Peter Shelley’s (as usual) bogus arguments on the AUDIO: Federal Court Appeal Against NOAA – Thanks Dicky

This is regarding CLF lawyer Peter Shelley’s intervention in the Amendment 16 Lawsuit Appeal Oral Arguments Hearing on September 5, 2012.  In general, the defendants’ arguments were embarrassingly lame and disingenuous, but discussed below is a particularly outstanding contention of Shelley’s and deserving of a mention.,,,,,,,,,Read more in the comment section.

From Savingseafood.org

http://campaign.r20.constantcontact.com/render?llr=b5nrgsdab&v=001rFp1utu-80wIirnXpcIunYRAU6X0ZOhUrlnB-HkzAsHypqqm_b1xlyQ_3kWxByOvdcZrsVqjs6JeCJlnXQTuMFbG_9mabHwSHCQgk7vWVMDnEjgXLOInHg%3D%3D

Audio of the proceedings follows:

1 – James F. Kavanaugh, Jr. representing New Bedford, Gloucester, and the numerous named individual plaintiffs

2 –  Stephen Ouellette, representing the American Alliance of Fishermen and their Communities, New Hampshire Commercial Fishermen’s Association, Richard Grachek and David Aripotch

3 – Patrick Flanigan, representing James Lovgren

4 – Joan Pepin, representing the Federal Defendant-Appellees

5 – Peter Shelley, for the Conservation Law Foundation, an intervening defendant.

6 – James F. Kavanaugh, Jr. closing statement

  • First off, what is the Conservation Law Foundation doing defending Amendment 16? This is not about conservation.

    Conservation arguments would go something like…does this Amendment help the fish?

    This Lawsuit and Appeal is about trying to get NOAA to obey the law.

    For Peter Shelley the issue seems to boil down to whether the Amendment 16 program issues a Limited Access Privilege Program or LAPP Permit. (Hear his arguments in the Audio linked on Saving Seafood article copied below.)

    He closes his argument with "…it [plaintiffs' case, I guess] all lies in the [plain meaning definition] of a "permit". I think that's all this court needs to look at." He goes on, "This program [Amendment 16] does not create a permit for a LAPP, as Congress defined it…" and,"Congress talks about the characteristics of a LAPP permit: that it's issued … in fisheries we're talking about a piece of paper; and when the Coast Guard comes up to your Ship and says, 'What gives you the right to have that amount of fish there?' …you pull out and show that Coast Guard officer what your authority is to catch that fish—people in a sector do not have that obligation—the Coast Guard knows that their total catch is controlled at the sector level not at the individual boat level…Thank You Your Honor."

    "…people in a sector do not have that obligation" What? People in a sector don't have to show the Coast Guard the paper that gives them the authority to catch that fish?

    Peter, here's an open invitation to come out on my boat (she's not quite a ship though, that would be the Quota-Accumulator Moguls that have Ships, not the local fishermen that have been devastated by this "Program"—those of us still in business, we have boats—barely). I would love for you to see this invitation as an opportunity to observe a Coast Guard boarding while we're on a sector groundfishing trip.

    And during this boarding, after my crew has been confined to one particular area and told not to move out of that area; and after several Coast Guardsmen (usually displaying automatic weapons) have been dispatched to various corners of my "Ship" to look for drugs, guns, illegal aliens, or illegal and unreported and unregulated fish (IUUs); and after they have insisted the captain stop fishing and haul back the net so they can measure (to within millimeters) the legality of the mesh in the cod end; and as the officer in charge is in the pilot house asking for our fishing PERMITS, Peter, I would like you to jump in and tell him, "…now wait just one minute here…people in a sector do not have that obligation."

    Not only do I need my Federal Multi-Species Permit on board and ready to show, I also need Proof of Sector Membership, i.e., a Letter of Authorization or LOA, and a copy of the Sector Agreement and Harvesting Rules. Only then am I permitted to have groundfish on board. The amount of poundage of groundfish I have on board is reported every day through VMS to NOAA, and whether or not I'm within my individual quota, is a matter that is settled often on the return trip by Sat Phone or at the dock after contact is made with the sector manager so additional poundage can be purchased if needed.

    But to argue, as Shelley does, that somehow since the Coast Guard is not going to quibble about the amount of pounds of any given species of groundfish on board—because that's sector business—and so therefore to argue that under Amendment 16, sector members are not issued permits created through the Amendment 16 program, or that they are not obligated to show that issued permit and LOA Proof of Sector Membership, is not only wrong, it's downright misleading.

    The fact is that to have even one groundfish on board, or in certain areas if the net is in the water even with no fish, a permit and a Letter of Authorization is required under Amendment 16, as well as a certain mesh size in the cod end and a VMS declaration and NOAA's acceptance reply well in advance of the trip departure.

