Law Archives - Saving Seafood

Mills, Maine delegation relieved by judge’s decision to delay stricter lobstering rules

November 21, 2022 — Maine’s governor and congressional delegation released a joint statement Sunday expressing relief that a judge has delayed for two years the implementation of lobster gear restrictions designed to protect endangered whales.

But they also emphasized that the action merely postpones the threat to Maine’s lobster industry and reiterated that the new restrictions do nothing to meaningfully protect endangered North Atlantic right whales.

Environmentalists had sought to force federal regulators to issue new rules within six months to protect the whales from fishing gear entanglements, but the National Marine Fisheries service said it needs to postpone implementation until the end of 2024.

Gov. Janet Mills, Sens. Susan Collins and Angus King and Reps. Jared Golden and Chellie Pingree released the statement Sunday morning.

Read the full article at the Press Herald

Judge rules two-year extension before lobster industry regulation changes

November 18, 2022 — A Thursday afternoon opinion was confirmed with bipartisan agreement between environmental groups and Maine lobstermen intervenors to allow the federal government to come up with new regulations to reduce right whale entanglements.

Judge James Boasberg of D.C. ruled in favor of the two-year extension as new rules from National Marine Fisheries Service were set to be released this fall.

Read the full article at News Center Maine

Biden administration wins reprieve in fixing Endangered Species Act flaws

November 17, 2022 — The Biden administration can reevaluate changes made by the previous administration to the Endangered Species Act without at the same time fighting a trio of lawsuits by environmentalists and state and local governments that challenged the 2019 overhaul of the law.

U.S. District Judge Jon Tigar in Oakland on Wednesday granted the requests by the U.S. Fish and Wildlife Service and National Marine Fisheries Service to send the 2019 changes back to them for further reconsideration. The judge left the changes to the ESA intact, saying he couldn’t vacate them without having first ruled on the merits of the environmentalists’ claims.

The Center for Biological Diversity and other environmental organization sued in 2019 after the Trump administration weakened several provision of the ESA such as not automatically extending protections against killing, harassing, harming or collecting threatened species as well as endangered species.

Read the full article at Courthouse News

New Jersey groundfish fishermen ask US Supreme Court to take up at-sea monitor case

November 15, 2022 — Fishermen from the U.S. state of New Jersey who oppose a federal regulation requiring them to pay for monitors to oversee their trips have asked the U.S. Supreme Court to take up their case.

The New Jersey herring fishermen say a federal law gives NOAA the ability to make them pay up to USD 700 (EUR 680) per day to cover the costs of the monitors – which they claim is often more than what captains and crew members can earn on their trips.

Read the full article at SeafoodSource

Lobster Industry Files Opening Brief in Appeal Battle Against NMFS, Right Whale Rules

November 15, 2022 — The Maine Lobstermen’s Association filed its opening brief in a battle against the National Marine Fisheries Service (NMFS) and its 10-year whale protection plan that calls for the industry to reduce the risk of North Atlantic right whale entanglements with lobster gear.

The brief explained that the NMFS, by law, must use “the best scientific and commercial data available and ensure only that the lobstermen are not likely to jeopardize the right whale population.”

However, the MLA argued that the data used was skewed and “catastrophized,” per an MLA press release. As the MLA explained in its brief, NMFS used “worst-case scenarios” to impose their risk reduction plan, which includes gear modifications and closed fishing areas.

Read the full article at Seafoodnews.com

RODA SEEKS SUMMARY JUDGMENT AGAINST FEDERAL GOVERNMENT’S APPROVAL OF VINEYARD WIND PROJECT

November 15, 2022 — The following was released by Responsible Offshore Development Alliance:

On November 8, 2022, the Responsible Offshore Development Alliance (RODA) filed a motion for summary judgment in its lawsuit over the approval of the Vineyard Wind 1 offshore wind energy project against the Bureau of Ocean Energy Management (BOEM) and other federal defendants in the U.S. District Court for the District of Massachusetts. RODA is represented by Marzulla Law, LLC.

The plaintiff, a national coalition of fishery-dependent businesses and associations, commenced the lawsuit last year after BOEM approved the project. This first commercial-scale offshore wind energy facility in federal waters, along with the dozens that are expected to follow in the near future, carry significant environmental uncertainty and pose severe threats to domestic seafood production. The government’s permitting process lacks meaningful opportunities to avoid, minimize, and mitigate these effects.

