The court case involving the Port of Bayside's use of a 100-foot mini rail track that goes nowhere is continuing, with a federal judge in Alaska ruling on July 7 that U.S. Customs and Border Protection (CBP) can issue penalties for use of the rail track after that date. In October, Judge Sharon Gleason of the U.S. District Court for Alaska had issued a preliminary injunction preventing CBP from issuing additional fines for use of the mini rail, which is located across the St. Croix River from the Red Beach section of Calais.
      In addition, Judge Gleason ruled in May that the movement of frozen fish from Alaska over the 100-foot rail track does not constitute "transportation" as required by the "third proviso" of the U.S. Jones Act, which seeks to protect American shipbuilding and shipping operations. In her July ruling, Judge Gleason also clarified her earlier order that CBP violated U.S. law when it issued the notices of penalty without complying with the law's notice-and-comment provisions, stating that therefore CBP is precluded from enforcing its penalties previously issued for alleged violations of the Jones Act. However, Judge Gleason noted "that reasonable jurists could differ on the determination of that legal issue," and if her previous ruling is reversed on appeal then CBP would be able to enforce the penalties.
      The companies involved, which include Kloosterboer International Forwarding (KIF) and Alaska Reefer Management (ARM), have been facing penalties totalling over $350 million, the largest penalty ever for violating the Jones Act, a 1920 U.S. law that seeks to protect the fleet of vessels built in the U.S. and registered under the U.S. flag and that prohibits the use of foreign vessels to transport goods between U.S. points. The companies do not use U.S.-flagged vessels to transport the fish from Alaska to Bayside in Canada, but the "third proviso" to the Jones Act states that the prohibition on using non-U.S. flagged vessels does not apply to the transporting of goods between points in the U.S. over routes that in part use Canadian rail lines. The companies have been shipping frozen pollock and other fish from Dutch Harbor, Alaska, to the eastern United States through the Port of Bayside.
      Previously, the frozen fish that was unloaded at Bayside had been shipped by truck to either McAdam or Saint John and then by rail using the New Brunswick Southern Railway, before being trucked into the U.S. at Calais. However, in 2012 Kloosterboer Bayside, in order to save on costs, "radically changed their method of transporting seafood" and "devised a scheme" so that instead of using an established Canadian railway they would use "a specially-built mini-rail track, approximately 100 feet in length, that goes nowhere," CBP states in its court filings. After the fish is loaded onto trucks at the port, the trucks are driven to the track near the cold-storage facility at Bayside, onto the sole train and then pulled by a small engine to the end of the rail track and pushed back and are driven off and head to the Calais border crossing and into the U.S.
      Until the judge's temporary injunction was issued last October, the cold storage facility operated by Kloosterboer Bayside, which has a capacity of 15,000 metric tonnes, had been nearly full, as CBP would have been able to fine the company for shipping the frozen fish into the U.S. Shipments then were able to resume, until the judge's ruling in early July that does allow for the issuing of penalties by CBP. The port is now importing some frozen fish from Dutch Harbor, Alaska, but only for Canadian destinations, so the quantities are much less.