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.

Senator Scott Brown (Photo credit: Bibliographical Directory of the U.S. Congress)

In late October, Senator Scott Brown called for the resignation of NOAA administrator Jane Lubchenco. CLF’s Peter Shelley wrote the following Letter to the Editor of the Boston Globe in response to Senator Brown’s statement:

Call to oust chief of NOAA is bad for a fishing industry in flux

SENATOR SCOTT Brown’s call for the resignation of the administrator of the National Oceanic and Atmospheric Administration is misdirected and destructive to a changing fishing industry that needs predictability, not political theater (‘‘Citing ‘indifference,’ Brown says NOAA chief should be fired,’’ Metro, Oct. 23).

Brown seems to think that the catch-share program was forced on Massachusetts fishermen by NOAA and Jane Lubchenco. In fact, the approach of having sectors of boat owners manage their fish quotas was developed and approved by the New England Fishery Management Council with unanimous support from the council’s Massachusetts fishing industry members and Governor Patrick’s representative. NOAA adopted the council’s plan without change. Eighteen months in, with some promising results and no quantitative evidence of an economic emergency, the council continues to support the catch-share program.

Brown’s call for Lubchenco’s head may curry favor with some frustrated Massachusetts groundfishermen, but it won’t solve their problems. What they do need is economic stability and confidence that their concerns will be addressed in full by the New England council. Its efforts to build on the program’s successes and mitigate its negative impacts are already underway with the full support of NOAA and Lubchenco.

If Brown is really concerned about the fate of Massachusetts’ fishing industry, he’d be better off seeking to end the congressional stalemate that is prolonging the national economic crisis than creating a bogus enemy in Lubchenco.

Peter Shelley

Senior counsel Conservation Law Foundation Boston

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:

• October 11: “Celebrate Seafood in October” – A list of October seafood festivals that will be happening along the New England coast.
• October 13: “Fish Talk in the News – Thursday, October 13″ – A weekly update of recent news stories that might interest TalkingFish.org readers. This week: a bill introduced by Senators Brown and Ayotte to allow the dismantling of the sector system, Target commits to selling only sustainable and traceable seafood by 2015, discussion of threats to river herring and potential actions for protection, recollections of when salt fish was king in St. John’s, and Wellfleet OysterFest, which is coming up this weekend.
• October 14: “Senator Sheldon Whitehouse Talks Fish” – See Rhode Island Senator Sheldon Whitehouse discuss the impacts of climate change on the world’s oceans, and how we are ignoring these threats “at our own peril.” (CLF Rhode Island Director Tricia K. Jedele also blogged about this on the CLF Scoop – read that blog here.)

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.