Law

June 4, 2014 — An isolated Alaska fishing community filed a federal lawsuit on Wednesday challenging a decision by Interior Secretary Sally Jewell that stopped it from building a road through a wildlife preserve to an all-weather airport.

King Cove, in the Aleutian Islands chain, is inaccessible by land. It is seeking to reverse Jewell's decision last December that halted the community's a plan for the 10-mile (16-km) road using land exchanged as part of a 2009 plan approved by Congress.

Jewell cited the potential for "irreversible damage" to wildlife in the Izembek National Wildlife Refuge, home to many shorebirds and waterfowl, posed by the gravel road that would have linked King Cove to the airport in Cold Bay.

No roads lead in or out of King Cove, a coastal community of about 1,000 residents where the chief industry is fishing.

Supporters of the road cite access to healthcare as a top concern. Since December, several King Cove residents have needed emergency medical evacuation by either the U.S. Coast Guard or private helicopters, often in extreme weather conditions.

Read the full story at the Chicago Tribune 

 

NEW BEDFORD, Mass., — June 3, 2014 — Eastern Fisheries, Inc. has settled a lawsuit brought by the family of a fisherman who died in a January 2011 fall from a Hassey Street dock that was slippery with snow and ice.

The firm agreed to pay the family of Guiseppi Cracchiolo of Gloucester $900,000 in the case, but only after a 10-day trial in U.S. District Court in Boston. The settlement came during jury deliberations.

The O'Hara Corp., owner of the fishing boat Sunlight, had earlier settled with the family for $450,000 without going to trial.

In its defense, Eastern Fisheries contended that the accident was partly the result of an act of God and the fisherman's own negligence.

Police surveillance video showed the fisherman trying to pull himself up onto a platform to board the vessel when he slipped on the ice and fell 20 feet into the freezing harbor. Police said he had returned to the boat just after 1 a.m. after a night out socializing.

Read the full story at the New Bedford Standard-Times 

May 22, 2014 — A group seeking to develop a massive gold-and-copper prospect near the headwaters of a world-premier salmon fishery in Alaska is suing the U.S. Environmental Protection Agency for taking steps that could result in development being restricted or prohibited.

The Pebble Limited Partnership alleges in its lawsuit that the EPA exceeded its authority when it initiated the rarely used process under the Clean Water Act after concluding that large-scale mining in the Bristol Bay watershed posed significant risks to salmon. Pebble fears the agency will kill the project before mine plans are finalized or it's evaluated through the permitting process.

EPA Administrator Gina McCarthy said in February that the agency started the process because the Bristol Bay fishery "is an extraordinary resource and is worthy of out-of-the-ordinary agency actions to protect it." She also stressed that no final decision had been made.

The Pebble Partnership asserts that a veto of the project would be an "unlawful revocation" of Alaska's right to allow development on state lands. The proposed mine is on state lands.

The EPA has "repeatedly ignored" comments from Pebble, the state and others "about this massive federal overreach," Pebble Partnership CEO Tom Collier said in a statement. If the EPA ultimately vetoes the project before a development plan is submitted or evaluated through the permitting process, "the precedent established will have significant long-term effects on business investment in this state and throughout the country," he said.

Collier said the group sued to get the agency's attention and "bring some rational perspective back to the U.S. permitting process."

Read the full story from the Associated Press at ABC News

May 20, 2014 — A coalition of environmental groups that sued the Environmental Protection Agency (EPA) to force it to issue standards for industrial cooling water intake devices is likely to go back to court to challenge the regulation.

Lawyers told reporters that the rule issued Monday does not do enough to change the status quo, in which states exercise nearly all authority over power plant and factory intake devices that can harm fish.

“There is a very strong likelihood that we’ll be back in court to challenge the rule, because it doesn’t come close to what the Clean Water Act requires,” Reed Super, an attorney for the Riverkeeper coalition, said Tuesday.

Steve Fleischli, an attorney for the Natural Resources Defense Council, said the “EPA has promulgated a largely worthless rule that will do almost nothing to protect our waterways and our fisheries from power plants.”

Riverkeeper sued in 1992, two decades after the Clean Water Act passed with a section that required the EPA to set standards for water intake systems. The group agreed to stop its legal action when the government agency promised to take action.

Cooling systems that pass water through once and put it back into a river, lake or other body of water can harm fish and other aquatic life by either taking them into the system, where the heat kills them, or trapping them at the intake. The EPA estimated that 2.1 billion fish, crabs and shrimp are killed each year in the cooling systems.

Read the full story at The Hill

May 14, 2014 — A Knox County jury deliberated for 20 minutes Wednesday morning before finding a Cushing lobsterman not guilty of criminally threatening two men in another boat.

Outside the courtroom after the verdict, Gary Jones, 52, who faced up to five years in prison on the felony charge, called the Department of Marine Resources corrupt and said changes in the agency were needed. He did not elaborate or offer further comment.

But during his testimony Tuesday, Jones said he has had to deal with harassment and threats from Yeaton family members for 15 years and claimed the state has not done anything to help.

“For 15 years this has happened and they have said there is nothing they can do,” Jones said.

