Conservation advocates were appalled last month when they
learned that the
Commonwealth of Virginia had decided to appeal actions taken by the Atlantic
States Marine Fisheries Commission’s Atlantic Menhaden Management Board last
November, when it adopted Amendment 3 to the menhaden management plan and
established catch limits for the next two fishing seasons.
Virginia’s appeal was surprising, because the state came out
the clear winner at the November meeting.
It successfully fought back the effort to establish interim
ecological reference points, which would have required fishery managers to take
menhaden’s role as a forage fish into account when setting catch limits.
Such interim ecological reference points, if
adopted, could have potentially led to a substantial reduction in the amount of
menhaden landed by Virginia, which dominates the menhaden fishery. Such interim reference points were broadly
supported by the public comments received on the issue, and still, Virginia
prevailed. That, in itself, was a major
win for the state.
And Virginia came away from the meeting with its menhaden
quota effectively intact.
Although
public comment strongly supported no increase in the overall menhaden harvest,
the Management Board ultimately decided to increase 2018 and 2019 landings by
8%, in order to provide a number of states with some landings—at least 0.5% of
the overall harvest—while not causing Virginia any harm. As it turns out, Virginia did have its
landing reduced by 0.43%--insignificant given that Virginia will still be allocated
78.66% of the quota, and that the other 15 jurisdictions will all have to share
the 21% that remains—but losing that iota of quota still caused the state to
complain that it was treated unfairly, and that the increase in landings should
have been hire.
Virginia probably did technically lose on the issue of
capping menhaden harvest in Chesapeake Bay, as the Management Board
substantially decreased the so-called Bay Cap.
However, since fishermen weren’t catching the entire Bay quota anyway,
and the cap was merely lowered to reflect annual landings, such loss was far
more theoretical than real.
Even so, Virginia felt aggrieved, and appealed the
Management Board’s actions to ASMFC’s Policy Board.
It argued that the reallocation of landings,
which caused Virginia to lose 0.43% of overall landings, was not consistent
with the fishery management plan, because it was not biologically, socially and
economically sound. Such claim was
rejected by ASMFC, which noted, in part, that
“Given the [fishery management plan] goal of equitable allocation,
one could argue that allocating nearly 80% of [total allowable catch] to one jurisdiction
within a 15 jurisdiction management unit is not an equitable distribution to
the primary user groups…The Board had significant deliberations on the issue of
what is equitable allocation. By
choosing the fixed minimum allocation method, the Board was able to address the
needs of the different stakeholders, taking into account the needs of the
directed fishery, while having a minimal negative impact relative to the 2017
quotas.”
So it seemed that Virginia wasn’t going to gain any ground
there.
Virginia also claimed that the allocation method adopted by
the Management Board was “radical” and “unorthodox” as it failed to adequately
consider historical landings, although it noted that an further increase in the annual catch limit, from
216,000 to 220,000 metric tons, would be an alternate way to address the state’s
concerns.
However, ASMFC didn’t find that a valid point either. It noted that conditions in the fishery
change, and managers should be allowed to adjust management approaches to allow
for such changes. It noted that the
Management Board considered a 220,000 metric ton quota, and decisively voted it
down. And it summed up its decision on
the point by observing,
“These sorts of decisions highlight the nature of cooperative
interstate fisheries management—to seek to balance the different needs and
values of all involved states, not the one or the few. These difficult decisions are sometimes
necessary in service to the management goals of the [fishery management plan.]”
So Virginia lost that argument, too.
Then, Virginia alleged that, by giving each state a
minimum allocation of menhaden and setting aside a pool of fish equal to 1% of
the overall landings for “episodic events” in the northeast, reducing Virginia’s
allocation by less than one-half of one percent was an “unforeseen circumstance”
that justified ASMFC taking action to make Virginia whole.
However, ASMFC noted that the allocations, and the episodic
events set-aside, where debated and voted on, and so were hardly unforeseen. Moreover, because some states announced that
they would not be using their minimum allocation in 2018, allowing such fish to
go back into the common pool, Virginia would actually end up with 4 million
pounds more menhaden in 2018 than it was allocated in 2018, making it
hard to argue that any tangible harm had been done.
That was three strikes against Virginia, but the state wasn't out of the game.
It had appealed on a fourth ground, arguing that the
reduction in the cap on harvest in Chesapeake Bay wasn’t based on any reliable
technical information, and thus was invalid.
On that point, they found a bit of sympathy from ASMFC.
While ASMFC noted that
“The Bay Cap was set at the average landings in the Bay from
2012-2016 (rounded up); therefore, it was not arbitrarily lowered nor was it
expected to significantly impact the prosecution of the fishery,”
it agreed to consider the matter, and suggested an approach
that might address Virginia’s concerns.
Chesapeake Bay anglers, who believe that the harvest of
menhaden within the Bay adversely impacted various predators, including striped
bass, were not pleased by that decision.
