Law

NEW BEDFORD, Mass. — November 14, 2012 — Three city seafood processors suspected of hiring illegal workers have been fined by U.S. Immigration and Customs Enforcement.

Northern Pelagic Group, or NORPEL, which processes herring on Fish Island was fined $151,200; Pier Fish Co. was fined $2,200; and Cap Seafood on MacArthur Boulevard was fined $9,804.

New Bedford lawyer Chris Saunders, who represents Pier Fish said that the company did not employ any illegal workers but was fined for errors in completing the paperwork required by the audit.

“It's a civil penalty of $440 for each violation and there were five instances” out of the 50 employees, he said. It was simply human error with certain boxes on the form not checked or information filled in incorrectly, he said.

Following an investigation launched in 2009 to reduce the demand for illegal employment, ICE began an audit of employers suspected of hiring people who are not authorized to work.

Read the full story at the New Bedford Standard Times

 

 

November 2, 2012 — Two conservation groups filed a lawsuit Friday challenging a new federal rule that nearly doubles limits on how many endangered sea turtles Hawaii’s longline swordfish fishery can accidentally hook before being shut down.

The lawsuit alleges that the National Marine Fisheries Service failed to comply with the Endangered Species Act when it used an inadequate biological opinion that substantially increased the number of endangered sea turtles that can be incidentally caught.

The conservation groups accuse the National Marine Fisheries Service of rolling back protections that capped the number of sea turtles that could be caught at 17 endangered loggerheads and 16 endangered leatherbacks.

Under the new rule issued in October and going into effect Monday, 34 loggerhead and 26 leatherback turtles can be incidentally caught before the fishery would be forced to shut down.

‘‘They are both on a trajectory to go extinct eventually, and being caught in fisheries is well-known to be a major cause,’’ said lawyer Paul Achitoff with Earthjustice, the law firm that filed the lawsuit in Honolulu federal court on behalf of Turtle Island Restoration Network and the Center for Biological Diversity.

The fishery experienced mandatory shutdowns in 2006 and 2011.

Wende Goo, spokeswoman for NOAA Fisheries, Pacific Islands Region, said the agency had not yet received the lawsuit but planned to review it.

The agency has about two months to respond, Achitoff said.

When the shallow-set longline fishery spreads out 60-miles of fishing line, with as many as 1,000 baited hooks attached and gear suspended near the surface of the water, it results in untold numbers of sea turtles, dolphins and seabirds being killed, said Todd Steiner, Turtle Island Restoration Network’s executive director.

Miyoko Sakashita, the Center for Biological Diversity’s oceans director, said sea turtles will soon be extinct unless they are protected from drowning in fishing gear.

 

Read the full story by the Associated Press in the Boston Globe

 

 

GRAND BAYOU, La. — October 31, 2012 — Most decisions about the details of a huge class-action settlement of damage claims from the 2010 Gulf of Mexico oil spill will come from stately offices and a federal courtroom in New Orleans.

But the consequences will reach farther south, where Louisianans – many of them subsistence fishermen – count on swampy bayous and gray Gulf waves for their livelihood, and are struggling to support themselves on catches they say have dwindled to a fifth of their pre-spill numbers.

''It just ain’t there anymore,'' said Maurice Phillips, a 58-year-old fisherman and trapper from Grand Bayou who traces his ancestry to the region’s first Native American residents.

Phillips is one of hundreds of fishermen who must decide by Thursday whether his share of a proposed $2.3 billion settlement fund will make up for the losses he suffered when BP’s Macondo well spilled millions of gallons of crude oil into the waters where he and his family have fished for generations.

The Seafood Compensation Program fund is part of a larger proposed settlement between BP and Gulf Coast residents who suffered economic or health damages from the spill.

It would compensate seafood vessel owners, commercial fishermen and their crews for damages suffered from April 20, 2010, when the Macondo well blew out, to April 16 of this year.

In the beginning of October, a court-supervised clearinghouse reported that it had received 7,115 claims and had made $105 million in offers to about 700 claimants, half of whom had accepted the payments at that point.

 

Read the full story in Houma Today

 

 

San Francisco, CA — Sept. 11, 2012 — On September 10th, a federal appeals court unanimously upheld a prior court's ruling that the west coast groundfish individual transferable quota (ITQ) system, a form of catch share, was lawfully executed. The decision helps to ensure that the efforts to improve the management and conservation of the resource through a catch share will continue as originally designed.

In its decision, the U.S. Court of Appeals for the Ninth Circuit held that the ITQ program complies with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act and the National Environmental Policy Act. Pacific Coast Fed'n of Fishermen's Associations v. Blank, No. 11-17108, opinion filed September 10, 2012. In finding for the National Marine Fisheries Service (NMFS), the administering agency within the U.S. Department of Commerce that governs fishing in federal waters, the court determined that the agency properly considered the impacts of the program and took necessary steps to achieve its goals, including increasing economic benefits, protecting the environment, and holding fishermen accountable for staying within catch limits.

