Law

August 9, 2012 — Hook-and-line fishermen urged the 9th Circuit to overturn new federal regulations that gives 90 percent of the Pacific groundfish catch to large-scale companies. U.S. fishing quotas are governed by the Magnuson-Stevens Fishery Conservation and Management Act, which uses a system of eight councils to develop region-specific fishery management plans. The nation's second largest region, the Pacific Coast Groundfish Fishery, extends over a quarter-million square miles off the coasts of California, Oregon and Washington.

Largely responding to overfishing and economic turmoil in the 1980s, the National Marine Fisheries Service last year amended the Pacific Coast Groundfish Fishery Management Plan to create an individual quota system. Amendments 20 and 21 allow for the allocation of fixed shares of the total allowable catch for long-term exclusive use by trawl permit holders.

The statute aims to increase economic efficiency by recalculating quotas every five years – as opposed to every two years. Vessels that do not reach their assigned quotas can sell or trade their shares of a particular fish species with other vessels. Regulators maintained that individual quotas would favor efficient fishermen and decrease environmental harm from by catch, a term that describes fish caught unintentionally.

But the Pacific Coast Federation of Fishermen's Associations, Port Orford Ocean Resource Team and San Francisco Crab Boat Owners Association filed suit after larger fishing enterprises received most quota shares in the initial allotment.

The groups represent fishermen who gather bottom-dwelling fish such as flounder and cod, as well as crabs using traps or hook-and-line systems. They claim that federal agency had violated the Magnuson-Stevens Act by failing to properly consider their community interest in initial allocations, allowing fleet consolidation to drive small fishermen out of the industry. They also argued that NMFS had assessed the environmental impacts of the two amendments separately, in violation of the National Environmental Policy Act.

Concluding that these claims could not hold water, however, U.S. District Judge Charles Breyer granted awarded summary judgment to the federal defendant. On appeal Tuesday before the 9th Circuit, arguments largely focused on the extent to which NMFS was required to "consider" the fishing communities when establishing the quota program.

Mary Hudson, a Sausalito attorney for the plaintiffs, argued that Magnuson-Stevens Act requires NMFS to let local fishing communities demonstrate their historical participation and environmental sustainability in the industry.   

Read the full story on the Courthouse News Service

 

 

MASSACHUSETTS — Last week, a federal judge agreed the species needs more protection and ruled in favor of a lawsuit brought against the National Marine Fisheries Service by two Massachusetts fishermen and a Cambridge-based environmental group.

The New England Fishery Management Council and NMFS did not follow federal law in drawing up an update to the management plan for Atlantic sea herring in March 2011 and should have included river herring in the plan, U.S. District Court Judge Gladys Kessler said in her decision issued in Washington, D.C.

She ordered the council and NMFS to include river herring in a new amendment to the fishery management plan and set a strict limit for the amount that could be caught.

Kessler ordered that new regulations also need to reduce the bycatch of river herring by sea herring boats, and new herring quotas currently being drawn up by the council must include a calculation of the biological role all herring play in the food chain.

The fish are a valuable link in the food chain converting the vast plant energy of plankton into protein consumed by whales and commercially important species such as cod, tuna, and swordfish.

The fisheries service and the council are to report to the court on their progress one month, six months and a year after the ruling. The court will retain jurisdiction in the interim.

 

Read the full story at the Cape Cod Times.

 

 

WASHINGTON — August 6, 2012 — U.S. District Court Judge Gladys Kessler has found that the National Marine Fisheries Service (NMFS) acted illegally in approving the plan put together by the New England Fisheries Management Council known as Amendment 4 and tossed out the entire amendment.

The order is the latest development in a lawsuit filed in April 2011 by a coalition of recreational anglers and charter-boat fishermen, and conservationists that asked NMFS to consider protections for severely depleted river herring, shad, and sea herring—the key links in the food chain for the Northeast’s ocean ecosystem and fisheries. Specifically, the order:

Requires NMFS and the New England Council to review the most recent science and consider a full suite of protections for river herring and shad

Gives NMFS one year to take action to minimize the bycatch of river herring and shad (such as a recently proposed cap on the total bycatch allowed)

Orders NMFS to consider new approaches for setting the allowable catch for sea herring that accounts for its role as food for other fish, birds, and whales

Requires reports to the Court in one, six, and 12 months

Orders that Amendment 4 is vacated (null), effective one year from now

Additionally, the court will retain oversight of the Agency’s actions in this matter until NMFS fully complies with the Order.

