Saving Seafood

Biden named in North Atlantic commercial fishing ban lawsuit filed by fishermen

April 14, 2022 — Fishermen in Massachusetts and New Jersey are challenging a Biden administration proclamation in court.

The fishermen have filed a lawsuit, Fehily et al. v. Biden et al., in U.S. District Court for the District of New Jersey alleging the proclamation that bans commercial fishing in the North Atlantic Ocean, primarily the Georges Bank area, saying it harms their ability to earn a living.

“The creation of the Northeast Canyons and Seamounts Marine National Monument violated the core requirements of the Antiquities Act to limit protections to specific monuments,” Pacific Legal Foundation attorney Frank Garrison said in a news release. “Most fundamentally, the Act gives the president authority to create monuments on federally owned or controlled land. The ocean is not land. Presidential action that goes beyond laws passed by Congress undermines the democratic process and the Constitution’s separation of powers.”

Read the full story at The Center Square

Texas Public Policy Foundation brings fishermen’s lawsuit against Vineyard Wind

December 22, 2021 — The federal Bureau of Ocean Energy Management has so prioritized offshore wind energy development that it is bypassing real environmental review and failing to consider alternative sites that won’t harm the commercial fishing industry, charges a lawsuit brought by the Texas Public Policy Foundation.

Filed Dec. 15 in federal court in Washington, D.C., on behalf of six fishing businesses in Rhode Island, Massachusetts and New York, the action challenges BOEM and other federal agencies on their review of the 800-megawatt Vineyard Wind project off southern New England.

The lead plaintiff, Seafreeze Shoreside Inc. of North Kingston, R.I., is a homeport and major processor for the Northeast squid fleet. Captains there are adamant they will not be able to fish if Vineyard Wind and other planned turbine arrays are erected in those waters.

Meghan Lapp, fisheries liaison at Seafreeze and a vocal advocate for its fishermen, said she had heard mention of the Texas Public Policy Foundation in conversation, “kind of along the lines of Pacific Legal Foundation which litigated for the fishing industry on the Northeast marine monument” fishing restrictions recently reinstated by the Biden administration.

Read the full story at National Fisherman

SEAN HORGAN: Chief Justice Roberts Takes Aim At Antiquities Act

March 30, 2021 — It sounds as if Supreme Court Justice John Roberts thinks the practice of presidents abusing the Antiquities Act, to accomplish what they never could in the usual three-corner offense of American democracy, has gotten old.

Last week, the Supreme Court rejected a petition, with the Massachusetts Lobstermen’s Association as lead plaintiff, that challenged then President Barack Obama’s legal use of the 1906 Antiquities Act to designate the Northeast Canyons and Seamounts Marine National Monument off the coast of Massachusetts.

Viewed through the narrowest of prisms, the Supreme Court no-call was a victory for marine conservationists and another blow to the commercial fishing industry. But viewed with a wider lens, it could also serve as the starting gun for even more challenges to the presidential use of the Antiquities Act to designate monuments and landmarks when all other political measures fail.

The chief justice, according to a Bloomberg Law story, questioned how much scope presidents actually should have under the law “that was intended to protect prehistoric Indigenous artifacts and the smallest area compatible with protection.

“Somewhere along the line, however, this restriction has ceased to pose any meaningful restraint,” Roberts wrote. “A statute permitting the president in his sole discretion to designate monuments ‘landmarks,’ ‘structures,’ and ‘objects’ — along with the smallest area of land compatible with their management — has been transformed into a power without any discernible limit to set aside vast and amorphous expanses of terrain above and below the sea.”

Court watchers and the legal community were agog. This, they said, almost never happens. Color us agog, too.

“Fishing groups opposed to the Northeast canyons monument are disappointed the court refused to hear the case,” the Bloomberg Law story stated, adding though that Roberts’ statement was being viewed by the industry (well, its lawyers) as a silver lining.

“It’s a big deal for the chief to file a statement like that,” Jonathan Wood, senior attorney at the Pacific Legal Foundation, who represented the fishing interests. “I read it basically inviting similar cases. It’s trying to send a signal to the Supreme Court bar of, ‘This is an issue I’m interested in. Start bringing me the cases’.”

We here at FishOn have never been to the Supreme Court bar, but we too would like them to start bringing us some cases. Start with the Jameson and we’ll work our way around the dial.

Read the full opinion piece at the Gloucester Daily Times

US Chief Justice’s remarks set up likely showdown with Biden over fishing bans

March 25, 2021 — Did US Supreme Court justice John Roberts throw down the gauntlet for president Joe Biden and invite another lawsuit by the commercial fishing industry earlier this week when he expressed his disdain for past use of the Antiquities Act to block off certain parts of the ocean?

That’s what it looks like to seafood attorney Andrew Minkiewicz, a partner at the firm Kelly Drye, in Washington, D.C.

