Law

SAN FRANCISCO, Calif. (AP) –- April 16, 2014 — An appeals court said Wednesday that federal officials should have consulted wildlife agencies about potential harm to a tiny, threatened fish before issuing contracts for water from the Sacramento-San Joaquin Delta.

An 11-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco ruled that the U.S. Bureau of Reclamation violated the Endangered Species Act when it failed to consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service in renewing 41 contracts a decade ago. The appeals court sent the case back to a trial judge for further proceedings.

The ruling arises from one of several lawsuits filed by the Natural Resources Defense Council and other environmentalists seeking to protect the Delta smelt. The ruling won’t affect water flows because protections for the smelt were kept in place during the lawsuit.

“This about how we are going to manage the water in the future,” said Douglas Obegi, a lawyer with the Natural Resources Defense Council.

Read the full story from the Associated Press at CBS Sacramento

April 11, 2014 — The Center for Biological Diversity has filed a legal petition urging the National Marine Fisheries Service (NMFS) to prohibit fishing for Pacific bluefin tuna.

The NGO highlights that the population of this once-abundant fish has suffered a 96 per cent decline since large-scale fishing began, triggering a requirement for the Pacific Fishery Management Council (NMFC) to recommend new regulations for managing Pacific bluefin tuna by 8 April. But claims that the council has declined to take any action to help bluefin.

“Despite the bluefin tuna’s great speed and deep-diving, it can’t escape the world’s insatiable appetite for sushi,” said Center Attorney Catherine Kilduff. “Saving Pacific bluefin tuna requires drastic action at all levels, starting by protecting them in the feeding grounds off California and Mexico.”

The petition calls for the NMFS to add Pacific bluefin tuna to a list of imperiled species that must be released immediately if caught, including great white sharks and other fish vulnerable to steep declines from fishing.

Read the full story at FIS 

 

NEW BEDFORD — April 12, 2014 — Another lawsuit challenging NOAA Fisheries' rulemaking has been thrown out of federal court, this time in Boston.

Judge Richard G. Stearns of the Massachusetts federal district court dismissed state Attorney General Martha Coakley's 2013 challenge to the cod quotas. Fishermen say they are so low that they have wiped out their ability to catch other species of fish while getting cod as bycatch.

Coakley issued a statement expressing disappointment with the decision.

"There is no question in my mind that our fishing communities have been subject to over-burdensome regulations and overzealous enforcement by the federal government," she said. "We will continue to fight for our fishing communities. We are reviewing our options for appeal in this case."

Coakley took aim at the scientific data used by NOAA fisheries to set the allocations, charging that NOAA rejected an industry offer to conduct surveys that might have been at odds with NOAA's official findings.

Read the full story at the New Bedford Standard-Times 

 

CENTRAL ISLIP, N.Y. — April 11, 2014 — A commercial fisherman from New York has pleaded guilty to selling tons more fish than is legally allowed.

Federal prosecutors on Long Island recommended Friday that Anthony Joseph serve up to 33 months under a plea deal. He faces up to 20 years for each of the four fraud counts at his October sentencing.

Read the full story from the Associated Press at The Republic

April 11, 2014 — U.S. District Court Judge Richard G. Stearns has ruled in favor of NOAA in the lawsuit Massachusetts filed last year charging that NOAA failed to utilize the best science available when instituting draconian cuts to groundfish catch limits and failed to consider the adverse economic impact of those cuts.

Stearns’ ruling for summary judgment on behalf of NOAA closes the case on the lawsuit initially filed last May by Massachusetts Attorney General Martha Coakley and joined by New Hampshire last fall as an intervening plaintiff.

The ruling stated that Massachusetts and New Hampshire failed to make a convincing case in any of their challenges under the current standards applied to NOAA’s National Marine Fisheries Service for the methodology and accuracy of the science employed in developing the stock assessments that led to the cuts.

“The Commonwealth has failed to clear the ‘high hurdle’ of proving that NMFS ignored ‘superior or contrary’ scientific information in performing its stock assessments as is required (for) a violation,” Stearns wrote in his opinion.

Fishing advocates yesterday said they found the ruling troubling on several fronts, saying it showed undue deference to the federal regulators on many of the scientific and technical issues and provides NOAA with extraordinary latitude in future applications of the “best science available” mandate.

“In our brief, we cited Justice (Antonin) Scalia’s view that an amount of deference is a permission slip for an arrogation of power,” said Brian Rothschild, president and chief executive officer of the Center for Sustainable Fisheries, which joined the state of Rhode Island in filing amicus briefs on behalf of the plaintiffs. “The problem is that in cases like this, judges are left with really difficult technical decisions. That’s the reason for the deference.”

Read the full story at the Gloucester Daily Times

 

PORTLAND, Maine — April 14, 2014 — A judge has ruled that the National Marine Fisheries Service violated federal law when it allowed New England fishermen to carry uncaught groundfish allocation into the following year.

The service made the adjustment as part of a group of changes to New England’s Multispecies Fishery Management Plan in 2013. Judge James E. Boasberg of U.S. District Court for the District of Columbia ruled April 4 the carryover provision increases likelihood that ‘‘environmental harm, in the form of excessive fishing’’ would take place.

