Owner file

Herring fishers file appeal brief in marine surveillance case

The Atlantic herring fishermen who lost their 2021 lawsuit against the federal government over an at-sea monitoring program filed their opening brief late last week with an appeals court seeking to cancel the decision.

The brief, which was filed with the United States Court of Appeals for the First Circuit on Friday, January 28, claims that Rhode Island U.S. District Judge Patricia A. Sullivan erred last year when ‘She ruled that the Magnuson-Stevens Act authorized the government to order fishermen to cover the costs of monitors on their vessels.

The Commerce Department, NOAA, and NOAA Fisheries “without legal authority, created a new federal bureau and imposed the cost on regulated small businesses,” the brief said. “Not only has Congress not explicitly granted such authority to respondents, but in analogous cases Congress has capped those costs well below those imposed here.”

Represented by the New Civil Liberties Alliance (NCLA), a nonpartisan civil rights group, the fishermen want a 2020 rule establishing the at-sea watch program overturned.

Relentless Inc., Huntress Inc. and their owner, Seafreeze Fleet LLC, said the cost of monitoring, which ranges from $750 (EUR 663) to $850 (EUR 751) per day, outweighs the profit they achieve for a day at sea.

In a video ad with NCLA senior litigation counsel John Vecchione, Seafreeze Fisheries Liaison and Chief Executive Officer Meghan Lapp said her company’s boats are being unfairly penalized by the rule because they fish more species than herring. In addition, the technology of their ships allows them to freeze at sea, allowing them to stay much longer than other herringers.

“It really comes down to the fact that these offshore monitors are really designed for a different part of the [Atlantic herring] fishery,” Lapp said. “Everything was kind of set up around them. A lot of the discussion has been about them, and we’re not part of that part of the fishery. So it was really something that was aimed at a different user group for which we are the collateral damage.

NCLA attorney Kara Rollins said in a statement that the government’s “unlawful takeover” not only hurts anglers financially, but is also an affront to the US Constitution.

“NOAA and [NOAA Fisheries] wish Congress had given them more authority and budget to get the data they want to collect and develop at-sea monitoring programs in the Atlantic herring fishery,” Rollins said. “But instead of asking Congress for this power, they took it for themselves and dared the industry to oppose it.”

Photo courtesy of Seafreeze