Fishermen lose challenge to rule requiring at-sea monitors - Reuters

sea.indah.link

• Summary
• Related documents

• Industry-paid monitors do not violate Magnuson-Stevens Act
• Third-party at-sea monitors to take effect July 1

(Reuters) - A federal judge in Washington D.C. on Tuesday denied the bid of New Jersey-based herring fishermen who sued the National Marine Fisheries Service (NMFS) last year to block a new regulation that will require them to pay for third-party “at-sea monitors” who will survey by-catch.

U.S. District Judge Emmet Sullivan ruled that the agency had not acted in violation of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) when it approved in February 2020 the rule that the plaintiffs said could "destroy their iconic way of life" by cutting by 20% their profits from commercially fishing herring along the U.S. Atlantic coast.

About half-a-dozen small fishing vessel operators, including the Loper Bright Enterprise, brought the lawsuit last year.

Ryan Mulvey, an attorney for the plaintiffs with the Cause of Action Institute, an advocacy group favoring limited government, said he was disappointed with the decision. "The federal government has overextended its regulatory power far beyond what Congress authorized," he said.

Christopher Vaccaro, a spokesperson for NMFS' parent agency the National Oceanic and Atmospheric Administration (NOAA), declined to comment.

The plaintiffs filed their complaint days after the NMSF approved the regulation, known as the Omnibus Amendment. The rule's announcement had previously prompted "overwhelmingly negative" reactions in public hearings amid concerns its cost would impose on fishermen an "impossible financial burden," the complaint said.

The rule was crafted by a regional MSA-created body tasked with managing fisheries. When it takes effect on July 1, randomly-selected herring fishermen who fish along the eastern seaboard - from Maine to Connecticut - will be obliged to hire NOAA monitors on fishing trips.

The monitors' job is to ensure no unwanted fish is caught, among other things. Fishermen must pay for their cost of employment - estimated at about $700 a day.

Sullivan in his ruling disagreed that the NMSF had exceeded its authority under the MSA by authorizing the rule.

While Congress did not specifically speak on the issue of industry-funded monitors, the judge said that the agency's interpretation of the statute was "reasonable."

Looking at the statute's text, the judge found that it "explicitly" mentions that monitors can board vessels to collect, at sea, data necessary to further the MSA's conservation goals.

The monitors can be funded by the vessel operators, the judge further added, because the administrative record shows the agency has weighed the regulation's economic impacts to the fishing community, as required by the MSA, but concluded that the population of herring and other fish would benefit.

The stock of Atlantic herring is classified as overfished, according to NOAA data.

Sullivan also disagreed with the plaintiffs' argument that the rule "inappropriately 'offload(s) costs'" of other federal government monitoring programs onto the industry, in violation of the Anti-Deficiency Act. In his ruling, he describes one such program as putting NMSF-funded monitors on fishing vessels to ensure fishermen do not catch unwanted fish.

The Anti-Deficiency Act prohibits government agencies from obligating or spending federal funds in excess of the amount available.

But "(d)efendants are not expending government funds," the judge said. "Rather, it is the vessels that directly make payments to the monitoring service providers."

The case is Loper Bright Enterprise, Inc. et al v. Wilbur L. Ross, Jr. et al, U.S. District Court for the District of Columbia, No. 1:20-cv-00466.

For Loper Bright Enterprise Inc: Ryan Mulvey of Cause of Action Institute

For Wilbur L. Ross, Jr et al: Alison Finnegan of the U.S. Department of Justice

Read more:

9th Circuit greenlights San Francisco commercial fishing lawsuit

Sebastien Malo

Sebastien Malo reporters on environmental, climate and energy litigation. Reach him at sebastien.malo@thomsonreuters.com

The Link Lonk


June 16, 2021 at 07:39AM
https://ift.tt/3wvPEMj

Fishermen lose challenge to rule requiring at-sea monitors - Reuters

https://ift.tt/2CoSmg4
Sea