Law

In crisis mode, angry and worried, as many as 40 parties — fishing industry plaintiffs and their attorneys from North Carolina to Maine — are scheduled to participate in a conference call Friday to discuss whether to appeal a federal judge's decision upholding a radical reorganization of the groundfishery.

Although the action has been described as climaxing the final chapter in the 400-year history of traditional Atlantic groundfishing by a fleet of small owner- operated boats — and reflects what has been described as an extreme sense of deference by the judge to the National Oceanic and Atmospheric Administration — a decision to take an appeal is not considered a foregone conclusion.

"The standards of appeal are high," said New Bedford Mayor Scott Lang, a former prosecutor and leader of the city that, like Gloucester, was among the lawsuit's plaintiffs. "We'll air out the possible grounds for appeal from this tremendous injustice."

"Looking at the list of people involved in the call, it is so large as to be unwieldy," said Gloucester Mayor Carolyn Kirk. "Our best bet may be to craft legislation.

Read the complete story from The Gloucester Times.

 

 

 

 

 

U.S. District Judge Rya Zobel rejected a dozen challenges to the legality or propriety of Amendment 16, the radical reorganization of the New England groundfishery into a hybridized system based on business cooperatives.

Only the pivotal matter of the nature of the program — was it really a catch share commodity system or something just short of that? — seemed to cause the judge difficulty.

If a true Limited Access Privilege Program, a LAPP, or an Individual Fishing Quota, an IFQ, then by an amendment sponsored by Congressman Barney Frank to the 2006 reauthorization of the Magnuson-Stevens Act, the system would need to go to a referendum before going into effect.

Frank wrote the amendment to prevent back-door introduction of catch shares.

Catch shares almost always produce a small number of big winners and a large number of losers as the equity in the fishery is commodified, distributed according to some formula referencing past fishing history and at times other considerations, and then traded to create a more efficient economic model.

Read the complete story from The Gloucester Times.

 

 

 

 

 

 

With the decision of U.S. District Court Judge Rya Zobel to defer completely to the federal government in the regulation of the New England groundfishery, plaintiffs and industry opponents of the commodification regimen and NOAA's methods are looking to Congress, the third leg of the democratic system, as the best — if not last — hope for redress.

Other opponents of the system also wondered at the credulity of the judge in her decision to defer to NOAA.

Food & Water Watch, which filed an amicus brief in support of the plaintiffs, said it seemed clear that the government decided on the result it wanted and then worked it in backwards-, manipulating rather than deliberating, a performance that warranted skepticism rather than deference.

That approach was the epitome of "arbitrary and capricious," the legal definition Zobel cited as the threshold for overturning the action, said Zach Corrigan, acting director of the consumer group's fish program. "What we've called for is Congress to step up and prevent catch shares to be implemented, something that is more needed than ever because the courts are more deferential than ever."

Congressman Barney Frank who represents New Bedford and filed a joint amicus brief in support of the suit with Congressman John Tierney, said Congress needs to amend the Magnuson-Stevens Act to make clear that referendums must be held before such systems are imposed. The willing avoidance of that step in New England, to Frank, is "basically an acknowledgment that people in the fishing industry would have vetoed their plan."

Vito Giacalone, policy director for the Gloucester-based Northeast Seafood Coalition, who has warned that the system encourages speculating, said he was furious that the judge was so deferential.

To Zobel's way of thinking, Giacalone said, "it walks like a duck, and quacks like a duck, but technically, it's not a duck."

He also noted that while NOAA argued in court that the system was something less than a bonafide commodities market, NOAA officials seemed loathe to issue strong warnings that the system was temporary and could be altered; instead, the government moved aggressively to create within the Amendment 16 regimen a system of federally funded state permit banks.

These, he said, seem suited for use in a true commodities market. Herein, Giacalone said he saw hypocrisy,

Mayor Carolyn Kirk also questioned Zobel's credulity. "She took the government's positions at face value," said Kirk.

"This is readily apparent in her acceptance of a 'reasoned and scientifically grounded process' in deciding that the annual catch limits are not overly conservative," she said, adding that "any fisherman or non-government scientist can provide evidence of the poor science used in the government's decisions."

New Bedford Mayor Scott Lang said he believed the case was doomed when Zobel refused to allow the plaintiffs discovery into improper influences on NOAA's decision-making by environmental non-government organizations. "My gut is we needed discovery to show that the system was a sham," he said.

