COULD STATES HAVE A LEGAL OBLIGATION TO PROPERLY MANAGE MARINE FISHERIES?

Regular readers of this blog know that I am a strong supporter of the Magnuson-Stevens Fishery Conservation and Management Act, because it sets forth a clear, legally enforceable framework for the conservation and management of marine fisheries.  Thanks to that framework, the number of federally managed fish stocks that remain overfished, or that are subject to overfishing, has declined substantially over the past two decades.

And regular readers of this blog also know that I am a regular critic of the Atlantic States Marine Fisheries Commission, which is not bound by any legally enforceable standards for managing fisheries, and as a result has never, in its more than 75-year history, managed to rebuild even one overfished stock and maintain that stock at sustainable levels in the long term.

Thus, we have a federal fisheries management system with a clear legal obligation to conserve and properly manage fish stocks, and we have a regional management system with absolutely no legal obligation to do the same thing.

The next logical question to ask is whether the states, managing the fish present in each state’s waters, have any obligation to conserve and manage those stocks.

A lawsuit, recently filed in North Carolina, may help to answer that question.

The suit is Coastal Conservation Association v. North Carolina, and was filed in North Carolina’s General Court of Justice, Superior Court Division for Wake County on November 10 of this year.  It makes the novel argument that, under the ancient public trust doctrine, which dates back to Roman times, has been widely recognized in various forms since then, and was incorporated into North Carolina’s Constitution, the state holds North Carolina’s public marine resources as trustee for all of the residents of that state, an thus that

“for North Carolina’s coastal fisheries resources, the public-trust doctrine imposes a fiduciary duty on the State to manage and regulate the harvest of coastal finfish and shellfish in a way that protects the right of current and future generations of the public to use public waters to fish.  As a result, the state may not allow finfish or shellfish harvest gears or methods in public waters that generate undue wastage or impair the sustainability of coastal fisheries resources, which in turn threatens the rights of current and future generations of the public to use public waters to fish.

“The State cannot disclaim or otherwise avoid its duties as trustee under the public-trust doctrine.  In other words, the State does not have the option to simply ‘resign’ as trustee.  Nor may the General Assembly abrogate the State’s legal duty under the public-trust doctrine.  To the contrary, the duties of the State in managing public-trust resources for the benefit of the public are inviolable.  [internal numbering deleted]”

It’s an interesting argument, which the plaintiffs—and there are more than eighty of them, besides the Coastal Conservation Association—argue is supported by provisions of the North Carolina Constitution, which read

“The right of the people to hunt, fish, and harvest wildlife is a valued part of the State’s heritage and shall be forever preserved for the public good.  The people have a right, including the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to the laws enacted by the General Assembly and rules adopted pursuant to authority granted by the General Assembly to (i) promote wildlife conservation and management and (ii) preserve the future of hunting and fishing,”

and

“It shall be the policy of the State to conserve its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to…preserve as a part of the common heritage of this State its…estuaries [and] beaches.”

I’m not a North Carolina attorney, so I don’t know how much of the complaint reflects existing principles of that state’s laws, or how likely the state’s highest court—because this is the sort of case that, if the plaintiffs prevail, will only be finally won on appeal—is to entertain its core legal theory.  But the complaint seems to raise an intrinsically reasonable point, which is that if it’s North Carolina’s job to manage the state’s public resources, then the public has a right to expect that North Carolina will do that job well, and not allow the future health of such resources to be compromised in favor of short-term concerns.

After that, though, the complaint goes a little off-message, when it tries to shift blame for the allegedly poor state of North Carolina’s marine resources solely on the commercial fishery, and thus making the lawsuit not merely a demand for the state to manage its marine resources properly, but an us-against-them fight between the recreational and commercial fishing sectors by saying, among other things,

“In contrast to these public-trust rights of the public, the right of any business or individual to fish in public waters for profit is a narrow, limited privilege, afforded only by statute…When the State is determining appropriate policies or plans for managing coastal fisheries resources, that limited privilege granted to a relative few citizens or companies to fish for profit must yield in priority to the constitutionally protected public-trust rights of the general public.”

Again, I’m not a North Carolina attorney, so I don’t know whether there are court decisions in that state that might support such position.  

However, it strikes me that if a case is being built on public trust doctrine stretching back to Roman times, it probably ought to take account of the fact that purely recreational fishing is a relatively new phenomenon—Dame Juliana Berners, who is believed to have written Treatysse of fysshynge with an Angle, the first known work about recreational fishing, was born in 1388, while Isaac Walton’s The Compleat Angler was first published in 1653—and that any right to access public waters in order to fish that dates back a couple thousand years to the ancient Romans was almost certainly concerned with commercial fishing activities, and not recreational angling.

