Law

Two commercial fishermen from Montauk have joined with other commercial fishing groups and the City of New Bedford to sue federal fisheries managers over a major shift in policy. The suit claims that a new management system, when combined with unrealistic stock assessments, will cripple their industry.

Capts. Chuck Weimar and David Aripotch are party to the suit lodged against Gary Locke, the secretary of commerce, and Jane Lubchenco, administrator of the National Oceanic and Atmospheric Administration. The suit was filed with the United States District Court in Boston on Sunday. NOAA has also been hit with a related class action lawsuit filed by New Jersey fishermen.

In addition to the two Montauk fishermen and the city of New Bedford, the New Hampshire Commercial Fishermen’s Association, and the American Alliance of Fishermen and their communities are named as plaintiffs. All rely heavily on the groundfish fishery, which includes 19 species, among them cod, haddock, yellowtail flounder, and winter flounder.

Read the East Hampton Star story in full

 

 

Washington, D.C.-based Oceana Inc. sued the National Oceanic and Atmospheric Administration and National Marine Fisheries Service in Federal Court over an April amendment to the Northeast Multispecies Fishery Management Plan.

Virtually all New England groundfish stocks are depleted, Oceana says. It claims Atlantic halibut is so overfished it will take until 2055 to reach a sustainable level.

Oceana says that though the plan amendment forges a "bold new direction" by establishing annual catch limits, the amendment still falls short.

Read the complete story at Courthouse News Service.

Read the Oceana suit document here.

 

 

 

The city of New Bedford, Massachusetts and an array of fishing interests have sued the U.S. Commerce Secretary and the administrator of NOAA in U.S. District Court, calling new groundfishing regulations both illegal and unconstitutional.

The lawsuit was filed Sunday, the last allowable day, and on Monday the city of Gloucester joined the lawsuit after reviewing it.

The lawsuit alleges that in imposing sector management and catch shares on the Northeast fishery, the government violated the National Environmental Policy Act, which "requires the agency to assess the impact of regulatory actions on the environment, including the human environment."

"The agency failed "» to comply with NEPA and to assess alternatives for mitigating (the) negative impact of Amendment 16 on the human environment," the suit said.

"Defendants' actions will permanently and unlawfully modify a centuries-old, traditional way of life for the sake of an agency's regulatory convenience, displacing fishermen, their communities and undermining cultural values in a manner inconsistent with the applicable law."

Mayor Scott W. Lang, meanwhile, on Monday sent a letter to Commerce Secretary Gary Locke endorsing the appeal of the region's congressional delegation for larger catch allocations, so the sectors management won't slowly bankrupt the boats and shrink the fleet by more than half.

In his letter, Lang encouraged Locke to use his scheduled Wednesday meeting with the delegation to exercise his secretarial authority to raise the catch limits to the amount allowable under the existing science.

Lang also reminded Locke of the complaint that the National Oceanic and Atmospheric Administration, led by Jane Lubchenco, illegally ignored Section 8 of the Magnuson-Stevens Act, which requires an analysis of proposed regulations' effects on the economy of the fishing industry and fishing ports.

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The leading ports for the New England fishing industry, Gloucester and New Bedford — joined by a far flung coalition of commercial fishing interests — have teamed up to file suit against the federal government for creating and implementing what plaintiffs say is a ruinous new management system on the groundfishery.

 

The filing of the suit — plus a related class action claim from New Jersey — ratchets up of protests against the Obama administration's fisheries management policies under National Oceanic and Atmospheric Administration chief Jane Lubchenco that began in the parking lot of the regional offices in Gloucester last October and expanded into a mass national rally at the side of the Capitol in February.

The new system was activated on May 1, and, in recent days, fishermen have testified at open meetings in both cities that business failures seemed inevitable.

Amendment 16, as the New England groundfish regimen is known, "drives yet another sword through the very heart of the fishing industry and fishing communities," New Bedford Mayor Scott Lang said in a letter sent Monday to Commerce Secretary Gary Locke.

Locke is scheduled to meet Wednesday with a New England and coastal congressional delegation that had appealed to him for emergency action to mitigate the unraveling of the industry.

Congressman Barney Frank and Sen. Olympia Snowe, R-Maine, coordinated the appeal to Locke. Their letter with 23 signatures pointedly did not "cc" Lubchenco, who presides over the oceans and atmosphere for Locke's Cabinet department.

