NEW BEDFORD — A federal court judge has ruled firmly against New Bedford and Gloucester and in favor of NOAA in the contest over the legality of controversial catch shares and sector management of the Northeast fishery.
In the ruling issued late Thursday, Judge Rya Zobel deferred to the National Oceanic and Atmospheric Administration in every facet of the argument.
The ruling is a major setback for the fishing ports, which had argued that the government sidestepped its obligations when it imposed a drastic change in the way the fishery is managed, in essence privatizing the fishery and consolidating it into the hands of fewer players. The plan created cooperatives called sectors, which fished according to the sum of members' allocations.
The system kept many boats tied to the pier, drove many owners out of business and enriched a fortunate few of the biggest players.
The case was argued in federal court in March with much resting on the interpretation of the Magnuson-Stevens Act, which governs fishing policy.
Zobel wrote that the issue of whether the new system amounted to "limited access permits" or "individual fishing quotas" was not clear-cut, and that is an important distinction. If the new rules had been either one, they would have been subject to a referendum in the industry.
As it stands, the new rules were imposed by the government over the industry's objections.
"While it is a close call, I do not find that the agency's conclusion that Amendment 16 implements neither a LAPP nor an IFQ," Zobel wrote.
She found that sectors as described today fit the definition of sectors that are exempt from a referendum, under the Magnuson-Stevens Act. The fishing ports had argued that NOAA was playing games of semantics, and that sectors as understood by Congress when it passed the act were different from the sectors devised starting in May 2010.
The contention was that a test program of sectors on Cape Cod under Amendment 13 was designed very differently than the one imposed last year under Amendment 16.
There was enough of a difference to call for a referendum, the suit claimed.
Zobel rejected that argument, saying: "There are, to be sure, differences between the A13 (Amendment 13) and A16 (Amendment 16) sector programs, but both apply quota-like allowable catch limits to sectors. ... It is not manifestly contrary to law to construe the 'sector' exclusion as a reference to the quota-like limits applicable to these sectors."
The judge rejected the cities' contention that Magnuson calls for NOAA to make stock assessments for all species as a whole, as opposed to watching every single one. While the language of the statute could go either way, she decided, the totality of Magnuson steers in the direction of keeping track of every individual species, even if that results in catching far less of abundant species than might otherwise be possible.
Zobel dispensed with the argument that NOAA was obligated to do an assessment of the effects of sector management by calling it a "procedural requirement" that the agency had done well enough to meet the statute.
Even at that, she conceded, "There is no dispute that the A16 policies instituted to rebuild fish stocks will have a negative short-term economic effect on the fishery."
In the matter of the very generous catch allocations given to the Cape Cod hook fishermen as compared to the rest of the fishery, Zobel called the agency's calculations "rational" and denied the charge that they received preferential treatment.
Zobel also rejected the cities' argument that the database of fishing history from which new catch allocations were calculated was flawed and needed to be replaced with other methods. She conceded that there were problems with the database, but concluded, "There is, however, no evidence in support of plaintiffs' argument that the paper reports would be a more reliable source of information than the existent database."
As for the issue of excessively conservative fishing quotas, tighter than conservation requires, Zobel again deferred to the agency, citing case law: "A reviewing court should be most deferential where an agency is making difficult scientific predictions in its area of special expertise."
Again, in the issue of whether NOAA considered all the alternatives to catch shares and sector management, specifically a point system, Zobel sided with the government.
She wrote: "The determination to defer consideration of the point system was not arbitrary."
Robert Vanasse, head of the fishing industry advocacy group Saving Seafood, said there is ambiguity in Magnuson.
"The central point of this lawsuit was, all along, the question of whether the new 'sectors' created by Amendment 16 were the same as the pre-existing 'sectors,' whether they were LAPPs and IFQs in disguise. A quick read of the ruling makes it clear to even a non-lawyer that we're dealing not with a black and white distinction but shades of gray," Vanasse wrote in an email to The Standard-Times on Thursday night.
"To quote Judge Zobel, it's a 'close call.' That's not surprising, since it was the intention of the rule-makers — NOAA, the council, their lawyers and staff — to avoid a referendum by staying narrowly within the bounds of Magnuson's exemption for sectors.
"This whole area of the argument is made even more complicated by the fact that the statute does not explicitly define sectors. As the judge observed, the system dances very close to the line, but in the end, she determined the court was bound by the agency's interpretation.
"Congressman (Barney) Frank, the author of the amendment creating the referendum requirement, has been clear that he thought a referendum was appropriate. Considering how ambiguous this part of the case was, and considering the judge herself admitted it was a close call, that section might be ripe for an appeal," Vanasse wrote.
The Standard-Times did not receive returned calls seeking comment prior to deadline Thursday evening from Mayor Scott Lang, attorney Pamela Lafreniere or attorney Stephen Ouellette, who brought the case in federal court.
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