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| Fisheries Litigation Updates |
| GULF FISHERMEN'S ASSOCIATION V. CARLOS GUTIERREZ, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF COMMERCE, THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, AND THE NATIONAL MARINE FISHERIES SERVICE |
This case was filed in the United States District Court for the Middle District of Florida on December 14,
2006. The official case number that has been assigned to the case is 8:06-cv-2313-T26-TBM. Official
records can be obtained from the court by referencing the case number.
In this case we make four arguments why the government may not require vessels carrying Gulf reef fish
permits to Install, operate and maintain Vessel Monitoring Systems (VMS). These arguments are as follows:
On January 03, 2007 the judge presiding over this case (Judge Lazarra) denied the government's request
for an extension of time to file their response to the complaint and the Administrative Record that must
accompany the response. Under the Magnuson-Stevens Fishery Conservation and Management Act the
government has 45 days in which to respond to the complaint. Therefore, they must file their response and
the accompanying Administrative Record by February 3rd. However, because the 3rd falls on a Saturday,
the Federal Rules allow for filing on the following Monday, February 5th.
In denying the government's request for an extension of time Judge Lazarra noted that the Magnuson-
Stevens Act provides for an expedited review process that other federal Acts do not, and because the
plaintiff has requested that the expedited review process be invoked in this case the government will not be
allowed any additional time in which to respond.
A copy of Judge Lazarra's order denying the government's request for an extension of time can be found
here: Order Denying Request for Extension of Time
On February 5, 2007, the government responded to the Complaint filed in this case with a Motion to
Dismiss the case based on the 30-day filing provision within the Magnuson-Stevens Act. We will have until
February 19th to respond to their claims and to request that an oral argument be heard on the Motion to
Dismiss.
On February 14th we responded to the government's Motion to Dismiss with a 19 page rebuttal, which sets
forth the reasons why the government is incorrect in its assertion that cases challenging actions under the
Magnuson-Stevens Act may only be brought within 30 days of their publication in the Federal Register.
The judge handed down an Order Denying the Government's Motion to Dismiss and finding in our favor
only two days later, on the 16th. The Order is significant, not only because it allows us to maintain this
action against the use of VMS, but also because the government's long-standing interpretation of the 30
day statute of limitations is drastically diminished. Parties effected by federal fisheries regulations
(including, but not limited to, commercial & recreational fishers, processors, NGO's, environmental groups,
etc.) can now maintain actions brought well beyond 30 days from the date on which the regulation was
promulgated. For a copy of our rebuttal, or to discuss this issue further, feel free to contact us.
On Friday, March 2nd government attorneys filed their Answer to the original Complaint and filed a Motion
for Reconsideration requesting that the judge handling this case revisit his ruling concerning the
government's previous Motion to Dismiss. Because the Motion for Reconsideration made no new legal
arguments, the judge entered an Order summarily denying the government's motion.
Also, on Friday March 2nd NOAA approved an extension of the VMS compliance effective date to May 6,
2007. The extension was granted to allow vendors time to install a backlog of previously ordered units.
On March 8th the Judge in this case entered a Scheduling Order concerning the deadlines for the
remaining motions and briefs necessary to resolve the VMS issues raised in our law suit. The Gulf
Fishermen's Association will enter their Motion for Summary Judgment no later than Friday March, 23rd; the
Government will enter their Reply and Cross-Motion for Summary Judgment no later than April 6th; and the
Gulf Fishermen's Association will enter their Response to to the Government's motion no later than April
20th. The Judge will then either enter a final ruling on the matter of set oral arguements.
On April 24th the Judge entered an Order Denying the Gulf Fishermen's Association's Motion for Summary
Judgment as Moot and granting the government's Cross-Motion for Summary Judgment. In doing so the
judge revisited his earlier ruling concerning the 30-day Statute of Limitations and determined that the Gulf
Fishermen's Association did not have standing to challenge the VMS regulations because the complaint
was not filed within 30 days of the regulation being published in the Federal Register.
On May 2nd a Motion to Amend judgment was entered with the court, which re-argues the 30-day
jurisdictional issue and asks that the court reconsider our arguements and to decide the case on the
merrits. This is not an appeal, but merely a request for reconsideration of the previous ruling.
The Gulf Fishermen's Association is in the process of determining whether it will file an appeal of the ruling
to the 11th Circuit Court of Appeals in Atlanta. It has 60 days to file any such Appeal.
The Gulf Fishermen's Association has decided to move forward with an Appeal to the 11th Circuit Court of
Appeals. The Notice of Appeal was filed on June 21, 2007. Briefs will be submitted over the course of the
next few months as dictated by the Federal Rules of Appellate Procedure.
