Law Archives - Saving Seafood

Feds beat fishermen: Court dismisses challenge to Atlantic monument

October 10, 2018 — A federal judge upheld the creation of the Northeast Canyons and Seamounts Marine National Monument last week, dismissing a lawsuit from commercial fishing groups that challenged presidential authority to establish the monument.

The national monument, created by former President Barack Obama, was authorized under the Antiquities Act. Representatives from the Massachusetts Lobstermen’s Association argued that the act does not include authorization to protect bodies of water and that the monument in question, an area of nearly 5,000 square miles, was too large.

But U.S. District Judge James Boasberg ruled that the Northeast Canyons and Seamounts Marine National Monument complied with the law and sided with the Trump administration’s motion to dismiss the suit.

“In all, plaintiffs offer no factual allegations explaining why the entire monument, including not just the seamounts and canyons but also their ecosystems, is too large,” wrote Boasberg in his decision.

He also clarified that the Antiquities Act histories grant that waterways, as well as land, can be protected under the act.

Read the full story at National Fisherman

Federal court rules against fishermen in Northeast Canyons monument lawsuit

October 10, 2018 — A federal judge last week dismissed a lawsuit brought by commercial fishing groups that challenged the creation of a marine national monument in 2016.

The organizations, which included the Long Island Commercial Fishing Association and the Massachusetts Lobstermen’s Association, claimed the administration of U.S. President Barack Obama did not have the authority to establish the Northeast Canyons and Seamounts Marine National Monument.

The monument is the first national marine monument established in the Atlantic Ocean. Because of the designation, commercial fishing – except for certain red crab and lobster fishing – is prohibited in the 5,000-square-mile area. The crab and lobster fishing will continue until their permits expire.

While the administration of current U.S. President Donald Trump has been considering reopening it and other marine monuments for commercial fishing, it did seek the dismissal of the lawsuit, claiming the Antiquities Act gave presidents the right to establish and define such monuments.

“This is not a joke, jobs will be lost and thousands of people’s lives will be impacted through a back-door process that did not require formal federal review,” said Bonnie Brady, executive director of the Long Island Commercial Fishing Association in a Facebook post.

Read the full story at Seafood Source

Fishing Groups Lose Legal Battle Over Marine Monument

October 9, 2018 — The national monument that former President Barack Obama established in the Atlantic Ocean survived a court challenge Friday, with a federal judge finding that the majesty of even underwater lands is worthy of protection.

Appropriating words that President Teddy Roosevelt once used to praise the Yosemite Valley, the Canyon of Yellowstone, and the Grand Canyon, U.S. District Judge James Boasberg noted that the Canyons and Seamounts of the Northwestern Atlantic Ocean are a “region of great abundance and diversity as well as stark geographic relief.”

“Dating back 100 million years — much older than Yosemite and Yellowstone — they are home to ‘vulnerable ecological communities’ and ‘vibrant ecosystems,’” Boasberg’s 35-page opinion continues. “And, as was true of the hallowed grounds on which Roosevelt waxed poetic, ‘much remains to be discovered about these unique, isolated environments.’”

When Obama created the Northeast Canyons and Seamounts Marine National Monument in 2016, he relied on a 1906 law passed in Roosevelt’s administration.

A year later, the Massachusetts Lobstermen’s Association and four other groups filed suit to unravel the 5,000-square-mile designation: They claimed that high seas do not qualify as the small “parcels of land” discussed in the Antiquities Act.

Read the full story at the Courthouse News Service

Judge Tosses Seafood Industry Challenge to East Coast Wind Farm

October 3, 2018 — A seafood industry challenge to a $42.5 million lease for a wind farm off the coast of New York was filed prematurely, a federal judge has ruled.

Led by the Fisheries Survival Fund, the plaintiffs in the case said the Bureau of Ocean Energy Management failed to adequately consider how the Statoil Wind US LLC wind energy facility would impact fishermen, along with other environmental and economic impacts.

The plaintiffs also argued that the agency failed to consider adequate alternatives or prepare an environmental impact statement, which the Bureau of Ocean Energy Management said was unnecessary after determining that there were no foreseeable environmental impacts that would significantly impact the human environment.

But U.S. District Judge Tanya Chutkan, while finding that the Fisheries Survival Fund and the other plaintiffs had standing to bring claims under the National Environmental Policy Act, ruled Sunday they were not yet ripe.

That’s because Statoil Wind US LLC, the company developing the 26-mile wind farm roughly 11 miles out from Long Island, must first submit its construction and operations plans, along with a site assessment, while the Bureau of Ocean Energy Management retains authority to reject any or all of those.

“The presence of these ‘conditions’ does not transform the lease into an irretrievable commitment of resources,” the 24-page ruling says.

Chutkan later adds: “The lease sale does not represent the final word on anything, nor does it commit any resources, even putting aside the question of whether it does so irretrievably,” the 24-page ruling says.

