Different people view the Atlantic States Marine Fisheries
Commission in different ways.
Some, and I am among them, view the Commission as an
essential tool in East Coast fisheries management which, thanks to the provisions
of the Atlantic
Striped Bass Conservation Act and the Atlantic
Coastal Fisheries Cooperative Management Act, can cut through the rivalries
and jealousies that inevitably arise among coastal states, and develop legally
enforceable fisheries management plans to conserve and sustainably manage
shared marine resources.
Others, and I am among them, too, view the ASMFC as an
organization that has fallen short of its potential, by too often subordinating
science and long-term sustainability to short-term economic concerns, and subordinating
the greater public interest to the interests of various members of the
commercial and recreational fishing industries.
And still others view the Commission as an obstacle to their
own and/or their constituents’ predatory ways, and fishermen’s ability to
exploit living marine resources for maximum immediate profit with no concerns
for the future impacts of their actions.
“Removes authorization for the Commonwealth’s membership in
the Atlantic States Marine Fisheries Compact.
The bill directs the Marine Resources Commission, on or after February
1, 2027, to take all actions necessary and appropriate to effect the
Commonwealth’s renunciation of and withdrawal from the Compact and to complete
such actions no later than July 1, 2027.
The bill also directs the Commission, no later than July 31, 2026, to
provide written notice to all states that are a party to the Compact that the
Commonwealth intends to renounce and withdraw from the Compact. Finally, the bill removes from the Menhaden
Management Advisory Committee the Virginia appointee to the Atlantic Menhaden
Technical Committee of the Atlantic States Marine Fisheries Commission.”
It probably comes as a surprise to no one that Senator
Stuart represents Virginia’s 25th Senate district, the same district
that includes the unincorporated community of Reedville, where the East Coast menhaden
harvesting and processing facilities of Omega Protein Corp. and its primary
supplier, Ocean Harvesters, are located.
It
is also probably not a surprise that, according to the Virginia Mercury news
website, Sen. Stuart was the single largest recipient of political contributions
from Omega Protein in 2023. The Fredricksburg
Free Press reported that, as of July 13, 2025, he
had received $32,843 from Omega Protein over the years that he had been in
office.
Sen. Stuart looks out for his corporate patron, and when the
ASMFC threatens to curtail their fishing activities, as would happen should its
Atlantic Menhaden Management Board decide to reduce the total allowable catch
of menhaden in 2027 and 2028 when it meets later this year, severing Virginia’s
ties with the Commission apparently seems to be his preferred course of action.
Of course, the 2012 bill did little more than express Sen.
Stuart’s, and/or the menhaden industry’s, pique at the new regulations, and it’s
hard to see S. 414 doing anything more, particularly given the
makeup of both houses of the Virginia legislature and the relatively
progressive stances on other issues already taken by the state’s new governor,
Abigail Spanberger.
But what if S. 414 managed to overcome all of the headwinds currently
prevailing against it, and the bill somehow managed to be signed into law?
Would Virginia suddenly be able to manage its state-waters
fisheries unimpeded by the ASMFC and federal law, even if its actions could
potentially degrade the health of fisheries along much of the Atlantic
coast? Or might its withdrawal from the
Commission give Virginia far less freedom to act independently than Sen. Stuart
seems to assume?
Those aren’t easy questions to answer, because no state has
yet tried to withdraw from interstate compact that created the Atlantic States
Marine Fisheries Commission, and lacking such precedent, all of the courts that
would ultimately rule on the matter—and it is not at all unlikely that such
matter might finally make it all the way to the United States Supreme Court—would
be faced with a case of first impression, and would be able to exercise
significant discretion when forming their opinions.
But there would still be federal law and, ultimately, the Constitution
of the United States, to guide their way.
In trying to figure out what would happen should Virginia
withdraw from the ASMFC, the best place to start is probably the Atlantic Coastal
Fisheries Cooperative Management Act, which was passed in 1993 and gave the
ASMFC the authority to draft coastwide management plans that all of the
Atlantic coast states would be required to follow. My use of the phrase “Atlantic coast states”
rather than “ASMFC member states” was intentional, for the word “member” never
appears in the statute, while the phrase “interstate compact” only appears in
the definition of the term “Commission,” which means
“the Atlantic States Marine Fisheries Commission established
under the interstate compact consented to and approved by the Congress in
Public Laws 77-539 and 81-721.”
Instead, the statute simply refers to each of the member states,
including Virginia, as a “State,” a term defined as
“Maine, New Hampshire, Massachusetts, Rhode Island,
Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North
Carolina, South Carolina, Georgia, Florida, the District of Columbia, or the
Potomac River Fisheries Commission.”
Thus, when the statute provides that
“The Commission shall prepare and adopt coastal fishery
management plans to provide for the conservation of coastal fishery resources…The
coastal fishery management plan shall specify the requirements necessary for States
to be in compliance with the plan. Upon
adoption of a coastal fishery management plan, the Commission shall identify each
State that is required to implement and enforce that plan [emphasis
added],”
the plain language suggests that Congress didn’t intend to
limit the ASMFC’s authority only to signatories to the interstate compact, but
rather that it intended to extend the Commission’s authority over every “State”
as defined in the law.
