Thursday, February 8, 2018


Conservation advocates were appalled last month when they learned that the Commonwealth of Virginia had decided to appeal actions taken by the Atlantic States Marine Fisheries Commission’s Atlantic Menhaden Management Board last November, when it adopted Amendment 3 to the menhaden management plan and established catch limits for the next two fishing seasons.

Virginia’s appeal was surprising, because the state came out the clear winner at the November meeting. 

It successfully fought back the effort to establish interim ecological reference points, which would have required fishery managers to take menhaden’s role as a forage fish into account when setting catch limits.  

Such interim ecological reference points, if adopted, could have potentially led to a substantial reduction in the amount of menhaden landed by Virginia, which dominates the menhaden fishery.  Such interim reference points were broadly supported by the public comments received on the issue, and still, Virginia prevailed.  That, in itself, was a major win for the state.

And Virginia came away from the meeting with its menhaden quota effectively intact.  

Although public comment strongly supported no increase in the overall menhaden harvest, the Management Board ultimately decided to increase 2018 and 2019 landings by 8%, in order to provide a number of states with some landings—at least 0.5% of the overall harvest—while not causing Virginia any harm.  As it turns out, Virginia did have its landing reduced by 0.43%--insignificant given that Virginia will still be allocated 78.66% of the quota, and that the other 15 jurisdictions will all have to share the 21% that remains—but losing that iota of quota still caused the state to complain that it was treated unfairly, and that the increase in landings should have been hire.

Virginia probably did technically lose on the issue of capping menhaden harvest in Chesapeake Bay, as the Management Board substantially decreased the so-called Bay Cap.  

However, since fishermen weren’t catching the entire Bay quota anyway, and the cap was merely lowered to reflect annual landings, such loss was far more theoretical than real.

Even so, Virginia felt aggrieved, and appealed the Management Board’s actions to ASMFC’s Policy Board.  

It argued that the reallocation of landings, which caused Virginia to lose 0.43% of overall landings, was not consistent with the fishery management plan, because it was not biologically, socially and economically sound.  Such claim was rejected by ASMFC, which noted, in part, that

“Given the [fishery management plan] goal of equitable allocation, one could argue that allocating nearly 80% of [total allowable catch] to one jurisdiction within a 15 jurisdiction management unit is not an equitable distribution to the primary user groups…The Board had significant deliberations on the issue of what is equitable allocation.  By choosing the fixed minimum allocation method, the Board was able to address the needs of the different stakeholders, taking into account the needs of the directed fishery, while having a minimal negative impact relative to the 2017 quotas.”
So it seemed that Virginia wasn’t going to gain any ground there.

Virginia also claimed that the allocation method adopted by the Management Board was “radical” and “unorthodox” as it failed to adequately consider historical landings, although it noted that an further  increase in the annual catch limit, from 216,000 to 220,000 metric tons, would be an alternate way to address the state’s concerns.

However, ASMFC didn’t find that a valid point either.  It noted that conditions in the fishery change, and managers should be allowed to adjust management approaches to allow for such changes.  It noted that the Management Board considered a 220,000 metric ton quota, and decisively voted it down.  And it summed up its decision on the point by observing,

“These sorts of decisions highlight the nature of cooperative interstate fisheries management—to seek to balance the different needs and values of all involved states, not the one or the few.  These difficult decisions are sometimes necessary in service to the management goals of the [fishery management plan.]”
So Virginia lost that argument, too.

Then, Virginia alleged that, by giving each state a minimum allocation of menhaden and setting aside a pool of fish equal to 1% of the overall landings for “episodic events” in the northeast, reducing Virginia’s allocation by less than one-half of one percent was an “unforeseen circumstance” that justified ASMFC taking action to make Virginia whole.

However, ASMFC noted that the allocations, and the episodic events set-aside, where debated and voted on, and so were hardly unforeseen.  Moreover, because some states announced that they would not be using their minimum allocation in 2018, allowing such fish to go back into the common pool, Virginia would actually end up with 4 million pounds more menhaden in 2018 than it was allocated in 2018, making it hard to argue that any tangible harm had been done.

That was three strikes against Virginia, but the state wasn't out of the game.

It had appealed on a fourth ground, arguing that the reduction in the cap on harvest in Chesapeake Bay wasn’t based on any reliable technical information, and thus was invalid.  

On that point, they found a bit of sympathy from ASMFC.  

While ASMFC noted that

“The Bay Cap was set at the average landings in the Bay from 2012-2016 (rounded up); therefore, it was not arbitrarily lowered nor was it expected to significantly impact the prosecution of the fishery,”
it agreed to consider the matter, and suggested an approach that might address Virginia’s concerns.

