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02/28/2018

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

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10/2/2017

Supreme Court Denies Petition to Review Job-Killing Fishery Rule

Washington, D.C. — The U.S. Supreme Court today denied the petition for writ of certiorari filed by Cause of Action Institute (“CoA Institute”) on behalf of its clients, groundfisherman David Goethel and Northeast Fishery Sector 13. Mr. Goethel and Sector 13 sued the U.S. Department of Commerce in December 2015 after the agency announced that it would begin shifting the costs for at-sea monitoring onto fishermen.  That transition was anticipated as early as 2010, but the government delayed its implementation for over five years.  Both the U.S. District Court for New Hampshire and the First Circuit Court of Appeals dismissed the lawsuit, ruling that the fishermen had filed their legal challenge too late. 

CoA Institute Vice President Julie Smith: “We are disappointed that the Supreme Court declined to hear the case.  Our clients deserved an opportunity for their challenge to be heard on the merits. The Department of Commerce has gone beyond the bounds of the law in putting this financial burden of more than $700 per day on small-scale fishing businesses in the Northeast. Because the New England Fishery Management Council has announced its intention to extend this unlawful requirement to other fishermen, we will continue to look for ways to challenge that and to require the Department of Commerce to follow the law. This fight is not over.”

The Supreme Court’s refusal to review the First Circuit’s opinion on pre-enforcement review and its interpretation of certain provisions in the Magnuson-Stevens Act allow a dangerous precedent to stand. As argued in the petition, the First Circuit decision “effectively eliminate[s] the doctrine of pre-enforcement review and the possibility of meaningful judicial review of delayed agency implanting actions.” Moreover, “it rewards agencies that delay implementation of regulations by making their later actions immune to challenge.”

David Goethel: “The Supreme Court was our last judicial hope to save a centuries-old New England industry. I’ve been fishing my entire adult life, and I will try to continue, but the costs associated with at-sea monitoring will be crushing. We may have lost the battle, but the war to save the fishing industry from overregulation is far from over.”

Sector 13 Manager John Haran: “This is a sad day for the New England fishing industry. The high court’s decision to allow the First Circuit’s decision to stand puts the full brunt of at-sea monitoring costs on industry. Many fishermen in my sector will likely be put out of business. It may be too late for judicial relief, but we hope the regional Councils and our legislators act quickly to remove this job-killing mandate.”

Case Background

In November 2015, the Department of Commerce finally announced a date by which sector fishermen who fish for cod, flounder, and other groundfish, must not only carry third-party contractors known as “at-sea monitors” on their vessels during fishing trips, but also pay out-of-pocket for the cost of those monitors.  CoA Institute’s clients filed suit to challenge this industry funding requirement, which will devastate the New England fishing industry.

In July 2016, the U.S. District Court for the District of New Hampshire dismissed the lawsuit.  CoA Institute appealed the decision and, in April 2017, the First Circuit Court of Appeals upheld the District Court’s ruling, but without addressing the merits of the case. The First Circuit held that the fishermen’s suit was untimely and must have been filed within thirty days of the original agency rule that mandated industry-funding, even though this requirement was never enforced for half-a-decade. Interestingly, while the First Circuit did not address the merits of the case, it emphasized the devastating economic impacts of the regulation and, in a rare move, urged congressional action to clarify the Magnuson-Stevens Act regarding the payment of monitors.

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org

 

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