WILL NEW JERSEY GO OUT OF COMPLIANCE WITH STRIPED BASS ADDENDUM III?

 

Because I write this blog, and am fairly involved in the fisheries management process, people often tip me off when something interesting, controversial, or newsworthy is going on somewhere along the coast.

Thus, about 10 days ago, I received a text and a follow-up phone call telling me that “New Jersey”—it wasn’t exactly clear who, just “New Jersey”—had decided that, if the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board approves Addendum III to Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass when it meets later this month, the state would not comply with its management measures, or at least, not with those imposing a closed season on the ocean fishery.

The rumor went on to say that there was some sort of meeting of New Jersey fishing clubs, perhaps under the aegis of the Jersey Coast Anglers Association, but whether that meeting involved New Jersey regulators, and whether those regulators had committed to noncompliance, or just failed to discount the possibility, was unknown.

As any state’s noncompliance with a fisheries management measure can have a serious negative impact on the affected stock all along the coast, a threat of noncompliance is a significant management issue, so I began trying to chase the rumor down, reaching out to contacts in the New Jersey recreational fishing community in an effort to root out the truth.  For a while, my efforts did not yield results, but finally a friend in the Garden State, who happens to be a charter boat captain committed to fisheries conservation, whom I had not contacted in my initial round of inquiries, reached out to me and provided some of the details.

I was told that the decision to go out of compliance with Addendum III was made by the New Jersey Marine Fisheries Council, which had met, in part to discuss that issue, on September 10.  

The New Jersey Marine Fisheries Council was established by the state legislature.  It is composed of 11 individuals, nine of whom are appointed by the state’s governor, and must be confirmed by the state Senate.  Four of the nine persons subject to Senate confirmation must represent the recreational fishery, two must be active commercial fishermen, one an active fish processor, and two shall represent the general public; the other two Council members are the chairmen of the two sections of the state’s Shellfisheries Council.

The Council neither promulgates regulations nor drafts fisheries management plans, although it advises the Commissioner of the New Jersey Department of Environmental Protection on such issues and contributes to the development of management plans.  However, what makes the Council’s decision to go out of compliance with Addendum III very significant is its power to

“disapprove, within 60 days of the proposal thereof and the submittal thereto, any rule or regulation or any amendment thereto proposed by the commissioner pursuant to this act except for any rule or regulation adopted pursuant to subsection (c) of section 4 of the ‘Administrative Procedures Act.’”

Thus, even if New Jersey’s fisheries management professionals want to comply with the ASMFC’s decision on Addendum III, the Council has the authority to veto that decision and force the state into noncompliance.

And from what I was told occurred at the September 10 meeting, the Council intends to do just that.  No minutes of that meeting are yet available, but my contact is knowledgeable enough, and tuned in enough, that I feel comfortable taking him at his word.

I was also told that, of all the fishing clubs and other organizations that belong to the Jersey Coast Anglers Association, all but two—the Berkley Striper Club and Menhaden Defenders—voted to either support the JCAA encouraging the Council to promote noncompliance or endorsing its decision not to comply (the sequence of events isn’t completely clear).

Thus, if the ASMFC ultimately adopts Addendum III, and additional striped bass management measures, at its Annual Meeting, which is scheduled for later this month, there is a very good chance that the Council will either convince state regulators to go out of compliance, or disapprove any compliant regulations.

Either way, New Jersey would not adopt any new and necessary restrictions included in the new addendum.

Technically, even given the Council decision, New Jersey would not be out of compliance with the ASMFC’s striped bass management plan at any time this year, as it is all but certain that, if Addendum III is adopted, it will include a January 1, 2026 compliance date.  Assuming that is the case, all of the states with a declared interest in striped bass will have until then to put the required measures in place.

Thus, the ASMFC and its Atlantic Striped Bass Management Board is going to face a number of decisions, two at its October meeting and, depending on what it decides then, as many as three when it meets again in February 2026.

In October, it will have to decide whether it really believes that New Jersey will go out of compliance and, if it thinks that it will do so, whether to adopt Addendum III and risk a confrontation that it might very well lose, or whether it should either delay the vote or decide to discontinue work on the addendum altogether, in order to avoid a bad outcome.

Right now, it’s impossible to say what path it would take, given the strong fishing tackle industry opposition to Addendum III, coupled with similarly strong opposition from the for-hire and commercial sectors, might be enough to convince some Management Board members that if adopting the addendum, in the face of such opposition, will lead to a compliance battle that it might very well lose, then abandoning Addendum III is the wiser course.

We saw the American Lobster Management Board make such a decision at last February’s ASMFC meeting.

But if the Atlantic Striped Bass Management Board adopts Addendum III in October, and the New Jersey Marine Fisheries Council makes good on its threat to go out of compliance, then the ASMFC will face as many as three decisions in February 2026.

The first is whether the Management Board should move forward with a noncompliance vote, or whether to refrain, tolerate New Jersey’s noncompliance, at least for a while, and not risk undercutting the Commission’s authority by losing a noncompliance fight.

