Relentless Inc., et al. v. U.S. Dept. of Commerce, et al.

Washington, DC (February 1, 2022) – Atlantic herring fishermen are having to spend huge sums of money to fund agency-mandated at-sea monitors to police the harvest aboard their ships. The New Civil Liberties Alliance has filed an opening briefin the appeal of Relentless Inc., et al. v. U.S. Dept. of Commerce, et al., in the U.S. Court of Appeals for the First Circuit. NCLA represents a private fishing company against the regulating agencies.

NCLA, a nonpartisan, nonprofit civil rights group, is suing the Department of Commerce, the National Oceanic and Atmospheric Administration (NOAA), and the National Marine Fisheries Service (NMFS) for threatening the livelihoods of fishermen with a mandate that is both unconstitutional and lacking statutory authority. The lawsuit argues the lower court erred in holding that the Magnuson-Stevens Act allows these agencies to create an at-Sea Monitoring Program and force regulated fishermen to pay for it.

NOAA, NMFS, and the New England Fishery Management Council (NEFMC), dissatisfied with the amount of monitoring they could perform with the funds from Congressional appropriations, formulated and implemented the Industry-Funded Monitoring Omnibus Amendment to “increase monitoring” and “assess the amount and type of catch and more precisely monitor annual catch limits.” This Final Rule ignores Congressional limits on burdening fishers in the New England fisheries. NCLA argues that the federal agencies cannot fund their operations through this mandate, outside of Congressional appropriations. Appellees assert they can require a regulated party to pay for at-sea monitoring of fish stocks when: 1) Congress has explicitly authorized it by statute; or 2) Congress has not authorized it by statute but has allowed the placement of monitors on private vessels.

Appellants Relentless Inc., Huntress Inc., and Seafreeze Fleet LLC are small businesses incorporated in Rhode Island and Massachusetts engaged in commercial fishing of Atlantic herring as well as Loligo and Illex squids, Butterfish, and Atlantic Mackerel. They use a unique at-sea freezing technique that allows the vessels to stay at sea longer than other vessels in the Atlantic herring fishery and provides each vessel flexibility in what catch it harvests during fishing trips. Fishing trips typically last 7-14 days at sea, compared to 2-3 days for other vessels in the herring fleet. It can cost anywhere from $750 to $850 a day to have monitors on board. That’s more than they make in profit from the fishing catch a day.

It is arbitrary and capricious to allow some fishers to harvest more herring without monitors, while requiring the Relentlessand Persistence vessels to be monitored when they harvest fewer herring. This is particularly true when the cost of monitoring is higher than for any statutory program Congress has authorized in the fisheries.

NCLA released the following statements:

“The lower court relied on Chevron deference to uphold the agencies’ actions here. But such deference, even if it should unfortunately continue to exist, ought not be used to aggrandize agency power to circumvent the very protections Congress has created against those same agencies in statute.”
— John Vecchione, Senior Litigation Counsel, NCLA

“This case concerns a conflict between what Congress permitted and what agencies wish Congress had permitted. NOAA and NMFS 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. But instead of asking Congress for that power, they took it for themselves and dared industry to object. This unlawful power grab harms our clients financially, but it also offends the Constitution when agencies claim and wield power they do not have.”
— Kara Rollins, Litigation Counsel, NCLA

For more on this topic visit the case page, watch the case video, or watch January’s Lunch & Law.

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Washington, DC (July 30, 2021) – The New Civil Liberties Alliance released a video today outlining why it is unconstitutional to force Atlantic herring fishermen to fund government-mandated monitors at sea. It is “the equivalent of having a cop in your car who’s policing you while you drive, and you have to pay his salary out of your own pocket,” said Meghan Lapp, Fisheries Liaison & General Manager for Seafreeze, Ltd. about the rule being challenged in Relentless Inc., et al. v. U.S. Dept. of Commerce, et al.

