Law

January 10, 2010 – (Saving Seafood) – Another high profile case has been filed against the National Marine Fisheries Service as the Alaska Seafood Cooperative, joined by other seafood organizations, has filed suit over the January 1 closing of fishing Area 543.

NMFS justifies the closing with claims that commercial fishing in the area, primarily for Pacific cod and Atka mackerel, has an adverse effect on the Steller sea lion population. Critics of this position point to the lack of science explaining the true relationship between fishing and Steller sea lion numbers.

In a January 3 letter to Commerce Secretary Gary Locke, Governor Christine O. Gregoire of Washington weighed in on the issue. While remaining loyal to the Endangered Species Act, which NMFS evokes as a reason for the closing, Gov. Gregoire is concerned that “there was very little time for those who were most directly impacted by the decision to review [the draft Biological Opinion] and provide comments to the National Oceanic and Atmospheric Administration (NOAA), including views on whether the full suite of science had been considered and relied upon in its formulation.”

Alaska Governor Sean Parnell filed suit against NMFS on December 14, 2010. According to his press release, “As many as 900 people are employed by fishing fleets in the area facing restrictions. NMFS acknowledges that implementation of its decision would cost fishery losses of up to $66 million annually.”

According to the same press release, Alaska Fish and Game Commissioner Cora Campbell echoed Gov Gregoire’s concerns, saying, “We are very disturbed about the lack of meaningful public process.”

 

 

 

 

 

Oceana, a 10-year-old public charity that advocates and lobbies on environmental issues and also creates and publishes intellectual property, is claiming it's entitled to the same exemption from U.S. Freedom of Information Act charges that is granted by statute to the news media.

The refusal of the National Oceanic and Atmospheric Administration to grant Oceana the media exemption from research, screening and reproduction charges amounting to more than $16,000 brought the issue into U.S. District Court after Oceana filed a complaint on Dec. 23.

Oceana made a FOIA request of NOAA in March for a variety of internal documents in various forms that the organization identified as valuable to its continuing campaign of public information and policy advocacy for sea turtles.

According to the suit, filed in U.S. District Court in Washington, D.C., Oceana was interested in records regarding the impact that trawl gear has had on turtles, bycatch and internal discussion of policies aimed at eliminating the waste. Many turtle species are endangered or threatened.

NOAA agreed to provide the documents, but refused to grant a waiver of costs to Oceana — a $20 million organization that is based in Washington and boasts of up to 500,000 "members and supporters."

Read the complete story from The Gloucester Times.

 

 

 

 

 

 

NEW BEDFORD, Mass. and WASHINGTON — Dec. 28, 2010 — In a federal lawsuit filed just before Christmas, the National Oceanic and Atmospheric Administration is accused of violating the Freedom of Information Act by charging the environmental group Oceana Inc. exorbitant fees to fulfill its document requests.

"The (National Marine) Fisheries Service told Oceana that it would only provide the unclassified, non-commercial documents to which Oceana is entitled if Oceana paid $16,338.60 in advance," says the suit filed in federal district court in Washington, D.C.

"This happens all the time," Pamela Lafreniere, a New Bedford lawyer who deals with fisheries cases, told The Standard-Times. She said she is being billed some $600 for the answer to a single question about the use of the asset forfeiture fund within NOAA.

This is not the first time issues have arisen surrounding NOAA's handling of FOIA requests.  In a February 26, 2009 letter to the late Senator Edward Kennedy of Massachusetts, the Commerce Department Inspector General found that "NMFS did not comply with its own procedures" in handling a 2008 FOIA request from scallop industry representatives.  In that case, "NOAA did not meet required FOIA deadlines and overestimated the fees associated with the FOIA request." The Inspector General found that "NOAA's poor handling" of the request "contributes to its reputation in the Northeast Region as an agency that is unconcerned with transparency."  According to the Inspector General, industry representatives found "NOAA's mishandling" of the FOIA request "frustrating to them, yet not surprising given previous exchanges with the agency."

The Inspector General said "it is apparent to us that the responsible officials were not held accountable for following FOIA procedures" and observed that "Interactions like this will only serve to further erode the industry's confidence in NOAA. For each interaction with the industry, NOAA would benefit by emphasizing transparency and openness." The Inspector General concluded "We suspect there may be further problems with the FOIA process at NOAA, but those issues are beyond the scope of this review."

