Law

The environmental advocacy group Oceana has urged the federal courts to force the National Oceanic and Atmospheric Administration to plug what the organization contends are gaping holes in the groundfish management regimen that includes the "catch shares" format now being used in New England.

But, unlike legal challenges filed by the cities of Gloucester, New Bedford and other fishing interests, Oceana is charging the NOAA system is too lax, allowing bycatch to go unrecorded and overfishing unpenalized.

In a complaint filed with the U.S. District Court in Washington, D.C., Oceana alleges that NOAA has failed to meet the requirements of the Magnuson-Stevens Act's 2006 reauthorization which, for the first time, required hard catch limits and "accountability measures" when limits are exceeded.

Read the complete story from The Gloucester Times.

 

 

 

 

 

 

GLOUCESTER – Mass. Gov. Deval L. Patrick will back a lawsuit challenging the legality of the new fishing regulatory system, The Gloucester Times reported on Sunday.

The newspaper said that the system encourages less capitalized, independent fishing boats to sell or lease out their quota to stronger competitors. Reports from Gloucester and New Bedford flag at least half of the boats idling while the larger, multi-boat businesses “enjoy unprecedented revenue gains.”

Patrick is set to file an “amicus” legal brief and join a lawsuit – alleging that the National Oceanic and Atmospheric Administration policies have displaced small boat owners – brought by Gloucester and New Bedford.

Read the complete story from Providence Business News.

 

 

 

 

 

In its haste to convert the groundfishery of the northwest Atlantic into a catch share commodities market, the government ignored a statutory requirement to hold a referendum among participants in the New England fishery, a new federal lawsuit alleges.

And federal regulators committed an unconstitutional confiscation of property by opting to use admittedly erroneous catch histories in allocating the resource,

The suit, entered for New Jersey fisherman James Lovgren by suburban Philadelphia attorney Patrick Flanigan, was originally filed last May in U.S. District Court in Camden, N.J.

But it was been transferred to U.S. District Court in Boston and paired for a consolidated hearing with the higher-profile catch-share legal challenge filed by the cities of Gloucester and New Bedford and a large cohort of industry interests from Maine to North Carolina.

Read the complete story from The Gloucester Times.

 

 

 

 

 

The Martha’s Vineyard/Dukes County Fishermen’s Association is utterly determined to take on the federal government over the plan to turn over the rich fishing grounds of Horseshoe Shoal to Cape Wind’s proposed wind farm. They don’t lack pluck. What they lack is money.

So tomorrow night they will hold the first of a planned series of events which they hope will raise the necessary $75,000 to pursue legal action to have the wind farm moved, or at least to have its effects on their livelihoods mitigated.

The goal for the first event, to be held at the P.A. Club, is $10,000, said the association’s president, Mr. Doty.

Read the complete story from The Vineyard Gazette Online.

 

 

 

 

 

 

 

A federal plan to ban bottom fishing in a large area off Northeast Florida and Southeast Georgia faces a federal court fight from a national fishing organization. The Recreational Fishing Alliance asked a judge in Jacksonville Tuesday to strike down the 4,800-square-mile closure and other rules finalized last week to protect red snapper from overfishing.

The rules would ban bottom fishing for dozens of species in the closure area to prevent accidental snapper catches, starting June 1.

The fishermen’s group argues the National Oceanic and Atmospheric Administration far overreached its authority in ordering that and other restrictions.

Read the complete story from The Florida Times-Union.

The following is a summary of the motion filed by Mr. Lovgren's attorney on behalf of the additional plaintiffs in the Federal court case against Amendment 16.

The motion follows from an additional filing in the sut originally filed by the Cities of New Bedford and Gloucester and numerous fishing interests.

Summary

Plaintiff Lovgren and the other plaintiffs seek relief from a final rule promulgated by a federal agency.

Constitutional Violations,  Due Process, and Takings without compensation

·Because of database errors a taking for public use exists. Spefically, it is the diminution of fishing harvest for some fishermen; i.e., individuals that are prohibited from harvesting quantities of fish that previously belonged to their vessel, or the transfer of their fishing harvest to the enrichment of other fishermen through the misallocation

·Amendment 16 violates the Regulatory Flexibility Act

·The NMFS Northeast Regional Administrator exceeded statutory authority.

