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09/6/2017

Trump’s monument review is as secretive as Obama’s designations

Trump’s monument review is as secretive as Obama’s designations

By Kara McKenna, counsel at Cause of Action Institute

Presidential use of the Antiquities Act is ripe for abuse, as major decisions impacting vast public lands, natural resources, property rights, livelihoods and private industry are left to the sole discretion of the president. After such a unilateral designation, the president does not need to substantiate his decision in any meaningful way, beyond the use of a few magic words on the face of the proclamation.

It seemed like a positive step when President Trump in April issued an executive order seeking public input for a review of national monument designations over the last two decades. But it now appears that any hope for additional transparency may have been premature. Read the full article at The Hill

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07/13/2017

CoAI Seeks Supreme Court Review of Job-Killing Fishing Regulation

High Court may be last hope to halt regulation that will put 60 percent of New England ground fishermen out of business

Washington, D.C. – Cause of Action Institute (“CoA Institute”) has filed a petition for writ of certiorari urging the U.S. Supreme Court to review the legal arguments of our clients, groundfisherman David Goethel and a group of Northeast fishermen, who sued the U.S. Department of Commerce after the agency shifted the costs for at-sea monitors onto industry. At more than $700 per day at sea, these costs are more than double what many small-boat fishermen take home from an average day of fishing.

Both the U.S. District Court for New Hampshire and the First Circuit Court of Appeals dismissed the case, ruling that the fishermen’s suit was untimely based on when the rule was first disseminated, even though the regulatory costs were not shifted to industry until several years later.

CoA Institute Vice President Julie Smith: “Our clients deserve an opportunity to be heard on the merits. Fishermen who have done nothing wrong should not be put out of business by an unlawful regulation.”

The petition states:

“The First Circuit, in defiance of this Court’s precedents, refused to reach the merits of the fishermen’s challenge, holding that even though the fishermen would certainly face enforcement action for failure to comply with the Government’s unlawful monitoring requirement, they missed any opportunity to seek preenforcement review of that regulation. By requiring Petitioners to, quite literally, ‘bet the boat,’ the First Circuit has committed clear error in ignoring this Court’s precedents on pre-enforcement review…

“Here, the Government waited five years before deciding to implement the industry-funding requirement for the groundfish At-Sea Monitoring Program. Petitioners promptly filed suit, but, so far, have been denied a decision on the merits of their case. This Court should grant review to settle these . . . important questions of law and vindicate its own precedents, which will give the New England fishing industry a second chance at life.”

David Goethel: “After 30 years of fishing, I can’t afford to fish any longer if I’m forced to pay for at-sea monitors. These regulatory costs will devastate small boat fishermen like myself. The Supreme Court may be our last hope to save an industry that for centuries has provided a living for fishermen in New England.”

Northeast Fishery Sector 13 Manager John Haran: “The fishermen in my sector can’t sustain this industry funding requirement and many will be put out of business if this mandate remains in place. The livelihoods of generations of proud fishermen in New England are at stake.”

Case Background:

In November 2015, the Department of Commerce finally announced the date by which sector fishermen, who fish for cod, flounder and certain other ground fish, 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 Northeast fishing industry, at the price of many jobs and family livelihoods.

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 Circuit Court 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, despite the fact that the requirement never enforced for nearly half a decade.  Interestingly, while the First Circuit did not address the merits of the case, it did emphasize the devastating economic impacts of the regulation and, in a rare move, urged congressional action to clarify the law regarding who should pay for the at-sea monitors.

To learn more, visit the Cause of Action Institute website.

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

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07/6/2017

Is NOAA deleting records? CoA Institute sues for important communications about fisheries regulation

In passing the Freedom of Information Act (“FOIA”) and the Federal Records Act, Congress intended for internal agency communications to be logged and, in many cases, retrievable under the FOIA.  Attempts by agencies and officials to evade such transparency violate the core principles of government accountability and recently resulted in a highly publicized scandal that enveloped Secretary Hillary Clinton’s campaign for president.

