Voting Rights At Heart of Catch Shares Legal Challenge
Fishermen’s Voice Staff
The catch shares system, a new federal management program in effect in the New England ground fishing industry, has been criticized both for what it isn’t and what it is.
It is criticized for not incorporating mechanisms, mandated by the Magnuson-Stevens Act, that will mitigate the social impacts of fishery management plans. It is also criticized for being an unapproved individual fishing quota (IFQ).
The oral arguments in the appeal of the lawsuit brought by the cities of New Bedford and Gloucester as well as several East Coast fishing interests were made in Boston on September 5. Attorneys Kavanaugh and Ouelette argued the social impacts issues during the appeals session heard by the U.S. Court of Appeals in Boston.
James Lovgren, a commercial fisherman from New Jersey an1d the only plaintiff in the case raising the right to vote issue. Lovgren’s legal representative, attorney Patrick Flanigan, wrote in his brief that “the promulgation of ’sectors’ under Amendment 16, as implemented by the federal defendants, denies Lovgren the statutory right to vote as provided by Congress and violates the Magnuson-Stevens Fishery Conservation and Management Act of 2007 (MSA).”
Flanigan, whose brief was referred to in the court proceedings (See: Catch Share System Challenged, Fishermen’s Voice, October 2012 – fishermensvoice.com/archives) told the U.S. Court of Appeals that the decision to enact the catch shares program has to be decided by a referendum since by definition it is an IFQ. Flanigan said sectors under Amendment 16 are the same as under Amendment 13. The quantity of fish is based on an absolute number for each harvester. Flanigan noted that this is in the federal register.
The voting issue appears to hinge on the definition of terms. Sectors are voluntary, temporary contractual organizations of individual fishermen. For purposes of the referendum requirement, the MSA provides that a sector is not an IFQ. Congress has provided that sectors are not subject to the referendum requirement. Because the MSA does not unambiguously state whether sectors or potential sector contributions (PSC) qualify as LAPPs or IFQs. NMFSs reasonable interpretation is entitled to use a legal tool known as a Chevron deference. This tool is applied when an agency is ambiguous with respect to the specific issue.
Flanigan’s brief challenges this deference based on the specifics formally established in the Federal Register. He argues that the voting rights issue goes beyond a simple definition of terms at the agency level because it has already been defined and written into law in the Federal Register.