O P I N I O N

Fishermen Fight Back Against Government Overreach

by Don Cuddy

The commercial fishermen suing the federal government over the cost of at-sea monitors had their day in federal court in Concord, New Hampshire, last Thursday. At issue is the notice to fishermen that they will henceforth be required by the National Marine Fisheries Service to pay out of pocket for the at-sea monitors that accompany them on fishing trips, an expense previously absorbed within the annual budget of the National Oceanic and Atmospheric Administration. That agency contends that it no longer has the money to fund the program, although these monitors act as agents for the government, and it insists that the boats must now assume payment. Fishermen believe that the high cost of monitors, as much as $710 daily, is excessive, will force many to tie up their boats and result in “irreparable harm.” They also believe that, irrespective of the cost, having at-sea monitors on their boats is a government mandate and consequently should be funded by the government.

I attended the hearing with John Haran of Dartmouth, manager of Northeast Fisheries Sector XIII which includes 32 fishermen. Sector XIII is a plaintiff in the case along with New Hampshire commercial fisherman Dave Goethel.

The all-day hearing concluded without a ruling. Federal District Judge Joseph Laplante will issue a decision in his own time after deliberating on a legal case with potential ramifications not only for the fishing industry but with respect to any government agency’s attempt to increase its own power.

Steve Schwartz, an attorney with Cause of Action, a nonprofit based in Washington, D.C., that focuses on government overreach, represents the fishermen. He told the court that the scope of an agency’s power is determined exclusively by Congress and that NOAA lacks the statutory authority to require fishermen to pay for monitors. If NOAA can force fishermen to start writing checks, “it would open the door to a whole panoply of ways that agencies can expand their powers,” he said.

For the fishermen, it’s more a matter of basic economics. Both Dave Goethel and John Haran took the stand and provided convincing testimony on the harsh reality of operating a viable fishing business after catches have been cut year after year. Revenue from groundfishing declined by 33 percent from 2010 to 2013 for example; a fishery disaster was declared in 2012 by the Secretary of Commerce and the industry remains in crisis.

The government’s legal team attempted to disprove the claim that paying for at-sea monitors would cause irreparable harm to fishermen, citing the recent drop in fuel prices along with a proposal to reduce the percentage of monitored trips as mitigating factors. They also maintained that economic pressure on fishermen comes primarily from factors over which the government has no control, such as the high cost of leasing fish. As Dave Goethel pointed out, however, the cost of leasing fish is high precisely because the catch limits set by National Marine Fisheries are so restrictive.

In his line of questioning, the judge made it clear that the economic impact on fishermen was foremost in the court’s mind. At one point, on the issue of irreparable harm, the judge said that he had listened to the witnesses detail exactly how paying for monitors would affect their livelihood and, in Dave Goethel’s case, force him to abandon his chosen profession.

“Have you given any evidence to rebut that?” he asked government attorney Alison Finnegan. I believe the judge answered his own question when he said: “You presented no evidence on irreparable harm. You just cross-examined the witness.”

The response was weak, as is the government’s case overall, in my view. Most people acquainted with the circumstances would agree that, whatever the legal and statutory intricacies may be, imposing this mandate on fishermen, particularly now when they are already in dire straits, is just not right.

It is difficult to predict how Judge Laplante might rule in the case. There are a number of other legal challenges over procedural requirements and charges that NOAA has violated the First and Third Amendments, contained within the brief that he will have to consider and the devil may well be in the details. But the real issue is whether this will harm fishermen if implemented, and I believe there is only one answer to that.

Don Cuddy is program director at the Center for Sustainable Fisheries.