Congressmen Barney Frank and John Tierney of Massachusetts have submitted an amicus brief in support of the position of the plaintiffs in the case of the City of New Bedford, et. al., vs. Gary Locke et. al.
The brief is summarized below.
Representative Frank is a Democratic Member of Congress, representing the Fourth District of Massachusetts. His District includes the City of New Bedford, the lead plaintiff in this action, which is one of the most historic and important fishing ports in the United States. Indeed, in 2009, New Bedford was the leading port in the United States in terms of value.
Representative Frank was also instrumental in including language in Section 106 of MSRA requiring a referendum before any individual fishing quota ("JFQ") program could be adopted in New England. He did so, because IFQ programs, which allow the transfer of quota from one permit holder to another, tend to create consolidation through the transfer of effort from one or several vessels to another, thus transforming the structure of the industry and resulting in a significant loss of jobs.
Representative Frank is opposed to catch shares/sectors because this system causes consolidation similar to IFQs. If there are twenty boats in a sector, the incentive is to fish fewer than half those vessels as it is clearly more cost effective to do so. If eight boats from that sector fish, the other twelve lease their catch to those boats. Ultimately, that means the crew on twelve of those boats are now out of work. Fewer boats purchase food, ice, fuel, repairs, etc. In other words, there is a significant economic blow to the industry infrastructure and those businesses that rely on fishing. Representative Frank, like the fishermen in New Bedford, believes that this system favors a few, wealthy participants at the expense of others and will inevitably lead to the contraction of the industry.
Also joining in this memorandum is Representative Tierney, a Democratic Member of Congress who represents the Sixth District of Massachusetts. His District includes the City of Gloucester, also a plaintiff in this litigation. In 2009, Gloucester was the tenth leading port in the United States in terms of the volume of fish landed, accounting for 122.3 million pounds. See NOAA Press Release, supra. In 2009, Gloucester was the twelfth leading port in terms of value, with $50.4 million in product landed. Representative Tierney has been actively involved with the Gloucester fishing community in understanding how the requirements of the Magnuson-Stevens Act affect the fishermen and the associated businesses in the City, such as processors, fuel and repair shops and ice houses. Congressman Tierney has consistently supported increased flexibility in the implementation of the Magnuson-Stevens Act's conservation requirements by submitting official Congressional comments to NMFS, participating in hearings and meetings with Administration officials and supporting legislative initiatives.
ARGUMENT
Amendment 16 suffers from two fundamental deficiencies. First, it fails properly to provide for the productivity of the fishery and to balance the economic and social needs of participants and communities against the conservation needs of the resource. Second, it was adopted without regard to the statutory requirements for instituting Limited Access Privilege Programs ("LAPPs").
1. Amendment 16 Frustrates the Achievement of Optimum Yield and Improperly Discounts Community Needs.
In devising the management measures at issue in this case, the Council and NMFS lost their way and failed to achieve the balanced regulation required by the Magnuson-Stevens Act, constraining the operation of the groundfish fishery at the unnecessary expense of participants and dependent communities.
(a) Amendment 16 Violates National Standard No. 1.
In order to manage fishing within the EEZ, the Magnuson-Stevens Act calls for "the preparation and implementation, in accordance with national standards, of fishery management plans [FMPs] which will achieve and maintain, on a continuing basis, the optimum yield from each fishery."
National Standard No. 1 provides, "Conservation and management measures shall prevent overfishing, while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry."
Contrary to National Standard No. 1, the allocation of certain "choke stocks," e.g., pollock, yellowtail flounder, winter flounder, is so conservative that it will impede fishermen's ability to harvest the species for which they have a substantial allocation.
As Representatives Frank and Tierney stated in a September 22,2008, letter to NMFS, "At the present time, expecting all the stocks in the New England fishery to be at their maximum level simultaneously is the principle on which this multi-species fishery is managed. That method does not work. The final regulations need to have more flexibility, so that there is a greater ability to differentiate between various component stocks of the multi-species complex".
Most ecologists would agree that it is impossible for all stocks to be at their maximum level simultaneously. If this were true, the biomass of fish would exceed the carrying capacity of the environment.