The Gulf Fishermen's Association has filed its Initial Appellate Brief with the 11th Circuit on July 26, 2007.
A mandatory mediation between the parties is scheduled to take place during the second week of
September and, if the mediation does not result in a resolution of the case, the government will file their
Reply Brief near the end of that month.
On April 11, 2008, the 11th Circuit Court of Appeals in Atlanta heard oral arguements from Mike and the US
Justice Department attorney that is representing NOAA in this Appeal. The three judge pannel hearing the
case seemed to be leaning in favor of the Gulf Fisherman's Association. A ruling in the case should be
handed down by the court within the next six months.
On June 13, 2008, the Court handed down its opinion regarding the appeal. in a unanimous decision the
Court found in favor of the Gulf Fisherman's Association and held that the case had been wrongfully
dismissed by the Judge Lazarra in the US District Court for the Middle District of Florida. The Court
reversed Judge Lazarra's ruling and remanded the case back down to the Middle District of Florida for
further hearings and to decide the case on the merrits. (Read the Appellate Court's Opinion here). NOAA
has 60 days to appeal the decision to the Supreme Court.
NOAA has decided not to appeal the 11th Circuit's decision to reverse and remand the case back to the
Middle District of Florida. Judge Lazarra has ordered a scheduling hearing to be held no later than
October 2, 2008. During the scheduling hearing the parties will determine what papers (if any) need to be
filed prior to the court ruling on the merrits of the case, and when those papers must be filed. It is expected
that no papers will be filed by either party and the court should render a decision concerning the VMS case
sometime around the end of 2008.
After more than two months of discussions between the parties, this case has been settled and on Sept.
26, 2008, Judge Lazarra signed an Order dismissing the case based upon the Settlement Agreement of the
parties.
For further information regarding this case, please feel free to contact Mike.
2006. The official case number that has been assigned to the case is 8:06-cv-2313-T26-TBM. Official
records can be obtained from the court by referencing the case number.
In this case we make four arguments why the government may not require vessels carrying Gulf reef fish
permits to Install, operate and maintain Vessel Monitoring Systems (VMS). These arguments are as follows:
- The government has not complied with the Magnuson-stevens Act, National Standard Number 8
requirement that the economic impact to fishing communities be considered; - The VMS requirement is arbitrary and capricious in that it will not accomplish the at sea enforcement
goals that is designed to accomplish; - The VMS requirement violates provisions of the Regulatory Flexibility Act; and
- The VMS requirement violates the right to privacy provided for under the Fourth Amendment of the
United States Constitution.
On January 03, 2007 the judge presiding over this case (Judge Lazarra) denied the government's request
for an extension of time to file their response to the complaint and the Administrative Record that must
accompany the response. Under the Magnuson-Stevens Fishery Conservation and Management Act the
government has 45 days in which to respond to the complaint. Therefore, they must file their response and
the accompanying Administrative Record by February 3rd. However, because the 3rd falls on a Saturday,
the Federal Rules allow for filing on the following Monday, February 5th.
In denying the government's request for an extension of time Judge Lazarra noted that the Magnuson-
Stevens Act provides for an expedited review process that other federal Acts do not, and because the
plaintiff has requested that the expedited review process be invoked in this case the government will not be
allowed any additional time in which to respond.
A copy of Judge Lazarra's order denying the government's request for an extension of time can be found
here: Order Denying Request for Extension of Time
On February 5, 2007, the government responded to the Complaint filed in this case with a Motion to
Dismiss the case based on the 30-day filing provision within the Magnuson-Stevens Act. We will have until
February 19th to respond to their claims and to request that an oral argument be heard on the Motion to
Dismiss.
On February 14th we responded to the government's Motion to Dismiss with a 19 page rebuttal, which sets
forth the reasons why the government is incorrect in its assertion that cases challenging actions under the
Magnuson-Stevens Act may only be brought within 30 days of their publication in the Federal Register.
The judge handed down an Order Denying the Government's Motion to Dismiss and finding in our favor
only two days later, on the 16th. The Order is significant, not only because it allows us to maintain this
action against the use of VMS, but also because the government's long-standing interpretation of the 30
day statute of limitations is drastically diminished. Parties effected by federal fisheries regulations
(including, but not limited to, commercial & recreational fishers, processors, NGO's, environmental groups,
etc.) can now maintain actions brought well beyond 30 days from the date on which the regulation was
promulgated. For a copy of our rebuttal, or to discuss this issue further, feel free to contact us.