    To argue that my Federal Multi-Species Permit, and my Potential Sector Contribution, and my Sector LOA is not a Permit and not a Limited Access Privilege Program Permit is completely bogus. A Federal Permit, now through this Amendment16 program, is certainly a Limited Access Privilege Program Permit—what makes it an LAPP is the added permit stipulation of a PSC or an Individual Fishing Quota (IFQ) and so by "plain meaning definition", as Shelley invoked, my groundfishing permit and PSC is an IFQ or LAPP created Permit—if there ever was one.

    In the words of NOAA's yearly Amendment16 groundfish allocation (PSC) letter, April 17, 2012, (are they not managing and issuing or creating this permit PSC allocation?) The letter begins: (underlines and brackets are mine)

    "Dear Limited Access Northeast Multispecies Permit Holder:

    A potential sector contribution (PSC) is the share of a stock's quota that a permit [Individual's permit?] may contribute [or transfer?] to a sector. PSCs for each stock are based on the landings history of each permit
    during the fishing years(FYs)1996-2006 and are the percentage of the total commercial landings for which the permit was responsible during that period. Table 1 below shows the FY 2012 PSCs for your permit (Permit #1234, Moratorium Right ID#123). Table 2 below shows your expected base days-at-sea allocations for FY 2012 [used for Monkfishing—or just in case I want to go into the common pool, the days would be reduced from 37.54 to 22.94 per year]."

    "This program [Amendment 16] does not create a permit for a LAPP, as Congress defined it…" (Shelley)

    Really? Not only does this program create a permit (A Federal Multispecies Permit) that I need in order to "join" a sector and a permit that I am required to show the Coast Guard; but this Amendment 16 program creates the additional stipulation to that permit of an Individual Fishing Quota (IFQ), a potential sector contribution of a fishing quota that as an individual I am required to transfer to my sector so an IFQ. Of course instead of "volunteering " to join a sector there's always the alternative "common pool" and fishing for a share of the 2% of the total landings that can be gobbled up in the allotted 22.9433 days-at-sea for the entire year.

    So Amendment 16 not only creates a permit but it creates an IFQ or LAPP. The law requires a 2/3 referendum approval by permit holders for such a program:

    MSA Reauthorization Act 2007, Rep. Barney Frank made sure the Referendum Standard was included: MSA 303A (D) NEW ENGLAND AND GULF REFERENDUM. (i) Except as provided in clause (iii) for the Gulf of Mexico commercial redsnapper fishery, the New England and Gulf Councils may not submit, and theSecretary may not approve or implement a fishery management plan or amendmentthat creates an individual fishing quota program, including a Secretarial plan, unlesssuch a system, as ultimately developed, has been approved by more than 2⁄3 of thosevoting in a referendum among eligible permit holders…

    I agree that what this court needs to look at is the "plain meaning definition of a permit". In any relatively sane universe, with any valid logic, and any reasonable system of knowledge—but apparently not Shelley's—Amendment 16 creates an Individual Fishing Quota Program, a Limited Access Privilege Program and a very specific permit with specific fishing quotas, and a myriad of very specific requirements and reporting obligations. The imposition of this IFQ program is in violation of the MSA Reauthorization Act Referendum Standard 303A (D) as cited above.

    I also learned something interesting from Shelley's argument when he tries to refute the fact that Amendment 16 violates MSA statutes that prevent undue consolidation in the fishing industry, "…consolidation has always been happening; it's an official Council policy" —and so he contends the plaintiff's redress regarding consolidation consequences should be to the Council.

    I knew consolidation was a goal of Jane Lubchenco's, but I wasn't aware that it was an official policy of the Council.

    The official policy of the New England Fisheries Management Council is to consolidate the New England Fishing Industry, I would like to see that in the Council's Charter as laid out in the Magnuson Stevens Act.

    Dick Grachek

  • Wow, thanks for sharing so many details Dick! This info is awesome. Facts are stubborn things!

    • Dick Grachek

      You're very Welcome Phil 66. We gotta' keep calling out the crooked Bozo's BS!

  • Too bad fishermen don't have any armies of lawyers willing to intervene on their behalf, like the government has. But I wonder who is funding this big green mafia? Some shadowy UN NGO's maybe?

    • I love you Dicky. You are one of the nicest human beings I've ever met.
      "Crooked Bozo''s".
      More like dirty rotten opportunistic Bastards!
      You know, I wonder how many fishermen have seen your awesome articles posted at newsvine?
      I've started a series, "Runnin'Through the Archives". You should post yours here for review.
      Please include that lead in. I have dozens to post, and on slow news days, I will be including them.
      Make sure you tag them "Runnin Through the Archives" so they all show up in a group when someone uses the search feature! BH