 

Read the full story here.

 

 

ELLSWORTH, Maine — June 27, 2012 — A Tremont man accused of storing thousands of undersized scallops in a shed next to his house is back behind bars for violating his bail, according to officials.

Besides multiple shellfish violations, Brennan Spofford, 33, also is facing drug charges in connection with an alleged heroin deal in Tremont. He was arrested Wednesday after he allegedly was found to be under the influence of some sort of intoxicant, according to his defense attorney, Jeff Toothaker of Ellsworth.

Spofford was still being held Thursday afternoon at Hancock County Jail, according to a corrections officer at the Ellsworth facility.

Spofford is accused of selling 0.3 grams of heroin for $200 to another person from a truck at an unspecified location in Tremont, according to a Maine Drug Enforcement Agency report on the alleged Feb. 28 drug transaction.

Spofford has a prior drug conviction in federal court. According to information posted in the online database of U.S. District Court in Bangor, Spofford was sentenced in January 2002 to serve four months in jail and then four months of electronic monitoring after being convicted of possession with intent to distribute heroin and aiding and abetting the commission of a crime.

 

Read the full story at the Maine Sun Journal.

 

 

July 13, 2012 — Nationally prominent attorneys James P. “Bud” Walsh and Eldon C.V. Greenberg have petitioned the National Oceanic and Atmospheric Administration to undertake a suite of reforms needed to make its federal fisheries law enforcement system “more fair and balanced.”

A key element in the proposal would rein in enforcement attorneys who, wrote Walsh, a partner in the San Francisco firm Davis Wright Tremaine and a former deputy NOAA administrator, continue to “wield inordinate power.”

The excessive liberties allowed NOAA lawyers and litigators was the first item in the initial report on NOAA fisheries enforcement excesses, in January 2010, by Commerce Department Inspector General Todd Zinser.

“Lack of management attention, direction and oversight has led to regional enforcement elements operating autonomously,” Zinser wrote.

Zinser was called in by NOAA Administrator Jane Lubchenco after she received a strongly worded letter by members of the Massachusetts congressional delegation; it urged an independent evaluation of chronic complaints of law enforcement excesses including the settling of grudges against fishermen. The epicenter of the complaints was the Gloucester Display Auction, then owned and operated by the Ciulla family.

In May 2011, responding to multiple reports by the inspector general and an encyclopedic set of case studies by a special judicial master retained by then Commerce Secretary Gary Locke (now the ambassador to China), 11 of the victims of the most egregious cases of injustice were given a cabinet level apology along with more than $600,000 in reparations.

Before he left Commerce to become ambassador to China, Locke authorized the master, Charles B. Swartwood III, to take on a new batch of more than 60 cases for review to determine whether rights were violated by NOAA agents and lawyers. Swartwood delivered his report to then-Commerce Secretary John Bryson in early May. Bryson, however, resigned June 21 after being involved two weeks earlier in a bizarre air of highway crashes outside of Los Angeles, and never acted on the second Swartwood report.

The initial report was redacted and released in little more than a month. No explanation for the delay on the new report has been offered by Commerce Department Chief Counsel Cameron Kerry – Sen. John Kerry’s brother – or NOAA Chief Counsel Lois Schiffer.

Walsh’s letter to Lubchenco cited the inspector general and Swartwood’s work on law enforcement failings, adding, “It is time that NOAA’s civil penalty procedural regulations were significantly changed to provide more balance to the process and a greater degree of fairness for those charged with civil violations.” Walsh identified his co-petitioners as Greenberg, who hedadswner of the Washington, D.C., firm Garvey Schubert Barer, and Michael Stanley, a former NOAA enforcement attorney.

