BOSTON — December 4, 2013 — The following was released by the office of Massachusetts Attorney General Martha Coakley:
Calling the federal government’s recent over-regulation of the fish stock an “existential threat” to New England’s 400-year-old fishing industry, Attorney General Martha Coakley’s office urged a federal court to stop the new regulations.
AG Coakley and State Representative Ann-Margaret Ferrante (D-Gloucester) also sent a letter to Sen. Barbara Mikulski (D-MD), Chairwoman of the Senate Committee on Appropriations, advocating for the inclusion of $150 million in fisheries disaster funding in the final Fiscal Year 2014 federal budget. The letter follows advocacy by United States Senator Elizabeth Warren and the Massachusetts Congressional delegation to make the funds available to fishermen. Attorney General Coakley and Representative Ferrante initially raised the plight of Massachusetts fishermen with Chairwoman Mikulski during a visit by the Senator to Boston last year.
“These new regulations are having a large impact and are devastating the fishing communities in our Commonwealth,” AG Coakley said. “As part of our proud past, we will continue to fight to ensure the fishing industry is part of our vibrant future despite the federal government’s callous disregard for the well-being of Massachusetts fishing families.”
The motion for summary judgment, filed in the United States District Court in Boston, reinforced the arguments made in the AG’s lawsuit filed against the National Oceanic and Atmospheric Administration (NOAA) on May 30. The complaint alleges NOAA ignored the devastating economic impact of the new regulations and allegedly using flawed science to drastically reduce the annual “catch limits” for cod and other species imposed on the Massachusetts fishing industry. The suit aims to block these new rules and seeks other relief to mitigate the impact.
NOAA oversees the Northeast Fishery Management Council (NEFMC) that is in charge of regulating the fishing industry for Connecticut, Maine, Massachusetts, New Hampshire, and Rhode Island.
After moving to a quota-based system known as “catch shares” in 2004, the complaint alleges that the NEFMC recently adopted a 77% reduction of groundfish allotments across the region starting on May 1. The complaint seeks to prevent the government from over-regulating the fishing industry, asking the Court to declare this latest regulation invalid.
The complaint also alleges that the NEFMC’s decision was not based on the best science available and that the criteria and methods used to assess the groundfish stock are seriously flawed. Instead of using an appropriate method to determine the actual stock available in New England’s waters, NEFMC relied on estimates using widely questioned methodology.
The complaint further alleges that when developing the criteria to impose a 77% reduction, the NEFMC did not meaningfully consider the economic impact it would have on the fishing industry, as required by federal law. The lawsuit contends that NOAA failed to take steps to mitigate the economic damage done by its regulations.
The state of New Hampshire intervened in the suit in September, and the state of Rhode Island anticipates filing an amicus brief in support of the lawsuit.
The federal government will file its own motion for judgment on Feb. 14. The deadlines for replies to both motions are March 7 for the AG’s Office and March 28 for the federal government.
“Once again, I want to thank the Attorney General for her focus on our community, especially the fishing community, and for her multi-prong approach to securing direct financial aid and regulatory relief for family-owned small businesses that deserve to be treated with fairness and equity,” said Representative Ferrante. “I am pleased to join in this effort with her to continue to defend our local economy and the families that work in it.”.
The lawsuit and letter are a continuation of the Attorney General's efforts to advocate for Massachusetts fishermen. After a scathing report by the Inspector General that documented excessive and harmful enforcement actions, AG Coakley urged Congress in 2011 to pass legislation that would reimburse local fishermen for legal fees incurred while appealing those penalties. Congress has failed to pass this legislation.
In 2006, the AG’s Office successfully brought a lawsuit against the Secretary of Commerce arguing that the fisheries management plan in place at the time, Framework 42, did not properly consider the interests of fishermen and fishing communities, and prevented fishermen from accessing healthy and abundant stocks. As a result of that effort, the Attorney General's Office was able to achieve a temporary suspension of Framework 42, which was ultimately replaced by a new regulatory scheme.
The following is quoted from the introduction to the motion for summary judgement:
By necessity, commercial fishing is among the most heavily regulated commercial enterprises in America. Nowhere is that more true than in New England’s Groundfish Fishery. That intermingled mass of 20 stocks of bottom-feeding fish—including multiple stocks of cod, had- dock and flounder, among others—once teetered on the brink of collapse and has been subject to increasingly restrictive commercial fishing limits since the 1980s.
Those limits have been imposed by the Secretary of Commerce (the “Secretary”) under the Magnuson-Stevens Act.1 That legislation empowers the Secretary to take a broad array of actions—up to and including outright closure of a fishery—in order to promote the Act’s goal of conserving fish stocks and preserving the sustainability of the fishery.
But the Act also makes clear that the Secretary cannot make conservation decisions in a vacuum. She must make all determinations—both factual decisions about the status of a fishery and normative decisions about how landings should be rationed and allocated—based on the best available science. And, critically, she must consider the social and economic impacts that her contemplated actions will have upon fishing communities and mitigate harm to those communities wherever possible.
As set forth more fully below, the Secretary failed to follow these mandates in setting catch limits for the groundfish fishery for the next three years. When stock assessments for two stocks of cod suggested a steep and unforeseen drop in those populations—even though New England fishermen had complied with all prior catch limits set by the Secretary—she resisted entreaties to test or corroborate those highly questionable data by other means, or to delay regulatory action until the assessments could be confirmed. She also failed to consider viable alternatives to her lone initial proposal: mechanistically cutting catch limits for cod and other ground- fish by two-thirds or more.
The Secretary’s own Environmental Assessment blandly conceded that the impact of these cuts on fishing communities in Massachusetts and surrounding states would be “drastic.” Not surprisingly, this has proven an understatement: Facing allocation cuts of up to 83% for Gulf of Maine cod and 85% for one flounder stock, many Massachusetts fishermen are not fishing in 2013. Given the economics of this fishery—involving multiple small vessels, with razor-thin profit margins and quotas set by reference to previous years’ landings—the prospect for their eventual return is in serious doubt. The ripple effect on shoreside businesses—from processors to distributors to retail stores and restaurants—has already been felt and is sure to worsen.
In short, the cuts imposed by the Secretary pose an existential threat to this 400-year-old industry, through no fault of its participants. While the Secretary may impose restrictions necessary to meet the Magnuson-Stevens Act’s objectives, she may not do so on this record, or with as little attention to mitigating the harm wrought upon fishing communities.