Herring fishermen appeal district court decision upholding industry-killing at-sea monitoring regulations

Washington D.C. – Cause of Action Institute today filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit on behalf of several family-owned fishing companies based in New Jersey, who hope to block a new regulation that would force them to pay for third-party “at-sea monitors.”  That regulation—which was designed by the New England Fishery Management Council and promulgated by the National Oceanic Atmospheric Administration—requires certain boats in the Atlantic herring fishery to carry “at-sea monitors” and at industry’s cost, all without congressional authorization.

Last month, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia granted the government’s motion for summary judgment, ruling federal regulators had statutory authorization to force fishermen to bear the cost of monitoring, regardless of the severe economic impacts and lack of scientific justification.  Judge Sullivan also discounted procedural deficiencies in the government’s rulemaking, including its prejudgment of the legality of industry funding.

Jeff Kaelin, Director of Sustainability and Government Relations at Lund’s Fisheries, Inc., and representative for the New Jersey plaintiffs:

The district court reached an unfortunate decision, providing deference to the government, which is enforcing the industry-funded monitoring program without the statutory authority to do so.  The commercial herring fleet has been over-regulated for years, but with little demonstrated biological benefit to the Atlantic herring resource itself.  Industry-funded monitoring, along with reduced quotas and other burdensome regulations, is forcing some herring fishermen out of business and increasing costs to those who still hope to hang on.  The district court’s decision is likely to perpetuate that trend.  We are grateful for the work Cause of Action Institute has undertaken, and we look forward to pursuing our appeal at the D.C. Circuit.  In the end, we hope the rule of law will prevail.

Ryan P. Mulvey, Counsel at Cause of Action Institute:

We aim to convince the D.C. Circuit that Judge Sullivan’s ruling is contrary to the law and facts.  The federal government has overextended its regulatory power far beyond what Congress authorized.  The Magnuson-Stevens Act simply does not give the government and fishery management councils a blank check to regulate according to their whim. The imposition of industry-funded at-sea monitoring is likely to weigh down an already beleaguered commercial fishing industry.

The herring fishermen filed their lawsuit in February 2020.  Further information is available here and here.

Media Contact: James Valvo, james.valvo@causeofaction.org | (571) 482-4182

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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.

Learn More

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