"We are pleased that the court confirmed that the catch share program is legal and should continue," said Brent Paine of United Catcher Boats, a fishing group that participated as a friend of the court in the lawsuit. "Disrupting a system that has put the west coast fishing industry back on the right track would have been a disaster and cost jobs at a critical time."

 

Read the full press release here

 

 

September 10, 2012 — Over the objections of hook-and-line anglers, the 9th Circuit on Monday upheld a quota system meant to increase the efficiency and sustainability of the Pacific groundfish fishery.

The National Marine Fisheries Service amended the Pacific Coast Groundfish Fishery Management Plan in 2011 to include a quota system for trawl permit holders. Amendments 20 and 21 were designed to increase economic efficiency through fleet consolidation, to cut down on bycatch (the unintentional catch of some fish species), and to generally reduce environmental impacts on the fishery, which extends 200 miles off the coasts of California, Oregon and Washington.

According to the changes, trawl vessels that do not reach their assigned quotas can sell or trade their shares of a particular fish species with other vessels. The new plan divides the trawl fishery into three sectors and then assigns a certain number of fishing privileges within each sector. For the on-shore, hook-and-line sector, privileges are initially allocated based on catch history and then become transferable after two years.

Such "liberal transferability" is expected to increase efficiency and reduce bycatch, but it also "may force out participants from local fishing communities by consolidating privileges and making them more expensive," the ruling states.

 

Read the full story here.

 

 

SAN FRANCISCO — September 6, 2012 — Conservation groups filed a notice of intent to sue the federal government under the Endangered Species Act today for authorizing California’s drift gillnet fishery, which has killed alarming numbers of endangered sperm whales in recent years. In addition to sperm whales, the fishery also kills endangered leatherback and loggerhead sea turtles.

While most gillnets have been banned in California because of their deadly toll on endangered wildlife, the state’s drift gillnet fishery targeting swordfish and thresher shark continues to operate. Nets that stretch a mile are set to “soak” overnight, and catch and drown marine animals indiscriminately. On average more than 130 protected whales, dolphins, seals and sea lions, as well as thousands of sharks and nontarget fish, are caught and discarded every year. The vast majority of those animals are dumped back into the ocean, dead or injured. Government observers documented the lethal take of two endangered sperm whales in 2010; since most entanglements go unreported, the government estimates 16 sperm whales were injured or killed in the fishery that year, exceeding what the population can withstand by more than tenfold.

“Deadly fishing nets are risking the future of large whales and sea turtles,” said Catherine Kilduff of the Center for Biological Diversity. “Gillnets entangle everything in the sea, wasting sea life that’s precious to the balance of our oceans. It’s time to retire drift gillnets. They should belong to the past.”

“After over 30 years of experimentation, drift gillnets continue to have unacceptable levels of bycatch of our most treasured and vulnerable marine life,” said Oceana California Program Director Geoff Shester. “If we want to catch swordfish off our coast, we need to pursue fishing methods that are proven to be clean.” 

“Curtains of death, in the form of the California driftnet fishery, should be abolished in California waters and need to be phased out as soon as possible,” said Todd Steiner, biologist and executive director of SeaTurtles.org. “Sea turtles, sharks and whales are all being hammered by this fishery that targets high-mercury seafood species that are largely unfit to eat.”

 

Read the full release from Oceana here.

 

 

September 6, 2012 — Motions for summary judgment have been filed in a lawsuit over the new rockfish catch share program in the Gulf of Alaska.

Four companies with processing operations in Kodiak sued the National Marine Fisheries Service, or NMFS, in the U.S. Western District of Washington in January to overturn the new Gulf of Alaska rockfish catch share program, which took effect in May. In their July 20 motion for summary judgment, the processors also requested an opportunity for oral argument Oct. 5.

As of Sept. 5, Judge Marsha Pechman had not yet ruled on the processors’ request for oral argument. NMFS filed its motion for summary judgment on Aug. 23.

The lawsuit revolves around whether processors should receive a guaranteed share of the rockfish harvest, and has policy implications for the rockfish program, Gulf of Alaska fisheries management, and catch share programs as a whole nationwide.

Catch share programs allocate shares of the total harvest to indivdual owners, typically based on catch history.

The Kodiak processors — Trident Seafoods, Ocean Beauty, Westward Seafoods, and North Pacific Seafoods — want to be guaranteed delivery of a portion of the harvest each year. The current rockfish program does not give them that guarantee, as the past five-year pilot program did from 2007 to 2011.

The processors argue that the legal opinion upon which the harvester-processor linkage was severed was flawed, and offered contradicting management examples and segments of the Congressional record.

The 2009 opinion on which much of the case rests was a memo from general counsel of the National Ocean and Atmospheric Administration, or NOAA, to the North Pacific Fishery Management Council stating that the Magnuson-Stevens Act did not give the council the authority to give on-shore processors a guaranteed share of the harvest.

 

Read the full story at the Alaska Journal of Commerce.

