AT THE ASMFC: THANK YOU FOR YOUR SERVICE

 

I just learned that Pat Keliher, the long-serving head of Maine’s Department of Marine Resources, will be retiring from that position, and so will also be leaving his post as Maine’s Administrative Appointee at the Atlantic States Marine Fisheries Commission.  He will be missed, even though he is leaving behind Megan Ware, another very capable Maine fisheries manager who has long served as his proxy and, in doing so, has created her own legacy in fisheries conservation and management.

I have known Pat for nearly 30 years, dating back to the late ‘90s when we were both involved with the Coastal Conservation Association.  At the time, he was the Executive Director for CCA’s Maine chapter, who ran a fundraising, membership, and advocacy program that made Maine a standout among CCA’s four New England chapters.  I was the Chair of CCA New York, a member of CCA’s national executive board, and also the chair of CCA’s Atlantic States Committee, which primarily dealt with issues arising at the ASMFC.

In that role, I worked with Pat quite a bit, and was always impressed by his calm and rational demeanor and his commonsense approach to fisheries issues.  It was an approach and demeanor that he carried into his work at the ASMFC (and, I’m certain, in Maine, although I had no occasion to work with him there), where he was often forced to deal with difficult issues affecting two of the most controversial species managed by the Commission, striped bass and American lobster (although two other species, American eel and Atlantic menhaden, also provided more than their share of headaches).

Perhaps the best example of his leadership, his rational approach to fisheries management, and his conservation philosophy can be found in comments he made while serving as the Chair of the ASMFC in 2021, when he addressed the May meeting of the Atlantic Striped Bass Management Board as they were drafting the document that eventually became Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass:

“Thank you for allowing me just a moment to address the Board as the Commission’s Chair.  As you all know, striped bass is known as the Commission’s flagship species.  You also likely know that Congress acted back in 1984, and passed the Atlantic Striped Bass Act.

“This was the beginning of the moratorium years, a time we all sacrificed, and a time that the recovery of this flagship species began.  Since then, we as a management body have strived to address and maintain the recovery in a way that benefitted the fish, and the fisheries that support it.  Throughout this time, we’ve continued to exercise our state’s rights, and put forward our opinions on management that is best for both the species and our state’s interest.

“I would say we’ve likely had mixed results over the years.  That brings us to today, I feel there is a lot at stake, not only for striped bass, but for ASMFC as well.  Some are stating that the Commission has a credibility problem, that we’ve taken our greatest fisheries management success story and reversed it.

“Whether you agree or disagree with these comments, you must agree that we are at a crossroads with management, and today we are deciding which way we’ll turn.  Things are changing.  Many species the Commission manages are seeing shifts in their abundance, and distribution.  Striped bass are not immune to this change, as our stock assessment shows that the stock is overfished, and overfishing is occurring.

“While I personally don’t think we’re at a point we were in 1984, the downward trend of the stock is evident in the assessment.  For many of the Commission species, we’re no longer in a position to ‘hold out hope’ that things will revert to what they’ve been previously, if we just hold static.  Change is happening too fast, and actions need to be taken.

“Today I would ask this Board to think about what is best for the species, but also what is best for the future of the Commission.  I suspect that this will be a painful discussion, and sacrifices needed to find a way forward.  The small amount of pain now pays us dividends down the road.  Thank you very much, Mr. Chairman, for allowing me to address the Board, and good luck with this meeting.  Thank you.”

We need more voices like Pat’s at the Commission, and his will be hard to replace.

The past year also saw the retirement of Dr. Michael Armstrong, the former Deputy Director of the Massachusetts Division of Marine Fisheries.  I didn’t know Dr. Armstrong.  I never met him face-to-face, and never even communicated with him over the phone or by email, but I was very aware of the leadership role that he played, and the respect that he was given.

Because of the importance of the East Coast striped bass fishery, and the prominence of that species at the ASMFC, I was most aware of his leadership on the Atlantic Striped Bass Management Board, where he was always a champion of conservative management and the long-term health of the fishery. 

Anyone who has spent very much time listening to that management board debate issues knows that there is a contingent of representatives who always try to delay management actions, and when delay seems unlikely, do their best to convince the Board to adopt half-measures that are inadequate to end overfishing or rebuild the stock, but instead would maintain landings at unsustainably high levels.

Dr. Armstrong was skilled at blunting such efforts, never afraid to stand up for the resource and paint a very explicit picture of what everyone stood to lose from delay.  He crafted a significant win in May 2023, when he convinced the Management Board to adopt emergency measures to reduce recreational landings after unexpectedly high landings in 2022 made it unlikely that the stock would rebuild by 2029, the deadline derived from the management plan, if fishing mortality was not cut.  He said to the Board,

“I guess the challenge here is convincing you that this is an emergency…The problem is, we have an entire year of fishing on a very, very strong year class.  Emergency measures haven’t been used much, maybe half a dozen times or so.  The definition is circumstances under which conservation or coastal fishery resource or attainment of fishery management objectives, that’s the key, has been placed substantially at risk by unanticipated changes in the ecosystem for stock, or the fishery.  Let me address the unanticipated first.  We doubled harvest almost.  I went back into the time series for MRIP, all the way back to ’81, and that has only happened a couple of times, the last time being over 30 years ago.

“Although I think we all sat around saying, this is a big year class, you know harvest will go up.  We could not have anticipated that it was going to go up by double.  It’s never had that.  Now, that being said, I have faith that MRIP is right.  We do 6,000 intercepts a year in Massachusetts, about 5,000 are for striped bass.

“That is a lot of data.  You can complain about MRIP for other species.  I think they got it right, especially on a coastal, without breaking it up into modes and waves and everything else.  What we saw was the ’22 harvest completely derailed the rebuilding down to 14 or 15 percent chance of getting there.  I told you a little about what we looked at our recreational fishery, and really great graphics of the 2015 was about 55 percent into the slot, and we doubled the harvest.

“There is no question in my mind that there is zero percent chance of the harvest going down.  I mean the PSEs on this estimate are fine, they are as good as they’ve always been.  I mean there is always biased things that can change, but I have faith that the harvest this year will be the same, or I would say greater, because the entire year class is in the slot.

“We’re going to have to deal with that, and it’s going to get more and more difficult if harvest is huge again this year…We had anglers say last year was the best fishing they’ve ever had, and a lot of it was environmental conditions and the presence of menhaden.

“But also, the presence of a really big year class.  I mean there is just no question that they are more available this year.  How could harvest go down?  There is also, I think we have all seen this, I would call it irrational exuberance by the fishing community.  When fishing gets good, fishing effort goes up, and probably not in a linear fashion.

