The complaint in that lawsuit contained a number of errors
of both fact and law, and the plaintiffs didn’t fare well in the courts. Their first setback came about a month after
the suit was filed, when the court denied their petition for a preliminary
injunction, finding that the plaintiffs were unlikely to ultimately prevail in
the legal action.
At that point, most people would probably have accepted their loss and gone home, but the folks who brought the initial action against the ASMFC are nothing if not persistent. On May 13, they filed a bigger, if probably no better, lawsuit featuring a larger cast of plaintiffs and a much larger group of defendants.
I haven’t yet been able to get my hands on a
copy of the complaint in the new action, but judging from some of the things
that have been reported, it seems as if the plaintiffs are making arguments similar to
those that they made in their last losing effort--that the ASMFC’s management of
the striped bass fishery, and the states’ compliance with the ASMFC’s striped
bass management plan, somehow constitute a denial of plaintiffs’ civil rights,
and a taking of their property without due compensation.
It's a stretch, but I suppose the plaintiffs believe that if
they keep trying, accumulate enough allies and sue enough different people,
they will eventually prevail. And it
should be admitted that, although their chances of success are probably very
small, they are somewhat larger than zero.
Douglas Burgum, in his role as Secretary of the Interior, is
the first-named defendant. He is joined
by fellow administration members Paul Souza, head of the United States Fish and
Wildlife Service, Howard Lutnick, the Secretary of Commerce, and Laura Grimm,
in charge of the National Oceanic and Atmospheric Administration. The Atlantic States Marine Fisheries
Commission is, of course, named, as are all fifteen of its members states, the
District of Columbia, and the Potomac River Fisheries Commission. So when the trial starts, there will definitely
be a lot of lawyers filling the courtroom.
“Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress, except that any action brought against a
judicial officer for an act or omission taken in such officer’s judicial
capacity, injunctive relief shall not be granted unless a declaratory decree
was violated or declaratory relief was unavailable. For the purposes of this section, any Act of
Congress applicable exclusively to the District of Columbia shall be considered
to be a stature of the District of Columbia.”
Based on that language, in order to prevail, the plaintiffs
are going to have to convince the court that the routine management of the
striped bass resource, and the management actions taken by the ASMFC to
conserve that resource and rebuild the overfished striped bass stock, when
adopted by each state as regulations, somehow equate to the states depriving
the plaintiffs of rights guaranteed to them by the Constitution or federal law.
Lawsuits generally don’t hinge on a single argument, and I suspect that the complaint cites alternate grounds for relief. Plaintiffs willalmost certainly try to convince the court that the ASMFC is a federal agency,and that Addendum II constituted an “arbitrary and capricious” action, andshould thus be invalidated under the federal Administrative Procedures Act, and may present other arguments as well.
Some
of the comments made by plaintiffs’ representatives already provide a pretty good idea
of what their approach might be.
“the [Atlantic States Marine Fisheries] commission and state
agencies are shortening the fishing season, reducing the size of removable
fish, lowering commercial quotas and limiting recreational fishers on charter
boats to one fish per day.”
But those are all typical management responses when trying
to rebuild an overfishes stock, and hardly rise to a deprivation of civil
rights. Newberry also reportedly opined
that
“For too long, our industry has allowed this obscure Interstate
Compact (ASMFC) founded in 1942 to help furnish the food supply behind the war
effort, to transform itself into a power-hungry partnership with massive
support from federal government agencies which apparently think that fish are
more important than people.”
Such comment is a blatant misrepresentation of how ASMFC’s fisheries management role developed, as the commission did not “transform itself” into anything at all. Instead, the ASMFC’s management role was defined by to two acts of Congress, the first being the Atlantic Striped Bass Conservation Act, which was enacted in 1984 in an effort to rebuild the then-collapsed striped bass stock, and the second being the Atlantic Coastal Fisheries Cooperative Management Act, enacted in 1993, which gave the ASMFC the authority to manage other coastal fish stocks.
In passing those laws, Congress intended to give the ASMFC broad management autocks, in order to provide consistent coastwide management throughout a species' range, and to end chaos that ensues when states compete for
the largest share of a depleted or declining fishery, instead of cooperating to
assure such fishery’s long-term health.
Far from being the sort of rogue agency described by
Newberry, the ASMFC is instead doing its job exactly as Congress intended.
Plaintiffs also seem to be under the misapprehension that
the ASMFC’s striped bass management efforts somehow run afoul of the
Executive Order signed by President Trump on April 17, titled “Restoring
America’s Seafood Competitiveness.”
But that is not the case.
Even setting aside the fact that the ASMFC is an interstatecompact—that is, a voluntary association of states that have come together toaccomplish a particular purpose—and thus outside the scope of presidential
authority, the Executive Order’s instructions with regard to fishery
regulations are quite specific. It
directs that
“The Secretary of Commerce, in consultation with the
Secretary of Health and Human Services and in consultation with input from the
United States fishing industry, shall immediately consider suspending,
revising, or rescinding regulations that overly burden America’s commercial
fishing, aquaculture, and fish processing industries at the fishery-specific
level. Within 30 days of the date of
this order, the Secretary of Commerce shall identify the most heavily overregulated
fisheries requiring action and take appropriate action to reduce the regulatory
burden on them, in cooperation with the Regional Fishery Management Councils,
interagency partnerships, and through public-private partnerships as
appropriate…”
But the striped bass regulations in question have been
promulgated on the state and not the federal level, taking them out of the
Secretary of Commerce’s jurisdiction. Even
if the Secretary tried to argue that the commercial and charter fisheries for
striped bass impacted interstate commerce, and thus fell within his
jurisdiction, such argument would necessarily fail, as striped bass management authority
was granted to the states, acting cooperatively through the ASMFC, by an act of
Congress, and Article
I, Section 8, Clause 3 of the United States Constitution declares that
“[Congress shall have the Power…] To regulate Commerce with
foreign Nations, and among the several States, and with the Indian Tribes. [emphasis added]”
The Executive Order provides the Secretary of Commerce with
no power to manage striped bass in state waters; there is good reason why it
mentions neither the states nor the ASMFC.
