Law

May 25, 2012 – Congressman John Tierney has asked the federal Commerce Department Inspector General to investigate whether the National Oceanic and Atmospheric Administration "may be proactively pursuing the criminal prosecution of fishermen under seldom-invoked laws."

Tierney's Wednesday letter to Inspector General Todd Zinser was accompanied by a copies of criminal indictments or bills of particulars for alleged violations that according to a redacted message from an attorney have previously been handled as civil cases under the provisions of the Magnuson-Stevens Act, the overriding statute for the nation's fisheries.

In his letter to Zinser, Tierney wrote that the spate of criminal cases for fishing violations seemed to reflect a change in policy. The congressman, a former Essex County district attorney, noted that statistics provided by NOAA indicate that over the three years ending 2009, out of 1,589 cases investigated under Magnuson, 1,546 (or 97 percent) were handled as civil complaints.

In addition, Tierney sent the IG a copy of a June 15, 2010, letter from a high Justice Department official to NOAA Administrator Jane Lubchenco proposing a conference with a single-subject agenda — "(building) on the successful work we have done together, particularly in the area of criminal enforcement."

Read the full story at the Gloucester Times.

 

 

May 24, 2012 – BOSTON—A Connecticut man was convicted today in federal court of providing false information to the United States Department of Commerce, specifically the National Oceanic and Atmospheric Administration (NOAA) Special Master, in order to obtain reimbursement for fines he had previously paid.

Bruce Fitzsimmons, 54, of Canterbury, Connecticut, waived indictment and entered a plea today before U.S. District Judge Nathaniel M. Gorton to knowingly and willfully making a materially false, fictitious, and fraudulent statement and representation in a matter before the U.S. Department of Commerce.

Fitzsimmons was previously employed as a commercial fisherman in Massachusetts. Between 2005 and 2006, he received two separate notices of violations based upon, among other things, fishing in closed areas. Initially, Fitzsimmons agreed to a fine of $60,000 and a suspension of his fishing permit. After receiving a second violation notice for a separate violation, Fitzsimmons advised the NOAA General Counsel that he was no longer in the fishing business. Fitzsimmons negotiated a settlement for both violations and agreed to pay a total fine of $50,000 for both violations. Fitzsimmons sold his fishing permit to a third party for $80,000 and used a portion of the money to pay off his fine.

In June 2009, in response to complaints from the fishing industry, the Department of Commerce appointed a special master for the District of Massachusetts to review decisions and outcomes of cases handled by NOAA’s Office of General Counsel for Enforcement and Litigation.

Read the full release from the FBI.

 

 

May 16, 2012 – Alewives spawned in large numbers in the St. Croix River, before blockades in the 1990s all but eliminated the species. In 2008, Maine lawmakers blocked passage of the fish above Great Falls Dam, in a nod to sport fisherman and others who maintain large numbers of spawning alewives would hurt the lucrative small-mouth bass fishery. Now, a southern Maine environmental group and two individuals are seeking to overturn this law by threatening to sue the U.S. Environmental Protection Agency.

Part of the federal Clean Water Act requires the U.S. EPA to evaluate water quality on rivers when dams are put up. In an earlier lawsuit in U.S. District Court, the group Friends of Merrymeeting Bay, in partnership with two individual citizens, argued that that Maine law blockading the St. Croix above Great Falls Dam should be tossed out, that it was superceded by the Clean Water Act.

A federal judge dismissed that argument, but not without giving the parties another path to consider in their bid to restore the alewives to the St. Croix. Alewives are a member of the herring family and play a key role in the food chain that's vital to the health of river and marine ecosystems in Maine.

The U.S. EPA, the judge contended, does have some responsibility for resolving conflicts between federal laws like the Clean Water Act and state statutes.

"The EPA had already told us they were not especially interested in looking at the law," says Kathleen McGee, of the group Friends of Merrymeeting Bay, where she's the so-called healthy rivers, healthy Gulf of Maine coordinator. "We believe that it is in direct contradiction to what the Clean Water Act requires, which requires bioversity throughout our rivers. And that it was a downgrade of the water quality in Maine."

Read the full story at Maine Public Radio.

 

 

May 15, 2012, ELLSWORTH, Maine — Two individuals and a southern Maine organization are ramping up their legal fight to restore alewives to the St. Croix River, this time accusing the U.S. Environmental Protection Agency of complicity in preventing the fish from spawning Down East.