On Friday, March 2nd government attorneys filed their Answer to the original Complaint and filed a Motion
for Reconsideration requesting that the judge handling this case revisit his ruling concerning the
government's previous Motion to Dismiss. Because the Motion for Reconsideration made no new legal
arguments, the judge entered an Order summarily denying the government's motion.
Also, on Friday March 2nd NOAA approved an extension of the VMS compliance effective date to May 6,
2007. The extension was granted to allow vendors time to install a backlog of previously ordered units.
On March 8th the Judge in this case entered a Scheduling Order concerning the deadlines for the
remaining motions and briefs necessary to resolve the VMS issues raised in our law suit. The Gulf
Fishermen's Association will enter their Motion for Summary Judgment no later than Friday March, 23rd; the
Government will enter their Reply and Cross-Motion for Summary Judgment no later than April 6th; and the
Gulf Fishermen's Association will enter their Response to to the Government's motion no later than April
20th. The Judge will then either enter a final ruling on the matter of set oral arguements.
On April 24th the Judge entered an Order Denying the Gulf Fishermen's Association's Motion for Summary
Judgment as Moot and granting the government's Cross-Motion for Summary Judgment. In doing so the
judge revisited his earlier ruling concerning the 30-day Statute of Limitations and determined that the Gulf
Fishermen's Association did not have standing to challenge the VMS regulations because the complaint
was not filed within 30 days of the regulation being published in the Federal Register.
On May 2nd a Motion to Amend judgment was entered with the court, which re-argues the 30-day
jurisdictional issue and asks that the court reconsider our arguements and to decide the case on the
merrits. This is not an appeal, but merely a request for reconsideration of the previous ruling.
The Gulf Fishermen's Association is in the process of determining whether it will file an appeal of the ruling
to the 11th Circuit Court of Appeals in Atlanta. It has 60 days to file any such Appeal.
The Gulf Fishermen's Association has decided to move forward with an Appeal to the 11th Circuit Court of
Appeals. The Notice of Appeal was filed on June 21, 2007. Briefs will be submitted over the course of the
next few months as dictated by the Federal Rules of Appellate Procedure.
The Gulf Fishermen's Association has filed its Initial Appellate Brief with the 11th Circuit on July 26, 2007.
A mandatory mediation between the parties is scheduled to take place during the second week of
September and, if the mediation does not result in a resolution of the case, the government will file their
Reply Brief near the end of that month.
On April 11, 2008, the 11th Circuit Court of Appeals in Atlanta heard oral arguements from Mike and the US
Justice Department attorney that is representing NOAA in this Appeal. The three judge pannel hearing the
case seemed to be leaning in favor of the Gulf Fisherman's Association. A ruling in the case should be
handed down by the court within the next six months.
On June 13, 2008, the Court handed down its opinion regarding the appeal. in a unanimous decision the
Court found in favor of the Gulf Fisherman's Association and held that the case had been wrongfully
dismissed by the Judge Lazarra in the US District Court for the Middle District of Florida. The Court
reversed Judge Lazarra's ruling and remanded the case back down to the Middle District of Florida for
further hearings and to decide the case on the merrits. (Read the Appellate Court's Opinion here). NOAA
has 60 days to appeal the decision to the Supreme Court.
NOAA has decided not to appeal the 11th Circuit's decision to reverse and remand the case back to the
Middle District of Florida. Judge Lazarra has ordered a scheduling hearing to be held no later than
October 2, 2008. During the scheduling hearing the parties will determine what papers (if any) need to be
filed prior to the court ruling on the merrits of the case, and when those papers must be filed. It is expected
that no papers will be filed by either party and the court should render a decision concerning the VMS case
sometime around the end of 2008.
After more than two months of discussions between the parties, this case has been settled and on Sept.
26, 2008, Judge Lazarra signed an Order dismissing the case based upon the Settlement Agreement of the
parties.
For further information regarding this case, please feel free to contact Mike.
| A copy of the Complaint filed in this case can be found here: Gulf Fishermen's Association Complaint |
| Mike Mastry ATTORNEY & COUNSELOR, P.A. |
| Notable Case Updates |
| On this page you will find brief updates on notable fisheries cases that we are currently litigating. Unfortunately we are not able to provide detailed information on all aspects of these cases as this may put us at a strategic disadvantage in a case. If you have any questions concerning a specific aspect of any of these cases please feel free to contact Mike and he will be happy to address your questions. |
| Fisheries Law - Maritime Law - Marine Resource Regulation |