“People coming off a great year, I’m guessing that effort will go up much more.  We’ll get the casual anglers will be going out more.  We have no output controls, and that makes it very difficult managing the striper fishery.  I proposed this because I don’t want to be further behind the eight ball.  I don’t want to see another projection again that includes 11 percent probability of restoration, and any, I’ll leave it at that.”

There was some resistance to Dr. Armstrong’s motion, but he laid the argument out so well that, in the end, only New Jersey—perhaps the state most implacably opposed to striped bass conservation effortds—voted against.  His absence from the Management Board is certainly being felt.  It’s hard not to wonder whether, if he had still been seated at the table, the vote at the December 16, 2024 Board meeting might have gone a different way, although such musings are probably a little unfair to Massachusetts' current representative on the Management Board, Nichola Meserve, who has proven herself to be a champion of bass conservation in her own right, and did everything that she could do to adopt needed measures for the 2025 season.  The vote just didn't go her way.

Both the Maine and Massachusetts delegations remain in good hands, and the traditions of stewardship set by both Pat Keliher and Dr. Armstrong will remain behind.  While we often hear anglers criticize the ASMFC—and that criticism is not without cause—what we don’t hear often enough is recognition and appreciation of what a number of dedicated fisheries managers are trying to accomplish when they are part of a management board.

For Pat Keliher and Dr. Armstrong were not alone in their efforts to responsibly manage the striped bass and other species.  There are a host of other state managers—and some governors’ appointees, legislative appointees, and legislative proxies, too—who speak out for conservative, sustainable fisheries management, intended to keep stocks healthy in the long term.  All of them deserve our thanks.

Because there are also the others, who seek short-term advantage for their state, their favored sectors, and perhaps, at times, for themselves, regardless of the scientific advice, or the impact their actions might have on the health of fish stocks.  They’re the ones who tarnish the ASMFC’s name.

But that’s why the Kelihers, the Armstrongs, and all of the other dedicated managers matter.  They stand between us and the irresponsible few.

They aren’t appreciated enough for what they have done, and continue to do.

THE ASMFC FACES TOUGH CHALLENGES IN 2025

 

Just over 43 years ago, in October 1981, the Atlantic States Marine Fisheries Commission (ASMFC) released a document designated Fisheries Management Report No. 1 of the ATLANTIC STATES MARINE FISHERIES COMMISSION.

It was 329 pages long and extremely well researched. Its title page declared it to be the “Interstate Fisheries Management Plan for the Striped Bass of the Atlantic Coast from Maine to North Carolina,” noted that it was “Prepared by the State of Maryland Department of Natural Resources, Tidal Fisheries Division as part of the Interstate Fisheries Management Program administered by the Atlantic States Marine Fisheries Commission,” and revealed that “Funds provided by Northeast Region, National Marine Fisheries Service, National Oceanic and Atmospheric Administration under Cooperative Agreement number NA-80-FA-00017.”

It was the first fishery management plan ever drafted by the ASMFC.

And, from a practical perspective, it was just about useless.

That’s not because the information in the report was invalid. The document presented a comprehensive overview of the striped bass fishery, which ranged from the natural history of the stock to a detailed description of the existing commercial and recreational striped bass fisheries.

The problem was that, having produced a striped bass fishery management plan, the ASMFC had absolutely no authority to put that plan to use. At that time, the ASMFC was little more that an interstate debating society, that could perform research and suggest management actions, but lacked the authority to actually manage coastal fisheries.

And that was bad for the striped bass since, in 1981, the stock had collapsed and few young fish were recruiting into the population, but management authority was still in the hands of the coastal states, which seemed more interested in protecting their fishermen’s short-term cash flow than in adopting effective measures to conserve the striped bass.

That all changed in 1984 with the passage of the Atlantic Striped Bass Conservation Act, which, for the first time, gave the ASMFC the legal authority to compel member states to adopt its striped bass management plan. States that refused would risk having a moratorium imposed on their fishery by the federal government. With that law in place, the ASMFC soon adopted Amendment 3 to the Interstate Fishery Management Plan for Atlantic Striped Bass, a measure that severely restricted striped bass landings throughout the stock’s range, and paved the way for the stock to fully recover from its collapse.

In 1993, Congress passed the Atlantic Coastal Fisheries Cooperative Management Act (Coastal Fisheries Act) which extended the ASMFC’s authority to adopt legally binding fishery management plans to all of the species within its jurisdiction, and so establish consistent management measures along the entire East Coast.

For nearly a quarter-century, the ASMFC’s management authority was never successfully challenged. While its management actions weren’t always popular, and some states delayed adopting them, the threat of a federal moratorium that wouldn’t merely restrict the regulated fishery, but instead shut it down entirely, soon caused states to come into compliance.

But that, too, changed. In 2017, New Jersey’s then-Governor Chris Christie leveraged his relationship with the new Trump administration and convinced the newly-appointed Commerce Secretary, Wilbur Ross, to excuse New Jersey’s decision to go out of compliance with the ASMFC’s summer flounder management plan.

That was the first time that a Commerce Secretary failed to support the ASMFC, after the ASMFC had found a state to be out of compliance with one of its management plans. But there are some worrying signs that the ASMFC might be facing similar challenges in 2025.

Last March, two fishing industry groups, the Delmarva Fisheries Association and the Maryland Charter Boat Association, sued the ASMFC. In a complaint that contained multiple legal and factual errors, the plaintiff groups claimed that a recent addendum to its striped bass management plan constituted an illegal “regulatory taking” of property pursuant to the Fifth Amendment to the United States Constitution, and deprived the plaintiffs of “of their rights to property and livelihood” without due process of law and in violation of the Constitution’s Fourteenth Amendment. Plaintiffs asked the trial court to grant a preliminary injunction that would prevent the addendum’s new management measures from going into effect.

The trial court refused to grant the injunction, deciding that the plaintiffs failed to demonstrate that they were likely to prevail in the lawsuit, and didn’t prove that they were likely to suffer irreparable injury if the injunction was denied, that the balance of equities in the matter favored the plaintiffs, or that granting the requested injunction was in the public interest, which are all criteria that must be established before a preliminary injunction may be issued.

Plaintiffs appealed the trial court’s decision. The appellate court’s decision hasn’t yet been released, but after judges began making comments like “Isn’t this regulation intended to save and preserve the striped bass? If you take that at face value, then without this, the striped bass could become extinct, and your client would lose 100% of its business,” it appeared likely that the trial court’s ruling would be upheld.

But the courts aren’t where the real challenge to the ASMFC lies.

