Cause of Action Archives - Saving Seafood

David Goethel: NOAA Fisheries rule should alarm taxpayers

October 16, 2017 — NOAA Fisheries has discovered a devious way to increase their budget without the checks and balances guaranteed by our forefathers, and the courts have let it stand.

I have been involved in a lawsuit with NOAA Fisheries over who pays for at-sea monitors (ASM) for the last three years. These are basically our own personal state police men who ride along on the boat and watch and record everything fishermen do at sea. Fishermen have been forced to sign contracts with for-profit third-party companies that provide this service for $710 per day. Recently, the Supreme Court refused to hear our case, effectively ending our pursuit of justice. Readers should be concerned, not only because this job-killing regulation effects their ability to obtain local seafood, but also because the loss leaves in place a precedent that will allow regulatory agencies to tax citizens by passing regulations while bypassing Congress.

Readers should forget most of what they learned in civics class and anything they see on courtroom television. You do have equal access to justice but it comes at a very high price. Taking this case through the legal system probably cost in excess of half a million dollars. Regulatory agencies make shrewd calculations about who can afford to sue over an action. They assume large corporations and environmental non-government organizations (NGOs) will sue and regulations are tailored accordingly. Absent a group like Cause of Action (COA) providing pro-bono counsel to someone like me, I and by extension ordinary citizens, are effectively blocked from seeking justice by the cost.

Read the full op-ed at Foster’s Daily Democrat

Deadline for feds’ response to fishing monitor petition passes

August 15, 2017 — A fishermen’s group says it’s still waiting to hear if the federal government responded to a petition it filed with the U.S. Supreme Court about the cost of mandated fishing monitors.

The government shifted the cost of paying for monitors from the National Oceanic and Atmospheric Administration to fishermen last year, prompting a legal battle.

The deadline for the government to respond was Monday, Aug. 14. It had not done so last week, and is not required to, said Zachary Kurz, a spokesman for the Cause of Action Institutes attorneys, who are representing the fishermen. He added that the Supreme Court doesn’t use e-file, so if the government did respond Monday, it would have been filed by hand and Cause of Action may not know if there was a response until it is served with the pleading via mail.

Attorneys with the Washington, D.C.-based Cause of Action Institute, representing fisherman David Goethel of Hampton, New Hampshire, and Northeast Fishing Sector 13, filed the petition last month with the nation’s highest court. They asked that it take up the case and recognize the need to hear the New England groundfishermen’s case based on its merits.

Read the full story at the Gloucester Times

Information Demanded on U.S. Fishery Council

November 3, 2016 — WASHINGTON — A nonprofit backed by Koch brothers money sued the National Oceanic and Atmospheric Administration on Tuesday for information on how it selects members of the New England Fishery Management Council, which regulates fishing off the coasts of five states.

“There is danger for politicization in how members are actually chosen,” the Cause of Action Institute says in its federal complaint against the NOAA, a branch of the Department of Commerce.

The Cause of Action Institute describes itself in the lawsuit as “a nonprofit strategic oversight group committed to ensuring that government decision-making is open, honest, and fair.” It generally opposes government regulation, particularly in the energy industry.

The Los Angeles Times described it last year as “a small group of lawyers funded by the Koch network.” Its then-director Daniel Epstein formerly worked as an attorney for the Charles Koch Foundation, and by 2013 most of Cause of Action’s funding came from the Donors Trust, “a nonprofit group through which the Kochs and their allies distribute tens of millions of dollars without needing to disclose the source of the funds,” the Times reported in its Feb. 7, 2015 article.

In its July 13 FOIA request, Cause of Action sought information on how the Secretary of Commerce and NOAA select members in the New England Fishery Management Council, which regulates fishing off the coasts of Maine, New Hampshire, Massachusetts, Rhode Island and Connecticut.

“The records at issue in this case, which include records of communication between high-ranking agency officials, will permit the public to understand how the most recent round of membership selection for the NEFMC was handled, and whether that process was at all tinged by political considerations or other untoward government action,” the complaint states.

Cause of Action claims that NOAA has never disclosed information about how it selects members of the eight regional regulatory councils operating under the Magnuson-Stevens Fishery Conservation and Management Act, and that the membership might not accurately represent the fishing industry.

