Family Fishermen Move to Block Industry-Killing At-Sea Monitoring Rule

Herring Fishermen are Fighting Burdensome Regulation, COVID-19, and New, Unlawful Monitoring Requirements to Stay Afloat

Arlington, VA (June 8, 2020) – Cause of Action Institute (CoA Institute) today filed a motion for summary judgement on behalf of a group of New Jersey fishermen, asking a D.C. Federal Court to vacate job-killing fisheries regulations called the “Omnibus Amendment.” CoA Institute filed suit in February to challenge the industry-killing rule, which requires certain boats in the Atlantic herring fishery to carry “at-sea monitors” at their own cost.

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Family Fishermen Challenge Illegal, Industry-Killing At-Sea Monitoring Rule from Department of Commerce

Arlington, VA (Feb. 19, 2020) – 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. Learn More

CoA Institute Highlights Deficiencies in Proposed Rule to Shift Burdensome Costs of At-Sea Monitoring to Commercial Fishermen

The New England Fishery Management Council (NEFMC), in coordination with the National Marine Fisheries Service (NMFS), seeks to approve and implement a controversial set of regulatory amendments that would create a new industry-funding requirement for at-sea monitoring in the Atlantic herring fishery and, moreover, create a standardized process for introducing similar requirements in other New England fisheries.  Under the so-called Omnibus Amendment, the fishing industry would be forced to bear the burdensome cost of allowing third-party monitors to ride their boats in line with the NEFMC’s supplemental monitoring goals.  This would unfairly and unlawfully restrict economic opportunity in the fishing industry.

Cause of Action Institute (CoA Institute) filed a public comment last month requesting that NMFS disapprove the Omnibus Amendment and scrap the NEFMC’s plans to shift monitoring costs onto fishermen. CoA Institute explained that the Omnibus Amendment raised serious legal questions concerning the authority of the government to compel regulated parties to pay for discretionary agency programs that cannot be funded with congressional appropriations or other statutorily-authorized means.

At the December 2018 meeting of the NEFMC, I reiterated the lack of statutory authorization for the Council’s efforts to create an industry-funded at-sea monitoring regime for the Atlantic herring fishery. A similar monitoring program currently exists in the Northeast multispecies groundfish fishery; CoA Institute represented a group of sector fishermen in a lawsuit challenging that requirement, but the case was dismissed on procedural grounds.

It is a fundamental principle of administrative law that federal agencies only possess congressionally delegated powers and are limited in their operation by the funding provided by Congress.  The NEFMC and NMFS’s efforts to coerce the fishing industry—including many small, family-owned businesses—to support monitoring programs that Congress has declined to fund sustain sets a dangerous precedent that lends itself to unaccountable and unlimited government.

Beyond the clear lack of statutory authorization, industry-funded monitoring in the herring fishery will also have devastating economic consequences.  Monitors are expected to cost between $710–810 per sea day, which would cut heavily into the economic viability of many small-scale operations.  And according to the government’s own proposed rule, at least some portion of the herring fleet would suffer up to a 20% reduction in annual “return-to-owner,” which is roughly analogous to profit.

Worse yet, the government’s cost estimates are based on data collected in 2014–2015, and the situation in the herring fishery has only worsened over the past few years.  This past summer, for example, the NEFMC and NMFS cut herring quota for the remainder of 2018 by 52%, and they now propose to cut the quota for the next three years by upwards of 70%.  Recent NMFS estimates suggest that these adjustments may cause an 80–87% reduction in herring revenue.  Coupled with new industry-funded monitoring requirements, that could spell the end of small-scale fishing firms dependent on herring operations.  That is an unacceptable result, and CoA Institute remains committed to fighting to prevent the effects of such burdensome overregulation.

Ryan P. Mulvey is Counsel at Cause of Action Institute

Congress Throws Fishermen a Lifeline

Congress gave groundfishermen in New England a new lease on life when it appropriated funds last week to cover the cost of the At-Sea Monitoring program for 2018.  The National Oceanic and Atmospheric Administration (“NOAA”) requires groundfishermen—who target bottom-dwelling fish like cod or flounder—to carry at-sea monitors on their boats and, as of 2015, requires the fishermen to pay the costs associated with these monitors, which can exceed $700 per day.  By NOAA’s own estimates, this could put nearly 60% of the groundfishing fleet out of business.  Small, family-run businesses would be hit hardest.  CoA Institute released a short video with its client, David Goethel, that describes the destructive impact industry-funded monitoring will have on fishermen’s lives.

