Law

September 19, 2013 — With Massachusetts and New Hampshire onboard, at least one other coastal New England state is tracking the federal lawsuit that accuses NOAA of wanton disregard for the catastrophic economic impact its catch quota policies have inflicted on the region’s fishing communities.

A spokeswoman for Rhode Island Attorney General Peter F. Kilmartin said that office has been monitoring the lawsuit’s progress and has not ruled out the possibility of joining the action as a means of protecting the state’s commercial fishing industry and the communities in which it operates.

”Rhode Island has not signed on to the lawsuit, but we continue to closely monitor the status of that case,” said spokeswoman Amy Kemp.

The office of Maine Attorney General Janet T. Mills did not respond to several requests for comment, and a spokesman for Connecticut Attorney General George Jepsen said the state has not been approached by Massachusetts about joining the lawsuit.

That could change soon.

Massachusetts Attorney General Martha Coakley, now also a candidate for governor, said at a Gloucester campaign stop Wednesday that she is pleased New Hampshire signed on as a co-plaintiff and plans to speak with the three remaining coastal New England states about joining the action.

Read the full story at the Gloucester Daily Times

September 16, 2013 — To protect the small businesses in New Hampshire’s fishing industry who create jobs and provide important contributions to the state’s economy, Governor Maggie Hassan and Attorney General Joseph Foster announced today that the State of New Hampshire has joined a lawsuit against the U.S. Secretary of Commerce and other U.S. officials challenging substantial new catch limits on many types of groundfish in New England. The regulations, Frameworks 48 and 50, were issued earlier this year by the Secretary of Commerce under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens).

“Fishing is a time-honored trade in New Hampshire, with small-boat fishermen relying on cod, haddock and other groundfish to support their livelihoods,” Governor Hassan said. “The onerous restrictions and reduced catch limits put forth by the federal government could have a dire effect on the economic viability of New Hampshire’s fishermen, placing one of our state’s oldest and most treasured industries at grave risk and undermining an important sector of our economy. Joining this lawsuit will help us stand up for the future of New Hampshire’s fishing industry by fighting back against these severe restrictions.”

The lawsuit, which was filed earlier this year by the State of Massachusetts, makes clear that the new regulations would have a “devastating impact” on families and small businesses throughout New England who earn their living through fishing by reducing the allowable catch for certain New England groundfish by 77 percent. The complaint claims that, in addition to threatening the extinction of the groundfishing industry, Frameworks 48 and 50 are in violation of Magnuson-Stevens.

Read the full story at the Hampton-NorthHampton Patch

Read the full press relase from the office of Governor Maggie Hassan

 

September 16, 2013 — CONCORD, N.H. — New Hampshire has joined a lawsuit to block “onerous” regulations that officials contend could have a “devastating” impact on the state’s small boat fishing industry.

The N.H. attorney general’s office is seeking to intervene in a lawsuit filed earlier this year by the commonwealth of Massachusetts against officials of the U.S. Department of Commerce, the National Oceanic and Atmospheric Administration, the National Marine Fisheries Service and the federal government.

The lawsuit filed in the U.S. District Court of Massachusetts challenges Frameworks 48 and 50, the new catch limit regulations on many types of groundfish in New England. The regulations were issued earlier this year by the secretary of Commerce under the Magnuson-Stevens Fishery Conservation and Management Act.

The lawsuit states that a 77 percent reduction in the catch limits on certain groundfish species is “threatening the extinction of an industry that for more than a century has been part of the commercial and social fabric of New England.”

Read the full story at Seacoast Online

September 16, 2013 — The state attorney general’s lawsuit, which claims NOAA — in violation of the Magnuson Stevens Act — disregarded the devastating economic impact on fishing communities such as Gloucester generated by its staggering cuts in catch limits, now includes the state of New Hampshire as a co-plaintiff.

New Hampshire last week filed a motion seeking “permissive intervention” in U.S. District Court in Boston primarily to protect the interests of the state’s “unique small-boat fisheries industry that is not adequately represented by any other party or intervener.”

On Thursday, U.S. District Judge Richard G. Stearns granted the motion, giving the Granite State a seat at the table as the suit moves toward the summary judgment stage. The suit was filed in May by Massachusetts Attorney General Martha Coakley — who according to weekend media reports, is expected to declare her 2014 candidacy for governor today.