So in the wake of the Clinton e-mail scandal, have agencies learned their lesson?  For the National Oceanic and Atmospheric Administration (“NOAA”), this doesn’t appear to be the case.  Cause of Action Institute (“CoA Institute”) recently submitted multiple FOIA requests for NOAA’s records retention policies and internal communications from the time period surrounding the recent New England Fishery Management Council (“NEFMC”) meetings.  In addition to asking for emails, CoA Institute also requested Google Chat/Google Hangout (“GChat”) records.

Anyone who regularly uses G-Mail is familiar with GChat and its “off the record” feature, which disables message logging.  Unfortunately, a 2012 NOAA memo indicates that NOAA enabled the “off the record” feature agency-wide.  There’s no indication that NOAA is using any other method to log these communications.  This likely violates the Federal Records Act and frustrates public efforts to file FOIA requests seeking to better understand government decision-making.

CoA Institute is interested in the communications between NOAA officials during the recent NEFMC meetings.  These meetings were important because, at their conclusion, the NEFMC voted to adopt an amendment that would extend coverage of “at-sea monitors” on the fishing industry.  This could have devastating effects on the ability of small-boat fishermen to continue to pursue their livelihoods.  This amendment now goes to the Secretary of Commerce for his approval, and it is critical that the public understand the thought process used by NOAA to get this result, which would be revealed by reading its internal communications.

NOAA’s response to CoA Institute’s FOIA request was unusual.  First, it declared the request was non-billable, meaning CoA Institute would not need to pay fees for compiling the information.  This is appropriate given both the public interest in these records and CoA Institute’s status as a news media requester organization.  NOAA later rescinded its non-billable determination and demanded CoA Institute submit more information relevant to the fee waiver request.  CoA Institute did so, but, to date, NOAA has not responded.  In our letter, we express concern with how NOAA is handling this request:

If NOAA is concerned that records responsive to this request will cast the agency in an unflattering light or reveal that its recordkeeping practices are in violation of law, it cannot weaponize fee waivers to prevent disclosure. To do so would not only be a violation of the law, but it would strike a grave blow to transparency.

With today’s lawsuit, NOAA has no choice but to produce the requested records.  If the agency is unable to locate any GChat records because they were improperly deleted, NOAA must publicly admit this, immediately take steps to recover the records, and change its policies for future record retention to comply with the law.

Eric Bolinder is Counsel at Cause of Action Institute.

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07/6/2017

CoAI Sues NOAA for G-Chat Records Surrounding Controversial Amendment to Expand Industry-Funded At-Sea Monitoring

Unlawful agency directive appears to greenlight concealed communications on internal messaging platform

Washington D.C. –Cause of Action Institute (“CoA Institute”) today filed a lawsuit against the National Oceanic and Atmospheric Administration (“NOAA”) for Google Chat or Hangouts communications from the New England Fishery Management Council’s (“NEFMC”) April 2017 meeting. The suit also seeks internal guidance on retention of Google Chat records on the agency’s internal messaging platform. NOAA failed to respond to two Freedom of Information Act (“FOIA”) requests submitted in May for these records.

The records sought by CoA Institute include guidance from NOAA’s Office of General Counsel for the retention of instant messages through the “Google Chat” or “Google Hangouts” feature of NOAA’s internal Unified Messaging System. According to a March 2012 NOAA handbook, employees were instructed that these messages “will be considered ‘off the record’ and will not be recorded in anyway.”

CoA Institute Vice President Julie Smith: “NOAA appears to have created an internal messaging platform to hide records from public disclosure. Any directive to make certain communications be considered ‘off-the-record’ clearly violates transparency laws.  Americans have a right to know how decisions are made that could jeopardize their livelihoods.”

The lawsuit also seeks all communications sent or received by employees of NOAA’s NEFMC who attended the April 18–20, 2017 meeting. During this meeting, the NEFMC approved a controversial amendment to expand the use of industry-funded at-sea monitors to the herring fishery and to prepare for its further expansion through all regional fisheries.

