ASMFC MANAGEMENT AUTHORITY CHALLENGED BY MARYLAND LAWSUIT

 

After the Atlantic States Marine Fisheries Commission’s (ASMFC’s) Atlantic Striped Bass Management Board adopted Addendum II to Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass (Addendum II) in January 2024, it was generally assumed that striped bass management issues would be put on a back burner until a new stock assessment update is released in the fall of the year.

Unfortunately, that won’t be the case.

A new lawsuit, brought in the Federal District Court for the District of Maryland, threatens not only the management measures included in Addendum II, but perhaps also the ASMFC’s ability to effectively manage other coastal fisheries.

On March 7, the Delmarva Fisheries Association, Inc. and the Maryland Charter Boat Association, Inc., along with two of their members, filed an action against the ASMFC which seeks “An order and judgment holding unlawful, enjoining and setting aside the ASMFC 2024 Striped Bass Addendum [II] approved on January 24, 2024, as unconstitutional or illegal on other impermissible grounds.”

While the action is focused on Addendum II’s one-fish bag limit for striped bass caught by anglers in the Chesapeake Bay, which abolishes a previous two-fish limit for anglers fishing from Maryland charter boats, and its 7% reduction in commercial striped bass quota, portions of the complaint challenge the ASMFC’s basic management authority, and so could have implications that go far beyond just the striped bass fishery.

Despite the such possible consequences, the plaintiffs’ complaint contains obvious errors, and seems to be based on dubious legal grounds. For example, it states that “ASMFC acknowledges that the Atlantic Striped Bass stock is not overfished,” an allegation in conflict with the findings of the 2022 stock assessment update, which clearly states that “In 2021 [the last year included in the assessment update], the Atlantic striped bass stock was overfished.” A “Quick Guide to ASMFC Species Stock Status,” which currently appears on the ASMFC website, also lists striped bass as “overfished,” while there is no evidence that the ASMFC has made any recent statements to the contrary.

The complaint is similarly mistaken when it alleges that “federal law [is] applicable to ASMFC under the [Magnuson-Stevens Fishery Conservation and Management Act],” as such statute contains an explicit provision that, with one very limited exception, “nothing in this Act shall be construed as extending or diminishing the jurisdiction or authority of any State within its boundaries.”

 The ASMFC was created by an interstate compact, consented to and approved by the United States Congress, which specifically empowers the ASMFC “to recommend the coordination of the exercise of police powers of the several states within their respective jurisdictions to promote the preservation of those fisheries [emphasis added].” Thus, contrary to the plaintiffs’ allegations, the Magnuson-Stevens Fishery Conservation and Management Act does not apply to the provisions of Addendum II.

The complaint also states,

In testament to the “historic commercial and recreational importance and economic benefit to the Atlantic states and to the Nation,” the United States Congress in 1984 adopted the Atlantic Striped Bass Conservation Act…to address the fact that “[n]o single government entity has full management authority throughout the range of the Atlantic striped bass.”

By this action, Congress asserted substantial control over Atlantic Striped Bass which had previously been administered (since 1942) primarily through the ASMFC Interstate Compact. [paragraph numbering and references omitted]

It’s puzzling why the plaintiffs included such allegations, as such claims hardly strengthen their case.

After all, what Congress did when it adopted the Atlantic Striped Bass Conservation Act (Bass Act) was to hand “substantial control” over the striped bass resource to the ASMFC, directing that the fishery management plan for Atlantic striped bass be “prepared and adopted by the Commission,” while also giving the ASMFC the authority to “determine whether each coastal State has adopted all regulatory measures necessary to fully implement the Plan in its coastal waters; and whether the enforcement of the Plan by each coastal State is satisfactory. [formatting omitted]”

Furthermore, the Bass Act gives the ASMFC significant discretion in determining whether a state is in compliance with its striped bass management plan, providing that “enforcement by a coastal State shall not be considered satisfactory by the Commission if, in its view, the enforcement is being carried out in such a manner that implementation of the Plan within the coastal waters of the State is being, or will likely be, substantially and adversely affected.” In the event of noncompliance, “The Commission shall immediately notify the Secretaries [of Commerce and the Interior] of each negative determination made by it.” The secretaries, if they agree that a state is out of compliance with the management plan, must then completely shut down such state’s striped bass fishery until compliance is achieved.

