Center for Food Safety already pursuing Freedom of Information Act case against Army Corps in regard to creation of permit
On June 22, the Center for Food Safety and eight other organizations — including the Don’t Cage Our Oceans Coalition and Recirculating Farms — announced their intent to file suit against the U.S. Army Corps of Engineers (USACE) over the agency’s issuance of Nationwide Permit 56, which would facilitate the establishment of “fish farms” in federal offshore waters.
Federal law requires 60 days of notice before any entity formally files suit against a government agency.
In its Notice of Intent, the Center for Food Safety (CFS) argues that the permit “is in violation of the [U.S. Endangered Species Act] ESA because the Corps failed to ensure, through consultation with the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) … against jeopardy to threatened and endangered species protected under the ESA, and to ensure against adverse modification of designated critical habitat of any protected species.”
“As recognized by the U.S. Supreme Court,” the Notice of Intent says, “the Endangered Species Act is ‘the most comprehensive legislation for the preservation of endangered species ever enacted by any nation’ and ‘reveals a conscious decision by Congress to give endangered species priority over the “primary missions” of federal agencies.’”
In its 1988 ruling in Conner v. Burford, the 9th U.S. Circuit Court of Appeals ruled that, in all ESA analyses and decisions, “agencies must ‘give the benefit of the doubt to the species,’” the Notice of Intent continues.
Moreover, the Notice points out, Section 7(a)(2) of the Endangered Species Act “requires the Corps, as the ‘action agency,’ to determine if a proposed action, like the issuance of [Nationwide Permit] 56, ‘may affect’ any listed species or designated critical habitat. If so,” the Notice adds, “then the Corps must enter [into] consultation with the expert wildlife agencies” — the USFWS for terrestrial and freshwater species, and the NMFS for marine species.
The USACE nationwide permit was issued just eight months after President Donald Trump signed a May 2020 Executive Order calling for the streamlining of the permitting process to establish offshore aquaculture projects, a Center for Food Safety news release points out. “In this short time frame, the Corps skirted much of the required environmental review, including its requirement to ensure that authorization of these facilities does not jeopardize the existence of imperiled species protected under the Endangered Species Act,” the release contends.
“Rather than thoroughly considering how these industrial fish farms may harm threatened and endangered species, the Corps kicked the can down the road to the project-level, once a facility is proposed. In so doing, the Corps overlooked potential impacts of its nationwide authorization as a whole and the cumulative impacts on endangered species — especially those with vast ranges like endangered whales, sea birds, and sea turtles,” the release adds.
“Contrary to claims that farmed fish production will alleviate pressure on wild fish stocks, industrial aquaculture has exacerbated the population declines of wild fish,” the Center for Food Safety and its allies contend. “This will be especially true in offshore aquaculture facilities that farm carnivorous fish, which require a diet often derived from wild-caught fish such as menhaden, mackerel, herring, and anchovies,” the release explains.
“Industrial aquaculture also releases excess nutrients and toxic chemicals that threaten endangered species, wild fish, and other wildlife,” the release adds. Wild fish such as endangered salmon “are also at risk when farmed fish inevitably escape from aquaculture facilities and outcompete wild fish for food and mates, and transfer diseases, viruses, and parasites to wild populations,” the release points out.
As noted in the release, the mission of the Center for Food Safety “is to empower people, support farmers, and protect the earth from the harmful impacts of industrial agriculture. Through groundbreaking legal, scientific, and grassroots action, we protect and promote your right to safe food and the environment.”
The CFS has more than 1 million members nationwide, the release notes.
During a July 15 phone interview with The Sarasota News Leader, Marianne Cufone, an attorney as well as the founder and executive director of the nonprofit Recirculating Farms, said she did not know for certain that the nonprofit organizations would proceed with the lawsuit over Nationwide Permit 56. “[They] are still discussing whether they will take action,” she said. It is expensive and time-consuming, she acknowledged, to pursue a federal lawsuit.
Jenny Loda, staff attorney for the Center for Food Safety (CFS), told the News Leadervia email that CFS and its allies have five years from the issuance of Nationwide Permit 56 “to bring a challenge against it, so we have approximately 3½ years left to file.”
The other organizations contemplating the legal challenge are the Institute for Fisheries Resources, based in Eugene, Oregon; Lost Angeles Waterkeeper, which has its offices in Santa Monica; the Pacific Coast Federation of Fishermen’s Associations, also in Eugene, Oregon; the Quinault Indian Nation, of Taholah, Wash.; San Diego Coastkeeper; and the Wild Fish Conservancy, based in Duvall, Wash.
Asked how the nonprofits became aware of Permit 56, Cufone explained, “A variety of groups have been monitoring this issue …” She added, “We knew about Velella Epsilon for a long time.”
Cufone was referring to a pilot “fish farm” planned about 45 miles off the Sarasota County coast. In mid-June, the Region 4 staff of the Environmental Protection Agency (EPA), headquartered in Atlanta, reaffirmed its issuance of a final permit for that initiative, following a legal challenge through the federal Environmental Appeals Board. (See the related article in this issue.)
The FOIA action
On July 25, subsequent to issuing its Notice of Intent to bring suit against the USACE, the Center for Food Safety (CFS) filed a Freedom of Information Act lawsuit against the USACE “for unlawfully withholding records regarding the Corps’ approval of [Nationwide Permit 56],” the organization announced.
“It’s time now for the Corps to provide some transparency to the public regarding the first ever nationwide permit for finfish aquaculture in federal waters,” said Meredith Stevenson, staff attorney at the Center for Food Safety, in the July 25 news release.
In May, the nonprofit submitted its FOIA request to the USACE, the release notes. “The Corps has yet to produce any records,” the release adds.
In its complaint, filed in the U.S. District Court for the District of Columbia, the Center for Food Safety says the USACE “is violating FOIA by failing to produce records in response to [the Center’s] request, failing to conduct an adequate search for responsive records, and by failing to provide an initial determination as to the scope of the records to be produced or withheld, an estimated date by which the agency’s search will be complete, and a determination on [the nonprofit’s] fee waiver request.”
Moreover, the complaint contends, “Because prompt access to these records is necessary to effectuate FOIA’s purpose,” the Center for Food Safety is asking the court to rule that the USACE is in violation of FOIA and to order that the USACE must “provide responsive records without any further delay.”
The complaint also explains that the Center for Food Safety (CFS) “has long had a specific aquaculture program, dedicated to addressing the adverse environmental and public health impacts of industrial aquaculture, including numerous policy, scientific, and legal staff. In its program,” the complaint continues, “CFS strives to ensure and improve aquaculture oversight, furthering policy and cultural dialogue with regulatory agencies, consumers, chefs, landowners, and legislators on the critical need to protect public health and the environment from industrial aquaculture and to promote and protect more sustainable alternatives. CFS and its members are harmed by USACE’s violations of FOIA, as such violations preclude CFS from gaining a full understanding of the decision-making process regarding the approval of [Nationwide Permit] 56 and prevent CFS from disseminating information to the public concerning USACE’s oversight of this novel industry.”
The complaint does acknowledge that, “[i]n certain limited instances, an agency may withhold records or portions of records pursuant to nine specific exemptions. … These exemptions must be ‘construed narrowly in keeping with FOIA’s presumption in favor of disclosure.’”
The complaint was quoting from a 2010 ruling of the U.S. District Court for the Washington District in Pub. Citizen, Inc. v. Office of Mgmt. & Budget.
However, the complaint points out, “FOIA places the burden on the agency to prove that it may withhold responsive records or portions of records from a requester.”