VIRGINIA COURT'S MENHADEN DECISION COULD HAVE BROADER IMPLICATIONS

 

Last May, a group called the Southern Maryland Recreational Fishing Organization sought judicial review of a Virginia Marine Resources Commission rulemaking that increased the state’s commercial menhaden quota.  A press release jointly issued by the Organization and by its counsel, the Chesapeake Legal Alliance, noted, in part, that

“The best available evidence shows that menhaden populations in the [Chesapeake] Bay are in decline.  As overfishing of menhaden continues, there is a strong and direct correlation with declines in populations of sportfish, osprey and marine mammals, along with forced shifts in diet away from their primary food source of menhaden.  For more than a decade, outdated and unreliable data from population surveys in the Atlantic—and not in the Bay—have been used to justify fisheries regulations that fail to protect the public, Bay fishermen, and the Bay ecosystem…

“The petition was filed by the Chesapeake Legal Alliance…to require the VMRC to follow Virginia law and properly regulate the menhaden fishery.  This means first lowering the allowable catch within Virginia waters and the Bay, and requiring the reduction fishery to operate at a safe distance from shore.  Second, in addition to protecting the menhaden fishery and the Bay, the VMRC must obtain the best available science and data of seasonal menhaden populations within the Bay, and not rely on outdated data from twenty, thirty or even hundreds of miles away in the Atlantic.”

Some of the claims made in the press release might not be in complete accord with fisheries managers’ views of the Atlantic menhaden resource or the state of menhaden management.  However, the allegations made in the petition challenging the Virginia Marine Resources Commission’s rule were more precise.  They included a claim that

“The Regulation is invalid because it was not promulgated within the statutorily mandated time period or pursuant to Virginia law, and otherwise fails to comply with Virginia law by allowing an increase in the harvest of menhaden over the previous year’s limits, and fails to decrease the harvest of menhaden specifically allowable within the Bay.  As a result, the Regulation fails to protect Virginia waters and the Bay by allowing degradation of the fishery in Virginia waters and the Bay.”

The petition also claimed that the challenged rule violated the requirements of section 28.2-203 of the Virginia Code, which establishes a set of standards for fishery management plans and fishery regulations that are very similar to the National Standards for Fishery Conservation and Management established in the federal Magnuson-Stevens Fishery Conservation and Management Act.

Pursuant to the Virginia statute,

“…Any fishery management plan prepared, and any regulation promulgated to implement the plan, shall be consistent with the following standards for fishery conservation and management:

1.  Conservation and management measures shall prevent overfishing while achieving the optimum yield from each fishery.  The ‘optimum yield’ of a fishery means the amount of fish or shellfish which will provide the greatest overall benefit to the Commonwealth, with particular reference to commercial fishing for food production and to recreational fishing;

2.  Conservation and management measures shall be based on the best scientific, economic, biological and sociological information available;

3.  To the extent practicable, an individual stock of fish shall me managed as a unit throughout the territorial waters of the Commonwealth, and interrelated stocks of fish shall be managed as a unit or in close coordination;

4.  Conservation and management measures shall not discriminate among user groups.  If it becomes necessary to allocate or assign fishing privileges among various user groups, such allocation shall be (i) fair and equitable to all fishermen; (ii) reasonably calculated to promote conservation; and (iii) carried out in such manner that no person acquires an excessive share of such privileges;

5.  Conservation and management shall, where practicable, promote efficiency in the utilization of fishery resources, except that no such measure shall have economic allocation as its sole purpose;

6.  Conservation and management measures shall take into account variations among, and contingencies in fisheries, fishery resources, and catches;

7.  Conservation and management measures shall, where practicable, minimize regulatory burdens which inhibit innovation, expansion, and normal business operations.”

Any fishery regulation that failed to measure up to the standards set out in the law would presumably be vulnerable to a court challenge.

