New England Fisheries

Federal judge puts an end to judicial fishing season for Amendment 16

Federal Judge Rya Zobel was talking fish recently when she declared an end to the judicial fishing season for Amendment 16, terminating the two suits brought by the Cities of New Bedford and Gloucester and a variety of commercial fishing interests from Massachusetts and the mid-Atlantic. Judge Zobel’s ruling, while it may yet be appealed to a higher court by the plaintiffs, puts to bed several issues that have been floating around New England’s groundfish for several years.

First, the decision strengthens the role of the New England Fishery Management Council and NMFS in their critical planning process by emphasizing that the “Agency’s informed conclusion, reached at Congress’ express direction after an extended and formal administrative process” effectively binds the reviewing court’s hands under well-established principles of law. By  emphasizing this point, the Court made clear that the plan development process through the Council was where attention should be paid by all interested parties and that the courts were not available to second guess management planning decisions. Many saw New Bedford’s and Gloucester’s legal action as a thinly disguised effort at an end run around the council. Fortunately, it hasn’t paid off.

Second, Judge Zobel made clear that the biological health of each stock in the New England groundfishery was critical and important under the Magnuson Act scheme. Plaintiffs’ arguments that the fishermen should be able to overfish on some stocks in order to harvest a greater yield on others was firmly rejected: “the … MSA makes clear that the Agency [NMFS] must manage the health of individual stocks.” This ruling effectively shuts a line of argument that would have created a management loophole large enough to drive a mid-water herring trawler through.

The rest of plaintiffs’ arguments–Judge Zobel referred to them as “a dragnet …, woven from a multitude of alleged failings of [Amendment] 16”– were disposed of with even greater speed: short-term economic effects were properly considered, the allocation formulas were rational, the most accurate data was used, the catch limits were set based on a “reasoned and scientifically grounded process,” there was “no evidentiary support” for the proposition that the mid-Atlantic was excluded from the planning process, the NEPA analysis was proper even though all possible alternatives were not evaluated, and the claims of a Fifth Amendment taking of private property were “groundless.”

Of course, the plaintiffs have the right to appeal this decision within 30 days to the First Circuit Court of Appeals where it could drag on and continue to cause business uncertainty in the fishery for months, if not years.  However, rather than pursuing a low prospects appeal, we hope that New Bedford and Gloucester will instead channel their energy into working with the Council to apply the lessons, good and bad, from the first year of Amendment 16 for the future. Small coastal communities and fishermen need the support and resources that New Bedford and Gloucester, two of the giants of the New England seafood industry at this time, could provide them as the fishery continues to rebuild and stabilize.


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