Current Fisheries Issues in the Gulf of Mexico including the class action on behalf of - PowerPoint Presentation

1. Current Fisheries Issues in the Gulf of Mexico including the class action on behalf of Gulf of Mexico charter fishermen challenging AIS requirements.By: Andrew C. Wilson, PartnerMILLING BENSON WOODWARD, L.L.P.New Orleans/Mandeville, Louisiana 70471MLA Fisheries Committee Meeting Boston, MA November 4, 2021

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3. Warsaw Grouper, Grand Isle, LA: 383 lbs. 2oz.

4. zBIG BUSINESS

5. 2000 Charterfishing/Headboats are Big Business in GOMCharterfishing:Total revenue of $131 MillionIncomes of $60.3 million Over 3000 jobsParty/headboats:Total Revenue of 18.5 millionIncomes of $8.2 millionNearly 400 jobs

6. 2018 Pre-Pandemic figures1284 valid or renewable federal charter vessel/headboat Gulf permits.Gulf Charter vessels: $88,111 per vessel and $26,053 vessel in economic profitGulf Headboats: $267,067 per vessel and $77,960 per vessel in economic profit.

7. Southeast For-Hire Integrated Electronic Reporting (SEFHIER) ProgramVessel Monitoring System (VMS) requirement.This requirement applies to all owners or operators of vessels with Charter Vessel/Headboat federal permits for Gulf of Mexico Reef Fish or Gulf Coastal Migratory Pelagic Fish.Requires a NOAA Fisheries approved VMS unit that includes a GPS device affixed to the vessel that, at a minimum, archives vessel position data once per hour and transmits data at the end of the trip to NOAA Fisheries. Includes reimbursement program.The VMS requirement was to become effective on December 13, 2021.

8. RIVERS END OUTFITTERS, LLC v. U.S. DEPT. OF COMMERCE ET AL. CA No. 20-2312 U.S.D.C./E.D. La. Complaint for Permanent Injunctive and Declaratory Relief to prohibit the Department of Commerce (“Commerce”) through NOAA NMFS) from enforcing an unlawful and unconstitutional, industry-funded, warrantless 24-hour Global Positioning System (“GPS”) surveillance of location and movement of each vessel via a Vessel Monitoring System (“VMS”), targeting a select group of federally permitted charter boats and headboats in the Gulf of Mexico.

9. Mexican Gulf Fishing Company v. U.S. Department of Commerce, et al. CA No. 20-2312 (E)(1)A class action brought by various charter fishermen in the Gulf of Mexico challenging a requirement to carry vessel monitoring system devices providing real-time location data for charter fishing boats for purposes of managing catches.

10. AllegationsThe Fourth Amendment protects a person’s possessory rights as it forbids the government from trespassing without a warrant.The Fifth Amendment protects life, liberty, and property from taking by the Government without due process of law. U.S. Const. amend. V.The Ninth Amendment protects the people’s freedom of movement, right to travel, rights to free enterprise, freedom from unreasonable governmental interference, right to privacy, and all other unenumerated rights retained by the people of the United States.

11. Mandatory Electronic Reporting for Charter VesselsExpected to:1. Improve the data available for management and stock assessments;2. Improve the accuracy and timeliness of data collection; 3. Allow fishery managers to better monitor landings and discards, and more accurately assess the impacts of regulations on the for-hire industry fishing in federal waters;4. Would prevent data gaps and missed information;5. Reduces reporting time;6. Would provide data to the Southeast Fisheries Science Center more quickly and reduce the likelihood of exceeding the annual catch limits, and overfishing. It would also reduce the recall time period for those who wait until the deadline to report, which can improve data accuracyWhy is this needed?

12. Plaintiffs Claim "Administrative Overreach"Plaintiffs will be tracked by the government by a VMS device each of them will be forced to buy. The Final Rule will confer virtually no benefit upon the Defendants in monitoring fish stocks in the Gulf of Mexico.There are cheaper and less intrusive methods. The Final Rule requires Plaintiffs to contact the government whenever they wish to leave the dock, even if not fishing or using their federal permit in any way.

