Saving Seafood

Supreme Court to Review Endangered Species FOIA Case

March 3, 2020 — The Supreme Court is taking up the Trump administration’s legal quest to keep certain Endangered Species Act records from the public eye.

The justices agreed Monday to review a petition from two U.S. agencies trying to reverse a court order to release draft documents from a controversial species consultation process. The Freedom of Information Act case could have broad ramifications for agency disclosure in other contexts.

Government lawyers warned in their petition that allowing the order to stand would undermine a FOIA exemption that allows for “candid” communication between agencies during decision-making processes. But the Sierra Club, which filed the underlying case, says FOIA doesn’t allow agencies to shield important records simply by labeling them drafts.

“If an agency makes a decision that alters the course of either another agency’s decision-making or affects the public, it doesn’t get to just stamp that document ‘draft’ or ‘secret’ or ‘for our eyes only’ or anything else,” Sierra Club attorney Sanjay Narayan told Bloomberg Law.

Some legal analysts predict that the court’s decision to take the case means the justices will side with the government.

Read the full story at Bloomberg Law

US Supreme Court ruling impacts marine insurance rates

June 26, 2019 — The United States Supreme Court on Monday, 24 June issued a decision likely to result in lower insurance premiums for U.S. fishing vessels.

The court ruled in favor of the defendant in the case Dutra v. Batterton. The plaintiff, a seaman employed by Dutra Group, who was injured when a hatch on a dredge vessel blew open and crushed his hand, sued Dutra seeking general and punitive damages, asserting that the vessel on which he was working was unseaworthy.

Lawyers representing Dutra Group argued that the claims for punitive damages are not eligible on the basis of unseaworthiness. Justices sided with Dutra, ruling that the plaintiff may not recover punitive damages on a claim of unseaworthiness, which reversed a previous ruling by the Ninth Circuit that the plaintiff was eligible for punitive damages.

Justice Alito wrote the majority opinion and was joined by Chief Justice Roberts, as well as Justices Gorsuch, Kagan, Kavanaugh, and Thomas. Justice Ginsberg wrote the dissenting opinion and was joined by Justices Breyer and Sotomayor.

Isaak Hurst, a lawyer at the International Maritime Group, a law firm in Seattle, Washington, U.S.A., said that the court’s decision was a “big win for vessel owners because of the conflicting body of law that has developed around ‘unseaworthiness.’”

Read the full story at Seafood Source

‘This Ruling Gives Us Hope’: Supreme Court Sides With Tribe in Salmon Case

June 12, 2018 — There was a time when the murky waters of the Skagit River offered bountiful salmon harvests to the Swinomish Indians of Washington State. They could fill an entire boat with one cast of the net back then, and even on a slow day, they could count on hauling in dozens of fish.

But on a cloudy morning last month, the tribal community chairman, Brian Cladoosby, was having no luck. Drifting in his 21-foot Boston Whaler, he spotted his 84-year-old father, Michael, standing in yellow overalls in another boat, pulling an empty net from the water.

“Where’s the fish, Dad?” the son asked.

That has been the dominant question for years among the Swinomish and other Native Americans, who have seen their salmon harvests dip by about 75 percent over the past three decades.

But on Monday, they got reason to hope that their salmon harvests would tick back up.

The Supreme Court, in a 4-to-4 deadlock, let stand a lower court’s order that the state make billions of dollars worth of repairs to roads that had damaged the state’s salmon habitats and contributed to population loss.

It was a momentous outcome in a decades-long legal battle that drew attention because of its implications for Native American treaty rights and state sovereignty.

“This ruling gives us hope that the treaty we signed was not meaningless, and the state does have a duty to protect this most beautiful resource,” Mr. Cladoosby, 59, said on Monday.

Read the full story at the New York Times

Supreme Court says bearded seal still threatened, despite legal battle

January 23, 2018 — While the federal government was shut down on Monday, the federal courts were still making decisions.

The U.S Supreme Court decided to keep the bearded seal as threatened under the Endangered Species Act — rejecting an oil and gas industry challenge to the animal’s protection status.

The marine mammal was listed in 2012, due to melting sea ice. But the Alaska Oil and Gas Association or AOGA and the American Petroleum Institute thought the listing was premature.

Joshua Kindred, an environmental counselor at AOGA, said he was “disappointed” in the supreme court’s decision.

He said the National Marine Fisheries Service didn’t provide enough evidence to warrant a listing.

“They didn’t ever really show from a scientific point of view why the seasonal sea ice was so critical to their long-term health of the species,” he said.

Kindred said there also wasn’t sufficient guidance for a plan moving forward. He said excessive critical habitat designations can slow oil and gas development.

The Center for Biological Diversity has fought to keep the bearded seal’s protection status.

Read the full story at KTOO Public Media

 

David Goethel: NOAA Fisheries rule should alarm taxpayers

October 16, 2017 — NOAA Fisheries has discovered a devious way to increase their budget without the checks and balances guaranteed by our forefathers, and the courts have let it stand.

I have been involved in a lawsuit with NOAA Fisheries over who pays for at-sea monitors (ASM) for the last three years. These are basically our own personal state police men who ride along on the boat and watch and record everything fishermen do at sea. Fishermen have been forced to sign contracts with for-profit third-party companies that provide this service for $710 per day. Recently, the Supreme Court refused to hear our case, effectively ending our pursuit of justice. Readers should be concerned, not only because this job-killing regulation effects their ability to obtain local seafood, but also because the loss leaves in place a precedent that will allow regulatory agencies to tax citizens by passing regulations while bypassing Congress.

