When a judge’s decision in a fisheries lawsuit begins,
“Had our founding fathers chosen a fish rather than a bird as
our national emblem, it would have to had been the striped bass, [a quote from
George Reiger’s book, The Striped Bass Chronicles: The Saga of America’s Great Game Fish]”
you can be pretty certain that the court’s ruling will favor
the fish.
And that’s just what happened when, on November 14th,
2025, Judge Trevor N. McFadden, of the United States District Court for the District
of Columbia, dismissed the complaint in Cape Cod Charter Boat Association v.
Burgum, an action originally brought to invalidate
the Atlantic States Marine Fisheries Commission’s Addendum II to Amendment 7
to the Interstate Fishery Management Plan for Atlantic Striped Bass.
I
first reported on the lawsuit last May,
when the action was originally filed. I
noted that the matter seemed to be little more than a rehash of the claims in Delmarva
Fisheries Association v. Atlantic States Marine Fisheries Commission, an
action brought in the United States District Court for the District of Maryland, and was dismissed
with prejudice by the United States Court of Appeals for the 4th
Circuit last February.
While Cape Cod Charter Boat Association v. Burgum added
a few more plaintiffs and a lot more defendants to those named in the Delmarva
matter, the Delmarva Fisheries Association and Maryland Charter Boat
Association still appeared to be the primary drivers behind the litigation. The complaints in both lawsuits embodied similar claims that the ASMFC’s
striped bass management authority was somehow unconstitutional, and both complaints exhibited
the same lack of understanding of the laws governing state and federal
fisheries management, as well as how state and federal management interacts.
That lack of understanding was fully apparent about a month
ago, when the Court heard oral arguments on a motion to dismiss filed by the
defendants in the more recent action. Judge
McFadden acknowledged that in his recent decision, when he noted the
“Plaintiffs’ confusion about the nature of their claims and
the relief they seek. Plaintiffs’
Complaint proceeds on the theory that the Commission has become ‘a full-fledged’
federal regulator that commandeers States into regulating striped bass within state
waters. But in briefing and at argument,
Plaintiffs inexplicably focus on laws governing fishing in federal
waters. More, they cannot decide whether
the result of enjoining Addendum II would be to return power to the States or
to return power to the federal government.
Compare, e.g., [Plaintiff’s Motion] at 11 (this lawsuit seeks to
vindicate ‘sovereign powers reserved exclusively to the states under the Tenth
Amendment’) with [Plaintiff’s Reply Brief] at 26 (this lawsuit seeks ‘the
return of the unconstitutionally delegated authority to the federal government’). This bait-and-switch reinforces the redressability
problem. It suggests that Plaintiffs know
that they do not like the status quo, but they cannot explain why enjoining Addendum
II is the solution. [some citations omitted]”
Those words provide real insight into the haphazard nature
of the Plaintiffs’ arguments, and begin to explain why the Court dismissed the
Complaint.
In federal practice, a Motion to Dismiss is filed soon after
a complaint is served, and is intended to challenge some aspect of that
complaint’s validity. In Cape Cod Charter
Boat Association v. Burgum, the Defendants’ Motion to Dismiss argued that the
Court lacked subject matter jurisdiction to hear the Plaintiffs’ claims, and
was based on two distinct arguments. One
was that the Plaintiffs lacked standing to sue; on that point, the Court
described its duty as
“ensuring that the proper plaintiff sued the proper defendant
over an injury a court can remedy.”
The Defendants also argued that the
defendant states (the Plaintiffs sued, among others, all of the states belonging
to the ASMFC, as well as state officers responsible for managing each state’s
marine fisheries) were granted sovereign immunity from the suit by the Eleventh
Amendment to the United States Constitution, which
“generally withdraws federal jurisdiction over claims against
a State.”
Plaintiffs had the burden of proving both that they had
standing to sue the Defendants, and that the Court had jurisdiction over their
claims against the various states.
They failed to prove either one.
Surprisingly, despite there being five for-hire/commercial
plaintiffs--the Connecticut Party & Charter Boat Association, the
Montauk Boatmen and Captains Association, the Delmarva Fisheries Association,
and the Maryland Charter Boat Association, in addition to the named Cape Cod
Charter Boat Association--the Plaintiffs seemed to have a very difficult time
alleging that Addendum II caused them any real harm. As the Court observed,
“…Plaintiffs lack standing for all of their claims. That may seem remarkable. Fishing industry members should be
able to allege facts establishing standing to challenge fishing
regulations. But Plaintiffs supply no
detailed allegations about how their members’ injuries would change if the
Court granted the relief Plaintiffs seek.
Plaintiffs rather ask the Court to exercise a roving law review
power. That will not do…
“Each Plaintiff alleges that ‘[m]any of its members conduct
fishing operations’ and ‘are adversely affected by the conduct of [the
Commission] and other Defendants in this case.’
That conclusory recitation does not cut it, even at the motion to
dismiss stage…At the pleading stage, the Complaint must ‘contain sufficient
factual matter, accepted as true, to state a claim of standing that is
plausible on its face.