Thus, it would have probably been more appropriate for the complaint to avoid anti-commercial rhetoric, and instead concentrate on a theme that it mentions elsewhere, that

“Managing coastal fish stocks in the overall public interest would result not only in the ability of the fishing public to exercise its constitutionally-protected, public-trust right to fish, but would mean an overall increase in stock size, with more fish allocable to the commercial sector as well,”

because good fisheries management practices truly do benefit everyone engaged in fishing, whether commercial or recreational.

And if such good fisheries management practices necessarily involve outlawing trawling in estuaries, or the use of unattended gill nets, and have a greater immediate impact on the commercial fishing sector than they do on anglers, then that’s just the way things will have to be, but the point is that a lawsuit emphasizing good conservation and sustainable fisheries, which does not blame any one sector for fisheries problems, might have led to a more sympathetic hearing by the bench.

David Sneed, Executive Director of the Coastal Conservation Association’s North Carolina chapter, seemed to implicitly recognize that fact when he told the Carolina Public Press that

“The complaint is clear, however, that law-abiding commercial fishing license holders are not directly responsible for the poor state of North Carolina’s coastal fish stocks.”

But the language quoted above about “the right of any business or individual to fish in public waters for profit,” along with other language in the complaint that strikes a similar tone, renders the intent of the complaint far less clear than Mr. Sneed suggests.

Such an ambiguous message gives spokesmen for the commercial fishing industry an opportunity to spin the legal action as just another attack on that industry by recreational fishermen.  That is already happening, with the Carolina Public Press reporting that Glenn Skinner, Executive Director of the North Carolina Fisheries Association, a commercial advocacy group, said

“the commercial industry has been under attack from what he calls special-interest groups for decades.”

It also gave Mr. Skinner the opportunity to portray the plaintiffs in a selfish and unsympathetic light, by saying

“I find it interesting that they fail to mention the supporting businesses, restaurants and consumers who depend on commercial fishing for their livelihoods and access to this resource.”

It was a predictable response from a fishing industry spokesman, but it might have been avoided, or at least somewhat defanged, had the plaintiffs concentrated on management issues, and the benefits that everyone could enjoy if management improved, rather than trying to place part of the blame on the shoulders of people who aren’t even defendants in the action.

Having said that, should the plaintiffs prevail, and manage to hold North Carolina accountable for allegedly mismanaging the state’s fisheries, it would mark a watershed for fisheries management, and establish a precedent that might be adopted in other jurisdictions.  

Fisheries managers in other states would have reason to fear that if they did not do enough to ensure the sustainability of their states’ fish stocks, they could face litigation, too.

Whether or not that happens, the lawsuit has accomplished one thing already—it has impeached the credibility of the Coastal Conservation Association’s attacks on the federal fisheries management system, based on the claim that state managers do a better job and that state management better accommodates recreational fishermen. 

For example, the 2014 report, “A Vision for Managing America’s Saltwater Recreational Fisheries,” which the Coastal Conservation Association helped to produce and enthusiastically promoted once it was issued, claimed that

“Given its mandated commercial focus, the fact that the [National Marine Fisheries Service] has not embraced fisheries management practices that also meet the unique goals, needs and motivations of recreational anglers should come as no surprise…

“Many state natural resources agencies, particularly in the South, recognize the benefits of a vibrant recreational fisheries community and have managed to promote it while conserving their saltwater resources…”

Based on that allegation, the Coastal Conservation Association has called for states to take over responsibility for a number of federally managed species, most notably red snapper, in the Gulf of Mexico and on the Atlantic Coast; the Coastal Conservation Association’s preference for state-level management was echoed in a follow-up report, “A Vision for Marine Fisheries Management in the 21^st Century:  Priorities for the Next Administration,” which was released last October.

But in filing its lawsuit against North Carolina, the Coastal Conservation Association, which claims that state fisheries managers are favoring the commercial industry—the same claim that it made against NMFS in the original “Vision” report and throughout the red snapper debate in the Gulf of Mexico--has admitted through its actions that state fisheries managers are not inherently more virtuous than those at the federal level. 

Instead, the quality of state management decisions may be better or worse than those made by federal managers, depending on the state, the species involved and, subjectively speaking, whether the Coastal Conservation Association’s ox happens to be the one being gored by any particular management action.

If the lawsuit does nothing else, its implicit rejection of the “state managers know best” argument is enough to make it worthwhile.

However, it also has a chance of improving fisheries management in North Carolina, and maybe elsewhere on the coast.  Let's hope that it does.

It will be an uphill fight, but both fish and fishermen stand to benefit if it succeeds.