Sunday, April 14, 2024



Last month, I described how a group of Maryland charter boat operators and commercial fishermen have asked a federal district court to invalidate portions of the Atlantic States Marine Fisheries Commission’s recently adopted Addendum II to Amendment 7 of the Interstate Fishery Management Plan for Atlantic Striped Bass, in an effort to escape their share of the burden of conserving and rebuilding the coastal migratory striped bass stock.

As I noted at the time, the complaint in the lawsuit was badly flawed, misstating several points of both fact and law.  Among other things, it denied that the striped bass stock was overfished, alleged that the management actions of the Atlantic States Marine Fisheries Commission were governed by the Magnuson-Stevens Fishery Conservation and Management Act, and argued that the Atlantic Striped Bass Conservation Act diluted the ASMFC’s authority to manage striped bass, when in fact just the opposite is true.

The complaint could probably best be described as an expression of the pique that spread among Maryland’s professional watermen after the ASMFC’s Atlantic Striped Bass Management Board, in adopting Addendum II, imposed a minor reduction in the commercial striped bass quota and required anglers aboard Maryland charter boats to adhere to the same bag and size limits as all other recreational fishermen in the Chesapeake Bay.

Although, in adopting Addendum II, the ASMFC followed its regular procedures, holding public hearings all along striper coast and having its Atlantic Striped Bass Management Board meet no less than three times to debate the content of such Addendum before it was finally adopted, the plaintiffs argued that the process that the ASMFC followed was flawed, and somehow violated the 14th Amendment to the United States Constitution by denying them

“life, liberty, or property, without due process of law.”

Plaintiffs also made the curious allegation that,

“As residents and thus citizens of the State of Maryland, Plaintiffs, as individuals or organizational members, have no State procedural rights that they can feasibly assert against the States where they do not reside and which, acting in concert through the ASMFC, have deprived them of their constitutional rights over the voting objection of the State where they do reside and are citizens thereof.”

As such language suggests, the lawsuit can best be viewed as one more example of a growing phenomenon in which individuals or organizations which are subject to some form of government restriction that they do not agree with take the position that they have the “right” to do what they please—in this case, catch more striped bass than the ASMFC, in its collective wisdom and advised by its scientists, believes prudent—and claim that such imagined “right” is guaranteed by the Constitution of the United States, even if there is no compelling precedent that supports such allegation.

The complaint also includes some of the sort of anti-“administrative state” language that often goes hand-in-hand with the creative imagining of never-before-seen “rights,” with the Plaintiffs alleging that

“Over the last 70 years, administrative agencies at all levels of government have performed an ever-expanding variety of government functions and imposed more regulations than could possibly have been imagined upon the enactment of the [Administrative Procedures Act] in 1946 and its State equivalents.

“The APA and comparable state laws were adopted to establish a set of procedural rules to govern this non-legislative form of governmental decision-making and, of even greater significance, to provide an effective method to preserve individual rights against the abuse of administrative power and, most importantly of all, to preserve the right of judicial review of agency actions.  [numbering omitted]”

I could go on, but you get the idea.  The complaint, far from setting forth a cohesive set of allegations that, when read together, make a logical case for judicial relief, is instead a jumble of grievances flailing about for some sort of legal underpinnings, which claim Constitutional protection from just about any administrative action that might have economic consequences.

It’s the sort of complaint that, if I saw it eight or ten years ago, I would have deemed a certain loser, completely lacking the legal support needed to have even the slimmest chance of success.

Unfortunately, while there have always been a few marginally qualified judges who elevate their personal ideologies above well-established law, their numbers increased substantially not too long ago, when far too many judges fitting that description were appointed to the federal bench, at both the trial and appellate levels.  Because of that flood of incompetent jurists, we have also seen far too many ideologically-based court decisions, contrary to or openly defiant of established precedent, handed down by the federal bench in recent years. 

I have to admit that I was concerned that if one of that recently appointed breed of judge was assigned to the Maryland striped bass case, things might have headed off in the wrong direction.

Fortunately, that didn’t turn out to be the case.  The challenge to Addendum II was assigned to a very competent and experienced judge, who has even presided over another matter involving striped bass and the cupidity of some Maryland watermen.

That was the first bit of good news.

The second bit of good news came on Friday, April 12, when I learned that such federal judge, after hearing arguments from both sides, denied Plaintiff’s motion for a preliminary injunction that would have prevented the provisions of Addendum II, or at least such provisions as reduced the commercial quota and required anglers fishing from Maryland charter boats to follow the same rules as applied to every other angler in the Bay, from being enforced until final judgment was rendered on the Plaintiff’s claims.

