Law

NOAA and Gloucester Fish Exchange, Inc. (owner of the Gloucester Seafood Display Auction) agreed late yesterday to settle three pending enforcement cases.   From the outset, the Gloucester Fish Auction has vigorously denied all of the claims asserted by the National Marine Fisheries Service which had sought to impose fines totaling almost $400,000 and shut down the Auction for one hundred fifty (150) days based on incidents that occurred between 2004 and 2006. This sanction, if imposed, would not only have been detrimental to the Auction, but to the Gloucester fishing industry and the entire fishing community, which the Agency purports to serve.  The Auction has been scrupulous about establishing and maintaining procedures to ensure compliance with the law. 

In the settlement agreement the Gloucester Seafood Display Auction denies all liability in the three cases.

The settlement involves payment by the Exchange of $85,000 and a 35-day closure (non-consecutive) of the Gloucester Seafood Display Auction, over a three-year period.  Under the terms of the settlement, the Auction is allowed to choose the days of closure in order to minimize any economic hardship, impact on its customers and/or the vessels that employ its services.   

Larry Ciulla, President of the Exchange, said that "the Gloucester Seafood Display Auction settled these matters because we are a small, family owned business and, unlike the government, we could not sustain the enormous expenditures of time and money required to defend our position.  Despite having confidence that we would have prevailed if we could have had access to the unlimited resources needed to litigate the matter to the end, we had no choice but to put these matters behind us." 

Read the complete story at Ahab's Journal.

NOAA and Gloucester Fish Exchange, Inc. (owner of the Gloucester Seafood Display Auction) agreed late yesterday to settle three pending enforcement cases that involved allegations of handling illegally caught fish and maintaining false records.

The settlement involves payment by the Exchange of $85,000 and a 35-day closure (non-consecutive) of the Gloucester Seafood Display Auction, over a three-year period under certain requirements. The days of closure will be coordinated in order to minimize economic hardship and customer burden. Under the terms of the settlement, NOAA and the Exchange further agree to dismiss all outstanding litigation involving these three cases.

“We are pleased to reach a settlement in this long-standing case and we are optimistic that we’ve entered a more constructive relationship going forward,” said Charles Green, NOAA Deputy Assistant General Counsel for Enforcement and Litigation. “NOAA will continue to work with the New England fishing community to build a sustainable fishery that maximizes benefits to coastal communities and the nation. Compliance with fishery laws and regulations is critical to the success of our joint efforts.”

In January, NOAA announced it is developing a comprehensive plan to ensure a fair and effective enforcement program and to promote fairness, transparency and accountability in its fisheries enforcement operations.

Read the complete story at NOAA News.

Under the guise of helping in the management of common resources, an agency of the federal government, the National Oceanic and Atmospheric Administration and its National Marine Fisheries Service, is transforming the open ocean into an enclosed field — a field one can enter only upon paying a considerable access fee.

Once in the field, strict control is exercised over any and all aspects of the fisheries: seasons allowed, days allowed, zones allowed, species allowed, amounts allowed.

These decisions are taken on the basis of obsolete science that is questionable at best, the linear and static conception of the food pyramid.

Modern science that is thought out in serious institutions of higher learning and is written up in the most respected journals, science that is dynamic and organic and reasons in term of cyclical predator-prey patterns, is not given any consideration.

Read the entire article at The Gloucester Daily Times.

Local fishermen have sued the National Marine Fisheries Service over deficiencies in the agency's method of monitoring the industrial Atlantic herring midwater trawlers. 

As per the available information Captain Peter Taylor of Chatham filed suit against NMFS for creating a loophole in a rule that will allow herring trawlers to dump uninspected bycatch in an area that has been closed to protect troubled groundfish stocks. In a press release, Taylor stated that herring trawlers should be held to the same standards as other fishermen, and that means they shouldn't be allowed to discard fish that the observers haven't inspected properly.

It is opined that the original rule proposed by NMFS was considered a reasonable approach to gathering more data about bycatch on midwater trawl vessels and received positive comments from the public according to the press statement issued by Earthjustice, whose attorney, Roger Fleming, is representing Taylor. But the final rule incorporated a change allowing the dumping. In addition, last Thursday, recreational fisherman Patrick Paquette of Hyannis, who represents several recreational fishing organizations such as the Massachusetts Striped Bass Association, filed a complaint under the Freedom of Information Act to obtain an NMFS video showing footage of federal observers aboard a midwater trawl ship.

Read the complete story at World Fishing Today.

Local fishermen are suing the National Marine Fisheries Service over deficiencies in the agency’s method of monitoring the industrial Atlantic herring midwater trawlers.

Last Wednesday, December 16, Captain Peter Taylor of Chatham filed suit against NMFS for creating a loophole in a rule that will allow herring trawlers to dump uninspected bycatch in an area that has been closed to protect troubled groundfish stocks. Closed Area 1, located southeast of the Cape and identified as a spawning ground and nursery area for juvenile cod and haddock, is currently off-limits to nearly all other fishing vessels.

In a press release, Taylor stated that herring trawlers should be held to the same standards as other fishermen, “and that means they shouldn’t be allowed to discard fish that the observers haven’t inspected properly. When I am observed, all the fish in my gear is counted, and I still fish with hooks. But herring trawl nets are massive, with way more impact, and to only observe part of their catch just isn’t right.”

Read the complete story at Wicked Local.

A nonprofit corporation formed by Rhode Island fishermen is working with a major Boston law firm on a legal and constitutional challenge to the recently voted federal groundfish management plan that would transform the commonly held resources of the sea into privately held fishermen’s catch shares.

