Saving Seafood

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 

Judge shoots down New England fishermen’s at-sea monitoring cost challenge

April 20, 2017 — A US federal appeals court judge has ruled against New England groundfish fishermen’s third legal attempt to do away with a law requiring them to bear the cost of at-sea monitors.

New Hampshire groundfish fisherman David Goethel as well as the non-profit XIII Northeast Fisheries Sector believe the law violates existing federal law.

Although Joseph Laplante, chief US district court judge, recommended further consideration of the fishermen’s plea — their second appeal attempt — he ultimately ruled the initial law suit was not filed in time to be legal.

Laplante ruled, on April 14, against fishermen “because we find that Goethel’s suit was not filed within the [Magnuson Stevens Act’s] thirty-day statute of limitations…” This upholds the reasoning of the previous appeal decision, also against the fishermen, dated July 29, 2016.

Goethel had argued that the 30-day salute of limitations embodied in the MSA does not apply to pre-enforcement review, whereas Laplante said it does, and that Goethel cited no authority permitting a waiver of that rule.

Read the full story at Undercurrent News

UPDATE: Court rules in government’s favor in New England fishing monitor dispute

April 17, 2017 — An appeals court has found in favor of the federal government in a challenge by a New England fishermen’s group over the cost of at-sea monitoring.

The monitors are workers who collect data that help the government craft fishing regulations. The government shifted the cost of paying for monitors to fishermen last year.

A group led by New Hampshire fisherman David Goethel sued the government over the rule change. The fishermen lost in federal district court and appealed. A 1st U.S. Circuit Court of Appeals panel in Boston agreed with the lower court Friday.

Monitors can cost hundreds of dollars per day. Fishermen argue it represents an illegal new cost burden they can’t shoulder in an era of tight quotas.

Read the full story from the Associated Press at NH1

Lawsuit over fishing monitors to reach Court of Appeals soon

February 11, 2017 — A New England fishermen’s group suing the federal government over the cost of at-sea monitoring is scheduled to present oral arguments before the federal Court of Appeals in March.

The monitors are workers who collect data that help the government craft fishing regulations. The government shifted the cost of paying for monitors to fishermen last year.

A group led by New Hampshire fisherman David Goethel sued the government over the rule change. The fishermen lost in federal district court and appealed. Attorneys say the arguments are set to take place March 7.

Read the full story from the Associated Press at the Gloucester Times

East Coast fishermen file appeal over cost of government-required ‘at-sea monitors’

December 12th, 2016 — David Goethel built his life off the profits of cod, trolling the waters of New England for 30 years netting the region’s once-abundant signature fish.

“My slice of the American Dream was paid for from fishing,” Goethel said from behind the wheel of his 44-foot fishing trawler on a windy Friday afternoon in December. “Cape Cod house, two cars, four college educations – it all came out of the fish hole in this boat.”

But a controversial federal mandate is threatening to put him out of business, he claims.

The National Oceanic and Atmospheric Administration, NOAA, requires groundfishermen — those who catch cod, haddock and other common bottom-dwelling species — to carry on board “at-sea monitors.” The observers, hired by three for-profit companies, are third-party workers whose task it is to observe fishermen’s compliance with federal regulations and ensure annual quotas are not exceeded.

The dispute lies in the cost of the monitors and who should pay for them: Fishermen are billed on average $700 a day when a regulator is present.

NOAA, meanwhile, says monitors were placed on fishing boats like Goethel’s only 14 percent of the time in 2016 — and claims the fishing industry supported this system of regulation in 2010 when a vote went before the New England Fishery Management Council, an advisory board to NOAA that sets the rules.

Read the full story at Fox News 

Fisherman appeals case over monitoring costs

September 23, 2016 — New Hampshire fisherman David Goethel is looking to the federal appeals court to overturn a federal judge’s ruling that allows NOAA Fisheries to impose the cost of at-sea monitoring on Northeast groundfish permit holders.

Goethel, represented by lawyers from the Cause of Action watchdog group, has filed an appeal with the First Circuit Court of Appeals in Boston, hoping to reverse U.S. District Court Judge Joseph Laplante’s July 29 ruling in Goethel’s lawsuit that granted summary judgment to the federal government.

“NOAA lacks the authority to require industry funding for at-sea monitors. Its decision to do so violates federal statutes and the Constitution,” said Alfred Lechner Jr., president and chief executive officer of Cause of Action as well as a former federal judge. “Our clients had a legal right to their day in court at the time they filed suit. The decision holding otherwise is an error. An appeal from the decision of the district court has been filed.”

The original lawsuit, filed by Goethel and the South Dartmouth-based Northeast Fishing Sector 13 last December in U.S. District Court in Concord, New Hampshire, claimed the federal government violated fishermen’s constitutional rights by mandating they pay for the at-sea monitoring coverage designed to make sure fishermen are adhering to the intricacies of the federal fishery management regulations.

Read the full story at the Newbury Port Daily News

Court Rules Against Local Fishermen, Upholds Job-Killing Government Mandate

August 2, 2016 — The following was released by Cause of Action:

WASHINGTON, D.C. – Today, the United States District Court for the District of New Hampshire dismissed the lawsuit filed by Plaintiffs David Goethel and Northeast Fishery Sector 13 against the U.S. Department of Commerce.