That achievement of OY is hindered by Amendment 16 seems to be borne out by the most current data. NMFS recently released quarterly reports that showed that there was less fish caught, i.e., landings were down, under the catch share system this year compared to the same time last year, but, because the price is up, more money has been made to date than at the same time last year under the old management system. NMFS points to this as a success scenario. However, with lower landings, more boats are tied to the docks, and fewer people are making most of the money, fewer boats fish and infrastructure suffers. See Richard Gaines, "Fishing Leaders Target NOAA Data," Gloucester Times, August 24, 2010.
(b) Amendment 16 Violates National Standard No. 8.
National Standard No. 8 provides, "Conservation and management measures shall, consistent with the conservation requirements of this chapter (including the prevention of overfishing and the rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities by utilizing economic and social data that meet the requirements of paragraph (2), in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities."
2. Amendment 16 Creates a Limited Access Privilege Program Without Regard to the Requirements of the Magnuson-Stevens Act.
Amendment 16, building upon sector measures originally established in 2004 under Amendment 13 to the FMP, creates an elaborate "sector allocation" program. Under this program, individual fishermen participating in sectors are assigned a "Potential Sector Contribution" ("PSC"), representing the amount of the sector's allocation they are entitled to harvest, while the sector as a whole receives an Annual Catch Entitlement
NMFS states that it "does not consider sectors to be LAPPs and they are not subject to the referendum or cost recovery requirements of the Magnuson- Stevens Act." It goes on to explain that "no permit" is issued and there is "no permanent allocation," and "sectors are temporary, voluntary, [and] fluid." It adds that "sectors are not issued a permit, they are not allocated a portion of the TAC, and they are not clearly 'persons' eligible to hold a LAPP." Congressmen Frank and Tierney believe that NMFS' analysis is misguided.
Congress was concerned in 2006, when the LAPP provisions of the Magnuson-Stevens Act were adopted, about the "privatization" of fishery resources. It thus developed a complex series of strict requirements, embodied in Section 303A of the Magnuson-Stevens Act, 1, to ensure, among other things, that such systems are "fair and equitable", take into account "the basic cultural and social framework of the fishery" (Section 303A(c)(5)(B)) and "ensure that limited access privilege holders do not acquire an excessive share of the total limited access privileges."
In 2006, Congress broadly defined the term "limited access privilege" to "mean a Federal permit, issued as part of a limited access system under section 303 A to harvest a quantity of fish expressed by a unit or units representing a portion of the total allowable catch of the fishery that may be received or held for exclusive use by a person." It includes an "individual fishing quota" or IFQ, which was defined to mean "a Federal permit under a limited access system to harvest a quantity of fish, expressed by a unit or units representing a percentage of the total allowable catch of a fishery that may be received or held for exclusive use by a person.". Finally, the Act defined "limited access system" to mean "a system that limits participation in a fishery to those satisfying certain eligibility criteria or requirements contained in a fishery management plan or associated regulation."
Notwithstanding NMFS' position, just asserting that the sector allocation program, with its PSCs and ACEs, is not a LAPP does not make it so. When one steps back and looks holistically at the system embodied in Amendment 16, there can be no question that what is going on is the allocation of exclusive, individual harvest privileges to participants in sectors under the terms of the FMP. When fishermen satisfy eligibility criteria, they are allowed to join a sector and to harvest, on an exclusive basis, a particular amount of fish ~ a portion of the TAC ~ and when that amount has been reached, they are no longer permitted to continue fishing. They are allowed "stack" permits within a sector, so that one boat can own many permits and the right to fish the allocations associated with those permits. Form must not trump substance. Whether a fisherman's allocation is expressly called a "permit," a "privilege" or something else in the FMP does not matter; it is, however one looks at it, an authorization to harvest a specific quantity of fish held for the exclusive use of the sector participant.
Congressmen Frank and Tierney submit that this is a LAPP, as Congress envisioned it, and the failure of NMFS to comply with the manifold requirements of Section 303A thus cannot be countenanced. Further, NMFS' unrelenting pressure to move the New England fisheries to a "catch share" program seems to run directly counter to the Magnuson-Stevens Act's proscription in National Standard No. 5 against management measures which have "economic allocation as . . . [their] sole purpose."