The federal lawsuit filed by a New Hampshire fisherman to block NOAA Fisheries' plan to shift the cost of at-sea monitoring to groundfish permit holders has devolved, at least for now, into a paper fight.
Lawyers for plaintiff David Goethel, captain of the Ellen Diane out of Hampton, N.H., have filed a motion asking U.S. District Judge Joseph J. Laplante for an expedited hearing on the merits of the case. Federal lawyers have countered with a motion to dismiss the case outright.
Laplante, sitting in Concord, N.H., has yet to rule on either motion.
In late January, Laplante denied a motion by Goethel's lawyers for a preliminary injunction that would have immediately halted federal plans to shift the costs of at-sea monitoring to the groundfish boats, thereby helping stave off the impending economic carnage the shift is expected to visit on the already reeling fleet.
"Given that preliminary injunctive relief is not available, plaintiffs request that the court proceed to the merits at its earliest convenience," Goethel's lawyers wrote in their motion. "This case remains urgent, with a 'substantial, largely unrebutted' risk of 'potentially disastrous financial impact' impending in a matter of weeks."
The National Oceanic and Atmospheric Administration said it expects to run out of money for the at-sea monitoring around March 1. Groundfish fishing sectors have been instructed to begin negotiating with monitoring contractors to directly provide the service for the remainder of the 2015 fishing season and the 2016 fishing season that is set to begin May 1.
The question, however, is at what cost. The currently accepted estimate for the cost of groundfish monitors is about $710 per day per vessel, though some fishing sectors around New Bedford have said they were able to negotiate a better price from observer contractors.
Gloucester-based fishing sectors have declined to give specifics about their negotiations with the providers of observer coverage.
The motion by the government's lawyers to dismiss the case is based in their belief that Goethel and his co-plaintiff Northeast Fishing Sector 13 are "time-barred" from challenging the plan to shift the costs of monitoring to the groundfish permit holders because the challenge fell outside the established statute of limitation for challenging elements of the Magnuson-Stevens Act (MSA).
"Challenges to regulations promulgated under the MSA have a 30-day statute of limitations," federal lawyers wrote in the defendants' motion. "Plaintiffs' challenges were filed years after the statute of limitations period to challenge Amendment 16 final rule, where the agency implemented the requirement for industry funding of at-sea monitoring. "
Amendment 16, which established the sector system used in the current groundfish management plan, was finalized in 2009 and went into effect in 2012.
"Rather than bring their claim in 2010, in their 2015 lawsuit plaintiffs seek to reopen issues that should (and certainly could) have been raised five years ago and are now 'time-barred,'" the federal lawyers wrote. "Therefore, federal defendants respectfully request that this court grant this motion and dismiss plaintiffs' claims with prejudice."
The federal lawyers also stated in their motion that NOAA Fisheries "has reiterated at least annually" that the sectors ultimately will carry the funding responsibility for the the monitoring program.
"Allowing plaintiffs to raise claims five years after the fact would render the MSA's 30-day statute of limitations meaningless and undermine congressional intent as expressed by the limitations on judicial review," the government's motion said. "This is especially true in this case where the regulations have been effect for five years, requiring fishing participants to alter their fishing and business practices accordingly, and this [Amendment 16] has been litigated and upheld by other courts."
Contact Sean Horgan at 978-675-2714, or email@example.com. Follow him on Twitter at @SeanGDT