December 31 – The New England Fishery Mismanagement Council - December 20th’s Council meeting in Wakefield, MA, was another excruciating chapter in the tragedy of New England groundfish management. This is not the fishermen’s resource; these are not the fishermen’s fish. This is the public’s resource: yours and mine. It is understandable that fishermen were angry at the meeting because their business world is a mess and getting worse. But conservationists and the general public should be getting just as angry, because their public resources are being plundered and pillaged while no one is being held accountable.

January 1 – Talking Fish’s Look Back at 2012 - A look back at the big stories in fisheries management this year and Talking Fish’s most-read posts of 2012.

January 4 – Fish Talk in the News – Friday, January 4 - This week in Fish Talk in the News, the Senate approves Sandy relief but the House avoids a vote, causing outrage; the 112th Congress concludes with the departure of lawmakers active on fisheries issues; the industry responds to NOAA’s report on the multispecies fishery in 2011; debate continues on groundfish closed areas.

December 18 – There’s No Place Like Home for the Holidays – After being declared a “fishery disaster,” changes in regulations to allow bottom trawling in Cashes Ledge, Jeffreys Ledge and the only protected portion of Stellwagen Bank National Marine Sanctuary seems counterintuitive to ever devising a long-term strategy that could help restore groundfish populations in the Gulf of Maine. At a time of the lowest recorded groundfish populations in history, how does it make sense to increase bottom trawling in the best, remaining habitat areas?

December 20 – The Bottom Line: Don’t Remove Protection When Cod Need It Most - New England is famous for cod fishing. But the industry is ailing – and the cure being proposed might be worse than the disease. A proposal by regional fisheries managers to reopen areas where groundfish are currently protected is a big step in the wrong direction.

December 21 – Fish Talk in the News – Friday, December 21 - In this week’s Fish Talk in the News, NEFMC opens closed areas and delays decisions on catch limits; ASMFC cuts menhaden catch 20%;NOAA will return $543,500 in fines; Brian Rothschild replaces as head of Marine Fisheries Institute; a Gloucester scallop boat goes missing; warm waters in the Gulf of Maine cause environmental change.

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

November 26 – Closed Areas Cautionary Tales Pt. 1: Canada’s Cod Catastrophe - As fishery managers consider re-introducing damaging forms of fishing like bottom trawling into these protected areas, they should also consider the experiences of other fisheries that exploited protected areas. This post, the first in a series of three, will focus on the dramatic collapse of Canadian cod stocks, brought about in part by poor habitat protection.

November 29 – Closed Areas Cautionary Tales Pt. 2: Scotland’s Firth of Clyde - The Firth (or bay) at the mouth of the Clyde River southwest of Glasgow has been fished for centuries. But the area suffered a crippling collapse in populations of the most important fin fish after eliminating protected areas which had stood for decades.

November 30 – Fish Talk in the News – Friday, November 30 - In this week’s Fish Talk in the News, the First Circuit Court upholds the legality of catch shares; stakeholders argue over menhaden catch limits; gillnetters take action to prevent porpoise bycatch; the Coast Guard searches for a lost fisherman; dogfish grow in importance for Cape Cod fishermen; a symposium on lobsters and environmental change.

September 25 – Globe, Times Miss Boat on Real Issues – The Northeast’s two leading newspapers both editorialized recently on the fragile status of groundfish populations, especially cod, on both sides of the Atlantic. Unfortunately, both the Boston Globe and New York Times missed an opportunity to emphasize conservation measures and explain the great risk for fish and fishermen if we weaken those protections.

September 26 – Opening the Closed Areas – A bet we can’t afford to take? – On Thursday, the New England Fishery Management Council (NEFMC) will meet for the first time since the Secretary of Commerce declared the New England groundfish fishery, which includes species such as cod, haddock, and flounder, a disaster. One of the ideas currently being discussed is opening groundfish closed areas that have been closed to fishing for the past 15 years; a proposition that could be the final straw causing the collapse of the fisheries in the Gulf of Maine.

September 28 – Fish Talk in the News – Friday, September 28 – In this week’s Fish Talk in the News, NEFMC moves to open closed areas; John Bullard reverses his decision on a seasonal gillnetting closure; NOAA proposes exempting scallopers from accountability measures on yellowtail bycatch; a report highlights the culture of distrust between fishermen and regulators; the Center for American Progress explains stock assessments; NOAA finds deep water coral hotspots on Georges Bank; the Boston Globe exposes problems with underweight seafood sold to New England consumers.

September 17 – Booming New England Seal Population Creates a Management Challenge – Congress passed the Marine Mammal Protection Act (MMPA) in 1972, forty years ago. Intended to slow the precipitous decline of marine mammal populations due to human activities, the act prohibited the killing, harassment, or excessive disturbance of marine mammals in United States waters. For seals in New England—mainly harbor seals and gray seals—the MMPA’s protections effected a massive boom in population.