U.S. Sen. John Kerry, who described the government system embodied in Amendment 16 as "doctrinaire," urged the plaintiffs to appeal Zobel's ruling up through the judicial system.

"Yesterday's ruling is disappointing and leaves our fishermen facing decreased income, unfair consolidation and job loss," said Tierney. "I will continue to work directly with our local fishermen to determine how I can help through legislative, investigative or other congressional action to ensure our fishermen have more flexibility.

The Obama administration's administration of NOAA and its ally, the Conservation Law Foundation, which joined the suit with the Cape Cod Commercial Hook Fishermen's Association, expressed satisfaction at the ruling.

"We are pleased that the U.S. District Court in a carefully reasoned decision affirmed the sector management approach that NOAA adopted and that was developed by the New England Fishery Management Council over more than three years," said NOAA chief counsel Lois Schiffer.

Read the complete story from The Gloucester Times.

 

 

 

 

 

After Zinser debunked years of denial about the problems in the Northeast law enforcement office of NOAA and exposed wrongdoing, mismanagement and missing funds, Lang appealed to him to look into the agency's rule-making process. Lang wanted to know what has been happening behind the scenes, who is involved and what they are doing, and how sector management and catch shares were arrived at. But Zinser demurred, saying he would wait until the pending lawsuit was settled.

That day has arrived, unless the cities decide to appeal the Thursday ruling by Judge Rya Zobel that went entirely in the government's favor.

"The case was decided under the administrative review standard, which is very, very narrow. There is complete deference to a federal agency based on their record," Lang said. "Their record was built to support an action we didn't think was legal to begin with."

"We need a process that puts people under oath," he said.

Lang was irritated by National Oceanic and Atmospheric Administration spokespersons' continuing insistence that the imposition of catch shares and sector management was a three-year process that was ratified 15-1 by the New England Fishery Management Council on behalf of fishermen.

"We know the council is a pro forma instrument of NOAA," Lang said, calling the vote a "travesty."

"The council is staffed by NOAA. When they don't vote right, it's like the old Soviet chamber that says 'we may have to veto what you just did.' The idea that they would say with a straight face this was crafted with fishery input is not credible. They're trying to rewrite history.

"In 36 days they tried to educate the fishing communities around the Northeast how catch shares worked. In all honesty, they rolled it through. They weren't even ready with computers, they were so intent. The idea that this was a long-considered process defies any credibility," Lang said.

More than that, however, he and others believe NOAA has acted in direct contradiction of the Magnuson-Stevens Act's call for the protection of fishing communities against the side effects of harsh regulations.

"They turned fish, which is a natural resource, into a private commodity traded on fish exchanges. That was never contemplated by Congress. It's completely opposite of what Congress has tried to do," he said.

U.S. Rep. Barney Frank, D-Mass., issued a statement Friday saying much the same. Frank, who wrote the Magnuson referendum requirement in the 1990s, said: "I had succeeded in getting legal language to require a referendum on the type of quota programs that Amendment 16 utilizes, and I am especially troubled because NMFS's refusal to have a referendum is basically an acknowledgment that people in the fishing industry would have vetoed their plan."

He said Magnuson clearly must be amended to reflect and specify the intentions of Congress and stop NOAA from evading referenda. 

Read the complete story from The Standard-Times.

 

 

 

 

 

NEW BEDFORD — A federal court judge has ruled firmly against New Bedford and Gloucester and in favor of NOAA in the contest over the legality of controversial catch shares and sector management of the Northeast fishery.

In the ruling issued late Thursday, Judge Rya Zobel deferred to the National Oceanic and Atmospheric Administration in every facet of the argument.

The ruling is a major setback for the fishing ports, which had argued that the government sidestepped its obligations when it imposed a drastic change in the way the fishery is managed, in essence privatizing the fishery and consolidating it into the hands of fewer players. The plan created cooperatives called sectors, which fished according to the sum of members' allocations.

The system kept many boats tied to the pier, drove many owners out of business and enriched a fortunate few of the biggest players.

The case was argued in federal court in March with much resting on the interpretation of the Magnuson-Stevens Act, which governs fishing policy.

Zobel wrote that the issue of whether the new system amounted to "limited access permits" or "individual fishing quotas" was not clear-cut, and that is an important distinction. If the new rules had been either one, they would have been subject to a referendum in the industry.

As it stands, the new rules were imposed by the government over the industry's objections.