Even after the Inspector General's findings were reported to Senator Kennedy, industry requests for information have received similar responses.  In Sept. 2009, a letter signed by an assistant for Mark Paterni, Assistant Director of Law Enforement, stated that filling a request for documents detailing fines collected by the NOAA Fisheries Office of Law Enforcement in the Northeast would require a payment of more than $17,000.  These fines later became the subject of an inquiry by the Commerce Department Inspector General.

In 2010, an industry request for correspondence between a policy director of the Ocean Conservancy and NOAA officials; NOAA Director Jane Lubchenco and her deputy Monica Medina; Ms. Medina and Ron Klain, Chief of Staff to Vice President Joseph Biden and Ms. Medina's husband; and correspondence between Mr. Klain and Dr. Lubchenco was met with an agency estimate of over $17,500 in "processing fees".

New Bedford Mayor Scott W. Lang said it is ironic that Oceana is complaining about withholding documents when environmental groups [such as the Conservation Law Foundation ] are siding with NOAA and opposing the disclosure of documents and the taking of depositions in the city's lawsuit challenging catch shares and sector management of the fishery.

NOAA is slow to produce documents even when it is willing, Lang said. He said only now is the city receiving a few documents it sought in spring when it filed a FOIA request for information about scallop quotas.

Lang said it would be best if all parties would just be transparent about what they are doing. "This isn't the START treaty, this is fisheries management, for heaven's sake," he said.

Oceana, based in Washington, D.C., contends that it is entitled to a waiver of fees on the grounds that it qualifies as a media company because it publishes government information to inform the public about environmental issues. Media outlets are exempt from charges associated with FOIA requests.

Oceana, which filed an earlier lawsuit in May accusing fisheries regulators of being too lax, was asking NOAA for the documents used to establish agency policy on sea turtles.

 

Read the complete story from the South Coast Today.

Read Oceana's court filing

 

 [This story was compiled from material in the New Bedford Standard-Times' story and supplemented by material obtained by Saving Seafood's Washington-based research staff.]

 

 

 

 

 

 

The environmental advocacy group Oceana has urged the federal courts to force the National Oceanic and Atmospheric Administration to plug what the organization contends are gaping holes in the groundfish management regimen that includes the "catch shares" format now being used in New England.

But, unlike legal challenges filed by the cities of Gloucester, New Bedford and other fishing interests, Oceana is charging the NOAA system is too lax, allowing bycatch to go unrecorded and overfishing unpenalized.

In a complaint filed with the U.S. District Court in Washington, D.C., Oceana alleges that NOAA has failed to meet the requirements of the Magnuson-Stevens Act's 2006 reauthorization which, for the first time, required hard catch limits and "accountability measures" when limits are exceeded.

Read the complete story from The Gloucester Times.

 

 

 

 

 

 

GLOUCESTER – Mass. Gov. Deval L. Patrick will back a lawsuit challenging the legality of the new fishing regulatory system, The Gloucester Times reported on Sunday.

The newspaper said that the system encourages less capitalized, independent fishing boats to sell or lease out their quota to stronger competitors. Reports from Gloucester and New Bedford flag at least half of the boats idling while the larger, multi-boat businesses “enjoy unprecedented revenue gains.”

Patrick is set to file an “amicus” legal brief and join a lawsuit – alleging that the National Oceanic and Atmospheric Administration policies have displaced small boat owners – brought by Gloucester and New Bedford.

Read the complete story from Providence Business News.

 

 

 

 

 

In its haste to convert the groundfishery of the northwest Atlantic into a catch share commodities market, the government ignored a statutory requirement to hold a referendum among participants in the New England fishery, a new federal lawsuit alleges.

And federal regulators committed an unconstitutional confiscation of property by opting to use admittedly erroneous catch histories in allocating the resource,

The suit, entered for New Jersey fisherman James Lovgren by suburban Philadelphia attorney Patrick Flanigan, was originally filed last May in U.S. District Court in Camden, N.J.

But it was been transferred to U.S. District Court in Boston and paired for a consolidated hearing with the higher-profile catch-share legal challenge filed by the cities of Gloucester and New Bedford and a large cohort of industry interests from Maine to North Carolina.

Read the complete story from The Gloucester Times.