The Relentless Inc., Huntress Inc., and Seafreeze Fleet LLC are small businesses of high-capacity freezer trawlers incorporated in Rhode Island and Massachusetts that have commercially fished Atlantic herring as well as Loligo and Illex squids, butterfish, and Atlantic Mackerel for more than thirty years. The rule penalizes NCLA’s clients unfairly by making them pay for herring monitors even when fishing for other catches.

NCLA, a nonpartisan, nonprofit civil rights group, represents these private fishing companies in their lawsuit against the Department of Commerce (DOC), the National Oceanic and Atmospheric Administration (NOAA), the National Marine Fisheries Service (NMFS), and the New England Fishery Management Council (NEFMC). The at-sea monitor mandate, issued in 2018, is unlawfully “industry-funded.” These agencies do not have statutory authority from Congress to order additional industry funding for a program that the agencies think is underfunded, but they have issued a rule that threatens the livelihoods of fishermen regardless.

Earlier this week, NCLA presented oral argument before the U.S. District Court for the District of Rhode Island. Both sides have moved for summary judgment.

Excerpts from the video:

“It can cost anywhere from $750 to $850 a day to have these onboard monitoring people. That’s more than they make in profit from the fishing catch a day. So, while these monitors are there, if this program is implemented and they’re on your boat, you won’t be making any money. You’ll be fishing for nothing.”
— John Vecchione, Senior Litigation Counsel, NCLA

“It’s a multi-species fishery on these boats over the course of a long trip. If I leave the dock and I declare into herring, an at-sea monitor is going to make the trip. They may not see a herring for the whole trip. We may never go herring fishing. We shouldn’t have to pay for an at-sea monitor on a daily basis if we’re not actually herring fishing.”
— Kyle Goodwin, Owner, Seafreeze, Ltd. and Captain of F/V Persistence

“I brought about this case because for three years I went to every single herring advisory panel meeting, every single herring committee meeting, every single New England Council meeting, telling them about the problems with this amendment, and not one person listened.”
— Meghan Lapp, Fisheries Liaison & General Manager, Seafreeze, Ltd.

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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Washington, DC (December 7, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has filed a motion asking the U.S. District Court for the District of Rhode Island to award summary judgment in favor of NCLA’s clients in Relentless Inc., et al. v. U.S. Dept. of Commerce, et al. NCLA argues that the U.S. Department of Commerce, the National Oceanic and Atmospheric Administration (NOAA), and the National Marine Fisheries Service have no power to make fishermen pay for monitors the government puts on their boats. So, NCLA is asking the Court to declare NOAA’s regulation seeking to implement an industry-funded, at-sea-monitor mandate on the nation’s Atlantic herring fishermen unconstitutional and set it aside.

NCLA’s clients, small Rhode Island fishing businesses, are entitled to summary judgment on three grounds. First, the mandate violates the U.S. Constitution’s Article I. Congress never authorized these agencies to require payments for at-sea monitors in the Atlantic herring fishery. The federal agencies’ attempt to fund their operations through a requirement that fishermen contract with government contractor at-sea monitors outside of Congressional appropriations, violates the Magnuson-Stevens Act (MSA)—meant to protect, manage, and grow U.S. fishery resources. The MSA’s structure and purpose, and its associated regulatory framework, prohibit industry-funded monitoring as proposed by the Secretary of Commerce, NOAA and the other Defendants.

Second, industry funding unconstitutionally forces NCLA’s clients into a market they do not wish to join. They are being forced to hire these monitors only because an administrative agency has created the office without statutory basis. NOAA wants to require small commercial fishing businesses to purchase the equipment to “solve” the “problem” of Congress not appropriating the amount of money NOAA wants for monitoring, and it wants to penalize them if they do not enter this market by barring them from the fisheries.

Lastly, the February 7, 2020 Final Rule, which created the requirement to “increase monitoring” in some fishery management plans and “assess the amount and type of catch and more precisely monitor annual catch limits,” violates the Regulatory Flexibility Act. The Act requires administrative agencies to consider the effects of their actions on small businesses and to reduce their impact where possible. It was discovered that of the 66 businesses affected by the Final Rule, 62 were small businesses, and only 30, like NCLA’s clients, were actively fishing Atlantic herring. The agencies involved completely ignored alternatives to their unlawful proposals contrary to Congressional mandate.

