Saving Seafood

Supreme Court to Hear Challenge to NOAA Requirement that Vessels Pay Monitoring Fees

May 1, 2023 — The following was released by Cause of Action Institute:

The Supreme Court announced today it will take up the case of New Jersey fishermen who are challenging the federal government’s attempt to unlawfully force them to pay monitoring fees without congressional approval—a case that gives the Court an opportunity to review and overrule the Chevron deference precedent. Critically, the Court granted only on Question Presented 2, which means it will directly address the future of Chevron.

The justices will review Loper Bright v. Raimondo. The fishermen, represented by former Solicitor General Paul Clement and lawyers from Cause of Action Institute, petitioned the Court in November to overrule a funding scheme that would force them to hand over 20 percent of their pay to third-party at-sea monitors they must bring on their boats—a mandate that Congress never approved by statute.

Amicus briefs in support of the fishermen’s case were filed by 38 organizations and individuals, including one signed by 18 state attorneys general.

“The Supreme Court has an opportunity to correct one of the most consequential judicial errors in a generation. Chevron deference has proven corrosive to the American system of checks and balances and directly contributed to an unaccountable executive branch, overbearing bureaucracy, and runaway regulation,” Cause of Action Institute counsel Ryan Mulvey said.

“These fishing families and all those seemingly living at the mercy of Washington deserve better,” he said. “Cause of Action Institute has always fought on behalf of vulnerable Americans, and we’re hopeful this case will provide the vehicle to end Chevron deference.”

“We are delighted that the Court took this case not only to potentially deliver justice to these fishermen, but also to reconsider a doctrine that has enabled the widespread expansion of unchecked executive authority. We look forward to our day in court,” Clement said.

“We are grateful to the Supreme Court for taking our case. Our way of life is in the hands of these justices, and we hope they will keep our families and our community in mind as they weigh their decision,” said Bill Bright, a New Jersey fisherman and plaintiff in the case.

Cause of Action Institute has compiled background information here, including links to filings, amicus briefs, and a short video featuring interviews with the NJ fishermen.

Supreme Court move could spell doom for power of federal regulators

May 1, 2023 — A legal doctrine long despised by conservatives for giving federal regulators wide-ranging power is making yet another march to the gallows at the Supreme Court.

The high court announced Monday that it is taking up a case squarely aimed at killing off the nearly-four-decade-old precedent that has come to be known as Chevron deference: the principle that courts should defer to reasonable agency interpretations of ambiguous provisions in congressional statutes and judges should refrain from crafting their own reading of the laws.

Overturning the doctrine would have major implications for the Biden administration’s climate agenda. It would complicate the administration’s efforts to tackle major issues such as climate change via regulation, including possibly derailing the Environmental Protection Agency’s push to mitigate carbon emissions from the electricity and transportation sectors — the two highest polluting industries in the United States.

The Chevron doctrine has “been in a coma for a while, so we’ll see whether they want to revive it or take it off life support,” said David Doniger, who in 1984 argued that case before the Supreme Court for the NRDC.

Read the full story at Politico

Feds to monitor 100% of New England commercial fishing to protect at-risk species

April 13, 2022 — The federal government has approved a proposal to increase at-sea monitoring of some commercial fishing trips to 100 percent.

At-sea monitors are workers who collect data on board commercial fishing boats to help inform regulations and management of species. The government approved the new, higher percentage of trip cover on Tuesday, said Michael Pentony, a regional administrator with the National Marine Fisheries Service.

The rules apply to valuable species that are harvested in the Northeast such as cod, haddock, and flounder. Pentony said the new rules will replace the old process of calculating a target for the level of monitoring coverage every year.

The coverage target will instead be 100 percent for four years as long as federal funding can support agency and industry costs, he wrote in a letter to fishery managers.

Read the full story at The Boston Globe

NMFS pushing observer safety as it steps up Northeast coverage

April 8, 2022 — Federal fisheries law enforcement officials say they are intent on ensuring the safety of observers and at-sea monitors in the Northeast, as the National Marine Fisheries Service increases coverage of the groundfish fleet.