 

Read the full story in the Gloucester Times

 

 

June 27, 2012 — Even as Cape Wind continues to battle opponents over the project's effects on airspace, the company has won over another surprise convert on the water.

Cape Wind officials and representatives of the Martha's Vineyard/Dukes County Fishermen's Association announced Tuesday that they settled a lawsuit challenging the project's approval by the federal government.

"We just filed this morning papers that would settle and dismiss our lawsuit," association president Warren Dotty said during a joint teleconference with Cape Wind spokesman Mark Rodgers.

The nonprofit association, which represents island fishermen and has about 100 members, is one of several groups that sued the federal government over Cape Wind's approval.

The settlement includes support from Cape Wind for a trust to buy permits to lease out to young fishermen on the island, Dotty said.

Dotty and Rodgers declined to comment on how much money is included in the settlement.

"We signed a confidentiality agreement that we would not disclose any financial terms of this settlement," Dotty said.

A fishermen's preservation fund in Gloucester started with about $12 million, but the Vineyard fund would likely be closer to the $3 million raised for a Cape Cod permit bank, he said.

"We'll also work together to ensure that fishermen continue to have access to Horseshoe Shoal during construction and operations," Rodgers said about the area in Nantucket Sound where the company plans to build its 130-turbine wind farm.

Studies of European offshore wind farms have shown that they can act as artificial reefs and attract fish, Rodgers said.

Fixed-gear fishermen should be able to work in the area with little problem, but there are still concerns about fishermen who use mobile gear, Dotty said, adding that these issues will be addressed by Cape Wind and fishermen.

The seven-member board of the fishermen's association voted 6-0 with one member absent to approve the settlement, which includes fisherman and board member Jonathan Mayhew, who was named separately as a plaintiff in the lawsuit. Mayhew did not return a telephone message left Tuesday at his Chilmark home seeking comment on the announcement.

In its lawsuit filed two years ago against Interior Secretary Ken Salazar and the Bureau of Ocean Energy Management, Regulation and Enforcement in federal court the association argued that the Cape Wind project would require fishing boats to add crew members to monitor the turbines and would restrict the ability of fishermen to follow and catch schools of fish.

 

Read the full story in the Cape Cod Times

 

 

June 26, 2012 – A group of Martha's Vineyard fishermen on Tuesday dropped a lawsuit aimed at derailing the planned Cape Wind offshore wind farm, saying they will instead work with the developers on ways to co-exist.

The fishermen sued the U.S. Department of the Interior in 2010 after it approved the 130-turbine project and granted it a federal lease for waters in Nantucket Sound.

Fishermen argued the project would make navigation more risky, prohibitively increase their costs and could even completely kick them out of the 25-square mile wind farm site.

On Tuesday, an attorney for the fishermen said it's still not clear how the various problems can be solved, but it became obvious that collaborating with Cape Wind would be more productive than lengthy litigation.

"The idea is to work together to figure out how to maintain fishing opportunities," said David Frulla, attorney for the Martha's Vineyard/Dukes County Fishermen's Association. "The concern is that you could end up in a never-ending grind of litigation."

Cape Wind officials say the settlement with the fishermen made sense because they share a goal of sustainable oceans. Spokesman Mark Rodgers added that offshore turbines can even benefit fishermen, because they've shown to form a sort of artificial reef that attracts marine life.

Read the full story by Jay Lindsay of the Associated Press at the Boston Globe.

 

 

June 15, 2012 – The U.S. Commerce Department confirmed Thursday that it has received and is reviewing the second report from Special Master Charles B. Swartwood III, made up of more than 60 case studies of complaints of improper law enforcement actions by fishermen and fishing businesses primarily in Massachusetts ports, especially Gloucester and New Bedford.

"Special Master Swartwood has finished his work on Phase 2 of his investigation," a Commerce Department official said in an email to the Times. "Review and consideration of the report and its recommendations are ongoing. Decisions will be released via a memorandum once the ongoing process is complete," said the official, who was authorized to comment on condition of anonymity.