Friends of Merrymeeting Bay, Doug Watts of Augusta and Kathleen McGee of Bowdoinham have notified the EPA that they intend to file suit against the agency within 60 days over alleged violations of the Clean Water Act.

A type of river herring, alewives spawned by the millions during the 1980s in the St. Croix River, which separates Maine and New Brunswick. But they all but disappeared in the river after blockades were put up in the 1990s, prompting a dispute that continues today.

The complainants are trying to overturn a 2008 state law that blocks the passage of sea-run alewives above Grand Falls Dam near the Washington County town of Princeton. The 2008 law was viewed as a compromise in the pitched cross-border battle over the lowly fish.

Fishing guides, sporting camp owners and others want to keep alewives out of the upper St. Croix watershed because they say large spawning runs will ruin the economically important smallmouth bass fishery. The other side accuses the state of purposefully suppressing an ecologically important indigenous fish species based on false fears that alewives will harm bass, a non-native fish introduced by sportsmen.

Friends of Merrymeeting Bay and the two individuals are poised to press the EPA on the alewife issue based on feedback from a judge in an earlier, unsuccessful federal suit against the state of Maine. Specifically, the complainants charge that the EPA has neglected to enforce a provision of the Clean Water Act that would require the federal agency to review any changes to water quality as a result of the fish passage blockades at Grand Falls Dam.

Read the full story at the Bangor Daily News.

 

 

May 2, 2012 – Last summer, Rosa Cancel spent a day at the beach with her family, scooping up mollusks in knee-deep water.

Her outing didn't end well. The single mother of three got a citation for illegally harvesting bay scallops. But the drama didn't end there. Delays, confusion and bad information landed her in jail.

"One day at the beach turned out to be a living nightmare," said Cancel, 47, of Oldsmar.

About two weeks ago, she was arrested in the Walmart parking lot on Tampa Road after she picked up her 7-year-old daughter from Forest Lakes Elementary School. There was a warrant out for her arrest because she failed to show up for the hearing where she was supposed to enter a plea in the scallop case.

Cancel did go to court in August, when she was initially supposed to, she said. But the court had no record of her citation on that day.

Her predicament traces back to July 23, when Cancel was cited for harvesting the scallops in Fred Howard Park in Tarpon Springs. So was her brother-in-law Bruce Budney, who allegedly had five scallops.

It's illegal to gather bay scallops, even during scallop season, south of the Pasco-Hernando county line. Regulations are aimed at avoiding the depletion of the scallops, said Amanda Nalley, spokesperson for the Florida Fish and Wildlife Conservation Commission.

Cancel said she didn't know it was against the law.

"I've never been to that beach, and I didn't know you couldn't pick up scallops," Cancel said.

Read the full story from the Tampa Bay Times.

 

 

May 2, 2012 – The Ocean Stewards Institute has applauded a decision by a Federal judge to grant summary judgment to NOAA in a lawsuit over a permit issued for aquaculture research in the open ocean.
Judge Susan Oki Mollway released her decision last week, clarifying and affirming NOAA’s authority to grant a permit for aquaculture under the existing Magnuson-Stevens fishing legislation.

The judgment stated that for any permit request, “NMFS will have to look at the specific activities proposed and determine whether those actions involve ‘the catching, taking, or harvesting of fish.’”

If the permit involves these actions, the ruling declared that such activity is governed by existing legislation.

The original NOAA permit allowed the experimental “Velella Project” to proceed, where a single, small submersible pen was stocked with 2,000 fish native to Hawaiian waters. The pen then drifted in the ocean eddies in federal waters west of the Big Island, from 3 to 75 miles offshore, in waters up to 12,000 feet deep.

The fish were fed a sustainable diet that replaced some fishmeal and fish oil content with soy and other agricultural proteins, and there was no measurable impact on the ocean ecosystem.

The research project was successfully concluded in February, 2012, and the company involved – Kampachi Farms, LLC – is seeking further permits to continue with additional trials.

 Read the full story here.

 

 

May 2, 2012 – Legal staff from the National Oceanic and Atmospheric Administration went on a three-day conference in Philadelphia this week, but no one from the agency will say what the meeting’s purpose was, why the location was chosen and how much it cost taxpayers.

The meeting has raised red flags within the agency, according to sources close to NOAA law enforcement, especially in the wake of the recent scandal plaguing the General Services Administration. That agency, which handles much of the federal government's procurement, came under intense fire after it was revealed that 300 of its employees went on an extravagant trip to Las Vegas, Nev., in 2010, costing taxpayers more than $820,000.