If its site assessment plan is approved, Statoil will have five years to conduct surveys and propose construction and operations plans.

Read the full story at Courthouse News

Court upholds BOEM lease for New York offshore wind energy

October 3, 2018 — Seafood industry groups were dealt a setback Sept. 30 when a federal court judge in Washington, D.C., refused to grant a ruling in their challenge of a federal lease for an 80,000-acre offshore wind energy project near New York.

The Fisheries Survival Fund and its allies sought a summary judgement from U.S. District Court Judge Tanya Chutkan in Washington, D.C., to overturn the federal Bureau of Offshore Energy Management’s grant of a $42.5 million lease to Norway-based Equinor, formerly Statoil, for its Empire Wind project.

Fishermen argued BOEM ignored potential impacts on the environment and fishing. On Sunday the judge ruled that challenge to the initial December 2016 leasing was premature, as the agency has yet to review a construction and operations plan from the company.

But other court precedents have held that offshore leaseholders “gain more rights as development proceeds, and as more time and money are invested in a project,” the Fisheries Survival Fund said in a prepared statement. “That means that the further development proceeds, the more difficult it becomes for plaintiffs to overturn a leasing decision.”

The decision comes as wind energy companies are vying to lock in agreements with state governments in New York and New Jersey – and get priority for ratepayer subsidies that will help develop a U.S. industry.

The judge has found the fishing industry and affected communities; including scallop fishing ports like New Bedford, Mass., have standing to contest the wind farm proposal. The challengers say the “unsolicited bid procedure allowed BOEM to decide, behind closed doors, what area of the ocean was to be leased.”

Read the full story at WorkBoat

Fisheries Survival Fund Expresses Concern Over Recent Ruling in NY Wind Farm Case

October 1, 2018 — WASHINGTON — The following was released by the Fisheries Survival Fund:

Late yesterday, the U.S. District Court for the District of Columbia denied a ruling for summary judgment in the ongoing lawsuit against the leased wind farm area in the New York Bight. While the Fisheries Survival Fund (FSF) is pleased that the court found that the fishing industry and affected port communities have standing to bring claims in the case, we are concerned with other aspects of the ruling.

Specifically, we are troubled by the court’s finding that our claims under the National Environmental Policy Act (NEPA) are not ‘ripe.’ The court held that, because the Bureau of Ocean Energy Management (BOEM) retains some authority to preclude surface disturbing activities in the period between issuing a lease and the approval of a construction and operations plan, the lease itself does not constitute the irretrievable transfer of resources required under NEPA. The court found that the “lease sale does not represent the final word on anything, nor does it commit any resources, even putting aside the question of whether it does so irretrievably.”

This suggests that the court views the lease as something akin to a ‘ticket’ to proceed, rather than a guarantee of any rights. Just as a concertgoer’s ticket can be revoked by a venue for inappropriate behavior, the court seems to contend that the leaseholder’s ‘ticket’ for at-sea development can be revoked by BOEM at any time. But in fact, judicial precedent interpreting the Outer Continental Shelf Lands Act (OCSLA) has held that the leaseholder gains more rights as development proceeds, and as more time and money are invested in a project. This means that, the further development proceeds, the more difficult it becomes for plaintiffs to overturn a leasing decision.

We are concerned that the court’s view of the case as premature at the leasing stage, combined with case law finding a leasing challenge too late at the construction and operation plan phase, leaves plaintiffs with no opportunity to challenge this siting decision.

We are encouraged the court never contested our view that the unsolicited bid procedure allowed BOEM to decide, behind closed doors, what area of the ocean was to be leased. But we are troubled by the court’s ruling that our OCSLA claims are barred because we did not comply with the provision requiring 60 days notice of an intended filing. We were not able to provide 60 days’ notice, because BOEM scheduled the lease sale only 45 days after publication of the Final Sale Notice.

The court held that we were not excused from compliance with the 60-day notice period because the statute does not require BOEM to schedule its lease sales with sufficient time to accommodate potential claimants. If the court’s position is upheld, BOEM apparently would have the ability to lease any portion of the ocean unchallenged, and would deny any harmed parties their right to challenge a proposed lease sale under the OCSLA. We believe given these circumstances that we should have been granted an exemption from this requirement.

About the Fisheries Survival Fund
The Fisheries Survival Fund (FSF) was established in 1998 to ensure the long-term sustainability of the Atlantic sea scallop fishery. FSF participants include the vast majority of full-time Atlantic scallop fishermen from Maine to North Carolina. FSF works with academic institutions and independent scientific experts to foster cooperative research and to help sustain this fully-rebuilt fishery. FSF also works with the federal government to ensure that the fishery is responsibly managed.

US aquaculture advocates: Judge’s ruling on Gulf of Mexico proves need for law

September 28, 2018 — A lobbying group organized by more than a dozen powerful seafood companies says a ruling this week by a federal judge that the US National Marine Fisheries Service (NMFS) doesn’t have the authority to oversee fish pens in federal waters is why new legislation is needed.