“This doesn’t happen every day or even in a lifetime,” Minkiewicz said of the apparent opportunity for the industry. “The chief justice really outlined his skepticism of the way presidents are using the power that is, or is not, granted to them in the Antiquities Act. And he raises questions a lot of us have had, like, ‘How did we go from trying to protect ancient dwellings from people robbing their artifacts to now 580,000 square miles of ocean being locked up with the stroke of a pen?”

In his four-page explanation, issued Monday, March 22, for why the high court rejected the petition for certiorari led by the Massachusetts Lobstermen’s Association (MLA) and four other fishing groups as part of an effort to allow commercial fishing on nearly 5,000 square miles in the Atlantic Ocean, Roberts practically drew a bull’s eye around the right case to be made next time, Minkiewicz and others believe.

The Pacific Legal Foundation, a libertarian public interest law firm, had argued on behalf of MLA and the other fishing groups that president Barack Obama overstepped his bounds in Sept. 2016 when he used the 1906 antiquities law and proclamation 9496, an executive order, to create the Northeast Canyons and Seamounts Marine National Monument. Roberts said the request didn’t meet the standards necessary to warrant a Supreme Court review, but his explanation indicated he strongly agreed with the sentiment.

Read the full story at Undercurrent News

GLENN ROPER: Blue-collar fishermen deserve to make a living

December 1, 2020 — Austen Brown started fishing commercially with his father off California’s coast when he was only 8 years old. By the time he was 13, Austen was making his own living as a fisherman, and he has spent the past few decades fishing for everything from codfish to shark. But perhaps his favorite target is the elusive swordfish. A popular choice among seafood diners, swordfish are most effectively caught using large drift gillnets that hang in the deep ocean.

The swordfish is also a favorite catch for Chris Williams, who has spent more than 40 years plying his commercial fishing trade off the California coast, including targeting swordfish with drift gillnets. Chris and his wife Dania usually sell his catch at Fresh Fish Fanatics, their family-owned business in Oxnard. The Williamses hope to one day leave the business to their three children, who have already begun helping to run it.

These stories are typical. Commercial fishing is often a family affair, with multiple generations working together to support a small business. And for those who love the freedom of the outdoors and the thrill of the hunt, fishing can provide a satisfying career. But recent California legislation threatens to eliminate the drift gillnet industry entirely.

In 2018, California approved a law designed to ban the use of drift gillnets by the year 2024. The law was championed by environmentalists who claim that drift gillnets pose a special risk to threatened sea creatures like whales and sea turtles. But they are mistaken. Existing federal and state regulations like seasonal closures and the required use of acoustic pingers on drift gillnets have already reduced accidental catch of protected species to almost nothing. But for some environmental hard-liners in Sacramento, a symbolic political victory is more important than facts on the ground (or in this case, in the water).

Read the full opinion piece at the Pacific Legal Foundation

JONATHAN WOOD: Land ahoy! Fishermen challenge presidential designations of ocean monuments

Jule 2, 2018 — This month, the Antiquities Act turned 112 years old. Originally conceived to protect Native American artifacts in the Southwest, the law has, like so many federal laws, been twisted over time by power-hungry government officials.

Controversy over the law’s abuse is coming to a head in New England, where fishermen are locked out of a large section of their fishery by the creation of the Northeast Canyons and Seamounts Marine National Monument. After spending years working to recover fish stocks and promote more sustainable fishing methods, they rightly see this move as a betrayal that threatens their livelihoods.

Why is a 112-year-old law so controversial today? The answer lies in the aggressive reinterpretation of the law by presidents seeking to expand their power.

Consider that in the law’s first century, Presidents Teddy Roosevelt through Bill Clinton collectively designated 70 million acres of national monuments. That’s a lot, to be sure, but it pales in comparison to the last 12 years. From 2006 to 2017, an additional 700 million acres were designated — a ten-fold increase over the prior century’s total.

What explains this explosion? It’s the interpretation of a single word: “land.” Congress limited the president’s monument power to “land owned or controlled by the Federal Government.” Most of us would have no trouble figuring out what “land” means: If you look at a map, it’s the part that isn’t blue.

Read the full opinion piece at the Washington Examiner

Lawsuit against national marine monument moving forward

March 29, 2018 — A lawsuit against a national marine monument, started nearly a year ago, is moving forward once more after a U.S. District Court Judge lifted a stay placed on the case.

The Northeast Canyons and Seamounts National Marine Monument, established via executive order using the Antiquities Act by President Barack Obama, set aside 4,913 square miles (12,724 square kilometers) of ocean 130 miles (209 kilometers) off the coast of New England. Soon after the monument was established, several fishing groups sued the federal government arguing that the move exceeded the President’s authority.