The complaint cites environmental studies professor Thomas A. Okey of the University of Victoria in British Columbia, who suggested in a 2003 paper that representation in the industry is “generally skewed towards the larger corporate interests that support larger sized vessels, whereas the small-scale vessel fleets that are the traditional core of coastal communities (and more likely to have conservation interests) are often less represented.”

Cause of Action says the secretary of commerce and National Marine Fisheries Service-supervised councils wield “significant independent power.”

“They propose Fishery Management Plans, amendments, and framework adjustments; they conduct hearings; and they determine annual catch limits. The FMCs even have the ability to constrain the Secretary of Commerce,” the complaint states, abbreviating Fishery Management Council.

Read the full story at Courthouse News Service

MASSACHUSETTS: South Shore ground fishermen skeptical of plan to use digital cameras for monitoring mandate

June 9, 2016 — A program to get New England fishermen using video technology instead of human monitors to track their adherence to catch limits and document fish discarded from boats is getting mixed reviews in South Shore fishing ports.

Longtime commercial fishermen from Marshfield and Scituate said the project to equip some groundfishing boats with digital cameras comes with numerous pitfalls, including cost burdens and concerns about how video footage would be used.

Beginning this week, up to 20 groundfishermen from the Maine and Cape Cod will use three to four cameras to document fish handling on their vessels. At the end of each fishing trip, boat captains will send hard drives to third-party reviewers, who will view the footage and determine how much fish was discarded.

The Nature Conservancy is overseeing the project and hailed it Tuesday as a “new era in fisheries monitoring” that would be less costly than the current federal mandate, which requires having human monitors aboard boats on a percentage of fishing trips – at a cost to the fishermen of more than $700 a day.

Last December, South Shore fishermen threw their support behind a lawsuit filed by the nonprofit Cause of Action on behalf of Northeast Fishery Sector 13, which represents fishermen from Massachusetts and New Hampshire down to North Carolina. The federal lawsuit challenges the legality of the federal mandate and came in the aftermath of news that government funding to cover the cost of monitors was running out.

Christopher McGuire, The Nature Conservancy’s marine program director, said his group has begun working with National Marine Fisheries Service personnel in hopes of winning approval for the video-monitoring program.

If video monitoring can deliver verifiable data at an affordable cost, McGuire expects federal approval to come within two years.

South Shore fisherman Ed Barrett questioned whether there would be any cost savings, saying the camera equipment would cost thousands of dollars.

“Then someone has to sit in a cubicle and watch the video,” said Barrett, who lives in Marshfield. “ In a multi-species complex like we have in New England, it’s impossible for the video to pick out which fish are being discarded.”

Read the full story at the Patriot Ledger

STATE HOUSE NEWS: Fishing fleets turning to technology to meet monitoring mandate

June 1, 2016 — New England fishermen are starting to use digital cameras to document groundfish discards and prove they are fishing within established quotas, turning to technology for a method that may prove more cost effective than hiring human monitors.

With support from the Gulf of Maine Research Institute, The Nature Conservancy is overseeing a new project, which launches on Wednesday, June 1 and is being hailed as a “new era in fisheries monitoring.”

Up to 20 groundfishermen from the Maine Coast Community Sector and Cape Cod’s Fixed Gear Sector will use three to four cameras to capture fish handling activity on the decks of their vessels. After completing their trips, crews will send hard drives to third party reviewers who watch the footage and quantify the amount of discarded fish.

“Electronic monitoring is the only realistic solution for the small-boat fishery,” Eric Hesse, captain of the Tenacious II, of West Barnstable, said in a statement. “Even if some fishermen have managed to scrape together enough daily revenue to cover the cost of human observers, it won’t take much to undo that balance.”

In December 2015, the non-profit Cause of Action announced a federal lawsuit challenging the legality of the federal mandate requiring them to carry at-sea monitors on their vessels during fishing trips and to soon begin paying the cost of hosting the federal enforcement contractors. The suit was filed by Northeast Fishery Sector 13, which represents fishermen from Massachusetts to North Carolina. Cause of Action estimates the cost of human monitors at $710 per day.

