This week, the federal First Circuit Court of Appeals in Boston dashed the hopes of the cities of New Bedford and Gloucester to throw out the management structure that has been in place since May 2010 for harvesting cod, haddock, flounder and other groundfish. The court upheld a prior decision by the district court in favor of the government and CLF, which intervened on the side of federal agencies. The carefully written and thoroughly considered 68-page opinion demolished every claim brought by New Bedford, calling New Bedford’s views in one case “misguided,” in another “inaccurate”, and in a third as having “no textual basis for the argument.”

At stake was the validity of the significant new management plan that was adopted by the regional fishery management council in 2010 and approved by the National Marine Fisheries Service that same year.

The judicial review of this plan bordered on frivolous. The 60,000+ page administrative record memorializing the decision to approve the new program provides extensive documentation on each and every decision made. New Bedford and Gloucester barely participated in that public process but nevertheless felt at liberty to drag the issue into court for two years. As the Court concluded: “the record demonstrates that the [National Marine Fisheries Service] engaged in reasoned decision-making and reached rational outcomes to hard choices.” That is what good fisheries management is all about. It’s never easy and there are always winners and losers, but decisions have to be made.

In this case, an overhaul was desperately needed. As the First Circuit said in its decision, “[t]wo decades of [a different form of fishing limits on the industry] has left the [f]ishery’s stocks on the brink of collapse.”

The new plan, created by Amendment 16 to the Northeast Multispecies Fishery Management Plan, accomplished two goals. First and most importantly from a conservation perspective, scientific opinion became paramount in setting catch levels, removing the politics that had previously trivialized scientists’ warnings about the risks of overharvesting. As a result of using scientifically-set fishing limits, the amount of groundfish that was available to the fleet at the beginning of the fishing year on May 1, 2010 was drastically reduced.

The second accomplishment of the new plan was the expansion of the “sector program,” an approach that had been pioneered in the region by the Cape Cod Commercial Hook Fishermen’s Association. The sector program allowed fishermen to form voluntary organizations in which they could pool their catch allotment and re-distribute it amongst themselves in any way that made the most economic sense to them. Since they were guaranteed a set amount of fish, they could choose when to fish, freeing them up to wait for high wholesale prices or good weather or to reserve some quota for late season holidays like Easter, which always brought strong prices. In return for forming the sectors and agreeing to be bound by the “hard” quota of fish, other regulations were relaxed, further increasing the potential for efficient operations.

It is a mystery to me why New Bedford and Gloucester, and their Congressional allies U.S. Representatives Frank and Tierney, tried to blow this new scheme up in court. None of their publicly stated reasons hold much water, and the Massachusetts representatives, including those from New Bedford, overwhelmingly approved the plan in 2010.

Perhaps the best explanation is that the lawsuit provided a handful of political demagogues with an opportunity to decry federal oversight of the public’s fisheries. In doing so, they diverted scarce federal management resources away from solving fisheries problems, no doubt spent significant municipal dollars on a fruitless goose chase, and intentionally destabilized and attacked a new management system in the front pages of their local papers. Now that the challenge to Amendment 16 is behind us, we can better focus our efforts on restoring the prosperity of this region’s fisheries.

New Bedford v. Locke Opinion – First Circuit Court of Appeals

October 10 – WHOI scientist Sarah Cooley studies the impacts of ocean acidification – Talking Fish interviews Sarah Cooley, a Woods Hole Oceanographic Institution scientist, on the processes behind ocean acidification, its effects on fisheries and other industries, and the future of our oceans.

October 11 – All About Aquaculture: What is aquaculture, anyway? – This post, the second in a series that focuses on aquaculture, discusses the various methods and practices used by fish and shellfish farmers in raising their products.

October 12 – Fish Talk in the News – Friday, October 12 – In this week’s Fish Talk in the News, some fishermen continue to oppose 10-year rebuilding requirements for overfished stocks; a new initiative will help Maine fishermen seeking to enter the groundfish fleet; a dead finback whale creates a challenge in Boston Harbor, John Bullard supports limits on catch share accumulation, cod brings large trawlers to inshore waters; a new article discusses the history and restoration of alewife populations.

September 6 – Courts Can’t Fix What’s Broken With Groundfish – 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, should either be thrown out or upheld.

September 7 – Fish Talk in the News – Friday, September 7 – In this week’s Fish Talk in the News, the US Court of Appeals hears arguments on catch shares; a tagging derby raises money for tuna research; lobster overproduction may be linked to warmer waters; Michael Conathan argues for a new start for New England groundfish; NEFMC announces the agenda for its next meeting; bonito venture farther north; the Striped Bass and Bluefish Derby opens; Menino brings New Bedford fish to farmers markets; and trawling may influence underwater canyon morphology.

This post was originally published on CLF’s fisheries blog, TalkingFish.org.

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.

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  Soon, Boston residents will be able to buy day-boat-caught fish at farmers markets like this one. Read about this and other interesting fish-related news on TalkingFish.org. (Photo credit: Commonwealth of Massachusetts)

  Monday, May 21 – “Congress, Catch Shares, and the Councils” – An opinion piece by Nick Battista of the Island Institute and Ben Martens of the Maine Coast Fishermen’s Association on the effort by some members of Congress to prohibit NOAA, NMFS and the councils from developing new catch shares management plans on the East Coast and in the Gulf of Mexico.