13. Class of Charter Fishermen Certified“Owners and operators of charter boat Gulf For-hire boats that have Reef and Pelagic fish licenses from the government and qualify as small businesses. Each representative is very concerned about the violations of the Constitution, personal privacy, costs, expenses andintrusiveness of this rule.”

14. Cross-Motions for Summary Judgment filedPlaintiffs:1. GPS tracking requirement is a Fourth Amendment search.2. GPS tracking is unreasonable.3. Mandatory installation of tracking equipment is a per se taking.4. VMS is a violation of APA a. Fails the "logical outgrowth test"; and b. Arbitrary and capricious.Defendants:1. Valid exercise of Congressionally delegated authority.2. Collection of data specifically contemplated by MSA.3. VMS is Constitutional as there are no violations of Constitutional Amendments.

15. Rule Implementation DelayedPlaintiffs petitioned NMFS to delay implementation of rule.New implementation date will likely be mid-2022.Motions still pending.

16. Bonnet Carre Spillway HijinksA Series of Lawsuits has been filed by the State of Mississippi and Private Citizens as a Result of the Opening of the Spillway

17. Bonnet Carre Spillway

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19. zBonnet Carre Spillway Open

20. Harrison County Mississippi, et al v. Mississippi River Commission and US Army Corps of Engineers, USDC Southern District of Mississippi, 1:19-cv-00986Plaintiff’s filed suit for declaratory and injunctive relief. In 2019 Army Corps of Engineers opened the Bonnet Carre Spillway for the fourth time in 10 years releasing polluted Mississippi River water through the Lake Pontchartrain Basin and into the Mississippi Sound wiping out virtually all of the oyster reefs in Mississippi. Other sea life, including commercially valuable fish, crabs, and shrimp, were driven out of their natural habitats. The polluted waters caused algae blooms which hurt the tourism industry in Southern Mississippi. The estimated financial impact is estimated at over $160,000,000. Plaintiffs claim that the Corps and River Commission did not follow federal requirements to consider impacts to costal communities and perform required analyses to reduce or precent the harm. Plaintiffs’ seek a declaration that Defendant violated the National Environmental Policy Act by failing to supplement the existing EIS and the Magnuson-Stevens Sustainable Fishery Conservation and Management Act by failing to consult the Secretary of Commerce before opening the spillway.They seek to enjoin Defendants from opening the spillway again without full compliance with the laws and formal consultation with Plaintiffs. The State of Louisiana intervened.Defendant’s filed a Motion to Dismiss the National Environmental Policy Act claims on the basis that there has been no waiver of sovereign immunity on the basis that MRC is not a federal agency within the meaning of the Administrative procedure act.

21. Harrison County, et al. : Opinion 1. MRC not an agency so no APA challenge available.2. Challenge to 1976 EIS time-barred.3. No duty to supplement EIS under NEPA since: (a.) no deviation from original EIS and, (b.) no “major Federal action” contemplated.4. Magnuson-Stevens Act claims against COE remain.

22. Oyster Fishermen Sue U.S.  Campo, et al v. United States, United States Court of Federal Claims, 20-44 Class action for compensation for “property taken by the government for public use through inverse condemnation.” Petitioners allege that in starting February 2019, the US Corps of Engineers opened the Bonnet Carrè Spillway for a record-setting 123 days in 2019, which redirected nearly ten trillion gallons of fresh water from the MS river into the Lake Pontchartrain Basin. This lowered the salinity levels in the waters and marshes where Petitioners cultivate oysters, causing between 18% and 100% oyster mortality. Government filed 12(b)(6) for claims alleging takings of the oysters themselves alleging that Plaintiff’s lack compensable property right in the oysters- Pending. Cites to Avenal dissent- “[t]he state owns the waters. [La. Stat. Ann. § 9:1101]. The state owns the oysters. La. Stat. Ann. § 56:3. Thus, the State could not take its own property. As Judge Tobias aptly noted in dissent [in the lower court decision], ‘[t]he State cannot appropriate or inversely condemn that which it already owns.’” 886 So. 2d 1085 at 1106. Plaintiffs opposed 12(b)(6)Cites to Avenal majority, among other cases,(" If the [Department of Wildlife and Fisheries] unilaterally terminates a lease and takes it back to create new seed grounds, DWF must compensate the leaseholder but only for 'oysters, seed oysters and other improvements." 886 So. 2d 1085, 1096 (La. 2004))  Tony Tesvich, Jr., et al v. United States of America, United States Court of Federal Claims, 20-55Same facts as above.Joint Motion to Consolidate with CampoGranted 5/1/20 Louis Curt Pannagle, et al v. United States, United States Court of Federal Claims, 20-47 Same facts as aboveJoint Motion to Consolidate with Campo and TesvichGranted 5/1/20 

