Saving Seafood

After Supreme Court ruling, fight over at-sea monitoring costs may head to Congress

October 10, 2017 — Despite a recent decision by the Supreme Court of the United States, a New Hampshire fisherman pledges to continue his fight against having to pay for monitors to accompany them while at sea.

When the court opened its new term last Monday, 2 October, it decided against hearing David Goethel’s case against the U.S. Department of Commerce, allowing the 1st Circuit Court of Appeals ruling to stand. The Hampton fisherman filed suit in December 2015, about nine months after the National Oceanic and Atmospheric Administration announced it would begin passing the costs of the monitoring program to the fishermen.

The monitoring costs more than USD 700 (EUR 596.03) per day, a price that Goethel and officials from the Northeast Fishery Sector 13 claim is too steep.

Read the full story at Seafood Source

High court declines to hear fishing monitor case

Fisherman: Justices ruled on technicalities, not merits

October 3, 2017 — The U.S. Supreme Court on Monday declined to hear New Hampshire fisherman David Goethel’s case that challenged the federal government’s ability to force commercial fishermen to pay the costs of at-sea monitoring.

The rejection by the Supreme Court is the third defeat suffered by Goethel and co-plaintiff South Dartmouth-based Northeast Fishing Sector XIII since they first sued NOAA Fisheries and other federal officials in December 2015 in U.S. District Court in New Hampshire.

The court’s rejection closes the door on this particular legal challenge of the government’s right to impose the cost of at-sea monitoring on commercial fishermen, as the Supreme Court also declined to remand the case back to a lower court.

“The Supreme Court was our last judicial hope to save the centuries-old New England industry,” Goethel said in a statement.

Later, in an interview, Goethel let loose against what he said is the “stacked deck” of standing up to regulators, as well as his frustration with the justice system.

“We had three chances and not once was our case decided on the merits,” Goethel said. “I’m bitterly disappointed with the government and I’m bitterly disappointed with the justice system. At each step of the way, our fate was decided by a technicality without ever having a hearing on the merits of the case.”

Read the full story at the Gloucester Times

Supreme Court says no to hearing UCIDA case

October 3, 2017 — The lawsuit over whether the federal government or the state should manage Cook Inlet’s salmon fisheries won’t get its day in the U.S. Supreme Court after all.

Supreme Court justices on Monday denied the state of Alaska’s petition to hear a case in which the Kenai Peninsula-based fishing trade group the United Cook Inlet Drift Association challenged the North Pacific Fishery Management Council’s decision to confer management of the salmon fishery to the state.

Because most of the fishery takes place more than 3 miles from shore, it is within federal jurisdiction and is subject to management and oversight by a federal Fishery Management Plan. In 2012, the North Pacific Fishery Management Council passed an amendment removing fisheries in Cook Inlet, Prince William Sound and the Alaska Peninsula and placing them entirely under state management. UCIDA sued over the decision in 2013, saying the state’s management authority doesn’t comply with the Magnuson-Stevens Fisher Conservation and Management Act.

Though the U.S. District Court for Alaska initially ruled in the state’s favor, a panel of three federal judges on the Ninth Circuit Court in Anchorage reversed the district court’s decision and ruled that the fishery did require a fishery management plan. Saying the state’s management was adequate for the fishery, the state petitioned the Supreme Court to review the Ninth Circuit Court’s decision.

UCIDA president Dave Martin said he wasn’t surprised by the Supreme Court’s decision. The organization’s line has been the same all along, he said — state management has not met the Magnuson-Stevens Act standard for sustainability and optimum yield, with state management plans leaving salmon unharvested and exceeding escapement goals on Cook Inlet freshwater systems.

Read the full story at the Peninsula Clarion

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

 

Deadline soon for feds’ response to fishing monitor petition

August 11, 2017 — A fishermen’s group says it’s still waiting on the federal government’s response to a petition it filed with the U.S. Supreme Court about the cost of fishing monitors.

The government shifted the cost of paying for monitors to fishermen last year, prompting a legal battle. A group of fishermen led by David Goethel of New Hampshire filed a petition seeking a review of the case last month.

A spokesman for the fishermen’s attorney says the government has until Monday to respond and has not done so.

Read the full story from the Associated Press at the New Haven Register

NH fisherman takes $700-a-day mandate to have federal agent aboard to Supreme Court

July 31, 2017 — HAMPTON, N.H. — A commercial fisherman who is suing the National Oceanic and Atmospheric Administration over its at-sea monitoring program is hopeful the U.S. Supreme Court will hear his case on its merits.

David Goethel, of Hampton, who filed his original suit against the federal government in 2015, has been joined in his efforts by the Northeast Fisheries Sector 13. They represent fishermen from Massachusetts to North Carolina.

Cause of Action Institute, a nonprofit oversight group advocating for economic freedom and individual opportunity in Washington, D.C., is funding the lawsuit. Goethel said their support is evening the playing field for small commercial fishermen who are being forced to pay about $700 per day for at-sea monitors under current regulations.

“We simply just don’t have the money to play in these arenas,” Goethel said Friday.

Lawyers submitted their petition to the Supreme Court earlier this month. It calls for the court to reverse rulings about a 30-day statute of limitations for challenges, but at its heart, Goethel is asking for the case to be heard on its merits.

