Rules, lawsuit keep fishing lines tangled

Rules, lawsuit keep fishing lines tangled

By Doug Fraser
February 23, 2009

Like many fishermen, Robert Lane spent the past month confused about exactly which fishing laws applied to him and his boat.
On Jan. 26, U.S. District Judge Edward Harrington, who presides over a lawsuit brought by Massachusetts and New Hampshire against the federal government, suspended federal fishing regulations instituted in 2006 to stop overfishing on inshore stocks of cod and flounder in order to rebuild depleted populations of bottom-feeders like cod, haddock and flounder.

This past week, Harrington reinstated all but one of those regulations, a rule that charges fishermen two days for every one they fish inshore waters from Provincetown north to Canada.
"We went though a couple of weeks where nobody had a clue as to what the law was," said Lane, one of the 1,500 New England fishermen who hold federal permits to catch various groundfish. Already, he has laid off crew members and sold one of his boats because of tighter regulations.

Turmoil remains
As the start of a new fishing year approaches, New England fishery management remains in turmoil as the states continue to battle the National Marine Fisheries Service in court, even though the measures it contests are soon to be eclipsed by even harsher regulations proposed by the federal agency to start on May 1.
"It's two parts logic, eight parts craziness, and people shooting themselves in the foot," Peter Shelley, vice president of the Boston-based Conservation Law Foundation, said of the lawsuit. Shelley is worried that suspending current fishing regulations, even briefly, could further erode the condition of fragile inshore fish stocks. Since the May regulations spread two-for-one counting across a much larger area, Shelley and others are concerned about the effect should Harrington side with the states and strike down two-for-one counting in the lawsuit.

The lawsuit was initiated almost three years ago when the two states sued the U.S. Department of Commerce and the fisheries service over regulations they contend were arbitrary and had an undue impact on inshore fishermen. Also, the states argued, the fisheries service was not using the best available science.
At the time, the fisheries service was trying to deal with overfishing on rapidly declining inshore stocks of cod and flounder under regulations known as Framework 42. These essentially penalized fishermen who chose to fish inshore by counting each one of those fishing days as two days. They also rewarded those who chose to go offshore to fish on plentiful stocks like haddock with higher daily and annual quotas.

In their lawsuit, the states contend that the two-for-one counting was capricious. They also said the federal fisheries service had not seriously considered invoking a provision known as the mixed-stock exception, that the states believe would allow fishermen to catch overfished stocks while fishing for other plentiful species, like haddock, in the same area.

"You don't close down an entire fishery for one stock," Massachusetts Division of Marine Fisheries Deputy Director David Pierce argued in an interview this week. He contends the lawsuit is still relevant because it has been Congress' intent that fishermen be given every opportunity to fish even as fish stocks are being rebuilt.

Concern over delays
The National Marine Fisheries Service has argued that the mixed stock exception could prolong an overfished stock's congressionally mandated rebuilding period and that it could mean none of the 13 overfished groundfish stocks would be rebuilt by the congressional deadline of 2014.

On Jan. 26, Harrington ruled the service had 60 days to analyze the effect of allowing the mixed-stock exception. The agency is doing that, said spokesman Marjorie Mooney-Sues. She cautioned that the new regulations were not yet finalized and could change after public comment.

All the infighting means little to fishermen like Lane, who lives in Bourne, but owns a large dragger working out of Fairhaven. Large-dragger fishermen will see a 36 percent revenue loss from the regulations proposed for May 1, according to the fisheries service. Hook fishermen and those who use gillnets, will suffer a 12 percent and 16 percent economic loss respectively, the fisheries service estimates.

Appeals to Congress
Lane already has sold of one of the two boats he owned and laid off five fishermen. Back in the 1990s, he was allowed to fish 240 days a year. With each succeeding regulation over the intervening years, that number shrank to 62. While he bought another permit that added 40 fishing days, the combination of a mandated 18 percent cut this coming year, combined with the two-for-one counting proposed in the new regulations will pretty much cut that back to 50 days.

"My guys won't be able to work," he said. "The only thing that will help us is if Congress starts screaming."
Those appeals have started, as this week nine members of the New England congressional delegation, including Reps.William Delahunt and Barney Frank, D-Mass., sent a letter to fisheries service urging they drop their plan and adopt one proposed by the New England Fishery Management Council this fall that mainly calls for the 18 percent cut in fishing days, but no other significant measures.


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