“Our concern,” said Peter C.L. Roth, New Hampshire’s senior assistant attorney general, “is that the new fisheries regulation would be harmful to New Hampshire fishermen in similar ways that they are harmful to the Massachusetts fishermen.”

Read the full story at the Gloucester Daily Times 

 

August 28, 2013 — A federal appeals court in San Francisco refused to block a California law Tuesday that bans the possession and sale of shark fins that are detached from shark bodies.

Two Asian-American groups claim the law, which went fully into effect on July 1, discriminates against Chinese Americans because it prevents them from engaging in the traditional cultural practice of eating shark fin soup at ceremonial occasions.

A three-judge panel of the 9th U.S. Circuit Court of Appeals upheld a decision in which U.S. District Judge Phyllis Hamilton of Oakland declined to issue a preliminary injunction suspending the ban.

The appeals court said the two groups “presented no persuasive evidence indicating that the California Legislature’s real intent was to discriminate against Chinese Americans rather than to accomplish the law’s stated humanitarian, conservationist and health goals.”

The case now goes back to Hamilton’s court for further proceedings, including a possible full trial on whether there should be a permanent injunction against the law.

Read the full story at the San Francisco Appeal

August 27, 2013 — A federal appeals court refused Tuesday to halt enforcement of California's ban on possession and sale of shark fins, rejecting arguments that the law discriminates against Chinese Americans.

The law was passed in 2011, but took full effect only last month, when selling and serving shark fin soup, a traditional Chinese delicacy, became illegal.

Sponsors of the law said it was meant to stop the cutting of fins from live sharks outside U.S. territorial water, a practice already banned in federal waters, and to protect consumers from mercury in the fins.

But organizations of Chinese American businesses and shark fin suppliers argued that the ban was discriminatory and conflicted with federal management of ocean resources. Their suit gained support last month from the Obama administration, which said the ban would interfere with a commercial market that federal law was intended to preserve.

On Tuesday, however, the Ninth U.S. Circuit Court of Appeals in San Francisco said opponents had failed to make a case for blocking enforcement while they continue to challenge the law.

The 2011 law was neutrally worded, the three-judge panel said, and opponents "presented no persuasive evidence that the California Legislature's real intent was to discriminate against Chinese Americans rather than to accomplish the law's stated humanitarian, conservationist and health goals."

Read the full story at the San Francisco Chronicle

 

August 28, 2013 — PORTLAND, Maine — A judge agreed last week to slap a lien for more than $1 million attachment on properties of a southern Maine seafood dealer as well as the former manager of the Spruce Head Fishermen’s Cooperative over allegations by the midcoast cooperative that those parties conspired to steal and sell huge quantities of lobster.

Justice Andrew Horton issued his order Aug. 20 in the Maine Business and Consumer Court, agreeing that it was more likely than not that the cooperative would recover civil lawsuit judgments of $1,010,965 against Eliot-based J.P. Shellfish Inc.; its longtime owner John Price; former cooperative manager Robert Thompson and his wife, Cindy Thompson.

Thompson was arrested last October and charged with felony theft. Police claimed he stole lobsters from the cooperative and sold them for cash to J.P. Shellfish. The charge was dismissed in May, however, when the Knox County district attorney’s office said it could not yet turn over evidence to the defense without jeopardizing the continuing investigation.

The prosecution had sought additional time — beyond the statutory six months after he was arrested — to indict Thompson, but Justice Jeffrey Hjelm denied that request.

District Attorney Geoffrey Rushlau stated in the May dismissal notice that the action did not preclude future charges. Assistant District Attorney Jeff Baroody said at an April court hearing that the U.S. Attorney’s Office was conducting its own investigation. No additional criminal charges have been filed.

Thompson’s attorney, Walter McKee, said Wednesday that his client would definitely appeal the judge’s attachment order.

“The $1 million was gross speculation, to say the least,” McKee said.

Read the full story at the Bangor Daily News

August 23, 2013 — Trinity River water will be released to protect salmon after a federal judge lifted his order Thursday afternoon, finding the additional flows critical to preventing a repeat of the massive fish kill from 2002.