Read the full story by the Associated Press at The Boston Globe 

 

 

April 10, 2014 — A federal district court judge has ruled that NOAA fisheries regulators played word games to explain an illegal quota system in the current fishing year.

Judge James E. Boasberg of the U.S. District Court in Washington, D.C. found that the practice of "rolling over" up to 10 percent of unused quota into the following fishing year went too far in the current fishing year, which ends this month.

The reason, he said, is that the added quota from the rollover brought the next year's total quota over the legal limit set by science advisers.

The judge wrote in his decision that NOAA tried to avoid accountability by naming the rolled over quota as something other than "annual catch limits," or ACLs.

The ACL added to the rollover is termed "total potential catch" by NOAA.

"That's right. According to the service, the statutory limits on its authority apply only when it says the magic words. Express limits set by Congress are, under the service's theory, mere verbiage, easily circumvented through clever use of a marine thesaurus," the judge wrote.

A spokeswoman for NOAA said that the agency has not yet decided what to do about the ruling, which comes just three weeks from the end of the current fishing year.

Read the full story at the New Bedford Standard-Times

April 8, 2014 — Environmentalists prevailed in one of two rulings on commercial fishing in New England, with a federal judge rejecting a regulation that effectively allowed fishermen to exceed their annual catch limit.

In the first of two of related decisions, U.S. District Judge James Boasberg in Washington, D.C., dismissed the Conservation Law Foundation's claims that the New England Fishery Management Council and other federal agencies violated their own statutes with a decision that abandoned environmental protection in favor of short-term commercial gains.

The dispute between the Boston-based environmentalists and the federal agencies began in 2013, after the council sought to amend its earlier reduction in the allowable annual catch for local fishermen.

The agency's intent in adopting that restriction was to prevent devastating overfishing in the region, but it soon came to believe that the regulation might be overly burdensome on the local fishing industry.

To ease that burden, the council proposed "Framework 48," an adjustment that would allow local fishermen to apply for permission to enter areas that had previously been closed to commercial fishing, subject to certain limitations.

The Conservation Law Foundation sued the council, the U.S. Department of Commerce, the National Oceanic and Atmospheric Administration and the National Marine Fisheries Service, claiming the action violated the Magnuson-Stevens Fishery Conservation and Management Act (MSA), and the National Environmental Policy Act (NEPA).

In the case of the former, the environmentalists argued that the agencies should have used a more formal process to open the protected areas to commercial fishing.

They also argued that the NEPA requires the defendants to produce a more detailed environmental analysis before they implemented Framework 48.

Read the full story at the Courthouse News Service

April 8, 2014 — There was mixed reaction today from environmental advocates following a couple of recent decisions by a federal judge regarding New England's groundfishing industry. The decisions – issued Friday by U.S. District Court Judge James Boasberg – were in response to two lawsuits introduced last year by the Conservation Law Foundation, or CLF, and Earthjustice – both environmental law firms. Tom Porter explains.

Greg Cunningham is a senior attorney with the CLF. He says one of Judge Boasberg's rulings upholds a federal law designed to prevent overfishing of New England cod, haddock, flounders and other groundfish.

"Our goal is to achieve rebuilding of those stocks that are currently overfished and to avoid overfishing of stocks that aren't at this juncture," Cunningham says.

The judge ruled that regulators at the National Marine Fisheries Service were effectively allowing harvesters to potentially exceed their scientifically-recommended catch limits by adding on a so-called "carry-over" quota of uncaught fish from the previous year.

In his ruling, Judge Boasberg said this procedure "resulted in catch limits above the statutorily permissable levels."

Read the full story and listen to the audio from The Maine Public Broadcasting Network

April 8, 2014 — Massachusetts and New Hampshire have picked up another ally in their civil lawsuit in federal court that charges that NOAA disregarded the devastating economic impact of the withering cuts in allowable catch limits for cod and other groundfish it instituted last May.

The Center for Sustainable Fisheries, the New Bedford-based fisheries advocacy group, has filed an amicus brief urging the court grant summary judgment on behalf of plaintiffs Massachusetts and New Hampshire, charging National Oceanic and Atmospheric Administration’s inability to utilize the best science available led to an “arrogation of power where basic principles of science and the law are ignored to further an agency agenda at the expense and livelihood of fishing communities.”

The center’s support comes nearly a year after the suit was filed but provides Massachusetts and New Hampshire with enhanced scientific arguments for its claims that NOAA did not pursue or accept the best available science last May when it established the increasingly draconian three-year allowable catch limits.

“This amicus brief further displays the broad support that we have received to prevent NOAA from imposing catch limits that will devastate fishing communities and fishing families in the commonwealth,” said Christopher M. Loh, spokesman for Massachusetts Attorney General Martha Coakley.

Brian Rothschild, president and chief executive officer of the center, said his organization filed the amicus brief at the request of Coakley.

“She thought we would add to the commonwealth’s case by providing our point of view in the areas of science and policy,” Rothschild said Monday.

The center joins the state of Rhode Island as the second party to file an amicus brief in the lawsuit, initially filed by the Commonwealth of Massachusetts last May 30 in U.S. District Court in Boston. New Hampshire joined the lawsuit last September as an intervening plaintiff.

Read the full story at the Gloucester Daily Times