Saving Seafood

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

Fishermen file lawsuit against herring at-sea monitoring rule

June 9, 2020 — The Cause of Action Institute has filed a motion for summary judgement on behalf of New Jersey, U.S.A., fisherman against a new set of regulations called the “Omnibus Amendment,” which requires some boats in the Atlantic herring fishery carry at-sea monitors at their own cost.

The new rule was designed by the New England Fishery Management Council (NEFMC), and was recently finalized by NOAA and the Department of Commerce. The New Jersey fishermen, according to a release from the Cause of Action Institute, object to the at-sea monitor requirements, as it is expected to cost fishermen “upwards of USD 700 [EUR 619] a day.”

Read the full story at Seafood Source

Cape May Fishermen, Processor Sues NOAA’s At-Sea Monitoring Rule

February 21, 2020 — Cause of Action Institute, on behalf of six trawlers and a processor based in Cape May, NJ, filed a lawsuit yesterday against Secretary of Commerce Wilbur Ross and NOAA Fisheries to block a new rule forcing them to pay for third-party “at-sea monitors.”

The plaintiffs claim that NOAA Fisheries and the Department of Commerce violated the National Environmental Policy Act (NEPA) and the Regulatory Flexibility Act (RFA) when designing and implementing the final rule.

Read the full story at Seafood News

Family Fishermen Challenge Illegal, Industry-Killing At-Sea Monitoring Rule

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.

US advocacy group takes aim at vessel monitor funding rules

April 3, 2019 — BOSTON — While most of the thousands of attendees to the Boston seafood show were there to buy and sell fish or otherwise drum up business for their companies, Ryan Mulvey was on a “fact-finding mission” of sorts.

Mulvey, an attorney, along with a team of others from the Cause of Action Institute, a Washington, D.C.-based advocacy group, spent the show speaking to fishermen about what it refers to as “overregulation” in the fishing industry. This can include issues such as requirements that fishermen bear the cost of having observers on board, the development of offshore wind farms curtailing fishing areas, cuts to quota and problems with the “reliability” of federally conducted stock assessments, he told Undercurrent News.

“We want to hear stories and we had a huge number of fishermen come up to us and tell us ‘Oh, we’re struggling so much. Every year we’re allowed to catch fewer and fewer fish and we’re making less and less money and new and heavier regulatory costs get imposed on us’,” Mulvey said.

The institute advocates for what he called “reasonable regulation that still preserves economic freedom” and has been active in litigating on behalf of fishermen suing the federal government in cases of “government overreach”, Mulvey said. It does this through legal action as well as by launching investigations through the aggressive use of public records laws like the Freedom of Information Act.

Read the full story at Undercurrent News

 

Deadline for feds’ response to fishing monitor petition passes

August 15, 2017 —  A fishermen’s group says it’s still waiting to hear if the federal government responded to a petition it filed with the U.S. Supreme Court about the cost of mandated fishing monitors.

The government shifted the cost of paying for monitors from the National Oceanic and Atmospheric Administration to fishermen last year, prompting a legal battle.

The deadline for the government to respond was Monday, Aug. 14. It had not done so last week, and is not required to, said Zachary Kurz, a spokesman for the Cause of Action Institutes attorneys, who are representing the fishermen. He added that the Supreme Court doesn’t use e-file, so if the government did respond Monday, it would have been filed by hand and Cause of Action may not know if there was a response until it is served with the pleading via mail.

Attorneys with the Washington, D.C.-based Cause of Action Institute, representing fisherman David Goethel of Hampton, New Hampshire, and Northeast Fishing Sector 13, filed the petition last month with the nation’s highest court. They asked that it take up the case and recognize the need to hear the New England groundfishermen’s case based on its merits.

Read the full story at the Gloucester Times

 

NH fisherman takes $700-a-day mandate to have federal agent aboard to Supreme Court

July 31, 2017 — HAMPTON, N.H. — A commercial fisherman who is suing the National Oceanic and Atmospheric Administration over its at-sea monitoring program is hopeful the U.S. Supreme Court will hear his case on its merits.

David Goethel, of Hampton, who filed his original suit against the federal government in 2015, has been joined in his efforts by the Northeast Fisheries Sector 13. They represent fishermen from Massachusetts to North Carolina.

Cause of Action Institute, a nonprofit oversight group advocating for economic freedom and individual opportunity in Washington, D.C., is funding the lawsuit. Goethel said their support is evening the playing field for small commercial fishermen who are being forced to pay about $700 per day for at-sea monitors under current regulations.

“We simply just don’t have the money to play in these arenas,” Goethel said Friday.

Lawyers submitted their petition to the Supreme Court earlier this month. It calls for the court to reverse rulings about a 30-day statute of limitations for challenges, but at its heart, Goethel is asking for the case to be heard on its merits.

Goethel said he believes it is illegal for NOAA to require commercial fishermen to pay for at-sea monitors, when NOAA mandates them. NOAA has paid for the monitors on and off in the past, when they can find the money, Goethel said.

