Archives for April 2017

Cause of Action Institute Joins Coalition Seeking Public Release of Congressional Research Service Reports

Congress needs to stop making it so difficult to get non-confidential information. To help make this reality, Cause of Action Institute signed onto a bipartisan coalition letter asking Congress to expand public access to non-confidential documents through the Congressional Review Service (“CRS”).  Congress should direct the CRS to create a system that provides free, easy access to all members of the public.

Virtually unknown outside of the D.C. beltway, the CRS plays an instrumental role in America’s legislative process.  The service provides policy and legal analysis for members of Congress in both parties.  Some of the reports it produces are confidential, but many of them are not.  The non-confidential reports could provide much-needed insight on legislative issues.  Considering taxpayers fund the CRS to the tune of $100 million annually, the public has a right to see its work.

Currently, the CRS permits public access to some documents, but the process is not simple and people have to jump through hoops to get reports.

The Congressional Review Service has suggested that there would be complications with releasing information, such as reproducing copyrighted information, needing to engage with the public and losing speech-and–debate clause protection.  However, these arguments are unfounded because its content has been cited in numerous media reports and court decisions.

For example, over the past ten years, Congressional Review Service documents have been cited in The Washington Post 67 times and The New York Times 45 times.  Moreover, the Government Accountability Office has made clear that the work of the U.S. government is not subject to copyright protection.

Confidential information must be protected, but  the public should be able to see what its government is doing and access the same information Congress uses to make decisions.

Antiquities Act Executive Order—Overwrought Response Disregards Real Risks of Lack of Transparency and Unbridled Presidential Discretion

Since news broke earlier this week that President Trump would be signing an Executive Order (“E.O.”) regarding the Antiquities Act, hysteria has ensued. It’s as if the President had declared a new Oklahoma Land Rush on some of America’s most treasured landscapes, and the backhoes were lined up and waiting for the sound of the gun to start digging up the land.[1] In the 24 hours since its signing, the outcry has reached fever pitch.  Some claim the E.O. is but the first step in giving away the nation’s public lands to corporate interests. Others lament that the E.O. does not go far enough to restore the proper balance among the varied interests involved in public lands management. Either way, such hyperbole misrepresents and overstates what the E.O. actually says and what it will likely achieve in its implementation.

When considering vocal competing views, I often find myself asking “how did we get here?” and “how do we move forward productively?” Regarding national monument designations, the answer to the former is lack of transparency and Presidential accountability. The answer to the latter is more transparency and public involvement in the national monument designation process.

The E.O. directs the Secretary of the Interior, Ryan Zinke to review all national monuments created by the Antiquities Act since January 1, 1996, that measure more than 100,000 acres or lacked appropriate public input. The E.O. also directs Secretary Zinke to provide two reports – a 45-day interim report regarding Bears Ears National Monument and 120-day final report regarding all other national monuments. The final report is to include suggestions regarding potential legislative proposals, and executive or other appropriate actions to restore trust between local communities and Washington, give voice to Governors of States and local and Tribal governments who are affected by monument designations, and put America back on track to manage our federal lands in accordance with the traditional multiple-use philosophy. The E.O. does not direct any action regarding any national monument nor direct the Secretary to reach any predefined conclusion. The E.O. is thus a rational first step in clarifying “how we got here,” and “how we move forward productively.” It is not, as some would claim, the beginning of the end for America’s public lands.

Since September 2016, Cause of Action Institute (“CoA Institute”) has been investigating the use, misuse, and abuse of the Antiquities Act of 1906, 54 U.S.C. §§ 320301 – 320303 (“Antiquities Act” or the “Act”) by recent presidential administrations. To that end, CoA Institute has submitted over ten (10) Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), requests to various and executive branch offices agencies – Council on Environmental Quality (“CEQ”), Department of the Interior (“Interior Dept.”), Bureau of Land Management (“BLM”), and the National Oceanic and Atmospheric Administration (“NOAA”) – involved with national monument declarations. To date, CoA Institute has received several interim releases, including over 1,000 records, but we anticipate that this represents only a small fraction of the records that are responsive to our requests. These records, along with publicly available documents and conversations we have had with local stakeholders in multiple states, preliminarily confirm several concerns and highlight the pressing need for transparency and oversight in the national monument designation process.

