Martha’s Vineyard fishermen file federal lawsuit to stop Cape Wind

A Washington-based law firm has filed a lawsuit in the U.S. District Court for the District of Columbia on behalf of Vineyard commercial fishermen to stop the Cape Wind project on Horseshoe Shoal in Nantucket Sound.

The plaintiffs are the Martha’s Vineyard/ Duke’s County Fishermen’s Association (MV/DCFA) and Jonathan Mayhew of Chilmark. The defendants are Secretary of Interior Ken Salazar and the Interior Department’s Bureau of Ocean Energy Management, Regulation and Enforcement (BOE).

Mr. Mayhew is a long-time commercial fisherman and Chilmark selectman.

The MV/DCFA represents Island commercial fishermen from a number of fisheries.

“We support sustainable, clean energy. However, the planning of this entire project was never done with careful consideration of the community’s best interests,” MV/DCFA President Warren Doty said in a press release.

Following almost a decade of review, Mr. Salazar traveled to Boston on April 28 to announce Department of the Interior approval of the Cape Wind renewable energy project, clearing the stage for construction to begin.

Gov. Deval Patrick, who joined Mr. Salazar at the State House for the April announcement, said he expects construction on the 130-turbine offshore wind farm in Nantucket Sound to begin within a year.

In a 16-page complaint (available at mvtimes.com) attorneys David Frulla and Shaun Gehan of the law firm of Kelley Drye and Warren asked that the court find the record of decision “was an abuse of discretion, in excess of authority and unlawful, and to permanently prevent the government from leasing the property to the windmill developers.”

The Cape Wind energy project would effectively end all commercial fishing on Horseshoe Shoal — prime, historic fishing grounds for Vineyard fishermen, according to a law firm press release.

“Island fishermen are under a tremendous amount of regulatory pressure and are already struggling to make a living,” Mr. Frulla said in a press release announcing the lawsuit. “There are other solutions and alternatives that could better safeguard both the environment and the only way of life for many local residents.”

The MV/DCFA is a creation of the Dukes County commissioners. The commissioners appointed the association board members, and the county provides meeting space and support, county manager Russell Smith told The Times. Mr. Smith said he was not aware a lawsuit was filed and to his knowledge the commission was not asked to be a party to the lawsuit.

In a press release, the lawyers outlined objections to the Cape Wind project.

“After lengthy study, the Coast Guard concluded that the wind farm could interfere with vessels’ radar, and will require fishermen to undertake a series of safety steps that will make their fishing activities prohibitively uneconomic,” the release said.

“Specifically, the Coast Guard will require fishing vessels to carry an extra crewmember to monitor vessel radar and positioning. Because Island fishermen are generally small operators, the requirement to carry and compensate an extra man creates a major financial burden.

“The Coast Guard also will require establishment of traffic lanes and designated vessel routes within the wind farm, to help compensate for vessels’ compromised radar systems. Of course, fish do not swim in traffic lanes along designated vessel routes, so this requirement will further severely cripple or obviate commercial fishing operations. In addition, fishermen have explained that the windmills will endanger the safety of fishermen whose nets get caught on wind turbine pilings and whose maneuverability within the turbine field would be dangerously limited.”

In a telephone call Monday, Mr. Doty, who is also a Chilmark selectman and an advocate for maintaining a commercial fishing base in Menemsha, said the organization has a membership list of about 100, not all of whom are fishermen. “They are people who have come to a meeting at one time or another and left their name, phone number, and email address,” he said. “We are defining membership as people who want to be in the organization.”

Mr. Doty said the association represents about 15 Vineyard lobstermen, 20 conch fishermen, and perhaps 12 draggers that work out of Menemsha.

Mr. Doty said fishermen had been pressing officials to find out how the turbines would affect commercial fishing operations and only found out after the comment period was closed. He said the restrictions would greatly affect fishing activity in an area categorized as essential fish habitat.

Mr. Doty said that Mr. Frulla has represented many fishing groups, writes about fishing issues, and has represented Mr. Mayhew in the past.

Asked how the group planned to pay for the suit, Mr. Doty said, “That’s a good question. At the moment, we are funding it through the good graces of the lawyers.”

In a telephone call Tuesday, Mr. Frulla said, “Our clients think that their way of life is at stake, and we are going to work as hard as we can to make sure that they will be able to continue to fish and live on the Island and carry on as year-round residents.”

Asked for comment on the lawsuit, Mark Rodgers, a spokesman for Cape Wind Associates, said the law firm appeared to be engaging in public relations. “it is unusual for a law firm to put out a press release about filing a lawsuit,” Mr. Rodgers said in an email to The Times.

“As to the lawsuit itself,” Mr. Rodger wrote, “the nine-year review of Cape Wind was the most comprehensive and exhaustive of any review of an energy project in New England, including all the nuclear and fossil fuel power plants that now provide electricity to the region, and we are confident that the decision to approve Cape Wind will be upheld in court.

“On fishing and navigation, with the artificial reef effect from the clean energy foundation structures that will be built on Horseshoe Shoal, the fishing is going to be better than ever and we encourage commercial and recreational fishermen alike who have shallow draft boats to come on in. The wind turbines will be separated six to nine football fields apart, in straight lines, so any competent mariner operating a shallow draft vessel will be able to safely navigate the area.

“Moreover, clean energy projects like Cape Wind are needed to mitigate the effects of climate change which threatens the very existence of some important fisheries in this region.”