Metro

Fishermen file suit in N.H. against NOAA over observers

Observer trainee Tom Butler , 22, and trainer Wes Rand weigh a basket of spiny dogfish during a gillnet training trip in the Massachusetts Bay near Scituate last July.
Craig F. Walker/Globe Staff
Observer trainee Tom Butler , 22, and trainer Wes Rand weigh a basket of spiny dogfish during a gillnet training trip in the Massachusetts Bay near Scituate last July.

A group of fishermen in the region filed a lawsuit Wednesday against the National Oceanic and Atmospheric Administration in federal district court in Concord, N.H., arguing that the agency violated their rights by forcing them to pay for a controversial program that requires government-trained monitors on their vessels to observe their catch.

The fishermen, who in the coming weeks will be required to pay hundreds of dollars every time an observer accompanies them to sea, argue that the costs are too much to bear and will put many of them out of business.

They’re asking the court to prevent the regulations from taking effect when the federal dollars now subsidizing the program run out early next year.

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“I’m extremely fearful that I won’t be able to do what I love and provide for my family if I’m forced to pay,” said David Goethel, one of the plaintiffs, who for 30 years has been fishing for cod and other bottom-dwelling fish out of Hampton, N.H. “I’m doing this not only to protect myself, but to stand up for others out there like me whose livelihoods are in serious jeopardy.”

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The lawsuit alleges that, by forcing fishermen to pay for the monitors, regulators have violated their Constitutional rights and that their actions are “arbitrary, capricious, and an abuse of discretion.”

It adds that agency officials are “acting in excess of any statutory authority granted by Congress” and “improperly infringing on Congress’s exclusive taxation authority.”

As a result, the fishermen claim, the government’s authority to require the payments are “void and unenforceable.”

Fishing officials acknowledge that requiring the fishermen to pay for the so-called “at-sea monitoring” program will increase the hardship of fishermen who are already struggling with major cuts to their quotas. A federal report this year found that the costs could cause 59 percent of the region’s groundfishing fleet to lose money.

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But agency officials have said that NOAA no longer has the money to pay for the program, and that by law, the fishermen were supposed to start paying for the observers three years ago.

The government has defrayed the costs because of the industry’s financial turmoil, said John Bullard, the agency’s regional administrator. In February, the agency told fishermen they would have to start paying later this year.

Bullard declined to comment on the lawsuit. “NOAA Fisheries does not discuss ongoing litigation,” he said. “Independent of any litigation, we appreciate the challenge that paying for at-sea monitoring raises for fishermen.”

He and others noted that the fishermen may end up paying less than they expect for the observer program.

Indeed, last week, the New England Fishery Management Council, which oversees the region’s industry, approved measures to alleviate some of the fishermen’s costs of having observers monitor their catch. The observers, whose job is to help the government curb overfishing, now accompany fisherman on about one-quarter of their trips to sea.

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The council’s recent action, if approved by NOAA, could reduce by half the number of trips that observers are required to take. The new regulations – which the government has estimated could cost fishermen up to $710 per trip with an observer – would reduce that requirement from nearly one-quarter of trips to as low as 13 percent.

But fishermen say that the costs may still be too much to bear, and could mean the difference between being able to afford to fish and being forced to remain tied up at their docks.

“Our sector will be effectively shut down if these fishermen are forced to pay,” said John Haran, who oversees 49 fishermen who belong to the Northeast Fishery Sector 13, another plaintiff.

The lawsuit was also filed against the Department of Commerce, which oversees NOAA. Environmental advocates have also sued the government this year, arguing that the monitoring program has too many loopholes.

Oceana, a Washington-based advocacy group, has estimated that groundfishermen in the Northeast have been illicitly discarding an average of about $25 million a year in fish they shouldn’t be catching. Fishermen are supposed to bring in all of the fish they catch, and then pay to “lease” additional quota if they go over the limits. By discarding the extra fish, they avoid the payment but also make it impossible for regulators to account for what they are catching.

David Abel can be reached at dabel@globe.com. Follow him on Twitter @davabel.