The Antiquities Act was intended to protect “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government” by permitting the President to declare such landmarks, structures, and objects of historic or scientific interest as national monuments.[2] The Act also permits the President to “reserve” land parcels as part of the national monument so long as such parcels are “confined to the smallest area compatible with the proper care and management of the objects to be protected.”[3] Alternatively, if the object is not situated on federal land, the object and the land may be relinquished to the federal government.[4]

While such statutory language should limit use of the Antiquities Act, in practice, the Act has been used by presidents to declare or expand national monuments with little more than the stroke of a pen. Since 1996, Presidents Bill Clinton, George W. Bush, and Barack Obama have declared over 55 national monuments, many with little or no publicly-available data, analyses, or impact studies to substantiate “the smallest area compatible” with “the proper care and management of the objects to be protected.” Problematically, some courts have held that the Act does not require the President “to make any particular investigation” prior to a monument being designated.[5] Thus, a President may declare a national monument without any information or data supporting the declaration. Because courts have been reluctant to review monument designations absent facts establishing and identifying lands that were improperly designated,[6] public recourse to challenge designations is essentially nonexistent. Indeed, no such challenge has yet been successful.

Although the bulk of the hysteria surrounding the E.O. relies on the assumption that national monuments are a benign tool for protecting rural land, many Americans would likely be alarmed to learn that under the current statutory and judicial rubric, the Act would permit the establishment of national monuments of a very different kind. For example, by a simple transfer in ownership of the relevant property to the federal government, President Trump could declare Trump Tower or Mar-a-Lago a National Monument by simply parroting a few key phrases in the declaring proclamation. There would be zero need to substantiate the “historical significance” of the property, the appropriate scope of the land included, or the need for that particular form of preservation. And – here’s the kicker – the declaration could include whatever protections and uses he deemed fit (such as requiring searchlights to cast a “protective” glow on the name of the building on a nightly basis) and, according to some, the monument designation could not be revised or reversed by a subsequent President, though there is disagreement on this point. Outrageous? Of course, Possible under the Act as written and applied today? Absolutely.

From a government oversight and transparency perspective, Presidential use of the Antiquities Act is rife with abuse, as major decisions impacting vast public lands, natural resources, property rights, and livelihoods are left to the sole discretion of the President, who is not required to substantiate his designation in any meaningful way beyond the use of a few magic words on the face of the declaring proclamation. Unchecked discretion and lack of recourse to remedy overbroad declarations, has resulted in misuse of the Antiquities Act. Further, as publicly reported, and evident in government records received and reviewed by CoA Institute, monument declarations have been made with little or no consideration of local stakeholders and those most adversely impacted by the designations.

That is why today, CoA Institute submitted a letter to Secretary Zinke highlighting our concerns regarding recent misuse of the Antiquities Act, preliminary results of our ongoing investigations, and recommendations regarding oversight of existing monuments and increased transparency in the designation process.

Any questions, commentary, or criticisms? Please e-mail us at and/or

Cynthia F. Crawford is a Senior Counsel at Cause of Action Institute.

Kara E. McKenna is a Counsel at Cause of Action Institute. Kara is admitted only in New York and New Jersey. Practice limited to matters and proceedings before United States Courts and agencies.

[1] Presidential Executive Order on the Review of Designations Under the Antiquities Act (Apr. 26, 2017) available at

[2] 54 U.S.C. § 320301 (a).

[3] 54 U.S.C. § 320301 (b).

[4] 54 U.S.C. § 320301 (c).

[5] Tulare County v. Bush, 306 F.3d 1138, 1142 (D.C. Cir. 2002).

[6] Id.

CoA Institute Highlights Problems with Presidents’ Unilateral Designation of Monuments

Washington D.C. – After President Trump yesterday signed an executive order to review previous presidents’ national monument designations under the Antiquities Act, Cause of Action Institute (“CoA Institute”) today sent a letter to Interior Secretary Ryan Zinke outlining why some designations may have been unlawful.

Signed into law over a century ago, the Antiquities Act authorizes the president to declare federal lands as part of monuments, which restricts how the lands can be used. Records obtained by CoA Institute indicate that some of President Obama’s designations may have resulted from collusion with outside environmental groups, while ignoring feedback from the local stakeholders who would be most harmed.

CoA Institute President and CEO John Vecchione: “Major decisions impacting Americans’ livelihoods, vast public lands, natural resources, and property rights are currently left to the sole discretion of the president. This is contrary to most of our system of government. Presidents failed to substantiate many designations in any meaningful way, beyond the use of a few magic words on the face of the proclamations. Unchecked discretion and lack of recourse to remedy overbroad proclamations has resulted in misuse of the Antiquities Act and undue restrictions on future use of vast swaths of federal lands.”

