U.S. District Court Archives

Additional Offshore Wind Lawsuit Reflects LBI Opposition Concerns

February 11, 2022 — The U.S. Department of the Interior is facing another legal challenge to its handling of offshore wind, this time for its approval of an offshore wind project to be constructed on a 65,000-acre tract in federal waters south of Martha’s Vineyard. The suit comes three weeks after a grassroots organization from Long Beach Island made good on its intention to sue the federal agency.

Responsible Offshore Development Alliance, a broad membership-based coalition of fishing industry associations and fishing companies, filed suit Jan. 31 in the U.S. District Court in the District of Columbia.

“In its haste to implement a massive new program to generate electrical energy by constructing thousands of turbine towers offshore the eastern seaboard on the Atlantic Outer Continental Shelf and laying hundreds of miles of high-tension electrical cables undersea, the United States has shortcut the statutory and regulatory requirements that were enacted to protect our nation’s environmental and natural resources, its industries and its people,” said Annie Hawkins, executive director of the alliance. “The fishing industry supports strong action on climate change, but not at the expense of the ocean, its inhabitants and sustainable domestic seafood.”

Read the full story at TheSandPaper.net

Environmental group sues feds for failing to protect humpback whales from deadly fishing gear

January 11, 2022 — The Center for Biological Diversity sued the National Marine Fisheries Service Monday, accusing the agency of failing to protect endangered Pacific humpback whales from deadly entanglements in sablefish pot gear off the coasts of California, Oregon and Washington.

Here’s the center’s news release on the lawsuit:

Monday’s lawsuit challenges the federal permit given to the fishery in December to kill and injure endangered humpback whales without any changes to avoid harming whales. Fishing gear entanglements are a leading threat to endangered humpbacks that migrate along the West Coast, where 48,521 square nautical miles were designated as critical habitat in April.

Read the full story at KTVZ

Response due from feds in lawsuit to end Atlantic monument

April 10, 2018 — PORTLAND, Maine — The federal government’s response to a lawsuit from fishermen trying to eliminate former President Barack Obama’s Atlantic Ocean monument is coming due.

The fishing groups sued to challenge the 2016 creation of the Northeast Canyons and Seamounts Marine National Monument. The monument is a 5,000-square-mile area off of New England and is the first monument of its kind in the Atlantic Ocean.

A federal court ordered the U.S. Department of Commerce to respond to the lawsuit by April 16. It was filed at U.S. District Court for the District of Columbia.

Read the full story from the Associated Press at the New Jersey Herald

Federal government failing to protect right whales from destruction, lawsuit alleges

January 22, 2018 — The federal government must do more to protect endangered North Atlantic right whales from getting tangled up in lobster gear, a leading cause of death for the rapidly declining mammals, a lawsuit filed Wednesday asserts.

A coalition of environmental groups filed the suit in US District Court in Washington, D.C., against officials from the Commerce Department and National Marine Fisheries Service.

According to a 33-page civil complaint, there were only about 455 right whales in 2016, and at least 17 died last year, “pushing the species even closer to the brink of extinction.” Many of the whales have been spotted off Cape Cod.

The complaint says entanglement in commercial fishing gear has been the “primary cause” of right whale deaths in recent years, and the “lobster fishery is a U.S. fishery that frequently entangles right whales.”

In 2014, the complaint states, the fisheries service issued a “biological opinion” finding that the lobster fishery is likely to kill or seriously injure more than three North Atlantic right whales every year, yet the agency also concluded “the fishery is not likely to jeopardize the continued existence of North Atlantic right whales.”

The suit alleges the fisheries service “is failing to ensure that its continued authorization, permitting, and management of the American lobster fishery does not jeopardize the continued existence of endangered North Atlantic right whales.”

Read the full story at the Boston Globe

East Coast Fishing Coalition Continues Legal Challenge to Planned Wind Farm Off New York

WASHINGTON — December 1, 2017 — The following was released by the Fisheries Survival Fund:

A coalition of East Coast fishing businesses, organizations, and communities, led by the Fisheries Survival Fund (FSF), has taken the next step in its legal challenge to a planned wind farm off the coast of New York. FSF and its co-plaintiffs argue that the Bureau of Ocean Energy Management (BOEM) awarded the lease for the New York Wind Energy Area (NY WEA) to Norwegian energy company Statoil without fully considering the impact on fishermen and other stakeholders, in neglect of its responsibilities as stewards of ocean resources.

The plaintiffs outlined their arguments in a brief filed Tuesday in the United States District Court for the District of Columbia. In the brief, FSF criticizes BOEM’s claim that it is not the agency’s job to resolve conflicts among new and pre-existing ocean users in the NY WEA. In an October filing, BOEM wrote that it is “not the ‘government steward of the ‘ocean commons,’’” a claim that FSF calls “unbecoming.” In fact, BOEM’s own website states: “The bureau is responsible for stewardship of U.S. [Outer Continental Shelf] energy and mineral resources, as well as protecting the environment that development of those resources may impact.”