Virginia naturally disagreed with the petitioning Organization, which claimed that its 2023 menhaden quota did not comply with such law, and filed a demurrer to the petition.  A demurrer is a venerable common law pleading, not a part of the jurisprudence of every state, which effectively argues that, even assuming that every fact alleged by a plaintiff (or petitioner) is true, there is still no basis for a legal action.  It asks that the case be dismissed.

On October 6, the court issued a ruling on the demurrer.  Neither side scored a clear win, nor suffered a complete loss.  Instead, the court dismissed the Organization’s claim that the Virginia Marine Resources Commission promulgated the subject regulation outside the statutory window when menhaden regulations might be legally adopted.  The court found that the previous menhaden quota was set only for the year 2022, and did not extend into 2023.  Thus, to avoid going out of compliance with the Atlantic States Marine Fisheries Commission’s menhaden management plan, and so risking a shutdown of the Virginia’s entire menhaden fishery, the statute allowed the VMRC to set a new 2023 quota, even if it had to do so outside of the statutory window.

However, the court also found that the Organization’s claim that the VMRC, is setting the quota, did not comply with section 28.2-203, should not be dismissed, but must be adjudicated.  It’s important to note that, in doing so, the court did not decide that the Organization had successfully challenged the regulation.  It merely decided that the claim survived the demurrer, because the Organization alleged facts that, if true, constituted a cause of action against the VMRC.

Thus, the breathless announcement that appeared in some social media accounts after the court handed down its decision, which declared in capital letters

“VIRGINIA MARINE FISHERIES COMMISSION FOUND GUILTY !!!”

was a little premature (not to mention that the petition challenging the legality of the rule is a civil matter, and that “guilt” is a criminal concept, and foreign to civil law).

What the court decision really means is that a hearing will now be held on the substance of the petition, when the court will take testimony, probably in the form of affidavits and transcripts of VMRC meetings that support a motion for summary judgment, to determine whether the VMRC considered the standards established by Virginia Code section 28.2-203.

If the court finds that the rule setting the 2023 quota met the standards set out in the Virginia Code, the petition will be dismissed; if the court finds that the rule did not comply with the Code, the rule will be set aside.

Only after that hearing is held will we know who prevailed.

Even so, the recent decision on the demurrer could have broader implications for Virginia fishery managers.

Typically, states don’t work very hard to justify regulations based on ASMFC actions.  They merely adopt the ASMFC’s management measures, whether such measures set quotas or establish size limits, bag limits, and seasons, and justify the resulting rule by citing a need to comply with the ASMFC's decision.  

States almost never delve into the question of whether the ASMFC action is restrictive enough to adequately protect the resource, or more particularly, to protect the resource within a state’s waters.

But the court’s decision in Southern Maryland Recreational Fishing Organization v. Virginia Marine Resources Commission suggests that, at least in Virginia, regulators can’t merely rubber-stamp an ASMFC action.  While compliance with an ASMFC management measure is still required, the decision suggests that Virginia regulators have a legal obligation to go one step further, and determine whether the ASMFC measure satisfies the requirements of Virginia Code section 28.2-203, or whether a more restrictive measure might be needed.

Although the Organization’s petition specifically addressed menhaden management, there is no reason to believe that the same logic would not apply to all other ASMFC-managed species.

Granted, the decision in the Organization case creates only a weak precedent.  It was issued by a trial-level court, and does not involve a detailed analysis of the issues involved.  It is not binding on any other trial court in the state, and could easily be overturned by an appellate panel, should the VMRC decide to contest the decision.

Yet for now, the precedent remains, and could be used by other counsel, under other circumstances, in their efforts to convince other courts to support the conservation of Virginia’s marine resources. 

Perhaps the decision will fade into obscurity.

But perhaps—just perhaps—other attorneys will successfully cite it, to convince other Virginia courts that adopting an ASMFC management measure is only the first step in conserving and managing Virginia’s marine resources, and that in order to do a legally adequate job, the Virginia Code requires more.