Capt. Rob Newberry, the chairman of the Delmarva Fisheries Association, is urging the state to withdraw from the ASMFC, effectively turning the clock back to 1983, when Maryland could still manage its state-waters fisheries without any regard for the views or the interests of its neighboring states, or the coastwide needs of the striped bass resource. While Michael Luisi, an associate director of the Maryland Department of Natural Resources’ Fishing and Boating Services, has said that “the stakes would be too high” to justify such action, has recognized the need for interstate cooperation, and has provided assurances that Maryland has no such plans to withdraw, the mere fact that some stakeholders are urging such action is worrisome.

It is even more worrisome that other states, which have long supported the ASMFC process, are expressing their intention to remain part of the organization, but to go out of compliance with one of its management plans, in this case, the updated fishery management plan for American lobster.

Addendum XXVII to Amendment 3 to the Interstate Fishery Management Plan for American Lobster (Addendum XXVII) established “a trigger mechanism to automatically implement management measures to provide additional protection of the Gulf of Maine/Georges Bank…spawning stock biomass. Under Addendum XXVII, changes to gauge and escape vent sizes in [specified] Lobster Conservation Areas…would be initiated based on an observed decline in recruit abundance indices of 35% from the reference level equal to the three-year average from 2016 to 2018).”

When Addendum XXVII was adopted in May 2023, the ASMFC’s American Lobster Management Board (Lobster Board) assumed that it would be some time, if ever, before that trigger mechanism was tripped. However, in October 2023, the Atlantic Lobster Technical Committee determined that 2022 recruitment had already fallen beneath the 35% threshold, triggering the implementation of more restrictive management measures, which were scheduled to go into effect on June 1, 2024.

That finding caught both lobster fishermen and fishery managers by surprise; practical problems, not the least of which was providing fishermen with new measurement gauges that complied with Addendum XXVII’s changes to the size limit, forced the Lobster Board to delay the implementation date of the new management measures to January 1, 2025. In October 2024, the Lobster Board adopted Addendum XXI to Amendment 3 to the Interstate Fishery Management Plan for Atlantic Lobster (Addendum XXXI), which further delayed the implementation date to July 1, 2025, in order to provide more time for Canadian regulators to adopt similar regulations, and so not put New England lobster fishermen, who fish the same waters as the Canadians, at a competitive disadvantage.

States must now comply with Addendum XXXI’s July 1 deadline. However, two of the three affected states, Maine and New Hampshire, have signaled that they won’t do so.

New Hampshire has taken the more defiant stance, with Governor Kelly Ayotte writing a letter to the ASMFC that read, in part,

I have heard loud and clear from our lobstermen, commercial fishermen, and concerned legislators and citizens from our Seacoast that this minimum size increase will have a negative impact an industry already strained by existing regulations. To ensure the survival of an iconic and historic industry in our state and our region, and to ensure our nation remains competitive in global trade, I ask you today to rescind these new guidelines. In the meantime, New Hampshire will comply with the previous minimum size for lobster in an effort to preserve this proud industry.

In case anyone had any doubts about Governor Ayotte’s intentions, she also posted an image to the social media website X that featured the image of a lobster along with the legend, “COME AND TAKE IT.”

Maine’s response to Addendum XXXI was far more restrained, but the outcome was about the same.

On January 9, 2025, Pat Keliher, the commissioner of Maine’s Department of Marine Resources, stood before a meeting filled with angry lobstermen and announced that “For now, I pull the rule [that would have kept Maine in compliance with the ASMFC’s lobster management plan]. I called up the governor on the way in and explained the risks of compliance [sic] with ASMFC. She agreed with me that we should pull the rule based on the input we got [at the meeting held] in Brewster [two nights earlier] and the input we got tonight.”

But, unlike Governor Ayotte, Commissioner Keliher did not engage in a show of defiance. Instead, he warned the Maine lobstermen that, despite their claims that the new management measures were unnecessary, “If [the ASMFC] say through a vote, that doesn’t matter, you’re out of compliance, they will send a letter to the secretary of commerce. The secretary reviews the letter, looks at all the science we will submit with that letter, and then the secretary of commerce will make a determination whether the fishery should be forced into compliance or be closed. That means no lobster exported out of the state of Maine. So that’s the risk we run. I’m just laying it out plain.”

That warning may have made at least some of the lobstermen uneasy, as one of the attendees at the January 9 meeting reportedly said, “I don’t think we’re asking you to go to the ASMFC saying we won’t do it. We’re saying we need to see the results of this [upcoming] stock assessment.”

If Maine or New Hampshire doesn’t adopt Addendum XXXI’s management measures by July 1, the Lobster Board, at its August 2025 meeting, could vote to find them out of compliance with ASMFC’s lobster management plan.

If the Lobster Board finds one or both states out of compliance, the matter would then be referred to the Interstate Fishery Management Program Policy Board (Policy Board). Should the Policy Board agree that Maine and/or New Hampshire is out of compliance, the Coastal Fisheries Act would require the ASMFC to notify the Secretary of Commerce and the Secretary of the Interior of its finding within 10 working days.

And that’s when things could get a little bit tricky.

According to the Coastal Fisheries Act,

Within 30 days after receiving a notice from the Commission…and after review of the Commission’s determination of noncompliance, the Secretary [of Commerce] shall make a finding on (1) whether the State in question has failed to carry out its responsibility [to comply with and enforce the terms of the relevant fishery management plan]; and (2) if so, whether the measures that the State has failed to implement and enforce are necessary for the conservation of the fishery in question. [formatting omitted]

The Coastal Fisheries Act also requires that, “Upon making a finding…that a State has failed to carry out its responsibility [to comply with and enforce a 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 noncomplying State. The Secretary shall specify the moratorium’s effective date, which shall be any date within 6 months after declaration of the moratorium.”

While it would be nice to believe that the Secretary of Commerce’s decision would be objective and based solely on the facts presented by the ASMFC and the allegedly noncompliant state, politics can also play the deciding role. Before Commerce Secretary Wilbur Ross excused New Jersey’s noncompliance with the ASMFC’s summer flounder management plan, his office was heavily lobbied by members of the state’s congressional delegation and by the state’s then governor, Chris Christie, who was an early supporter of Donald Trump’s 2016 presidential bid. Given the strong scientific support for the ASMFC’s noncompliance finding, it was New Jersey’s political connections that probably carried the day.

While Maine’s Governor Janet Mills is a Democrat, and unlikely to garner any sympathy from the current Republican administration, New Hampshire Governor Kelly Ayotte is a Republican who might find a more receptive ear in Washington; that might explain the tone of her letter to the ASMFC which aggressively declared New Hampshire’s intent to go out of compliance with the lobster management plan. In addition, although Donald Trump didn’t win a single New England state, he was the favorite candidate of many commercial fishermen in the Northeast. That fact, too, could come into play in any secretarial decision.