 

Background:

Nations' Largest Port, Fishermen, and Businesses from Six States Sue Feds

New Bedford Mayor calls NOAA leadership "disingenuous and fraudulent", joins lawsuit against NOAA

Largest New England Ports Revolt Against New Federal Regulations

NOAA releases draft national policy encouraging the use of catch shares (Dec. 10, 2009)

 

 

 

 

 

– Suit alleges NOAA failed to analyze impacts on communities

– Sector plan costs called a regulatory burden that will force consolidation

– City of Gloucester reviewing court filing; may join suit

The City of New Bedford, Massachusetts, the nation's largest fishing port in terms of the value of catch landed, together with nine additional plaintiffs including businesses, associations, and individuals representing fishing interests in Massachusetts, New Hampshire, New York, Connecticut, Rhode Island, and North Carolina, has filed suit in the United States District Court, Massachusetts District against the Secretary of Commerce and the Administrator of NOAA.

The complaint was filed on Sunday, May 9, 2010.

Gloucester Mayor Carolyn Kirk told Saving Seafood that the City of Gloucester, Massachusetts received a copy of the complaint and it is being reviewed by Gloucester City Solicitor Suzanne Egan.  The Mayor is "looking to her recommendation" in order to determine whether Gloucester will joint the suit.

The plaintiffs allege that their interests have been adversely affected by Amendment 16 to the Northeast Multispecies Fishery Management Plan.

The plaintiffs state that the Multispecies fishery consist of a number of interrelated stocks, including cod, haddock, pollock, redfish and flounders, caught in the waters off of the east coast of the United States. The fishery has existed since the 1600s and was the primary historical fishery on the East Coast that led to the settlement of New England. It has been undergoing extensive rebuilding since 1994, and has substantially recovered.

According to the plaintiffs, the Sector Plan imposes requirements as well as costs and expense that are so extensive as to require expenditure of as much as $17,000 to $27,000 per vessel (in a fishery where gross landings per vessel are approximately $130,000) and create an atmosphere so hostile, fishing operations will be unable to continue and achieve any substantial yield. As a result it is anticipated that the regulatory burden force the fleet to consolidate, and reduce its numbers from 600 current active vessels (down from 1,400 in 1994) to as few as 100-200 vessels, forever altering the economies of coastal communities.

The plaintiffs allege that Amendment 16  created an allocation scheme which gave preferential treatment to two groups, in violation of the Magnuson-Stevens Act.

The plaintiffs state that Defendants failed to adequately disclose and evaluate environmental impacts of the program, including redirection of disenfranchised fishing effort to other fish stocks, and failed to adequately analyze impacts on the affected small businesses, fishing and coastal communities and other possible ways to mitigate costs and regulatory burden associated with Amendment 16. 

The Complaint states:

"This is a challenge to regulations implementing Amendment 16 to the Northeast Multispecies Fishery Management Plan (the MFMP), promulgated on April 9, 2010, by the Secretary of Commerce, acting through the NOAA administrator. Plaintiffs are the City of New Bedford and fishermen and fishing related businesses adversely affected by these regulations. Plaintiffs contend that these regulations violate various provisions of the Magnuson Stevens Fishery Conservation and Management Act (FCMA), the United States Constitution and other statutes, as noted below. Plaintiffs request that this matter be advanced for hearing at the earliest opportunity pursuant to 16 USC sec. 1855 (f)(4) and will move accordingly."

"The plaintiffs are The City of New Bedford, Massachusetts, New Hampshire Commercial Fishermen's Association, Paul Theriault, Chuck Weimer, David Aripotch, Tempest Fisheries, Grace Fishing, Inc., Richard Grachek, Roanoke Fish Co., Inc. & the American Alliance of Fishermen and Their Communities.

The defendants are The Honorable Gary W. Locke, Secretary of Commerce, and Dr. Jane Lubchenco, Administrator of the National Oceanographic and Atmospheric Administration.

The plaintiffs attorneys are Stephen M. Ouellette of Gloucester, and Pamela Lafreniere of New Bedford.

The plaintiffs are primarily fishermen and fishing boat owners, who make their living fishing in the waters of the United States Exclusive Economic Zone on the eastern shores of the United States, or business financially dependent on the said fisheries, all of whom have been adversely affected by governmental action. The City of New Bedford is a municipality dependent on the fishery whose economy, culture and citizenry are adversely affected by Amendment 16.”

Read the Amendment 16 Complaint as filed in the U.S. District Court

 

 

 

 

 

Massachusetts' two biggest fishing ports are teaming up in a federal lawsuit to block the ongoing switch to commercial fisheries sector management and catch shares, Mayor Scott W. Lang announced Friday.

New Bedford Mayor Scott Lang said the lawsuit will aim not only at NOAA's decisions but at the question of whether the agency is violating the terms of the Magnuson-Stevens Act by disregarding the effects of rule-making on the industry and the local economy.

He said fishing is a $1 billion industry in the city, one-quarter of which is fish landings and the rest being shore support and processing.

Lang derided what he called the "disingenuous and fraudulent" behavior of NOAA's top officials. He told the group at the United Fishermen's Club hall about Lubchenco's lack of response to a March 22 letter asking for postponement of sector management until it can be understood and problems worked out.