Chesapeake Bay anglers, who believe that the harvest of menhaden within the Bay adversely impacted various predators, including striped bass, were not pleased by that decision.  The broader conservation community also had concerns.

Thus, everyone was surprised and delighted when they learned, on the eve of the meeting day, that Virginia had entirely withdrawn its appeal.

Delight wore off in about ten minutes, at which point folks started asking “Why did they do it and what does it mean?”
And right now, nobody knows for sure.  Quite a few folks are seeing something ominous in the action. 

Unless it passes legislation to reduce the Bay Cap, Virginia will not be in compliance with ASMFC’s menhaden management plan, which could result in a formal non-compliance finding to be forwarded to the Secretary of Commerce.  If that occurs, the Secretary of Commerce could either impose a moratorium on menhaden harvest in Virginia until the General Assembly acts, or find that the Bay Cap isn’t necessary to the conservation of the menhaden resource, and override anysuch non-compliance finding, as it did last summer when New Jersey went out ofcompliance with ASMFC’s summer flounder management plan.

Some people believe that is Virginia’s strategy, and that it hopes to both regain its lost 0.43% share of the harvest and negate the reduction in the Bay Cap at the secretarial level.  They can find support in the closing line of Virginia’s appeal letter, which says

“As required by the [Interstate Fishery Management Policy] Board’s Appeals Process pursuant to which this appeal is taken, Virginia commits to comply with the [Interstate Fishery Management Policy] Board’s decision in this matter, subject to its right to take further action beyond the ASMFC process to seek relief.  [emphasis added]”
And that may well be Virginia’s plan.  There is certainly substantial political pressure being applied by the menhaden industry and allied organizations.  On the other hand, Virginia would have had nothing to lose in making its case before ASMFC, and arguably would have put itself in a better place in any subsequent proceeding by doing so, as it could then argue that it did all it could, but exhausted every available remedy before relying on secretarial action.

The same principle would apply should Virginia elect to sue ASMFC over its decision.  Generally, a plaintiff is required to exhaust all administrative remedies before seeking judicial review of an agency decision, so abandoning its appeal to ASMFC’s policy board would thus create an obstacle to Virginia obtaining judicial relief.  

As a practical matter, prevailing in a lawsuit against ASMFC would probably be very difficult, as a decision in the matter of New York v. Atlantic States Marine Fisheries Commission, decided by the Second Circuit in 2010, found that ASMFC is neither a federal agency nor a quasi-agency, and that its decisions are not subject to review under the federal Administrative Procedures Act.  

Still, Virginia sits within the Fourth Circuit, where Second Circuit decisions are merely persuasive, and not binding, authority, so there is a possibility that a suit brought there could lead to a different result.  It also should be noted that if the suit was brought not by Virginia, but by the Omega Protein Corporation, which is the nation’s largest menhaden harvester, Virginia’s failure to exhaust all administrative remedies probably would not bar legal action, although New York v. ASMFC would still stand in its way.

It should also be noted that Virginia elected a new governor in November, and that the appeal was filed by the previous administration.  The withdrawal could merely signal a change in administration policy, and a hope that the General Assembly will ultimately adopt the new cap for the Bay.

Even if the General Assembly doesn’t act, and the Secretary of Commerce finds Virginia out of compliance, it is very possible that there will be no significant impact on Virginia's menhaden fishery this year.  

Under the Atlantic Coastal Fisheries Cooperative Management Act, which governs ASMFC and the enforcement of its management actions, should the Secretary of Commerce find a state out of compliance, he would have up to six months to impose a moratorium on the relevant fishery. 

Thus, if the General Assembly fails to comply with the menhaden management plan, and no special meetings or conference calls are scheduled, ASMFC wouldn’t find Virginia out of compliance until it's regular May meeting.  It would then have a week to notify the Secretary of Commerce of its findings, and the Secretary would then have an additional 30 days to conduct his own review.  That would bring the proceedings well into June, at which point the Secretary could, if he desired, impose a moratorium beginning six months later—mid-December.

By then, the moratorium would have no immediate impact.  The menhaden fishery doesn't hit its stride until May, providing the General Assembly with plenty of time to act even after a moratorium was imposed.  While such timing could not be guaranteed, it would allow business as usual to continue until all parties had a chance to fully understand what occurred, and also understand what still needs to be done.

So did a new day just dawn for menhaden in Chesapeake Bay?

Probably not.  Even the reduced Bay Cap reflects the status quo, and Virginia’s overall landings have not been reduced at all.

Yet, if the withdrawn appeal really does reflect a new administration’s policy, and not some less benign plan, it may well presage a new and better future not only for Virginia’s menhaden, but for all of the state’s living marine resources.

So for now, at least, there is reason for hope.

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