"While it is a close call, I do not find that the agency's conclusion that Amendment 16 implements neither a LAPP nor an IFQ," Zobel wrote.

She found that sectors as described today fit the definition of sectors that are exempt from a referendum, under the Magnuson-Stevens Act. The fishing ports had argued that NOAA was playing games of semantics, and that sectors as understood by Congress when it passed the act were different from the sectors devised starting in May 2010.

The contention was that a test program of sectors on Cape Cod under Amendment 13 was designed very differently than the one imposed last year under Amendment 16.

There was enough of a difference to call for a referendum, the suit claimed.

Zobel rejected that argument, saying: "There are, to be sure, differences between the A13 (Amendment 13) and A16 (Amendment 16) sector programs, but both apply quota-like allowable catch limits to sectors. … It is not manifestly contrary to law to construe the 'sector' exclusion as a reference to the quota-like limits applicable to these sectors."

The judge rejected the cities' contention that Magnuson calls for NOAA to make stock assessments for all species as a whole, as opposed to watching every single one. While the language of the statute could go either way, she decided, the totality of Magnuson steers in the direction of keeping track of every individual species, even if that results in catching far less of abundant species than might otherwise be possible.

Zobel dispensed with the argument that NOAA was obligated to do an assessment of the effects of sector management by calling it a "procedural requirement" that the agency had done well enough to meet the statute.

Even at that, she conceded, "There is no dispute that the A16 policies instituted to rebuild fish stocks will have a negative short-term economic effect on the fishery."

In the matter of the very generous catch allocations given to the Cape Cod hook fishermen as compared to the rest of the fishery, Zobel called the agency's calculations "rational" and denied the charge that they received preferential treatment.

Zobel also rejected the cities' argument that the database of fishing history from which new catch allocations were calculated was flawed and needed to be replaced with other methods. She conceded that there were problems with the database, but concluded, "There is, however, no evidence in support of plaintiffs' argument that the paper reports would be a more reliable source of information than the existent database."

As for the issue of excessively conservative fishing quotas, tighter than conservation requires, Zobel again deferred to the agency, citing case law: "A reviewing court should be most deferential where an agency is making difficult scientific predictions in its area of special expertise."

Again, in the issue of whether NOAA considered all the alternatives to catch shares and sector management, specifically a point system, Zobel sided with the government.

She wrote: "The determination to defer consideration of the point system was not arbitrary."

Robert Vanasse, head of the fishing industry advocacy group Saving Seafood, said there is ambiguity in Magnuson.

"The central point of this lawsuit was, all along, the question of whether the new 'sectors' created by Amendment 16 were the same as the pre-existing 'sectors,' whether they were LAPPs and IFQs in disguise. A quick read of the ruling makes it clear to even a non-lawyer that we're dealing not with a black and white distinction but shades of gray," Vanasse wrote in an email to The Standard-Times on Thursday night.

"To quote Judge Zobel, it's a 'close call.' That's not surprising, since it was the intention of the rule-makers — NOAA, the council, their lawyers and staff — to avoid a referendum by staying narrowly within the bounds of Magnuson's exemption for sectors.

"This whole area of the argument is made even more complicated by the fact that the statute does not explicitly define sectors. As the judge observed, the system dances very close to the line, but in the end, she determined the court was bound by the agency's interpretation.

"Congressman (Barney) Frank, the author of the amendment creating the referendum requirement, has been clear that he thought a referendum was appropriate. Considering how ambiguous this part of the case was, and considering the judge herself admitted it was a close call, that section might be ripe for an appeal," Vanasse wrote.

The Standard-Times did not receive returned calls seeking comment prior to deadline Thursday evening from Mayor Scott Lang, attorney Pamela Lafreniere or attorney Stephen Ouellette, who brought the case in federal court.

Read the story from The Standard-Times.

 

 

 

 

 

BOSTON – June 30, 2011 –  Judge Rya Zobel has ruled against the Cities of New Bedford and Gloucester et al on all counts in their case against NOAA on Amendment 16.

Excerpts of the judge's ruling follow.

Read the complete decision.