After Secretary Ross excused New Jersey’s noncompliance in 2017, Douglas Grout of New Hampshire, then chair of the ASMFC, noted in a press release that

The Commission is deeply concerned about the near-term impact [of Secretary Ross’s decision] on our ability to end overfishing on the summer flounder stock as well as the longer-term ability for the Commission to effectively conserve numerous other Atlantic coastal shared resources…The states have a 75-year track record of working together to successfully manage their shared marine resources. We are very much concerned about the short and long-term implications of the Secretary’s decision on interstate fisheries management…

But, for the moment, such processes and possibilities are no longer a concern.

Members of the Lobster Board apparently didn’t want to take the chance that a new Secretary of Commerce might overturn a noncompliance finding. Perhaps they feared that any new secretarial decision to excuse noncompliance would fatally undermine the ASMFC’s ability to enforce the terms of its management plans, for on February 4, 2025 the Lobster Board approved a motion that read, “Move to initiate an addendum to repeal all gauge and [lobster trap escape] vent size changes in Addendum XXVII. The other sections of Addendum XXVII will remain in effect.”

A few members on the Lobster Board criticized the motion, on the grounds that other ASMFC management boards had enforced management plan provisions that some states, and some states’ fishermen, had strongly opposed. New Jersey’s legislative proxy, Adam Nowalsky, explained that he could not support the motion because

the actions of this Commission have been to trust in the joint actions that we have taken regardless of whether or not certain constituents or certain governors or individuals or a couple or three states yell and scream and say, “this isn’t going to work for us.” The Commission goes forward with it anyway. There is an appeal process if someone does not go into compliance with it. There is a process to take it to the Secretary of Commerce. That has happened in the past. So purely from a procedural perspective, from how the Commission has operated in the past, again I can’t support this [motion] for that reason.

New Hampshire’s legislative proxy, Dennis Abbot, responded by asking,

Adam, to your points, I think looking at things realistically, I think we’ve tried to do that. What do you think the odds are if we didn’t, if we failed in this motion, and we find New Hampshire and Maine out of compliance and the noncompliance finding is forwarded to the Secretary of Commerce at some point in time later this year, what do you think in the real world the odds are that the Secretary of Commerce is going to go along with our finding of out of compliance?…I believe we’ll be right back where we are today. And I wouldn’t like to be there. We surely don’t want to be there in any instance.

Mr. Abbott was clearly not the only Lobster Board member who had such concerns.

Yet if the ASMFC doesn’t act to enforce its decisions out of fear of being overruled, it also encourages any state which disagrees with a management action to threaten noncompliance, or even a complete withdrawal from the ASMFC, in order to escape the burdens of a locally unpopular management measure. The members of the Lobster Board sit on other management boards as well, and so vote on issues affected other species; fisheries managers from Maryland and New Jersey both drew connections between Addendum XXVII’s impacts on Maine’s and New Hampshire’s lobstermen and the impact that striped bass management measures, which were supported by both Maine and New Hampshire, had on Maryland’s and New Jersey’s fishing industries.

The unspoken threat was that if Maine and New Hampshire are not expected to comply with the lobster management plan, then perhaps states such as Maryland and New Jersey should not be expected to comply with measures affecting their striped bass fisheries. Should such threat ever become explicit, the resulting race to the bottom could devastate inshore fisheries.

Thus, ASMFC finds itself on the horns of a dilemma, with any action it takes or refrains from taking having the potential to weaken its ability to manage inshore fish stocks.

And that’s not where the ASMFC needs to be. Instead, it must be able to rely on the Secretary of Commerce to cooperate, respect its decisions, and support its management processes. Hopefully that will occur, for while the ASMFC process is not perfect, and not without need of reforms, coastal fisheries management has come a long way in the three decades since the Coastal Fish Act became law, compared to the regulatory chaos that existed when each state was the sole arbiter of how fish were managed within that state’s waters.

Coastal fisheries would suffer if we went backwards now.

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

STRIPED BASS: WHAT MIGHT THE FUTURE HOLD?

 

This winter has, in many respects, been the winter of striped bass speculation.

On one hand, there is real concern for the health of the striped bass stock.  Anglers have been watching the numbers decline for a few years now, have noticed the dearth of smaller fish, and are beginning to worry that the bottom is going to fall out of the fishery in the next couple of years.

It has been a very long time—perhaps not since 1995, when the striped bass stock was first declared rebuilt, and managers here in New York proposed relaxing the regulations from a 1-fish bag and 36-inch minimum size to 2 fish at 28 inches—that I have heard as much anger focused on fisheries managers as I hear today, after the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board chose to take no meaningful action last December, and so allowed the 2018 year class—the last above-average year class in the population—to enter the coastal slot limit this year, to become the focus of the entire catch-and-kill coastal fishery, without giving it any additional protections.

I know some people, who have been involved with the fishery for a very long time who, after listening to the February Management Board meeting and hearing some Board members seemingly try to liberalize management measures and increase the striped bass kill, at least for their favored sectors, instead of restricting everyone’s landings and promoting conservation, are now saying things like “It’s over.  The striped bass are done,” because they have lost any hope that the Management Board will find the will or the courage to take decisive measures to conserve and rebuild the stock.  Such folks fully believe that the Board is going to let the stock languish well below the spawning stock biomass target, because doing anything else would be too politically fraught in their home states.

At the same time, I’m not sure that I’ve ever seen the average bass angler’s faith in fisheries science fall so low; it is very hard for most to believe that the spawning stock biomass is really increasing—even though all available data indicates that it is—when they see little but empty water through much of the season.  They often fail to understand that spawning stock biomass, measured in pounds or in metric tons, can increase for a while even as overall numbers fall, because older fish are growing larger and offsetting the lack of new recruits.

Yet it has also been a winter of undue optimism.  While many anglers worry about what they see as a declining stock, others feel that everything is OK.

That’s particularly true of those who caught their striped bass in the fall, somewhere between western Long Island and northern New Jersey, where anglers experienced what might have been some of the best striped bass fishing of their lives.  When most of the bass that spent their summer somewhere between Maine and Montauk move south along the coast, run into big schools of sand eels and menhaden, and decide to stick around for a while, that sort of fishing is going to happen.  Bass are concentrated, and very catchable.  But in many other places, where the fish should have been, they just were not there.

Others, who have some understanding of what might lead to a successful Chesapeake spawn, point to the relatively cold and snowy winter that we’re experiencing, and hope that it will turn things around.  And it is very possible that we will see the juvenile abundance indices in Maryland and Virginia jump this year.  Cold winters followed by cool, wet springs tend to favor striped bass reproduction, so there is reason to believe that the 2025 year class might, at worst, be the best since 2018.

