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Commercial Fisheries News
Volume 36 Number 7
March 2009
Groundfish industry upended by turn of events
GLOUCESTER, MA – The months of January and February were surreal for the Northeast region’s groundfish industry. Fishermen lived day-to-day in a regulatory haze, glued to news accounts and government updates about whether or not they could fish. People fumed, directing their anger at the National Marine Fisheries Service (NMFS). And a deep, troubling sense of uncertainty gripped the fleet, leaving many to wonder if they really could make it through the year ahead.
The turmoil began in mid-January when NMFS published a proposed interim rule with effort reduction measures for the 2009 fishing year, which begins on May 1.
Fishermen were rocked by the magnitude of the proposals, which included 2-for-1 counting of days-at-sea throughout the Gulf of Maine and northern Georges Bank and a virtual shutdown of fishing – except by hook gear – in a huge swatch of Southern New England (see CFN February 2009 for details).
Then, in a remarkable development on Jan. 26, a US District Court judge handed down a ruling in a two-year-old lawsuit over Framework 42 to the groundfish plan that “temporarily suspended” Framework 42’s measures.
This unexpected action unleashed an initial sense of euphoria. But in the days that followed, fishermen found themselves in limbo, not knowing which rules were in place and which weren’t. Anxiety intensified as people worried they’d face enforcement consequences for leaving the dock and getting it wrong. Rumors flew. Misinformation was widespread.
The New England Fishery Management Council tried to address both the proposed interim action and the lawsuit during its meeting in mid-February. At the same time, industry leaders worked with members of Congress, searching for a fix to the draconian interim rule.
In the thick of it all, the council finalized public hearing alternatives for Amendment 16, which will change the way people fish once again in 2010. The amendment was yet another immensely complicated element in the fray, weighing heavily on people’s minds.
The entire situation was difficult to grasp even for those immersed in every unfolding event. Here’s how things played out right up to press time.
FW 42 lawsuit
Except for those directly involved, most people had nearly forgotten that the states of Massachusetts and New Hampshire had filed suit over Framework 42 on Nov. 21, 2006 against NMFS, the Commerce Department, and key fisheries officials.
It was Framework 42 that imposed 2-for-1 counting of days-at-sea in parts of the Gulf of Maine and Southern New England, extended the days-at-sea leasing program, adjusted a number of trip limits, and did much more.
So most people were caught completely off-guard when US Senior District Judge Edward Harrington actually ruled on two of the case’s eight counts on Jan. 26 and handed down this stunning order: “The court temporarily suspends Framework 42 pending serious consideration and analysis of the mixed-stock exception by (the) defendant.”
According to the judge, the Commerce Department admitted it did not “seriously consider and analyze” the mixed-stock exception when it approved the framework, arguing that it had “time constraints” and that the exception most likely would not have applied even after a serious analysis.
“Such reasons are without merit,” said Harrington. He then ordered the analysis to be completed within 60 days. (See page 10A for more on the mixed-stock exception.)
Which rules suspended?
The judge’s order astounded literally everyone – NMFS, the states, the council, the attorneys for all sides, environmentalists, and, most significantly, the fishing industry. Everyone struggled simultaneously to answer the same question: What did it mean that Framework 42 was suspended?
According to Massachusetts officials, the heart of the lawsuit was the 2-for-1 counting restriction, but the state’s Division of Marine Fisheries (DMF) acknowledged that the judge’s order seemed broader than that.
On Jan. 30, DMF issued a notice to fishermen saying it was working with federal officials to “provide the industry with clarity and predictability” for the remainder of the fishing year.
In the meantime, DMF said, “The agency urges fishermen to continue to fish conservatively while the 60-day suspension of Framework 42 is in effect.”
NMFS soon determined that the court order suspended Framework 42 “in its entirety,” including provisions that allowed days-at-sea leasing.
The fisheries service issued its own notices to industry, attempting to explain which groundfish measures remained in effect under Amendment 13 and Frameworks 40A and 40B, which preceded Framework 42.
Furthermore, NMFS asked the court on Feb. 2 to “alter or amend” the portion of the order involving the Framework 42 suspension and to “stay the effect” of the suspension. In essence, the agency asked the court to reinstate Framework 42.
A week later, Judge Harrington denied NMFS’s plea for a stay.
Consequences
Fishermen were quick to praise Judge Harrington, saying that a federal judge “finally” had “stood up” to NMFS.
But many initially were leery of fishing additional days in the 2-for-1 counting area, fearing the extra fishing time would be deducted in the future after Framework 42 was reinstated.
And fishermen didn’t feel confident about trips limits or other rules, regardless of memos from NMFS intended to clear up the confusion.
For many, the biggest problem with the Framework 42 suspension was that it put the days-at-sea leasing program on hold. The program expired in April 2006, and Framework 42 was the action that renewed it.
Fishermen who had planned to lease days to finish out the winter were now stuck with fewer days than they had planned.
The inability to lease led to widespread anger, and fishermen directly blamed NMFS – not the judge, not the court order – for imposing the restriction.
Council meets
By the time the New England council gathered in Portsmouth, NH for its regularly scheduled Feb. 9-11 meeting, fishermen were frenzied. Council members, state directors, and NMFS officials appeared equally on edge over not being able to answer basic questions such as, “How many pounds of yellowtail can I land if my boat comes in tomorrow?” And, “When will I be able to lease days again?”
