Massachusetts Attorney General Martha Coakley filed an Amicus brief on behalf of Governor Deval Patrick and Director Paul Diodati in the case of The City of New Bedford, and The City of Gloucester, et al., v. Gary Locke, et al.
The following text is taken from the Motion to Participate as Amici Curiae.
Deval Patrick, the Governor of the Commonwealth of Massachusetts (“Governor Patrick”), and Paul Diodati, the Director of the Division of Marine Fisheries (“Director Diodati”) (collectively, the “State Amici”), hereby move for leave of court to participate in this matter as amici curiae, and to file the accompanying brief in that capacity. In support of this motion, and as grounds therefor, the State Amici state as follows:
The plaintiffs Cities of New Bedford and Gloucester (“Port Plaintiffs”) filed an Amended Complaint on June 24, 2010, challenging the promulgation of Amendment 16, i.e., 75 Fed. Reg. 18262-53,1 by the defendant Gary Locke, Secretary of Commerce, United States Department of Commerce and the National Oceanic and Atmospheric Administration (“Secretary”), which extended fishery-wide a catch-share or sector-based management system in the Northeast Multispecies Fishery. Among other things, the Port Plaintiffs argue that the Secretary violated the Magnuson-Stevens Act, 16 U.S.C. § 1851, et seq.
The Port Plaintiffs filed a motion for summary judgment on November 22, 2010. That same day, the amici Representatives Barney Frank (D-MA) and John Tierney (D-MA) (“Representative Amici”) filed an amicus brief supporting the Port Plaintiffs’ summary judgment motion. The State Amici now submit the accompanying amicus brief setting forth their view of the Port Plaintiffs’ motion for summary judgment and the Representative Amici’s amicus brief.
In the accompanying amicus brief, the State Amici argue that the Secretary’s promulgation and implementation of a sector-based system, which was accomplished via Amendment 16, violates at least four national standards, One, Two, Six and Eight, under the Magnuson-Stevens Act, 16 U.S.C. § 1851, et seq., and the related regulations, 50 C.F.R. §§ 600.310, 600.315, 600.335, 600.345. See 75 Fed. Reg. 18262- 53 (April 9, 2010); Administrative Record (“AR”) 56485-56577; see also 75 Fed. Reg. 18356-75 (April 9, 2010); AR 56715-35. The State Amici argue that the Secretary set unreasonably and unnecessarily low annual catch limits (“ACLs”) that prevent Massachusetts commercial fishermen from achieving optimum yield (“OY”) in accordance with National Standards One, Two, Six and Eight of the Magnuson-Stevens Act.
On November 5, 2010, after the promulgation of Amendment 16, Director Diodati, who co-chairs the Massachusetts Marine Fisheries Institute (“MFI”), which is based at the University of Massachusetts School of Marine Science and Technology, published “A Report on Economic and Scientific Conditions in the Massachusetts Multispecies Groundfishery” (“MA Economic and Scientific Report”). “The report provide[d] an analysis and evaluation of the current economy and overall economic viability of the Massachusetts sector groundfish fleet resulting from the unforeseen consequences of unnecessarily low ACLs and market failure in trading under the new catch shares system, and what scientifically valid alternatives exist to increase ACLs.” Id. at 4. In doing its analysis, MFI primarily relied on data that was available to the Secretary before he promulgated Amendment 16. Id. Moreover, the report corroborates the State Amici’s arguments that the Secretary’s promulgation of Amendment 16 violated at least four National Standards under the Magnuson-Stevens Act, 16 U.S.C. § 1851, et seq.
On November 5, 2010, Governor Patrick forwarded a copy of the MA Economic and Scientific Report to the Secretary, under a cover letter requesting the Secretary, for the reasons documented in the report, to (a) prospectively raise ACLs for certain species; and (b) issue emergency financial relief to certain Massachusetts fishermen who were displaced from the groundfish fishery as a result of Amendment 16’s draconian ACLs. See Letter from Governor Patrick to Secretary Locke, dated November 5, 2010, attached as Ex. B to the amicus brief.
By letter dated January 7, 2011, the Secretary denied both of Governor Patrick’s requests, in their entirety. See Letter from Secretary Locke to Governor Patrick, dated January 7, 2011, attached as Ex. C to the amicus brief . As grounds for this denial, the Secretary reasoned that most of the scientific data set forth in the report was not new, but instead was available to (and, apparently, disregarded by) the Secretary at the time he promulgated Amendment 16. See id. The Secretary also suggested in his letter that, even as the ultimate promulgator of Amendment 16, he lacked the authority to contravene any choice that the Council made between conflicting sets of data, and is therefore powerless to revisit such choices, irrespective of whether they complied with the National Standards set forth in the Magnuson- Stevens Act. See id.
In the State Amici’s view, the position taken by the Secretary in his January 7, 2011 letter demonstrates that no meaningful avenue exists for stakeholders, including the Commonwealth of Massachusetts, to secure prospective relief for Massachusetts fishermen and fishing communities from excessively restrictive ACLs and other inconsistencies between Amendment 16 and the Magnuson-Stevens Act.5 Thus, to the extent that a stakeholder maintains (as the State Amici do) that the legal flaws in Amendment 16 have existed from the time of its promulgation, the only forum where it can give voice to these concerns is in the instant litigation.
Respectfully submitted,
The COMMONWEALTH OF MASSACHUSETTS, by and through DEVAL PATRICK, as the GOVERNOR, and PAUL DIODATI, as the DIRECTOR of the DIVISION OF MARINE FISHERIES,
By their attorneys, MARTHA COAKLEY ATTORNEY GENERAL
Read the motion to participate as Amici Curiae.
Read the Amici Curiae Brief filed by Martha Coakley.
Supporting Documents