September 21 – Illegal and Wrong – Wednesday’s New England Fishery Management Council’s Groundfish Committee meeting was … depressing. As the expression goes, just when I think I am seeing light at the end of the tunnel I realize that it is the headlights of the on-coming bus. Once again, current events—bad as they are—seem about to be exploited to produce an even more dismal future. The topic was throwing open the decades-long fishery closed areas to exploitation again.

September 21 - Fish Talk in the News – Friday, September 21 – In this week’s Fish Talk in the News, the NEFMC Groundfish Committee proposes opening closed areas; blanket shark fin bans may hurt the sustainable dogfish industry; Gloucester fishing personalities comment on warm waters this summer; a NOAA report ranks New Bedford first in the country in fishing revenues; cod stocks move north in response to record-setting warm water temperatures; the scallop quota could take a heavy cut over the next two years due to poor recruitment.

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.

A New Bedford trawler leaves port.

“Groundfish resources off New England have experienced significant changes in abundance during the past 30 years and have now fallen to all time record lows.” 

-  Ronald Brown, Secretary of Commerce. Declaration of Disaster Affecting the New England Fishing Industry – March 18, 1994

“…I don’t hear so much in New England that ‘there are plenty of fish, our scientists got it wrong’…right now what I hear  – and what I see in the eyes of fishermen  – is people are saying ‘we can’t find codfish’ and they are really worried about their ability to stay in business…”

-  John Bullard, NOAA Northeast Administrator. MPBN Radio Interview – August 29, 2012

Why does this current groundfish crisis seem so familiar? As the populations of New England’s cod, haddock and flounder have continued to decline, it’s not surprising that the number of fishing boats chasing them have declined. The business of consolidation within any industry is often a fact of doing business and we know that consolidation has been happening in the New England groundfish fleet for decades. So far, the New England Fishery Management Council has avoided any serious approach to addressing fleet diversity and consolidation as it kicks the can down the road on the development of Amendment 18, and the National Marine Fisheries Service has been willing to watch from the sidelines. Some members of the New England Congressional delegation are trying to reduce the potentially devastating economic blow to fishing families and coastal communities by seeking federal disaster assistance, and for their good intentions and hard work, are getting a bizarre and negative counter reaction. And, NOAA appears to look for grossly wrong-headed short-term fixes, such as the concept of an accelerated effort to open some of the best remaining habitat areas in the Gulf of Maine to increased trawling and dredging.

Consolidation, fleet diversity, maintaining our region’s fishing heritage, federal assistance and creating new economic opportunities for fishing families are all important and serious issues, but they continue to avoid the core problem. The bottom line is that when there are no fish, there will not be a fishing industry.

What NOAA can do now is to exhibit leadership: stop looking towards actions which would heave the decades-long saga of the New England groundfishery into the next episode and, instead, focus on restoring the fish populations which are the basis for the jobs, resources and tremendous benefits which we all need and enjoy. Don’t wait for the elections and for Congress to sort itself out. Don’t seek to cheat on “inaccessible” fish stocks by opening closed areas. Catch limits which are not based on scientific data may be more politically palatable, but will only continue to mask the simple fact that the region’s best fishing captains aren’t finding fish because the fish are not there.

Here’s a proposal to NOAA: Follow the law. Tell the truth. Do the right thing.

Realistic catch limits are based on scientific data and incorporate a responsible amount of precaution. NOAA can establish rebuilding timelines which create a much higher likelihood of restoring fish populations. Ending overfishing is not just a legal requirement but a best management practice.

In addition to strict scientifically set catch limits, the most basic component for healthy fish populations and ocean wildlife is to protect and maintain quality habitat. This is an area of management which NOAA can effectively control. NOAA needs to come to grips with the reality that better protection and restoration of degraded habitat is not only integral to the recovery of fish populations, but serves to create the long term resilience that fish populations need when the more unpredictable effects of climate change hit. Existing habitat areas and areas already closed to bottom trawling and dredging, juvenile groundfish in nursery areas and essential fish habitat are building blocks for restoring the fishery. This is a Basic 101 Management issue.

Fishing families and coastal communities deserve any help they can get in an economic crisis. Over a year ago the Department of Commerce deployed Economic Development and Assistance Teams to assess economic impacts to New England communities. Those reports are gathering dust. High-level interagency coordination helped develop solutions in the wake of the Deepwater Horizon disaster, and they can do that on a respectable scale in New England. Support communities with the available programs of the Departments of Labor, Housing and Urban Development, the Small Business Administration and community grants.