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NCFA has money to burn

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Ray Brown View Drop Down
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    Posted: 29 March 2018 at 2:18pm
They are back in court against the MFC once again.

Does this violate the terms of the southern flounder settlement agreement where the NCFA agreed to not bring the issue of open meetings violations prior to a certain date up again in another lawsuit?

Maybe another judge will answer that. If so, hopefully he/she will look at the new flounder stock assessment and apply it against the law of this state in regards to overfishing.

Lots going on in politically toxic NC.



NCFA files another one...
Shrimp trawling never stops in Pamlico Sound. It just pauses on the weekend so crabs can remove the dead and dying from the battlefield.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote TomM Quote  Post ReplyReply Direct Link To This Post Posted: 29 March 2018 at 6:56pm
Slowly but surely they are fishing themselves into extinction. The political background is changing and their recourse is the courts. I do wonder if challenge in court would keep Rose in
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Post Options Post Options   Thanks (0) Thanks(0)   Quote j.willis Quote  Post ReplyReply Direct Link To This Post Posted: 31 March 2018 at 8:02am
Exerpts from the website Ray originally posted:

https://www.prnewswire.com/news-releases/nc-fisheries-association-files-lawsuit-against-marine-fisheries-commission-for-lack-of-openness-and-transparency-300621718.html

NC Fisheries Association Files Lawsuit Against Marine Fisheries Commission For Lack Of Openness And Transparency


NEWS PROVIDED BY

NC Fisheries Association (NCFA) 

Mar 29, 2018, 10:41 ET

MOREHEAD CITY, N.C.March 29, 2018 /PRNewswire/ -- NC Fisheries Association yesterday filed a lawsuit against the Marine Fisheries Commission for violating open meeting laws and an overall lack of transparency and openness.

In February 2016, North Carolina State Auditor, Beth Wood, issued findings in connection with an audit of the Division of Marine Fisheries. The audit findings included, "there have been open meetings laws violated by several members of the commission." Also included in the auditor's findings were, "four separate email chains dated January 14, 2015September 8, 2015July 20, 2015 and February 10, 2015 that occurred between Marine Fisheries Commission Members. In each instance, the Commission's legal counsel, Philip Reynolds, stopped the email communication and reminded the commission members about open meeting laws."

The North Carolina Fisheries Association notified regulators and legislators about the auditor's findings in 2016. Although warned, NCFA alleges that the Marine Fisheries Commission continued violating the open meetings laws culminating with the most recent meeting in Wrightsville Beach, NC in February of 2018. The result was a 5-4 vote recommending the General Assembly change the criteria for commercial fishing licenses. The close vote came after overwhelming opposition to any changes and with all three commercial fishing commissioners voting against the measure.

"Open meeting violations by the Marine Fisheries Commission have been an ongoing problem that is well known to many in state government including regulators and legislators. While many complain about it, nothing has been done to stop it. Anyone that believes in an open and transparent process, should applaud the action we've taken. It's sad that we have to resort to such measures," said Glenn Skinner, NC Fisheries Association Executive Director.


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Post Options Post Options   Thanks (0) Thanks(0)   Quote WaterDog Quote  Post ReplyReply Direct Link To This Post Posted: 31 March 2018 at 9:38am
Thank god for sea scallops, swordfish and other well managed, healthy and profitable FEDERALLY managed fisheries that enable seafood tycoons to invest more profits in lobbyists, lawyers and other means to protect and expand their ability to influence and increase penny profits in state fisheries.

And some say aquaculture will help recreational fishing? It will only help to increase more investment in lobbyists and peddled influence in other sectors.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote todobien Quote  Post ReplyReply Direct Link To This Post Posted: 31 March 2018 at 3:04pm
Wonder if NCDenr Upper mngmnt and legislators will appreciate using tax payer money on yet another lawsuit
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Ray Brown Quote  Post ReplyReply Direct Link To This Post Posted: 31 March 2018 at 7:31pm
Tom. Some have been saying for over a year that Cooke is now the biggest obstacle to fishery reform in NC.

DEQ recognizes that. They understand that aquaculture is the way of the future, but they know it should be managed by the state not industry as the foragers have managed wild caught in NC for decades.
Shrimp trawling never stops in Pamlico Sound. It just pauses on the weekend so crabs can remove the dead and dying from the battlefield.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote j.willis Quote  Post ReplyReply Direct Link To This Post Posted: 01 April 2018 at 12:18pm
The NCFA is requesting that the motion, voted on by the MCF to redefine a commercial fisherman, be declared "null and void."

If that happens, then what is to prevent the MFC from revisiting this issue in the future? Or even the General Assembly from acting without a formal recommendation from the MFC?