The motivation behind the lawsuit stems from the monument’s blanket ban on all commercial fishing. While a grandfather period of seven years was given to the lobster and deep-sea red crab fisheries, all other fishing operations have been banned from the area.

Now, thanks to U.S. District Court Judge James E. Boasberg’s lift of a stay granted on 12 May 2017, the lawsuit will begin to move forward once more. The lawsuit argues that Obama did not have the authority to establish the monument based on the Antiquities Act, given that the ocean is not “land owned or controlled by the federal government.”

Secretary of the Department of the Interior Ryan Zinke recommended, in a review released in December 2017, that the proclamation of the monument be amended to allow the local fishery management council to make decisions as authorized by the Magnuson-Stevens Act.

“There is no explanation in the proclamation as to why the objects are threatened by well-regulated commercial fishing,” wrote Zinke in his recommendations. “The proclamation should be amended, through the use of appropriate authority.”

Since that recommendation, however, the Trump administration has failed to act.

“Fishermen have waited a year for the government to respond to their lawsuit challenging a clear case of Antiquities Act abuse – locking fishermen out of an area of ocean as large as Connecticut,” said Jonathan Wood, an attorney with the Pacific Legal Foundation who is representing the plaintiffs. “The court’s decision to lift the stay will now require President Trump to decide whether to act on the secretary’s recommendation or defend President Obama’s unlawful monument decision in court.”

So far, said Wood, they haven’t heard whether or not the administration plans to defend the monument in court.

Read the full story at Seafood Source

 

April Showdown Looming for Battle Over Atlantic Ocean Monument

March 28, 2018 — WASHINGTON — Fisherman and lobstermen reeled in a temporary victory after a federal court agreed to lift a 10-month stay on a lawsuit that seeks to reverse Obama-era protections for the first national marine monument in the Atlantic Ocean.

In September 2016, former President Barack Obama used powers under the Antiquities Act to designate the Northeast Canyons and Seamounts National Monument.

The 5,000-square-mile monument, rich with deep coral and home to sperm whales, sea turtles and dolphins, is located just off the Georges Bank near Cape Cod, Massachusetts.

The Obama-era order closed off the area to commercial fisherman, except for a handful of crabbers who were grandfathered into the deal and allowed to continue trawling for just seven years more until fishing activity would be completely barred in the region.

The plaintiffs who originally challenged the monument designation in March 2017 include the Pacific Legal Foundation, the Atlantic Offshore Lobsterman’s Association, the Long Island Commercial Fishing Association, the Rhode Island Fisherman’s Alliance and the Garden State Seafood Association.

In their original lawsuit, the groups claimed Obama “exceeded his power under the Antiquities Act” when cordoning off the ocean acreage.

They argued the sea is not “land owned or controlled by the Federal government and thus not within the president’s proclaiming authority.”

“Unless a permanent injunction is issued to forbid the implementation of the proclamation’s fishing prohibitions, plaintiffs are and will continue to be irreparably harmed … and will continue to suffer a diminution of income, reduced fishing opportunities and depletion of their investment in their boats and permits,” the March 2017 complaint states.

This March 15, U.S. District Judge James Boasberg finally agreed to allow the fisherman’s lawsuit to continue, effectively turning up  pressure on the Trump administration to act.

Read the full story at the Courthouse News Service

 

Fate of First Marine National Monument May Be Decided in Court

August 28, 2017 — The future of the first Atlantic marine national monument will likely be decided in court. A lawsuit that challenges the designation of the Northeast Canyons and Seamounts Marine National Monument remains on hold, as fishermen’s groups wait to hear specific recommendations from Interior Secretary Ryan Zinke.

Zinke announced this week he would not recommend eliminating any national monuments, but he would propose some changes. Supporters of the marine monument off of Cape Cod say if any changes go through, they’ll mount a legal challenge.

The creation of the 5,000 square-mile monument on the edge of Georges Bank this past September closed the area to commercial fishing. Soon after, five fishing organizations across New England filed a lawsuit. The attorney who represents them, Jonathan Wood of the Pacific Legal Foundation, says the suit was put on hold while the monuments were under review.

“It remains on hold, and I suppose until we know what the president is going to do, it will stay on hold,” Wood says.

The lawsuit challenges the authority that President Obama used when he created the monument. Wood says federal law only allows presidents to designate monuments on land owned or controlled by the government.

“And the ocean, 100 miles from the United States, is obviously not land,” says Wood. “But it’s also not owned or controlled by the federal government.”

Read and listen to the full story at Maine Public Radio

New England fishermen challenge Obama’s marine national monument

March 7, 2017 — The following was released by the Pacific Legal Foundation: 

A coalition of New England fishermen organizations filed suit today over former President Barack Obama’s designation of a vast area of ocean as a national monument — a dictate that could sink commercial fishing in New England.