I certainly hope that’s the case, but we need to remember that water temperatures and water flows aren’t the sole arbiters of spawning success.  Even if there’s a strong spawn, those juvenile bass need something to eat once they’re hatched, and there is evidence to suggest that if their favorite food, a type of zooplankton called a copepod, doesn’t hit peak abundance when the bass most need it, the bulk of those juveniles will not survive.  There is reason to believe that such a mismatch between copepod and juvenile striped bass abundance may have been the reason that 2024 juvenile abundance was disappointingly low, despite seemingly good water conditions.

And even if we do get a strong 2025 year class, that one year class isn’t going to change the bass fisherman’s world.  I sometimes hear anglers make comments that seemingly suggest that this winter could lead to good fishing in the 2025 season, but things don’t quite work that way.  While this winter could impact spawning success, it will have no impact on fish that were spawned in previous years.  The poor spawns that occurred from 2019 through 2024 will still leave a big hole in the population, and it still takes seven years to produce a seven-year-old bass—the average age of a fish in the current 28- to 31-inch slot—so the shortage of fish spawned between 2019 and 2024 is only going to become more noticeable as the big 2021 and 2023 year classes—mostly 50-pound-plus fish, at this point—age out of the population, the 2011s and 2015 suffer attrition from both natural and fishing mortality, and the 2018s become the focus of the recreational catch-and-keep fishery.  Beginning in 2026, when the 2019s would normally have produced most of the slot-sized bass, and more so in 2027, after the last of the 2018s grow out of the coastal slot, the years of poor spawns are going to be very much felt by everyone.

Some people disagree, and argue that there are still plenty of bass, but that most the fish have just decided to go someplace else.

One version of that argument says that as waters warm, the fish have just moved north, and are breeding in more northerly rivers.  Yet the Hudson River, the most northerly major spawning ground, has seen very poor spawns over the past couple of years, with 2023 producing the lowest year class since 1985.  And no one has ever documented significant striped bass reproduction in any New England river, although some very limited spawning takes place in both the Connecticut River and Maine’s Kennebec.

The other version of the argument is that the bass have moved offshore, and that there are great numbers of them somewhere near the edge of the continental shelf.  Support for this argument comes from occasional sightings of bass schools offshore, usually made by commercial fishermen, and from tag returns obtained by the use of pop-up satellite tags.  The truth is that bass sometimes to sojourn offshore, but an acoustic tagging study conduced off Massachusetts, based on fish captured offshore on the Stellwagen Bank, found that all such “offshore” bass soon return to their traditional inshore grounds.  And as far as the satellite tracking goes, proponents fail to account for a critical factor, which is the inherent inaccuracy of the satellite tags.  I have spoken to two different biologists about the issue, one employed by a university in Maine, and one here in New York, and both told me that the positions fixed by the tags can be off by as much as 30 miles in latitude and 60 miles in longitude—enough that a bass supposedly swimming a few miles north of Hudson Canyon might in reality be cruising the flats inside Great South Bay.  In the case of at least one much-publicized detection, which suggested that a bass was lingering at the outer edge of the continental shelf, the scientist from Maine told me that he was getting data from satellite tagged yellowfin tuna that were supposedly in the same vicinity, but that the data was indicating two very different water temperatures, meaning that either the bass or the tuna had to have been somewhere else.

So the trick, when we’re trying to figure out what the striped bass’ future might be, is to avoid both extremes, and try to be neither too hopeful nor too pessimistic.  Although it’s tempting to try to extrapolate future events from the facts that we have on hand, the existing uncertainty is great enough to render such attempts at prophecy generally unrewarding.

Still, there are some things that we know.  We know that we had poor recruitment from 2019 through 2024, that the Chesapeake is, by far, the most important spawning area for the species, and just two other rivers, the Delaware and the Hudson, are responsible for almost all of the rest of the fish that enter the coastal migratory population.  We know that the stock remains modestly overfished, and we know that overfishing is not currently occurring.  We know that there has been a trend toward warming winters and more quickly warming springs, and that colder winters and cooler, wetter springs tend to produce the strongest year classes of bass.

And that’s about the extent of our knowledge; everything else remains within the realm of speculation.

Based on that knowledge, we can reasonably expect the spawning stock biomass to increase over the next few years, even as relatively few fish recruit into the stock; the stock still could rebuild to the target level by 2029. 

We also know that the target level in 2029 might not be the same as it is today.  If that proves to be the case, it’s not because anyone “moved the goal posts,” as some skeptics might claim.  Instead, it’s because the National Marine Fisheries Service has discovered a seeming error in the Marine Recreational Information Program data, which is used to estimate recreational catch, effort, and landings, which they believe has lead to each of those values being overstated.  Corrected values will be available by 2026, and those corrected values will be incorporated into the benchmark stock assessment that is scheduled for completion in early 2027. 

Because recreational catch and landings play a big part in the stock assessment and in the calculation of the spawning stock biomass threshold and target, a downward correction in the recreational catch and landings would result in a downward revision in the spawning stock biomass reference points as well. 

But there will be nothing sinister about such change; instead, it will be just an example of how the “best scientific information available” works; as new and more accurate data is developed and incorporated into the models, new and more accurate reference points will be the result.

But regardless of whether the spawning stock biomass is fully rebuilt by 2029, it is likely to decline in the early 2030s as the poor spawning years leave their mark on the population.  If fishing mortality can be constrained to or below 2024 levels, the decline may not be too bad, with spawning stock biomass not dropping too much below where it is today.

How long SSB will stay at that level is a very different question, and one that’s impossible to predict right now.

The last period of poor recruitment ran from 1975 through 1988, with a couple of just-about-average peaks along the way.  If that happened again, just like it did in the past, we wouldn’t see a material improvement until 2033, and few mature fish until 2040. 

But nothing requires the future to mirror the past.  It is possible that we’ll see a strong year class produced this year, that will enter the spawning stock biomass in significant numbers by 2032, with good year classes being regularly produced every few years thereafter.

That’s the best-case scenario.

But it’s also possible that the recent climate trends will become permanent, or even accelerate, so that cold winters and cool, wet springs occur less often—perhaps once a decade, if that.  If such favorable spawning conditions occur less often, the striped bass fishery that we knew and enjoyed through the early 2020s is likely to become a mere memory.  Instead, the fishery may more closely resemble what we’ve come to expect from weakfish—a boom-and-bust fishery that generally sees abundance too low to support significant commercial or recreational fisheries, interspersed with occasional periods when, thanks to particularly favorable conditions, a big year class is produced and provides far better fishing.  Should such a fishery become the new reality, the good news is that, with proper management, the striped bass’ longer lifespans should allow the boom years to last a little longer than they do in the weakfish fishery.