The purpose of a preliminary injunction is to maintain the status quo, and prevent a party to a legal action from suffering harm, prior to the final judgment.  To prevail on a motion for such an injunction, a party must generally show that it will suffer irreparable harm if the preliminary injunction is not issued and that it is likely to prevail in the pending legal action.  Issues of fairness are also considered, so even if the party seeking the injunction is likely to suffer injury if it is not granted, an injunction will probably not issue of the other party is likely to suffer even greater harm as a result.

When the judge in the Maryland lawsuit considered all of the relevant factors—with the likelihood of Plaintiffs’ ultimate success being the single biggest factor of all—he decided that it would be inappropriate to issue a preliminary injunction.  So far, Addendum II remains in full force and effect.

Capt. Robert Newberry, who serves as Chairman of the Delmarva Fisheries Association, one of the Plaintiffs in the suit, responded to the judge’s decision on the preliminary injunction by writing,

“Well, we did not get our injunction that we wanted yesterday from the federal court.  The judge did not dismiss the case, but is waiting for a response from ASMFC for a request for dismissal due on April 19th.  We have till April 26th to file our answer on the request for dismissal.  IT AIN’T OVER YET !!!  STAY TUNED !!”

And he’s completely correct.  The lawsuit is not over.


But it may well be living on borrowed time.

As I noted above, a Plaintiff’s motion for a preliminary injunction will generally not be granted if the  Plaintiff is unlikely to ultimately prevail in the lawsuit.,  Given that the complaint makes a number of incorrect statements of both facts and law, and there is, to be charitable, very little precedent supporting its claims that the Plaintiffs’ Constitutional rights have been infringed, the court’s failure to grant a preliminary injunction may well presage the final outcome of the suit.

Taking a realistic view of the allegations in the complaint, the only claim that might possibly fly is the argument that the ASMFC’s fishery management decisions are subject to judicial review under the federal Administrative Procedures Act, and even that claim is on very shaky ground.

In 2010, the United States Court of Appeals for the 2nd Circuit confronted the same issue in New York v. Atlantic States Marine Fisheries Commission, and found that

“The APA definition [of ‘agency’] expressly excludes certain entities, such as Congress and the federal courts.  Although an interstate compact entity [such as the ASMFC] is not specifically exempted from the definition, this ‘textual silence, when read against the backdrop of…the canons of construction applicable to statutes that implicate the separation of powers, points,’ to the conclusion that the ASMFC is not a federal agency within the meaning of the APA

“The fact that the ASMFC was created by an interstate compact and approved by Congress does not alter this analysis.  We find that the APA’s definition of a federal agency does not fit the Commission.  The ASMFC Compact states that the ‘Commission shall be a body corporate, with the powers and duties set forth’ in the Compact.  Although the Commission acts in parallel with the federal government…it exists outside the federal administrative law framework.  And, it would upset the ‘federal-state balance’ to subject its actions to accountability measures devised to restrain the actions of federal authorities.

“The regulation of the territorial sea is a matter traditionally left to the states…With one enumerated exception, the [Magnuson-Stevens Fishery Conservation and Management Act] states that it shall not ‘be construed as extending or diminishing the jurisdiction or authority of any [s]tate within its boundaries…’  the fact that federal and state entities act toward a common goal does not convert the state—or interstate—body into a federal one.  [emphasis added, citations omitted]”

Maryland doesn’t lie within the 2nd Circuit, so the federal court hearing the challenge to Addendum II is free to ignore the finding of the court in New York v. ASMFC.  However, that decision is nonetheless persuasive authority, and there is a good chance that it will be followed.

What will probably happen, now that the motion for a preliminary injunction has been denied, is that the ASMFC will move for the case to be dismissed, on the grounds that the complaint fails to make a claim for which legal relief may be granted.  The ASMFC’s brief will then cite New York v. ASMFC in support of its argument that the ASMFC is not subject to judicial review pursuant to the APA, and that all of the other, even weaker arguments made it the complaint have no merit.

If the court agrees, the matter will be dismissed, and Addendum II will remain in place.

If the court finds that Addendum II is subject to judicial review, it is still likely that after such review, the court will find that the record created at the various meetings of the Atlantic Striped Bass Management Board, combined with testimony provided in writing and at the public hearings, provided adequate grounds for the Management Board to adopt the Addendum.

Either way, the court’s refusal to issue a preliminary injunction after the April 12 hearing was clearly a setback for the Plaintiffs, and probably only the first of additional setbacks that will lead to the lawsuit finally dying an overdue and very well-deserved death.

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