SUPREME COURT REBUFFS CHALLENGE TO STRIPED BASS ADDENDUM II

 

On March 4, the Delmarva Fisheries Association, Inc., the Maryland Charter Boat Association, Inc.,  and two related individuals filed an emergency application for a temporary injunction that would halt the implementation of the fishery management measures contained in the Atlantic States Marine Fisheries Commission’s Addendum II to Amendment 7 of the Interstate Fishery Management Plan for Atlantic Striped Bass with the United States Supreme Court.

Last Tuesday, exactly one week after the application was filed, the petitioners’ arguments were rejected by the Court.

For the plaintiffs, the Supreme Court’s rebuff represented just one more court that refused to accept their arguments that Addendum II

“imposed drastic, unwarranted and illegal limitations on commercial and recreational fishing for Atlantic Striped Bass in the coastal Atlantic Ocean and, in particular, the Chesapeake Bay and its tributaries.”

It all began about a year ago, on March 7, 2024, when the plaintiffs initiated a legal action in the United States District Court for the District of Maryland, seeking to enjoin the application of Addendum II’s management measures and requesting that the court issue a temporary injunction to that effect to preserve the status quo until the matter could be fully litigated.  Their complaint contained a mishmash of dubious Constitutional claims, misstatements of federal fisheries law, and mischaracterizations of striped bass biology and management that were notable only for their inaccuracy.

That complaint apparently didn’t impress the trial court judge for, on April 22, 2024, he issued a decision denying the temporary injunction, in which he noted that,

“To determine whether a preliminary injunction is appropriate, this Court follows the test set forth by the Supreme Court in Winter v. Natural Resources Defense Council, Inc., which requires a showing that:

(1)   the movant is likely to succeed on the merits;

(2)   the movant is likely to suffer irreparable harm absent preliminary relief;

(3)   the balance of equities favors the movant; and

(4)   an injunction is in the public interest.  [citation omitted]”

The trial court went on to find that

“Even if Plaintiffs have standing to sue, they are still unlikely to succeed on the merits of their claims.  Plaintiffs do not plausibly state a takings claim or deprivation of any other federal constitutional right, as Addendum II does not physically appropriate Plaintiffs’ property, nor does it regulate their fishing vessels or gear.  The posture of the addendum and the unique structure of the Commission preclude a finding that addendum constitutes a regulatory taking.  Addendum II was issued after a thorough deliberative process in which the State of Maryland participated, and Plaintiffs had notice and opportunity to comment on its measures.  Because the addendum is not subject to review under the Administrative Procedures Act, Plaintiffs allegations as to the addendum being arbitrary and capricious are inapposite.  Neither does Section 1983 [of Title 42 of the United States Code, dealing with civil rights violations] provide an avenue for Plaintiffs to challenge the addendum, as the Commission is not a ‘person’ within the meaning of the statute.  It does not act under ‘color of state law,’ and Congress did not intend to create a private remedy authorizing private parties to bring federal court actions challenging the Commission’s fishery management decisions.  [citations omitted]”

Since the trial court was not convinced that the Plaintiffs were likely to prevail on the merits of the lawsuit, the preliminary injunction could not be issued.

Plaintiffs appealed that decision to the United States Court of Appeals for the 4^th Circuit, but that only worsened their situation.  The 4^th Circuit not only failed to reverse the trial court’s denial of Plaintiffs’ motion for a preliminary injunction, but also found that Plaintiffs lacked the standing necessary to bring the lawsuit in the first place, writing

“We conclude that Plaintiffs lack standing because they are regulated by Maryland, not the Commission, and Plaintiffs made no allegation that enjoining the Commission’s recommended plan would likely cause Maryland to rescind its own regulations.  And even if they had, they would have needed to bolster that allegation with specific reasons supporting it, as Maryland adopted stricter measures than the plan called for.

“Because Plaintiffs lack standing to pursue an injunction of the striped bass plan—which is the only relief they seek—we remand with instructions to dismiss the case.”

