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.