CoA Institute has submitted more than 10 Freedom of Information Act (“FOIA”) requests to various agencies and executive branch offices involved with national monument declarations.

Evident from government records received and reviewed by CoA Institute, monument declarations have been made with little or no consideration of local stakeholders and those most adversely impacted by the designations.  More recent designations, such as the Northeast Canyons and Seamounts Marine National Monument and the expansion of the Cascade-Siskiyou National Monument have even been made in direct contravention of longstanding statutory frameworks established by Congress and trusted by local stakeholders.

To date, CoA Institute has received several interim releases, including over 1,000 records, but we anticipate that this represents only small fraction of the records that are responsive to our requests. These records, along with publicly available documents and conversations we have had with local stakeholders in multiple states, preliminarily confirm several of our concerns.

For example, it appears that third-party environmental groups knew about a forthcoming monument designation in the Atlantic Ocean prior to August 2015. However, local fishermen—who would be directly and adversely impacted by the designation— were notified only 12 days before the September meeting. As indicated in records we have reviewed, local fishermen were given only 250 words in a press release informing them of the meeting and seeking input on a then-undefined proposal. In contrast, third party organizations had enough in-depth information in advance of the meeting to build online petitions supporting a monument in the Atlantic Ocean that were pushed out to their members nationwide.

As part of our ongoing oversight, CoA Institute continues to investigate:

  • The role certain Members of Congress played in lobbying President Obama to take unilateral action under the Antiquities Act;
  • Potential collusion between outside groups and the Obama Administration to declare national monuments;
  • Lack of transparency regarding monument designations;
  • Pretextual public hearings relating to predetermined monument designations;
  • The continued acquisition of private lands in and around existing national monuments to expand such monuments; and
  • The legality of agency rulemakings to enforce Antiquities Act designations.

The full letter can be found here

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute:

John Vecchione discusses FBI lawsuit, Trump dossier on The Derrell Day Show


Criminal Prosecutions on Tax Day: “If this is the law, nobody is safe”

Tax Day is just behind us, marking the ceremonial American tradition of waiting to the last minute to electronically file a Form 1040 in the hopes of receiving a tax refund (or maybe that is just me). This year alone, the IRS expects to process approximately 150 million tax returns.  But few Americans stop to think before clicking “submit,” about the sheer breadth of information they are supplying.  A tax return is an intimate financial portrait that details your income, marital status, number of dependents, the property and assets you’ve acquired, and gifts you’ve received, all based on documents and receipts collected throughout the previous year.

Remember on tax day that while Title 26 of the United States Tax Code gives the IRS the power to levy taxes, it also creates criminal sanctions to make sure people pay what they owe. Tax evasion is a felony, as is failure to pay any tax due, filing a false return, and not filing a return at all in some cases.  But what if otherwise legal acts or omissions—like not keeping financial records, throwing away receipts, not giving all of your documents to your accountant, cashing checks, or even using cash—were also a felony under the tax code?  Tax cheats should be prosecuted, but the law needs to be applied in a way so that the millions of Americans who file tax returns every year, but might not keep receipts or documents, cannot be caught up in an overreaching prosecution.

This was the issue that faced the Second Circuit in United States v. Marinello.  Carlo Marinello ran a courier company in New York and didn’t file tax returns for a number of years.  He was indicted with eight counts for failure to file a tax return.  However, the government also charged him with a felony for “corruptly obstruct[ing] or imped[ing]…the due administration of the [tax code]” under 26 U.S.C. § 7212(a).

This statute states:

Whoever corruptly or by force or threats of force … endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under [Title 26], or in any other way corruptly or by force or threats of force … obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title, shall, upon conviction thereof, be fined not more than $5,000, or imprisoned not more than 3 years, or both.

According to the indictment, Mr. Marinello could be guilty of the felony of corruptly obstructing or impeding the administration of the tax code by performing acts as common as “failing to maintain corporate books and records,” “failing to provide [his] accountant with complete . . . information related to [his] personal income,” “discarding business records,” “cashing business checks,” and “paying employees in cash” because he performed these acts and omissions with the intent to obtain an unlawful benefit—not paying taxes. The jury convicted Mr. Marinello on this basis, and the Second Circuit affirmed the conviction.

The other felony provisions in Title 26, including the felony for not paying taxes under section 7202, impose a “willfull” mens rea requirement, which requires the government to prove that the person had a “guilty mind” and acted with the knowledge that his conduct was unlawful, and made a voluntary, intentional violation of a known legal duty.  However, the obstruction statute punishes anyone who “corruptly” endeavors to obstruct or impede the administration of Title 26, a much lower standard.  To act “corruptly” is to act “with intent to gain an unlawful advantage or benefit for oneself or for another.”