FSF also writes that the NY WEA, an expanse of ocean nearly twice the size of Washington, D.C., is a poor location for a wind farm, and that BOEM and Statoil have alternately claimed that it is both too early and too late to raise objections to the lease. Statoil previously stated that vacating the lease would “squander the resources and the five years that BOEM has expended to date in the leasing process,” even as BOEM promises it will consider measures to mitigate the impacts of a wind farm later in the process. By then, after more time and resources have been expended, a wind farm “will be all but a foregone conclusion,” FSF writes.

Additionally, FSF argues that evaluating alternatives and considering conflicting ocean uses from the start would ultimately benefit BOEM and energy developers, ensuring they do not expend vast resources developing poorly located wind farms. The brief cites the ongoing debacle over the Cape Wind energy project, an approved wind farm off Cape Cod, Massachusetts, as an example of what can go wrong when BOEM and a developer ram through an agreement and become too invested to turn back. After the project “slogged through state and federal courts and agencies for more than a decade,” delays and uncertainty have jeopardized, if not eliminated, Cape Wind’s financing and power purchase agreements, according to the brief.

The plaintiffs in this case are the Fisheries Survival Fund; the Borough of Barnegat Light, New Jersey; The Town Dock; Seafreeze Shoreside; Sea Fresh USA; Rhode Island Fishermen’s Alliance; Garden State Seafood Association; Long Island Commercial Fishing Association; the Town of Narragansett, Rhode Island; the Narragansett Chamber of Commerce; the City of New Bedford, Massachusetts; and the Fishermen’s Dock Co-Operative of Point Pleasant, New Jersey.

While the fishing groups hold wide-ranging views about offshore wind energy development, they all agree that the siting process for massive wind energy projects “should not be a land rush, but rather reasoned, fully informed, intelligent, and cognizant of the human environment,” according to the brief.

About the Fisheries Survival Fund
The Fisheries Survival Fund (FSF) was established in 1998 to ensure the long-term sustainability of the Atlantic sea scallop fishery. FSF participants include the vast majority of full-time Atlantic scallop fishermen from Maine to Virginia. FSF works with academic institutions and independent scientific experts to foster cooperative research and to help sustain this fully rebuilt fishery. FSF also works with the federal government to ensure that the fishery is responsibly managed.

Fishing Groups and Communities Move Forward with Suit Against NY Wind Farm

WASHINGTON — September 19, 2017 — The following was released by the Fisheries Survival Fund:

A group of fishing organizations, businesses, and communities, led by the Fisheries Survival Fund (FSF), has moved forward with its lawsuit to halt the leasing of a planned wind farm off the coast of New York. The suit, filed against the Department of the Interior’s Bureau of Ocean Energy Management (BOEM), is seeking summary judgment and requesting the court to invalidate the lease, which was awarded to the Norwegian firm Statoil to develop the New York Wind Energy Area (NY WEA).

BOEM’s process for awarding the lease failed to properly consider the planned wind farm’s impact on area fish populations and habitats, shoreside communities, safety, and navigation. This violates the National Environmental Policy Act (NEPA), which requires an assessment of these impacts before issuing the lease, in conjunction with a full Environmental Impact Statement and an evaluation of alternative locations for any proposal.

BOEM’s failure to consider the impacts to fisheries, safety, navigation and other natural resources in the NY WEA prior to moving forward with the leasing process also violates the Outer Continental Shelf Lands Act (OCSLA), which charges BOEM with considering and providing for existing ocean users. And BOEM’s actions violate the Administrative Procedure Act, which prohibits agencies from acting in ways that are arbitrary, capricious, and contrary to law.

The site for the proposed wind farm includes key scallop, squid, and other Atlantic fishing grounds, as well as ocean habitats that are crucial for species such as loggerhead sea turtles, right whales, black sea bass and summer flounder. Because of how BOEM’s leasing process unfolds, the wind farm’s expected impacts on natural resources and those who rely on them will not be examined until the project is nearing completion.

“The plaintiffs in this case believe sensible wind energy development and fishing can co-exist,” said David Frulla, who is representing FSF and the other plaintiffs in the case. “But any offshore energy project must first meaningfully consider the impact on the habitats, marine species, and economic interests that may be harmed before selecting a wind farm site and issuing a lease to a private developer.”