But it still wouldn’t be like any bass fishery that we’ve ever known before.

Thus, the striped bass, and striped bass fishermen, face a host of possible futures.  Some look a lot like the past.  Some look distressingly new.  With no way to be certain about what is to come, it makes sense to hope for the best while preparing for the worst, and adopt management measures that emphasize maintaining abundance and a spawning stock that includes the greatest possible variety of ages and sizes—exactly what the current plan envisions—in order to achieve the greatest possible resilience, and a stock able to overcome whatever challenges nature or man might throw in its path.

 

 

ACCOUNTABILITY AND THE ASMFC: TAKING THE COMMISSION TO COURT

 

The Magnuson-Stevens Fishery Conservation and Management Act, which governs all fishing in federal waters (generally, between three and 200 miles from shore), contains a provision titled “JUDICIAL REVIEW,”  which reads, in part,

“(1)  Regulations promulgated by the Secretary [of Commerce] under this Act and actions described in paragraph (2) shall be subject to judicial review to the extent authorized by, and in accordance with, [the federal Administrative Procedures Act], if a petition for such review is filed within 30 days after the date on which the regulations are promulgated or the action is published in the Federal Register, as applicable; except that—

(A) section 705 [which applies to temporary relief] of such [statute] is not applicable, and

(B) the appropriate court shall only set aside any such regulation or action [because such regulation or action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; was unconstitutional; was in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or was adopted without observance of procedure required by law].”

Magnuson-Stevens also contains ten so-called “National Standards for Fisheries Conservation and Management,” which address such things as achieving optimum yield, preventing overfishing, following the best available science, allocating fishing privileges, maintaining fishing communities, and minimizing bycatch; the same law includes a provision that requires all overfished stocks to be rebuilt within a time certain which, if reasonably practicable, may not exceed 10 years.

If a fishery management plan or related regulation isn’t based on facts developed in the public hearing process, violates a National Standard, or does not provide for rebuilding an overfished stock within an acceptable time period, an affected citizen and/or organization may take the responsible federal agencies to court in order to hold them accountable for their failures.

The Atlantic Coastal Fisheries Cooperative Management Act, which empowered the ASMFC to manage coastal fish stocks and also empowered it to enforce the provisions of its fishery management plans should any member fail to adopt them, does not contain a section permitting judicial review of the ASMFC’s actions.  Nor does it contain any legally-enforceable national standards for the ASMFC’s fishery management plans, nor a requirement that the ASMFC restore overfished stocks.

While the Atlantic Coastal Fisheries Act does include provisions to hold a state accountable for noncompliance with an ASMFC fishery management action—should any state fail to adopt a required management measure, the ASMFC may find it out of compliance with any provision of a management plan and forward that finding to the Secretary of Commerce who, provided that they agree with the finding of noncompliance and believe that the relevant provision is necessary for the conservation of the affected species, must shut down the fishery for such species in the noncompliant state’s waters until compliance is achieved—it contains nothing that might hold the ASMFC accountable for its own actions and omissions in the management process.

The closest it comes is a provision which states that.

“Within 1 year after December 20, 1993, the Commission shall establish standards and procedures to govern the preparation of coastal fishery management plans under this chapter, including standards and procedures to ensure that such plans promote the conservation of fish stocks throughout their ranges and are based on the best scientific information available; and the Commission provides adequate opportunity for public participation in the plan preparation process, including at least four public hearings and procedures for the submission of written comments to the Commission.  [formatting omitted]”

However, what recourse an aggrieved party might have, should the ASMFC fail to live up to the standards that it itself has established, is completely unclear.

A big part of the problem is that the ASMFC is an interstate compact, a unique legal entity formed by a voluntary agreement of its member states, approved by Congress, and ultimately governed by Article I, Section 10, Clause 3 of the United States Constitution, which reads,

“No State shall, without Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in times 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.”

The interstate compact creating the ASMFC was approved by Congress on June 8, 1940 and later ratified by the compact’s member states.  The compact declares the ASMFC’s purpose to be

“to promote the better utilization of the fisheries, marine, shell and anadromous, of the Atlantic seaboard by the development of a joint program for the promotion and protection of such fisheries, and by the prevention of the physical waste of such fisheries from any cause.  It is not the purpose of this compact to authorize the states joining herein to limit the production of fish or fish products for the purpose of establishing or fixing the price thereof, or creating or perpetuating monopoly.”

To further emphasize that participation in the interstate compact is voluntary, its final article provides, among other things, that

“This compact shall continue in force and remain binding upon each compacting state until renounced by it.  Renunciation of this compact must be preceded by sending six months notice in writing of intention to withdraw from the compact to the other states party hereto.”

As an interstate compact duly approved by Congress, rather than a federal agency, the ASMFC has no regulatory authority over anyone.  It may only, pursuant to the Atlantic Coastal Fisheries Act, develop fishery management plans and related management actions, which the individual member jurisdictions must then adopt in regulations promulgated not by the ASMFC, but by the member jurisdictions themselves.

All of that makes it very difficult to hold the ASMFC accountable for any action or omission related to a fishery management plan.

The fact that the ASMFC acts as in interstate compact has, so far, proven to be an impossible obstacle for litigants to overcome.  The 2010 decision in New York v. Atlantic States Marine Fisheries Commission helps explain why.

In that matter, three parties which intervened in the action as plaintiffs, the United Boatmen of New York, the New York Fishing Tackle Trades Association, and the Fishermen’s Conservation Association, attempted to use the provisions of the federal Administrative Procedures Act to make the ASMFC a defendant in the action, which was originally brought by the State of New York against the National Marine Fisheries Service and its parent agencies.  The purpose of the lawsuit was to challenge the allocation of summer flounder made to New York’s recreational fishermen.

