This post refers to an oral argument held in the First Circuit Court of Appeals on September 5, 2012.  To listen to an audio recording of the argument, click here.

On Wednesday, a panel of three Federal Circuit Court judges heard arguments from various parties regarding why the 2010 amendment to the New England Groundfish Management Plan, Amendment 16 as it is known, should either be thrown out or upheld. Among the folks asking the court to throw out the amendment were the cities of New Bedford and Gloucester, whose mayors sat prominently in the room. I was representing Conservation Law Foundation’s interests to the panel and advancing our view that Amendment 16 was both crucial at the time because of the looming catch limit reductions as well as being well within the law.  A decision is expected shortly.

The judges were clearly puzzled during the argument by the same question that has puzzled many of us repeatedly over the course of this two-plus year legal fight: what were the appellants’ motives in bringing this challenge and what did they hope to get from the court even if they were successful?

And why New Bedford and Gloucester? Their Council representatives all voted for the Amendment 16 package even though—like most everyone involved—they strongly objected to parts of Amendment 16. What do those two cities gain by throwing the management system into chaos by their judicial challenges? Gross revenues of most New Bedford-based boats and from all New Bedford groundfish have climbed dramatically under Amendment 16. To a lesser extent, Gloucester is also better off in gross revenues. The Port of Portland certainly has suffered in recent years, but they did not challenge Amendment 16.  The Court clearly wanted to understand the larger context of the challenge.

The cities argued that they were in court to stop consolidation but, wait a minute, haven’t fishing operations based in Gloucester and New Bedford accounted for a lot of the consolidation? Were they there protecting the interests of the small boat coastal fleet?  No one has ever seriously accused New Bedford of being a champion of the regional small boat fleet in the past although it would be welcome now.

And why go to court when it is patently obvious to many of us that some components of the coastal day boat fleet remain at serious risk until near-shore groundfish populations fully recover, which may not happen soon enough, if ever. There are any number of immediate management actions that New Bedford and Gloucester could be championing at the Council to support survival of day boats; their silence on such matters is striking in that forum.

To me, it didn’t seem like the panel members ever got a convincing answer from New Bedford or Gloucester’s lawyer. I suspect there are a variety of motives behind this effort: fishermen who can show that Amendment 16 irreparably hurt their businesses and ways of life, political ideologues advancing some romantic, largely inaccurate notion of the business of fishing , and business interests who are somehow economically advantaged by keeping the groundfishery in chaos. The political motives may be as simple as press ink: a fish fight almost always makes the front pages, even if it is … well, a fish story.

The court is going to do what it does; as one of the judges observed dryly: “statutory construction issues are not without interest….” A judicial setback of Amendment 16 is unlikely but even if that should happen, no one has seriously proposed a better alternative. What really troubles me about all of this activity is the distraction of it all. Some fishermen are really suffering for circumstances they did not bring down on themselves and strategic infrastructure like the Portland Fish Exchange are hanging on by a thread.

I have been doing this sort of legal work for more than thirty years and I can promise one thing: nothing, let me repeat, nothing that comes from the First Circuit Court of Appeals will make any sort of a difference to those troubles.

The only thing that will make a difference is commitment to a process that abandons slogans and propaganda and focuses on solutions. There is a lot of talent and interest throughout the region in solving some of these problems and there is no question that the region is at some sort of tipping point.

With New Bedford and Gloucester on board, it now seems that there is broad consensus that the small scale, mostly coastal boat fleet may be at a structural disadvantage that needs to be corrected and that time is of the essence. Rather than fund lawyers, why couldn’t New Bedford and Gloucester lead some problem-solving workshops that would tackle these questions for which they profess so much passion.  We don’t even have to wait for the Council to guide the process.

Amendment 16, as readers of the CLF Scoop may know, has been in effect since May 2010. While some predicted dire revenue losses under the new sector system implemented by Amendment 16, the National Marine Fisheries Service recently reported that all-species gross revenues for the groundfish fleet in the 2010 fishing year–$297.7 million–were $26.6 million more than gross revenues in the 2009 fishing year. Groundfish permit sales, an important indicator of consolidation at an organization level, were extremely low.

In a statement issued today, Peter Shelley, CLF Senior Counsel, said the following: “These outcomes show a healthy, adaptive fleet that has diversified to target multiple species beyond groundfish, and that has begun to take advantage of the added flexibility that the sector system in New England provides even in the challenging start-up year. Amendment 16 is an important step in the right direction for New England and New England’s fishermen. It should be supported in Washington, D.C., and efforts to improve the system should be spearheaded in New England as intended by Congress.”

To read the full CLF statement, click here.

July 25: “Healthy Fish Populations = More Money in the Forecast; Overfishing = at least $149 million in losses for 2009,” by Talking Fish

July 28: “The Catch of Climate Change: Increased OA and Temperatures Could Directly Impact New England Fisheries and Revenues,” by Nancy Shrodes

June 18: “Center for American Progress: Fish on Fridays: The (Nonsensical) Politics of Fisheries Funding,” by Talking Fish

June 21: “Sounding out on fish assessment technology,” by Peter Shelley

Atlantic herring (Photo: NOAA)

Catch the latest news from Talking Fish, the blog brought to you by CLF and others that is focused on the scientific, financial and social aspects at work in New England’s fisheries.