·Amendment 16 violates National Environmental Policy Act

·Amendment 16 violates The Magnuson-Stevens Act

·Magnuson-Stevens says that the Secretary “shall,” but in this case failed to “ensure a fair and balanced apportionment…of the active participants (or their representatives) in the commercial and recreational fisheries.”

·The “rapid implementation of the groundfish catch share program [under Amendment 16] made capturing a full pre-implementation baseline virtually impossible.”

·The NE Multispecies groundfish advisory panel, which was selected by the NEFMC’s executive committee, did not fairly represent the affected fishermen because there was not a single representative from the Mid-Atlantic region.

·Amendment 16 does not minimize bycatch of winter flounder or other species and actually increases the mortality through regulatory discards by the New Jersey and New York fishing communities because they must discard the fish when caught in the Southern New England fishing area.

·The Mid-Atlantic region was not analyzed and even the sectors and catch shares were not considered. Further, Defendants later admitted that the “required information” to evaluate the impacts of catch shares on fishermen was not collected before implementing Amendment 16.

·Because the Mid-Atlantic fishermen were not represented on NE Multispecies advisory panel, Amendment 16 only represents the interest of the New England fishermen, a violation of National Standard 6.

·The NEFMC and the NE Multispecies advisory panel failed to conduct public hearings in the Mid-Atlantic geographical area of the affected fishermen, or to provide an opportunity to be heard in the development of fishery management plans and amendments.

Read the motion.

The following is a summary of the motion filed by the plaintiffs in the Federal court case against Amendment 16 filed by the City of New Bedford et. al. and James Lovgren et. al. Summary
 
A lawsuit has been filed challenging regulations promulgated by the Secretary of Commerce referred to as Amendment 16 and Framework 44 to the Northeast Multispecies Fishery Management Plan (NMFMP).
 
The plaintiffs include the City of New Bedford, City of Gloucester, New Hampshire Commercial Fishermen's Association, Paul Theriault, Chuck Weimer, David Aripotch, F/V Lydia & Maya, Inc., Tempest Fisheries, LTD, Grace Fishing, Inc., Richard Grachek, Roanoke Fish Co., Inc., Atlantic Coast Seafood, Inc., The American Alliance of Fishermen and Their Communities, John & Nicholas, Inc., Bergie’s Seafood, Inc., Nordic, Inc., Lyman Fisheries, Inc., The Hope II, Inc., Reidar’s Manufacturing, Inc., Diamond Dog Fishing Corp., Atlantic Enterprises, LLC, Wanchese Fish Company, Easter Joy, Inc., New Bedford Fish Lumpers Pension Plan, Local 1749, ILA and AFL-CIO, and New Bedford Fish Lumpers Pension Plan.

Plaintiffs seek to set aside so much of the plan as violates the Magnuson Stevens Fishery Conservation Management Act (FCMA) and other applicable statutes and for the Court to order the Secretary to bring the fishery management plan into compliance with statutory requirements.
 

Background
 
In setting Total Allowable Catches and associated Annual Catch Limits for the 2010 fishing year, the NEFMC (New England Fishery Management Council) adopted measures in Framework 44, which set landings limits well below that allowed (usually 75% of the permitted catch level). In the case of some stocks, measures accelerated the rebuilding schedule to achieve rebuilding in less than the statutorily required time, reducing prospective landings not only on those stocks, but also on healthier ones.

Common Pool vessels continue under the old Days at Sea “DAS” and trip limit system, with additional closures, DAS reductions, trip limits, etc. Even as Amendment 16 was being finalized, results of the Groundfish Assessment Review Meeting (GARM) were being finalized, and indicated that reduced TACs might be exceeded by the Common Pool. The NEFMC added measures to Amendment 16 to allow the Agency’s Regional Administrator to make in-season adjustments to the Common Pool. The changes to the common pool measures were so dramatic and created so much uncertainty due to the latitude given the Regional Administrator to adjust common pool measures that NMFS reopened the window of opportunity for vessels to opt into sectors.
 
