June 28, 2013 — Two regular commercial fishing industry commentators, Nils Stolpe and Dick Grachek wrote pieces this week looking at the Conservation Law Foundation's criticism of using the judiciary to address issues in fisheries management while simultaneously doing exactly that.
Saving Seafood analyzed claims made in the lawsuit and related press release earlier this week.
THE CONSERVATION LAW FOUNDATION'S RELEASE ABOUT MARTHA COAKLEY'S LAWSUIT by Nils Stolpe
“The Attorney General is wrong on the law and she is wrong on the facts,” said Peter Shelley, senior counsel with CLF, who has been actively engaged in fisheries management for more than 20 years. “Political interference like this action by Attorney General Coakley has been a leading cause of the destruction of these fisheries over the past twenty years, harassing fishery managers to ignore the best science available….We need responsible management which includes habitat protection and a suspension of directed commercial and recreational fishing for cod. We also need some serious leadership from our elected officials. Going to court or getting up on a political soapbox will not magically create more fish.” (from a Conservation Law Foundation press release on May 31.”
It’s kind of hard to believe that just about immediately after this press release went out the Conservation Law Foundation – along with the Pew spawned Earthjustice (recipient of some $20 million from the Pew Charitable Trusts) – filed suit in federal court to prevent NOAA from cutting the groundfish fishermen the tiniest bit of slack, perhaps allowing more of them to survive a largely management manufactured slump. It seems that in the release Mr. Shelley must have meant “other people going to court or getting up on a political soapbox will not magically create more fish. However if it’s me or my foundation funded buds going to court, watch out ‘cause those fish will shortly be on the way.”
I usually stay away from New England issues because my colleagues up there are more than capable – in spite of the gross inequities resulting from the mega-foundation mega-buck funding of organizations like the Conservation Law Foundation and Earthjustice – of representing their own interests. However I couldn’t sit back and not comment on the CLF position voiced by Peter Shelley in an article, Conservation group sues NOAA to block openings, by Richard Gaines on June 6.
Explaining how the CLF/Earthjustice position wasn’t hypocritical, Mr. Shelley explained “the distinction for me is that I have seen time and time again when politicians — in this case the attorney general — hasn’t participated in the (fisheries management) process, and then comes in to try to influence the process in litigation. They’re not taking a legal position, there’s not much there except politics.”(http://preview.tinyurl.com/mnzgsnu ).
To suggest that this is a more than slightly puzzling statement for an attorney to make would be an understatement. Mr. Shelley must believe – or must want other people to believe – that Attorney General Coakley was acting on her own when filing the suit. Apparently he believes – or wants us to believe – that because she has never personally participated in the fishery management process her suit has no merit. He is and has been, it would seem, in attendance at many meetings in New England at which fish are discussed and it appears as if in his view this makes his suit de facto righteous and hers nothing more than political posturing.
Massachusetts Attorney General hasn’t participated in fisheries management?
Let’s examine his contention that the Massachusetts Attorney General hasn’t participated in the (fisheries management) process in a little more depth. First off, I doubt very much that Attorney General Coakley brought the suit on her own behalf. In fact, I’d bet dollars to donuts that she brought it on behalf of the Commonwealth of Massachusetts. Even Mr. Shelley must know that the Commonwealth, via a succession of capable and effective representatives, has for at least the last forty or so years participated heavily in federal fisheries management via the Magnuson Fisheries Conservation and Management Act. Either Paul Diodati, Director of the Commonwealth’s Division of Marine Fisheries, or David Pierce, the Deputy Director, are at every meeting of the New England Fishery Management Council and Dr. Pierce is a member of that Council’s Groundfish Committee (as well as its Herring, Sea Scallop and ad hoc Sturgeon Committees and the Mid-Atlantic council’s Dogfish and Herring Committees). Mr. Diodati is also the Chairman of the Atlantic States Marine Fisheries Commission and the Co-Director of the Massachusetts Marine Fisheries Institute. They aren’t on these bodies on their own behalf either. They are there representing the Commonwealth as well. And before they were there, their predecessors were, and they were just as deeply involved.
This commitment to and participation in the fisheries management process by the various representatives of the Commonwealth of Massachusetts began long before Mr. Shelley, the CLF and the Pew Trusts discovered each other. The Commonwealth, as represented in the current suit by the Attorney General whose participation Mr. Shelley seems so intent in marginalizing, established its bona fides in fisheries management at least a century ago (and will hopefully remain involved far beyond the point when Mr. Shelley, the CLF and Pew move on to “greener” pastures).