Goethel said he believes it is illegal for NOAA to require commercial fishermen to pay for at-sea monitors, when NOAA mandates them. NOAA has paid for the monitors on and off in the past, when they can find the money, Goethel said.

Read the full story at the New Hampshire Union Leader

Dave Goethel takes case to US Supreme Court

July 13, 2017 — After losing a lawsuit alleging a federal agency has imposed unfair regulations, Hampton fisherman David Goethel is taking his case to the U.S. Supreme Court.

Cause of Action Institute, which is representing Goethel and a group of other fishermen pro bono, filed a petition to be taken up by the Supreme Court Tuesday. The suit was originally filed in U.S. District Court against the National Oceanic and Atmospheric Administration and U.S. Department of Commerce in 2015. It alleges NOAA unfairly requires commercial groundfishermen to fund at-sea monitors to join them on fishing trips and observe their compliance with regulations. Groundfish include popular New England fishing species like cod and haddock.

A First U.S. Circuit Court of Appeals panel in Boston affirmed a ruling in favor of NOAA and the DOC this spring. According to Cause of Action’s petition, the lower court erred in dismissing the case based on the original suit being filed well after a 30-day deadline for challenging the regulation. Cause of Action is arguing the ruling prevented the court from addressing the merits of the suit’s argument – that fishermen believe it is unconstitutional for the government to force an industry to pay for its own policing.

Read the full story at the Portsmouth Herald

Trump’s Supreme Court Nominee Skeptical Of Federal Agency Power

March 17, 2017 — At most Supreme Court confirmation hearings, questions focus on hot-button social issues — abortion, affirmative action, same-sex marriage — and the hearings next week on Supreme Court nominee Neil Gorsuch will be no exception.

But senators are also likely to spend a lot of time examining the nominee’s views on federal regulations — of the environment, health and safety laws for workers, and laws on consumer rights and business.

In question is a doctrine that Gorsuch has criticized but that also once helped his mother.

The Chevron doctrine

The Chevron decision is perhaps the most cited case in American law. Decided unanimously in 1984, it established a general rule of deferring to an agency’s reasonable interpretation of a statute.

The idea is that in passing a law, Congress sets out broad provisions and tells agencies that have considerable expertise to establish rules for carrying out the law’s mandates. In short, the agency is to fill in the details.

The Chevron case stems from the Reagan administration. When President Ronald Reagan took office in the early 1980s, the White House adopted more permissive rules for air pollution caused by manufacturing plants. The Natural Resources Defense Council sued the Environmental Protection Agency, then under the leadership of Anne Gorsuch, contending the agency had exceeded its authority.

Read the full story at NPR

ALASKA: State appeals to U.S. Supreme Court to overturn salmon decision

March 1, 2017 — In the midst of the Upper Cook Inlet Board of Fisheries meeting, the battle for state management of Cook Inlet salmon fisheries continues.

The State of Alaska has filed with the U.S. Supreme Court to review a recent 9th Circuit Court of Appeal decision that would require some of Alaska’s salmon fisheries to conform to federal management.

The state says this is the wrong move.

“This is an area where the federal government recognizes the State’s expertise and agrees that the State is better equipped to manage the fishery, even in federal waters,” said Attorney General Jahna Lindemuth in a press release Feb. 27. “We hope the U.S. Supreme Court will review this important issue and reverse the Ninth Circuit’s decision.”

Last September, the U.S. 9th Circuit Court of Appeals overturned a 2011 decision by the North Pacific Fishery Management Council to remove several Alaska salmon fisheries from the federal management plan.

Read the full story at the Alaska Journal of Commerce

‘Chevron Deference,’ Key Issue in Fisheries Management, Questioned by Supreme Court Nominee

February 2, 2017 (SAVING SEAFOOD) — On January 31, President Donald Trump nominated Judge Neil Gorsuch of the Tenth Circuit Court of Appeals to fill the vacant seat on the Supreme Court. If confirmed, the Court may potentially reexamine the legal principle of Chevron deference, a principle that has heavily impacted fisheries management.

Chevron deference is a legal principle established in 1984, in the Supreme Court case of Chevron v. Natural Resources Defense Council. It states that in cases when the meaning of federal laws is unclear, courts should prioritize the interpretations of the regulatory agencies, such as NOAA. Practically, this has the effect of bolstering the influence of the federal bureaucracy at the expense of judicial review. In the case of fishery management, this has resulted in several instances where courts have upheld agency decisions whose legality has been disputed by the fishing community.

Most notably, in Lovgren v. Locke the plaintiffs (including fishermen and several municipalities in New England) challenged the establishment of catch shares management in New England in 2010 as being in violation of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act. The First Circuit Court of Appeals relied on Chevron in ruling in favor of the Commerce Department. This principle also was cited last year by District Court for the District of New Hampshire as a reason why the lawsuit against NOAA’s at-sea monitoring industry funding requirements failed.

While the Supreme Court – including Justice Scalia – has previously applied Chevron deference on several occasions, Judge Gorsuch has expressed trepidation about its merits. In his concurring opinion for Gutierrez-Brizuela v. Lynch, Gorsuch wrote:

“What would happen in a world without Chevron? […] Surely Congress could and would continue to pass statutes for executive agencies to enforce. And just as surely agencies could and would continue to offer guidance on how they intend to enforce those statutes. The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is.”

While Judge Gorsuch has only been nominated recently, should he ascend to the High Court, look for a reexamination of the principle of Chevron deference in the coming years.