Law

February 20, 2020 — The following was released by Lund’s Fisheries and Cause of Action Institute:

Cause of Action Institute (“CoA Institute”) today filed a lawsuit on behalf of a group of New Jersey family fishermen to block a new regulation that would force them to pay for third-party “at-sea monitors.” The industry-killing rule-which was designed by the New England Fishery Management Council and promulgated by the National Oceanic and Atmospheric Administration and U.S. Department of Commerce-will require certain boats in the Atlantic herring fishery to carry “at-sea monitors” and at their own cost.

The agencies are forcing this requirement on the fisherman despite no statutory authority to do so and in addition to a separate, federally funded observing program. The regulation also has the potential to modify other New England fishery management plans to allow for standardized implementation of additional industry-funded monitoring programs in the future.

“The herring trawl fishery and been vilified and over-regulated, with little demonstrated biological benefit to the herring resource, for too long. If our vessels are forced to pay these at-sea monitoring fees, it may drive some of us out of business, as several boats have already been forced out of the fishery through reduced quotas and burdensome regulation,” said Jeff Kaelin, Director of Sustainability and Government Relations at Lund’s Fisheries, Inc., and representative for the Plaintiffs. “The herring trawl fishery is heavily monitored and regulated already-with everything from exclusion zones covering hundreds of square miles of ocean where we have historically fished, to move-along rules enforced when a mechanical failure may occur. Monitoring New England’s and the Mid-Atlantic’s commercial fisheries is an inherent governmental function. Herring fishermen have worked with the Councils for years in advancing conservation and the sustainability of the herring resource and fishery. The Omnibus Amendment will not benefit those goals in any significant way and has been developed with no Congressional authority for doing so. This is the last straw.”

At-sea monitoring is expected to cost over $700 a trip. Herring fishermen will suffer a drop in income projected as at least 20%, which will challenge companies to remain profitable and subsequently have the effect of driving up costs to lobster and crab fishermen throughout the region. Monitors are required to live with the fishermen at sea, observe their activities, check their compliance with federal regulations, and file reports upon return to the dock. This increased regulatory burden comes despite herring fishermen successfully complying with complex, multi-layered state and federal fishing regulations since the Atlantic herring fishery management plan was adopted in 1999.

As many stakeholders explained in the lead-up to the new regulation, regulators have no statutory authority to require these family fishermen to pay for their own policing. And the process by which the government imposed the new rule for the herring fishery is procedurally suspect. CoA Institute is stepping-in to stop this unlawful overreach. If the industry-funding requirement moves forward, it will imperil one of America’s oldest and most-storied professions.

“The federal government finalized this regulation despite having no authority from Congress to do so. Commercial fishermen and their friends have been raising concerns about the inadequate legal basis for industry-funded at-sea monitoring for years,” said CoA Institute Counsel Ryan Mulvey. “But regulators have ignored these arguments. We cannot let the administrative state push rules that go beyond its power and crush an already-beleaguered industry. We are proud to represent America’s fishermen.”

A copy of the Complaint can be found HERE.

Plaintiffs are represented by CoA Institute counsels Ryan P. Mulvey and Eric R. Bolinder.