Read the full story at Wicked Local

MASSACHUSETTS: South Shore ground fishermen skeptical of plan to use digital cameras for monitoring mandate

June 1, 2016 — A program to get New England fishermen using video technology instead of human monitors to track their adherence to catch limits and document fish discarded from boats is getting mixed reviews in South Shore fishing ports.

Read the full story at Wicked Local

DON CUDDY: Fishermen fight back against government overreach

January 28, 2016 — The commercial fishermen suing the federal government over the cost of at-sea monitors had their day in federal court in Concord, New Hampshire, last Thursday. At issue is the notice to fishermen that they will henceforth be required by the National Marine Fisheries Service to pay out of pocket for the at-sea monitors that accompany them on fishing trips, an expense previously absorbed within the annual budget of the National Oceanic and Atmospheric Administration. That agency contends that it no longer has the money to fund the program, although these monitors act as agents for the government, and it insists that the boats must now assume payment. Fishermen believe that the high cost of monitors, as much as $710 daily, is excessive, will force many to tie up their boats and result in “irreparable harm.” They also believe that, irrespective of the cost, having at-sea monitors on their boats is a government mandate and consequently should be funded by the government.

I attended the hearing with John Haran of Dartmouth, manager of Northeast Fisheries Sector XIII which includes 32 fishermen. Sector XIII is a plaintiff in the case along with New Hampshire commercial fisherman Dave Goethel.

The all-day hearing concluded without a ruling. Federal District Judge Joseph Laplante will issue a decision in his own time after deliberating on a legal case with potential ramifications not only for the fishing industry but with respect to any government agency’s attempt to increase its own power.

Steve Schwartz, an attorney with Cause of Action, a nonprofit based in Washington, D.C., that focuses on government overreach, represents the fishermen. He told the court that the scope of an agency’s power is determined exclusively by Congress and that NOAA lacks the statutory authority to require fishermen to pay for monitors. If NOAA can force fishermen to start writing checks, “it would open the door to a whole panoply of ways that agencies can expand their powers,” he said.

Read the full opinion piece at New Bedford Standard Times

DAVID GOETHEL: Fishermen on the Hook to Pay for Their Own Regulators

December 28, 2015 — The following is a excerpt from an opinion piece published today in The Wall Street Journal. Mr. Goethel, a groundfish fisherman out of Hampton, N.H., writes that he is suing the National Oceanic and Atmospheric Administration “to stop it from sinking New England’s groundfish industry for good.” He is represented by Cause of Action, a government watchdog group based in Washington, D.C.

Mr. Goethel writes: “The courts are the industry’s last chance. This month, along with the Northeast Fishery Sector 13, I filed a federal lawsuit- Goethel v. Pritzker. Our claim: Neither NOAA nor its subsidiary, the National Marine Fisheries Service, has the authority to charge groundfishermen for at-sea monitors. Even if Congress had granted this authority, they would have had to follow the process called for in the Administrative Procedure Act and other statutes-which they haven’t. A bipartisan group of senators, including Susan Collins (R., Maine) and Elizabeth Warren (D., Mass.), highlighted this troubling fact in April. Writing to the assistant administrator of NOAA Fisheries, they stated NOAA ‘has chosen an interpretation of the FY15 report language that is inconsistent with congressional intent, and consequently, that very high [at-sea monitoring] costs will soon unreasonably burden already struggling members of the fishing industry in the Northeast.'”

Few professions are as significant to New England’s economy and history as fishing. Yet the ranks of groundfish fishermen have dwindled so much that we’re now an endangered species. The causes are many-but the one now threatening us with extinction is the federal government. Along with one other plaintiff, I’m suing the National Oceanic and Atmospheric Administration to stop it from sinking New England’s groundfish industry for good.

Groundfish include cod, haddock and 11 other common bottom-dwelling species. After years of dwindling stocks, in 2012 the U.S. Department of Commerce issued a disaster declaration for groundfish territory off the coast of New England. Over the past four years my cod quota-my bread and butter-plummeted from 60,000 pounds to 3,700 this year. I caught my limit in four days in June.

Shifting ocean patterns have certainly contributed to our struggles, but regulators are a separate anchor altogether. Groundfish fishermen are organized into a patchwork of 15 sectors, i.e., government-designed cooperative organizations. We operate under at least seven overlapping federal and state entities and programs, all of which have their own regulatory nets.

