BOSTON — An attorney for New England’s largest fishing ports said in court Tuesday that key parts of new fishing rules should be struck down, arguing they’re built on bad assumptions that are choking out the age-old industry.
Attorney Stephen Ouellette, an attorney for the cities of New Bedford and Gloucester, said federal regulators’ misinterpretation of federal fishery law has produced rules that keep struggling fishermen from catching even healthy species, and are killing the region’s traditional small boat fleet.
“We are going to see the small boat owner disappear,” Ouellette told Judge Rya Zobel during oral arguments in his clients’ federal lawsuit.
The plaintiffs also argued the rules change required approval of fishermen in a vote that never happened.
But attorneys for the Department of Justice argued no vote was needed, and that federal lawmakers are correctly interpreting the law by trying to rebuild stocks as quickly as possible after years of overfishing.
Attorney James Maysonett acknowledged that could mean hardship for the industry now, but argued that “rebuilding the fishery is the only way to protect the fishing communities and fishers in the long run.”
Zobel did not immediately rule on the suit.
The lawsuit by the ports, numerous fishermen and fishing interests was filed last year after new rules enacted in May saw most of the fleet separate into groups, or “sectors.” Fishermen in sectors pool their individually allotted catch of groundfish — such as cod, haddock and flounder — and work together to divide it.
The idea behind the new system is to give fishermen more autonomy and flexibility to survive tighter catch limits. But many small-boat fishermen say the catch was unfairly divided up and their allotments are so low they can’t make a living.
Ouellette said when Congress passed the nation’s fishery law it intended regulators to view the fishery as a whole when determining whether it was healthy. Instead, he said, regulators at the National Marine Fisheries Service have wrongly decided each of the roughly 20 regulated species in the fishery should be treated individually.
That means, because the fish swim among each other, regulators don’t allow heavier fishing on healthy species fishermen have sacrificed to preserve for fear of damaging the vulnerable species fishermen will inevitably pull up at the same time. And the pressure of unrealistic timelines tightens rules further if stocks don’t recover fast enough.
Ouellette said under the new rules, which he said have created a “cap and trade of natural resources,” many small boat fishermen received paltry allotments. Since it’s not enough to make a living on, those fishermen are under pressure to sell their shares to larger interests and exit the business.
Ouellette rejected the idea that fishermen are paying a short-term cost for long-term gain, saying the better future has been forever promised by regulators, but never delivered. The number of boats has dropped since 1980 from about 1,200 to about 500 vessels that fish regularly today.
Patrick Flanigan, an attorney for fishermen for the Mid-Atlantic region who didn’t join a sector, said each fisherman’s allotment amounts to the kind of transferrable catch quota that, by law, can’t be imposed on the fleet without two-thirds approval in a vote by fishing boat owners, captains and crewmen.
But federal attorneys said no vote was required because the allotments aren’t quotas. They argued that fishermen in sectors have complete freedom to decide how to use or not use the allotment each fisherman brings in, so it’s not a quota.
Maysonett said the fisheries service is correctly interpreting the law, which he said clearly requires regulators to fully rebuild each stock as fast as possible. The new sectors system is legal, even if fishermen disagree with how regulators are doing their jobs.
“If they believe more (species) shouldn’t be rebuilt, or should be rebuilt on a longer time frame, they need to take that up with Congress,” he said.
Maysonett said the program is working and fishermen will soon benefit, estimating most stocks would be fully rebuilt within six years.
Peter Shelley of the Conservation Law Foundation, an environmental group that supports the new rules, said the ever steeper cuts over the years were needed because of chronic overfishing. He told Zobel that regulators have always “bent over backward to give the fishermen every fish they could conceivably have.”
Now, he said, “We have the two biggest ports in New England … and they’re asking the court for more.”