As noted by the United States Court of Appeals for the 2^nd Circuit, which decided the matter,

“ASMFC brought a motion to dismiss United Boatmen’s complaint in intervention for failure to state a claim.  In support of its motion to dismiss, ASMFC pointed out that neither its governing Compact nor any federal statute provide a private right of action to seek judicial review of its regulatory decisions.  More importantly for purposes of this litigation, the Commission mentioned that the provisions of the [Administrative Procedures Act], which provide a right of action against federal agencies, do not apply to action by an interstate compact agency.  [citations omitted]”

The trial court (the U.S. District Court for the Eastern District of New York) had gotten around the latter issue by deeming the ASMFC a “quasi-federal agency,” because of the high level of federal participation in its operations.  It noted that the compact creating the ASMFC was approved by Congress, that 90% of the ASMFC’s funding came from federal sources (and was also approved by Congress), that the Atlantic Coastal Fisheries Act’s language, quoted above, requires the ASMFC to base its actions on the best available science and to provide for public participation, that the ASMFC serves a federal objective by managing and conserving fisheries resources, and that two federal agencies, the National Marine Fisheries Service and the United States Fish and Wildlife Service, serve on ASMFC’s species management boards.  In its decision, the trial court also stated,

“The high level of federal participation in ASMFC does not, however, automatically transform ASMFC from an association of state representatives into a quasi-federal agency.  By its own terms, the ASMFC Compact expressly states that ‘[n]othing in this compact shall be construed to limit the powers of any signatory state.’  At the same time, the Fisheries Act renders [fishery management plans] prepared by the Commission binding on ASMFC member states.  The Fisheries Act expressly requires each state identified in [a fishery management plan] developed by the Commission to implement and enforce the [fishery management plan], usually through state-enacted laws or regulations.  Thus, ASMFC member states are bound by Commission decisions, which are controlled in part by federal standards.  In addition, the Fisheries Act confers authority on the Commission to monitor a state’s implementation and enforcement of Commission [fishery management plans].  If the Commission determines that a state is not in compliance with its [fishery management plan], the Commission is required to provide notice to the United States Secretary of Commerce.  While it is true that the Secretary must make an independent decision that the [fishery management plan’s] measures are necessary for fishery conservation before taking action to enforce the Commission’s [fishery management plan] (namely, by imposing a fishing moratorium), this separation of the ASMFC’s and the Secretary’s powers appears more formal than substantive.  It does not alter the fact that the Commission’s [fishery management plans] are binding on the states, that the Commission monitors state compliance with the [fishery management plans], and that the Commission’s determination regarding a state’s non-compliance is critical as to whether a moratorium on fishing will be imposed on that state.  Considered together, these congressionally authorized activities rise to the level of de facto regulatory power exercised by ASMFC on behalf of the federal government…the Commission’s de facto regulatory power is sufficient to transform the Commission into a quasi-federal agency for the purpose of [Administrative Procedures Act] review.  {citations omitted]”

While that might seem a reasonable argument, it wasn’t reasonable enough to persuade the 2^nd Circuit, which ultimately found that the ASMFC was neither a federal agency no quasi-agency, writing,

“The fact that the ASMFC was created by an interstate compact and approved by Congress does not alter [the] analysis.  We find that the [Administrative Procedures Act’s] definition of 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 in managing the stock of summer flounder off of the Atlantic coast,
it exists outside the federal administrative law framework.  And, it would upset the ‘federal-state balance’ to subject its actions to accountability measures designed to restrain the actions of federal authorities.  [citations omitted]”

The 2^nd Circuit’s decision seemed fairly decisive, but was only binding on federal district courts in New York, Vermont, and Connecticut.  Other circuit courts, with jurisdiction over matters arising elsewhere, could decide otherwise, although New York v. Atlantic States Marine Fisheries Commission nevertheless constituted persuasive, rather than binding, authority.

A recent 4^th Circuit decision originating in Maryland (the 4^th Circuit also has appellate jurisdiction over matters arising in Virginia, West Virginia, North Carolina, and South Carolina) again illustrated just how difficult it is to hold the ASMFC accountable for its actions.

The matter is one that I’ve written about before, Delmarva Fisheries Association v. Atlantic States Marine Fisheries Commission, in which a group of commercial fishermen and for-hire vessel owners challenged Addendum II to Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, which reduced the commercial striped bass quota by 7% while cutting the bag limit for charter and party boats in the Chesapeake Bay from two fish to one—the same bag limit that had already been in effect for shorebound and private boat anglers. 

I wrote about the suit when it was first brought, challenging the ASMFC’s authority.   I wrote about it a month later, when plaintiffs’ motion for a preliminary injunctionwas denied, and the trial court noted that it was unlikely that plaintiffs would succeed on the merits.  Now, the trial court’s decision has been vacated by the 4^th Circuit, and replaced with an order to dismiss the entire action, because the 4^th Circuit found that the plaintiffs never had standing to bring suit in the first place, because it wasn’t the ASMFC that caused their alleged injuries, but rather the State of Maryland, which actually promulgated the regulations that imposed Addendum II’s management measures on that state’s fishermen.

In its decision, the 4^th Circuit wrote,

“Plaintiffs sued the Commission, not Maryland.  But they are regulated by Maryland, not the Commission.  So, to have standing to enjoin the Commission’s actions, Plaintiffs must show how doing so will change how Maryland regulates them.  Where choices by an ‘independent actor’ are involved—here, the sovereign state of Maryland—Plaintiffs face the ‘difficult’ burden of showing how Maryland would respond if the Commission’s Addendum II were enjoined.  In other words, Plaintiffs must plausibly allege that Maryland would likely rescind the one-fish limit on charter boats if the district court enjoined Addendum II.  They have not done so.

“First, Plaintiffs’ allegation that the Commission coerced Maryland to enact the regulations that are allegedly causing them harm is unpersuasive.  Maryland voluntarily entered thto e Commission and may withdraw for any reason.  As the Commission has authority to recommend plans only its ‘member states,’ only member states are subject to Bass Act penalties for noncompliance with Commission plans.  And taking a step back, Maryland has collaborated with the other states in the Commission for over eighty years to preserve critical fisheries in the Chesapeake Bay and the Atlantic Ocean.  As with any collaboration, sometimes Maryland takes and sometimes it gives.  But it would probably surprise Maryland to hear that it had been coerced.

“Second, even if Plaintiffs could establish that the Commission did ‘coerce’ Maryland to adopt the regulations, they would still need to plausibly allege that Maryland would opt to rescind its duly enacted regulations if Addendum II were enjoined.  When Plaintiffs’ ‘asserted injury arises from’ the Commission’s alleged coercion ‘of someone else,’ it becomes the ‘burden of the plaintiff to adduce facts showing that those choices have been or will be made in such a manner as to permit redressability of injury.’  But Plaintiffs fail to even allege that Maryland would likely repeal its regulations if Addendum II were enjoined.  And even if they had made that bare allegation, they would have needed to provide an explanation given that Maryland chose to adopt regulations more stringent than Addendum II’s recommendations.

