New England boasts one of the most productive marine ecosystems in the world. It has a long and rich tradition of fishing and has supported large scale commercial fisheries for cod and other groundfish (e.g., haddock and flounder) for centuries. The region also has a less envious tradition of fishery management failures including the “collapse” of a number of groundfish stocks in the 1990s. Before 1977, the groundfish fishery was practically unregulated and was open to local and international fishing fleets alike. Overfishing caused dramatic declines in many fish stocks in New England and other regions, prompting passage of the Fishery Conservation Management Act (known as the Magnuson-Stevens Act), which allowed the federal government to regulate fisheries out to 200 miles. The Magnuson-Stevens Act (MSA) created a fishery system that revolved around regional management councils, which developed and implemented fishery management plans (FMPs) and directed fishermen in their activities. The New England Fishery Management Council (NEFMC) has management authority over the New England multispecies groundfish fishery. It implemented a series of fishery management plans for the northeastern United States. These plans adopted a broad suite of management measures designed to achieve the fishing mortality targets necessary to rebuild certain overfished stocks and aspired to meet other requirements of the MSA. When a regional council develops an FMP, the National Oceanic and Atmospheric Administration (NOAA) and the National Marine Fisheries Service (NMFS), acting on behalf of the Secretary of Commerce, evaluate it for compliance with the ten national standards set forth in the MSA, as amended by the Sustainable Fisheries Act (SFA). A 2001 lawsuit by the Conservation Law Foundation (CLF) against the Secretary of Commerce, NOAA, and NFMS alleged that plans for rebuilding groundfish stocks failed to meet the national standards. CLF argued that the plans failed to adequately mitigate overfishing practices or to comply with bycatch restrictions. The lawsuit’s settlement led to Amendment 13 of the FMP. Among other things, Amendment 13 made possible a new style of fishery management for the New England multispecies groundfish fishery, namely, the creation of harvesting cooperatives known as “sectors.” Sectors are a form of community-based fisheries management. They require that groups of fishermen join together and agree to manage themselves collectively. By law, fishermen are obliged to sign a formal contract setting forth the key terms of their cooperative arrangement. The novelty and complexity of these contracts requires specialized legal drafting. Pursuant to a grant from the National Sea Grant Law Center, the University of Maine School of Law, in partnership with the Gulf of Maine Research Institute, and the New England office of the Ocean Conservancy, convened a workshop in November 2007, to address key legal issues raised by sector operating agreements. This article summarizes the Sector Workshop’s proceedings by highlighting the major legal issues discussed at the meeting. Part II describes community-based management generally and sectors as a management tool for the New England multispecies fishery. Part III discusses the legal issues to be resolved in sector operating agreements and reflects some of the specific concerns and suggestions raised by the workshop participants. Part IV concludes with reflections on sectors as a management tool and provides information on resources for those in the New England multispecies fishing industry who are considering forming or joining a sector.
Managing A Fishery Through Contract: Legal Issues Raised By Sector Operating Agreements In The New England Multispecies Fishery,
Ocean & Coastal L.J.
Available at: http://digitalcommons.mainelaw.maine.edu/oclj/vol14/iss1/3