Read the full story at the New Hampshire Union Leader

NOAA Officials May Be Deleting Their G-Chats

July 6, 2017 — The National Oceanic and Atmospheric Administration (NOAA) might illegally be destroying records of a recent meeting discussing new regulations against the fishing industry, according to a conservative legal group in Washington, D.C.

Cause of Action Institute (CoA) filed a lawsuit Wednesday against the NOAA to obtain communications during a New England Fishery Management Council meeting hashing out new rules foisted upon the country’s fishing industry. The group believes the agency is deleting Skype and Google Chat conversations that took place during the April meeting.

The NOAA General Counsel considers communications through Google Chat to be off the record and will not be recorded anyway, according to a 2012 handbook guide CoA obtained. CoA disputed the agency’s claim, and pointed to provisions within the National Archives and Records Administration (NARA).

The NARA, which maintains government records, states that any communications created on NOAA’s Gmail interface qualify under the Federal Records Act. CoA Institute requested e-mails, instant messaging, Google chat messages, text messages, and any Skype messages NOAA employees sent during the April 18–20, 2017 NEFMC meetings.

Read the full story at The Daily Caller

Fisherman, lawyers mull new monitoring suit

May 19,  2017 — They lost in U.S. District Court in New Hampshire last summer and failed to have that decision overturned in federal appeals court in Boston this spring.

Still, New Hampshire groundfisherman David Goethel and his legal team may not be done in their legal challenge of the federal government’s ability to shift the costs of at-sea monitoring to groundfishermen.

“We’re still assessing all of our legal options at this point,” said Julie Smith, one of the lawyers from Washington D.C.-based Cause of Action Institute that has represented Goethel and Northeast Fishing Sector 13 in the initial federal lawsuit and appeal.

Smith declined to be more specific, but clearly the options are limited:

Goethel and his lawyers could swing for the fences and petition the U.S. Supreme Court to hear their case, hoping it would overturn the April decision by the U.S. Court of Appeals upholding the judgment in the original lawsuit filed in U.S. District Court in Concord, New Hampshire.

Petitioning the highest court in the land with a writ of certiorari — which would compel the lower court to deliver its record for review — is not exactly a high-percentage play.

The Supreme Court, according to the website of the federal court system, accepts only 100 to 150 of the more than 7,000 cases it is asked to review each year.

Read the full story at The Gloucester Times 

Information Demanded on U.S. Fishery Council

November 3, 2016 — WASHINGTON — A nonprofit backed by Koch brothers money sued the National Oceanic and Atmospheric Administration on Tuesday for information on how it selects members of the New England Fishery Management Council, which regulates fishing off the coasts of five states.

“There is danger for politicization in how members are actually chosen,” the Cause of Action Institute says in its federal complaint against the NOAA, a branch of the Department of Commerce.

The Cause of Action Institute describes itself in the lawsuit as “a nonprofit strategic oversight group committed to ensuring that government decision-making is open, honest, and fair.” It generally opposes government regulation, particularly in the energy industry.

The Los Angeles Times described it last year as “a small group of lawyers funded by the Koch network.” Its then-director Daniel Epstein formerly worked as an attorney for the Charles Koch Foundation, and by 2013 most of Cause of Action’s funding came from the Donors Trust, “a nonprofit group through which the Kochs and their allies distribute tens of millions of dollars without needing to disclose the source of the funds,” the Times reported in its Feb. 7, 2015 article.

In its July 13 FOIA request, Cause of Action sought information on how the Secretary of Commerce and NOAA select members in the New England Fishery Management Council, which regulates fishing off the coasts of Maine, New Hampshire, Massachusetts, Rhode Island and Connecticut.

“The records at issue in this case, which include records of communication between high-ranking agency officials, will permit the public to understand how the most recent round of membership selection for the NEFMC was handled, and whether that process was at all tinged by political considerations or other untoward government action,” the complaint states.

Cause of Action claims that NOAA has never disclosed information about how it selects members of the eight regional regulatory councils operating under the Magnuson-Stevens Fishery Conservation and Management Act, and that the membership might not accurately represent the fishing industry.

The complaint cites environmental studies professor Thomas A. Okey of the University of Victoria in British Columbia, who suggested in a 2003 paper that representation in the industry is “generally skewed towards the larger corporate interests that support larger sized vessels, whereas the small-scale vessel fleets that are the traditional core of coastal communities (and more likely to have conservation interests) are often less represented.”

Cause of Action says the secretary of commerce and National Marine Fisheries Service-supervised councils wield “significant independent power.”

“They propose Fishery Management Plans, amendments, and framework adjustments; they conduct hearings; and they determine annual catch limits. The FMCs even have the ability to constrain the Secretary of Commerce,” the complaint states, abbreviating Fishery Management Council.

Read the full story at Courthouse News Service