FEDERAL COURT HEARS ARGUMENTS IN CASE CHALLENGING STRIPED BASS MANAGEMENT

 

On Tuesday, October 21, a federal district court in Washington, D.C. heard arguments in the matter of Cape Cod Charter Boat Association v. Burgum, an action brought to challenge Addendum II to Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass and, more generally, to challenge the Atlantic States Marine Fisheries Commission’s authority to manage the striped bass resource.

The lawsuit is the spiritual successor to an earlier action, Delmarva Fisheries Association v. Atlantic States Marine Fisheries Commission, which was ignominiously tossed out of court by the United States Court of Appeals for the Fourth Circuit, which found that the plaintiffs, Delmarva Fisheries and the Maryland Charter Boat Association, lacked the standing to bring an action against the ASMFC, as the regulations that supposedly harmed their businesses were actually drafted by the State of Maryland, and not the ASMFC.

Last spring, having been thwarted by the Fourth Circuit, the two original plaintiffs returned with a handful of allies—the Cape Cod Charter Boat Association, the Connecticut Charter and Party Boat Association, and the Montauk Boatmen and Captains Association—to try again, this time naming not only the ASMFC, but all of its member jurisdictions, including the National Oceanic and Atmospheric Administration, the Department of Commerce, the Department of the Interior, the United States Fish and Wildlife Service and many others—originally, 55 defendants in all—while making essentially the same arguments that were made in the Delmarva case.

The similarity of the two arguments is probably not surprising, given that the same attorney, James Butera, of the Washington, D.C. law firm of Meeks Butera & Israel, argued both matters.

Nor, given the outcome of the Delmarva case, is it surprising that the defendants again moved to dismiss the matter, with standing a paramount reason to do so.

So, on October 21, the plaintiffs were given an opportunity to convince the judge why the Cape Cod Charter Boat Association case should not be dismissed, as well.

It so happened that there was a telephone number that members of the public could call if they wanted to listen in, I had some free time that morning, and as an attorney, I was interested in hearing the arguments as they were made.  As usual, the proceeding began a few minutes late, but when the judge, Judge Trevor N. McFadden, began, things started to move pretty quickly, and in what seemed to be a promising direction.

After asking all of the attorneys to introduce themselves, he noted that Mr. Butera, plaintiff’s counsel, would make his arguments first, followed by any of defendants’ counsels who wished to speak, with counsel for Maryland (who was also representing all of the more northerly states, that stretched from Maine to Pennsylvania and Delaware) going first because, despite the new defendants, Maryland and Maryland’s striped bass regulations were still the focus of the lawsuit.  Plaintiffs’ attorney would then make his closing remarks.

Before plaintiffs’ counsel could begin his arguments, Judge McFadden noted that

“Defense has raised some serious dismissal issues,”

particularly with regard to plaintiffs’ standing to sue, which Mr. Butera ought to address.

Mr. Butera began by challenging the ASMFC’s authority to manage striped bass pursuant to the Atlantic Striped Bass Conservation Act and the Atlantic Coastal Fisheries Cooperative Management Act on Constitutional grounds, claiming that those laws illegally and unconstitutionally coerced the states

“into requiring or prohibiting acts within their own commerce powers”

and also claiming that the states’ and Congress’ failure to re-ratify the interstate compact creating the ASMFC after the passage of both the Striped Bass act and the Atlantic Coastal Fisheries act was an error of Constitutional proportions that invalidated the ASMFC’s presumed management authority.

At that point, Mr. Butera detoured away from his Constitutional arguments, to make some dubious factual claims, alleging that no scientist claims that there is any issue with the health of the striped bass stock—an argument easily rebutted with a simple reference to the 2024 stock assessment update—and quoting an unnamed former member of the ASMFC’s Atlantic Striped Bass Management Board, who reputedly said that striped bass

“fishing has never been better.”

He also claimed that 50 Maryland charter boat operations went out of business as a result of Addendum II, which allegedly caused business to drop by 75%, and warned that Addendum III toAmendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass would be debated on October 29, implying that a ruling in his favor was needed to prevent Addendum III from further harming to his clients.