In December 2015, the Department of Commerce ordered that fishermen who fish for cod, flounder and certain other fish in the Northeast United States not only must carry National Oceanic and Atmospheric Administration (“NOAA”) enforcement contractors known as “at-sea monitors” on their vessels during fishing trips, but must pay out-of-pocket for the cost of those monitors.  This “industry funding” requirement would devastate the Northeast fishing industry, at the price of many jobs and livelihoods.  The District Court’s order allows that requirement to remain in place.

The Court found that the fishermen’s suit was untimely and that the requirement that monitors be funded by the fishermen was authorized by law.

“I am very disappointed by this decision,” said Goethel.  “I’ve made a living fishing in New England for more than 30 years, but I can’t afford to fish if I have to pay for at-sea monitors.  I’m grateful to Cause of Action Institute for joining the fight, and I hope that the rule of law will win in the end.”

“The fishermen in my sector can’t sustain this industry funding requirement,” said Northeast Fishery Sector 13 Manager John Haran. “They’ll have to try other fisheries, if they can keep fishing at all.”

“While we respect the District Court and its decision, it appears that decision is contrary to the law and facts,” said Alfred J. Lechner, Jr., President and CEO of Cause of Action Institute and a former federal judge.  “In the end, the federal government is overextending its regulatory power and is destroying an industry. We intend to study the decision and consider further action.”

Read the full release at Cause of Action

Judge rules for government in monitoring suit

August 1, 2016 — A federal judge presiding over the lawsuit filed by New Hampshire fisherman David Goethel challenging the legality of NOAA Fisheries forcing groundfishermen to pay for at-sea monitoring has ruled in favor of the federal government.

U.S. District Court Judge Joseph N. Laplante issued his 31-page ruling Friday in Concord, N.H., granting summary judgment to the defendants in the lawsuit that was filed last December naming Commerce Secretary Penny Pritzker — whose department oversees the National Oceanic and Atmospheric Administration — as lead defendant.

“Ultimately, the voluminous administrative record demonstrates that (Amendment 16) — including the industry funding requirement — was the end product of a lengthy period of deliberation and public comment,” Laplante wrote in his conclusion.

Laplante went on to say that the mandated industry funding of at-sea monitoring is authorized by the Magnuson-Stevens Act that governs commercial fishing in U.S. waters and does not violate a variety of federal acts as claimed by the plaintiffs.

Read the full story at the Gloucester Daily Times

East Coast fishermen spar with federal government over cost of at-sea monitors

July 14, 2016 — Every year, the federal government spends millions monitoring New England commercial fishermen to ensure they ply their timeless maritime trade in accordance with the law.

Now, a judge is set to rule on who should foot the bill for the on-board monitors: the government or the fishing boat owners. The East Coast fishermen say sticking them with the bill would be the “death knell” for their  industry and is illegal on the part of the federal government.

Fishermen of important New England food species such as cod and haddock will have to start paying the cost of at-sea monitors soon under new rules. Monitors — third-party workers hired to observe fishermen’s compliance with federal regulations — collect data to help determine future fishing quotas and can cost about $18,000 a year, or $710 per voyage.

The Cause of Action Institute, a legal watchdog representing a group of East Coast fishermen, sued the federal government in December in U.S. District Court in Concord, N.H., seeking to block the transfer of payments from the National Oceanic and Atmospheric Administration to the fishermen.

“It is unlawful for NOAA to force struggling fishermen to pay for their own at-sea monitors,” said former federal judge Alfred Lechner, the institute’s president and CEO. “The significant costs of these regulations should be the responsibility of the government.”

The lawsuit was filed against the Department of Commerce on behalf of David Goethel, owner and operator of F/V Ellen Diane, a 44-foot trawler based in Hampton, N.H., and Northeast Fishery Sector 13, a nonprofit representing fishermen from Massachusetts to North Carolina.

It called the transfer of payments the “death knell for much of what remains of a once-thriving ground fish industry that has been decimated by burdensome federal overreach.”

“Fishing is my passion and it’s how I’ve made a living, but right now, I’m extremely fearful that I won’t be able to do what I love and provide for my family if I’m forced to pay out of pocket for at-sea monitors,” Goethel said when the suit was filed last December.

Read the full story at Fox News

Fading Fishermen: A Historic Industry Faces A Warming World

June 27, 2016 — SEABROOK, N.H. — The cod isn’t just a fish to David Goethel. It’s his identity, his ticket to middle-class life, his link to a historic industry.

“I paid for my education, my wife’s education, my house, my kids’ education; my slice of America was paid for on cod,” said Goethel, a 30-year veteran of the Atlantic waters that once teemed with New England’s signature fish.

But on a chilly, windy Saturday in April, after 12 hours out in the Gulf of Maine, he has caught exactly two cod, and he feels far removed from the 1990s, when he could catch 2,000 pounds in a day.

His boat, the Ellen Diane, a 44-foot fishing trawler named for his wife, is the only vessel pulling into the Yankee Fishermen’s Cooperative in Seabrook. Fifteen years ago, there might have been a half-dozen. He is carrying crates of silver hake, skates and flounder — all worth less than cod.

One of America’s oldest commercial industries, fishing along the coast of the Northeast still employs hundreds. But every month that goes by, those numbers fall. After centuries of weathering overfishing, pollution, foreign competition and increasing government regulation, the latest challenge is the one that’s doing them in: climate change.

Though no waters are immune to the ravages of climate change, the Gulf of Maine, a dent in the coastline from Cape Cod to Nova Scotia, best illustrates the problem. The gulf, where fishermen have for centuries sought lobster, cod and other species that thrived in its cold waters, is now warming faster than 99 percent of the world’s oceans, scientists have said.

Read the full story at the Associated Press