Island fishermen settle lawsuit with Cape Wind

Menemsha Harbor is home to a small commercial fishing fleet. — File photo by Susan Safford

The Martha’s Vineyard/Dukes County Fishermen’s Association (MVDCFA) and Cape Wind Associates announced Tuesday that the Island-based fishermen’s association has ended its federal lawsuit and entered into a settlement agreement with Cape Wind.

“The Martha’s Vineyard Fishermen have agreed to support the Cape Wind project as a sustainable source of clean energy for the future, and Cape Wind and the Martha’s Vineyard Fishermen together support a vibrant and sustainable local commercial fishing community on Martha’s Vineyard,” the groups said in a press release issued at 2 pm on Tuesday.

“Cape Wind and the Martha’s Vineyard Fishermen,” the press release continued, “have agreed to work together to establish a Martha’s Vineyard Permit Bank that will enable the purchase of commercial fishing permits for local commercial fishermen’s use and the promotion of ‘Vineyard wild-caught’ seafood.”

MVDCFA President Warren Doty said in prepared remarks, “We are glad to have found common ground. Now we can work together to make Cape Wind’s sustainable energy and a sustainable local fishery both happen. The establishment of the Martha’s Vineyard Permit Bank will help protect the livelihood of local fishermen and help ensure this vibrant fishery remains for future generations.”

The Martha’s Vineyard Permit Bank will be administered under the auspices of the Permanent Endowment Fund for Martha’s Vineyard.

In a joint telephone conference call from Chilmark town hall on Tuesday, Mr. Doty, a Chilmark selectman, and Mark Rodgers, communications director for Cape Wind Associates, described the outlines of the settlement deal, but refused to provide any financial details about Cape Wind’s contribution to the fishing organization, which exists under the umbrella of Dukes County.

“We just filed this morning papers that would settle and dismiss our lawsuit,” Mr. Doty said during the call.

Mr. Doty said his organization would work with Cape Wind “to establish safe and continuous fishing access to Horseshoe Shoal areas within the wind farm.”

Another aspect of the settlement, he said, is that Cape Wind would contribute to a permit bank to be called the Martha’s Vineyard Fishermen’s Preservation Trust. “That trust will be organizing permits to give to young fishermen and to fishermen who have been denied access for other reasons,” he said.

In his formal remarks, Mr. Rogers said, “Warren and the fishermen he represents deserve a lot of credit for recognizing we have more common ground than differences between us, and that it made sense for us to come together.” He said the agreement marked a big step forward for sustainable energy and for a sustainable fishery.

During a question and answer period that followed, Mr. Doty said that the association’s seven directors made the decision to settle. Mr. Doty said the Dukes County commissioners agreed, in executive session, to support the terms of the settlement.

Asked by The Times to describe the specifics of the financial settlement, Mr. Doty said, “We signed a confidentiality agreement that we would not disclose any financial terms of this settlement, so we are bound by this confidentiality agreement not to talk about any money involved.”

Asked how it is possible for a county organization not to reveal that information to the county commissioners and as a matter of course in financial statements, Mr. Doty said, “We discussed that quite a bit with our legal team, and at the moment we are keeping that confidential, and we have to pursue any question of what is required in that category.”

Asked about the need for secrecy, Mr. Doty said confidentiality agreements are fairly standard in this type of agreement. “And at the moment, we have signed that agreement,” Mr. Doty said.

Mr. Doty said all money would go into a fund administered by the Permanent Endowment Fund, which administers a collection of funds and scholarships.

In June 2010, attorneys in the Washington, D.C., office of Kelley Drye and Warren filed suit on behalf of the fishermen. Mr. Doty said the firm donated 75 percent of the cost of the legal action. That left the association with a legal bill of $25,000 and that has been paid, Mr. Doty said.

Mr. Doty estimated the permit bank would need $3 million. In general, permit banks are used to purchase fishing licenses and quotas that can then be leased to fishermen unable to afford the outright purchase of them.

For example, the Cape Cod Commercial Hook Fishermen’s Association established The Cape Cod Fisheries Trust to purchase commercial permits. Self-employed Cape fishermen lease fishing opportunities from the trust and agree to harvest the catch with small boats and traditional gear.

It made sense

Mr. Rogers said that Cape Wind decided to settle what he had initially described as a publicity move by a law firm, because, he said, it was in everybody’s best interest as the project moves towards the start of construction. “At some point,” he said, “it doesn’t do anybody any good to continue an argument, and it makes more sense to sit down and see if people can work together.”

He said that as both sides talked they found areas of agreement. Hand line and pot fishermen would continue to be able to fish the area. Net fishermen would have limited access.

Mr. Doty said that conch, scup, sea bass, and squid are among the species targeted by commercial fishermen in the area.

The Cape Wind facility would occupy a 25-square-mile section of Horseshoe Shoal in Nantucket Sound and generate a maximum electric output of 468 megawatts with an average anticipated output of 182 megawatts, according to federal documents. At average expected production, Cape Wind could produce enough energy to power more than 200,000 homes in Massachusetts.

In June 2010, MVDCFA filed a lawsuit in the U.S. District Court for the District of Columbia on behalf of the fishermen’s association and individually on behalf of association member Jonathan Mayhew to stop the Cape Wind project on Horseshoe Shoal in Nantucket Sound.

The defendants were Secretary of Interior Ken Salazar and the Interior Department’s Bureau of Ocean Energy Management, Regulation and Enforcement (BOE).

Mr. Mayhew is a longtime commercial fisherman and Chilmark selectman. He was a party to the settlement.

In a 16-page complaint, attorneys David Frulla and Shaun Gehan of Kelley Drye and Warren said the Cape Wind energy project would effectively end all commercial fishing on Horseshoe Shoal — prime, historic fishing grounds for Vineyard fishermen.

“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.”