, Salem, MA


September 6, 2012

Lawyers argue city's case on fishery

BOSTON — Lawyers for the region’s co-capitals of the fishing industry, New Bedford and Gloucester, yesterday urged the First U.S. Court of Appeals in Boston to direct a federal district court judge to assert control over what was described as the rampant consolidation of the groundfishery that risks destroying cultures linked to a way of life older than the nation itself.

The lead attorney for the cities and other fishing interests, James F. Kavanaugh Jr., told the three-judge panel that commodity trading of groundfish allocations — through the system known as catch shares — among members of fishing cooperatives known as sectors was introduced improperly and illegally in 2010 by denying the groundfishermen their statutory right to vote on the radical transformation of their industry.

But Kavanaugh said his clients — along with the region’s major fishing ports, dozens of fishing businesses, associations and individuals from New Hampshire to North Carolina — do not seek to have the catch share regimen halted or declared illegal.

In response to Chief Justice Sandra L. Lynch’s question — “Are you asking that the program be stopped in its tracks?” — Kavanaugh said, “No, that’s too draconian.”

He went on to explain that the plaintiffs want the Court of Appeals to remand the case back to U.S. District Judge Rya Zobel, and for her to require the National Oceanic and Atmospheric Administration (NOAA) to administer the regimen correctly, as Congress intended, with safeguards against economic destabilization and social dislocation.

Those safeguards hang on whether the sector system is defined to be a Limited Access Privileged Program or Individual Fishing Quotas — a dicey definition, even Judge Lynch acknowledged — that would include a referendum approval by two thirds of the affected fishermen. Judge Zobel had rejected that definition of the sector program last year, prompting the appeal, which contends the system is a limited access program because participants are limited in what they can catch and trade it.

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