Herring fishermen file appeal brief in at-sea monitoring case

Atlantic herring fishermen who lost their case in 2021 against the federal government regarding an at-sea monitoring program filed their opening brief late last week to an appellate court seeking to overturn the decision.

That brief, which was filed to the U.S. First Circuit Court of Appeals late Friday, 28 January, claims Rhode Island U.S. District Judge Patricia A. Sullivan erred last year when she ruled the Magnuson-Stevens Act allowed the government to order the fishermen to cover the costs for monitors on their vessels.

The Commerce Department, NOAA, and NOAA Fisheries “without statutory authority, created a new federal office and have imposed the cost of such on small, regulated businesses,” the brief states. “Not only has Congress failed to explicitly grant this authority to appellees, but in analogous cases, Congress has capped such 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 monitoring program set aside.

Relentless Inc., Huntress Inc., and their owner, Seafreeze Fleet LLC, said the cost of the monitoring, which ranges between USD 750 (EUR 663) and USD 850 (EUR 751) per day, is more than the profit they earn for one day at sea.

In a video announcement with NCLA Senior Litigation Counsel John Vecchione, Seafreeze Fisheries Liaison and General Manager Meghan Lapp said her company’s boats are unfairly penalized by the rule because they fish for more species than just herring. In addition, the technology on their vessels allows them to freeze at sea, which enables them to stay out far longer than other herring boats.

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

NCLA litigation attorney Kara Rollins said in a statement that the government’s “unlawful power grab” not only hurts the fishermen financially but also serves as an affront to the U.S. Constitution.

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

Photo courtesy of Seafreeze