Agencies cannot be allowed to fund themselves without authorization from Congress. And the U.S. Department of Commerce and its subsidiaries failed to comply with the MSA and the RFA while trying to fund their regulatory activities at the expense of small commercial fishing businesses.

NCLA released the following statements: 

“One of the main checks on government, and an important bulwark of liberty, is how much government activity Congress is willing to fund. If Agencies, without Congressional authorization, are allowed to pick the pockets of anyone whom they regulate as it suits them, the Founders’ efforts to give Congress the Power of the Purse will be circumvented.” 

– John Vecchione, NCLA Senior Litigation Counsel 

For more information visit the case page here. 

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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WASHINGTON, DC, March 4, 2020 – The New Civil Liberties Alliance today filed a lawsuit in the U.S. District Court of Rhode Island against the U.S. Department of Commerce (DOC), the National Oceanic and Atmospheric Administration (NOAA), the National Marine Fisheries Service (NOAA Fisheries), as well as the heads of those agencies. The suit challenges the agencies’ unconstitutional and statutorily unauthorized effort to force fishing companies to pay for a new agency enforcement program. NCLA represents Relentless Inc., Huntress Inc. and their related company, Seafreeze Fleet LLC, in this facial challenge to DOC/NOAA’s newly promulgated rule.

The at-sea monitor mandate for the nation’s Atlantic herring fleet violates the U.S. Constitution’s Article I, and the agencies have exceeded the bounds of their statutory authority, because Congress never allowed these agencies to create or to require the industry to finance at-sea monitors or an at-sea monitoring program in the Atlantic herring fishery.

The New England Fishery Management Council’s Industry-Funded Monitoring Omnibus Amendment (IFM Amendment) and the February 7, 2020 Final Rule created the requirement to “increase monitoring” in some fishery management plans and “assess the amount and type of catch and more precisely monitor annual catch limits.” But NCLA contends the federal agencies’ attempt to fund their operations through this mandate, outside of Congressional appropriations, violates the U.S. Constitution. In addition, it violates the Magnuson-Stevens Act (MSA)—meant to protect, manage, and grow the U.S. fishery resources.

Relentless and Huntress own fishing vessels (F/V Relentless and F/V Persistence) equipped with unique at-sea freezing technology, which allows their fleet to stay longer at sea than other ships in the Atlantic herring fishery and provides their vessels flexibility in what catch it harvests during a fishing trip. The MSA does not contemplate or even use the word “at-sea monitor” and does not require any ships to pay for such monitors. But under the IFM Amendment and the Final Rule, Relentless and Persistence would be forced to carry a herring at-sea monitor employed by a NOAA-approved or certified private company—even on trips that do not land herring. Thus, Relentless, Huntress, and Seafreeze will be subject to disparate treatment including higher costs relative to the rest of the Atlantic herring fleet. The IFM Amendment and the Final Rule would also force these small commercial fishing companies to enter a market for at-sea monitors that they do not wish to enter.

Agencies cannot be allowed to fund themselves without authorization from Congress. Congress appropriated funds for observers, and NOAA has to make do with those funds. Among other problems, NCLA believes that mandating small commercial fishing businesses to pay for the Atlantic herring at-sea monitoring program is arbitrary, capricious, and an abuse of government power.

NCLA released the following statements:

“NCLA filed this case on behalf of our clients because the Administrative State’s effort to fund itself, completely outside Congressional appropriations and authorization, must be stopped. These runaway agencies cannot create an “off the books” source of funding when Congress has already decided how much money to give them.”

– John Vecchione, NCLA Senior Litigation Counsel

 “The livelihoods of America’s herring fishermen and the industry are at stake here. We cannot allow these agencies to assume power that Congress did not grant them. NCLA will continue working to stop agencies from violating people’s civil rights with unlawful mandates that threaten to ruin entire industries. This regulation should be thrown back into the sea.”
– Kara Rollins, NCLA Litigation Counsel

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
For more information visit us online at NCLAlegal.org.

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