“Small comfort”

In a major decision handed down by the Fourth Circuit Court of Appeals, a group of North Carolina shrimpers won a huge victory!

In a unanimous decision on August 7, 2023, the Court affirmed a previous decision made by U.S. District Court Judge Louise Flanagan on September 17, 2021. The plaintiffs then appealed, with the oral arguments made before the court in the fall of 2022.

Background: In August of 2020, the NC Fisheries Reform Group, and others, including Joseph Albea, filed a citizen lawsuit alleging that certain named shrimpers in North Carolina are violating the federal Clean Water Act by discharging their bycatch overboard and by discharging pollutants by disturbing sediment with their trawl nets.

The Court ruled thusly: “The Act forbids the unpermitted discharge of a pollutant. Returning bycatch to the ocean is not discharging a pollutant, so throwing it overboard without a permit is not forbidden by the Act. Likewise, because the trawl nets merely kick up sediment already present in the Sound, their use does not discharge any pollutants either. Accordingly, we affirm the district court’s dismissal of Fisheries’ (Reform Group) complaint.”

While the North Carolina Fisheries Association was not a party to the lawsuit as an organization, they were engaged as the decision would have tremendous repercussions to the shrimpers, the industry as a whole and indeed to commercial and recreational fishermen nationwide. NCFA’s Executive Director, Glenn Skinner, said “This is a huge win for all fishermen, commercial and recreational. If the courts had decided with Mr. Joseph Albea and the Coastal Fisheries Reform Group, the results would have been devastating for both sectors.”

In its explanation of the case, Judge Richardson explained that his daughter would be in violation if the Plaintiff’s arguments prevailed if she caught a fish with a minnow and threw it back. He said, “At argument, Fisheries’ (Reform Group) sought to assure me that the EPA would not exercise its discretion to lock her up or take her allowance. Small comfort.”

Here are just a couple of other quotes made by Judge Richardson and affirmed by Judges Rushing and Lydon: 

"Almost every commercial or recreational fishermen in America would be subject to EPA's new regulatory control." 

The opinion goes on to say that anyone who fishes and after catching a fish "...releases it back into the ocean, would violate the Clean Water Act unless they first obtained a Clean Water Act permit alongside their ordinary fishing permits." 

\The judges also exclaim, "... (the Plaintiffs) seeks to vastly expand the EPA's regulatory authority in a way that would upset the federal-state balance by intruding on states' authority to manage fisheries in their own waters and essentially moot the established science to regulate bycatch in federal waters. This sea-change would have an enormous impact on the recreational and commercial fishing industries; industries which Congress has specifically sought to protect." 

The Court asserts that this case is a “major-questions” case that has significant political and economic consequences. In such cases, it’s usually the bureaucratic agency that has tried to assert broad, nationwide power, resting its authority on a provision that did not clearly authorize such as assertion. The Court’s opinion states, “Here, the EPA is not asserting such a power. In fact, it’s not asserting anything since this is a citizen suit between private parties. But (the) Fisheries’ (Reform Group) is suing precisely because the EPA has not acted. Their suit is designed to compel EPA action.”

It is overly concerning when a person or group can make such a claim against ordinary citizens, costing them hundreds of thousands of dollars when those ordinary citizens are conducting business, supplying jobs and producing food to consumers while abiding by what both state and federal laws allow them to do.

NCFA asks, why would the Coastal Fisheries Reform Group file a lawsuit that would have such dire consequences for commercial fishing families, eastern North Carolina and even the recreational fishing community? In our opinion they are blinded by their zeal to eliminate an immensely proud and historical group of families from producing a healthy source of protein for the American consumers.