The broader conservation community also had concerns.
Thus, everyone was surprised and delighted when they
learned, on the eve of the meeting day, that Virginia had entirely withdrawn
its appeal.
Delight wore off in about ten minutes, at which point folks
started asking “Why did they do it and what does it mean?”
And right now, nobody knows for sure. Quite a few folks are seeing something
ominous in the action.
Menhaden
are the only saltwater fish managed by the Virginia General Assembly, rather
than by the state’s Marine Resources Commission, and so far, the General
Assembly has not acted in response to ASMFC’s actions.
Unless it passes legislation to reduce the
Bay Cap, Virginia will not be in compliance with ASMFC’s menhaden management
plan, which could result in a formal non-compliance finding to be forwarded to
the Secretary of Commerce. If that
occurs, the Secretary of Commerce could either impose a moratorium on menhaden
harvest in Virginia until the General Assembly acts, or find that the Bay Cap
isn’t necessary to the conservation of the menhaden resource, and override anysuch non-compliance finding, as it did last summer when New Jersey went out ofcompliance with ASMFC’s summer flounder management plan.
Some people believe that is Virginia’s strategy, and that it
hopes to both regain its lost 0.43% share of the harvest and negate the
reduction in the Bay Cap at the secretarial level. They can find support in the closing line of
Virginia’s appeal letter, which says
“As required by the [Interstate Fishery Management Policy]
Board’s Appeals Process pursuant to which this appeal is taken, Virginia
commits to comply with the [Interstate Fishery Management Policy] Board’s
decision in this matter, subject to its right to take further action
beyond the ASMFC process to seek relief. [emphasis added]”
And that may well be Virginia’s plan.
There
is certainly substantial political pressure being applied by the menhaden industry
and allied organizations. On the
other hand, Virginia would have had nothing to lose in making its case before
ASMFC, and arguably would have put itself in a better place in any subsequent
proceeding by doing so, as it could then argue that it did all it could, but exhausted
every available remedy before relying on secretarial action.
The same principle would apply should Virginia elect to sue
ASMFC over its decision. Generally,
a plaintiff is required to exhaust all administrative remedies before seeking
judicial review of an agency decision, so abandoning its appeal to ASMFC’s
policy board would thus create an obstacle to Virginia obtaining judicial relief.
As a practical matter, prevailing in
a lawsuit against ASMFC would probably be very difficult, as a decision in the matter
of New York v. Atlantic States Marine Fisheries
Commission, decided by the Second Circuit in 2010, found that ASMFC is
neither a federal agency nor a quasi-agency, and that its decisions are not
subject to review under the federal Administrative Procedures Act.
Still, Virginia sits within the Fourth Circuit, where Second
Circuit decisions are merely persuasive, and not binding, authority, so there
is a possibility that a suit brought there could lead to a different result. It also should be noted that if the suit was
brought not by Virginia, but by the Omega
Protein Corporation, which is the nation’s largest menhaden harvester,
Virginia’s failure to exhaust all administrative remedies probably would not
bar legal action, although New York v. ASMFC would still stand in its way.
It should also be noted that Virginia elected a new governor
in November, and that the appeal was filed by the previous administration. The withdrawal could merely signal a change in
administration policy, and a hope that the General Assembly will ultimately adopt
the new cap for the Bay.
Even if the General Assembly doesn’t act, and the Secretary
of Commerce finds Virginia out of compliance, it is very possible that there will be no significant impact on Virginia's menhaden fishery this year.
Under
the Atlantic
Coastal Fisheries Cooperative Management Act, which governs ASMFC and the
enforcement of its management actions, should the Secretary of Commerce find a
state out of compliance, he would have up to six months to impose a moratorium
on the relevant fishery.
Thus, if the General Assembly fails to comply with the
menhaden management plan, and no special meetings or conference calls are
scheduled, ASMFC wouldn’t find Virginia out of compliance until it's regular May meeting. It would then have a week to notify the
Secretary of Commerce of its findings, and the Secretary would then have an
additional 30 days to conduct his own review.
That would bring the proceedings well into June, at which point the
Secretary could, if he desired, impose a moratorium beginning six months later—mid-December.
By then, the moratorium would have no immediate impact. The menhaden fishery doesn't hit its stride until May, providing the General Assembly
with plenty of time to act even after a moratorium was imposed. While such timing could not be guaranteed, it
would allow business as usual to continue until all parties had a chance to fully
understand what occurred, and also understand what still needs to be done.
So did a new day just dawn for menhaden in Chesapeake Bay?
Probably not. Even the
reduced Bay Cap reflects the status quo, and Virginia’s overall landings have
not been reduced at all.
Yet, if the withdrawn appeal really does reflect a new
administration’s policy, and not some less benign plan, it may well presage a
new and better future not only for Virginia’s menhaden, but for all of the
state’s living marine resources.
So for now, at least, there is reason for hope.
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