Judicial Review

CoA Institute filed suit on behalf of the fishermen in 2015. In 2017, the First Circuit Court of Appeals ruled that the fishermen filed their lawsuit too late because the underlying regulation was promulgated in 2010.[1]  The statute governing the fishing industry—the Magnuson-Stevens Act—has a review period of only thirty days after the finalization or implementation of a regulation for a legal challenge.  Although CoA Institute argued that imposing costs on industry for the first time in November 2015 should have restarted the clock for a legal challenge, the Court disagreed.  But the First Circuit did note that:

[G]iven NOAA’s own study which indicated that the groundfish sector could face serious difficulties as a result of the industry funding requirement, we note that this may be a situation where further clarification from Congress would be helpful for the regulated fisheries and the agency itself as it balances the competing goals of conservation and the economic vitality of the fishery.

Congress Steps Up

Congress appears to have taken notice by appropriating the funds necessary to cover at-sea monitoring costs for Fiscal Year 2018.  Congress also gave specific instructions to NOAA in order to avoid any ambiguity and ensure that the agency uses these funds for their intended purpose.

This is not a permanent solution but, for now, it will allow fishermen to stay afloat.  In the future, if regulators want to continue to impose constitutionally suspect monitors on an already-beleaguered American fishing industry, they must justify the cost to the American taxpayer.  The enormous public debt associated with the Omnibus Funding bill is reckless and unsustainable.  Eliminating at-sea monitoring would be a good start to curtailing spending.  But in the meantime, a federal agency like NOAA cannot be allowed to create a regulatory structure and then destroy an entire industry in order to fund it.  If the government cannot afford to fund its programs, those programs must end.  For 2018, at least, the government has chosen to cover the costs of monitoring, and our fishermen will get to keep on fishing.  The better solution, however, would be to eliminate at-sea monitoring altogether.

Eric Bolinder is counsel at Cause of Action Institute

[1] CoA Institute also filed a petition with the Supreme Court, which declined to take the case.

NOAA FOIA Response Suggests Refusal to Search Council Member Email Accounts for Records on At-Sea Monitoring Amendment

Earlier this month, Cause of Action Institute (“CoA Institute”) filed an administrative appeal of a final response by the National Oceanic and Atmospheric Administration (“NOAA”) to CoA Institute’s Freedom of Information Act (“FOIA”) request concerning NOAA’s efforts to expand industry funded at-sea monitoring—specifically, to the herring and mackerel fisheries—and to lay the foundation for industry funding across all of New England and the Mid-Atlantic.  NOAA’s processing of the request suggests that the agency failed to search email accounts belonging to members of the fishery management councils even though they are subject to public disclosure.  Based on the limited records that were disclosed, NOAA’s search appears improperly limited to its own employees.

The Industry-Funded Monitoring Omnibus Amendment

Over the past five years, the New England and Mid-Atlantic Fishery Management Councils (“NEFMC” and “MAFMC,” respectively) have worked on a controversial omnibus amendment that would require more fisherman to pay for at-sea monitoring.  Industry-funded monitoring has already been imposed on the groundfish fleet, despite a long-fought legal challenge, devastating economic consequences, and historically-depressed fishery performance.  Industry funding in the herring and mackerel fisheries will cost fishermen between $710–$818 per day at sea.  That is more than the average daily revenue of many fishermen and will render fishing unprofitable for countless small-scale family businesses.

CoA Institute submitted a written comment in response to the poorly-designed and ill-timed omnibus amendment.  Although the MAFMC decided to table the project for at least a year, the New England Council elected to forge ahead with the herring fishery.  According to a recent presentation by NOAA staff, the agency is now reviewing a draft proposed rule.  The NEFMC’s official “timeline” indicates the rule will be published this month.  A final rule is expected to follow in June 2018.

The December 7, 2017 FOIA Request and Appeal

In an effort to investigate how the Councils and NOAA responded to our comment, we filed a FOIA request for “[a]ll records concerning” the comment, “including any correspondence between or amongst members of the New England and Mid-Atlantic Councils; officials, employees, or representatives of NOAA; or any other third party.”  When we received a response, we were surprised that the agency only found seven responsive records—five of which were part of a single e-mail chain with most substantive content redacted to protect NOAA’s “deliberative” processes.

The other two records were an email that we sent to then-Regional Administrator John Bullard with a courtesy copy of our comment, and an email from Dr. Christopher Moore, Executive Director of the MAFMC, forwarding our comment to members of the Council.

NOAA failed to disclose any records from the members of the regional councils.  Even the record from Dr. Moore was the version received by John Bullard, as highlighted here:

NOAA’s failure to locate, process, and disclose relevant records from Council members is a serious deficiency in its response.  Council records—including members’ email correspondence—are subject to the FOIA, even if those records are stored in private email accounts.  The regional councils conduct important business that has a serious impact on the livelihoods of Americans involved with the fishing industry.  The process by which fishery rules are designed and implemented can already be less-than-transparent; any attempt to hide records from public scrutiny cannot be allowed to stand.

