By Aaron Porter

ELLSWORTH — Fishing is down and lawsuits are up as fishermen and conservationists respond to New England groundfishing rules implemented in May. The count of new lawsuits brought against the National Marine Fisheries Service in response to the Amendment 13 rules is up to five.

Spread among three different courts, the complaints and allegations were composed by diverse plaintiffs, ranging from the marine environmental advocacy group Oceana to the Massachusetts-based Trawler Survival Fund.

Amendment 13 was developed to satisfy a federal court judge’s order in the remedy phase of a 2000 lawsuit brought by a coalition of environmental and conservation organizations against the federal fisheries service. In 2001, U.S. District Court Judge Gladys Kessler concluded that the service was violating federal fisheries law by allowing overfishing and not meeting stock rebuilding goals.

Now the rules crafted by the New England Fisheries Management Council and the National Marine Fisheries Service to meet Kessler’s order have become the subject of the numerous new legal complaints.

Oceana filed its complaint in U.S. District Court in Washington, D.C. The environmental advocacy group accuses the new rules of failing to protect habitat for young groundfish from bottom trawls and scallop dredges, failing to order adequate fisheries observer coverage to prevent bycatch, and failing to reduce environmental impacts of the groundfishery.

Oceana’s complaint cites alleged violations of the Magnuson-Stevens Fisheries Conservation and Management Act, the National Environmental Policy Act and the Administrative Procedure Act. The group complains, among other things, that the federal service made mistakes and oversights in creating the required Environmental Impact Statement for Amendment 13. It requests that the court order the new rules set aside and provide detailed instructions to revise the amendment, bringing it into compliance with federal laws.

In another filing to the U.S. District Court in Washington, D.C., the Conservation Law Foundation challenges Amendment 13 on the grounds that the rules don’t meet the overfishing, stock rebuilding and bycatch reduction standards of the Magnuson-Stevens Act and don’t satisfy Kessler’s order. The complaint calls for the release of information and data used in the service’s assessment of the amendment rules as adequate. It calls for the creation of new measures to bring the management plan into compliance with federal law by May 2005.

On the fisheries side of the debate, the Massachusetts-based Trawler Survival Fund complains, in a petition for review before the U.S. District Court in Washington, D.C., that the fisheries service illegally had altered or eliminated elements of the new management plan that had been recommended by the New England Fisheries Management Council.

The complaint alleges violations of Magnuson-Stevens and the Administrative Procedures Act because, among other things, inadequate public notice and opportunity for comment was allowed when the service made changes to the council’s recommendations. The group lays out specific instances where alterations made by the service were not given full consideration in terms of their economic impacts on fishing communities and where council requests or recommendations were dismissed without adequate explanation.

The Northeast Seafood Coalition, also based in Massachusetts, composed a complaint bound for U.S. District Court in Massachusetts. The document alleges that Amendment 13 will “marginally accelerate ongoing rebuilding efforts, at significant loss of fishing opportunity with resulting damage to fishing interests, shoreside businesses, communities and consumers, with a resulting long- term loss to the nation.”

The group cites violations of Magnuson-Stevens, the Regulatory Flexibility Act, the Administrative Procedures Act and the National Environmental Policy Act, in its complaint.

It notes that many of the problems identified could be addressed through rulemaking.

A complaint to the U.S. District Court in Portland from Associated Fisheries of Maine focuses on Donald Evans, Secretary of the U.S. Department of Commerce, and the days-at-sea calculations that limit fishermen’s time on the water. Cuts to such days in Amendment 13 were changed during amendment design without proper notification, the plaintiff alleges.

The complaint explains that the cuts to days recommended by the council are not being challenged. Rather, it is the insertion of an additional cap on days-at-sea “not to exceed the vessel’s annual allocation prior to August 1, 2002,” in the final regulation published by the fisheries service, that is at issue.

The complaint requests that the late change be rejected, and the council’s recommendation on days-at-sea calculation be followed.

Kessler has yet to say whether Amendment 13 satisfies her order from 2001. Fishermen who thought they would at least have a stable regulatory future to work with after Amendment 13 came down are guessing again.

“It makes it difficult for the rest of us when we’re trying to make game plans,” said Craig Pendleton, a Portland fisherman and director of the Northwest Atlantic Marine Alliance.  His group chose not to file a legal complaint after the new rules came out in May. But he’s still worried about how secure the new rules are and what Kessler might decide.

“The worst thing that could happen is that she agrees with the environmentalists and says, ‘you had your opportunity. Now we’re going to put hard TACs on,’” he said.

TAC (total allowable catch) is a quota for a fishery. Pendleton said such quotas would be devastating for fishermen who are leasing days-at-sea under current Amendment 13 rules. Quotas could render those leased days nearly worthless.

Maine Marine Resources Commissioner George Lapointe said the spate of lawsuits doesn’t alarm him.

“I don’t think it changes where we are,” he said. What it indicates to him is that in the near future “a significant amount of time will go into legal issues. That’s business as usual with groundfish,” he said.

The state decided not to pursue legal action on Amendment 13, although it was a bitter pill for Maine in many respects.

Lapointe said the attorney general’s staff is looking at the individual legal filings and assessing individual counts and allegations. At the same time, Lapointe and his staff are in contact with other states in the region talking about their common interests and issues with Amendment 13.