• Tuesday, May 22 – “Taking Stock of New England Fish: Part 1” – TalkingFish.org interviews Mike Palmer, Research Fisheries Biologist in the Population Dynamics Branch of the Northeast Fisheries Science Center. In this post, the first in the series, Mike Palmer talks about his background and interest in fisheries science and the types of data used in stock assessments.
• Thursday, May 24 – “A Small ‘Catch’ in Recent Fisheries Coverage” – Lee Crockett of the Pew Environment Group writes to “make an important distinction between catch limits and catch shares, a difference that has been inadequately explained by NOAA and has resulted in some understandable confusion.”
• Friday, May 25 – “Fish Talk in the News – Friday, May 25” – Interesting stories this week: Boston brings local and fresh fish to its farmers markets; disconcerting news about Thailand’s seafood export industry; and recipes for healthy fish stocks.

Here’s what went on this week on TalkingFish.org, a blog brought to you by CLF and other organizations and individuals who want to see a sustainable fishing industry in New England and abundant fish populations for generations to come:

• January 11: “Bottom Line: New Year’s Resolution 2012: Let’s Gain Weight in the Ocean” – Lee Crockett of the Pew Environment Group continues blogging about fishery management with this piece on how we can increase the size of fish populations (or help them “gain weight”) in 2012. (Lee’s blog series used to be titled “Overfishing 101″; it is now called “Bottom Line.”)
• January 11: “Thoughts on Steve Arnold’s rescue from around the web” – Last weekend, Rhode Island fisherman Steve Arnold’s fishing vessel sank in the North Atlantic Ocean. Thankfully, Steve and his crew were rescued by the Coast Guard and are all okay. This blog post contains links to other sources’ thoughts on the incident and well wishes for all involved.
• January 12: “Max Harvey on giving consumers dayboat quality seafood at Summer Shack” – TalkingFish.org interviewed Max Harvey, Seafood buyer at Jasper White’s Summer Shack in Cambridge, Massachusetts, about his seafood buying practices, questions he most frequently hears from consumers, and more.
• January 13: “Fish Talk in the News – Friday, January 13″ – A weekly roundup of articles and opinion we think will interest TalkingFish.org readers. This week: catch limits on all federally managed species will be in place by the start of 2012 fishing seasons, success under the first year of catch shares for Pacific groundfish, thoughts on pair trawling in Rhode Island state waters, and an interactive timeline of the history of U.S. federal fishery management.

• December 9: “Chefs Collaborative: Why accurate fish stock assessments matter” – Guest blog from Chefs Collaborative executive director about why accurately assessing the size of fish populations is important for fishermen, coastal communities, the government and even chefs and consumers!
• December 12: “Fish Talk in the News – Monday, December 12″ – This week in the news: disagreement over the decision to appeal the judge’s ruling in the Amendment 16 case, the Nature Conservancy buys a groundfish permit in Maine, support for catch shares in the Gulf of Mexico, locally sourced meats and seafood will be big in 2012, and the need to keep the Magnuson-Stevens Act strong.
• December 14: “Video: Watch my Testimony on Rebuilding a Vibrant New England Fishery” – A video of CLF’s Peter Shelley testifying before the House Committee on Natural Resources in early December.
• December 15: “Overfishing 101: Dissecting Sectors” – Lee Crockett of the Pew Environment Group writes about the New England groundfish fishery’s first year and counting under the new sector management system.
• December 16: “Fish Talk in the News – Friday, December 16″ – Gulf of Maine cod stock assessment, fish may be more susceptible to ocean acidification than previously thought, the Coast Guard and fishermen work together to find mutually agreeable solutions, and a new app to track the mercury in your sushi.

Catch up with the latest news from TalkingFish.org, a blog brought to you by CLF and other organizations and individuals who want to see a sustainable fishing industry in New England and abundant fish populations for generations to come. TalkingFish.org aims to increase people’s understanding of the scientific, financial and social aspects at work in New England’s fisheries. Here’s what went on this week:

• November 9: “Chef Richard Garcia on serving high-quality, responsibly-harvested and transparently-sourced seafood” – TalkingFish.org interviews Richard Garcia, Executive Chef of 606 Congress at the Renaissance Boston Waterfront Hotel, in the latest installment of our “Ask an Expert” feature.
• November 10: “Fish Talk in the News – Thursday, November 10″ – A weekly update of recent news stories that might interest TalkingFish.org readers. This week: responses in opposition to the proposed catch shares ban being promoted by Congressional representatives; a great editorial about the disconnect between fishermen and government regulators; watching the popularity rise of underutilized fish species; and a decision by the Atlantic States Marine Fisheries Commission (ASMFC) to protect Atlantic menhaden.

A big thank you to all readers who submitted comments to the ASMFC asking them to put measures in place to protect menhaden. We bet the menhaden and the bigger fish who rely upon them for food would thank you, too!

Today,  Department of Commerce Secretary Gary Locke made the decision to reject Governor Patrick’s request for emergency action to increase catch limits for Massachusetts fishermen, in violation of the groundfish management plan that CLF helped to pass, which has been in effect since May 2010 and was helping to create positive, sustainable change in the state’s fisheries. Several weeks ago, the Governor petitioned Secretary Locke to declare a state of economic emergency in Massachusetts fisheries and was supporting a lawsuit that challenged the plan, putting fish and fishermen at risk.

“With his decision to reject Governor Patrick’s request to increase catch limits, Secretary Locke has rightly rejected the notion that the new fisheries management plan is contributing to an economic crisis in the Massachusetts fishery,” said CLF Senior Counsel Peter Shelley. “On the contrary, fishing industry revenues in Massachusetts are up 21.9 percent over 2009 in just the first seven months under the new “catch shares” management system.  The Governor’s demand for emergency action was more politics than economics.” Read more >