FSF and the other plaintiffs sought a preliminary injunction against the $42.5 million lease before it was awarded in December 2016. While the judge presiding over the case stated that “the proper time for the agency to consider these environmental impacts may be at the present stage,” the request for a preliminary injunction was denied, as the judge did not believe it met the high standard of causing immediate harm that could not later be undone by a subsequent decision on the lease.

Following the plaintiffs’ filing last week, the federal government and Statoil are due to file their own cross-motions for summary judgment, and responses to the plaintiffs’ brief, in the coming months. The U.S. District Court for the District of Columbia will then make a decision on the merits.

The Fisheries Survival Fund is the lead plaintiff in the case. The organizations and businesses that have joined the suit are the Garden State Seafood Association and the Fishermen’s Dock Co-Operative in New Jersey; the Long Island Commercial Fishing Association in New York; and the Narragansett Chamber of Commerce, Rhode Island Fishermen’s Alliance, SeaFreeze Shoreside, Sea Fresh USA, and The Town Dock in Rhode Island.

Municipalities that have joined the suit are the City of New Bedford, Mass.; the Borough of Barnegat Light, N.J.; and the Town of Narragansett, R.I.

Fishing mogul Carlos Rafael pleads guilty to conspiracy, other charges

March 31, 2017 — The following is an excerpt from a story published yesterday by the New Bedford Standard-Times:

Carlos Rafael walked into Courtroom 18 on the fifth floor three minutes prior to his scheduled 2:30 p.m. plea hearing in front of Judge William G. Young at U.S. District Court on Thursday.

An hour and 15 minutes later he stood and faced the court clerk and uttered “Guilty,” when she informed him the U.S. Attorney has charged him with 28 counts, including falsifying fishing quotas, false labeling, conspiracy and tax evasion.

“Today I pled guilty to the charges facing me,” Rafael said in a statement released by his lawyers. “I am not proud of the things I did that brought me here, but admitting them is the right thing to do, and I am prepared to accept the consequences of my actions.”

A sentencing hearing was set for June 27 at 2 p.m., when the New Bedford fishing tycoon could face as much as 76 months in prison, although Assistant U.S. Attorney Andrew Lelling recommended 46 months.

“Mr. Rafael’s scheme not only compromised delicate fish populations, but also profited on the backs of his hard-working crew,” Acting United States Attorney William D. Weinreb said in a statement.

“Mr. Rafael knew he was breaking the law by falsifying records, evading taxes and smuggling ill-gotten profits to Portugal. Without Mr. Rafael and his scheme, New England fishermen who work hard for honest pay can now enjoy a more level playing field.”

Read the full story at the New Bedford Standard-Times

New indictment adds tax evasion to charges against Carlos Rafael

March 24, 2017 — The U.S. attorney included a new charge of tax evasion against Carlos Rafael as part of a “superseding” indictment released by its office last week.

The charge of tax evasion brought the total number of counts against the New Bedford fishing tycoon to 28. The others also include one count of conspiracy, 25 counts of lying to federal fishing regulators and one count of bulk cash smuggling.

According to the U.S. attorney, Rafael is expected to plead guilty to tax evasion as part of his plea agreement, which was announced earlier this month. The U.S. attorney Massachusetts provided no other information regarding the deal except that Rafael would plead guilty to evading fishing quotas and smuggling profits to Portugal in addition to tax evasion.

Rafael is scheduled in U.S. District Court in Boston on March 30 at 2:30 p.m.

The updated indictment states that from November 2014 to about October of 2015 Rafael failed to pay taxes in the sum of $108,929. It also included two new paragraphs regarding the general allegations toward Rafael.

The U.S. attorney alleges that Rafael deposited cash into accounts in Portugal to avoid paying taxes on the money. According to the indictment, Rafael told a bookkeeper for Carlos Seafood Inc. not to enter the cash payments into the company’s record-keeping system.

The U.S. attorney also alleges Rafael omitted $267,061 in reportable cash income in 2014.

Rafael spent six months in federal prison after being convicted of tax evasion in the 1980s.

Read the full story at the New Bedford Standard-Times

Commercial Fishing Interests Fight New York Offshore Wind Project In U.S. District Court

Heat map of scallop fishing effort in the area around the proposed New York wind energy area. The proposed wind energy area is in blue.

WASHINGTON (Saving Seafood) – February 9, 2017 – Lawyers representing a host of fishing communities, associations, and businesses, led by scallop industry trade group the Fisheries Survival Fund, argued in U.S. District Court in Washington, D.C., yesterday against the lease sale of 127 square miles of ocean off the coast of Long Island for wind energy development. A ruling is expected in the coming days.

The plaintiffs are seeking a preliminary injunction against the wind farm lease, which the Bureau of Ocean Energy Management (BOEM) preliminarily awarded to Norwegian oil and gas company Statoil for $42.5 million at auction in December, arguing that the site of the project is in the middle of important fishing grounds, particularly for the valuable scallop and squid fisheries. They claim that allowing the lease sale to go through would cause irreparable harm to commercial fishermen and is unlawful.

