Just over 43 years ago, in October 1981, the Atlantic States
Marine Fisheries Commission (ASMFC) released a document designated Fisheries Management
Report No. 1 of the ATLANTIC STATES MARINE FISHERIES COMMISSION.
It was 329 pages long and extremely well researched. Its
title page declared it to be the “Interstate Fisheries Management Plan for the
Striped Bass of the Atlantic Coast from Maine to North Carolina,” noted that it
was “Prepared by the State of Maryland Department of Natural Resources, Tidal
Fisheries Division as part of the Interstate Fisheries Management Program
administered by the Atlantic States Marine Fisheries Commission,” and revealed
that “Funds provided by Northeast Region, National Marine Fisheries Service,
National Oceanic and Atmospheric Administration under Cooperative Agreement
number NA-80-FA-00017.”
It was the first fishery management plan ever drafted by the
ASMFC.
And, from a practical perspective, it was just about
useless.
That’s not because the information in the report was
invalid. The document presented a comprehensive overview of the striped bass
fishery, which ranged from the natural history of the stock to a detailed
description of the existing commercial and recreational striped bass fisheries.
The problem was that, having produced a striped bass fishery
management plan, the ASMFC had absolutely no authority to put that plan to use.
At that time, the ASMFC was little more that an interstate debating society,
that could perform research and suggest management actions, but lacked the
authority to actually manage coastal fisheries.
And that was bad for the striped bass since, in 1981, the
stock had collapsed and few young fish were recruiting into the population, but
management authority was still in the hands of the coastal states, which seemed
more interested in protecting their fishermen’s short-term cash flow than in
adopting effective measures to conserve the striped bass.
That all changed in 1984 with the passage of the Atlantic Striped Bass
Conservation Act, which, for the first time, gave the ASMFC the legal
authority to compel member states to adopt its striped bass management plan.
States that refused would risk having a moratorium imposed on their fishery by
the federal government. With that law in place, the ASMFC soon adopted Amendment 3 to
the Interstate Fishery Management Plan for Atlantic Striped Bass, a measure
that severely restricted striped bass landings throughout the stock’s range,
and paved the way for the stock to fully recover from its collapse.
In 1993, Congress passed the Atlantic Coastal Fisheries
Cooperative Management Act (Coastal Fisheries Act) which extended the
ASMFC’s authority to adopt legally binding fishery management plans to all of
the species within its jurisdiction, and so establish consistent management
measures along the entire East Coast.
For nearly a quarter-century, the ASMFC’s management
authority was never successfully challenged. While its management actions
weren’t always popular, and some states delayed adopting them, the threat of a
federal moratorium that wouldn’t merely restrict the regulated fishery, but
instead shut it down entirely, soon caused states to come into compliance.
But that, too, changed. In 2017, New Jersey’s then-Governor
Chris Christie leveraged his relationship with the new Trump administration and
convinced the newly-appointed Commerce Secretary, Wilbur Ross, to
excuse New Jersey’s decision to go out of compliance with the ASMFC’s
summer flounder management plan.
That was the first time that a Commerce Secretary failed to
support the ASMFC, after the ASMFC had found a state to be out of compliance
with one of its management plans. But there are some worrying signs that the
ASMFC might be facing similar challenges in 2025.
Last March, two fishing industry groups, the Delmarva
Fisheries Association and the Maryland Charter Boat Association, sued the
ASMFC. In a
complaint that contained multiple legal and factual errors, the
plaintiff groups claimed that a recent addendum to its striped bass management
plan constituted an illegal “regulatory taking” of property pursuant to the
Fifth Amendment to the United States Constitution, and deprived the plaintiffs
of “of their rights to property and livelihood” without due process of law and
in violation of the Constitution’s Fourteenth Amendment. Plaintiffs asked the
trial court to grant a preliminary injunction that would prevent the addendum’s
new management measures from going into effect.
The trial court refused
to grant the injunction, deciding that the plaintiffs failed to demonstrate
that they were likely to prevail in the lawsuit, and didn’t prove that they
were likely to suffer irreparable injury if the injunction was denied, that the
balance of equities in the matter favored the plaintiffs, or that granting the
requested injunction was in the public interest, which are all criteria that
must be established before a preliminary injunction may be issued.
