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Commercial Fisheries News
Volume 37 Number 12
August 2010
Vineyard fishermen sue to stop Cape Wind farm
WASHINGTON, DC – Undaunted by the failure of high-powered, well-financed groups to stop the massive Cape Wind Associates energy farm planned for Nantucket Sound, a group representing small boat fishermen has filed suit in federal court seeking to halt construction of the project.
The Martha’s Vineyard/Duke’s County Fishermen’s Association is a nonprofit established in 2009 by the Duke’s County Commission to provide a more formal voice for local commercial fishermen.
The association, which represents about 100 fishermen from Massachusetts and Rhode Island who make their living in the Sound, as well as long-time Vineyard fisherman Jonathan Mayhew, are the plaintiffs in the case.
The defendants are Interior Sec. Ken Salazar and the Bureau of Ocean Energy Management, Regulation, and Enforcement, formerly known as the Minerals Management Service. David Frulla of the Washington law firm Kelley Drye & Warren LLP filed the suit on June 25.
“We support sustainable clean energy,” said fishermen’s association President Warren Doty. “However, the planning of this entire project was never done with careful consideration of the community’s best interest.”
The wind farm is expected to consist of 130 mega turbines covering a 25-square-mile area mostly on Horseshoe Shoal, which is a prime traditional fishing ground for squid, conch, and other species.
COLREGS
The complaint details how the Interior Department’s “record of decision” (ROD), the final regulatory hurdle for Cape Wind in the federal approval process, included terms and conditions that will make it difficult, if not impossible, to continue commercial fishing operations in the area.
Specifically, the Coast Guard has determined that the project will have to have marked traffic lanes and recommended vessel routes, which will make it extremely difficult for fishermen to work in the area. Furthermore, fishermen will have to comply with collision regulations known as COLREGS.
The Coast Guard has made it clear that COLREGS would require vessels to maintain “a proper continuous lookout” and that “a second person would have to be on the vessel and in the pilothouse at all times.”
According to the complaint, the COLREGS requirement alone would deep-six many of the area’s fishing operations.
“In short, this mandatory term and condition means small fishing vessels can no longer operate with a single crewmember, as many if not most do, because it is impossible to maintain a lookout and tend gear at the same time,” the complaint said.
The Coast Guard recognized this, stating on the record that the requirement to carry an additional crewman on a small, single-man fishing vessel “may render commercial fishing in Horseshoe Shoal unprofitable.”
Even boats like Mayhew’s that operate with two people would have to hire an additional person to stand watch and man the wheelhouse since the two men on board are fully occupied tending gear and sorting fish.
The complaint notes that simply throwing out the conditions imposed by the Coast Guard won’t solve industry’s problems because doing that would result in navigation safety issues. That’s because the Coast Guard has determined that the turbine structures will interfere with accurate vessel radar operation.
Order request
The plaintiffs are asking the court to:
Find the ROD “to be arbitrary and capricious, an abuse of discretion in excess of authority, and not in accordance with the law;”
Permanently enjoin the Interior Department and Bureau of Ocean Energy from issuing a lease to Cape Wind based on the ROD and current record;
Declare that the plaintiffs’ commercial fishing operations are a “reasonable use” and that that use has been interfered with by the terms of the ROD; and
Vacate the ROD and send it back to the Bureau of Ocean Energy “for further consideration and process consistent with law.”
The Martha’s Vineyard/Duke’s County Fishermen’s Association is currently fund-raising to cover the cost of filing the suit. For more information or to help out, call Warren Doty at (508) 564-0150 or e-mail him at <warrendoty@verizon.net>.
Lorelei Stevens
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