As this otherwise statutorily-undefined term has been applied across the land, and by the Second Circuit in Mr. Marinello’s case, any act or omission that obstructs the administration of the tax code is a felony so long as the defendant committed that act or omission to gain an “unlawful benefit”—whether or not the defendant knew that benefit was unlawful, whether or not the act or omission itself is a legal act, and whether or not the unlawful benefit sought by the defendant was even related to the tax code.  Troublingly, this “obstruction” statute has become a catchall felony provision with a reduced mens rea requirement that has swallowed the other criminal provisions in the tax code.  For example, it is hard to imagine how failing to file a tax return would not also impede the administration of the tax code.

Disagreeing with the Second Circuit, and concerned about the overbreadth and vagueness of the statute, the Sixth Circuit has cabined the obstruction statute to require that the government prove that the defendant took action to impede or obstruct a pending IRS investigation or action, such that a particular IRS employee was obstructed by the defendant’s conduct. United States v. Kassouf, 144 F.3d 952 (6th Cir. 1998).

Mr. Marinello filed a petition for a writ of certiorari with the Supreme Court, asking it to hear his case and resolve the split between the Sixth Circuit and the Second Circuit. Cause of Action Institute and the National Association of Criminal Defense Lawyers filed a “friend of the court” brief, urging the Supreme Court to take the case to clarify the type of conduct that is criminalized under the tax code.  As Judge Jacobs of the Second Circuit warned in his dissent from the rest of the court, “if this is the law nobody is safe.”

The full amicus brief can be found here

Erica Marshall is counsel at Cause of Action Institute

The Center for Biological Diversity’s Flawed Legal Challenge to the Congressional Review Act – Part II

This post is Part II in a series discussing the lawsuit from the Center for Biological Diversity.  Part I is available here.

The joint resolution disapproving the Refuges Rule was a proper use of the CRA’s look-back provision.  But even if it wasn’t, a court is unlikely to overturn the resolution on that basis.

A joint resolution disapproving an agency rule via the Congressional Review Act (“CRA”) really only differs from any other law invalidating a regulation in two respects.  First, it allows the Senate to pass the resolution without needing sixty votes to end debate.  The 60 vote necessity to do so for other legislation is not a Constitutional mandate.  And second, it prohibits the agency from reissuing the rule in substantially the same from.  The latter provision could be added to any piece of legislation overturning a regulation, so all that is really at stake is whether the Senate may operate under expedited procedures and a lower vote threshold.

The CRA requires a disapproval resolution to be introduced within sixty days of the agency submitting the requisite report to Congress.[1]  But if the report is submitted within the final sixty legislative days of a congressional session, then that report is considered to have been submitted on the fifteenth legislative day of the new Congress.[2]  This is known as the look-back provision and it is designed to allow a new Congress to review all of the midnight rules rushed out the door at the end of the previous Congress.  The look-back provision is especially important after an election year when a lame-duck administration tries to push through an aggressive regulatory agenda for the incoming administration to unravel.

In its lawsuit, the Center for Biological Diversity  claims that the Refuges Rule was not eligible for the CRA’s look-back scheduling provision because it qualifies as a hunting regulation that is exempt from Section 801’s reporting requirements by Section 808.[3]  This claim fails for at least two reasons.  First, the look-back provision is an internal congressional scheduling rule, which is the type of rule courts often avoid under the political-question doctrine.  Second, the Refuges Rules does not qualify as a hunting rule under the Section 808 exemption and was thus properly subject to the look-back provision.

The interpretation of internal congressional rules is a political question that courts often avoid.

Congress creates its own rules of administration and courts are loath to meddle in them.  The Constitution states that “[e]ach House may determine the rules of its proceedings[.]”[4]  Legal challenges to those rules often implicate the political question doctrine, under which courts avoid cases where there has been a “textually demonstrable constitutional commitment of the issue to a coordinate political department.”[5]

