Woe Betide Flounder

By August Pons, Staff Contributor

Summer Flounder is found in the waters off the Atlantic Coast. It is a flat fish, ovular and long, like a steamrolled football. It is also delicious, and therefore, susceptible to overfishing.

Tasked with ensuring the continued health of the Summer Flounder population is the Atlantic States Marine Fisheries Commission (ASMFC), which works closely with, yet under, the National Oceanic and Atmospheric Administration (NOAA), an office within the Department of Commerce.[1] The ASMFC administers a Fisheries Management Plan to prescribe regulations applicable to commercial fishermen for the season.[2]

Responding to a 2016 fishing season that threatened the viability of the Summer Flounder population, the ASMFC sought to reduce the 2017 Summer Flounder harvest by over 30%.[3] So, in 2017, the ASMFC updated the Plan to include Addendum XXVIII, which mandated a 128-day season during which any Summer Flounder caught that was less than 19 inches in length must be released.[4]

New Jersey disagreed with Addendum XXVIII, claiming that a 33% harvest reduction would demolish their commercial fishing industry. So, they spurned the Addendum and crafted their own regulation. Bob Martin, head of the New Jersey Department of Environmental Protection, signed-off on an 18-inch minimum size limit and a 104 day season. Crucially, he claimed that no more flounder would die than under the ASMFC’s plan.[5]

Under the Atlantic Coastal Act, states must adopt the Fishery Management Plan promulgated by the ASMFC.[6] Failure to do so results in a moratorium until the state comes into compliance.[7] However, the adoption of a “conservationally equivalent” plan, as determined by the Commission, will forego imposition of a moratorium.[8] Martin’s contention that New Jersey’s measure would have the same effect as the ASMFC measure was an attempt to meet this conservationally equivalent standard.

It was the task of the Technical Committee of the ASMFC to analyze the measures implemented by New Jersey and to decide whether or not they achieve an identical level of protection for the flounder. Much to New Jersey’s dismay, their alternative measure was deemed by the committee to not be conservationally equivalent.[9]

Then, on July 12th, New Jersey Commercial Fishermen rejoiced when Secretary of Commerce, Wilbur Ross, disagreed with the Technical Committee. He found the measure to be the conservational equivalent of the ASMFC plan and declined to impose a moratorium on Summer Flounder,[10] appeasing New Jersey’s concerns over the damage to their fishing industry. The rest of the states along the Atlantic seaboard are rightly concerned that allowing New Jersey to adopt renegade regulations such as these undermines the macro-regional character of the cooperative, inter-state preservation program under the ASMFC management plan.

In all 18 previous instances of non-compliance findings by the ASMFC, a Secretary of Commerce has never disregarded a finding and refused to impose a moratorium.[11] Such an administrative action, with scant contemporaneous support, could spell trouble for the validity of New Jersey’s measures, were Secretary Ross’s action to be exposed to judicial scrutiny.

It remains to be seen whether New Jersey’s measures will have a veritable detrimental impact on the health of the Summer Flounder. This offseason, the population growth will be studied to assess whether changes must be made before the 2018 season opens, in which case this regulatory rodeo may repeat itself. In the meantime, Summer Flounder would be wise to avoid the New Jersey coast.

[1] Atlantic States Marine Fisheries Commission, http://www.asmfc.org/species/summer-flounder (last visited Oct. 30, 2017).

[2] Atlantic States Marine Fisheries Commission, http://www.asmfc.org/about-us/program-overview (last visited Oct. 30, 2017).

[3] Id.

[4]Atlantic States Marine Fisheries Commission, Addendum XXVIII to the Summer Flounder, Scup, Black Sea Bass Fishery Management Plan, (2017), http://www.asmfc.org/uploads/file/58b5cf80SummerFlounderAddendumXXVIII_Feb2017.pdf.

[5] N.J. Dep’t of Envtl. Protection, News Release, May 24, 2017, http://www.nj.gov/dep/newsrel/2017/17_0050.htm

[6] Atlantic Coastal Act, 16 U.S.C. § 5105 (2000).

[7] Id.

[8] Id.

[9] Conference Call: ISFMP Policy Board Conference Call, Atlantic States Marine Fisheries Commission, (June 1, 2017).

[10] Memorandum from Alan Risenhoover, Director, Office of Sustainable Fisheries, U.S. Dep’t of Com., to Chris Oliver, Assistant Administrator for Fisheries, U.S. Dep’t of Com., (July 11, 2017).

[11] Letter from Douglas Grout, Chair, Atlantic States Marine Fisheries Commission, to Wilbur Ross, Secretary of Commerce, and Chris Oliver, Assistant Administrator for NOAA Fisheries, (July 20, 2017).