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Commercial Fisheries News
Volume 37 Number 11
July 2010
New Bedford, Gloucester back Amd. 16 lawsuit
GLOUCESTER, MA – Arguing that Amendment 16 to the federal groundfish plan establishes a preferential allocation scheme through the sector program and imposes overly restrictive limits on a fishery that has been substantially rebuilt, a wide range of parties have signed onto a lawsuit challenging implementation of the amendment.
Among them are: the cities of Gloucester and New Bedford; the New Hampshire Commercial Fishermen’s Association; the American Alliance of Fishermen and their Communities; the New Bedford Lumpers’ Union; Tempest Fisheries Ltd.; Roanoke Fish Co. Inc.; and a number of individuals and businesses from Maine to Virginia.
Several prominent people have endorsed the merits of the legal challenge. In addition to outspoken public backing from Mayors Scott Lang of New Bedford and Carolyn Kirk of Gloucester, Massachusetts Gov. Deval Patrick and US Rep. Barney Frank (D-MA), whose district includes New Bedford, have indicated they plan to file friend of the court, or amicus curie, briefs in support of the case.
“Catch shares are a controversial and radical change. To institute this new system, while also drastically reducing catch allocations, guarantees that it will be devastating to the fishing industry,” Frank said in mid-May. “For this reason, I will support the cities’ lawsuit.”
Patrick’s amicus brief will focus on similar concerns. And, according to a June 14 statement issued by Secretary of Energy and Environmental Affairs Ian Bowles, Massachusetts officials are closely monitoring the economic impact of the new regulations and evaluating options for seeking economic relief for the state’s groundfish fishery if warranted.
Brian Rothschild, dean emeritus of the University of Massachusetts Dartmouth School for Marine Science and Technology, also was critical of the implementation of Amendment 16.
“It is now clear to most observers that the National Oceanic and Atmospheric Administration was derelict in implementing catch shares on May 1,” he said. “The necessary scientific and economic analyses were not in place and, as a result, family income for many employed on vessels or in related businesses is being damaged.”
Attorneys Stephen Ouellette of Gloucester and Pamela Lafreniere of New Bedford filed the “cities suit” on May 9 in US District Court for the District of Massachusetts.
Other suits
Two other lawsuits have been filed relative to Amendment 16. On April 29, Swathmore, PA attorney Patrick Flanigan filed on behalf of Point Pleasant Beach, NJ fisherman Jim Lovgren and “similarly situated individuals” who are holders of Northeast multispecies federal fishing permits and adversely affected by Amendment 16.
The other suit was filed by the environmental group Oceana over “the failure of the defendants, the National Marine Fisheries Service (NMFS) et al., to establish an adequate management system to prevent overfishing in Amendment 16 to the Northeast Multispecies Fishery Management Plan.”
Complaints
Basically, the two suits backed by industry members, businesses, and the Massachusetts port cities contend that Amendment 16 measures as implemented by NMFS violate various provisions of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), the US Constitution, and other statutes, including the Administrative Procedures Act and the Regulatory Flexibility Act.
The cities’ suit claims that Amendment 16 imposes new “unreasonable and unwarranted” rebuilding requirements on stocks that result in “unnecessary discard” of useable and abundant substock species at significant cost to fishermen.
It also charges that the agency failed to disclose and evaluate the environmental impacts of the program, “including the redirection of disenfranchised fishing effort to other fish stocks and the impossibility of managing a (multispecies fishery) to the weakest stocks, eliminating any possibility of attaining optimum yield from the fishery.”
Further, it claims that NMFS failed to “adequately analyze impacts on the affected small businesses and fishing and coastal communities and other possible ways to mitigate costs and regulatory burden associated with Amendment 16.”
And the suit charges that the sector allocation scheme gave preferential treatment to two groups and “essentially devalued permits” by shifting from a days-at-sea system to catch-history-based allocations.
“This … is neither fair nor equitable and disenfranchises longtime fishermen, including those who have borne the greatest burden of conservation, in violation of the (MSA),” the suit states.
The New Jersey case additionally focuses on alleged failure of the defendants to: account for variations in fisheries, fishery resources, and catches for New Jersey and New York fishing communities; provide adequate representation of these communities in the amendment development process; acknowledge and correct errors and incomplete information in the NMFS database used as the basis for implementation of the new rules; minimize the bycatch of winter flounder and other species; and conduct a referendum as required by the MSA for the implementation of a limited-access privilege program.
Defense fund
On June 9, the industry group Saving Seafood announced the establishment of the “American Seafood Defense Fund” to defray costs associated with the cities’ lawsuit.
The New Bedford Harbor Development Commission is managing the fund and commission Executive Director Kristin Decas is spearheading fundraising efforts.
According to Mayor Lang, the money raised as part of the campaign will not go towards defraying attorneys’ fees because of complications involved in contingency fee agreements.
Instead, the money will be used to pay for costs associated with supporting the case, such as those incurred for depositions, expert witnesses, and printing.
“While we don’t have expectations of raising enough to cover legal fees, we do expect to be able to support the lawsuit,” Lang said. “This is a populous kind of fund. People are trying to help out in any way they can, contributing $25, $100. Maybe they’re small amounts but they certainly are meaningful.”
Contributions may be dropped off at the commission office at the Wharfinger Building on the New Bedford waterfront or mailed to: American Seafood Defense Fund, New Bedford Harbor Development Commission, PO Box 50899, New Bedford, MA 02745.
For more information on the fund, call Decas at (508) 961-2000 or e-mail her at <Kristin.decas@newbedford-ma.gov>.
Lorelei Stevens
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