CLF and The Right to the Judicial System
The day after the Mass. AG announced a lawsuit against NOAA, CLF filed two lawsuits against NOAA over Framework 48, implemented to provide some relief to the struggling fishery while still conserving fish habitats.
Yes definitely, CLF’s bogus counter-suit is fanciful and an adolescent tantrum, and one of their extreme reactions to challenges. But CLF has other motives for suing besides the content of its claims making any sense. From CLF’s perspective they own the court system and they seem to take it personally when someone else sues NOAA. In response to Attorney General Coakley’s action on behalf of fishing, CLF declares that there is an intruder in the lawsuit house—and for political reasons to boot—”Foul!” they cry—these are certainly not the benevolent, altruistic, and sophisticated adult motives that drive CLF to sue, as outlined in Shelley’s 2001 speech discussed below.
Actually, according to Shelley one of CLF’s major lawsuit strategies is about garnering publicity and not so much about content (actually the ridiculousness of CLF content is obvious to anyone that has an even rudimentary knowledge of the fisheries and has read most anything from CLF). But CLF’s lawsuit form over function idea is spelled out quite clearly by Peter Shelley, now senior attorney at CLF, in a 2001 speech to an audience in Phoenix concerning the cost/benefit of litigation in fishery management, entitled Ten Years ‘After The Fall’: Litigation and Groundfish Recovery in New England.
Shelley struts one of his several justifications for suing (and steering) NOAA:
“The fifth reason to litigate is that litigation is newsworthy. Our objective is to build a political constituency for a healthy ocean. That is why the Conservation Law Foundation takes the positions it takes and does the advocacy work it does. That is why foundations support sustainable fishery management support groups like the CLF, and that is why we go to court. We do not go to court just to win a motion or a case. We are trying to build a political constituency for the ocean. The only news outlets that cover council meetings are the Commercial Fisheries News and the National Fisherman. Their coverage is pretty obscure, at a micro-level, and uninteresting to most people. Bringing a lawsuit on the other hand guarantees front page headlines. That placement and exposure gives the conservation community an opportunity to explain to the American people, who are incredibly ignorant about the marine system, about what actually is going on in our oceans. Generating a newsworthy event gives us an opportunity to educate the public.”
Now, of course, this is not the only reason to litigate according to Shelley. From the same speech (pages 23-24) Shelley expounds calling on his vast knowledge of human nature and developmental psychology: “…fishermen take everything very personally.”
“Unlike the steel industry or some other mature industry, fisheries management is personal, and it is personal to the scientists in NMFS as well. Again, going back to the developmental theory, it is similar to dealing with an adolescent. They take it personally when you try to tell them they cannot do something. A general lack of sophistication and their extreme reactions to challenges make fisheries groups and NMFS very challenging parties to work with.”
“From the fisherman’s perspective, they “own” the marine resources, and have owned them for hundreds of years. Those are their fish. Again, I am speaking of New England, and I am talking about marine resources. Environmental groups are at best considered poachers in the minds of the fishermen. Environmentalists are taking fish for some illegitimate public purpose that has the effect of removing product from their boat.”
Oh yes, and their benevolent and much needed guidance through lawsuits is the reason that the groundfish stocks are rebuilding, and in ’93-’94 it was a CLF lawsuit that single-handedly saved the scallop industry—from itself.
(From the last paragraph in Shelley’s very enlightening speech):
“And the last reason I would give you, and this is a pure ego statement, because there are many other factors and players producing the result, is that litigation works. If I had the chart of the groundfish stock status in New England to reference here, the downward spiral, which was significant for the years proceeding our lawsuit, came to a stop two years after our lawsuit. Now all the stocks that were the subject of our litigation are rebuilding at different biological rates, but they are all on positive inclines. The scallop fishery, which was slowly going bankrupt in New England, because of overharvesting, has reopened and is bringing in millions of dollars of new revenues. This is a direct result of the closures that came from the CLF lawsuit. Litigation works and I am not one to knock something that works in the world of fishery management that is otherwise so fanciful.”
It’s really not so much the content or the winning of their suits that is of importance to CLF, “We do not go to court just to win a motion or a case. We are trying to build a political constituency for the ocean.” And they are also trying to build a constituency of NGO Foundations to support their 1%-er fees—Shelley is a Pew Fellow since ’96. It would seem, according to Shelley’s statements, that it’s the publicity through major anti-fishing media outlets, such as the New York Times and The Boston Globe, that they’re really after. That apparently is the way CLF makes money—and saves all the bumbling adolescents from devouring their own industry.
Interesting also is Shelley’s article in 2012, entitled Courts Can’t Fix What’s Broken With Groundfish. http://www.clf.org/blog/ocean-
This article is actually an account of Shelley’s arguments against the Amendment 16 lawsuit brought by New Bedford and Gloucester, and fishermen and their organizations from up and down the coast. The lawsuit questioned the legality of the imposition of Amendment 16 ITQ’s as it violates various statutes of the Magnuson-Stevens Act governing fisheries. Shelley doesn’t actually address the points of the suit as it questions the procedure of the implementing of Amendment 16; but he implies, somewhat ironically in light of his 2001speech outlining all the duplicitous motives behind CLF lawsuits, that the fishermen and the cities and the congressional members and all the various organizations that were in support of this Amendment 16 suit, somehow had less than genuine motives for bringing the suit.
From Courts Can’t Fix… (linked above) Shelley referring to plaintiffs’ motives for bringing Amendment 16 suit:
“…motives may be as simple as press ink: a fish fight almost always makes the front pages, even if it is … well, a fish story.” (Hmmm, I wonder where that idea came from?)
Shelley cites reasons for CLF litigation: “Bringing a lawsuit on the other hand guarantees front page headlines.” (Ten Years After The Fall, pg 27)
“I have been doing this sort of legal work for more than thirty years and I can promise one thing: nothing, let me repeat, nothing that comes from the First Circuit Court of Appeals will make any sort of a difference to those troubles.” (Troubles here refers to Amendment 16 ITQ consolidation etc.)
CLF’s lawsuits saved the groundfish and the scallop fisheries in the 90′s; but now a lawsuit can’t fix anything, and is political and puzzling and disingenuous; unless, of course, that lawsuit was initiated and authored by CLF: CLF The Adult, CLF The Good Parent, and CLF the only legitimate invoker of the judicial system. In 2001 Shelley had this idea about litigation motives and justification: (Ten Years After The Fall, pgs 26-27)
“Access to the courts to redress and re-balance injuries to unrepresented or underrepresented interests is an American tradition.”