In May 2022, a new rule will go into effect that requires a major increase in observer coverage for the groundfish sector vessels in the Northeast. In addition, NMFS will implement new observer requirements for herring and some scallop vessels.

“We take observer and monitor safety seriously and we want vessel owners, captains, and crew to take it seriously, too,” said Jeffrey Ray, the Assistant Director of the Northeast Division for the National Oceanic and Atmospheric Administration’s Office of Law Enforcement, in a statement issued in March. “It is illegal to interfere with or harass federal fisheries observers in any way while they are near or aboard your vessel. No exceptions.”

OLE agents will conduct more operations “focused on observer safety and preventing harassment and interference,” according to the agency.

Read the full story at National Fisherman

NOAA Confirms 2022 At-Sea Monitoring Coverage Levels for Northeast Groundfish Sector

December 16, 2021 — NOAA Fisheries announced that for the 2022 fishing year, the total target at-sea monitoring overall level will be 99% of all groundfish sector trips subject to the at-sea monitoring program.

NOAA said it considered a “variety of factors” when it determined the coverage level for 2022 and wrote a letter to the New England Fishery Management Council (NEFMC) to explain their decision.

In a bulletin, NOAA also said it has the funds to reimburse the industry for its at-sea monitoring costs. Plus, the Atlantic States Marine Fisheries Commission will continue to administer the reimbursement program for Fishing Year 2022 as in prior years.

Read the full story at Seafood News

Atlantic Fishermen in NCLA Video Explain the Need to Reel in NOAA’s at-Sea Monitor Rule

August 2, 2021 — The following was released by the New Civil Liberties Alliance:

The New Civil Liberties Alliance released a video today outlining why it is unconstitutional to force Atlantic herring fishermen to fund government-mandated monitors at sea. It is “the equivalent of having a cop in your car who’s policing you while you drive, and you have to pay his salary out of your own pocket,” said Meghan Lapp, Fisheries Liaison & General Manager for Seafreeze, Ltd. about the rule being challenged in Relentless Inc., et al. v. U.S. Dept. of Commerce, et al.

The Relentless Inc., Huntress Inc., and Seafreeze Fleet LLC are small businesses of high-capacity freezer trawlers incorporated in Rhode Island and Massachusetts that have commercially fished Atlantic herring as well as Loligo and Illex squids, butterfish, and Atlantic Mackerel for more than thirty years. The rule penalizes NCLA’s clients unfairly by making them pay for herring monitors even when fishing for other catches.

NCLA, a nonpartisan, nonprofit civil rights group, represents these private fishing companies in their lawsuit against the Department of Commerce (DOC), the National Oceanic and Atmospheric Administration (NOAA), the National Marine Fisheries Service (NMFS), and the New England Fishery Management Council (NEFMC). The at-sea monitor mandate, issued in 2018, is unlawfully “industry-funded.” These agencies do not have statutory authority from Congress to order additional industry funding for a program that the agencies think is underfunded, but they have issued a rule that threatens the livelihoods of fishermen regardless.

Earlier this week, NCLA presented oral argument before the U.S. District Court for the District of Rhode Island. Both sides have moved for summary judgment.

Read the full release here

Fishermen lose challenge to rule requiring at-sea monitors

June 16, 2021 — A federal judge in Washington D.C. on Tuesday denied the bid of New Jersey-based herring fishermen who sued the National Marine Fisheries Service (NMFS) last year to block a new regulation that will require them to pay for third-party “at-sea monitors” who will survey by-catch.

U.S. District Judge Emmet Sullivan ruled that the agency had not acted in violation of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) when it approved in February 2020 the rule that the plaintiffs said could “destroy their iconic way of life” by cutting by 20% their profits from commercially fishing herring along the U.S. Atlantic coast.

About half-a-dozen small fishing vessel operators, including the Loper Bright Enterprise, brought the lawsuit last year.

Ryan Mulvey, an attorney for the plaintiffs with the Cause of Action Institute, an advocacy group favoring limited government, said he was disappointed with the decision. “The federal government has overextended its regulatory power far beyond what Congress authorized,” he said.