Such language makes it very clear that, far from limiting the ASMFC’s previous authority to manage Atlantic striped bass, Congress adopted the Bass Act in order to give the ASMFC full authority to manage the fishery.

The only other significant question raised by the plaintiffs’ complaint is whether the ASMFC constitutes a federal agency subject to the rulemaking procedures established in the Administrative Procedures Act.

That question was already answered in New York v. Atlantic States Marine Fisheries Commission, a 2010 decision by the United States Court of Appeals for the 2nd Circuit, which found that the ASMFC was not an agency of the federal government. In reaching that conclusion, the Court reasoned that, “The Commission is designed to address concerns that are traditionally within the province of the states. That the Commission seeks to address these concerns with support from the federal government, and in a manner that is harmonious with federal regulations, does not alter its essential nature. The fact that federal interests are implicated by the activities of the ASMFC does not transform it into a federal agency for purposes of seeking judicial review of its actions.”

Admittedly, the 2nd Circuit’s decision only represents what attorneys deem “persuasive authority” for the federal district court hearing the Delmarva Fisheries case, and not binding precedent, because that court is located in Maryland and so falls within the 4th, rather than the 2nd, judicial circuit. The decision in New York v. Atlantic States Marine Fisheries Commission is well-reasoned, and comprehensively examines the legal issues involved, but even so, while it will be difficult for the district court to come to a different conclusion, no legal principle prevents it from doing so.

Thus, Delmarva Fisheries Association v. Atlantic States Marine Fisheries Commission poses a potential threat not only to the striped bass, but to all of the species managed by the ASMFC. The threat is particularly acute with respect to those species which are not federally managed when outside of state waters, and so would be completely unprotected from capricious and inconsistent management decisions made by individual states.

If Addendum II could be invalidated by the courts because, by imposing management measures that the ASMFC deemed necessary to rebuild the striped bass’ spawning stock biomass, the ASMFC “failed to take into account the economic impact on fishery-dependent industries and other adversely affected…businesses and local communities,” and if the ASMFC’s regular procedures for adopting such an addendum to a management plan were found to be “in violation of [plaintiffs’] rights under the U.S. Constitution and other pertinent federal laws, and likewise promulgated in violation of [a single state’s] Constitution and other state statutory and common law [numbering omitted],” there is little reason to believe that any of the ASMFC’s interstate fishery management plans could survive judicial review.

If the Delmarva Fisheries Association prevails in its suit, it would be all too easy for Maine’s lobstermen to use that precedent to successfully challenge a recently-adopted increase in lobsters’ minimum size on economic grounds, or for Virginia’s menhaden reduction fleet to allege economic hardship and bring a court challenge against the ASMFC’s decision to cap menhaden landings within the Chesapeake Bay.

If the Maryland Charter Boat Association convinces the court that its claims have merit, charter and party boats anywhere along the coast could easily challenge restrictions intended to rebuild populations of any stock that they target, whether the relevant species is tautog in the Northeast, Atlantic croaker and spot in the Mid-Atlantic, or cobia in the Southeast.

A win for the plaintiffs in the current matter could, effectively, undermine a system that, although not without flaws, has coordinated coastwide management of striped bass harvest since 1985, and the management of 32 other stocks, ranging from alewives to winter flounder, since 1993.

Although it is impossible to predict, with any certainty, what a court will decide, the good news is that the complaint in Delmarva Fisheries Association v. Atlantic States Marine Fisheries Commission presents weak and badly flawed arguments to support the plaintiffs’ case.

The bad news is that, particularly in recent times, weak and badly flawed arguments have too often led to equally weak and badly flawed court decisions that overturned important and well-established law.

-----

The foregoing essay first appeared in “From the Waterfront,” the blog of the Marine Fish Conservation Network, which can be found at www://conservefish.org/blog/