Follow-Up Public Records Requests to Massachusetts and Maryland

CoA Institute also filed state-level FOIA requests with Massachusetts and Maryland this week in order to access some of the records that NOAA has refused to disclose.  These requests seek the same records sought from the federal government, but only to the extent they were created or received by John Quinn and Michael Luisi, the chairmen of the NEFMC and MAFMC, who used their state government email addresses to conduct council business.

Interestingly, sometime after CoA Institute submitted its comment, Dr. Quinn removed his University of Massachusetts email address from the NEFMC website, perhaps in order to dissuade the interested public from even attempting to file a state public records request.

CoA Institute is committed to fighting for the economic rights and liberties of everyday Americans, including those who face increasingly onerous regulation of their livelihoods.  We also will fight against agencies that flout federal records management laws in an attempt to keep their regulatory efforts secret.

Ryan Mulvey is Counsel at Cause of Action Institute

Fishing Wars: Drowning in Regulations

Commercial fishing boats in New England are going under at an alarming rate, and hard-working families are being demonized by a multimillion-dollar environmental industry whose only product to sell is fear.

On this episode of CRTV’s Michelle Malkin Investigates, Michelle travels to the Northeast to hear the stories of people in the fishing industry who are drowning in government regulations, including our client, David Goethel, who is fighting a fishing regulation that, by the government’s own estimate, could put 60% of his industry out of business.

Watch the full episode at CRTV.com 

Inside NOAA’s Secret Staff Newsletter

Imagine being a New England fisherman.  You’re subject to complex and burdensome regulation, and the federal government isn’t exactly helping to keep your way of life afloat.  In fact, its officials have worked increasingly to limit your ability to catch fish and to impose onerous costs on your continued livelihood.  Take, for example, the legally dubious requirement that groundfish sector members pay up to $700 per day to have “at-sea monitors” ride their boats and watch them fish—a scheme that could put 60% of small-scale fishermen out of business.  Consider also the efforts underway to expand industry-funded monitoring to all other regional fisheries.

If oppressive regulation weren’t enough, now picture these same officials publishing a secret internal newsletter that describes their dealings with you and your fellow fishermen in less-than-flattering terms.  Sadly, this isn’t a hypothetical situation.  According to records obtained by Cause of Action Institute (“CoA Institute”) from whistleblowers and under the Freedom of Information Act (“FOIA”), National Oceanic and Atmospheric Administration (“NOAA”) employees in the Greater Atlantic Regional Fisheries Office have long circulated a paper that often contains their candid feelings towards the fishermen with whom they are supposed to collaborate.

In one article, dated June 29, 2010, Port Agent Victor Vecchio, who works in the “Stakeholder Engagement Division,” described fishermen at a “groundfish outreach meeting” as spreading “various conspiracy theories,” at least until they “ran out of steam (or vodka . . . or whatever).”

Figure 1: Vic Vecchio, “Groundfish Outreach Meeting–Montauk, NY 6/29/2010,” Fathoms (July 2, 2010)

In response to an October 17, 2017 FOIA request, the National Oceanic and Atmospheric Administration released a complete copy of its April 1-15, 2017 issue of Fathoms, which was heavily redacted to “protect” confidential commercial information.  The range of topics covered in the paper include news about enforcement actions, in-season events (such as the opening of the recreational fishery), the impact of weather patterns on fishing activity, and even scientific developments.  Much of this appears benign and, indeed, informative.  But, as expected, the issue also discusses the industry’s frustration with planned regulatory actions.  The entire content of that article was conspicuously redacted.

In addition to filling a follow-up request for all issues of Fathoms from December 2015 to the present, CoA Institute has filed an administrative appeal challenging NOAA’s heavy-handed redactions.  Exemption 4, which protects confidential commercial information, does not typically apply to government-generated information.  More importantly, the sort of information contained in Fathoms could hardly be described as “confidential” because it would neither impair NOAA’s ability to obtain information from fishermen in the future nor cause a competitive disadvantage to any part of the fishing industry.

It seems instead that the National Oceanic and Atmospheric Administration is hiding behind an exemption designed to protect businesses in order to actually keep secret its criticism of businesses.  CoA Institute’s staff attorneys have spoken to a number of fishermen who are completely unaware of the existence of Fathoms.  Given the derision they likely receive in its pages, they are unlikely to be too pleased by efforts from the National Oceanic and Atmospheric Administration to block disclosure.

NOAA’s shenanigans don’t end there.  Another record disclosed to CoA Institute suggests that there’s a second internal digest—Dock Buzz—that could similarly provide insight into the government’s relationship with the New England fishing industry.  CoA Institute also continues to investigate NOAA’s likely violation of federal records management laws in failing to preserve employee Google Chat/Google Hangout records.

Ryan P. Mulvey is Counsel at Cause of Action Institute.