Read the full story at Reuters

ASMFC Seeks Proposals to Conduct Components of the At-Sea Monitoring Training Program

April 19, 2021 — The following was released by the Atlantic States Marine Fisheries Commission:

The Atlantic States Marine Fisheries Commission, in cooperation with the National Marine Fisheries Service’s (NMFS) Northeast Fisheries Science Center (NEFSC), is issuing a Request for Proposal (RFP) to conduct components of the At-Sea Monitoring (ASM) Training Program for the NEFSC.

NMFS is required to collect biological and compliance data aboard U.S. domestic fishing vessels, data which cannot be obtained at the dock or on research vessels. Specifically, NMFS observer data is essential to reliably estimating catch and bycatch, and in helping to implement programs to reduce bycatch. A sharp increase to the coverage rate (up to 100%) for the Northeast Multispecies Fishery in Fishing Year 2022 and observer attrition during the 2020 fishing year have resulted in the need for approximately 140 new at-sea monitors.

The Awardee shall provide and retain the necessary qualified personnel, materials, equipment, services, and facilities to conduct components of the ASM training for NEFSC. The Awardee shall conduct approximately 4-6 trainings per year. The training will be conducted as a collaborative effort between NMFS and the Awardee; where some components of the training will be conducted by the Awardee and some training components will be conducted by NMFS.

Applicants seeking to apply to the RFP must submit, as a single file, an electronic proposal by email no later than 5:00 p.m. EST on May 19, 2021. Please see the RFP for complete proposal details, qualifying requirements, and submission instructions. The RFP is available at http://www.asmfc.org/files/RFPs/AtSeaMonitorTrainingRFP_April2021.pdf.

For more information, please contact Deke Tompkins at dtompkins@asmfc.org or 313.303.2623.

NOAA to reimburse monitoring costs

April 13, 2021 — NOAA Fisheries has set its electronic monitoring reimbursement policy for Northeast groundfish sector vessels in the 2021 fishing season and is urging fishermen to purchase and install the systems now while federal funds are available.

“For fishing year 2021, groundfish sector vessels may use either electronic monitoring or human at-sea monitors to meet the monitoring requirements, provided the sector has a corresponding monitoring program as part of its approved operations plan,” the agency stated. “Vessels that choose to use electronic monitoring will be eligible for reimbursement, while government funding is available.”

The agency said sector vessels employing electronic monitoring should submit receipts for reimbursable costs to the Atlantic States Marine Fisheries Commission, using the same process they use for human at-sea monitoring reimbursements.

It said costs eligible for reimbursement largely fall within six areas: equipment, technical support, video review, operational costs, training and COVID-19 protocols.

The equipment category covers the purchase and installation of equipment necessary “to outfit a vessel with one fully functioning electronic monitoring system.”

Read the full story at the Gloucester Daily Times

Lawmakers Oppose 100% At-Sea Monitoring Plan for Fishing Boats

September 4, 2020 — In a new letter to regulators, a group of Massachusetts lawmakers say a proposal to require at-sea monitors on every commercial groundfishing boat for every trip could put independent fleets and vessel owners out of business.

“We should be supporting this industry. Not drowning it in burdensome increased costs and regulations. I stand with our local fishermen, and urge the Council to reject this ill-advised proposal,” said Senator Mark Montigny today.

The New England Fisheries Management Council is considering Amendment 23 to the Northeast Multispecies Fishery Management Plan. It would require groundfishing vessels to implement 100-percent at-sea monitoring or a blend of at-sea and electronic monitoring. The goal is to improve catch accountability, but fishermen argue the proposal would be too costly without accomplishing the stated goal.

Since the commercial groundfishery was declared a federal disaster in 2012, revenues have declined, the letter states. Businesses do not have the revenues to absorb the added costs. Piling more costs on the industry at this time will favor larger vessels and those with larger catch allocations, forcing smaller vessel owners out of business, the lawmakers argue.

Read the full story at WBSM