NEW BEDFORD, Mass. — April 16, 2012 — Lawyers for New Bedford and for Gloucester have argued in an appeal brief, that the Federal government doesn't deserve the court's deference because it hasn't earned it.
Instead, the brief says, the Commerce Department and NOAA have circumvented the intent of Congress, twisted the plain meaning of words, failed to live up to the law's expectations, and in general hammered through a management scheme through any means at its disposal.
"Defendants argue in their opposition briefs that New Bedford cannot rely on the plain language of the Magnuson-Stevens Act, the government's guidance, or even the dictionary in interpreting the law," said the city.
"Defendants essentially contend that citizens can rely only on what the government says next."
The lawsuit contends that the plan was put into place unlawfully, in violation of both the letter and the spirit of the Magnuson-Stevens Act. That act was amended in 2007 to better protect fishermen and fishing communities against the ill effects of a quota-based management plan.
The ultimate safeguard was the requirement of a referendum and two-thirds approval among the members of the industry.
The suit contends that NOAA knew a referendum on this system would fail, so it devised a scheme to get around the law. That involved, for one thing, renaming individual quota permits and calling them catch shares, and declaring that the referendum rule doesn't apply to them.
The lawsuit lost in U.S. District Court last year as Judge Rya Zobel applied the narrow legal principle that in such an administrative case she can only examine what is on the record, taking no new testimony, and assuming the good faith and competence of the government.
The appeal contends that the government, by its actions, forfeited the presumption that it acted within the law.
Read the full article at the New Bedford Standard-Times.