Plaintiffs have filed this action because Amendment 16 threatens the viability of the fishing industry and fishing communities. By managing to the lowest stock component of the Multispecies fishery, and then further restricting TACs by setting ACLs at 75% of scientifically justified landings, landings are being arbitrarily restricted. In response, fishermen holding 98% of the total quota have entered sectors, leaving the 40% of vessels in the common pool without opportunity.
 

Summary of the Argument

·The Agency is improperly managing the multispecies fishery on a stock by stock basis in violation of the Magnuson Act.

·Amendment 16 improperly allocates fish to various users based on different criteria.

·Amendment 16 rules improperly charge vessels for assumed bycatch while failing to include bycatch in history used to establish quotas.

·The restrictive ACLs established under Amendment 16 violate the FCMA.

·Sectors Are LAPPs and the Agency violated MRA requirements by implementing Amendment 16 Sectors without complying with LAPP provisions.

·Amendment 16 sectors are ITQs and the Agency failed to conduct a Referendum in violation of the FCMA.

·The Agency has failed to assess the economic and social implications of Amendment 16 on the fishing industry and fishing communities.

·Defendants failed to adequately consider alternatives or assess the full environmental impact of Amendment 16 as required by NEPA.

·The Agency acknowledges but does not even attempt to justify the extraordinary costs associated with the Amendment 16 Sector Plan.

Conclusion

The effect of recent regulations has been clear – the fishing fleet is being inalterably devastated by Amendment 16. Many traditional fishermen are being forced out by the new sector allocation scheme. Traditional fishing ports in the Northeast are losing not only their fishing industry and infrastructure, but the very fabric of their identity. The slashing and burning of the fishing industry and gutting of coastal communities to achieve accelerated rebuilding will gut the FCMA of its very basis – sustainable fisheries for the benefit of the Nation and fishing communities. Neither accelerated rebuilding of stocks, nor the Agency’s catch share agenda justify this result, and the apparent disregard for the economic and social consequences of Amendment 16 violates the spirit and intent of the FCMA.

Wherefore, the Plaintiffs pray that this Honorable Court must find that Amendment 16 and Framework 44 violate the Fishery Conservation Management Act, and enter orders accordingly mandating the Defendants bring the Northeast Multispecies Fishery Management Plan into compliance with the Act. The nature of the remedy can only be chosen once the scope of the Agency’s non-compliances has been determined. Plaintiffs further seek award of their fees and costs pursuant to the Equal Access to Justice Act, and such further relief as this Court deems just and proper.

Read the complete motion.

Gloucester's and others' legal challenge to the Obama administration's management system for the New England groundfishery — a challenge to the government's interpretation of the Magnuson-Stevens Act — has come into sharper focus through a flurry of filings in U.S. District Court in Boston.

Together, the documents described the latest program pushed forward by NOAA in Amendment 16 as a misguided, camouflaged, agenda-driven and "illogical" sham aimed at disenfranchising small businesses while giving windfalls to larger company's and investing corporations.

Congressmen Barney Frank and John Tierney, both Massachusetts Democrats, last week jointly submitted an amicus brief to the original suit filed last summer by commercial fishing interests — and the cities of Gloucester and New Bedford — while nonprofit Food and Water Watch also filed a memorandum in support.

The case was assigned to U.S. District Court Judge Rya Zobel, with the National Oceanic and Atmospheric Administration having 30 days to respond to the briefs. The court has yet to rule on the applications of Food and Water Watch to join the suit on behalf of the industry, or the earlier request of Conservation Law Foundation to come in as an ally of the government.

Read the complete story from the Gloucester Times.

 

 

 

 

 

Congressmen Barney Frank and John Tierney of Massachusetts have submitted an amicus brief in support of the position of the plaintiffs in the case of the City of New Bedford, et. al., vs. Gary Locke et. al.

The brief is summarized below.

Representative Frank is a Democratic Member of Congress, representing the Fourth District of Massachusetts. His District includes the City of New Bedford, the lead plaintiff in this action, which is one of the most historic and important fishing ports in the United States. Indeed, in 2009, New Bedford was the leading port in the United States in terms of value.

Representative Frank was also instrumental in including language in Section 106 of MSRA requiring a referendum before any individual fishing quota ("JFQ") program could be adopted in New England. He did so, because IFQ programs, which allow the transfer of quota from one permit holder to another, tend to create consolidation through the transfer of effort from one or several vessels to another, thus transforming the structure of the industry and resulting in a significant loss of jobs.