The plaintiffs argued that the lease sale would have an immediate impact on fishing interests by giving the government and Statoil free rein to conduct a number of harmful actions, including installing a meteorological tower that could damage scallop beds, and performing sonic testing that studies suggest hurts fish populations. The plaintiffs also said that, should the lease proceed, additional investments make it nearly certain that a wind farm will be constructed, permanently restricting fishermen who make their livelihoods in the area.

Lawyers representing BOEM and Statoil countered that the plaintiffs failed to demonstrate immediate and irreparable harm to their livelihoods, saying that any impact on fishermen would not happen for years, and that there would be time to address fishing concerns in future environmental assessments.

Federal law requires a balanced process that considers all stakeholders when developing wind energy projects, but the plaintiffs said that fishing concerns have not been properly addressed in the siting of the New York wind energy area.

BOEM estimates the value of fishing grounds in the proposed wind energy area at $90 million, a figure that the plaintiffs argued is too low because the government used less precise vessel trip reports instead of more accurate satellite-based vessel monitoring systems. The defendants argued that the lease siting process was transparent, including meetings with fishermen and multiple requests for information.

The plaintiffs responded that their more accurate information was ignored, the location of the wind farm was chosen in private, and fishermen never had a chance to advocate for alternative sites.

The plaintiffs maintained that their complaint was not against wind energy as a whole, pointing out that Mayor Jon Mitchell of New Bedford, Mass., a plaintiff in the case, has been an outspoken proponent of wind energy development. Specifically, they are challenging the use of the unsolicited bid process that allows private entities to claim part of the ocean for wind energy development.

The plaintiffs in the case are the Fisheries Survival Fund, the Garden State Seafood Association, the Long Island Commercial Fishing Association, the Narragansett Chamber of Commerce, the Fishermen’s Dock Cooperative, the Rhode Island Fishermen’s Alliance, the City of New Bedford, Mass., the Borough of Barnegat Light, N.J., the Town of Narragansett, R.I., SeaFreeze Shoreside, Sea Fresh USA, and the Town Dock. The case was heard by Judge Tanya S. Chutkan.

Legal Proceedings Preserve Fishing Industry Rights as New York Wind Energy Lease Sale Proceeds

December 15, 2016 — The following was released by the Fisheries Survival Fund:

Last week, a group of fisheries organizations, communities and businesses filed suit against the Bureau of Ocean Energy Management (BOEM), seeking a temporary restraining order to delay today’s auction of leasing rights to the proposed New York Wind Energy Area. The suit also sought a preliminary injunction to prevent BOEM from executing any resulting wind energy lease.

The plaintiffs allege that BOEM did not adequately consider the effect on the region’s fishermen of a 127-square-mile wind farm off the coast of New York and New Jersey.

Subsequently, a scheduling agreement was reached between the parties that allows the court to take adequate time to deliberate carefully on the case’s important issues. The plaintiffs agreed to withdraw their motion for a temporary restraining order that would have delayed the scheduled auction. Although the auction is proceeding today, under BOEM’s final sale notice for the auction, the lease will not be final until further steps, as outlined in the sale notice, are completed.

On Monday, Judge Tanya Chutkan of the United States District Court for the District of Columbia set a court schedule on the plaintiffs’ motion to preliminarily enjoin BOEM’s execution of any lease resulting from today’s auction. The schedule concludes with a hearing in Federal court on February 8.

Under Judge Chutkan’s order, if the lease is ready to be executed before the court is able to rule on the plaintiffs’ preliminary injunction motion, BOEM must provide the court no less than 14 days notice. If that notice is provided, the preliminary injunction proceedings will be expedited.

The Fisheries Survival Fund, representing the majority of the U.S. Atlantic scallop industry, is the lead plaintiff in the case. The lease area includes documented scallop and squid fishing grounds, which serve as essential fish habitat and grounds for other commercially important species, including black sea bass and summer flounder. It is also an important foraging area for threatened loggerhead sea turtles and critically endangered North Atlantic right whales.

Other organizations joining as plaintiffs include the Garden State Seafood Association and the Fishermen’s Dock Co-Operative in New Jersey; the Long Island Commercial Fishing Association in New York; and the Narragansett Chamber of Commerce and Rhode Island Fishermen’s Alliance.

Joining as plaintiffs are the City of New Bedford, Mass.; the Borough of Barnegat Light, N.J.; and the Town of Narragansett, R.I.

Also joining are three fishing businesses: SeaFreeze Shoreside, Sea Fresh USA and The Town Dock.