If it decides to find New Jersey out of compliance, and the ASMFC’s Interstate Fishery Management Plan Policy Board endorses its decision, an additional decision arises:  Which law should govern the noncompliance finding?

To date, as far as I know, all of the ASMFC’s noncompliance findings have been made pursuant to the Atlantic Coastal Fisheries Cooperative Management Act, which provides, in relevant part,

“The Commission shall determine that a State is not in compliance with the provisions of a coastal fishery management plan if it finds that the State has not implemented and enforced such plan within the timeframes established under the plan…

“After making a determination [that a State is not in compliance] the Commission shall within 10 working days notify the [Secretary of Commerce] of such determination.  Such notification shall include the reasons for making the determination and an explicit list of actions that the affected State must take to comply with the coastal fishery management plan.  The Commission shall provide a copy of the notification to the affected State…

“Within 30 days after receiving a notice from the Commission…and after review of the Commission’s determination of noncompliance, the Secretary shall make a finding on (1) whether the State in question as failed to carry out its responsibility under [the 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…

“Upon making a finding…that a State has failed to carry out its responsibility under [the fishery 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.  [formatting omitted]”

The Atlantic Coastal Fisheries Act became law in 1993, and for the first 24 years of its existence, the Secretary of Commerce routinely endorsed the ASMFC’s noncompliance findings, and used the moratorium as an incentive to bring states into compliance with the ASMFC’s management plans.

But that all changed during the first Trump administrationwhen, in 2017, the State of New Jersey (yes, them again) decided to go out ofcompliance with the ASMFC’s summer flounder management plan, betting thatpolitical connections (its then-governor, Chris Christie, was an early Trumpsupporter, and so had some political influence within that administration)would trump good science and lead to a favorable decision.

The gamble paid off, as Commerce Secretary Wilbur Ross became the first Commerce Secretary in history to override the ASMFC’s finding of noncompliance and excuse a noncompliant state’s actions.

It is not at all unlikely that, if New Jersey went out of compliance with striped bass and a noncompliance finding was made under the Atlantic Coastal Fisheries Act, the same thing would happen again, if for different political reasons.

Thus, the ASMFC might well be reluctant to initiate noncompliance proceedings under that law.

But it may have another, more viable alternative.

In 1984, Congress passed the Atlantic Striped Bass Conservation Act, which actually provided a template for the later law, but differed in an important respect.  Under the Striped Bass Act, if a state went out of compliance with the ASMFC’s striped bass management plan,

“The Commission shall immediately notify the Secretaries [of Commerce and the Interior] of each negative determination made by it…

“Upon receiving notice by the Commission…of a negative determination regarding a coastal State, the Secretaries shall determine jointly, within 30 days, whether the coastal State is in compliance with the Plan and, if the State is not in compliance, the Secretaries shall declare jointly a moratorium on fishing for Atlantic striped bass within the coastal waters of that coastal State…  [formatting omitted]”

The Striped Bass Act has fallen into obscurity since the passage of the Atlantic Coastal Fisheries Act, as the latter addresses all ASMFC-managed fisheries, including that for striped bass.  But the Striped Bass Act was never repealed by Congress, and remains on the books, and it may offer the ASMFC a far better chance of enforcing its noncompliance finding, because it does not require that the Secretary of Commerce (or the Interior) determine whether the provisions that as state has not complied with are “necessary for conservation.”  A mere finding that a state is not in compliance with the striped bass management plan is enough to require that a moratorium be imposed.

Of course, things probably wouldn’t go that smoothly.  The secretaries might well try to impose a “necessary to conservation” standard for political reasons, even though it wasn’t explicitly stated in the statute, and New Jersey might well choose to litigate if the secretaries imposed a moratorium without addressing the necessity of the management measures in question. 

Still, the best evidence of Congressional intent is the plain language of the statute, and “if the State is not in compliance, the Secretaries shall declare jointly a moratorium” is pretty plain and clear.  There’s not much room for interpretation.  If Congress really wanted a “necessary to conservation” standard to apply to the Striped Bass Act, all they would have had to do was write one in--which, after all, they did it in the Atlantic Coastal Fisheries Act.  The fact that they didn’t include similar language in the Striped Bass Act surely suggests that they chose not to do so.

Hopefully, things won’t get that far.

Hopefully, the New Jersey Marine Fisheries Council isn’t quite as determined to go out of compliance as the stories I’m hearing suggest, and hopefully, New Jersey will choose to be a responsible member of the ASMFC that respects the Commission’s decisions, even if they don’t go New Jersey’s way.

But history suggests that expecting New Jersey to act responsibly is expecting too much, and that the state might well choose to place its own short-term interests ahead of the interests of the striped bass resource and all of the anglers, commercial fishermen, and fishing-related businesses lining the coast between Maine and Virginia, that depend on a healthy striped bass stock.

2017 isn’t that far in the past, a Trump administration is again in the White House, and there isn’t any reason to believe that New Jersey doesn’t hope that history will repeat itself if it goes out of compliance again.

So, should New Jersey again decide to act irresponsibly, it’s nice to know that the ASMFC might have an option that could see the latest round of noncompliance, should it occur, bring the consequences such actions deserve.