Plaintiffs appealed the trial court’s decision. The
appellate court’s decision hasn’t yet been released, but after judges
began making comments like “Isn’t this regulation intended to save and
preserve the striped bass? If you take that at face value, then without this,
the striped bass could become extinct, and your client would lose 100% of its
business,” it appeared likely that the trial court’s ruling would be upheld.
But the courts aren’t where the real challenge to the ASMFC
lies.
Capt. Rob Newberry, the chairman of the Delmarva Fisheries
Association, is urging
the state to withdraw from the ASMFC, effectively turning the clock
back to 1983, when Maryland could still manage its state-waters fisheries
without any regard for the views or the interests of its neighboring states, or
the coastwide needs of the striped bass resource. While Michael Luisi, an
associate director of the Maryland Department of Natural Resources’ Fishing and
Boating Services, has said that “the stakes would be too high” to justify such
action, has recognized
the need for interstate cooperation, and has provided assurances that
Maryland has no such plans to withdraw, the mere fact that some stakeholders
are urging such action is worrisome.
It is even more worrisome that other states, which have long
supported the ASMFC process, are expressing their intention to remain part of
the organization, but to go out of compliance with one of its management plans,
in this case, the updated fishery management plan for American lobster.
Addendum
XXVII to Amendment 3 to the Interstate Fishery Management Plan for American
Lobster (Addendum XXVII) established “a trigger mechanism to
automatically implement management measures to provide additional protection of
the Gulf of Maine/Georges Bank…spawning stock biomass. Under Addendum XXVII,
changes to gauge and escape vent sizes in [specified] Lobster Conservation
Areas…would be initiated based on an observed decline in recruit abundance
indices of 35% from the reference level equal to the three-year average from
2016 to 2018).”
When Addendum XXVII was adopted in May 2023, the ASMFC’s
American Lobster Management Board (Lobster Board) assumed that it would be some
time, if ever, before that trigger mechanism was tripped. However, in October
2023, the Atlantic
Lobster Technical Committee determined that 2022 recruitment had
already fallen beneath the 35% threshold, triggering the implementation of more
restrictive management measures, which were scheduled to go into effect on June
1, 2024.
That finding caught both lobster fishermen and fishery
managers by surprise; practical problems, not the least of which was providing
fishermen with new
measurement gauges that complied with Addendum XXVII’s changes to the
size limit, forced the Lobster Board to delay the implementation date of the
new management measures to January 1, 2025. In October 2024, the Lobster Board
adopted Addendum
XXI to Amendment 3 to the Interstate Fishery Management Plan for Atlantic
Lobster (Addendum XXXI), which further delayed the implementation
date to July 1, 2025, in order to provide more time for Canadian regulators to
adopt similar regulations, and so not put New England lobster fishermen, who
fish the same waters as the Canadians, at a
competitive disadvantage.
States must now comply with Addendum XXXI’s July 1 deadline.
However, two
of the three affected states, Maine and New Hampshire, have signaled that
they won’t do so.
New Hampshire has taken the more defiant stance, with
Governor Kelly Ayotte writing
a letter to the ASMFC that read, in part,
I have heard loud and clear from our lobstermen, commercial
fishermen, and concerned legislators and citizens from our Seacoast that this
minimum size increase will have a negative impact an industry already strained
by existing regulations. To ensure the survival of an iconic and historic
industry in our state and our region, and to ensure our nation remains
competitive in global trade, I ask you today to rescind these new guidelines.
In the meantime, New Hampshire will comply with the previous minimum size for
lobster in an effort to preserve this proud industry.
In case anyone had any doubts about Governor Ayotte’s
intentions, she also posted an image to
the social media website X that featured the image of a lobster along with the
legend, “COME AND TAKE IT.”
Maine’s response to Addendum XXXI was far more restrained,
but the outcome was about the same.
