New England Fisheries
A Victory for the Magnuson-Stevens Act (and Common Sense): Judge Rules in Favor of Industry-Funded At-Sea Monitoring
Last Friday, the Chief Judge of the New Hampshire Federal District Court, Joseph N. Laplante, ruled in Captain David Goethel and Sector 13’s lawsuit opposing industry-funded at-sea monitoring (ASM).
A little refresher: Amendment 16 to the Northeast Multispecies Fishery Management Plan established ASM for New England’s groundfish sectors in 2010. Captain Goethel was a member of the New England Fishery Management Council at the time and was the sole vote against it.
Amendment 16 always required the groundfish sectors to pay for at-sea-monitoring, but U.S. taxpayers (through NOAA Fisheries) had picked up the tab – until recently. The agency announced in May 2015 that they would no longer fund ASM and after a few stops and starts, the industry finally began paying a year later, in May 2016. In response to this transition, New Hampshire groundfisherman David Goethel and his sector sued the federal government in December 2015.
The Goethel lawsuit was the legal equivalent of throwing a bunch of – at best – half-cooked legal arguments, generally lacking any factual basis, at the federal court hoping one of them would stick. He claimed that the Council-developed requirement that fishermen pay ASM contractors to demonstrate they were following the rules violated four different federal laws, two Constitutional bills of rights, and illegally imposed taxes on fishermen. In Judge Laplante’s words: “none prevail” and “the court finds each argument meritless.”
Judge Laplante, after patiently explaining that Goethel had no business bringing the action in the first place because the statute of limitations for challenging industry-funded ASM had long since expired, found the arguments utterly lacking.
Without getting too much into the weeds – and this lawsuit was all weeds – let’s break down the ruling. Perhaps the most notable decisions were those on the Magnuson-Stevens Act (MSA) violations and constitutional claims.
First, Goethel claimed that industry-funded ASM lacks Magnuson-Stevens Act authorization, and that the law actually prohibits it. Judge Laplante ruled, however, that the MSA does not prohibit industry-funded ASM; in fact, the MSA explicitly authorizes it. Furthermore, the Magnuson-Stevens Act permits fishery management plans to make rules for conservation and management of a fishery, and “prescribe such other measures” as are necessary to do so, i.e. Amendment 16 and industry-funded ASM.
Second, the lawsuit challenged the constitutionality of at-sea monitoring as well as the constitutionality of the regional fishery council system itself. Talk about biting the hand that feeds you! Judge Laplante quickly dismissed these extraordinary claims. He obseA rved that commercial fishing is considered a “closely regulated” industry, which makes fishing activities eligible to be “periodically inspected.” The judge correctly noted that no one was forcing Captain Goethel to fish in a sector with the ASM requirement.
Furthermore, Judge Laplante made short shrift of Captain Goethel’s frivolous claims that gubernatorial nomination of potential Council members violated the Constitution and that Congress had illegally “conscripted” state fishery officials to sit on Councils. Judge Laplante stated the obvious: if states don’t want to send representatives to serve on fishery councils, they don’t have to!
The remainder of the lawsuit’s claims were similarly denied, with Judge Laplante seeming to not only close the courthouse door but also padlock it against similar efforts.
Ultimately, this lawsuit is a victory for the Magnuson-Stevens Act. The Goethel and Sector 13 lawsuit was politically driven by an anti-federal government ideology that keeps rearing its ugly head in New England.
Fishermen are profiting off a publicly-owned federal resource for which they pay virtually nothing to the American public. Unlike ranchers or loggers who pay fees for grazing on federal lands or logging in national forests, fishermen pay nothing. And still they complain about the federal fishery management system they operate in.
Although much work remains in New England before this region fully benefits from responsible and sustainable fisheries management, Judge Laplante’s ruling is evidence that the fishery management system is based strong, legally-binding conservation principles and values.