Representative Frank is opposed to catch shares/sectors because this system causes consolidation similar to IFQs. If there are twenty boats in a sector, the incentive is to fish fewer than half those vessels as it is clearly more cost effective to do so. If eight boats from that sector fish, the other twelve lease their catch to those boats. Ultimately, that means the crew on twelve of those boats are now out of work. Fewer boats purchase food, ice, fuel, repairs, etc. In other words, there is a significant economic blow to the industry infrastructure and those businesses that rely on fishing. Representative Frank, like the fishermen in New Bedford, believes that this system favors a few, wealthy participants at the expense of others and will inevitably lead to the contraction of the industry.

Also joining in this memorandum is Representative Tierney, a Democratic Member of Congress who represents the Sixth District of Massachusetts. His District includes the City of Gloucester, also a plaintiff in this litigation. In 2009, Gloucester was the tenth leading port in the United States in terms of the volume of fish landed, accounting for 122.3 million pounds. See NOAA Press Release, supra. In 2009, Gloucester was the twelfth leading port in terms of value, with $50.4 million in product landed. Representative Tierney has been actively involved with the Gloucester fishing community in understanding how the requirements of the Magnuson-Stevens Act affect the fishermen and the associated businesses in the City, such as processors, fuel and repair shops and ice houses. Congressman Tierney has consistently supported increased flexibility in the implementation of the Magnuson-Stevens Act's conservation requirements by submitting official Congressional comments to NMFS, participating in hearings and meetings with Administration officials and supporting legislative initiatives.

ARGUMENT

Amendment 16 suffers from two fundamental deficiencies. First, it fails properly to provide for the productivity of the fishery and to balance the economic and social needs of participants and communities against the conservation needs of the resource. Second, it was adopted without regard to the statutory requirements for instituting Limited Access Privilege Programs ("LAPPs").

1. Amendment 16 Frustrates the Achievement of Optimum Yield and Improperly Discounts Community Needs.

In devising the management measures at issue in this case, the Council and NMFS lost their way and failed to achieve the balanced regulation required by the Magnuson-Stevens Act, constraining the operation of the groundfish fishery at the unnecessary expense of participants and dependent communities.

(a) Amendment 16 Violates National Standard No. 1.

In order to manage fishing within the EEZ, the Magnuson-Stevens Act calls for "the preparation and implementation, in accordance with national standards, of fishery management plans [FMPs] which will achieve and maintain, on a continuing basis, the optimum yield from each fishery."

National Standard No. 1 provides, "Conservation and management measures shall prevent overfishing, while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry."

Contrary to National Standard No. 1, the allocation of certain "choke stocks," e.g., pollock, yellowtail flounder, winter flounder, is so conservative that it will impede fishermen's ability to harvest the species for which they have a substantial allocation.

As Representatives Frank and Tierney stated in a September 22,2008, letter to NMFS, "At the present time, expecting all the stocks in the New England fishery to be at their maximum level simultaneously is the principle on which this multi-species fishery is managed. That method does not work. The final regulations need to have more flexibility, so that there is a greater ability to differentiate between various component stocks of the multi-species complex".

Most ecologists would agree that it is impossible for all stocks to be at their maximum level simultaneously. If this were true, the biomass of fish would exceed the carrying capacity of the environment.

That achievement of OY is hindered by Amendment 16 seems to be borne out by the most current data. NMFS recently released quarterly reports that showed that there was less fish caught, i.e., landings were down, under the catch share system this year compared to the same time last year, but, because the price is up, more money has been made to date than at the same time last year under the old management system. NMFS points to this as a success scenario. However, with lower landings, more boats are tied to the docks, and fewer people are making most of the money, fewer boats fish and infrastructure suffers. See Richard Gaines, "Fishing Leaders Target NOAA Data," Gloucester Times, August 24, 2010.

(b) Amendment 16 Violates National Standard No. 8.

National Standard No. 8 provides, "Conservation and management measures shall, consistent with the conservation requirements of this chapter (including the prevention of overfishing and the rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities by utilizing economic and social data that meet the requirements of paragraph (2), in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities."

