BOSTON — Fishing industry advocates who filled a Boston courtroom in March, hoping to persuade a federal judge to strike down new rules that set catch limits, got a blunt message from an opposing lawyer: If they really want change, they’re in the wrong building.
“They need to take that up with Congress,” Department of Justice lawyer James Maysonett told U.S. District Judge Rya Zobel.
Last month, Zobel ruled against the industry, leaving it with little choice but to follow Maysonett’s advice and try to change fishery law though legislation in Washington.
It won’t come easy. Amending the Magnuson-Stevens Act will be a massive undertaking with uncertain prospects. Fishermen have recent legislative wins and backing from high-profile Massachusetts lawmakers Rep. Barney Frank and Sens. John Kerry and Scott Brown. But that political pull is diluted by a legislative process that requires support from lawmakers from inland states where the fishing industry has little influence.
New Hampshire fisherman Erik Anderson is aware of the long odds, but he’s banking on help from lawmakers.
“It’s the only bit of hope that we have that they can come in and make some sense out of this,” said Anderson, head of New Hampshire Commercial Fishermen’s Association, a plaintiff in the federal lawsuit.
A system took effect in New England in May 2010 that gives fishermen shares of each fish species. They pool the shares together in groups called “sectors” and can sell or lease them to other fishing groups. Some fishermen say the allotments are unfair and the system will push out small boat owners.
Plaintiffs argued that federal rulemakers so badly misinterpreted the congressional intent of the act that the new “catch share” management system is flawed and needs an overhaul. A key argument was that Congress never wanted rulemakers to try to ensure the individual health of each of the 20 species of New England groundfish they regulate, such as cod, haddock or pollock. Instead, they said, rulemakers at the National Marine Fisheries Service were supposed to consider the combined health of the entire group.
By individually protecting weak species, regulators also inadvertently stop fishermen from catching the abundant species that swim among them, such as haddock, advocates say.
If rulemakers interpreted the law correctly, fishermen argued, fishermen would be allowed to catch more of the abundant species if the resulting higher catch of weak stocks didn’t endanger the overall fishery.
But Zobel ruled against the fishermen on every count. If she’s not overturned on appeal, fishing industry advocates’ only option now is to change the law on which the fishing rules are based.
It’s not unprecedented. The law was amended last December when Congress changed the classification of a fish-sharing agreement with Canada so U.S. fishermen could catch more yellowtail flounder in waters the countries share.
But such amendments are extremely rare, said Michael Conathan, a former staffer on the Senate’s Oceans, Atmosphere, Fisheries and Coast Guard subcommittee who helped oversee the re-authorization of the Magnuson act.
“To change the law for a single issue is extremely daunting and legislative process is glacial,” said Conathan, now director of ocean policy at the Center for American Progress, based in Washington, D.C.
Funding for Magnuson is authorized for years at a time. Lawmakers almost never consider amending it during that period, because if they consider one amendment, a law they spent years crafting is open to a slew of other amendments, Conathan said.
The best chance for fundamental change comes when the law is re-authorized, which is set for 2012. But the entire re-authorization process takes years.
Peter Shelley of the Conservation Law Foundation, an environmental group that supports catch shares, said a recent history of crashed stocks and poor management make it extra tough for New England’s congressional delegation to make a case for sweeping change.
“There’s just a credibility gap that New England still hasn’t overcome,” he said.
Opinions about the law differ even in New England, where Maine Sen. Olympia Snowe, for instance, sees the catch share system as an improvement. Lawmakers also answer to influential environmental groups who object to changing the law.
Frank said the fish-sharing agreement with Canada, which he and Snowe pushed, can be a building block to fundamental change in the Magnuson law. The change allows U.S. fishermen to discard a 10-year timeline written into the law to rebuild certain species. Fishermen say a 10-year timeline is arbitrary and unscientific, and more time to rebuild a stock would safely allow fishermen to catch more now. There’s no reason the flexibility allowed in the Canadian agreement can’t be given to the rest of the industry, Frank said.
Frank said it’s “exactly wrong” that New England lawmakers have a credibility problem on fisheries. He pointed, for instance, to a successful effort to expose unfair treatment by fishery police, which he said validated longtime regional concerns and strengthened the push to change the law.
“I wish it had never been done wrong in the first place,” Frank said. “We’re doing it as quick as we can.”