When that letter went unanswered, a month later Lang sent another, at which point Lubchenco's office told him on April 20 that it had indeed answered him, and faxed him a letter date-stamped April 16.

When that letter arrived in the regular mail, it was postmarked April 20, the day of the conversation, Lang said.

"We are going to court," was his decision at that point, he said.

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New fishing regulations by the federal government will lead to the collapse of New Bedford’s fishing industry this summer, Mayor Scott Lang said Friday.

Lang said he’s prepared to take the fight all the way to the U.S. Supreme Court.

See the video at WJAR 10.

 

 

 

 

 

Rolled out just a week ago today, the new system was vilified Friday in a pair of emergency meetings — one in Gloucester, the other in New Bedford, co-capitals of the New England fishing industry.

Angry fishermen and shoreside business operators described a chaotic introduction to the Obama administration's new regulatory scheme, with dysfunctional communications technology leaving boats uncertain whether they could leave port or unload, other boats held back from fishing to avoid exceeding allocations of specific species, jobs lost and fractional landings endangering supply systems.

A fisherman who lives across the street from Gloucester Mayor Carolyn Kirk was laid off.

During the three years of government planning and development to create the catch share system — catching rights with hard limits and deterrent policies against excesses — most of the industry anticipated a debacle. But there were some who, without embracing the concept as promoted by the National Oceanic and Atmospheric Administration and the Environmental Defense Fund, saw catch shares as inevitable and worth a try.

Any hints of interest or hope in the system were gone Friday.

"These are evil, evil, evil people," said Richard Burgess, who owns four boats and leads the gillnet sector, a guild-like business cooperative for the 40 boats that fish with fixed gear out of Gloucester.

Richie Canastra, co-owner of the New Bedford-based Whaling City Seafood Display Auction, said he heard not a peep of support for the government system in the two-hour emergency meeting called Friday afternoon by New Bedford Mayor Scott Lang.

"Gloucester and New Bedford are walking side by side on this one," said Canastra.

Read the complete story at The Gloucester Daily Times.

 

 

 

 

 

The Obama administration has rejected a challenge to the legality and fairness of the 2009 New England Fishery Management Council votes that created an unlevel playing field in the allocation of fishermen's catch shares.

The reaction to a formal complaint filed by a member of the regional council could lead to a lawsuit aimed at blocking the May 1 rollout of a radical reorganization of the groundfishery with hard catch limits, severe conservation restrictions and a new business model based on fishing cooperatives.

The dispute resurfaced  after the administration announced it had approved a final rule, the so-called Amendment 16, which reinvents the way groundfishing is managed, organized and regulated.

The new system poses survival challenges to many fishermen who have expressed certainty that reduced cash flow from lower catch limits will render their jobs and businesses no longer viable.

In a letter, the new national director of the National Marine Fisheries Service found no legal fault in the decision of the council to employ different criteria in setting allocations within the groundfishery.

These effectively shift about 700 metric tons of cod and haddock, worth roughly $1 million, from the commercial sector to the recreational sector. Another disputed vote moved a smaller additional volume and value away from the general commercial sector to a small commercial cooperative based in Chatham on Cape Cod.

The letter from NMFS director Eric Schwaab to David Goethel — a member of the New England Council who voted against the unlevel playing field and filed a formal objection last August, weeks after the disputed votes — arrived within hours of the announcement by Schwaab that the new management system, more than three years in the making, had been formally and finally approved.

It introduces catch shares, hard catch limits, and tight allocations in aggressive conservation restrictions beginning May 1, unless it is short-circuited by legal action.

A court challenge to the decision by Goethel and the industry is considered likely.

"Now, we have a final rule and we have something to shoot at," said Goethel in a telephone interview with the Times.

The Gloucester-based Northeast Seafood Coalition, like Goethel, also objected to the "inequity" of the allocation.
The council decided to use catch histories from 1996 to 2006 for the mass of commercial boats, but voted to use a five-year history, based on more fruitful times, to give the recreational sector and the Cape Cod cooperative a larger share of the whole than a universally applied measure would have produced.

Read the complete story at The Gloucester Daily Times.

David Goethel's letter to the Adminstration directed to Secretary Locke on June 27, 2009

Obama Admistration response from Eric Schwaab sent ten months later on March 29, 2010

 

 

 

 

 

"The problem it became was a business decision," Ciulla said. "It was not prudent to spend that much money on litigation."

The settlement marks a new course for NOAA law enforcement. The negotiations were taken out of the hands of Charles Juliand, who heads the Gloucester office, and Deirdre Casey, who built the case against the auction. Instead, the talks were removed to NOAA headquarters where Lois Schiffer was recently installed as chief counsel.

Read the complete story at The Gloucester Daily Times.