How will the 3 new MFC appointees, come July 1, view the issue?

Could a new motion be passed? With stricter terms (e.g. instead of 2 out of 5 years, the conditions are required EVERY YEAR)?

Guess we'll all be watching what happens.





 
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Ray Brown Quote  Post ReplyReply Direct Link To This Post Posted: 01 April 2018 at 3:01pm
The whole purpose of this suit is to thwart reform. The same method of defer and deflect they have used for years.

Nothing in the suit even attempts to say that what the MFC passed is not good for the state or management of the resource. It just attempts to thwart reform based on the opinion of Rick Smith and the supposition that a five four vote is somehow collusion.

Everyone had an opinion on what was going to pass. They just chose one after the fact that matches their assertion.

Since Philip Reynolds is mentioned by name in the article and is quoted as part and parcel to the issue, then I would think the state is better served if they allow another attorney to represent the state or even hire outside counsel to aggressively defend.

This is not about fishery management. It is obviously an attempt to disrupt legal processes that the NCFA believes is headed in a direction that does not meet their goals.

Shrimp trawling never stops in Pamlico Sound. It just pauses on the weekend so crabs can remove the dead and dying from the battlefield.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Rick Quote  Post ReplyReply Direct Link To This Post Posted: 02 April 2018 at 3:55pm
Jerry is on the offensive...pure and simple.

Deny, Defend, Deflect, DELAY....INTIMIDATE...DELAY...INTIMIDATE...DELAY...

The NCFA charade of being concerned about sustainable fisheries and "legitimate science" is over.  The rumor mill has the NCFA letting its staff biologist, David Bush, go recently.  If true, why?  Because the charade is over and that money will now be spent on lawsuits to continue the Delay affecting the last twenty years of sustainable fisheries reform.

The current lawsuit is primarily for three purposes-

  • To paint the MFC as a unbalanced and unfair rogue commission.
  • To personally intimidate individual commissioners hoping they will resign.
  • To personally intimidate resource friendly citizens to keep them from seeking appointment to the commission.
Seeking Legislative Action
Jerry et al by painting the "unfair" commission as "unbalanced and rogue" is hoping that the NC Leg will take up the issue of how the commission is appointed.  Currently, the Governor appoints all nine seats.  There was a move last session to give three appoints each to the Governor, Senate Pro Tem and House Speaker. This move never saw the light of day thanks to resource friends on the House side.  Jerry is laying his foundation to again push this measure in the legislature.  

Intimidating Commissioners
Statute requires-

§ 143-318.9.  Public policy. Whereas the public bodies that administer the legislative, policy-making, quasi-judicial, administrative, and advisory functions of North Carolina and its political subdivisions exist solely to conduct the people's business, it is the public policy of North Carolina that the hearings, deliberations, and actions of these bodies be conducted openly. (1979, c. 655, s. 1.)

For a meeting or discussion of commission business to be in violation of the open meetings law, there must be five members present in a discussion, on a phone call or communicating electronically through email or text.  It is important to note that a social event with five or more members present is not a violation.

§ 143-318.10.  All official meetings of public bodies open to the public.

(d)       "Official meeting" means a meeting, assembly, or gathering together at any time or place or the simultaneous communication by conference telephone or other electronic means of a majority of the members of a public body for the purpose of conducting hearings, participating in deliberations, or voting upon or otherwise transacting the public business within the jurisdiction, real or apparent, of the public body. However, a social meeting or other informal assembly or gathering together of the members of a public body does not constitute an official meeting unless called or held to evade the spirit and purposes of this Article.


The NC Legislature enacted rule addressing "transparency" during the 2017 session.  The current pdf file from the legislature

http://www.ncga.state.nc.us/EnactedLegislation/Statutes/PDF/ByArticle/Chapter_143B/Article_7.pdf

does not reflect the change, but shown below is screen shot from the NCFA lawsuit.

Jerry (NCFA) has filed suit in Carteret County with what will surely be a "friendly" judge.  We saw during the Southern flounder supplement lawsuit that the first judge was an actual former law partner of the NCFA's attorney who was presenting the case.  The commission should expect no less for this lawsuit...unless they ask for a change of venue, which they should.

So where does personal intimidation come in...

Jerry knows that the Commission does not have an attorney to fight this lawsuit.  The legislature has punitively cut the NCDOJ budget due to Josh Stein being a Democrat and it being the Governor's former agency...not to mention the legal maneuvering going on between the legislature and Governor's office on multiple fronts.  It is my understanding that staff attorneys have been reduced by approximately half due to budget cuts.

Phillip Reynolds is now the staff attorney for both the Commission and the Division, a direct conflict of interest...but that's another subject.