On January 9, 2025, Pat Keliher, the commissioner of Maine’s
Department of Marine Resources, stood before a meeting filled with angry
lobstermen and announced
that “For now, I pull the rule [that would have kept Maine in
compliance with the ASMFC’s lobster management plan]. I called up the governor
on the way in and explained the risks of compliance [sic] with ASMFC.
She agreed with me that we should pull the rule based on the input we got [at
the meeting held] in Brewster [two nights earlier] and the input we got
tonight.”
But, unlike Governor Ayotte, Commissioner Keliher did not
engage in a show of defiance. Instead, he
warned the Maine lobstermen that, despite their claims that the new
management measures were unnecessary, “If [the ASMFC] say through a vote, that
doesn’t matter, you’re out of compliance, they will send a letter to the
secretary of commerce. The secretary reviews the letter, looks at all the
science we will submit with that letter, and then the secretary of commerce
will make a determination whether the fishery should be forced into compliance
or be closed. That means no lobster exported out of the state of Maine. So
that’s the risk we run. I’m just laying it out plain.”
That warning may have made at least some of the lobstermen
uneasy, as one
of the attendees at the January 9 meeting reportedly said, “I don’t
think we’re asking you to go to the ASMFC saying we won’t do it. We’re saying
we need to see the results of this [upcoming] stock assessment.”
If Maine or New Hampshire doesn’t adopt Addendum XXXI’s
management measures by July 1, the Lobster Board, at its August 2025 meeting,
could vote to find them out of compliance with ASMFC’s lobster management plan.
If the Lobster Board finds one or both states out of
compliance, the matter would then be referred to the Interstate Fishery
Management Program Policy Board (Policy Board). Should the Policy Board agree
that Maine and/or New Hampshire is out of compliance, the Coastal Fisheries Act
would require the ASMFC to notify the Secretary of Commerce and the Secretary
of the Interior of its finding within 10 working days.
And that’s when things could get a little bit tricky.
According to the Coastal Fisheries Act,
Within 30 days after receiving a notice from the
Commission…and after review of the Commission’s determination of noncompliance,
the Secretary [of Commerce] shall make a finding on (1) whether the State in
question has failed to carry out its responsibility [to comply with and enforce
the terms of the relevant fishery management plan]; and (2) if so, whether the
measures that the State has failed to implement and enforce are necessary for
the conservation of the fishery in question. [formatting omitted]
The Coastal Fisheries Act also requires that, “Upon making a
finding…that a State has failed to carry out its responsibility [to comply with
and enforce a management plan] and that the measures it failed to implement and
enforce are necessary for conservation, the Secretary shall declare a
moratorium on fishing in the fishery in question within the waters of the
noncomplying State. The Secretary shall specify the moratorium’s effective
date, which shall be any date within 6 months after declaration of the moratorium.”
While it would be nice to believe that the Secretary of
Commerce’s decision would be objective and based solely on the facts presented
by the ASMFC and the allegedly noncompliant state, politics can also play the
deciding role. Before Commerce Secretary Wilbur Ross excused New Jersey’s
noncompliance with the ASMFC’s summer flounder management plan, his
office was heavily lobbied by members of the state’s congressional
delegation and by the state’s then governor, Chris Christie, who was an early
supporter of Donald Trump’s 2016 presidential bid. Given the strong
scientific support for the ASMFC’s noncompliance finding, it was New
Jersey’s political connections that probably carried the day.
While Maine’s Governor Janet Mills is a Democrat, and
unlikely to garner any sympathy from the current Republican administration, New
Hampshire Governor Kelly Ayotte is a Republican who might find a more receptive
ear in Washington; that might explain the tone of her letter to the ASMFC which
aggressively declared New Hampshire’s intent to go out of compliance with the
lobster management plan. In addition, although Donald Trump didn’t
win a single New England state, he was the favorite candidate of many
commercial fishermen in the Northeast. That fact, too, could come into play in
any secretarial decision.