Similarly, when the statute requires that
“Each State identified [pursuant to the
previously-quoted paragraph] shall implement and enforce the measures of such
plan within the timeframe established in the plan [emphasis added],”
and provides that
“The Commission shall determine that a State is
not in compliance with the provisions of a coastal fishery management plan if
it finds that the State has not implemented and enforced such
plan within the timeframes established under the plan…Upon making any [such]
determination…the Commission shall within 10 working days notify the
Secretaries [of Commerce and the Interior] of such determination… [emphasis
added, formatting omitted]”
and, upon such notification, that
“Within 30 days after receiving [such a] notice from the Commission…and
after review of the Commission’s determination of noncompliance, the Secretary
[of Commerce] shall make a finding on whether the State in
question has failed to carry out its responsibility [to implement and enforce
the provisions of a coastal fishery management plan]; and if so, whether the
measures that a State has failed to implement and enforce are
necessary for the conservation of the fishery in question, [emphasis added, formatting omitted]”
and
“Upon making a finding…that a State has failed to carry out
its responsibility [to implement and enforce the provisions of a coastal
fishery 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
noncompliant State… [emphasis
added]”
the language seems to express Congress’ clear intent to empower
the ASMFC to require every state between Maine and Florida, along
with the District of Columbia and the Potomac River Fisheries Commission, to
comply with the Commission’s coastal fishery management plans, and does not anywhere
suggest that a state’s membership in the interstate compact creating the ASMFC is
a prerequisite for the Commission to exercise and enforce its management
authority.
Thus, Sen. Stuart’s bill could well be an exercise of futility—if
not something worse for Virginia--because Virginia’s withdrawal from the Atlantic
State Marine Fisheries Commission would not free Virginia from its duty to
comply with the Commission’s Atlantic menhaden management plan, although it
would mean that Virginia would no longer have a seat or a vote on the Atlantic
Menhaden Management Board, and would lose its current ability to contribute to
the development of menhaden management measures.
“if North Carolina legally effects withdrawal from the ASMFC,
the State would continue to have to implement ASMFC fisheries management plans,
but would have no voting privileges on the Commission.”
The opinion went on to say that
“it is our belief that the [Atlantic Coastal Fisheries
Cooperative Management] Act reasonably supports only a conclusion that its
requirements fully apply to all jurisdictions wherein ‘coastal fisheries
resources’ occur, and not just Commission member states. As a result, North Carolina’s withdrawal from
the ASMFC would not have the result of the State no longer being subject to the
terms of the Act, including its requirement that each affected state implement
and enforce ASMFC fishery management plans.
Instead, it would appear that the result of a withdrawal from the ASMFC
would be that North Carolina would be held to the terms of any Commission
fishery management plans, without the benefit of voting on those plans or
otherwise exercising the powers of Commission member states to influence plan
development and adoption.”
Since it seems very likely that the Atlantic Coastal
Fisheries Cooperative Management Act would require a state to implement and
enforce ASMFC coastal fishery management plans, even if that state was no
longer a member of the Commission, the only way a state might escape the
obligations created by the statute would be to attack and attempt to invalidate
the statute itself as an unconstitutional act of Congress.
There are two possible avenues for a Constitutional attack
on the statute. The first is an attack
based on the
Compact Clause of the Constitution, the same clause which authorizes the creation
of interstate compacts such as the one that created the Atlantic States Marine
Fisheries Commission. The Compacts
Clause states that
“No State shall, without the Consent of Congress, lay any
Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any
Agreement or Compact with another State, or with a foreign Power, or engage in
War, unless actually invaded, or in such imminent Danger as will not admit of
delay.”
Based on that clause, the argument might be made that Congress
could not impose new conditions on a compact that had already been agreed to by
the states and ratified by Congress.
However, given the
power granted to Congress under the Commerce Clause of the Constitution, which grants
Congress the authority
“to regulate commerce with foreign nations, among states, and
with the Indian tribes,”
Congress probably was within its rights to adopt the Act, given
Atlantic coast fisheries’ economic importance to the nation.
“The powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to the states
respectively, or to the people.”
An attack on the Act based on the Tenth Amendment might have
the best chance of success, due to a 1992 decision issued by the United States
Supreme Court, which found that the federal government may not “commandeer” a
state’s authority by compelling it to adopt laws or rules intended to carry out
federal policies. Because only the
states have the ability to implement the provisions of the ASMFC’s coastal
fishery management plans, even though it is federal law that gives the Commission
the coercive power to compel the states to implement and enforce such plans, it
is very possible that the Atlantic Coastal Fisheries Cooperative Management Act
might not survive a Tenth Amendment challenge.
The North Carolina Attorney General recognized that the Act
might be vulnerable to such a challenge, but also noted that
“two practical considerations might cause the court not to apply
[such reasoning] to the Atlantic Coastal Act.
Experience has confirmed the interjurisdictional fisheries cannot be
managed effectively without a federally empowered agency able to control the
states, or fishermen licensed by states.
The Congressional history of the Atlantic Coastal Act, as well as its ‘Findings
and Purposes’ section, make that fact indisputable as a matter of law. Additionally, the history of the Act shows
the states sought this form of regulation instead of direct control by the
traditional federal fisheries management agency, the Department of Commerce.”
However, thirty years after that opinion was released,
federal courts have become more sympathetic to “states’ rights” arguments, and
it is not at all clear that practical considerations would prevail over a political
ideology that seeks to limit the power of federal regulatory bodies.
Thus, should Virginia, or any other state, choose to withdraw
from the ASMFC in 2026 or in future years, the Atlantic Coastal Fisheries
Cooperative Management Act would, in all probability, still require such state
to abide by the ASMFC’s coastal fishery management plans. But there is no guarantee that the Act itself
would survive a Constitutional challenge based on the Tenth Amendment, and the
argument that, by passing the Act, Congress unconstitutionally commandeered the
authority of the states to manage their own state-waters fisheries.
Given the importance of consistent coastwide fisheries management
measures, ensured by the existence of enforceable coastwide fishery management
plans, we can only hope that such challenge to the Act never occurs, and if it
does, that the courts will understand the practical need to keep such management
plans in place.
But neither outcome is guaranteed.
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