“In sum, Plaintiffs have not plausibly alleged that Maryland is likely to repeal its striped-bass regulations if Addendum II were to be enjoined.  So Plaintiffs lack standing as they have failed to plead facts showing that an injunction of Addendum II would likely redress their injuries.  Accordingly, we must instruct the district court to dismiss this case.  [citations omitted]”

The decision in Delmarva Fisheries didn’t completely slam the door on judicial review of the ASMFC’s management actions, but it came pretty close.  It left open the mere possibility that an artfully drafted complaint, which included allegations that, if it were not for the ASMFC’s continued monitoring of state compliance, a state would repeal the regulations that the Plaintiffs sought to enjoin, might survive a challenge to the plaintiffs’ standing to sue.  However, making allegations are one thing, and proving those allegations another, so it is very possible that, even if a future lawsuit survived the ASMFC’s motion to dismiss, the final judgment would still favor the ASMFC.  Proving a regulator’s unspoken desire to repeal existing regulations is not an easy thing to do.

What the Delmarva Fisheries decision didn’t—and had no need to—address was just how the plaintiffs in that action might have successfully sued Maryland over its Addendum II striped bass regulations, had it not chosen to sue the ASMFC.  Had they tried, such effort probably wouldn’t have led to any greater success.

That’s because, while the details may vary a little from state to state, most states have passed laws similar to the federal Administrative Procedures Act, which specify how administrative agencies may go about their work and how a party, aggrieved by an agency decision, may seek judicial review.  One of the near-constants in state statutes and state case law (and federal law as well) dealing with judicial review of agency actions is whether there is “substantial evidence” in the administrative record to support the agency action; if such substantial evidence is present, the action will normally be upheld.

Cornell University Law School’s Legal Information Institute informs us that

“Substantial evidence is a standard of review used at the appellate level, usually to review an administrative agency’s actions…Substantial evidence is a deferential standard lower than preponderance of the evidence.

“In the context of federal agencies, for example, courts reviewing under the substantial evidence standard look to the entire existing administrative record and ask whether it contains evidence sufficient to support the agency’s factual determinations.  The standard ‘means—and means only—such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”

Thus if, in adopting regulations implementing Addendum II, Maryland’s administrative record included the findings of ASMFC scientists which supported passage of Addendum II, or the similar findings of its own scientific staff, along with the testimony of witnesses during the state’s own public hearing process, and such evidence was sufficient to support the regulations, a judicial challenge would fail, regardless of whether there was also evidence to the contrary; it is up to the agency to decide what evidence to believe.  It is also possible that the very fact that the ASMFC might find Maryland out of compliance with Addendum II, and that the Secretary of Commerce might impose a moratorium on Maryland’s striped bass fishery, causing substantial social and economic harm, if Maryland didn’t adopt conforming regulations would be sufficient for such regulations to survive legal challenge.

So how may someone who believes themselves injured by the ASMFC’s actions—or, just as likely, but the ASMFC’s inaction—successfully seek judicial review?

At this point, it’s safe to say that no one really knows.

We know that the federal Administrative Procedures Act probably can’t be used as a vehicle to challenge the ASMFC, that the Delmarva Fisheries decision will make it very difficult for a plaintiff to establish standing when suing the ASMFC itself, and that state administrative law principles will probably also make it difficult to argue that state regulations, adopted to comply with ASMFC management measures, are arbitrary, capricious, or without support on the administrative record,.

That closes a lot of doors.

As far as opening a door to a lawsuit goes, I have always wondered whether, in certain circumstances when a management plan requires the ACMFC to take a particular action—an example is language in Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, which states that

“If female [spawning stock biomass] falls below the target for two consecutive years and the [fishing mortality] rate exceeds the target in either of those years, the striped bass management program must be adjusted to rebuild the biomass to a level that is at or above the target within an established timeframe (not to exceed 10 years),  [emphasis added]”

--and the ASMFC fails to follow the mandatory language in such plan, a litigant might be able to seek a writ of mandamus to compel the ASMFC to act in accordance with the management document.

According to one reference (which is admittedly not an authoritative legal reference, but does employ language that is simple for a layman to understand),

“A writ of mandamus…is a judicial remedy…consisting of a court order that commands a government official or entity to perform an act it is legally required to perform as part of its official duties…Writs of mandamus are usually used in situations where a government official has failed to act as legally required…Decisions that fall within the discretionary power of public officials cannot be controlled by the writ…

“The purpose of mandamus is to remedy defects of justice.  It lies in the cases where there is a specific right but no specific legal remedy for enforcing that right…”

That all sounds encouraging, but it would still require a plaintiff to establish that the ASMFC is a “government entity,” that the ASMFC is “legally required” to follow the mandates of its own management plans, and that the ASMFC is not entitled to exercise at least a small degree of discretion as to whether it must—in the current example—initiate a rebuilding plan for striped bass if the relevant management trigger is tripped.

To make things even a little more complicated, Cornell University Law School tells us that

“For comity purposes, state courts cannot direct a federal officer through a mandamus and federal courts likewise cannot issue a mandamus to a state officer.”

So, anyone hoping to use a writ of mandamus to compel the ASMFC to act would have to first determine whether the interstate compact represents a state or federal entity, and defend that determination after filing a petition in the appropriate court.

And even after all that was done, a mandamus petition filed against the ASMFC would represent a case of first impression without guiding legal precedent, that the plaintiff could easily—perhaps probably would—lose.

Of course, there is still one other, intriguing possibility.  Counsel for the plaintiffs in Delmarva Fisheries has announced his intent to appeal the 4^th Circuit’s decision to the United States Supreme Court.  It is a longshot that such appeal would ever be heard.  Appellants don’t typically get to the Supreme Court “as of right.”  Instead, they must petition the court for a writ of certiorari allowing them to take the appeal, and as the website of the United States’ court system makes clear,

“The Court typically will agree to hear a case only when it involves an unusually important legal principle, or when two or more federal appellate courts have interpreted a law differently.”

The Plaintiffs in Delmarva Fisheries make a lot of dubious claims that seem completely without legal merit.  The trial court found that they were unlikely to prevail if the case went to trial, while the 4^th Circuit decided that they have no standing to sue.  The odds are very good that the 4^th Circuit will have the final word.

But we can only wonder whether there is the slightest chance that the Supreme Court might look at an interstate compact that has the ability and the duty to preserve and sustainably manage the inshore marine resources of the entire Atlantic coastline or, if it shirked in its task, might well oversee those resources’ demise, and in its success or failure affect the recreational, commercial, and economic well-being of many millions of stakeholders, and note that such compact’s management actions are subject to no judicial oversight at all.

And if the Supreme Court paid that kind of attention, it might decide that there is an “important legal principle” involved after all, deciding that when any entity, including an interstate compact, is given that much power, citizens ought be given a way to keep that power in check.

It is highly, highly unlikely that the Supreme Court will come to that decision.  It is a near-certainty that the petition for certiorari will be denied.

But only a near-certainty.  No one can ever be completely certain about what the Court will do.

So it’s still tempting to speculate about what might occur if the Supreme Court surprised us all, and decided to take up the case.