While it is a close call, I do not find that the Agency's conclusion that Amendment 16 implements neither a LAPP nor an IFQ, reached as part of the rulemaking process, see AR 864 at 50496-98 (FWW comment that the sector model is an IFQ and thus a LAPP); AR 997 at 56516 (Agency response to FWW comment), is manifestly contrary to statute. The agency reasons that fishermen are issued permits with an associated PSC, but that the PSC never operates as a limitation on how much the permit holder may catch and only acquires meaning when aggregated with other PSCs in a sector. AR 103; AR 997 at 56516. While a sector is, arguably, limited by an ACE to a quantity of fish within the meaning of the LAPP and IFQ definitions, sectors are "temporary, voluntary, fluid associations of vessels" that are not issued permits. AR 997 at 56499. Accordingly, there is no "permit . . . to harvest a quantity of fish." 16 U.S.C. § 1802(26).

The Agency's position that Amendment 16 is not an IFQ, subject to a referendum, binds this court for the additional reason that the statute excludes "sectors" from the referendum requirement, 16 U.S.C. § 1853a(c)(6)(D)(vi), and the Agency reasonably interpreted the exemption to apply to the A16 sector program, AR 997 at 56516. The sector exemption was introduced as part of a 2007 amendment to the MSA, after A13 was implemented. While "sector" is not defined in the statute, it is reasonable to infer Congress was referring to the existing A13 sector program, as it was the only sector program then managed by the NEFMC. There are, to be sure, differences between the A13 and A16 sector programs, but both apply quota-like allowable catch limits to sectors. 69 Fed. Reg. at 22914 (describing A13 sector regulations). It is not manifestly contrary to law to construe the "sector" exclusion as a reference to the quota-like limits applicable to these sectors.
 
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Plaintiffs raise a second issue of statutory interpretation. They argue that, contrary to the Agency's position, the statute requires a fishery to be managed only as an aggregate quantity, rather than in respect to individual stocks, when it comes to measuring MSY and the determination of overfishing. The issue arises because two of the groundfish stocks in the Northeast multispecies fishery are in robust health, while the remaining 20-odd stocks are either overfished or subject to overfishing. Conservation measures for these many threatened stocks have the practical effect of limiting catch for the two abundant stocks.
 
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While there is sufficient ambiguity in the above statutory language to encompass either the Agency's or the plaintiffs' interpretation, the rest of the MSA makes clear that the Agency must manage the health of individual stocks.2    National Standard 8 identifies "rebuilding of overfished stocks" as a conservation requirement. Id. at § 1851(8). A fishery management plan "shall" contain conservation measures "necessary . . . to prevent overfishing and rebuild overfished stocks," id. at § 1853(a), and "may" establish limitations necessary for conservation based on "species," id. at § 1853(b). The Secretary is required to notify Congress when a fishery is overfished, and within one year the relevant Fishery Management Council must prepare a plan "to rebuild affected stocks of fish." 16 U.S.C. § 1854(e)(3). The fishery must be rebuilt as quickly as possible, taking into account various factors including "the biology of any overfished stocks of fish," not to exceed 10 years, except where one of several conditions, including "the biology of the stock of fish," dictate otherwise. Id. at § 1854(e)(4). The Secretary is required to review such a plan at intervals not to exceed two years to determine if there has been adequate progress "rebuilding affected fish stocks." Id. at § 1854(e)(7).
 
The Agency's interpretation is also longstanding and codified in regulation, and deserving of deference. Mead Corp., 533 U.S. at 228 (identifying consistency as a factor which weighs in favor of deference).
 
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Plaintiffs argue that the combined effect of the reduced ACL and the sector program will be economically ruinous for fishermen and fishing communities, and therefore the Agency failed to "assess" the economic and social impacts of A16. The FIS requirement is, however, procedural, not substantive. The Agency, through the NEMFC, produced multiple, extensive environmental assessments that more than satisfy this procedural requirement. AR 773 48382-534 (A16 FEIS); AR 882 51221-250 (environmental assessment for Framework 44); AR 898-99, 901-913, 915-16 (environmental assessments for individual sectors).

It is also clear from the record that the Agency "took into account" this information. There is no dispute that the A16 policies instituted to rebuild fish stocks will have a negative short-term economic effect on the fishery.
 
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A16 establishes PSC for all stocks other than GB Cod on the basis of permit landings from 1996-2006. For GB Cod, permits that participated in the A13 sectors have a PSC calculated on the basis of landings between 1996-2001, which was the period used to determine the sector allocation under A13, while other permits have a PSC calculated using the standard 1996-2006 time frame. Plaintiffs argue this distinction is arbitrary and not "fair and equitable to all fishermen." 16 U.S.C. § 1851(a)(4).
 