Judge McFadden quickly steered Mr. Butera back toward the pertinent legal issues, asking him who should, in his view, manage the striped bass fishery, a question that caused Mr. Butera to revert to his original assertion that striped bass management was

“illegally delegated to the states,”

and that bass management should be governed by the Magnuson-Stevens Fishery Conservation and Management Act which was where he alleged that all management authority resided, but since then,

“That is powers that has been given to the states.”

In making such statements, Mr. Butera evidenced his ignorance of how the state and federal fishery management systems worked, seemingly not realizing that the Atlantic Striped Bass Conservation Act was passed in 1984 precisely because, prior to that, there was no federal law that allowed striped bass management to be coordinated on a coastwide basis because up until then, only the states had authority to manage the fishery.

He also ignored a provision in Magnuson-Stevens which reads,

“Except as provided in subsection (b) [which has no applicability to striped bass], nothing in this Act shall be construed as extending or diminishing the jurisdiction or authority of any State within its boundaries.”

That provision makes it clear that Magnuson-Stevens does not and may not give the federal government the authority to manage striped bass within state waters, which generally extend three miles out from the coast.

Judge McFadden quickly picked up on that fact and, although not quoting from Magnuson-Stevens, noted that there was a difference between state waters and the federal waters of the Exclusive Economic Zone, and observed that the states had the power to manage striped bass before the passage of the Atlantic Striped Bass Conservation Act.  

He asked Mr. Butera whether, with the states managing bass cooperatively through the ASMFC, state management is

“just now done in a more coordinated process between the states?”

But again Mr. Butera doubled down on his position, saying that

‘[the states] have a role but it is illegally delegated.”

He claimed that the ASMFC prepares the striped bass regulations, despite the fact that regulations are, in reality, promulgated and adopted by the individual states, and further argued that the states have no role, or at least no legally acceptable role, in managing striped bass, and that the authority of the ASMFC is advisory only, as the original interstate compact provided.  

Judge McFadden tried to bring the debate closer to reality, saying

“Your colleagues are going to be telling me the states had this authority [to manage striped bass] before”

Magnuson-Stevens became law, but Mr. Butera, again demonstrating his unfamiliarity with the fishery management process, adamantly argued that there was no state authority to manage striped bass before the Atlantic Striped Bass Conservation Act was passed, insisting that

“They never had that authority before”

1984.

At that point, Judge McFadden took the argument in a different direction, noting that the ASMFC, as an interstate compact, was a voluntary association of the states, and that if Maryland (again, the primary focus of the argument was the Maryland fishery and Addendum II’s impact on the Maryland fishing industry; although representatives of for-hire fishing operations in Massachusetts, Connecticut, and New York are also plaintiffs, they were not the primary drivers of the litigation) had a strong disagreement with the ASMFC, it was free to leave the compact and manage fish its own way.

Mr. Butera sort-of acknowledged the truth of that, but then responded by asserting that

“The federal government may not appoint states as their agents,”

thus suggesting that the federal laws granting binding management authority to the ASMFC were unconstitutional.

Judge McFadden then backed up just a bit, to focus on the defendants themselves.  He asked whether Georgia, South Carolina, and Florida were impacted by Addendum II, and Mr. Butera conceded that they were not, as the migratory striped bass population did not enter their waters and they did not have seats on the ASMFC’s Atlantic Striped Bass Management Board.

The judge then asked where the Maryland plaintiffs fished for striped bass, and Mr. Butera responded that they only fished in Maryland state waters.  But when Judge McFadden then pointed out that Magnuson-Stevens was thus irrelevant, because it only applied in the EEZ, Mr. Butera countered that while the judge’s statement might be true, the Constitution’s prohibition on the appointment of states as federal agents was not limited to federal waters, and applied in state waters, too.

Judge McFadden then asked Mr. Butera whether the intent of the lawsuit was to challenge Addendum II, and not the regulations of the various states, Mr. Butera replied,

“Yes, we are, because these regulations were adopted under the mandate of the ASMFC,”

but when the judge asked where, in the plaintiffs’ complaint, that was alleged, Mr. Butera conceded that such allegation had not been made.