As if warrantless searches from the Coast Guard, catch inspections upon returning to port, and satellite tracking weren’t enough, at-sea monitors also accompany us on roughly one in five randomly selected fishing trips. They are hired by three for-profit companies-one of which is led by the former NOAA official who designed the monitor program. They follow us around and take notes on everything we do. That includes measuring our nets, measuring fish we bring in and those we throw back, and recording our expenses down to how much we spent on lunch.

The program is unnecessary given the heavy regulation that exists. And last month NOAA informed us that, beginning on Jan. 1, groundfish fishermen must pay an estimated $710 a day when a monitor is present. That fee covers the monitors’ training, mileage to and from the fisherman’s boat, supervisor salaries, data processes and all other administrative costs. It also covers a set profit margin for the three companies providing the monitors. What those margins are, neither NOAA nor the companies have disclosed.

Read the full opinion piece at The Wall Street Journal

Costs for at-sea monitors will force many fishermen out of business.

December 18, 2015 — The following was released by the Center for Sustainable Fisheries:

The Center for Sustainable Fisheries fully supports the lawsuit filed in New Hampshire last week by Cause of Action. The Washington-based watchdog group, which focuses its attention on government overreach, is suing the federal government on behalf of our commercial fishermen in New England.

The case is crystal clear. It stems from the high cost for at-sea monitors and the insistence, by NOAA’s intransigent National Marine Fisheries Service, that fishermen must now foot the bill for monitors because the agency has run out of money. This is simply outrageous. The regional administrator for the National Marine Fisheries Service is former New Bedford mayor John Bullard.

Beginning January 1, fishermen who are required to bring monitors on groundfish trips will be billed an estimated $710 daily for their services, an expense previously borne by our government regulators. This mandate comes down at a time that the groundfishery in New England has been declared a disaster, with landings and revenue down and fewer boats fishing. To now burden struggling fishermen with what is undoubtedly a function of government is simply unjust. Furthermore, NOAA has conducted its own study on the costs of monitoring and concluded that upwards of 60 percent of active groundfish vessels would be rendered unprofitable if forced to pay for at-sea monitors. ‘Unprofitable’ in this case meaning fishermen going out of business; deprived not only of income but a way of life.

The plaintiffs in this important case are Dave Goethel, a CSF board member and owner of the Ellen Diane, a 44-foot dayboat out of Hampton, N.H., along with Northeast Fishery Sector XIII, comprising thirty-two East Coast fishermen and managed by John Haran in New Bedford. The controversial issue has been simmering for some time. It is now in the hands of the judiciary. In arguing the case Cause of Action will present a number of legal arguments, primarily that NOAA has no authority to compel funding. It does not take a legal scholar to see which way this case should be resolved. Let us hope that justice will prevail.

View a PDF of the release

Cause of Action’s Stephen Schwartz Discusses At-Sea Monitoring Lawsuit on WBSM

December 16, 2015 — WASHINGTON (Saving Seafood) — Last Saturday, December 12, on the Ken Pittman Show on WBSM in New Bedford, Massachusetts, Cause of Action Counselor Stephen Schwartz, discussed a lawsuit that the organization filed against NOAA for their at-sea monitoring program. During the interview, Mr. Schwartz explained that the federal requirement that fishermen fund at-sea-monitors is overly intrusive and too burdensome for the fishing industry.

“The federal government is making a huge imposition even when top agencies and regional administrators agree that fishermen can’t afford to fund the observers, and more than half of them would go out of business,” he said.

Mr. Schwartz said that most federal observers do not have the same expertise that fishermen do – fishermen who have made their living on New England waters often in inclement conditions – and present a danger to the fishermen by taking up space on the boats, and preventing them from efficiently collecting data on fish stocks.

“If fishermen were left to their own devices, they would actually protect fish stocks and be more productive,” he said.

Mr. Schwartz and Cause of Action are arguing that NOAA does not have the power to require that the industry fund the observer program, and that the principles of constitutional law involved have the potential to restructure fishing industry regulations in order to not place the burden solely on fishermen.

Listen to the interview here