In a 15-page opinion handed down Monday, US district court judge Jane Triche Milazzo, in the Eastern District of Louisiana, granted a motion by the Center for Food Safety (CFS) and a coalition of fishing and public interest groups it represented to grant a summary judgment in its lawsuit against NMFS to block its efforts to establish aquaculture in the Gulf of Mexico.

Milazzo has given the plaintiffs 10 days to file a proposed judgment.

CFS filed its lawsuit against NMFS, a division of the National Oceanic and Atmospheric Administration, in February 2016, arguing that the Magnuson Stevens Fishery Conservation and Management Act (MSA), passed in 1976, was meant to give NMFS authority over the harvesting of wild fish, not aquaculture.

“In analyzing the plain text, statutory scheme, and legislative history of the MSA, this court finds that the term ‘harvesting’ was intended to refer to the traditional fishing of wild fish,” Milazzo wrote in her opinion. “There is nothing in the MSA or its legislative history to suggest that Congress might have intended that the term be defined to include the farming of fish.

“… It is often said that ‘Congress does not ‘hide elephants in mouseholes’, and this court cannot imagine a more fitting example,” she added.

NMFS, in January 2016, with the help of the Gulf Council, finalized regulations to authorize a federal commercial aquaculture permitting scheme in the gulf. According to CFS, the program would have allowed up to 20 industrial facilities and collectively 64 million pounds of fish to be grown each year in the area.

Read the full story at Undercurrent News

Judge: NOAA can’t regulate fish farming under fisheries law

September 27, 2018 — A federal judge in New Orleans has thrown out the National Oceanic and Atmospheric Administration’s rules for fish farms in the Gulf of Mexico, saying the agency lacked authority to make them.

Tuesday’s ruling halts a plan that would have allowed, “for the first time, industrial aquaculture offshore in U.S. federal waters,” according to the Center for Food Safety , which sued NOAA on behalf of what U.S. District Judge Jane Triche Milazzo described as “a bevy of special interest groups representing both food safety advocates and Gulf fishermen.”

The government considers fish farming, including that on the open sea, to be “vital for supporting our nation’s seafood production, year-round jobs, rebuilding protected species and habitats, and enhancing coastal resilience.” Opponents say huge numbers of fish confined in nets out in the ocean could hurt ocean health and native fish stocks, and the farms would drive down prices and devastate commercial fishing communities.

“It’s a landmark decision,” George Kimbrell, lead counsel for the Center for Food Safety, said in a telephone interview from San Francisco.

“NOAA wanted to do this sort of industrial permitting not just in the Gulf of Mexico but in the Pacific and along the Atlantic coast,” he said.

The agency was working on rules for waters around Hawaii and other Pacific islands.

NOAA is considering whether to appeal the ruling handed down Tuesday, it said in an emailed statement.

The decision doesn’t forbid aquaculture, the statement emailed by spokeswoman Jennie Lyons noted. “NOAA remains committed to expanding the social, environmental, and economic benefits of sustainable marine aquaculture in the U.S.” it said.

Read the full story from the Associated Press at The Washington Post

Fishing crew member charged with murder in attack at sea

September 26, 2018 — BOSTON — A member of a fishing boat crew attacked his fellow crew members at sea with a knife and a hammer, killing one of them, federal prosecutors said.

Franklin Freddy Meave Vazquez, 27, was charged with murder and attempted murder in connection with the attack Sunday on the Virginia-based fishing vessel Captain Billy Haver about 55 miles off Nantucket, Massachusetts, the U.S. attorney’s office for Boston said in a statement.

Vazquez will appear in federal court in Boston at a time to be determined. The Associated Press could not locate a lawyer for him Tuesday.

He assaulted three crew members with a knife in one hand and a hammer in the other, authorities said.

Read the full story from the Associated Press at the Gloucester Times

Former captain of New Bedford fishing boat pleads guilty to interfering with Coast Guard inspection

August 24, 2018 — The former captain of a New Bedford-based commercial fishing boat, admitted Thursday to interfering with a U.S. Coast Guard inspection of his vessel after he sunk the ship’s fishing net, prosecutors said.

Thomas D. Simpson, 57, of South Portland, Maine, pleaded guilty in federal court in Boston to destruction or removal of property subject to seizure and inspection, the U.S. attorney’s office said in a statement.

Sentencing was set for Nov. 28.

Simpson was the captain of the Fishing Vessel Bulldog, which was fishing off the Massachusetts coast May 31, 2014, when the Coast Guard conducted a routine inspection of the vessel, the statement said.

Officers asked Simpson, who was in the ship’s wheelhouse, to haul in the vessel’s fishing net. Instead, Simpson let out more of the cable attached to the net until it detached from the ship and sank to the ocean floor, officials said.

Read the full story at The Boston Globe