23. Defendants’ 12(b)(6) Motion1. Oyster Lessees lack a compensable property right under Louisiana state law in the oysters, the water bottom or the water column including salinity concentrations.2. There can be no Fifth amendment taking if there is no property interest.3. Although under 28 USC 1497, compensation may be owed by the COE for oyster mortality caused by COE’s dredging projects, this is not dredging.

24. Florida v. GeorgiaFlorida brought an original action in the S.Ct. against Georgia alleging that its upstream neighbor consumes more than its fair share of water from interstate rivers in the Apalachicola-Chattahoochee-Flint River Basin. Florida claimed that Georgia’s overconsumption of Basin waters caused low flows in the Apalachicola River which seriously harmed Florida’s oyster fisheries and river ecosystem. A second Special Master had concluded that Florida failed to prove by clear and convincing evidence that Georgia’s alleged overconsumption caused serious harm either to Florida’s oyster fisheries or to its river wildlife and plant life. Florida filed exceptions.Supreme Court Held:Florida failed to prove by clear and convincing evidence that the collapse of its oyster fisheries was caused by Georgia’s overconsumption rather than a severe drought. Florida failed to show that Georgia’s alleged unreasonable agricultural water consumption caused reduced river flows, which in turn increased the Bay’s salinity, which in turn attracted saltwater oyster predators and disease, decimating the oyster population. Georgia offers contrary evidence that Florida’s mismanagement of its fisheries, rather than reduced river flows, caused the decline. Florida failed to prove that Georgia’s overconsumption has harmed river wildlife and plant life by disconnecting tributaries, swamps, and sloughs from the Apalachicola River, thereby drying out important habitats for river species. 

25. End Result: Apalachicola oyster fishery closed until 2025Members of the Florida Fish and Wildlife Conservation Commission approved the suspension as part of a $20 million restoration effort funded with BP settlement funds. the suspension could be shortened if efforts to improve the oyster population and revitalize the bay’s collapsed fishery can be done in less than five years.The rule change to suspend oystering has been backed by the Pew The rule change to suspend oystering has been backed by the Pew Charitable Trusts, the American Sportfishing Association, the National Wildlife Federation, the Florida chapter of the Nature Conservancy and Apalachicola Riverkeeper.

26. Alternative Oyster Culture may be the only option left.

27. zHurricane Ida Impacts

28. Private Oyster Lease Restoration (“POLR”) Program

29. POLR: PRIVATE OYSTER LEASE REHABILITATION Louisiana oysters bring the state $84 million annually and account for about a third of all oysters caught in the U.S.Hurricanes like Ida destroy oyster reefs by pushing marsh sediment, grass and debris on top of the reefs, “smothering them over time.”The Louisiana Oyster Task Force hopes to revive a state-run program created after Hurricane Katrina that would help oyster harvesters rehabilitate their fishing grounds and save the state from poor harvests in the next few years.POLR would reimburse leaseholders of oyster fishing grounds for eligible costs of rehabilitating oyster habitats on their state-owned leases. These costs include laying down material for oyster larvae to latch onto during early growth, called cultch or rock.

30. zQUESTIONS ?