And when Judge McFadden referenced the Fouth Circuit finding that the plaintiffs lacked standing in the Delmarva Fisheries Association case, because the regulations were promulgated by Maryland, and not the ASMFC, and asked Mr. Butera to discuss that decision, Mr. Butera responded that Robert Beale, the Executive Director of the ASMFC, testified in a Congressional hearing that Congress gave the ASMFC authority to “require” the states to adopt management measures, a requirement that was unconstitutional because a state

“cannot be compelled by the Congress to regulate its citizens.”

He tenaciously clung to his position that the ASMFC, in exercising the authority granted by Congress, was forcing the states to adopt striped bass regulations, ignoring the fact that the states were regulating that fishery long before the Atlantic Striped Bass Conservation Act became law.

In an effort to further define the issues to be decided, the judge then asked Mr. Butera whether his clients were claiming any injuries that were not the result of Addendum II, which brought a reply that Addendum III would probably be adopted on October 29, leading to his clients being subject to further restrictions.  

When asked whether the primary injury the Maryland plaintiffs suffered was the adoption of a 1-fish bag limit, Mr. Butera stated that the bag limit caused the greatest problems, but that the altered size limit and shorter season impacted them, too.

He then tried to minimize the importance of the Maryland for-hire fishery, arguing that

“The boat captains in Maryland have removed 26,000 fish,”

a figure that he claimed was “negligible” when compared to the six million bass removed coastwide, and to the overall size of the striped bass population, a comment that Judge McFadden let pass without further question.

However, the judge did note that in order for an organization to have status to sue, there must be at least one party who has actually been injured by the challenged action.  He noted that there was only one affidavit on file, from Capt. Hardman, the head of the Maryland Charter Boat Association, alleging injury, and asked whether he was missing anyone else.  Mr. Butera responded that the Delmarva Fisheries Association also included injured parties.

He also responded by arguing that a recent case from the Third Circuit, involving appointments to a regional fishery management council, established the principle that

“The litigant need not show direct harm or injury.  Such injury is presumed”

when an unconstitutional action occurs.  

When Judge McFadden then suggested that, when establishing the requirements for standing, the standards for an appointment and the standards for the sort of challenge Mr. Butera was making were different, Mr. Butera asserted that both were Constitutional challenges, and that the standard for standing was thus the same.

Going back to an argument that Mr. Butera had made before, that the ASMFC was meant to be an advisory body with no management authority, the judge then noted that the regulations that Maryland had adopted after Addendum II had been finalized—the regulations that supposedly caused harm to the Maryland plaintiffs—were more restrictive than what Addendum II required, although still based on that addendum.  Thus, Judge McFadden asked, what if the ASMFC was still just an advisory body, and Maryland adopted regulations based on its advice?  Would Mr. Butera still find a Constitutional infirmity?  Mr. Butera dismissed that hypothetical as “different” from the matter being decided.

Judge McFadden then asked whether the fact that Maryland could walk away from the ASMFC at any time might make a difference, but Mr. Butera called the question “counterfactual,” because in the case at hand, Maryland either didn’t or couldn’t leave the ASMFC.

At that point, the judge turned to another of the plaintiff’s claims, that the ASMFC’s

“usage of such clearly defective methodology [to determine the need for the management measures included in Addendum II] fails to meet the most minimum due process requirements or any possible justifiable basis for destroying Plaintiffs’ businesses and thus represents a Regulatory Taking of their property in violation of the Fifth Amendment of the U.S. Constitution.  [citations omitted]”

To remedy such alleged violation, plaintiffs were seeking

“An interim order and permanent judgment holding unlawful, enjoining, and setting aside in full the ASMFC 2024 Striped Bass Addendum approved on Jan. 24, 2024 and reauthorized on December 14, 2024.”

But Judge McFadden noted that, in the case of “takings” such as the one alleged in plaintiff’s complaint, money damages, not an injunction, were the most appropriate form of relief, and asked why that was not true in this case as well.  Once again, Mr. Butera insisted that Constitutional problems would still exist, and further explained that none of the defendants should be dismissed, because all might be required for an injunction to be issued. 

