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.

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.

August 29 – Fisheries Scientists across the Yellow Line? – In discussions about how to set catch limits for yellowtail flounder, some scientists may have crossed the line separating pure science from policy making.

August 31 – Fish Talk in the News – Friday, August 31 – In this week’s Fish Talk in the News, a draft disaster relief package for the Northeast groundfishery; the mayor of New Bedford asks NEFMC not to reduce the catch limit for yellowtail flounder; dogfish receives MSC certification; NMFS adopts a new scallop stock assessment technique; warmer waters may be changing the distribution of New England fish stocks; the Ocean Health Index gives US oceans a low score for food production; and Coast Guard safety inspections for fishing vessels become mandatory this fall.

August 31 – A Proposal for NOAA – Why does this current 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.

August 17 – Fish Talk in the News – Friday, August 17th – This week in Fish Talk in the News: Canadian lobster fishermen reach a deal with processors; a New Bedford scalloper sues the federal government over harsh fines; infections grow in Massachusetts striped bass; the “rust tide” strikes Buzzards Bay; New Hampshire promotes new oyster farms; the Bigelow Laboratory receives $1 million in grants; and fishermen are concerned with poor data on monkfish.

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 >

In arguments made today before Federal Judge Rya W. Zobel on the federal lawsuit regarding the New England fisheries management system known as Amendment 16, Conservation Law Foundation senior counsel Peter Shelley defended the process in which the new rules were developed and agreed upon at the New England Fishery Management Council and re-affirmed CLF’s support for the Amendment.

Shelley stated, “This lawsuit is not so much about the specific merits of Amendment 16, but more about the integrity of the process by which the new rules were developed and vetted and set into motion. The process, which involved all of the fishing interests, including some who today decry it and the outcome it produced, was fair, rational and legal. New Bedford’s interests were directly represented in those lengthy deliberations and the Commonwealth of Massachusetts participated actively in both the Amendment 16 science decision-making and the policy development. This is the New England Council’s plan, not a National Marine Fisheries Service (NMFS) plan.”

“CLF supports the Council’s approval of Amendment 16 not because it is perfect, but because it represents a reasonable decision, reached after an extended transparent public debate that reasonably meets the Magnuson Stevens Act and National Environmental Policy Act requirements while attempting to provide additional flexibility for fishermen in the region to fish more efficiently and profitably if they want to. The related issues of consolidation and fairness in access to fish are on the Council’s plate now and should be carefully analyzed and debated.”

After the hearing, Shelley observed, “What we have learned over the past fifteen years is that strong and effective management of this important public resource, coupled with some degree of luck with Mother Nature, can restore fish populations to high levels and support a vital and stable domestic fishing industry. Amendment 16 is designed to accomplish that objective and is consistent with the Magnuson Act.”

Read the text of Peter’s full argument here.

In New England the issue of fisheries management is a serious topic as it involves serious questions of science, economics, healthy ecosystems, an iconic part of New England’s culture and the very real issue of many people’s livelihoods. Still, the public debate around fishing and fisheries management in New England can often be a lot like arguing baseball – the home team is usually deemed more virtuous than the rest of the league and many facts, figures, data and theories are promoted to defend that assertion. These debates can happen between any combination of folks with an opinion or a perceived stake in the issue – trawlers and gillnetters, one port versus another, one state versus another, commercial fishermen and recreational fishermen, fishermen and regulators, and fishermen and conservationists, among others. While baseball rivalries can be pretty heated, the overwhelmingly vast majority of fans are able to understand that, after all, it’s just a baseball game. Most times.

The thing is, fishermen, regulators or conservationists involved in fisheries issues in regions outside of here often consider the debate and behavior in New England to be much more contentious. For some reason we seem to treat each other more rudely and with such a lack of civility that it is noted across the country. The public debate and political hyperbole over the implementation of the most recent groundfish management plan is a clear example. Despite years of hard work and robust debate by the New England Fishery Management Council and a near unanimous vote to approve the “sectors” plan (final vote 16-1) for managing species like cod, haddock and flounder, the current public debate resembles a fist fight over the results of last year’s World Series. Working the refs, rallying the crowd and harassing the other team’s fans has become a larger part of the story than the game, as it were.

So, when federal Commerce Secretary Gary Locke issued a plain, legal, factual and well reasoned response to deny Gov. Patrick’s request to raise the catch limits through “emergency action” we felt the Secretary deserved an honest “thank you.” CLF and nine other conservation groups sent him a  letter saying so. Thank you Secretary Locke. We think you made an important, rational and sober decision that will help move New England forward.

If you love Massachusetts’ oceans and care about our legendary fishing industry, then CLF is asking you to take action right now to ask Governor Patrick to stand behind the science-based plan he approved to protect that fishing legacy for generations to come.

For the first time in decades, Massachusetts’ fish populations and fishing industry are showing signs of health. Earlier this year, after a four-year public process, New England implemented an innovative new approach to fishing for cod, haddock, flounder and other groundfish. Today, overall gross revenues for the groundfish fleet are up, fishermen are not overharvesting fish and fishing boats are being operated more efficiently.

Governor Patrick voted to put the new plan in place and has said that he agrees with the approach. However, now Governor Patrick is taking action that threatens to undermine the new plan, endangering the sustainability of fish stocks and the livelihoods of the fishermen who depend on them.

Under pressure from entrenched fishing interests who do not like the new system, the Governor petitioned the federal Secretary of Commerce to declare a state of economic emergency in Massachusetts fisheries and is supporting a lawsuit that challenges the groundfish management plan. These special interests are leading the Governor astray from his stated commitment to finding a balance between conservation and economic viability in the regulation of groundfishing in Massachusetts. The Governor’s actions are emboldening others, including some in Massachusetts’ congressional delegation, to propose even more radical steps that would dismantle the progress that has been made over the last decade. You can ask the Governor to stand by the plan that he approved by sending him a letter right now.

Tell Governor Patrick that instead of spending scarce state resources trying to undo groundfish protection, both in Massachusetts and in Washington, you want him to focus on defining and fixing the problems with the new plan without undermining the plan itself, or changing the scientifically-set catch limits.

Click here to send a letter to the Governor asking him not to undermine the new fisheries management plan, but instead to build a bridge between fishermen, regulators and the environmental community to make the new plan work for Massachusetts.

Patrick Administration offshore wind expert Greg Watson with an artist's rendering of the future wind blade/turbine port facility. (Photo credit: Sue Reid)

At an event Wednesday afternoon in New Bedford, Governor Patrick, Congressman Frank, Mayor Lang, Secretary Bowles, Senator Montigny, DOER Commissioner Phil Giudice and a host of other local, state and federal officials together announced that New Bedford’s South Terminal will be developed as a deepwater port to serve the Cape Wind project and other offshore wind projects to follow.

Congressman Frank at the podium. (Photo credit: Sue Reid)

It was a rare chance to celebrate the progress that has been made in bringing the nation’s first offshore wind project to fruition after so many years.  And it was striking to see longshoremen side-by-side with electrical workers, environmental advocates, renewable energy industry stakeholders, politicians and former politicians, such as former New Bedford Mayor John Bullard who long has championed the benefits of wind power — on land and offshore alike. The key message of the day was hammered home by speakers who highlighted the New Bedford wind port as a compelling example of the sort of convergence between economic and environmental objectives that we all seek.  Exactly.

Read more about CLF’s work on Cape Wind and other renewable energy initiatives at clf.org>>