Alaska pollock plaintiffs in Bayside Program lawsuit renew request for relief from CBP fines
After filing a rate tariff as required by a judge’s order, Alaska Reefer Management and Kloosterboer International Forwarding have renewed their push for a restraining order against U.S. Customs and Border Protection to halt it from continuing to fine them for using a contested shipping route that runs through Canada.
In a 1 October filing, the companies – which are involved in catching Alaska pollock and shipping it to the U.S. East Coast – said they have complied with U.S. District Court Judge for the District of Alaska Sharon L. Gleason’s 28 September ruling requiring them to file a rate tariff for the so-called Bayside Program route, which uses a dead-end rail line as part of a transportation route that runs through New Brunswick, Canada, before they could ask her for relief from CBP enforcement.
American Seafoods subsidiaries Alaska Reefer Management (ARM) and Kloosterboer International Forwarding (KIF) said they filed the rate tariff on 30 September and filed a petition challenging CBP’s penalty notices, which amount to nearly USD 30 million (EUR 25.9 million) against KIF and its shipping partners. According to the companies’ original legal filing, they and their partners in the Bayside Program have been hit with at least 350 million (EUR 301.7 million) of total CBP fines for alleged violations of the Jones Act, which prohibits transportation of domestically-caught seafood and any other goods of U.S. origin inside the country unless the vessel is U.S.-built and U.S.-owned.
“The frozen seafood supply, as of the date of this motion, has been paralyzed for 45 days. The injunctive relief requested … will allow the resumption of shipment of the more than 25 million pounds of frozen seafood to American customers and consumers in the eastern United States and prevent plaintiffs and others from suffering further irreparable harm to their businesses, reputations, and livelihoods,” ARM and KIF wrote in their motion. “The court should grant the injunctive relief sought in plaintiffs’ motion and permit the administrative dispute process to proceed while granting plaintiffs and others involved with the [Bayside] Route the protection they desperately need during the pendency of this action so that they can resume their shipments without the looming threat that CBP will issue additional – enormous – Jones Act penalties.”
Gleason has not yet indicated when she will reply to the new request for a temporary restraining order against CBP, or how she will rule. According to ARM and KIF, there are no time limits imposed by law or regulation within which CBP must decide a petition for relief, so the two companies do not know when they have that decision for Gleason to consider.
However, in a response to the new filing, Acting U.S. Attorney E. Bryan Wilson, representing the CBP, said if Gleason were to consider the new request, it be consolidated within the companies’ previous filing and acted upon in the next four weeks with the filing of a federal response to the companies’ complaints, and response briefs due two weeks later.
But Wilson warned Gleason it is CBP’s belief that ARM and KIF are not seeking temporary relief from the fines, but rather a full endorsement of the Bayside Program, which he previously called “a calculated and secret scheme” to avoid the provisions of the Jones Act.
“What plaintiffs are seeking is not a preliminary injunction, but a permanent injunction barring CBP from ever issuing and enforcing any new penalty notices, for alleged violations of the Jones Act relating in any way to shipments from Alaska to U.S. destinations through Bayside commenced or completed at any time between the date of this order and the date of the final judgment in this action, and regardless of the outcome of this action,” he wrote. “Granting such a permanent injunction would not only be inconsistent with the constitutional tolling doctrine, such an order would violate the rule that 'it is generally inappropriate for a federal court at the preliminary-injunction stage to give a final judgment on the merits.'”
Photo courtesy of American Seafoods