One example is Metzenbaum v. Federal Energy Regulatory Commission, where the D.C. Circuit found that judicial interpretations of congressional rules is inappropriate because “there is ordinarily ‘no warrant for the judiciary to interfere with the internal procedures of Congress.’”[6]  “To decide otherwise would subject Congressional enactments to the threat of judicial invalidation on each occasion of dispute over the content or effect of a House or Senate rule.  The majority having given its sanction to legislation, and implicitly the process followed in its enactment, a minority might yet frustrate its implementation through litigation based on purported violations of ‘housekeeping’ rules.”[7]  One exception to this rule is where the “rights of persons other than members of Congress are jeopardized by Congressional failure to follow its own procedures[.]”[8]  This approach has given rise to the so-called “enrolled bill rule,” which holds that “if a legislative document is authenticated in regular form by the appropriate officials, the courts treat that document as properly adopted.”[9]  This rule stretches all the way back to the Supreme Court’s 1892 decision in Field v. Clark.[10]

Here, the CRA is clear that the look-back provision is nothing more than a scheduling rule of Congress:

This section is enacted by Congress as an exercise of the rulemaking power of the Senate and House of Representatives, respectively, and as such it is deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of a joint resolution[.][11]

There does not appear to be any contention that the joint resolution was improperly voted on or incorrectly enrolled by the congressional officials upon its passage.  The Center for Biological Diversity merely claims that Congress should have determined that the Refuges Rule was ineligible for the look-back provision.  But Congress did make that determination, and courts are typically hesitant to get involved in such matters.

This conclusion is buttressed by the fact that the CRA expressly precludes judicial review of congressional determinations made under the CRA.  Section 805 states that “[n]o determination, finding, action, or omission under this chapter shall be subject to judicial review.”[12]  The determination made by both chambers of Congress that the Refuges Rule qualifies for the look-back scheduling provision is precisely the type of “determination” that the CRA exempts from judicial review.

The Refuges Rule does not qualify for the Section 808 exemption.

Despite theCenter for Biological Diversity’s claim, the Refuges Rule does not fall within the CRA’s Section 808 exception.  The CRA provides that “[b]efore a rule can take effect,” the agency promulgating the rule must submit a report to Congress.[13]  Section 808 provides that notwithstanding that requirement, a rule may take effect at such time as the agency decides if the rule “establishes, modifies, opens, closes, or conducts a regulatory program for a commercial, recreational, or subsistence activity related to hunting, fishing, or camping[.]”[14]  The Center for Biological Diversity claims that the “Refuges Rule is covered by the plain language of Section 808 . . . [b]ecause it disallows certain hunting practices that may be approved by the Board[.]”[15]

Although the Center for Biological Diversity is correct that the Refuges Rule affects hunting practices, it makes no attempt to argue that the regulation impacts “a regulatory program” aimed at “commercial, recreational, or subsistence activity.”  By its plain terms, the Refuges Rule is not directed at subsistence activity; it is titled “Non-Subsistence Take of Wildlife”[16] and the Center for Biological Diversity admits in its complaint that the rule does not affect takes “for subsistence by federally-qualified subsistence users.”[17]  The rule also does not affect either commercial or recreational activity but is instead aimed at “the conservation of natural and biological diversity, biological integrity, and environmental health on refuges in Alaska[.]”[18]  The rule focuses on “predator control” by “prohibit[ing] several particularly effective methods and means for take of predators[.]”[19]  The U.S. Fish and Wildlife Service (“FWS”) “define[s] predator control as the intention to reduce the population of predators for the benefit of prey species.”[20]  This includes practices “such as . . . those undertaken by government officials or authorized agents, aerial shooting, or same-day airborne take of predators.  Other less intrusive predator reduction techniques such as . . . live trapping and transfer, authorization of particularly effective public harvest methods and means, or utilizing physical or mechanical protections (barriers, fences) are also included[.]”[21]

The Refuges Rule does not affect a regulatory program involving commercial licenses, recreational takes, or any type of nonconsumptive recreational use, such as wildlife viewing or photography.  The Refuges Rule is a conservation regulation, which is not included among Section 808’s exceptions.

FWS is clear about this in its final rule.  In response to a commenter concerned that the regulation would impact ecotourism, FWS responded: “Although this rule may result in slight changes in refuge visitor experiences, we do not expect this rule to significantly impact visitors engaged in either hunting or nonconsumptive uses like wildlife viewing.”[22]  FWS also wrote that “there may be slight effects to recreational big game hunting on refuges by eliminating a hunter’s ability to use a few specific methods and means of take.  However, until recent years, many of these methods and means were prohibited Statewide.”[23]  FWS inclusion of passing references to “slight changes” and “slight effects” to recreational activities demonstrates that the Refuges Rule does not establish, modify, open, close, or conduct “a regulatory program” related to commercial or recreational activities.  At most, it may have slight impacts on other regulatory programs not included in this rule.[24]

Therefore, the Refuges Rule does not qualify for the CRA’s Section 808 exception and all of Center for Biological Diversity’s arguments that follow from that characterization (i.e., that the Refuges Rule is not eligible for the look-back provision) must fail.