July 14: “Fish Talk in the News – Thursday, July 14,” by Talking Fish

New Bedford Harbor. Photo credit: brixton, flickr

Yesterday, in a ruling by the Massachusetts District Court in a lawsuit by the City of New Bedford and others challenging the legality of the fishing regulations known as Amendment 16 , Judge Rya Zobel denied the plaintiffs’ motions for summary judgment in the case, upholding the regulations. CLF intervened in the case in September 2010 on the side of the Federal government. CLF’s motion and the government’s motion for summary judgment were allowed, terminating the case. Read CLF’s complete press statement >

In response, CLF’s Peter Shelley reflected on the decision’s significance in the commercial fishing industry in a blog post published in Talking Fish, the blog developed by CLF and others that focuses on fisheries management issues in New England. Shelley wrote:

Federal judge Rya Zobel was talking fish recently when she declared an end to the judicial fishing season for Amendment 16, terminating the two suits brought by the Cities of New Bedford and Gloucester and a variety of commercial fishing interests from Massachusetts and the mid-Atlantic. Judge Zobel’s ruling, while it may yet be appealed to a higher court by the plaintiffs, puts to bed several issues that have been floating around New England’s groundfish for several years.

First, the decision strengthens the role of the New England Fishery Management Council and NMFS in their critical planning process by emphasizing that the “Agency’s informed conclusion, reached at Congress’ express direction after an extended and formal administrative process” effectively binds the reviewing court’s hands under well-established principles of law. By  emphasizing this point, the Court made clear that the plan development process through the Council was where attention should be paid by all interested parties and that the courts were not available to second guess management planning decisions. Many saw New Bedford’s and Gloucester’s legal action as a thinly disguised effort at an end run around the council. Fortunately, it hasn’t paid off. Keep reading on Talking Fish >

Background on Amendment 16

This amendment, part of the Northeast Multispecies Fishery Management Plan, establishes science-based annual catch limits for cod, haddock, flounder and other groundfish as required by the Magnuson-Stevens Act to end overfishing in U.S. waters. Amendment 16 also creates a voluntary sector system for the New England groundfish fishery. CLF has been in support of Amendment 16 since its inception, reasoning that the new regulations allow fishermen to increase their profits while leaving more fish in the ocean, which is particularly important for species such as the Atlantic cod, which have been dangerously overfished in previous decades. Read more on CLF’s involvement with Amendment 16 and fisheries management issues in New England >

Original photo: William Hyler

If you read CLF Scoop or follow fishery management news through other means, you know that since last May, the New England fishing industry has undergone its most significant changes in 30 years. The introduction of the new “sector” management system and new rules for harvesting groundfish like cod, haddock and flounder have been highly controversial in this region and beyond, and never before has a dialogue been more needed to help ensure that New England’s fishermen and the resources they rely upon continue to thrive. While we blog about these issues on the Scoop from time to time, we felt it was important to create a space dedicated to carrying out this dialogue—a forum where science and data meet ideas and experience in an informed, respectful and lively conversation. Today, we invite you to join that conversation at www.talkingfish.org.

At Talking Fish, we will present a wide range of news and views from scientists, researchers, economists, academics, environmental advocates, fishermen, resource managers, foodies and journalists. Our hope is to build a community with a shared goal of a prosperous and sustainable fishing industry and an abundant, diverse fish population for generations to come. We’ll continue to keep our Scoop readers up to date on fisheries management in New England, but we hope that those of you who are interested in delving into these issues further will become frequent readers of www.talkingfish.org as well.

Join us as we Talk Fish by:

• Going to www.talkingfish.org to read, comment, or subscribe to Talking Fish via e-mail or RSS
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Portland Head Light, marking the southwest entrance to Portland Harbor (Photo Credit: Maine Department of Conservation)

The success of the new sectors approach to groundfish management, in which fishermen fish in community-based cooperatives (“sectors”) allocated a share of the annual catch limit in the fishery, is becoming more and more recognized as politicians such as Maine Congresswoman Chellie Pingree are speaking out in favor of the new system. Today, Congresswoman Pingree issued a press release declaring that the new sector regulations are working and noting that under the sector system, revenue for Maine fishermen is up over the previous year. The press release, which can be read in full here, also notes that Congresswoman Pingree spoke with Eric Schwaab, the top federal fisheries regulator, to reinforce her support for the current system and ask him to keep the regulations in place. A recent article in the Portland Press Herald also offered evidence of sectors’ success with quotes from a Maine sector fisherman saying that the new program has allowed fishermen to earn more money and reduce bycatch. The article also noted that Maine Senator Olympia Snowe recently asked federal regulators to continue with the sector system. CLF has long been on the record in support of Amendment 16 and the sector management plan it created, and it’s certainly encouraging to hear our local leaders and fishermen agree that sectors are helping to rebuild New England’s groundfish stocks and sustain its coastal communities.