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.