The first report of more than 30 complaints found 11 that wronged the accused badly enough to warrant a recommendation for reparations. The then-Commerce secretary, Gary Locke, now ambassador to China, adopted virtually all the recommendations and issued a public apology and distributed more than $600,000 in reparations, including to some fishermen and businesses in Gloucester.

Before the first report was filed with Locke in April 2011, he reopened the window for new appeals of findings and settlements, dating back to 1994. The additional opportunity gave Swartwood the 66 cases that he has reviewed and reported his findings to Locke's successor, John Bryson.

Initially, Swartwood was retained by Locke to pursue loose ends and new leads following the last of a series of reports by Inspector General Todd Zinser into complaints that the fisheries law enforcement system at the National Oceanic and Atmospheric Administration had become vindictive, capricious and rudderless.

Read the full story at the Gloucester Times.

 

 

June 6, 2012 – A new National Marine Fisheries Service rule that will deploy onboard observers to monitor fishing of Northeast groundfish on 17 to 25 percent of fishing trips isn't good enough, the environmental group Oceana says in Federal Court.

"Although the Fisheries Service intends to deploy onboard observers on 17 to 25 percent of all fishing trips in the groundfish fishery, the Fisheries Service failed to demonstrate why, in light of its own reports calling for high or even 100 percent coverage in other similar fisheries, monitoring of only 17 to 25 percent of fishing activity will be sufficient to accurately monitor the catch and adequately enforce catch limits in this fishery," Oceana says in its complaint against the Secretary of Commerce, the National Oceanic and Atmospheric Administration and the National Marine Fisheries Service.

Groundfish live on or near the bottom of the waters they inhabit.

The Fisheries Service issued a final rule this year setting the at-sea monitoring rate target at 17 percent, in addition to an expected 8 percent coverage rate in the Northeast Fishery Observer Program, resulting in an expected 25 percent coverage of all fishing trips in that sector, Oceana says.

Read the full story at Courthouse News Service.

 

Analysis:

This Courthouse News story stated "The Northeast Multispecies Fishery covers 20 stocks of groundfish off the New England and the Mid-Atlantic Coasts, including Atlantic halibut, cod, pollock, haddock, white hake, redfish, ocean pout, Atlantic wolf fish, yellowtail flounder, windowpane flounder and witch flounder. All have been depleted by overfishing."

However, it is not accurate to blame the stock depletion entirely on overfishing.  According to the National Oceanic and Atmospheric Administration, many other factors, most notably, habitat loss, are contributing factors. Also, two other species, American plaice, and winter flounder, which once faced depletion are missing from the list.

However, the article fails to note that redfish, Georges Bank haddock, and Southern New England/Mid-Atlantic windowpane flounder are rebuilt and no longer subject to overfishing. American plaice is not overfished nor subject to overfishing. It is rebuilding slowly.

Ocean pout, Atlantic wolf fish and Atlantic halibut remain in an overfished condition, but overfishing on those stocks is no longer occuring.

Overfishing – when the rate of removal from a stock is too high. A priority for the U.S. is ending overfishing so that all stocks can rebuild and be sustained at rebuilt levels.

Overfished –  when the population is too low, or below a prescribed threshold. A population can be overfished but be managed under a rebuilding plan that over time returns the population to health.

Rebuilt –  when a stock has increased to its target population level after falling below the critical overfished level.

 

 

May 25, 2012 – Meanwhile, NOAA agents who also lied not punished.

A Connecticut man has pleaded guilty in federal court to providing false information to the U.S. Commerce Department's special judicial master to obtain reimbursement for fines he had previously paid.

Bruce Fitzsimmons, 54, of Canterbury, Conn. waived indictment and entered a plea Wednesday before U.S. District Judge Nathaniel M. Gorton to knowingly and willfully making a materially false, fictitious, and fraudulent statement and representation in appealing his fines to Special Judicial Master Charles B. Swartwood III.

Fitzsimmons' attempted deception of Swartwood and recovery of penalties charged for fishing in closed areas took place during the second phase of Swartwood's work for the Commerce Department, which has been reportedly submitted to Commerce Secretary John Bryson, and could be made public at any time.

Read the full story at the Gloucester Times.