The record shows that the Agency's allocation method is rational.
 
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Plaintiffs argue, in conclusory fashion, that the ACLs for some stocks are overly conservative. A reviewing court should be most deferential where an Agency is making difficult scientific predictions in its area of special expertise. Baltimore Gas & Elec. Co v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983). The Agency decided upon the A16 ACL methodology after a reasoned and scientifically grounded process…
 
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The New Bedford Plaintiffs separately object that bycatch and discards are not considered when calculating PSC, but are "assumed" and count against a sector's ACE. See AR 997 at 56565-66. They are assumed fleet-wide, however, only if a sector has inadequate monitoring to determine an actual sector-specific rate. AR 997 at 56502. There is also nothing arbitrary about holding fishermen accountable for bycatch and discards. See 16 U.S.C. § 1851(a)(9) (specifying that conservation measures should "minimize bycatch").
 
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Plaintiffs object that PSC was not calculated based "upon the best scientific information available" as required by National Standard 2. 16 U.S.C. § 1851(a)(2). Fishermen are required to submit a vessel trip report ("VTR") to NMFS for each landing. Dealers are also required to report their purchases. The database used to calculate PSC was populated with the dealer report data. There is no dispute that the database contains errors and plaintiffs argue that the dealers' original paper reports, not the database into which the information was later entered, provide the best available information.

There is, however, no evidence in support of plaintiffs' argument that the paper reports would be a more reliable source of information than the existent database.
 
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The groundfish fishery extends into the geographic area of both the NEFMC and the Mid-Atlantic Fishery Management Council. By statute, the Secretary has the discretion to designate one council to prepare the fishery management plan, 16 U.S.C. § 1854(f), and has selected the NEFMC. Plaintiff Lovgren argues that the NEFMC did not involve or consider the needs of mid-Atlantic fishermen when preparing A16. This position finds no evidentiary support. To the contrary, the record contains numerous examples of input from, and consideration of, mid-Atlantic fishermen, including plaintiff Lovgren.
 
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NEPA creates various procedural requirements for federal actions such as A16. It requires "in every . . . report on . . . major Federal actions . . . a detailed statement" addressing several considerations, including "alternatives to the proposed action." 42 U.S.C. § 4332(2)(C)(iii). This section must "briefly discuss the reasons [why an alternative was] eliminated." 40 C.F.R. § 1502.14. Plaintiffs object that the Agency failed to consider alternatives, in particular, the "point system."

The Agency considered numerous alternatives to the measures adopted in A16. AR 773 at 47773-76; 47927-78. One alternative considered early in the process, during the "scoping" period when the NEFMC was "select[ing] a range of alternatives to be considered and analyzed," AR 18 at 4461, was the point system. See AR 59 at 5876, 5888-92. The NEFMC elected to defer consideration of the point system and other options until Amendment 17, AR 773 at 47822, "because of concerns the design of the measures could not be completed in time," AR 773 at 47977.
 
The determination to defer consideration of the point system was not arbitrary. Early in the process, the NEFMC Multispecies oversight committee identified specific concerns as to how a point system would integrate with existing management systems including sectors and be correlated with hard catch limits, such that "it was not clear which of the alternative systems would meet Council objectives, or which ones could be developed and implemented in the limited time available."
 
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Plaintiffs argue that the Agency violated the Regulatory Flexibility Act ("RFA") and the Paperwork Reduction Act ("PRA") because the costs of sector monitoring are excessive.    …     Arguments about the substantive merits of a new rule are beyond the scope of these procedural requirements.

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Plaintiff Lovgren separately asserts that A16 violates the Fifth Amendment because, so far as I can discern from the convoluted briefing, there was a taking without notice and an opportunity to be heard. This claim is groundless.
 
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Conclusion
 
The New Bedford Plaintiffs' motion for summary judgment (Docket # 56) is DENIED. Plaintiff Lovgren's motion for summary judgment (Docket # 61) is DENIED. Defendant Conservation Law Foundation's motion for summary judgment (Docket # 73) is ALLOWED. The Agency's motion for summary judgment (Docket # 75) is ALLOWED. The New Bedford Plaintiffs' motion to strike (Docket # 99) is DENIED. The New Bedford motion for leave to file a supplemental complaint (Docket # 108) is DENIED.