Reynolds will surely press the Commission to "settle" Jerry's suit.  It is my understanding that Reynolds is not an experienced courtroom litigator.  Reynolds has also shown a propensity to be overly conservative when advising the Commission of its statutory authority and to be overly liberal in his interpretation of the constraints placed upon the commission by open meeting laws.  Both actions are understandable given that the NCFA is going to file a lawsuit to control the process and that NCDEQ has no money nor assigned attorney staff to adequately fight a lawsuit.

As stated on this board previously, one of the major reasons the Commission settled the Southern Flounder suit was because Reynolds advised the commissioners that they could be personally responsible for attorney fees if found guilty of the open meeting law violations.

...and Reynolds is correct-

§ 143-318.16B.  Assessments and awards of attorneys' fees.When an action is brought pursuant to G.S. 143-318.16 or G.S. 143-318.16A, the court may make written findings specifying the prevailing party or parties, and may award the prevailing party or parties a reasonable attorney's fee, to be taxed against the losing party or parties as part of the costs. The court may order that all or any portion of any fee as assessed be paid personally by any individual member or members of the public body found by the court to have knowingly or intentionally committed the violation; provided, that no order against any individual member shall issue in any case where the public body or that individual member seeks the advice of an attorney, and such advice is followed. (1985 (Reg. Sess., 1986), c. 932, s. 2; 1993 (Reg. Sess., 1994), c. 570, s. 3

As you can see, if Reynolds advises the commission to settle and they go against his advice, they can be personally responsible for attorney fees.  Likewise, it appears that if Reynolds advises them not to settle, and they follow their attorney's advice, then they cannot be personally assessed by the court.

Jerry has asked in the current lawsuit for reasonable attorney fees-

So, there's the INTIMIDATION for sitting members and any citizen considering an appointment to the MFC.

If you fight (against your attorney's advice) and lose, it could be on your personal dime...and Jerry has made it personal by suing each commissioner in both their official and individual capacities.


If the commission settles, what will Jerry ask for and give in return?

Will the commission admit to open meeting law violations in a settlement to reduce personal risk?  How can they without admitting to malfeasance, cause for removal from the commission.

You can view the actual lawsuit here-

http://1drv.ms/b/s!ArHvxdSx-xlqghrrjjbEpIEeYP0w 

The citizens of NC should be filing a lawsuit against the NCFA and Jerry Schill.

Let's start with the NCFA violating the terms of the Flounder Supplement Settlement Agreement-




Lets ask a judge in Wake County to throw out the settlement agreement and to consider new information showing the stock overfished with overfishing still occurring.  Let's ask the judge to at minimum reinstitute all southern flounder supplement measures.

...or lets ask the judge to completely shutdown the southern flounder fishery until implementation of Amendment 2 to the FMP.

Fight fire with fire or continue to lose to those deep industry pockets intent on delaying sustainable fisheries reform.

I will give it to those pockets- I respect them for having a plan, the funds to drive it and the balls to implement it.


Note on edit: 

Thought for the Day!

If state statute allows four members of the MFC to request in writing that the Chairman call a special meeting, how can those four members do so if four members discussing an issue is a violation of open meeting laws?  Because it is not a violation.

http://www.ncleg.net/EnactedLegislation/SessionLaws/PDF/1997-1998/SL1997-400.pdf

"§ 143B-289.26.  Marine Fisheries Commission – meetings; quorum. 

(a) The Commission shall meet at least once each calendar quarter and may hold additional meetings at any time and place within the State at the call of the Chair or upon the written request of at least four members.  At least three of the four quarterly meetings of the Commission shall be held in one of the coastal regions designated in G.S. 143B-289.24.

(b) Five members of the Commission shall constitute a quorum for the transaction of business.

Again, as seen above in plain English, it takes five members to constitute a quorum.  Without a quorum there is no "meeting" and therefore no violation of open meeting laws.

Where is the press in NC reporting this fact!



Edited by Rick - 03 April 2018 at 10:29am
fiogf49gjkf0d
NC Fisheries Management- Motto: Too Little, Too Late, Too Bad   Slogan: Shrimp On! Mission Statement: Enable Commercial Fishing At Any and All Cost, Regardless of Impact to the Resource.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote TomM Quote  Post ReplyReply Direct Link To This Post Posted: 02 April 2018 at 5:44pm
So who could or would file such a suit in wake county
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Post Options Post Options   Thanks (0) Thanks(0)   Quote mattrich21 Quote  Post ReplyReply Direct Link To This Post Posted: 02 April 2018 at 6:59pm
Edited Post:

I'm having a hard time with this one.  