Thus, the appeal to the 4^th Circuit, which at best might have resulted in a temporary injunction being issued, led to the Plaintiffs' entire case being thrown out of court.  And when they petitioned the Supreme Court for the emergency issuance of a temporary injunction, their efforts resulted in just one more failure.

At that point, most people would have recognized that their efforts were likely doomed to failure, and recognized that further litigation would almost assuredly be both costly and futile.  However, it seems that the unsuccessful plaintiffs are willing to throw good money after bad, and will continue their campaign against Addendum II.  A recent article in the Star-Democrat, a news outlet serving the Maryland region, quoted Capt. Robert Newberry, the Chairman of the Delmarva Fisheries Association, as saying,

“It’s not good that we were denied the hearing in front of the Supreme Court, but this is far from over.  We are in it to win it!  We will be announcing our next move within a week.”

It’s not clear what that “next move” will be.

Although I don’t litigate matters in the federal courts, and so am not fully familiar with the Federal Rules of Civil Procedure, it does not appear that the plaintiffs could merely seek to amend their original complaint to include the allegations described in the 4^th Circuit’s opinion in order to set aside the dismissal, as those rules specify that

“Unless the dismissal order states otherwise, [an involuntary dismissal], and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits.”

That doesn’t necessarily mean that the now-dismissed action is dead.

The 4^th Circuit handed down its decision on February 5 of this year, so the plaintiffs could theoretically appeal that decision—most particularly, the finding that the plaintiffs lacked standing—to the U.S. Supreme Court, as the time to do so has not yet elapsed.  In order bring an appeal, they must petition the Supreme Court for a writ of certiorari, since appeals to the Supreme Court are not "as of right."  Such petitions are not often granted.  Out of more than 7,000 petitions for certiorari filed each year, only 100 to 150 are typically granted, and those typically involve cases of national significance, those which would resolve conflicting decisions handed down by two or more federal courts of appeals, and/or those that have significant precedential value. 

If the plaintiffs choose to seek certiorari, they must convince four Supreme Court justices that the case should be heard.  That isn’t an impossible task.  Given the current makeup of the Court, and the justices’ legal and political philosophies, it’s not impossible that the ASMFC’s seeming lack of accountability for its fisheries management decisions, and its impact on the states’ fisheries regulations, the matter could catch the eye of someone, most likely either Justice Thomas and/or Alito, and if they were joined by two others, perhaps Justices Gorsuch and Kavanaugh, the matter would get a hearing.

Yet, even though that possibility exists, the odds are stacked against certiorari being granted.  There are just too many other, and seemingly more significant, cases competing for the Court's time.

And it’s probably too late for plaintiffs to challenge Maryland's regulations implementing Addendum II, as they would have been issued over a year ago, while the statute of limitations for challenging agency actions appears to require such challenges to be made within 30 days after the rule was adopted.

So while the door to judicial relief doesn’t seem to be completely closed, the chances of such relief being granted are surpassingly slim.

It’s also possible that the now-defeated plaintiffs will abandon the courts and seek a political solution.  That might include efforts to pass legislation at the state or the federal level which would, in some way, negate the effects of Addendum II, at least in the Maryland portion of the Chesapeake Bay, although, once again, the odds of that happening are probably very slim.  

But Capt. Newberry also complained that

“It is extremely perturbing that Governor Moore and Attorney General Brown turned their backs on us.  They are willing to spend millions of taxpayer dollars against alleged constitutional violations by President Trump, but they ignore the constitutional violations affecting the seafood industry.”

That language that could be understood to suggest that he might be seeking someone in the federal bureaucracy willing to take up his cause.  A federal bureaucrat’s ability to compel a state, or an interstate compact like the ASMFC, to abandon the management measures in question would be extremely limited although, given the administration’s recent actions, a threat to cut off federal funding might be a real possibility.

If Capt. Newberry’s comments prove true, we’ll see the next step in the Addendum II saga unveiled next week.  For the sake of the striped bass stock, and the sake of rational fisheries management, we can only hope that his future efforts will prove as futile as those of the past.