“Plaintiffs’ allegations that meet this standard establish
injury only to Maryland fishermen in the Chesapeake Bay. This is because the Complaint’s details about
economic harm exclusively address Maryland fishermen. More, Plaintiffs submitted eight letters
discussing the importance of recreational fishing in the Chesapeake region and how
the one-fish limit harms that industry…
“Because only Maryland Charter has plausibly argued injury to
its members, all of Plaintiffs’ claims must be tethered to that injury. That only one Plaintiff has sufficiently
alleged an injury-in-fact would not matter if Plaintiffs’ claims overlapped
entirely. One injured plaintiff satisfies
Article III [of the United States Constitution] for all claims arising from
that injury. But aside from Delmarva,
the other Plaintiffs’ members fish in different waters, controlled by different
States. And because Maryland Charter’s
members fish only in Maryland’s waters, the only relevant regulations are ones
that apply in Maryland waters. All this
means that injury alone bars the non-Maryland Plaintiffs from establishing
standing. [citations omitted]”
While that conclusion might not be too surprising, given
that the primary motivation behind both the Cape Cod Charter Boat
Association matter and the earlier Delmarva Fisheries Association case
was Maryland's adoption of more restrictive striped bass regulations for for-hire and commercial fishermen,
if I was an officer, or even a member, of the other four Plaintiff Associations, and
particularly of the Cape Cod Charter Boat Association, the Connecticut Party
& Charter Boat Association, or the Montauk Boatmen and Captains Association,
and if my association chipped in some cash to cover the legal fees in the just-dismissed
lawsuit, I’d be asking some very hard questions about exactly what I was paying
for.
And if my association was unable to allege and
prove any injuries arising directly out of Amendment II, and that led to the recent dismissal, I’d also be asking
just why we were involved in the suit in the first place.
Yet, even though the Maryland Charter Boat Association was the one Plaintiff that managed to get over the first hurdle of the standing test—alleging injury arising
out of Addendum II—it still had to prove that the relief that it sought, enjoining
and setting aside Addendum II, would provide at least partial redress for the
injuries that they suffered.
That proved to be a hurdle that the Maryland Charter Boat
Association could not surmount, largely because the ASMFC is not, itself, a
regulatory body, but rather only adopts fisheries management plans that the
individual states must effectuate through their regulatory or legislative
processes.
As the Court noted in its decision,
“Charitably read, the Complaint at most alleges that Addendum
II harms Maryland fishermen. It does not
allege what would happen without Addendum II, much less that enjoining Addendum
II would redress the only injuries that Plaintiffs plausibly allege—those resulting
from Maryland’s one-fish limit.
“…Plaintiffs are regulated by Maryland, not the Commission. Recall that neither Addendum II nor any other
Commission-produced plan directly regulates fishermen. Instead, the Commission identifies minimum
conservation measures that signatory States then operationalize by implementing
and enforcing their own regulations.
Maryland’s regulations are the relevant ones here because the only Plaintiffs
with standing fish in that State’s waters.
The gist of Plaintiffs’ argument is that Maryland would not have enacted
those regulations without Addendum II.
Even assuming Plaintiffs are right about that, they have not shown
redressability.
“Because Maryland enacts the restrictions through its own
regulatory process, the laws would persist without Addendum II. More, everyone agrees that Maryland has not
only implemented Addendum II’s requirements, it has gone beyond the regulatory
floor Addendum II sets. But Plaintiffs
have challenged these regulations. And a
court cannot redress an injury when an unchallenged law would continue to
inflict the same harm on Plaintiffs without the challenged one. So Plaintiffs must plausibly allege that enjoining
Addendum II will change how Maryland regulates them…
“…While it may be ‘theoretically possible’ that Maryland
would change its regulations if Addendum II was unenforceable, Plaintiffs have
not plausibly alleged that is a likely outcome.
Plaintiffs name Maryland Defendants this time, but they do not allege
that Maryland would change its regulations.
In fact, when asked about whether Maryland would likely change its
regulations, Plaintiffs refused to even speculate about how States would
respond…
“Meanwhile, from what the Court can tell, nothing would likely
change for Plaintiffs’ members without Addendum II. Maryland—along with eleven other States and
the District [of Columbia]—says that it would not likely rescind its
regulations. Recall that Maryland
demonstrated commitment to the regulations by making stricter restrictions than
Addendum II requires. All of this
suggests that even if Addendum II originally caused Plaintiffs’ harm, the
undoing of [that action] will not undo the harm, because the new status quo is
held in place by other forces—Maryland’s belief that the restrictions are
beneficial. Once again, Plaintiffs have
failed to establish redressability because they do not plausibly allege that
Maryland would opt to rescind its duly enacted regulations if Addendum
II were enjoined. [citations omitted]”
With that, and after some additional analysis of the issues
raised by the parties, the Complaint was dismissed with respect to the Maryland
Charter Boat Association as well.
Unfortunately, the dismissal probably doesn’t represent a
final resolution of the various for-hire groups’ attack on Addendum II. Dismissals based on a lack of subject matter jurisdiction
may only be made “without prejudice,” meaning that despite the suit’s many seeming
defects—and the Court noted that
“standing is not the only problem…the Court lacks
jurisdiction over the claims barred by sovereign immunity. Defendants raise a host of other flaws with
the Complaint…”
--the Plaintiffs may still try to revive the controversy,
either by drafting a new Complaint that addresses the issues which led to the
recent dismissal or by
bringing an action in one or more state courts to directly challenge state regulations.
Or, the Plaintiffs could choose to take an appeal, in the
hope that the Court of Appeals for the D.C. Circuit will view the standing
issue more favorably than either the D.C. District Court or the 4th Circuit
did.
Given
that the Delmarva Fisheries Association case ended up in the
United States Supreme Court, which decided against taking up the matter, it
seems unlikely that Judge McFadden’s decision dismissing Cape Cod Charter
Boat Association v. Burgum will be the last word in that matter. Defeating Addendum II and the ASMFC seems to
have become an obsession with the original Delmarva plaintiffs and/or
their counsel, who appear determined to keep up the fight for as long as they
can.
Should the case be given new life, and should it ever
get to the stage where it is argued on the merits, rather than on procedural
grounds, it still has the potential, however remote, to do real harm to the
fishery management process, particularly given the ideological biases demonstrated
by some courts, and by some judges, in recent years.
We can only hope that the entire dispute dies a well-deserved
death instead.
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