After Secretary Ross excused New Jersey’s noncompliance in
2017, Douglas Grout of New Hampshire, then chair of the ASMFC, noted in a
press release that
The Commission is deeply concerned about the near-term impact
[of Secretary Ross’s decision] on our ability to end overfishing on the summer
flounder stock as well as the longer-term ability for the Commission to
effectively conserve numerous other Atlantic coastal shared resources…The
states have a 75-year track record of working together to successfully manage
their shared marine resources. We are very much concerned about the short and
long-term implications of the Secretary’s decision on interstate fisheries
management…
But, for the moment, such processes and possibilities are no
longer a concern.
Members of the Lobster Board apparently didn’t want to take
the chance that a new Secretary of Commerce might overturn a noncompliance
finding. Perhaps they feared that any new secretarial decision to excuse
noncompliance would fatally undermine the ASMFC’s ability to enforce the terms
of its management plans, for on February 4, 2025 the Lobster Board approved a
motion that read, “Move to initiate an addendum to repeal all gauge and
[lobster trap escape] vent size changes in Addendum XXVII. The other sections
of Addendum XXVII will remain in effect.”
A few members on the Lobster Board criticized the motion, on
the grounds that other ASMFC management boards had enforced management plan
provisions that some states, and some states’ fishermen, had strongly opposed.
New Jersey’s legislative proxy, Adam Nowalsky, explained that
he could not support the motion because
the actions of this Commission have been to trust in the
joint actions that we have taken regardless of whether or not certain
constituents or certain governors or individuals or a couple or three states
yell and scream and say, “this isn’t going to work for us.” The Commission goes
forward with it anyway. There is an appeal process if someone does not go into
compliance with it. There is a process to take it to the Secretary of Commerce.
That has happened in the past. So purely from a procedural perspective, from
how the Commission has operated in the past, again I can’t support this
[motion] for that reason.
New Hampshire’s legislative proxy, Dennis Abbot, responded
by asking,
Adam, to your points, I think looking at things
realistically, I think we’ve tried to do that. What do you think the odds are
if we didn’t, if we failed in this motion, and we find New Hampshire and Maine
out of compliance and the noncompliance finding is forwarded to the Secretary
of Commerce at some point in time later this year, what do you think in the
real world the odds are that the Secretary of Commerce is going to go along
with our finding of out of compliance?…I believe we’ll be right back where we
are today. And I wouldn’t like to be there. We surely don’t want to be there in
any instance.
Mr. Abbott was clearly not the only Lobster Board member who
had such concerns.
Yet if the ASMFC doesn’t act to enforce its decisions out of
fear of being overruled, it also encourages any state which disagrees with a
management action to threaten noncompliance, or even a complete withdrawal from
the ASMFC, in order to escape the burdens of a locally unpopular management
measure. The members of the Lobster Board sit on other management boards as
well, and so vote on issues affected other species; fisheries managers from
Maryland and New Jersey both drew connections between Addendum XXVII’s impacts
on Maine’s and New Hampshire’s lobstermen and the impact that striped bass
management measures, which were supported by both Maine and New Hampshire, had
on Maryland’s and New Jersey’s fishing industries.
The unspoken threat was that if Maine and New Hampshire are
not expected to comply with the lobster management plan, then perhaps states
such as Maryland and New Jersey should not be expected to comply with measures
affecting their striped bass fisheries. Should such threat ever become
explicit, the resulting race to the bottom could devastate inshore fisheries.
Thus, ASMFC finds itself on the horns of a dilemma, with any
action it takes or refrains from taking having the potential to weaken its
ability to manage inshore fish stocks.
And that’s not where the ASMFC needs to be. Instead, it must
be able to rely on the Secretary of Commerce to cooperate, respect its
decisions, and support its management processes. Hopefully that will occur, for
while the ASMFC process is not perfect, and not without need
of reforms, coastal fisheries management has come a long way in the three
decades since the Coastal Fish Act became law, compared to the regulatory chaos
that existed when each state was the sole arbiter of how fish were managed
within that state’s waters.
Coastal fisheries would suffer if we went backwards now.
-----
This essay first appeared in “From the Waterfront,” the blog
of the Marine Fish Conservation Network, which can be found at
http://conservefish.org/blog/
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