 

 

 

 

 

 

 

 

 

In a letter drafted in the office of Sen. Scott Brown and signed by Sen. John Kerry and Reps. John Tierney and Barney Frank, they call for Locke, who received the report that follows up one by the Commerce Department's Office of the Inspector General, to make its findings public by May 15, which is Sunday.

As the fishing industry long claimed, the IG found that the federal fisheries law enforcers and litigators treated routine administrative violations as if they were dealing with criminals.

The IG also reported mass abuse of the Asset Forfeiture Fund, through which passed nearly $100 million in fines over a 4 1/2-year period with so little record keeping and controls that the auditing firm KPMG exhausted its commission before being able to cut through the fog.

KPMG was able to determine that Jones' office acquired more vehicles than it had officers — plus a luxury speed boat that was used for vacations — and also used the asset forfeiture fund to underwrite overseas travel unrelated to cases to exotic spots.

In at least one case the new report is expected to include, an administrative law judge within the Coast Guard system — which contracts with NOAA to hear cases that can't be settled — traveled to a conference in Kuala Lumpur, Malaysia, with NOAA lawyers soon after rendering to NOAA the verdict it had sought against a against a New Bedford fisherman, according to documents released to the Gloucester Times Thursday under the US Freedom of Information Act.

The released documents (Document 1 & Document 2) show that Pamela LaFreniere, the attorney for the fisherman, sought without success to learn whether the judge's travel was charged to the Asset Forfeiture Fund. Judges were paid out of the fund for their work, records show, as were the operating expenses of the litigation office.

Court documents show that the administrative judge ignored a federal judge's order to restart the case, and instead reaffirmed and enforced the penalties sought by the NOAA lawyers who were in Kuala Lumpur with the presiding judge.

Read the complete story from The Gloucester Times.

Read the response which rejects the FOIA requesting the final report in NOAA abuses.

 

 

 

 

 

Contending that the report by a special master on miscarriages of federal fisheries law enforcement is an internal document, the U.S. Commerce Department Monday rejected a series of requests for the work filed under the Freedom of Information Act.

Commissioned by Commerce Secretary Gary Locke last fall, the report was aimed at looking into at least 33 alleged cases of excessive action, mostly handled by agents and lawyers operating under direction of the Northeast regional office of the National Marine Fisheries Service.

The report, by retired federal judge Charles Swartwood III, was delivered to Locke on Friday, April 15.

The central case given to Swartwood involved an alleged vendetta against the Gloucester Seafood Display Auction.

Read the complete story from The Gloucester Times.

 

 

 

 

 

 

Largely abandoned by state tourism and small-business interests, a group of skippers who run small halibut charter boats in Alaska went into a federal court in Washington, D.C., Monday to try to stop the U.S. government from running them out of business.

Four Alaska charter companies and Charter Operators of Alaska challenged as arbitrary and capricious a new federal regulation to limit the number of charter boats in Alaska. The new rule is expected to put 327 fishing operations out of business. A motion for a preliminary injunction against the rule seeks to prohibit the U.S. Department of Commerce from enforcing the regulation until the courts can rule on its legality.

The National Oceanic and Atmospheric Administration's Fisheries Service earlier this year imposed a charter halibut permit program designed to shut down about a third of the halibut charters that fished state waters last year. The NOAA program is designed to limit competition between the charter operators, whose clients catch about 10 percent of Alaska's halibut, and commercial interests that catch more than 80 percent.

Read the complete story from The Alaska Dispatch.

 

 

 

 

 

This week, having previously pressed criminal charges against the warden, David Greene, a member of the Mashpee Wampanoag tribe, filed a lawsuit in Plymouth Superior Court, arguing that Kenneth Pacheco, the former deputy shellfish warden of Mattapoisett, and the town violated his right to fish “without interference, obstruction, or regulation by any governmental authority other than the sovereign Wampanoag Tribe.’’

In 1999, four years after Greene was convicted of violating shellfish regulations in Bourne, the Supreme Judicial Court affirmed a ruling by the Massachusetts Appeals Court, which overturned his conviction and found that Greene, as a Wampanoag, possessed “aboriginal rights to fish even in the absence of treaty protection,’’ according to the lawsuit.

Michael Gagne, administrator of Mattapoisett, said the town requires those fishing in its waters to obtain licenses that regulate the number of clams they can catch, their size, where and when they seek them, and what methods they use.

“The criteria we use tries to encourage the perpetuation of the stock, so people can continue to enjoy them for years to come,’’ he said.

Read the complete story from The Boston Globe.