CoA Institute submitted a regulatory comment opposing the so-called Industry-Funded Monitoring Omnibus Amendment due to negative economic impacts that threaten the livelihoods of countless small-business fishermen. The cost for a monitor under the amendment would cost fishermen more than $700 per day at sea.  That would exceed the revenue a fisherman typically lands from his daily catch. The Secretary of Commerce has since commenced a review of the rule for compliance with federal law.

The full complaint is available here.
The two earlier FOIA requests are available here and here.

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

 

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05/23/2017

High Seas and Misdirection: The Antiquities Act is not Among the Statutory Schemes that Govern U.S. Internal Waters, Oceans, and Coasts (Part 2)

Yesterday we provided a synopsis of certain statutory and regulatory schemes that govern America’s coastal and internal waters and reviewed the definitions of the jurisdictional zones that apply to United States’ waters. Today we continue our discussion of how the various schemes apply in the jurisdictional zones.

SOURCE: U.S. Commission on Ocean Policy, 2004.

A full description of all programs that touch on the jurisdictional waters of the United States and the activities that take place thereon is beyond the scope of this analysis. However, the following programs should inform—and in some cases are legally necessary to—any change in status relating to United States’ coastal and internal waters.

Land and Water Management Laws

The Coastal Zone Management Act (“CZMA”) was enacted to “preserve, protect, develop, and where possible, to restore or enhance, the resources of the nation’s coastal zone for this and succeeding generations;” with the purpose, “to encourage and assist the states to exercise effectively their responsibilities in the coastal zone through the development and implementation of management programs to achieve wise use of the land and water resources of the coastal zone, giving full consideration to ecological, cultural, historic, and esthetic values as well as the needs for compatible economic development.”

The CZMA is administered by the National Oceanic and Atmospheric Administration (“NOAA”) and thus falls under the jurisdiction of the Department of Commerce. Under the CZMA, states are incentivized to develop coastal management programs with the assurance that, with some exceptions, federal actions will be constrained to those that are consistent with state-developed and federally-approved coastal management programs (the “federal consistency” provision). More information about the CZMA may be found on NOAA’s website, and individual state coastal management programs may be accessed here. State coastal management programs can be quite extensive, addressing such diverse issues as seafloor and habitat mapping, flooding and erosion, lake access, education, beach management, seismic mapping, and protecting natural habitats and wildlife.

With the exception of Alaska, all 35 coastal and Great Lakes states and territories participate in the National Coastal Zone Management Program.

The Clean Water Act (“CWA”) was enacted to “restore and maintain the chemical, physical, and biological integrity of the Nation’s Waters.” The goals of the CWA were to make all waters safe for fish and people, and to eliminate the discharge of pollutants into the waters of the United States.[1] Amendments to the Act provide for estuary management and protection, with special programs authorized for the Chesapeake Bay, the Great Lakes, and Long Island Sound. The CWA is administered primarily by the Environmental Protection Agency (“EPA”), which has established a similar program for the Gulf of Mexico.[2] States that have a federally-approved coastal management program must develop and submit a coastal nonpoint[3] pollution control plan to NOAA and the EPA for approval, identifying land uses that contribute to coastal water quality degradation and critical coastal areas.[4]

The Submerged Lands Act (“SLA”) established in the states: “(1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, and they are, subject to the provisions hereof, recognized, confirmed, established, and vested in and assigned to the respective States.”[5] Natural resources, for purposes of the SLA, include oil, gas, and other minerals; and fish, shellfish, sponges, kelp, and other marine life; but do not include the use of water for the production of power.[6]

The Outer Continental Shelf Lands Act (“OCSLA”) established federal jurisdiction over the submerged lands “lying seaward and outside of” lands subject to the Submerged Lands Act extending “of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control.” The Act purported to extend limited-purpose constitutional and political jurisdiction over the area:

The Constitution and laws and civil and political jurisdiction of the United States are extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, or any such installation or other device (other than a ship or vessel) for the purpose of transporting such resources, to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State: Provided, however, That mineral leases on the outer Continental Shelf shall be maintained or issued only under the provisions of this subchapter.[7]