The organizations filing the lawsuit are the Massachusetts Lobstermen’s Association, Atlantic Offshore Lobstermen’s Association, Long Island Commercial Fishing Association, Rhode Island Fisherman’s Alliance, and Garden State Seafood Association.

They are represented, free of charge, by Pacific Legal Foundation, a watchdog organization that litigates nationwide for limited government, property rights, and a balanced approach to environmental regulations.

Watch this brief video

The lawsuit challenges President Obama’s September 15, 2016, creation of the Northeast Canyons and Seamounts Marine National Monument, 130 miles off the coast of Cape Cod.

“By declaring over 5,000 square miles of ocean — an area the size of Connecticut — to be a national monument, President Obama set this entire area off-limits to most fishing immediately, with what remains of fishing opportunities to be phased out over the next few years,” said PLF attorney Jonathan Wood. “This illegal, unilateral presidential action threatens economic distress for individuals and families who make their living through fishing, and for New England communities that rely on a vibrant fishing industry.”

A monumental abuse of presidential power

President Obama claimed to be relying on the federal Antiquities Act. But as today’s lawsuit makes clear, his decree far exceeded the authority granted to presidents by that 1906 statute. The Antiquities Act was enacted to protect ancient antiquities and human relics threatened by looting, giving the president broad powers to declare monuments consistent with that purpose.

However, the statute permits creation of national monuments only on “lands owned or controlled” by the federal government. Moreover, any designation must be “confined to the smallest area” needed to protect the artifacts or objects that the monument is intended to safeguard.

“President Obama violated both of those core requirements of the law when he created the Northeast Canyons and Seamounts Marine National Monument,” Wood noted. “Most fundamentally, the ocean, where the monument is located, is not ‘land,’ nor is it federally owned or controlled. The monument designation is also not confined to the smallest necessary area; on the contrary, its sprawling boundaries bear no relation to the underwater canyons and seamounts it is supposed to protect. In short, the designation of a vast area of ocean as a national monument was a blatant abuse of presidential power.

“Unfortunately, the Antiquities Act has morphed into a favorite tool for presidents to abuse,” Wood continued. “Today, presidents use it to place vast areas of federal lands off limits to productive use with little input. Monument designations are particularly common at the end of a chief executive’s term, once the president can no longer be held accountable.

“Former President Obama was the king of Antiquities Act abuse, invoking it more times than any prior president and including vastly more area within his designations than any predecessor,” said Wood. “Our lawsuit is intended to rein in abuse of the Antiquities Act and underscore that it is not a blank check allowing presidents to do whatever they want. The creation of the Northeast Canyons and Seamounts Marine National Monument is a clear example of a president exceeding his authority, and we are suing to make sure this edict is struck down and the rule of law prevails.”

No environmental justification

“Beyond its violation of the law, the monument designation also threatens to harm the environment by pushing fishermen to other, less sustainable fisheries, and increasing conflicts between their gear and whales,” said Wood. “The president’s proclamation cites protection of coral as one of the reasons for the monument. But the corals remain pristine after more than four decades of commercial fishing because fishermen know where the corals are, and carefully avoid them, out of environmental concern and because coral destroys their gear.

“Instead of punishing New England’s fishermen — and shutting down their businesses — federal officials should be acknowledging their positive role as stewards of the ocean’s environmental resources,” Wood added. “This is shown in their laudable efforts to promote sustainability. PLF’s clients, for instance, have spent years working to improve their methods and equipment and to retire excess fishing permits, knowing that these costly sacrifices will provide long-term benefits to their industry and the environment. The monument designation undermines those sustainability efforts, by depriving the fishermen of any reward for their sacrifices.”

With a ‘stroke of the pen,’ Obama’s illegal action ‘puts men and women out of work’

“We are fighting every day to keep the men and women in the commercial fishing industry working, but with one stoke of President Obama’s pen — and his abuse of the Antiquities Act — they are out of work,” said Beth Casoni, executive director of the Massachusetts Lobstermen’s Association.

“The monument designation will have a negative rippling effect across the region as fishermen will have to search for new fishing grounds — only to find they are already being fished,” she said. “The shoreside businesses will also feel the impacts, as fishermen have to go further and further to harvest their catch, leaving less funds to reinvest in their businesses.

“We are extremely grateful to have PLF at our side as we fight back against this legal travesty, which is causing so much hardship for the commercial fishing industry here in the Northeast.”

The case is Massachusetts Lobstermen’s Association v. Ross. More information, including the complaint (see attached), a video, photos, podcast, and an explanatory blog post, is available at: www.pacificlegal.org.

Read the full legal filing here 

About Pacific Legal Foundation

Pacific Legal Foundation, America’s most powerful ally for justice, litigates in courts nationwide for limited government, property rights, individual liberty, and a balanced approach to environmental regulations. PLF represents all clients free of charge.