Catch shares have become a bitterly divisive issue nationally, pushed hard by the Obama administration and many major environmental organizations, but resisted by many fishermen and at least one consumer group.

Tina Jackson, a Point Judith, R.I., fisherman and the president of the newly created American Alliance of Fishermen and their Communities, yesterday identified the firm formulating the Amendment 16 challenge as Edwards Angell Palmer & Dodge.

Read the complete story The Gloucester Daily Times.

The Gloucester Seafood Display Auction, preparing to defend itself against a massive illegal fish-brokering accusation, has won a major legal victory, with federal fishery prosecutors ordered to turn over several disputed documents as part of the discovery process.

Among the documents the National Oceanic and Atmospheric Administration has been ordered to produce is an April 28, 1999, letter that informs the auction it cannot be prosecuted for "violations by fishermen" unless there is a conspiracy or the auction "commits a separate violation."

For that reason, the policy letter from NOAA’s then-special agent in charge, Richard C. Livingston, states that the auction did not need a "hold harmless" indemnification in the "normal course of business."

Read the complete story at The Gloucester Daily Times.

The Gloucester Seafood Display Auction, preparing to defend itself against a massive illegal fish-brokering accusation, has won a major legal victory, with federal fishery prosecutors ordered to turn over several disputed documents as part of the discovery process.

Among the documents the National Oceanic and Atmospheric Administration has been ordered to produce is an April 28, 1999, letter that informs the auction it cannot be prosecuted for "violations by fishermen" unless there is a conspiracy or the auction "commits a separate violation."

For that reason, the policy letter from NOAA’s then-special agent in charge, Richard C. Livingston, states that the auction did not need a "hold harmless" indemnification in the "normal course of business."

Read the complete story at The Gloucester Daily Times.

Well endowed and powerful environmental philanthropies — notably thePew Charitable Trusts — have wrested control over the agenda for oceanpolicies from traditional, broad-based political forces, according tolawyers writing in an American Bar Association newsletter.

The authors James P. Walsh and Gwen Fanger of the SanFrancisco firm Davis Wright Tremaine LLP warn that Pew and similargroups — though no others are named — are moving aggressively and evencynically to shape ocean policies.

The case study in point was Pew’s alliance with andsupport for former President George W. Bush who claimed what Walsh andFanger describe as dubious constitutional authority to unilaterallydeclare three massive Pacific Ocean sectors to be Marine ProtectedAreas — together representing an ocean area of 335,488 square miles,larger than the land mass of California.

Read the complete story at The Gloucester Daily Times.

A multiple plaintiff lawsuit brought on behalf of small boat scallopers against the National Marine Fisheries Service in U.S. District Court in Trenton, N.J., alleges that "poor data quality is a fatal flaw in Amendment 11," which converts the lucrative scallop fishery to the catch share model next year. The plantiffs’ attorney, Patrick Flanigan cites a March 1, 2006 set of minutes from a NMFS committee meeting on data quality problems affecting the scallop amendment that contains damaging admissions. At one point, the committee discussed "continuously discovering … many errors in vessel trip reports and dealer data-sets" that were beyond the NMFS ability to correct or factor into accurate catch histories. "We have no expertise or time for correcting these errors," the committee wrote. At the same time, it also acknowledged that "obviously, in order to determine the participants of limited entry, to set total allowable catches and/or allocate trips or pounds to the general category vessels based on passed history, we need to have accurate data." Flanigan argues that the admission of helpless dependence on bad data would produce "arbitrary and capricious" decisions to exclude certain permit-holders from the scallop fishery.

Last week, a number of New England groundfishermen told the Gloucester Times they faced the possibility of having their catch shares reduced in line with badly understated catch histories. NMFS spokeswoman Maggie Mooney-Seus said the agency has acknowledged the problems, but cannot make corrections in time for the onset of sector/catch share fishing next May. Mooney-Seus said Oct. 31 was the deadline for filing complaints about faulty data for rectification in time for the 2011 fishing season. She said NMFS has repeatedly raised the point "that dealer reports are designed to support stock assessments and quota monitoring, and are far less precise than what is needed for sectors."

Jimmy Ruhle, a North Carolina fisherman and critic of NMFS science, trawl capabilities and record-keeping, cracked the door to the subject when took the microphone at the meeting in Hampton, Va., to assert that "this is going to be a big, big problem." He moved to request that NMFS "initiate a complete, thorough review of vessel landing history records.  A number of fishermen quickly chimed in after Ruhle, the president of the Commercial Fishermen of America.

"I am in the process of gathering information to come through with the sector allocation proposal, and in that process I needed to get the information from NMFS" Geir Monsen, who owns Seafreeze Ltd. in North Kingstown, R.I., told the council. "What I’ve got so far is the worst workmanship I ever have seen of any type of work," Monsen said. "If this record-keeping was in a commercial company, the company would be bankrupt and the people in charge of the record-keeping would be in jail for falsifying records."

Similar analysis came a number of others including Vinny Carillo of Point Pleasant, N.J. "I have some trips that are totally missing, and I have fishing vessel trip reports that have gone in (to NMFS) for my 30,000 in whiting, I have dealer reports — electronic dealer reports, and they correlate to my 30,000 pound trips of whiting," he told the Mid-Atlantic Council. "But NMFS has absolutely no record of them … there are gross inaccuracies in my landings," Carullo said.

"To go forward with sectors and catch shares without fixing the problem is totally irresponsible," Ruhle said in a telephone interview.

Read the complete story at The Gloucester Daily Times.