The council spent most of the day on Feb. 10 addressing three different groundfish issues – the interim rule, the lawsuit, and Amendment 16 (see page 14A for more on Amendment 16).
Regarding the lawsuit, the council reviewed a synopsis of NMFS’s report on the mixed-stock exception and then voted to “disagree” with the agency’s conclusion that the exception could not be applied to groundfish.
As part of this vote, the council asked NMFS to “reconsider its position and make it consistent with congressional intent,” which was, according to the council, that:
“Optimum yield should be from the fishery as a whole and;
“One stock should not dictate severe constraints on the fishery as a whole while that stock is being rebuilt.”
Interim rule
The council then debated how it should respond to NMFS’s proposed interim rule for the 2009 fishing year, which was published in the Federal Register on Jan. 16.
The council had voted back in September to ask NMFS to take interim action, recognizing that Amendment 16 wouldn’t be ready for implementation until the 2010 fishing year.
During that September meeting, the council approved a long list of recommendations for NMFS to consider in the action (see CFN October 2008 for details).
However, NMFS determined that the council’s list did not go far enough to address overfishing, so it released a different and far more restrictive proposal for public comment.
During its February meeting, the council debated whether or not to “reinforce its recommendation for the interim rule and ask that NMFS give further consideration” to the council’s recommendation.
A vote to that effect passed 12-to-3 with one abstention, but the debate was strained.
“I don’t see what this gets us,” said Connecticut council member Sally McGee. “It didn’t make sense back in September and it doesn’t make sense now in terms of giving some sort of workable advice to NMFS on how to respond to some of the stock assessments we received last summer. The science hasn’t changed on any of those stocks that are in really bad shape.”
Massachusetts council member Rip Cunningham added, “I’m not sure reiterating our comments will do a lot of good.”
Yet even while acknowledging that it might be “futile” to send back the same recommendation, Maine council member Terry Stockwell said, “I think we need to underscore that this is an interim rule. We need to address the (stock assessments) but we can’t cripple an industry in the meantime.”
Snowe questions rule
While the Framework 42 suspension resulted in immediate chaos on the water, the proposed interim rule produced a deeper kind of fear as fishermen became increasing afraid they wouldn’t be able to make it through 2009 under the rule’s extremely severe restrictions.
US Sen. Olympia Snowe (R-ME), well aware of the situation, pointedly raised her concerns during the Feb. 12 Senate Commerce, Science, and Transportation Committee’s confirmation hearing for Jane Lubchenco.
Lubchenco is President Obama’s nominee to head the National Oceanic and Atmospheric Administration, which oversees NMFS.
Snowe talked about the substantial economic and social impacts of the NMFS proposed interim rule, calling it “devastating.”
“We need to preserve the fish stocks, and we also need to preserve the communities,” Snowe said to Lubchenco.
But Snowe raised a bigger issue that she said had become extremely troubling to her.
“I have a deep concern about the tremendous divide and polarization that exists between our fishing communities and the men and women in the fishing industry in New England, and certainly in Maine, and the administrators and regulators,” she said.
“I’ve never seen it more polarizing in the 13 years I’ve served in a leadership capacity,” the senator said. “There’s a lack of trust.”
Snowe asked Lubchenco to take “bold steps … to repair this relationship because it clearly needs to be repaired.”
Judge’s next order
Meanwhile, back in the Northeast, a dizzying number of events took place during the following 10 days.
On Feb. 13, Massachusetts and New Hampshire asked the court to reinstate Framework 42 except for 2-for-1 counting, which, the states said, cut to the core of their challenge.
Furthermore, recognizing the time lost by industry because of fishermen’s inability to lease days as of Jan. 26, the states asked the court to extend the March 1 leasing deadline for 30 days.
To many people’s absolute amazement, Judge Harrington handed down a new order on Feb. 17 containing exactly what the states asked for. The judge ordered NMFS to reinstate all of Framework 42 except for 2-for-1 counting, which remained suspended for 38 days until March 28, and he extended the leasing deadline by 30 days. Industry members viewed the order as an enormous victory.
That same day, the comment period closed on NMFS’s proposed interim rule for 2009. Congressional representatives from Maine to Rhode Island, led by US Rep. Barney Frank (D-MA), weighed in, asking NMFS to implement the council’s interim proposals vs. the agency’s.
Another order
On Feb. 19, NMFS submitted a series of documents to the court, including the agency’s analysis of the mixed-stock exception and an addendum responding to the council’s decision to “disagree” with NMFS’s conclusion.
Saying it had fulfilled the court order to produce the analysis, NMFS asked the court to “lift the injunction” suspending 2-for-1 counting.
Four days later, on Feb. 23, Judge Harrington handed down yet another order – this one extending the suspension of 2-for-1 counting through April 10. Harrington wanted the New England council, which he said “plays an integral role in passing and amending fisheries regulations,” to review the mixed-stock exception analysis and addendum during its April 7-9 meeting.
The judge further ordered NMFS to submit another report to the court on April 10 “after considering the council’s findings.”
At press time, people were still trying to figure out the implications of the latest court order, and industry members were nervously awaiting word of a final interim rule for 2009.
Janice M. Plante
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