Joan M. Pepin, attorney for the NOAA, and Peter Shelley, speaking for the Conservation Law Foundation, argued that a “poison pill” — essentially a way to prevent corporate misdeeds — was designed into the catch share system crafted by the New England Fishery Management Council and adopted and put into effect in May 2010 by NOAA.
It was not an LAPP or an IFQ because of the separation of powers, she argued; the sector fishing cooperatives had set the quotas, but the permitholders harvested the catch.
In addition, Pepin argued that the sector catch share system did not involve a permanent allocation of risk disfiguring the fishery, because unlike an LAPP or an IFQ, it could be voted out of existence by the New England Fishery Management Council. Moreover, she noted, the council had already addressed the potential problems of catch share trading by producing a fishery dominated by a small number of well-capitalized businesses.
Chief Judge Lynch and Judge Michael Boundin interjected probing questions.
“Why would Congress have concerns about individual permits,” Boundin asked, almost rhetorically, “but not be concerned about permits that are pooled?”
Lynch, meanwhile, asked the defendants why there were so many plaintiffs asking the court to act to stop rampant consolidation if the government was already addressing the problem.
Shelley, at the table with Pepin, argued that the catch share regimen was widely popular, citing the Cape Cod Commercial Hook Fishermen, who pioneered the sector concept in 2003.
Chief Judge Lynch ended the hour of oral arguments with the statement that “we are well aware of the importance of this case.”
Now, after the oral arguments spiced with dialogue between the lawyers and judges, the court will begin the private exercise of putting the briefs and arguments into the legal framework. It will use analysis of the clerks who sat along both sides of the courtroom taking copious notes, and finally the workproduct will go to the panel for its deliberations.