In fact the groundfish management measures that Mr. Shelley’s justifiable (in his estimation) suit is aimed at were a work product of the New England Fisheries Management Council, an institution which was established by the Magnuson Act in 1976 that has been in continuous operation – with overlapping changes in membership and administration – since then. And in spite of Mr. Shelley’s so apparent disagreement with this fact, the Council is mandated by the Act to manage for the benefit of the fish, the fishermen and the fishing communities. The Council members voted by an over 75% majority (13 to 3) to support the measures that Mr. Shelley et al are now going to court – of course in a non-political fashion – to prevent. As opposed to Mr. Shelley’s “more than twenty years” trumpeted in the CLF press release, how many hundreds of years of collective fisheries science and management experience do the Council members and staff possess? How many collective years of management experience do the Council members whose votes Mr. Shelley and his pals are going to court to nullify have.
Evidently it isn’t fisheries management experience that Mr. Shelley finds so valuable. It’s whose management experience that matters.
These are the people, the agencies, the institutions, the experience and the actions behind the Commonwealth’s lawsuit – the one that Mr. Shelley wants us to believe is based on nothing more than “political posturing.”
And what of the constituencies being represented? Attorney General Coakley's constituency is made up in large part of Massachusetts fishermen, all of those people, families and businesses that depend on them, all of the Commonwealth's consumers who, apparently unlike Mr. Shelley et al, realize that a seafood dinner should involve something more satisfying and wholesome than a several-times-frozen lump of imported shrimp, tilapia or swai, and all of them, and us, who seriously appreciate fishing traditions going back to colonial times.
On the other hand, from what I've been able to discover (see http://www.fishtruth.net ), Mr. Shelley's, CLF's and Earthjustice’s "constituents" are a handful of mega-foundations and well-to-do-donors, and I’d imagine a lot of internet "click here if you don’t like fishermen or fishing" residents of anywhere (but I’ll again bet those same dollars to those same donuts that very few of them are in coastal Massachusetts).
So few groundfish?
Then Mr. Shelley brings up what he wants us to consider the “fact” that there are so few groundfish available to the fishermen that they are no longer filling their annual quotas. To the uninformed (those “click here” constituents, for example) this probably seems a compelling argument for shutting down the fisheries, Mr. Shelley’s often stated goal. It must make sense to many people who are unfamiliar with our modern fisheries “management” regime as it has been distorted by lobbying by environmental activist organizations like CLF. In fact, however, there are other and much more believable causes of uncaught quota than not enough fish.
The first of these would be the existence of so-called “choke” species. Much more valuable fisheries can be shut down because of unavoidable bycatch of other species with much lower quotas. Take the situation in which two species – the targeted species and the “choke” species – are inextricably mixed during part of the fishing year. Fishermen, tending to be rational even when dealing with an irrational system such as the one that Mr. Shelley and his cronies have built, will avoid the target species in spite of its abundance because they know full well that when the catch limit for the “choke” species is reached both fisheries will be shut down. In essence they are leaving the uncaught quota “in the bank” for later harvest. Needless to say, that later harvest isn’t guaranteed and it’s easy to imagine that in many instances it remains uncaught.
Then there are the meager trip limits for some stocks. Catch shares or not, in instances it just isn’t worth it for some fishermen to run their boats offshore for a few hundreds of pounds – or less – of fish. They’ll remain tied to the dock or will target other species with quotas that will allow them more income.
And we can’t forget low prices at the dock. Fish markets have adjusted to the recent vast swings in supply of some of the traditional species (a testament to the lack of effectiveness of our fisheries management system) by switching to alternative products. With the most productive fishing grounds in the world in our EEZ it’s hard to imagine that tilapia is the most heavily consumed finfish in the U.S., but it is. Compensating for these often low prices is a large part of the reason for the development of alternative markets for our domestic fisheries, but it’s somewhere between extremely difficult and impossible to move large quantities of fish in small lots.