The motion establishes a clear record showing that the law and facts of the case are in fishermen’s favor and that the project approval was arbitrary, capricious, and contrary to law. The filings show that BOEM’s Record of Decision and its underlying environmental review are in direct contravention of several statutes including the Outer Continental Shelf Lands Act, National Environmental Policy Act, Clean Water Act, Endangered Species Act, Marine Mammal Protection Act, Merchant Marine Act, and Administrative Procedure Act.

Herring fishermen take at-sea monitoring costs to Supreme Court

November 15, 2022 — Atlantic herring fishermen are asking the U.S. Supreme Court to reject a requirement that they pay for fishery observers at sea, at costs that can exceed $700 a day.

The fishermen’s petition to certify looks to bring their earlier lawsuit against the U.S. Department of Commerce and National Marine Fisheries Service to the high court, after they lost in a federal appeals court.

“We are fighting for our livelihoods and a future that is being unfairly targeted by federal overreach,” said Stefan Axelsson, a third-generation fisherman and captain of one of the vessels in the lawsuit, in a statement from the fishermen and their lawyers on Nov. 10. “These rules could force hardworking fishermen to surrender a significant part of their earnings.”

The lead plaintiff in the lawsuit, Loper Bright Enterprises of New Jersey, is associated with several fishing vessels and companies based at Cape May, N.J. The group has fought back against a 2020 rule from the National Marine Fisheries Service that forced vessel operators to pick up the tab for daily at-sea observer coverage. Fishermen say Congress should fund the program.

“Making these vessels pay to have the observer coverage on them just decreases hardworking fishermen’s wages and makes it less attractive for vessels to continue,” said Wayne Reichle, president of Lund’s Fisheries of New Jersey and an owner of two of the boats that are plaintiffs in the case. “In some cases, it prevents them from fishing.”

Read the full article at the National Fisherman

Fishermen target Chevron deference in SCOTUS petition over onboard monitors

November 15, 2022 — New Jersey fishing firms want the U.S. Supreme Court to review a lower court order that forces them to pay the salaries of federally mandated onboard monitors, arguing it’s the perfect opportunity to overturn a cornerstone precedent that gives federal agencies wide latitude to interpret laws.

The fishing companies say the National Marine Fisheries Service’s (NMFS) salary rule is too onerous, requiring them to not only give up valuable space on their small boats for the observers but also pay them over $700 a day. The companies have said those fees can reduce returns by 20%.

Read the full article at Reuters

Federal officials issued ‘economically debilitating’ rules on the Maine lobster industry, court filing says

November 11, 2022 — Federal officials trying to institute new regulations on Maine’s lobster fishing industry exceeded their authority and focused on “worst case scenarios” when creating new rules, according to a new federal filing.

The Maine Lobstermen’s Association on Thursday filed its opening brief with the U.S. Court of Appeals as the industry works to beat back regulations that it says will crush Maine’s signature fishery.

Federal officials have proposed gear modifications to reduce the incidence of entanglement for endangered right whales, which number about 340. Other regulations would close certain areas to lobster fishing while the whales are migrating.

Read the full article at Spectrum News

Fishermen take case against paying for monitors to SCOTUS

November 10, 2022 — Former U.S. Solicitor General Paul Clement today petitioned the U.S. Supreme Court to hear the case of several New Jersey fishermen challenging a federal mandate that forces herring fishermen to pay hundreds of dollars out of pocket to host at-sea monitors who observe the fishermen on fishing trips and report their activities to the federal government. The mandate forces herring fishermen to pay monitors as much as $700 per day, which can be more than some boat captains and crew members make on the same trips.

Paul Clement served as United States solicitor general from 2004 to 2008. Over the past three Supreme Court terms, attorneys with Clement & Murphy have argued 14 cases and prevailed in 12. Its team has successfully litigated both alongside and against the United States government, as well as federal agencies, and have successfully secured certiorari over the federal government’s opposition and successfully opposed certiorari when the federal government has sought it.

The following is an excerpt from a story originally published by the Associated Press:

A group of commercial fishermen is asking the U.S. Supreme Court to stop the federal government from making them pay for workers who gather data aboard fishing boats.

The fishermen harvest Atlantic herring off the East Coast and are opposed to a 2020 rule implemented by the National Oceanic and Atmospheric Administration that requires the industry-funded monitoring. The monitors are workers who collect data on board fishing vessels that are important for informing regulations.

The fishermen, led by main plaintiff Loper Bright Enterprises of New Jersey, have argued that the requirement forces them to pay more than $700 per day to third-party contractors, and that makes fishing financially unsustainable. They’ve lost in lower court rulings, and filed a petition with the high court on Thursday.

Read the full story from the Associated Press