Similarly, the Executive Order provides that
“The Secretary of Commerce shall request that each Regional
Fishery Management Council, within 180 days of the date of this order, provide
the Secretary of Commerce with updates to their recommendations…to reduce
burdens on domestic fishing and to increase production…The Regional Fishery
Management Councils shall commit to a work plan and a schedule for
implementation to insure these actions are prioritized.”
Again, there is no mention of the ASMFC, as the federal government,
even at the presidential/secretarial level, has no authority to direct its actions.
If the plaintiffs are somewhat misinformed as to the origins
of the ASMFC’s management authority and the commission's relationship with the federal
government, it seems equally misinformed as to the health of the striped bass
stock. The
Kent County News, another local Maryland news outlet, stated that
“Newberry said striped bass stock across the entire
Mid-Atlantic region ‘has never been more plentiful.’”
“This needless action also violates common sense. The ASMFC action was taken despite its own
admission that striped bass stock is ‘not being overfished’ and that neither
the Atlantic Ocean nor its bays and other tributaries even represent a ‘Fish
Habitat of Concern’ for striped bass.”
She's right, the striped bass stock is not being overfished—that is,
the fishing mortality rate is not excessively high—but that's largely because of the
management measures included in the very Addendum II that the plaintiffs have
chosen to challenge. However, the striped
bass stock is overfished—female spawning stock biomass remains too low to
sustain the stock in the long term—and that is the problem that Addendum II is helping to resolve.
“One major flaw in the claimed science behind this regulation
is NOAA’s Marine Recreational Information program [sic] being used to
estimate recreational and for-hire catch data which has been found to be
grossly overestimating recreational catch.”
While he’s right that NMFS
discovered an error in the MRIP effort survey that might overstate recreational
effort—and so catch and landings data—by as much as 40 percent, Hatch seems
to suggest that any overestimate of harvest would lead to the false conclusion that
the striped bass population is smaller than it actually is.
That is not the case.
Recreational catch and landings are one of the inputs used
in the striped bass stock assessment. Higher
sustained landings indicate that the striped bass stock is more productive,
with a higher biomass target and threshold, and a larger biomass, than would be the case had landings been lower (this
was illustrated in the 2018 benchmark stock assessment, when an upward revision
in MRIP estimates led to the biomass target being increased from 72,032 to
114,295 metric tons; the estimate of spawning stock biomass was also modified
upwards).
Thus, if MRIP is “grossly overestimating” recreational
striped bass catch, as Hatch maintains and as is probably the case, the stock assessment is also
necessarily overestimating both striped bass abundance and the productivity of
the striped bass stock. Such situation,
if anything, would provide additional justification for Addendum II’s more restrictive management
measures.
And a lot of fishermen believe that those management
measures were perfectly appropriate, despite the plaintiffs’ objections. While
the complaint argued that
“Despite massive opposition in the form of hundreds of
letters and in person meetings pleading with the ASMFC, its members [sic]
states and other active participants, its self-described federal ‘partners’ and
chief funding sources (namely, NOAA and USFWS), not to proceed with this flawed
plan, that advice was glibly dismissed,”
it completely ignored the fact that while there might
have been “hundreds” of letters opposing Addendum II (if barely 200 negative comments could charitably be--barely--referred to as "hundreds"), there were thousands of comments that supported the addendum, from fishermen who believed that its additional
management measures were badly needed.
So, with respect to all three of the issues that gave rise
to their lawsuit, the plaintiffs found themselves in the distinct
minority. If stakeholder opinion is one of the critical factors used to determine Addendum II’s
validity, the plaintiffs are clearly on the losing side of the issue.
But maybe the most consideration ought to be the
long-term impact on the plaintiffs themselves.
“These actions threaten not only the present viability of our
businesses but also the long-term sustainability of the for-hire sector of the
fishing industry. The ramifications
extend beyond our industry, impacting hotels, restaurants, tackle shops and
other merchants relying on our operations to sustain their livelihoods.”
“We stand in solidarity with our fellow watermen in our
opposition to the Atlantic States Marine Fisheries Commission…The
socio-economic hardships put on not only our captains, crew, and families but on
our entire coastal communities when agencies continue to handcuff these
watermen is immeasurable.”
And in the short term, those statements might almost be
true. But the current striped bass management
measures offer the hope that any hardships created will only be temporary, and
that a rebuilt stock will eventually bring regulatory relief and greater prosperity for
everyone involved with the fishery.
On the other hand, the striped bass stock has collapsed
before, and given the last six years of poor recruitment, and its current
overfished state, it’s entirely possible that, without effective management
measures, the striped bass stock could collapse again.
So it’s pretty clear that effective conservation and management isn’t only good for striped bass, but also good for the businesses that rely on the striped bass resource. Abundance clearly drives effort, and effort drives profits.
That’s something that the plaintiffs ought to think about.
For while it is highly unlikely that their suit will be
successful, after 45 years as an attorney, I’ve learned to never say never when
it comes to predicting what a court will do.
There’s always a chance, however slight, that plaintiffs will win.
And if they do, we might well find ourselves back in 1984,
with a collapsed striped bass stock and an ASMFC stripped of its management
powers, with no authority to pull the states all together to rebuild the stock.
In such a scenario, even if the plaintiffs win the lawsuit, in
the end, they’re going to lose.
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