Then there’s the impact of changing environmental conditions on the traditional availability of species, Said most simply, fish aren’t necessarily where they have been found by fishermen for generations. Though Mr. Shelley apparently want you to think that means they’re not there at all, that’s not necessarily so. Fish stocks are dependent on water temperatures, as are the critters they feed on, and water temperatures have been changing significantly in recent years. Some areas that used to reliably produce a particular species of fish at a particular time of the year no longer do so. With the meager quotas and the continually increasing costs of running a boat a fisherman isn’t as likely to search for where the water temperature changes have driven the fish. Economics won’t allow it.
Additionally, fish surveys are operated as if our U.S. coastal waters exist in a steady state; that conditions today are as they were when the survey was started. The same spots are sampled at the same time every year, and when a particular species is no longer taken in the sample or is taken in reduced numbers, the automatic assumption is that fishing is the cause of “the problem” and that reducing or curtailing (a la Mr. Shelley) fishing is the solution. Compounding the real problem, the reduced availability of research funds, the probability of extending the scope of the surveys is pretty low.
In a follow-up article on June 10, Shelley elaborated that the suit filed by Attorney General Coakley was “political ‘soapbox’ posturing” while “our suits are not political… they’re strictly based on the facts, and we do it as a last resort” (http://preview.tinyurl.com/mysrlbz).
Attorney General Coakley, Governor Patrick et al, please keep on keeping on. Effective fisheries management should involve much more than happy fish and happy ENGOs. When Congress passed the Magnuson Act in 1976 the Members realized this and it's about time that the pendulum gets pushed back in the direction that it was intended to swing in. Fish count, but so do fishermen, fishing communities and seafood consumers. If the U.S. fishing industry is to survive, the initial balance that was amended out of the Act by intensive lobbying by foundation funded activists claiming to represent the public must be restored.
For more information on Shelley’s/the Conservation Law Foundation/Earthjustice lawsuit see Conservation Law Foundation & Earthjustice Make Unfounded Claims in Lawsuit Filing at http://preview.tinyurl.com/pwaaabu.
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For those of you who were interested in the FishNet piece (available at http://www.fishnet-usa.com/Bluefin%20tuna%20and%20Pew.pdf) on the ongoing attempts by the Pew Trusts, one of Mr. Shelley’s benefactors, to steer the Bluefin tuna management meeting this week in Montreal, the critique of the claims of the Pew people attempting the steering are available on the Saving Seafood website at http://preview.tinyurl.com/nc59z3q. I’d suggest that you take the time to read it and the Saving Seafood special report on Bluefin tuna at http://preview.tinyurl.com/ojo5jne.
CLF AND THE RIGHT TO THE JUDICIAL SYSTEM by Dick Grachek
From a Savingseafood.org post:
The day after the Mass. AG announced a lawsuit against NOAA, CLF filed two lawsuits against NOAA over Framework 48, implemented to provide some relief to the struggling fishery while still conserving fish habitats.
Yes definitely, CLF's bogus counter-suit is fanciful and an adolescent tantrum, and one of their extreme reactions to challenges. But CLF has other motives for suing besides the content of its claims making any sense. From CLF's perspective they own the court system and theyseem to take it personally when someone else sues NOAA. In response to Attorney General Coakley's action on behalf of fishing, CLF declares that there is an intruder in the lawsuit house—and for political reasons to boot—"Foul!" they cry—these are certainly not the benevolent, altruistic, and sophisticated adult motives that drive CLF to sue, as outlined in Shelley's 2001 speech discussed below.
Actually, according to Shelley one of CLF's major lawsuit strategies is about garnering publicity and not so much about content (actually the ridiculousness of CLF content is obvious to anyone that has an even rudimentary knowledge of the fisheries and has read most anything from CLF). But CLF's lawsuit form over function idea is spelled out quite clearly by Peter Shelley, now senior attorney at CLF, in a 2001 speech to an audience in Phoenix concerning the cost/benefit of litigation in fishery management, entitled Ten Years ‘After The Fall’: Litigation and Groundfish Recovery in New England.
Shelley struts one of his several justifications for suing (and steering) NOAA:
(page 27 top)
“The fifth reason to litigate is that litigation is newsworthy. Our objective is to build a political constituency for a healthy ocean. That is why the Conservation Law Foundation takes the positions it takes and does the advocacy work it does. That is why foundations support sustainable fishery management support groups like the CLF, and that is why we go to court. We do not go to court just to win a motion or a case. We are trying to build a political constituency for the ocean. The only news outlets that cover council meetings are the Commercial Fisheries News and the National Fisherman. Their coverage is pretty obscure, at a micro-level, and uninteresting to most people. Bringing a lawsuit on the other hand guarantees front page headlines. That placement and exposure gives the conservation community an opportunity to explain to the American people, who are incredibly ignorant about the marine system, about what actually is going on in our oceans. Generating a newsworthy event gives us an opportunity to educate the public.”
