Legal tag-team match

The challenge will revive the legal tag-team match pitting the plaintiffs and their allies against the Obama administration and the Conservation Law Foundation, on behalf of an alliance of environmental nonprofit corporations and foundation backers — including the Walton Foundation, founded by the heirs to Wal-Mart.

Foundations have poured hundreds of millions into environmental groups advocating catch shares, marine protected areas and other means of constraining fishing.

President Obama's choice to head NOAA, Jane Lubchenco, came to office as an officer of Environmental Defense Fund, which has been lead advocate for both the catch share fishery management system and the so-called "cap and trade" approach to tackling air pollution.

NOAA's own socio-economic report on the performance of the fishery in the first year of the catch share regimen was a basis of the governor's disaster request. In 2007, the highest earning 20 percent of boats accounted for 67 percent of revenues, but in the first year of catch shares, the same percentage of boats upped their control to 80 percent.

Simultaneously, the industry continued to shed jobs.

Frank was "instrumental in including language in (the 2006 reauthorization of Magnuson) requiring a referendum before any individual fishing quota program could be adopted in New England," Greenberg wrote for the congressmen.

"He did so because (catch share) programs, which allow the transfer of quota from one permit holder to another, tend to create consolidation through the transfer of effort from one or several vessels, thus transforming the structure of the industry and resulting in a significant loss of jobs."

Argument with judge

Food & Water Watch, which has been reporting on the global experiments in fisheries commodification, argued that U.S. District Court Judge Rya Zobel, who rejected the plaintiffs' case last June, wrongly granted the government deference it had not earned in its declaration that what had been created in New England differed sufficiently from what Congress had in mind when it required a participants' referendum.

"The National Marine Fisheries Service's interpretation was not the product of thorough consideration because there was no meaningful deliberation between opposing viewpoints," the consumer group wrote. "The decision-making process also includes none of the usual indicia of valid reasoning ..."