Federal court hears arguments in states' suit to kill fishing regulations

[CharlieTuna]

Federal court hears arguments in states' suit to kill fishing regulations

By BECKY W. EVANS
Standard-Times staff writer
December 09, 2008 6:00 AM


BOSTON — Attorneys representing Massachusetts and New Hampshire argued Monday in federal district court that fishing regulations, which have devastated the inshore groundfishing industry in both states since going into effect two years ago, should be abandoned and sent back to regulators.


Senior Judge Edward F. Harrington heard arguments from the states, which are the plaintiffs in the lawsuit, and the defendants, which include the U.S. Department of Commerce and the National Marine Fisheries Service. No ruling was made during the hearing.
The rules in question were adopted in November 2006 in an attempt to speed rebuilding efforts on six depleted groundfish stocks, including Gulf of Maine cod and Cape Cod/Gulf of Maine yellowtail flounder. The rules aimed to reduce fishing of depleted stocks by charging fishermen who trawl the inshore areas of the Gulf of Maine two of their allotted fishing days for every day fished, effectively cutting their fishing season in half.


While the rules have not affected New Bedford's offshore fishermen as severely as inshore fishermen from Gloucester and other New England ports, New Bedford Mayor Scott W. Lang said Judge Harrington's ruling will have serious implications for the city's beleaguered groundfishing industry since it will affect the scope of future regulations, including interim measures scheduled to go into effect on May 1, 2009, and more permanent rules due out a year later.
"It's all cumulative, and if the science is not appropriate and another set of rules is coming in May 2010, it seems to me we want to get it straight from the beginning," he said.


During a summary judgment hearing at the John Joseph Moakley U.S. Courthouse in Boston, the state attorneys argued that U.S. Commerce Secretary Carlos Gutierrez's decision to approve Framework 42 was "arbitrary and capricious" for two reasons:

• He broke the law by not following guidelines that require a thorough analysis of whether the groundfish fishery could qualify for a so-called "mixed stock exception" that would allow fishing of depleted stocks to continue in order to maintain access to more robust stocks that swim in the same area.
• He failed to share details of the scientific model that regulators used to design the regulations, making it difficult to prove that he used the best scientific information available, as required by law.

In defense of Mr. Gutierrez and the National Marine Fisheries Service, attorney Kristen Byrnes argued that guidelines are advisory and do not carry the same weight as law. She said the New England Fishery Management Council had briefly considered the mixed stock exception and determined that it would most likely not apply to the situation. As for using the best science, she said the burden was on the states to present an alternative scientific model, which they hadn't done.


Framework 42 and its two-to-one counting scheme for fishing days could expire as early as May 1, 2009, when interim measures based on the latest stock assessment are expected to go into effect, Ms. Byrnes said. The interim measures and the final rule due out in May 2010 make the states' argument for additional analysis of Framework 42 moot, she said.


"It would really be a waste of time," she said.
Peter C.L. Roth, senior assistant attorney general for New Hampshire, countered that the states' arguments are not moot since fishing regulations are a "cumulative process," with one management plan building upon another.
"At some point the music has to stop and everyone has to be accountable for what they did," he said.


According to court documents, the estimated net economic impact of Framework 42 was a $98 million loss for New England ports, including $14.4 million in losses in New Bedford, $13.5 million in Gloucester and $5.1 million in New Hampshire. It was forecast that the rules would result in the loss of 144 jobs in Gloucester, 120 jobs in New Bedford, 78 in Boston and 63 in New Hampshire.
Mr. Roth said during the hearing that one-half to two-thirds of inshore fishermen in the Gulf of Maine have been put out of business by Framework 42. Those still in the industry have survived by buying or leasing fishing days from other fishermen, he said. To save money, some captains are hiring fewer crew members and making other decisions that jeopardize their safety, he said.
Former Massachusetts attorney general Tom Reilly on behalf of the state Division of Marine Fisheries and the state of New Hampshire on behalf of its Fish and Game Department and Division of Marine Fisheries filed the Framework 42 lawsuit against Mr. Gutierrez, U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service and others on Nov. 21, 2006.

[dogfish]

According to court documents, the estimated net economic impact of Framework 42 was a $98 million loss for New England ports, including $14.4 million in losses in New Bedford, $13.5 million in Gloucester and $5.1 million in New Hampshire. It was forecast that the rules would result in the loss of 144 jobs in Gloucester, 120 jobs in New Bedford, 78 in Boston and 63 in New Hampshire.

Mr. Roth said during the hearing that one-half to two-thirds of inshore fishermen in the Gulf of Maine have been put out of business by Framework 42. Those still in the industry have survived by buying or leasing fishing days from other fishermen, he said. To save money, some captains are hiring fewer crew members and making other decisions that jeopardize their safety, he said.

That's because they never look at the economic impact when pushing out this crap. Those are big losses we're talking about here.