Under the Act, the Secretary of the Interior is authorized to develop oil, gas, and other mineral deposits via permitting and leasing; and is also charged with suspending or prohibiting such activity “if there is a threat of serious, irreparable, or immediate harm or damage to life (including fish and other aquatic life), to property, to any mineral deposits (in areas leased or not leased), or to the marine, coastal, or human environment.” Activity under this Act must be coordinated with the CZMA and requires the Secretary to coordinate with other agencies and the affected states.[8]

Fishery and Species Management Laws

In 1976, the Fishery Conversation and Management Act, now the Magnuson-Stevens Fishery Conservation and Management Act (“Magnuson-Stevens Act”), extended exclusive U.S. fishery jurisdiction to 200 miles offshore, covering the area that later became the EEZ.[9] The Magnuson-Stevens Act established eight regional fishery management councils.

The Regional Councils are composed of members representing commercial and recreational fishing, environmental, and academic interests, as well as state and federal government. Regional Councils are required to:

  • Develop and amend Fishery Management Plans
  • Convene committees and advisory panels and conduct public meetings
  • Develop research priorities in conjunction with a Scientific and Statistical Committee
  • Select fishery management options
  • Set annual catch limits based on best available science
  • Develop and implement rebuilding plans

The Magnuson-Stevens Act has been amended by the Sustainable Fisheries Act of 1996 and the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, which were intended to strengthen sustainable fish stock requirements; promote market-based management strategies, such as catch shares; strengthen the role of science through peer review; and enhance international fisheries sustainability. Catch shares are exclusive allocations of fishing rights that are provided by the fishery management council and are transferable in accordance with the policy and criteria established by the controlling fishery management council.

Once a Fishery Management Plan has been written to include the ten national standards and research about the fishery, it must be submitted to the Secretary of Commerce for approval.[10] The Secretary also has independent authority to prepare a Fishery Management Plan for a region.[11]

The focus of the Magnuson-Stevens Act is on maintaining sustainable fisheries. Accordingly, the Magnuson-Stevens Fishery Act is administered by the National Marine Fisheries Service within the Department of Commerce. Additional information on the Magnuson-Stevens Act may be found here.

The Marine Mammal Protection Act (“MMPA”) differs from the Magnuson-Stevens Act in that it focuses on the health of marine mammal populations rather than on fishing yield. Subject to a few exceptions, the MMPA places a moratorium on the taking and importation of marine mammals and marine mammal products.[12] The MMPA is administered by two agencies—the National Marine Fisheries Service and the U.S. Fish and Wildlife Service within the Department of the Interior. The MMPA does not impose management responsibility on states or localities; however, a state may enter into a cooperative agreement for delegation of the administration and enforcement of the MMPA.[13]

The Endangered Species Act (“ESA”) also focuses on conservation of species and, like the MMPA, is administered by the National Marine Fisheries Service and the U.S. Fish and Wildlife Service.[14] The ESA does not mandate any permanent management structure that involves the states. However, Section 6 of the ESA does provide a mechanism for cooperation between the Fisheries Service and States in which the Fisheries Service is authorized to enter into agreements with any state that establishes and maintains an “adequate and active” program for the conservation of endangered and threatened species. Once a State enters into such an agreement, the Fisheries Service is authorized to assist in, and provide Federal funding for, implementation of the State’s conservation program.

The National Marine Fisheries Service also has obligations under the Fish and Wildlife Coordination Act and National Environmental Policy Act to consult, coordinate, and implement regulations regarding essential fish habitat with other federal agencies.[15]

These statutory frameworks are intended to work together in managing and protecting the coastal waters of the United States, in light of the interests of the coastal states, the preservation of marine life, natural resource development, and the interests of stakeholders such as fishermen, scientists, visitors, and foreign entities engaged in traditional uses of the seas (such as the right of safe passage). To achieve that purpose, coordination and accommodation is necessary to develop the comprehensive management plans required by, for example, the Coastal Zone Management Act and the Magnuson-Stevens Fishery Conservation and Management Act. Notably, this extensive coordination and balancing of local, federal, and international interests does not contemplate, and can be disrupted by, the sudden withdrawal of territory from the statutory schemes under the Antiquities Act; nor do these Acts include specific provisions for addressing lost rights; displaced scientific, commercial, or environmental planning; or conflict arising from a sudden change in jurisdiction between agencies.