Now, of course, this is not the only reason to litigate according to Shelley. From the same speech (pages 23-24) Shelley expounds calling on his vast knowledge of human nature and developmental psychology: “…fishermen take everything very personally.”
"Unlike the steel industry or some other mature industry, fisheries management is personal, and it is personal to the scientists in NMFS as well. Again, going back to the developmental theory, it is similar to dealing with an adolescent. They take it personally when you try to tell them they cannot do something. A general lack of sophistication and their extreme reactions to challenges make fisheries groups and NMFS very challenging parties to work with."
"From the fisherman's perspective, they "own" the marine resources, and have owned them for hundreds of years. Those are their fish. Again, I am speaking of New England, and I am talking about marine resources. Environmental groups are at best considered poachers in the minds of the fishermen. Environmentalists are taking fish for some illegitimate public purpose that has the effect of removing product from their boat."
Oh yes, and their benevolent and much needed guidance through lawsuits is the reason that the groundfish stocks are rebuilding, and in '93-'94 it was a CLF lawsuit that single-handedly saved the scallop industry—from itself.
(From the last paragraph in Shelley's very enlightening speech):
"And the last reason I would give you, and this is a pure ego statement, because there are many other factors and players producing the result, is that litigation works. If I had the chart of the groundfish stock status in New England to reference here, the downward spiral, which was significant for the years proceeding our lawsuit, came to a stop two years after our lawsuit. Now all the stocks that were the subject of our litigation are rebuilding at different biological rates, but they are all on positive inclines. The scallop fishery, which was slowly going bankrupt in New England, because of overharvesting, has reopened and is bringing in millions of dollars of new revenues. This is a direct result of the closures that came from the CLF lawsuit. Litigation works and I am not one to knock something that works in the world of fishery management that is otherwise so fanciful."
It's really not so much the content or the winning of their suits that is of importance to CLF, "We do not go to court just to win a motion or a case. We are trying to build a political constituency for the ocean." And they are also trying to build a constituency of NGO Foundations to support their 1%-er fees—Shelley is a Pew Fellow since '96. It would seem, according to Shelley's statements, that it's the publicity through major anti-fishing media outlets, such as the New York Times and The Boston Globe, that they're really after. That apparently is the way CLF makes money—and saves all the bumbling adolescents from devouring their own industry.
Interesting also is Shelley's article in 2012, entitled Courts Can’t Fix What’s Broken With Groundfish.
This article is actually an account of Shelley's arguments against the Amendment 16 lawsuit brought by New Bedford and Gloucester, and fishermen and their organizations from up and down the coast. The lawsuit questioned the legality of the imposition of Amendment 16 ITQ's as it violates various statutes of the Magnuson-Stevens Act governing fisheries. Shelley doesn't actually address the points of the suit as it questions the procedure of the implementing of Amendment 16; but he implies, somewhat ironically in light of his 2001speech outlining all the duplicitous motives behind CLF lawsuits, that the fishermen and the cities and the congressional members and all the various organizations that were in support of this Amendment 16 suit, somehow had less than genuine motives for bringing the suit.
From Courts Can’t Fix… (linked above) Shelley referring to plaintiffs' motives for bringing Amendment 16 suit:
"…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." (Hmmm, I wonder where that idea came from?)
Shelley cites reasons for CLF litigation: "Bringing a lawsuit on the other hand guarantees front page headlines." (Ten Years After The Fall,pg 27)
"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." (Troubles here refers to Amendment 16 ITQ consolidation etc.)
CLF's lawsuits saved the groundfish and the scallop fisheries in the 90's; but now a lawsuit can't fix anything, and is political and puzzlingand disingenuous; unless, of course, that lawsuit was initiated and authored by CLF: CLF The Adult, CLF The Good Parent, and CLF the only legitimate invoker of the judicial system. In 2001 Shelley had this idea about litigation motives and justification: (Ten Years After The Fall, pgs 26-27)
"Access to the courts to redress and re-balance injuries to unrepresented or underrepresented interests is an American tradition."