 

 

 

 

 

The Martha’s Vineyard/Dukes County Fishermen’s Association is utterly determined to take on the federal government over the plan to turn over the rich fishing grounds of Horseshoe Shoal to Cape Wind’s proposed wind farm. They don’t lack pluck. What they lack is money.

So tomorrow night they will hold the first of a planned series of events which they hope will raise the necessary $75,000 to pursue legal action to have the wind farm moved, or at least to have its effects on their livelihoods mitigated.

The goal for the first event, to be held at the P.A. Club, is $10,000, said the association’s president, Mr. Doty.

Read the complete story from The Vineyard Gazette Online.

 

 

 

 

 

 

 

A federal plan to ban bottom fishing in a large area off Northeast Florida and Southeast Georgia faces a federal court fight from a national fishing organization. The Recreational Fishing Alliance asked a judge in Jacksonville Tuesday to strike down the 4,800-square-mile closure and other rules finalized last week to protect red snapper from overfishing.

The rules would ban bottom fishing for dozens of species in the closure area to prevent accidental snapper catches, starting June 1.

The fishermen’s group argues the National Oceanic and Atmospheric Administration far overreached its authority in ordering that and other restrictions.

Read the complete story from The Florida Times-Union.

The following is a summary of the motion filed by Mr. Lovgren's attorney on behalf of the additional plaintiffs in the Federal court case against Amendment 16.

The motion follows from an additional filing in the sut originally filed by the Cities of New Bedford and Gloucester and numerous fishing interests.

Summary

Plaintiff Lovgren and the other plaintiffs seek relief from a final rule promulgated by a federal agency.

Constitutional Violations,  Due Process, and Takings without compensation

·Because of database errors a taking for public use exists. Spefically, it is the diminution of fishing harvest for some fishermen; i.e., individuals that are prohibited from harvesting quantities of fish that previously belonged to their vessel, or the transfer of their fishing harvest to the enrichment of other fishermen through the misallocation

·Amendment 16 violates the Regulatory Flexibility Act

·The NMFS Northeast Regional Administrator exceeded statutory authority.

·Amendment 16 violates National Environmental Policy Act

·Amendment 16 violates The Magnuson-Stevens Act

·Magnuson-Stevens says that the Secretary “shall,” but in this case failed to “ensure a fair and balanced apportionment…of the active participants (or their representatives) in the commercial and recreational fisheries.”

·The “rapid implementation of the groundfish catch share program [under Amendment 16] made capturing a full pre-implementation baseline virtually impossible.”

·The NE Multispecies groundfish advisory panel, which was selected by the NEFMC’s executive committee, did not fairly represent the affected fishermen because there was not a single representative from the Mid-Atlantic region.

·Amendment 16 does not minimize bycatch of winter flounder or other species and actually increases the mortality through regulatory discards by the New Jersey and New York fishing communities because they must discard the fish when caught in the Southern New England fishing area.

·The Mid-Atlantic region was not analyzed and even the sectors and catch shares were not considered. Further, Defendants later admitted that the “required information” to evaluate the impacts of catch shares on fishermen was not collected before implementing Amendment 16.

·Because the Mid-Atlantic fishermen were not represented on NE Multispecies advisory panel, Amendment 16 only represents the interest of the New England fishermen, a violation of National Standard 6.

·The NEFMC and the NE Multispecies advisory panel failed to conduct public hearings in the Mid-Atlantic geographical area of the affected fishermen, or to provide an opportunity to be heard in the development of fishery management plans and amendments.

Read the motion.

The following is a summary of the motion filed by the plaintiffs in the Federal court case against Amendment 16 filed by the City of New Bedford et. al. and James Lovgren et. al. Summary
 
A lawsuit has been filed challenging regulations promulgated by the Secretary of Commerce referred to as Amendment 16 and Framework 44 to the Northeast Multispecies Fishery Management Plan (NMFMP).
 
