Losers in U.S. District Court, the fishing industry plaintiffs challenging the federal government's alleged "back door" catch share regimen for the New England groundfishery Friday agreed to file notice that they will challenge the judge's opinion in the U.S. Court of Appeals, while also seeking an inspector general's investigation of the National Oceanic and Atmospheric Administration's rule-making process.
Congressman John Tierney's office said Friday the fisheries' congressional coalition will likely back the request for the IG's investigation.
"I talked to the congressman, and he is working with his colleagues — both House and Senate — to draft a letter seeking review or investigation of NOAA's processes," said Tierney's spokeswoman, Kathryn Prael.
She said details of the effort would be released soon, possibly "early next week."
The notice of appeal preserves the rights of the plaintiffs to file briefs challenging the conclusions reached last week by Judge Rya Zobel.
The dual track strategy was formed during what was roughly an hour-long afternoon conference call between more than three dozen plaintiffs, led by New Bedford Mayor Scott Lang, who was representing Mayor Carolyn Kirk of Gloucester. Also on the call were representatives of Sens. John Kerry and Scott Brown, and Congressmen Tierney, Barney Frank and Walter Jones of North Carolina.
Their support for the investigation by the Commerce Department inspector general is considered essential.
In 2009, a letter from the delegation brought in the IG on law enforcement issues. And a year later, Inspector General Todd Zinser's office had uncovered a department scandal of vindictive and excessive actions and corruption of NOAA enforcement's Asset Forfeiture Fund. The fishing industry won reparations and a Cabinet-level apology, though the actions rang hollow for many fishermen and their backers because no government official was punished or held accountable for the misdeeds.
"I think that we have the full support of the congressional delegation," said Mayor Lang, who is also an attorney, in a telephone interview after the Friday conference call. "Every time they see another misdeed, they become more dedicated to reforming the agency."
"I feel very good about the phone call," he added. "Our congressional partners are fully engaged. We're ready to shoot the apple off their head."
Lang has been insisting that the Environmental Defense Fund and possibly other non-profits have exercised improper influence on the rule-making process in pushing the catch share program into practice in New England and around all three coasts.
Congress last winter barred the launching of new catch share programs during this budget cycle, but NOAA administrator Jane Lubchenco has continued funding research and development of catch shares. The market approach to fisheries management is ardently promoted by EDF, where Lubchenco had been an officer before her 2009 nomination by President Obama to head NOAA.
Tierney, Frank and Jones have all called for Lubchenco's replacement.
The plaintiffs' strategic plan emerged eight days after Judge Zobel issued her report, shooting down every argument in a combined set of challenges to Amendment 16, the radical restructuring of the groundfishing industry that is based on privatization and commodification principles, and has steered more of the fishing quota toward large-scale businesses and investors, and away from smaller, independent fishing boats.
An amendment to the 2006 reauthorization of the Magnuson-Stevens Act written by Frank required the National Oceanic and Atmospheric Administration to put any true catch share commodification program to a referendum vote, but the judge found that the New England fishery management system does not meet that standard.
Zobel said that deciding that the agency managed to change the program enough — by having the allocation of the fishery distributed to members of fishing cooperatives known as sectors — was a "close call."
Frank said the agency's effort to circumvent the law and his amendment was tantamount to admitting that the industry would not have approved the system, which has prompted a brutal contest of capital, with a few winners gathering much of the commodity shares, and many losers selling out or dropping out of the business.
Richard Gaines can be reached at 9780-283-7000, x3464, or at firstname.lastname@example.org.