They're essentially saying that polling fellow members for votes and members discussing potential "tweaks" to motions violates open meetings law.  

Clearly, the motion they dislike was passed in an "open meeting."  They seem to argue that the MFC wouldn't have gotten there if not for a bunch of shady dealings.  It's a stretch.  

















Edited by mattrich21 - 02 April 2018 at 7:35pm
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Rick Quote  Post ReplyReply Direct Link To This Post Posted: 02 April 2018 at 9:13pm
👍
...and what is the "harm" to the plaintive?

The motion asked that the legislature take up the issue with consideration for the recommendation of the MFC.

The legislature may or may not take it up and may or may not consider the recommendations. The legislature will do as it pleases with the motion or without it.  I know for a fact that individual legislators are looking at the issue for possible action in the short session...the facts are clear, the defining a commercial fisherman issue has been on the radar screen for over two years.  The Commission's February vote was a non-event. Has the letter even been sent?

This suit appears to be harassment of an official government body.


Filing a frivolous lawsuit is usually looked down upon by courts. In most cases, filing a frivolous lawsuit will lead to a civil fine of a certain amount of dollars (sometimes in the thousands). It may also lead to a contempt order. In serious cases or repeat filings, criminal consequences can result. If a court identifies a lawsuit as frivolous, they will usually dismiss the filing immediately without looking into the claims more or investigating evidence.

Abuse of the legal system is a serious matter and is not treated lightly. Thus, one should only file a lawsuit if they are certain that there claim has merit and is likely to succeed. Also, lawsuit should never be filed for personal reasons or to "get back" at a certain person or corporation.

Lawyers who engage in consistent frivolous litigation may also face fines, citations, or a suspension/revocation of their state bar license.



Edited by Rick - 03 April 2018 at 11:16am
fiogf49gjkf0d
NC Fisheries Management- Motto: Too Little, Too Late, Too Bad   Slogan: Shrimp On! Mission Statement: Enable Commercial Fishing At Any and All Cost, Regardless of Impact to the Resource.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote ryan Quote  Post ReplyReply Direct Link To This Post Posted: 03 April 2018 at 1:17pm
I mentioned back in Feb in the Defining a Commercial Fisherman thread, that there was violations of open meeting regulations and items were discussed before the vote between commission members.  Told that some on the commission were friends beforehand and dismissed by one as being a troll.  Looks like action was finally taken on this issue and a court will decide now whether there was any back room deals made.


"The Fugitive"33' Morgan Sportfisher Oak Island, NC
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Redfisher Quote  Post ReplyReply Direct Link To This Post Posted: 03 April 2018 at 1:58pm
You are trolling, again.

Make that (2).




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Post Options Post Options   Thanks (0) Thanks(0)   Quote Ray Brown Quote  Post ReplyReply Direct Link To This Post Posted: 03 April 2018 at 2:58pm
Ryan....

I'd like to ask you to show that a back room deal was made by five or more commissioners. That is what NCFA alleges, but now they have to prove it.

Do they have an email chain? Do they have a witness?

All we have is an assertion by the NCFA of wrong doing and now they have to prove it in court.   They can't use anything prior to 2017 as proof or else they again violate the southern flounder agreement terms and I'm sure that Floundemn would not want that.

I bet it would be easier to prove that a board member of the NCFA was cleaning river herring on the banks of the Chowan yesterday than proving the MFC colluded with each other for a 5-4 vote. If I can't prove it, I bet I can raise perception of it to a much higher level than this law suit.

My only hope is that the state does not settle this and lets it go to court and if the state wins then ask the NCFA to pay their fees and declare it a frivolous lawsuit and fine them for filing such. Actually, it appears that is exactly what the state is going to do.

No free rides on this one.

And about that NCFA board member cleaning river herring on the banks of a NC river......well....what did Kodak used to say? It surely raises the question of who is breaking the law and who is merely being accused of doing so. If you don't know what .exif data is within a digital photograph then everyone should learn. It contains both date and time as well as GPS co-ordinates as to where the photograph was taken.


Edited by Ray Brown - 03 April 2018 at 3:02pm
Shrimp trawling never stops in Pamlico Sound. It just pauses on the weekend so crabs can remove the dead and dying from the battlefield.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote TomM Quote  Post ReplyReply Direct Link To This Post Posted: 03 April 2018 at 7:00pm
Any chances of change in venue away from coast?
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Rick Quote  Post ReplyReply Direct Link To This Post Posted: 10 July 2018 at 10:34am
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NC Fisheries Management- Motto: Too Little, Too Late, Too Bad   Slogan: Shrimp On! Mission Statement: Enable Commercial Fishing At Any and All Cost, Regardless of Impact to the Resource.
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