Our series will continue next week with an update on the status of President Trump’s April 26 Antiquities Act Executive Order.

Any questions, commentary, or criticisms? Please e-mail us at kara.mckenna@causeofaction.org and/or cynthia.crawford@causeofaction.org

Cynthia F. Crawford is a Senior Counsel at Cause of Action Institute.
Kara E. McKenna is a Counsel at Cause of Action Institute. You can follow her on Twitter @Kara_McK

[1] 33 U.S.C. §1251.

[2] 40 C.F.R. 230.

[3] Nonpoint pollution refers to runoff from rain or snow that picks up and carries away natural and human-made pollutants into coastal and internal waters

[4] 16 U.S.C. §1455b.

[5] 43 U.S.C. §§1311.

[6] 43 U.S.C. §1301.

[7] 43 U.S.C. §1333(a).

[8] 43 U.S.C. §1334.

[9] 16 U.S.C. § 1801-1882.

[10] 16 U.S.C. § 1854(a).

[11] 16 U.S.C. § 1854(c).

[12] 16 U.S.C. § 1371.

[13] 16 U.S.C. §1379(a).

[14] 16 U.S.C § 1531 et seq.

[15] Review of U.S. Ocean and Coastal Law, Appendix 6, U.S. Commission on Ocean Policy, 2004, at 46.

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04/26/2017

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

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04/18/2017

Court of Appeals Upholds Decision on Reg That Will Put 60 Percent of New England Ground Fishermen Out of Business

Judges refuse to consider legal arguments, but implore Congress to clarify the law about who should pay for at-sea monitors 

Washington, D.C. – On Friday, the U.S. First Circuit Court of Appeals upheld the District Court’s ruling last summer that a lawsuit filed by Cause of Action Institute (CoA Institute) on behalf of Plaintiffs David Goethel and Northeast Fishery Sector 13 against the U.S. Department of Commerce should be dismissed.

In its opinion, the Court found that the fishermen’s suit was untimely and therefore did not consider the Plaintiff’s legal arguments that requiring fishermen to pay for monitors is against the law.  However, in a rare move, the judges highlighted the devastating economic impacts of the regulation in question, and urged Congress to clarify the law and who should pay for the at-sea monitors.

“I am disappointed by the decision,” Goethel said. “But I’m hopeful that Congress will heed the Court’s direction and clarify the law. It is the government’s obligation to pay for these at-sea monitors. I’ve made a living fishing in New England for more than 30 years and I have never exceeded a single fishing quota. But I can’t afford to fish if I am forced to pay for at-sea monitors.  I’m grateful to Cause of Action Institute for bringing this case forward, and I remain hopeful that Congress will clarify the law to ensure the New England groundfishing industry is not regulated out of existence.”

Northeast Fishery Sector 13 Manager John Haran said, “I’m disappointed that timeliness of the case was the Court’s deciding factor and not the merits of our arguments. The fishermen in my sector can’t sustain this industry funding requirement and many will be put out of business if this mandate remains in place.”

Cause of Action Vice President Julie Smith said, “We are disappointed that the First Circuit did not reach the merits of our case.  While we respect the opinion of the First Circuit, the federal government is clearly overextending its regulatory power and is destroying an industry.  We are considering all of our legal options for judicial review on the merits.  We also encourage Congress and the Administration to act swiftly to ensure that these unlawful regulatory costs do not put an end to the tradition of generations of proud fishermen in New England.”

Background:

In December 2015, the Department of Commerce ordered that fishermen who fish for cod, flounder and certain other fish in the Northeast United States not only must carry National Oceanic and Atmospheric Administration (“NOAA”) enforcement contractors known as “at-sea monitors” on their vessels during fishing trips, but must pay out-of-pocket for the cost of those monitors.  This “industry funding” requirement would devastate the Northeast fishing industry, at the price of many jobs and livelihoods.  The opinion by the First Circuit upholds the lower court’s decision and allows this job-killing mandate to remain in place.

To learn more, visit the Cause of Action Institute website.

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

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