"Releases are designed to prevent a potentially serious fish die off from impacting salmon populations entering the Klamath River estuary,” Judge Lawrence O'Neill concluded.

”There is no dispute and the record clearly reflects that the 2002 fish kill had severe impacts on commercial fishing interests, tribal fishing rights and the ecology, and that another fish kill would likely have similar impacts.”

John Corbett, senior legal counsel for Yurok Tribal Attorney's Office, said O'Neill cited Yurok Tribe fisheries biologist Josh Strange, who testified that Ichthyophthirius multifiliis — a fish disease commonly called “ich” — is more prevalent in warm, still water, and that an expected 272,000 returning Chinook salmon would likely meet lethal conditions if the flows were not released.

"Judge Lawrence O'Neill found that blocking the flows would do greater harm to the tribes and the fisheries, if an injunction was granted, than it would to the water districts,” Corbett said.

Read the full story at the Eureka Times-Standard

SACRAMENTO, Calif., — July 30, 2013 — The following was released by Pacific Legal Foundation:

Federal bureaucrats have illegally abandoned their statutory duty to protect abalone and other shellfish resources — and the industries dependent on them — from being ravaged by sea otters in the waters off the Southern California coast.

So argues a federal lawsuit filed today by attorneys with Pacific Legal Foundation, on behalf of a California state commission and several non-profit organizations that have a direct interest in maintaining healthy populations of shellfish in what is known as the Southern California Bight (i.e., the waters off the California Coast from Point Conception to the Mexican Border).

PLF’s lawsuit targets the U.S. Fish and Wildlife Service (FWS) for eliminating the “sea otter management zone” in the Southern California Bight that Congress required in a 1986 statute.

The statute (Public Law 99-625) authorized the Service to set up an experimental population of the California sea otter. The Service exercised that power by creating an experimental population at San Nicolas Island, one of the Channel Islands, off of the Ventura County coast. The law also directed that, should the Service choose to establish an experimental population, it should also establish a “no otter” management zone, to ensure that the introduced otters would not ravage shellfish and other fishery resources. Further, the law directed that otherwise lawful activity (such as commercial fishing) be allowed to proceed within the management zone, even if this activity accidentally harmed otters. The Service exercised this authority by designating all of the Southern California Bight (except for San Nicolas Island) as the management zone.

The 1986 statute remains in effect, but FWS has unilaterally — without congressional approval or authorization — stopped obeying and implementing it. Under a rule that the agency issued on its own in December, 2012, FWS excused itself from removing sea otters from the management zone and cancelled the exemption from liability when sea otters in the zone are unintentionally harmed.

Read the full press release at the Pacific Legal Foundation

Read the legal complaint here 

August 18, 2013 — The Board of Supervisors has a message for the federal judge who halted flows meant to protect Klamath salmon: Lawsuit or no lawsuit by Central California farmers, there's water in the Trinity River that belongs to Humboldt County and we want it released.

”A lot of us are scared a massive fish kill will happen again,” Chairman and 5th District Supervisor Ryan Sundberg said, referring to the 2002 Klamath River fish kill of tens of thousands of salmon. “There were just dead fish lining the banks. It was really heartbreaking. We're committed to doing everything we can to prevent that.”

Sundberg is the author of a declaration sent to U.S. District Court Judge Lawrence J. O'Neill on Thursday that asserts that the federal government is legally obligated to provide no less than 50,000 acre-feet of water to Humboldt County and downstream water users.

The board will vote on ratifying the declaration during Tuesday morning's session, and discuss authorizing Sundberg to “respond as necessary” on the issue on behalf of the county.

The declaration cites the 1955 Trinity River Act and a 1959 contract between the county and the Bureau of Reclamation that resulted from the act.

According to a letter sent by Sundberg and Hoopa Valley Tribal Chairwoman Danielle Vigil Masten to U.S. Department of the Interior Secretary Sally Jewell, the act allowed for the diversion of Trinity River water to the Central Valley, but stipulated “that not less than 50,000 acre-feet shall be released annually from the Trinity Reservoir and made available to Humboldt County and downstream water users.”

Read the full story at the Times-Standard News