Assistant District Attorney Jeffrey Baroody said in his closing argument Wednesday that Jones was a very hot-headed person who had no faith in law enforcement.

“He was ready to take the law into his own hands,” Baroody said, by bringing a 12-gauge shotgun out to a verbal dispute on the waters off Cushing on Oct. 10, 2012.

Jones was accused of threatening Jeremy Yeaton and Justin Brazier with the shotgun and firing two shots.

Read the full story at the Bangor Daily News

CHARLESTON, W.Va. (AP) — May 8, 2014 — The West Virginia Supreme Court has revived a Pennsylvania agency's lawsuit against a coal company accused of causing a massive fish kill.

The Pennsylvania Fish and Boat Commission claims discharges from Consol Energy Inc. mines in West Virginia killed about 43,000 fish and other aquatic life on a 30-mile stretch of Dunkard Creek spanning the two states. It estimated Pennsylvania's loss from the 2009 fish kill at $1 million.

Read the full story from the Associated Press at the New Jersey Herald

April 28, 2014 — Monday morning the U.S. Supreme Court granted cert in Yates v. United States, a case challenging the application of a provision of the Sarbanes-Oxley law to a fisherman’s destruction of illegally caught fish.  Yates is a potentially important case concerning statutory interpretation and the expansion of federal criminal law.

At issue in Yates is 18 U.S.C. §1519 which makes anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation guilty of a federal crime.  The provision is often referred to as the “anti-shredding” provision because it was intended to criminalize the destruction of records that could reveal fraudulent activity by corporate managers and the like.

Read the full story from The Washington Post

April 23, 2014 — For the past several years, there has been a simmering dispute — sometimes boiling — between Maine state officials and the Passamaquoddy Tribe over the elver fishery.

The state, citing concerns about the number of American eels, has sought to limit the tribe’s ability to issue licenses to its members for fishing elvers, or baby eels. There have been closed-door negotiations between the two sides which nearly resulted in an accord earlier this year, but they remain divided. Because of concerns about the safety of their members, Passamaquoddy officials have said, they reluctantly agreed on the eve of opening day to set individual quotas for tribal fishermen for the 2014 season.

But this is a short-term maneuver, tribal officials have said. Long term, they plan to continue the fight on a broader scale.

“The Passamaquoddy Tribe needs to move this debate beyond Maine,” Fred Moore III, the tribe’s fisheries coordinator, said Tuesday. “It’s too late to stop the natives now. We’ve woken up.”

That’s why, Moore said during a phone interview this week, he is visiting the Unkechaug Indian Nation on Long Island in New York, where state officials there accuse him of poaching baby eels.

Read the full story at the Bangor Daily News 

 

April 23, 2014 — As Stetson University College of Law Professor Ellen Podgor notes over at the White Collar Crime Prof Blog, that’s the question in Yates vs. U.S., an appeal to the U.S. Supreme Court of the conviction of a commercial fisherman accused of destroying undersized fish he caught in the Gulf of Mexico.

John L. Yates was convicted of violating 18 U.S.C. § 1519, better known as the “anti-shredding provision” of Sarbanes-Oxley designed to discourage people from engaging in the sort of evidence-destruction frenzy that took place in the waning days of Enron. But fish?

Yates, it seems, was busted by the Florida Fish & Wildlife Commission for having 72 undersized red grouper on his vessel, and issued a civil citation. But when he returned to port, there were only 69 on board. He was accused of throwing three of the shorties overboard — shredding the evidence, in the eyes of an aggressive prosecutor who indicted him several years later.

Yates argued the Florida game wardens never measured his catch the right way in the first place. But a jury disagreed, convicting him of two criminal counts.  Specifically, the jury said Yates “did knowingly destroy, conceal and cover up `undersized fish’ with the intent `to impede, obstruct and influence the investigation and proper catching of red grouper under the legal minimum size limit,’” in violation of the anti-shredding act. No shredder need be involved, apparently.

Read the full story at Forbes 

 

April 16, 2014 — The following was released by NOAA:

In response to a recent court order, we are notifying all groundfish sector fishermen and the public that using carryover catch from fishing year 2012 in the current fishing year (2013) may now be subject to a pound-for-pound accountability payback if the overall annual catch limit (ACL) for a stock is exceeded.  This is a fundamental change from current regulations that state that carryover catch in fishing year 2013 is not counted against a sector’s annual catch entitlement (ACE) or used to determine accountability measures if the overall ACL is exceeded.

This change in the current carryover measures results from a decision of the U.S. District Court for the District of Columbia issued on April 4, 2014.  The case is Conservation Law Foundation v. Pritzker et al. which challenged the Framework Adjustment 50 rule for 2013 carryover accounting.  The Court determined that the Framework Adjustment 50 approach for accounting for carryover in the 2013 fishing year violates the Magnuson-Stevens Act.  Based on this decision, the Court ordered NMFS to delete the 2013 carryover measures and implement new ones that incorporate accountability for any overages of the overall 2013 ACLs resulting from carryover catch.  The court ruling can be found on the U.S. District Court for the District of Columbia web site:  https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0821-29

Read the full release from NOAA