The plaintiffs include the City of New Bedford, City of Gloucester, New Hampshire Commercial Fishermen's Association, Paul Theriault, Chuck Weimer, David Aripotch, F/V Lydia & Maya, Inc., Tempest Fisheries, LTD, Grace Fishing, Inc., Richard Grachek, Roanoke Fish Co., Inc., Atlantic Coast Seafood, Inc., The American Alliance of Fishermen and Their Communities, John & Nicholas, Inc., Bergie’s Seafood, Inc., Nordic, Inc., Lyman Fisheries, Inc., The Hope II, Inc., Reidar’s Manufacturing, Inc., Diamond Dog Fishing Corp., Atlantic Enterprises, LLC, Wanchese Fish Company, Easter Joy, Inc., New Bedford Fish Lumpers Pension Plan, Local 1749, ILA and AFL-CIO, and New Bedford Fish Lumpers Pension Plan.

Plaintiffs seek to set aside so much of the plan as violates the Magnuson Stevens Fishery Conservation Management Act (FCMA) and other applicable statutes and for the Court to order the Secretary to bring the fishery management plan into compliance with statutory requirements.
 

Background
 
In setting Total Allowable Catches and associated Annual Catch Limits for the 2010 fishing year, the NEFMC (New England Fishery Management Council) adopted measures in Framework 44, which set landings limits well below that allowed (usually 75% of the permitted catch level). In the case of some stocks, measures accelerated the rebuilding schedule to achieve rebuilding in less than the statutorily required time, reducing prospective landings not only on those stocks, but also on healthier ones.

Common Pool vessels continue under the old Days at Sea “DAS” and trip limit system, with additional closures, DAS reductions, trip limits, etc. Even as Amendment 16 was being finalized, results of the Groundfish Assessment Review Meeting (GARM) were being finalized, and indicated that reduced TACs might be exceeded by the Common Pool. The NEFMC added measures to Amendment 16 to allow the Agency’s Regional Administrator to make in-season adjustments to the Common Pool. The changes to the common pool measures were so dramatic and created so much uncertainty due to the latitude given the Regional Administrator to adjust common pool measures that NMFS reopened the window of opportunity for vessels to opt into sectors.
 
Plaintiffs have filed this action because Amendment 16 threatens the viability of the fishing industry and fishing communities. By managing to the lowest stock component of the Multispecies fishery, and then further restricting TACs by setting ACLs at 75% of scientifically justified landings, landings are being arbitrarily restricted. In response, fishermen holding 98% of the total quota have entered sectors, leaving the 40% of vessels in the common pool without opportunity.
 

Summary of the Argument

·The Agency is improperly managing the multispecies fishery on a stock by stock basis in violation of the Magnuson Act.

·Amendment 16 improperly allocates fish to various users based on different criteria.

·Amendment 16 rules improperly charge vessels for assumed bycatch while failing to include bycatch in history used to establish quotas.

·The restrictive ACLs established under Amendment 16 violate the FCMA.

·Sectors Are LAPPs and the Agency violated MRA requirements by implementing Amendment 16 Sectors without complying with LAPP provisions.

·Amendment 16 sectors are ITQs and the Agency failed to conduct a Referendum in violation of the FCMA.

·The Agency has failed to assess the economic and social implications of Amendment 16 on the fishing industry and fishing communities.

·Defendants failed to adequately consider alternatives or assess the full environmental impact of Amendment 16 as required by NEPA.

·The Agency acknowledges but does not even attempt to justify the extraordinary costs associated with the Amendment 16 Sector Plan.

Conclusion

The effect of recent regulations has been clear – the fishing fleet is being inalterably devastated by Amendment 16. Many traditional fishermen are being forced out by the new sector allocation scheme. Traditional fishing ports in the Northeast are losing not only their fishing industry and infrastructure, but the very fabric of their identity. The slashing and burning of the fishing industry and gutting of coastal communities to achieve accelerated rebuilding will gut the FCMA of its very basis – sustainable fisheries for the benefit of the Nation and fishing communities. Neither accelerated rebuilding of stocks, nor the Agency’s catch share agenda justify this result, and the apparent disregard for the economic and social consequences of Amendment 16 violates the spirit and intent of the FCMA.

Wherefore, the Plaintiffs pray that this Honorable Court must find that Amendment 16 and Framework 44 violate the Fishery Conservation Management Act, and enter orders accordingly mandating the Defendants bring the Northeast Multispecies Fishery Management Plan into compliance with the Act. The nature of the remedy can only be chosen once the scope of the Agency’s non-compliances has been determined. Plaintiffs further seek award of their fees and costs pursuant to the Equal Access to Justice Act, and such further relief as this Court deems just and proper.

Read the complete motion.