Readers should forget most of what they learned in civics class and anything they see on courtroom television. You do have equal access to justice but it comes at a very high price. Taking this case through the legal system probably cost in excess of half a million dollars. Regulatory agencies make shrewd calculations about who can afford to sue over an action. They assume large corporations and environmental non-government organizations (NGOs) will sue and regulations are tailored accordingly. Absent a group like Cause of Action (COA) providing pro-bono counsel to someone like me, I and by extension ordinary citizens, are effectively blocked from seeking justice by the cost.

Read the full op-ed at Foster’s Daily Democrat

Groundfishermen: ‘It feels like we’re just forgotten’

October 16, 2017 — HAMPTON, New Hampshire — New Hampshire fishermen say temporary federal aid for at-sea monitor coverage is barely holding their industry afloat now that a court battle over the cost appears to have ended.

The National Oceanic and Atmospheric Administration is currently covering 60 percent of the cost for third-party at-sea monitors to observe commercial groundfishermen’s compliance with federal regulations. That coverage is projected to end May 1, 2018, when fishermen will be expected to cover the entire cost, according to NOAA spokeswoman Allison Ferreira. Groundfish include New England seafood staples like cod and haddock.

Hampton fisherman David Goethel said he would probably sell his boat and stop fishing if NOAA stops funding its portion of the cost. He and other fishermen filed a federal suit arguing it was unfair for fishermen to pay for monitors required by NOAA. Judges at the district and circuit court levels ruled the fishermen filed the suit too late to be considered on its merits, and the U.S. Supreme Court denied a petition to have the case heard this month.

Read the full story at Fosters’s Daily Democrat

After Supreme Court ruling, fight over at-sea monitoring costs may head to Congress

October 10, 2017 — Despite a recent decision by the Supreme Court of the United States, a New Hampshire fisherman pledges to continue his fight against having to pay for monitors to accompany them while at sea.

When the court opened its new term last Monday, 2 October, it decided against hearing David Goethel’s case against the U.S. Department of Commerce, allowing the 1st Circuit Court of Appeals ruling to stand. The Hampton fisherman filed suit in December 2015, about nine months after the National Oceanic and Atmospheric Administration announced it would begin passing the costs of the monitoring program to the fishermen.

The monitoring costs more than USD 700 (EUR 596.03) per day, a price that Goethel and officials from the Northeast Fishery Sector 13 claim is too steep.

Read the full story at Seafood Source

High court declines to hear fishing monitor case

Fisherman: Justices ruled on technicalities, not merits

October 3, 2017 — The U.S. Supreme Court on Monday declined to hear New Hampshire fisherman David Goethel’s case that challenged the federal government’s ability to force commercial fishermen to pay the costs of at-sea monitoring.

The rejection by the Supreme Court is the third defeat suffered by Goethel and co-plaintiff South Dartmouth-based Northeast Fishing Sector XIII since they first sued NOAA Fisheries and other federal officials in December 2015 in U.S. District Court in New Hampshire.

The court’s rejection closes the door on this particular legal challenge of the government’s right to impose the cost of at-sea monitoring on commercial fishermen, as the Supreme Court also declined to remand the case back to a lower court.

“The Supreme Court was our last judicial hope to save the centuries-old New England industry,” Goethel said in a statement.

Later, in an interview, Goethel let loose against what he said is the “stacked deck” of standing up to regulators, as well as his frustration with the justice system.

“We had three chances and not once was our case decided on the merits,” Goethel said. “I’m bitterly disappointed with the government and I’m bitterly disappointed with the justice system. At each step of the way, our fate was decided by a technicality without ever having a hearing on the merits of the case.”

Read the full story at the Gloucester Times

Supreme Court says no to hearing UCIDA case

October 3, 2017 — The lawsuit over whether the federal government or the state should manage Cook Inlet’s salmon fisheries won’t get its day in the U.S. Supreme Court after all.

Supreme Court justices on Monday denied the state of Alaska’s petition to hear a case in which the Kenai Peninsula-based fishing trade group the United Cook Inlet Drift Association challenged the North Pacific Fishery Management Council’s decision to confer management of the salmon fishery to the state.

Because most of the fishery takes place more than 3 miles from shore, it is within federal jurisdiction and is subject to management and oversight by a federal Fishery Management Plan. In 2012, the North Pacific Fishery Management Council passed an amendment removing fisheries in Cook Inlet, Prince William Sound and the Alaska Peninsula and placing them entirely under state management. UCIDA sued over the decision in 2013, saying the state’s management authority doesn’t comply with the Magnuson-Stevens Fisher Conservation and Management Act.

Though the U.S. District Court for Alaska initially ruled in the state’s favor, a panel of three federal judges on the Ninth Circuit Court in Anchorage reversed the district court’s decision and ruled that the fishery did require a fishery management plan. Saying the state’s management was adequate for the fishery, the state petitioned the Supreme Court to review the Ninth Circuit Court’s decision.

UCIDA president Dave Martin said he wasn’t surprised by the Supreme Court’s decision. The organization’s line has been the same all along, he said — state management has not met the Magnuson-Stevens Act standard for sustainability and optimum yield, with state management plans leaving salmon unharvested and exceeding escapement goals on Cook Inlet freshwater systems.

Read the full story at the Peninsula Clarion

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