 

 

BOSTON — September 7, 2012 — The attorney for National Oceanic and Atmospheric Administration argued to the US. First Circuit Court of Appeals that there was no need to put the catch share management program under the authority of a federal judge to limit rampant consolidation of the fleet because the regional arm of the agency was already doing that.

The problem is being taken seriously; it is being addressed,” Joan Pepin, a U.S. Justice Department attorney, told the three-judge panel Wednesday. “The process has been under way since the end of last year. It’s called Amendment 18.”

The comment was made in discussion with Chief Justice Sandra L. Lynch, near the end of the hour long oral argument over the suit by New Bedford, Gloucester and widespread fishing interests against NOAA for introducing a radical re-engineering of the groundfishery without considering the socio-economic implications or giving fishermen the chance to vote on whether to create this new world which made fishing more efficient but also powered consolidation.

Moments later, then in discussion with the plaintiffs’ lead attorney James F. Cavanaugh Jr., Judge Lynch adopted Pepin’s description of Amendment 18.

“You asked for an order that in effect (NOAA) would have to do a study and consider consolidation and consider whether they have to modify this program,” the judge said, distilling and rephrasing the redress sought by the plaintiffs. “As I understand it, they’re doing that, so what’s the difference?”

Cavanaugh said he was not aware from the record that NOAA was addressing consolidation.

“No?” said the judge. “Amendment 18.”

“Amendment 18?” a non-plussed Cavanaugh said.

The fact that Amendment 18, as Pepin and Judge Lynch described it, didn’t ring a bell with Cavanaugh should not have been surprising. Pepin’s characterization of a directed effort, known as Amendment 18, that was addressing a clearly defined problem — consolidation of the groundfishery — was inaccurate, a check of records shows. Amendment 18 — the genesis of which traces to 2010 but has not yet made it on the agenda of the New England Fishery Management Council for official consideration as a possible action — is an idea whose time has yet to come.

The last item on the council agenda for its September meeting in Plymouth is to set the agenda for 2013. A year ago, in setting the agenda for 2012, the council put Amendment 18 so far down that it was all but certain not to make it onto the floor for preliminary discussion. Advocates of controls on consolidation or putting some limits on the catch share system cried foul.

What the council did do about Amendment 18 was conduct a series of 10 “scoping” hearings that gathered a broad distribution of opinions and no clear consensus on what the council should do — if anything – about fleet consolidation or changes in the diversity of the fleet brought on by the catch share management system.

 

Read the full story in the Gloucester Times 

 

 

September 6, 2012 — The Office of New Bedford Mayor Jon MItchell has created a reference website with all documents pertaining to the appeal of CITY OF NEW BEDFORD, et al., vs HON. GARY LOCKE, et al.

Visit the website here

Read the documents associated with the case:

Saving Seafood coverage of the case

Associated Press coverage of the case 

New Bedford Standard Times coverage of the case

History of the case: 

Judge Zobel Rules Against New Bedford and Gloucester on All Counts

Senator Kerry calls Zobel ruling "disappointing"; expresses hope it will be "appealed and reversed"

New Bedford and Gloucester to Appeal Judge Zobel's Ruling on Amendment 16

New Bedford, fishing interests appeal ruling in suit

New Bedford and Gloucester to Federal Court: The government has forfeited the presumption that it acted within the law

 

 

 

 

BOSTON – September 5, 2012 – Oral arguments in the appeal of the lawsuit filed by the Cities of New Bedford and Gloucester, and a number of East Coast fishing industry interests against Amendment 16, the framework for the federal government's fisheries catch share system, were heard by the U.S. Court of Appeals for the First Circuit in Boston today. 

The plaintiffs allege that the National Oceanic and Atmospheric Administration ignored important procedural and substantive provisions of law enacted by Congress to protect traditional fishing communities and to shield small businesses from arbitrary acts by the agency.
 
Audio of the proceedings follows:
 
1 – James F. Kavanaugh, Jr., representing New Bedford, Gloucester, and the numerous named individual plaintiffs

2 –  Stephen Ouellette, representing the American Alliance of Fishermen and their Communities, New Hampshire Commercial Fishermen's Association, Richard Grachek and David Aripotch

3 – Patrick Flanigan, representing James Lovgren

4 – Joan Pepin, representing the Federal Defendant-Appellees

5 – Peter Shelley, for the Conservation Law Foundation, an intervening defendant

6 – James F. Kavanaugh, Jr., closing statement

 
Media coverage: 
 
ASSOCIATED PRESS: Massachusetts Fishing Ports' Appeal Against NOAA Regs Is Heard in Federal Court
 
NEW BEDFORD STANDARD-TIMES: Judges consider New Bedford & Gloucester appeal in fishing lawsuit  
 
 
History of the case:
 
Judge Zobel Rules Against New Bedford and Gloucester on All Counts

Senator Kerry calls Zobel ruling "disappointing"; expresses hope it will be "appealed and reversed"

New Bedford and Gloucester to Appeal Judge Zobel's Ruling on Amendment 16

New Bedford, fishing interests appeal ruling in suit

New Bedford and Gloucester to Federal Court: The government has forfeited the presumption that it acted within the law