BOSTON — September 6, 2012 — Lawyers for the region’s co-capitals of the fishing industry, New Bedford and Gloucester, Wednesday urged the First U.S. Court of Appeals in Boston to direct a federal district court judge to assert control over what was described as the rampant consolidation of the groundfishery that risks destroying cultures linked to a way of life older than the nation itself.
The lead attorney for the cities and other fishing interests, James F. Kavanaugh Jr., told the three-judge panel that commodity trading of groundfish allocations – through the system known as catch shares – among members of fishing cooperatives known as sectors was introduced improperly and illegally in 2010 by denying the groundfishermen their statutory right to vote on the radical transformation of their industry.
But Kavanaugh said his clients – along with the region’s major fishing ports, dozens of fishing businesses, associations and individuals from New Hampshire to North Carolina — do not seek to have the catch share regimen halted or declared illegal.
In response to Chief Justice Sandra L. Lynch’s question — “Are you asking that the program be stopped in its tracks?” — Kavanaugh said, “No, that’s too draconian.”
He went on to explain that the plaintiffs want the Court of Appeals to remand the case back to U.S. District Judge Rya Zobel, and for her to require the National Oceanic and Atmospheric Administration (NOAA) to administer the regimen correctly, as Congress intended, with safeguards against economic destabilization and social dislocation.
Those safeguards hang on whether the sector system is defined to be a Limited Access Privileged Program or Individual Fishing Quotas — a dicey definition, even Judge Lynch acknowledged — that would include a referendum approval by two thirds of the affected fishermen. Judge Zobel had rejected that definition of the sector program last year, prompting the appeal, which contends the system is a limited access program because participants are limited in what they can catch and trade it.
Joan M. Pepin, attorney for the NOAA, and Peter Shelley, speaking for the Conservation Law Foundation, argued that a “poison pill” — essentially a way to prevent corporate misdeeds — was designed into the catch share system crafted by the New England Fishery Management Council and adopted and put into effect in May 2010 by NOAA.
It was not an LAPP or an IFQ because of the separation of powers, she argued; the sector fishing cooperatives had set the quotas, but the permitholders harvested the catch.
In addition, Pepin argued that the sector catch share system did not involve a permanent allocation of risk disfiguring the fishery, because unlike an LAPP or an IFQ, it could be voted out of existence by the New England Fishery Management Council. Moreover, she noted, the council had already addressed the potential problems of catch share trading by producing a fishery dominated by a small number of well-capitalized businesses.
Chief Judge Lynch and Judge Michael Boundin interjected probing questions.
“Why would Congress have concerns about individual permits,” Boundin asked, almost rhetorically, “but not be concerned about permits that are pooled?”
Lynch, meanwhile, asked the defendants why there were so many plaintiffs asking the court to act to stop rampant consolidation if the government was already addressing the problem.
Shelley, at the table with Pepin, argued that the catch share regimen was widely popular, citing the Cape Cod Commercial Hook Fishermen, who pioneered the sector concept in 2003.
Chief Judge Lynch ended the hour of oral arguments with the statement that “we are well aware of the importance of this case.”
Now, after the oral arguments spiced with dialogue between the lawyers and judges, the court will begin the private exercise of putting the briefs and arguments into the legal framework. It will use analysis of the clerks who sat along both sides of the courtroom taking copious notes, and finally the workproduct will go to the panel for its deliberations.
Read the full story in the Gloucester Times