2. Amendment 16 Creates a Limited Access Privilege Program Without Regard to the Requirements of the Magnuson-Stevens Act.

Amendment 16, building upon sector measures originally established in 2004 under Amendment 13 to the FMP, creates an elaborate "sector allocation" program. Under this program, individual fishermen participating in sectors are assigned a "Potential Sector Contribution" ("PSC"), representing the amount of the sector's allocation they are entitled to harvest, while the sector as a whole receives an Annual Catch Entitlement

NMFS states that it "does not consider sectors to be LAPPs and they are not subject to the referendum or cost recovery requirements of the Magnuson- Stevens Act." It goes on to explain that "no permit" is issued and there is "no permanent allocation," and "sectors are temporary, voluntary, [and] fluid."  It adds that "sectors are not issued a permit, they are not allocated a portion of the TAC, and they are not clearly 'persons' eligible to hold a LAPP." Congressmen Frank and Tierney believe that NMFS' analysis is misguided.

Congress was concerned in 2006, when the LAPP provisions of the Magnuson-Stevens Act were adopted, about the "privatization" of fishery resources. It thus developed a complex series of strict requirements, embodied in Section 303A of the Magnuson-Stevens Act, 1, to ensure, among other things, that such systems are "fair and equitable", take into account "the basic cultural and social framework of the fishery" (Section 303A(c)(5)(B)) and "ensure that limited access privilege holders do not acquire an excessive share of the total limited access privileges."

In 2006, Congress broadly defined the term "limited access privilege" to "mean a Federal permit, issued as part of a limited access system under section 303 A to harvest a quantity of fish expressed by a unit or units representing a portion of the total allowable catch of the fishery that may be received or held for exclusive use by a person." It includes an "individual fishing quota" or IFQ, which was defined to mean "a Federal permit under a limited access system to harvest a quantity of fish, expressed by a unit or units representing a percentage of the total allowable catch of a fishery that may be received or held for exclusive use by a person.". Finally, the Act defined "limited access system" to mean "a system that limits participation in a fishery to those satisfying certain eligibility criteria or requirements contained in a fishery management plan or associated regulation."

Notwithstanding NMFS' position, just asserting that the sector allocation program, with its PSCs and ACEs, is not a LAPP does not make it so. When one steps back and looks holistically at the system embodied in Amendment 16, there can be no question that what is going on is the allocation of exclusive, individual harvest privileges to participants in sectors under the terms of the FMP. When fishermen satisfy eligibility criteria, they are allowed to join a sector and to harvest, on an exclusive basis, a particular amount of fish ~ a portion of the TAC ~ and when that amount has been reached, they are no longer permitted to continue fishing. They are allowed "stack" permits within a sector, so that one boat can own many permits and the right to fish the allocations associated with those permits. Form must not trump substance. Whether a fisherman's allocation is expressly called a "permit," a "privilege" or something else in the FMP does not matter; it is, however one looks at it, an authorization to harvest a specific quantity of fish held for the exclusive use of the sector participant.

Congressmen Frank and Tierney submit that this is a LAPP, as Congress envisioned it, and the failure of NMFS to comply with the manifold requirements of Section 303A thus cannot be countenanced. Further, NMFS' unrelenting pressure to move the New England fisheries to a "catch share" program seems to run directly counter to the Magnuson-Stevens Act's proscription in National Standard No. 5 against management measures which have "economic allocation as . . . [their] sole purpose."

Read the brief in full.

The Conservation Law Foundation has filed an objection to a motion by the plaintiffs in the lawsuit filed by New Bedford, Gloucester and fishing industry members against NOAA in which they ask for the opportunity to depose Dr. Lubchenco, her advisor Monica Medina, Northeast regional director Patricia Kurkul, NEFMC chair John Pappalardo and NEFMC member Sally McGee. In their objection, the Foundation stated: "First, the law presumes that the record on review of an administrative case is limited to the record before the reviewing agencies. Second, the law presumes on review that the agencies acted properly in executing their administrative responsibilities."

Read the Conservation Law Foundation's Memo.

Visit the Conservation Law Foundation's website

Read the original motion filed by the plaintiffs