OAA is the parent agency of the Florida Keys National Marine Sanctuary.

Two sources familiar with the NOAA Office of the General Counsel trip, who spoke on condition of anonymity, said the meeting's location may look suspicious, since there are no NOAA facilities in Philadelphia other than weather stations. This means the cost of the trip — hotel rooms, meals, travel — would be paid for by the public.

The conference was held at the Sheraton Philadelphia Downtown Hotel from Monday through today.

Adam Issenberg, a section chief with the General Counsel's Fisheries and Protective Resources Section, said Tuesday that the conference was taking place but that he "is not in a position to speak" to the press about the nature of the meeting.

Read the full story here.

 

 

April 20, 2012 – A New York seafood importer has agreed to forfeit $2.1 million after federal prosecutors allege it bought 112 tons of king crab that had been illegally harvested from Russian waters.

A New York seafood importer has agreed to forfeit $2.1 million after federal prosecutors allege it bought 112 tons of king crab that had been illegally harvested from Russian waters.

The crab was imported into the U.S. through Seattle using false or misleading documents.

"International trade involving illegal seafood products is a widespread problem that threatens the integrity of our food supply and undermines efforts to protect valuable natural resources," U.S. Attorney Jenny A. Durkan said in a statement. "The financial loss to the importer in this case should put all seafood importers on notice that they need to ensure that the products they import are legally harvested and imported."

The case started in December 2010, when New York-based Harbor Seafood attempted to import three containers of frozen, cooked crab through the Port of Seattle. Federal agents with the National Marine Fisheries Service seized the shipment when it became clear the boxes were mislabeled.

Read the full article at the Seattle Times.

 

 

NEW BEDFORD, Mass. — April 16, 2012 — Lawyers for New Bedford and for Gloucester have argued in an appeal brief, that the Federal government doesn't deserve the court's deference because it hasn't earned it.

Instead, the brief says, the Commerce Department and NOAA have circumvented the intent of Congress, twisted the plain meaning of words, failed to live up to the law's expectations, and in general hammered through a management scheme through any means at its disposal.

"Defendants argue in their opposition briefs that New Bedford cannot rely on the plain language of the Magnuson-Stevens Act, the government's guidance, or even the dictionary in interpreting the law," said the city.

"Defendants essentially contend that citizens can rely only on what the government says next."

The lawsuit contends that the plan was put into place unlawfully, in violation of both the letter and the spirit of the Magnuson-Stevens Act. That act was amended in 2007 to better protect fishermen and fishing communities against the ill effects of a quota-based management plan.

The ultimate safeguard was the requirement of a referendum and two-thirds approval among the members of the industry.

The suit contends that NOAA knew a referendum on this system would fail, so it devised a scheme to get around the law. That involved, for one thing, renaming individual quota permits and calling them catch shares, and declaring that the referendum rule doesn't apply to them.

The lawsuit lost in U.S. District Court last year as Judge Rya Zobel applied the narrow legal principle that in such an administrative case she can only examine what is on the record, taking no new testimony, and assuming the good faith and competence of the government.

The appeal contends that the government, by its actions, forfeited the presumption that it acted within the law.

Read the full article at the New Bedford Standard-Times.

 

 

April 13, 2012 – Fishing industry plaintiffs have formally urged the First Circuit Court of Appeals in Boston to overturn last June's lower court and invalidate the two-year-old catch share system used to manage the New England groundfishery.

In searing language, the 31-page "reply brief" — filed with the court late Wednesday — will be the final written word before oral arguments later this year, projected as soon as June, but if not, by next fall.

"In the defendants' world," wrote the plaintiffs' New Bedford-based legal team — representing that city, Gloucester, and fishermen and organizations along more than 1,000 miles of coastline — "the rule of law is whatever the government says next." It is an approach that treats the law as a "moving target," plaintiffs said.

Not all Northeast fishing interests wanted to fight the government and overturn the system. More than 100 fishermen last fall urged stability over reform last fall in a letter crafted at least in part by leaders of the Gloucester-based Northeast Seafood Coalition, the region's largest industry group.

Litigants, however, read the letter as the act of a minority of winners in an industry hemorrhaging jobs and consolidating since before the catch share system was imposed — without giving affected permit holders the opportunity to vote in the radical regimen.

Whether NOAA was obligated to win a two-thirds vote among fishery stakeholders before converting to the catch share system and its leasing, buying and selling of quota is a central point of dispute.

Read the full story at the Gloucester Times.

Read the legal brief here.