agency memorandums of letters which would not be available by law to a party in litigation with the agency."

The exemption claimed for the other 180 documents stated that Magnuson allowed the government to withhold them.

Calls to NOAA for explanation were not returned.

Ouellette said the refusal to release the documents could be folded into the suit on the theory that "private organizations are using their relationships with government officials to advance their agendas."

Lubchenco was vice chairwoman of the EDF board before then President-elect Obama nominated her to take control of NOAA. As an officer for EDF, she served on an EDF research project that produced a policy paper before the inauguration that urged the incoming administration to make catch shares the nation's new system for fisheries management.

Although she did not mention catch shares at her confirmation hearing before the Senate Commerce Committee, Lubchenco's first two years in office were primarily focused on promoting and implementing catch share programs. At all times, EDF has lent its voice to the campaign.

In her first budget request earlier this year, Lubchenco proposed using money appropriated for cooperative research and other science projects to build a $53 million catch share implementation budget.

The budget asserted that the value and benefits of catch shares have been scientifically validated.

The only citation, however, was a policy paper by EDF.

On Tuesday, Congressman Barney Frank announced that he would file an amicus brief in support of the suit by the two fishing port cities and said he was preparing to lead a delegation to the White House to seek redress of grievances by the fishing industry if Locke did not produce an acceptable emergency package by next week.

In a radio interview on WBSM in New Bedford, Frank did not mention EDF but alluded to "a group of environmentalists who have taken an almost religious attitude" toward fisheries policy.

Richard Gaines may contacted at 978-283-7000 x3464, or rgaines@gloucestertimes.com.

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