MUST NORTH CAROLINA CONSERVE AND MANAGE ITS MARINE RESOURCES?

Federal fishery management has been successful largely because the Magnuson-Stevens Fishery Conservation and Management Act compels fishery managers to prevent overfishing, rebuild overfished stocks in a timely manner, base management actions on the best scientific information available, and hold fishermen accountable when they exceed their annual catch limits.

The National Marine Fisheries Service’s management actions are subject to judicial review.  Should any action fail to meet the standards established by Magnuson-Stevens, such action can and probably will be challenged in court.  Thus, beginning in 2000, with the appellate court’s decision in Natural Resources Defense Council v. Daley, which determined that management measures must have at least a 50 percent probability of preventing overfishing, and extending to this present day, federal fishery managers have been legally obligated to properly conserve and manage the nation’s fish stocks.

The duties of state fishery managers are not so well-defined.  It is not unusual for the states to adopt less effective management measures which neither end overfishing nor rebuild overfished stocks. 

We saw that in 2017, when the Atlantic States Marine Fisheries Commission, formed pursuant to an interstate compact between East Coast states that came together to manage state-waters fisheries, adopted Amendment 1 to the Interstate Fishery Management Plan for Tautog, which permits the Long Island Sound stock of tautog to experience overfishing through 2029.  

We also saw it, twice, when the ASMFC’s Atlantic Striped Bass Management Board failed to implement a plan to rebuild the striped bass stock in no more than 10 years, as required by Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass, when such requirement was triggered by benchmark stock assessments released in 2013 and again in 2019.

Individual states also have a checkered record when it comes to managing inshore fish stocks.  Some, such as Florida, have been reasonably successful; others have not, with Louisiana’s mismanagement of its speckled trout (spotted seatrout) population a case in point.

While state-managed fisheries generally don’t fare as well as those subject to Magnuson-Stevens, state management is often praised by recreational fishing/boating industry and “anglers’ rights” organizations, which see conservative management measures as unduly restricting anglers' ability to pile dead fish on the dock, and thus as a threat to short-term industry profits.  

Yet there are also stakeholders who see the flaws in state management systems, and are trying to compel states to engage in meaningful conservation and management efforts.

One example of that is currently making news in North Carolina, where the local chapter of the Coastal Conservation Association (ironically, CCA is one of the organizations that, on the national level, is trumpeting the merits of state-level management) has sued the state of North Carolina, alleging that North Carolina has

“long-standing public trust responsibilities to manage coastal fish stocks in a way that protects the public trust rights of the public, as incorporated in the North Carolina constitution, to fish in North Carolina’s public waters.”

CCA North Carolina further claims that

“The state has failed to meet that legal duty.  Instead of allowing for profit exploitation of coastal fisheries resources by fewer than 7,000 to supplant the public rights of 11 million citizens to use coastal fisheries resources…

“Stocks in multiple fish species like river herring, Southern flounder, striped bass, spot, croaker and weakfish have declined precipitously since the late 1980s, with little to no will or effort by the state to implement the measures necessary to recover those stocks.”

CCA North Carolina said that

“The complaint also chronicles the staggering bycatch resulting from the State allowing the use of unattended gillnets and trawling in North Carolina estuarine waters heavily populated with juvenile fish—two practices that all other southeastern states have banned or severely curtailed due to the extraordinary amount of waste they generate.”

Not surprisingly, the State of North Carolina took exception to the Coastal Conservation Association’s claims, and moved to dismiss the lawsuit claiming, according to CoastalReview.org, a news site run by the North Carolina Coastal Federation, that it enjoyed immunity from such legal actions.  However, a judge recently ruled that the lawsuit may proceed; the state intends to appeal that ruling.

Depending upon its outcome, the Coastal Conservation Association’s lawsuit could set an important precedent, and set a new legal standard for state fishery managers in North Carolina, and perhaps elsewhere.  Professor Joseph Kalo, the Graham Kenan Emeritus Professor of Law at the University of North Carolina School of Law, believes that the state’s position is flawed, observing that

“The State’s assertion that it does not have an enforceable, affirmative obligation to manage North Carolina fisheries for the long-term public good flies in the face of the clear language of the North Carolina Constitution, Article I, Section 38, which states that the right to fish shall be forever preserved for the public good.  The State’s position would make the constitutional right to fish meaningless.  Surely the voters in 2018, who by a wide margin approved this amendment to the Constitution, believed that the right to fish meant something more than the right to wet a hook.  Preserving the right necessarily implies an obligation to use sound science to secure, protect, and manage the health of fishery resources for the long-term public good.”

Not surprisingly, North Carolina commercial fishermen are trying to recast the lawsuit not as a demand for good stewardship, but instead as a scheme of a “handful” of elitist, catch and release anglers to keep all of the fish for themselves, without regard for either the commercial fleet or for low-income anglers who want to take home fish to eat.

In doing so, the commercial industry’s spokesman does harm to the very people that he claims to support, the commercial fisherman and so-called “sustenance” (did he, perhaps mean “subsistence”?) angler who fishes for food.  For the answer to healthy commercial, recreational, and subsistence fisheries doesn’t lie in fishermen fighting each other for a bigger piece of an already shrunken and mismanaged pie, but in everyone working together to build a pie that is large enough to satisfy everyone’s needs. 

If the Coastal Conservation Association’s allegations are correct, that is, if the state permits the use of non-selective commercial gear to incidentally capture and kill large quantities of juvenile finfish, and if the State has not taken action to get overfishing under control, then such actions will hurt the long-term prospects of commercial and subsistence fishermen as much as they will hurt recreational fishermen.  In such case, although the commercial fishermen are unlikely to admit it, a CCA win will, in the long run, help them as well.

It is difficult to predict what any court will do.  But if the appellate court allows the lawsuit to move forward, and if the Coastal Conservation Association ultimately prevails on the merits of its case, the court’s decision will create a new paradigm in state fishery management where, for the first time, state managers will have a legally enforceable obligation to manage coastal fish stocks for long-term sustainability.

Because this is an issue being litigated in North Carolina state courts, with North Carolina as the sole defendant, and involves interpretation of the North Carolina constitution, the court’s final decision will not constitute binding precedent in any other state. 

Yet there is still reason to hope that, if the courts ultimately rule in favor of the CCA, that any such decision will be seen as persuasive authority by judges in other states, who might also interpret their states’ laws (such as section 13-105 of New York’s Environmental Conservation Law, which states, in part, that “It is the policy of the state that the primary principle in managing the state’s marine fishery resources is to maintain the long-term health and abundance of marine fisheries resources and their habitats, and to ensure that the resources are sustained in usable abundance and diversity for future generations…”) with the understanding that the state has a legally-enforceable obligation to manage marine resources for the greater public good.

We can only hope that will, in the end, be the outcome.