To that, the judge only responded,

“That’s certainly creative.  You’ve got a whole lot of plaintiffs here, sir,”

casting doubt on both the validity of Mr. Butera’s argument and the need to involve so many parties.  Yet once again, Mr. Butera insisted that

“The most important issue is the Constitutional question,”

and wouldn’t concede the point.

After a bit more back-and-forth, Mr. Butera sat down and Emilie Schwartz, counsel for the State of Maryland (and all of the states between Maine and Delaware), rose to make her points.

Her initial comments focused on standing, and the Fourth Circuit’s decision in Delmarva Fisheries Association.  In response to the judge’s questions, she affirmed that, even if the Court enjoined enforcement of Addendum II, there was “no chance” that Maryland would rescind its striped bass regulations.

She went on to explain that the program that allowed Maryland charter boats to retain two bass per person, in exchange for participating in a catch reporting program, was merely a pilot program that was initiated with the permission of the ASMFC, and that Maryland was not required to amend its regulations, in respect to the bag limit, in response to Addendum II, but merely terminated the pilot program.

She acknowledged that Maryland voted against Addendum II, but once it was adopted, Maryland put regulations in place that “far surpassed” Addendum II’s requirements

“to better protect the striped bass.”

Shortly thereafter, Judge McFadden made a comment which signaled that he understood what was at risk in the litigation:

“Remember ‘the Tragedy of the Commons’ from law school?..The ASMFC is to address ‘the Tragedy of the Commons.”

For those unfamiliar with the term,

“The tragedy of the commons is the concept that, if many people enjoy unfettered access to a finite, valuable resource, such as a pasture, they will tend to overuse it and may end up destroying its value altogether.  Even if some users exercised voluntary restraint, the other users would merely replace them, the predictferable result being a ‘tragedy’ for all.”

Thus, the judge’s reference to the concept may indicate that he is skeptical of the plaintiffs’ position, as did his subsequent suggestion that, if the ASMFC didn’t exist, the states might allocate the striped bass more generously among their own fishermen, to the overall detriment of the resource.

Ms. Schwartz disagreed with him there, noting that the states voluntarily came together to create the ASMFC, and to regulate striped bass and other fisheries, in the first place.

Judge McFadden then asked whether, if the ASMFC went away tomorrow, the states would continue to regulate striped bass, to which Ms. Schwartz replied yes, because

“The states always had the authority over the waters of the states,”

a fact that Mr. Butera still doesn’t seem to grasp.

Still, the judge admitted to being somewhat “perplexed” by the Atlantic Striped Bass Conservation Act, and its grant of regulatory authority.  Ms. Schwartz explained that it only applied to states belonging to the ASMFC, and that states were free to leave the ASMFC at any time; the law was only intended to keep ASMFC members compliant with the ASMFC’s decisions.  Similarly, when asked whether states “must” comply with ASMFC decisions, Ms. Schwartz again pointed out that was the case only if states voluntarily became and remained members of the ASMFC.

At that point, I had to get off the call to participate in another, but I was assured by someone who remained until the proceeding was adjourned that nothing more of significant importance occurred.

So what does it all mean?

If plaintiffs prevailed in the lawsuit, the ASMFC would lose its authority to compel states to comply with its management plans, both for the striped bass and for other species.  If that occurred, management would fall back on the shoulders of the individual states, which demonstrated in the past—most particularly in the early 1980s, when the striped bass stock had collapsed and the states were unable and/or unwilling to mount a coordinated response—that without both the carrot of healthy and rebuilt fish stocks and the stick of noncompliance sanctions being ailable to the ASMFC, effective fishery management measures were unlikely to be adopted.

That’s why the Atlantic Striped Bass Conservation Act was made law in the first place.

Lawsuits can take unexpected turns, and it’s impossible to predict with complete certainty how a judge will rule.  However, given the questions asked of both plaintiffs’ and defendants’ counsel, it seems likely that Judge McFadden is very skeptical of plaintiffs’ arguments, understands the value of the ASMFC’s role in striped bass management, and believes that the plaintiffs’ standing to bring suit is in doubt.

Whether that translates into a dismissal of all or part of the legal action is something that we should learn fairly soon.