James Valvo is Counsel & Senior Policy Advisor at Cause of Action Institute and you can follow him on Twitter @JamesValvo.


[1] 5 U.S.C. § 802(a).

[2] Id. § 801(d)(1).

[3] Id.

[4] U.S. Const. art. 1, § 5, cl. 2.

[5] Baker v. Carr, 369 U.S. 186, 217 (1962).

[6] 675 F.2d 1282, 1287 (D.C. Cir. 1982) (citing Exxon Corp. v. FTC, 589 F.2d 582, 590 (D.C.Cir.1978)); see also Christoffel v. United States, 338 U.S. 84, 88–89 (1949) (“Congressional practice in the transaction of ordinary legislative business is of course none of our concern, and by the same token the considerations which may lead Congress as a matter of legislative practice to treat as valid the conduct of its committees do not control the issue before us.”); Mester Mfg. Co. v. INS, 879 F.2d 561, 571 (9th Cir. 1989) (“In the absence of express constitutional direction, we defer to the reasonable procedures Congress has ordained for its internal business.”).

[7] Metzenbaum, 675 F.2d at 1287.

[8] Id.; see also United States v. Rostenkowski, 59 F.3d 1291, 1305 (D.C. Cir.), opinion supplemented on denial of reh’g, 68 F.3d 489 (D.C. Cir. 1995) (The “Rulemaking Clause is not an absolute bar to judicial interpretation of the House Rules.”).

[9] United States v. Sitka, 845 F.2d 43, 46 (2d Cir. 1988) (citing United States v. Thomas, 788 F.2d 1250, 1253 (7th Cir. 1986)).

[10] 143 U.S. 649 (1892).

[11] 5 U.S.C. § 802(g).

[12] Id. § 805.

[13] Id. § 801(a)(1)(A).

[14] Id. § 808(1).  This section also exempts “any rule which an agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest[.]”  Id. § 808(2).  Although the CRA’s legislative history makes passing reference to the section 808(1) delay, it does not provide a reason for why Congress included this provision.  See 142 Cong. Rec. S3683-01, S3685 (Apr. 18, 1996).

[15] CBD Compl. ¶ 58 (citing 5 U.S.C. § 808).

[16] “Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska,” 81 Fed. Reg. 52,247 (August 5, 2016) (the “Refuges Rule”); Id. at 52,247 (“This rule does not change Federal subsistence regulations or restrict the taking of fish or wildlife for subsistence uses under Federal subsistence regulations.”).

[17] CBD Compl. ¶ 37 (“The regulations do not change Federal subsistence regulations or otherwise restrict the taking of fish or wildlife for subsistence by federally-qualified subsistence users.”).

[18] Refuges Rule, 81 Fed. Reg. at 52,247.

[19] Id.

[20] Id. at 52,252.

[21] Id.

[22] Id. at 52,260.

[23] Id.

[24] 5 U.S.C. § 808(1).

Fishermen in New England Face Another Costly Regulation

The New England Fishery Management Council (“NEFMC”) held a meeting on April 20, 2017 [pictured above] to discuss a controversial omnibus amendment that would require more fishermen to pay for at-sea monitors, which should be the government’s responsibility.

The monitors would cost between $710-$818 per day at sea, which is more than the average daily revenue of a fisherman, rendering fishing unprofitable for many smaller-scale boats.

Cause of Action Institute Vice President Julie Smith attended the meeting and questioned the legality of the rule change, citing the Magnuson-Stevens Act, which, she said, does not permit the Council to implement this regulation. She advised the Council to take a different course of action to avoid likely court challenges to overturn the amendment. Listen to Smith’s full remarks here:


In a written comment submitted on April 11, 2017, Smith provided alternatives for the council to consider. The council could scrap the amendment entirely, work with the National Marine Fisheries Service to get the funds, or petition Congress for the funds.

However, she said shifting the cost burden onto fishermen would be “ill-advised.”

CoA Institute represents fishermen challenging another industry-funded monitoring program in the Northeast groundfish fishery. In that case, a government study predicted that industry-funded monitoring would result in up to 60 percent of mostly small-scale vessels going out of business—a result that the government blithely characterized as a “restructuring” of the groundfish fleet.  Learn more about the case HERE